               SUPREME COURT OF MISSOURI
                                         en banc
EDWARD L. HOEBER,                           )
                                            )
                       Appellant,           )
                                            )
v.                                          )     No. SC95079
                                            )
STATE OF MISSOURI,                          )
                                            )
                       Respondent.          )

         APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                   The Honorable Daniel F. Kellogg, Judge

                                Opinion issued May 3, 2016

         Edward L. Hoeber was convicted of two counts of statutory sodomy in the first

degree, section 566.062. 1 Mr. Hoeber subsequently filed a Rule 29.15 motion for post-

conviction relief alleging that his trial counsel was ineffective for failing to object to

verdict directors that violated his constitutional right to a unanimous jury verdict and for

failing to hire an expert to testify at the sentencing hearing. The motion court concluded

that trial counsel’s failure to object to the verdict directors did not prejudice Mr. Hoeber

because no risk existed that the jurors were misled about which incident of abuse applied

to each particular count of statutory sodomy. The motion court further concluded that

trial counsel was not ineffective for failing to hire an expert to testify at Mr. Hoeber’s



1
    Unless otherwise noted, all statutory citations are to RSMo Supp. 2007.
sentencing hearing. The motion court overruled Mr. Hoeber’s motion for post-conviction

relief.

          The two verdict directors submitted in Mr. Hoeber’s case both failed to identify a

specific act or incident of abuse despite testimony at trial regarding multiple incidents of

Mr. Hoeber inappropriately touching S.M., the victim. Given the evidence of multiple

acts or incidents of abuse introduced at trial and the state’s emphasis on such evidence in

its closing argument, the non-specific verdict directors created a risk that the jurors did

not unanimously agree as to the acts for which they were finding Mr. Hoeber guilty. A

reasonable probability exists, therefore, that both verdict directors in this case misled or

misdirected the jury in such a way that affected the verdicts. Accordingly, trial counsel’s

failure to object to the erroneous verdict directors prejudiced Mr. Hoeber.

          Moreover, a reasonably competent attorney would have objected to, or requested

the modification of, the two insufficiently specific verdict directors to protect

Mr. Hoeber’s right to a unanimous jury verdict. At the time of Mr. Hoeber’s trial, the

MAI notes on use addressed the significance of modifying verdict directors in multiple

acts cases, and it was well-established Missouri law that the verdict must be definite and

certain as to the crime of which the accused is found guilty. The fact that State v. Celis-

Garcia, 344 S.W.3d 150 (Mo. banc 2011), had yet to be decided at the time of

Mr. Hoeber’s trial does not excuse trial counsel’s failure to object to the two erroneous

verdict directors. Consequently, because no reasonable trial strategy existed for trial

counsel’s failure to object to the non-specific verdict directors, trial counsel’s

performance fell outside the wide range of professional, competent assistance.
       Accordingly, Mr. Hoeber established that his trial counsel was ineffective for

failing to object to two insufficiently specific verdict directors, and the motion court

clearly erred in overruling Mr. Hoeber’s Rule 29.15 motion for post-conviction relief.

This Court reverses the motion court’s judgment and remands this case.

                          Factual and Procedural Background

       S.M. was born in 2003. In 2004, S.M.’s mother began dating Mr. Hoeber, who

moved in with the family soon thereafter. Mr. Hoeber and S.M’s mother ended their

romantic relationship in 2005. Nevertheless, Mr. Hoeber continued to live with the

family intermittently through 2007.

       In July 2007, S.M., her mother, and Mr. Hoeber were living in a one-bedroom

apartment in St. Joseph. S.M.’s mother had increasing health problems that caused her to

spend the majority of the day sitting in a recliner in the living room. Because of her

health problems, she was unable to care for S.M. As a result, Mr. Hoeber prepared

S.M.’s meals, bathed and dressed S.M., and helped S.M. use the bathroom. While

Mr. Hoeber was taking care of S.M., she was diagnosed with a vaginal infection.

Because S.M.’s mother was unable to apply the medication, Mr. Hoeber applied it to

S.M.’s genitals using his finger.

       By September 2007, Mr. Hoeber was no longer living at the apartment, and S.M.

was placed in foster care.     While in foster care, S.M. told her foster mother that

Mr. Hoeber had touched her. After the disclosure, S.M. began seeing a child therapist.

S.M. told the therapist that Mr. Hoeber had touched her “private area.”



                                            3
       By January 2008, S.M. had returned to living with her mother. One night, S.M.

began talking in her sleep saying “Stop it! Stop it!” When S.M.’s mother woke her, S.M.

said “Eddie hurt me.” When questioned further, S.M. said that Mr. Hoeber had touched

her “pee-pee” and demonstrated to her mother how he had touched her genitals. S.M.’s

mother called the police.

       Mr. Hoeber was charged with two counts of first degree statutory sodomy. 2 When

questioned, Mr. Hoeber originally denied touching S.M. inappropriately and requested

that a lie detector test be administered. Detective Scott Coates of the Buchanan County

sheriff’s office prepared Mr. Hoeber for the lie detector test. While doing so, Detective

Coates asked Mr. Hoeber if there was anything Mr. Hoeber was not telling him and that,

if there were, Mr. Hoeber should tell him before the test. Mr. Hoeber eventually admitted

to touching S.M. in the bathroom on two separate occasions.             Detective Coates

transcribed Mr. Hoeber’s admission in a statement that Mr. Hoeber then signed.

       In 2009, the case proceeded to trial. S.M. testified that Mr. Hoeber touched her

private area and her butt with his hand more than one time. When asked what room she

was in when the touching occurred, S.M. stated it was in the kitchen. S.M. went on to

testify that no touching occurred in the bedroom, the bathroom, or the living room.

       S.M.’s mother also testified at trial. She explained that S.M. had told her that the

touching occurred more than one time. She further testified that S.M. told her the

touching occurred in the kitchen and the bedroom.


2
 Mr. Hoeber was also charged with two counts of first degree child molestation, section
566.067. These charges, however, were dismissed at trial.

