Goodwater v. State

560 S.W.3d 44

Paul R. GOODWATER, Appellant,

v.STATE of Missouri, Respondent.

WD 80756

Missouri Court of Appeals, Western District.

OPINION FILED: September 18, 2018

Damien De Loyola, Kansas City, MO, for appellant.

Daniel N. McPherson, Jefferson City, MO, for respondent.

Before Division One: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Paul Goodwater ("Goodwater") appeals from the judgment of the Circuit Court of Johnson County, Missouri, denying his amended Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Goodwater argues that the motion court erred in denying his amended Rule 29.15 motion because it violated his right to effective assistance of counsel since trial counsel did not object to statements made by the trial court during sentencing, did not object to statements made by the State during closing arguments, and did not object to the number of charges against him. Goodwater further argues that the motion court erred in denying his amended Rule 29.15 motion because it violated his right to effective assistance of counsel since appellate counsel did not raise on direct appeal the statements by the trial court during sentencing, the statement made by the State during closing arguments, and a claim of double jeopardy. We affirm.

Statement of Facts¹

On February 16, 2010, Detective Steve Ryun ("Detective Ryun") conducted an investigation using software to identify IP addresses that were associated with files that appeared to contain child pornography which were being shared over the internet. Detective Ryun found an IP address that had been observed with twenty-six notable files which had been available for sharing since January 14, 2010. Detective Ryun searched a database and determined that the person holding the relevant IP address was a subscriber with Charter Communications. An investigative subpoena served on Charter Communications revealed that the subscriber holding the IP address was Goodwater.

Based on that information, a search warrant was obtained for Goodwater's home. Officers seized several computers, approximately 1,500 CDs and DVDs as well as multiple computer hard drives. At least four of the disks contained child pornography. Other disks contained copies of those child pornography files.

A forensic examiner from the Heart of America Regional Computer Forensics Laboratory in Kansas City, examined the three computers and the loose hard drives seized from Goodwater's home. Twelve movies containing child pornography were found in a "LimeWireOld" folder on a Dell Dimension computer.² Another of Goodwater's computers contained a "LimeWire/Shared" folder. Sixty-six images of child pornography or erotica were found in that folder. The files containing the movies and images were downloaded to Goodwater's LimeWire program in a mass download on January 14 and 15, 2010, which took almost twenty-four hours to complete, based on time stamps that showed the duration of the download. Individual files downloaded within the mass download had specific time stamps indicating when the individual download for each image was completed.

The "LimeWireOld" folder was created by the user of the Dell computer on March 15, 2010, the day before the police searched Goodwater's home. The "LimeWireOld" folder contained approximately 620 files, 522 of which were graphic or multi-media related. All of those files were placed into the "LimeWireOld" folder from the "LimeWire/Shared" folder. A majority of the files contained some type of word indicative of child pornography. Approximately six different files within the folder had been viewed since the time the folder was created. Another computer had LimeWire configuration files and an internet history with names consistent with pornographic content. Other pictures of interest were found on the loose hard drives. Those pictures were noteworthy because they were "age difficult" and therefore were not classified as child pornography by the investigating officers.

During the execution of the search warrant, Detective Ryun spoke with Goodwater. The beginning of the conversation was recorded but when Detective Ryun asked Goodwater if he had an explanation for the child pornography associated with his IP address, Goodwater asked to talk to him with the recorder turned off. Detective Ryun turned off the recorder and continued to talk to Goodwater. After the recording was turned off, Goodwater told Detective Ryun that he knew that there was child pornography on his computer. Goodwater also said that he did not use the pornography for sexual pleasure. Goodwater said that most of the files were downloaded accidentally and he just did not delete them. Goodwater told Detective Ryun that most of the files could be found in a file that he created that was labeled "illegal."

