            SUPREME COURT OF MISSOURI
                                       en banc

DAVID A. MCNEAL,                                 )      Opinion issued November 1, 2016
                                                 )
              Appellant,                         )
                                                 )
v.                                               )      No. SC95666
                                                 )
STATE OF MISSOURI,                               )
                                                 )
              Respondent.                        )

     APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
                The Honorable Michael K. Mullen, Judge

       David McNeal appeals the circuit court's judgment denying his motion for post-

conviction relief, which followed his convictions for second-degree burglary and stealing.

McNeal argues his trial counsel was ineffective for failing to request an instruction on the

lesser-included offense of trespass. The circuit court's judgment is affirmed.

                            Factual and Procedural History

       In May 2008, two men were installing floors in vacant apartment 510 in a St. Louis

apartment complex. At the same time, McNeal was visiting his son's mother in apartment

511. While there, he decided to go to apartment 510 to collect $10 allegedly owed to him

by a woman named Tracy. As McNeal approached apartment 510, he saw two men leave

the apartment and, believing they had just visited Tracy, attempted to inquire about Tracy.

Once the men left, McNeal knocked on the door of apartment 510 and received no answer.

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He proceeded to open the door, enter the apartment, and take a drill he found inside the

empty apartment. He was subsequently charged with second-degree burglary and stealing.

       In the defense's opening statement at trial, McNeal's counsel told the jury that

McNeal was going to testify that he did not have the intent to steal when he entered

apartment 510 and that he mistakenly went "into the apartment thinking that Tracy still

lives there and he knows that she wouldn't mind because she's a friend if he would go on

in." The property manager for the apartment complex testified that McNeal did not have

permission to enter apartment 510. McNeal admitted he was not on the lease for apartment

510 and had no key to the apartment. He also testified that he had been in that apartment

"plenty of times" and that "[t]he relation that we had, I knocked, opened the door, 'Hey,

Tracy.' We do it all the time." Although at one point McNeal appeared to state he did not

step into the apartment until after discovering it was empty, he later clarified, "I was in [the

apartment] once I opened the door." While McNeal conceded that he stole the drill, he

testified that he entered the apartment with the intent to find Tracy, not the intent to steal

anything. In the defense's closing argument, McNeal's counsel told the jury: "I say to you

that he did not commit the crime of burglary. He told you he went into that apartment, but

he did not have the intent to steal or he did not know that he was entering unlawfully when

he went in."

       For the second-degree burglary charge, McNeal's counsel did not request an

alternative trespass instruction, and no such instruction was given. Second-degree burglary

is a Class C felony and consists of two elements: (1) knowing unlawful entry; (2) with the

purpose to commit a crime. Section 569.170, RSMo 2000. First-degree trespass is a Class

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B misdemeanor and also a lesser-included offense of second-degree burglary as it consists

only of the knowing-unlawful-entry element. Section 569.140, RSMo 2000. The jury

convicted McNeal of stealing and second-degree burglary. The circuit court sentenced

McNeal to ten years for the second-degree burglary conviction and six months for the

stealing conviction, with the sentences to run consecutively.

       After the convictions were affirmed on direct appeal, McNeal filed a Rule 29.15

motion for post-conviction relief, alleging his trial counsel was ineffective for failing to

request a trespass instruction as an alternative instruction to second-degree burglary. The

circuit court overruled the motion without holding an evidentiary hearing. On appeal, this

Court reversed and remanded for an evidentiary hearing, holding that McNeal's claim was

not clearly refuted by the record. McNeal v. State (McNeal I), 412 S.W.3d 886, 889–93

(Mo. banc 2013).

       At the ensuing evidentiary hearing, McNeal's counsel testified that it seemed

inconsistent to him at the time of trial to request a trespass instruction and confirmed that

he did not request a trespass instruction as a matter of trial strategy because the defense's

theory challenged both elements of burglary, arguing that McNeal was "[n]ot guilty based

on his not having the intent to steal and his entering the room, if not perfectly lawfully, at

least not unlawfully." In response to being asked about a specific point in trial when he

realized a trespass instruction would be inconsistent with the defense's theory, counsel

answered, "I'm not sure it was that much of a conscious decision as much as just it didn't

seem appropriate." He also testified that he had his doubts that McNeal would have wanted

a trespass instruction at the time or that the circuit court would have given a trespass

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instruction "'cause here we are asking for an instruction where they find him entering

unlawfully and we're arguing that he is not entering unlawfully." He acknowledged the

property manager had testified that McNeal did not have permission to enter the apartment,

but counsel explained that the defense's theory involved implied consent from the person

McNeal believed still was living there. McNeal also testified at the evidentiary hearing

and stated that counsel did not discuss a trespass instruction with him, but that he would

have wanted a trespass instruction requested had he known it was an option.

       Following the evidentiary hearing, the circuit court again overruled McNeal's

motion, concluding: "The testimony of counsel at the evidentiary hearing indicated that

counsel's decision was reasonable, and the facts of the case including movant's testimony

support counsel's theory." McNeal appealed and, after opinion by the court of appeals, this

Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.

                                   Standard of Review

       "Appellate review of the trial court's action on the motion filed under this Rule 29.15

shall be limited to a determination of whether the findings and conclusions of the trial court

are clearly erroneous." Rule 29.15(k). Findings and conclusions are clearly erroneous only

when the reviewing court is "left with a definite and firm impression that a mistake has

been made." Mallow v. State, 439 S.W.3d 764, 768 (Mo. banc 2014).