                                            4
         The state offered additional testimony from S.M.’s therapist.          The therapist

testified that she first saw S.M. in September 2007. During that visit, S.M. told the

therapist that Mr. Hoeber had touched her, then immediately stated “No, he doesn’t.” At

a later visit, S.M. told the therapist that she “needed to tell [the therapist] a secret.” S.M.

then disclosed that Mr. Hoeber had touched her private area with his hand while she was

in the bedroom. In subsequent visits, S.M. disclosed that Mr. Hoeber had touched her

private area with his hand on more than one occasion. In describing the touchings, S.M.

told the therapist they had occurred in the bedroom, the kitchen, the bathroom, and the

living room.

         Detective Coates then read Mr. Hoeber’s statement into evidence. The statement

provided:

                 I, Edward Hoeber, state that I dated [S.M.’s mother] for about one
         year. I lived with [S.M.’s mother] in 2004, this is December, to September
         2005. Then I would say I have lived with [S.M.’s mother] off and on since
         December of 2004. I came to jail in August of 2007. 3
                 During the time I lived with [S.M’s mother], she would have me
         take care of her daughter, [S.M.]. I would give her a bath and sometimes
         wipe after she got done in the bathroom. [S.M.] was 4. She will be 5 next
         month.
                 About a month before I got arrested, we were living at 619 North
         9th.     Around that time, there were two times I touched [S.M.]
         inappropriately. There were two times where [S.M.] was in the bathroom
         and had gotten off the toilet with her pants down.
                 Before she would pull her pants up, I would rub her clitoris with my
         fingers. She would kind of laugh. I would rub her for about two minutes or
         so. [S.M.’s mother] would be sitting in the front room. I never told her
         anything about this. As far as I know, [S.M.’s mother] never knew. I only
         did it the two times. I am sorry for what I did. I really need help.



3
    Mr. Hoeber’s arrest and jail time in August 2007 were unrelated to the present case.

                                               5
Testifying on his own behalf, Mr. Hoeber denied touching S.M. inappropriately and

explained that his confession was coerced by Detective Coates.

       At the close of evidence, the trial court instructed the jury on two counts of first

degree statutory sodomy. Mr. Hoeber’s trial counsel did not object to either verdict

director submitted to the jury. The jury found Mr. Hoeber guilty on both counts, and the

trial court sentenced Mr. Hoeber, as a prior offender, to 40 years on each count to run

consecutively.   Trial counsel presented no witnesses on Mr. Hoeber’s behalf at the

sentencing hearing. Mr. Hoeber’s conviction was affirmed on direct appeal. State v.

Hoeber, 341 S.W.3d 195 (Mo. App. 2011).

       On March 24, 2010, Mr. Hoeber filed his pro se motion for post-conviction relief

pursuant to Rule 29.15. In his amended Rule 29.15 motion, Mr. Hoeber claimed that his

trial counsel was ineffective for failing to object to the verdict directors, which he alleged

violated his constitutional right to a unanimous jury verdict. Mr. Hoeber further claimed

that his trial counsel provided ineffective assistance at the sentencing hearing by failing

to hire an expert to present evidence regarding the mitigating effect of Mr. Hoeber’s

mental conditions.

       On May 3, 2013, the motion court conducted an evidentiary hearing. Trial counsel

testified that he did not consider objecting on the basis that the verdict directors failed to

specify a particular incident or place in which the touchings occurred.           He further

testified that he had no trial strategy for failing to object to the verdict directors.

Dr. William Geis also testified at the evidentiary hearing regarding Mr. Hoeber’s mental

condition and whether Mr. Hoeber was likely to be a repeat offender.

                                              6
       On September 25, 2013, the motion court entered its findings of fact, conclusions

of law, and judgment in which it overruled Mr. Hoeber’s motion for post-conviction

relief. In doing so, the motion court concluded that Mr. Hoeber did not establish that he

was prejudiced by his trial counsel’s failure to object to the verdict directors because

there was no risk that the jurors would be misled about which incidents of abuse applied

to a particular count. The motion court also concluded that Mr. Hoeber failed to establish

that the outcome of the sentencing would have been different had Mr. Hoeber’s trial

counsel hired Dr. Geis to testify.

       Mr. Hoeber appealed. After a decision by the court of appeals, this Court granted

transfer. Mo. Const. art. V, sec. 10.

                                     Standard of Review

       This Court’s review of a motion court’s overruling of a motion for post-conviction

relief 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). A motion court’s findings and

conclusions are “clearly erroneous only if this Court is left with a definite and firm

impression that a mistake has been made.” Mallow v. State, 439 S.W.3d 764, 768 (Mo.

banc 2014).

          The Verdict Directors Failed to Ensure Unanimous Jury Verdicts

       In his first point, Mr. Hoeber claims that trial counsel was ineffective for failing to

object to the verdict directors submitted on the two counts of statutory sodomy in the first

degree.    Mr. Hoeber asserts that the verdict directors in this case violated his

constitutional right to a unanimous jury verdict in that the verdict directors failed to

                                              7
specify a particular incident or act of hand-to-genital contact despite evidence of multiple

acts of hand-to-genital contact being introduced at trial.

       The Missouri Constitution provides “[t]hat the right of trial by jury as heretofore

enjoyed shall remain inviolate[.]” Mo. Const. art. I, sec. 22(a). This Court has held that

article I, section 22(a) protects a defendant’s right to a unanimous jury verdict. State v.

Hadley, 815 S.W.2d 422, 425 (Mo. banc 1991). “For a jury verdict to be unanimous, the

jurors must be in substantial agreement as to the defendant’s acts, as a preliminary step to

determining guilt.” Celis-Garcia, 344 S.W.3d at 155 (internal quotation omitted).

       In Celis-Garcia, this Court addressed the right to a unanimous verdict in the

context of a multiple acts case. 4 Id. at 155-58. The defendant in Celis-Garcia was

charged with two counts of statutory sodomy. Id. at 152. At trial, the two victims

testified about multiple incidents of abuse occurring in different locations. Id. at 153.

