Beard v. Villmer

Filing 22

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability shall issue. 28 U.S.C. § 2253. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 9/10/2014. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DON PERRY BEARD,
Petitioner,

TOM VILLMER,
Respondent.

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No. 4:11CV1131 NCC

MEMORANDUM AND ORDER
This matter is before the Court is the petition by Don Perry Beard for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.1 After reviewing the case, the Court
has determined that petitioner is not entitled to relief. As a result, the petition will
be dismissed.
Background
Petitioner was charged with child molestation in the first degree, attempted
victim tampering, and attempted witness tampering. Resp’t Ex. C at 10-12 (Legal
File, Indictment). A jury found petitioner guilty on all three counts. Id. at 51-53
(Verdict). Before sentencing, the state realized that the witness tampering count
was not supported by the evidence and it moved to dismiss that count. Resp’t Ex.
F at 3 (Per Curiam Mem. Supplementing Order Affirming J. Pursuant to Rule
1

The parties consented to the jurisdiction of the undersigned magistrate judge to
resolve this proceeding. 28 U.S.C. § 636(c).

84.16(b)). The court entered a judgment of acquittal on that count. Id. And the
court sentenced petitioner to consecutive sentences of seven years’ imprisonment
on the molestation count and five years’ on the victim tampering count. Resp’t Ex.
C at 60-60 (Legal File, Sentence and J.).
The Missouri Court of Appeals set forth the relevant facts as follows:
[Petitioner] and his girlfriend (Girlfriend) shared a home.
Occasionally, Girlfriend’s nieces and other girls would spend the
night in the home. On the night of November 1, 2003, six young girls
spent the night at the home. The following morning, Girlfriend left
for work between 5:00 a.m. and 6:00 a.m., leaving [petitioner] as the
only adult in the home. Sometime after 6:00 a.m., B.S. a fifteen-yearold acquaintance of Girlfriend’s nieces, awoke and observed
[petitioner] standing over her ten-year-old sister, C.W. C.W. was
sleeping, and [petitioner’s] hands were in C.W.’s shorts C.W.’s shirt
was partially removed. B.S. and [petitioner] made eye contact, and,
shortly thereafter, B.S. began screaming. [Petitioner] begged B.S. not
to tell anyone about what she had seen and said that he was “sick” and
in need of a psychiatrist.
Another witness, D.E., who was
approximately fourteen years old, testified that she observed
[petitioner] with one of his hands on or near C.W.’s exposed breast
area shortly before B.S. started screaming. B.S. woke C.W. and the
other girls and all the girls left the home to find a telephone.
[Petitioner] followed the girls and told them, “I’ll give you anything if
you don’t tell. I’ll give you money, anything, just please don’t tell.”
When the girls ignored [petitioner’s] pleas, he said, “Well, I’m just
gonna kill myself.” The girls contacted B.S and C.W.’s mother, and
the police were notified.
Resp’t Ex. K at 2 (Per Curiam Mem. Supplementing Order Affirming J. Pursuant
to Rule 84.16(b)).

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On direct appeal, petitioner argued that the trial court erred in (1) denying
his motion for judgment of acquittal at the close of evidence because there was
insufficient evidence to show that he acted for the purpose “of arousing his own
sexual desire” as required by the child molestation statute, (2) allowing evidence of
witness tampering because such evidence was inadmissible in that he was
ultimately acquitted of the charge, and (3) submitting a jury instruction that
differed from the indictment, allowing for a finding of guilt in the disjunctive if the
jury believed that petitioner touched the victim near her genitals or her breast.
Resp’t Ex. D at 12-14 (Appellant’s Br.).
The Missouri Court of Appeals found that there was sufficient evidence to
support the jury’s finding that petitioner had touched the victim near her genitals or
breast for the purpose of arousing his sexual desire. The jury heard testimony that
he had put his hands on or near her breast and had put his hands into her pants.
Resp’t Ex. F at 3-4. And after having been observed, petitioner “begged B.S. to
not tell anyone and even plead [sic] that he was ‘sick’ and in need of a
psychiatrist.” Id. at 4. The court found that this testimony supported a reasonable
inference that he was guilty of the elements of the crime.
The appellate court rejected petitioner’s contention that allowing evidence
on the witness tampering charge prejudiced him because the same testimony

