Raymond Ordoukhanian v. State of Missouri

• Court: Missouri Court of Appeals
• Decided: October 15, 2024
• Docket: ED111752
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION ONE

RAYMOND ORDOUKHANIAN, ) No. ED111752 ) Appellant, ) Appeal from the Circuit Court ) of Lincoln County v. ) Cause No. 17L6-CC00144 ) STATE OF MISSOURI, ) Honorable Thomas J. Frawley ) Respondent. ) Filed: October 15, 2024

Introduction

Raymond Ordoukhanian (“Movant”) appeals from the motion court’s denial of his pro se

Rule 29.15 motion for post-conviction relief. 1 He argues the motion court clearly erred in

denying his pro se motion because trial counsel was ineffective for agreeing to a stipulation

regarding DNA evidence, failing to object to expert witness testimony for lack of foundation and

as speculative, and failing to object to Victim’s testimony about uncharged bad acts. 2 We affirm

the judgment of the motion court.

Background

Facts

1 All Rule references are to the Missouri Supreme Court Rules (2017), unless otherwise indicated. 2 The personal identifying information of Victim and witnesses has been omitted pursuant to RSMo § 509.520 (Supp. 2023). 1 In 2014, Movant lived with his wife (Mother) and her two children, Victim and a male

minor. In May 2014, Victim and Mother went to an urgent care facility because Victim had a

sore throat. In the course of her treatment there, Victim was asked if she was pregnant or

sexually active, which caused her to appear nervous. Victim then told Mother and the medical

staff that Movant had sexually abused her for “a long time” and that she was abused the previous

night. Victim stated Movant had raped Victim multiple times. Later, at trial, Victim also

disclosed that Movant forced Victim to perform oral sex on Movant.

Nurse practitioner C.C. performed a SAFE exam on Victim, which came back normal. At

trial, before explaining her examination of Victim, C.C. testified that “in ninety to ninety-five

percent of the [SAFE] exams I conduct, we don’t find any type of permanent injury or scarring.”

C.C. further explained that “approximately ninety to ninety-five percent of the exams I do are

normal. And that’s a statistic that is generally held within the medical community, medical

literature.” Finally, C.C. reiterated that in 90 to 95 percent of cases, a SAFE exam will come back

normal, which means the exam did not reveal any trace evidence of sexual abuse.

After Victim disclosed the abuse, police searched Victim’s home and seized a comforter

from her bed. Laboratory testing revealed the presence of Movant’s semen on the comforter.

Movant testified at trial that he masturbated with the comforter nearby and that was how his semen

was present on the comforter. The State and Movant stipulated that Movant’s semen was detected

on Victim’s comforter and that this was confirmed in a lab report.

The jury found Movant guilty of statutory rape in the first degree, and the trial court

sentenced him to life in prison.

Procedural History

2 Movant directly appealed his conviction to this Court, and this Court affirmed his

conviction in an unpublished order and memorandum. State v. Ordoukhanian, 564 S.W.3d 421,

422 (Mo. App. E.D. 2018). On November 14, 2017, Movant prematurely filed his Rule 29.15

motion for post-conviction relief. 3 The motion court then appointed counsel to represent Movant

in the post-conviction proceedings. In 2019, counsel filed a Rule 29.15 amended motion after the

direct appeal was complete.

In July 2021, Movant filed a motion to dismiss counsel and to proceed on his pro se

motion for post-conviction relief. The motion court granted Movant’s motion and scheduled an

evidentiary hearing.

In November 2022, the motion court held an evidentiary hearing on the claims in Movant’s

pro se motion. The pro se motion alleged:

(1) ineffective counsel – counsel did not remove juror which he had a known conflict with; (2) prosecutor did not provide evidence to defense expert, instead violated a court order. Also broke chain of custody by not sending it to crime lab.; (3) ineffective counsel – evidence was hidden from jury in the possession of defense counsel; (4) collusion between P.A., A.P.A., and counsel; and (5) ineffective counsel – never called back [Victim], main witness.

