Missouri Court of Appeals Western District
JOSEPH T. SOUSLEY, ) ) WD85175 Appellant, ) v. ) OPINION FILED: ) STATE OF MISSOURI, ) June 27, 2023 ) Respondent. ) )
Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Daniel Fred Kellogg, Judge
Before Division Two: Alok Ahuja, Presiding Judge, Anthony Rex Gabbert, Judge and Thomas N. Chapman, Judge
Joseph Sousley (“Sousley”) appeals a judgment of the Circuit Court of
Buchanan County, which denied his Rule 29.15 motion for postconviction relief
after an evidentiary hearing. Sousley raises six points on appeal, arguing that the
motion court erred in denying relief on various claims of ineffective assistance of
trial and appellate counsel. Sousley contends he received ineffective assistance
when his trial counsel failed to object and argue to exclude testimony, failed to
investigate and present evidence for impeachment purposes, and failed to object to the verdict directors for Count I and Count III. Sousley contends he further
received ineffective assistance when his appellate counsel on direct appeal failed to
raise plain error claims regarding the verdict directors for Counts I and III. The
judgment is affirmed.
Background1
The facts underlying Sousley’s convictions of three counts of first-degree
sodomy and one count of first-degree sexual abuse are as follows. Victim,
Sousley’s niece, lived in St. Joseph, Missouri, with her mother. In the summer of
2016, when Victim was fourteen years old, she spent a week at the house of her
grandfather (“Grandfather”) in Climax Springs, Missouri. At the time, Sousley
also lived with Grandfather. During Victim’s time at Grandfather’s house, Sousley
and Victim went on an overnight trip to complete a job for Sousley’s moving
company. While in the van, Sousley asked Victim questions about her sexual
experiences. Sousley then groped Victim’s breasts and placed her hand on his
clothed crotch. Victim felt that Sousley was erect. Sousley pulled onto the side of
a gravel road and parked the van. The two went to the back of the van where
1 “On appeal from the motion court’s ruling on a Rule 29.15 motion, we view the evidence in the light most favorable to the verdict in the underlying criminal case.” State v. Sprofera, 613 S.W.3d 822, 824 n.2 (Mo. App. W.D. 2020) (quoting Hutton v. State, 345 S.W.3d 373, 374 n.1 (Mo. App. W.D. 2011)). Portions of the facts are adopted from this court’s unpublished memorandum opinion that accompanied the order issued in State v. Sousley, 616 S.W.3d 435 (Mo. App. W.D. 2020).
2 Sousley removed Victim’s pants. Sousley then inserted his fingers in Victim’s
vagina and placed his mouth on her vagina. Sousley stopped after he said he saw a
light turn on in a nearby house. They returned to the front of the van, and Sousley
drove away. Sousley commented to Victim that “what happens in the van stays in
the van.” At some point, he commented that he would not have done something
similar with Victim’s sister, because her sister talks a lot and would say something.
Later in the summer of 2016, Sousley stayed a week at Victim’s mother’s
house to help Victim’s mother pack her belongings for a planned move. While
staying at the house, Sousley made more sexual comments toward Victim. Sousley
placed his penis in Victim’s mouth several times. At some point during the week,
Sousley inserted his fingers in Victim’s vagina. On another occasion, Sousley
stuck his fingers in Victim’s vagina, which was painful and caused her to start
bleeding. Sousley also placed his mouth on Victim’s breasts, bruising her.
In 2017, Victim informed her mother of Sousley’s conduct following an
argument with her mother. Victim’s mother contacted local law enforcement. An
investigation was conducted. Sousley was charged with three counts of first-
degree sodomy and one count of first-degree sexual abuse for the conduct
3 occurring in St. Joseph, Missouri.2 Jury trial began on May 6, 2019. The jury
convicted Sousley on all four counts. 3
Sousley filed a direct appeal, raising ten allegations of error. This court
affirmed Sousley’s convictions.
Sousley then filed a pro se Rule 29.15 motion. Appointed counsel timely
filed an amended motion, which asserted various claims that Sousley had received
ineffective assistance of counsel from his trial and appellate counsel. The motion
court held an evidentiary hearing during which testimony was received from
Sousley’s trial counsel and Grandfather. Sousley also submitted a number of
exhibits at the hearing, including deposition testimony from Sousley, Sousley’s
appellate counsel, Sousley’s stepdaughter, a customer of Sousley’s moving
company, as well as other exhibits related to Sousley’s postconviction claims.
Following the evidentiary hearing, the motion court issued a judgment denying
relief on each of Sousley’s claims.
Sousley now appeals to this court.
2 Sousley was not charged for the conduct occurring in the van on the way to the moving job. 3 Trial had previously been set for February 20, 2018, but Sousley failed to appear.
4 Standard of Review
We review a motion court’s judgment denying relief on a Rule 29.15
postconviction motion to determine whether the motion court’s findings and
conclusions are clearly erroneous. Rule 29.15(k); Meiners v. State, 540 S.W.3d
832, 836 (Mo. banc 2018). A judgment is clearly erroneous only if we are “left
with a definite and firm impression that a mistake has been made.” Meiners, 540
S.W.3d at 836 (citation omitted). “The movant has the burden of proving all
allegations by a preponderance of the evidence.” Id.; Rule 29.15(i).
