In the Missouri Court of Appeals Eastern District DIVISION ONE
GREGORY B. JONES, ) No. ED112116 ) Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) ) Honorable Scott A. Millikan STATE OF MISSOURI, ) ) Respondent. ) Filed: August 13, 2024
Movant Gregory B. Jones appeals the motion court’s order denying his claims for post-
conviction relief after holding an evidentiary hearing. Movant is not entitled to relief on his claims.
One point is not cognizable in a post-conviction relief proceeding, and Movant failed to
demonstrate deficient performance and prejudice on his other two, ineffective assistance of counsel
claims. The motion court, therefore, did not clearly err in denying Movant’s motion. Hence, we
affirm.
Factual and Procedural Background
A jury in 2016 convicted Movant of two counts of first-degree statutory sodomy. The
convictions stemmed from two incidents that occurred sometime between 2001 and 2003, when
the victim, who is Movant’s step-granddaughter, was around ten years old. The trial court
sentenced Movant to thirty years in the custody of the Missouri Department of Corrections on each count, said sentences to run concurrently. This Court affirmed Movant’s convictions and sentences
on direct appeal. State v. Jones, 546 S.W.3d 1 (Mo. App. E.D. 2017).
Movant then sought post-conviction relief pursuant to Rule 29.15. Two of Movant’s claims
for relief centered around the admission at trial of his prior convictions as propensity evidence.
Movant first alleged that he was deprived of his due process rights when the Supreme Court of
Missouri denied his Application for Transfer after its holding in State v. Williams, 548 S.W.3d 275
(Mo. banc 2018), which overruled the caselaw that this Court relied on to affirm the trial court’s
judgment. He then alleged that trial counsel was ineffective for failing “to present evidence and
argument” distinguishing Movant’s prior convictions for rape and attempted rape from the charged
offenses of first-degree statutory sodomy. Movant additionally claimed that trial counsel was
ineffective for failing to effectively cross-examine the victim as to “inconsistencies across her
statements and testimony and the testimony of other witnesses.” The motion court held an
evidentiary hearing, at which trial counsel testified. Movant testified by deposition. The motion
court then denied Movant’s claims. Movant now appeals.
Standard of Review
Appellate review of the motion court’s denial of a post-conviction relief motion is not a de
novo review. Joos v. State, 277 S.W.3d 802, 805 (Mo. App. S.D. 2009) (internal quotation
omitted). The motion court’s ruling is presumed correct. Greene v. State, 585 S.W.3d 800, 803
(Mo. banc 2019). This Court’s review of a motion court’s denial of a motion for post-conviction
relief is limited to a determination of whether the motion court’s findings of fact and conclusions
of law are clearly erroneous. Id.; Rule 29.15(k). A motion court’s findings and conclusions are
clearly erroneous only if, after a review of the record, this Court is left with a definite and firm
impression that a mistake has been made. Greene, 585 S.W.3d at 803. Furthermore, this Court
2 will affirm the motion court’s denial of post-conviction relief if the motion court reached the
correct result, even if the stated reason for the motion court’s ruling is incorrect. Curry v. State,
438 S.W.3d 523, 524 (Mo. App. E.D. 2014); Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013)
(the judgment of the post-conviction relief motion court may be affirmed on any legal ground
supported by the record if the circuit court arrived at the correct result).
Point I: Application for Transfer & Legal Relevancy Balancing Test
Movant first alleges the motion court clearly erred in denying his claim that he was
deprived of his due process rights when the Supreme Court of Missouri denied his Application for
Transfer after its holding in State v. Williams, 548 S.W.3d 275 (Mo. banc 2018), which overruled
the caselaw that this Court relied on to affirm Movant’s convictions on direct appeal in 2017.
As noted, this point and the following point, Point II, are centered on the admission at trial
of evidence of Movant’s prior convictions as propensity evidence. Missouri voters in 2014
amended the Missouri constitution to enact a new rule of evidence in criminal cases. State v. Jones,
546 S.W.3d 1, 6 (Mo. App. E.D. 2017). This amendment, Article I, Section 18(c), provides:
Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim’s testimony or demonstrating the defendant’s propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
(Emphasis added). “This amendment expressly allows the admission of “relevant evidence of
prior criminal acts” to demonstrate the defendant’s propensity to commit the charged crimes, in
sex-crime prosecutions involving a minor victim.” Jones, 546 S.W.3d at 6. The evidence of prior
criminal acts, however, must be both logically and legally relevant. Id. Evidence is logically
relevant if “it has any tendency to make the existence of a material fact to the case more or less
3 probable than it would be without such evidence.” Id. Traditionally, evidence is considered to be
legally relevant if its probative value outweighed its prejudicial effect. Id. at 7.
Movant was convicted in 1968 of forcible rape and in 1975 of attempted rape. The State
submitted Movant’s prior convictions as propensity evidence under Article I, Section 18(c) of the
Missouri Constitution. Movant sought to exclude his prior convictions from evidence, arguing
that the probative value from the convictions was substantially outweighed by the danger of unfair
prejudice. Movant claimed that his prior convictions lacked any probative value because they
were remote in time and dissimilar to statutory sodomy.
