JEFFREY A. HILL vs. STATE OF MISSOURI

Movant was charged with second-degree domestic assault, armed criminal action, third

degree assault, and two counts of third-degree domestic assault. In March 2012, a jury found

Movant guilty of second-degree domestic assault, armed criminal action, and third-degree

assault. Movant was found not guilty on two counts of third-degree domestic assault.

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The evidence at trial demonstrated that Movant lived with his sister (“Victim”) and

mother. In the evening of August 13, 2008, Victim called a towing company to remove an

unlicensed truck from her mother’s property. Victim did not know who owned the vehicle, and

it appeared inoperable. When the tow truck driver arrived and began hooking the truck up,

Movant showed up in another vehicle and blocked the tow truck. Movant then got out of his

vehicle and threatened to shoot the tow truck driver if he touched the truck. The unlicensed truck

apparently belonged to Movant or his son.

The tow truck driver informed Movant he needed to talk to the property owner and would

not tow the truck while he did so. Movant, still very agitated, went inside his home, where

Victim was. The tow truck driver then called the police. Movant confronted Victim inside the

house and screamed that he would shoot the tow truck driver. He then hit Victim in the head.

Victim said she was going to call the police, to which Movant responded he was going to “blow

her [f-ing] head off with his pistol.” He then retrieved his gun and came back and pointed the

gun in Victim’s face. Victim fled and called the police. Movant was arrested shortly thereafter,

and during his arrest he was still visibly upset and yelling. At trial the State demonstrated that

Movant’s pistol was missing its cylinder pin, but it could still be fired without one.

The trial court sentenced Movant to nine years’ imprisonment for second-degree

domestic assault, a concurrent nine-year term for armed criminal action, and a concurrent thirty

day term for third-degree assault. Movant filed an appeal challenging the sufficiency of the

evidence supporting his second-degree domestic assault and armed criminal action convictions.

This Court affirmed his convictions in State v. Hill, 408 S.W.3d 820 (Mo. App. E.D. 2013).

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Movant filed a timely pro se motion for post-conviction relief under Rule 29.15.1 An

amended motion was filed untimely by appointed counsel. The motion court determined that the

late amended motion resulted from abandonment by counsel, and therefore deemed the amended

motion as timely filed. See Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991) (“Should the

failure to file a timely amended motion result from inattention of counsel, the court shall permit

the filing.”). Following an evidentiary hearing, the motion court denied Movant’s request for

post-conviction relief. This appeal follows. Testimony from the evidentiary hearing and trial

will be provided as necessary during our analysis.

Relevant Law

Appellate review of a motion court’s denial of post-conviction relief is limited to

determining whether the findings and conclusions of the motion court are clearly erroneous.

Rotellini v. State, 77 S.W.3d 632, 634 (Mo. App. E.D. 2002); Rule 29.15(k). Findings of fact

and conclusions of law are clearly erroneous only if, upon reviewing the record, we are left with

the definite and firm impression a mistake has been made. Soto v. State, 226 S.W.3d 164, 166

(Mo. banc 2007).

“Trial counsel is presumed effective, and the movant has the burden to prove otherwise.”

Jones v. State, 514 S.W.3d 72, 80 (Mo. App. E.D. 2017). When a movant seeks post-conviction

relief claiming ineffective assistance of counsel, he must first establish that his counsel failed to

exercise the customary skill and diligence that a reasonably competent attorney would display

when rendering similar services under similar circumstances, and second that he was prejudiced

thereby. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Evans, 524 S.W.3d

530, 533 (Mo. App. E.D. 2017). To establish prejudice, a movant must demonstrate “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 1 All references to Rules are to Missouri Supreme Court Rules (2016).

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would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

Discussion

Movant argues that his trial counsel was ineffective for three reasons: 1) failing to object

when Victim testified Movant had attacked other family members in the past; 2) failing to argue

before the trial court that the rule of lenity barred his conviction for second-degree domestic

assault; and 3) submitting the incorrect jury instruction for third-degree domestic assault.

I. Prior Bad Acts Testimony

Movant argues Victim’s statement she feared Movant because he had attacked other

members of her family constituted inadmissible evidence of Movant’s prior bad acts. Movant

asserts trial counsel was ineffective because “[n]o reasonable strategy can account for [trial

counsel’s] failure to object and seek a mistrial or curative instruction.” Respondent argues that

trial counsel’s strategy for not objecting to Victim’s challenged statements was not objectively

unreasonable, and also Movant failed to demonstrate he was prejudiced by trial counsel’s

strategy.