To be entitled to postconviction relief based on ineffective assistance of
counsel, the movant must satisfy the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). The movant must establish that (1)
counsel’s performance was deficient, and (2) the deficient performance prejudiced
the defendant. Id. If a movant makes an insufficient showing on either prong of
the Strickland test, the movant’s claim of ineffective assistance of counsel must be
denied, and it is unnecessary to address the other prong. Id. at 697 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”).
To establish that counsel’s performance was deficient, the movant must
show “that counsel’s representation fell below an objective standard of
5 reasonableness.” Id. at 688. The movant must overcome the “strong presumption
that trial counsel’s conduct was reasonable and effective.” Hosier v. State, 593
S.W.3d 75, 81 (Mo. banc 2019) (quoting Davis v. State, 486 S.W.3d 898, 906 (Mo.
banc 2016)). To overcome this presumption, “a movant must identify specific acts
or omissions of counsel that, in light of all the circumstances, fell outside the wide
range of professional competent assistance.” Id. “The question in an ineffective
assistance claim is not whether counsel could have or even, perhaps, should have
made a different decision, but rather whether the decision made was reasonable
under all the circumstances.” Johnson v. State, 406 S.W.3d 892, 901 (Mo. banc
2013) (quoting Henderson v. State, 111 S.W.3d 537, 540 (Mo. App. W.D. 2003)).
The movant must also “affirmatively prove prejudice.” Strickland, 466 U.S.
at 693. To do so, the movant must establish “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Hosier, 593 S.W.3d at 81
(quotation omitted).
Point One
In his first point, Sousley argues that the motion court erred in denying relief
on his claim of ineffective assistance of counsel because his counsel’s performance
6 was unconstitutionally deficient when counsel failed to move to exclude the
entirety of the testimony of Dr. Terra Frazier, a child abuse pediatrician, as
irrelevant. In his amended Rule 29.15 motion, Sousley alleged that he had
received ineffective assistance of counsel when his counsel “failed to adequately
investigate, object, and argue to exclude Dr. Frazier’s testimony.” Sousley alleged
further that if his counsel had adequately investigated, objected, and argued that
Dr. Frazier’s testimony was inadmissible as irrelevant, there is a reasonable
probability that the outcome of the trial would have been different. In support of
the claim, Sousley noted that Dr. Frazier testified at trial about her examination of
Victim and her diagnosis of Victim with child sexual abuse. Sousley argued that
this testimony was neither logically nor legally relevant and that counsel could
have filed a motion in limine to prevent Dr. Frazier from testifying altogether.
At the evidentiary hearing, Sousley’s trial counsel testified that he had
objected to Dr. Frazier’s testimony regarding her diagnosis of child sexual abuse
because he did not want that diagnosis in evidence, but that his objection was
overruled. Trial counsel further testified that he believed that there was some
strategic value in allowing the jury to hear the portions of Dr. Frazier’s testimony
which indicated that there were no physical signs of abuse. On cross-examination
trial counsel further limited the significance of Dr. Frazier’s diagnosis of child
7 sexual abuse by eliciting an admission from Dr. Frazier that her diagnosis was
‘based entirely on the disclosure’ by Victim, which Dr. Frazier presumed to be true
as part of her standard practice. Counsel's cross-examination at trial thus made it
clear that Dr. Frazier's diagnosis was not based on any physical evidence (as there
was none), or on any independent analysis or judgment on Dr. Frazier’s part
regarding whether the acts disclosed by Victim had occurred.
In rejecting Sousley’s claim, the motion court found that trial counsel did
make an objection to the relevance of Dr. Frazier’s diagnosis of child sexual abuse.
The motion court also found that trial counsel had strategic reasons for allowing
some of Dr. Frazier’s testimony, and that reasonable trial strategy decisions do not
form the basis for postconviction relief.
On appeal, Sousley argues that his counsel’s objection toward the end of Dr.
Frazier’s testimony was inadequate to exclude Dr. Frazier’s testimony altogether.
Sousley argues that counsel should have filed a pretrial motion in limine to exclude
the entirety of Dr. Frazier’s testimony, and that such a motion would have been
granted and would have prevented Dr. Frazier from testifying altogether. 4 Sousley
argues that he received ineffective assistance of counsel due to counsel’s failure to
4 Although Sousley argues that a successful pretrial motion in limine would have prevented Dr. Frazier from testifying at trial, “a ruling on a motion in limine is interlocutory and subject to modification at trial.” State v. Blurton, 484 S.W.3d 758, 775 (Mo. banc 2016).
8 file such a pretrial motion, and that the motion court clearly erred in rejecting his
claim. We disagree.
The motion court’s findings and conclusions are not clearly erroneous. The
transcripts indicate that trial counsel objected multiple times during Dr. Frazier’s
testimony on the grounds of relevance. These objections were overruled.