The trial court denied Movant’s pre-trial motion in limine as well as Movant’s objections
at trial, and admitted the evidence of Movant’s prior convictions “for purposes of propensity …
pursuant to the Missouri Constitution.” The trial court did not make an express determination on
the record weighing the probative value and the prejudicial impact of the evidence.
Movant appealed following his convictions, contending that the trial court erred in
admitting his prior convictions as propensity evidence without first conducting an express
balancing test on the record as to whether the probative value of such evidence was outweighed
by the danger of unfair prejudice. He contended that such a balancing test was required and that a
properly conducted balancing test would reveal that the probative value of his prior convictions
was far exceeded by the danger of unfair prejudice, therefore precluding the admission of his prior
convictions. This Court rejected Movant’s argument on direct appeal and affirmed Movant’s
convictions. In addressing the legal relevancy of the prior convictions, we noted that traditionally
evidence was considered to be legally relevant if its probative value outweighed its prejudicial
effect. Jones, 546 S.W.3d at 7. This Court, however, citing State v. Thigpen, 548 S.W.3d 302 (Mo.
App. E.D. 2017) and State v. Rucker, 512 S.W.3d 63 (Mo. App. E.D. 2017), noted that Article I,
4 Section 18(c) altered this traditional balancing test in crimes of a sexual nature committed against
minor victims. We held that the constitutional amendment dispensed with the requirement that the
trial court conduct any balancing analysis of probative value to prejudice. Jones, 546 S.W.3d at 7.
We noted that the constitutional amendment provides that the trial court “may exclude relevant
evidence of prior criminal acts if the probative value of the evidence is substantially outweighed
by the danger of unfair prejudice.” (Emphasis added). Id. We reasoned that the General
Assembly’s use of the word “may” indicated that the court had the discretion to exclude such
evidence but was not obligated to do so. Id. As a result, even if the probative value of Movant’s
prior convictions was substantially outweighed by the danger of unfair prejudice, the trial court
was not required to exclude its admission. Id. “The trial court may, at its discretion, admit
evidence of prior misconduct even if the danger of unfair harm from such evidence substantially
outweighs its probative value.” Id. For evidence falling within the purview of Article I, Section
18(c), the trial court may, but is not required to, exclude evidence that traditionally would lack
legal relevance. Id.
This Court on direct appeal made no determination as to whether the evidence of Movant’s
prior crimes was legally relevant. Rather, this Court only decided that the trial court had discretion
in choosing to not exclude evidence for lack of legal relevance. Thus, because the evidence of
Movant’s prior convictions was logically relevant, 1 and because the trial court had discretion to
1 This Court held that the prior convictions were logically relevant, in that the prior convictions tended to prove that Movant was more likely to commit statutory sodomy. Jones, 546 S.W.3d at 7. This Court reasoned that the remoteness in time of the prior offenses did not eliminate its logical relevance but rather generally affected the weight to be given such evidence. Id. at 6-7. We noted that though events occurring closer in time may have more probative value and could be given more weight by the jury, events remote in time retain sufficient probative value to meet the low threshold required by the logical relevance test. Id. at 7. As to the claimed dissimilarities between the crimes, this Court held that the prior offenses were not so dissimilar as to eliminate their probative value because both the prior offenses and the offenses for which Movant was charged involved impermissible physical and harmful contact of a sexual nature with the victim. Id.
5 admit evidence under Article I, Section 18(c) that was substantially more prejudicial than
probative, this Court held that Movant’s argument – that trial court erred in admitting propensity
evidence which was allegedly substantially more prejudicial than probative – to be necessarily
without merit. Id. at 7-8. This Court later denied Movant’s post-opinion motion for rehearing
&/or transfer to the Supreme Court of Missouri, which raised the same issues.
Movant then filed an Application for Transfer with the Supreme Court of Missouri, on the
same two issues: (1) whether a court must engage in a balancing test when admitting evidence
pursuant to Article I, Section 18(c); and (2) whether, after concluding that the prejudicial effect of
the evidence outweighs its probative value, the court can nevertheless still admit the evidence
under Article I, Section 18(c). Movant argued that a balancing test was mandatory, not permissive,
and that the wholesale admission of propensity evidence, without qualification, violated the Due
Process Clause of the U.S. Constitution. Movant asserted that the “unfettered” admission of his
prior convictions, without any consideration for the requisite balancing test, and without regard
for the prejudicial effect of the evidence, violated his rights to Due Process and a fair trial.
While Movant’s application was pending at the Supreme Court, the Supreme Court issued
State v. Williams, 548 S.W.3d 275 (Mo. banc 2018). Williams also involved the admission of
propensity evidence under Article I, Section 18(c). The Supreme Court held that, notwithstanding
the word “may” in the amendment, propensity evidence must pass the legal relevance test before
it can be admitted under Article I, Section 18(c). In other words, the circuit court must weigh and
balance the probative value and the prejudicial impact of the evidence, and must exclude the
evidence, even if logically relevant, when “the prejudicial effect substantially outweighs the
probative value of the evidence.” Williams, 548 S.W.3d at 285 n.11. The Supreme Court directed
that cases to the contrary, such as State v. Rucker, 512 S.W.3d 63 (Mo. App. E.D. 2017), should no
6 longer to be followed. Id. Three weeks later, the Supreme Court denied Movant’s Application for
Transfer, allowing this Court’s opinion affirming Movant’s conviction to stand.
