McClendon v. State

McClendon v. State

Opinion

 [*928]  Introduction

Corey McClendon ("McClendon") appeals following the denial of his Rule 29.15¹ motion to set aside his convictions  [*929]  on two counts of forcible sodomy and one count of kidnapping. In his sole point on appeal, McClendon claims he was denied effective assistance of counsel because trial counsel did not object when, in closing argument, the State asked the jury to return guilty verdicts to support the victim. McClendon claims prejudice asserting that the trial court would have sustained such objection, and that the jury likely returned a guilty verdict out of an emotional response to the improper closing argument as a direct result of trial counsel's failure to object. Because trial counsel engaged in a reasonable trial strategy when choosing not to object during the State's closing argument, McClendon cannot prevail on his claim of ineffective assistance of counsel. Accordingly, we affirm the motion court's judgment.

 [**2] Factual and Procedural History

On December 28, 2011, McClendon sexually assaulted a fourteen-year-old boy ("C.M."). C.M. reported the assault to police and was taken to a hospital, where physical evidence was collected and preserved in a rape kit. C.M. could not identify his attacker in a photographic lineup, but investigators matched DNA preserved in the rape kit to McClendon through the Combined DNA Index System. The State charged McClendon with two counts of forcible sodomy and one count of kidnapping. The case proceeded to trial and the State said the following during its closing argument:

[THE STATE]: It's time to decide. Either it happened or it didn't happen. There is no in between. This jury knows it happened, and it knows that [McClendon] did it. There is plenty of evidence for that. Let [C.M.] know he was right to run straight to the police station and tell what happened. Let him know that it was okay that he was honest about everything that happened, and even when he sat here and said, I don't know. I can't pick out who did it.

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