CHRISTA E. MUELLER, ) ) Appellant, ) ) No. SD37128 vs. ) ) Filed: July 5, 2022 STATE OF MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
Honorable William E. Hickle, Judge
AFFIRMED
Christa Mueller appeals the denial of her Rule 29.151 motion for postconviction
relief. We affirm because the motion court did not clearly err in finding trial counsel’s
election not to request a cautionary jury instruction was strategic and objectively
unreasonable.
Background
A jury found Mueller guilty of first-degree assault on her young daughter, who
suffered horrific abuse resulting in severe, life-altering injuries. For a summary of the
1 Rule references are to Supreme Court Rules (2019). shocking evidence that supported the conviction, which we affirmed on appeal, see State
v. Mueller, 568 S.W.3d 62 (Mo.App. 2019). Mueller timely moved for relief under Rule
29.15,2 asserting, among other things, that her trial counsel was ineffective for not
requesting an instruction patterned on MAI-CR 4th 410.083 (the “Mere Presence
Instruction”).4 The Mere Presence Instruction reads,
The presence of a person at or near the scene of an offense at the time it was [] committed [] is alone not sufficient to make him responsible for the offense, although his presence may be considered together with all of the evidence in determining his guilt or innocence.
At the motion hearing, trial counsel testified the defense theory was that Mueller
was not present when her boyfriend harmed the child and began researching ways to
conceal his crime. Trial counsel pursued an alibi defense by filing a notice and an
amended notice of alibi, by mentioning in her opening statement that the jury would hear
alibi evidence, by cross-examining the state’s witnesses as appropriate, by calling an alibi
witness, and by highlighting Mueller’s non-presence at the scene in closing argument.
Counsel testified that the Mere Presence Instruction probably would have been given had
she requested it, but she made a strategic decision not to request it because Mueller had
indicated she was not present when her daughter was injured and the defense had
presented alibi evidence. Counsel summarized her thoughts about the jury instructions
in general and the Mere Presence Instruction specifically: “I proffered the instructions
2 We have reviewed the record to confirm that both the pro se and amended motions were filed within the
time prescribed by Rule 29.15. 3 MAI-CR 4th refers to Missouri Approved Instructions – Criminal, Fourth Edition. MAI-CR 3d refers to
Missouri Approved Instructions – Criminal, Third Edition. 4 In her amended motion and in briefing to this court, Mueller references MAI-CR 3d. MAI-CR 4th was
applicable in all trials occurring on or after January 1, 2017. MAI-CR 4th “How to Use This Book – Effective Dates”. This would include Mueller’s September 2017 trial. Because MAI-CR 4th 410.08 “is a revision of MAI-CR 3d 310.08,” revising “the Notes on Use only,” MAI-CR 4th 410.08 Note on Use 1, the outcome of this appeal would be identical under either edition of the instructions. For this reason, we have considered and cited to cases without distinguishing whether the third or fourth edition of the MAI-CR was in effect.
2 that I believed would advance our case,” and, “I believed [the Mere Presence Instruction]
was inconsistent with our theory of defense and would undermine our theory of defense.”
The same judge presided over both the motion hearing and Mueller’s criminal trial.
Regarding the claim on appeal, the motion court found that a Mere Presence Instruction
would have been relevant only if Mueller had been present at the scene of the assault at
the time it was committed. Mueller’s theory of defense was alibi, and to that end trial
counsel presented evidence and argument. The decision not to request a Mere Presence
Instruction was strategic because such an instruction may have detracted from the focus
on the alibi defense. The motion court found trial counsel’s strategy was unsuccessful but
not unreasonable: “While, in hindsight, the trial strategy did not convince the jury, that
does not make it unreasonable.” Mueller’s request for relief was denied.
Legal Principles
“On appeal from the denial of post-conviction relief, the motion court’s findings
are presumed correct.” Deck v. State, 381 S.W.3d 339, 343 (Mo. banc 2012). “The
motion court’s judgment will be reversed if it clearly erred in its findings of fact or
conclusions of law.” Id. (citing Rule 29.15(k)). “A clear error is a ruling that leaves the
appellate court with a definite and firm impression that a mistake has been made.” Id.
The Supreme Court of the United States has explained that judicial scrutiny of trial
counsel’s performance must be “highly deferential,” and for good reason:
It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that
3 counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal quotation marks and
citation omitted).
To obtain Rule 29.15 relief, Mueller had to satisfy the two-pronged Strickland test
by a preponderance of the evidence. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc
2006).
To satisfy the first prong of the Strickland test, [Mueller] must overcome a strong presumption that counsel provided competent representation by showing that counsel’s representation fell below an objective standard of reasonableness. This standard is met by identifying specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance. It is presumed that counsel’s conduct was reasonable and effective.
Id. (internal quotation marks and citations omitted). Furthermore,
Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance. Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable. Where counsel has investigated possible strategies, courts should rarely second- guess counsel’s actual choices.
Id. (internal quotation marks and citations omitted).