In seeking post-conviction relief, Movant alleged that he was deprived of his federal due
process rights when the trial court admitted irrelevant evidence; the Court of Appeals affirmed
Movant’s convictions based on a determination that legally irrelevant evidence was admissible;
and the Supreme Court of Missouri denied Movant’s Application to Transfer after holding in
Williams that legally irrelevant evidence is not admissible pursuant to Article I, Section 18(c). The
motion court denied Movant’s claim, reasoning that the issue had been raised and denied on
Movant’s direct appeal.
Movant alleges the motion court clearly erred in denying his claim. Movant contends that
in determining the issue had already been decided, the motion court “missed the point” of the issue
he had raised. Movant argued that he was not re-litigating the decision of the trial court to admit
the propensity evidence. Rather, Movant asserts the issue raised, for the first time, was that his
due process rights were violated when the Supreme Court denied his application, thus finally
affirming his convictions, after the Court handed down Williams that overruled the precedent upon
which the Court of Appeals had affirmed his convictions. Movant argues the failure to require a
balancing test and the unfettered admission of evidence of his prior convictions violated his rights
to due process and a fair trial. He asserts that in failing to follow its own precedent, the Supreme
Court of Missouri allowed his convictions to stand in the face of “flagrant” due process violations.
Movant is not entitled to relief, for three fundamental reasons: (1) his claim is not
cognizable in a proceeding under Rule 29.15; (2) this Court and the motion court do not have the
authority to overrule a decision of the Supreme Court; and (3) this issue was raised and decided
on direct appeal.
7 To begin, Movant’s claim is not cognizable in a proceeding under Rule 29.15. Rule 29.15
provides an exclusive procedure to seek relief for the claims specifically enumerated by the rule.
Rule 29.15(a). Such claims are limited to: (1) that the conviction or sentence imposed violates the
constitution and laws of this state or the constitution of the United States, including claims of
ineffective assistance of trial and appellate counsel; (2) that the court imposing the sentence was
without jurisdiction to do so; or (3) that the sentence imposed was in excess of the maximum
sentence authorized by law. Id. Claims that are not included in this list are not cognizable under
the rule. Williams v. State, 646 S.W.3d 434, 439 (Mo. App. E.D. 2022). That the Supreme Court
of Missouri did not grant an application for transfer, and then overturn Movant’s conviction, is not
a challenge to the conviction or sentence imposed, but a challenge to the Supreme Court’s decision
regarding a post-appeal application. Movant conceded that his post-conviction claim was not
seeking to litigate the issue of the actual admission of the propensity evidence – a ruling that might
have affected the lawfulness of his conviction. Instead, Movant challenged a ruling not included
in the enumerated claims in the rule.
Next, the motion court and this Court are without authority to overrule a decision of the
Supreme Court of Missouri. Missouri's Constitution expressly states that the Supreme Court of
Missouri “shall be the highest court in the state” and that its “decisions shall be controlling in all
other courts.” Mo. Const. art. V, section 2. As such, this Court and the circuit courts are
“constitutionally bound to follow the most recent controlling decision of the Missouri Supreme
Court,” and inquiries questioning the correctness of such a decision are improper. Doe v. Roman
Cath. Diocese of St. Louis, 311 S.W.3d 818, 822 (Mo. App. E.D. 2010). The motion court and this
Court have no authority to presuppose or second guess the Supreme Court of Missouri's
8 determination as to whether Rule 83.04 grounds exist supporting its discretionary transfer and
review of the case. Kim v. State, 591 S.W.3d 873, 879 (Mo. App. S.D. 2019).
Lastly, “[p]ost-conviction relief under Rule 29.15 is not a substitute for direct appeal or to
obtain a second chance at appellate review.” McLaughlin v. State, 378 S.W.3d 328, 357 (Mo. banc
2012); Sallee v. State, 460 S.W.2d 554, 558-59 (Mo. 1970). “Claims of trial error will only be
considered in a Rule 29.15 motion where fundamental fairness requires, and then, only in rare and
exceptional circumstances.” Tisius v. State, 183 S.W.3d 207, 212 (Mo. banc 2006). Movant has
not shown such rare and exceptional circumstances here.
Movant claims his due process rights were violated when his conviction became final,
leaving the admission of his prior convictions without any consideration for the requisite balancing
test, and without regard for the prejudicial effect of the evidence. This issue was raised during his
direct appeal, and specifically in his Application for Transfer to the Supreme Court. Transfer to
the Supreme Court is discretionary under Rule 83.04. Thus, the Supreme Court denied Movant’s
request for transfer. We acknowledge that there was a change in the law while Movant’s
application was pending before the Supreme Court, which would have precipitated a different
analysis by this Court when addressing his claims on direct appeal. However, the Supreme Court
was aware of the issues raised in Movant’s Application for Transfer and it was aware of its recent
Williams decision. The Supreme Court did not remand the case with instructions. Instead, the
Supreme Court denied transfer, leaving to stand this Court’s opinion affirming Movant’s
convictions. This decision is controlling. Moreover, as discussed above this Court is without
authority to second guess and overrule the Supreme Court’s determination. We do note, however,
that Movant’s claim is based on presumptions. Movant simply presumes, because nothing is on
the record, that the trial court did not engage in the balancing test when admitting the evidence at
9 trial. The Supreme Court in Williams held that the circuit court is not required to make an express
finding of legal relevance before admitting evidence under Article I, section 18(c), provided the
record reflects a sound basis for the balancing the amendment requires. Williams, 548 S.W.3d at
286. He further presumes that any balancing of the probative value against prejudicial effect would
necessarily result in a finding that the prejudice substantially outweighed the probative value of
the evidence.