Moreover, counsel testified that parts of Dr. Frazier’s testimony held strategic
value for the defense. The motion court found counsel’s strategy reasonable. This
finding is not clearly erroneous. The record indicates that counsel objected to the
portions of Dr. Frazier’s testimony that he found were harmful to the defense, and
did so in an anticipatory fashion, well in advance of such portions being introduced
into evidence. Counsel’s objections were overruled. The fact that counsel’s
objections were unsuccessful does not establish that counsel’s performance “fell
outside the wide range of professional competent assistance.” Hosier, 593 S.W.3d
at 81.5
5 Moreover, there is a more fundamental problem with Sousley’s claim. Sousley argues that, even though counsel objected multiple times during the course of Dr. Frazier’s testimony on the grounds of relevance, and even though counsel’s objections were overruled, that counsel was unconstitutionally deficient for failing to attempt to exclude the entirety of her testimony on the same grounds on which he was unable to exclude portions of the testimony. On this record there is no reason to believe that counsel could have successfully excluded the entirety of Dr. Frazier’s testimony on the same grounds as counsel unsuccessfully attempted to exclude portions of Dr. Frazier’s testimony. Sousley’s claim in this appeal essentially tries to transform an allegation of trial court error (regarding the trial court’s admission of the Frazier testimony) into one of ineffective assistance of counsel, in an attempt litigate the relevance of Dr. Frazier’s testimony in
9 Point one is denied.
Point Two
In his second point on appeal, Sousley argues that his trial counsel was
unconstitutionally ineffective because counsel failed to adequately investigate and
adduce evidence to impeach Victim’s testimony regarding an uncharged incident of
abuse that occurred during a moving job.
To prove ineffective assistance of counsel based on failure to call a witness
or present evidence, a movant must show (1) trial counsel knew or should have
known of the existence of the witness or evidence; (2) the witness or evidence
could be located through reasonable investigation; (3) the witness would testify or
the evidence would be admissible; and (4) the witness's testimony or evidence
would have produced a viable defense. See Glass v. State, 227 S.W.3d 463, 468
(Mo. banc 2007).
In his amended motion, Sousley argued that his counsel was ineffective for
failing to investigate and present evidence to impeach Victim’s credibility.
Specifically, Sousley argued that evidence should have been presented at trial
which would have contradicted details provided in Victim’s testimony regarding
postconviction proceedings after already having had the opportunity to assert trial court error in his direct appeal.
10 the circumstances of the prior uncharged conduct that Victim testified occurred
when she went with Sousley to assist with a moving job.
At trial, the State presented evidence of uncharged acts of abuse by Sousley
toward Victim that occurred prior to the charged conduct. Victim testified that
these uncharged acts occurred when she went with Sousley to assist on a moving
job for Sousley’s moving company. Victim testified that she was staying at
Grandfather’s house when she and Sousley left to complete a moving job.
Victim’s mother testified that no one else went with Victim and Sousley on the trip.
Regarding the vehicle Sousley was driving, Victim testified: “It was a white van.
It’s not like a minivan. I can’t describe what – like, it’s a white box van.” Victim
testified that they went to Sousley’s house to stay the night, and then went to the
jobsite in the morning. Victim testified that she did not know where Sousley’s
house was but that it felt like a long distance. Victim testified that, on the way to
Sousley’s house, Sousley began to ask her questions of a sexual nature, that
Sousley grabbed her breast and put her hand on his penis over his clothes. Sousley
then parked the van on a gravel road, asked Victim to go to the back of the van,
took Victim’s pants off, put his fingers in her vagina, and put his mouth on her
vagina. Sousley stopped when he said he saw a light in a house turn on. Sousley
then drove away, and they stayed at Sousley’s residence that evening before going
11 on to the moving job the following day. Victim testified on cross-examination that
Sousley’s wife and children were also present at Sousley’s house that night, and
that Sousley took Victim and Sousley’s stepdaughter to go swimming prior to
going to the moving jobsite the next morning. Victim testified on cross-
examination that there was no doubt in her mind that the abuse occurred in a white
van.
Detective Loehner testified that he had interviewed Sousley by phone.
Loehner testified that Sousley initially denied that he had ever been alone with
Victim. Loehner testified that Sousley later stated that Victim was with him on one
moving job along with Grandfather, during which they traveled from Grandfather’s
house to the jobsite, and then returned to Grandfather’s house the next day.
Trial counsel called multiple witnesses at trial, including Sousley’s wife, and
Grandfather.6 Regarding the details of the circumstances surrounding the
uncharged conduct to which Victim testified, trial counsel elicited testimony from
Sousley’s wife that she and her husband never visited their old house in
Owensville, Missouri during the time Victim was staying at Grandfather’s house.
Sousley’s wife also testified that Sousley did not own or borrow a white van.
6 Defendant Sousley did not testify at the criminal trial.
12 Grandfather testified at the criminal trial that he helped his son with a
moving job in Columbia, Missouri, which was about 80 miles from his home in
Climax Springs, Missouri. He testified that Columbia was about the same distance
from Climax Springs as it was from Owensville. He further testified that Sousley
did not own a white van. On cross-examination, Grandfather admitted that he told
law enforcement that he did not go on the moving job with Sousley and Victim,
and that he had told Victim’s mother that she should not have reported Victim’s
statements about Sousley, but should have “kept it in the family.”
In support of his claim of ineffective assistance, Sousley presented testimony
in the motion court from Sousley’s trial counsel, and Grandfather, as well as
numerous exhibits, including an invoice from Sousley’s moving company,
Sousley’s property tax records from Gasconade County regarding the vehicles
owned by Sousley on January 1 of 2015 and 2016, a letter from the Owensville
Parks and Recreation department regarding when the Owensville swimming pool
opened in 2016, a deposition from a customer for whom Sousley performed a
moving job in late May 2016, a deposition from Sousley’s stepdaughter, a
deposition from Sousley, recordings of phone conversations between Sousley and
Detective Loehner, and a map showing where various cities in Missouri are located
in relation to each other.
