In the Missouri Court of Appeals Western District CHRISTOPHER MICHAEL KING, ) ) Appellant, ) WD84079 ) v. ) OPINION FILED: January 11, 2022 ) STATE OF MISSOURI, ) ) Respondent. )
Appeal from the Circuit Court of Harrison County, Missouri The Honorable Thomas R. Alley, Judge
Before Divison Three: Lisa White Hardwick, Presiding Judge, Gary D. Witt, Judge, Edward R. Ardini, Jr., Judge
Christopher Michael King ("King") appeals the judgment of the Circuit Court of
Harrison County, Missouri ("motion court"), denying, without an evidentiary hearing, his
motion for post-conviction relief pursuant to Rule 29.15. On appeal, King claims that the
motion court erred in: (1) denying, without an evidentiary hearing, King's claim that his
trial counsel was ineffective in failing to request a verdict directing instruction for the
lesser-included offense of attempted assault in the second degree, because there is a
reasonable probability that the jury would have convicted him on the lesser charge; (2) denying, without an evidentiary hearing, King's claim that his trial counsel was ineffective
in failing to object to the court's verdict directing instruction for attempted assault in the
first degree under section 562.012; and (3) denying, without an evidentiary hearing, his
claim that the sentencing court was under the mistaken impression that King would not
have to serve 85 percent of his sentence. We affirm.
Factual and Procedural Background1
In August 2017, M.T., an adult female, ended a nine-year, off-and-on romantic
relationship with King. After ending the relationship, M.T. and her daughter moved from
Cedar Rapids, Iowa, where they had been living with King, to her hometown of Cedar
Falls, Iowa, approximately an hour away from Cedar Rapids.
A few weeks after their break-up, M.T. saw King's pick-up truck in Cedar Falls
while she was dropping her daughter off at school. M.T. confronted King about following
her. King agreed to go to a nearby McDonald's restaurant with M.T. so they could talk in
a public place. King was upset that their relationship had ended. While at McDonald's, he
confronted M.T. about her relationship with another man, who has since become M.T.'s
husband ("Husband"). M.T. met Husband in college and had previously been in a romantic
relationship with him. While talking to King, she denied she was in an ongoing relationship
with Husband. King grabbed M.T.'s phone from her purse and looked through her text
messages, confirming that M.T. had renewed her relationship with Husband. King then
got into the driver's seat of M.T.'s car to prevent her from leaving. Eventually, King got
1 Much of the factual background for King's underlying criminal case comes, without further attribution, from the unpublished per curiam order denying King's direct appeal.
2 out of M.T.'s car and exclaimed to her, "You're dead, you're all dead." M.T. was unable to
make any calls because her phone password was not being recognized. Later that
afternoon, M.T. reported this threat to the Cedar Falls police.
That weekend, M.T. convinced Husband, who lived in Mercer, Missouri, to stay
with her in Cedar Falls at her parents' house, where she had been staying. While Husband
regularly spent the weekend with M.T. in Cedar Falls, M.T. wanted him to come up that
weekend in particular because of the incident earlier in the week with King. That Sunday,
September 24, 2017, M.T. and the family returned home from church to find that several
small items, including Husband's keys, had been moved, and a Rada-brand kitchen knife
was missing. M.T. was also unable to log into her computer because her password had
been changed. King later admitted that he had been in Cedar Falls at the time, and a
forensic examination of King's phone revealed photographs taken on September 24 of a
calendar on M.T.'s computer and a list of her passwords.
A few days later, on Tuesday, September 26, 2017, Husband returned to Mercer.
He spent the night at a neighbor's house directly across the street from his own house
because he was uncomfortable staying at his home given the situation with King and the
suspicious circumstances at M.T.'s parents' home. When Husband went to his home to get
supplies, accompanied by his neighbor, he observed that items in the room used by M.T.'s
daughter appeared to be out of place. Husband set up a camcorder on a tripod at the
neighbor's house to record the front door of his house. That night, the camera recorded
King unscrewing the front porch light bulb on Husband's house. Husband also spent the
following night at his neighbor's house.
3 On the morning of Thursday, September 28, 2017, Mercer County Deputy Sherriff
Jimmy See ("Deputy See") responded to a local park after a silver Toyota Camry associated
with King had been spotted in the park's parking lot. The vehicle was subject to a "be on
the lookout" or "BOLO" alert. When Deputy See arrived at the park, he found the vehicle
covered in heavy dew, but empty of occupants. Because Deputy See did not see anybody,
he left the park and went to Husband's home, less than one block away. As he was pulling
into Husband's driveway, a neighbor alerted him that the silver Camry was leaving the
park. Deputy See initiated a traffic stop based on the BOLO alert and took King into
custody. Deputy See observed that King's clothing was wet or saturated on his front side
and that his shoes were wet.