For the above reasons, Movant’s claim necessarily fails. The motion court, therefore, did
not clearly err in denying relief on Movant’s claim. We deny this point.
General Ineffective Assistance of Counsel, Post-Conviction Relief Law
Movant’s remaining two points involve claims of ineffective assistance of counsel. To
prevail on an ineffective assistance of counsel claim, a movant must satisfy the two-pronged test
announced in Strickland v. Washington, 466 U.S. 668, 687 (1984); Staten v. State, 624 S.W.3d 748,
750 (Mo. banc 2021). First, a movant must show that counsel failed to exercise the level of skill
and diligence that a reasonably competent attorney would exercise under similar circumstances;
second, the movant must show that counsel’s deficient performance prejudiced movant. Staten,
624 S.W.3d at 750. A movant must overcome the strong presumption that counsel’s conduct was
reasonable and effective. Johnson v. State, 406 S.W.3d 892, 899 (Mo. banc 2013). To overcome
this presumption, a movant must identify “specific acts or omissions of counsel that, in light of all
the circumstances, fell outside the wide range of professional competent assistance.” Id. To
demonstrate prejudice a movant must establish that but for counsel’s deficient performance there
is a reasonable probability that the outcome of the proceeding would have been different.
McFadden v. State, 619 S.W.3d 434, 445 (Mo. banc 2020). A movant must prove his or her claims
by a preponderance of the evidence. Johnson, 406 S.W.3d at 898.
10 Point II: Distinguishing Prior Convictions
Movant alleges the motion court erred in denying relief on his claim that trial counsel was
ineffective for failing “to present evidence and argument” distinguishing Movant’s prior
convictions for rape and attempted rape from the charged offenses of first-degree statutory sodomy.
The prosecutor, over objection by Movant’s counsel, read Movant’s two prior convictions
into evidence at the end of the State’s case in chief. Specifically, the prosecutor stated:
Ladies and gentlemen, on December 18, 1968, the defendant was found guilty of the felony of forcible rape in the Circuit Court of the City of St. Louis, State of Missouri. And on May 20, 1975, the defendant was found guilty of the felony of attempted rape in the Circuit Court of the City of St. Louis, State of Missouri.
No other evidence was presented by either party regarding Movant’s prior convictions.
In seeking post-conviction relief, Movant claimed that counsel should have presented
information that the priors were remote in time and dissimilar to the charged offenses in that the
victims of the prior convictions were not related and both were older than Movant (and thus did
not involve pedophilia). Movant alleged that had counsel provided a more detailed account of
Movant’s prior convictions the outcome of trial would likely have been different. Movant argued
that his priors were so remote in time and dissimilar to the charged offenses that, if carefully
evaluated by the jury, the priors would not tend to influence whether Movant sodomized his
prepubescent granddaughter. The motion court denied relief on the claim, reasoning that Movant
did not show that evidence of the prior convictions would have been excluded and Movant did not
show that he would have admitted and distinguished the prior convictions if he would have
testified. The motion court noted that Movant denied that he had committed the prior offenses,
despite his convictions. We discern no error by the motion court.
Trial counsel explained at the evidentiary hearing that he did not distinguish the prior
convictions as a matter of trial strategy. He knew that evidence of the prior convictions would be
11 admitted and was aware of the potentially damaging effect of that evidence. He acknowledged
that there were differences between the prior convictions and the charges for which Movant was
on trial. Still, counsel made a strategic choice to not draw those distinctions. His thought process
at the time was that he needed to preserve the issue of admissibility of the prior convictions for
appeal. Counsel characterized the issue of admissibility of the prior convictions as a “really
significant” issue in the case. Counsel was very concerned that if he raised, introduced, and
presented evidence of the prior convictions he would waive appellate review of the issue of
admissibility under the Constitution.
“The selection of witnesses and evidence are matters of trial strategy, virtually
unchallengeable in an ineffective assistance claim.” Johnson, 406 S.W.3d at 900 (internal
quotation omitted). “No matter how ill-fated it may appear in hindsight, a reasonable choice of
trial strategy cannot serve as a basis for a claim of ineffective assistance.” Id. “The question in an
ineffective assistance claim is not whether counsel could have or even, perhaps, should have made
a different decision, but rather whether the decision made was reasonable under all the
circumstances.” Id. at 901 (internal quotation omitted). Trial strategy decisions may be a basis
for ineffective counsel only if that decision was unreasonable. Id. at 899.
