Opinion
No. WD 51262 Consolidated with WD 53227
OPINION FILED: March 10, 1998
APPEAL FROM CIRCUIT COURT OF BUCHANAN COUNTY, MISSOURI, HONORABLE PATRICK K. ROBB, JUDGE.
Philip M. Koppe, Assistant Attorney General, Kansas City, MO, Attorney for Respondent.
Gary E. Brotherton, Assistant Public Defender, Columbia, MO, Attorney for Appellant.
Spinden, P.J., Stith and Smith, JJ., concurring.
John T. Pritchard appeals the judgment of his convictions and sentences in the Circuit Court of Buchanan County, after a jury trial, for one count of sodomy, § 566.060, RSMo 1993; one count of second degree assault, § 565.060; one count of second degree assault of a law enforcement officer, § 565.082; and two counts of armed criminal action, § 571.015.1, for which he was sentenced to consecutive sentences of imprisonment of fifteen, one, five, three, and five years, respectively. He also appeals the denial of his pro se and amended Rule 29.15 motions. His appeals have been consolidated pursuant to Rule 29.15(l).
All statutory references are to RSMo 1994, unless otherwise indicated.
The appellant asserts five points on appeal, the first four dealing with the direct appeal of his convictions and sentences and the last with the denial of his pro se and amended Rule 29.15 motions. In Point I, he asserts that the trial court plainly erred in that it erroneously declared and applied the law in convicting and sentencing him for sodomy, § 566.060.3, RSMo 1993, in that under § 1.160 he was entitled to the benefit of the 1994 amendments to §§ 566.010(1), RSMo 1993, and 566.060, RSMo 1993, effective January 1, 1995, which rendered his charged conduct of hand to genital contact a Class A misdemeanor of child molestation in the second degree, § 566.068. In Point II, he asserts that the trial court erred in overruling his motion for a directed verdict of acquittal at the close of all the evidence as to the charge of second degree assault of a law enforcement officer and the related charge of armed criminal action thereon, in that the evidence was insufficient to convict him of these charges. In Point III, he asserts the trial court erred in sustaining the State's motion to consolidate for trial his sodomy charge with his other charges and in overruling his motion to sever after consolidation. In Point IV, he asserts that the trial court, as to the charge of second degree assault, plainly erred in failing to instruct the jury, sua sponte, on the lesser-included offense of third degree assault. And, in Point V, he asserts the trial court clearly erred in overruling his pro se and amended Rule 29.15 motions for postconviction relief because he received ineffective assistance of counsel.
We affirm, in part, and reverse and remand, in part.
Facts
In late August of 1994, K.G., who was 13 years old at the time, along with her brother, Jason, were spending the last week of their summer vacation with their uncle and aunt, the appellant and his wife. The appellant and his wife resided at 623 So. 18th Street in St. Joseph, Buchanan County, Missouri. In the early morning hours of August 26th, K.G. went to bed. At the time, she was wearing underwear and an oversized T-shirt. When she went to bed, the appellant was still up, watching a movie and drinking.
At around 3:30 a.m., K.G. awoke and discovered the appellant with his hand underneath her underwear, rubbing in circles over her vaginal area. He was not "putting h[i]s fingers up inside of [her] to where it hurt," but was "kind of putting his finger between [he]r private parts." She told him to stop and rolled over on her stomach. He did not. Rather, he pushed K.G.'s panty liner to the side and "kissed her butt." She again told him to stop, which he did and left. She then went downstairs, locked herself in the bathroom, put on her clothes, and left the house, after first trying to wake up her brother, Jason, to go with her. K.G. walked to her sister's house a few blocks away and called her parents for them to come and pick her up, which they eventually did. K.G. told her mother about what the appellant had done. Her mother called the police and reported the suspected sexual assault.
At some point, the appellant and his wife discovered that K.G. was missing and called 911 to report this fact. Michael George, a St. Joseph police officer, was dispatched to the appellant's house to investigate K.G.'s disappearance. While there, he was advised by radio-dispatch that K.G. was safe and that she had possibly been sexually assaulted by the appellant. Officer George continued to interview the appellant and his wife, without advising them of the alleged sexual assault. Instead, he simply told them that K.G. had gone to her sister's and that there was no problem. Officer George noticed that the appellant seemed a little uneasy. Before he completed his report, Officer George was instructed by further radio-dispatch to leave the appellant's residence and take Jason to his parents, which he did.
After the officer left with Jason, the appellant's wife asked him if he had done anything to K.G. to make her leave. The appellant became angry and walked away. His wife followed him to an upstairs bedroom and observed him loading some firearms. He advised her at this time that "I'm not going back to jail or prison for nothing I didn't do." He then picked up an M-1 rifle and said that "they would have to shoot him to get him out of there." The appellant was heavily armed with several firearms and knives. He told his wife that if she was smart, she'd leave.
The appellant's wife called her brother, David Noah, at work about the situation. He left work and proceeded to the appellant's residence to try and reason with him. When he arrived, Mr. Noah went upstairs to the bedroom door and leaned against a television stand. He called out several times for the appellant, but he did not respond. The appellant then fired a shotgun blast through the bedroom door, with one of the shotgun pellets penetrating Mr. Noah's hat and injuring his forehead. Mr. Noah fled the premises and called the police. Several St. Joseph police officers responded, including Officers Scott Vanover and James Hitchcock. These officers positioned themselves behind a tree some 35 to 40 yards from the house. They identified themselves as police officers and attempted to convince the appellant to surrender, to which attempts he told the officers to "back the fuck off or I'll shoot" and that he would kill them if they did not leave.
At approximately 8:35 a.m., after repeated attempts by the police to get him to surrender, the appellant broke out the bedroom window, sticking the barrel of a high-powered rifle out of the opening. He pointed the rifle in the direction of the police officers and told them that he would count to three and then he would shoot. After counting to "two," he muttered something, then counted "three" and, with the rifle pointed toward the officers, fired. The spent bullet was not found, but the officers did find a spot where they believed the round hit, which was on the ground just to the left of the tree behind which they had been crouched.
Procedural Background Direct Appeal
As a result of the incidents on August 26, 1994, the appellant was initially charged by felony information in Case No. CR694-800FX with the class C felony of assault in the second degree of David Noah, in violation of § 565.060, and the class B felony of assault in the second degree of a law enforcement officer, Scott Vanover, in violation of § 565.082. As to both assaults, he was also charged with two counts of the class A felony of armed criminal action in violation of § 571.015. He was subsequently charged by felony information in Case No. CR594-889FX with one count of sodomy of K.G., in violation of § 566.060, RSMo 1993. Pursuant to the motion of the State, the two informations were consolidated for trial. The appellant's subsequent motion to sever was overruled.
On May 17, 1995, the consolidated case went to a jury trial in the Circuit Court of Buchanan County. The appellant was found guilty of all five charged offenses. On June 14, 1995, he was sentenced by the Honorable Patrick K. Robb to consecutive terms of fifteen years for sodomy, one year for second degree assault, five years for second degree assault of a law enforcement officer, and three and five years for armed criminal action.
On June 16, 1995, the appellant filed his notice of appeal.
Rule 29.15 Appeal
On August 2, 1995, the appellant filed a pro se Rule 29.15 motion for postconviction relief. Counsel was appointed and an amended motion was then filed on February 13, 1996. In his amended motion, the appellant alleged, inter alia, that he received ineffective assistance of counsel in that his trial counsel
failed to investigate information provided to him regarding movant's hearing impairment, and failed to ask him about it on direct examination. Movant had advised counsel that he had trouble hearing, and provided the name of persons previously treating him, and records relating to the treatment. Expert testimony, and movant's own testimony, about his hearing problem would have supported his statement at trial that he was not aware he was dealing with the police until he heard a man on the bullhorn.