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applied to the victim tampering charge as well. Id. at 4-5. The court found no
legal authority for petitioner’s argument, and the court found no prejudice to
petitioner. Id.
Finally, the appellate court denied petitioner’s jury instruction claim. The
court found that there was no discrepancy between the indictment and the jury
instruction and that petitioner merely alleged a discrepancy between the probable
cause statement and the instruction. Id. at 5. Therefore, the court affirmed the
sentence and judgment. Id.
Petitioner filed a timely motion for postconviction relief under Missouri
Court Rule 29.15. Resp’t Ex. H at 3-12 (Legal File, Pet’r Mot.). In an amended
motion, petitioner argued that his counsel was ineffective for failing to depose B.S.
and D.E., for failing to file a motion to dismiss the witness tampering count, and
for failing to call petitioner’s girlfriend as a witness. Id. at 22-24 (Pet’r Am. Mot.).
The motion court denied relief without holding an evidentiary hearing. Id. at 51-55
(Mot. Court’s Findings of Fact, Conclusions of Law, and J.).
Petitioner raised the same three points on appeal. Resp’t Ex. I at 13-17
(Appellant’s Br.). The Missouri Court of Appeals applied the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), to petitioner’s claims, and the

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court found that petitioner had failed to demonstrate prejudice. Resp’t Ex. K at 412. The court issued its mandate on September 16, 2010. Resp’t Ex. L (Mandate).
Petitioner timely filed the instant petition for writ of habeas corpus. He
raises six grounds for relief.
Grounds for Relief
1. The trial court erred in denying his motion for judgment of
acquittal at the close of evidence because there was insufficient
evidence to show that he acted for the purpose of arousing or
gratifying his sexual desire as required by Mo. Rev. Stat. § 566.010(3)
(2000).
2. The trial court erred in allowing evidence of witness tampering
because such evidence was inadmissible in that he was ultimately
acquitted of the charge.
3. The trial court erred in submitting a jury instruction that differed
from the indictment, allowing for a finding of guilt in the disjunctive
if the jury believed that petitioner touched the victim’s genitals or her
breast.
4. Trial counsel was ineffective for failing to depose B.S. and D.E.
because their testimony differed as to how he committed the crime.
5. Trial counsel was ineffective for failing to file a motion to dismiss
the witness tampering count.
6. Trial counsel was ineffective for failing to call his girlfriend as a
defense witness at trial.

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AEDPA Standard
“In the habeas setting, a federal court is bound by the AEDPA2 to exercise
only limited and deferential review of underlying state court decisions.” Lomholt
v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under this standard, a federal court
may not grant relief to a state prisoner unless the state court’s adjudication of a
claim “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
A state court decision is contrary to clearly established Supreme Court
precedent if “the state court arrives at a conclusion opposite to that reached by
[the] Court on a question of law or . . . decides a case differently than [the] Court
has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). A state court decision is an unreasonable application of clearly
established federal law if it “correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08.
Finally, a state court decision involves an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings only if it is shown
2

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. ' 2254.
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that the state court’s presumptively correct factual findings do not enjoy support in
the record. 28 U.S.C. §2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir.
2004).
Ineffective Assistance of Counsel Standard
Federal habeas review of an ineffective assistance of counsel claim is
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111 (2009). First, a
petitioner must overcome the high bar of Strickland v. Washington, 466 U.S. 668
(1984), by showing that (1) counsel’s performance fell below an objective standard
of reasonableness; and (2) petitioner was sufficiently prejudiced such that “the
result of the proceeding would have been different.” Id. at 688, 694. Second,
under 28 U.S.C. § 2254, petitioner must show that the state court’s adjudication of
his ineffective assistance claim was “unreasonable.” Harrington v. Richter, –––
U.S. –––, 131 S. Ct. 770, 788 (2011). Both the Strickland standard and the
standard set forth in § 2254 are highly deferential. Ultimately, “[t]he question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Richter, 131 S. Ct. at 788.
Discussion
1.

Ground One

In ground one, petitioner argues that the trial court erred in denying his

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motion for judgment of acquittal at the close of evidence because there was
insufficient evidence to show that he acted for the purpose of arousing or gratifying
his sexual desire as required by Mo. Rev. Stat. § 566.010(3) (2000). Respondent
contends that the Missouri Court of Appeals applied the correct standard and
reasonably applied it to the facts of the case.
In reviewing a claim of insufficiency of the evidence, “the relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). In applying this standard, the scope of review is extremely
limited. The Court must presume that the trier of fact resolved all conflicting
inferences in the record in favor of the state, and the Court must defer to that
resolution. Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003).
Under Missouri law, “[a] person commits the crime of child molestation in
the first degree if he or she subjects another person who is less than fourteen years
of age to sexual contact.” Mo. Rev. Stat. § 566.067(1) (2000). “Sexual contact” is
“any touching of another person with the genitals or any touching of the genitals or
anus of another person, or the breast of a female person, for the purpose of
arousing or gratifying sexual desire of any person.” Mo. Rev. Stat. § 566.010(3)

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(2000).