Here, trial counsel filed a motion in limine seeking to exclude the evidence, which the trial
court denied. With respect to a motion in limine, it is clear that to properly preserve an objection
to the admission of evidence, which is the subject of the motion, a party must wait until the
challenged evidence is actually offered and then make a specific objection to its admission. Nolte
v. Ford Motor Co., 458 S.W.3d 368, 378 (Mo. App. W.D. 2014). This is what trial counsel did
here. A party cannot seek to utilize evidence in the pursuit of one reasonable trial strategy and then
turn around on appeal and claim that same evidence was inadmissible and prejudicial. Id. at 377-
12 78; State v. Carollo, 172 S.W.3d 872, 876 (Mo. App. S.D. 2005). A party’s preemptive introduction
of the challenged evidence waives his objection thereto on appeal. Nolte, 458 S.W.3d at 378.;
State v. Mickle, 164 S.W.3d 33, 57 (Mo. App. W.D. 2005). In short, if trial counsel here had faced
the evidence directly by first broaching the subject and crafting a defense around the evidence,
counsel would have waived the issue of admissibility on appeal.
Counsel testified that the admissibility of Movant’s prior convictions was a “really
significant” issue in the case. Movant’s trial, held in 2016, dealt with a recent change in the law.
Missouri voters two year earlier amended the Missouri constitution to allow the admission of
“relevant evidence of prior criminal acts” to demonstrate the defendant’s propensity to commit the
charged crimes, in sex-crime prosecutions involving a minor victim. Mo. Const. art. I, sec. 18(c);
Jones, 546 S.W.3d at 6. Movant’s position at trial – and to this day – was that evidence of Movant’s
prior convictions was not admissible under the recent change in the law. Counsel’s decision to
preserve that issue for appeal, and not risk waiving the issue by raising Movant’s prior convictions,
was reasonable under the circumstances. We acknowledge trial counsel also testified that in
hindsight he should have distinguished the prior convictions more but this testimony is of no
assistance to Movant. The court does not view counsel’s performance in hindsight. When
assessing counsel’s performance, the reasonableness of counsel’s decision “must be viewed at the
time the decision occurred, taking into consideration the circumstances of case.” Tucker v. State,
468 S.W.3d 468, 474 (Mo. App. E.D. 2015); Strickland, 466 U.S. at 689.
Contrary to Movant’s assertion, trial counsel distinguished his prior convictions. Counsel
addressed the remoteness of the prior convictions during his closing argument. The jury heard
evidence that the prior offenses occurred in 1968 and 1975. Counsel expressly noted that the prior
convictions were from forty-one years prior to trial. He argued that the State was emphasizing the
13 prior convictions because the State was desperate due to the lack of evidence. Continuing, counsel
argued that because of the lack of evidence, the State was “putting a stigma” on Movant – putting
“the scarlet letter” on him – and allowing the jury to look at Movant in a completely different light
and believe that because this happened forty-one years ago the victim’s story must be true.
Movant’s claim that counsel failed to present evidence and argument about the remoteness of the
prior crimes is meritless.
To the extent Movant contends counsel should have distinguished the priors once the
evidence was presented by the State, this contention also fails. Given Movant’s denial of the prior
convictions, Movant offered no suggestion as to what witness counsel should have called or what
counsel should have done, other than “to present evidence and argument” to provide context and
a more detailed explanation for the prior convictions. 2 Missouri is a fact pleading state. State v.
Harris, 870 S.W.2d 798, 815 (Mo. banc 1994). Rule 29.15 is consistent with that position. Id.
“To receive post-conviction relief under Rule 29.15, a movant must offer sufficient allegations to
allow the motion court to meaningfully apply the Strickland standard and decide whether the
pleaded claim warrants the relief requested.” Jones v. State, 679 S.W.3d 566, 574 (Mo. App. E.D.
2023); Morrow v. State, 21 S.W.3d 819, 824 (Mo. banc 2000). A bare assertion of “failure to
present evidence and argument” is not sufficient to properly raise a claim under Rule 29.15. Courts
“will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions.”
Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003).
2 To prevail on a claim of ineffective assistance for failure to call a witness, a movant must show that: (1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness's testimony would have produced a viable defense.” Shockley v. State, 579 S.W.3d 881, 906 (Mo. banc 2019) (internal quotation omitted). Movant, however, made no such assertions in his amended motion.
14 At the evidentiary hearing, it was suggested that counsel could have presented the evidence
through Movant’s testimony. However, a movant may not refine his claim at the evidentiary
hearing. Johnson v. State, 388 S.W.3d 159, 167 (Mo. banc 2012) (“Pleading defects cannot be
remedied by the presentation of evidence and refinement of a claim on appeal.”); Jones, 679
S.W.3d at 574 (“The purpose of an evidentiary hearing … is not to provide the movant with an
opportunity to produce new facts not alleged in the Rule 29.15 motion”). Movant did not testify
at trial, as was his right. Even if he had testified, Movant has not demonstrated that his testimony
would have resulted in distinguishing the priors, much less that it would have produced a viable
defense. In Movant’s deposition for the evidentiary hearing, Movant testified that had he taken
the stand at trial and testified regarding the prior convictions, he would have testified that he was
innocent – that he was wrongfully convicted. As the motion court cogently observed, Movant did
not testify that he would have distinguished the crimes. “If a potential witness's testimony would
not unqualifiedly support a defendant, the failure to call such a witness does not constitute
ineffective assistance.” Hosier v. State, 593 S.W.3d 75, 88 (Mo. banc 2019).
Movant has not overcome the strong presumption that counsel rendered adequate
assistance exercising reasonable professional judgment. Movant has not explained how or
demonstrated that counsel’s course of representation was outside the wide range of professionally
competent representation. And thus, Movant has not demonstrated deficient performance on the
part of trial counsel. Movant has not satisfied the first prong of the Strickland test.
