             IN THE MISSOURI COURT OF APPEALS
                      WESTERN DISTRICT
KENNETH E. FIGGINS, SR.,                         )
                                                 )
              Appellant,                         )
                                                 )
       v.                                        )   WD77356
                                                 )
STATE OF MISSOURI,                               )   Opinion filed: June 23, 2015
                                                 )
              Respondent.                        )

     APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
                The Honorable Kathleen A. Forsyth, Judge

                     Before Division Four: Alok Ahuja, Chief Judge,
                 Joseph M. Ellis, Judge and Janet Sutton, Special Judge


       Kenneth Figgins, Sr. appeals from the denial of his Rule 24.035 motion for post-

conviction relief following an evidentiary hearing. For the following reasons, the motion

court’s ruling is affirmed.

       Early in the morning on November 28, 2008, two armed men posing as law

enforcement officers entered the apartment of Theresa Cox, held the individuals present

in the apartment at gunpoint, and stole assorted property. Appellant was subsequently

identified by multiple victims as one of the two robbers.

       Appellant was charged in the Circuit Court of Jackson County with one count of

burglary in the first degree, § 569.160; one count of robbery in the first degree, §

569.020; four counts of kidnapping, § 565.110; one count of assault in the third degree,
§ 565.070; and six counts of armed criminal action, § 571.015. Following a jury trial, the

jury returned verdicts of guilty on ten counts, but acquitted Appellant on one of the

kidnapping counts (alleging that he had confined Brandon Kenney for the purpose of

committing first-degree robbery), the armed criminal action count associated with that

kidnapping count, and the assault in the third degree count (alleging that he had

knowingly caused offensive or provocative contact with Cox).                         Defense counsel

requested that the jury be polled. During the polling, Appellant made several outbursts

protesting his innocence and telling the jury, “I hope you hear my babies crying at night

when I’m in jail.” When asked if the guilty verdicts were her true verdicts, Juror #7

initially answered “yes” but then changed her answer to “no, honestly” and indicated that

she had reasonable doubt as to Appellant’s guilt.

        The trial court accepted the three not guilty verdicts and sent the jury back for

further deliberation on the remaining ten counts. Eventually, the jury was deemed to be

hung, and the trial court declared a mistrial as to the ten remaining counts.

        Appellant subsequently filed a motion asking the court to dismiss the ten

remaining counts on double jeopardy grounds, asserting that the State should be

collaterally estopped from trying him on those counts. That motion was denied.1

        On September 17, 2010, Appellant appeared before the court and entered an

Alford plea2 on the first degree robbery count. In exchange for his plea, the State


1
  Appellant subsequently sought a writ of prohibition from this Court asserting his double jeopardy claims,
and that motion was summarily denied. However, “the denial of a writ without the issuance of an opinion
‘is not a conclusive decision on the merits of the issue presented.’” McKim v. Cassady, 2015 WL
252295 at *5 (Mo. App. W.D. 2015) (quoting Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 61 (Mo.
banc 1999)).
2
 “In North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the U.S. Supreme
Court recognized a defendant could choose to plead guilty to a charged offense and accept criminal
penalty, although not admit actual guilt, when the record strongly supported a finding of guilt.” Johnson
v. State, 427 S.W.3d 299, 301 n.1 (Mo. App. E.D. 2014).
                                                    2
agreed to dismiss all of the other remaining counts and to recommend a sentence of no

more than twenty years imprisonment.              After questioning Appellant about his

understanding of the plea agreement and the rights he would be waiving, the plea court

accepted Appellant’s plea. The plea court subsequently sentenced Appellant to a term

of fifteen years imprisonment.

       On January 18, 2011, Appellant filed a timely motion for post-conviction relief

under Rule 24.035. An amended motion was subsequently filed by appointed counsel.

In relevant part, Appellant’s motion asserted (1) that his conviction and sentence on the

robbery count violated his right to be free from double jeopardy, (2) that plea counsel

was ineffective for failing to make a double jeopardy objection at the plea hearing, and

(3) that sentencing counsel was ineffective for failing to make a double jeopardy

objection at the sentencing hearing. Following an evidentiary hearing, the motion court

denied Appellant’s motion. Appellant brings three points on appeal.

