Burgess v. State

649 S.W.3d 47

Corey BURGESS, Appellant,

v.STATE of Missouri, Respondent.

No. ED 109847

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: April 19, 2022

Motion for Rehearing and/or Transfer to Supreme Court Denied May 23, 2022

Application for Transfer Denied August 30, 2022

Abraham P. Copi, 1010 Market Street, Suite 1100, St. Louis, MO 63101, for appellant.

Daniel N. McPherson, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, for respondent.

Gary M. Gaertner, Jr., J.

Introduction

Corey Burgess (Movant) appeals the denial of his motion for post-conviction relief under Rule 29.15 without an evidentiary hearing. A jury convicted Movant of two counts of third-degree domestic assault, and he alleged in his motion that both his trial counsel and appellate counsel were ineffective based on his assertion that the State failed to prove he was in a continuing social relationship of a romantic or intimate nature, an essential element of third-degree domestic assault. We affirm.

Background

Movant's underlying convictions arose out of an incident beginning late in the evening of August 26, 2016, into early the next morning, at the apartment of L.W. (Victim). Victim testified that Movant attacked her on her bed, pinned her down, choked her with his forearm, and hit her. Victim testified Movant left the room at some point, then returned and began to attack her again. Victim testified she tried to leave, but Movant stopped her and took her phone. Victim bit Movant to try to get him off of her, but he bit her back. Victim testified Movant then told her to give him oral sex and forced her to have sexual intercourse. She did not fight back because she did not want him to hurt her. Victim testified Movant eventually fell asleep. She was afraid to get out of bed, and urinated on herself. Movant left sometime in the morning, and after that Victim cleaned up and went to work. She told her boss what happened, and later that day, she called the police.

The State charged Movant with kidnapping (Count I), second-degree rape (Count II), second-degree sodomy (Count III), second-degree domestic assault for choking (Count IV), and third-degree domestic assault for biting (Count V). The jury acquitted Movant in Counts I, II, and III, convicted Movant of the lesser included offense of third-degree domestic assault in Count IV, and found Movant guilty in Count V. The trial court sentenced Movant as a prior and persistent offender to concurrent terms of four years’ imprisonment on each count, to be served consecutively to a 10-year sentence Movant was serving in another case. This Court affirmed Movant's convictions and sentences on appeal. State v. Burgess, 596 S.W.3d 685 (Mo. App. E.D. 2020) (per curiam).

Movant timely filed a pro se motion under Rule 29.15, and later an amended motion through counsel, asserting various claims of ineffective assistance of both trial and appellant counsels. As relevant here, Movant argued his appellate counsel was ineffective for failing to raise on direct appeal that there was insufficient evidence to convict Movant of Counts IV and V because the State failed to prove beyond a reasonable doubt that Movant and Victim were in a continuing social relationship of a romantic or intimate nature. Movant additionally argued that his trial counsel was ineffective for failing to object to the prosecutor's statement during closing argument that the fact that Movant and Victim had had a single prior consensual sexual encounter meant the charged acts here were "automatically under the domestic umbrella." The motion court denied Movant's motion without an evidentiary hearing, finding the record refuted Movant's claims. The court found the record contained sufficient evidence to support Movant's convictions, thus neither Movant's trial counsel nor Movant's appellate counsel were ineffective and Movant was not prejudiced. This appeal follows.

Standard of Review

Our review of the motion court's denial of a motion for post-conviction relief is "limited to the determination of whether the findings of fact and conclusions of law are clearly erroneous." Hickey v. State, 328 S.W.3d 225, 227 (Mo. App. E.D. 2010). Findings and conclusions are clearly erroneous "only if, after a review of the entire record, the reviewing court is left with a definite and firm impression that a mistake has been made." Id. In order to be entitled to a hearing on a motion under Rule 29.15, a movant must allege facts, not conclusions, which are not refuted by the record and if true, entitle the movant to relief. Wooldridge v. State, 239 S.W.3d 151, 154 (Mo. App. E.D. 2007).

