                                                    In the
                               Missouri Court of Appeals
                                          Western District
 BRANDON ROBERTS,                                         )
                                                          )
                     Appellant,                           )    WD79082
                                                          )
 v.                                                       )    OPINION FILED: October 25, 2016
                                                          )
 STATE OF MISSOURI,                                       )
                                                          )
                    Respondent.                           )

               Appeal from the Circuit Court of Buchanan County, Missouri
                          The Honorable Daniel F. Kellogg, Judge

      Before Division Four: Mark D. Pfeiffer, Chief Judge, Presiding, Victor C. Howard,
                              Judge and Gary D. Witt, Judge


         Brandon Roberts ("Roberts") was convicted after trial of one count of felony1

stealing by deceit, section 570.030,2 and sentenced as a prior and persistent offender to

eight years in prison. Roberts now appeals the denial, after an evidentiary hearing, of his

Rule 29.15 amended motion for post-conviction relief by the Circuit Court of Buchanan




          1
            The Missouri Supreme Court handed down on August 23, 2016 a decision in State v. Bazell, --- S.W.3d --
--, 2016 WL 4444392 (Mo. banc Aug. 23, 2016). In Bazell, the Supreme Court held that based on the language of
the statute there is no felony enhancement for stealing by deceit, and it can only be charged as a misdemeanor. This
issue is not directly relevant to Roberts's appeal, is not before the court, and will not be addressed.
          2
            All statutory references are to RSMo 2000 cumulative as currently supplemented, unless otherwise noted.
County. As relevant to his appeal, Roberts argued in his post-conviction motion that his

trial counsel was ineffective for failing to investigate exculpatory evidence. We affirm.

                                           Factual Background3

A.      Trial

        Roberts was charged and tried for one count of stealing, section 570.030, arising out

of his unlawful receipt of certain benefits from the Missouri Department of Social Services,

Family Support Division (the "Department"). On August 23, 2010, Roberts completed and

submitted an application for benefits with Melissa Smolke ("Smolke"), eligibility specialist

with the Department. Based on the information provided, Roberts was deemed eligible to

receive food stamps, temporary assistance, Medicaid, and child care for his daughter.

        As part of the application process, Smolke reviewed with Roberts his

responsibilities, listed in a packet provided to him, which noted Roberts was required by

law to report any changes to address, income or employment, household members, or

resources within ten days of any change. Smolke discussed with Roberts that it is illegal

to receive benefits to which he is not entitled and that any false claim, statement, or

concealment of a material fact could subject him to criminal liability. In addition, in order

to be eligible to continue to receive benefits, Roberts had to actively reaffirm his

application every six months. Roberts signed the application for benefits under penalty of

perjury.




        3
         The facts are recited in a light most favorable to the verdict. Ferguson v. State, 325 S.W.3d 400, 404 n.2
(Mo. App. W.D. 2010).

                                                         2
      Linda Hayward ("Hayward") was Roberts's Department caseworker. Beginning in

October of 2010, Roberts received temporary assistance benefits of $235 per month and

food stamp benefits of $339 per month. These funds were transferred to Roberts's

Electronic Benefits Transfer (EBT) card issued by the State of Missouri. Roberts received

this amount from October of 2010 through February of 2011, except that in February of

2011 his temporary assistance benefit was reduced to $175 due to Roberts's failure to

complete required training.

      On March 8, 2011, Hayward learned from another member of Roberts's household

that Roberts was employed. Hayward sent an employment request to Roberts for him to

sign and to give to his employer. The employer sent the form back to Hayward with pay

stubs showing that Roberts had been employed from October 1, 2010 to the end of February

2011. It was determined that based on the income Roberts earned during this period that

he was not eligible for temporary assistance or food stamps from October 2010 to February

2011. Hayward had not received any notification from Roberts regarding his change in

employment status prior to being informed by the third-party in March of 2011, despite the

notice given to Roberts when he applied for benefits and three subsequent letters sent to

him on September 22, 2010, October 20, 2010, and January 11, 2011, reminding him that

he must report any changes in employment within ten days of the change.

