Dan R. Lawrence vs. State of Missouri

DAN R. LAWRENCE, ) ) Appellant, ) ) WD87532 v. ) ) OPINION FILED: ) January 27, 2026 STATE OF MISSOURI, ) ) Respondent. ) Appeal from the Circuit Court of Cass County, Missouri The Honorable R. Michael Wagner, Judge Before Division Three: Alok Ahuja, Presiding Judge, Mark D. Pfeiffer, Judge, and Thomas N. Chapman, Judge Mr. Dan R. Lawrence ("Lawrence") appeals from the judgment of the Circuit Court of Cass County, Missouri ("motion court"), which denied his Rule 29.15 1 motion for post-conviction relief ("PCR") following an evidentiary hearing. We affirm.

1 All rule references are to I MISSOURI COURT RULES – STATE 2025.

2 Factual and Procedural History 2

On October 27, 2018, Victim, 3 then thirteen years old, spent the night at Lawrence's home because she was friends with Lawrence's daughter. 4 The girls visited with each other and watched movies in the living room before falling asleep on the living room couches. Victim awoke when Lawrence, who had been out, came home around 3:00 a.m. Lawrence asked Victim why she was awake, but she did not respond. Lawrence went back outside briefly but then returned. He sat next to Victim on the couch, asked why she was still awake, and then began touching her. Lawrence first rubbed her back and then moved on to her legs, under her shirt, under her bra, and over her pants across her vaginal area. Lawrence then pulled down his pants and began rubbing his penis on Victim's foot before humping and grinding his whole body all over hers until he ejaculated. After ejaculating on both himself and Victim, Lawrence got up and left the room. The ejaculate was on Victim's foot and pants. The next day, Victim told her older sister what had happened. On December 17, 2018, Lawrence was interviewed by law enforcement and agreed to provide a buccal swab. During the interview, Lawrence acknowledged that

2 "On appeal from the motion court's denial of a Rule 29.15 motion, we view the facts in the light most favorable to the underlying criminal conviction as those facts bear upon the motion court's judgment." Morrison v. State, 619 S.W.3d 605, 607 n.1 (Mo. App. W.D. 2021) (citing McFadden v. State, 553 S.W.3d 289, 296 n.2 (Mo. banc 2018)). 3 Pursuant to the directive of section 509.520.1(4), (7) (Supp. IV 2024), we do not use the names of any victims or minors in this opinion. All other statutory references are to T HE REVISED STATUTES OF MISSOURI (2016), as supplemented through March 14, 2023, unless otherwise indicated. 4 Many of the underlying facts are taken directly from the legal memorandum supplementing the per curiam order issued to Lawrence in his direct appeal, State v. Lawrence, 655 S.W.3d 282 (Mo. App. W.D. 2022) (mem.), without further attribution.

3 Victim had spent the night at his home from October 27-28, 2018, and that he arrived home between 3:00 and 3:30 a.m. on the 28th, noticed Victim awake on the couch, sat next to her and asked why she was awake and out on the couch. Lawrence claimed not to remember anything after that but also stated that, if he had done anything inappropriate to Victim, he was sorry that it happened. Forensic Specialist 1 5 of the Kansas City Police Department (KCPD) Crime Lab examined Victim's pants for DNA and confirmed the presence of semen. She then created a slide with the sample and examined it under a microscope, where she was again able to confirm the presence of semen. Following these confirmations, Forensic Specialist 1 sent the stain for DNA analysis. The stain was examined by Forensic Specialist 2 from the biology section of the Crime Lab. The DNA analysis, performed by comparing the DNA profile from the stain against the DNA profile developed from Lawrence's buccal swab by Forensic Specialist 3, indicated that Lawrence was a contributor to the semen found on Victim's pants and that the chances of the DNA belonging to anyone other than Lawrence were one in sixteen octillion. Before trial, Lawrence's trial counsel agreed to stipulate to the chain of custody of the DNA sample, including that Forensic Specialist 3 "developed a genetic profile from . . . the buccal swab from defendant Dan Lawrence, which was then submitted for DNA analysis."

5 Pursuant to Missouri Supreme Court Operating Rule 2.02(c)(3), we do not identify the names of non-party witnesses in our ruling today.

4 At trial, the State presented the above facts through the following witnesses: Victim, the officer who interviewed Lawrence, Forensic Specialist 1, and Forensic Specialist 2. Lawrence rested without presenting any further evidence. Within thirty minutes of retiring to deliberate, the jury returned guilty verdicts on all counts. The court sentenced Lawrence to consecutive terms of seven years on each of the four child molestation convictions and to a concurrent term of four years on the single sexual misconduct conviction. Lawrence then appealed. In Lawrence's direct appeal, he argued the State untimely disclosed that its two expert witnesses, Forensic Specialist 1 and Forensic Specialist 2, had three combined instances of "proficiency test problems." Lawrence argued that the untimely disclosure prevented him from impeaching the two witnesses at trial, violating his rights under Giglio v. United States, 405 U.S. 150 (1972). This Court rejected Lawrence's direct appeal, determining that the prior "proficiency test problems" were not material because (1) the most recent of the three incidents occurred five years before the specialists performed their analysis in Lawrence's case and because no evidence indicated that the problems were ongoing issues that may have impacted the analysis in Lawrence's case and (2) no evidence suggested that the prior problems were related to the same kind of analysis performed in Lawrence's case. Accordingly, we concluded that there was no outcome-determinative prejudice and rejected Lawrence's direct appeal. Lawrence then filed this PCR motion. In the motion, Lawrence argued, in relevant part to this appeal, that his trial counsel was ineffective in: (1) failing to properly