Two verdict directors – one for each victim – instructed the jury that if it believed the

defendant had committed the act constituting statutory sodomy between the charged

dates, it must find the defendant guilty of statutory sodomy. Id. at 154-55. Besides the

charged dates, the verdict directors did not specify a particular location or otherwise

identify the incident of statutory sodomy the defendant had allegedly committed. Id. at

154.

       In vacating the defendant’s convictions, this Court explained:



4
  “A multiple acts case arises when there is evidence of multiple, distinct criminal acts,
each of which could serve as the basis for a criminal charge, but the defendant is charged
with those acts in a single count.” Celis-Garcia, 344 S.W.3d at 155-56.

                                              8
       Despite evidence of multiple, separate incidents of statutory sodomy, the
       verdict directors failed to differentiate between the various acts in a way
       that ensured the jury unanimously convicted [the defendant] of the same act
       or acts. . . . This broad language allowed each individual juror to determine
       which incident he or she would consider in finding [the defendant] guilty of
       statutory sodomy. Under the instructions, the jurors could convict [the
       defendant] if they found that she engaged or assisted in hand-to-genital
       contact with the children during an incident in her bedroom, or on the
       enclosed porch, or in the shed, or in the bathroom.

Id. at 156 (emphasis in original). This Court then found that, because there was evidence

of multiple, separate incidents of statutory sodomy committed against both victims and

any of them would have supported the charged offenses, it was “impossible to determine

whether the jury unanimously agreed on any one of these separate incidents.” Id. at 158.

Accordingly, this Court concluded that “the verdict directors violated [the defendant’s]

constitutional right to a unanimous jury verdict[.]” Id. This Court then determined that

the trial court plainly erred in failing to properly instruct the jury because the “verdict

directors misdirected the jury in a way the affected that verdict, thereby resulting in

manifest injustice.” Id. at 159.

       Similar to the situation in Celis-Garcia, evidence of multiple acts of hand-to-

genital contact, each of which would constitute the commission of the offense of statutory

sodomy, was presented at Mr. Hoeber’s trial. S.M. testified that Mr. Hoeber touched her

private area and butt with his hand more than one time in the kitchen. She further

testified that Mr. Hoeber did not touch her inappropriately in the bedroom, bathroom, or

living room. S.M.’s mother, however, testified that S.M. told her the touching occurred

in the bedroom and the kitchen more than one time. The therapist offered additional

testimony regarding the incidents of hand-to-genital contact S.M. disclosed during their

                                            9
therapy sessions. The therapist testified that S.M. had reported being touched in the

bedroom, kitchen, living room, and bathroom on more than one occasion. Mr. Hoeber’s

statement in which he admitted to touching S.M.’s genitals twice in the bathroom was

also read into evidence. Mr. Hoeber then testified that he had not touched S.M. and that

his statement was coerced.

       Despite the conflicting evidence presented at trial of multiple acts of hand-to-

genital contact, neither verdict director specified a particular room or incident. Instead,

two counts of statutory sodomy were submitted to the jury – Instruction No. 8 and

Instruction No. 10. Instruction No. 8 reads:

       As to Count I, if you find and believe from the evidence

       First, that between July 1, 2007 and August 29, 2007, in the County of
       Buchanan, State of Missouri, [Mr. Hoeber] knowingly touched the genitals
       of S.M. with his hands,

       and

       Second, that such conduct constituted deviate sexual intercourse,

       and

       Third, that at the time S.M. was a child less than twelve years old, then you
       will find [Mr. Hoeber] guilty under Count I of statutory sodomy in the first
       degree.

       ....

Instruction No. 10 contained the identical language except for references to Count II.

       Because the verdict directors failed to identify any specific incident or room in

which the conduct occurred, the verdict directors allowed each individual juror to

determine which incident he or she would consider in finding Mr. Hoeber guilty on each

                                               10
count of statutory sodomy. Under each verdict director, each juror could have found

Mr. Hoeber guilty of engaging in hand-to-genital contact with S.M. during an incident in

the kitchen or in the bathroom or in the living room or in the bedroom. The verdict

directors, therefore, created a real risk that the jurors did not unanimously agree on the

specific acts of statutory sodomy for which they found Mr. Hoeber guilty. Accordingly,

the verdict directors failed to ensure a unanimous jury verdict.

     Trial Counsel Was Ineffective for Failing to Object to the Verdict Directors

       This Court must now determine whether trial counsel’s failure to object to the

erroneous verdict directors constituted ineffective assistance of counsel. To establish

ineffective assistance of counsel, a movant must prove “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) the movant

was prejudiced by that failure.” Dorsey v. State, 448 S.W.3d 276, 286-87 (Mo. banc

2014) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). If a movant fails to

satisfy either prong of the Strickland test, he or she is not entitled to post-conviction

relief. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997).

       To satisfy the performance prong, movants “must overcome the strong

presumption that counsel’s conduct was reasonable and effective.” Johnson v. State, 406

S.W.3d 892, 899 (Mo. banc 2013). This presumption is overcome when a movant

identifies “specific acts or omissions of counsel that, in light of all the circumstances, fell

outside the wide range of professional competent assistance.” Id. (internal quotation

omitted).

                                              11
        To establish Strickland prejudice, “a movant must show a reasonable probability

that, but for counsel’s errors, the outcome would have been different.” Dorsey, 448

S.W.3d at 287. “A reasonable probability exists when there is a probability sufficient to

undermine confidence in the outcome.” Id. (internal quotation omitted).

        The motion court concluded that trial counsel’s failure to object to the verdict

directors did not prejudice Mr. Hoeber. In doing so, the motion court reasoned that, in

Celis-Garcia, the risk that the verdict directors misdirected the jury occurred because the

state emphasized multiple uncharged bad acts. The motion court found that there was no

risk that the jurors were misled about which incident of abuse applied to a particular

count in Mr. Hoeber’s case because S.M. testified about two particular incidents 5 and any

uncharged acts committed by Mr. Hoeber were not the emphasis or focus of the state’s

case.

