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Southern v. State

Court of Appeals of Missouri, Southern District, First Division

April 18, 2019

BRIAN MANUEL SOUTHERN, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E. Mountjoy.

          OPINION

          DON E. BURRELL, P.J.

         Brian Manuel Southern ("Movant") appeals the motion court's denial, after an evidentiary hearing, of his Rule 29.15 amended motion for post-conviction relief ("the motion").[1] His two points on appeal claim the motion court clearly erred in denying the motion because trial counsel was ineffective in: (1) failing to immediately object or move for a mistrial when a nurse practitioner testified that freezing Movant's urine sample "changed" the results of a chlamydia test; and (2) failing to investigate and call a particular witness.

         Finding no clear error, we affirm.

         Standard of Review & Applicable Law

         Movant must prove his grounds for relief by a preponderance of the evidence. Rule 29.15(i). We will reverse the motion court's ruling only if its findings of fact or conclusions of law are clearly erroneous. Rule 29.15(k).

To be entitled to post-conviction relief for ineffective assistance of counsel, [Movant] must satisfy the two-prong Strickland test. First, [Movant] must show that his attorney failed to exercise the level of skill and diligence that a reasonably competent attorney would exercise in a similar situation. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the trial counsel's failure must prejudice [Movant]. Id. [. . .]
To meet the performance prong of the Strickland test, [Movant] must overcome a strong presumption that counsel's conduct was reasonable and effective. Id. To overcome this presumption, [Movant] must point to "specific acts or omissions of counsel that, in light of all circumstances, fell outside the wide range of professional competent assistance." Id. A trial strategy decision may only serve as a basis for ineffective counsel if the decision is unreasonable. Zink [v. State], 278 S.W.3d [170, ] 176 [(Mo. banc 2009)]. The choice of one reasonable trial strategy over another is not ineffective assistance. Id. "[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable[.]" Anderson [v. State], 196 S.W.3d [28, ] 33 [(Mo. banc 2006)] (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).
To satisfy the prejudice prong of the Strickland test, [Movant] must demonstrate that, absent the claimed errors, there is a reasonable probability that the outcome would be different. Id. A reasonable probability exists when there is "'a probability sufficient to undermine confidence in the outcome.'" Id. at 33-34 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012).

         Background

         Twelve-year-old Victim and Movant were at a birthday party for Victim's cousin when Movant forced Victim to have sex with him. Movant was charged with forcible rape and, in the alternative, first-degree statutory rape. A jury found Movant guilty of the lesser-included charge of first-degree statutory rape, and the trial court sentenced Movant to thirty years in the Department of Corrections. We affirmed Movant's conviction and sentence on direct appeal in an unpublished order and statement. State v. Southern, No. SD32513 (Mar. 27, 2014).[2]

         The motion alleged, inter alia, that trial counsel was ineffective for failing "to timely and adequately object, move to strike, request a continuance and request a mistrial in response to Nurse [Practitioner] Cindy Tull's [("Nurse Tull")] undisclosed, unfounded and prejudicial testimony[, ]" and in failing "to interview M[.]W[.] and call her as a defense witness at Movant's trial."

         The motion court held an evidentiary hearing on the motion in August 2015, and both Movant and his trial counsel testified. Trial counsel testified that the Sexual Assault Forensic Examination ("SAFE") exam performed on Victim after the assault showed that Victim had tested positive for chlamydia -- an important issue in the case. Trial counsel had also received a lab test that a urine sample taken from Movant tested negative for chlamydia. Trial counsel thought this was "the most crucial evidence[, ...


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