In his home, Husband discovered additional items in disarray, a plastic bag on the
floor under the bed where M.T.'s daughter slept when she stayed at the house, and a smiling
face drawn in the dust on a speaker.
Deputy See found a screwdriver in King's front pocket and observed a brush axe or
machete and a black handled knife lying in plain view in the vehicle. At King's request,
Deputy See retrieved a Subway bag located in the back seat of the vehicle. Deputy See
found that it contained approximately $10,000 cash, three savings bonds, and King's
passport. King later admitted that he had purchased the Camry in Cedar Rapids. He
claimed that he happened to be in Mercer merely because he was driving through Mercer
County on his way back to Iowa after visiting St. Louis.
After Deputy See transported King to jail, he returned to the park to continue his
investigation. Accompanied by Missouri State Highway Patrol Trooper Adam McAtee,
4 Deputy See searched the park and surrounding area. The officers followed a path from the
park heading toward Husband's house, where Deputy See had earlier seen footprints in the
dew, and continued on to a nearby pasture. Approximately one-and-a-half feet inside a
fence separating the park and pasture, the officers found a knife stuck into the ground with
two zip-ties next to a tree. At trial, M.T. identified the knife as the Rada knife that had
been stolen from her parents' home in Cedar Falls a few days earlier.
While conducting an inventory search of the Camry, police found a newly purchased
black apron, a new kitchen towel, a new shower liner, a black-handled knife, a hammer,
and an open package of zip ties with two missing that matched the two zip ties found on
the ground with the Rada knife. In the trunk of the vehicle, police found a laptop computer
and two suitcases containing various items of clothing, a shaving kit, and King's high
school diploma. A forensic examination of King's phone, conducted pursuant to a warrant,
revealed that he had researched Husband's name, employment, and social media profile,
and that he had looked up a map for the City of Mercer on Google Maps.
A second amended felony information charged King with: attempted first-degree
assault under sections 565.0502 and 562.012; second-degree burglary under section
569.170; and second-degree property damage under section 569.120. The case was tried
to a jury on August 20, 2018. The jury was instructed on attempted first-degree assault,
burglary in the second degree, the lesser-included offenses of first-degree and second-
degree trespass, and property damage.
2 All statutory references are to R.S.Mo. 2016, as updated by the operative supplement.
5 The jury found King guilty of attempted first-degree assault, and second-degree
trespass. The jury acquitted King of the charge of property damage. King's trial counsel
did not request a verdict-directing instruction on the lesser-included offense of attempted
second-degree assault, arguing to the jury that "the most we got here is that there's basically
harassment."
The trial court sentenced King to nine years' imprisonment on the assault offense
and assessed a fine for the offense of trespass. King's convictions were affirmed on direct
appeal in an unpublished per curiam order. State v. King, 591 S.W.3d 533 (Mo. App. W.D.
2020). King filed a timely motion for post-conviction relief pursuant to Rule 29.15, which
was amended by appointed counsel, and the circuit court denied the amended motion
without an evidentiary hearing. This appeal follows.
Standard of Review
Appellate review of a motion court's Rule 29.15 judgment "is limited to a
determination of whether the motion court's findings of fact and conclusions of law are
clearly erroneous." Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014); Rule 29.15(k).
"Findings and conclusions are clearly erroneous only if a full review of the record definitely
and firmly reveals that a mistake has been made." Morrow v. State, 21 S.W.3d 819, 822
(Mo. banc 2000). "A reviewing court must uphold a motion court's judgment if it is
sustainable on any ground." Voss v. State, 570 S.W.3d 184, 192 (Mo. App. E.D. 2019).
6 Analysis
Point I; Lesser-included offense instruction
King's first point on appeal is that the motion court clearly erred in denying his
motion for post-conviction relief without an evidentiary hearing because his trial counsel
was ineffective for failing to request the trial court to submit to the jury a verdict-directing
instruction for the offense of attempted assault in the second degree, a lesser-included
offense of attempted assault in the first degree. King is entitled to an evidentiary hearing
only if: "(1) he pleaded facts, not conclusions, warranting relief; (2) the facts alleged are
not refuted by the record; and (3) the matters complained of resulted in prejudice to the
movant." McNeal v. State, 412 S.W.3d 886, 889 (Mo. banc 2013). "Therefore, to obtain
an evidentiary hearing on his claims of ineffective trial counsel for failure to request
instructions on a lesser-included offense, [King] must plead facts, not refuted by the record,
showing that the decision not to request the instruction was not reasonable trial strategy."