5 investigate and utilize all available evidence to impeach Victim; (2) failing to call an expert witness to testify on the purportedly suggestive nature of Victim's forensic interview; (3) failing to call an expert witness to testify on the possibility that Lawrence's DNA could have been transferred by touch from the couch to Victim's pants without him perpetrating the sexual assault; (4) stipulating to the circumstances under which the clothing containing DNA evidence was collected and the chain of custody of that evidence; and (5) failing to present evidence that Lawrence suffered a hand injury before the incident that would have purportedly impeded his ability to be the perpetrator of the assault. Lawrence also argued that his appellate counsel was ineffective for failing to argue during his direct appeal that the evidence was insufficient to support his sexual misconduct conviction. Before the PCR hearing, Lawrence sought to take Victim's deposition, which the State opposed by filing a motion to quash the notice of deposition. After receiving written suggestions from the parties and holding a hearing on the motion, the motion court granted the State's motion to quash. At the beginning of the PCR hearing, Lawrence's PCR counsel requested the motion court take judicial notice of the proceedings in Lawrence's underlying criminal case and his subsequent direct appeal, but she did not request the motion court take judicial notice of any other files. PCR counsel then announced her intention to present three witnesses by deposition: (1) a purported DNA expert; (2) a purported expert in juvenile forensic interviews; and (3) Lawrence's appellate counsel. Lawrence's PCR counsel noted that all three depositions, as well as the corresponding exhibits for the

6 deposition witnesses, had been filed with the court. Although PCR counsel later successfully moved to admit three other exhibits into evidence, she never moved to admit any of the three depositions or the three associated deposition exhibits into evidence. Lawrence called three witnesses to testify at the PCR hearing. First, Lawrence called Victim to testify; however, the State objected, and the motion court sustained the objection. Lawrence's trial counsel testified. Then, Lawrence testified on his own behalf. The State did not call any witnesses. The motion court judge, who also presided over Lawrence's underlying criminal trial, denied all of Lawrence's PCR claims. The motion court concluded that none of Lawrence's challenges relating to trial counsel's and appellate counsel's ineffectiveness amounted to constitutionally deficient performance and that Lawrence did not suffer any prejudice from any of the purported errors of counsel. In its findings of fact and conclusions of law, the motion court explained that it did not consider the deposition witnesses or the corresponding exhibits to be admitted in evidence because PCR counsel never moved to admit them into evidence and never requested the motion court to take judicial notice of them. Nonetheless, the motion court addressed the contents of the depositions and separately concluded that, even if PCR counsel had properly moved for admission of the depositions into evidence, such evidence would have had no effect on the motion court's judgment. Lawrence timely appealed the motion court's judgment, raising nine points on appeal. For ease of analysis, we group some points together and address them out of order. In Points I-III, Lawrence argues the motion court committed procedural errors in

7 the course of resolving his PCR motion. In Points IV-IX, Lawrence argues the motion court erred in rejecting his claims of ineffective assistance of counsel. Standard of Review "Appellate review of the trial court's action on the motion filed under this Rule 29.15 shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Scott v. State, 719 S.W.3d 723, 725 (Mo. banc 2025) (quoting Rule 29.15(k)). "In applying this standard, appellate courts should defer to the motion court's superior opportunity to judge the credibility of witnesses and recognize the 'circuit court is entitled to believe all, part, or none of the evidence presented at the post-conviction hearing.'" Flaherty v. State, 694 S.W.3d 413, 419 (Mo. banc 2024) (quoting Driskill v. State, 626 S.W.3d 212, 220 (Mo. banc 2021)). To find that a decision was clearly erroneous, this Court must form a "definite and firm impression that a mistake has been made" after a review of the entire record. Id. at 416 (quoting Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016)). "The motion court's findings of fact and conclusions of law are presumed to be correct." Beck v. State, 637 S.W.3d 545, 551 (Mo. App. W.D. 2021) (quoting Hays v. State, 360 S.W.3d 304, 309 (Mo. App. W.D. 2012)). Motion Court Proceedings (Points I-III) In Point I, Lawrence argues the motion court erred in treating the deposition transcripts as being outside of the evidentiary record. In Point II, Lawrence argues the motion court erred in refusing to allow him to take Victim's deposition as part of discovery before the PCR hearing. In Point III, Lawrence argues the motion court erred in refusing to allow him to call Victim as a witness at the PCR hearing.

8 As referenced in the standard of review, Rule 29.15(k) limits appellate review of a PCR motion solely to whether the findings of facts and conclusions of law of the motion court are correct. The findings of facts and conclusions of law required in a PCR judgment are generally limited solely to the issues presented in the PCR motion: Whether or not a hearing is held, the court shall issue findings of fact and conclusions of law on all issues presented, including the timeliness of the pro se motion, the timeliness of the amended motion, and, when applicable, whether movant was abandoned by postconviction counsel. Rule 78.07(c) shall apply to these proceedings. Rule 29.15(j) (emphasis added). The issues presented in the PCR motion are limited solely to claims that the movant's conviction or sentence was unlawful: A person convicted of a felony after trial claiming that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 29.15. Rule 29.15(a); see also Rule 29.15(d) ("The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence. The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion."); State v. Statler, 383 S.W.2d 534, 538 (Mo. 1964) ("The sole purpose of a [PCR] motion like the present one is to determine whether defendant's original trial was violative of any constitutional requirements or if the judgment was otherwise void." (emphasis added)).

