                                                    In the
                               Missouri Court of Appeals
                                           Western District
 EDWARD J. FREDERICK,                                     )
                                                          )
                     Appellant,                           )    WD81721
                                                          )
 v.                                                       )    OPINION FILED: August 27, 2019
                                                          )
 STATE OF MISSOURI,                                       )
                                                          )
                    Respondent.                           )

                  Appeal from the Circuit Court of Pettis County, Missouri
                           The Honorable Robert L. Koffman, Judge

Before Division One: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and
                                Alok Ahuja, Judge


         Edward J. Frederick ("Frederick") appeals the motion court's judgment denying his

Rule 29.151 motion for post-conviction relief after an evidentiary hearing. Frederick was

found guilty of one count of first degree statutory sodomy and one count of victim

tampering. Frederick contends that the motion court erred in denying his claim that trial

counsel was ineffective for failing to file a motion to sever other counts of statutory

sodomy, of which Frederick was acquitted. Finding no clear error, we affirm.

         1
          All rule references are to Missouri Court Rules, Volume I—State, 2016, as applicable at the time of
Frederick's motion, unless otherwise indicated.
                            Factual and Procedural Background

       Frederick was charged with four counts of statutory sodomy in the first degree and

one count of victim tampering. Three of the statutory sodomy counts related to victim

M.A.Y., while one of the statutory sodomy counts related to victim S.Y. The victim

tampering count related to both M.A.Y. and S.Y.

       Frederick was tried by jury. Frederick was convicted of the count of statutory

sodomy in the first degree related to S.Y., and of the count of victim tampering related to

both M.A.Y. and S.Y. Frederick was acquitted of the three counts of statutory sodomy in

the first degree related to M.A.Y. Frederick was sentenced to 20 years' imprisonment for

statutory sodomy in the first degree and two years' imprisonment for victim tampering, to

be served concurrently. Frederick's conviction was affirmed on direct appeal in a per

curiam order. State v. Frederick, 495 S.W.3d 831 (Mo. App. W.D. 2016). Frederick timely

filed a pro se Rule 29.15 motion. Appointed counsel filed an amended motion ("Motion").

The Motion claimed that Frederick received ineffective assistance of counsel because trial

counsel failed to file a motion to sever the statutory sodomy charges related to M.A.Y.

from the charge related to S.Y. The motion court denied the Motion after an evidentiary

hearing ("Judgment").

       Frederick appeals.

                                   Standard of Review

       A motion court's ruling on a post-conviction motion is presumed correct.

McLaughlin v. State, 378 S.W.3d 328, 336-37 (Mo. banc 2012). "A motion court's

judgment will be overturned only when its findings of fact or conclusions of law are clearly

                                             2
erroneous." Id.; Rule 29.15(k). To be clearly erroneous, we must be left with a "definite

and firm impression that a mistake has been made." McLaughlin, 378 S.W.3d at 336-37.

                                          Analysis

       Frederick raises one point on appeal. Frederick argues that the motion court clearly

erred when it denied his claim that trial counsel provided ineffective assistance for failing

to file a motion to sever the three statutory sodomy offenses related to M.A.Y. from the

single statutory sodomy offense related to S.Y.

       To establish a claim of ineffective assistance of counsel, Frederick was required to

show by preponderance of the evidence that (1) trial counsel failed to exercise the

customary level of skill and diligence of a reasonably competent attorney and (2) that he

was prejudiced by that failure. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008). "Trial counsel is presumed to be

effective, and [Frederick] bears a heavy burden to overcome this presumption." Fonville

v. State, 563 S.W.3d 794, 800 (Mo. App. W.D. 2018). "To overcome this presumption,

[Frederick] must point to specific acts or omissions of counsel that, in light of all the

circumstances, fell outside the wide range of professional competent assistance." Strong,

263 S.W.3d at 642 (internal quotes omitted). "Trial strategy decisions may only serve as a

basis for ineffective counsel if they are unreasonable." Id. "The choice of one reasonable

trial strategy over another is not ineffective assistance." Id. "[S]trategic choices made after

a thorough investigation of the law and the facts relevant to plausible opinions are virtually

unchallengeable." Id.



