State of Missouri v. Daniel B. Hallmark

In the Missouri Court of Appeals Eastern District DIVISION TWO STATE OF MISSOURI, ) No. ED108366 ) Respondent, ) ) Appeal from the Circuit Court ) of St. Charles County vs. ) Cause No. 1611-CR04878-01 ) DANIEL B. HALLMARK, ) Honorable Jon A. Cunningham ) Appellant. ) Filed: September 7, 2021

OPINION

Daniel B. Hallmark (Appellant) appeals his convictions after a jury trial in St. Charles County of 11 counts of statutory sodomy second degree, one count of attempted enticement of a child, one count of sexual misconduct third degree, and one count of furnishing pornography to a minor. We affirm.

Factual and Procedural Background

Appellant was originally charged by indictment with 21 counts of child sex crimes committed against seven victims. On July 24, 2019, Appellant filed a “Motion to Dismiss Improperly Joined Counts or For Severance of Offenses” (motion to sever), requesting the trial court to either dismiss improperly joined counts or sever the counts into sets to be tried separately. Appellant claimed that joinder was improper and that he would suffer substantial prejudice if the court elected not to sever the charges. In support of his request for severance, Appellant argued the jury would be unable to distinguish the evidence and would likely consider *2 evidence of guilt on one charge as evidence of guilt on the others due to the number of victims in the case. Appellant also claimed he “may wish to testify about one charge but not the others.”

On July 25, 2019, the trial court held a hearing on a number of motions, including Appellant’s motion to sever. The motion to sever was taken under advisement. On July 31, the trial court denied the motion, finding joinder proper and severance inappropriate. In denying severance, the court noted the evidence was not overly complex, the jury would not have difficulty distinguishing the offenses and Appellant failed to show he would be prejudiced.

On August 6, 2019, the state filed its Second Amended Information as well as a separate nolle prosequi notice, dismissing seven of the counts and leaving 14 charges involving five victims. The remaining charges were: six counts of statutory sodomy first degree, five counts of statutory sodomy second degree, one count of attempted enticement of a child, one count of sexual misconduct third degree and one count of furnishing pornographic material to a minor. The case was tried to a jury on August 6 through 9, 2019. The facts adduced at trial in the light most favorable to the verdicts are as follows:

Appellant was charged with three counts of statutory sodomy second degree for offenses involving the first victim, D.B., who testified he was 15 years of age when he met Appellant on a dating app in 2016.1 Appellant exchanged nude photographs with D.B. and expressed his desire to engage in oral and anal sex. When D.B. informed Appellant he was 15 years old, Appellant told D.B. about other underage boys he had been with in the past. Appellant offered D.B. a job working for Appellant’s plumbing company and misrepresented to D.B. he was a former DEA agent. On May 1, 2016, D.B. agreed to meet with Appellant and Appellant arranged to pick up

1 D.B. listed his age on the dating app as 18.

D.B. from his parents’ house. When Appellant arrived at the house, Appellant and D.B.’s parents had what D.B.’s parents described as an “unusually long” conversation.

D.B. testified Appellant then drove to a car wash where he placed D.B.’s hand on his crotch. D.B. testified when they arrived at Appellant’s house, Appellant gave D.B. a male enhancement pill, led him to the bedroom and engaged in oral and anal sex with D.B. whose testimony was corroborated by the police investigation and the testimony of his parents.

Appellant was charged with six counts of statutory sodomy first degree for crimes committed against the second victim, D.M., who was born in 1989. He testified about the numerous sexual acts occurring between 2001 and 2003 when he was less than 14 years of age. The jury ultimately convicted Appellant of the lesser included statutory sodomy second degree for each of the six counts, finding the acts occurred between 2003 and 2006 when D.M. was less than 17 years old rather than less than 14 years old. D.M. testified the sexual activity all took place in Appellant’s bedroom and that Appellant would play gay pornography on the bedroom television. Appellant provided D.M. with alcohol and money. Additionally, D.M. did some work around Appellant’s house. Appellant also misrepresented to D.M. that he was a former DEA agent.