9 "The post-conviction remedy is available for the defendant to attack his conviction and not to allege irregularities in the post-conviction proceeding itself." Brock v. State, 242 S.W.3d 430, 433 (Mo. App. W.D. 2007) (emphasis added); see also Solis v. State, 119 S.W.3d 172, 175 (Mo. App. E.D. 2003) ("Post-conviction proceedings are directed at defects that led to sentencing, not to claims of constitutional violations in the post- conviction proceedings themselves." (citing Johnson v. State, 4 S.W.3d 154, 156 (Mo. App. S.D. 1999))). Under Rule 29.15(k), this Court's review of the denial of a post-conviction motion is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. This Court finds no authority, by Rule or caselaw, granting it authority to review an evidentiary ruling made by the motion court during a Rule 29.15 evidentiary hearing on the claim. Holman v. State, 694 S.W.3d 484, 492 (Mo. App. S.D. 2024). Based upon this precedent, Lawrence's claims in Points I-III that the motion court has committed evidentiary errors in its evidentiary rulings relating to the PCR motion proceedings are arguably not cognizable in this appeal. 6 However, we need not and do

6 To the extent these procedural issues cannot be raised in an appeal from the denial of a PCR motion, a PCR movant would nonetheless be entitled to seek review of such claimed erroneous discovery and evidentiary rulings via a writ of mandamus or prohibition. See State ex rel. Reif v. Jamison, 271 S.W.3d 549, 550 (Mo. banc 2008) ("A writ of prohibition or mandamus is the proper remedy for curing discovery rulings that exceed a court's jurisdiction or constitute an abuse of the court's discretion." (citation modified)); cf. State ex rel. Garrabrant v. Holden, 633 S.W.3d 356, 359 (Mo. banc 2021) (allowing the State to seek interlocutory review of evidentiary rulings made during a criminal trial by writ of mandamus due to the State's inability to seek appellate review of such evidentiary rulings as a result of constitutional protection from double jeopardy).

10 not rely upon this procedural basis to affirm the motion court's judgment; rather, we conclude that there is no substantive merit to Lawrence's claims. 7

First, as to the deposition transcripts, the motion court did not err in finding that Lawrence had not formally moved to have the deposition transcripts admitted into evidence. Generally, filing a piece of evidence with a court—without requesting the court to take judicial notice of it or offering the evidence for admission into evidence— does not place it before the fact finder for consideration: Appellants rely heavily upon the fact that the settlement agreement was filed with the court under seal. However, if Appellants wished to rely upon the sealed settlement agreement as proof of the settlement and its applicability to the present case, then they should have offered it into evidence at the hearing on the motion or asked the circuit court to take judicial notice of it. The circuit court is not required to leaf through a file to determine what should be used as evidence when making its decision. Furthermore, simply filing a document with the trial court does not put it before the court as evidence. Thus, the fact that the settlement agreement was in the court file under seal did not relieve Appellants of their burden of proving the amount of the settlement, nor did it constitute proof of the amount. Heckadon v. CFS Enters., Inc., 400 S.W.3d 372, 379-80 (Mo. App. W.D. 2013) (citation modified) (emphasis added). And yet, the motion court did expressly review, consider, and comment upon the subject deposition transcripts in its judgment. In other words, the motion court has

7 And, for reasons outlined in Judge Ahuja's well-articulated concurring opinion, there may be value in our Supreme Court taking transfer of this appeal to address the procedural due process issues that are intertwined with refusing to consider a motion court's evidentiary rulings at a PCR evidentiary hearing that constitute an abuse of discretion—though we find no such abuse of discretion in this instance.

11 already provided Lawrence the relief Lawrence now appears to be seeking from this Court. Simply put, Lawrence has suffered no prejudice. The same is true of Lawrence's claims of discovery and evidentiary ruling errors regarding efforts to depose or call Victim to testify at the Rule 29.15 evidentiary hearing. As we discuss in greater detail with regard to Points IV, V, and VI, Lawrence simply cannot demonstrate how any claim of error is accompanied by any resulting prejudice. And, as we have often stated, "[n]o appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action. Appellate review is for prejudice, not mere error." Neighborhood Legal Support of Kansas City v. Ontman, 717 S.W.3d 600, 605-06 (Mo. App. W.D. 2025) (citation modified) (quoting Rasmussen v. Ill. Cas. Co., 628 S.W.3d 166, 172 (Mo. App. W.D. 2021)). Points I, II, and III are denied. Claims of Ineffective Assistance of Trial Counsel (Points IV-VIII) "To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test." Watson v. State, 520 S.W.3d 423, 435 (Mo. banc 2017) (citing Strickland v. Washington, 466 U.S. 668 (1984)); accord Flaherty, 694 S.W.3d at

1. Under Strickland, the movant must demonstrate: "(1) his trial counsel failed to

exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure." Watson, 520 S.W.3d at

12 To establish the performance prong, "a movant must overcome the strong presumption that counsel's conduct was reasonable and effective and identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." McKee v. State, 540 S.W.3d 451, 456 (Mo. App. W.D. 2018) (citation modified) (quoting Hoeber v. State, 488 S.W.3d 648, 655 (Mo. banc 2016)). "Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance." Shockley v. State, 579 S.W.3d 881, 898 (Mo. banc 2019) (quoting Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)); accord Goodwater v. State, 560 S.W.3d 44, 56 (Mo. App. W.D. 2018) ("If trial counsel's failure to object is based on reasonable trial strategy, the movant cannot demonstrate counsel was ineffective." (quoting Bradley v. State, 292 S.W.3d 561, 564 (Mo. App. E.D. 2009))). To establish the prejudice prong, the movant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. When the motion court judge and the trial court judge are the same, as is the case here, the motion court's findings on the issue of prejudice are entitled to heightened deference. See Flaherty, 694 S.W.3d at 423 ("The additional deference due a judge who also presided over the criminal trial weighs strongly in favor of affirming the motion court's finding that [movant] was not prejudiced by counsel's deficient performance.").

