In the Missouri Court of Appeals Eastern District DIVISION FOUR
EDWARD D. LUSK, ) No. ED109987 ) Appellant, ) Appeal from the Circuit Court of ) Cape Girardeau County vs. ) ) Honorable Benjamin F. Lewis STATE OF MISSOURI, ) ) Respondent. ) Filed: November 8, 2022
Introduction
Edward D. Lusk (“Movant”) pled guilty to property damage in the first degree, arson in
the second degree, and six counts of burglary in the second degree. After an evidentiary hearing,
the motion court denied his Rule 24.035 motion for post-conviction relief.1 He appeals the
motion court’s judgment and raises three Points. In Point I, Movant argues the motion court
clearly erred because his plea counsel (“Plea Counsel”) failed to advise him of a defense for the
arson in the second-degree count (Count XVIII) by which Movant could have proceeded to trial
and submitted lesser-included offense instructions for reckless or negligent burning. In Point II,
Movant argues the motion court clearly erred because Plea Counsel failed to advise him of an
alternative perpetrator defense on the burglary in the second-degree count involving the Battles
Communication location (Count XX). In Point III, Movant argues the motion court clearly erred
1 All Rule citations are to the Missouri Supreme Court Rules (2017), unless otherwise indicated. because Plea Counsel failed to object at sentencing to the prosecutor arguing facts about an
incident to which Movant was not pleading guilty and was outside the record.
Because Movant failed to show he was prejudiced by Plea Counsel allegedly not advising
him of the lesser included offenses of reckless or negligent burning, we deny Point I. Because
Movant failed to prove Plea Counsel did not advise him of the alternative perpetrator defense, we
deny Point II. Because Movant failed to show he was prejudiced by Plea Counsel’s failure to
object to the prosecutor’s statements, we deny Point III.
We affirm.
Factual and Procedural Background
In July and August of 2016, Movant violated his parole for first-degree robbery by
committing several burglaries causing significant property damage. On August 26, 2016, Movant
was charged by information as a prior and persistent offender with seven counts of second-
degree burglary, one count of second-degree attempted burglary, nine counts of first-degree
property damage, one count of receiving stolen property, two counts of resisting arrest, three
counts of misdemeanor stealing, one count of second-degree assault of a law enforcement
officer, and one count of second-degree arson. On June 12, 2017, Movant pled guilty to six
counts of second-degree burglary, in violation of section 569.170 (Counts I, III, VI, XII, XV, and
XX);2 one count of first-degree property damage, in violation of section 569.100 (Count IX); and
one count of second-degree arson, in violation of section 569.050 (Count XVIII). The remaining
seventeen charges were dismissed by the prosecution as part of the plea agreement. On August
18, 2017, Movant was sentenced as a prior and persistent offender to eight consecutive terms of
fifteen years imprisonment for 120 years in the Missouri Department of Corrections.
2 All statutory references are to RSMo (2016), unless otherwise indicated.
2 On November 27, 2017, Movant timely filed his Rule 24.035 post-conviction motion. On
January 3, 2018, his post-conviction counsel entered appearance on Movant’s behalf. Movant’s
post-conviction counsel requested an additional thirty days to file an amended post-conviction
motion. On July 12, 2018, Movant’s post-conviction counsel timely filed an amended post-
conviction motion with a request for an evidentiary hearing. After the evidentiary hearing, the
motion court issued findings of fact and conclusions of law denying Movant’s Rule 24.035
motion. This appeal follows.
Standard of Review
Our review of a Rule 24.035 motion is “limited to a determination of whether the
findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k). “A motion
court's findings are presumed correct, and we will overturn the ruling only if we are left with a
definite and firm impression that a mistake has been made.” James v. State, 462 S.W.3d 891, 893
(Mo. App. E.D. 2015) (quoting Nichols v. State, 409 S.W.3d 566, 569 (Mo. App. E.D. 2013)).
Movant must prove claims “by a preponderance of the evidence.” Rule 24.035(i).