An attempt requires a “substantial step”: “conduct which is strongly

corroborative of the firmness of the actor’s purpose to complete the commission of
the offense.” Mo. Rev. Stat. § 564.011(1).
The jury heard testimony that petitioner was standing over the victim with
his hand in her pants and near or on her breast. After he was confronted, petitioner
told B.S. that he was “sick” and that he needed a psychiatrist, and he begged her
not to tell anyone. Further, he offered the girls money not to discuss the incident
with anyone.

Upon hearing this testimony, any rational juror could have

concluded that petitioner was guilty of attempted child molestation under Missouri
law. The decision of the Missouri Court of Appeals was not contrary to, or an
unreasonable application of, clearly established federal law. As a result, petitioner
is not entitled to relief on ground one of the petition.
2.

Ground Two

In ground two, petitioner argues that the trial court erred in allowing
evidence of witness tampering because such evidence was inadmissible in that he
was ultimately acquitted of the charge. Respondent contends that evidentiary
rulings are state-law questions and are not reviewable in federal habeas corpus
proceedings.

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Whether evidence was admissible under Missouri’s evidence rules does not
create a federal constitutional issue that is cognizable under the Court’s limited
jurisdiction. Estelle v. McGuire, 502 U.S. 62, 67 (1991). “In the habeas context,
‘[r]ules of evidence and trial procedure are usually matters of state law. A federal
issue is raised only where trial errors infringe on a specific constitutional
protection or are so prejudicial as to amount to a denial of due process.’” Bucklew
v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006) (quoting Adail v. Wyrick, 711
F.2d 99, 102 (8th Cir. 1983)).
In this case, the evidence of witness tampering was also relevant to the
victim tampering count. Therefore, it would have been introduced regardless of
whether petitioner had been initially charged with witness tampering. The Due
Process Clause is not implicated. Therefore, petitioner is not entitled to relief on
ground two of the petition.
3.

Ground Three

In ground three, petitioner argues that the trial court erred in submitting a
jury instruction that differed from the indictment, allowing for a finding of guilt in
the disjunctive if the jury believed that petitioner touched the victim’s genitals or
her breast. Respondent asserts that this claim is meritless.

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Respondent is correct. The indictment charged petitioner with subjecting the
victim to “sexual contact.” Resp’t Ex. C at 10 (Indictment). As is stated above,
“sexual contact” includes touching another person’s genitals or a female’s breast.
Mo. Rev. Stat. § 566.010(3) (2000). Therefore, there was no variance between the
indictment and the jury instruction. The Missouri Court of Appeals’ decision was
not unreasonable, and petitioner is not entitled to relief on ground three of the
petition.
4.

Ground Four

In ground four, petitioner argues that trial counsel was ineffective for failing
to depose B.S. and D.E. because their testimony differed as to how he committed
the crime. B.S. testified that he touched the victim near her genitals, whereas D.E.
testified that his hand was near her breast. Petitioner maintains that had counsel
deposed these witnesses, counsel would have been able to “impeach” their
“inconsistent” testimony.

Respondent contends that petitioner cannot show

Strickland prejudice.
The Missouri Court of Appeals noted that petitioner’s claim that depositions
might have allowed for impeachment by inconsistent statements was pure
speculation that the witnesses may have testified differently during their
depositions than they did at trial. Resp’t Ex. K at 6. The court noted that counsel

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cross-examined both witnesses at length about the differences in their accounts of
the witnesses, and during closing argument counsel argued that they were lying
because they saw different things. Id. at 7. As a result, the court found that
petitioner was unable to show that the failure to depose B.S. and D.E. resulted in a
reasonable probability that the outcome of the trial would have been different. Id.
The decision of the Missouri Court of Appeals was not unreasonable.
Petitioner’s argument regarding impeaching B.S. and D.E. based on inconsistent
testimony relies on a fundamental misunderstanding of witness impeachment.
Petitioner is really arguing that the testimony of the two witnesses was
inconsistent, not that either one of the witnesses would have made different
statements in deposition than at trial. And this Court agrees that such an argument
would amount to pure speculation, which cannot give rise to habeas relief. The
appellate court correctly concluded that petitioner failed to show prejudice in light
of counsel’s cross-examination of the witnesses and statements during closing
argument. As a result, petitioner is not entitled to relief on ground four of the
petition.
5.

Ground Five

In ground five, petitioner argues that trial counsel was ineffective for failing
to file a motion to dismiss the witness tampering count.

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He claims he was

prejudiced because the jury heard evidence on that count that it otherwise would
not have heard.

