author: Mary R. Russell, Judge. RICHARD B. TEITELMAN, Judge,

text:
    In the Interest of H.L.L., a child under seventeen years of age. T.L., Appellant, v. Greene County Juvenile Office, Respondent.
    No. SC 86788.
    Supreme Court of Missouri, En Banc.
    Dec. 20, 2005.

      John E. Kelly, Springfield, for Appellant.
    James R. Royce, William C. Prince, Springfield, for Respondent.
    Kayla Vaughan, Chris E. Rollins, St. Louis, for Amicus Curiae.
   Mary R. Russell, Judge.

T.L. appeals from a judgment of the juvenile division of the Circuit Court of Greene County overruling his motion for a new trial after the court terminated his parental rights to H.L.L. Although he does not complain about service of process, he alleges that he received no notice of the termination hearing and was denied due process of law. After an opinion by the Court of Appeals, Southern District, this Court granted transfer. Mo. Const, art. V, sec. 10. The judgment is affirmed because the court did not abuse its discretion in overruling T.L.’s motion for a new trial.

The juvenile office filed a petition to terminate T.L.’s parental rights to H.L.L. Summons was issued to the sheriff of McClennon County, Texas, for personal service on T.L. at 1609 Spring Street # 93, Waco, Texas. The summons indicated that there would be a hearing on the petition on February 25, 2004. The return of service was filed showing that service was made on December 30, 2003. The return verified that a copy of the summons, petition, and a juvenile/custodian’s rights form was left with a family member over the age of fifteen years at the Waco address.

The hearing referred to in the summons — a service in compliance hearing— was held on February 25, and the Court found that service had been made on all parties as required by section 211.453, RSMo 2000. Although T.L. was not present at the hearing, the court set a termination of parental rights hearing for March 22. The juvenile office mailed a notice of the termination hearing to T.L! at the Waco address on March 1, indicating that the hearing was set for March 22. The juvenile office also mailed a “termination summary” to T.L., at the Waco address, on March 4, which indicated that the termination hearing was set for March 22. These letters were not returned as undeliverable.

At the termination hearing on March 22, the juvenile’s guardian ad litem, a deputy juvenile officer and her attorney, a representative from the Children’s Division, and a court-appointed special advocate appeared. T.L. did not. Those appearing adduced evidence, and the trial judge announced that the parental rights of both parents would be terminated.

On April 14, at T.L.’s request, the trial court appointed an attorney to represent him for purposes of an appeal. Two weeks later, the trial court issued findings of fact and conclusions of law, which included findings that T.L. was properly served with the summons, as well as a copy of the petition to terminate parental rights, and a notice of the termination hearing.

T.L. filed a motion for a new trial, alleging that he had not received any notice of the termination hearing. This motion was denied without an evidentiary hearing. He filed a second motion for a new trial, which included a notarized letter stating that his address was 1609 Spring St., # 93, Waco, Texas, and attesting that he had not received notice of the termination hearing. Additionally, T.L.’s attorney filed suggestions and his own affidavit, which indicated that a letter he had mailed to T.L. at 1609 Spring St., Apt. 93, Waco, Texas, was returned marked “Addressee Unknown.” The motion court held a hearing on the second motion for a new trial and overruled the motion. T.L. now challenges this ruling.

The standard of review for an order denying a motion for new trial is abuse of discretion. Bowan v. Express Med. Transporters, Inc., 135 S.W.3d 452, 456 (Mo.App.2004). A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. McGuire v. Seltsam, 138 S.W.Sd 718, 720 (Mo. banc 2004). The denial of a new trial would be an abuse of discretion if it were based on findings not substantially supported by the record. Bowan, 135 S.W.3d at 456.

T.L. claims on appeal that the trial court erred in terminating his parental rights because he did not receive notice of the termination hearing, thus denying him due process of law. He does not challenge the service of the summons.

Although termination of parental rights involves a fundamental liberty interest, T.L. never complained about the service of the petition to terminate his parental rights at the trial court or even on appeal. To preserve a constitutional question for review in this Court, it must be raised at the earliest possible opportunity; the relevant sections of the Constitution must be specified; the point must be preserved in the motion for new trial, if any; and, it must be adequately covered in the briefs. State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). The sufficiency of the service of the summons has not been properly preserved for appellate review. As such, this Court need only consider whether the motion court denied T.L. his due process rights in overruling his motion for a new trial.

In termination of parental rights cases, due process requires that a parent be given “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” In the Interest of Loveheart, 762 S.W.2d 32, 34 (Mo. banc 1988).

The motion court was presented with competent evidence, in the form of an affidavit of a juvenile officer in response to T.L.’s motion for a new trial, that two notices of the termination hearing were sent to T.L. at 1609 Spring St., #93, Waco, Texas. These notices were not returned as undeliverable. Further, the motion court considered the notarized letter from T.L. attached to his second motion for a new trial, which indicated that he had been living at the above address.

The motion court’s findings were based on substantial evidence that T.L. received notice reasonably calculated to apprise him of the pending termination hearing and to give him the opportunity to present his objections. Its decision was not against the logic of the circumstances, nor was it so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. As such, the motion court did not abuse its discretion in overruling T.L.’s motion for a new trial. Its judgment is affirmed.

WOLFF, C.J., PRICE and LIMBAUGH, JJ., concur.

RICHARD B. TEITELMAN, J. dissents in separate opinion filed. LAURA DENVIR STITH and WHITE, JJ., concur in opinion of TEITELMAN, J.

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent.

This case is not a contract dispute. It is not a suit for damages. The interest involved is not simply financial or reputa-tional. Rather, the interest being adjudicated in this case is one of the oldest fundamental liberty interests recognized in our law; the right to be a parent to one’s child. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Given the fundamental interest at stake, cases involving the termination of parental rights are reviewed more closely than other civil cases. In the Interest of C.N.G., 109 S.W.3d 702, 705 (Mo.App.2003). A review of the record in this case raises serious doubts about the sufficiency of service and whether the alleged service gave adequate notice to T.L. of the pending termination of parental rights petition. Consequently, I would hold that the circuit court erred by not sustaining T.L.’s motion for a new trial.

I. Service of Process

Service of process is a prerequisite to personal jurisdiction, and a judgment entered against a party without proper service on that party is void for lack of jurisdiction. Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000). Actual notice is insufficient to confer jurisdiction. Id. T.L. was allegedly served by leaving a copy of the summons at T.L.’s “usual place of abode” with “some person of his or her family over the age of 15 years.” The purported service on T.L. fails to comply with the applicable procedural rules.

