IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT MICHAEL L. OGLESBY, ) ) Appellant, ) WD86535 v. ) ) OPINION FILED: ) June 3, 2025 STATE OF MISSOURI, ) ) Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Marco A. Roldan, Judge
Before Division Three: W. Douglas Thomson, Presiding Judge, and Karen King Mitchell and Thomas N. Chapman, Judges
Michael Oglesby appeals, following an evidentiary hearing, the denial of his
Rule 29.15 1 motion. Oglesby raises five points on appeal. Points I-III allege that trial
counsel was ineffective in failing to (1) obtain and use confidential records from the
Department of Social Services, Children’s Division (DSS) to impeach the minor
children’s credibility; (2) present evidence that one of the minor children was diagnosed
with a disorder known to cause lying; and (3) move to dismiss the charges on grounds of
1 All rule references are to the Missouri Supreme Court Rules (2023), unless otherwise noted. prosecutorial vindictiveness following Oglesby’s indictment on additional charges after
his first trial. In Point IV, Oglesby alleges his due process rights were violated by the
State’s failure to disclose confidential DSS records allegedly containing the children’s
allegations of abuse against other individuals. Point V alleges the motion court clearly
erred in failing to compel production of unredacted copies of the DSS records. Finding
no error, we affirm.
Background 2
In 2014, Oglesby and his wife, both retired schoolteachers, fostered and adopted
Child 1 and Child 2 and, by 2016, had fostered and adopted Child 3. The three children
were sisters who had been in and out of numerous foster homes, with the oldest, Child 1,
having been in seventeen previous foster placements. Following a hotline call to DSS in
2 Although both parties cite the trial transcript in their briefs, neither party requested that this court take judicial notice of the underlying case file, and neither party filed a motion to transfer the record from the underlying case to this court on appeal. Thus, the trial transcript is not part of the record on appeal. “The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision.” Rule 81.12(a). It is the appellant’s responsibility to prepare the record on appeal. Id. at (b)-(c). Where “the grounds for relief set forth in the amended Rule 29.15 motion are dependent entirely on what was done, or not done, during the trial of the underlying case,” the appellant in the post- conviction action must ensure that documents from the underlying case are made part of the record on appeal from the post-conviction action. W.F.W. v. State, 779 S.W.2d 724, 725 (Mo. App. S.D. 1989). It is not sufficient for the motion court to take judicial notice, as that act, alone, does not make the documents part of our record on appeal. Id. Because we cannot consider evidence not in the record, State v. Sumowski, 794 S.W.2d 643, 646 (Mo. banc 1990), the only information available to us is the transcript and legal file from Oglesby’s Rule 29.15 proceedings. We may, however, infer that the absent documents, exhibits, or transcripts “would be favorable to the [motion] court’s ruling and unfavorable to [Appellant’s] argument.” State v. Brumm, 163 S.W.3d 51, 56 (Mo. App. S.D. 2005).
2 August 2016, in which the three children alleged sexual abuse against Oglesby, they were
removed from the Oglesby home.
In August 2017, Oglesby was charged with eight crimes, all involving Child 1:
four counts of first-degree statutory sodomy, one count of first-degree attempted statutory
sodomy, two counts of first-degree child molestation, and one count of sexual
misconduct. At the conclusion of his jury trial in May 2018, Oglesby was acquitted on
four counts of statutory sodomy, and a mistrial was declared on the remaining four
counts. In June 2018, Oglesby was indicted on seven additional counts involving the
other two adopted sisters: three counts of statutory sodomy and two counts of child
molestation involving Child 2, and two counts of statutory sodomy involving Child 3.
Following joinder of the four mis-tried counts involving Child 1 with the seven additional
counts, a January 2019 jury trial resulted in Oglesby’s conviction on all eleven counts.
Oglesby is now serving a 160-year sentence.
