 

In the Missouri Court of Appea[s
Eastem District

DIVISION FOUR
ANDRE ADAMS, ) ED]039S3
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
v. ) 1222-€€10323
)
STATE OF MISSOURI, ) Honorable Edward W. Sweeney
)
Respondent. ) Filed: February 7, 2017

Introduction
Andre Adarns (Movant) appeals the judgment of the motion court denying his
motion for post-conviction relief under Rule 29.15l without an evidentiary hearing He
argues both his trial counsel and his appellate counsel were ineffective for failing to contest
two of his misdemeanor convictions, and that his trial counsel Was ineffective for failing
to object to comments the prosecutor made during direct examination of a Witness. We
affirm.
Background
Movant was convicted by a jury of four counts of statutory sodomy in the first

degree involving a child less than 12 years of age and two counts of furnishing

 

1 All rule references are to Mo. R. Criin. P. (2013) unless otherwise indicated

 

pornographic material to a ininoi'. The trial court sentenced him as a prior offender to
concurrent terms of 30 years in prison for each count of statutory sodomy, and concurrent
terms of l year for the counts of furnishing pornographic material to a minor, for a total
sentence of 30 years. This Court affirmed his convictions and sentences on appeal w
v. Adams, 377 S.W.3d 614 (Mo. App. E.D. 2012).

Movant timely filed a pro se motion seeking to vacate his convictions and sentences
under Rule 29. l 5. Latei', Movant’s appointed counsel requested a 30-day extension of time
iri which to file an amended motion, and filed such motion on October 28, 2013, the date
it would have been due with a 150-day extension The trial court denied l\/Iovant’s amended
motion without an evidentiary hearing This appeal follows.

Standard of Review

Oui' review of the motion court’s denial of a motion for post-conviction relief is
“limited to a determination of whether the findings of fact and conclusions of law are
clearly erroiieous.” Hicl<ey v. State, 328 S.W.3d 225, 227 (Mo. App. E.D. 2010) (citing
Rule 29.15(1<)). Findings and conclusions are clearly erroneous “only if, after a full review
of the i‘ecoi'd, this Court is left with a definite and firm impression that a mistake has been
made.” l_d_. To be entitled to an evidentiary hearing, Movant must have alleged facts, not
conclusions, that would entitle him to relief and that are not refuted by the record. idz at
227-28. The facts alleged must also establish Movant was prejudiced, meaning a
reasonable probability exists that but for counsel’s errors, the result of the proceeding

would have been different log

 

Discussion

Movant raises three points on appeal. He argues in Points l and ll that his trial
counsel and his appellate counsel, respectively, were ineffective for failing to contest the
verdicts regarding furnishing pornography to a minor due to the fact that the jury did not
view the alleged pornography in evidence. Movaiit argues in Point III that his trial counsel
was ineffective for failing to object to the prosecutoi"s remarks during the State’s direct
examination of the victim. We discuss each in turn.2

Pointsl and ll

In Point I, Movant argues that his trial counsel was ineffective for failing to object
or move for a new trial based on potential jury misconduct when the jury did not view the
alleged pornographic video in evidence yet convicted Movant of two counts of furnishing
pornography to a ininor. In Point II, Movant argues that his appellate counsel was
ineffective for failing to raise this issue on appeal. Because these are not cognizable claims
in a motion under Rule 29.15, we must deny both points.

Rule 29.15(a) states, “A person convicted of a felony after trial . . . may seek relief
in the sentencing court pursuant to the provisions of this Rule 29. l5.” By its own terms,
relief under Rule 29.15 exists only for felony convictions and excludes relief from
misdemeanor convictions Newton v. State, 359 S.W.Bd 54, 56 (Mo. App. W.D. 2011)

(citing Gehrke v. State, 280 S.W.3d 54, 56 (Mo. banc 2009); Johnsoii v. State, 128 S.W.3d

 

2 Tlie State argues as a threshold matter that we must remand to the motion court for an independent inquiry
regarding whether Movant was abandoned by postconviction counsel because, althouin Movant’s amended
motion was filed within the period of a 30-day extension, there is nothing in the record showing the trial court
granted Movant’s counsel’s request for an extension of time. However, the motion court's judgment states
that Movant`s motion was timely and proceeds to adjudicate the merits of Movant’s amended motion, which
we infer was either the result of the motion court’s decision to grant the extension or of its acceptance of the
late motion as tiinely. gee Sanders v. State, 807 S.W.Zd 493, 495 (Mo. banc 1991) (motion court considers
motion timely filed when delay was fault cf counsel rather than movant). In either case, adjudication of
Movant’s amended motion was proper here, and no purpose is served by remand foran abandonment inquiryl

3

 