An evidentiary hearing was held in connection with the appellant's pro se and amended motions. The appellant testified, inter alia, that he had a hearing impairment for which he had been treated in the past. He further testified that he had advised Timothy Ernst, his trial counsel, about his hearing problem and gave him the names of witnesses who had previously treated him. Mr. Ernst testified that he thought that he and the appellant had discussed this issue, but did not remember whether he made a conscious decision not to pursue the matter as part of the appellant's defense.
On July 25, 1996, the motion court entered an order, together with findings of fact and conclusions of law, denying the appellant's pro se and amended motions. With respect to the appellant's claim that Mr. Ernst was ineffective for failing to investigate his alleged hearing impairment, the motion court found as follows:
Movant claims the importance of this is that it would explain his failure to hear the police outside until he heard them on a bullhorn. The court finds this allegation does not form a basis for post-conviction relief. Movant testified at trial for a lengthy period of time with no indication of a hearing problem. Movant responded to questions from both his counsel and the prosecutor without requiring them to repeat questions. In addition, testimony by movant and other witnesses showed that he had numerous conversations with his wife, police, and brother in law on the day of the crimes with no difficulty hearing. The court once again finds that movant has failed to establish the prejudice prong required in order to prevail on a claim of ineffective assistance of counsel . . . . The court cannot find the result would have been any different had trial counsel established movant had a hearing problem or had movant testified he had a hearing problem.
On August 27, 1996, the appellant filed his notice of appeal from the circuit court's judgment denying his pro se and amended Rule 29.15 motions.
Direct Appeal I.
In Point I, appellant asserts that the trial court plainly erred in that it erroneously declared and applied the law in entering its judgment of conviction and sentence for sodomy, § 566.060, RSMo 1993, in that under § 1.160 he was entitled to the benefit of the 1994 amendments to chapter 566, effective January 1, 1995, which rendered his charged conduct of hand to genital contact a class A misdemeanor of child molestation in the second degree, § 566.068, for which he could only be sentenced up to one year in jail and a fine of $1,000. The issue for us to decide is to what relief, if any, the appellant is entitled as a result of the amendments to chapter 566 and the application of § 1.160.
A. Standard of Review
The appellant admits that he failed to preserve the issue he raises in this point in that he failed to object at trial. Thus, he seeks plain error review under Rule 30.20.
"'The plain error rule should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review.' State v. Valentine, 646 S.W.2d 729, 731 (Mo. 1983), citing, State v. Davis, 566 S.W.2d 437, 447 (Mo. banc 1978)." State v. McMillin , 783 S.W.2d 82, 98 (Mo. banc 1990); see State v. Silvey , 894 S.W.2d 662, 670 (Mo. banc 1995) ( citing McMillin , 783 S.W.2d at 98). Unless a claim of error "facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted,'" we will decline to review for plain error. State v. Brown , 902 S.W.2d 278, 284 (Mo. banc 1995), cert. denied , ___ U.S. ___, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). As such, plain error review is discretionary with the appellate court. State v. Wyman , 945 S.W.2d 74, 77 (Mo.App. 1997); State v. Frazier , 927 S.W.2d 378, 379 (Mo.App. 1996).
Plain error relief is appropriate only when the alleged error so substantially affects the rights of the defendant that a manifest injustice or miscarriage of justice results. Rule 29.12(b). The defendant bears the burden of showing that an alleged error has produced such a manifest injustice. State v. Parkus, 753 S.W.2d 881, 888 (Mo. banc), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988). Mere allegations of error and prejudice will not suffice. See State v. Kilgore, 771 S.W.2d 57, 67 (Mo. banc), cert. denied, 493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989).
State v. Isa , 850 S.W.2d 876, 884 (Mo. banc 1993). "The determination whether plain error exists must be based on a consideration of the facts and circumstances of each case." State v. Cline , 808 S.W.2d 822, 824 (Mo. banc 1991) ( citing State v. Sanders , 541 S.W.2d 530, 533 (Mo. banc 1976)).
B. Discussion
As to his conviction for sodomy, the appellant was charged on October 19, 1994, by felony information in Case No. CR594-889FX, as follows:
JOHN "DOC" TROY PRITCHARD, in violation of Section 566.060, RSMo, committed the felony of sodomy, punishable upon conviction under Section 566.060.2, RSMo, by life imprisonment or a term of years not less than five years, in that on or about the 26th day of August, 1994, in the County of Buchanan, State of Missouri, the defendant had deviate sexual intercourse with [K.G.], to whom defendant was not married and was then less than fourteen years old.
At the time of appellant's charged conduct, § 566.060, RSMo 1993, provided as follows:
Sodomy. — 1. A person commits the crime of sodomy if he has deviate sexual intercourse with another person without that person's consent by the use of forcible compulsion.
2. Forcible sodomy or an attempt to commit forcible sodomy as described in subsection 1 of this section or sodomy as described in subsection 3 of this section is a felony for which the authorized term of imprisonment, including both prison and conditional terms, is life imprisonment or a term of years not less than five years, unless in the course thereof the actor inflicts serious physical injury on any person, displays a deadly weapon or dangerous instrument in a threatening manner or subjects the victim to deviate sexual intercourse or sexual intercourse with more than one person, in which cases forcible sodomy or an attempt to commit forcible sodomy is a class A felony.
3. A person commits the crime of sodomy if he has deviate sexual intercourse with another person to whom he is not married who is less than fourteen years old.
§ 566.060, RSMo 1993 (emphasis added). Given appellant's charged conduct of hand to genital contact and given the provisions of § 566.060, RSMo 1993, it is apparent that he was charged under subsection 3 thereof with "statutory" sodomy.
In 1994, the Missouri legislature amended chapter 566. As part of the amendments, § 566.060, RSMo 1993, was amended, deleting subsection 3 thereof dealing with statutory sodomy and enacting §§ 566.062 and 566.064, the first creating the offense of statutory sodomy in the first degree, and the second creating the offense of statutory sodomy in the second degree. Section 566.062 provides that a "person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old." (Emphasis added.) Section 566.064 provides that a "person commits the crime of statutory sodomy in the second degree if being twenty-one years of age or older, he has deviate sexual intercourse with another person who is less than seventeen years of age." (Emphasis added.) At first blush, it would appear that the legislature simply moved statutory sodomy, as provided for in § 566.060.3, RSMo 1993, to § 566.062, reclassifying it as statutory sodomy in the first degree, and creating another degree of statutory sodomy in § 566.064, statutory sodomy in the second degree. As such, the conduct of "deviate sexual intercourse with another person who is less than fourteen years old" would have constituted statutory sodomy under the old § 566.060.3, RSMo 1993, and the new § 566.062, with the same range of punishment. Upon further review, however, we know this was not the case due to an amendment to § 566.010, RSMo 1993, concerning the definition of "deviate sexual intercourse."
As part of the 1994 amendments to chapter 566, the legislature amended § 566.010, RSMo 1993, dealing with chapter 566 and 568 definitions. One amendment was to § 566.010(1), RSMo 1993, defining "deviate sexual intercourse," which both § 566.060.3, RSMo 1993, and § 566.062 reference in establishing the necessary conduct for the former charge of statutory sodomy and the present charge of statutory sodomy in the first degree, respectively. The prior definition of "deviate sexual intercourse" defined it as "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person." § 566.010(1), RSMo 1993 (emphasis added). The amended definition defines it as "any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person." § 566.010(1). Unlike the prior definition, the amended definition of deviate sexual intercourse does not include "hand to genital contact," unless the contact involves digital penetration of the victim's sex organ. As a result, unless hand to genital contact involves digital penetration of the victim's sex organ, such conduct, under the present definition, would not constitute "deviate sexual intercourse," and thus, could not form the basis for a charge of statutory sodomy under §§ 566.062 or 566.064.