      At trial, Roberts did not testify or present any evidence. He was convicted of

stealing by deceit through the making of false representations to the Department that he

was unemployed so that he could obtain benefits, to which he was not entitled, in the form

of payments in excess of $500. Roberts was sentenced as a prior and persistent offender

                                            3
to eight years imprisonment to be served consecutively to any other sentences he was

serving. This Court affirmed Roberts's conviction in State v. Roberts, 450 S.W.3d 793

(Mo. App. W.D. 2014).

B.     Post-Conviction Proceedings

       Roberts timely filed his Rule 29.15 motion for post-conviction relief that was

subsequently amended by counsel. As relevant to his appeal, Roberts claimed that his trial

counsel provided ineffective assistance for failing to adequately investigate his case.

Specifically, Roberts claimed that trial counsel failed to investigate (1) whether Roberts

actually reported a household of six rather than a household of two, (2) whether funds were

deposited on Roberts's EBT card or his girlfriend's card, and (3) whether Roberts's

employment verification form was misfiled in his girlfriend's file at the Department.

       An evidentiary hearing was conducted at which Roberts's trial counsel testified.

Roberts provided his own testimony through a deposition. The motion court denied

Roberts's claim that trial counsel was ineffective for failing to investigate his case. The

motion court found credible the testimony of trial counsel and found not credible Roberts's

testimony. This appeal follows.

                                   Standard of Review

               This Court will affirm the judgment of the motion court unless its
       findings and conclusions are clearly erroneous. Rule 29.15(k). The motion
       court's judgment is clearly erroneous only if this Court is left with a definite
       and firm impression that a mistake has been made. The motion court's
       findings are presumed correct. Additionally, a movant bears the burden of
       proving the asserted "claims for relief by a preponderance of the evidence."
       Rule 29.15(f).

Christian v. State, 455 S.W.3d 523, 525–26 (Mo. App. W.D. 2015).

                                              4
                                             Analysis

       In his sole point on appeal, Roberts argues that the motion court erred in denying

his Rule 29.15 motion for post-conviction relief because he established at the evidentiary

hearing that trial counsel provided ineffective assistance by failing to investigate

exculpatory evidence, including (1) whether Roberts actually reported a household of six

rather than a household of two, (2) whether funds were deposited on Roberts's EBT card

or his girlfriend's card, and (3) whether Roberts's employment verification form was

misfiled in his girlfriend's file at the Department.

       In order to establish ineffective assistance of counsel to warrant post-conviction

relief, the movant must satisfy the two-prong test from Strickland v. Washington, 466 U.S.

668, 687 (1984). Woods v. State, 458 S.W.3d 352, 356 (Mo. App. W.D. 2014). First, the

movant must show that counsel's performance was deficient by falling below an objective

standard of reasonableness. Strickland, 466 U.S. at 688. If counsel's performance was

deficient, the movant must then prove that he was prejudiced by counsel's deficiency. Id.

at 687. Prejudice occurs when 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. Id. There is a strong presumption that counsel's conduct was reasonable and

effective. Id. at 689. To overcome this presumption, the movant must point to specific

acts or omissions of counsel that, in light of all the circumstances, fell outside the wide

range of effective assistance. Id. at 690.



                                                5
       "[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary." Prince v. State, 390 S.W.3d

225, 231 (Mo. App. W.D. 2013) (quoting Strickland, 466 U.S. at 691).

       In any ineffectiveness case, a particular decision not to investigate must be
       directly assessed for reasonableness in all the circumstances, applying a
       heavy measure of deference to counsel's judgments. Strickland does not
       require counsel to investigate every conceivable line of mitigating evidence
       no matter how unlikely the effort would be to assist the defendant at
       sentencing.

Id. at 231-32 (internal quotations and citations omitted). "Investigation need only be

adequate under the circumstances" and "[w]hen counsel knows generally the facts that

support a potential defense, 'the need for further investigation may be considerably

diminished or eliminated altogether.'" Williams v. State, 490 S.W.3d 398, 404 (Mo. App.

W.D. 2016) (quoting Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987)).

       "To prevail on a claim of ineffective assistance of counsel for failure to investigate,

a movant is required to allege what information plea counsel failed to discover, that a

reasonable investigation would have resulted in the discovery of such information, and the

information would have aided and improved the defense." Prince, 390 S.W.3d. at 233

(quoting Bliss v. State, 367 S.W.3d 190, 195 (Mo. App. S.D. 2012)).