Oglesby’s direct appeal in 2021 resulted in this Court affirming his convictions
and sentences. 3 Oglesby filed a timely Rule 29.15 motion alleging ineffective assistance
of trial counsel for failing to (1) seek and use DSS records, which allegedly showed that
the children had made false abuse allegations against previous foster family members; (2)
present the testimony of a therapist about Child 1’s diagnosis with Reactive Attachment
Disorder (RAD); and (3) file a motion alleging prosecutorial vindictiveness. 4 Oglesby’s
3 State v. Oglesby, 621 S.W.3d 500 (Mo. App. W.D. 2021). 4 Oglesby’s claim regarding the therapist was raised on direct appeal as an issue of prosecutorial misconduct based on the prosecutor’s allegedly misrepresenting to the court that no one ever diagnosed Child 1 with RAD, and his claim of prosecutorial
3 Rule 29.15 motion also alleged that the State had violated his due process rights by
failing to disclose confidential DSS records.
Oglesby’s trial counsel, for both criminal trials, had also represented Oglesby and
his wife in family court proceedings to terminate their parental rights to the three
children. As a result, prior to Oglesby’s two criminal trials, trial counsel had extensive
access to DSS records, including records involving the three children and transcripts from
proceedings in family court. During his testimony at the Rule 29.15 hearing, trial counsel
described the DSS documents as a “wealth of information” available to him as he
prepared for Oglesby’s criminal trials. According to trial counsel, he had evidence that
“these girls had lied so many times” that he needed to consider how best to “paint them
as liars when [he] thought [he] had enough evidence that they painted themselves as
liars.” Trial counsel knew, among other things, that a therapist had doubted the veracity
of Child 1’s accusation of rape against a foster sibling; that Child 1 had recanted an
allegation of abuse against a former foster parent; and that Child 2 and Child 3 had
accused another foster parent of abuse and run away from that home. 5 His strategy at
trial was to use what he “felt . . . was important” but not “everything at [his] disposal”
because of the “special care” one must take in cross-examining a child who is also a
vindictiveness was also raised on direct appeal as a claimed violation of due process when the court denied his motion for new trial. Oglesby, 621 S.W.3d at 508-20. 5 The record disclosed that the names of foster families involved in those incidents were known to both Oglesby and his counsel. In response to a question about whether “[i]t was clear that [trial counsel] knew about all of this before [Oglesby’s] second trial,” Oglesby answered, “Yes.”
4 victim. At Oglesby’s second trial, trial counsel elicited testimony from all three children
that they had lied “multiple times.”
Trial counsel elected not to call as a witness a therapist who had worked with the
Oglesbys, and in particular Child 1. The therapist believed that Child 1 met the criteria
for RAD and that lying was one of the disorder’s symptoms. Trial counsel testified that
he had spoken with the therapist about testifying, had prepared a trial folder about her
testimony, and had defeated the State’s pretrial motion in limine to exclude the therapist’s
testimony. Although he could not specifically remember why he chose not to call the
therapist at either of Oglesby’s trials, counsel testified that he believed her testimony was
unnecessary because he had “successfully put in front of the jury” his theory of the case
and, at “multiple times,” had gotten all three children to “call themselves liars on the
stand.” 6
After filing his Rule 29.15 motion, Oglesby attempted to obtain confidential
records from DSS about allegations allegedly made by the children against other foster
family members. Oglesby claimed that he needed the records to demonstrate that trial
counsel was ineffective in not using such records to impeach the children’s credibility by
demonstrating that they previously made false allegations of abuse and to demonstrate
6 It appears that a pretrial ruling had precluded trial counsel from calling the therapist at Oglesby’s first trial. Oglesby, 621 S.W.3d at 514-15. At Oglesby’s second trial, “[t]he court granted the defense’s request to introduce evidence regarding RAD and whether [Child 1] had a diagnosis of RAD,” but Oglesby did not put on this evidence. Id. at 518.
5 that the prosecutor had violated Brady v. Maryland 7 by failing to provide the DSS records
to Oglesby at trial.
Oglesby’s subpoena to DSS demanded production of “[a]ll child abuse and neglect
hotline reports and all subsequent investigations of any allegations of abuse or neglect
made by [the three children].” In response, DSS filed a motion to quash, and the motion
court ordered DSS to produce the documents for the court’s in camera review.
Following that review, the motion court determined that some of the reviewed documents
were “discoverable” as part of the post-conviction trial and some were not. 8 As to the
“discoverable” documents, the motion court ordered DSS to redact “non-parties and any
other confidential information in accordance [with] Missouri law” and then produce the
documents to Oglesby. According to Oglesby, DSS completely redacted all but one
document, which was the hotline report involving the children’s abuse claims against
Oglesby. After receiving the redacted documents, Oglesby filed a motion to compel. In
response, DSS argued that it had fully complied with the motion court’s order by
providing documents that were redacted according to Missouri law. The motion court
refused to compel production of the unredacted documents to Oglesby.