A review of the legal file reveals at least two service defects. First, the return.of service does not identify the individual upon whom the summons was served. Although there is a pre-printed line on the return indicating that the summons was left with “some person of [T.L.’s] family over the age of 15 years,” this critical fact cannot be verified because the line indicating the name of the person served was left blank. A return of service should not be deemed conclusive if it is incomplete and omits critical information, especially when the civil action instituted by the summons implicates fundamental constitutional rights. Speculative inferences of constructive notice should not suffice in termination of parental rights cases.

Second, Rule 54.14 requires that a person must be authorized by law to serve process. Rule 54.20 further requires that the officer making out of state service make an affidavit before the clerk or judge of the court of which affiant is an officer stating the time, place and manner of such service, the official character of the affiant, and the affiant’s authority to serve process in civil actions within the state or territory where such service was made. No such affidavit is attached to the return or included anywhere else in the record. On the record before this Court, it appears that the rules for out-of-state service were not followed.

II. Notice

In addition to the lack of compliance with the rules for service of process, the summons allegedly served upon T.L. fails to provide adequate notice that T.L. is subject to the imminent termination of his parental rights. The summons advises only that a petition has been filed alleging that the child is subject to juvenile division jurisdiction for the reasons set forth in the petition. However, the petition is not attached to the summons and did not advise T.L. that the “petition” referred to was not simply the underlying abuse and neglect case, but instead was aimed at forever terminating his parental rights. Further confusion stems from the fact that the Rights Form attached to the summons states that any order will affect the child and his custodian. T.L. was not the custodian. On this record, it is difficult to conclude with any confidence that T.L. was adequately notified of the imminent termination of his parental rights.

The majority opinion correctly notes that T.L.’s appointed counsel did not raise service issues in his pleadings. The issues should have been raised. However, given the fundamental liberty interests at stake and the service deficiencies that are apparent on the face of the record, it would be a manifest injustice to sweep aside these concerns based upon the technical failure of counsel to raise obvious issues. Holding otherwise renders the parent-child relationship and the attendant fundamental due process rights subservient to economy and forces parents, who justifiably rely upon counsel’s advice and expertise, to live with the consequences. In this ease, due process requires that T.L. have an opportunity to be heard.

I would reverse the judgment overruling T.L.’s motion for a new trial.

      . All statutory references are to RSMo 2000 unless otherwise indicated.

      . Although amicus curiae raises constitutional issues concerning the sufficiency of service on T.L., these claims of error were never raised by T.L. in his motion for a new trial or his brief on appeal.

      . Rule 54.20(b) provides in part that:
      (1) Every officer to whom summons or other process shall be delivered for service outside the state shall make an affidavit before the clerk or judge of the court of which affiant is an officer or other person authorized to administer oaths in such state stating the time, place and manner of such service, the official character of the affiant, and the affiant's authority to serve process in civil actions within the state or territory where such service was made. The court may consider the affidavit or any other evidence in determining whether service has been properly made.

      . Rule 54.22(b), for instance, permits the party served, to impeach the return of service and allows the circuit court to set aside or modify the judgment.


source: Caselaw Access Project

author: PER CURIAM. RICHARD B. TEITELMAN, Judge, RONNIE L. WHITE, Judge,

license: Public Domain

text:
    STATE ex rel. ST. LOUIS POST-DISPATCH, LLC, Relator, v. The Honorable John F. GARVEY, Respondent.
    No. SC 86952.
    Supreme Court of Missouri, En Banc.
    Dec. 20, 2005.

      Joseph A. Martineau, Brandy B. Barth, Benjamin A. Lipman, St. Louis, for Relator.
    Gerald R. Ortbals, Jane E. Dueker, John R. Phillips, St. Louis, for Intervenor.
    Anthony J. Sestric, St. Louis, for Respondent.
   PER CURIAM.

The issue in this case is whether the St. Louis Post-Dispatch, LLC, and Multimedia KSDK, Inc. Newsehannel 5 are entitled to a writ of prohibition preventing the Honorable John F. Garvey (respondent) from closing the proceedings in a juvenile case pursuant to section 211.171, RSMo Supp.2004. After an opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const, art. V, sec. 10.

FACTS

Respondent is presiding over a juvenile case in which the juvenile is alleged to have committed acts that would be murder in the first degree if committed by an adult. The juvenile filed a motion to close the proceedings to the public. Respondent sustained the juvenile’s motion over the objections of the Post-Dispatch and KSDK. The Post-Dispatch and KSDK filed a petition for a writ of prohibition.

The Post-Dispatch and KSDK argue that section 211.171.6 permits public access to all stages of juvenile cases in which the juvenile is alleged to have committed a class A or B felony. Respondent maintains that section 211.171.1, which sets forth the procedure to be followed “at the hearing,” limits public access to the certification hearing in which it is determined whether the juvenile will be charged as an adult.

ANALYSIS

I. Standing

A writ of prohibition may be issued when a party raises an important constitutional issue and has no other adequate legal remedy to pursue the issue. State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 712 (Mo.App.2000). Although neither the Post-Dispatch nor KSDK are parties to the underlying juvenile case, each has standing to seek a writ because the right of access sought to be protected is one owing to the entire public, thus reducing the interest necessary to confer standing. See Pulitzer Publishing Co. v. Transit Casualty Co., 43 S.W.3d 293, 299 (Mo. banc 2001).

II. Section 211.171

In section 211.171.6, the General Assembly provided that the best interest of a juvenile charged with a crime is usually served by limiting public access to the proceedings. The statute provides that:

The general public shall be excluded and only such persons admitted as have a direct interest in the case or in the work of the court except in cases where the child is accused of conduct which, if committed by an adult, would be considered a class A or B felony; or for conduct which would be considered a class C felony, if the child has previously been formally adjudicated for the commission of two or more unrelated acts which would have been class A, B or C felonies, if committed by an adult. (Emphasis added).

Section 211.171.6 establishes a rule generally excluding the public from all juvenile proceedings, while specifically exempting from mandatory closure those cases in which the juvenile is accused of conduct that would be a class A or B felony. Although section 211.171.1 refers to the procedure to be followed “at the hearing,” section 211.171.6 deals specifically with public access to the proceedings and contains no language limiting access to “the hearing” or the “certification hearing.” Section 211.171.6 refers instead to “cases” in which the child is accused of conduct that would be a class A or B felony. The statute does not limit public access to a particular phase of the proceedings. It provides for access to the entire case.

CONCLUSION

The juvenile in this case is charged with conduct that, if committed by an adult, would constitute a class A felony. Consequently, the general rule requiring the exclusion of the public from juvenile proceedings is not applicable in this case.