13 At the evidentiary hearing, trial counsel testified that Sousley first informed
him during trial that Sousley did not own a white box van, and that trial counsel
did not believe, at that late stage, it would have been feasible to get records from
the Department of Revenue. Trial counsel testified that he thought it would be best
to get evidence in regarding vehicle ownership through the witnesses he had
available at trial, and that he tried to make the best of the situation given the late
timing of Sousley’s disclosure after having discussed the case with Sousley
multiple times over a long period of time prior to that.
Regarding Sousley’s stepdaughter, trial counsel testified that he could not
recall whether he had ever spoken with her. Regarding the customer for a moving
job, trial counsel testified that he was never made aware that a moving customer
would have any evidence that would contradict the State’s evidence.
Regarding the audio recordings of conversations between Sousley and
Detective Loehner, trial counsel testified that he recalled that there were recordings
of phone conversations between Sousley and Loehner, and that he had listened to
those recordings in anticipation of trial. At the evidentiary hearing, trial counsel
could not recall whether Loehner testified (at the criminal trial) that Sousley had
earlier indicated to Loehner that the moving trip was an overnight trip. When
asked about whether he had considered using the recordings to establish that
14 Loehner had misstated what Sousley had told him, trial counsel indicated that he
did not think he caught such a discrepancy while the detective was testifying, and
that he would have tried to use the recordings to impeach the detective if there was
not something more damaging on the recording.
At the evidentiary hearing, Grandfather indicated that he had been asked to
testify (at the criminal trial) about the moving job that Victim helped with, but that
he could not then remember, as he was “half-sick”.
The records from Sousley’s moving company indicated that Sousley’s
company had performed a moving job for a customer, Bibi Blanco (“Blanco”), in
late May of 2016. The Gasconade County property tax records indicated that on
January 1, 2016, Sousley and his wife owned a 2004 Ford Excursion and a 2008
Ford Escape. The records did not indicate the color or shape of these vehicles.
The letter from the Owensville Parks and Recreation Department indicated that the
Owensville Waterpark opened in 2016 on Thursday, May 26, and that the
scheduled hours of operation were from 12 p.m. to 6 p.m.
The deposition of Blanco indicated that Blanco had hired Sousley to move
her family from her home in Columbia, Missouri to Orlando, Florida. Blanco
testified that she and her family had all of their belongings packed up and were
waiting on Sousley, but that Sousley never showed up. Blanco called Sousley who
15 said that he could not help with his moving truck, which caused Blanco and her
husband to rent their own truck which they would have to drive to Florida.
Sousley later contacted Blanco and offered to help load the truck. Blanco indicated
that Sousley showed up the following day with some members of his family.
Blanco stated: “I don’t remember exactly who. I believe it was three people. I
don’t know if it was his brother with his sister-in-law and some other guy. I don’t
know.” Blanco stated that Sousley and the other people stayed the whole day to
help load the truck. Blanco stated that she believed that of the three people helping
Sousley, “[i]t was like one lady for sure” and Blanco thought there were two men
as well.
The deposition testimony from Sousley’s stepdaughter indicated that she had
never gone swimming with Victim or gone on a moving job with Victim.
In his deposition, Sousley testified that he had given his trial counsel records
from his moving company regarding a moving job in Columbia, Missouri and had
asked him to use the records at trial. Sousley testified that his counsel had
explained to Sousley that he had spoken to another attorney at a conference and
had received advice “to not include a whole bunch of stuff because it would just
confuse the whole situation.” Sousley’s deposition testimony indicated that the
detail regarding swimming on the morning of the moving job came up for the first
16 time at trial. The audio recordings of Sousley’s conversation with Detective
Loehner indicated that Sousley had told Loehner during the conversation that he
left for the moving job with Victim and Grandfather on the day of the move and
returned the same day. 7
Sousley’s amended motion acknowledged that trial counsel presented
testimony from Grandfather and Sousley’s wife at trial to impeach some of the
details provided by Victim regarding the uncharged conduct. However, the motion
argued that objective proof would have corroborated the testimony of Grandfather
and Sousley’s wife such that the jury could not have simply assumed that their
testimony was biased. The motion also argued that Grandfather should have been
asked whether the moving trip was an overnight trip or a day trip, and that trial
counsel should have used an audio recording to establish that Sousley had told
Detective Loehner that the trip was not an overnight trip.
Following the evidentiary hearing, the motion court denied relief on
Sousley’s claim. The motion court credited trial counsel’s testimony that he was
not informed of a vehicle discrepancy until the morning of trial, and that he was
7 The audio recordings also contained numerous references that were the subject of a motion in limine filed by Sousley’s prior counsel, which sought to exclude references to Sousley doing drugs, references to Sousley hitting his father, references to Sousley having a gun during a dispute with his father, references to Sousley being in prison, references to Sousley being careful or watching himself while around Victim and another girl, references to a woman asking her daughters whether Sousley had touched them, and references to Sousley’s penis size.
17 not alerted to contact the moving client ahead of time. The motion court further
found that Sousley’s stepdaughter’s testimony would not have provided any
indication of whether the uncharged conduct occurred as Victim never testified that
Sousley’s stepdaughter was present when any of the uncharged abuse occurred.