7 Referring to Brady v. Maryland, 373 U.S. 83 (1963). 8 The motion court provided no details about its reasoning or what it found in any of the DSS records.
6 In July 2023, the motion court denied Oglesby’s Rule 29.15 motion, finding as
follows:
1. Oglesby failed to show “that [trial counsel’s] performance fell below the
standard of care of a reasonable attorney” as to his claim in Point I;
2. Oglesby failed to rebut the presumption of “reasonable trial strategy” or show
prejudice due to trial counsel’s decision not to call the therapist at his second
trial as to her diagnosis of Child 1 with RAD;
3. Oglesby failed to show any prejudice resulting from trial counsel’s failure to
move for dismissal on grounds of prosecutorial vindictiveness;
4. Oglesby failed to show the State’s noncompliance with “Rule 25.03 or its
discovery obligation under Brady v. Maryland” because the prosecutor
produced all the documents in their possession;
5. Oglesby’s claim regarding DSS’s failure to produce unredacted confidential
records did not state a cognizable Rule 29.15 claim. 9
This appeal followed.
Analysis
Oglesby raises five points on appeal. Points I-III allege that trial counsel was
ineffective in failing to (1) obtain and use confidential records from DSS to impeach the
minor children’s credibility; (2) present evidence that one of the minor children was
diagnosed with a disorder known to cause lying; and (3) move to dismiss the charges on
9 Both this court and the Missouri Supreme Court denied Oglesby’s petitions for writs of mandamus to order production of the confidential records.
7 grounds of prosecutorial vindictiveness following Oglesby’s indictment on additional
charges after his first trial. In Point IV, Oglesby alleges his due process rights were
violated by the State’s failure to disclose during the second criminal trial confidential
DSS records containing the children’s allegations of abuse against other individuals.
Point V alleges the motion court’s clear error in failing to compel production of
unredacted copies of these records. Finding no error, we affirm.
Standard of Review
Appellate review of a court’s action on a Rule 29.15 motion is “limited to a
determination of whether the findings and conclusions of the trial court are clearly
erroneous.” Rule 29.15(k). The motion court’s ruling is presumed correct and deemed
“clearly erroneous only if, after reviewing the entire record, we are left with a firm
impression that a mistake has been made.” Haidul v. State, 425 S.W.3d 148, 150 (Mo.
App. E.D. 2014). As in this case, the motion court’s findings “carry special weight
[when] the motion court also was the trial court.” Joos v. State, 277 S.W.3d 802, 804
(Mo. App. S.D. 2009).
I. The motion court did not clearly err in finding trial counsel was not ineffective in failing to obtain and use DSS records or in failing to present testimony from a therapist to impeach the credibility of the children at trial (Points I and II).
Oglesby argues that trial counsel was ineffective both in (1) failing to obtain and
use at his second criminal trial DSS records, which Oglesby claims contained evidence
“that the alleged victims had previously made numerous unsubstantiated allegations of
abuse against others” that could have been used to impeach the children’s credibility; and
8 (2) failing to present the testimony of Child 1’s therapist as to the diagnosis and
symptoms of RAD.
“The right to effective assistance of counsel in a criminal trial is a fundamental
aspect of the right to a fair trial.” Smiley v. State, 196 S.W.3d 674, 676 (Mo. App. S.D.
2006) (quoting Shopbell v. State, 686 S.W.2d 521, 523 (Mo. App. W.D. 1985)). To
establish ineffective assistance, a post-conviction movant must prove that “counsel’s
performance was deficient” and that “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, under Strickland, the movant
must prove that (1) “counsel failed to exercise the level of skill and diligence that a
reasonably competent counsel would in a similar situation, and (2) [movant] was
prejudiced by that failure.” Johnson v. State, 388 S.W.3d 159, 163 (Mo. banc 2012)
(citing Strickland, 466 U.S. at 687).
