Opinion
No. 107,274.
2012-07-27
Henry Ollie BARNES, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge. Kathleen Neff, of DeVoe & Neff, Lawyers, of Overbrook, for appellant. Heather R. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge.
Kathleen Neff, of DeVoe & Neff, Lawyers, of Overbrook, for appellant. Heather R. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Henry Ollie Barnes, Jr., filed a pro se K.S.A. 60–1507 motion arguing ineffective assistance of counsel, prosecutorial misconduct, and judicial error. The district court denied the motion. Barnes timely appeals. We affirm.
Following a jury trial, the district court sentenced Barnes on April 17, 2006, to 233 months' imprisonment for aggravated indecent liberties with a child. On direct appeal, Barnes raised several issues, including that the district court erred in allowing into evidence his previous arrests for sexual abuse. A panel of this court affirmed his conviction and held that not only was the evidence against Barnes overwhelming, he had also waived his right to appeal the issue because he failed to lodge a contemporaneous objection at trial. State v. Barnes, No. 100,078, 2009 WL 744293 (Kan.App.2009) (unpublished opinion), rev. denied 239 Kan. 1280 (2010).
On January 3, 2011, Barnes filed a K.S.A 60–1507 motion, arguing ineffective assistance of trial counsel, prosecutorial misconduct, and judicial error. The district court appointed counsel and held a hearing on the motion. Both the attorney for the State and Barnes' trial attorney testified at the hearing.
Burton Bowers, Barnes' trial attorney, testified that he met with Barnes 8 to 12 times prior to trial. After discussions with Barnes about trial strategy, Bowers filed a pretrial motion in limine in an attempt to exclude Barnes' prior criminal history of arrests and convictions and “[u]nsubstantiated allegations of child abuse by the alleged victim against the defendant on or about December 28, 2004.” The motion was granted regarding the prior convictions but denied as to the December 2004 allegations.
During trial, evidence was admitted that Barnes was allegedly involved in two incidents with L.S., his stepdaughter. The incident for which he was convicted occurred in June 2005. The prior incident occurred in December 2004, and although SRS filed a report, no charges were filed. When Officer Timothy Cronin was questioned about the December incident, Barnes' attorney did not object. During the 60–1507 hearing, Bowers explained that he did not object to the State's questioning regarding the December 2004 allegations because the court had already ruled on it, so he “felt that was proper questioning.”
The district court denied Barnes' 60–1507 motion. In its colloquy, the district court pointed out that the biggest problem was the fact that Barnes had testified and confessed to being aroused while “tickling” L.S. in December 2004. Barnes timely appeals.
On appeal, Barnes only makes one argument: his trial counsel was ineffective for failing to object to evidence about the December 28, 2004, incident. Barnes claims that his trial counsel denied him the right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 685–86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To support a claim of ineffective assistance of counsel, a defendant must prove that (1) counsel's performance was deficient and (2) that deficient performance was sufficiently serious to prejudice the defendant and deprive him or her of a fair trial. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of the totality of the evidence before the judge or jury. The reviewing court must presume that counsel's conduct fell within the broad range of reasonable professional assistance. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Barnes bears the burden of demonstrating that trial counsel's alleged deficiencies were not the result of strategy. See Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 (2003).
On appeal, Barnes claims that “counsel understood very well that evidence of a December 28, 2004 incident between Mr. Barnes and the child ... would be extremely damaging to the defense.” Barnes' entire argument is as follows:
“[T]he prejudice caused to the defense by the references to the previous incident was so extreme as to throw into doubt his conviction. No jury could have ignored the impact of both incidents, and defense counsel clearly knew the prior incident was worse, legally, than the one charged. It is reasonable to assume that Mr. Barnes would not have been convicted had the jury not heard [the] details of the earlier incident.”
Barnes' meager argument has not illustrated that his trial counsel was ineffective. Barnes' singular assertion that his attorney's failure to make a specific objection does not demonstrate deficient performance. The issue had previously been ruled on in the motion in limine, and the evidence was allowed. Barnes has presented no evidence to show that without the evidence, the result of the trial would have been different. Here, several witnesses testified regarding the December incident, including L.S. Barnes even testified at trial that while he was “tickling” L.S. in December 2004, he got an erection.
Barnes has failed to show that counsel's performance fell below any reasonable professional standard. The district court did not err in denying Barnes' 60–1507 motion.
Affirmed.