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Sanders v. State

Court of Appeals of Missouri, Southern District, Second Division

December 13, 2017

COLBY L. SANDERS, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Laura J. Johnson, Circuit Judge

          Before Rahmeyer, P.J., Lynch, J., and Scott, J.

          PER CURIAM.

         On February 16, 2017, this Court issued an opinion in this cause and transferred it, pursuant to Rule 83.02, [1] to the Supreme Court of Missouri. The issue that was pending in the Supreme Court of Missouri at the time of our opinion was whether an "order of notification" was an appointment of counsel. On November 2, 2017, the Supreme Court entered an order re-transferring the cause to this Court in light of two opinions entered on April 25, 2017, Creighton v. State, 520 S.W.3d 416 (Mo. banc 2017), and Hopkins v. State, 519 S.W.3d 433 (Mo. banc 2017).

         In Creighton and Hopkins, the Supreme Court held that an order of notification was not an appointment of counsel to the public defender. Creighton, 520 S.W.3d at 421; Hopkins, 519 S.W.3d at 436. Although Movant did not include a copy of the order of notification in the legal file, shows that the order of notification stated:

[T]he Court orders the Circuit Clerk to notify the Central Appellate Division for the State Public Defender of the filing of this 24.035 [sic] action and to provide the State Public Defender with a copy of Movant's Form 40.
The Circuit Clerk is ordered to furnish to the State Public Defender any and all pleadings from this file or the underlying criminal case that the State Public Defender may request.

         Subsequent to our opinion, the Supreme Court considered an identical order of notification in Hopkins v. State, 519 S.W.3d 433 (Mo. banc 2017), and concluded it was not an appointment and, "The Rule 29.15(g) filing period commenced when Movant's public defender entered his appearance." Id. at 436. As a result, Movant's amended motion for post-conviction relief in this case was filed timely.

         We now consider the merits of Movant's appeal. In this case, Movant was charged with eight separate offenses - four involved B.S., two involved A.S. and two involved L.S. The trial court also instructed the jury on eight offenses and one lesser included offense - the first four and the one lesser included offense involved B.S., the next two involved A.S., and the final two involved L.S.[2] In Instruction No. 5 (Count I - child molestation in the first degree), which is at issue, the instruction required the jury to find that Movant "touched [B.S.] with [his] genitals." [3]Movant sought relief claiming trial counsel was ineffective for failing to object to Instruction No. 5, which arguably could have been met in four separate instances of conduct on the part of Movant.[4]

         Movant claims that though individually each of the four events would have qualified under the verdict director, there is no guarantee that the jury unanimously found Movant guilty of the same event. The motion court denied Movant's amended motion following an evidentiary hearing. Under the Strickland[5] standard, the motion court made the following findings and conclusions on Movant's claim:

Without a addressing whether or not a reasonable attorney would have objected to Instruction No. 5, the Court first determines whether or not Movant has demonstrated that "a reasonable probability exists that, but for defense counsel's ineffectiveness, the result at trial would have been different." Deck v. State, 68 S.W.3d 418, 426 (Mo. bane 2002).
The Eastern District has held that while the use of a vague jury instruction failing to specify incidents is in error, it can be non-prejudicial if it has no effect on the jury's verdict when the record is viewed as a whole. Barmettler v. State, 399 S.W.3d 523, 530 (Mo. App. E.D. 2013). When a defense is based on pure fabrication of all incidents, it is not offense specific. State v. Cells-Garcia, 344 S.W.3d 150, 158-159 (Mo. banc 2011). A defense must be offense specific in order for the erroneous instruction to create a "manifest injustice" that prejudices the defendant. State v. Rose, 421 S.W.3d 522, 529 (Mo. App. S.D. 2013).
Given that Movant's entire case was based on the unitary defense the victims had fabricated the allegations, Movant's defense was not affected by Instruction No. 5. Therefore, Movant has no evidence to support the claim that Movant suffered prejudice from Instruction No. 5 being given to the jury.

         We note that if a motion court could dispose of Movant's claim for lack of prejudice, it should do so. Sidebottom v. State, 781 S.W.2d 791, 796 (Mo. banc 1989).

         In a single point, Movant claims the motion court "clearly erred in denying" his amended motion as to Count I because trial defense counsel was constitutionally ineffective in failing to object to Instruction No. 5 (the verdict director for Count I - child molestation in the first degree) "on the basis that the instruction did not identify the specific conduct the jury had to find in order to convict" Movant. Because we are bound by the most recent precedent of our Supreme Court, as set forth in Hoeber v. State, 488 S.W.3d 648 (Mo. banc ...

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