13 If the movant fails to prove either prong, relief cannot be granted. Hecker v. State, 677 S.W.3d 507, 512 (Mo. banc 2023). And if the movant fails to satisfy one prong, we need not address the other. Staten v. State, 624 S.W.3d 748, 750 (Mo. banc 2021); Shores v. State, 674 S.W.3d 127, 133 (Mo. App. W.D. 2023). Point VI In Point VI, Lawrence argues the motion court erred in rejecting his claim that his trial counsel was ineffective in failing to call an expert witness to testify on the possibility that Lawrence's DNA was transferred from the couch onto Victim's pants by touch and not by Lawrence ejaculating onto Victim. Lawrence has failed to carry his burden of establishing prejudice from this purported error for three independent reasons. Fi rst, Lawrence failed to present sufficient factual foundation to support the theory of secondary touch DNA transfer. In DeLeon v. State, DeLeon, the movant in a Rule 29.15 motion, argued, like Lawrence does on this appeal, that his trial counsel was ineffective for failing to present expert testimony on "the theory of 'secondary touch DNA transfer,' which occurs when DNA is transferred from one person to another person or object by virtue of an intermediate object or person." See DeLeon v. State, 690 S.W.3d 535, 542 (Mo. App. E.D. 2024). The DeLeon court affirmed the motion court's ruling rejecting DeLeon's PCR motion, finding that DeLeon failed to satisfy the Strickland prejudice prong. Id. at 541-42. In relevant part, the DeLeon court reasoned that DeLeon was not prejudiced because, even if the DNA expert had testified to the "secondary touch DNA transfer" theory, DeLeon failed to present sufficient foundation to establish that his DNA was in a place where it could have been transferred to the victim:

14 [W]e find that Appellant's argument that the independent DNA expert would have presented the jury with an alternative, innocuous explanation for the presence of his DNA on Victim's underwear waistband is unsupported by the evidence. The secondary touch transfer theory provides only a mechanism to explain how Appellant's DNA could have been found on Victim's underwear. However, to be applicable, that theoretical mechanism requires facts establishing or tending to establish that Appellant had transferred his DNA to an intermediate object or person which Victim then touched—transferring Appellant's DNA to herself— before touching the waistband of her underwear and transferring Appellant's DNA there. While Appellant testified that he shook hands with Victim and patted her shoulder, we infer from the motion court's judgment that it did not find him credible. Id. at 542 (emphasis added). Here, for Lawrence to support his theory that DNA from his semen was innocuously transferred from the couch to the semen-stained part of Victim's pants by touch, Lawrence would have been required to present evidence that his semen was on the couch before Victim sat on it. Lawrence, despite testifying at the PCR hearing, has never presented any evidence that he transferred his semen to the couch at any time. Just as in DeLeon, we hold that "[b]ecause there is no factual basis for the application of the secondary touch transfer theory, there would have been no reasonable likelihood of a different outcome were it not for trial counsel's alleged unreasonable failure to consult with, retain, and call an independent DNA expert." Id. Second, even if we were to consider the contents of the expert's unadmitted deposition, Lawrence would still not have established any prejudice because the DNA expert's testimony would have been substantially cumulative with testimony already in the record. At trial, Lawrence's trial counsel cross-examined the State's DNA expert on the possibility that Lawrence's DNA could have been innocuously transferred by touch:

15 Q: Well, DNA, once it is on something stays on it unless it is washed, correct, as a general rule? A: If it transfers in the first place, it would stay until something else may have transferred it off. It doesn't have to be washed. Q: Okay. It is very easy for my DNA to get on something, correct? A: So it depends on a lot of things. . . . . Q: But it is also possible that the DNA would remain on there, correct? A: It is. Q: And it frequently does, doesn't it? A: Yes. . . . . Q: So it can be pretty easily transferred? A: It can be. Q: Okay. That was all I wanted to know. And generally speaking absent anything that removes it, it is—DNA can remain on there for a really long time, correct? A: It can if it transfers there to begin with. After evaluating this testimony, the motion court judge, which was the same judge that presided over the trial, concluded that the "possibility of secondary transfer was already in evidence at trial through trial counsel's cross examinations of the crime lab witnesses." Given the extra deference due a judge who has presided over both the PCR motion proceedings and the criminal trial on the topic of the Strickland prejudice prong, we conclude that it was not clear error for the motion court to conclude that, in light of the State expert's testimony on the issue of DNA touch transfer, the presentation of

