                   In the Missouri Court of Appeals
                           Eastern District
                                         DIVISION TWO

KRISTEN SCHALLON,                                  )        No. ED99733
                                                   )
                 Movant/Appellant,                 )        Appeal from the Circuit Court
                                                   )        of the City of St. Louis
vs.                                                )
                                                   )        Honorable Michael Mullen
STATE OF MISSOURI,                                 )
                                                   )
                           Respondent.             )        Filed: June 30, 2014

        The movant, Kristen Schallon, appeals the denial of his Rule 29.15 motion for

post-conviction relief following an evidentiary hearing. A jury had convicted the movant

of committing 45 sexual offenses against his stepdaughter when she was between the

ages of eight and 16. These convictions included 15 counts of second-degree statutory

sodomy committed between August 1996 and August 1999. 1 The Circuit Court of the

City of St. Louis had entered judgment against the movant, and sentenced him to

concurrent terms of imprisonment totaling 30 years, namely 19 sentences of 30 years

each for the counts of forcible sodomy, forcible rape, and first-degree statutory sodomy;

16 sentences of seven years each for the counts of second-degree statutory sodomy and

attempted second-degree statutory sodomy; and ten sentences of one year each for the

counts of first-degree sexual misconduct.


1
 The State charged count 19 as occurring between August 7, 1996 and August 6, 1999, the same period
cited for all the other counts of second-degree statutory sodomy. The verdict director for count 19,
however, stated this incident occurred between August 7, 1995 and August 6, 1999.
       This post-conviction appeal involves 12 of the 15 counts of second-degree

statutory sodomy, for which the court sentenced the movant to concurrent terms of

imprisonment of seven years on each count. The movant asserts that appellate counsel

was ineffective for failing to challenge the sufficiency of the evidence to support his

conviction on these 12 counts. We conclude that appellate counsel was not ineffective.

First, viewing the evidence and inferences therefrom in the light most favorable to the

verdict, the evidence was sufficient to support the movant’s conviction of each of the 12

counts of second-degree statutory sodomy at issue. Second, because post-conviction

counsel denied appellate counsel access to her complete file and notes on the movant’s

case, forcing appellate counsel to speculate about her reasoning, decisions, and strategy

on appeal, her testimony was robbed of its probative force. As a result, the movant failed

to rebut the presumption that appellate counsel performed effectively and that her

decisions resulted from reasonable strategy. We affirm the motion court’s judgment.

       At trial, the victim described numerous sexual offenses the movant committed

against her on a daily basis over the course of eight years. She stated that she did not

recall a day when she and the movant were in the same house that abuse did not occur.

She explained that the movant abused her in the house, in the garage, in the car behind

the garage, in the backyard, in the park, in the car on the street, and in the car in a parking

lot. The victim testified to numerous incidents when the movant touched her vagina with

his fingers. She stated that the abuse grew progressively worse, and described how the

movant would enter her bedroom at night. The victim recalled that “I would wake up,

and his fingers were already inside of my vagina . . . .” Sergeant Mickey Owens of the

St. Louis Metropolitan Police Department interviewed the movant upon his arrest.



                                              2
Sergeant Owens testified that the movant admitted that he put his finger inside the

victim’s vagina, and that this occurred inside the house, both in the living room and the

victim’s bedroom, in his car parked on the street, and in his car in the garage. Sergeant

Owens testified that the movant admitted abuse occurred daily from the time the victim

was about eight years old until she ran away at the age of 16 to get away from him. On

cross-examination, Sergeant Owens confirmed that the movant told him the abuse

occurred in the park, in the car, and in the house.

           A jury convicted the movant of 45 sexual offenses against his stepdaughter,

namely 15 counts of forcible sodomy in violation of section 566.060 RSMo. (Supp. 1990,

1994, Supp. 1998); three counts of forcible rape in violation of section 566.030 RSMo.

(Supp. 1990, Supp. 1993); one count of first-degree statutory rape in violation of section

566.032 RSMo. (1994) ; 2 15 counts of second-degree statutory sodomy in violation of

section 566.064; one count of attempted second-degree statutory sodomy in violation of

section 564.011 and 566.064; and ten counts of first-degree sexual misconduct in

violation of section 566.090.

           On direct appeal, this Court vacated one of the movant’s convictions for forcible

sodomy, and remanded to the trial court to vacate one of two convictions arising from the

same act of sexual misconduct and to correct the movant’s sentence on the count of

attempted second-degree statutory sodomy. State v. Schallon, 341 S.W.3d 795 (Mo.

App. E.D. 2011). This Court affirmed in all other respects. The movant did not

challenge on direct appeal any of the 12 counts involved in the instant appeal.