The motion court found that the other evidence on which Sousley relied would
have been tangentially relevant at best, and noted that trial counsel did call
witnesses to impeach Victim’s credibility at trial, but that the jury chose not to
believe them. The motion court concluded that it would not second-guess trial
counsel’s strategy, and denied relief on Sousley’s claim.
The motion court’s conclusion that counsel’s performance was not
constitutionally deficient is not clearly erroneous. As an initial matter, Sousley’s
argument is that trial counsel should have presented a large amount of evidence
regarding Victim’s testimony of the circumstances surrounding conduct for which
Sousley was not on trial. While such evidence might have had some value for
impeachment purposes, the use of such evidence would have required placing the
jury’s focus on whether uncharged conduct occurred rather than whether the
charged conduct occurred. The record indicates that counsel had considered how
best to handle such situations and had made the determination to minimize the risk
of confusing the issues at trial by limiting the amount of time directing the jury’s
18 focus on the events surrounding the uncharged conduct. Counsel prudently sought
to impeach Victim’s testimony regarding the circumstances surrounding the
uncharged conduct without spending too much time focusing the jury’s attention
on whether the uncharged conduct rather than the charged conduct had occurred.
Counsel elicited testimony from defense witnesses that Sousley did not own a
white van, that Victim never stayed at Sousley’s house in Owensville, and elicited
testimony that Owensville was the same distance to Columbia as Climax Springs
such that it would not have been on the way to a moving job in Columbia. As the
motion court stated, the jury chose not to believe the testimony of the defense
witnesses. However, evaluating counsel’s performance under Strickland “requires
that every effort be made to eliminate the distorting effects of hindsight[.]”
Strickland, 466 U.S. at 689. In doing so, a court should be mindful that “[t]here
are countless ways to provide effective assistance in any given case.” Id. In this
matter, Sousley has failed to overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance[.]” See
id.
In this matter, much of the evidence that Sousley argues his counsel should
have presented was cumulative to evidence that was presented at trial. See
Williams v. State, 168 S.W.3d 433, 441 (Mo. banc 2005) (“Counsel will not be
19 found ineffective for deciding not to introduce cumulative evidence.”). Further,
little of the evidence presented at the motion hearing would have established what
Sousley argues it would have established. See State v. Twenter, 818 S.W.2d 628,
643 (Mo. banc 1991) (“Ordinarily, a defendant is not entitled to relief merely
because defense counsel elects not to present evidence of dubious impeachment
value.”).
Regarding the vehicle records, the property tax records do not establish the
color or appearance of the vehicles owned by Sousley, do not establish what
vehicles were owned in the summer of 2016 (as opposed to January 1, 2016), and
could not rule out the possibility that a vehicle not owned was utilized during the
moving job.8
Regarding the evidence of the moving job for Blanco, none of the evidence
establishes that the Blanco job was the job with which Victim assisted. Although
Blanco testified that one “lady” was present that was perhaps a sister-in-law,
Blanco did not testify as to the likely age of the female that was with Sousley and
8 The property tax records do list a description of “PKUP” for a 2004 Ford Excursion and a 2008 Ford Escape. At trial, Sousley’s wife testified that Sousley owned two box trucks for moving and a silver Ford Excursion. Grandfather testified that Sousley owned a box truck which was a moving truck and a four-door Excursion which was “kind of a dark gray/black combo.” Neither Sousley’s wife nor Grandfather testified regarding ownership of a 2008 Ford Escape which was listed on the property tax records. Nothing in the record indicates the color or appearance of such vehicle.
20 did not testify (nor was she asked) whether a fourteen-year-old girl assisted with
the move. Further, there were numerous discrepancies between the moving records
and the testimony of Blanco regarding the start time, hours worked, date, and
amount of pay for the moving job. Sousley had elected not to testify at trial, but
his deposition testimony at the evidentiary hearing was inconsistent with that of
Blanco regarding why the move did not occur on the scheduled date. Sousley
testified that Blanco had rescheduled and did not mention anything regarding
having failed to show up when scheduled resulting in a change in the scope of the
moving job to being one that involved loading a truck instead of loading a truck
and driving it to Florida to unload.
Regarding Grandfather’s testimony at the evidentiary hearing, Grandfather
testified that he was called at trial to testify about the move, but testified that he
“couldn’t remember at the time,” had been sick, and “couldn’t even hardly think,
much less testify[.]” Regarding the record of the swimming pool, there is no
indication in the record that Victim had ever stated any details of swimming prior
to trial, and when Victim testified as to having gone swimming on the morning of
the moving job, Victim did not state that the swimming occurred at a waterpark.9
9 Regarding Detective Loehner’s testimony, Loehner did testify that Sousley had told him that Sousley, Victim and Grandfather had traveled from Grandfather’s house to the site of the moving job, and then had returned home the next day, whereas it appears from the audio recording that Sousley had told Loehner that they had returned the same day. Either scenario of what Sousley
21 Although some of the evidence that Sousley argues should have been
presented at trial might have been of marginal value, it would have been largely
cumulative of the evidence which defense counsel did put forward at trial and
would not have provided Sousley with a new or different defense than the viable
defense that trial counsel asserted. Moreover, none of the evidence would have
directly challenged Victim’s testimony regarding the incident of uncharged
conduct: that Sousley had abused Victim while they were alone in a box van.