After the 1994 amendments to chapter 566, "hand to genital contact," the conduct with which the appellant was charged, rather than being classified as "deviate sexual intercourse," was reclassified as "sexual contact," as defined in § 566.010(3). This section defines "sexual contact" as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, for the purpose of gratifying sexual desire of any person." § 566.010(3). Thus, pursuant to the 1994 amendments, hand to genital contact would constitute "sexual contact," but not "deviate sexual intercourse." And, under present law, "sexual contact" with a person who is twelve or thirteen years of age would be the basis for the charge of "child molestation" in the second degree under § 566.068, but not the basis for statutory sodomy under §§ 566.062 or 566.064. Section 566.068 provides that a "person commits the crime of child molestation in the second degree if he subjects another person who is twelve or thirteen years of age to sexual contact." Under the present statutes, a person who is alleged to have had hand to genital contact, without digital penetration, with a person who was twelve or thirteen years of age, can be charged with child molestation in the second degree under § 566.068, punishable as a class A misdemeanor or class D felony, but cannot be charged with first degree statutory sodomy under § 566.062.
The amendments to chapter 566 took effect on January 1, 1995. The appellant's charged conduct occurred before the effective date, as did the filing of the sodomy charge. However, he went to trial on the sodomy charge on May 17, 1995, which was, obviously, after the effective date of the amendments. As such, the appellant contends that, applying § 1.160 and relying on the Missouri Supreme Court's decision in State v. Whardo , 859 S.W.2d 138 (Mo. banc 1993) and the Eastern District's decision in State v. Paro , 952 S.W.2d 339 (Mo.App. 1997), he is entitled to a new trial with the jury to be instructed only as to the offense of child molestation in the second degree, § 566.068. We agree he is entitled to a new trial, but disagree that, as to the offense, the jury on retrial is to be instructed only as to child molestation in the second degree.
Section 1.160 provides:
No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except (1) that all such proceedings shall be conducted according to existing laws; and (2) that if the penalty or punishment for any offense is reduced or lessened by any alteration. (Emphasis added.)
As to the applicability of § 1.160 here, the State does not contend that it does not apply. Rather, it contends that, given the appellant's conduct, even applying § 1.160 and the amendatory law does not benefit him to the extent that he is entitled to be resentenced or retried as to the sodomy charge and conviction. In this respect, the State argues that, although the issue of digital penetration by appellant was not charged or submitted to the jury as the basis for his sodomy conviction, it heard evidence to that effect, which evidence was sufficient to support a conviction of statutory sodomy under the prior and amendatory law, and as such, he is not entitled to be retried or resentenced. This argument is predicated on the fact that the prior definition of "deviate sexual intercourse" encompassed the appellant's charged conduct of hand to genital contact and that the amended definition encompassed the appellant's uncharged conduct of digital penetration.
We will first address the issue of whether the appellant is entitled to a new trial as a result of the amendments to chapter 566 and the application of § 1.160, and if so, under what law the jury is to be instructed as to the offense.
1. New Trial
The Missouri Supreme Court, in State v. Sumlin , 820 S.W.2d 487, 492 (Mo. banc 1991), interpreted § 1.160 as authorizing a reduction of sentence if the penalty for the offense of conviction is reduced by a statutory amendment subsequent to the commission of the offense, but before the conviction becomes final. In so holding, the court emphasized that § 1.160 did " not change the offense of conviction," but only the range of punishment. Id. at 492 (emphasis added). In Sumlin , the defendant was convicted under § 195.020.1, RSMo 1986, of possession of cocaine and was sentenced under § 195.200, RSMo 1986. After conviction, but while his appeal was still pending, §§ 195.020 and 195.200 were repealed and replaced by §§ 195.202.1, RSMo 1990, and 195.223.2-3, RSMo 1990, creating three levels of criminal liability based on the amount of cocaine possessed. The court held that this was not an outright repeal of § 195.020, RSMo 1986, but simply a reclassification or "'alteration' of Missouri's drug laws that divided the many offenses previously contained in § 195.020, RSMo 1986," and that § 1.160 would apply, requiring the defendant's resentencing under the amendatory law. Id . With this decided, the issue then became whether the defendant was entitled to be resentenced under § 195.202.1, § 195.223.2 or § 195.223.3. In this regard, the court found that the issue of the amount of the cocaine in the defendant's possession, which would determine under which section he would be resentenced, was never submitted to the jury for its consideration. Thus, the court, in reversing and remanding for resentencing, ordered the trial court to submit the issue of the amount of cocaine in the defendant's possession to a jury, and that based on this finding, the trial court was to resentence the defendant under the amendatory law. The court held that the defendant was not entitled to have the jury assess his punishment, because he had been found to be a prior offender, requiring court sentencing.
After its decision in Sumlin , the Missouri Supreme Court revisited the issue of the interplay between the amendments to chapter 195 and the application of § 1.160 in Whardo , supra. In Whardo , the defendant was charged with two counts of violating § 195.020, RSMo 1986. After the crimes occurred and charges had been filed, but before trial commenced, the amendments to chapter 195 became effective. As a result, the Whardo court was again presented with the issue of to what relief a criminal defendant was entitled as a result of the amendments to chapter 195 and applying § 1.160. The Whardo court recognized the procedure that the Sumlin court set out for applying § 1.160 as a result of the amendments to chapter 195 in ordering resentencing, but denying a new trial. However, the Whardo court noted that Sumlin was factually distinguishable because it did not involve the circumstance of the jury being erroneously instructed as to the proper range of punishment in that the defendant as a prior offender was not entitled to jury-assessed punishment. As a result, the Whardo court determined that Sumlin was not controlling in deciding whether the defendant was entitled to a new trial, as opposed to being resentenced only. Instead, the court held that the issue of whether the defendant was entitled to a new trial was controlled by the court's decision in Cline .
In Cline , the defendant was charged with possession of methamphetamine under chapter 195, prior to the effective date of the 1989 amendments thereto. However, before trial, the amendments to chapter 195 became effective, reducing the maximum sentence the defendant could receive. Nonetheless, the jury was instructed as to the range of punishment under the prior law, rather than the amendatory law. On appeal, the Missouri Supreme Court held that the defendant was entitled to a complete new trial because the trial court had plainly erred in instructing the jury as to punishment under the prior law in that § 1.160 required it to be instructed under the amendatory law.
The Cline court, in ordering a complete new trial, did not specifically address why it found prejudice of the defendant being denied the right to have a jury assess his punishment could not be cured by simply ordering the case remanded for resentencing with a jury to assess punishment as was done in Sumlin . It seems logical that, if the prejudice on which a reversal is based is the fact that the defendant, as a result of the jury being misdirected as to punishment, is denied his right to jury assessment of punishment, the cure would be to reverse and remand for resentencing only, with a jury to assess punishment. On the other hand, in rejecting this course of action, the court may have been simply rejecting the notion of impaneling a jury to assess punishment where it had not deliberated and decided guilt; or, it may have been recognizing an argument sometimes made by criminal defendants that, because the instructed range of punishment has some effect on a jury's deliberations on guilt, such that where a jury is misdirected in this respect, the defendant is not only prejudiced as to the jury's assessment of punishment, but also as to its verdict of guilt. Regardless, the only reason given by the Cline court for ordering a new trial was that the "purpose of the rules [29.02(a), 29.03, 29.04, 29.05 and 29.06] [was] to enable the trial court to render a correct judgment where the jury ha[d] been properly instructed as to the range of punishment," and that "[t]his purpose [could] not be accomplished where . . . the jury was not properly instructed." Cline , 808 S.W.2d at 827. In any event, although the court found that the application of § 1.160 required that the jury be instructed as to a different range of punishment, which resulted in an instructional error, it was clear from the court's decision that it was the instructional error, not any requirement of § 1.160, that necessitated a retrial, as opposed to simply remanding for resentencing of the defendant.