Movant’s trial counsel testified at the evidentiary hearing. Regarding Victim’s comforter

and the stipulation with the State, trial counsel testified, “We wanted to limit the amount of times

that we talked about the semen on the comforter as . . . often as we could. So I was limiting the

amount of times that was referenced.” Trial counsel further explained that he wanted to stay as far

as possible from that evidence, and the stipulation was “100 percent” a strategic decision. Trial

counsel estimated that the stipulation reduced what would have been about 250 pages of testimony

about the presence of semen on the comforter to a single paragraph.

3 A motion filed prematurely is considered filed on the date the mandate of the appellate court issues affirming the judgment or sentence. Rule 29.15(b). 3 Movant’s trial counsel also addressed Victim’s testimony that Movant forced Victim to

perform oral sex on Movant, which Victim disclosed for the first time at trial. Trial counsel did

not object to this testimony because an objection would have drawn more attention to it. Trial

counsel explained that “drawing attention to it is a bad thing. You have a jury that’s going to pay

attention to those things, trying to decide whether or not [Movant] did something. The more I draw

attention to an additional thing that she’s talking about, the worse it’s going to be for [Movant].”

Following the evidentiary hearing, the motion court denied Movant’s pro se Rule 29.15

motion. The motion court concluded that Movant failed to allege or establish facts which, if true,

would entitle Movant to relief. The motion court also found that Movant was not prejudiced.

Movant now appeals.

Analysis

Standard of Review

Our review of the denial of a Rule 29.15 motion is limited to a determination of whether

the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k);

Manley v. State, 488 S.W.3d 145, 146 (Mo. App. E.D. 2016). The motion court’s findings and

conclusions are clearly erroneous only if, after reviewing the entire record, we are left with a

definite and firm impression that a mistake has been made. Manley, 488 S.W.3d at 146-47.

General Law

To establish ineffective assistance of counsel, a movant must show by a preponderance of

the evidence that (1) trial counsel failed to exercise the level of skill and diligence that reasonably

competent counsel would exercise in a similar situation; and (2) movant was thereby prejudiced.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Manley, 488 S.W.3d at 147. To satisfy the

performance prong, a movant “must overcome a strong presumption that counsel’s conduct was

4 reasonable” by pointing to “specific acts or omissions of counsel that, in light of all the

circumstances, fell outside the wide range of professional competent assistance.” Manley, 488

S.W.3d at 147. To satisfy the prejudice prong, a movant must show a reasonable probability that,

but for counsel’s errors, the outcome of the trial would have been different. Id. If the movant fails

to satisfy either the performance prong or the prejudice prong of the Strickland test, his claim fails,

and we need not address the other prong. Id.

“Defense counsel has wide discretion in determining what strategy to use in defending his

or her client.” Worthington v. State, 166 S.W.3d 566, 578 (Mo. banc 2005). “Trial strategy

decisions may be a basis for finding ineffective assistance of counsel only if that decision was

unreasonable.” Watson v. State, 520 S.W.3d 423, 435 (Mo. banc 2017). “Reasonable choices of

trial strategy, no matter how ill[-]fated they appear in hindsight, cannot serve as a basis for a claim

of ineffective assistance.” Worthington, 166 S.W.3d at 573 (quoting Cole v. State, 152 S.W.3d

267, 270 (Mo. banc 2004)).

Point I

In his first point, Movant argues the motion court clearly erred in denying his pro se

motion because trial counsel was ineffective for agreeing to the stipulation regarding DNA

evidence.

As a preliminary matter, Movant’s pro se motion did not mention the stipulation or allege

any specific facts about counsel’s decision to stipulate to the DNA evidence. Movant points to

his allegations that the prosecuting attorney and his counsel colluded, and that his counsel hid

evidence from the jury.

As Movant acknowledges, a pro se litigant is held to the same standards as a licensed

attorney. Bittick v. State, 105 S.W.3d 498, 504-05 (Mo. App. W.D. 2003). In a post-conviction

5 relief case, a movant, regardless whether he is acting pro se or is represented by counsel, must

allege sufficient facts to establish a claim that counsel was ineffective. Morrow v. State, 21

S.W.3d 819, 823 (Mo. banc 2000). “Courts will not draw factual inferences or implications in a

Rule 29.15 motion from bare conclusions or from a prayer for relief.” Id. at 822. The factual

pleading requirements are not merely technicalities since the purpose of the factual pleading “is

to provide the motion court with allegations sufficient to enable the court to decide whether relief

is warranted.” Id. at 824. “Where the pleadings consist only of bare assertions and conclusions, a

motion court cannot meaningfully apply the Strickland standard for ineffective assistance of

counsel.” Id. Finally, “pleading defects cannot be remedied by the presentation of evidence and

refinement of a claim on appeal.” Johnson v. State, 333 S.W.3d 459, 471 (Mo. banc 2011).