       Appellate review of the motion court’s denial of a Rule 24.035 motion is limited to

a determination of whether the findings and conclusions of the trial court are clearly

erroneous. Hastings v. State, 308 S.W.3d 792, 795-96 (Mo. App. W.D. 2010) (quoting

Rule 24.035(k)). “A motion court’s findings and conclusions are clearly erroneous only

if the Court, after reviewing the entire record, is left with the definite and firm impression

that a mistake has been made.” Gehrke v. State, 280 S.W.3d 54, 56-57 (Mo. banc

2009). “We presume that the motion court’s findings and conclusions are correct, and

defer to the motion court’s determinations of credibility.” Nichols v. State, 409 S.W.3d

566, 569 (Mo. App. E.D. 2013) (internal quotation omitted).

       In his first point, Appellant contends that the motion court erred in denying his

post-conviction motion because double jeopardy precluded the court from convicting

                                              3
and sentencing him on the robbery count. He argues that his acquittal on three counts

by the jury served to preclude any further prosecution based upon collateral estoppel,

asserting that the jury must necessarily have determined that his mistaken identity

defense was valid and that someone else committed the crimes charged. In his second

point, Appellant claims that the motion court erred in failing to find plea counsel

ineffective for failing to make a double jeopardy objection based upon collateral

estoppel at the plea hearing. Similarly, in his third point, Appellant contends that the

motion court erred in failing to find sentencing counsel ineffective for failing to make a

double jeopardy objection at the sentencing hearing.3

        “The Fifth Amendment to the United States Constitution provides that no person

shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’” State

v. Cusumano, 399 S.W.3d 909, 914 (Mo. App. E.D. 2013) (internal quotation omitted).

“This protection applies to the states through incorporation into the Due Process Clause

of the Fourteenth Amendment.” Id.

        “In Ashe v. Swenson, [397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970),]

the Supreme Court held that the federal rule of collateral estoppel is embodied in the

Fifth Amendment guarantee against double jeopardy and applies to the states.” State

v. Simmons, 955 S.W.2d 752, 760 (Mo. banc 1997).                        “The Court stated that the

principle ‘means simply that when an issue of ultimate fact has once been determined

by a valid and final judgment, that issue cannot again be litigated between the same

parties in any future lawsuit.’” Id. (quoting Ashe, 397 U.S. at 448, 90 S.Ct. at 1194).

3
  The State argues on appeal that Appellant waived any direct challenge to his conviction on double
jeopardy/collateral estoppel grounds, as asserted in his first point, by pleading guilty. Because the
ineffective assistance of counsel claims asserted in Appellant’s second and third points require
consideration of the merits of his double jeopardy claim and because, as explained infra, we find his
double jeopardy claim wholly lacking in merit, we need not, and do not, consider whether Appellant’s right
to directly challenge his conviction on that basis was waived by his guilty plea.
                                                    4
“Its import in the criminal context, considering the ‘ultimate fact’ language from Ashe, is

that if a jury’s decision can be distilled to a specific and necessary finding of one

particular fact, or finding on one specific issue, that fact or issue is barred from

relitigation.” Id.      Accordingly, “[a]s a general proposition, collateral estoppel bars

relitigation of a specific fact or issue that was unambiguously determined by a previous

jury.” Id.

         “The doctrine of collateral estoppel only applies in a criminal case when the

issue determined in the prior case is the same as the issue in the pending case.” State

v. Dowell, 311 S.W.3d 832, 837 (Mo. App. E.D. 2010). “The defendant bears the

burden of showing that his prior acquittal bars the present prosecution because the

verdict there necessarily decided the issues now in litigation.” Cusumano, 399 S.W.3d

at 915 (internal quotation omitted).

        “To ascertain what issues a jury must have decided when it reached a general

verdict, a court must examine the record of a prior proceeding, taking into account the

pleadings, evidence, charge, and other relevant matter, and conclude whether a rational

jury could have grounded its verdict upon an issue other than that which the defendant

seeks to foreclose from consideration.”4                Id. at 914-15 (internal quotation omitted).

“Since it is usually impossible to determine with any precision upon what basis the jury

reached a verdict in a criminal case, it is a rare situation in which the collateral estoppel

defense will be available to a defendant.” Id. at 915 (internal quotation omitted).

