Introduction
William Barmettler (“Barmettler”) appeals from the motion court’s denial, without an evidentiary hearing, of his motion for post-conviction relief. Barmettler was convicted by a jury of one count of statutory sodomy in the first degree, Section 566.062,
Factual and Procedural History
The evidence presented at trial, viewed in the light most favorable to the verdict, is as follows. In early 2003, Barmettler lived with his extended family, including his step-granddaughter AL, a minor child. In October 2003, AL moved out of the home occupied by Barmettler, but continued to spend extended periods of time with Barmettler. In May 2005, AL overheard a conversation between her parents regarding whether AL was going to spend the weekend at Barmettler’s home. AL became distraught and hid in a closet after hearing the conversation. AL’s parents questioned AL about her fear, and AL told them that Barmettler had touched her vagina. AL’s mother reported the abuse to the Division of Family Services. After an investigation, State charged Barmettler with two counts of statutory sodomy, alleging that Barmettler committed two separate criminal acts.
State presented evidence at trial that Barmettler sexually abused AL on two separate occasions. AL testified at trial that the first time Barmettler touched her vagina was at Barmettler’s home. AL testified that Barmettler took her into his room, removed her pants, and touched her vagina with his hand. AL testified that on
The trial court instructed the jury on statutory sodomy for the two alleged incidents of sexual abuse. The trial court also instructed the jury on the lesser-included offense of child molestation for each count of statutory sodomy. The verdict directors phrased the factual allegations of the two separate incidents of abuse in nearly identical terms. The verdict directors for each count charged that the jury could not convict Barmettler unless it found beyond a reasonable doubt: “First, that on or about during 2003 through 2005, in the County of St. Francois, State of Missouri, the defendant touched [AL’s] genitals with his hand.” Defense counsel did not object to the form of the verdict directors. The jury returned a verdict finding Barmettler guilty of statutory sodomy on the first count, and guilty of the lesser-included offense of child molestation under the second count. The trial court entered a judgment of conviction accordingly. This Court affirmed the trial court’s judgment in State v. Barmettler,
Barmettler subsequently filed a motion for post-conviction relief under Rule 29.15.
Points on Appeal
In his first point on appeal, Barmettler argues that the motion court clearly erred when it found that trial counsel was not ineffective in failing to object to the verdict directors offered at trial, and that appellate counsel was not ineffective for failing to appeal the same issue. Barmettler argues that the verdict directors were drafted so broadly that they deprived Barmett-ler of his right to a unanimous verdict on the charges submitted to the jury. In his second point, Barmettler contends that the motion court clearly erred when it denied his claim that trial counsel was ineffective in failing to call his former employer as an alibi witness at trial, and present employment attendance records to support an alibi defense. In both points on appeal, Barmettler asserts the motion court erred in denying his motion without an evidentia-ry hearing because he alleged facts not refuted by the record that if proven would entitle him to relief.
Appellate review of a motion court’s denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court were clearly erroneous. Rule 29.15; Day v. State,
Discussion
I. Barmettler failed to allege facts that if true establish that he was prejudiced by defense counsels’ failures to challenge the verdict directors at trial and on appeal.
In his first point on appeal, Barmettler alleges that trial and appellate counsel were ineffective as a result of their failure to challenge the constitutionality of the verdict directors submitted to the jury.
Defendants in criminal actions have a Sixth Amendment right to effective assistance of counsel. Strickland v. Washington,
In his amended motion for post-conviction relief, Barmettler avers that trial and appellate counsel were constitutionally ineffective because they did not challenge the verdict directors offered at trial. Bar-mettler asserts that the jury was presented evidence of multiple separate alleged acts of child sexual abuse, including evidence of uncharged acts of sexual abuse. Barmettler correctly notes that each verdict director failed to identify with specificity the alleged act or acts that the jury was required to find in order to convict Bar-mettler of each count. As a result of this deficiency, Barmettler argues that the jury could have returned a verdict of guilty on both counts without reaching a unanimous verdict on either, if any of the jurors based their finding of guilt on the uncharged acts to which the victim testified at trial.