A peremptory writ of prohibition shall issue directing the respondent to vacate his March 3, 2005, order sustaining the motion to close the hearings in the underlying cause and prohibiting him from closing any other hearings in said cause except as provided by law.

WOLFF, C.J., LAURA DENVER, STITH, PRICE, LIMBAUGH and RUSSELL, JJ., concur; RICHARD B. TEITELMAN, J., concurs in separate opinion filed; WHITE, J., concurs in opinion of RICHARD B. TEITELMAN, J.; WHITE, J., concurs in separate opinion filed.

RICHARD B. TEITELMAN, Judge,

concurring.

I concur and write separately to emphasize that section 211.171.6 does not prohibit the circuit court from restricting public access to the case. The circuit court retains the discretion to limit public access to the proceedings to the extent that such access is contrary to the best interests of the juvenile or will impede the provision of a fair trial.

In pertinent part, section 211.171.6 provides that the “public shall be excluded ... except in cases where the child is accused of conduct which, if committed by an adult, would be considered a class A or B felony. ...” As the per curiam opinion notes, the statute establishes a rule generally excluding the public from all juvenile proceedings, while specifically exempting from mandatory closure those cases in which the juvenile is accused of conduct that would be a class A or B felony if committed by an adult. However, it is important to emphasize that the specific exemption of a certain class of cases from mandatory closure does not necessarily entail mandatory public access. The negative does not prove the positive.

This case is being adjudicated within the juvenile courts established by chapter 211, RSMo 2000. The overall purpose of chapter 211 is to protect and safeguard the best interests of the juvenile, and the statute must be liberally construed to realize that purpose. Section 211.011. Accordingly, section 211.171.6 does not eliminate the circuit court’s discretion to limit or exclude public access based upon a finding that the best interests of the juvenile would be served by such limitation or exclusion. Additionally, the right of the general public to have access to the proceedings must always be balanced by the defendant’s right to a fair trial. State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 712 (Mo.App.2000). I would hold that the respondent retains the discretion to close the proceedings based upon a finding either that such closure would protect the juvenile’s best interests or that public access would prejudice the juvenile’s right to a fair trial.

RONNIE L. WHITE, Judge,

concurring.

I concur with the principal opinion. I write separately only to emphasize the last five words of the opinion, “except as provided by law,” that acknowledges the wisdom of our legislature in its astute drafting of section 211.171. The legislature was wise, because while providing an exception to the normal mandatory public exclusion in juvenile matters in instances where a juvenile faces severe felony charges, it correctly did not make the application of that exception mandatory in all instances, thereby abridging the defendant’s constitutional right to a fair trial.

“While it is clear the public has a right of access to criminal proceedings, the Supreme Court has held that right is qualified and must be carefully balanced with the defendant’s absolute Sixth Amendment right to a fair trial.” “[E]ven when a right of access attaches, it is not absolute.” ‘While open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity.” “In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access.”

“To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity,” and he or she “may surely take protective measures even when they are not strictly and inescapably necessary.” Publicity concerning pretrial hearings, in particular, poses special risks of unfairness because that may “influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.” “Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun.”

It should be noted that that section 211.011, entitled, “Purpose of law — how construed,” provides:

The purpose of this chapter is to facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court. This chapter shall be liberally construed, therefore, to the end that each child coming within the jurisdiction of the juvenile court shall receive such care, guidance and control as will conduce to the child’s welfare and the best interests of the state, and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to that which should have been given him by them. The child welfare policy of this state is what is in the best interests of the child.

Our legislature was wise to retain the trial court’s discretion to close any proceedings when required for the protection of the juvenile’s Sixth Amendment right to receiving a fair trial. The trial court has an affirmative duty to close proceedings when justice so demands and must do so in conformity with the child welfare policy of this state when the best interests of the child so require.

      . State ex rel. Pulitzer, Inc. v. Autrey, 19 S.W.3d 710, 713 (Mo.App.2000).

      . Press-Enterprise Co. v. Superior Court of California for County of Riverside, 478 U.S. 1, 9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986).

      . Id.

      . Gannett Co. v. DePasquale, 443 U.S. 368, 378-379, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

      . Id.

      . Id.


author: PER CURIAM.

text:
    Terry TRAVIS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 86140.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Terry Travis, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Joseph M. MURCHISON, Appellant.
    No. ED 85682.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 27, 2005.

      Margaret M. Johnston, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P. J., CLIFFORD H. AHRENS, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Joseph Murchison (“Defendant”) appeals from the judgment entered following the verdicts of a jury, which convicted him of one count of forcible rape in violation of section 566.030 RSMo (2000), one count of forcible sodomy in violation of section 566.060, and one count of tampering with a victim in violation of section 575.270. The trial court sentenced Defendant to twenty years’ imprisonment on each count, with each the sentences to run concurrently.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Terrell A. JOHNSON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85905.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Scott Thompson, St. Louis, MO, for appellant.
    Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Terrell A. Johnson, appeals from the judgment denying on the merits without an evidentiary hearing his Rule 24.035 motion for post-conviction relief. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s judgment is based on findings of facts and conclusions of law that are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Alfred R. McMULLAN, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 85948.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 27, 2005.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Alfred R. McMullan (“Movant”) appeals from the motion court’s judgment denying his Rule 29.15 post-conviction motion after an evidentiary hearing. Movant was convicted of second degree murder, Section 565.021 RSMo 2000. Movant was sentenced to thirty years’ imprisonment. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App.E.D.2001). An extended opinion would have no precedential value. We have furnished the parties with a memorandum for their information only, setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    Dolores BELPULSI, Appellant, v. CHARLES SCHMITT & COMPANY and Division of Employment Security, Respondents.
    No. ED 85976.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 27, 2005.
    Dolores Belpulsi, St. Louis, MO, for appellant acting pro se.
    Burton H. Shostak, DJ Westling, Moline Shostak & Mehan, LLC, St. Louis, MO, for respondent Charles Schmitt & Co.
    Alan J. Downs, Jefferson City, MO, for respondent Missouri Department of Labor and Industrial Relations Comm. Division of Employment Security.

      Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J. and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Dolores Belpulsi (“Claimant”), appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) in favor of Respondents, Charles Schmitt & Company (“Employer”) and Division of Employment Security (“the Division”). The Commission adopted the decision of the Division’s appeals tribunal affirming a deputy’s determination that Claimant is not entitled to unemployment benefits because she voluntarily quit her job with Employer without good cause attributable to her work or Employer. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the Commission’s decision pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.


text:
    Davida Linn (Scott) KELLEY, and Brandee Jolynn Scott, A Minor Child by her Next Friend, Davida Linn (Scott) Kelley, Plaintiffs/Respondents, v. Barry David MOORE, Defendant/Appellant.
    No. ED 86028.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 27, 2005.
    Davida Linn Kelley, Hannibal, MO, pro se appellant.
    Christopher Todd Ahrens, Hannibal, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Barry David Moore (Father) appeals from the trial court’s judgment denying his Motion to Modify the Judgment and Decree of Paternity and Motion for Family Access Order. We have reviewed Father’s brief and the record on appeal and conclude that the trial court’s judgment is not manifestly erroneous, Abernathy v. Meier, 45 S.W.3d 917, 922 (Mo.App. E.D.2001), nor is it against the weight of the evidence. Miers v. Miers, 53 S.W.3d 592, 595 (Mo.App. W.D.2001). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . Davida Linn (Scott) Kelley, the mother and respondent in this case, did not file a responsive brief.


author: KENNETH W. SHRUM, Presiding Judge.

text:
    Larry SCHAAL, Movant-Respondent, v. STATE of Missouri, Respondent-Appellant.
    No. 26798.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 30, 2005.

      Dean G. Dankelson, Prosecuting Attorney, Nathaniel D. Dally, Assistant Prosecuting Attorney, Joplin, for appellant.
    Mark A. Grothoff, Columbia, for respondent.
   KENNETH W. SHRUM, Presiding Judge.

Larry Schaal (“Movant”) sought post-conviction relief via a Rule 29.15 motion after he was convicted of rape (§ 566.030.3). After an evidentiary hearing, the motion court made findings of fact and reached conclusions of law that reproduced essentially what Movant’s post-conviction lawyer alleged in an amended Rule 29.15 motion. With that as its basis, the motion court vacated Movant’s conviction and sentence and ordered a new trial. The State appeals. This court reverses and remands in part.

FACTS

Movant was convicted of raping a child (“Victim”) when she was seven years old. He was first convicted of this crime in October 1987 and sentenced to a thirty-year prison term. The first case was affirmed in State v. Schaal, 806 S.W.2d 659, 669 (Mo.banc 1991), as was the denial of his initial post-conviction motion.

Movant then sought habeas corpus relief in federal district court. The district court held that the State’s use of a videotaped interview of Victim in Movant’s 1987 trial violated his Confrontation Clause rights and ordered a new trial. This decision was affirmed in Schaal v. Gammon, 233 F.3d 1103 (8th Cir.2000).

Movant’s new trial began in June 2001, nearly fifteen years after Movant was first charged. By then, Victim was twenty-two years old. She testified that in 1986, Mov-ant was dating Victim’s mother (“Mother”). Initially, Movant was friendly toward Victim and acted as a “father figure,” but Victim ultimately began to feel uncomfortable with Movant and was afraid of him. Because of this, Victim objected when Mother proposed leaving her with Movant at his house on the day of the rape. She was left there, however, and after she bathed, she went to the living room to get her pajamas. She had wrapped herself in a towel and when she would not remove the towel as Movant instructed, he (Movant) took away the towel and raped her.

In the June 2001 trial, defense counsels’ efforts were to plant reasonable doubt in the jurors’ minds about the crime’s occurrence. This was done in two ways. First, they focused on inconsistencies in Victim’s testimony, namely, discrepancies between her at-trial testimony in 2001, her 1986 and 1987 statements to Mother and DFS workers, and her 2001 deposition testimony. Second, they adduced evidence that Victim and Mother became angry and upset with Movant when, shortly before the rape allegation surfaced, Movant ended the relationship between Mother and him. Via the latter, the defense implicitly suggested there was a revenge motive and that Victim made up the rape story, either acting on her own or at Mother’s suggestion. As one defense lawyer explained it, “My strategy • • • [was] to get an acquittal[ ]” by showing “fabrication.”

The jury convicted Movant and he was sentenced as a persistent sexual offender to thirty years’ imprisonment. The resultant judgment was affirmed in State v. Schaal, 83 S.W.3d 659 (Mo.App.2002).

Movant then filed a timely motion per Rule 29.15 seeking post-conviction relief. A court-appointed lawyer filed an amended motion, alleging Movant’s criminal lawyers were ineffective for failing to call certain witnesses and use their testimony to impeach Victim’s credibility. The motion also alleged that his defense lawyers were constitutionally ineffective in their cross-examination of Victim; they did not adequately demonstrate the inconsistencies in her several accounts of the rape. Finally, Movant’s post-conviction lawyer incorporated part of Movant’s pro se motion in the amended motion.

After an evidentiary hearing, the motion court ruled favorably to Movant, vacated the sentence and judgment, and ordered a new trial. In doing so, the motion court purported to fulfill its duty to make findings and conclusions on Movant’s “failure to impeach” allegations by essentially reproducing what Movant had alleged in his amended Rule 29.15 motion (at least as to all but one of those claims). As to Mov-ant’s other allegations, the court disposed of them thusly: “[MJovant asserts other grounds which this court finds are meritorious. Given the Court’s findings above, these paragraphs are not discussed at length.”

This appeal by the State followed.

STANDARD OF REVIEW

In a post-conviction case, an appellate court must affirm the rulings of the motion court unless it appears that its findings, conclusions, and judgment are “clearly erroneous.” Rule 29.15(k); Johnson v. State, 102 S.W.3d 535, 537[1] (Mo. banc 2003). A motion court’s findings and conclusions are clearly erroneous if, after a review of the entire record, the reviewing court is left with the definite and firm impression that a mistake has been made. Id. at 537-38[2]. These standards apply whether the movant or the state appeals. Laney v. State, 584 S.W.2d 411, 413 (Mo.App.1979).

To prevail on a claim of ineffective assistance of counsel, a movant must show: First, that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, second, that counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). This prejudice is shown where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.

If a movant fails to satisfy either the performance or the prejudice prong of the Strickland test, then an appellate court need not consider the other, and the mov-ant’s claim must fail. Vogel v. State, 31 S.W.3d 130, 135[3] (Mo.App.2000). Review of the motion court’s judgment focuses upon whether the alleged error caused Movant to suffer a genuine deprivation of his right to effective assistance of counsel, such that our confidence in the fairness of the trial is undermined. Wolfe v. State, 96 S.W.3d 90, 93[6] (Mo.banc 2003).

DISCUSSION AND DECISION

The State’s first point relied on maintains the motion court clearly erred when it ruled Movant’s trial lawyers were constitutionally ineffective for not calling certain witnesses and by not adequately cross-examining Victim. The essence of the State’s argument is that Movant’s lawyers clearly made acceptable trial strategy choices regarding these matters and that, in any event, Movant was not prejudiced by the alleged deficient conduct.

