 

In the Missouri Court of Appea[s
Eastern District

DIVISI()N THREE
JEROME CURRY, ) ED100403
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
v. ) l2SL-CC028l4
)
STATE OF MISSOURI, ) Honorable Tom W. DePriest, Jr.
)
Respondent. ) Filed: August 19, 2014

introduction
Jeronie Curry (Movant) appeals from the motion court’s judgment denying his
motion for post~convictioii relief under Rule 29.15] (Rule 29.15 Motion) without an
evidentiary hearing He argues his motion adequately alleged his trial counsel was
ineffective for failing to request that the trial court instruct the jury on the lesser-included
offense of robbery in the second degree. We aftirm.
Background
Movant was charged as an accomplice with robbery in the first degree, attenipted
robbery in the first degree, armed criminal action, and resisting arrest. These charges
arose out of an incident occurring on Septernber 21, 2008. Movant was driving a car he

owned, and he had two male passengers. Movant pulled the car up to a curb where two

1 A|l rule references are to Mo. R. Crim. P. (2014), unless otherwise indicated.
1

men (the victims) were standing, and Movant asked them for directions. One of the men
bent down to talk with Movant and gave him directions. Movant drove away, but then he
turned the car around and drove back to the victims The two passengers got out of
Movant’s car, each of them holding guns. 'l`hey pointed their guns at the victims and felt
through the victims’ pockets, taking a wallet from one victim. 'fhe passengers then got
back into Movant’s car, and Movant drove away. Movant was later identified as the
driver of the car by the victim who had initially given Movant directions.

The jury convicted Movant of all counts, and the trial court sentenced Movant to
concurrent sentences totaling twelve years’ imprisonment. This Court affirmed his
convictions and sentences on appeal. State v. Ctlrry, 364 S.W.3d 756 (Mo. App. E.D.
2012).

Movant timely filed his Rule 29.15 Motion, which contained several allegations
of ineffective assistance of triai counsel. Among them, Movant alleged that his trial
counsel was ineffective for failing to request an instruction for the lesser-included offense
of robbery in the second degree, arguing that as the driver of the vehicle, the jury could
have found that Movant had no knowledge that the passengers of his car had guns or
would use them to commit the robbery and attempted robbery. The motion court denied
Movant’s motion without an evidentiary liearing, finding that there was no legal basis for
an instruction on second-degree robbery in the record and that any request for such an
instruction would have been denied. The motion court also found that Movant’s motion
regarding this claim pled conclusions, not facts, and failed to show how Movant was

prejudiced This appeal follows.

Standard of Review

Our review of the motion court’s denial of a motion for post-conviction relief is
"limited to the determination of whether the findings of fact and conclusions of law are
clearly erroneous." Hicl<ey v. State, 328 S.W.?>d 225, 227 (Mo. App. E.D. 2()]0).
Findlngs and conclusions are clearly erroneous "only if, after a review of the entire
record, the reviewing court is left with a definite and firm impression that a mistake has
been made." Ld. We affirm the motion court’s judgment if it reached the right result,
even if for the wrong reason Branson v. State, 145 S.W.3d 57, 58 (Mo. App. S.D. 2004).

Discussion

Movant's sole point on appeal is that the motion court clearly erred in denying his
Rule 29.15 Motion without an evidentiary hearing because his motion sufficiently alleged
facts that, if true, would entitle him to relief on his claim that his trial counsel was
ineffective for failing to request an instruction on the lesser-included offense of robbery
in the second degree. We disagree

On a claim of ineffective assistance of counsel, a movant must show by a
preponderance of the evidence first, that counsel‘s performance was deficient, and
second, that the movant was prejudiced thereby. Stricl<land v. Washington, 466 U.S. 668,
687 (1984). "[Tjhere is a strong presumption that counsei's conduct was reasonable and
effective." Gill v. State, 300 S.W.3d 225, 232 (Mo. banc 2009).

Additionally, a motion court is not required to grant an evidentiary hearing
regarding a post-conviction claim of ineffective assistance of counsel unless: (l) the
movant pleads facts, not conclusions, which, if true, would entitle the movant to relief;

(2) the facts alleged are not refined by the record; and (3) the matter complained of

resulted in prejudice to the inovaiit. Dorsey v. State, 115 S.W.3d 842, 844-45 (Mo. banc
2003). Regarding a trial counsel’s failure to request jury instructions, a movant must
plead facts showing "that the decision not to request the instruction was not reasonable
trial strategy." McNeal v. State, 412 S.W.3d 886, 889 (Mo. banc 2013) (quoting  
l, 369 S.W.3d 93, 100 (Mo. App. W.D. 2012)).

Here, Movant failed to allege facts in his Rule 29.15 Motion that would entitle
him to relief. Specifically, Movant makes no claim that his trial counsel unreasonably
refused to request the second-degree robbery instruction or inadvertently failed to
consider that course of action. _C_L _l\_._/,l_c_l§l_e_a_l_, 412 S.W.3d at 889-90 (where movant
claimed counsel’s failure to request instruction was not justified by any "strategy or
reason, other than inadvertence," and allegation was not refuted by record, movant was
entitled to evidentiary liearing). Movant alleges no facts to rebut the presumption that
counsel’s conduct was reasonable; rather, he merely concludes that his counsel’s failure
to request the instruction prejudiced him.

Moreover, the record reveals that Movant's counsel’s choice not to request the
instruction itself was consistent with the defense strategy at trial. Movant's counsel
pursued a defense of misidentification, arguing that Movant was not present or driving
his car in the commission of the robbery because l\/lovant‘s car had been stolen the night
before the robbery took place. Thus, if counsel had requested an instruction allowing the
jury to find Movant was present but was unaware the passengers in his car had guns, that
would have undermined the theory of the defense. § Thompson, --- S.W.3d ---, 2014
WL 1202940, *7 (quoting McKee v. State, 336 S.W.3d 151, 154 (Mo. App. E,D. 2011))

(counsel has no duty to request instruction that would undermine defense theory).

