                        In the Missouri Court of Appeals
                                Eastern District
                                       DIVISION ONE

OMORUYI OBASOGIE,                           )      No. ED100784
                                            )
          Appellant,                        )      Appeal from the Circuit Court
                                            )      of St. Louis County
vs.                                         )
                                            )
STATE OF MISSOURI,                          )      Hon. Robert S. Cohen
                                            )
          Respondent.                       )      FILED: December 2, 2014

          Omoruyi Obasogie (“Movant”) appeals from the judgment of the motion court that

denied his motion for post-conviction relief after an evidentiary hearing. Finding no error, we

affirm.

          At about 1:00 a.m. on November 2, 2009, Movant, Anwar Randle, and an unidentified

man broke into a home occupied by Cameron Bass and Kena Coleman, who were asleep at the

time. Both Bass and Coleman knew Randle but did not know Movant or the third man. Bass

and Coleman awoke, and Coleman went into the hallway to investigate while Bass hid in the

bedroom closet. Coleman first saw Randle coming out of a bedroom door. The lights were on in

the laundry room and in the kitchen. Coleman then saw Movant and the third man, armed with a

small handgun and a shotgun respectively, enter her home through the back door. She screamed

at them to get out of her house. Randle shoved Movant into her bedroom. Movant and Randle

then entered the bedroom looking for Bass. Movant pointed the handgun at Bass and told him to

get out of the closet. Movant fired the gun but struck no one. Bass fled through the closet into
an adjacent bedroom. Randle and the unidentified man pursued him and beat him with the butt

of a shotgun and a glass bottle. Eventually, the three intruders left.

       Bass then called the police. The resulting police dispatch stated that three black males

had entered a residence and shots had been fired. A St. Louis County police officer observed

three black males, Movant and the other two intruders, driving in the area. The officer initiated a

traffic stop on the vehicle. Movant, who was driving the car, pulled over, and the unidentified

man exited and fled on foot. Movant and Randle remained in the car and sped away at high

speed. They were later apprehended by multiple police officers in a parking lot.

       Movant was charged with burglary in the first degree (Count I), assault in the first degree

(Count III), and two counts of armed criminal action associated with the other felonies (Counts II

and IV). At trial, the State cross-examined Movant regarding his prior convictions. Movant’s

counsel objected to the State’s examination on this point. After a sidebar discussion, the court

asked the prosecutor to stop questioning Movant about the convictions, to which the prosecutor

agreed. At closing argument, the State made two points, among others. First, as to the unnamed

third perpetrator who escaped arrest, the State argued that Movant or his counsel knew Randle’s

current residence, and that Randle knew the identity of the third perpetrator. Second, the State

asked the jurors to determine whose testimony had been truthful: that of Coleman and Bass or,

rather, Movant. The jury convicted him of burglary in the first degree, assault in the second

degree, and two counts of armed criminal action. Movant was sentenced to three 12-year

sentences and one 7-year sentence, all to be served concurrently.

       Movant appealed, asserting four points of error. This Court affirmed Movant’s

convictions in State v. Obasogie, 370 S.W.3d 888 (Mo. App. 2012). Movant timely filed a

motion for post-conviction relief pursuant to Rule 29.15, subsequently amended by appointed



                                                  2
counsel. Chief among Movant’s allegations was that appellate counsel was ineffective for failing

to assert a claim of insufficiency of the evidence regarding Count II, the armed criminal action

count associated with Count I, burglary in the first degree..

          The motion court held an evidentiary hearing on May 25, 2013, after having issued writs

of habeas corpus for Movant and Randle to be present at the hearing. The Missouri Department

of Corrections apparently misread one of the writs, thinking that the motion court had issued two

writs for Movant instead of one each for Movant and Randle, and failed to deliver Randle.