Barmettler specifically challenges defense counsels’ omissions with respect to Instructions 5 and 8, the verdict directors offered at trial for statutory sodomy under Count I, and child molestation as the lesser-included offense to statutory sodomy under Count II. Instruction 5 stated that in order to convict Barmettler of statutory sodomy the jury must find that:
First, that on or about during 2003 through 2005, in the County of St. Francois, State of Missouri, the defendant touched [AL’s] genitals with his hand,
Instruction 8 similarly provided if the jury did not find Barmettler guilty of statutory sodomy under Count II, the jury must find Barmettler guilty of child molestation if it believed:
First, that on or about during 2003 through 2005, in the County of St. Francois, State of Missouri, the defendant touched the genitals of [AL] with his hand,
Instructions 5 and 7, the verdict directors for statutory sodomy under Counts I and II, respectively, were identically phrased. Similarly, Instructions 6 and 8, the verdict directors for the lesser-included offenses of child molestation under Counts I and II, respectively, were identically phrased.
We first address the nearly identical language used to describe the factual allegations required to convict Barmettler under Instructions 5 and 8. Both instructions require the jury to find that Barmett-ler touched AL’s genitals with his hand at some point during the period from 2003 to 2005. The acts are not otherwise described or distinguished from one another. Importantly, according to the evidence adduced at trial, either verdict director could apply to the uncharged criminal acts because the uncharged acts were factually similar. While AL testified to two primary incidents of abuse wherein Barmett-ler touched her genitals with his hand, she also testified generally that similar abuse occurred weekly. Barmettler argues that because the factual allegations of each verdict director lacked specificity and could encompass any act occurring within a two-year period, any juror could have considered the uncharged acts of abuse to which AL testified as the instance of alleged abuse referenced in each verdict director. In that case, it was possible that Barmett-ler could have been convicted of statutory sodomy without the jury reaching a unanimous verdict as to which act formed the basis of the statutory sodomy referenced in the verdict director.
The Missouri Supreme Court recently addressed a similar issue in State v. Celis-Garcia,
Celis-Garcia guides our analysis of whether the verdict directors submitted at Barmettler’s trial were erroneous. Celis-Garcia addressed a situation where the jury could possibly convict the defendant based upon a finding by some jurors that she committed a similar uncharged act. Here, the jury could have convicted Bar-mettler of statutory sodomy if each juror believed that he committed one act to which AL testified with specificity, or one of the similar uncharged acts, even if the jury did not unanimously agree on which act he committed that constituted statutory sodomy.
The error in the verdict directors in this case is the failure of each verdict director to sufficiently identify the specific incidents of sexual abuse at issue to the exclusion of the uncharged incidents. In each instance of abuse, Barmettler is alleged to have touched AL’s genitals with his hand. The verdict directors for both counts only require the jury to find very general facts. Despite the availability of well-developed factual testimony, neither verdict director requires the finding of facts specific to either event. As a result, a juror could have voted to convict Barmettler of statutory sodomy if the juror found that Barmettler committed either one of the detailed instances of abuse, or an uncharged instance of abuse. This risk is exactly the same as identified in Celis-Garcia, and rendered the instructions in this case erroneous. See Celis-Garcia,
Our conclusion that the verdict directors failed to ensure a unanimous verdict does not resolve the question of whether trial and appellate counsel were ineffective. Although, Celis-Garcia was decided before our mandate affirming Barmettler’s conviction, the decision was rendered after Barmettler’s trial, and after Barmettler filed his appellate brief on direct appeal. Given the timing of Celis-Garcia, the motion court found that trial and appellate counsel were not unreasonably ineffective in failing to act in conformity to its holding. The motion court reasoned that Celis-Garcia was a change in the law, which counsel were not required to anticipate. See Zink v. State, 278 S.W.3d 170, 190 (Mo. banc 2009).
The motion court viewed Celis-Garcia’s as constituting a change in the law because the Supreme Court opinion affected the Missouri Approved Instruction (MAI) in that case. In Celis-Garcia, the State argued that the verdict directors submitted at trial complied with the applicable MAI, and were therefore not erroneous. Celis-Garcia,
Unlike the motion court, we are not persuaded that the reasoning of Celis-Garcia presents a substantive change in the law that insulates both trial counsel and appellate counsel from not advancing the argument of a potential non-unanimous jury verdict either at trial or on appeal. The motion court relied heavily on the Supreme Court’s conclusion in Celis-Garcia that the Notes on Use did not shield the trial court from a claim that the verdict directors were erroneous, and consequently viewed Celis-Garcia as substantively changing the requirements of the MAI. We do not share the broad suggestion of change attributed to Celis-Garcia by the motion court.