In reading Sumlin and Cline together, the Whardo court stated that because
"Whardo was tried after the effective date of the new statute, we conclude that a complete new trial is warranted. Whardo is entitled to a verdict director that not only instructs the jury to determine the amount of marijuana sold but also specifies the corresponding range of punishment. Therefore, on retrial, the court shall instruct the jury under MAI-CR3d 325.04, the verdict director applicable to § 195.211,"
Whardo , 859 S.W.2d at 141, or, in other words, pursuant to the amendatory law. Based on the foregoing, the appellant contends that the court in Whardo laid down a rule that if applying § 1.160 results in the jury having been misdirected as to the range of punishment, then the defendant is entitled to a complete new trial with the jury to be instructed under the amendatory law, not only as to its deliberations on the assessment of punishment, but also as to its deliberations on the offense submitted. From this, the appellant argues that because, in applying § 1.160 he was entitled to the benefit of the amendments to chapter 566, his jury was not instructed on the proper range of punishment under the amendatory law regarding his charged conduct, the trial court plainly erred. Thus, he further argues that he is entitled to a new trial where the jury would not only be instructed under the amendatory law as to punishment, but also would be instructed under the amendatory law as to the offense charged. We disagree.
In Sumlin , Cline and Whardo , the Missouri Supreme Court did not address the application and effect of § 1.160 concerning the 1994 amendments to chapter 566, the issue with which we are now confronted. And, based on our research, it has yet to address this precise issue. However, the Missouri Court of Appeals has. In State v. Helmig , 924 S.W.2d 562 (Mo.App. 1996), the Eastern District of this court, based on the reasoning in Sumlin , held that, applying § 1.160, the defendant there was entitled to the benefit of any punishment reduction under the amendments to chapter 566. In Helmig , the defendant was convicted, inter alia, in a judge-tried case of two counts of statutory sodomy in violation of § 566.060, RSMo 1993. The effective date of the amendments to chapter 566 was after the defendant's convictions, but before his sentencing. In ordering that the defendant be resentenced under the amendatory law, but not retried, the court stated:
The exception within § 1.160 RSMo 1994 manifests the legislature's intent to give the defendant the benefit of any reduced sentence made while his case is pending, regardless of the offense's reclassification under the amendments. If the law creating the offense is changed, the result being a lessening in punishment, the law is clear that under § 1.160(2), RSMo 1994, the defendant should be sentenced in accordance with the law as modified.
Id . at 567 (citations omitted).
In State v. Price , 940 S.W.2d 534 (Mo.App. 1997), the Eastern District, relying on Helmig , supra, ordered the defendant resentenced as a result of the amendments to chapter 566 and applying § 1.160. Price involved a defendant who was jury convicted of multiple violations of § 566.060, RSMo 1993. His convictions were before the effective date of the amendments to § 566.060, but his sentencing was after. Although the court ordered the defendant resentenced as to seven of the eight counts on which he was convicted, it refused to grant him a complete new trial as he requested, relying on Sumlin .
In State v. Gillespie , 944 S.W.2d 268, 271 (Mo.App. 1997), the defendant was judge convicted of three counts of statutory sodomy under § 566.060, RSMo 1993. The offenses were committed before the amendments to chapter 566 became effective. However, he was tried after the effective date, as is the situation in the case at bar. Based on his interpretation of § 1.160, the defendant there argued that because he could not be convicted of statutory sodomy for his charged conduct under the amendatory law, his conviction could not stand. The Eastern District rejected his interpretation of the effect of § 1.160 and his argument that he was entitled to a new trial. In holding that, applying § 1.160 the defendant was only entitled to resentencing under the amendatory law, the court stated that:
[t]he plain language of this provision refutes Defendant's contention. Under § 1.160 RSMo 1994, any crime committed prior to the amendment of a penal law is unaffected by the amendment. Because the crimes at issue were committed prior to the amendment of the sodomy statute, Defendant was properly convicted under the sodomy laws in effect at the time of his crimes. State v. LaMaster, 811 S.W.2d 837, 839-40 (Mo.App. 1991). As discussed infra, however, Defendant is entitled to partial relief under the provisions of § 1.160(2) RSMo 1994.
Gillespie , 944 S.W.2d at 271 (emphasis added). In other words, the fact the trial occurred after the effective date of the amendments to chapter 566 did not affect the defendant's convictions, only the sentences imposed for the same.
Although not cited in his brief, the appellant in his oral argument cited us the case of State v. Paro , supra, wherein the Eastern District again was confronted with the issue now before us. There, the defendant was jury convicted of one count of statutory sodomy in violation of § 566.060, RSMo 1993. Although the crime was committed prior to the effective date of the chapter 566 amendments, the court noted that the information was filed, the trial was conducted, and the defendant was convicted and sentenced after the effective date of the amendments. As such, the court found that "neither the information nor the verdict directing instructions were in accordance with applicable law at the time they were filed and given," and reversed and remanded for a complete new trial citing Cline and Whardo as controlling authority. Although the Paro court distinguished Price on the basis that the information there was filed prior to the effective date of the amendments and Helmig on the basis it was a judge-tried case not involving jury-assessed punishment, it failed to address its holding in Gillespie . We can assume that if Gillespie had been addressed, the distinction given would have been, as was given in the case of Helmig , that Gillespie was a judge-tried case, not a case involving jury-assessed punishment. In addition, although not reflected in the Gillespie opinion, it may have been that the information there, as in Price , was also filed prior to the effective date of the chapter 566 amendments in question. If so, it is reasonable to conclude that the Paro court would have cited this as a further distinction.
In fairness, in interpreting Paro in light of Gillespie , it should be noted that Judge Grimm, who authored Paro for the court, also sat on the division that decided Gillespie .
In spite of the fact that the crime in Paro was committed prior to the effective date of the amendments, the court there appears to have held that in applying § 1.160 the amendatory law would not only be controlling as to punishment, but as to the offense of conviction as well. It is this fact that the appellant seizes upon in arguing that he is entitled to a complete new trial where the jury would not only be instructed on child molestation in the second degree, § 566.068, as to sentencing, but as to the offense as well. In this respect, we agree with the appellant that Cline and Whardo teach us that where a jury is improperly instructed as to the range of punishment due to a statutory amendment changing the range, which amendment is effective after the crime is committed, but while the case is still pending, triggering § 1.160, that such instruction constitutes plain error entitling the defendant to a new trial with the jury to be instructed as to sentencing pursuant to the amendatory law. However, we disagree with the appellant that on retrial the jury should also be instructed as to the offense of conviction pursuant to the amendatory law, in that we do not interpret Cline nor Whardo as requiring this result and refuse to follow the holding in Paro to the extent that it does. We refuse to follow Paro in that we find that it misinterprets the effect of § 1.160 and the Supreme Court's opinions in Cline and Whardo and their application to the 1994 amendments to chapter 566, and is in conflict with its own holding in Gillespie regarding this issue.
