Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis Honorable
Elizabeth B. Hogan
T. Quigless, J.
Mason ("Movant") appeals from a judgment denying
his Rule 29.15 amended motion for post-conviction relief
following an evidentiary hearing. Movant asserts two points
on appeal, arguing the motion court clearly erred in denying
his motion because trial counsel was ineffective for failing
to impeach the victim with a prior inconsistent statement,
and trial counsel was ineffective for convincing Movant he
did not have the right to testify at trial. We affirm the
and Procedural Background
was charged with one count of first-degree statutory rape,
one count of second-degree statutory rape, three counts of
first-degree statutory sodomy, and two counts of
second-degree statutory sodomy. The charges all related to
allegations that Movant engaged in multiple acts of sexual
conduct at his home with a child under the age of fourteen
between August and October of 2011. Following a jury trial,
Movant was found not guilty of first-degree statutory rape,
and guilty of all other charges. The court sentenced Movant
to a total of twenty-five years in prison.
Court affirmed Movant's convictions on direct appeal.
State v. Mason, 428 S.W.3d 746 (Mo. App. E.D. 2014).
The mandate was issued on May 23, 2014. Movant timely filed a
pro se motion for post-conviction relief pursuant to
Rule 29.15. Post-conviction counsel entered his appearance on
behalf of Movant and was granted an additional thirty days to
file an amended motion, which was timely filed. Movant's
amended motion asserted trial counsel was ineffective for (1)
failing to impeach the victim on cross-examination based on a
"change in [her] story" between her initial
interview and her deposition, and (2) making Movant believe
he did not have the right to testify at trial.
court granted Movant's request for an evidentiary hearing
on the amended motion, and the parties agreed to submit the
case on depositions in lieu of live testimony. Depositions
were filed on April 20, 2016. On January 3, 2017, the motion
court issued its Findings of Fact, Conclusions of Law and
Order denying Movant's amended motion. This appeal
facts will be set forth in the Discussion section of this
Memorandum as necessary to address the issues raised.
review of the denial of a Rule 29.15 motion for
post-conviction relief is limited to determining whether the
motion court's findings of fact and conclusions of law
are clearly erroneous. Rule 29.15(k); Bolden v.
State, 423 S.W.3d 803, 810 (Mo. App. E.D. 2013). The
motion court's findings and conclusions are clearly
erroneous when we are left with the definite and firm
impression that a mistake has been made after reviewing the
entire record. Forrest v. State, 290 S.W.3d 704, 708
(Mo. banc 2009).
Movant's points on appeal are based on his constitutional
right to effective assistance of counsel. To prevail on a
claim of ineffective assistance of counsel, a movant must
prove "by a preponderance of the evidence that (1)
defense 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." Hoeber v. State, 488 S.W.3d 648, 655
(Mo. banc 2016) (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. Hoeber, 488
S.W.3d at 655. To satisfy the performance prong, a movant
must overcome the strong presumption that counsel's
conduct was reasonable and effective by "pointing to
specific acts or omissions of counsel that, in light of all
the circumstances, fell outside the wide range of
professional competent assistance." Id. To
satisfy the prejudice prong, a movant must show a reasonable
probability that, but for counsel's errors, the outcome
of the proceeding would have been different. Id. A
reasonable probability exists where there is a probability
sufficient to undermine confidence in the outcome.
Point One - Impeachment of the Victim
Point I, Movant argues the motion court clearly erred in
denying his Rule 29.15 motion for post-conviction relief
because trial counsel was ineffective for failing to impeach
the victim on cross-examination based on a "change in
[her] story" ...