Cofield v. State

156 S.W.3d 488, 2005 Mo. App. LEXIS 309, 2005 WL 428233
CourtMissouri Court of Appeals
DecidedFebruary 24, 2005
DocketNo. 26317
StatusPublished

This text of 156 S.W.3d 488 (Cofield v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cofield v. State, 156 S.W.3d 488, 2005 Mo. App. LEXIS 309, 2005 WL 428233 (Mo. Ct. App. 2005).

Opinion

PHILLIP R. GARRISON, Presiding Judge.

Kenny V. Cofield (“Movant”) appeals from the Circuit Court of Greene County’s denial, without an evidentiary hearing, of his Rule 29.151 motion for post-conviction relief based on ineffective assistance of counsel. We affirm.

Movant was charged with three counts of the class C felony of child molestation in the first degree, pursuant to Section 566.067,2 one count of the class A misdemeanor of sexual misconduct in the first degree, pursuant to Section 566.090, and one count of the class B misdemeanor of sexual misconduct in the second degree, pursuant to Section 566.093. Following a trial by jury, Movant was convicted of the three counts of child molestation, but acquitted of the two counts of sexual misconduct. He was sentenced to consecutive sentences of seven years for each count. Movant appealed his convictions to this court and we affirmed in State v. Cofield, 95 S.W.3d 202 (Mo.App. S.D.2003).

Movant filed a Rule 29.15 motion for post-conviction relief, counsel was appointed and filed “Counsel’s Statement in Lieu of Amended Motion Under Rule 29.15” on behalf of Movant, stating that it was not necessary to file an amended motion in that no additional facts or claims known to counsel had been omitted from the pro se motion. The State filed a motion to dismiss Movant’s motion without an eviden-tiary hearing, and the motion court filed its findings of fact and conclusions of law granting the State’s motion. This appeal followed.

Movant moved in with his sister, W.C.,3 at her home in Springfield, Missouri, in March or April of 2000. Also living in W.C.’s home were her husband and three children, M.C., J.C., and T.C. Movant stayed in the downstairs family room. While Movant was living there, he molested M.C., who was eight years old at the time, on three occasions. On the first occasion, M.C. was watching television with Movant in his room when she felt ill. Movant told M.C. that she could lay on his bed and he would lay on the couch. M.C. fell asleep and awoke in the early morning [490]*490to find her pajama pants removed and Movant touching her private parts. After this incident, Movant threatened to kill M.C. if she told anyone. A second incident occurred when M.C. was lying on the couch in Movant’s room watching television when she fell asleep. She awoke to find Movant touching her private parts again. The third time, M.C. testified that she was downstairs cleaning and was hit in the head with something. When she awoke, she was naked on the floor and Movant was touching her with his hands and penis.

On May 29, 2000, J.C., W.C.’s other daughter who was fifteen at the time of the incident, informed her mother that Movant had inappropriately touched her the night before. W.C. immediately told Movant he had to leave the house, and took him to a bus station. When W.C. returned, M.C. asked her where Movant was, and W.C. explained to her why Mov-ant had left. At this point, M.C. told her mother about Movant touching her and how he had threatened to kill her. W.C. then reported these incidents which led to the arrest and eventual conviction of Mov-ant.

Movant presents one point in this appeal. He claims that he was denied effective assistance of counsel when his trial counsel failed to cross-examine M.C. and W.C. with prior inconsistent statements.

Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Parham v. State, 77 S.W.3d 104, 106 (Mo.App. S.D. 2002). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Middleton v. State, 80 S.W.Sd 799, 804 (Mo. banc 2002) (quoting Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000)).

If the motion, the files and records of the case conclusively show that the mov-ant is entitled to no relief, an evidentiary hearing on the Rule 29.15 motion shall not be held. Rule 29.15(h). An evidentiary hearing on the motion is only necessary if: (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains resulted in prejudice. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997).

In order for a criminal defendant to be granted post-conviction relief on the basis of ineffective assistance of counsel, the defendant must demonstrate that “his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances, and that he was thereby prejudiced.” Parham, 77 S.W.3d at 106 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. 668, 690, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 695 (1984). Therefore, Mov-ant must show that counsel’s performance fell below an objective standard of reasonableness and, but for counsel’s performance, a reasonable probability exists that the outcome of the trial would have been different. Wright v. State, 125 S.W.3d 861, 866 (Mo.App. S.D.2003). “If the [movant] fails to satisfy one of the two prongs of the Strickland test, we are not compelled to address the other prong and the claim of ineffective assistance of counsel must fail.” Dorsey v. State, 113 S.W.3d 311, 314 (Mo.App. S.D.2003).

[491]*491We will first address Movant’s claim as to M.C. In his motion, he stated,

[t]rial counsel unreasonable [sic] failed to demonstrate that [M.C.’s], story was a fabrication by establishing what she had described, to Police, DFS workers, as well as at Preliminary Hearing, That [sic] Movant allegedly comitted [sic] these acts in her room, and the time frame is contrary to [M.C.’s] description at trial.

As facts and evidence supporting this claim, Movant stated only, “[t]rial counsel unreasonably failed to cross-examine [M.C.], According [sic] to prior testimony as he was awear [sic] of it at trial, [sic] Had counsel done so, a reasonable probability would have existed of a different result at movant’s trial.”

At trial, Movant’s counsel conducted a thorough cross-examination of M.C., during which he asked specific questions about where the touching incidents took place and the timing of the incidents. Movant’s counsel did not specifically ask M.C. whether she had previously told him or someone else that any of the incidents took place in her room, though he did inquire as to whether she remembered telling him an incident took place at a different time.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Wright v. State
125 S.W.3d 861 (Missouri Court of Appeals, 2003)
Norville v. State
83 S.W.3d 112 (Missouri Court of Appeals, 2002)
Moss v. State
10 S.W.3d 508 (Supreme Court of Missouri, 2000)
Seals v. State
141 S.W.3d 428 (Missouri Court of Appeals, 2004)
State v. Westcott
857 S.W.2d 393 (Missouri Court of Appeals, 1993)
Dorsey v. State
113 S.W.3d 311 (Missouri Court of Appeals, 2003)
Morrow v. State
21 S.W.3d 819 (Supreme Court of Missouri, 2000)
Reynolds v. State
87 S.W.3d 381 (Missouri Court of Appeals, 2002)
Parham v. State
77 S.W.3d 104 (Missouri Court of Appeals, 2002)
State v. Cofield
95 S.W.3d 202 (Missouri Court of Appeals, 2003)
State v. Brooks
960 S.W.2d 479 (Supreme Court of Missouri, 1997)
White v. State
939 S.W.2d 887 (Supreme Court of Missouri, 1997)

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Bluebook (online)
156 S.W.3d 488, 2005 Mo. App. LEXIS 309, 2005 WL 428233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cofield-v-state-moctapp-2005.