Additionally, presenting such evidence would have carried the risks of focusing the
jury’s attention on uncharged conduct and confusing the issues. The record
indicates that trial counsel considered and sought to avoid such risks. The motion
court concluded that trial counsel’s performance was not unconstitutionally
deficient. This conclusion was not clearly erroneous.
Point two is denied.
said would have been different from Victim’s account of events, as Victim testified that she stayed the night with Sousley the night before the moving job. As such, Sousley’s arguments regarding the audio recordings are far afield of what was alleged in his amended motion regarding presenting evidence to impeach Victim’s testimony. Moreover, as the motion in limine filed by Sousley’s prior trial counsel indicated, there were a lot of references on the audio recording that could have been damaging to Sousley’s case, such that attempting to introduce portions of the audio recording might have carried risks as well.
22 Points Three & Four
In his third and fourth points, Sousley argues that the motion court clearly
erred when it denied his claim of ineffective assistance of counsel based on his
counsel’s failure to object to the verdict directors for Counts I and III on the basis
that the verdict directors did not ensure jury unanimity. Specifically, Sousley
argues that the State produced evidence at trial of multiple distinct incidents of
Sousley placing his penis in the mouth of Victim (Count I), and Sousley touching
Victim’s genitals with his hand (Count III), but that the verdict directors for Counts
I and III did not identify the specific incidents in evidence to which they referred,
such that these verdict directors did not ensure that the jurors were in agreement as
to a single incident in which Sousley placed his penis in the mouth of Victim or a
single incident in which Sousley touched Victim’s genitals. Sousley argues that his
counsel’s failure to object and request more specific instructions constituted
ineffective assistance of counsel, and that there is a reasonable probability that the
outcome of trial would have been different if the jury had been given more specific
verdict directors for Counts I and III.
Article I, section 22(a) of the Missouri Constitution guarantees the right to a
unanimous jury verdict. State v. Celis-Garcia, 344 S.W.3d 150, 155 (Mo. banc
2011). “For a jury verdict to be unanimous, the jurors must be in substantial
23 agreement as to the defendant’s acts, as a preliminary step to determining guilt.”
Id. (internal quotations, citations, and brackets omitted). The issue of jury
unanimity is sometimes implicated in what are commonly known as “multiple
acts” cases. Id. at 155-56. “A multiple acts case arises when there is evidence of
multiple, distinct criminal acts, each of which could serve as the basis for a
criminal charge, but the defendant is charged with those acts in a single count.” Id.
In determining whether a case involves multiple acts, factors considered are “(1)
whether the acts occur at or near the same time; (2) whether the acts occur at the
same location; (3) whether there is a causal relationship between the acts, in
particular whether there was an intervening event; and (4) whether there is a fresh
impulse motivating some of the conduct.” Id. at 156 (citation omitted). In cases
where the evidence indicates that a defendant committed multiple distinct acts, the
state can ensure that the jury unanimously agrees as to which specific criminal acts
were committed by “(1) electing the particular criminal act on which it will rely to
support the charge or (2) the verdict director specifically describing the separate
criminal acts presented to the jury and the jury being instructed that it must agree
unanimously that at least one of those acts occurred.” Id. at 157.
In addressing juror unanimity, the Celis-Garcia Court made clear that it was
not addressing “sexual abuse cases involving repeated, identical sexual acts
24 committed at the same location and during a short time span [wherein] the victim
would be unable to distinguish sufficiently among the acts.” Id. at 157 n.8. Since
Celis-Garcia, Missouri courts have determined that where there is evidence of
multiple acts of abuse, but the acts are repeated and non-distinct such that the
jurors would have no evidentiary basis on which to distinguish between the acts,
there is no real risk that the jurors would base the convictions on different
underlying criminal acts. See State v. Dutcher, 583 S.W.3d 440, 442 (Mo. App.
S.D. 2019); see also Hogan v. State, 631 S.W.3d 564, 573 (Mo. App. W.D. 2021).
Sousley was charged with three counts of first-degree sodomy and one count
of sexual abuse in the first degree for conduct occurring between June 19, 2016
and June 25, 2016. The jury found Sousley guilty on all four charges. As relevant
to this appeal, in order to convict, the verdict director for Count I required the jury
to find that Sousley “placed his penis in the mouth of” Victim. The verdict director
for Count II required the jury to find that Sousley “placed his mouth on the genitals
of” Victim. Count III required the jury to find that Sousley “touched the genitals
of [Victim] with his hand[.]” Count IV required the jury to find that Sousley
“touched the breast of” Victim. 10
Sousley’s arguments on these points do not relate to the jury’s findings on 10
Counts II and IV. 25 Victim testified at trial to a time period during which Sousley came to stay at
her house in St. Joseph for a week while Sousley was helping to pack up Victim’s
mother’s belongings for a planned move. At one point during the week, Sousley
commented to Victim that she was “making him hard[.]” Victim and Sousley then
went upstairs to Victim’s room where Sousley asked Victim to perform oral sex on
him, which Victim did. Victim testified that she performed oral sex on Sousley
more than one time, sometimes more than once a day, but that she could not
remember the details of every single time that it occurred. Victim testified that
things other than Sousley putting his penis in her mouth also occurred. Victim
testified that on one occasion Sousley was on her bed and she was on top of him
and Sousley put his mouth on her vagina and Victim’s mouth was on Sousley’s
penis. Victim testified that at one point in time Sousley ejaculated into her mouth
in her room, but Victim could not recall when this occurred. Victim testified that
there was another occasion when Victim and Sousley were on the couch in the
living room and Sousley saw Victim’s underwear through her shorts, and Sousley
stuck his fingers in Victim’s vagina. Victim testified to a different incident which
occurred in her room where Sousley “was sucking on [her] boobs” causing
bruising, and Sousley stuck his fingers in her vagina “really hard,” which hurt and
caused bleeding.