An ineffective assistance claim must “overcome the strong presumption that . . .
counsel’s performance was objectively reasonable and effective.” Byrd v. State, 329
S.W.3d 718, 722 (Mo. App. S.D. 2010). “Reasonable choices of trial strategy, no matter
how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective
assistance.” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006); Zink v. State, 278
S.W.3d 170, 178 (Mo. banc 2009) (recognizing the “near-complete deference” afforded
to trial counsel’s decisions that are “strategic in nature”); Tucker v. State, 468 S.W.3d
468, 474-75 (Mo. App. E.D. 2015) (holding that defense counsel employed reasonable
trial strategy in not cross-examining two child witnesses at all, as he was “wary of
alienating the jury by upsetting the girls”). “The choice of one reasonable trial strategy
9 over another is not ineffective assistance.” McLaughlin v. State, 378 S.W.3d 328, 337
(Mo. banc 2012). If the post-conviction movant fails to prove either deficient
performance or resulting prejudice, we need not consider the other prong. Shaw v. State,
636 S.W.3d 596, 600 (Mo. App. W.D. 2021).
A. Oglesby failed to establish that trial counsel’s decision not to seek or offer certain DSS records was ineffective.
“To prevail on a claim of ineffective assistance of counsel for failure to
investigate,” a movant must allege and prove the following: (1) “what information trial
counsel failed to discover”; (2) “that a reasonable investigation would have resulted in
the discovery of such information”; and (3) “the information would have aided and
improved the defense.” Walker v. State, 694 S.W.3d 69, 78 (Mo. App. W.D. 2024).
Here, Oglesby failed to establish any of the three requirements.
First, Oglesby failed to prove there was information that trial counsel failed to
discover, given that trial counsel was apparently already aware of the DSS records and
their contents. At the motion hearing, trial counsel testified that he had represented
Oglesby in family court and, through that representation, had access to a number of DSS
records. Although trial counsel testified, “I don’t remember,” as to whether he received
records about three specific allegations by the girls of alleged abuse in other foster
homes, this fact, alone, does not demonstrate that trial counsel did not receive these
records. There were many specifics about Oglesby’s criminal trial that trial counsel did
not recall. As to information contained in the DSS records, counsel testified that he was
privy to a “wealth of information” through his representation of Oglesby and his wife in
10 family court. He also had a “good exchange of information” with the prosecutor’s office.
During the hearing, trial counsel was questioned about three incidents that he allegedly
could have learned about from the DSS records: Child 1’s recantation of an allegation of
rape against a foster brother and allegations by two of the sisters of non-sexual abuse by
previous caregivers. Although counsel did not recall whether he received records
regarding those three incidents, evidence presented at the Rule 29.15 hearing showed that
Oglesby knew that Child 1 had recanted an allegation of rape against a foster brother and
that both Child 1 and Child 2 had made allegations of non-sexual abuse against two
previous caregivers that were either denied by the caregivers or recanted by the
children. 10 And, when cross-examined during the hearing, trial counsel acknowledged
receiving information directly from the prosecutor that Child 1 had previously recanted a
rape allegation against a foster brother.
Second, even if trial counsel did not have all of the information in the DSS
documents, Oglesby cannot show that a “reasonable investigation” would have led to its
discovery, when the motion court (also the trial court here) directed DSS to produce the
documents only after making statutorily mandated redactions, all as more fully discussed
in our analysis of Point V below.
Third, Oglesby failed to establish how access to the DSS records would have aided
or improved his defense, given that the records were likely inadmissible. Oglesby claims
that the DSS records would have focused on false allegations by the girls against other
10 In his brief, Oglesby admits that his counsel did know about these three incidents.
11 caregivers and foster family members, which would carry more weight in attacking the
credibility of the children’s claims of abuse by Oglesby. But, in order for extrinsic
evidence of prior false allegations to be admissible, Oglesby would need to establish that
(1) prior allegations were made, (2) they were false, and (3) the children knew the
allegations were false when made. State v. Kerksiek, 670 S.W.3d 32, 40 (Mo. App. W.D.