           Following adjudication of his direct appeal, the movant sought post-conviction

relief on five bases. He asserted that appellate counsel was ineffective for failing to
2
    All statutory references are to RSMo. (1994) except as otherwise indicated.

                                                       3
challenge on direct appeal the sufficiency of the evidence on 12 counts of second-degree

statutory sodomy. He claimed that trial counsel was ineffective for failing to object to an

incorrect definition of “deviate sexual intercourse” in the verdict-directing instructions

for all 15 counts of second-degree statutory sodomy, for failing to request a lesser-

included offense instruction for one of the counts of second-degree statutory sodomy, and

for failing to move to dismiss 22 of the various charges based on the statute of

limitations. The movant also claimed that the written sentence and judgment contained

multiple clerical errors.

        The motion court conducted an evidentiary hearing at which appellate counsel

testified. Appellate counsel summarized her actions in preparing the brief, including

compiling the statutes in effect at the time of each offense. She stated, however, that

“without having my file here, I don’t know if I can fully answer the question [about

preparing the brief] but those [things] are what I remember.” She observed that the

movant’s brief took her longer to prepare than five average appeals combined. After

refreshing her recollection with the brief, appellate counsel was able to summarize the

points raised on direct appeal. She recalled, after reviewing this Court’s opinion, that the

State conceded reversible error on three of her four points, and that this Court granted

relief on those issues.

        Post-conviction counsel allowed appellate counsel to review the file briefly before

the hearing, but denied her the opportunity to have all of her notes before her while she

testified. Appellate counsel stated that she reviewed every count, took notes on each, and

made some determination about whether to include them in the direct appeal. However,




                                              4
she could not remember precisely what that determination was with regard to the 12

counts at issue here. She stated three times that she could only speculate.

         In an offer of proof, post-conviction counsel stated that she gave appellate counsel

the opportunity to review the file more than two months earlier, and again immediately

before the hearing. Post-conviction counsel acknowledged that she brought to the

hearing only some of appellate counsel’s notes.

         In its order, the motion court observed that post-conviction counsel would not

allow appellate counsel to consult her file from the appeal, including her notes made

during preparation of the brief, and that appellate counsel “was not able to recall and

provide probative answers regarding this claim.” The motion court declined to find

appellate counsel ineffective when post-conviction counsel “would not permit her to

provide proper answers regarding her handling of the appeal.” The motion court also

noted that the evidence at trial would allow the jury to infer that the movant’s conduct in

connection with these offenses involved more than touching and that penetration

occurred.

         The motion court granted relief on the movant’s claim that trial counsel was

ineffective for failing to object to the incorrect definition of “deviate sexual intercourse”

in the verdict-directing instructions for all 15 counts of second-degree statutory sodomy.

The motion court vacated those counts and returned them for a new trial rather than

entering a judgment of acquittal. The motion court reasoned that the instructional error

constituted a procedural error, and “it is apparent that a submissible case likely can be

made, or was made, as to these counts.” 3 The court stated that it would correct the


3
 The motion court’s award of a new trial does not affect the appealability of the issue presented here,
which is that appellate counsel was ineffective for failing to challenge the sufficiency of the evidence.

                                                      5
clerical errors in the written sentence and judgment in a separate order. The motion court

rejected the movant’s remaining two claims of ineffective assistance of trial counsel.

        The movant appeals only the motion court’s denial of relief for his claim of

ineffective assistance of appellate counsel. Our review of a motion court’s denial of a

Rule 29.15 motion for post-conviction relief is limited to a determination of whether the

findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Johnson v.

State, 388 S.W.3d 159, 162-63 (Mo. banc 2012); Davidson v. State, 308 S.W.3d 311, 316

(Mo. App. E.D. 2010). A motion court’s findings and conclusions are clearly erroneous

only if, after a full review of the record, this Court is left with a definite and firm

impression that a mistake has been made. Johnson, 388 S.W.3d at 163; Davidson, 308

S.W.3d at 316.

        The movant alleges ineffective assistance of appellate counsel. To prevail, the

movant must establish that counsel failed to raise a claim of error that was so obvious that

a competent and effective attorney would have recognized and asserted it. Tisius v. State,

183 S.W.3d 207, 215 (Mo. banc 2006). The alleged error must have been sufficiently

serious so as to create a reasonable probability that, had it been raised, the outcome of the

appeal would have been different. Id. The movant has the burden to prove a claim for

post-conviction relief by a preponderance of the evidence. Rule 29.15(i); Holman v.

State, 88 S.W.3d 105, 109 (Mo. App. E.D. 2002). “[A] court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the [movant] must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at


Merely because a post-conviction movant has received some relief does not mean he cannot adjudicate
whether he should have received further relief.

