BRANYON v. State

KENNETH M. ROMINES, C.J.

Introduction

Mervin Branyon (Appellant) appeals from the denial of his Missouri Supreme Court Rule 29.15 motion for post-conviction relief following an evidentiary hearing in the Circuit Court of the City of St. Louis. Appellant sought to vacate his convictions of one count of attempted first degree statutory sodomy, § 564.011¹, and one count of first degree child molestation, § 566.067. We affirm.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the evidence adduced at trial showed the following:

Appellant lived with his wife and five children, one of whom was C.B., who at the time of the alleged incident was 11 years old. While C.B. was in her room Appellant walked in and asked if she wanted to play. Appellant started tickling her and after approximately five minutes he touched C.B.’s chest and also touched her vagina area beneath her clothing. Appellant asked C.B. to not tell anyone of the incident. The next morning, a crying C.B. told her brother of the incident, she later told her sister and mother. Mother confronted Appellant, but he denied the allegations. Police were not informed of the matter until a year later when the police were called regarding a domestic dispute between C.B. and her sisters. At that time C.B. told the police officer dispatched to their house about Appellant’s alleged actions.

At trial there was no physical evidence. The evidence consisted of the testimony of C.B., Appellant, C.B.’s brother, and law enforcement officers who interviewed C.B. Near the end of the trial Appellant’s counsel asked Appellant whether he had ever been in trouble before. The prosecutor, on cross-examination, then asked about Appellant’s arrest history and Appellant then admitted that he had been arrested for what he recalled as “assault of a child.”

On 22 September 2006 Appellant was found guilty by a jury of one count of attempted first degree statutory sodomy and one count of first degree child molestation. Appellant was sentenced to 10 years in the Missouri Department of Corrections. Appellant filed a notice of appeal from the trial court’s judgment and subsequently voluntarily dismissed that appeal and filed a motion to vacate his sentence under Rule 29.15. The motion court denied Appellant’s request for relief following an evidentiary hearing. This appeal follows.

Points on Appeal

Appellant first alleges that the motion court erred in denying his request for post-conviction relief because defense counsel was ineffective for failing to investigate and interview Eva Speights and in failing to call Eva Speights and Shantell Branyon as witnesses. Second, Appellant alleges that the motion court erred in denying his request for post-conviction relief because his defense counsel opened the door to evidence of his prior arrest and for failing to advise him of the potential consequences of his decision to testify and the possibility that the door could be opened to prior bad acts.

Standard of Review

A defendant has received ineffective assistance of counsel if counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and this deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 676-678, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellate review of the motion court’s ruling is limited to determining whether its findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). The motion court’s findings of fact and conclusions of law are clearly erroneous only if the reviewing court, having examined the entire record, is left with the definite and firm impression that a mistake has been made. Rousan v. State, 48 S.W.3d 576, 581 (Mo. banc 2001)

Discussion

Appellant claims that his defense counsel was ineffective for failing to call witnesses who he alleges could have provided him with exculpatory testimony. During an evidentiary hearing the motion court heard the testimony of Shantell Bra-nyon who testified that she met with defense counsel prior to the trial. During her meeting with counsel she recommended that Eva Speights should be interviewed because previously C.B. made an accusation to Speights that she had been raped by a homeless man in the alley. Appellant alleges that the prior accusation was false. In certain circumstances, it is permissible for a defendant to introduce extrinsic evidence of prior false allegations. State v. Long, 140 S.W.3d 27, 31 (Mo. banc 2004). However the person seeking to introduce such testimony must demonstrate that the prior allegation in question was, in fact, false and that he or she knew that it was false. State v. Couch, 256 S.W.3d 64, 69-70 (Mo. banc 2008). Here, there was no proof that the prior accusation was false. C.B. never retracted her accusation. While the police noted that there were different versions of the accusation that does not, in and of itself, prove the accusation to be false. The motion court determined that this did not constitute a false accusation, and we do not second-guess the motion court’s determination of witness credibility. State v. Dunmore, 822 S.W.2d 509, 512 (Mo.App.W.D.1991). Point denied.

Appellant’s second claim is that defense counsel was ineffective for opening the door to evidence of his prior arrest and for failing to advise him of the potential consequences of his decision to testify and the possibility that the door could be opened to prior bad acts. Evidence of prior arrests is generally not admissible to impeach the credibility of a defendant. However, such evidence is admissible if the defendant opens up the issue of prior arrests. State v. Thomas, 878 S.W.2d 76 (Mo.App. E.D.1994). Appellant’s counsel opened the issue of prior arrests when he asked Appellant if he had ever been in trouble.

The motion court found that while defense counsel’s question to Appellant was inadvisable, as was any failure to fully advise Appellant prior to testifying, there was no reasonable probability that the result at trial would have been different if this matter was not disclosed at trial. Thus, Appellant suffered no prejudice from defense counsel opening the door to his prior arrest because the State made only a brief reference to the matter. The motion court’s decision was not clearly erroneous. The evidence of Appellant’s other arrest was not emphasized by the prosecution. It was not alluded to again after Appellant’s testimony, and it was not in the prosecution’s closing argument. Additionally, there was significant credible evidence of Appellant’s guilt at trial in the form of the testimony of the other witnesses.

Finally, there was no evidence in the record to prove Appellant’s allegation that he was not aware of the consequences of testifying. Appellant suffered no prejudice. Point denied.

Conclusion

The motion court did not clearly err in denying Appellant’s Rule 29.15 request for post-conviction relief. We affirm.

GEORGE W. DRAPER III, J., concurs. KURT S. ODENWALD, P.J., dissents in separate opinion.

1 . All statutory references are to RSMo 2000. unless otherwise noted.