26 Sousley’s amended motion argued that there were two distinct incidents to
which Victim testified wherein Sousley placed his penis in her mouth. Sousley
argued that the first distinct incident occurred when Sousley told Victim that
Victim was “making him hard” after which the two went upstairs to Victim’s room
where, at his request, Victim performed oral sex on Sousley. Sousley argued that
the second distinct incident to which Victim testified occurred when Victim and
Sousley were in Victim’s room and they simultaneously performed oral sex on
each other.
Sousley also argues that there were two distinct incidents to which Victim
testified wherein Sousley touched Victim’s genitals with his hand. Sousley argues
the first instance occurred when Sousley and Victim were sitting on the couch in
the living room when Sousley could see Victim’s underwear through her shorts and
Sousley stuck his fingers in her vagina. Sousley argues the second distinct incident
occurred in Victim’s bedroom when Sousley stuck his fingers in vagina “really
hard” and made her bleed.
Sousley contends that the verdict directors for Counts I and III were not
specific enough to guarantee that the jury unanimously agreed as to which incident
of Sousley placing his penis in the mouth of Victim or which incident of Sousley
touching Victim’s genitals occurred.
27 The motion court addressed Sousley’s claims regarding the verdict directors
for Counts I and III together and found that Sousley was convicted of three counts
of statutory sodomy which were identified as three separate incidents in the
charging document. The motion court found that the acts underlying Counts I and
III were testified as to separate times and separate locations within Victim’s house
such that Sousley’s case was distinguished from Celis-Garcia. The motion court
then denied Sousley’s claims.
Although there may be some confusion regarding the motion court’s
findings as to why Celis-Garcia was inapplicable (particularly the suggestion that
this was not a multiple acts case), it is unnecessary to address that further, as we
find that Sousley failed to establish prejudice under Strickland. That is, based on
the record before us, we find no reasonable likelihood that the outcome of trial
would have been different if the jury had been given more specific instructions.
Strickland instructs courts reviewing an ineffectiveness claim to consider the
totality of the evidence before the jury. Strickland, 466 U.S. at 695. In doing so,
courts should be mindful that “[s]ome of the factual findings will have been
unaffected by the errors, and factual findings that were affected will have been
affected in different ways.” Id.
Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the
28 prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
Id. at 696.
In this matter, the jury unanimously found that Sousley had placed his mouth
on Victim’s genitals (Count II), and that Sousley had touched Victim’s breasts
(Count IV). Neither of these findings would have been affected if the jury had
been instructed differently on Counts I and III. Thus, the jury, in findings that
would have been entirely unaffected had the jury been instructed differently on
Counts I and III found that Sousley committed first-degree sodomy (by placing his
mouth on Victim’s genitals) and first-degree sexual abuse (by touching Victim’s
breasts) between June 19, 2016 and June 25, 2016.
Regarding the verdict director for Count I, Sousley argues that the verdict
director would have been sufficiently specific if it specifically described each
separate incident to which Victim testified regarding Sousley placing his penis in
Victim’s mouth and instructed the jury that it must unanimously agree that at least
one of those acts occurred. See Celis-Garcia, 344 S.W.3d at 157. Regarding the
verdict director for Count III, Sousley argues that the verdict director would have
been sufficiently specific if it described each of the two incidents to which Victim
29 testified regarding Sousley touching her genitals and instructed the jury that it must
unanimously agree that at least one of those two acts occurred. See id.
Regarding Count I, the jury (as instructed at trial) unanimously found that
Sousley had placed his penis in Victim’s mouth. However, in the absence of a
more specific instruction, it is conceivable that some members of the jury might
have found that Sousley did so during the incident that occurred after Sousley told
Victim that she was “making him hard” and at no other time, while other members
of the jury might have found that Sousley did so while his mouth was on Victim’s
genitals, and that he did so at no other time.
Regarding Count III, the jury (as instructed at trial) unanimously found that
Sousley had touched Victim’s genitals with his hand. However, in the absence of a
more specific instruction it is conceivable that some members of the jury might
have found that Sousley did so on the couch in the living room and at no other
time, while other jurors might have found that Sousley did so during the incident in
Victim’s bedroom when Sousley stuck his fingers in Victim’s vagina “really hard”
and that Sousley did not do so at any other time.
Despite the fact that it is conceivable that the jury might have found
differently had the jury received different instructions, “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
30 the proceeding.” Strickland, 466 U.S. at 693. Rather, the question is whether “the
defendant has met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.” Id. at 696. Based on the
totality of the evidence before the jury in this case, we do not find it reasonably
likely that a jury that found that Sousley placed his mouth on Victim’s genitals and
touched Victim’s breasts (findings unaffected by the asserted error of counsel) was
reasonably likely to fail to come to unanimous agreement regarding the other
incidents of Sousley placing his penis in Victim’s mouth or touching Victim’s
genitals.