16 cumulative evidence on this issue would have made no difference in the outcome of Lawrence's trial. "[Movant] has failed to prove how any such failure [to call an expert witness], if shown, would result in prejudice due to the cumulative nature of the evidence he presented at the Rule 29.15 evidentiary hearing compared to that presented at trial." McLaughlin v. State, 378 S.W.3d 328, 344 (Mo. banc 2012). Fi nally, Lawrence failed to present the proffered testimony of the DNA expert into the PCR evidentiary hearing record because Lawrence never moved to admit the expert's deposition testimony into evidence or requested that the motion court take judicial notice of it. Because Lawrence failed to establish at the PCR hearing what the DNA expert's testimony would have been at trial, he has necessarily failed to demonstrate any prejudice. See id. at 343 ("Even assuming that [movant]'s trial counsel [was] ineffective for failing to present evidence of a psychiatrist or neuropsychologist, [movant] was not prejudiced. To show ineffective assistance of counsel based on failure to present an expert witness, [movant] is required to show what the evidence would have been if called." (emphasis added)). For these reasons, the motion court did not clearly err in concluding that Lawrence failed to establish the Strickland prejudice prong for this claim of ineffective assistance counsel. 8

8 We note additionally that when the DNA expert was cross-examined during his deposition, he admitted that his theory of secondary DNA transfer could not eliminate the possibility that Lawrence instead transferred his sperm directly by ejaculating onto Victim. Thus, the DNA expert's testimony would not have unqualifiedly supported Lawrence's defense theory. And, the DNA expert admitted that, upon his review of the State's DNA-analysis report, he agreed with the conclusion of the State's DNA expert

17 Point VI is denied. Point VII In Point VII, Lawrence argues the motion court erred in rejecting his claim that his trial counsel was constitutionally ineffective for stipulating to Forensic Specialist 3's role in developing a DNA profile from Lawrence's buccal swab, which was later compared to the DNA sample developed from the semen found on Victim's pants. Lawrence asserts that, if his trial counsel had not agreed to the stipulation, the State would have been unable to call Forensic Specialist 3 because she would have been unavailable to testify. Lawrence further argues that without the stipulation or Forensic Specialist 3's testimony, the State would have been unable to lay sufficient foundation to establish Lawrence as the contributor to the semen on Victim's pants. "A stipulation is generally a matter of trial strategy and will not support a claim of ineffective assistance of counsel." Rabun v. State, 614 S.W.3d 629, 633 (Mo. App. E.D. 2020) (quoting State v. Holloway, 877 S.W.2d 692, 697 (Mo. App. E.D. 1994)). Trial counsel's decision to stipulate to the chain of custody of Lawrence's known DNA sample does not fall outside this general rule for two reasons.

that the DNA from the semen found on Victim's pants was consistent with Lawrence's DNA. This testimony would have further incriminated Lawrence by increasing the credibility of the State's DNA analysis. "If a potential witness's testimony would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance." Hosier v. State, 593 S.W.3d 75, 88 (Mo. banc 2019) (quoting Worthington v. State, 166 S.W.3d 566, 577 (Mo. banc 2005)).

18 First, Lawrence's trial counsel had a reasonable trial strategy behind the stipulation. At the PCR hearing, trial counsel testified that she agreed to the stipulation because she wanted to limit the number of experts testifying about DNA evidence: Well, there would have been nothing in her testimony. Her role was fairly minor, but if I had not stipulated, then the State would have had three experts to go before the jury, and I think jurors tend to be very impressed by expert testimony, so I would want to keep the number of experts to a minimum. I think strategically it's best to limit that if we can. Stipulating to a witness's testimony to avoid emphasizing damaging DNA evidence is a reasonable trial strategy: "During the evidentiary hearing, Movant's trial counsel testified that his strategy was to limit the evidence regarding Movant's semen on Victim's comforter. Admitting damaging facts to minimize their prejudicial effect is a reasonable trial strategy." Ordoukhanian v. State, 702 S.W.3d 194, 200 (Mo. App. E.D. 2024). Second, the determination of whether a trial strategy was reasonable must be "viewed from counsel's perspective at the time and not from hindsight." Cooper v. State, 621 S.W.3d 624, 632 (Mo. App. W.D. 2021) (citing Baird v. State, 906 S.W.2d 746, 749 (Mo. App. W.D. 1995)). At the PCR hearing, Lawrence's trial counsel testified that she only learned of the possibility that Forensic Specialist 3 might be unavailable as a witness after trial. Thus, when Lawrence's trial counsel agreed to the stipulation, she had no knowledge of the possibility that Forensic Specialist 3 would be unavailable for trial. 9

9 Prior to the direct appeal of Lawrence's convictions, trial counsel argued in a motion for new trial that the State violated Lawrence's constitutional rights by not disclosing the possibility of Forensic Specialist 3's unavailability until after trial. The trial court rejected this argument, and Lawrence did not raise any claim of error on that topic in his direct appeal.

19 Given that Lawrence's trial counsel reasonably believed Forensic Specialist 3's testimony would harm Lawrence and that Forensic Specialist 3 would be available to testify regardless of the stipulation, the motion court did not clearly err in concluding that the stipulation was reasonable trial strategy, not constitutionally deficient performance. Point VII is denied. Points IV, V, and VIII In Points IV, V, and VIII, Lawrence argues that the motion court erred in rejecting his claims that his trial counsel was constitutionally ineffective in failing to attack Victim's credibility through various avenues. In Point IV, Lawrence argues that his trial counsel was constitutionally ineffective for failing to use all available evidence to further impeach Victim's credibility in cross-examination. In Point V, Lawrence argues that his trial counsel was constitutionally ineffective for failing to call an expert to testify that the suggestive nature of Victim's forensic interview manipulated Victim's recollection of events. In Point VIII, Lawrence argues that his trial counsel was constitutionally ineffective in failing to present evidence of Lawrence's hand injury that would have purportedly impeded his ability to be the perpetrator of the assault. Given Lawrence's peculiar admission to law enforcement when he was interviewed several weeks after the incident that he had no memory of the assault but he was sorry if he had done anything "inappropriate" to Victim and the overwhelming impact of the DNA evidence, we cannot declare clearly erroneous the motion court's determination that Lawrence's claims in these three claims of ineffective assistance of