Regarding jury instructions, “[a]n objectively reasonable choice by counsel not to
submit an instruction does not constitute ineffective assistance of counsel.” McCrady
v.
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CHRISTA E. MUELLER, ) ) Appellant, ) ) No. SD37128 vs. ) ) Filed: July 5, 2022 STATE OF MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
Honorable William E. Hickle, Judge
AFFIRMED
Christa Mueller appeals the denial of her Rule 29.151 motion for postconviction
relief. We affirm because the motion court did not clearly err in finding trial counsel’s
election not to request a cautionary jury instruction was strategic and objectively
unreasonable.
Background
A jury found Mueller guilty of first-degree assault on her young daughter, who
suffered horrific abuse resulting in severe, life-altering injuries. For a summary of the
1 Rule references are to Supreme Court Rules (2019). shocking evidence that supported the conviction, which we affirmed on appeal, see State
v. Mueller, 568 S.W.3d 62 (Mo.App. 2019). Mueller timely moved for relief under Rule
29.15,2 asserting, among other things, that her trial counsel was ineffective for not
requesting an instruction patterned on MAI-CR 4th 410.083 (the “Mere Presence
Instruction”).4 The Mere Presence Instruction reads,
The presence of a person at or near the scene of an offense at the time it was [] committed [] is alone not sufficient to make him responsible for the offense, although his presence may be considered together with all of the evidence in determining his guilt or innocence.
At the motion hearing, trial counsel testified the defense theory was that Mueller
was not present when her boyfriend harmed the child and began researching ways to
conceal his crime. Trial counsel pursued an alibi defense by filing a notice and an
amended notice of alibi, by mentioning in her opening statement that the jury would hear
alibi evidence, by cross-examining the state’s witnesses as appropriate, by calling an alibi
witness, and by highlighting Mueller’s non-presence at the scene in closing argument.
Counsel testified that the Mere Presence Instruction probably would have been given had
she requested it, but she made a strategic decision not to request it because Mueller had
indicated she was not present when her daughter was injured and the defense had
presented alibi evidence. Counsel summarized her thoughts about the jury instructions
in general and the Mere Presence Instruction specifically: “I proffered the instructions
2 We have reviewed the record to confirm that both the pro se and amended motions were filed within the
time prescribed by Rule 29.15. 3 MAI-CR 4th refers to Missouri Approved Instructions – Criminal, Fourth Edition. MAI-CR 3d refers to
Missouri Approved Instructions – Criminal, Third Edition. 4 In her amended motion and in briefing to this court, Mueller references MAI-CR 3d. MAI-CR 4th was
applicable in all trials occurring on or after January 1, 2017. MAI-CR 4th “How to Use This Book – Effective Dates”. This would include Mueller’s September 2017 trial. Because MAI-CR 4th 410.08 “is a revision of MAI-CR 3d 310.08,” revising “the Notes on Use only,” MAI-CR 4th 410.08 Note on Use 1, the outcome of this appeal would be identical under either edition of the instructions. For this reason, we have considered and cited to cases without distinguishing whether the third or fourth edition of the MAI-CR was in effect.
2 that I believed would advance our case,” and, “I believed [the Mere Presence Instruction]
was inconsistent with our theory of defense and would undermine our theory of defense.”
The same judge presided over both the motion hearing and Mueller’s criminal trial.
Regarding the claim on appeal, the motion court found that a Mere Presence Instruction
would have been relevant only if Mueller had been present at the scene of the assault at
the time it was committed. Mueller’s theory of defense was alibi, and to that end trial
counsel presented evidence and argument. The decision not to request a Mere Presence
Instruction was strategic because such an instruction may have detracted from the focus
on the alibi defense. The motion court found trial counsel’s strategy was unsuccessful but
not unreasonable: “While, in hindsight, the trial strategy did not convince the jury, that
does not make it unreasonable.” Mueller’s request for relief was denied.
Legal Principles
“On appeal from the denial of post-conviction relief, the motion court’s findings
are presumed correct.” Deck v. State, 381 S.W.3d 339, 343 (Mo. banc 2012). “The
motion court’s judgment will be reversed if it clearly erred in its findings of fact or
conclusions of law.” Id. (citing Rule 29.15(k)). “A clear error is a ruling that leaves the
appellate court with a definite and firm impression that a mistake has been made.” Id.
The Supreme Court of the United States has explained that judicial scrutiny of trial
counsel’s performance must be “highly deferential,” and for good reason:
It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that
3 counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal quotation marks and
citation omitted).
To obtain Rule 29.15 relief, Mueller had to satisfy the two-pronged Strickland test
by a preponderance of the evidence. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc
2006).
To satisfy the first prong of the Strickland test, [Mueller] must overcome a strong presumption that counsel provided competent representation by showing that counsel’s representation fell below an objective standard of reasonableness. This standard is met by identifying specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance. It is presumed that counsel’s conduct was reasonable and effective.
Id. (internal quotation marks and citations omitted). Furthermore,
Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance. Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable. Where counsel has investigated possible strategies, courts should rarely second- guess counsel’s actual choices.