We start our review mindful that “the findings of fact and conclusions of law of the motion court are presumptively correct.” State v. Gilpin, 954 S.W.2d 570, 575[1] (Mo.App.1997) (citing Wilson v. State, 813 S.W.2d 833, 835 (Mo.banc 1991)). On the other hand, the presumption of “correctness” is offset here by the motion court’s questionable practice of making findings of fact and conclusions of law by merely repeating whatever Movant alleged in his Rule 29.15 motion.

In pertinent part, Rule 29.15(j) mandates that a motion court “issue findings of fact and conclusions of law on all issues presented.” Early on, the Supreme Court of Missouri made it clear that “[s]pecific findings and conclusions are contemplated and required” in post-conviction cases, and only “if that is done can the appellate court make the kind of review contemplated” for post-conviction cases. Fields v. State, 572 S.W.2d 477, 483 (Mo.banc 1978). An order that purports to comply with Rule 29.15(j) by merely referencing one of the parties’ pleadings, although not per se clearly erroneous, is of doubtful utility. Leady v. State, 714 S.W.2d 221, 222[1] (Mo.App.1986).

In another context where the propriety of a court using a party’s proposed findings and conclusions was addressed, it has been said that so “long as the court thoughtfully and carefully considers the parties’ proposed findings and agrees with the content, there is no constitutional problem with the court adopting in whole ... the findings of fact and conclusions of law drafted by one of the parties.” State v. Kenley, 952 S.W.2d 250, 261[4] (Mo.banc 1997). It is axiomatic, however, that the findings and conclusions must be supported by the evidence. Id.

Point I: Failure to Call Witness Brennfoerder

The State maintains, inter alia, that the motion court clearly erred when it found Movant’s criminal lawyers ineffective for failing to call Bonnie Brennfoerder as a witness. On that issue, Movant alleged and the motion court essentially found that

“Bonnie Brennfoerder would have testified if called that she and her husband visited movant and [Mother] with Kevin Kline [a preacher at a church attended by these persons] prior to the allegations being made in this case. Kevin recommended to them that they not marry, and Bonnie agreed. Movant also agreed that marriage was not a good idea. [Mother] became upset and stated she did not want the relationship to end. [Mother] expressed hurt and anger at movant and stated she was going to make movant ‘pay’ for not marrying her, Ms. Brennfoerder’s testimony would have supported movant’s desired defense theory that the alleged victim had been led to fabricate her allegations by her mother because mov-ant had ended any marriage plans. Movant provided Bonnie Brennfoerder’s name to counsel as a possible witness prior to movant’s trial, and Mrs. Brenn-foerder was willing and able to testify to the foregoing. No reasonable trial strategy could account for the failure to call Mrs. Brennfoerder. Reasonably competent counsel would have called Mrs. Brennfoerder to testify at movant’s trial. Had she done so, a reasonable probability existed of a different result at movant’s trial.” (Emphasis supplied.)

At the post-conviction hearing, Brenn-foerder was called as a defense witness. In relevant part, she testified to the following. At one time, she was a co-worker with Movant. At an undisclosed date, but before Movant was accused of the rape, Brennfoerder attended a meeting where the topic was “the future of the [dating] relationship” between Movant and Mother. Brennfoerder went to the meeting at the request of Kevin Kline, a preacher. Both Movant and Mother were present, as was Kline and Brennfoerder’s husband. Brennfoerder’s testimony included this:

“Q. [W]hat did you think the future of their relationship was?
“A. [by Brennfoerder] The relationship, to me, looked like it didn’t have a future, and it wasn’t probably good for them to be together.
“Q. Did you make any recommendations [to] that that end?
“A. At that point I thought it was — and I can’t remember exact words as to what I said at that moment, but they needed to break off and rethink things and see if their future was together, and it didn’t look like to me it should have been.”

Brennfoerder also testified that after expressing her opinion about the future of the relationship, Mother became “angry” and “upset,” specifically she appeared to be angry at Movant once he agreed that “marriage perhaps was not a good idea.” This information was given to Movant’s lawyers when they contacted Brennfoerder before Movant’s 2001 trial. Moreover, Brennfoerder was subpoenaed for Mov-ant’s 2001 trial, but his lawyers opted not to present her testimony.

By using Movant’s allegations as its findings, the motion court found, inter alia, “[Mother ] ... stated she did not want the relationship to end [ ]” and “she was going to make the movant ‘pay’ for not marrying her.” . From this, the motion court reasoned that this “testimony would have supported movant’s desired defense theory that the alleged victim had been led to fabricate her allegations by her mother because movant had ended any marriage plans.”

The clear error in this finding is that Brennfoerder’s testimony did not include what the motion court ascribed to her: Brennfoerder did not testify that Mother “stated she did not want the relationship to end,” nor did she testify Mother had said “she was going to make the movant ‘pay’ for not marrying her.” Although those findings are the cornerstone of Mov-ant’s allegations of what he claimed was his “desired defense theory,” they simply are not in the record. As such, Movant’s allegation and the trial court’s finding about his “desired defense theory” are clearly erroneous, as is the motion court’s conclusion that “a reasonable probability existed of a different result at movant’s trial” had Brennfoerder been called as a witness.

Moreover, by simply adopting Mov-ant’s conelusory allegation of prejudice, the motion court made no analysis and provided this court with no reasons for its conclusion that “a reasonable probability existed of a different result at movant’s trial” had Brennfoerder testified. Specifically, Movant never alleged nor did the motion court find that the jury could reasonably have inferred that Mother’s anger toward Movant would have somehow led to Victim fabricating a rape story. That was an essential but omitted element of Mov-ant’s claim regarding ineffectiveness for not calling Brennfoerder. Moreover, “we are not permitted to supplement the record by implication from the motion court’s ruling.” Clayton v. State, 164 S.W.3d 111, 115[3] (Mo.App.2005). “Absent findings explaining the motions court’s actions we cannot discern the reasons for the motion court’s decision and we are left with eon-elusory statements and nothing to review.” Id. We are left in the dark as to the reason for the motion court’s action and have been presented nothing of substance to review with regard to the prejudice prong of the analysis. See Holloway v. State, 764 S.W.2d 163, 165[2] (Mo.App.1989).

Even so, we need not include this issue as a part of what the motion court must address on remand. Cf. Clayton, 164 S.W.3d at 116. This follows because Brennfoerder’s testimony was merely cumulative of similar testimony from other witnesses, namely that sometime before Victim reported the rape, Mother had expressed anger and hurt at Movant for ending their relationship. See Williams v. State, 168 S.W.3d 433, 441[161] (Mo.banc 2005) (holding counsel not ineffective for deciding not to introduce cumulative evidence).