Movant requested a continuance of the hearing on this basis, which the motion court denied,

noting that most of the claims had nothing to do with Randle and that it would bring him in if

any of the claims required his presence to resolve. Movant’s trial counsel, appellate counsel,

Movant, and Movant’s mother each testified at the hearing. The motion court denied Movant’s

amended motion for post-conviction relief and made findings of fact and conclusions of law.

          The motion court found that the cases relied on by Movant in support of his contention

that appellate counsel was ineffective for failing to assert a claim of insufficiency of the evidence

on direct appeal were distinguishable. It noted that in the cases cited by Movant that the

defendants had entered the homes unseen by the victims and were already inside the houses

when it was discovered that they were armed with weapons. It found that in the present case, in

contrast, Coleman saw Movant and the third man both armed with firearms when they entered

her house through the back door, and that Movant used that same gun to assault Bass in the

bedroom. The motion court found that Coleman’s testimony was sufficient to support Count II

and found that appellate counsel was not ineffective for failing to assert this claim on direct

appeal.




                                                  3
       Regarding Movant’s other claims of ineffective assistance of trial counsel, the motion

court found that trial counsel’s decision not to submit a lesser-included offense for assault in the

third degree was reasonable trial strategy, as there was no basis for such an instruction. It also

found that Movant was not credible regarding his testimony that he gave Randle’s contact

information to trial counsel or that trial counsel never told him that he had the right not to testify

and that his prior convictions could be introduced if he did testify. The motion court both

explicitly and implicitly found trial counsel’s testimony on these issues to be credible. It

concluded that Movant was provided effective assistance of counsel, that he was not denied

rights under the U.S. Constitution or the Missouri Constitution, and that he failed to establish any

basis to have his sentence vacated, set aside, or corrected. Movant now appeals from this

judgment.

       Our review of the motion court’s denial of 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); Helmig v. State, 42 S.W.3d 658, 665-66 (Mo. App. 2001). Findings

and conclusions are clearly erroneous only if, after a review of the record, we are left with a

definite and firm impression that a mistake was made. Id.

       To prove ineffective assistance of counsel, Movant must demonstrate by a preponderance

of the evidence that: (1) counsel’s performance failed to conform to the degree of skill, care and

diligence of a reasonably competent attorney under similar circumstances, and (2) Movant was

prejudiced by counsel’s poor performance. Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002),

citing Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the first prong of the

Strickland test, Movant must overcome a presumption that the challenged action constituted

sound trial strategy. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). The second



                                                  4
Strickland prong necessitates that Movant “show a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different.” Id. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Deck v. State, 68 S.W.3d 418,

429 (Mo. 2002). If Movant fails to prove either prong of the Strickland test, we need not

consider the remaining prong. Buckner v. State, 35 S.W.3d 417, 420 (Mo. App. 2000).

       In his first point relied on Movant contends that the motion court clearly erred in denying

his amended motion for post-conviction relief because he proved by a preponderance of the

evidence that he was denied his constitutional rights to due process of law and effective

assistance of counsel. He avers that appellate counsel was ineffective for failing to assert on

direct appeal that the trial court erred in overruling his motion for judgment of acquittal at the

close of all evidence as to Count II on the grounds that the State failed to make a submissible

case and that there was insufficient evidence from which a reasonable jury could find him guilty.

But for this alleged error, Movant claims that there is a reasonable probability that the outcome

of his direct appeal would have been different.

       To prevail on a claim of ineffective assistance of appellate counsel, a movant must

establish that the appellate counsel failed to assert a claim of error that was so obvious that a

reasonably competent attorney would have perceived the error and asserted it. Tisius v. State,

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

so as to produce a reasonable probability that if it had been raised, the outcome of the appeal

would have been different. Id. The movant must overcome the presumption that, under the

circumstances, the challenged action could be considered sound strategy. Holman v. State, 88

S.W.3d 105, 110 (Mo. App. 2002). Appellate counsel has no obligation to assert every issue




                                                  5
raised in the motion for a new trial he makes the strategic decision to drop some arguments in

favor of others. Id.