As noted, supra, neither Cline nor Whardo held that the application of § 1.160 mandated a new trial, with the jury, in the case of jury-assessed punishment, not only being instructed under the amendatory law as to the range of punishment, but also as to the offense of conviction. In fact, as stated, supra, the Missouri Supreme Court in Sumlin specifically held that § 1.160 only authorized a reduction in sentence, but as to the prosecution of the crime, the prior law controlled. Sumlin , 820 S.W.2d at 493 . Likewise, in Gillespie , the Eastern District held that, although the defendant, applying § 1.160, was entitled to the partial relief of resentencing under the amendatory law, the plain language of the section refuted his claim that because the acts with which he was charged no longer constituted deviate sexual intercourse under the amendatory law, he could not be convicted of statutory sodomy. Gillespie , 944 S.W.2d at 271-72. Unlike punishment, the court stated as to the offense of conviction that "[u]nder § 1.160 RSMo 1994, any crime committed prior to the amendment of a penal law is unaffected by the amendment." Id . at 271. The courts in Sumlin and Gillespie were in agreement that § 1.160, where applicable, by its plain language does not operate to change the offense of conviction, but only the range of punishment. In other words, unlike sentencing, which, applying § 1.160, may be affected by the amendatory law, the offense is controlled by the law in existence at the time the offense is committed, which is true whether judge or jury-tried. Cline and Whardo cannot and should not be read as changing the law in this respect.
In Cline and Whardo , although it was the application of § 1.160 that resulted in the jury being erroneously instructed as to the range of punishment, it was the fact the jury was erroneously instructed as to the proper range of punishment that mandated the new trial, not any requirement of § 1.160. To interpret Cline and Whardo as the appellant suggests would lead to the untenable rule that, where a defendant is ordered retried because the jury was erroneously instructed as to the proper range of punishment, on retrial the jury is to be instructed as to the offense of conviction on the law in existence at the time of retrial, rather than the law in existence when the offense was committed. Logically, such is and should not be the law.
It is apparent that what we perceive as confusion on the part of the appellant as to the holding in Whardo , springs from that portion of the court's holding that, on retrial of the defendant, the jury was to be instructed "under MAI-CR3d 325.04, the verdict director applicable to § 195.211" or, in other words, pursuant to the amendatory law. Unlike the appellant and the Eastern District in Paro , we do not interpret this language to stand for the proposition that in a criminal retrial caused by the jury being misdirected as to the proper range of punishment as a result of the application of § 1.160, the jury is to be instructed under the amendatory law as to the offense and punishment. Our reasoning is basically two-fold. First, and foremost, as stated in Sumlin , the law is well settled that § 1.160 by its express terms does not affect the law as to the offense itself, but only the range of punishment on which the jury is to be instructed for the offense submitted, and that a defendant as to the offense of conviction is properly charged and tried under the law that was in existence at the time the offense was committed. See also Gillespie , 944 S.W.2d at 271. Whardo did not overrule Sumlin in this, or any other respect, in fact, the court in Whardo specifically held that it was following Sumlin , as well as Cline . Second, we interpret the language in Whardo , as to the proper verdict director to instruct the jury upon as to the defendant's retrial, as not setting forth the rule of law argued for by the appellant here and as adopted in Paro . We interpret it as simply reflecting the court's recognition of the fact that, because the amendment to Chapter 195 in question did not require the jury to find any added "conduct" to convict the defendant under the amendatory law, but only required the jury to determine the amount of the drug possessed for purposes of determining his sentence under the amendatory law, that under such circumstances, the court's ordering the defendant to be retried under MAI-CR3d 325.04, the verdict director applicable to the amendatory law, § 195.211, did not violate the rule of law set forth in Sumlin , that a criminal defendant, except as to sentencing, must be charged and tried on the law in existence at the time the offense was committed. The court in ordering the defendant to be retried with the jury being instructed under the amendatory law as to the offense and punishment was simply fashioning a practical solution to the issue of how the jury was to be instructed upon retrial given the amendments to chapter 195 and the specific factual circumstances in Whardo . With this as a given, we now turn to the State's argument as to why the appellant is not entitled to a new trial.
The State contends that the appellant is not entitled to a new trial, applying the prior or amendatory law. It bases its contention on the fact that, although not charged or submitted to the jury, there was evidence of digital penetration by the appellant sufficient to convict him of statutory sodomy under the amendatory law, and that as such, the jury was not misdirected as to the proper range of punishment, triggering a new trial. The State's contention begs the issue. The fact that there may have been some evidence of digital penetration, a fact we do not decide, is not relevant to our inquiry. In Cline and Whardo , in determining whether the defendant was entitled to a new trial, the relevant issue was whether the jury was properly instructed as to the range of punishment based on the acts actually charged and submitted to the jury, and on which they deliberated. The circumstance that the State in the case at bar, after the fact, could have charged and submitted to the jury the act of digital penetration as a basis for appellant's conviction for statutory sodomy is irrelevant and does not change the fact that as to the acts of the appellant that were actually charged and submitted to the jury, and on which it deliberated in determining his guilt, and given the applicability of § 1.160, the jury was misdirected as to the proper range of punishment under the amendatory law, requiring a new trial in accordance with Cline and Whardo .
For the reasons stated, we hold that, in accordance with Cline and Whardo , the trial court plainly erred in convicting the appellant of statutory sodomy under § 566.060, RSMo 1993, and that he is entitled to a new trial as a result of the fact that the jury, given the applicability of § 1.160, was misdirected as to the proper range of punishment under the amendatory law for the acts charged and submitted to the jury, and on which it deliberated in determining the appellant's guilt as to the charge of statutory sodomy. On retrial, the jury is to be instructed as to the offense under the law that was in existence at the time he was alleged to have committed the offense of statutory sodomy, § 566.060, RSMo 1993. The fact that the appellant has already been tried once and convicted under this section is not a controlling circumstance. Although not specifically stating why resentencing with a jury assessing punishment under the amendatory law was not sufficient, the Missouri Supreme Court has made it clear in Cline and Whardo that a retrial is required where the jury has been misdirected as to the proper range of punishment as a result of the application of § 1.160.
Having determined that the appellant is entitled to a new trial as to his conviction for statutory sodomy, § 566.060, RSMo 1993, with the jury to be instructed as to the offense under the law in existence at the time he was alleged to have committed this offense, rather than the amendatory law, we must next determine under what law the jury is to be instructed as to the range of punishment given the application of § 1.160.
2. Range of Punishment on Retrial
The appellant contends that on retrial, based on the application of § 1.160, the amendatory law, and the conduct of the appellant originally charged and submitted — hand to genital contact — the jury, as to the range of punishment, can only be instructed as to child molestation in the second degree, § 566.068. The State, on the other hand, like its argument as to why the appellant is not entitled to a new trial, contends that, because there was evidence of digital penetration by the appellant, which would support a conviction of the offense of statutory sodomy under the amendatory law, § 566.062, the jury should be instructed as to the punishment for that offense, not the lesser offense of child molestation in the second degree, § 566.068. We disagree with the State's contention.