                                              3
         Frederick asserts that trial counsel's strategy was "objectively unreasonable" and

that had trial counsel filed a motion to sever it would have been granted. We disagree.

         During the evidentiary hearing on Frederick's Motion, trial counsel testified that he

discussed with Frederick whether to file a motion to sever offenses relating to M.A.Y. from

those relating to S.Y.           Trial counsel testified that this discussion occurred "as trial

approached." Trial counsel testified to two strategic reasons for not filing a motion to

sever. First, trial counsel testified that he did not file a motion to sever the charges relating

to M.A.Y. from those relating to S.Y. because M.A.Y.'s testimony was so "outlandish" that

"a jury might have trouble finding beyond a reasonable doubt [] [M.A.Y.'s] . . . statements,"

and "with [M.A.Y.'s] story being so outlandish, [we thought] that it would result in acquittal

to both children's cases." Trial counsel testified that he reasoned that if "the jury didn't

believe [M.A.Y.], which they didn't, that that might help us get an acquittal on [S.Y.]."

         The motion court found that Frederick's trial strategy was "reasonable and worked

in part." On this basis alone, the motion court did not clearly err in finding that trial

counsel's strategy was reasonable. "A decision by counsel, after thorough investigation,

not to seek severance of a count upon which the evidence appears weak is well within the

range of practical choices not to be second-guessed in a post-conviction proceeding."

Choate v. State, 762 S.W.2d 87, 90 (Mo. App. S.D. 1988).2


         2
          Frederick further argues that trial counsel's strategy was objectively unreasonable because "counsel did not
argue for why the jury should acquit Mr. Frederick of the allegations made by S.Y. if they disbelieve[d] the
allegations made by M.A.Y." [Appellant's Brief, p. 12]. We disagree. Trial counsel effectively cross-examined
M.A.Y. and S.Y. by adducing contradictions in their testimony. During cross-examination of M.A.Y., trial counsel
adduced testimony from M.A.Y. that she had not discussed Frederick's alleged criminal behavior with S.Y. before
Frederick's arrest. However, during cross-examination of S.Y., trial counsel adduced testimony that S.Y. had talked
to M.A.Y. about Frederick's criminal conduct. Trial counsel then argued in closing that S.Y. and M.A.Y. were
sisters and that "the girls said they didn't talk about this stuff ahead of time, but that's a little suspicious."

                                                          4
         Trial counsel also offered a second reason for not filing a motion to sever the

offenses. Trial counsel testified that he believed it was "extremely unlikely" that the trial

court would sever the sodomy counts related to M.A.Y. from those related to S.Y. in part

because Frederick also faced a count for victim tampering, which related to a threat made

to both M.A.Y. and S.Y.3 We agree that it is extremely unlikely the trial court would have

granted a motion to sever.

         In ruling on a motion to sever offenses, trial courts are guided by Rule 24.07. In

addition to other requirements not at issue here, Rule 24.07 permits a trial court to order an

offense be tried separately when "a party makes a particularized showing of substantial

prejudice if the offense is not tried separately." Rule 24.07(b). "Substantial prejudice"

means "a bias or discrimination against the defendant or the state which is actually existing

or real and not one which is merely imaginary, illusionary or nominal." Section 545.885.2.4

Absent a particularized showing of "substantial prejudice," a trial court does not abuse its

discretion in denying a motion to sever. State v. Durbin, 835 S.W.2d 323, 326 (Mo. App.

E.D. 1992).