          Appellate counsel testified at the evidentiary hearing that he should have raised the issue

of insufficiency of evidence regarding Count II on direct appeal, and that he did not have a

strategic reason for not asserting it, but rather that it seemed that he “just missed the

insufficiency in that claim.” Appellate counsel further testified that he believed that the outcome

of the direct appeal would have been different if he had raised the insufficiency claim as to

Count II. He also testified that this was manifestly prejudicial to Movant even though all of his

sentences were concurrent. Appellate counsel testified he thought that the evidence showed

when Coleman first saw “the assailants” that they were already in the house, either inside the

kitchen or inside the hallway. He further stated that if someone were seen illegally entering a

building, it would be burglary and that if anyone in that building saw them enter the building

holding a firearm in their hand that this might be sufficient to support a charge of armed criminal

action.

          At Movant’s trial, Coleman testified as follows:

          State: Now, you saw Mr. Randle coming out of the bedroom door here. What
                 else did you see?

          Coleman: I saw [Movant] and another guy with dreads come into the back door.

          …

          State: And did you see anything in anybody’s hand?

          Coleman: Yes.

          State: And what was that?

          Coleman: [Movant] had a small handgun, and the guy with the dreads had a
                shotgun.



                                                   6
In other words, there was evidence that a person in the house, Coleman, saw Movant armed with

a weapon prior to entering the house.

           Movant argues that the motion court was incorrect in finding the present case to be

distinguishable from State v. Carpenter, 109 S.W.3d 718 (Mo. App. 2003) and State v. Dudley,

51 S.W.3d 44 (Mo. App. 2001), cases that he relied on in his amended motion. In both of those

cases, the defendants were already present in the house when they were first seen by anyone in

the house. As the testimony above indicates, Coleman saw Movant and the other unknown

defendant, weapons in hand, as they entered her house. Movant asserts that in order to be

convicted for armed criminal action in this circumstance, he or the unidentified third man would

have had to shoot the back door open or explicitly threaten Coleman by words or by pointing a

gun at her. In support of this assertion, Movant relies on dicta in Carpenter, 109 S.W.3d at 723,

wherein the appellate court opined that the synergistic effect of combining section 569.160.1(3)

and section 571.015 was to require that a defendant had to use the weapon to break open the door

or to point the weapon at someone in the house and explicitly threaten him or her to compel that

person to open the door in order to sustain a conviction for armed criminal action based on first

degree burglary under section 569.160.1(3).1

           Under the language of the statutes on burglary and armed criminal action, as charged in

Carpenter, Dudley and in the present case, a defendant must have gained entry “by, with, or

through the use, assistance, or aid of” the weapon to sustain the armed criminal action count.2

In both Dudley and Carpenter, the respective defendants did not use the weapon to break open a

door or a window, and they were both inside the house when first seen by the victims; hence they

did not use the weapon to intimidate someone prior to entering the home. Accordingly, the


1
    All statutory citations are to RSMo. 2000.
2
    Specifically, the defendants in all three cases were charged with first degree burglary under section 569.160.1(3).

                                                             7
Carpenter court held that defendants in those cases did not gain entry “by, with, or through the

use, assistance or aid of” the weapon at issue. The dicta in Carpenter that defendant would have

had to use the gun to break open the door or to display a weapon and explicitly threaten someone

to gain entry, was not required by the language of the statute and was not necessary to reach its

holding in that case.

        In the present case, Movant was openly displaying the gun in his hand as Coleman saw

him enter her house. The jury could reasonably infer that there was an implicit threat to

Coleman by Movant’s display of the gun in his hand; he did not need to point the gun at her or to

make an explicit verbal threat. There was sufficient evidence to sustain the conviction for armed

criminal action, Count II, associated with the burglary count. Accordingly, appellate counsel

was not ineffective for failing to assert an issue without merit. Point denied.