We recognize that Celis-Garcia found verdict directors similar to those at issue here to be in violation of a defendant’s constitutional right to a unanimous verdict. We also acknowledge the Supreme Court’s discussion of Note on Use 6 to MAI-CrBd 304.02, which suggests a modified instruction should be given differentiating among multiple, separate criminal acts when requested by the defendant. Celis-Garcia at 157-158. Given this discussion, we do not view Celis-Garcia as presenting a substantive change in the law that automatically shields defense counsel from a claim of ineffectiveness. Notably, Celis-Garcia did not establish the right of criminal defendants to a unanimous jury verdict, and was not the first judicial decision to recognize that imprecisely drafted verdict directors could violate this constitutional right. See State v. Pope,
Here, the correct inquiry is whether reasonable trial counsel would have objected to the verdict directors in light of the express MAI warning that verdict directors in multiple act cases involve a risk for a non-unanimous verdict, and where Note on Use 6 expressly suggested that such verdict directors be modified to factually distinguish between alleged criminal acts. We must also consider whether reasonable appellate counsel would have raised this issue for plain error review in light of trial counsel’s failure to object to the instructions at trial. After careful consideration, we find that, absent a compelling strategic reason, reasonable and effective trial counsel would have acted upon the cautionary language of Note on Use 6 and objected to, or requested modification of, the verdict directors to ensure against the risk of a non-unanimous jury verdict. We similarly find that reasonable appellate counsel would have considered the deficient verdict directors a basis for appeal. Accordingly, we find that Barmettler has pleaded facts, which if true, could provide the basis for finding that trial counsel and
However, our analysis of Barmett-ler’s claim does not end here. We must next determine whether the facts alleged by Barmettler in his motion for post-conviction relief, if true, demonstrate that he was prejudiced by the deficient performance of trial and appellate counsel. As already noted, a movant seeking post-conviction relief demonstrates prejudice by showing a reasonable probability exists that, but for defense counsel’s ineffectiveness, the result at trial would have been different. Deck,
After reviewing the entire record, we find no evidence that the vagueness of the verdict directors caused Barmettler any prejudice. As a result, trial counsel’s failure to object to the verdict directors had no consequence on the jury’s verdict, and provides no basis for postconviction relief.
Unlike here, the uncharged acts at issue in Celis-Garcia were well-developed at trial through the presentation of evidence and testimony. Celis-Garcia,
Given the evidence presented at trial, the verdict directors at issue did not create any reasonable likelihood that the jury was misled. We find no basis to conclude that Barmettler was convicted with a non-unanimous jury verdict in either Count I or II. Because Barmettler was not prejudiced by trial counsel’s failure to object to the verdicts directors, nor appellate counsel’s decision not to raise the issue on direct appeal, he is not entitled to relief under Rule 29.15 on his first point.
II. Barmettler is not entitled to an evi-dentiary hearing on his claim that trial counsel was ineffective in failing to call an alibi witness at trial.
In his second point, Barmettler asserts that he is entitled to post-conviction relief because trial counsel failed to call a former employer as an alibi witness at trial, and to introduce Barmettler’s employment records as evidence supporting that alibi.
The selection of witnesses and evidence are matters of trial strategy, which are virtually unchallengeable in an ineffective assistance claim. Johnson v. State,
Conclusion
The motion court’s judgment denying Barmettler’s claims for post-conviction relief is affirmed.
Notes
. All statutory references are to RSMo. Cum. Supp. (2008).
. All rule references are to Mo. R.Crim. P. (2011).
. Barmettler's amended motion for post-conviction relief does not allege that any ambiguity in the verdict directors misled the jury as to which of the two allegations of abuse that were developed through testimony at trial corresponded with which of the two counts charged. Accordingly, we do not consider that question in this appeal.