        As previously explained, however, the state presented conflicting evidence at trial

that S.M. had disclosed incidents of hand-to-genital contact occurring in the kitchen, the

bedroom, the living room, and the bathroom. In its closing argument, the state addressed

S.M’s conflicting statements:

               When you’re talking to a child, when you ask them a question,
        they’re going to answer whatever memory that jogs. And if something
        happens to them multiple times, one time they might remember the kitchen.
        The next time they might remember the bedroom. The next time they
        might remember the living room.

5
  In its findings and conclusions, the motion court incorrectly states that S.M. “testified as
to two particular incidents: one in the bedroom and one in the kitchen.” S.M. testified at
trial that Mr. Hoeber had touched her more than one time in the kitchen. When
questioned about other rooms in which the abuse occurred, S.M. testified that no abuse
occurred in the bathroom, the living room, or the bedroom.

                                             12
              They’re going to spit out whatever what you said to them makes
       them think about. And that’s what’s happened to this child. And this
       happened more than one time. Even the defendant said it happened twice.
       [S.M.] said it happened more than one time and a lot.

As reflected by this closing argument, the state’s case was not limited to or focused on

any two particular incidents of abuse. Instead, the state argued that multiple acts of abuse

had occurred in justifying S.M.’s conflicting statements. In fact, the state concluded its

closing argument by stating: “[Mr. Hoeber] touched [S.M.] on at least two occasions in

2007 between July 1st and the end of August . . . .” (Emphasis added). Given the

evidence of multiple acts of abuse introduced at trial and the state’s emphasis on such

evidence in its closing argument, the non-specific verdict directors created a real risk that

the jurors did not unanimously agree as to the acts for which they were finding

Mr. Hoeber guilty. Therefore, a reasonable probability exists in this case that the verdict

directors misled or misdirected the jury in such a way that undermines this Court’s

confidence in the verdicts.

       The state asserts that, even though multiple acts of statutory sodomy were

introduced into evidence, no prejudice resulted from trial counsel’s failure to object to the

non-specific verdict directors because Mr. Hoeber employed a “unitary defense” at trial.

In support of its argument, the state relies on State v. LeSieur, 361 S.W.3d 458 (Mo. App.

2012), for the proposition that the type of defense a defendant employs determines

whether a risk exists that the jurors did not unanimously agree on the act they found the

defendant guilty of committing.




                                             13
      In LeSieur, the defendant was convicted of two counts of second-degree statutory

rape. Id. at 460. On appeal, the defendant argued that the trial court violated his

constitutional right to a unanimous jury verdict because the verdict directors failed to

require the jury to agree on the specific act he committed to find him guilty on each rape

count. Id. The court of appeals found that the trial court erred in failing to properly

instruct the jury because the victim testified to multiple acts of statutory rape but the

verdict directors did not include any distinguishing characteristics.          Id. at 463.

Nevertheless, the court concluded that the erroneous verdict directors did not result in

plain error. Id. at 465. The court reasoned:

      Celis-Garcia makes clear that, to establish manifest injustice based on an
      insufficiently specific verdict director in a multiple acts case, the defendant
      must have mounted an incident-specific defense, which would have given
      the jury a basis to distinguish among the various incidents mentioned in the
      evidence. Celis-Garcia suggests that, where the defendant instead mounts
      a unitary defense to all alleged actions, attacking the victim’s credibility
      generally, manifest injustice does not exist.

Id. (internal quotation omitted). Since LeSieur, multiple cases have, likewise, held that

the failure to mount an incident-specific defense precludes a finding that non-specific

verdict directors resulted in manifest injustice. See State v. King, 453 S.W.3d 363, 376-

77 (Mo. App. 2015); State v. Payne, 414 S.W.3d 52, 56-57 (Mo. App. 2013); State v.

Rose, 421 S.W.3d 522, 529 (Mo. App. 2013).

      At no point in Celis-Garcia, however, did this Court conclude that a defendant

asserting a general defense could never be prejudiced by non-specific verdict directors.

Instead, this Court found that the fact that the defendant in Celis-Garcia “relied on

evidentiary inconsistencies and factual improbabilities respecting each allegation of

                                               14
hand-to-genital contact makes it more likely that individual jurors convicted her on the

basis of different acts.” Celis-Garcia, 344 S.W.3d at 159 (emphasis added). In other

words, while the act-specific defense in Celis-Garcia helped this Court find that the

insufficiently specific verdict directors were prejudicial to the defendant, the Court was

not required to find prejudice based on her defense. This Court’s analysis and holding in

Celis-Garcia was not that a defendant like Mr. Hoeber could not suffer prejudice from

insufficiently specific verdict directors just because he employed a general or unitary

defense. To the extent LeSieur and its progeny suggest otherwise, they should no longer

be followed.

       Rather, as previously explained, to establish prejudice, “a movant must show a

reasonable probability that, but for counsel’s errors, the outcome would have been

different.” Dorsey, 448 S.W.3d at 287. Moreover, in reviewing a post-conviction relief

case, “the appropriate standard of prejudice should be somewhat lower” than that needed

to establish plain error. Deck v. State, 68 S.W.3d 418, 427-28 (Mo. banc 2002) (internal

quotation omitted).    The ultimate determination in a post-conviction relief case is

“whether defendant has suffered a genuine deprivation of his right to effective assistance

of counsel, such that this Court’s confidence in the fairness of the proceeding is

undermined.” Id. at 428.

       Trial counsel’s failure to object to the insufficiently specific verdict directors

submitted to the jury undermines this Court’s confidence in the reliability of the verdicts.