Appellant was charged with one count of attempted enticement of a child and two counts of statutory sodomy second degree for crimes involving the third victim, C.R. Appellant initially approached C.R. at a Wal-Mart and offered him a job at Appellant’s plumbing company. Appellant also told C.R. he was a retired DEA agent. Appellant provided C.R. with alcohol, money, and male enhancement pills. C.R. spent the night at Appellant’s house more than ten times. C.R. testified that sexual acts occurred in the bedroom every time he was at Appellant’s house and that Appellant would play gay pornography on the bedroom television. Appellant *4 prohibited C.R. from sleeping in the living room, effectively requiring C.R. to sleep with Appellant in his bedroom.

Appellant was also charged with one count of sexual misconduct third degree for conduct involving the fourth victim, J.D. After hiring J.D. to work for him, Appellant began making inappropriate comments to J.D. Appellant told J.D. about exercises and pills designed to enhance male sexual performance. Appellant gave one of the pills to J.D. and explained the exercises in detail. J.D. testified Appellant implied that he wanted to perform the exercises, which consisted of inappropriate sexual acts, but J.D. refused. J.D. testified Appellant invited J.D. to spend the night with Appellant in his bed, but J.D. chose to sleep on the couch instead. Appellant also told J.D. he was a former DEA agent.

Appellant was charged with one count of furnishing pornographic materials to a minor for acts involving the fifth victim, M.M., who was 14 years old when he worked for Appellant for a week. While riding in Appellant’s car on the way to a work location, Appellant told M.M. that he sold male enhancement pills. Appellant offered to show M.M. a video demonstrating the pill’s effectiveness. M.M. told Appellant he did not want to see the video. Appellant ignored M.M.’s response and showed him a pornographic video. M.M. suspected the man in the video was Appellant. Appellant warned M.M. not to tell anyone about the video because he was a former DEA agent and he would make M.M. out to be a liar. During the time M.M. worked for Appellant, Appellant also had M.M. take his shirt off while working, took pictures of M.M. while he was shirtless, grabbed M.M.’s thigh, and told M.M. they were going to be “great friends.”

Appellant did not testify or present any evidence aside from exhibits admitted during cross-examination. The jury found Appellant guilty of all 14 counts, convicting Appellant of the *5 lesser included offense of statutory sodomy second degree for each of the six charges involving D.M. but finding him guilty as charged on the remaining counts. This appeal follows.

Point I – Motion to Sever was Properly Denied

In his first point on appeal, Appellant claims the trial court abused its discretion in denying Appellant’s motion to sever the fourteen counts into three separate groups of charges. Appellant concedes joinder was proper but argues he suffered substantial prejudice as a result of the court’s refusal to sever the charges.

Standard of Review

We review claims of improper joinder and failure to sever charges using a two-step analysis. State v. Tolen, 304 S.W.3d 229, 235 (Mo. App. E.D. 2009). First, we determine whether joinder was proper as a matter of law. Id. If not, prejudice is presumed and the charges must be severed. Id. If joinder was proper, however, we then determine whether the trial court abused its discretion in denying the defendant’s motion to sever. Id. “Once a finding is made that joinder is proper, the trial court’s decision will not be reversed absent a showing of both an abuse of discretion and a clear showing of prejudice.” State v. Love, 293 S.W.3d 471, 475 (Mo. App. E.D. 2009). A trial court abuses its discretion if its ruling is clearly against the logic of the circumstances then before it. State v. Scott, 548 S.W.3d 351, 364 (Mo. App. E.D. 2018). Further, the trial court’s ruling must be so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration in order for this court to find an abuse of discretion. Id.

Discussion

Section 545.140.2 RSMo. and Rule 23.05 govern joinder of offenses.2 Scott, 548 S.W.3d at 364. “Pursuant to these authorities, joinder is proper where the charged offenses are of the

2 All statutory references are to RSMo. Cum. Supp. 2019 unless otherwise noted. All rule references are to the Missouri Supreme Court Rules (2019) unless otherwise noted.

same or similar character, are based on two or more connected acts or transactions, or are part of a common scheme or plan.” Love, 293 S.W.3d at 475. Missouri courts favor liberal joinder of offenses as a means of achieving judicial economy and will find joinder appropriate where any of the § 545.140 RSMo. or Rule 23.05 criteria exist. Scott, 548 S.W.3d at 359 (citing Love, 293 S.W.3d at 475-76).