20 counsel must fail because Lawrence cannot satisfy his burden of demonstrating Strickland prejudice. We cannot declare clearly erroneous the motion court's findings and conclusions, including that the DNA evidence was most persuasive and led to Movant's conviction; thus, no prejudice flowed from Movant's complaints. The motion court well could so conclude since it also was the trial court. Thus, it had observed the jury and could personally evaluate the effect and persuasiveness of testimony, evidence, and arguments. Yet even the cold record convincingly supports the motion court. Sperm recovered from the victim's underwear matched Movant's DNA profile, the random chance of which was one in 141,600,000,000,000,000 (141 quadrillion, 600 trillion). This damning proof corroborated the victim and neutered defense efforts to paint her as a liar. Since the motion court properly deemed inconsequential Movant's complaints, we can dispose of them for lack of prejudice and should do so. Keightley v. State, 291 S.W.3d 367, 369 (Mo. App. S.D. 2009) (emphasis added). Points IV, V, and VIII are denied. Ineffective Assistance of Appellate Counsel (Point IX) In Point IX, Lawrence argues that the motion court erred in rejecting his claim that his appellate counsel was constitutionally ineffective for failing to argue on his direct appeal that the State presented insufficient evidence to support his conviction for sexual misconduct with a child. Lawrence contends that the State was required to prove that Lawrence knew Victim would be alarmed by the exposure of his genitals and that the State failed to prove this element because Victim pretended to be asleep during the exposure—preventing Lawrence from knowing Victim would be alarmed. "The standard of review for a claim of ineffective assistance of appellate counsel is essentially the same as that used in a claim against trial counsel." Brandolese v. State, 715 S.W.3d 587, 600 (Mo. App. W.D. 2025) (quoting Hudson v. State, 482 S.W.3d 883,

21 889 (Mo. App. E.D. 2016)). To establish the performance prong for ineffective assistance of appellate counsel, "the movant must establish that counsel failed to raise a cl aim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it." William v. State, 637 S.W.3d 396, 400 (Mo. App. W.D. 2021) (quoting Anderson v. State, 564 S.W.3d 592, 617 (Mo. banc 2018)). To establish the prejudice prong for ineffective assistance of appellate counsel, the movant must prove that "if counsel had raised the claims, there is a reasonable probability the outcome of the appeal would have been different." Id. (quoting Anderson, 564 S.W.3d at 617). Section 566.083 provides four different definitions for the crime of sexual misconduct involving a minor. The first definition requires the State to prove that the defendant knew the exposure of his genitals would alarm the victim: [A person commits the offense of sexual misconduct involving a child if such person:] [k]nowingly exposes his or her genitals to a child less than fifteen years of age under circumstances in which he or she knows that his or her conduct is likely to cause affront or alarm to the child[.] § 566.083.1(1) (2016) (emphasis added). However, the second definition in section 566.083 does not require that the defendant knew the victim would be alarmed by the exposure: [A person commits the offense of sexual misconduct involving a child if such person:] [k]nowingly exposes his or her genitals to a child less than fifteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child. § 566.083.1(2) (2016) (emphasis added). The trial court's judgment notes that Lawrence was convicted of violating section 566.083, but it does not further specify which subsection Lawrence was convicted of

22 violating. Nonetheless, both the grand jury indictment 10 and the jury instructions read at trial 11 indicate that Lawrence was tried and ultimately convicted for violating subsection 566.083.1(2), not subsection 566.083.1(1). Thus, the State was not required to prove that Lawrence knew Victim would be alarmed by his exposure. Because Lawrence accuses his appellate counsel of constitutionally ineffective assistance for failing to argue that the State did not prove an element that the State was not required to prove, such an argument would have been futile. See Morrison v. State, 619 S.W.3d 605, 610-11 (Mo. App. W.D. 2021) (noting that movant's conviction required proof of three elements and explaining that movant's appellate counsel was not constitutionally ineffective for failing to present the futile argument that the State was required to prove a fourth element). Appellate counsel cannot render deficient performance on appeal by failing to raise a futile claim: "Simply put, the claim [movant] asserts appellate counsel should have asserted on his direct appeal would have been

10 The relevant portion of the grand jury indictment read: Section 566.083, RSMo, committed the class E felony of sexual misconduct involving a child . . . in that . . . the defendant knowingly exposed defendant's genitals to [Victim] . . . a child less than fifteen years of age, and did so for the purpose of gratifying the sexual desire of the defendant. 11 The relevant jury instruction read: As to Count V, if you find and believe from the evidence beyond a reasonable doubt: First that on or about October 28, 2018, in the State of Missouri defendant knowingly exposed his genitals to [Victim]; [s]econd, that defendant did so for the purpose of gratifying the sexual desire of defendant; [t]hird, that at the time [Victim] was 13 years old; [f]ourth, that defendant was aware [Victim] was less than 15 years of age, then you will find the defendant guilty under Count V of sexual misconduct involving a child by indecent exposure.

23 futile. And, we will not convict appellate counsel of ineffective assistance for failing to raise a claim that would have been futile." Id. at 611. The motion court did not clearly err in rejecting Lawrence's claim of ineffective assistance of appellate counsel. Point IX is denied. Conclusion The judgment of the motion court is affirmed.

