Paxton v. State

209 S.W.3d 547, 2006 WL 3784818
CourtMissouri Court of Appeals
DecidedDecember 27, 2006
DocketNo. 27659
StatusPublished
Cited by1 cases

This text of 209 S.W.3d 547 (Paxton 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
Paxton v. State, 209 S.W.3d 547, 2006 WL 3784818 (Mo. Ct. App. 2006).

Opinion

GARY W. LYNCH, Judge.

Richard Paxton (“Movant”) appeals the denial of his Rule 29.151 motion for post-conviction relief following his conviction by a jury of child molestation in the first degree (§ 566.067.2), for which he was sentenced to twenty years’ imprisonment.2 Movant alleges that his trial counsel was ineffective in failing to question a trial witness about the witness’ extrajudicial statements describing a statement made by the victim and, assuming his denial in making such statements, in failing to call three witnesses to impeach him. Finding no clear error by the motion court in denying this motion, we affirm.

1) Factual and Procedural Background

We affirmed Movant’s conviction on his direct appeal. See State v. Paxton, 140 S.W.3d 226 (Mo.App.2004). In describing the factual background necessary to dispose of this post-conviction motion, we borrow freely from our opinion on the direct appeal without any further attribution.

On the weekend of May 18-19, 2002, H.T. (“Victim”), age six, and her half-sister, S.T., were staying at the home of S.T.’s paternal grandmother (“Grandmother”). At that time, Grandmother lived in a trailer with M.B. (“Marty”), her boyfriend, and F.G. (“Frank”), her roommate and coworker. Occasionally C.G., a teenager with family problems, would also stay at that trailer.

Movant, who also worked with Grandmother and Frank, visited the trailer on Saturday, May 18, 2002, and drank alcohol throughout the day. That evening, Grandmother put Victim and S.T. to bed on a fold-out bed in the living room. Grandmother and Marty went to bed in Grandmother’s room, and C.G. slept on a couch in the living room. When Frank was preparing for bed, he told Movant to spend the night at the trailer because Movant was intoxicated and should not be driving. Frank then retired to his own bedroom for the evening.

At some point in the evening, S.T. woke up and climbed onto the sofa with C.G. Early the next morning, Frank woke up and went into the kitchen to make coffee. As he passed the living room, Frank noticed that S.T. was on the sofa with C.G., and Movant was on the fold-out bed with Victim. Frank prepared the coffee, smoked a cigarette, and returned to his bed.

When Frank woke up later, Grandmother asked him where Movant was. Frank saw that Movant was no longer on the fold-out bed and told Grandmother that Movant must have left the trailer. That afternoon, Grandmother took Marty to work. While she was gone, M.D. (“Mother”), Victim’s and S.T.’s mother, and her husband arrived at the trailer to pick up the girls. Inside the trailer, according to Mother’s trial testimony, Victim told Mother and her husband that someone had pulled down her panties and touched her private parts; however, Victim was unable [549]*549to remember his name. Mother started naming people who had been at the trailer the night before, and when she mentioned Movant’s name, Victim said that was the man. This conversation took place in the living room. Frank, the only other occupant of the trailer at this time, was sitting in the kitchen. Following Mother’s report to the police of these events, Movant was arrested, incarcerated, and charged with child molestation.

The next day, a Monday, Frank reported for work. Movant, being incarcerated, did not. Lois Stenblom, Movant’s supervisor at work, inquired of Frank as to Mov-ant’s absence. In response, Frank related the events of the preceding day to her and another co-worker, Richard Fortune, who was also Stenblom’s living partner. According to Stenblom and Fortune, Frank related to them that:

[W]hen the mother came to pick up the little girl, she told her that someone had touched her. And the little girl’s response was Marty did it. And the mother replied, “You don’t mean Marty? That’s grandma’s boyfriend.” And then he said that’s all that he heard, and she took the little girl out.

During the following month, assistant public defender Cristie Meadows represented Movant before and during his preliminary hearing on the charge. Within one or two days following the preliminary hearing, Meadows dictated a memo to her file regarding the preliminary hearing and made the following note, among others:

One of [Movant’s] co-workers named Frank supposedly overheard [Victim] talking with [Grandmother] and she told [Grandmother] that Marty had touched her. Marty is grandma’s boyfriend. [Grandmother] said to [Victim], “now that’s grandma’s boyfriend. He wouldn’t do something like that.” Frank was at the prelim [sic] and told me this beforehand.

Following the preliminary hearing, assistant public defender Michelle Tobin was assigned to represent Movant in preparation for and through trial on the charge. Before trial, Tobin became aware of and talked to Stenblom and Fortune about their potential testimony regarding the alleged statement made by Frank and their availability to testify at trial. Tobin was also aware of the contents of Meadows’ memo and the alleged statement made by Frank to Meadows.

At the trial, Frank testified that he could only partially hear what was being said in the living room. His description for the jury of what he overheard was as follows:

I was sitting in the kitchen. I’m hard of hearing in my left ear. I was in the kitchen. I was drinking. Everything was fine, and then when they came in and [Victim] was there, they were sitting on the couch and [Victim] started proceeding to say this person was pulling down her pants and things like that, and I just got really distraught. I said “Oh, my God, what’s going on here,” and I heard Marty’s name mentioned twice, Marty, Marty. I was so distraught. What it was is Marty’s friend, and they came in the kitchen just all over me, and I was so distraught. I mean I couldn’t even think of [Movant’s] name, and they said “The guy that was sitting in that chair by the patio,”, or who was in the kitchen where [Movant] was sitting by the patio door, and I was on this — on the same chair, and I — [Movant], the one with the earring in his — in his eye and ear — well, an earring, an earring in this eye, what do you call them?

During cross examination, the following exchange occurred between Frank and Movant’s trial counsel:

[550]*550Q: And, you heard Marty’s name mentioned twice—
A: —twice, but came out to be it was Marty’s friend.
Q: Right, that’s the conclusion you got to, but when you were hearing that conversation and getting upset, you heard the name Marty twice, correct?
A: Yes.

Movant’s trial counsel made a conscious, strategic decision not to ask Frank on his cross examination about the statements he allegedly made to Stenblom, Fortune, and Meadows.

Following his conviction by the jury and affirmance of that conviction on direct appeal, Movant filed his pro se motion for post-conviction relief. Counsel was appointed and filed an amended motion. The amended motion alleged that Movant was denied effective assistance of trial counsel because reasonably competent counsel would have asked Frank about the statement he made to Stenblom and Fortune and the statement he made to Meadows, and if he denied either one, then called that witness to testify at trial.

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Related

State v. Ingalsbe
557 S.W.3d 515 (Missouri Court of Appeals, 2018)

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Bluebook (online)
209 S.W.3d 547, 2006 WL 3784818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paxton-v-state-moctapp-2006.