                 In the Missouri Court of Appeals
                         Eastern District
                                     DIVISION FOUR

NATHAN HANNON,                                )   No. ED102443
                                              )
                       Respondent,            )   Appeal from the Circuit Court
                                              )   of City of St. Louis
v.                                            )
                                              )
STATE OF MISSOURI,                            )   Hon. Edward W. Sweeney, Jr.
                                              )
                       Appellant.             )   Filed: March 15, 2016

                                         DISSENT

       Without a doubt, the procedural aspects of this case are unusual. So too is the

judgment of the motion court, which is 83 pages in length and considers issues not raised

in the amended post-conviction motion. There is, however, nothing particularly unusual

about the trial conducted in this case, nor the law governing the prosecution of child

molestation cases and claims of ineffective assistance of counsel. Because I find Movant

has failed to demonstrate either prong of the Strickland analysis, I respectfully dissent.

                                        Performance

       The first issue to be resolved is whether the motion court found Trial Counsel

ineffective for failing to “thoroughly” investigate the school records by not obtaining a

copy of the records or found Trial Counsel ineffective for conducting no investigation at

all into these records. These two separate and distinct alleged omissions were squarely

before the motion court. After combing through the motion court’s judgment, the
majority concludes the motion court found Trial Counsel had undertaken no investigation

at all into the school records.

        While the motion court found Trial Counsel lacked credibility, the court never

explicitly found that Trial Counsel failed to undertake any investigation at all. The

motion court did, however, make explicit findings that Trial Counsel’s informal

investigation and failure to obtain the records were unreasonable. Even if it could be said

the motion court found Trial Counsel made no investigation into the school records at all,

Movant has still failed to demonstrate that he received ineffective assistance of counsel.

        Trial Counsel testified he made an informal inquiry regarding the school

attendance records and ultimately concluded the records would not aid the defense theory

that Movant was not the perpetrator and, therefore, Victim’s presence at school on

October 3 was insignificant. The relevant question is whether Trial Counsel’s failure to

obtain the records indicating Victim’s attendance at school on October 3, 2005 or, in the

alternative, Counsel’s failure to inquire into the records at all, can be considered a

reasonable investigation or a reasonable decision rendering that particular investigation

unnecessary. See Barton v. State, 432 S.W.3d 741, 759 (Mo. banc 2014) (“counsel has a

duty to make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary”). If Trial Counsel’s informal inquiry revealed

Victim was at school on the alleged date of occurrence, consistent with the actual records,

and Counsel chose not to obtain the records based on a strategic decision to pursue an

alternative defense, such decision would be “virtually unchallengeable.” Barton, 432

S.W.3d at 749, quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80




                                              2
L.Ed.2d 674 (1984) (“‘[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable[.]’”).

       In this case, the defense’s strategy at trial was not to deny Victim had been abused

but to argue Movant was not the perpetrator. Movant admitted he frequented Mother’s

house but asserted he stopped going by the house in August 2005 after getting into an

argument with Mother. The defense also suggested the assailant was another man also

named Nate who frequented the neighborhood, was familiar with the children, and

matched Victim and Sister’s physical description of the perpetrator to the extent police

included the “other” Nate’s photograph in a photo array presented to the children. While

neither the motion court nor the majority expressly doubt the reasonableness of the

strategy employed, both ultimately find Trial Counsel was required to investigate and

utilize the school attendance records to impeach Victim and Sister in order to provide

effective representation. Contrary to the assertions otherwise, this amounts to second-

guessing Counsel’s trial strategy.

       Again, “‘strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable[.]’” Barton, 432 S.W.3d at

749, quoting Strickland, 466 U.S. at 690. In rendering their conclusions, the motion

court and majority opinion fail to adequately consider the prevailing precedent regarding

the prosecution of child molestation cases.

       “Time is not essential in child sexual abuse cases because it can be impossible to

ascertain specific dates of the sexual abuse.” State v. Miller, 372 S.W.3d 455, 464 (Mo.

banc 2012). Missouri courts have held that allegations of abuse having occurred during




                                              3
times ranging from a 24-day period to a span of four and one-half years were sufficient

for notice and due process purposes. Id. at 465.

       Furthermore, as we recognized in Movant’s direct appeal, it is firmly established

in the law that “in cases dealing with very sensitive subjects, it is common for the

testimony of a victim of tender years to contain some variations, contradictions or lapses

in memory.” State v. Hannon, 398 S.W.3d 108, 115 (Mo. App. E.D. 2013), quoting State

v. Sapien, 337 S.W.3d 72, 77 (Mo. App. W.D. 2011). See also State v. Kelley, 945

S.W.2d 611, 615 (Mo. App. S.D.1997).

“Inconsistencies or contradictions in statements by a young child relating a sexual

experience do not, by themselves, deprive the testimony of all probative force.” State v.

Mattic, 84 S.W.3d 161, 169 (Mo. App. W.D. 2002), J.M.G. v. Juvenile Officer, 304

S.W.3d 193, 196 (Mo. App. W.D. 2009).