2023). The DSS records could not do this. At best, they could establish that prior
allegations were made, but they could not establish either that those allegations were false
or that the children knew them to be false when made. At most, the records demonstrate
that unsubstantiated allegations were made. But the fact that an agency’s investigation
does not substantiate a claim does not prove that the claim was false. State v. Thompson,
341 S.W.3d 723, 733 (Mo. App. E.D. 2011) (“The fact that an agency determined that a
witness’s prior allegations were unfounded does not alone demonstrate that those
allegations were false.”). And “a prior report of sexual abuse that Appellant failed to
show was false does not ‘speak to,’ does not ‘b[ear] on,’ and is not ‘relevant’ to the
‘ultimate issue of a witness’s credibility.’” State v. Abbott, 412 S.W.3d 923, 929-30 (Mo.
App. S.D. 2013) (quoting Mitchell v. Kardesch, 313 S.W.3d 667, 677-78 (Mo. banc
2010)).
Even if the DSS records were admissible for purposes of impeachment, Oglesby
did not overcome the presumption that counsel’s decisions were sound trial strategy.
Trial counsel, who had over forty years in practice and had handled approximately 100
criminal trials, testified that he used a “minimalistic style” at trial, asking only the
questions that “need to be asked.” Trial counsel testified at the evidentiary hearing that,
12 despite having access to the “wealth of evidence” he obtained from representing Oglesby
in family court, he chose to impeach the children’s credibility on cross-examination by
having them “paint themselves as liars.” Trial counsel’s strategy was driven in part by
his experience with cross-examination of child victims and in part by the fact that, in the
first trial, he had taken the same approach in cross-examining the two girls who had
testified (Child 1 and Child 2), and it had resulted in acquittal on four counts and a
mistrial on the other four counts. Trial counsel testified that, during cross-examination at
the second trial, he got all three children to “call themselves liars on the stand . . .
multiple times.”
Based on the record, we cannot conclude that trial counsel was ineffective in
failing to obtain or use DSS records. The record does not disclose that trial counsel did
not have these records. Regardless, trial counsel made the strategic decision not to use
evidence of specific incidents to demonstrate that the children had lied in the past. Trial
counsel instead elected a straight-forward approach to address the children’s truthfulness.
He expressly testified, “I felt strategically that these girls had lied so many times that it
was difficult to . . . take all of that stuff that was coming in and . . . paint them as liars
when I thought I had enough evidence that they painted themselves as liars.” Counsel’s
strategic decision was not so unreasonable as to support a finding that the motion court
clearly erred in denying Oglesby’s claim of ineffective assistance.
13 B. Oglesby failed to establish that trial counsel was ineffective in failing to call the therapist to testify in Oglesby’s second trial.
To prove that trial counsel was ineffective in failing to call a witness or present
evidence, the movant must show:
(1) trial counsel knew or should have known of the existence of the witness or evidence; (2) the witness or evidence could be located through reasonable investigation; (3) the witness would testify or the evidence would be admissible; and (4) the witness’s testimony or evidence would have produced a viable defense.
Sousley v. State, 674 S.W.3d 470, 477 (Mo. App. W.D. 2023). “Ordinarily, the failure to
call a witness will not support an ineffective assistance of counsel claim because the choice
of witnesses is presumptively a matter of trial strategy.” McFadden v. State, 619 S.W.3d
434, 455 (Mo. banc 2020) (quoting Tisius v. State, 519 S.W.3d 413, 427 (Mo. banc 2017)).
And “strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.
Here, trial counsel knew about the therapist but was precluded from presenting her
testimony at Oglesby’s first trial. Oglesby, 621 S.W.3d at 514-15. In Oglesby’s second
trial, counsel overcame the State’s motion in limine and was granted permission by the
trial court to present evidence “regarding RAD and whether [Child 1] had a diagnosis of
RAD.” Id. at 518. But trial counsel chose not to present the therapist’s testimony in the
second trial. Oglesby argues that this decision amounted to ineffective assistance of
counsel. Again, however, Oglesby fails to overcome the presumption that counsel’s
decision was based on reasonable trial strategy.