In order to establish ineffective assistance of counsel, a movant must prove that counsel's performance fell below that of reasonably competent counsel, and that the movant was prejudiced thereby. Rousan v. State, 48 S.W.3d 576, 581 (Mo. banc 2001) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Prejudice requires a showing there is a "reasonable probability that but for counsel's errors, the result of the proceeding would have been different." Id. Additionally, we "presume[ ] that counsel acted professionally in making decisions and that any challenged action was a part of counsel's sound trial strategy." Barton v. State, 432 S.W.3d 741, 749 (Mo. banc 2014) (quoting Johnson v. State, 333 S.W.3d 459, 463 (Mo. banc 2011) ).

Discussion

Movant raises two points on appeal. First, he argues the motion court clearly erred in denying his motion without an evidentiary hearing because the record establishes the State failed to prove beyond a reasonable doubt that Movant and Victim were in a continuing social relationship of a romantic or intimate nature, and thus Movant was prejudiced by appellate counsel's failure to argue the evidence was insufficient on appeal. In Point II, Movant argues that the motion court clearly erred in denying his motion because his trial counsel was ineffective for failing to object to the prosecutor's closing argument that Movant's and Victim's prior consensual sexual encounter meant the criminal acts here were "automatically under the domestic umbrella," and Movant was prejudiced thereby. We discuss each in turn.

Point I

Movant argues the motion court clearly erred in denying his Rule 29.15 motion because the record establishes that had appellate counsel disputed the sufficiency of the evidence to convict Movant on appeal, his convictions would have been vacated in that the State failed to prove Movant and Victim had an ongoing social relationship of a romantic or intimate nature. We disagree.

Movant's claim of ineffective assistance of appellate counsel is governed by essentially the same standard as claims of ineffective assistance of trial counsel: Movant must show that appellate counsel breached a duty and prejudice resulted. Holman v. State, 88 S.W.3d 105, 110 (Mo. App. E.D. 2002). Where alleged ineffectiveness is based on a failure to raise a particular claim of error on appeal, the movant must show that the claim "would have required reversal had it been brought[,] and [the error] was so obvious from the record that a reasonably competent attorney would have recognized and asserted it." Id.

Here, Movant claims the record showed the State failed to meet its evidentiary burden to prove there was sufficient evidence of a relationship between Movant and Victim that would satisfy an essential element of the offense of domestic assault in the third degree. Specifically, Movant argues the State failed to prove beyond a reasonable doubt that Movant and Victim had a continuing social relationship of a romantic or intimate nature. Section 565.074, RSMo. Supp. 2016, which was in effect at the time of the incidents here, provided that domestic assault in the third degree "involves a family or household member ... as defined in section 455.010[.]" Section 455.010(7), RSMo. Supp. 2016, defined "family" or "household member" as the following:

spouses, former spouses, any person related by blood or marriage, persons who are presently residing together or have resided together in the past, any person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, and anyone who has a child in common regardless of whether they have been married or have resided together at any time[.]

The jury was instructed it could find Movant and Victim were family or household members on the basis of a continuing social relationship of a romantic or intimate nature, and there was no evidence in the record to support the relationship element on any other basis listed in Section 455.010.

Movant argues the evidence was insufficient here by pointing to Victim's testimony that Movant and Victim were "just friends," that they were not in a relationship, and were not going out on dates. Movant also notes the prosecutor's statements during opening and closing arguments that Movant and Victim "were casual friends." Movant argues the fact that Movant and Victim had had one prior consensual sexual encounter was not enough to establish a continuing relationship.

As discussed by the Western District Court of Appeals in State v. Daniel, 103 S.W.3d 822 (Mo. App. W.D. 2003), the applicable statutes here do not contain a definition of the word "continuing" in this context. The Daniel court therefore consulted dictionary definitions for "continuing," which included "continuous," "constant," "needing no renewal," "lasting," and "enduring." Id. at 826 (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 493 (3d ed. 1993)). The court further noted that when interpreting statutes, we are to keep in mind common sense and "the statute's history, surrounding circumstances, and ... the problem in society to which the legislature addressed itself." Id. at 826.

In Daniel, the defendant had argued that the evidence was insufficient to establish a continuing relationship because his...