If the manner in which the crimes were committed is so similar or the crimes are so related or similar that it is likely the same person committed all of the charged crimes, joinder is proper. Tolen, 304 S.W.3d at 235. The use of similar or comparable tactics to commit the crimes is enough to establish that offenses are of the same or similar character. Id. The tactics need only resemble or correspond with each other; they need not be identical. Scott, 548 S.W.3d at 359 (citing Love, 293 S.W.3d at 476). Nonexclusive factors demonstrating similar tactics include commission of the same type of offenses, victims of the same sex and age group, offenses occurring at the same location, and offenses closely related in time. Tolen, 304 S.W.3d at 235. “The mere existence of differences among the counts does not defeat joinder.” Scott, 548 S.W.3d at 360 (citing Love, 293 S.W.3d at 476).

As rightfully conceded by Appellant and correctly noted by the trial court in its order denying Appellant’s motion to sever, joinder of the 14 charged offenses was proper. All of the crimes with which Appellant was charged were offenses of a sexual nature involving male victims between the ages of 12 and 17. Appellant misrepresented himself as a former DEA agent to all of the victims and offered jobs to most of them. Appellant also provided alcohol, money, and/or sexual enhancement pills to many of the victims. Appellant showed pornography to several of the victims as well. Moreover, the criminal conduct occurred either in Appellant’s home – specifically, in Appellant’s bedroom – or in Appellant’s car. Considering the evidence in *7 the present matter demonstrated the offenses were “the same or similar character . . . or part of a common scheme or plan,” joinder was proper. Love, 293 S.W.3d at 476.

Finding that the court ruled correctly on the joinder issue, we must determine whether the trial court abused its discretion in denying Appellant’s motion to sever the charges. Whether to grant severance lies within the sound discretion of the trial court. State v. McKinney, 314 S.W.3d 339, 342 (Mo. banc 2010). “To secure a reversal despite proper joinder, the defendant must establish that the trial court’s denial of a severance constituted an abuse of discretion and that it manifested substantial prejudice.” Love, 293 S.W.3d at 476.

When determining whether actual prejudice exists and severance is warranted, the court should consider the number of offenses joined, the complexity of the evidence, and the likelihood that the jury can distinguish the evidence pertaining to each offense. Love, 293 S.W.3d at 477. When evidence relating to each offense is distinct and uncomplicated, and the jury is properly instructed to return separate verdicts for each offense charged, any prejudice from joinder is overcome and there is no abuse of discretion in denying severance. State v. Reeder, 182 S.W.3d 569, 577 (Mo. App. E.D. 2005); see also McKinney, 314 S.W.3d at 342 (citing State v. Morrow, 968 S.W.2d 100, 109 (Mo. banc 1998)).

In his motion to sever, Appellant failed to make a particularized showing that he would be substantially prejudiced if the offenses were not tried separately or that there existed any bias or discrimination against him requiring severance. See Rule 24.07. Appellant argued that “the jury would likely consider evidence of guilt on one charge as evidence of guilt on the others.” Additionally, he contended that “[h]aving multiple unrelated victims testify would enflame the passions of the jury and encourage them to improperly use the evidence of one allegation as *8 propensity evidence against Defendant for the other.” These allegations are insufficient to show prejudice as they are entirely conclusory and devoid of any specific factual support.

As Appellant reminds us, prejudice must be carefully considered when contemplating severance. The trial court did this. Significantly, the trial court weighed Appellant’s concerns when evaluating the potential prejudice but ultimately concluded that the evidence was not overly complex and that the jury was capable of distinguishing the evidence as it related to each offense when denying the motion. “Under the law . . . severance is a matter of discretion for the trial court.” State v. Moore, 745 S.W.2d 224, 226 (Mo. App. E.D. 1987) (citing State v. Clark, 729 S.W.2d 579, 581 (Mo. App. E.D. 1987)).