14 When addressing the issue in Oglesby’s second trial, the prosecutor expressed
serious skepticism as to whether the therapist could have diagnosed Child 1 with RAD,
arguing the possibility that “this could evolve into a minitrial of whether or not [Child 1]
has this disorder.” Id. at 517. And the therapist, herself, indicated that her assessment of
Child 1 was four years before Oglesby’s trial, that she had not provided therapy to
Child 1 in over two years, and that “[a] person with RAD can learn to recognize and
control their emotions and actions that are symptomatic of their attachment disorder,”
meaning that, even if Child 1 exhibited RAD symptoms four years earlier, that did not
mean she was displaying them at the relevant time. Id. at 520. And the State presented
testimony at the Rule 29.15 hearing from a clinical psychologist that Child 1 suffered
from post-traumatic stress disorder, not RAD. A seasoned defense lawyer such as trial
counsel could have anticipated that presentation of the therapist’s testimony might have
resulted in a trial within a trial and that the therapist’s testimony could be seriously
undermined by either cross-examination or rebuttal testimony. And, in any event, trial
counsel had already gotten Child 1 to admit that she lied, and the decision not to present
additional evidence as to a questionable diagnosis of RAD was a matter of sound trial
strategy.
Because trial counsel’s assistance was not deficient, we need not address the
prejudice prong of the Strickland test, and the motion court’s judgment on these points
was not clearly erroneous. Points I and II are denied.
15 II. The motion court did not clearly err in finding trial counsel was not ineffective in failing to move for dismissal of the June 2018 indictment on grounds of prosecutorial vindictiveness (Point III).
To prevail on a claim of ineffective assistance of counsel based on counsel’s
failure to file a motion to dismiss, a movant must demonstrate that, had counsel filed such
a motion, the trial court would have dismissed the case. Sinks v. State, 699 S.W.3d 506,
513 (Mo. App. E.D. 2024). Here, Oglesby cannot show that a dismissal motion would
have been granted.
A claim of prosecutorial vindictiveness requires proof that “the additional charges
were brought solely to penalize [the defendant] for exercising his constitutional rights and
cannot be justified as a proper exercise of prosecutorial discretion.” State v. Buchli, 152
S.W.3d 289, 309 (Mo. App. W.D. 2004) (quoting State v. Miller, 981 S.W.2d 623, 629
(Mo. App. W.D. 1998)). “The test for prosecutorial vindictiveness is whether the facts
show a realistic likelihood of vindictiveness in the prosecutor’s augmentation of
charges.” State v. Gardner, 8 S.W.3d 66, 70 (Mo. banc 1999). “A presumption of
vindictiveness will not apply ‘if any objective event or combination of events in the
proceedings should indicate to a reasonable minded defendant that the prosecutor’s
decision to increase the severity of the charges was motivated by some purpose other than
a vindictive desire to deter or punish . . . .’” Oglesby, 621 S.W.3d at 512 (quoting State v.
Potts, 181 S.W.3d 228, 236 (Mo. App. S.D. 2005)).
Here, trial counsel raised prosecutorial vindictiveness in his motion for new trial,
but he did not seek a pre-trial dismissal of the June 2018 indictment. On direct appeal,
this court found that the prosecutorial vindictiveness claim was waived because it was not
16 raised until post-trial. However, in affirming Oglesby’s conviction on direct appeal, we
also held that the prosecutor’s “[s]trategically choosing to hold some charges in abeyance
cannot, by itself, prove prosecutorial vindictiveness; and, even where a presumption of
prosecutorial vindictiveness is applied, the prosecutor is still given an opportunity to offer
an objective explanation.” Oglesby, 621 S.W.3d at 511-12.
At the motion hearing, the State presented evidence that the additional seven
charges in the June 2018 indictment required testimony from all three children about their
own experiences of abuse, whereas the first trial concerned only the abuse of Child 1.
The prosecutor, knowing the stress that all three children had suffered after being
deposed before the first criminal trial, testified that there were “a lot of concerns about
the toll” that testifying in court would cause especially for Child 3, who manifested
physical symptoms of trauma after her deposition, and also for Child 2, who would have
to testify about her own abuse if those additional charges were filed. Thus, the evidence
indicated that the decision to initially charge Oglesby with crimes only as to Child 1,
holding additional charges in abeyance, was motivated by concern for the victims. And,
that the decision to pursue those additional charges later, after Oglesby was found not
guilty of some charges as to Child 1, was motivated by some purpose other than a
vindictive desire to deter or punish.