In Sumlin , the court was confronted with the same question that now confronts us — Applying § 1.160 and in light of the conduct and offense charged, what provisions of the amendatory law would control punishment for the offense? In making this determination, the court recognized that the "real issue is what constitutes the relevant 'offense,' the triggering term in § 1.160." Sumlin , 820 S.W.2d at 491. Or, in other words, for purposes of § 1.160, what constitutes the offense for which there is to be a reduction in sentence? In deciding this issue, the Sumlin court was faced with the fact that the amendments to chapter 195 replaced one provision dealing with the offense of possession of cocaine without consideration of the amount possessed, with two new provisions, which created three levels of liability that were based on the amount of cocaine possessed, the lowest of which did not require proof of the amount possessed. The defendant argued that the effect of § 1.160 entitled him to be sentenced only under the provision providing for the lowest level of liability for cocaine possession because it, like the prior provision and unlike the two other new provisions, dealt with possession alone, without consideration of the amount of cocaine possessed. The court rejected this claim holding that, while the defendant was entitled to have the amendatory law applied to his sentence, all the new provisions would apply, not just the most lenient. Sumlin , 820 S.W.2d at 493. In this respect, the court noted that, although there was evidence presented at trial to support sentencing the defendant for the higher level of liability, the issue of the amount of the cocaine possessed was not before the jury or the judge. As such, in ordering the defendant to be resentenced by the trial court as a prior offender, the court directed that the jury make a finding as to the amount of cocaine possessed by him, with the trial court, based on this finding, to then impose a new sentence under the appropriate provision of the amendatory law.
Here, like in Sumlin , although there may have been some evidence which would support the appellant's being sentenced under the amendatory law for the higher level of criminal liability, the jury was not instructed to deliberate on that issue. In this respect, the jury here was not instructed as to digital penetration, and as such, there was no finding by it as to this issue and, without engaging in conjecture or surmise, we have no way of knowing whether the jury believed there was digital penetration of the victim by the appellant. Thus, it would first appear that, as in Sumlin , the proper course of action here would be to allow a jury to decide if digital penetration occurred, permitting the appellant to be sentenced under § 566.062 for statutory sodomy in the first degree, rather than under § 566.068 for child molestation in the second degree. However, this course would ignore the basis for the court's order in Sumlin directing the defendant there to be resentenced by the court under the amendatory law for a felony or misdemeanor, depending on the amount of cocaine the jury determined he had possessed.
In Sumlin , under the amendatory law, the defendant's charged conduct of possession of cocaine, which constituted the triggering offense for purposes of § 1.160, was punishable as a felony or misdemeanor, depending on what the jury found to be the amount of cocaine possessed by him. As a result, the court there, in interpreting the effect of § 1.160, held that the defendant was subject to being resentenced by the trial court on the higher or lower level of criminal liability. In this respect, the case at bar is distinguishable from Sumlin . Here, unlike in Sumlin where the defendant's conduct of possession of cocaine could support a felony or misdemeanor conviction under the amendatory law, depending only on the amount of cocaine possessed, the appellant's charged conduct of hand to genital contact with a person less than fourteen years of age to whom he was not married, which constituted the "triggering offense" for purposes of § 1.160, was punishable under the amendatory law only as a misdemeanor for child molestation in the second degree, § 566.068. Thus, on appellant's retrial, applying § 1.160, the jury could only be instructed as to the range of punishment for the class A misdemeanor of child molestation in the second degree, § 566.068.
We recognize that because the appellant's conviction for statutory sodomy, § 566.060.3, RSMo 1993, must be reversed and remanded for a new trial, and because on his retrial the jury is to be instructed under the prior law as to the offense, but under the amendatory law as to the range of punishment, the appellant could conceivably be convicted of the felony of statutory sodomy under § 566.060, RSMo 1993, yet punished for the class A misdemeanor of child molestation under § 566.068. However, given the interpretation by the Missouri Supreme Court of the effect of § 1.160 when applied to a factual situation such as that presented here, such a result would be permissible under the law. See, Helmig , 924 S.W.2d at 567 (where the defendant was convicted of a class B felony of sodomy, but sentenced for a class A misdemeanor of child molestation as a result of the amendments to chapter 566 and the application of § 1.160).
II.
In his second point, the appellant claims that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence as to the charge of second degree assault of a law enforcement officer and the related charge of armed criminal action in that there was insufficient evidence to find him guilty beyond a reasonable doubt of these crimes. The appellant contends that the evidence was insufficient because the physical evidence, specifically the failure of the police to find a spent bullet where the officers were allegedly fired upon, was contrary to any finding by a reasonable jury beyond a reasonable doubt that he fired a rifle at Officer Vanover as charged. We disagree.
A. Standard of Review
In reviewing the sufficiency of the evidence to support a criminal conviction, we view the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the State and disregard all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). '[R]eview is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.' State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).
State v. Silvey , 894 S.W.2d 662, 673 (Mo. banc 1995).
"When reviewing the sufficiency of the evidence, the appellate court neither weighs the evidence, nor determines the reliability or credibility of witnesses." State v. Idlebird , 896 S.W.2d 656, 661-62 (Mo.App. 1995). "The reliability, credibility and weight of the witnesses' testimony is for the jury to determine." Id . at 661. "It is within the jury's province to believe all, some, or none of the witness' testimony in arriving at their verdict." State v. Dulany , 781 S.W.2d 52, 55 (Mo. banc 1989) (citations omitted).
B. Discussion
In support of the charge against the appellant of assault of a law enforcement officer in the second degree and the related charge of armed criminal action, the State alleged that he "attempted to cause physical injury to Scott Vanover by means of a deadly weapon by shooting at him." To prove the offense of assault of a law enforcement officer in the second degree as charged, the State was required to show that the appellant attempted to cause physical injury to Officer Vanover by means of a deadly weapon or dangerous instrument. § 565.082.1(1). The appellant contends that because there was no physical evidence as to the impact of the bullet fired by him, the jury could not reasonably infer from the State's evidence that he was shooting at Officer Vanover in an attempt to cause physical injury to him. The appellant's argument is without merit.
There is no need to rehash the evidence in any detail. The State's evidence was that the appellant barricaded himself in the bedroom of his home and armed himself with firearms and knives after he had sodomized his niece and became suspicious that the police would soon be coming to arrest him. While arming himself, the appellant told his wife that he was not going back to jail or prison for something he didn't do and that "they would have to shoot him to get him out of there." He later shot through the barricaded door of his bedroom, wounding his brother-in-law, David Noah, who was trying to talk to him.
After the police officers arrived, they had several contacts with the appellant trying to convince him to surrender, with the appellant responding that he would kill them if they did not leave. The appellant eventually broke the glass of the bedroom window and stuck the barrel of his rifle out of the opening, advising the police that he would count to three and then start shooting. At this time, the rifle was pointed in the direction of Officers Vanover and Hitchcock. At some point, the appellant told the officers he was tired of talking and began counting. After counting to two, he muttered something, then counted three and fired. When he did so, the barrel of the rifle was pointed directly at where the officers were located. Although the police never found the spent round fired by the appellant, there was testimony that there was a spot on the ground just to the left of the tree behind which they were crouching that appeared to be the point of impact.
From the foregoing evidence, if believed, a reasonable jury could have concluded, without engaging in speculation, that the appellant was guilty beyond a reasonable doubt of assaulting a law enforcement officer, in that he attempted to cause physical injury to Officer Vanover by firing a rifle at him. Although the failure of the police to find the spent bullet might be some evidence supporting the appellant's contention that he did not fire at the officers, such failure does not preclude a contrary finding by the jury. Thus, we find that the evidence was sufficient to support the appellant's conviction for second degree assault on a law enforcement officer, § 565.082, and the related conviction for armed criminal action, § 571.015.1, and that the trial court did not err in overruling his motion for acquittal at the close of all the evidence.
Point denied.
III.
In his Point III, the appellant claims that the trial court erred in sustaining the State's motion to consolidate for trial the charge of sodomy and the charges of assault and armed criminal action and in overruling his motion to sever them for trial. He contends that the trial court abused its discretion in consolidating for trial the sodomy offense with the other offenses because they were not part of the same transaction or of a common scheme or plan. He further contends that the trial court abused its discretion in not ordering the offenses severed for trial because the evidence as to the sodomy charge was not relevant to the assault charges and would not have been admissible in a separate trial for the same; thus, any judicial economy of a joint trial was outweighed by the risk of prejudice to him.