Discussion
Point I: Failure to Advise of Lesser-Included Offense Instructions
A. Party Positions
In Point I, Movant argues the motion court clearly erred because Plea Counsel failed to
advise him of a defense for the arson in the second-degree count (Count XVIII) by which
Movant could have proceeded to trial and submitted lesser-included offense instructions for
reckless or negligent burning. Movant argues Plea Counsel’s failure to discuss the lesser
included offenses on the second-degree arson count negated the knowing entry of his plea.
Rueger, 498 S.W.3d at 543 (citing Wiggins, 480 S.W.3d at 383).
3 Movant argues he was charged with second-degree arson, which requires a person
knowingly damage a building or inhabitable structure by starting a fire or causing an explosion. §
569.050. Movant argues he maintained the position he did not knowingly start the fire which
occurred at Ringer and Jarrell Law Office. Thus, Movant argues, “had the count proceeded to
trial,” he “could have been found guilty of a nested-lesser included offense of reckless burning or
exploding . . . .” Movant argues Plea Counsel failed to discuss the lesser-included offenses of
reckless or negligent burning, or their elements, on Count XVIII. Movant argues had Plea
Counsel advised him of such offenses, “as well as the certainty of them being submitted for
deliberation to a jury,” Movant would not have pled guilty to Count XVIII, second-degree arson.
Thus, Movant argues his “plea of guilty was not voluntarily, knowingly[,] and intelligently
made.” Movant argues Plea Counsel “did not act as reasonably competent counsel would act
under similar circumstances” because reasonably competent counsel would have advised him of
the “viable defense” available at trial.
The State argues the motion court did not clearly err in denying Movant’s claim because
he “failed to prove that had he received such advice, he would have rejected the plea agreement
and insisted on going to trial on all [twenty-five] counts.” The State argues, “[t]here was no
possibility of going to trial only on the arson charge, and thus if [Movant] declined to plead
guilty per the plea agreement, he would have faced trial on all [twenty-five] counts.” The State
argues there was no guarantee the jury would convict him of the lesser included offenses, even if
he had proceeded to trial. The State argues even if Movant would have been convicted of the
lesser-included offenses on the second-degree arson count, Movant “still would have been facing
a potential total maximum sentence of 269 years.” The State argues “both [Plea Counsel] and
[Movant] believed that if he had taken the case to trial, he would likely have been convicted of
4 most, if not all, of the [twenty-five] counts.” Thus, the State argues the motion court correctly
determined there was no reasonable probability Movant would “have proceeded to trial rather
than plead guilty because his strategy was to plead guilty to eight counts rather than possibly be
convicted of [twenty-five] counts.”
B. Analysis
There is a strong presumption trial counsel’s conduct was reasonable and effective. Davis
v. State, 486 S.W.3d 898, 906 (Mo. banc 2016) (citing Johnson v. State, 406 S.W.3d 892, 899
(Mo. banc 2013)). To be entitled to post-conviction relief for ineffective assistance of counsel,
movants must show by a preponderance of the evidence: “(1) his trial counsel failed to exercise
the level of skill and diligence that a reasonably competent trial counsel would in a similar
situation, and (2) he was prejudiced by that failure.” Id. (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). “Prejudice occurs when ‘there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.’” Id.
(quoting Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002)).
Where there is a guilty plea, a claim of ineffective assistance of counsel is immaterial
‘except to the extent that the conduct affected the voluntariness and knowledge with which the
plea was made.’” Rice v. State, 550 S.W.3d 565, 569 (Mo. App. E.D. 2018) (quoting Wiggins v.
State, 480 S.W.3d 379, 383 (Mo. App. E.D. 2015)). It is counsel’s basic duty “to discuss the
circumstances and possible consequences of entering a plea in order to ensure that the defendant
makes an informed and intelligent decision about waiving the right to a trial.” Id. (citing
Wiggins, 480 S.W.3d at 383). If the movant establishes counsel’s deficient performance, he must
further show there is a reasonable probability, but for counsel’s ineffectiveness, he would not
have pled guilty and would have demanded a trial. Id. (citing Wiggins, 480 S.W.3d at 383). “If
5 the movant fails to satisfy either the performance prong or the prejudice prong, we need not
consider the other.” Farr v. State, 408 S.W.3d 320, 322 (Mo. App. E.D. 2013) (citing Sidebottom
v. State, 781 S.W.2d 791, 795–96 (Mo. banc 1989)).