Despite the lack of evidence to show a “reasonable likelihood of vindictiveness”
by the prosecutor regarding the June 2018 indictment, Oglesby argues that trial counsel
should have filed the motion to dismiss anyway because he had “everything to gain and
nothing to lose.” But trial counsel cannot be found ineffective for “failing to file a
17 meritless motion.” Harden v. State, 415 S.W.3d 713, 719 (Mo. App. S.D. 2013) (quoting
State v. Neal, 849 S.W.2d 250, 258 (Mo. App. W.D. 1993)). There was no merit to a
motion to dismiss based on prosecutorial vindictiveness, given the reasonable
explanations by the State for the June 2018 indictment that the motion court accepted in
denying this claim. As the motion court here was also the trial court, there can be no
doubt that the trial court would have denied the motion to dismiss. Because Oglesby
cannot show that trial counsel acted deficiently in failing to file a motion to dismiss, we
find that the motion court did not clearly err in denying the Rule 29.15 motion’s claim
based on prosecutorial vindictiveness. Point III is denied.
III. Point IV is fatally defective because it fails to comply with Rule 84.04(d).
Oglesby’s Point IV does not comply with Rule 84.04(d)(1)(A)’s requirement that
“each point shall . . . [i]dentify the [motion] court ruling or action that the appellant
challenges.” Oglesby’s Point IV simply contends that “Appellants convictions were
secured in violation of his right to due process of law” because of “the State’s” failure to
produce the DSS documents. The point fails to identify any ruling or action by the
motion court that Oglesby challenges. See, e.g., Republic Fin., LLC v. Ray, 698 S.W.3d
184, 187-88 (Mo. App. E.D. 2024) (refusing to review a purported Brady claim raised in
points alleging (a) the trial court “erred by not allowing the Appellant his right to
Discovery” and (b) the trial court “erred in not allowing . . . Appellant his right to Due
Process” because neither point “identif[ied] the specific trial court action that is error”).
“In framing a point on appeal, an appellant must ‘[i]dentify the [motion] court
ruling or action that the appellant challenges,’” as “[w]e are unable to review a ruling
18 never made.” Barnett v. Columbia Maint. Co., 632 S.W.3d 396, 409 (Mo. App. E.D.
2021) (quoting Rule 84.04(d)(1)). “Points which do not state what ruling of the [motion]
court is challenged nor provide a proper evidentiary basis, but instead set out abstract
statements of law, preserve nothing for appeal.” McDonald v. McDonald, 946 S.W.2d
743, 745 (Mo. App. S.D. 1997) (quoting Jones v. Wolff, 887 S.W.2d 806, 808 (Mo. App.
E.D. 1994)).
Here, because Oglesby’s Point IV does not identify any ruling or action by the
motion court for us to review, we are left to speculate as to his claim of error. “Deficient
points relied on force respondents and appellate courts to search the briefs and the record
to determine appellant’s assertions, which wastes judicial resources and creates the
danger that appellate courts interpret the appellant’s arguments differently than the
appellant intended . . . .” Scott v. King, 510 S.W.3d 887, 892 (Mo. App. E.D. 2017).
Even if we were to look to the argument portion of Oglesby’s brief to identify the claim
of error raised, we would be left to speculate as to the nature of his claim. In the first line
of his Point IV argument, Oglesby states that the “motion court’s failure to provide
[Oglesby’s] counsel” with the unredacted records caused a Brady violation. If Oglesby’s
claim of motion court error is that the motion court failed to provide him with the
unredacted DSS records, that is not a Brady claim. And if Oglesby’s claim of error is the
effect of the alleged discovery violation on the Rule 29.15 case, that claim is addressed in
Point V. Oglesby’s Point IV does not adequately raise a claim of error.
Our Supreme Court has recently cautioned that, to reiterate the importance of
Rule 84.04 “without enforcing any consequence ‘implicitly condones continued
19 violations and undermines the mandatory nature of the rules.’” State v. Minor, 648
S.W.3d 721, 728-29 (Mo. banc 2022) (quoting Alpert v. State, 543 S.W.3d 589, 601 (Mo.
banc 2018) (Fischer, J., dissenting)). Accordingly, Oglesby’s Point IV is denied.
IV. The motion court did not clearly err in denying Oglesby’s motion to compel production of unredacted DSS records (Point V).
In Point V, Oglesby claims the motion court erred in denying his motion to
compel production of the unredacted DSS records in full, which denied him “the factual
tools necessary” to prove “his Brady 11 and Strickland claims raised in Points I and IV.”