In his pro se motion, Movant pleaded “collusion between P.A., A.P.A., and counsel.” In

support of that allegation, Movant argued that the prosecutor, assistant prosecutor, and trial

counsel lied to Movant by claiming the medical examiner was not available to testify.

These allegations are substantially different from Movant’s Point I on appeal and do not

raise the issue that trial counsel was ineffective for agreeing to the stipulation regarding DNA

evidence. Therefore, Movant’s Point I is waived. Shockley v. State, 579 S.W.3d 881, 899 (Mo.

banc 2019) (“In actions under Rule 29.15, any allegations or issues that are not raised in the Rule

29.15 motion are waived on appeal.”).

If we were to address the point, we would find that the stipulation amounted to

reasonable trial strategy. During the evidentiary hearing, Movant’s trial counsel testified that his

strategy was to limit the evidence regarding Movant’s semen on Victim’s comforter. Admitting

damaging facts to minimize their prejudicial effect is a reasonable trial strategy. See, e.g.,

Williams v. State, 524 S.W.3d 553, 561 (Mo. App. W.D. 2017). Trial counsel’s use of a

6 stipulation in favor of the movant’s defense theory also can be considered a matter of reasonable

trial strategy. See State v. Collier, 892 S.W.2d 686, 693-94 (Mo. App. W.D. 1994).

In addition, Movant suffered no prejudice. Movant was not prejudiced by a stipulation to

which he agreed. Id. at 693. Also, Movant testified at trial and admitted his semen was on the

comforter. “Generally, prejudice does not exist when the objectionable evidence is merely

cumulative of other evidence that was admitted without objection and that sufficiently

establishes essentially the same facts.” State v. Shade, 657 S.W.3d 282, 294 (Mo. App. W.D.

2022); see also Lusk v. State, 655 S.W.3d 230, 238 (Mo. App. E.D. 2022) (“Counsel’s failure to

object to cumulative evidence, even where the trial court would have sustained the objection,

does not result in prejudice.”). Movant’s admission renders the stipulation that his semen was on

the comforter merely cumulative.

Point I is denied.

Point II

In his second point, Movant argues the motion court clearly erred in denying his pro se

motion because trial counsel was ineffective for failing to object to nurse practitioner C.C.’s

testimony that 90 to 95 percent of sexual abuse exams are normal. Movant argues the testimony

lacked a proper foundation and was speculative.

By contrast, in his pro se motion, Movant alleged:

Medical examiner states “trace evidence led to the victim.” Her report has no trace evidence, DNA, nothing. On the contrary all physical, psychological, hymen intact, no trace, all well. Only witness testimony led to victim and that is questionable since original nurse lied. This one statement was very damaging and confusing to jury as none existed on [Victim]. This was perjury from an expert contrary to her own report. Counsel did nothing.

Movant then broadly cited C.C.’s trial testimony.

7 First, whether Movant’s claim refers to the testimony of the medical examiner or of C.C.

is unclear. Second, even if Movant’s claim may reasonably be interpreted to be that C.C. should

have been impeached with her report, that claim is entirely different from Movant’s Point II on

appeal, which alleges that counsel should have objected to C.C.’s expert testimony as lacking

foundation and speculative. Movant did not preserve this issue in his pro se motion, and it is

waived on appeal. Shockley, 579 S.W.3d at 899.

Were we to review this claim, we would conclude that counsel was not ineffective for

failing to object to C.C.’s testimony. Contrary to Movant’s argument, C.C.’s testimony was not

expert testimony and any objection to lack of foundation or speculation would have been meritless.

“Counsel will not be deemed ineffective for failing to make nonmeritorious objections.” Hosier v.

State, 593 S.W.3d 75, 92 (Mo. banc 2019).