We must first address whether the trial court properly consolidated the offenses against the appellant for trial. State v. Howton , 890 S.W.2d 740, 744 (Mo.App. 1995). If it did, then we will address whether it abused its discretion in failing to sever them for trial. Id .
A. State's Motion to Consolidate 1. Standard of Review
"The propriety of joinder is determined as a matter of law and, thus, the trial court's decision in this regard is not entitled to deference." State v. Jones , 863 S.W.2d 353, 356-57 (Mo.App. 1993) ( citing, State v. Eiland , 809 S.W.2d 169, 171 (Mo.App. 1991)). In determining whether joinder is proper, the appellate court considers only the State's evidence. State v. Olds , 831 S.W.2d 713, 718 (Mo.App. 1992), overruled by State v. Carson , 941 S.W.2d 518 (Mo. banc 1997).
2. Discussion
The appellant was initially charged by felony information in Case No. CR694-800FX with the class C felony of assault in the second degree of David Noah, in violation of § 565.060, and the class B felony of assault in the second degree of a law enforcement officer, Scott Vanover, in violation of § 565.082.1. As to both assaults, he was also charged with the class A felony of armed criminal action in violation of § 571.015. He was subsequently charged by felony information in Case No. CR594-889FX with one count of sodomy of K.G., in violation of § 566.060, RSMo 1993. Thus, in the case at bar, there was not only a joinder of multiple offenses in one information, but a joinder of offenses by consolidating several informations. It is the consolidation of the informations of which the appellant complains.
"'[A] trial court may, in its discretion and despite the objection of the defendant, consolidate for trial several indictments or informations against the same accused.'" Howton , 890 S.W.2d at 744, ( citing, State v. Anderson , 785 S.W.2d 299, 304 (Mo.App. 1990)). To determine whether such joinder is permissible, the court should engage in the same inquiry as it would in a challenge to the joinder of several counts into a single information. Id . ( citing Anderson , 785 S.W.2d at 305 ).
"'A defendant in a criminal case does not have a federal or state constitutional right to be tried on only one offense at a time.'" Id . at 744 ( quoting, State v. Clark , 729 S.W.2d 579, 581 (Mo.App. 1987)); State v. Kelley , 901 S.W.2d 193, 202 (Mo.App. 1995). The joinder of multiple offenses is provided for in § 545.140.2, which provides as follows:
Notwithstanding Missouri supreme court rule 24.07, two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or infractions, or any combination thereof, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Joinder is also provided for in Rule 23.05, which states:
All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.
"Liberal joinder of criminal charges is favored in order to achieve judicial economy." Olds , 831 S.W.2d at 718 ( citing, State v. White , 755 S.W.2d 363, 367 (Mo.App. 1988)).
Under § 545.140.2 and Rule 23.05, charges are properly joined if the acts in question were part of the same transaction or connected transactions, or a "common scheme or plan." "The essential test in determining whether a common scheme or plan exists, in a case involving a single defendant acting alone, is the requirement that the offenses charged must be the product of a single or continuing motive." State v. Terry , 928 S.W.2d 879, 885 (Mo.App. 1996) ( citing, State v. McCrary , 621 S.W.2d 266, 271 (Mo. banc 1981)). For joinder to be proper under the same transaction or connected transactions, or common scheme or plan language of § 545.140.2 and Rule 23.05, there is no requirement that the defendant, at the time he committed the initial criminal offense, intended to commit the subsequent criminal offenses which were joined with the initial offense for trial. Terry , 928 S.W.2d at 886-87. This is so because "'[w]hen someone begins a course of criminal conduct against a single victim or group of victims, the consequences of the criminal act may alter the course of subsequent criminal acts.'" Id . at 885 ( citing, State v. Jolliff , 867 S.W.2d 256, 259 (Mo.App. 1993)).
The record here reveals that the appellant's sexual assault on K.G. and the subsequent assaults on Mr. Noah and Officer Vanover were all part of a common scheme or plan by the appellant to sodomize his niece and to escape detection, apprehension and punishment for this criminal act. Further, the appellant's criminal acts certainly constituted transactions that were connected. It was clearly the appellant's sexual assault of his niece that directly triggered the subsequent events and his criminal acts. Thus, under the connected transactions, or common scheme or plan language of § 545.140.2 and Rule 23.05, the sodomy on K.G. and the assaults on Mr. Noah and Officer Vanover and the related armed criminal action charges were properly joined for trial, and the trial court did not err in sustaining the State's motion to consolidate them for trial.
Having decided that the joinder here was proper, we now turn to the issue of whether the trial court abused its discretion in overruling the appellant's motion to sever for trial the sodomy charge in Case No. CR594-889FX from the assault and armed criminal action charges in Case No. CR694-800FX.
B. Appellant's Motion to Sever 1. Standard of Review
Our review of a trial court's denial of a motion in a criminal case to sever for trial properly joined offenses is for an abuse of discretion and resulting clear prejudice. State v. McNaughton , 924 S.W.2d 517 (Mo.App. 1996). "An abuse of discretion is 'a judicial act which is untenable and clearly against reasons and which works an injustice.'" State v. Williams , 643 S.W.2d 3, 4 (Mo.App. 1982) ( quoting, State v. Stubenrouch , 499 S.W.2d 824 (Mo.App. 1973)).
B. Discussion
Section 545.885 governs the trial of joined offenses, providing, in pertinent part, as follows:
1. Notwithstanding Missouri supreme court rule 24.07, whenever two or more offenses are jointly charged in an indictment or information, the court shall order both or all offenses to be tried together.
2. If it appears that a defendant or the state is substantially prejudiced by a joinder of the offenses for trial, upon a written motion of the defendant or the state and upon a particularized showing of substantial prejudice, the court may grant a severance of offenses or provide whatever relief justice requires. For purposes of this section, "substantial prejudice" shall mean a bias or discrimination against the defendant or the state which is actually existing or real and not one which is merely imaginary, illusionary or nominal.
(Emphasis supplied.) Rule 24.07 further provides:
When a defendant is charged with more than one offense in the same indictment or information, the offenses shall be tried jointly unless the court orders an offense to be tried separately. An offense shall be ordered to be tried separately only if:
(a) A party files a written motion requesting a separate trial of the offense;
(b) A party makes a particularized showing of substantial prejudice if the offense is not tried separately; and
(c) The court finds the existence of a bias or discrimination against the party that requires a separate trial of the offense.
"In determining whether to grant a motion to sever, the trial court weighs the benefits of trying the offenses simultaneously and thereby saving judicial time, against the potential prejudice to the defendant." Olds , 831 S.W.2d at 719; see also Kelley , 901 S.W.2d at 202. In assessing "substantial prejudice" in the context of § 545.885 and Rule 24.07, the trial court should consider, along with other relevant factors, the number of charges, the complexity of the evidence, and whether the jury could distinguish the evidence pertaining to each charge and apply the law appropriately to each offense. State v. Hopkins , 947 S.W.2d 826, 832 (Mo.App. 1997); Kelley , 901 S.W.2d at 202-03.
In support of his claim that substantial prejudice resulted from the trial court's denial of his motion to sever, the appellant argues that, given society's abhorrence for sex crimes against children, the mere fact he was charged with sodomizing a child, the jury was more likely to convict him of the assault and armed criminal action charges; or, in other words, that the evidence of the sodomy was tantamount to inadmissible propensity evidence as to the assault and armed criminal action charges. It is true that a relevant factor in assessing substantial prejudice, for purposes of severing properly joined offenses, "is whether evidence of separate crimes would have been inadmissible propensity evidence had the two crimes not been joined. [ State v.] Conley, 873 S.W.2d [233,] 238 [(Mo. banc 1994)]." Kelley , 901 S.W.2d at 203.