In analyzing the record, “[t]his Court defers to the motion court’s determination of
witness credibility, as it is in a superior position to evaluate such.” Porter v. State, 575 S.W.3d
731, 736 (Mo. App. E.D. 2019) (citing Bradley v. State, 292 S.W.3d 561, 566 (Mo. App. E.D.
2009)). “The motion court is not required to believe the testimony of the movant or any other
witness, even if uncontradicted, and this Court defers to the motion court's determination of
credibility.” Kerpash v. State, 618 S.W.3d 278, 282 (Mo. App. E.D. 2021) (quoting Smith v.
State, 413 S.W.3d 709, 715 (Mo. App. E.D. 2013)).
Plea counsel’s failure to advise a defendant of a possible lesser-included offense may
render a guilty plea unknowing and involuntary. Wiggins, 480 S.W.3d at 383 (citing Bequette v.
State, 161 S.W.3d 905, 908 (Mo. App. E.D. 2005). To prove prejudice, Movant had to show he
would have forgone the State’s plea offer and would have proceeded to trial had he been
informed of the possibilities of an instruction on and conviction of reckless burning or negligent
burning. Rice, 550 S.W.3d at 570.
Movant was charged with twenty-five counts facing a possible maximum sentence of 283
years if he proceeded to trial. Under the plea agreement, Movant pled guilty to eight counts, and
the State agreed to dismiss seventeen counts (a potential sentence of 133 years). Additionally, at
the motion hearing, Movant and Plea Counsel testified they both believed, given the evidence
against him, there was a high probability Movant would be convicted of all, or nearly all, twenty-
five counts charged. Movant and Plea Counsel also conceded Movant likely would have been
convicted on this arson count even if lesser included offenses were proffered to the jury. The
6 motion court did not find Movant’s testimony he would have proceeded to trial if he knew about
the lesser included offenses credible. The motion court could reasonably conclude the record
refutes Movant’s allegation absent the alleged error of Plea Counsel, he would have gone to trial
risking conviction on seventeen additional charges with a possibility of an additional 133 years.
Because we defer to the motion court’s witness credibility determinations, and given the
record, the motion court did not clearly err in concluding Movant failed to establish prejudice.
Porter, 575 S.W.3d at 736 (citing Bradley, 292 S.W.3d at 566). As Movant failed to satisfy the
prejudice prong of the Strickland test, his ineffective assistance of counsel claim pertaining to
Plea Counsel’s alleged failure to advise him of the lesser included offenses must fail. See
Bradley, 292 S.W.3d at 566. We need not consider the performance prong. Farr, 408 S.W.3d at
322 (citing Sidebottom, 781 S.W.2d at 795–96).
Point I is denied.
Point II: Failure to Advise of Alternative-Perpetrator Defense
In Point II, Movant argues the motion court clearly erred because Plea Counsel failed to
advise him of an alternative perpetrator defense on the burglary in the second-degree count
involving the Battles Communication location (Count XX). Movant argues Plea Counsel’s
failure to discuss the alternative perpetrator defense on the second-degree burglary count negated
the knowing entry of his plea. Rueger, 498 S.W.3d at 543 (citing Wiggins, 480 S.W.3d at 383).
Movant argues “[a] defendant may introduce evidence tending to show that another
person committed the offense.” State v. Barriner, 111 S.W.3d 396, 400 (Mo. banc 2003).
Movant argues, under the direct connection rule, “evidence that another had opportunity or
motive is admissible if there is also proof that the other person committed some act directly
7 connecting him with the crime.” State v. McKay, 459 S.W.3d 450, 458 (Mo. App. E.D. 2014).
Movant argues here, two alternate suspects were investigated as being potentially involved in the
burglary at Battles Communication.