Id. (internal quotation marks and citations omitted).
Regarding jury instructions, “[a]n objectively reasonable choice by counsel not to
submit an instruction does not constitute ineffective assistance of counsel.” McCrady
v. State, 461 S.W.3d 443, 449–50 (Mo.App. 2015). “Counsel has no duty to request an
instruction that would undermine the defense theory presented at trial.” Id. at 450.
Discussion
Mueller acknowledges these legal principles but argues it is always unreasonable
not to request the Mere Presence Instruction when the state’s theory is accomplice
4 liability and the jury has to weigh disputed or conflicting evidence of a defendant’s
presence at the scene of the offense.
Unlike mandatory jury instructions, the instructions in the 410.00 series are
situational and discretionary. A trial court need not give the Mere Presence Instruction
sua sponte. State v. Lowe-Bey, 807 S.W.2d 132, 136 (Mo.App. 1991). The Mere
Presence Instruction must be given only “if applicable” and “upon request of either party.”
MAI-CR 4th “How to Use This Book – Overview”. “[N]ot every situation involving
accessorial liability requires the giving of the ‘mere presence’ instruction.” State v.
Daniels, 861 S.W.2d 564, 567 (Mo.App. 1993). Even when some evidence would support
the giving of the Mere Presence Instruction, the defense’s evidence or theory of the case
may render it inapplicable or unnecessary. See, e.g., id., 861 S.W.2d at 567 (no error in
refusal to give Mere Presence Instruction because defendant’s own evidence established
he participated in physical acts constituting accessorial liability). Given the discretionary
nature of the instruction and strategic reasons why defense counsel may decide it does
more harm to the defense than good, we cannot say, as a matter of law, that a Mere
Presence Instruction must be requested in every accomplice liability case lest defense
counsel be deemed ineffective.
Mueller next argues that a failure to request the Mere Presence Instruction relieves
the state of the burden to prove an essential part of its case. This is inaccurate. The Mere
Presence Instruction is a cautionary instruction. State v. Grice, 914 S.W.2d 360, 366
(Mo.App. 1995). The giving or non-giving of the Mere Presence Instruction does not alter
the elements of any crime or the state’s burden to prove those elements beyond a
reasonable doubt. Even before jury instructions were codified in MAI, our courts have
distinguished burden-of-proof instructions from cautionary instructions. See West v.
5 St. Louis Pub. Serv. Co., 361 Mo. 740, 748, 236 S.W.2d 308, 313 (Mo. 1951). Here,
the jury was instructed on reasonable doubt, accomplice liability, definitions relevant to
the charged crime, and the facts it had to find in order to return a guilty verdict (the verdict
director). The jury is presumed to have followed those instructions. State v. Hall, 603
S.W.3d 739, 742 (Mo.App. 2020) (citing State v. McFadden, 369 S.W.3d 727, 752 (Mo.
banc 2012)).
Finally, Mueller contends that the alibi evidence was problematic and, even if
believed, did not provide a complete alibi.5 We understand Mueller’s argument to be that
the alibi defense was not mutually exclusive to other defenses or arguments and therefore
the alibi defense did not, in and of itself, preclude trial counsel from also requesting the
Mere Presence Instruction. To this end, Mueller asks us to consider that trial counsel
successfully requested and brought to the jury’s attention instructions on lesser included
offenses, which also had the potential to diminish the alibi defense and for which the Mere
Presence Instruction would have been at least relevant and possibly even helpful.
Alibi was not the exclusive defense trial counsel pursued in this case. Trial counsel
argued the inference that Mueller’s boyfriend was the one who harmed the child and then
researched ways to cover up what he did. She argued reasonable doubt and the
shortcomings in the state’s case for first- or second-degree assault. Given the multiple
defenses and conflicting evidence presented to the jury, it may have been reasonable to
request a Mere Presence Instruction.
Whether the Mere Presence Instruction reasonably could have been requested was
not the standard by which the motion court had to judge counsel’s performance. Mueller
5 We do not understand this to be a challenge to counsel’s decision to pursue an alibi defense or the vigor
with which she pursued it, especially in light of Mueller’s amended motion averments that she “had an alibi defense” that the evidence supported alibi as “a viable theory of defense.”
6 had to show that trial counsel’s representation fell outside the wide range of professional,
competent assistance. Anderson, 196 S.W.3d at 33. Here, counsel made the considered,
deliberate, and strategic choice not to request the Mere Presence Instruction because she
believed it was inconsistent with and would undermine the defense. Courts should rarely
second-guess counsel’s strategic choices. Id. We see no clear error in the motion court’s
decision not to second-guess counsel’s decision in this case.
Conclusion
Trial counsel’s decision not to request the Mere Presence Instruction was based on
reasonable trial strategy and was not objectively unreasonable. The motion court did not
clearly err in denying Rule 29.15 relief. Point denied. Judgment affirmed.
JACK A. L. GOODMAN, J. – OPINION AUTHOR
WILLIAM W. FRANCIS, JR., P.J. – CONCURS
JEFFREY W. BATES, J. – CONCURS