       In light of the fact that the State charged Movant with acts occurring “on or about

October 3, 2005,” and the clear legal precedent that time is not essential in child sexual

abuse cases and that variations, contradictions, and lapses in memory of child witnesses

are generally accepted, Trial Counsel’s decision not to investigate or to obtain the school

records was not unreasonable trial strategy. Victim was 8 years old at the time of the

offense, 11 years old when he first revealed the abuse, and 13 years old at the time of

trial. Sister was 10 years old at the time of the offense and 15 years old at the time of

trial. The evidence at trial was that Mother was a drug addict who was frequently “high,”

people came to the home to sell and use drugs, Mother frequently left the children alone

for periods of time, and Movant visited the home daily. The point of reference for the

children regarding the date of the assault was that the assault occurred the day before they




                                              4
had to call for help after discovering their Mother overdosed on heroin and were

subsequently removed from their home. It was reasonable trial strategy for Trial Counsel

to have chosen a defense strategy based upon on Victim’s honest mistake in identifying

his abuser which did not require Counsel to attack the credibility of the young,

sympathetic witnesses on what is largely a legally insignificant collateral detail.

                                         Prejudice

       With regard to prejudice, the motion court and the majority find Movant

demonstrated a reasonable probability that the outcome of the trial would have been

different but for Trial Counsel’s failure to investigate Victim’s school attendance records.

In doing so, both place undue significance on the fact that the State presented evidence

and argument that the assault occurred on October 3, 2005. The motion court found

impeaching Victim and Sister with the school records would have forced the State to

completely restructure its case and there was “simply no way to know for sure whether or

not the prosecution could have convinced a jury beyond a reasonable doubt the [Movant]

was guilty.” The majority opinion contends the State’s evidence was time-specific and

goes so far as to say the evidence established “the molestation only could have occurred

on October 3, 2005.”

       This position fails to adequately recognize the firmly established legal principles

that time is not essential in child abuse cases and it is common for there to be variations,

contradictions, or lapses of memory in the testimony of a victim of tender years. Instead,

both courts assert this evidence with the potential to reveal the faulty memory of an eight-

year-old victim and his ten-year-old sibling as to the singular detail of whether Victim




                                              5
was home sick on the day of the assault five years after the fact would be so devastating

to the prosecution’s case that it undermines confidence in the outcome of Movant’s trial.

       Although analyzed under a slightly different standard, this Court’s opinion in

Movant’s direct appeal succinctly sets forth why the motion court’s and the majority’s

reasoning is faulty:

       Even if we assume the attendance records are credible, they are not
       reasonably sufficient to raise a substantial doubt in a reasonable person’s
       mind as to the result of a new trial. The school records would merely
       demonstrate that [Victim] incorrectly recalled being absent from school on
       October 3, 2005. The fact that [Victim] was at school that day does not
       exclude the possibility that [Movant] committed the offenses before or
       after school that day or another day that was “on or about October 3,
       2005.” Mother testified that prior to her heroin overdose, she left her
       children unattended for periods of time and got “high” every day. [Victim]
       testified that “when [he] came home at night, [he] came home sometimes
       by [himself].” According to the testimony of Mother and [Victim],
       [Movant] visited their house every day or every other day until the date of
       the incident. Although [Movant] denied going to their home after his
       August 2005 argument with Mother, he admitted that before the argument
       he went there “a whole lot” to acquire and use heroin and that “sometimes
       [he] wouldn’t go down there maybe for a day.”

State v. Hannon, 398 S.W.3d 108, 114 (Mo. App. E.D. 2013). It unclear why these facts

and the underlying rationale are no longer compelling. Today, as it was at the time of

Movant’s direct appeal, it is simply of no moment whether the assault occurred during

the school day on October 3, or before or after school on October 3, or on another day

that was “on or about October 3, 2005.”

       In support of its opinion, the majority compares the case sub judice to Smith v.

State, 370 S.W.3d 883 (Mo. banc 2012), characterizing it as “virtually indistinguishable.”

Smith involved counsel’s failure to interview and potentially call as a witness the man

who had previously pled guilty to the crime and who was alleged to be Smith’s

accomplice. Id. at 885. During post-conviction proceedings, it was revealed that Smith’s



                                            6
alleged accomplice would have testified favorably for Smith, testifying Smith was not

involved in the crime. Id. This testimony was exculpatory evidence going directly to

whether Smith was guilty of the crime and could have provided Smith a complete defense

to the charges. Exculpatory evidence is “[e]vidence tending to establish a criminal

defendant’s innocence.” Black’s Law Dictionary 637 (9th ed. 2009). The instant case

involves the alleged failure to investigate and utilize impeachment evidence, “[e]vidence

used to undermine a witness’s credibility.” Id. “‘The failure to impeach a witness will

not constitute ineffective assistance of counsel unless such action would have provided a

viable defense or changed the outcome of the trial.’” Woods v. State, 458 S.W.3d 352,

366-67 (Mo. App. W.D. 2014), quoting Thompson v. State, 437 S.W.3d 253, 263 (Mo.

App. W.D. 2014). The school records would have served only to impeach Victim’s and

Sister’s testimony that Victim was home sick on October 3, 2005. In no way do the

school records provide a complete defense or establish Movant’s innocence to the charge

of first-degree statutory sodomy.

       Although not explicitly stated, implicit in both the motion court’s judgment and

the majority opinion is a finding that Trial Counsel not only had to “investigate” the

school attendance records, but also was required to obtain said records and to utilize

those records to impeach Victim and Sister. To be clear, the underlying premise of these

rulings is that anything other than this specific attack on the credibility of the child

witnesses was unreasonable trial strategy resulting in prejudice.

       Because I am left with a definite and firm impression that the motion court

findings and conclusions are in error, I would reverse the motion court’s judgment

granting Movant post-conviction relief. Movant has failed to demonstrate Trial




                                               7
Counsel’s performance did not conform to the degree of skill, care, and diligence of a

reasonably competent attorney or that there is a reasonable probability that, but for

Counsel’s performance, the outcome of the proceeding would have been different.




                                                     Sherri B. Sullivan, P.J.




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