A review of the record corroborates the trial court conclusions. Specifically, the evidence presented at trial was straightforward and simple. The jury heard testimony from the victims in the case as well as police witnesses involved in the investigation. In total, there were only 11 witnesses and the testimony was not beyond the sophistication of the average juror. Nothing in the record or the transcript of the trial indicates a properly instructed jury would be unable to distinguish what was relevant to each victim and to each charge. The elements of each offense were plainly set out in a separate instruction for each count.3

Additionally, “[t]he general allegation that the jury would likely consider evidence of guilt on one charge as evidence of guilt on another charge does not meet the requirement of a particularized showing of substantial prejudice.” State v. Warren, 141 S.W.3d 478, 488-89 (Mo. App. E.D. 2004). Further, “[t]he mere fact that juries are apt to regard with more jaundiced eye a person charged with two crimes than a person charged with one does not call for severance.” Id.

3 In Tolen, the defendant was charged with 37 counts of first or second-degree statutory sodomy committed against six victims, all of whom were teenage boys. This court found the trial court did not abuse its discretion in denying the defendant’s motion to sever because the evidence was distinct and uncomplicated. Further the trial court instructed the jury to consider each charged offense separately. Tolen, 304 S.W.3d at 236.

at 488. Significantly, a separate offense instruction was properly tendered, specifying: “The defendant is charged with a separate offense in each of the fourteen counts. Each count must be considered separately. You should return a separate verdict for each count and you can return only one verdict for each count.”4

As another reason for severing the charges, Appellant contends that he “may wish to testify about one charge but not the others . . .” This allegation is too general as well to satisfy the requisite showing of substantial prejudice. “[I]t is essential that the defendant present enough information – regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other – to satisfy the court that the claim of prejudice is genuine.” State v. Seagraves, 700 S.W.2d 95, 99 (Mo. App. E.D. 1985).

After considering the allegations presented to the trial court in Appellant’s motion, we conclude that the trial court did not abuse its discretion when denying severance. Love, 293 S.W.3d at 476. Point denied.

Point II – No Instructional Error

In his second and final point, Appellant claims the trial court plainly erred in submitting Instruction No. 32 to the jury because there was insufficient evidence that Appellant attempted to entice victim C.R. by having C.R. spend the night and giving C.R. alcohol. Specifically, Appellant argues the instruction was given in error because there was not sufficient evidence Appellant had C.R. spend the night at Appellant’s house to persuade C.R. to engage in sexual conduct. The applicable instruction reads, in relevant part, as follows:

As to Count 10, if you find and believe from the evidence beyond a reasonable doubt:

4 The language correctly mirrors MAI-CR 4th 404.12. Courts weigh the impact of jury instructions in determining whether severance is appropriate. Love, 293 S.W.3d at 477. “[C]lean instructions can help a jury competently distinguish between offenses.” Id. at 477-78.

First, that on or between November 1, 2014, and June 1, 2015, in the County of St. Charles, State of Missouri, the defendant had [C.R.] spend the night with him, and provided alcohol to [C.R.], and Second, that such conduct was a substantial step toward the commission of the offense of enticement of a child by attempting to persuade a person less than fifteen years of age to engage in sexual conduct, and Third, that defendant engaged in such conduct for the purpose of committing such enticement of a child, and Fourth, that the defendant was twenty-one years of age or older, then you will find the defendant guilty under Count 10 of attempted enticement of a child . . .

Standard of Review

Because Appellant failed to object to the alleged instructional error at trial or raise it in a motion for new trial, we review Appellant’s claim for plain error. Rule 28.03 reads as follows:

Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Counsel need not repeat objections already made on the record prior to delivery of the instructions and verdict forms. The objections must also be raised in the motion for new trial in accordance with Rule 29.11.

“Plain error is found when the alleged error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice occurred.” State v. Dorsey, 318 S.W.3d 648, 652 (Mo. banc 2010) (quotation marks and brackets omitted). For instructional error to constitute plain error, the defendant must show that the trial court “so misdirected or failed to instruct the jury” that the error affected the jury’s verdict. Id.

Discussion

Appellant’s allegation of instructional error is based specifically on the use of the conjunctive “and” between the two requirements that the jury find Appellant “had [C.R.] spend the night with him” and “provided alcohol to [C.R.]” in order to convict Appellant of attempted enticement of a child under Count 10. While Appellant concedes there was enough evidence that