In sum, the motion court’s finding that there was a reasonable probability of a different result at Movant’s trial had Brennfoerder been called as a witness is clearly erroneous. Movant did not sustain his burden of proof as to this allegation. This part of the State’s point has merit and is granted.

Point I: Failure to Call Witness Conover

In another argument, the State maintains the motion court clearly erred when it found there was a reasonable probability of a different result at Mov-ant’s criminal trial if Marion Conover had been called as a witness. Movant had alleged Conover’s testimony was critical in that he could identify four hand-drawn pictures made by Victim in which Victim declared her love for Movant. As it did with most of Movant’s other allegations, the court dealt with the “Conover claim” by simply reproducing the relevant part of what Movant alleged in his motion. This reads as follows:

“At trial, alleged victim ... testified that she was relieved when her mother broke up with movant, and that she did not like movant the last month of the relationship before movant and [Victim’s] mother broke up. At her 2001 deposition, [Victim] identified three drawings declaring love for movant as drawings done by her, though she could not recall when they were done. Movant’s counselor Marion Conover testified at the evidentiary hearing that these drawings were given to him to relay to movant after the break-up of movant and [Victim’s] mother on November 2, 1986, and he presented it to movant during a counseling session on November 6, 1986. Reasonably competent counsel would have presented these cards at movant’s trial and called Marion Conover to establish the foregoing and to negate [Victim’s] trial testimony. Trial counsel identified no reasonable trial strategy [that] could account for the failure to do so. This Court finds that, had Mr. Con-over been called to testify to the foregoing, a reasonable probability would have existed of a different result at movant’s trial. Movant has sustained his burden on this allegation.”

The motion court’s conclusion on this is clearly wrong because of the absence of evidence about when the drawings were made. Victim testified at trial that when Mother began dating Movant, he (Movant) was her “friend;” that he took her out “for ice cream,” to the ‘Wal-Mart type store” and bought her “stuffed animals,” and was “like a father figure” to her. If Movant made the drawings and expressions of endearment during that earlier period, they would not have served to negate Victim’s at trial testimony about being relieved when her mother broke up with Movant and that she did not like Movant the last month of the relationship. The drawings would only have served to impeach Victim’s testimony about her dislike of Mov-ant if the drawings were made during the last month of the relationship between Movant and Mother.

To meet his burden of proving ineffective representation for failing to call Con-over, Movant had to allege and prove when Victim made the drawings as part of this ineffective assistance claim. He failed in both respects. Consequently, the trial court clearly erred when it found that there was a reasonable probability of a different outcome on Movant’s criminal trial if Conover had been called as a witness. This part of the State’s point has merit and is granted.

Point I: Failure to Adequately Cross-Examine Victim

Another allegation by Movant (which the motion court essentially repeated as its findings) was that Movant’s trial lawyers “unreasonably failed to demonstrate at trial the significant discrepancies in [Victim’s] trial testimony and previous deposition testimony as to how and when she got to movant’s residence before the alleged rape and what had been done with the towel she had been wearing.” The motion court found Movant had “sustained his burden on this allegation,” but did so without any specific mention of the prejudice prong or analysis thereof.

Proof that counsel’s alleged deficient performance prejudiced the defense was an essential element of Movant’s case, Strickland, 466 U.S. at 687-88, 104 S.Ct at 2064-65, and the absence of any prejudice analysis leaves nothing for our review. Holloway, 764 S.W.2d at 165[2]. As noted earlier, “we are not permitted to supplement the record by implication from the motion court’s ruling.” Clayton, 164 S.W.3d at 115[3]. The trial court clearly erred when it ruled Movant “sustained his burden” on the “deficient cross-examination of Victim” allegation without fully complying with Rule 29.15(j).

Since we cannot determine the reason for the motion court’s implicit finding that Movant was prejudiced by the alleged failure to more vigorously cross-examine Victim, the motion court shall, on remand, issue findings of fact and conclusions of law on this issue as required by Rule 29.15®.

Point I: Failure to Call Witness Joyce Smith

Another allegation by Movant (which the motion court essentially adopted verbatim) was that defense counsel was constitutionally ineffective for not calling Division of Family Services (“DFS”) worker Joyce Smith to testify at Movant’s criminal trial. Specifically, Mov-ant alleged and the motion court found:

“[Victim] testified at movant’s trial that she was sexually assaulted by movant when staying overnight at his residence in the fall of 1986.... Joyce Smith testified she was a social worker with Jasper County Family Services in 1987. She ... investigated the allegations against movant. Joyce Smith would have testified that the alleged victim’s mother told her that she never found blood or other discharge in the alleged victim’s underpants. At trial, [Victim] stated she had blood on her underwear which her mother found. [Victim’s] mother ... said she found bloody underwear the night after the alleged victim had spent the night at movant’s house. Ms. Smith’s testimony on this important point would have completely refuted the story of the state’s main witnesses. Ms. Smith’s report, which included the foregoing information, was included in the discovery provided to the defense- [H]ad Ms. Smith been called to testify to the foregoing, a reasonable probability would have existed of a different result at movant’s trial. Movant has sustained his burden on this allegation.” (Emphasis supplied.)

The State insists the trial court clearly erred in its decision on this issue. This court agrees.

First, the court’s characterization of Mother as one of “the state’s main witnesses” shows that this issue, (failure to call Smith as a witness), did not receive thoughtful and careful consideration. Mother was not called by the State as its witness. All of Mother’s testimony was proffered by Movant, including Mother’s account of (1) finding blood in Victim’s underwear after Victim stayed all night alone with Movant, and (2) what Victim ultimately told Mother about the rape.

Second, while it is true that the unof-fered evidence via Joyce Smith may have been admissible both for impeachment and as substantive evidence supportive of Mov-ant’s defense, the motion court clearly erred in its conclusion that Smith’s testimony would have “completely refuted the story of the state’s main witnesses.” (Emphasis supplied.) That simply is not true.

The central, controverted issue was whether Movant had sexual intercourse with Victim when she was age seven years. Regarding the rape, Victim testified that in the fall of 1986 (when she was age seven), Movant grabbed her, laid her on the floor, and “placed his penis inside my vagina” for “a couple minutes.” Mother’s account of what Victim ultimately told her (evidence Movant introduced) was consistent with Victim’s testimony at trial, namely, Mother testified Victim told her that as Victim entered the kitchen, Movant “made her take the towel off, and laid her on the floor ... and stuck his penis inside her.”

Contrary to what the motion court concluded, Smith’s testimony that Mother denied seeing blood in Victim’s underwear would not have completely refuted Victim’s testimony about the essential elements of the crime charged. Nor would Smith’s testimony have completely refuted Mother’s testimony about what Victim recounted to her in 1986 about the rape.