Id. (internal quotation omitted). King must also plead facts showing that he was prejudiced
by counsel's failure to request the lesser-included offense instruction. Id. Prejudice means
that, had the lesser-included instruction been given, "there is a reasonable probability that
the outcome of the trial would have been different[.]" Id. (quoting Anderson v. State, 196
S.W.3d 28, 33 (Mo. banc 2006)).
There is a presumption that trial counsel's performance was sufficient. McNeal, 412
S.W.3d at 890. Although "doubt as to whether to instruct on the lesser-included offense is
resolved in favor of giving the lesser-included instruction," id., it can also be an objectively
reasonable strategy not to submit an available lesser-included instruction, especially when
7 the attorney concludes that it is in the best interest of his client "to deny the jury the
opportunity to compromise on some middle ground" between the greater offense and
acquittal. Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984). King's motion alleged that
he:
was entitled to submit the nested lesser-included offense of assault in the second degree. In failing to proffer an instruction on assault in the second degree trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the same or similar circumstances. This prejudiced movant because, if proffered, the trial court would have submitted the jury instruction on assault in the second degree[,] and there is a reasonable likelihood the jury would have found movant guilty of the lesser offense.
Noticeably absent from this part of King's motion is any factual allegation that
counsel's failure to offer the instruction for the lesser-included offense was due to
inadvertence or that it was not a matter of reasonable trial strategy, which is the
presumption. The allegation in King's motion that "trial counsel failed to exercise the
customary skill and diligence that a reasonably competent attorney would exercise under
the same or similar circumstances" is a legal conclusion that simply parrots the Strickland
performance standard; the motion does not make any factual allegations to support this
legal conclusion. Had King alleged sufficient facts, the motion court may well have been
required to hold an evidentiary hearing to determine whether counsel's course of action
was, in fact, a matter of reasonable trial strategy. See, e.g., Watson v. State, 520 S.W.3d
423, 436-37 (Mo. banc 2017); McNeal¸ 412 S.W.3d at 892-93. King's motion further failed
to delineate any facts which would form a basis for the jury to have acquitted him on the
charge of attempted assault in the first degree while finding him guilty of attempted assault
8 in the second degree. The facts recited in King's motion include: that he had made death
threats against M.T. and Husband; that he was outside of Husband's home; that he had in
his possession zip ties, knives, a machete, a shower curtain, an apron, towels, a hammer, a
baseball bat, electrical tape, his passport, and $10,000 cash and savings bonds. None of
this evidence supports an inference that King intended to merely cause Husband physical
injury (assault in the second degree) rather than serious physical injury (assault in the first
degree).3
The conclusion that the failure to request the lesser-included offense instruction to
the charge of attempted first-degree assault was in fact trial counsel's strategy rather than
inadvertence is supported by the record. Trial counsel's closing argument that the jury
"must consider each and every piece of evidence in this case and you must be firmly
convinced that the [Movant] is guilty of the offense charged, not some other offense"
combined with his argument that "I think the most we got here is that there is basically
harassment. That's not the charge[,]" is consistent with counsel’s decision to pursue an “all
or nothing” defense. "'All-or-nothing' defenses have been upheld as sound trial strategy."
Watson v. State, 520 S.W.3d 423, 436 (Mo. banc 2017).
We cannot conclude that the motion court clearly erred by failing to hold an
evidentiary hearing when King failed to allege any facts supporting his claim that trial
3 King's appellate brief argues that King had told an officer that he merely wanted to "beat up" Husband, as opposed to killing him pursuant to his death threats, but that King was "too chicken." King contends that this fact supports giving an instruction for attempted assault in the second degree. However, these facts were not alleged or argued in Husband's amended Rule 29.15 motion.
9 counsel's decision not to request the instruction for the lesser-included offense was
anything other than reasonable trial strategy.4 King's first point is denied.