        We will address Movant’s second and third points relied on together. In his second point

relied on Movant argues that the motion court clearly erred by denying him a full evidentiary

hearing by refusing to allow Movant to present Randle’s testimony, which effectively denied his

claim that trial counsel was ineffective for failing to investigate and call Randle to testify at

Movant’s trial, thereby denying him his constitutional rights to due process of law. He avers that

he pleaded facts, not conclusions, which were not refuted by the record which, if true, would

entitle him to relief. In his third point relied on, asserted in the alternative to his second point

relied on, Movant claims that the motion court clearly erred in denying his motion for post-

conviction relief because a review of the record leaves a definite and firm impression that he was

denied effective assistance of counsel. Movant alleges that trial counsel was ineffective in

failing to investigate Randle at all and by failing to call him at trial, since Movant alleged that

Randle would have testified that Movant never left the car, never entered Coleman’s residence,



                                                   8
never encountered Coleman or Bass, never possessed a firearm, and was totally innocent of the

charges.

       Appellate courts defer to “‘the motion court’s superior opportunity to judge the

credibility of witnesses.’” Barton v. State, 432 S.W.3d 741, 760 (Mo. banc 2014) (quoting State

v. Tventer, 818 S.W.2d 628, 635 (Mo. banc 1991)). The motion court was free to believe or

disbelieve any evidence, including testimony, whether undisputed or contradicted. Rios v. State,

368 S.W.3d 301, 317 (Mo. App. 2012).

       Movant’s trial counsel testified at the evidentiary hearing. He testified that Movant said

he would provide him with Randle’s contact information in Chicago, but Movant never gave him

that information. Trial counsel stated that he asked Movant several times for Randle’s contact

information, “but he never gave us a phone number or address or any way to find him in

Chicago.” Trial counsel said that a day or so before trial, Movant gave him a purported affidavit

from Randle regarding Movant’s innocence of the charges. He testified that he remembered

seeing it, but that it was of no use to Movant because it was inadmissible hearsay. Trial counsel

stated that he shared Randle’s “affidavit” with the State, which replied that it was hearsay. Trial

counsel repeated that he had no way to contact Randle, that Movant did not have a phone number

or address for Randle, and told trial counsel “on numerous occasions” that he would get Randle

for him, but did not. The trial court found trial counsel to be credible. It found Movant’s

testimony that he gave accurate contact information for Randle to trial counsel to be not credible.

The motion court, which also presided over Randle’s trial, noted that it was not credible that

Randle would have testified at Movant’s trial given that Randle “jumped bond” in his own case

and had bondsmen’s agents and police officers actively searching for him, and “was completely




                                                 9
unavailable to everybody” including the court, and “[n]obody could reasonabl[y] think

otherwise.”

       The motion court did not clearly err in denying Movant’s claim for post-conviction relief

that trial counsel was ineffective for failing to investigate Randle and to call him as a witness,

nor did the motion court clearly err or abuse its discretion in not continuing the evidentiary

hearing to obtain Randle’s testimony. Randle’s testimony was not necessary for the motion

court to rule on Movant’s amended motion for post-conviction relief. The motion court found

trial counsel credible that Movant failed to provide him with Randle’s contact information,

which clearly refutes Movant’s allegations. It explicitly found Movant to be not credible. Based

on the record before the motion court, the motion court could reasonably conclude that Randle

would not have testified at trial, rendering his proposed testimony irrelevant. Movant clearly is

not entitled to relief, and appellate courts will not order a useless remand in such a circumstance.

Ervin v. State, 80 S.W.3d 817, 825-26 (Mo. banc 2002). Points denied.

       The judgment of the motion court is affirmed.


                                       _____________________________________
                                       CLIFFORD H. AHRENS, Judge

Lawrence E. Mooney, P.J., concurs.
Glenn A. Norton, J., concurs.




                                                 10