Mark D. Pfeiffer, Judge Thomas N. Chapman, Judge, concurs. Alok Ahuja, Presiding Judge, concurs in separate opinion. ___________________________________

DAN R. LAWRENCE, ) ) Appellant, ) ) v. ) WD87532 ) STATE OF MISSOURI, ) Filed: January 27, 2026 ) Respondent. )

circuit court's denial of Lawrence's postconviction relief motion. I write separately to address an issue the Court's opinion does not resolve: whether a movant may appeal the denial of postconviction relief on the basis that the circuit court made procedural errors during the postconviction proceeding itself. In my view, a movant is entitled to argue on appeal that a circuit court's denial of postconviction relief is tainted by procedural irregularities in the postconviction proceedings. If this Court agrees that procedural errors have occurred, the denial of postconviction relief should be reversed, and the case remanded to the circuit court for further proceedings. This Court, and the Supreme Court, have followed this course in a multitude of cases. To the extent certain cases suggest that procedural errors

2 cannot be considered in a postconviction appeal, those cases are wrong, and should no longer be followed. Discussion Lawrence's first three Points challenge procedural rulings made by the circuit court during the postconviction proceedings: the court's refusal to consider deposition transcripts Lawrence offered at the evidentiary hearing in lieu of live testimony; and the court's decision not to allow Lawrence to depose the Victim, or to call her as a live witness. In response to these Points, the State cites to decisions of this Court which suggest that procedural irregularities in postconviction proceedings are not themselves subject to review on appeal. Thus, in Holman v. State, 694 S.W.3d 484 (Mo. App. S.D. 2024), a movant claimed that the circuit court had erroneously excluded several exhibits which the movant offered at the postconviction evidentiary hearing. Although the Southern District concluded that the circuit court had not abused its discretion in excluding the exhibits, it also suggested that the movant's procedural arguments might not be reviewable on appeal at all: In these points, Holman presents claims that we doubt are cognizable for review in a Rule 29.15 proceeding. Under Rule 29.15(k), this Court's review of the denial of a post-conviction motion is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. This Court finds no authority, by Rule or caselaw, granting it authority to review an evidentiary ruling made by the motion court during a Rule 29.15 evidentiary hearing on the claim. Id. at 492 (emphasis added).

3 Similarly, in Brock v. State, 242 S.W.3d 430 (Mo. App. W.D. 2007), we said that "[t]he post-conviction remedy is available for the defendant to attack his conviction and not to allege irregularities in the post-conviction proceeding itself." Id. at 433. Other cases make similar statements: see, e.g., Mayes v. State, 349 S.W.3d 413, 419 (Mo. App. S.D. 2011) (relying on Brock, and refusing to consider movant's claim that the circuit court erroneously relied on a witness' affidavit to fill gaps in the evidentiary hearing transcript); Solis v. State, 119 S.W.3d 172, 175 (Mo. App. E.D. 2003) ("Post-conviction proceedings are directed at defects that led to sentencing, not to claims of constitutional violations in the post-conviction proceedings themselves."); Johnson v. State, 4 S.W.3d 154, 156 (Mo. App. S.D. 1999) ("Post conviction proceedings are directed at defects which led to the original sentencing. . . . [A postconviction relief] motion is not to be used to attack irregularities in the [postconviction] evidentiary hearing itself." (cleaned up)); Robinson v. State, 778 S.W.2d 811, 812 (Mo. App. E.D. 1989) (movant's claim that the circuit court erroneously refused to allow movant to testify at the postconviction evidentiary hearing "is not available to movant in a [postconviction relief] motion"); Abel v. State, 737 S.W.2d 487, 488 (Mo. App. E.D. 1987) (refusing to address claims that the circuit court erroneously refused to order a trial transcript for the movant's use during postconviction proceedings, and that the court improperly questioned witnesses at the evidentiary hearing; declaring that a motion for postconviction relief "is available to defendant to provide a means for attacking his conviction, not to allege irregularities in a [postconviction] hearing").

4 Contrary to the statements in Holman and related cases, the Missouri Supreme Court, and this Court, have repeatedly addressed claims that a circuit court violated procedural rules in postconviction proceedings. Indeed, the Supreme Court has decided, on the merits, a movant's claims that a circuit court made erroneous evidentiary rulings during a postconviction proceeding – the precise issue Holman suggests is unreviewable. In Smulls v. State, 71 S.W.3d 138 (Mo. 2002), the Supreme Court discussed in detail a movant's claims that the circuit court erroneously excluded a variety of evidence the movant had sought to introduce at a postconviction hearing to prove that the trial judge harbored racial bias. Id. at 147-50. The Court also addressed on the merits movant's claims that the circuit court had erroneously denied the movant discovery necessary to prove the racial bias claim, id. at 150-51, and that the court had improperly admitted evidence of the trial judge's unbiased character. Id. at 151. Smulls is directly contrary to Holman's suggestion that a movant cannot challenge a circuit court's evidentiary rulings in a postconviction appeal. More broadly, Holman and related cases seem to suggest that, in an appeal following the denial of postconviction relief, this Court may only consider arguments which directly challenge the movant's underlying convictions or sentences. Yet this Court, and the Missouri Supreme Court, have repeatedly addressed claims of procedural irregularities during postconviction proceedings – even though the procedural defects did not directly undercut the movant's criminal convictions or sentences. Where the appellate courts have found that procedural errors occurred which materially affected the postconviction

5 proceedings, they have reversed the denial of postconviction relief, and remanded for further proceedings. Examples of such procedural reversals include: o Where the circuit court denied relief without an evidentiary hearing, even though the movant's postconviction claims were not clearly refuted by the record; 1

o Where the circuit court failed to make adequate factual findings supporting its denial of postconviction relief; 2

o Where the circuit court denied the relief requested in a pro se motion for postconviction relief, without appointing counsel to represent the movant; 3

o Where the movant was "abandoned" by appointed counsel who failed to comply with the obligations imposed by Rules 24.035(e) and 29.15(e); 4 and o Where the circuit court denied postconviction relief on the basis that a movant's motion was an improper second, successive motion. 5

These cases disprove the claim that "irregularities in the post-conviction proceeding itself" cannot be considered in an appeal from the denial of postconviction relief. Brock, 242 S.W.3d at 433.