At trial, the jury heard conflicting statements about multiple incidents of hand-to-genital

contact. The state’s case was not focused on or limited to any specific acts or incidents of

                                            15
sexual abuse. Rather, the state argued that Mr. Hoeber had abused S.M. multiple times

and at least on two occasions. Because there was evidence of multiple, separate incidents

of statutory sodomy, any of which would have supported the charged offenses, and

neither verdict director specified a particular act or incident, there was no requirement

that jurors agree on the same act to find Mr. Hoeber guilty on either count of statutory

sodomy. The verdict directors, therefore, created a real risk that the jury verdicts were

not unanimous. Despite this substantial threat to the unanimity of the jury verdicts,

Mr. Hoeber’s trial counsel failed to object to the insufficiently specific verdict directors.

Accordingly, trial counsel’s failure to object to the erroneous verdict directors prejudiced

Mr. Hoeber.

       Because the motion court concluded that Mr. Hoeber was not prejudiced by trial

counsel’s failure to object, it did not determine whether trial counsel’s performance fell

outside the range of professional, competent assistance. Mr. Hoeber argues that trial

counsel’s failure to object was unreasonable in that, at the time of trial, the notes on use

to MAI-CR3d 304.02 warned of the need to modify verdict directors to avoid the risk of a

non-unanimous jury verdict in a multiple acts case. The notes on use provided that the

“place of the offense may become of ‘decisive importance’ . . . where the defendant may

have committed several separate offenses against the same victim at the same general

location within a short space of time.” MAI-CR3d 304.02, Notes on Use 6. “In such a

situation, upon request of the defendant or on the Court’s own motion, the place should

be more definitely identified, such as ‘the front bedroom on the second floor,’ ‘the

southeast corner of the basement,’ etc.” Id.

                                               16
       In Celis-Garcia, this Court determined that the modification suggested by the

notes on use was “insufficient to protect a defendant’s constitutional right to a unanimous

jury verdict in a multiple acts case.” 344 S.W.3d at 158. In doing so, this Court found

that the modification should have been mandatory in multiple acts cases and that the

separate offenses could be distinguished on the basis of time or other characteristics

besides the place in which the offense occurred.         Id.   Nevertheless, at the time of

Mr. Hoeber’s trial, the notes on use contained an express warning that, in cases in which

the defendant has committed multiple separate acts, distinguishing between the offenses

is of crucial importance and that the verdict directors should be modified accordingly.

Given this express warning, a reasonably competent attorney would have objected to, or

requested the modification of, the verdict directors to protect a defendant’s right to a

unanimous jury verdict in a multiple acts case.

       The state acknowledges that the notes on use at the time of trial addressed

modification of verdict directors in multiple acts cases. Nevertheless, it asserts that the

prevailing professional norms at the time of Mr. Hoeber’s trial did not require trial

counsel to object because Celis-Garcia had not yet been decided. The state contends that

trial counsel should not be found incompetent for failing to predict the change in the law

that resulted from this Court’s opinion in Celis-Garcia.

       In evaluating trial counsel’s performance, “counsel’s conduct is measured by what

the law is at the time of trial.” Zink v. State, 278 S.W.3d 170, 190 (Mo. banc 2009). It

follows that trial counsel typically will “not be held ineffective for failing to anticipate a



                                             17
change in the law.” Id. (internal quotation omitted). This Court’s opinion in Celis-

Garcia, however, did not constitute a substantive change in the law.

       As explained in Barmettler v. State, 399 S.W.3d 523, 529 (Mo. App. 2013),

“Celis-Garcia did not establish the right of criminal defendants to a unanimous jury

verdict, and was not the first judicial decision to recognize that imprecisely drafted

verdict directors could violate this constitutional right.” At the time of Mr. Hoeber’s

trial, it was well-established law in the Missouri that “the verdict must be definite and

certain as to the crime of which the accused is found guilty.” 6 State v. Washington, 146

S.W. 1164, 1166 (Mo. 1912); see also State v. Jackson, 146 S.W. 1166, 1169 (Mo.

1912); State v. Pruitt, 100 S.W. 431, 432 (Mo. 1907); State v. Mitchell, 704 S.W.2d 280,

287 (Mo. App. 1986); State v. Pope, 733 S.W.2d 811, 813 (Mo. App. 1987). This

Court’s opinion in Celis-Garcia merely reiterated this principle in the context of a

statutory sodomy case. Celis-Garcia, therefore, did not constitute a substantive change in

the law and cannot excuse trial counsel’s failure to object to the verdict directors.

       The state further claims that trial counsel’s performance cannot be deemed

incompetent because trial counsel’s failure to object could be viewed as reasonable trial

6
  In its brief, the state relies on several cases for the proposition that, at the time of
Mr. Hoeber’s trial, the prevailing norms did not require him to object to the verdict
directors. The cases relied on by the state, however, did not approvingly uphold the use
of non-specific verdict directors; rather, the courts found that, under the circumstances of
each case, the insufficiently specific verdict directors did not prejudice the defendant.
See State v. Smith, 32 S.W.3d 134, 136 (Mo. App. 2000); State v. Staples, 908 S.W.2d
189, 190-91 (Mo. App. 1995); State v. Burch, 740 S.W.2d 293, 295-96 (Mo. App. 1987)
abrogation recognized by Mallow, 439 S.W.3d at 771 n.5. Simply because these courts
found no prejudice resulted from the non-specific verdict directors does not mean that
insufficiently specific verdict directors were an acceptable practice at the time of
Mr. Hoeber’s trial.

                                             18
strategy under the circumstances of Mr. Hoeber’s case. In particular, the state relies on

the fact that Mr. Hoeber’s defense at trial was that he did not commit any acts of statutory

sodomy; thus, trial counsel would have had no reason to focus the jury’s attention on the

multiple acts evidenced at trial by including specific references to those acts in alternative

verdict directors. The state asserts that, had trial counsel objected, it would have resulted

in eight possible alternative verdict directors, making it more likely that Mr. Hoeber

would have been convicted. 7

       There is “a presumption that counsel’s alleged omissions were sound trial

strategy.” Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005) (internal quotation

omitted). At the evidentiary hearing, however, trial counsel testified that he did not fail

to object to the verdict directors on the basis of trial strategy. 8 Moreover, the state’s trial

strategy argument is premised on the assumption that modifying the verdict directors

would have made it more likely that Mr. Hoeber was convicted. This argument is

contrary to the purpose of requiring juror unanimity in multiple acts cases.