Third, Joyce Smith had no independent recollection of this incident when she was deposed September 29, 2008. Accordingly, she relied entirely on her December 5, 1986, report to refresh her recollection of what she was told in a November 18, 1986; interview of Mother, Victim, and Victim’s sister. When asked what Mother said in 1986 about Victim’s underwear, Smith answered: “According to my report I asked mom if she had seen anything, blood or a type of discharge, in the children’s underwear, and she indicated she had not, but I did not ask her if she actually did the children’s laundry. That was a big error on my part.” (Emphasis supplied.) Later in the deposition, Smith repeated that she failed to ask Mother about doing the laundry.

This testimony tended to mitigate or call into question the completeness of Smith’s investigation. It also tended to confirm defense counsel’s assessment of Smith, in that she “was a little hostile” to the defense. From the foregoing, we find additional confirmation that the motion court clearly erred when it ruled Smith’s testimony completely refuted the story of the State’s main witnesses.

Fourth, the jury knew there were testimonial discrepancies regarding Victim’s bloodied underwear. For instance, Victim testified during direct examination that when she got home after Movant had raped her, she hid her bloody underwear to keep Mother from seeing them and thinking something was wrong; that Mov-ant threatened to kill Mother if Victim told Mother about the rape. She testified that “it was a few weeks” before she told anyone about the rape, and she stopped associating with her friends because she felt different after the rape. In contrast, Mother testified that she noticed blood in Victim’s underwear “the next day” after Victim spent the night alone with Movant.

Similarly, Victim was cross-examined about testimonial discrepancies regarding her motive for hiding the underwear. The following is an example:

“Q. [To Victim] [J]ust a minute ago you told us you hid the underwear so your mom wouldn’t find it because you were afraid [Movant] would kill her. A couple weeks ago you told me that you weren’t scared if she found it, and she found it then. Can you tell us which is correct?
“A. I hid it at first and she found it, and it was in the laundry.
“Q. Were you afraid she would find it?
“A. I was afraid she would find it and think something was wrong.
“Q. So when you told me á couple of weeks ago that you were afraid, and you said no, that would be incorrect?
“A. Right.”

These and other discrepancies in Victim’s and Mother’s stories about bloody underwear diminished any favorable impact Smith’s testimony would have given Mov-ant’s defense and supports our belief that the motion court clearly erred in finding Smith’s testimony “completely refuted the story of the state’s main witnesses.”

Based on the foregoing, we find that Movant suffered no prejudice by the failure to call Smith as a witness at trial and testify to Mother’s statement. We hold there is no reasonable probability that the result of Movant’s criminal trial would have been different had this evidence been presented to the jury, and the motion court clearly erred when it ruled otherwise. This prong of the State’s point is granted.

Point I: Failure to Call Witness Greninger

In yet another argument, the State charges that the motion court clearly erred when it ruled that Movant’s criminal lawyers were ineffective for not calling Jan Greninger as .a witness at his criminal trial. Greninger was a DFS worker who interviewed Victim on December 4, 1986, about Movant’s abuse of Victim.

As before, the motion court purported to fulfill its Rule 29.15(J) duty to make findings and conclusions by adopting what Movant alleged regarding defense counsel’s failure to call Greninger. Specifically, Movant alleged and the court found:

“At trial [Victim] stated that movant had told her to take a bath and when she got out she was dressed only with a towel. She found movant in the kitchen wearing only shorts and socks. In a deposition a few weeks before trial, she said movant was wearing red shorts. She then said that shorts and boxers look alike to a seven year old child. Ms. Greninger ... testified that [Victim] told her that, when she left the bathroom and came into the kitchen, movant was wearing white bikini underwear and white socks with gold stripes. ([Victim] did not have a recollection of making such a statement at trial). Victim testified at trial that movant told her to take off the towel in the kitchen, and when she refused, he grabbed the towel and spun her. She told Ms. Greninger that movant had ‘started tickling her and he pulled the towel off [her] and told her she had a tick on her vagina. ([Victim] was not asked at trial about this prior statement).
“Victim testified at trial that once on the floor, movant placed one hand on her chest and took his shorts off with the other hand. Ms. Greninger testified that [Victim] told her that “he laid her on the floor [and] stood up and took his underwear off.” ([Victim] was not asked about this statement at trial.) [Victim] stated that she cried when mov-ant vaginally penetrated her because it hurt. Ms. Greninger testified [Victim] told her that she was more scared than hurt. ([Victim] did not recall making this statement at movant’s trial).
“[Victim] did not indicate at trial that she had resisted. At her 2001 deposition, she stated that she had not kicked movant. Ms. Greninger testified [Victim] told her that she had ‘kicked [mov-ant] and he pulled his penis out with his hand.’ ([Victim] was not asked about this inconsistency at trial).
“At trial, [Victim] said that after the intercourse she went in the bathroom and stayed there for a period after she dressed. She came out because movant said they needed to talk. When she did, movant had a gun and stated he would kill [Victim’s] mother if [Victim] told her mother what occurred. Ms. Greninger testified that, in her statement to her, [Victim] stated that movant, after removing his penis, ‘[threatened her saying “I’ll kill your mom if you tell.” He then got up and went to his bedroom and put on some underwear.’ [Victim] ‘went to the living room and put on her clothes.’ [Victim] was asked only about a portion of the foregoing at trial, but did not recall saying it.”

Having adopted Movant’s allegations as its findings of fact, the motion court then accepted the following conclusory allegations found in Movant’s motion: Victim’s statement to Greninger “substantially differed, from her trial and deposition testimony; ” that “treasonably competent counsel would have called Ms. Greninger to testify to the foregoing; ” and “had Ms. Greninger been called to testify to the foregoing a reasonable probability ... existed of a different result at movant’s trial.” (Emphasis supplied.)

We agree that Greninger’s testimony would have revealed some inconsistencies between what Victim told Greninger in 1986 and what she said in 2001. The motion court clearly erred, however, when it concluded that defense counsel was ineffective for not calling Greninger for the purpose of bringing the inconsistencies to the jury’s attention. To find on this record there was a reasonably probability that the trial result would have been different had Greninger been called was unreasonable and so clearly against the logic of the circumstances that it reflects a lack of careful consideration of the issue. Our review of the entire record has left this court with the definite and firm impression that the motion court made a mistake in this ruling.