1 See, e.g., Webb v. State, 334 S.W.3d 126, 130-31 (Mo. 2011); State v. Driver, 912 S.W.2d 52, 55-56 (Mo. 1995); Kelley v. State, 618 S.W.3d 722, 739-44 (Mo. App. W.D. 2021). 2 See, e.g., Trapp v. State, 696 S.W.3d 890, 894-97 (Mo. App. E.D. 2024); Escalona v. State, 695 S.W.3d 104, 106-08 (Mo. App. W.D. 2024); Johnson v. State, 210 S.W.3d 427, 431, 434 (Mo. App. S.D. 2006). 3 See, e.g., Randolph v. State, 608 S.W.3d 785, 787 (Mo. App. E.D. 2020); Naylor v. State, 569 S.W.3d 28, 32 (Mo. App. W.D. 2018); Haynes v. State, 553 S.W.3d 885, 886 (Mo. App. S.D. 2018). 4 See, e.g., State v. White, 873 S.W.2d 590, 598-600 (Mo. 1994); Luleff v. State, 807 S.W.2d 495, 497-98 (Mo. 1991); Sanders v. State, 807 S.W.2d 493, 495 (Mo. 1991). 5 McKay v. State, 520 S.W.3d 782 (Mo. 2017).

6 Rules 24.035 and 29.15 specify numerous procedures which must be followed in the litigation of claims for postconviction relief. For example, the Rules contain timing requirements; pleading requirements; requirements for the appointment of counsel; requirements for the holding of evidentiary hearings; and requirements for the form of the circuit court's order deciding postconviction relief claims. In addition, Rules 24.035(a) and 29.15(a) specify that postconviction proceedings are "governed by the rules of civil procedure insofar as applicable," which includes rules permitting pretrial discovery. Smulls, 71 S.W.3d at 151; State v. Ferguson, 20 S.W.3d 485, 504 (Mo. 2000). Moreover, as Smulls makes clear, evidentiary rules (such as rules of relevance, hearsay, witness competence, and authentication of documents) apply in postconviction hearings. A circuit court's failure to follow the procedural rules applicable to postconviction proceedings is reviewable on appeal, since departures from required practice may establish that "the findings and conclusions of the trial court [denying relief] are clearly erroneous," Rules 24.035(k), 29.15(k), and that reversal is accordingly required. I see no reason why a circuit court's failure to follow required procedural rules should be immune from appellate review in this context, unlike in any other category of state-court litigation. Holman cites no authority for its suggestion that evidentiary rulings in postconviction proceedings are unappealable. The other cases which have suggested that procedural issues cannot be considered in postconviction appeals rest on a shaky foundation. The first case to hold that procedural errors cannot be considered in postconviction appeals was Abel v. State, 737 S.W.2d 487, 488 (Mo. App. E.D. 1987). Abel spawned the line of authority which includes

7 Robinson, 778 S.W.2d 811, 812; Johnson, 4 S.W.3d 154, 156; Solis, 119 S.W.3d 172, 175; Brock, 242 S.W.3d 430, 433; and ultimately Mayes, 349 S.W.3d 413,

Abel, 737 S.W.2d at 488, relies on a single case to support its assertion that the predecessor to Rules 24.035 and 29.15 "is available to defendant to provide a means for attacking his conviction, not to allege irregularities in a hearing under that same rule": Neal v. State, 569 S.W.2d 388, 389 (Mo. App. E.D. 1978). But Neal addresses a different question: whether a movant could file a second postconviction relief motion to claim that the movant received ineffective assistance of appointed counsel in his first postconviction relief motion. In this context, Neal stated that "Rule 27.26 [the predecessor to Rules 24.035 and 29.15] is intended to provide a means for attacking a conviction in a criminal proceeding, and 'is not applicable to any alleged irregularity in a hearing under that same rule.'" Id. (quoting Crosswhite v. State, 438 S.W.2d 11, 12 (Mo. 1969)). Crosswhite, likewise, involved a second postconviction relief motion, which sought to challenge procedural irregularities in the movant's first postconviction relief proceeding. Although Crosswhite and Neal hold that a second, successive postconviction relief motion cannot be used to allege procedural errors in an earlier postconviction relief proceeding, they do not address the question here: whether a movant can challenge procedural errors committed by a circuit court in a postconviction relief proceeding, in an appeal which is part of that very same proceeding. Not only is Abel contrary to numerous Missouri Supreme Court

8 cases which have addressed procedural questions in postconviction appeals; it also relies on inapposite authority to reach its erroneous conclusion. Conclusion A movant is entitled to argue for reversal of the denial of postconviction relief based on procedural errors which occurred during proceedings in the circuit court. Cases suggesting that procedural issues are categorically unreviewable in postconviction appeals are wrong, and should not be followed. _________________________ Alok Ahuja, Judge