Court of Appeals of Missouri, Southern District, Second Division
COLBY L. SANDERS, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Laura J.
Johnson, Circuit Judge
Rahmeyer, P.J., Lynch, J., and Scott, J.
February 16, 2017, this Court issued an opinion in this cause
and transferred it, pursuant to Rule 83.02,  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).
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, Case.net shows that the order of notification
[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
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
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.
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. 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."
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.
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 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.
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).
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 ...