During trial, the prosecutor asked Victim if she feared Movant. Victim replied that she

did. The prosecutor asked Victim why she was scared, and Victim replied, “Because [Movant]

attacked other members of my family before.” Movant’s trial counsel did not object to Victim’s

answer. During the evidentiary hearing, trial counsel explained he could not stop Victim from

answering the prosecutor’s question. He admitted that he could have asked the court to order the

jury to disregard Victim’s answer, but he explained that he did not want to draw attention to the

testimony and did not want to appear to be obstructionist to the jury. He testified that he did not

move for a mistrial because he did not believe there was a legal basis for a mistrial.

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We disagree with Movant’s argument that “[n]o reasonable strategy can account for [trial

counsel’s] failure to object and seek a mistrial or curative instruction.” As our Supreme Court

explained in State v. Tokar, “[i]n many instances seasoned trial counsel do not object to

otherwise improper questions or arguments for strategic purposes.” 918 S.W.2d 753, 768 (Mo.

banc 1996). “It is feared that frequent objections irritate the jury and highlight the statements

complained of, resulting in more harm than good.” Id. Trial counsel explained his decision not

to object to Victim’s challenged statement, stating: 1) he did not want to appear obstructionist to

the jury and; 2) he did not want to draw attention to Victim’s statements. Movant did not present

evidence to overcome the presumption that trial counsel’s failure to object was done for strategic

purposes. Accordingly, Movant cannot satisfy the first prong of Strickland. Point I is denied.

II. Rule of Lenity

Movant asserts that trial counsel was ineffective for failing to argue that the rule of lenity

barred his conviction for second-degree domestic assault. Movant contends that “where the

defendant is alleged to have attempted to cause physical injury to a family or household member,

he can be convicted of either second-degree or third-degree domestic assault.”2 Movant argues

that under the rule of lenity he is entitled to the presumption that the legislature intended the act

of attempting to cause physical injury to a family member to be charged as third-degree domestic

assault. Respondent argues that Movant’s claim is meritless because this Court has already

rejected similar arguments based on the rule of lenity.

2 At the time of Movant’s conviction, § 565.073.1(1) RSMo (2000) mandated that a person committed seconddegree domestic assault if he or she “attempts to cause or knowingly causes physical injury to [a] family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation . . . .” Section 565.074.1(1) RSMo (2000) mandated that a person committed thirddegree domestic assault if he or she “attempts to cause or recklessly causes physical injury to [a] family or household member.”

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The rule of lenity mandates that when a criminal statute is ambiguous, all ambiguity must

be resolved in the defendant’s favor. Fainter v. State, 174 S.W.3d 718, 721 (Mo. App. W.D.

2005). Under the rule of lenity, an ambiguous criminal statute is strictly construed against the

government and liberally in favor of the defendant. Id. However, the rule of lenity applies to the

interpretation of statutes only when the court “can make no more than a guess as to what the

legislature intended.” Id.; State v. Rodgers, 396 S.W.3d 398, 403 (Mo. App. W.D. 2013).

Movant concedes that both the Southern District and Western District of this Court have

rejected arguments substantially similar to the claim Movant raises. In State v. Blackburn, the

Southern District determined that § 565.073.1(1)3 was not ambiguous and that it was

unnecessary to apply the rule of lenity to interpret it. 168 S.W.3d 571, 576 (Mo. App. S.D.

2005). After the Southern District decided Blackburn, the defendant sought transfer to the

Missouri Supreme Court, which was denied. In State v. Ondo, the Southern District declined to

reconsider its decision in Blackburn, and determined there was no ambiguity between

§§ 565.073 and 565.074. 232 S.W.3d 622, 630 (Mo. App. S.D. 2007). In 2008, the Western

District also declined to reconsider the Blackburn decision. See State v. Darden, 263 S.W.3d

760, 765 (Mo. App. W.D. 2008). Movant asks us to reconsider Blackburn and its progeny,

which we decline to do. The issue before us is whether trial counsel was ineffective for failing to

raise a legal argument already rejected multiple times by this Court. Movant has not cited to any

case where a court has so held. It is well-settled that trial counsel cannot be ineffective for

failing to raise a non-meritorious objection. See, e.g., Spells v. State, 277 S.W.3d 343, 351 (Mo.

App. W.D. 2009). Given this, Movant has not demonstrated that his trial counsel was ineffective

for failing to object to his conviction for second-degree domestic assault because the rule of

lenity required he be convicted of third-degree domestic assault. Point II is denied. 3 All statutory references are to RSMo (2000) unless otherwise indicated.

