CARL CAMERON FERGUSON, Appellant v. STATE OF MISSOURI, Respondent

CARL CAMERON FERGUSON,

Appellant, v. STATE OF MISSOURI, Respondent.

No. SD38798 Filed: February 3, 2026

APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Jessica L Kruse, Judge AFFIRMED Carl Cameron Ferguson ("Movant") raises a single point on appeal following the motion court's judgment denying the post-conviction relief sought by Movant under Rule 29.15. 1 Movant's sole point alleges the circuit court clearly erred in denying his claim that his trial counsel 2 were ineffective for failing to call the victim's Counselor

1 All rule references are to Missouri Court Rules (2021). 2 Two attorneys represented Movant at trial. They are referred to as "trial counsel."

In Division

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("Counselor") as a witness. We conclude the circuit court did not clearly err and affirm the motion court's judgment. Background Movant was convicted of one count of statutory rape in the first degree after a jury trial. See § 566.032 RSMo (2016). Movant was sentenced as a prior offender to life in prison. Movant appealed and this Court affirmed his conviction, issuing its mandate on September 1, 2022, and an unpublished Order and Statement. See State v. Ferguson, SD37072, (Mo. App. S.D. June 1, 2022). Movant timely filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence on November 9, 2022 ("Pro Se Motion"). The Pro Se Motion alleged six claims of ineffective assistance of counsel. Specifically germane to this appeal, the Pro Se Motion alleged that trial counsel was ineffective as they "failed to call witnesses in favor of movant." The motion court appointed counsel on January 17, 2023. Motion counsel timely filed an Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence on May 17, 2023 ("Amended Motion"). The Amended Motion set forth a single allegation specifically stating that trial counsel was ineffective for failing to call Counselor as a witness at trial for the purpose of impeaching the victim's testimony. The motion court convened an evidentiary hearing on May 1, 2024. At the beginning of the hearing, motion counsel advised that Movant wanted to proceed under the Pro Se Motion instead of the Amended Motion in order to pursue an allegation that trial counsel was ineffective for failing to object to the "charging document because it did

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not contain all the essential elements of the offense[.]" 3 The motion court did not rule on that request immediately and heard evidence on the Amended Motion. Counselor, trial counsel and Movant testified. The motion court then continued the hearing to give all counsel an opportunity to research and brief as to whether Movant could move to strike the Amended Motion and proceed under the Pro Se Motion. The motion court also noted this would give motion counsel an opportunity to confer with Movant regarding this course of action. The parties filed briefs, and Movant's brief again asked the motion court to "strike the Amended Motion filed in his case, allow him to proceed to hearing on the claims raised in his pro se motion, and address those claims on the merits." The motion court reconvened the hearing on September 25, 2024. At that time, motion counsel renewed Movant's request to strike the Amended Motion and proceed under the Pro Se Motion. The motion court granted the motion to strike the Amended Motion and allowed Movant to proceed on the Pro Se Motion. The motion court issued its Findings of Facts and Conclusions of Law and Judgment on December 12, 2024, finding that Movant "failed to establish that his trial counsel was ineffective for not calling witnesses in favor of Movant because Movant failed to proffer the names of any witnesses in favor of Movant who would have provided a viable defense." The motion court further noted that selection of witnesses was a matter of trial strategy and therefore not a foundation for finding ineffective assistance of counsel.

3 This argument is not before this Court.

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Principles of Review We commence our analysis from the required presumption that the motion court's judgment is correct. Staten v. State, 624 S.W.3d 748, 750 (Mo. banc 2021). Our review is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Flaherty v. State, 694 S.W.3d 413, 419 (Mo. banc 2024) (citing Rule 29.15(k)). We must view the facts in the light most favorable to the judgment, recognizing that the motion court has a superior opportunity to assess the credibility of witnesses and is entitled to believe all, part, or none of the evidence presented at the post- conviction hearing. Id. To succeed on a claim of ineffective assistance of counsel, Movant must satisfy both prongs of the Strickland 4 test: the performance prong and the prejudice prong. Staten, 624 S.W.3d at 750. If Movant falls short of satisfying either prong, that ends our analysis. Id. The performance prong requires a movant to show that "counsel failed to exercise the level of skill, care, and diligence practiced by a reasonably competent attorney in a similar situation[.]" Id. A movant "must overcome the strong presumption that counsel's conduct was reasonable and effective." Johnson v. State, 406 S.W.3d 892, 899 (Mo. banc 2013). To satisfy the Strickland prejudice prong, a movant must show a reasonable probability that, but for counsel's errors, the outcome of the trial would have been different. Flaherty, 694 S.W.3d at 422. "Counsel's errors must be so serious as to deprive