Movant argues Plea Counsel did not say “with certainty” she discussed presenting the
alternative perpetrator defense. Movant argues reasonably competent counsel would have
discussed the defense before advising Movant to plead guilty, given the reasonable doubt
created. Movant argues had he known about the alternative perpetrator defense, he would not
have entered his plea of guilty but would have taken his case to trial. Movant argues his plea of
guilty to Count XX was not voluntarily, knowingly, and intelligently made.
The State argues the motion court did not clearly err because Plea Counsel testified she
and Movant discussed the alternative perpetrator defense and they “instead opted to plead guilty
to eight of the [twenty-five] counts with which [Movant] was charged.” The State argues the
motion court found Plea Counsel’s testimony credible and Movant’s testimony not credible.
Thus, the State argues because this Court defers to the motion court’s determination of witness
credibility, the motion court did not err. Williams v. State, 646 S.W.3d 434, 438 (Mo. App. E.D.
2022).
The State further argues Movant failed to prove there was a viable alternative perpetrator
defense. The State argues the alternative perpetrator defense requires evidence of another
committing some act directly connecting him with the crime. McKay, 459 S.W.3d at 458. The
State argues Movant presented no evidence to show the two identified suspects “or any other
person committed any act connecting them with the burglary of Battles Communication.” The
State argues bare suspicion or mere opportunity to commit the crime is insufficient to allow
8 evidence of an alternative perpetrator defense. State v. Wright, 551 S.W.3d 608, 617–18 (Mo.
App. E.D. 2018).
The State finally argues Movant failed to show he was prejudiced. The State argues if
Movant opted not to plead guilty to the burglary at Battles Communication, Movant would have
gone to trial on all twenty-five counts and faced a possible sentence of up to 269 years. Thus, the
State argues it is not credible to believe Movant “would have risked a 200+ year sentence to
pursue a non-meritorious alternative perpetrator defense on one of the [twenty-five] charges.”
Movant is correct, “[p]lea counsel's failure to inform the movant of the relevant
and viable defense to the charges filed against the movant may negate the knowing entry of a
guilty plea.” Rueger, 498 S.W.3d at 543 (citing Wiggins, 480 S.W.3d at 383). But, in its findings
of fact and conclusions of law, the motion court found Plea Counsel’s testimony stating she
recognized and discussed the alternative perpetrator defense with Movant to be credible. The
motion court determined Movant’s testimony to the contrary not credible. As detailed above, we
defer to the motion court’s witness credibility determinations. Porter, 575 S.W.3d at 736 (citing
Bradley, 292 S.W.3d at 566). Accordingly, Movant failed to establish Plea Counsel’s
performance did not conform to the degree of skill, care, and diligence of a reasonably
competent attorney by a preponderance of the evidence. See Bradley, 292 S.W.3d at 566.
Because Movant failed to satisfy the performance prong of the Strickland test, his
ineffective assistance of counsel claim pertaining to Plea Counsel’s alleged failure to advise him
of the alternative perpetrator defense must fail. See id. We need not consider the prejudice prong.
Farr, 408 S.W.3d at 322 (citing Sidebottom, 781 S.W.2d at 795–96).
Point II is denied.
9 Point III: Failure to Object at Sentencing
In Point III, Movant argues the motion court clearly erred because Plea Counsel failed to
object at sentencing to the prosecutor arguing facts about an incident to which Movant was not
pleading guilty and was outside the record. Movant argues reasonably competent plea counsel
would have objected to such an argument and moved to not consider such prejudicial statements.
See State v. Storey, 901 S.W.2d 886, 900–01 (Mo. banc 1995) (citing State v. Shurn, 866 S.W.2d
447, 460 (Mo. banc 1993)).
Movant argues he was prejudiced by Plea Counsel’s failure to object because the trial
court judge, in the sentencing proceeding, considered the facts presented by the prosecutor.
Movant argues the information provided by the prosecutor regarding damaging Dexter
Automotive should not have been considered by the motion court because Movant was not
charged with such damage, nor was evidence presented to support it. Movant argues he received
120 years in the Department of Corrections, “in part, because the court considered the
prosecutor’s argument.” Movant argues if Plea Counsel had objected, the motion court would not
have considered the prosecutor’s argument, and there is a reasonable probability the outcome of
the sentencing proceeding would have been different.