Respondent contends that the evidence would have been

admissible even if the count were dismissed before trial.
The Missouri Court of Appeals denied relief on this ground because the
same evidence was relevant to both the witness tampering and victim tampering
counts. Therefore, even if the count were dismissed, the jury would still have
heard the evidence.
The state court’s application of Strickland was not unreasonable.
Petitioner’s argument is without merit. Consequently, petitioner is not entitled to
relief on ground five of the petition.
6.

Ground Six

In ground six, petitioner argues that trial counsel was ineffective for failing
to call his girlfriend as a defense witness at trial. He claims that his girlfriend
would have testified that it was impossible for him to have committed the crimes
because the victim had been sleeping on the couch with another girl. Respondent
asserts that the girlfriend’s testimony would not have provided a viable defense
because she was not present when the crimes occurred.
The Missouri Court of Appeals recounted the facts relevant to this ground as
follows:

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According to the record in the underlying case, at trial, B.S. testified
that Girlfriend went to work “real early in the morning, like 5:00 or
6:00.” B.S. further testified that [petitioner] had awakened B.S. to
inform her that he was taking Girlfriend to work and to ask if B.S.
wanted a ride home. B.S. replied that she would “go home later” and
went back to sleep. B.S. testified that, when she awoke sometime
later, [petitioner] had returned and was standing over C.W., who was
sleeping on a couch, with his hands in C.W.’s shorts and C.W.’s
breast exposed. B.S. testified that she “jumped up” and that she and
[petitioner] made eye contact. B.S. testified that no one else was
sleeping on the couch with C.W. D.E. testified that she saw C.W.
lying on the couch “facing up” and [petitioner] bending over C.W.
D.E. testified that C.W. was wearing a T-shirt, but it was pulled up,
exposing C.W.’s breast. D.E. testified that none of the other girls
were sleeping on the couch with C.W. C.W. testified that she was the
only person sleeping on the couch. C.W. also testified that
[petitioner] followed the girls when the[y] fled the house and told
them he would try to kill himself.
[Petitioner] testified that he and Girlfriend had awakened between
5:00 a.m. and 5:30 a.m. and that he had taken Girlfriend to work
between 6:00 a.m. and 6:30 a.m. [Petitioner] testified that it was
about a 30-minute round trip. [Petitioner] admitted that, at the time he
was leaving the house to take Girlfriend to work, he had awakened
B.S. in order to take her home and that B.S. had decided to go home
later. [Petitioner] further testified that, when he returned to the house,
he saw C.W. lying in “a very uncomfortable position” on a couch.
[Petitioner] testified that the house was chilly, that neither C.W. nor
any of the other girls was covered by a blanket, and that C.W.’s chest
was exposed and her feet were resting on another girl’s chest.
However, [petitioner] also testified that C.W. was lying in a fetal
position with her hands covering her chest and her knees pulled up.
[Petitioner] testified that C.W. was wearing a blue ruffled halter or
blouse and tan or brown shorts. [Petitioner] testified that the girl on
the couch with C.W. was “fully dressed” and wearing jeans and a
blouse but that he did not know the color of either the jeans or the
blouse. [Petitioner] testified that he attempted to reposition C.W. on
the couch by nudging C.W. and touching her shoulder and moving
C.W.’s feet. [Petitioner] testified that B.S. had awakened just in time
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to see [him] repositioning C.W. and began “blabbering,” not
screaming. [Petitioner] admitted that B.S. had been upset, that B.S.
had awakened the other girls, that B.S. had insisted on taking the girls
out of the house, and that [he] had followed B.S. and the other girls as
they fled down the street. However, [petitioner] denied that he
begged the girls not to tell anyone about the incident and denied
saying he needed help or would kill himself.
Resp’t Ex. K at 10-11.
Upon these facts, the appellate court found that the girlfriend’s proposed
testimony would not have provided petitioner with a viable defense because she
was not present when the crimes were committed. Id. at 11. Moreover, the court
found that even if the girlfriend would have testified at trial, her testimony would
not have negated an element of the crime. Id. at 12.
The decision of the Missouri Court of Appeals was not an unreasonable
application of Strickland.

Petitioner cannot show that he was prejudiced by

counsel’s failure to call the girlfriend at trial. As a result, petitioner is not entitled
to relief on ground six of the petition.
Conclusion
For these reasons, petitioner is not entitled to federal habeas relief.
Furthermore, petitioner has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.”

Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002)

(quotation omitted). Thus, the Court will not issue a certificate of appealability.
28 U.S.C. ' 2253(c).
Accordingly,
IT IS HEREBY ORDERED that petitioner’s petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall
issue. 28 U.S.C. § 2253.
A separate Judgment shall accompany this Memorandum and Order.

Dated this 10th day of September, 2014.

/s//Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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