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III. Failure to Offer Correct Instruction for Third-Degree Domestic Assault

In his final point, Movant claims that his trial counsel was ineffective for failing to offer

the correct lesser-included third-degree domestic assault instruction. Trial counsel offered an

instruction which asked the jurors to find Movant guilty of third-degree domestic assault if they

determined Movant “purposefully placed [Victim] in apprehension of immediate physical injury

by threatening to blow her head off and pointing a firearm at her face.” Movant argues that trial

counsel should have instead submitted a jury instruction for third-degree domestic assault which

read:

“As to Count I, if you find and believe from the evidence beyond a reasonable doubt . . . the defendant attempted to cause physical injury to [Victim] by threatening her . . . then you will find the defendant guilty of Domestic Assault in the Third Degree.”



Movant contends that his proffered instruction more closely follows the theory of defense at trial,

which was that Movant did not point a gun at Victim, but only cursed at her. Respondent

contends that we should decline to review Movant’s claim because his claim on appeal differs

materially from the claim alleged in his amended motion. Respondent further asserts that even if

we reviewed Movant’s claim it would fail because trial counsel submitted a viable jury

instruction for third-degree domestic assault and Movant cannot demonstrate prejudice.

Regarding whether Movant’s claim is preserved for appeal, Respondent points out that in

his amended motion Movant did not set forth the exact language that trial counsel should have

included in his instruction for third-degree domestic assault. Movant’s argument in his amended

motion was that trial counsel incorrectly based his jury instruction for third-degree domestic

assault off of the fourth element option of MAI-CRD3d 319.76. He argued that trial counsel

should have instead submitted an instruction based off of “MAI-CR3d 319.76 First Element

Option [1](attempted to cause physical injury to [name of victim] by [Describe conduct]).”

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However, Movant did not clarify why trial counsel should have submitted an instruction based

off of “First Element Option [1],” and only asserted without explanation it was the “true lesser

included instruction.”

We agree with Respondent that Movant’s argument on appeal differs from his amended

motion. “In actions under Rule 29.15, any allegations or issues that are not raised in the Rule

29.15 motion are waived on appeal.” McLaughlin v. State, 378 S.W.3d 328, 340 (Mo. banc

2012) (internal quotations omitted). “Pleading defects cannot be remedied by the presentation of

evidence and refinement of a claim on appeal” and there is “no plain error review in appeals

from post-conviction judgments for claims that were not presented in the post-conviction

motion.” Id. Movant did not specify in his amended motion what conduct trial counsel should

have included or excluded in his jury instruction for third-degree domestic assault. Movant’s

argument on appeal that trial counsel should have omitted Movant’s act of pointing a gun at

Victim was not included in his amended motion. Accordingly, Movant’s new argument on

appeal in unreviewable.

Furthermore, even if Movant’s claim were reviewable, it would fail. “The general rule is

that instructional errors are not cognizable in a Rule 29.15 proceeding.” Tilley v. State, 202

S.W.3d 726, 732 (Mo. App. S.D. 2006) (quoting Young v. State, 761 S.W.2d 725, 727 (Mo. App.

1988)). An exception to this general rule arises only if the error reaches the level of a

constitutional error, which is defined as an error “so glaring that it substantially deprives an

accused of the right to a fair trial.” Id. Not only is instructional error generally non-cognizable

in a post-conviction proceeding, it is even less likely to be cognizable where, as here, the

evidence supporting the movant’s conviction was reviewed on direct appeal and found to be

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sufficient to sustain the conviction. See Mangan v. State, 665 S.W.2d 85, 86 (Mo. App. S.D.

1984) (citing Arnold v. State, 632 S.W.2d 54, 55 (Mo. App. E.D. 1982)).

Movant has not demonstrated that counsel’s alleged error reached the level of a

constitutional error. This Court has already determined there was sufficient evidence to support

Movant’s conviction for second-degree domestic assault. State v. Hill, 408 S.W.3d 820, 824

(Mo. App. E.D. 2013). And, we disagree with Movant that his proposed instruction for third

degree domestic assault is more consistent with trial counsel’s strategy than the jury instruction

that trial counsel actually submitted. Although trial counsel argued during closing argument that

Movant did not possess a working pistol, he also argued that Movant did not commit a crime

because his conduct towards Victim was non-physical. Submitting a jury instruction for third

degree domestic assault which would have instructed the jurors to find Movant guilty if he

“attempted to cause physical injury to [Victim] by threatening her” would have been inconsistent

with trial counsel’s argument that Movant’s threatening behavior did not constitute a crime. For

the foregoing reasons, Movant’s point is denied.

The motion court’s denial of post-conviction relief under Rule 29.15 was not clearly erroneous. The judgment of the motion court is affirmed.