The State argues the motion court did not clearly err because Movant failed to prove
there was a meritorious objection for Plea Counsel to have made or he was prejudiced by the
prosecutor’s argument. The State argues the facts discussed by the prosecutor were not outside of
the record. The State argues these facts, as noted by the motion court, were substantially similar
to the facts in the Sentencing Assessment Report. Thus, the State argues Plea Counsel’s failure to
object to cumulative evidence did not result in prejudice. Farr, 408 S.W.3d at 323.
10 The State further argues regardless of whether Movant was charged or not, “evidence of
what [Movant] did in the course of the burglary at Dexter Automotive was part and parcel of the
nature and circumstances of the burglary, and could properly have been considered by the trial
court in sentencing appellant.” § 557.036.1.
The State finally argues Movant cannot show prejudice because he cannot show a
reasonable probability of a different outcome at sentencing if Plea Counsel objected to the
prosecutor’s argument. The State argues the malicious and destructive evidence of Movant’s
actions were noted by the trial court and given “the wide range of discretion” given to a judge in
sentencing. Cherco v. State, 309 S.W.3d 819, 831 (Mo. App. W.D. 2010). The State argues it is
difficult to establish the “weighty burden” of prejudice in sentencing proceedings. Id. The State
argues it is presumed the trial court did not accept the prosecutor’s argument as a fact in
establishing Movant tried to start a fire at Dexter Automotive, but “relied on all of the
destruction that appellant was charged with doing as part of the burglaries of the numerous
premises.” See State v. Hogue, 501 S.W.3d 53, 58 (Mo. App. E.D. 2016).
“A prosecutor may not argue facts outside the record.” Storey, 901 S.W.2d at 900 (first
citing Shurn, 866 S.W.2d at 460; then citing Rule 4.3.4). Here, during the sentencing hearing, the
prosecutor stated:
I personally saw on the outside of the building where it looked like a line of fluids
had been poured on the exterior wall of that building and there were burn marks
there where it appears that the building too had been tried — the defendant tried
to burn that building as well.
11 The motion court determined these facts were not outside of the record because, as the
prosecutor immediately stated before the above remark, the Sentencing Assessment Report
(“SAR”), which was part of the court file and which the Court already read, detailed such facts.
The relevant portion of the Sentencing Assessment Report stated:
Officer Forshee indicated that he observed an unknown fluid poured along the
whole length of the West outside wall and a broken window frame. The fluid had
been ignited causing some burnt damage to the wall/window frame.
The motion court concluded Movant was not prejudiced by Plea Counsel’s decision not
to object to the prosecutor’s remark because the statement was cumulative and harmless.
“Evidence is considered cumulative when it addresses a matter fully developed by other
testimony.” Eye v. State, 551 S.W.3d 671, 676 (Mo. App. E.D. 2018). “Counsel’s failure to
object to cumulative evidence, even where the trial court would have sustained the objection,
does not result in prejudice.” Polk v. State, 539 S.W.3d 808, 822 (Mo. App. W.D. 2017) (quoting
Farr, 408 S.W.3d at 323). Here, the prosecutor’s statement was cumulative to the SAR, both
discussed the fluid and its attempted ignition. See Eye, 551 S.W.3d at 676. Movant failed to
establish he was prejudiced, even if Plea Counsel’s performance was deficient in failing to object
to the prosecutor’s statements. See Polk, 539 S.W.3d at 822.
As Movant failed to satisfy the prejudice prong of the Strickland test, his ineffective
assistance of counsel claim must fail. See Polk, 539 S.W.3d at 822. We need not consider the
performance prong. Farr, 408 S.W.3d at 322 (citing Sidebottom, 781 S.W.2d at 795–96).
Point III is denied.
12 Conclusion
The judgment of the motion court is affirmed.
_______________________________ Philip M. Hess, Judge
Kelly C. Broniec, P.J. and James M. Dowd, J. concur.