Point II; Attempt instructions
King's second point on appeal argues that the motion court clearly erred in denying
his motion without an evidentiary hearing because trial counsel was ineffective for failing
to object to Instruction No. 5, which was the verdict-directing instruction under the general
attempt statute, section 562.012, rather than the instruction for the specific statute for
attempted assault in the first degree under section 565.050.5
Rule 28.02(c) requires that MAI-CR instructions or verdict forms applicable to the
law "shall be given or used to the exclusion of any other verdict form." Rule 28.02(f)
provides that the giving of an instruction in violation of this rule constitutes error, and the
error's prejudicial effect shall be determined by the court "provided that objection has been
timely made pursuant to Rule 28.03." Rule 28.03 requires counsel to make "specific
objections to instructions or verdict forms considered erroneous… before the jury retires
to consider its verdict…." The State concedes that Instruction No. 5 "did not strictly
comply with the approved instruction" for attempted assault in the first degree. However,
4 While King's brief relies almost entirely on the facts in McNeal and claims that they necessitate a hearing in his own case, we note that McNeal had "alleged that counsel failed to request [the lesser] instruction and that this failure was not justified by any strategy or reason other than inadvertence…" McNeal, 412 S.W.3d at 889-90. King's own motion did not so allege, and it is much less clear that the evidence presented in this case could support a jury's conclusion that King only hoped to cause physical injury (the lesser-included offense) and not serious physical injury (the greater offense) to Husband. 5 King's second point relied on states that his counsel was ineffective in "failing to apprise the court that he was convicted of the inchoate offense of attempted assault in the first degree under section 562.012. The argument section of his brief, however, reveals that the essence of his complaint is that counsel failed to object to the manner in which the jury was instructed on the first-degree assault. Arguments raised in the argument portion of the brief but not set forth in the point relied on are not preserved, and therefore waived. Ziade v. Quality Business Solutions, Inc., 618 S.W.3d 537, 544 (Mo. App. W.D. 2021).
10 the State argues, trial counsel's failure to object to the instruction is not reversible because
King fails to show that the error was prejudicial in that there is not a reasonable probability
that, had counsel properly objected, the outcome of the trial would have been different.
See State v. Perry, 548 S.W.3d 292, 301 (Mo. banc 2018).
The instruction as submitted by the state was based upon MAI-CR 4th 404.06
(2017) and, as given to the jury, read:
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about September 28, 2017, in the State of Missouri, the defendant possessed zip ties, a bush knife, a shower curtain, towels, a passport, a large amount of cash, at least one suitcase filled with clothing, and monitored the home of [Husband], and
Second, that such conduct was a substantial step toward the commission of the offense of assault in the first degree, and
Third, that defendant engaged in such conduct for the purpose of committing such assault in the first degree against [Husband],
then you will find the defendant guilty under Count I of an attempt to commit assault in the first degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant guilty of that offense.
The terms "assault in the first degree," "serious physical injury," and "attempted"
were defined in separate instructions. Instruction No. 10 provided, "As used in this
instruction, the term 'assault in the first degree' means an attempt to kill or knowingly cause
or attempting to cause serious physical injury to another person." Instruction No. 11
provided, "As used in this instruction, the term 'serious physical injury' means physical
11 injury that creates a substantial risk of death or that causes serious disfigurement or
protracted loss of impairment of the function of any part of the body." Instruction No. 12
provided:
As used in this Instruction, the term 'attempted' means the doing of any act, with the purpose of committing an offense, which act is a substantial step toward the commission of the offense. A substantial step means conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. It is no defense that it was factually or legally impossible to commit assault if such offense could have been committed had the circumstances been as the defendant believed them to be.
The correct instruction for assault in the first degree as charged in this case is, as
King argues, MAI-CR 4th 419.08 (2017), which reads:
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about September 28, 2017, in the State of Missouri, the defendant attempted to kill or cause serious physical injury to [Husband] by possessing zip ties, a bush knife, a shower curtain, towels, a passport, a large amount of cash, at least one suitcase filled with clothing, and monitored the home of [Husband],
then you will find the defendant guilty under Count I of assault in the first degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
As use in this instruction, a person attempts to kill or cause serious physical injury if, with the purpose of killing or causing serious physical injury he does an act that is a substantial step toward causing that death or serious physical injury. A "substantial step" is conduct that is strongly corroborative of the firmness of the actor's purpose to cause that death or serious physical injury.
12 As used in this instruction, "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss of impairment of the function of any part of the body.