4
  In conducting this analysis, “[a] hung count is not a ‘relevant’ part of the ‘record of the prior proceeding.’”
Yeager v. United States, 557 U.S. 110, 121, 129 S.Ct. 2360, 2367, 174 L.Ed.2d 78 (2009). “Because a
jury speaks only through its verdict, its failure to reach a verdict cannot – by negative implication – yield a
piece of information that helps put together the trial puzzle.” Id. “Unlike the pleadings, the jury charge, or
the evidence introduced by the parties, there is no way to decipher what a hung count represents.” Id. at
2368. “[C]onjecture about possible reasons for a jury’s failure to reach a decision should play no part in
assessing the legal consequences of a unanimous verdict that the jurors did return.” Id. Accordingly,
“consideration of hung counts has no place in the issue-preclusion analysis.” Id.
                                                       5
          In rejecting Appellant’s claims, the motion court noted:

           It does not require speculation on the part of this Court for it to conclude
           that the jury acquitted [Appellant] on the charges relating to Kenney
           (Counts XI and XII) and on the assault charge relating to Cox (Count XIII)
           as the result of the State’s failure to prove that the crimes were
           committed at all, rather than the identity of the perpetrator. The State
           provided no testimony from the victim of the alleged kidnapping, in the
           case of Kenney, and only the most meager testimonial description of the
           event giving rise to the alleged assault against Cox. Given the evidence
           produced by the State in this matter, it is infinitely more reasonable for
           this Court to find that the jury’s acquittal was based upon the State’s
           failure to prove, beyond a reasonable doubt, that the crimes charged in
           Counts XI through XIII occurred . . .

           The jury’s determination that [Appellant] did not unlawfully confine
           Kenney for a substantial period for the purpose of facilitating the
           commission of robbery with and through the knowing use, assistance and
           aid of a deadly weapon does not preclude a factual determination that
           [Appellant] forcibly stole property from Cox, and in the course thereof
           [Appellant] or another participant was armed with a deadly weapon.
           Likewise, the jury’s determination that [Appellant] did not cause offensive
           or provocative physical contact with Cox does not preclude a factual
           determination that [Appellant] forcibly stole property from Cox, and in the
           course thereof [Appellant] or another participant was armed with a deadly
           weapon.

The motion court’s reasoning is sound.

          At trial, Appellant did not concede that the charged events had occurred. In

addition to challenging the credibility of the victim’s identification, he also challenged the

credibility of their testimony with regard to the various charged crimes having even been

committed. He noted that multiple items of significant value had not been taken from

the apartment and asserted that “real victims” of such crimes would not have behaved

the way these victims had. He emphasized that Cox had taken a nap after the alleged

incident, that none of the victims contacted the police that day, that there were

inconsistencies in the victims’ accounts, and that the apartment had been cleaned.5 In


5
    Indeed, during closing argument, defense counsel stated:
                                                     6
short, his defense was not limited solely to a claim of misidentification as argued on

appeal.6

        With regard to the kidnapping and armed criminal action counts related to

Kenney, the State alleged that Appellant had unlawfully confined Kenney without his

consent for a substantial period of time for the purpose of facilitating the commission of

the robbery. Kenney did not testify at trial, and Defendant’s attorney emphasized the

fact that the witnesses that testified to his presence during the robbery first made those

assertions two weeks before trial, almost seven months after the robbery.                               The

credibility of those witnesses was strongly challenged by the defense. The jury could

simply have determined that it was not sufficiently proven that Kenney was present in

the apartment during the incident. In the alternative, the jury could have concluded that

the State failed to prove that Kenney had been confined during the incident, that any

such confinement was for a substantial period, or that such confinement was without

Kenney’s consent.

