Court of Appeals of Missouri, Western District, Second Division
BOBBY D. MCCLURE, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Howard County, Missouri The
Honorable Scott Alan Hayes, Judge
Anthony Rex Gabbert, Presiding Judge, Thomas H. Newton,
Judge, Gary D. Witt, Judge.
Anthony Rex Gabbert, Judge.
McClure appeals a motion court's denial of his Rule 29.15
post-conviction claim of ineffective assistance of counsel,
after a jury convicted him of statutory sodomy and child
molestation in the first degree, and the trial judge
sentenced him to two concurrent life sentences. He argues the
motion court clearly erred, because trial counsel prejudiced
his defense by failing to object to testimonial evidence of
the child victim, whose statements lacked sufficient indicia
of reliability. We affirm.
the child victim, testified she was seven years old in 2003
when McClure, her stepfather, began sexually assaulting her
at the home they shared with T.S.'s mother and brother.
T.S. told her aunt and uncle that McClure was touching her
inappropriately. After police investigated, T.S. was taken to
a child advocacy center (CAC), where she was to be
interviewed. However, T.S. refused to speak with the
interviewer, and no charges were brought against McClure in
2004. T.S. then permanently relocated to her
grandparents' home. The CAC did interview T.S. in 2007
and video recorded the session. With the aid of anatomical
drawings, T.S. confirmed McClure had sexually assaulted her.
2014, McClure was charged with first-degree statutory sodomy,
child molestation, and attempted statutory rape, pursuant to
Sections 566.062.1, 566.067, and 566.032,
respectively. At trial, the prosecution submitted as
evidence the 2007 CAC interview. McClure objected to the
exhibit, arguing there was potentially a lack of foundation,
materials subject to motions in limine, and improper
bolstering. The objection was overruled, and the jury found
McClure guilty on the sodomy and molestation charges but
acquitted him of the attempted statutory rape charge. The
court ordered McClure to serve two consecutive life
2016, McClure appealed to this court, arguing the trial court
erred by admitting the CAC interview, because T.S.'s
statements lacked the indicia of reliability required by
Section 491.075.1. State v. McClure, 482 S.W.3d 504
(Mo. App. 2016). However, because McClure never objected to
the exhibit on grounds of insufficient indicia of
reliability, he failed to preserve the alleged error for
appeal. Pursuant to Rule 30.20, this court then considered
whether McClure's claim warranted plain error review. We
found no prejudicial error in admitting the CAC interview,
because T.S. testified at trial and was subject to
cross-examination. Accordingly, we declined plain error
in 2016, McClure timely filed a motion for post-conviction
relief, pursuant to Rule 29.15, claiming ineffective
assistance of trial counsel. He argued trial counsel
prejudiced his defense by failing to object to the CAC
interview on grounds of insufficient indicia of reliability.
The motion court denied McClure's motion, finding no
prejudicial error in admitting the interview, because T.S.
testified at trial and was subject to cross-examination. The
motion court further suggested McClure was not prejudiced,
because the recorded interview could have been admitted under
Section 492.304, which provides for the admission of visual
and aural recordings of children under the age of fourteen,
even when the evidence is inadmissible under Section 491.075.
This appeal follows.
review of a motion for post-conviction relief is
"limited to a determination of whether the motion
court's findings and conclusions are clearly
erroneous." Eastburn v. State, 400 S.W.3d 770,
773 (Mo. banc 2013) (citation omitted); Rule 24.035(k).
"Findings and conclusions are clearly erroneous if,
after reviewing the entire record, this Court is left with
the definite and firm impression that a mistake has been
made." Eastburn at 773 (citation
omitted). The movant must show by a preponderance of
the evidence the motion court clearly erred. Harrison v.
State, 531 S.W.3d 611, 616 (Mo. App. 2017) (citation
omitted). "This court will not supply findings of fact
and conclusions of law by implication from the [motion]
court's ruling." Id.
contends the motion court clearly erred, because trial
counsel's deficient representation prejudiced
McClure's defense by not objecting to the CAC interview
on grounds of insufficient indicia of reliability. To be
entitled to post-conviction relief for ineffective assistance
of counsel, McClure's claim must prove "by a
preponderance of the evidence that (1) trial counsel failed
to exercise the level of skill and diligence that reasonably
competent counsel would exercise in a similar situation and
(2) the movant was prejudiced by that failure."
Dorsey v. State, 448 S.W.3d 276, 287 (Mo. banc 2014)
(citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). "If a movant fails to satisfy either prong of
the [Strickland] test, he or she is not entitled to
post-conviction relief." Creighton v. State,
520 S.W.3d 416, 422 (Mo. banc 2017) (citation omitted).
Without addressing trial counsel's performance, we
conclude that finding no prejudice on direct appeal precludes
finding prejudice in the present post-conviction proceeding.
well-established that "[i]ssues decided upon direct
appeal cannot be relitigated on a theory of ineffective
assistance of counsel in a post-conviction proceeding."
Leisure v. State, 828 S.W.2d 872, 874 (Mo. banc
1992). On direct appeal, this court found that
"[b]ecause T.S. actually testified and was available for
cross-examination, even if the challenged statements were
erroneously admitted under section 491.075, McClure was
not prejudiced." State v. McClure, 482
S.W.3d 504, 506 (Mo. App. 2016) (emphasis added). In support,
we cited State v. Bright, 782 S.W.2d 91, 92 (Mo.