       Again, the lack of specificity in the verdict directors made it possible for each

individual juror to determine which incident he or she would consider in finding

Mr. Hoeber guilty on each count of statutory sodomy. Therefore, one juror could have

found Mr. Hoeber guilty of an act that occurred in the kitchen, while another juror could


7
  Although the state argues that any objection by trial counsel would have resulted in
multiple alternative verdict directors, the state also could have elected to submit one
specific incident or act of statutory sodomy for each count.
8
  The motion court made no credibility findings regarding trial counsel’s testimony at the
evidentiary hearing that he had no trial strategy in failing to object to the verdict
directors.

                                              19
have found him guilty of an act that occurred in the bathroom. The verdict directors

allowed the jury to convict Mr. Hoeber of two counts of statutory sodomy without

requiring all 12 jurors to agree on the specific conduct that constituted each offense.

Because the jurors did not have to agree on which of S.M.’s conflicting disclosures of

abuse constituted each offense, the insufficiently specific verdict directors made it easier

for the jury to convict Mr. Hoeber of two counts of statutory sodomy. It follows that no

reasonable trial strategy existed for failing to object to the non-specific verdict directors.

       In the absence of reasonable trial strategy, trial counsel’s failure to object to the

insufficiently specific verdict directors did not conform to the degree of skill, care, and

diligence of a reasonably competent attorney. Mr. Hoeber, therefore, has shown that,

under the circumstances of this case, trial counsel’s performance fell outside the wide

range of professional, competent assistance.

       Accordingly, Mr. Hoeber has established that, by failing to object to the

insufficiently specific verdict directors, trial counsel’s performance was deficient and

Mr. Hoeber was thereby prejudiced. Trial counsel provided ineffective assistance when

he failed to object to the erroneous verdict directors, and the motion court clearly erred in

overruling Mr. Hoeber’s motion for post-conviction relief.

                                         Conclusion

       Mr. Hoeber was denied effective assistance of counsel when his trial counsel

failed to object to the use of non-specific verdict directors in a multiple acts case.




                                              20
Consequently, the motion court clearly erred in overruling Mr. Hoeber’s motion for post-

conviction relief. The motion court’s judgment is reversed, and the cause is remanded. 9



                                          ___________________________________
                                           PATRICIA BRECKENRIDGE, CHIEF JUSTICE


Stith, Draper, Teitelman and
Russell, JJ., concur; Fischer, J.
dissents in separate opinion filed;
Wilson, J., concurs in opinion of
Fischer, J.




9
  In his second point, Mr. Hoeber asserts that the motion court clearly erred in overruling
his motion for post-conviction relief because trial counsel provided ineffective assistance
at his sentencing hearing by failing to present mitigating evidence from a mental health
expert. Because Mr. Hoeber’s first point is dispositive of this appeal, this Court need not
decide Mr. Hoeber’s second point.

                                            21
             SUPREME COURT OF MISSOURI
                                         en banc

EDWARD L. HOEBER,                                   )
                                                    )
                      Appellant,                    )
                                                    )
v.                                                  )      No. SC95079
                                                    )
STATE OF MISSOURI,                                  )
                                                    )
                      Respondent.                   )

                                   DISSENTING OPINION

       I respectfully dissent. The principal opinion, in holding that the motion court was

clearly erroneous in concluding that trial counsel was not ineffective for failing to object

to the non-specific verdict directors, fails to give due consideration to the circumstances

then before the defense and fails to apply a presumption of reasonableness to counsel's

conduct. Because the defense's overall trial strategy was furthered by the non-specific

verdict directors, and because the risk of non-unanimous verdicts was low from the

defense's perspective, trial counsel's failure to object to the non-specific verdict directors

was a reasonable trial strategy.1


1
  As recognized by the principal opinion, even though the motion court expressly addressed only
the prejudice prong of the ineffective assistance of counsel claim, "[a]ll fact issues upon which
no specific findings are made shall be considered as having been found in accordance with the
result reached." Rule 73.01(c); see also Johnson v. State, 388 S.W.3d 159, 168 (Mo. banc 2012)
(applying Rule 78.07(c) to a Rule 29.15 motion, requiring movant to raise the omission of
required findings in a motion to amend the judgment).
       "To be entitled to post-conviction relief for ineffective assistance of counsel, a

movant must show by a preponderance of the evidence that his or her trial counsel failed

to meet the Strickland test in order to prove his or her claims." Johnson v. State, 406

S.W.3d 892, 898 (Mo. banc 2013). Under the first prong of the Strickland test, the

movant must show "his or her counsel failed to exercise the level of skill and diligence

that a reasonably competent counsel would in a similar situation." Id. at 898–99

(emphasis added). That is, "a court deciding an actual ineffectiveness claim must judge

the reasonableness of counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct." Strickland v. Washington, 466 U.S. 668,

690 (1984) (emphasis added). As further explained by the United States Supreme Court:

       Judicial scrutiny of counsel's performance must be highly deferential.
       It is all too tempting for a defendant to second-guess counsel's assistance
       after conviction or adverse sentence, and it is all too easy for a court,
       examining counsel's defense after it has proved unsuccessful, to conclude
       that a particular act or omission of counsel was unreasonable. A fair
       assessment of attorney performance requires that every effort be made to
       eliminate the distorting effects of hindsight, to reconstruct the
       circumstances of counsel's challenged conduct, and to evaluate the conduct
       from counsel's perspective at the time. Because of the difficulties inherent
       in making the evaluation, a court must indulge a strong presumption that
       counsel's conduct falls within the wide range of reasonable professional
       assistance; that is, the defendant must overcome the presumption that,
       under the circumstances, the challenged action "might be considered
       sound trial strategy." There are countless ways to provide effective
       assistance in any given case. Even the best criminal defense attorneys
       would not defend a particular client in the same way.