                                                   6
110 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Appellate counsel

has no obligation to present every issue asserted in the motion for new trial when she

makes a strategic decision to cull some arguments in favor of others. Id.

       In the 12 counts at issue here, the State charged the movant with committing

second-degree statutory sodomy by touching the victim’s vagina with his hand between

August 7, 1996 and August 6, 1999, when the victim was between the ages of 14 and 16.

Section 566.064.1 at that time provided that “[a] person commits the crime of statutory

sodomy in the second degree if being twenty-one years of age or older, he has deviate

sexual intercourse with another person who is less than seventeen years of age.” During

this time, “deviate sexual intercourse” meant “any act involving the genitals of one

person and the mouth, tongue, or anus of another person or a sexual act involving the

penetration, however slight, of the male or female sex organ or the anus by a finger,

instrument or object done for the purpose of arousing or gratifying the sexual desire of

any person.” Section 566.010(1).

       The movant argues that the statute in effect at the time of the charged offenses did

not define “deviate sexual intercourse” to include hand-to-genital contact that did not

result in penetration. Because “deviate sexual intercourse” is an essential element of

second-degree statutory sodomy, contact that at the time in question did not meet the

statutory definition of “deviate sexual intercourse” could not constitute second-degree

statutory sodomy. The movant contends that the evidence was insufficient to support his

conviction of 12 of the counts of second-degree statutory sodomy. Appellate counsel did

not raise this issue on direct appeal, and the movant asserts that appellate counsel was

thus ineffective.



                                             7
       When faced with a challenge to the sufficiency of the evidence, we accept as true

all evidence favorable to the State, including all favorable inferences drawn from the

evidence, and we disregard all evidence and inferences to the contrary. State v. Grim,

854 S.W.2d 403, 405 (Mo. banc 1993). We limit our review to determining whether

there is sufficient evidence from which a reasonable juror might have found the

defendant guilty beyond a reasonable doubt. Id. The motion court ruled only “that a

submissible case likely can be made, or was made, as to these counts.” This ruling does

not adequately address the question of submissibility. We have reviewed the evidence to

determine whether sufficient evidence exists to support the movant’s convictions for the

12 counts of second-degree statutory sodomy at issue here.

       The victim testified to numerous incidents when the movant touched her vagina

with his fingers. She described awakening at night to find the movant’s fingers already in

her vagina. Sergeant Owens testified that the movant admitted putting his finger inside

the victim’s vagina, and abusing the victim on a daily basis from the time she was eight

years old until she left home at age 16. The movant told Sergeant Owens that abuse

occurred inside the house, both in the living room and the victim’s bedroom, in his car

parked on the street, in his car in the garage, and in the park, locations that corresponded

to the victim’s account of specific incidents.

       Viewing the evidence and inferences therefrom in the light most favorable to the

verdict, we hold that the evidence was sufficient to support the movant’s conviction of

each of the 12 counts of second-degree statutory sodomy at issue. Consequently,

appellate counsel could not be ineffective for failing to challenge the sufficiency of the

evidence on these counts on direct appeal.



                                                 8
       Furthermore, the motion court conducted an evidentiary hearing at which

appellate counsel testified. Appellate counsel characterized her review of the file shortly

before the hearing as “hasty at best.” She explained that she had asked to have all of her

notes when she testified, and she repeated that request while on the stand. She stated that

post-conviction counsel had not warned her that she would not have all her notes

available at the evidentiary hearing. In an offer of proof, post-conviction counsel

acknowledged that she brought to the hearing only some of appellate counsel’s notes.

       Appellate counsel could not remember the details of the case with any precision.

When asked why she did not challenge the sufficiency of the evidence on the 12 counts at

issue, appellate counsel stated:

        I remember specifically, and my notes reflect—looking at each and every count.
       . . . So I took notes on the issue and I did not raise them [sic]. I must have made
       some determination, but, no, I do not recall what that determination was exactly . .
       ..

She stated three times that she was speculating about her decisions and reasoning with

regard to the direct appeal, and she stated that she could not answer some questions

without having access to her notes. Appellate counsel explained that she had numerous

discussions with the movant and his significant other about which issues to address on

appeal. But without her notes, appellate counsel stated that she could not testify whether

they discussed the specific issue involved here.

       We again observe that the movant was convicted of a total of 45 counts involving

six different sexual offenses committed over an eight-year period, during which time

some of the relevant statutes changed multiple times. Appellate counsel testified that,

because of the complexity of the case, the movant’s appeal took her longer to prepare

than five average appeals combined. This Court issued its opinion on the direct appeal 16

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