Movant has also not demonstrated prejudice, the second prong of the Strickland test.
Movant contends that had counsel given a more detailed account and explained how the priors
were dissimilar to the charged offenses that context would have prevented the influence the priors
15 had over the jury. In short, he contends that the evidence of the prior convictions, without any
context, influenced the jury to convict him of the charged offenses.
Movant’s claim of influence and prejudice is speculative. The jury was instructed on the
charged crimes of first-degree statutory sodomy. The jury was also given Instruction Number 9,
which addressed Movant’s prior convictions. Pursuant to that instruction, the jury was instructed
that it could use evidence of prior convictions only for propensity and that the jury “may not
consider such evidence for any other purpose.”3 The jury was also instructed that it “may not
convict a person simply because they believed the person may have committed similar acts in the
past.” We presume the jury followed the instructions. Christian v. State, 455 S.W.3d 523, 528
(Mo. App. W.D. 2015). Movant makes no allegation to the contrary. Because the jury was
instructed that they could consider Movant’s prior convictions only as propensity evidence, we
presume that the jury did not use his convictions as evidence of guilt. See Id.
We also fail to see the probative value of providing further details of the prior convictions.
The 1968 rape conviction centered around a burglary that involved a knife. The victim was
eighteen years old. Movant and his codefendant both raped the victim. One would hold the knife
while the other one raped the victim. The 1975 conviction for attempted rape also involved a
burglary and a weapon. Movant was convicted for attempting to rape a woman in her own bed at
gunpoint. Conceivably, such details as burglaries, a gang rape, and the use of weapons during the
commission of the sexual offenses would have been adduced by the State and would have been
3 Instruction Number 9 was patterned after MAI-CR 3rd 310.12, modified in order to comply with Article I Section 18(c )of the Missouri Constitution. Instruction Number 9 read: If you find and believe from the evidence that the defendant was convicted of the offenses of rape and attempted rape, you may consider that evidence on the issue of demonstrating the defendant’s propensity to commit the crime of statutory sodomy in the first degree with which he is presently charged. You may not consider such evidence for any other purpose.
The defendant is on trial only for the crimes charged. You may not convict a person simply because you believe he may have committed similar acts in the past.
16 more prejudicial to Movant had counsel gone into more detail. 4 Movant does not explain how
such harmful details would have benefitted him.
In light of counsel’s closing argument, the jury instructions, and the harmful circumstances
surrounding the prior offenses, no reasonable probability exists that the outcome of the trial would
have been different had counsel provided a more detailed account of Movant’s prior convictions.
Because Movant did not demonstrate that counsel’s performance was deficient or that he
suffered prejudice, he is not entitled to relief on his claim. The motion court, therefore, did not
clearly err in denying the claim. We deny this point.
Point III: Cross-Examination
Lastly, Movant alleges the motion court clearly erred in denying relief on his claim that
trial counsel was ineffective for failing to effectively cross-examine the victim as to
“inconsistencies across her statements and testimony and the testimony of other witnesses.” In
particular, Movant alleges counsel was ineffective for failing to cross-examine the victim regarding
her inconsistent statements on two topics: (1) that she testified to remembering the crimes after
having flashbacks and nightmares but had not mentioned those to law enforcement; and (2) that
she had not been talked to about reporting sexual abuse and thus did not tell anyone about the
incidents at the time they occurred.
The victim testified at trial regarding two incidents of sexual abuse by her step-grandfather,
Movant. The incidents took place sometime between 2001 and 2003, when the victim and her
family were living with Movant at Movant’s residence. The victim was around ten years old at
4 Generally, the State is restricted from going into the details of the prior conviction beyond the nature, date, place, and resulting sentence of the prior conviction. However, if a defendant “makes statements designed to blunt the impact of a prior conviction … it is within the trial court’s discretion to permit the prosecutor to test and challenge such statements by going into the details of the crime leading to a prior conviction.” State v. Hansen, 660 S.W.3d 45, 50 n.4 (Mo. App. S.D. 2023).
17 the time. She did not report the abuse when it occurred. Shortly thereafter, the victim and her
family moved out of Movant’s residence. The victim testified that she suppressed the incidents,
but then over twelve years later, after having temporarily moved into Movant’s house, she started
having nightmares and flashbacks about the abusive events. Overcome by those nightmares and
flashbacks, the victim disclosed the incidents of abuse to her parents, and in turn to law
enforcement. The victim first spoke with an officer from the Child Abuse Unit, and disclosed the
details of Movant’s abuse. The officer’s report and summary of the victim’s statement, however,
does not mention the victim having nightmares or flashbacks. The victim then had a follow-up
conversation with a detective from the St. Louis Police Department. The victim again disclosed
the details of Movant’s abuse. The detective’s report and summary of the conversation with the
victim also does not mention her having nightmares or flashbacks.
The victim testified that she did not tell anyone about the incidents at the time they occurred
because:
I was confused about what was happening to me. I had never – was talked to about this type of situation. I was still so young, I guess, and it being a family member, I wasn’t sure it was appropriate for me to kind of talk about it.