Id. at 689 (internal citations omitted) (emphasis added). Accordingly, it is the rare case

that a reviewing court should find the presumption of reasonableness has been overcome.

This is not one of those cases.


                                            2
       Here, there were two categories of evidence against Hoeber: (1) S.M's statements,

which consisted of her testimony at trial, a video interview with police, and out-of-court

statements purportedly made to her mother and a child therapist, and (2) Hoeber's

confession to police. Not surprisingly, S.M., who was only four years old at the time of

the out-of-court statements and only six years old at the time of trial, gave statements that

were contradictory as to the room in which the inappropriate touching took place, 2 that

failed to provide a logical timeframe as to when the touching took place, that failed to

establish on how many occasions the touching took place, and that were even

contradictory as to whether Hoeber touched her. In contrast, Hoeber's confession to

police, the very words of the adult defendant, was quite clear in detail. Hoeber admitted

to touching S.M. inappropriately on two occasions, he identified the room where the

touching took place (the bathroom), and he identified the general timeframe (about a

month before he was arrested in August 2007).

       Given the nature of this evidence, Hoeber's confession was undoubtedly the State's

strongest evidence and the primary basis for charging Hoeber with two counts of first-

degree statutory sodomy. And, given this dichotomy of the evidence, Hoeber's counsel

employed a reasonable strategy at trial. While counsel did perhaps the best he could with

Hoeber's confession (attempting to show it was coerced by police), he of course wanted

the jury's primary focus to be on the weaker evidence, S.M.'s statements, which were ripe

2
  At trial, S.M. testified that the touching occurred only in the kitchen, and not in the bedroom,
living room, or bathroom. In out-of-court statements made to her mother, S.M. said the touching
occurred in the kitchen and bedroom. In out-of-court statements made to a child therapist, S.M.
identified, at varying times, the kitchen, bedroom, living room, and bathroom as rooms where the
touching occurred.
                                                3
to be picked apart based on credibility concerns. The infirmities in S.M.'s statements

were the best vehicle to sow reasonable doubt in the minds of the jurors. That is, if the

jury focused on this weaker evidence, there was not only a possibility that the jury would

disbelieve S.M.'s testimony and purported out-of-court statements but also a possibility

that—because this evidence did not add up—the jury would consequently conclude there

was reasonable doubt regarding the veracity of Hoeber's confession. That this was

clearly counsel's overall trial strategy, as reflected in the trial transcript, was further

confirmed by trial counsel's testimony at Hoeber's postconviction hearing.

       Because counsel wanted the jury to focus on S.M.'s statements, it was perfectly

reasonable and consistent with the overall trial strategy not to insist that the verdict

directors specify a room where the touching took place. 3              As discussed, Hoeber's

confession identified only one room, the bathroom.               With S.M.'s statements, the

bathroom was referenced only once, and that was through the testimony of the child

therapist. It was the other rooms, particularly the kitchen and bedroom, that were at the

center of S.M.'s statements. The kitchen was identified in S.M.'s testimony, the mother's

testimony, and the child therapist's testimony, while the bedroom was identified in S.M.'s


3
   It is immaterial that, at Hoeber's postconviction hearing, counsel testified that his failure to
object to the verdict directors was not based on trial strategy. Criminal defendants are
guaranteed objectively effective assistance of counsel, not subjectively effective assistance of
counsel; the question is whether counsel's conduct was objectively reasonable, not whether
counsel subjectively believed his conduct was reasonable. See, e.g., Strickland, 466 U.S. at 688;
Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984). Additionally, despite an ethical obligation
to testify truthfully to the motion court, see Rule 4-3.3(a)(1), a defendant's trial counsel
occasionally provides testimony that facilitates a finding that he or she provided ineffective
assistance of counsel. This Court has previously directed the Office of Chief Disciplinary
Counsel to investigate counsel's competency when there is a published opinion finding
ineffective assistance of counsel.
                                                4
video interview with police, the mother's testimony, and the child therapist's testimony.

Consequently, the identity of the room was tied up with the category of evidence. The

bathroom was associated with Hoeber's confession; the other rooms were associated with

S.M.'s statements. Without specifying a room, the verdict directors did not focus the

jury's attention on an associated category of evidence either way, i.e., the verdict directors

did not prompt the jury toward either Hoeber's confession or S.M.'s statements. The non-

specific verdict directors, therefore, left open the possibility that jury deliberations would

center around S.M.'s statements, exactly what the defense wanted.

       However, this possibility would have been effectively foreclosed by specific

verdict directors. If counsel had insisted on specifying a room in the verdict directors,

there were two scenarios: (1) as the principal opinion points out, the State could have

elected to specify one room for each of the verdict directors, or (2) as the State argues,

there could have been eight possible alternative verdict directors—four for each count,

with a different verdict director for each possible room (bathroom, kitchen, bedroom, and

living room). Of course, under the first scenario, the State would have elected to specify

the bathroom in the verdict directors, because the backbone of the State's evidence,

Hoeber's confession, identified that Hoeber touched S.M. twice (once for each count),

specifically in the bathroom, and specifically within the timeframe given in the verdict

directors, between July 1, 2007, and August 29, 2007. Choosing to specify any room

over the bathroom would have been illogical for the State, as the State then would have

been relying on its weaker evidence. Under the first scenario, the jury's focus would have



                                              5
certainly been shifted to Hoeber's confession—exactly what reasonable defense counsel

would not have wanted under the circumstances.

       The second scenario would not have been any better for Hoeber. The principal

opinion dismisses the argument that having four alternative verdict directors for each

count would have necessarily been bad for the defense because it would have reminded

the jury of just how many bad acts were alleged.          While that would have been a

reasonable consideration for the defense, it is not the only one. With alternative verdict

directors, there would have been one verdict director for each count that specified the

bathroom and necessarily focused the jury's attention on Hoeber's confession. Moreover,

acting reasonably and relying on its strongest evidence, the State would have insisted that

the verdict director specifying the bathroom be the first verdict director for each count,

prompting the jury to Hoeber's confession right out of the gate. Again, this is exactly

what reasonable defense counsel would not have wanted under the circumstances.