        With regard to the assault charge, Appellant was charged with having “caused

physical contact with Cox, knowing that Cox would regard such contact as offensive or

provocative.” Cox testified that, while she was alone in her bedroom with Appellant,



         You should expect people, victims, real victims, to tell the truth. Because a real victim would
         have an interest in protecting themselves, in telling the police everything they know as soon as
         they can get some relief, to get some protection. It is counter-intuitive to do anything to the
         contrary. A real victim does not take a two hour nap with her boyfriend after being robbed. Real
         victims do not remain in an apartment with all of their friends for hours and hours, cleaning up a
         crime scene. Real victims do not wait nearly eight months to tell the truth.
6
   In contrast, in Ashe v. Swenson, 397 U.S. 436, 438, 90 S.Ct. 1189, 1191, 25 L.Ed.2d 469 (1970), the
defense “made no attempt to question [the victims’] testimony regarding the holdup itself or their claims
as to their losses,” and “[t]he proof that an armed robbery had occurred and that personal property had
been taken from Knight as well as from each of the other [victims] was unassailable.” The record was
“utterly devoid of any indication that the first jury could rationally have found that an armed robbery had
not occurred, or that Knight had not been a victim of that robbery,” and “[t]he single rationally conceivable
issue in dispute before the jury was whether the petitioner had been one of the robbers.” 397 U.S. at 445,
90 S.Ct. at 1195. Accordingly, the case at bar is readily distinguishable from Ashe.
                                                     7
Appellant “just squeezed [her] butt a little” and that he “touched [her] butt and that’s it.”

While Cox testified that she screamed when Appellant touched her, no other witnesses

testified that they heard her scream at any point despite the fact the bedroom door was

left open. Also, while Cox testified that, after Appellant touched her bottom, he pick out

some clothes for her and had her put them on, testimony from other witnesses reflects

that Cox was still wearing a towel and got dressed after the robbers left. In addition,

Defense counsel pointed out inconsistencies in Cox’s various accounts of what had

occurred and emphasized the number of times that Cox was shown to have lied to the

police. The jury most certainly could have, and most likely did, simply disbelieve Cox’s

testimony that Appellant had touched her in an offensive or provocative manner.

        Appellant pleaded guilty to the first degree robbery count, which accused him of

forcibly stealing specified items from Cox while he or another participant was armed

with a deadly weapon. Determinations by the jury that Appellant did not assault Cox

and did not unlawfully confine Kenney do not unambiguously preclude a finding that he

robbed Cox. “A jury may accept part of a witness’s testimony, but disbelieve other

parts.” State v. Williams, 313 S.W.3d 656, 660 (Mo. banc 2010) (internal quotation

omitted).

        Because a rational jury could have grounded its acquittal verdicts upon an issue

or issues other than that which the defendant would have sought to foreclose from

consideration,7 collateral estoppel would not preclude the plea court from accepting


7
  Appellant mistakenly argues that the plea court’s decision cannot be reconciled with Yeager v. United
States, 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009). In that case, the Supreme Court expressly
limited its consideration to “whether an apparent inconsistency between a jury’s verdict of acquittal on
some counts and its failure to return a verdict on other counts affects the preclusive force of the acquittals
under the Double Jeopardy Clause of the Fifth Amendment.” 557 U.S. at 112, 129 S.Ct. at 2362-63. It
concluded that the Fifth Circuit Court of Appeals had erred in concluding that an apparent conflict
between the acquittals and the hung counts barred the application of issue preclusion in the case. 557
                                                      8
Appellant’s guilty plea on the robbery count. Because any such objection would have

been meritless, counsel cannot be deemed ineffective for failing to object on that basis

at the plea hearing or sentencing hearing. Mullins v. State, 262 S.W.3d 682, 685 (Mo.

App. E.D. 2008). “If there is no double jeopardy violation, a claim that counsel was

ineffective for failure to object on double jeopardy grounds is moot.” Id. Points denied.

        The motion court’s decision is affirmed.




                                                           _______________________________

                                                           Joseph M. Ellis, Judge

All concur.




U.S. at 115, 129 S.Ct. at 2365. The Court expressly declined to address the Government’s contention
that “the petitioner [had nevertheless] failed to show that the jury necessarily resolved in his favor an
issue of ultimate fact that the Government must prove in order to convict him of insider trading and money
laundering,” stating “[w]e decline to engage in a fact-intensive analysis of the voluminous record, an
undertaking unnecessary to the resolution of the narrow legal question we granted certiorari to answer.”
557 U.S. at 125, 126, 129 S.Ct. at 2370. It left consideration of that issue for the Fifth Circuit. 557 U.S. at
126, 129 S.Ct. at 2370.
                                                      9