624, 625 n.l (Mo. App. W.D. 2004)', Smith v. State, 60 S.W.3d 31, 34 (Mo. App. S.D.
2001)). This includes cases in which a movant is convicted both of one or more felonies
along with one or more misdemeanors l_dr,,

'l`hus, Movant may not pursue relief from misdemeanor convictions under Rule
29.15. His argument for an inference that the jury failed to follow instructions, thus tainting
his entire verdict and sentence, is unsupported by any reference to the record or legal
precedent The facts alleged in l\/lovant’s motion relate only to his misdemeanor
convictions, and as such, were not cognizable under Rule 29.15. The motion couit did not
clearly err iii denying his claims in this respect. Poiiits l and ll denied.

PO_iIltlli

Movaiit argues that his trial counsel was ineffective for failing to object to certain
statements made by the prosecutor during direct examination of the victim. We disagree

ln order to be entitled to a hearing on his claim of ineffective assistance of counsel,
Movant had to allege unrefuted facts showing his counsel’s performance fell below the
standard of skill, care, and diligence of a reasonably competent attoi'ney, and that Movant
was prejudiced in that but for counsel’s errors, the outcome would have been different
l_lMy, 328 S.W.3d at 227; Strickland v. Washington. 466 U.S. 668, 687 (1984).
Decisions about whether to make objections at trial are left to the judgment of counsel.
Helmig v. State, 42 S.W.3d 658, 678 (Mo. App. E.D. 2001). There is “a strong presumption
that connsel’s conduct falls within the wide range of reasonable professional assistance.”
Stricl<land, 466 U.S. at 669. The failure to object, even to objectionable comments, does
not itself establish a right to relief. State v. Link, 965 S.W.2d 906, 912 (Mo. App. S.D.

1998). Rather, Movant must establish that “tlie comment was of such a character that it

 

resulted in a substantial deprivation of [liis] right to a fair trial.” l€_l_- (Cluoting M
M<L, 831 S.W.2d 266, 272 (Mo. App. E.D. 1992)).

Hei'e, during the State’s direct examination of the victim, the prosecutor made the
following statements:

[Prosccutor]: . . . l see that you keep looking over there at
[Movant]?

[Victim]: Yeah.

[Prosecutorj: And I don’t see the sinile l normally see. Ai‘e you
- are you nervous about being here in front of [Movant]?

[Victim]: Yes.

[Prosecutor]: You don’t have to look over there if you don’t
want to, okay?

[Victim]: Yes.

Specifically, Movant argues that the prosecutor’s phrase, “l don’t see the sinile l normally
see,” amounted to improper testimony by the prosecutor. lt is permissible for a prosecutor
to comment on the demeanor of a witness. w State v. Wriglit, 216 S.W.3d 196, 201 (Mo.
App. S.D. 2007) (prosecutor’s comment regarding victim’s nervous demeanor was within
prosecutor’s right to comment on witness’ credibility from State’s viewpoint); Ljnk_, 965
S.W.2d at 912 (though prosecutor may not make argument indicating he or she has special
knowledge of facts showing defendant is guilty, prosecutor may comment on appearance
and demeanor of witness). The prosecutor’s comments liei‘e, in context, related to the
victim’s anxiety with testifying in Movant’s presence.

Moreover, l\flovant has failed to allege unrefuted facts showing he was prejudiced
here. The prosecutor elicited testimony from the victim’s older sister regarding the

victim’s usual demeanor:

 

[Prosecutor]: Would you say lthe victim] smiles a lot?

[Witness]: Yes.

[Prosecutor]: Most of the time?

[Witness]: Yes.
Thus, to the extent Movant argues the prosecutoi"s comment regarding the victim’s normal
demeanor improperly injected evidence into the trial, such evidence was nevertheless
properly before the jury through the victim’s sister’s testimony. Movant’s claim that a
reasonable probability exists that the outcome of his trial would have been different but for
his counsel’s failure to object to the prosecutor’s comment is thus refuted by the recoi‘d.
The motion court did not clearly err in denying Movant’s motion without an evidentiary
hearing in this respect. Point denied.

Conclusion
Because Rule 29.15 provides relief only from felony convictions, it does not

provide a means here for Movant to pursue relief from his misdemeanor convictions of
furnishing pornographic material to a minor. Regarding his claim of ineffective assistance
of counsel, Movant failed to allege facts showing his counsel’s performance was deficient
or that he was prej udiced, given that the same information from the comments was present

iii the testimony of the victim’s sister. The judgment of the motion court is affirmed.

 

 

Gary Maei'tnei', Jr., ludge
lames M. Dowd, P. J., coneurs.
Kurt S. Odenwald, J., concurs.

 