However, severance is not mandated merely because evidence relating to one count would not be admissible in the trial of a second count if the two were tried separately provided the evidence with regard to each crime is sufficiently simple and distinct to mitigate the risks of joinder. Id. (citing United States v. Halper, 590 F.2d 422, 431 (2nd Cir. 1978)).
Id .
Our review of the record reveals that, although numerous offenses were charged and witnesses testified, the testimony at trial was uncomplicated. The offenses charged involved three different victims, with evidence regarding each offense being distinct and clear. Further, the jury received a separate instruction setting out the necessary elements of each offense charged and was instructed to consider each offense independently from the others. There is nothing in the record to indicate that the jury was unable to differentiate between the evidence or to properly apply the law to each offense. And, there is nothing in the record to support a finding that any prejudice to the appellant of trying the offenses together outweighed the judicial economy benefit of the same. Thus, we find that the trial court did not abuse its discretion in overruling the appellant's motion to sever.
Point denied.
IV.
In his fourth point, the appellant claims that the trial court plainly erred in that as to the alleged second degree assault, § 565.060, of Mr. Noah, it failed to instruct, sua sponte, the jury on the lesser-included offense of third degree assault, § 565.070. In support of this claim, the appellant correctly points out that assault in the third degree is a lesser-included offense of second degree assault. Given this, he contends that there was sufficient evidence adduced from which the jury could reasonably infer that he accidently shot Mr. Noah, which would support the giving of an instruction concerning the lesser-included offense. The appellant further contends that the trial court's failure to instruct, sua sponte, the jury on third degree assault was plain error in that it resulted in manifest injustice or a miscarriage of justice. We disagree.
A. Standard of Review
The appellant did not specifically request the giving of the lesser-included offense instruction of assault in the third degree; as such, he can only seek plain error review under Rule 30.20 on his claim in Point IV. State v. Fowler , 938 S.W.2d 894, 898 (Mo. banc 1997). The standard for plain error review under Rule 30.20 is set out in Point I, supra.
B. Discussion
For instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury as to cause manifest injustice or miscarriage of justice. State v. Cline, 808 S.W.2d 822, 824 (Mo. banc 1991). Defendant bears the burden of establishing manifest injustice. Id. Part of the rationale for the rule that requires a defendant to request a lesser included instruction before the defendant can complain that the instruction was not given is related to trial strategy. It is often a matter of strategy as to whether or not to request a lesser included offense instruction. A tactical decision not to request the lesser included offense instruction is based upon the belief that the jury may convict of the lesser offense if it is submitted, but the jury may not convict the defendant of any crime if the lesser offense is not submitted. [ State v.] Olson, 636 S.W.2d [318,] 322 [(Mo. banc 1982)].
Fowler , 938 S.W.2d at 898. "'A defendant may not complain of prejudice when the court has conducted the trial in harmony with his apparent strategy and intent' in not seeking an instruction on a lesser included offense. State v. Buskuehl, 626 S.W.2d 651, 653 n. 2 (Mo.App. 1981)." State v. Kobel , 927 S.W.2d 455, 460 (Mo.App. 1996).
Throughout the appellant's brief, he points out what he perceives to be fatal weaknesses in the State's case as to the second degree assault charge concerning Mr. Noah. Given this fact, it is reasonable to infer that appellant's trial counsel believed at trial that there was a reasonable likelihood that the jury would find the appellant not guilty of second degree assault of Mr. Noah. In light of this, a reasonable trial strategy for the appellant's trial counsel would have been for him not to request the submission of the lesser-included offense of assault in the third degree, the upshot being that he might escape without suffering any convictions for the alleged assault of Mr. Noah. For this reason, we decline to review for plain error under appellant's Point IV.
Point denied.
Rule 29.15 Appeal V.
In his final point, the appellant contends that the motion court erred in overruling his pro se and amended Rule 29.15 motions after an evidentiary hearing because he received ineffective assistance of counsel in that he was prejudiced by his counsel's failure to properly investigate and present evidence concerning the appellant's alleged hearing impairment. We disagree.
A. Standard of Review
Appellate review of the motion court's denial of a postconviction relief motion is not a de novo review; rather, the findings of fact and conclusions of law of the motion court are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). Review of a motion court's actions is limited to a determination of whether the [motion] court's findings and conclusions are clearly erroneous. Rule 29.15; State v. Driver, 912 S.W.2d 52, 54 (Mo. banc 1995). Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Wilson, 813 S.W.2d at 835.
State v. Colbert , 949 S.W.2d 932, 939 (Mo.App. 1997).
B. Discussion
To prove ineffective assistance of counsel, the movant must show that: (1) trial counsel did not demonstrate the customary skill and diligence that a reasonably competent attorney would display rendering similar services under the existing circumstances; and [ ] (2) he or she was prejudiced by such conduct or lack thereof. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To demonstrate prejudice, the movant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994).
Id . at 940. To succeed on a motion for postconviction relief, the movant must prove the allegations of his or her motion by a preponderance of the evidence and overcome the presumption that trial counsel is competent. Id .
To be entitled to postconviction relief on a claim of ineffective assistance of counsel for trial counsel's alleged failure to adequately investigate and prepare for trial, the movant must allege and show: (1) the specific information trial counsel did not discover before trial; (2) that the information would have been discovered by reasonable investigation; and (3) that the undiscovered information would have provided the movant with a viable defense. Colbert , 949 S.W.2d at 943; State v. Roberts , 873 S.W.2d 638, 643 (Mo.App. 1994).
In his motion, the appellant alleged that he suffered from a hearing impairment, and that as a result, he was unaware that at the time he fired the rifle out his bedroom window he was firing at police officers, as opposed to unidentified "intruders." He is apparently asserting that had the jury known of this fact that it would have provided him with a viable defense in that it would tend to show that he was operating under a mistaken belief that he had a lawful right to fire his rifle out the bedroom window. Even assuming, arguendo, that evidence of a hearing impairment would provide a viable defense, the movant had the burden of proving that he was, in fact, hearing impaired to the extent he alleged in his motion, otherwise the defense must fail. He failed to do this to the satisfaction of the motion court.
The motion court found that the appellant never once demonstrated an inability to hear throughout the numerous court proceedings when he was being questioned. The court also noted that on the day of the offenses the appellant had "numerous conversations with his wife, police, and brother-in-law" without any apparent difficulty in hearing. Moreover, as the State points out in its brief, that, although the appellant in his motion alleged that he had provided trial counsel with names of expert witnesses who had treated him for hearing problems and with records of such treatment, he did not produce these witnesses or records at his motion hearing to demonstrate that this evidence would have been available at trial. Given this circumstance, the movant is essentially asking us to find that the motion court's findings were clearly erroneous simply because it chose not to believe his testimony that he was, in fact, hearing impaired. We refuse to do so. Matters of credibility are for the motion court, not for us. State v. Robinson , 864 S.W.2d 347, 349 (Mo.App. 1993).
Point denied.
Conclusion
As to the circuit court's judgment of the appellant's convictions and sentences for assault in the second degree, § 565.060; assault of a law enforcement officer in the second degree, § 565.082; and two counts of armed criminal action, § 571.015.1, and the judgment denying his pro se and amended Rule 29.15 motions, we affirm. As to its judgment of appellant's conviction and sentence for sodomy, § 566.060, RSMo 1993, we reverse and remand the cause for a new trial to be conducted in accordance with this opinion.
All concur.