                                          Analysis

       "To be entitled to post-conviction relief for ineffective assistance of counsel, a

movant must show by a preponderance of the evidence that his or her trial counsel failed

to meet the Strickland test in order to prove his or her claims." Johnson v. State, 406

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S.W.3d 892, 898 (Mo. banc 2013). There are two prongs to the Strickland test, a

performance prong and a prejudice prong. Taylor v. State, 382 S.W.3d 78, 80–81 (Mo.

banc 2012).     For the performance prong, "the movant must show that counsel's

performance fell below an objective standard of reasonableness." Id. at 80. "Judicial

scrutiny of counsel's performance must be highly deferential." Strickland v. Washington,

466 U.S. 668, 689 (1984). There is "a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.'" Id. "An objectively reasonable choice not to submit an

available instruction does not constitute ineffective assistance of counsel." Love v. State,

670 S.W.2d 499, 502 (Mo. banc 1984). Counsel makes an objectively reasonable choice

not to submit an available instruction when the instruction would be inconsistent with the

defense's theory at trial. Id. at 501–03.

       McNeal first argues that counsel did not actually make a strategic decision, pointing

to counsel's statement at the evidentiary hearing about the lack of "a conscious decision."

But whether counsel's performance was the product of a conscious decision is immaterial—

what matters is whether counsel's performance was objectively reasonable, however it

came about. Love, 670 S.W.2d at 501–02. Moreover, counsel's statement about a lack of

a conscious decision was in response to being asked at what specific point in the trial he

realized a trespass instruction was inconsistent with the defense's theory. Although he

could not pinpoint a specific time, counsel repeatedly explained that requesting a trespass

instruction seemed inappropriate to him at the time of trial and confirmed that not

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requesting a trespass instruction was indeed a strategic decision because the instruction

would have been inconsistent with the defense's theory, which included disputing the

knowing-unlawful-entry element of second-degree burglary.

         McNeal also argues a trespass instruction would not have been inconsistent with the

defense's theory because counsel effectively conceded trespass (i.e., knowing unlawful

entry) during trial. In McNeal I, this Court concluded that counsel "did not argue that

McNeal had committed no crime" and that counsel had "effectively conceded trespass"

because he had raised the possibility that McNeal's conduct could have amounted to a

trespass when cross-examining a police officer. 1 412 S.W.3d at 891. But when the trial

transcript is viewed with the benefit of the evidentiary hearing transcript, it is evident that

counsel did not actually concede trespass and that counsel's explanation at the evidentiary

hearing is consistent with his presentation of the defense's theory at trial.

         In his opening statement, counsel stated that McNeal was going to testify that he

thought Tracy did not mind that he knocked and entered her apartment, but that he had

made a mistake because Tracy no longer lived there. McNeal later testified at trial that he

routinely knocked and opened the apartment door without objection from the woman

McNeal believed to live there. Although McNeal appeared to testify that he did not step

into the apartment until after opening the door and discovering it was empty, he later stated


1
    The following exchange occurred during defense counsel's cross-examination of a police officer:
         Q: When somebody is in a place where they're not supposed to be, that's not
         necessarily burglary, is it?
         A: No.
         Q: It could be a trespass?
         A: That is correct.
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that his opening of the door necessarily took him inside the apartment (a plausible premise

assuming the door opened inward). As such, there was testimony before the jury indicating

that McNeal did not knowingly enter the apartment unlawfully because he believed he had

implied consent to enter as he did. 2 Although there was also testimony from the property

manager, and even McNeal himself, that could have indicated McNeal knew his entry was

unlawful, "the jury may believe or disbelieve all, part, or none of the testimony of any

witness." State v. Jackson, 433 S.W.3d 390, 403 (Mo. banc 2014) (internal quotations

omitted). In accordance with this principle, counsel had no duty to abandon the part of the

defense's theory that disputed the knowing-unlawful-entry element of second-degree

burglary. And counsel did not abandon it, as he reminded the jury in his closing argument

that McNeal had testified that he did not know his entry was unlawful.

       Consistent with disputing the knowing-unlawful-entry element of second-degree

burglary, counsel did not request an alternative instruction on trespass. Foregoing an

instruction that is inconsistent with the defense's theory falls within the wide range of what

may be considered objectively reasonable performance by counsel. See Love, 670 S.W.2d

at 501–03. While McNeal argues there would have been relatively little downside to

requesting an instruction for misdemeanor trespass as an alternative to the instruction for

felony burglary, "[i]t is not ineffective assistance of counsel to pursue one reasonable trial

strategy to the exclusion of another reasonable trial strategy." Anderson v. State, 196

S.W.3d 28, 33 (Mo. banc 2006). "There are countless ways to provide effective assistance


2
  "Implied consent may be shown from custom, usage or conduct, and it continues until revoked."
St. Louis Cnty. v. Stone, 776 S.W.2d 885, 889 (Mo. App. 1989).
                                              7
in any given case." Strickland, 466 U.S. at 689. Because McNeal failed to make a

sufficient showing on the performance prong, there is no need to address the prejudice

prong. See Taylor, 382 S.W.3d at 81. The circuit court's findings and conclusions are not

clearly erroneous. 3

                                          Conclusion

       The circuit court's judgment denying post-conviction relief is affirmed.




                                                        Zel M. Fischer, Judge




All concur.




3
  McNeal also argues counsel's performance was not reasonable because counsel failed to consult
with McNeal about requesting a trespass instruction. McNeal did not include this claim in his Rule
29.15 motion. "In actions under Rule 29.15, any allegations or issues that are not raised in the
Rule 29.15 motion are waived on appeal." McLaughlin v. State, 378 S.W.3d 328, 340 (Mo. banc
2012) (internal quotations omitted).
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