King does not argue that any element of the offense was omitted from the instructions given
to the jury, only that by setting forth the definitions in separate instructions and by not
specifically referring to the definitional instructions in the verdict director for this offense
the jury was misled and he was prejudiced by the error. However, the notes on use for this
instruction state that if the defined terms "assault" and "serious physical injury" "are used
in more than one instruction, the paragraph[s] defining [those] terms need not be included
in this instruction. In that case, such terms must be defined in a separate instruction." MAI-
CR 4th 419.08, note 8 (2017). While the definitions were given in separate instructions,
even though the relevant terms were not used in more than one instruction, it is difficult to
understand how this would have changed the outcome of the trial when the notes on use
would have specifically allowed the definitional instructions to be set forth in separate
instructions in any case where the defined term was used in more than one instruction.
Rule 28.03 requires a judicial determination of the prejudicial effect of an
instructional error, if a proper timely objection is made. Assuming counsel had made a
proper and timely objection and the trial court had still submitted the erroneous instruction,
King would be required to have shown "that the offending instruction misled, misdirected,
or confused the jury, or that this error materially affected the outcome of the trial." State
v. Julius, 453 S.W.3d 288, 304 (Mo. App. E.D. 2014). Moreover, when determining
whether an instructional error was prejudicial, the reviewing court looks at "all submitted
instructions together" to see whether the jury was reasonably likely to have been misled or
13 confused. State v. Anderson, 306 S.W.3d 529, 535 (Mo. banc 2010). Here, taken together,
the instructions given to the jury contained language nearly identical to the language in
MAI-CR 4th 419.08. And while King makes much of the fact that the defining instructions
say "[a]s used in this instruction," (emphasis added) rather than "as used in these
instructions" it is difficult to believe that the jury would have been misled to think that the
definitions did not apply to the verdict-directing instruction, Instruction No. 5, when that
is the only instruction where the relevant terms were used. The definitional instructions
were each limited to only the definition of a single term, and thus there would be no need
to define each term only for purposes of the instruction providing its definition.
Because, when taken as a whole, there is no reasonable likelihood that the
instructions given misled, misdirected, or confused the jury as to the elements of the
offense, there is no reasonable likelihood that the outcome of King's trial would have been
different had trial counsel made a timely objection to the instructional error. Because King
has shown no prejudice, his claim that his trial counsel was ineffective for failing to object
to the instruction fails. Williams v. State, 490 S.W.3d 398, 406 (Mo. App. W.D. 2016).
King's Point II is denied.
Point III; Parole Eligibility
King's third point on appeal is that the motion court clearly erred in denying his
motion for post-conviction relief without an evidentiary hearing because, during
sentencing, the sentencing court "was under the mistaken assumption that [King] would
not have to serve 85 percent of his sentence before becoming parole eligible." Because
appellate counsel did not submit the sentencing hearing transcript on direct appeal, King
14 alleges that the motion court was required to hold an evidentiary hearing to determine
whether the sentencing court was, in fact, subject to this mistaken belief when he sentenced
King.
"[R]eview of any claimed error at sentencing is a matter for direct appeal." Arbeiter
v. State, 738 S.W.2d 515, 516 (Mo. App. E.D. 1987). King did bring a challenge to his
sentence on direct appeal, arguing that the circuit court erred in entering a conviction for
attempted first-degree assault as a class B felony because the information charged the
offense as a class C felony. This Court, in its unpublished per curiam order, disagreed with
King's position in his direct appeal, noting that his argument was wholly without citation
to relevant legal authority and without explanation as to why such legal authority was not
available. The sentencing court's alleged mistaken assumption as to his parole eligibility
could similarly have been brought on direct appeal. Such matters "cannot be raised in a
motion for post-conviction relief except in rare and exceptional circumstances," and post-
conviction proceedings "cannot be used as a vehicle to obtain a second appellate review of
matters which were or should have been raised on direct appeal." Id; Voss v. State, 570
S.W.3d 184, 192 (Mo. App. E.D. 2019). And although King faults his appellate counsel
for failing to file the sentencing hearing transcript as part of the record on his direct appeal,
his point relied on does not allege ineffectiveness of appellate counsel.
Finally, as the motion court found, while the sentencing court might have misstated
the range of punishment, King did not show that the resulting sentence was "a manifest
injustice or miscarriage of justice" as he was required to do to establish plain error. State
15 v. Pierce, 548 S.W.3d 900, 904 (Mo. banc 2018). The sentence he received was within the
range of punishment for the offense he committed.
Point III is denied.
Conclusion
For all of the above-stated reasons, the judgment of the motion court is affirmed.
__________________________________ Gary D. Witt, Judge
All concur