         Frederick argues that he faced substantial prejudice by evidence that would

otherwise have been inadmissible had the offenses been severed. Specifically, Frederick



         3
           Frederick acknowledges that had trial counsel filed a successful motion to sever offenses that this would
likely have resulted in Frederick facing an additional victim tampering count in the separate proceeding. Frederick
argues though that the additional charge "would be of little concern to any reasonable person when they are facing
four counts of statutory sodomy in the first degree." [Appellant's Brief, p. 13]. We will not find trial counsel's
strategy unreasonable when it likely avoided the filing of additional charges against Frederick. See Church v. State,
928 S.W.2d 385, 388 (Mo. App. S.D. 1996) (finding there was no ineffective assistance when movant avoided three
additional charges because of plea counsel's assistance).
         4
           All statutory references are to RSMo 2000, as supplemented through date of Frederick's offenses, unless
otherwise indicated.

                                                          5
asserts that he faced the "most" prejudice from M.A.Y.'s testimony regarding inculpatory

statements made by Frederick.5 Frederick essentially argues that the jury was unable to

ignore M.A.Y.'s prejudicial testimony about these statements in applying the law to the

separate offenses involving S.Y.

         But plainly the jury was able to distinguish the evidence relating to the separate

offenses because Frederick was acquitted of the three statutory sodomy counts relating to

M.A.Y. Thus, Frederick's argument is nonsensical, as the "most" prejudicial evidence he

identifies is plainly evidence the jury did not believe. Frederick has not established,

therefore, substantial prejudice that would have supported granting a Rule 27.07 motion to

sever. See Durbin, 835 S.W.2d at 327 (Mo. App. E.D. 1992) (holding there was no

prejudice to support a motion to sever offenses when the facts in the record clearly

established acts of a similar character; the evidence was not complex; separate instructions

and converse instructions were issued to the jury on five counts; and separate verdicts were

reached including an acquittal of the defendant of one count of burglary); see also State v.

Tolen, 304 S.W.3d 229, 236 (Mo. App. E.D. 2009); State v. Childers, 801 S.W.2d 442, 447

(Mo. App. E.D. 1990). Trial counsel correctly and reasonably assessed that it was

"extremely unlikely" a motion to sever the statutory sodomy offenses would have been

granted.6


         5
              Frederick argues "[t]he most prejudicial evidence, other than the alleged victim's testimony and S.Y.'s
physical evidence, is M.A.Y.'s testimony that Mr. Frederick, while still drunk from the night before, called M.A.Y.
'a little bitch' and told her to 'suck his dick'." [Appellant's Brief, p. 13].
            6
              This conclusion is bolstered by the fact that even had trial counsel filed a successful motion to sever the
statutory sodomy offenses related to M.A.Y. from those related to S.Y., evidence relating to both victims would
likely have been admissible during the separate prosecutions. Article I, section 18(c) provides that "in prosecutions
for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts,
whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or

                                                           6
         Because trial counsel had a reasonable trial strategy for not filing a motion to sever,

Frederick has not sustained his burden to establish deficient performance of counsel. As a

result, we need not address the Strickland prejudice prong.

         The motion court did not clearly err in denying Frederick's claim of ineffective

assistance of counsel.

         Point denied.

                                                   Conclusion

         We affirm the motion court's Judgment denying Frederick's Rule 29.15 post-

conviction motion.



                                                      __________________________________
                                                      Cynthia L. Martin, Judge


All concur




demonstrating the defendant's propensity to commit the crime with which he or she is presently charged." There is
no ineffective assistance for failure to file a motion to sever offenses when the same evidence would be admissible
in the separate proceedings. State v. Phillips, 914 S.W.2d 833, 835 (Mo. App. E.D. 1996) (evidence of another
crime admissible in separate proceedings under common scheme or plan exception); State v. Davis, 825 S.W.2d 948,
953-54 (Mo. App. E.D. 1992); Lytle v. State, 762 S.W.2d 830, 836 (Mo. App. W.D. 1988) ("If the evidence of the
other crimes would have been admissible at a separate trial, the defendant is not prejudiced by a failure to sever.").
          Frederick argues this is not the case, because the State's evidence supporting the statutory sodomy counts
relating to M.A.Y. would not have been admissible during a trial relating to SY because the "probative value would
be substantially outweighed by its prejudicial value." However, we believe that highly unlikely given the facts in
this case.

                                                          7