But Oglesby was never entitled to these documents. “A defendant is not entitled
to confidential records . . . on the mere possibility that the records may contain favorable
and material information.” State v. Brown, 701 S.W.3d 917, 927 (Mo. App. S.D. 2024).
The DSS records are required to be kept confidential pursuant to § 210.150. Records
made confidential by § 210.150 are not “open to inspection” except by “order of the court
to persons having a legitimate interest therein.” Brown, 701 S.W.3d at 926 (quoting
§ 211.321.1).
Oglesby relies on Pennsylvania v. Ritchie, 480 U.S. 39 (1987), but nothing in
Ritchie requires the disclosure of confidential records unless the court, after an in camera
review, orders them disclosed. See id. at 60 (holding that both the defendant’s and the
State’s interest in “ensuring a fair trial can be protected fully by requiring that the
[confidential documents] be submitted only to the trial court for in camera review,”
11 Oglesby failed to preserve Point IV, and his Point I (alleging ineffective assistance) raises no Brady claim, therefore we find Brady irrelevant regarding this Point.
20 despite the denial to defendant of an “advocate’s eye” in reviewing the records). The
Supreme Court explained the state’s “compelling interest in protecting child-abuse
information”:
Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child’s feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent. It therefore is essential that the child have a state-designated person to whom he may turn, and to do so with the assurance of confidentiality. [Others] who suspect abuse also will be more willing to come forward if they know that their identities will be protected . . . and . . . that they may speak to [Children’s Division] counselors without fear of general disclosure.
Ritchie, 480 U.S. at 60-61.
Therefore, “[d]efense counsel has no constitutional right to conduct his own search
of the State’s files to argue relevance.” Id. at 59. To ensure a fair trial, the court may
conduct an in camera review of the confidential documents, see Brown, 701 S.W.3d at
927, which is what the motion court did here. 12 Oglesby had no right to independently
review these documents. Section 210.150, in pertinent part, identifies those who have the
right of access to confidential documents: (1) Oglesby, as to records in which he is the
“alleged perpetrator,” § 210.150.2(5); and (2) the prosecutor “involved in the
investigation of child abuse or neglect . . . with a need for such information in order to
carry out its responsibilities . . . to protect children from abuse or neglect,”
12 The motion court ordered that DSS produce only those documents that had been redacted in compliance with § 210.150’s disclosure requirements. Although the motion court did not disclose what it found in its review, the documents were included in the record here, and our review confirms that there is no evidence in the unredacted documents that any allegations of abuse by these children were false.
21 § 210.150.2(6). The redacted DSS records fell into neither of those categories here. 13
Both § 210.150 and the motion court’s order required DSS to produce only redacted
records that excluded information that Oglesby could not legally obtain.
Moreover, Oglesby can show no resulting prejudice from the motion court’s denial
of his motion to compel, all as more fully discussed in our analysis of Point I above.
Rule 84.13(b) requires that, to be reversible, an error must “materially affect[] the merits
of the action.” Therefore, prejudice is required to show reversible error based on a denial
of discovery. See Rasmussen v. Ill. Cas. Co., 628 S.W.3d 166, 173 (Mo. App. W.D.
2021) (requiring proof not just of error but also that appellant was “actually prejudiced as
a result of [the] erroneous ruling or action”). The evidence at the Rule 29.15 hearing was
that trial counsel had access to many DSS records. Although trial counsel testified that
he did not recall receiving records regarding three specific incidents, that alone does not
demonstrate that counsel did not have the relevant DSS records. Oglesby did not put on
evidence of what DSS records trial counsel did have access to. Although both the motion
court and this court had access to the DSS records for in camera review, without
evidence of what records trial counsel had, there is no way to determine if there were
DSS records that trial counsel did not have and therefore, no way to determine prejudice
based on the alleged failure to investigate or obtain the records.
13 We reach this conclusion based on our review of the unredacted DSS records.
22 Therefore, based on our review of the entire record, we find no clear error by the
motion court’s denial of Oglesby’s motion to compel the production of records and we
deny Point V.
Conclusion
Based on the foregoing, the judgment of the motion court is affirmed.
___________________________________ Karen King Mitchell, Judge
W. Douglas Thomson, Presiding Judge, and Thomas N. Chapman, Judge, concur.