She further testified that her stepfather never asked her when she was a child if anyone had ever
molested or touched her. In seeking post-conviction relief, Movant alleged that the victim’s
testimony conflicted with other testimony showing that the victim had been instructed to report
touching and had been repeatedly asked about it by her stepfather. The victim’s stepfather testified
that he always asked the victim when she was young if anyone had ever touched her. He testified
that he told all three children to be aware of “anything that’s out of the ordinary, anything that
doesn’t feel right, seem right, tell your parents. Tell me and your mother.” The victim’s sister
testified that her stepfather instructed her and her siblings, including the victim, on what to do if
18 someone touched them or acted inappropriately. She testified that when growing up her stepfather
asked her and the victim, if anyone – including their step-grandfather – had ever touched them.
Movant contended that reasonably effective counsel would have cross-examined the victim
regarding all of these inconsistencies, and that in failing to do so, trial counsel failed to
meaningfully challenge the State’s case. Movant alleged that had counsel conducted such a cross-
examination of the victim as to the conflicting statements, the cross-examination would have
damaged the victim’s credibility, which would have led to acquittal.
The motion court denied relief for two reasons. First, the motion court reasoned that trial
counsel testified as to his reasonable strategy for failing to “go hard” on the victim at trial. Second,
the court reasoned that it was entirely speculative whether cross-examining the victim about how
she recovered her repressed memories would have diminished her credibility to the jury. The court
noted that such cross-examination may have instead been more harmful to the defense.
As with the presentation of evidence, discussed above in Point II, the extent and manner of
cross-examination, including the impeachment of a witness, are matters of trial strategy. McGuire
v. State, 523 S.W.3d 556, 571 (Mo. App. E.D. 2017). “In virtually every case, the extent of cross-
examination must be left to the judgment of counsel.” Phillips v. State, 679 S.W.3d 43, 49 (Mo.
App. E.D. 2023) (quoting White v. State, 939 S.W.2d 887, 897 (Mo. banc 1997)). “The mere
failure to impeach a witness does not entitle a movant to post-conviction relief.” Harding v. State,
613 S.W.3d 522, 530 (Mo. App. E.D. 2020). Instead, “a movant must demonstrate that the decision
was not a matter of reasonable trial strategy and that the impeachment would have provided him
with a defense or would have changed the outcome of trial.” Tucker, 468 S.W.3d at 474; Baumruk
v. State, 364 S.W.3d 518, 533 (Mo. banc 2012).
19 Trial counsel articulated a specific strategic basis for his decision to not pursue additional
cross-examination. In testifying at the evidentiary hearing, trial counsel acknowledged that his
cross-examination of the victim was very brief. He knew the case was a “he-said, she-said” case.
He agreed that in such cases credibility is key and that if key details change then there are more
arguments to make about credibility. Indeed, counsel noted that “oftentimes, all you can hang onto
are any minute variations in testimony.” Regardless, he decided to keep his cross-examination
very brief. Counsel explained that one of his main concerns at the time was that he did not want
to upset the victim or for the jury to get more emotional. He explained that the victim came off as
very sympathetic and appeared to be credible. He stated that “everything she said her testimony
was landing very hard on the jury.” He explained that the jurors were getting emotional during the
victim’s testimony. He noted that “most of them were crying” and that they were dabbing their
eyes. He further noted that there were eleven women on the jury and that they were passing the
box of Kleenex around amongst themselves. Counsel explained that while sitting at the defense
counsel table, he knew he had a dilemma on how to handle the witness, and clearly thought about
how he was going to deal with the situation. His decision at that time was to not “go hard” at the
witness, and to keep cross-examination brief, because he felt like he was quickly losing the jury.
Counsel admitted it was a strategy call.
Trial counsel clearly considered the circumstances presented at trial and made a decision
to keep cross-examination brief. “After considering all the circumstances presented at trial,
counsel may fairly determine that the use of certain impeachment evidence may cause his or her
client more harm than benefit.” McGuire, 523 S.W.3d at 571 (internal quotation omitted). “A
strategic choice to either limit or not impeach a witness at all for fear that doing so would alienate
the jury or create sympathy for the State's witnesses is a reasonable one.” Byrd v. State, 329 S.W.3d
20 718, 726 (Mo. App. S.D. 2010); Phillips, 679 S.W.3d at 49-50 (decision to not pursue further cross-
examination for fear of generating additional sympathy for the victim was reasonable trial
strategy); see also, e.g., Harding, 613 S.W.3d at 531; McGuire, 523 S.W.3d at 571-2; Tramble v.
State, 414 S.W.3d 571, 575 (Mo. App. E.D. 2013); Fry v. State, 244 S.W.3d 284, 287–88 (Mo.
App. S.D. 2008). Further, even if another strategy – cross-examining the victim as suggested by
Movant – would have been reasonable, it is not ineffective assistance of counsel to pursue one
reasonable trial strategy to the exclusion of another reasonable trial strategy. McGuire, 523 S.W.3d
at 571.
In light of the circumstances present at trial, counsel’s decision to not cross-examine the
victim was reasonable trial strategy because to aggressively cross-examine the victim may have
generated additional sympathy for the victim, thus alienating the jury and harming Movant’s
defense. Although a different defense counsel may have proceeded in a different manner, trial
counsel’s decision was “within the wide range of reasonable professional assistance”
countenanced by the Sixth Amendment. Strickland, 466 U.S. at 689; Phillips, 679 S.W.3d at 50.