4 Strickland v. Washington, 466 U.S. 668 (1984).

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the defendant of a fair trial, a trial whose result is reliable." Id. (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011)). Matters of trial strategy are "virtually unchallengeable in an ineffective assistance claim." Johnson, 406 S.W.3d at 900 (quoting Vaca v. State, 314 S.W.3d 331, 335 (Mo. banc 2010)). "No matter how ill-fated it may appear in hindsight, a reasonable choice of trial strategy cannot serve as a basis for a claim of ineffective assistance." Id. Analysis Movant's sole point of error alleges: The motion court clearly erred in denying [Movant]'s claim his attorney was ineffective for failing to call [Counselor] at trial in violation of the right to effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, in that: (1) trial counsel failed to act as [a] reasonably competent attorney would under the same or similar circumstances when he failed to call [Counselor]; (2) the strategic reason for not calling her was objectively unreasonable; and (3) there is a reasonable probability of a different result had [Counselor] been called because her testimony would have impeached [the victim] and the State's case was far from overwhelming. We disagree. Movant's brief does not specify if he is requesting review of the denial of the Pro Se Motion or the Amended Motion. We first note that Movant requested to strike his Amended Motion on several occasions. The motion court warned of this course of action, but Movant persisted. Upon Movant's insistence, the motion court granted the motion to strike the Amended Motion and proceeded on the Pro Se Motion. See Sours v. State, 580 S.W.3d 618, 623 (Mo. App. S.D. 2019). Movant's allegation in the Pro Se Motion that trial counsel "failed to call witnesses in favor of Movant" is facially deficient and would not even entitle him to an

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evidentiary hearing. "A movant is entitled to an evidentiary hearing on his Rule 29.15 motion only if: (1) the movant pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant." Dent v. State, 662 S.W.3d 792, 797 (Mo. App. E.D. 2023) (citing McLemore v. State, 635 S.W.3d 554, 559 (Mo. banc 2021)). To obtain a hearing on trial counsel's failure to call a witness, a movant must specifically identify who the witness was, what their testimony would have been, whether or not counsel was informed of their existence, and whether they were available to testify. Morrow v. State, 21 S.W.3d 819, 823 (Mo. banc 2000); Cooper v. State, No. SD38911, 2025 WL 3526005, at *1 (Mo. App. S.D. Dec. 9, 2025). The Pro Se Motion fails in all respects and preserves nothing for review. The motion court gave Movant what he asked for. "[I]t is axiomatic that a defendant may not take advantage of self-invited error or error of his own making." Sours, 580 S.W.3d at 623 (quoting Miller v. State, 558 S.W.3d 15, 22 (Mo. banc 2018)). Thus, Movant's point fails on this basis alone. Even if we ignore Movant's insistence to strike the Amended Motion, the result is the same. The record clearly shows that the decision to not call Counselor was reasonable trial strategy. Reasonable choices of trial strategy cannot serve as a basis for a claim of ineffective assistance. Martin v. State, 655 S.W.3d 195, 201 (Mo. App. W.D. 2022). "The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim." Id. (quoting Beck v. State, 637 S.W.3d 545, 552 (Mo. App. W.D. 2021)).

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Movant contends that trial counsel should have called Counselor to impeach the victim's trial testimony that the victim did not disclose her abuse to anyone before she told Movant's mother. Counselor's testimony contradicts this contention. Counselor testified at the evidentiary hearing that, based on her notes, she was unsure whether the victim was referring to sexual abuse when she indicated she had earlier told a police officer "about what was happening." Thus, any impeachment value would be minimal. Further, trial counsel testified that they did not call Counselor as a witness as the victim had made "a number of consistent statements" to Counselor. Trial counsel explained that if he called Counselor to testify, the State would have been permitted to "essentially lead [Counselor] on cross-examination through" the victim's consistent statements which in turn would have bolstered victim's trial testimony. Trial counsel also testified that Counselor would have testified that she diagnosed the victim with PTSD and child sexual abuse. Trial counsel believed this would have been "too damaging to" Movant's defense. "When defense counsel believes a witness' testimony would not unequivocally support his [or her] client's position, it is a matter of trial strategy not to call him [or her], and the failure to call such witness does not constitute ineffective assistance of counsel." Shockley v. State, 579 S.W.3d 881, 910 (Mo. banc 2019) (quoting Winfield v. State, 93 S.W.3d 732, 739 (Mo. banc 2002)). The record is clear that this was reasonable trial strategy. Movant's point is denied.

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Conclusion The motion court's denial of post-conviction relief is affirmed. BRYAN E. NICKELL, J. – OPINION AUTHOR JEFFREY W. BATES, J. – CONCURS BECKY J. WEST, J. – CONCURS