Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY. Honorable John S. Waters, Associate Circuit Judge.
For Appellant: MARK A. GROTHOFF, Columbia, MO.
For Respondent: MARY HIGHLAND MOORE, Jefferson City, MO.
DON E. BURRELL, J. - OPINION AUTHOR. MARY W. SHEFFIELD, P.J. - CONCURS. NANCY STEFFEN RAHMEYER, J. - CONCURS.
DON E. BURRELL, J.
Robert David Nelson (" Movant" ) appeals the motion court's order denying his Rule 29.15 post-conviction motion without conducting an evidentiary hearing. Movant, who claims his trial counsel was ineffective for failing to call certain witnesses at trial, asserts he was entitled to an evidentiary hearing on his claim because: (1) he pleaded factual allegations that, if proven, would warrant relief; and (2) the pleaded factual allegations were not refuted by the record. Because Movant failed to satisfy the second requirement, we affirm.
Facts and Procedural Background
A jury found Movant guilty of two counts of first-degree child molestation, see section 566.067, RSMo 2000, and Movant was sentenced to serve consecutive, ten-year sentences on each count. Movant's primary defense at trial was that the victim (" Victim" ) had fabricated the allegations against him. In an attempt to " assist" his trial counsel, Movant personally argued in support of various pre-trial motions to the trial court. Among other things, Movant claimed his case should be dismissed because delays by the State had made several witnesses unavailable.
Specifically, Movant claimed:
The record will also indicate that a biological aunt of [Victim] has specifically called, on her own initiative, the Investigator Brian Bailey, and specifically told him that she believed [Victim] was lying. She's not available. . . . They're not -- they're out of state. They're nowhere to be found. We've made every attempt to find these people, and we're not having any luck, anymore.
Antonio Isaiahis [sic] was approximately 14 years old at the time, and he specifically said that [Victim] was lying and that there was multiple things that came out over there and that it all started transcending down to one alleged incident. He said that she was lying. He's no longer available. He was later convicted of a felony. He's not credible. According to my attorney, he's not credible as a ...