Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis 1422-CC09534
Honorable Margaret M. Neill
M. Gaertner, Jr, Judge
Hughes (Movant) appeals the denial of his motion for
post-conviction relief under Rule 29.15 after a partial
evidentiary hearing. We affirm.
convicted Movant in 2014 of one count of forcible rape and
one count of assault in the second degree, for events
occurring in 2004. The evidence at trial showed that Movant
met A.S. (Victim) in the early morning hours of December 4,
2004. Victim had left the bar she was at with her friends,
and she was walking down the street. Victim noticed Movant
following her and asked him to stop. She flagged down a cab
and got into the backseat, and Movant also got into the cab.
The cab driver drove them to where Victim's car was
parked, and Movant asked Victim for a ride to his aunt's
house "up the street." Victim agreed, but she
realized as they were driving that Movant was directing her
to a location farther away. She put the car in reverse, but
Movant slammed it into park.
thought that Movant wanted to steal her car, so she got out
of the car with the keys. Movant ran toward her, and she
threw the keys over a nearby fence because she did not want
Movant to steal her car. Movant punched her and pulled her up
a hill close to a building. Victim fell on the ground, and
Movant was on top of her. He took her scarf, wrapped it
around her neck, and strangled her. He pulled down her pants
and underwear, pulled his own pants down, and put his penis
in her vagina. He then pulled his pants up and put
Victim's scarf over her eyes. He pulled her up and rubbed
dirt on her vagina. He punched her again in the face, she
fell, and then when she got back up, he punched her again.
This happened several times, and she believed he would not
stop punching her if she got back up, so she decided to hold
her breath and pretend she was dead.
point, Victim removed the blindfold, and Movant was gone.
Victim ran into the street, flagged down a car, and asked the
driver to take her to the hospital Hospital personnel
performed two rape kits, and police eventually retrieved
Victim's clothing from the scene. The St. Louis Police
Department Crime Laboratory found seminal fluid on
Victim's clothing, and boots, as well as male DNA from
the swabs of Victim's genitalia, but at that time they
were unable to match it to any suspect. Several years later,
in May of 2011, the Combined National DNA Indexing System
(CODIS) identified Movant as a match. Detective Jason Steurer
thereafter compiled a photographic lineup and showed it to
Victim. Victim identified Movant as the man who raped her.
jury returned verdicts of guilty for rape and second-degree
assault, and the trial court sentenced Movant as a prior and
persistent offender to consecutive terms of 20 years for rape
and 10 for second-degree assault, totaling 30 years'
imprisonment. Movant timely filed a pro se motion
under Rule 29.15 and later a timely amended motion through
counsel, arguing both his trial counsel and his appellate
counsel were ineffective. The trial court granted an
evidentiary hearing on two of Movant's three claims in
the motion. After the hearing, the motion court denied
Movant's motion. This appeal follows.
raises two points on appeal. First, he argues the motion
court clearly erred in denying his motion after an
evidentiary hearing because he established by a preponderance
of the evidence that his trial counsel was ineffective for
failing to cross-examine Victim regarding her prior
inconsistent statements. Second, Movant argues the motion
court clearly erred in denying his claim that his appellate
counsel was ineffective for failing to argue on appeal that
the trial court plainly erred in limiting admission of
Victim's medical records to only those portions that
corresponded to witness testimony. We discuss each in turn.
review of the denial of a Rule 29.15 motion is limited to the
determination of whether the motion court's findings and
conclusions are clearly erroneous. Rule 29.l5(k); Gehrke
v. State, 280 S.W.3d 54, 56 (Mo. banc 2009). Findings
and conclusions are clearly erroneous when the appellate
court, after reviewing the entire record, is left with the
definite and firm impression that a mistake has been made.
Movant's claim addressed by the motion court after a
hearing, under Rule 29.l5(i), Movant has the burden of
proving his claim by a preponderance of the evidence. In
order to be entitled to relief on Movant's claims of
ineffective assistance of counsel, Movant had to make two
showings by a preponderance of the evidence: (1) that
counsel's performance fell below the level of skill and
diligence of a reasonably competent counsel in a similar
situation, and (2) that Movant was prejudiced thereby.
Johnson v. State, 388 S.W.3d 159, 163 (Mo. banc
2012) (citing Strickland v. Washington. 466 U.S.
668, 687 (19841): see also Evans v. State. 70 S.W.3d
483, 485 (Mo. App. W.D. 2002) (test for ineffective
assistance of appellate counsel is "essentially the same
as that employed for trial counsel"). There is a strong
presumption that Movant's counsel's ...