Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis Honorable
Thomas J. Frawley
S. ODENWALD, Judge.
King ("King") was convicted in the City of St.
Louis on one count of deviate sexual assault and was
sentenced to fifteen years in prison. We affirmed King's
conviction and sentence on direct appeal. State v.
King. 440 S.W.3d 517 (Mo. App. E.D. 2014). King now
appeals from the motion court's denial of his amended
Rule 29.15 motion following an evidentiary hearing.
King alleges ineffective assistance of counsel because trial
counsel failed to offer Victim's medical records and
King's St. Louis Community Release Center
("SLCRC") records into evidence. Because King
cannot establish that trial counsel used an unreasonable
trial strategy, the motion court did not clearly err in
denying King's amended Rule 29.15 motion. We affirm the
judgment of the motion court.
and Procedural History
State charged King with two counts of deviate sexual assault
in his original trial. The State alleged that between
February 14, 2009, and September 4, 2011, King had deviate
sexual intercourse with his stepson ("Victim"). The
case proceeded to a jury trial.
trial, Victim testified that King had anal intercourse with
him twenty times after Victim's high school graduation
but before his nineteenth birthday. Victim graduated from
high school on May 18, 2009, and turned nineteen on February
14, 2010. The alleged abuse occurred in Victim's bedroom
at his mother's residence on Saturdays, while his mother
attended church and Victim was alone with King. Victim
recalled that the sexual acts "felt pretty bad."
The State also presented evidence that Victim was at the same
developmental level as a seven-to-eight-year-old child.
State introduced into evidence a video of Victim's
interview with the Child Advocacy Center ("CAC") on
September 13, 2011. In the CAC video, Victim stated that he
was "made to remove" his clothing and was told to
not tell anyone. Victim remembered that King would place his
penis into Victim's butt and sometimes call out
Victim's name during the sexual acts. Victim recalled
feeling pain, discomfort, and burning during the sexual acts.
trial, one of King's defenses centered on Victim's
prior recantations of the allegations. King presented the
testimony of the former prosecutor in this case, Colleen Lang
("Lang"), who testified that Victim recanted his
allegations during a meeting that occurred after Victim's
CAC interview. On cross-examination, Lang stated that Victim
later reasserted that King sexually abused him and that his
desire to forget about the experience caused his recantation
at the meeting. King's brothers also testified that
Victim informed them that King "didn't do it"
in a five-way phone conversation with members of King's
family. The State argued that this recantation occurred when
King's family members "ganged-up" on Victim.
also contended that Victim admitted to hospital personnel,
during an emergency room visit on September 15, 2011, that he
had not experienced any threats or abuse. Victim recalled at
trial that he told hospital personnel that "[n]o, I was
no threats or no abuse no nothing ... I wasn't hurt by
anybody else." Medical records from this emergency room
visit noted that Victim "denies threats or abuse. Denies
injuries from another." The medical records also stated
that Victim's rectum was "unremarkable by inspection
other than poor wiping technique." Trial counsel did not
offer Victim's medical records into evidence.
jury found King guilty of one count of deviate sexual assault
and acquitted him of one count of deviate sexual assault.
Finding King a prior and persistent offender, the trial court
sentenced him to fifteen years in prison. After we affirmed
his judgment and sentence on direct appeal, King filed an
amended Rule 29.15 motion and alleged that he received
ineffective assistance of counsel. King claimed that trial
counsel was ineffective by failing to offer Victim's
medical records into evidence because they confirmed
Victim's denial of abuse to hospital personnel. King also
claimed that trial counsel was ineffective for failing to
offer the SLCRC records into evidence, which King believes
would have established a partial alibi and contradicted
Victim's testimony by narrowing the possible dates that
he could have been alone with Victim while Victim's
mother was at church.
evidentiary hearing, King testified that he was a resident at
the SLCRC from September 20, 2008, until July 7, 2010. The
SLCRC documented King's absences from its premises. King
stated that he was not permitted to visit family members,
such as Victim, except for a four-hour period on weekends.
King testified that he often scheduled his family visits
during the evening. Victim's mother attended church on
Saturdays from ten in the morning until four or five in the
evening. The SLCRC records only showed seven Saturdays
between May 18, 2009, and February 14, 2010, on which King
checked out during the morning or early afternoon for
potential family visits. King contended that these seven
Saturdays were the only possible times he could have been at
Victim's residence while Victim's mother was at
counsel also testified at the evidentiary hearing. Regarding
Victim's medical records, King's trial counsel
testified that he had reviewed and considered the records
prior to trial. Trial counsel explained his purpose in
wanting to establish a rapport with the jury and believed
that presenting Victim's medical records, which were
created a year and half after the alleged abuse occurred,
would have hampered this effort. Additionally, trial counsel
determined that Victim's medical records were cumulative,
as witnesses' testimony "more or less"
introduced the contents of the medical records into evidence.
Trial counsel asserted that he "did not want it to come
across at trial that I was hanging my hat on one statement in
a medical record that on recross or rebuttal from the State a
witness could have gotten up and said this is a question that
is asked very quickly." Trial counsel wanted to rely on
witnesses' testimony over "a few words pulled from a
medical record that didn't have context."
the SLCRC records, trial counsel recalled that he also had
received and considered these records before trial. Trial
counsel remembered "debating" whether or not to use
the SLCRC records in King's defense before deciding not
to introduce the records into evidence at trial. Trial
counsel considered as a "factor" in his decision
the fact that the SLCRC records were records of the Missouri
Department of Corrections. Trial counsel also testified that
lie had been informed by State that a rebuttal witness was
available to testify that the SLCRC records were unreliable
and inaccurate. ...