       Roberts claims in his post-conviction motion that he made three specific requests to

his trial counsel regarding issues to investigate. In his deposition reviewed by the motion

court, Roberts first claimed he was never able to tell his trial counsel what defenses he

believed should be investigated. Subsequently in direct examination, Roberts then claimed

that he indeed had made specific requests regarding defenses he thought should be


                                              6
investigated. The motion court found that Roberts was not credible. This Court defers to

the motion court on matters of witness credibility. Wills v. State, 321 S.W.3d 375, 380

(Mo. App. W.D. 2010). "At a post-conviction relief evidentiary hearing, the motion court

determines the credibility of the witnesses and is free to believe or disbelieve the testimony

of any witness, including that of the Movant." Id. (quoting Hurst v. State, 301 S.W.3d 112,

117 (Mo. App. E.D. 2010)).

          Regarding Roberts's claim that he had requested that trial counsel investigate

whether he had reported a household size of six rather than two to the Department, trial

counsel could not recall whether this issue was ever brought to his attention. The motion

court, as explained above, found that Roberts was not credible and found that there was no

other evidence whatsoever that household size was anything other than two. Evidence at

trial was that Roberts was receiving assistance based on a household size of two.

Accordingly, Roberts has not shown that a reasonable investigation would have discovered

the information that Roberts has alleged and he is not entitled to relief. Prince, 390 S.W.3d.

at 233.

          In addition, unstated anywhere in either his post-conviction motion or in briefing

before the Court is the relevance of this information to the charges against him. We infer,

although it is not argued, the import of this evidence would be that Roberts did in fact

qualify for the benefits he received despite his having earned an income in the relevant

period. Again, we are only left to speculate because the argument is never actually

articulated. Additionally, there was no evidence or testimony whatsoever that Roberts

could have reported a household of six, given he was not married to his girlfriend and the

                                              7
evidence at trial was that she was receiving her own benefits from the Department. Nor

was there evidence presented that had Roberts reported a household size of six that it would

have had any bearing whatsoever on his conviction. This Court will not divine arguments

on Roberts's behalf. Roberts, therefore, has also not alleged how this information he claims

should have been investigated would have aided in his defense, and his claim must fail.

See Prince, 390 S.W.3d. at 233.

       Second, Roberts argues that trial counsel failed to investigate whether the money

Roberts received from the Department was actually placed on his girlfriend's EBT card

rather than his own. Trial counsel testified that he reviewed discovery in the case and that

it showed the funds had been deposited onto Roberts's EBT card. Roberts also told his trial

counsel that he believed his girlfriend was using his EBT card. Given that the evidence in

discovery showed and his own client admitted to him that he did in fact receive the benefits

from the Department, Roberts has not shown that a reasonable investigation would have

discovered the information that Roberts has alleged, and he is not entitled to relief. Prince,

390 S.W.3d. at 233. In addition, trial counsel chose not to pursue the issue of who used

Roberts's EBT card as a matter of strategy, as it was his judgment that Roberts's ceding the

use of his EBT card to his girlfriend could have exposed Roberts to additional criminal

liability. Trial counsel's decision not to pursue this issue was made after a thorough

investigation of the law and facts and is virtually unchallengeable. See McIntosh v. State,

413 S.W.3d 320, 324 (Mo. banc 2013).

       Finally, Roberts argues that trial counsel was ineffective for failing to investigate

whether the Department had misfiled his employment verification form in his girlfriend's

                                              8
file. Roberts told trial counsel he had provided some form to his employer and it was his

belief the employer would change his employment status with the Department. Trial

counsel testified that he investigated this issue with Roberts's employer, and the employer

found no such form in Roberts's employment file. Trial counsel's investigator attempted

to contact a number of employees identified by Roberts who may have had information,

but trial counsel did not recall whether he was ever successful in contacting them. Trial

counsel was, however, able to interview the human resources manager for Roberts's

employer, who stated she was not able to find any such form in Roberts's human resources

file.   Contrary to Roberts's claim, trial counsel did actually conduct a reasonable

investigation into this potential defense but was unable to discover information helpful to

the defense. Roberts's claim that trial counsel failed to investigate this potential defense is

without merit.

        The point is denied.

                                         Conclusion

        The judgment of the motion court is affirmed.



                                           __________________________________
                                           Gary D. Witt, Judge

All concur




                                              9