From her personal experience conducting SAFE exams, C.C. testified that 90 to 95 percent

of exams come back normal. “[A] witness who personally observed events may testify to his matter

of fact comprehension of what he has seen in a descriptive manner which is actually a conclusion,

opinion or inference, if the inference is common and accords with the ordinary experiences of

everyday life.” State v. Sander, 682 S.W.3d 85, 96–97 (Mo. App. W.D. 2023) (quoting State v.

Davidson, 242 S.W.3d 409, 414 (Mo. App. E.D. 2007)). To the extent C.C.’s testimony may be

characterized as a lay opinion, a witness may testify to her opinion if she “possesses knowledge

that the jury does not and that would help the jury to determine a disputed issue.” Davidson, 242

S.W.3d at 413.

Point II is denied.

Point III

8 In his third point, Movant argues the motion court clearly erred in denying his pro se

motion because trial counsel was ineffective for failing to object to Victim’s testimony about the

uncharged bad act of oral sodomy.

Again, Movant failed to raise this issue in his pro se motion. Instead, Movant challenged

the credibility of Victim for failing to disclose the oral sodomy before trial, and did not raise any

issue regarding improper propensity evidence. Thus, Movant’s Point III is waived. Shockley, 579

S.W.3d at 899.

If we were to consider this claim, we would conclude that counsel was not ineffective for

failing to object to Victim’s testimony. Opting not to object was reasonable trial strategy, and

any objection would have been meritless.

“To prevail on a claim of ineffective assistance of counsel for failure to object to

evidence, [Movant] bears the burden of proving, among other things, that the failure to object

was not strategic and was prejudicial.” Blade v. State, 685 S.W.3d 633, 638 (Mo. App. S.D.

2024) (quoting Tucker v. State, 633 S.W.3d 539, 542 (Mo. App. S.D. 2021)). “If a failure to

object to a statement is based on reasonable trial strategy, then no ineffective assistance of

counsel can be shown.” Id. (quoting Chaney v. State, 73 S.W.3d 843, 851 (Mo. App. S.D.

2002)). Deciding not to object can be a reasonable trial strategy because an objection may

highlight the issue to the jury and result in more prejudice to the defendant. See Barton v. State,

432 S.W.3d 741, 754-55 (Mo. banc 2014).

During the evidentiary hearing, Movant’s trial counsel made abundantly clear that he

purposefully did not object to Victim’s allegation of oral sodomy in order to avoid drawing

attention to it. Movant has failed to establish that trial counsel’s decision was not reasonable trial

strategy. See Barton, 432 S.W.3d at 754-55; Blade, 685 S.W.3d at 638.

9 Alternatively, an objection to improper propensity evidence would have been meritless.

The Missouri constitution allows for the admission, in prosecutions of child sex offenses, of

“relevant evidence of prior criminal acts, whether charged or uncharged . . . for the purpose of

corroborating the victim’s testimony or demonstrating the defendant’s propensity to commit the

crime with which he or she is presently charged.” State v. Robertson, 674 S.W.3d 153, 164 (Mo.

App. E.D. 2023); Mo. Const. art. I, § 18(c). A court may exclude this evidence “if the probative

value is substantially outweighed by the danger of unfair prejudice.” Robertson, 674 S.W.3d at

164 (quoting Mo. Const. art. I, § 18(c)).

The State’s question that elicited Victim’s answer about oral sodomy was at the end of a

line of questioning about how Movant had previously raped Victim and was not directly focused

on the uncharged act of oral sodomy. As the State points out, the testimony established ongoing

crimes involving the same victim in the same timeframe as the charged offense and tended to

prove Movant’s propensity to commit the charged crime. Thus, the evidence was probative of

Movant’s propensity to commit acts of sexual abuse against Victim. See, e.g., State v. Williams,

548 S.W.3d 275, 289 (Mo. banc 2018) (finding evidence of prior criminal acts probative of

charged acts when they are highly similar and close in time). The testimony was brief, was

elicited from a single witness, and did not overshadow the evidence of the charged crime. See,

e.g., State v. Shepard, 662 S.W.3d 761, 771 (Mo. App. E.D. 2023). Thus, the evidence was

relevant to prove Movant’s criminal propensity and to corroborate the victim’s testimony, and

was not unduly prejudicial.

Point III is denied.

Conclusion

We affirm the judgment of the motion court.

10 Cristian M. Stevens, J.

James M. Dowd, P.J., and Angela T. Quigless, J., concur.