Movant in his amended motion did not expressly argue that counsel’s strategy was
unreasonable. On appeal, Movant emphasizes that counsel also testified that in hindsight he should
have crossed-examined the victim about the nightmares and the flashbacks, and that his decision
was not a matter of strategy but was just a “stupid mistake” because he left Movant without any
context to the victim’s accusation. But this testimony is of no assistance to Movant. Reasonable
choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as basis for
a claim of ineffective assistance. Barton v. State, 432 S.W.3d 741, 749 (Mo. banc 2014) (internal
quotation omitted). Additionally, when assessing counsel’s performance, the reasonableness of
counsel’s decision “must be viewed at the time the decision occurred, taking into consideration
21 the circumstances of case.” Tucker, 468 S.W.3d at 474; Strickland, 466 U.S. at 689. The motion
court appropriately rejected counsel’s hindsight testimony and instead considered and credited
counsel’s explanation of the circumstances and his decision made at the time of trial.
Movant had the burden of showing that trial counsel’s decision was not a matter of
reasonable trial strategy. He has not carried his burden. His claim for relief thus necessarily fails.
Even if counsel’s decision was not reasonable trial strategy, Movant must also demonstrate
that the desired impeachment would have provided him with a viable defense or would have
changed the outcome of trial in order to be entitled to relief. Tucker, 468 S.W.3d at 474; Baumruk,
364 S.W.3d at 533; Washington v. State, 681 S.W.3d 347, 356 (Mo. App. E.D. 2023) (“[t]o establish
prejudice on a failure to impeach claim, the movant has the burden of showing that, had the witness
been impeached, it would have provided a viable defense or otherwise met the Strickland
standard”). Movant has failed to meet the burden.
Movant does not allege that the desired impeachment would have provided him a viable
defense. The impeachment regarding victim’s nightmares and flashbacks, as well as her testimony
about not knowing to report the incidents, did not negate an element of the charged offenses of
statutory sodomy, and thus would not have provided a viable defense for Movant. Washington,
681 S.W.3d at 356 (“testimony that negates an element of the crime for which the movant was
convicted constitutes a viable defense”).
Movant also has not shown that the desired impeachment would have changed the outcome
of trial. Movant argues that cross-examining the victim regarding the inconsistencies would have
damaged the victim’s credibility, which would have led to acquittal. But, as the motion court
observed, Movant’s claim that the desired cross-examination would have diminished the victim’s
credibility and changed the outcome of trial is speculative.
22 To begin, Movant failed to show that the proposed cross-examination regarding victim’s
nightmares and flashbacks would have impeached the victim at all. That testimony explained the
late reporting of the abuse by the victim. Movant failed to show that the victim had said something
contrary or inconsistent to the police from what she said at trial regarding the actual abuse. Movant
only alleges that an inconsistency exists because the nightmares and flashbacks were not
mentioned in the police reports. Moreover, to lay a proper foundation to impeach a witness with
a prior inconsistent statement, the witness must be provided an opportunity to refresh her
recollection of the statement and then admit, deny, or explain it. State v. Thomas, 590 S.W.3d 441,
446 (Mo. App. S.D. 2019). Counsel conceded at the evidentiary hearing that any claim as to what
the victim would say about the reports would have been speculative. The victim may have testified
that she did not mention the flashbacks to police because they did not ask her about them. The
victim also may have testified that she did tell police about the flashbacks, but they did not include
it in the report, which would not have impeached her at all. Without any evidence as to the
foundation for the impeachment, Movant failed to prove that cross-examination regarding the
victim’s nightmares and flashbacks would have provided him with a viable defense or would have
changed the outcome of trial in order for Movant to be entitled to relief.
As to Movant’s claim regarding the victim’s statements about not knowing to report the
crimes, the record shows that trial counsel in fact presented evidence contrary to the victim’s
testimony that she was not talked to about “this type of situation” or asked if she had ever been
molested or touched. On trial counsel’s cross-examination of the victim’s stepfather, counsel
elicited that the stepfather had “always” talked to the victim about others touching her, and that he
had done so since the victim was four of five years old. Trial counsel elicited testimony that the
stepfather had always asked the victim when she was young if anyone had ever touched her. In
23 addition, on trial counsel’s cross-examination of the victim’s sister, counsel elicited testimony that
the stepfather had talked with both the sister and the victim about the issue when they were young
and gave them instructions to tell him or their mother about it. The jury heard the varying
testimony and determined its weight. Given this, and given the questionable effect of the desired
impeachment, no reasonable probability exists that the outcome of the trial would have been
different had counsel cross-examined the victim regarding the alleged inconsistencies.
Movant failed to show that counsel’s decision was not a matter of reasonable trial strategy,
and thus that counsel’s performance was deficient. Furthermore, Movant has not shown that the
desired impeachment would have provided him with a viable defense or would have changed the
outcome of trial. Movant failed to satisfy both prongs of the Strickland test, and thus is not entitled
to relief on his claim. Accordingly, the motion court did not clearly err in denying Movant’s claim.
We deny this point.
We affirm.
_______________________________ Angela T. Quigless, J. James M. Dowd, P.J., and Cristian M. Stevens, J., concur.