Trial And Sentencing

On August 13 2010, Goodwater was indicted by a grand jury with nineteen counts of the class B felony of possession of a child pornography video and one count of the class C felony of possession of a single photograph of child pornography pursuant to section 573.037.³ A jury trial was held from May 2 through May 4, 2012. During trial, Goodwater acknowledged that the DVDs and hard drives that contained the child pornography were his. Goodwater further testified that he did not know there was child pornography on the DVDs and computers in his house and never told Officer Ryun that he did. Goodwater testified that he is a multimedia hoarder, regularly did bulk downloads, and did not feel he could delete or throw away what he had downloaded.

During rebuttal closing argument the State argued:

He has had twenty-six months to figure out a way to get back whatever he said. He has had twenty six months to change what the Detective told you he said to him when he turned that recorder off ... Really? He had two years to try to come up with something that he thought maybe you folks would buy.

Trial counsel did not object to this statement or any other statement during the State's closing argument.

The jury convicted Goodwater of all counts. Goodwater waived jury sentencing and was sentenced by the trial court.

At the sentencing hearing, Goodwater's counsel attempted to mitigate his bad acts by stating that "granted, these are not images that anyone should see or images that anyone should have produced, but Goodwater did not produce these images." In response to this argument, the trial court stated that "the problem this Court has is that when one possesses child pornography, one promotes child pornography. When you possess it, you promote it. In other words, if there was no market, there would be no production." There was no objection to these statements.

The sentencing assessment report ("SAR") provided a mitigating sentence of "community structured sentence," a typical sentence of "5 years prison" and an aggravated sentence of "8 years to 15 years prison." The State recommended a total sentence of thirty-seven years in the Department of Corrections. Prior to sentencing, Goodwater's trial counsel stated:

I'm not certain why the State has that recommendation today. I am not certain why the State wants to punish him more than what they did before the plea or before the trial. I think everyone is entitled to their day in court. In fact, if someone takes their day in court that should not somehow enhance their punishment.

The trial court responded by stating:

Okay. Well, as the State pointed out, these young victims are violated every time these images are viewed or displayed. The jury had to view numerous images and films so upsetting and so vulgar, the only way this Court could attempt to describe those images is to say it was like viewing hell on Earth. I mean, the English language doesn't obviously doesn't contain the words this Court needs to express its absolute and total disgust and outrage when viewing the material, and for those reasons, the Court can't follow the SAR.

There was no objection by Goodwater's trial counsel to this statement. The sentencing court sentenced Goodwater to a total of twenty-five years' incarceration.

Goodwater timely appealed his conviction to this Court. His appellate counsel raised one claim, alleging that the trial court abused its discretion in excluding eleven witnesses whose computers Goodwater had repaired. This Court affirmed the trial court's judgment in a per curiam opinion, State v. Goodwater , 414 S.W.3d 675, 676 (Mo. App. W.D. 2013).

Evidentiary Hearing on the Rule 29.15 Motion

Goodwater timely filed his Rule 29.15 motion. He raised nine claims, three of which were raised against both appellate and trial counsel.

As relevant to this appeal, in his motion claims 8/9(a) and 8/9(b), Goodwater alleged appellate and trial counsel respectively failed to raise on appeal and object to the trial court's sentencing Goodwater more harshly because he had exercised his right to a jury trial. In claims 8/9(c) and 8/9(d), Goodwater alleged appellate and trial counsel respectively failed to raise on appeal and object to the trial court's sentencing Goodwater more harshly because the trial court in this case always considers the crime of possessing child pornography to include the production of child pornography. In claim 8/9(e), Goodwater alleged trial counsel failed to object to the State's closing argument that Goodwater "had two years to try to come up with something." In claims 8/9(f) and 8/9(g), Goodwater alleged appellate and trial counsel respectively failed to raise on appeal and object to Goodwater's twenty child pornography convictions on double jeopardy and unit of prosecution grounds.

An evidentiary hearing on the motion was held on January 19, 2017. During the hearing, Goodwater's trial counsel testified that he could not recall why he did or did not do anything concerning the trial court's comments during sentencing. Trial counsel testified that after being read the comments at the hearing, he believed the ...