       Although specific verdict directors, under both scenarios, would have better

ensured unanimous verdicts, this would have come at the price of undermining the

defense's overall trial strategy by unduly shifting the jury's focus to the State's strongest

evidence—Hoeber's confession. Moreover, evaluated "from counsel's perspective at the

time" and "considering all the circumstances," see Strickland, 466 U.S. at 688–89, any

risk of non-unanimous verdicts likely, and reasonably, appeared remote to the defense.

Such a conclusion flows from the dichotomy of the evidence—the defendant's own

detailed confession versus the contradictory, and at times nonsensical, statements of a

very young child. Assuming a conviction by reasonable jurors, if a particular juror did

                                             6
not believe S.M.'s statements, his or her guilty vote would have been based solely on

Hoeber's confession. But the opposite does not follow. If a different juror did believe

S.M.'s statements, it seems rather unlikely that his or her guilty vote would have been

based solely on S.M.'s statements—that is, if the juror believed S.M.'s statements, he or

she would have little reason to doubt the veracity of Hoeber's confession. Accordingly, it

was reasonable under the circumstances to conclude that if Hoeber were to be convicted,

it was almost certainly going to be because all jurors believed Hoeber's confession. 4 In

this way, it was objectively reasonable for counsel to act in furtherance of the defense's

overall trial strategy, rather than act out of concern for possible non-unanimous verdicts.

       Therefore, contrary to the principal opinion's assumption, it does not follow "that

no reasonable trial strategy existed for failing to object to the non-specific verdict

directors." Any importance placed on unanimous verdicts in general is not dispositive of

whether counsel provided reasonably effective assistance in this particular case, under

these particular circumstances.      See, e.g., Love, 670 S.W.2d at 503 (rejecting the

argument that counsel was ineffective for failing to raise the omission of an instruction in

a motion for a new trial simply because the "instruction was required by the then

applicable law" and, instead, concluding "that a reasonable attorney could have decided

[the] instruction would have been detrimental to his client"). The principal opinion fails


4
  Given these circumstances, it is also understandable that the motion court chose to skip to the
second prong of the Strickland test and specifically address prejudice. See Taylor v. State, 382
S.W.3d 78, 81 (Mo. banc 2012) ("The court may not need to address both prongs if the movant
has failed to make a sufficient showing on one. If the ineffectiveness claim can be disposed of
because of lack of sufficient prejudice, that course should be followed.") (internal citation
omitted).
                                               7
to adhere to basic tenets of ineffectiveness analysis, that there is a presumption of

reasonableness and that "[t]here are countless ways to provide effective assistance in any

given case."   Strickland, 466 U.S. at 689.     Although one way to provide effective

assistance in this case may have been to eliminate any risk of non-unanimous verdicts,

another—and in my view better—way to provide effective assistance under the

circumstances was to not insist on specific verdict directors, so as to not focus jury

deliberations on Hoeber's own damning confession. While the principal opinion may

endorse a strategy that puts the protection of unanimous verdicts first and foremost, it

unduly narrows consideration of the likely original trial outcome and outcome on

remand.

       It is also worth noting that the principal opinion's shoehorning of Celis-Garcia's

principles into the postconviction relief context opens the door even further for prisoners

to make matters considerably worse for themselves in the pursuit of postconviction relief,

a result entirely foreseeable based on the ultimate resolution of Celis-Garcia itself. See

State v. Ess, 453 S.W.3d 196, 214 n.6 (Mo. banc 2015) (Wilson, J., concurring in part and

dissenting in part) ("[I]t will never be known whether the decision not to object to the

state's instructions in Celis-Garcia was a matter of trial strategy even though the

subsequent history of that case shows such a strategy would not have been

unreasonable."). In State v. Celis-Garcia, a direct appeal case, this Court reversed and

remanded for a new trial on plain error review after the State broadly charged the

defendant with only two counts of first-degree statutory sodomy but presented evidence

of numerous acts that could have served as the basis for each criminal charge. 344

                                            8
S.W.3d 150, 154–56 (Mo. banc 2011). The defendant was originally convicted of both

counts of first-degree statutory sodomy and sentenced to two concurrent 25-year

sentences. Id. at 154. On remand, however, the State added new charges to match the

numerous acts that had been alleged at trial but not specifically instructed on, and the

defendant was subsequently convicted of 10 counts of first-degree statutory sodomy

(each carrying a life sentence), six counts of first-degree child molestation (each carrying

a 15-year sentence), and one count of first-degree statutory rape (also carrying a life

sentence).   State v. Celis-Garcia, 420 S.W.3d 723, 725 (Mo. App. 2014).             These

convictions, after taking into account the concurrent or consecutive nature of the

individual sentences, resulted in three consecutive life sentences plus 30 years.        Id.

Likewise, the State here is not precluded from adding charges after remand. Under the

principal opinion's analysis and result, the State is incentivized to amend the charges on

remand to include all versions of facts contained in the record, which trial counsel

undoubtedly knew, and knows, is not in Hoeber's best interest.

       These repercussions aside, this Court should not merely acknowledge the Supreme

Court's directives in ineffectiveness analysis but actually follow them and find counsel to

have been effective in all but the rarest of cases. A reviewing court's mere disagreement

with counsel's trial strategy does not render counsel's assistance ineffective; not only is

there a presumption of reasonableness, but due deference and due consideration of the

circumstances of the case also should be given, and a wide latitude of what constitutes

"reasonable" should be applied. In my view, after reviewing the trial transcript and

motion hearing transcript, Hoeber has not overcome the presumption that trial counsel

                                             9
acted reasonably because counsel's conduct "falls within the wide range of reasonable

professional assistance; that is . . . the challenged action 'might be considered sound trial

strategy.'" Strickland, 466 U.S. at 689 (emphasis added). I, therefore, dissent, and I

would not subject Hoeber to the risk of additional charges.



                                                         Zel M. Fischer, Judge




                                             10