In asserting prejudice, Sousley relies on Hoeber for the proposition that the
verdict directors in Sousley’s case “created a real risk that the jurors did not
unanimously agree on the specific acts of statutory sodomy” for which they found
Sousley guilty. See Hoeber v. State, 488 S.W.3d 648, 655 (Mo. banc 2016).
Although Hoeber was a case in which the Missouri Supreme Court found that a
defendant had established prejudice under Strickland due to his counsel’s failure to
object to verdict directors on jury unanimity grounds, see Hoeber, 488 S.W.3d at
658, the facts of Hoeber were quite distinct from the facts of Sousley’s trial.
Specifically, in Hoeber there was conflicting evidence of multiple acts of hand-to-
genital contact. Id. at 654. The child in Hoeber had testified that hand-to-genital
31 contact had occurred in the kitchen, and that no touching occurred in the bedroom,
bathroom, or living room. Id. at 652. The child’s mother testified that the child
had told her that the touching occurred in the kitchen and the bedroom. Id. The
child’s therapist testified that the child had previously told her that the defendant
had touched her, then stated that the defendant did not touch her, then stated that
the defendant had touched her in the bedroom, kitchen, bathroom, and living room.
Id. A statement given by the defendant was also read into evidence that stated that
the defendant had touched the child inappropriately twice in the bathroom, but
denied all other touching. Id. The defendant later argued that the statement was
coerced. Id. In sum, Hoeber was a case in which there was conflicting testimony
about which of the specific acts occurred – a circumstance which the Supreme
Court emphasized multiple times in Hoeber. See id. at 657 (“At trial, the jury
heard conflicting statements about multiple incidents of hand-to-genital contact.”);
id. at 659-60 (noting that the insufficiently specific verdict directors did not require
the jurors to agree as to which of the child’s “conflicting disclosures of abuse
constituted each offense”); see also State v. Escobar, 523 S.W.3d 545, 553 (Mo.
App. W.D. 2017) (finding no reasonable argument that manifest injustice occurred
where there were no substantial conflicts in the evidence regarding the incidents of
abuse).
32 In this matter, the conflicts in the evidence present in Hoeber were simply
not present. Sousley has failed to establish that the jury was reasonably likely to
have returned a different verdict had it been instructed differently on Counts I and
III.
Points three and four are denied.
Points Five & Six
In his fifth and sixth points on appeal, Sousley argues that the motion court
erred in denying postconviction relief because Sousley’s appellate counsel was
unconstitutionally deficient by not attempting to raise plain error claims on direct
appeal regarding the verdict directors for Counts I and III. Sousley contends that
his appellate counsel should have sought plain error review on direct appeal
regarding the same jury unanimity issue that was the subject of Sousley’s third and
fourth points.
The motion court denied relief on Sousley’s claims relating to his appellate
counsel’s conduct with respect to the verdict directors for Counts I and III for the
same reason that the motion court denied relief relating to trial counsel’s conduct.
As with Sousley’s third and fourth points, it is unnecessary to address the motion
court’s conclusion that Celis-Garcia was inapplicable, because we find that
Sousley has failed to establish that it was reasonably likely that his convictions
33 would have been reversed on direct appeal if his appellate counsel had asserted
plain error claims regarding the verdict directors for Counts I and III.
First, whether an appellate court reviews a plain error claim at all is
discretionary. Rule 30.20. Accordingly, the court on appeal would have had to
choose to exercise its discretion to review such claims at all. Additionally, such a
claim would require a reviewing court to determine that the error was evident,
obvious and clear, and that the error resulted in manifest injustice or miscarriage of
justice. State v. Brandolese, 601 S.W.3d 519, 531 (Mo. banc 2020); Rule 30.20.
Such a determination that manifest injustice or miscarriage of justice has resulted
from the asserted error requires an appellant to establish a greater showing of
prejudice to justify reversal than does the Strickland standard. Deck v. State, 68
S.W.3d 418, 427 n.5 (Mo. banc 2002) (“The standard for finding prejudice in the
context of preserved error is lower than the standard for finding error under
Strickland, and both are lower than the plain error standard.”). For an appellant to
establish reversible error on plain error review from an instructional error, the
appellant “must show more than mere prejudice and must show that the trial court
has so misdirected or failed to instruct the jury that it is apparent to the appellate
court that the instructional error affected the jury’s verdict, and caused manifest
injustice or miscarriage of justice. State v. Gannan, 658 S.W.3d 103, 111-112 (Mo.
34 App. W.D. 2022) (internal quotations and brackets omitted). Based on the record
before us, we find no reasonable likelihood that Sousley’s convictions on Counts I
and III would have been reversed had his appellate counsel asserted plain error
claims regarding the verdict directors for Counts I and III.11
Points five and six are denied.
Conclusion
The judgment is affirmed.
Thomas N. Chapman, Judge
All concur.
11 Although we recognize that the Missouri Supreme Court found manifest injustice in Celis- Garcia based on the trial court’s error in failing to provide the jury with sufficiently specific instructions to ensure juror unanimity, Celis-Garcia was a case in which the defense relied on “evidentiary inconsistencies and factual improbabilities respecting each specific allegation of hand-to-genital contact[,]” which the Celis-Garcia Court found “ma[de] it more likely that individual jurors convicted [the defendant] on the basis of different acts.” See Celis-Garcia, 344 S.W.3d at 159. The circumstances present in Celis-Garcia are simply not present in this case.