First, although Greninger’s testimony would have established the inconsistencies listed, her testimony would necessarily have repeated and emphasized that Victim’s story about the essential elements of the crime was consistent and never changed; Movant “laid her on the floor” and “vaginally penetrated her” with his penis. This is a significant factor in any analysis of whether prejudice resulted from failing to call a witness. See State v. Parker, 972 S.W.2d 508, 511-12 (Mo.App.1998) (holding no prejudice on failure to impeach “more fully” with prior inconsistent statement because witness was steadfast and consistent on most important parts of testimony).

Second, the motion court clearly erred when it concluded that Movant’s defense could have been aided by proving Victim’s 1986 statement that she “was more scared than hurt” by Movant and then contrasting it with her 2001 testimony that she “cried when movant vaginally penetrated her because it hurt.” Assuming this inconsistency had been proven and brought to the attention of the jury, it could only have highlighted the trauma inflicted on Victim; when interviewed at age seven about the rape Victim’s most vivid impression was fear, whereas fifteen years later as an adult, the memory of physical pain was paramount in her mind.

Third, it was equally illogical and clearly erroneous for the motion court to conclude Movant’s defense would have benefited by showing (via Greninger) that in 1986 Victim said she “kicked [movant] and he pulled his penis out with his hand,” whereas her 2001 testimony was that she never kicked him (deposition), or she made no mention of resistance (at trial).

Assuming these inconsistencies had been proven and argued to the jury, it could only have hurt the defense. Testimony that Victim (at age seven) claimed she had kicked Movant while he was raping her would have clearly strengthened the State’s case. “ ‘The prior statement is always nearer and usually very much nearer to the event than is the testimony. The fresher the memory, the fuller and more accurate [any statement] is.’ ” Lindsay v. Mazzio’s Corp., 136 S.W.3d 915, 922 (Mo.App.2004) (quoting McCormick, Handbook of the Law of Evidence, § 251, at 745 (3d ed.1984)). The principle espoused by the Lindsay court takes on added significance here since Movant admitted to the jury (during questioning about her testimonial inconsistencies) that her memory was better in 1986 than at trial (2001).

Fourth, the trial court clearly erred when it found Movant’s lawyers ineffective for not calling Greninger to prove a discrepancy between Victim’s 2001 account of Movant’s threats to kill Mother and Victim’s 1986 statement on that subject. The analysis in the preceding paragraph is equally apropos here. It defies logic and reason to conclude that Movant’s defense would have been aided (much less successful) by proving that in 1986 (when Victim’s memory was admittedly better) she told Greninger that Movant threatened to kill Mother as he pulled his penis from her vagina, whereas in 2001 she testified Mov-ant threatened to kill Mother after Victim went to the bathroom and dressed. On this record, proving the discrepancy about when Movant threatened to kill Mother and arguing that discrepancy to the jury could only have hurt the defense. We are left with the definite and firm impression that the motion court made a mistake in its ruling on this issue.

Fifth, we have recounted verbatim the motion court’s findings to illustrate that most of the discrepancies cited as showing “ineffective assistance” are minor and insignificant. For instance, Greninger’s 1986 report quoted Victim as saying Mov-ant was wearing “white bikini underwear and white socks with gold stripes,” whereas at trial (some fifteen years later) Mov-ant testified he was wearing “shorts and socks.” This inconsistency was unimportant in this case. It also defies common sense and is clearly against the logic of the circumstances to say his defense would have been aided by proving that in 1986 Movant disrobed her by “tickling her and ... pull[ing] the towel off,” whereas in 2001 she testified “he grabbed the towel and spun her.”

Contrary to what the motion court found, Movant did not prove he was prejudiced by the failure to call Greninger as a witness. See, e.g., White v. State, 989 S.W.2d 887, 897 (Mo.banc 1997) (holding, “[m]any inconsistent statements are so insignificant as to be meaningless and others are so easily explainable as to not justify being presented at trial”); State v. Werneke, 958 S.W.2d 314, 319 (Mo.App.1997) (holding it is not uncommon for child sex abuse victims’ testimony to contain some variations, contradictions, and lapses in memory). The Wemeke court’s observation is particularly poignant here as this criminal case was tried fifteen years after the rape of a seven-year-old victim. Moreover, defense counsel did bring out and highlight many inconsistencies in Victim’s testimony, yet the jury convicted Movant after only fifteen minutes of deliberation. Cf. Black v. State, 151 S.W.3d 49, 58 (Mo. banc 2004) (holding the relative strength or weakness of the prosecution’s case is significant in deciding if any deficiencies in trial counsel’s performance was prejudicial).

In sum, the trial court clearly erred when it ruled that the failure to call witness Greninger was fatally prejudicial to Movant’s criminal trial. This prong of the State’s point has merit and is granted.

Point II: Findings and Conclusions on Pro Se Claims

In its judgment, the motion court addressed Movant’s claims from his pro se motion that were attached to his amended motion. The motion court found: “As additional claims from his pro se motion, in paragraphs 8-9(g)-(p), movant asserts other grounds which this court finds are meritorious. Given the Court’s findings above, these paragraphs are not discussed at length.”

Obviously, the motion court’s judgment on these claims does not comply with the dictates of Rule 29.15. Meaningful appellate review is premised upon sufficiently specific findings of fact and conclusions of law that respond to the movant’s claims. Day v. State, 143 S.W.3d 690, 692 (Mo.App.2004). A motion court cannot simply conclude that certain allegations of a Rule 29.15 have merit. To do so would thwart appellate review. Because the court’s judgment contains no findings of fact or conclusions of law on these issues, the judgment is reversed, and the case is remanded for the motion court to issue such findings and conclusions on Movant’s pro se claims. The court is free to hear additional evidence if it chooses.

The motion court’s judgment granting post-conviction relief to Movant is reversed and remanded in part. The case is remanded to the motion court for the limited purpose of issuing findings of fact and conclusions of law on (1) Movant’s allegation that his trial lawyers were ineffective for failing to adequately cross-examine Victim and (2) Movant’s pro se allegations attached to his amended motion. In all other respects, the motion court’s judgment is reversed.

GARRISON, J., and BATES, C.J., concur.

      . All rule references are to Supreme Court Rules (2005), unless otherwise stated. All statutory references are to RSMo (1986), unless otherwise shown.

      . The eight circuit court ordered Movant released from custody "unless the State com-menees a new trial within a reasonable time.” Id. at 1108.

      . Movant argues that the State's points relied on fail to comply with applicable briefing rules which preserve nothing for appellate review. This court agrees; however, we have decided to exercise our discretion pursuant to Rule 84.13. "Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 84.13(c). Further, we note that the Missouri Supreme Court has adopted the policy that, as a general rule, a case should be decided upon its merits rather than on technical deficiencies of a brief. Christeson v. State, 131 S.W.3d 796, 799 n. 5[6] (Mo.banc 2004). The State’s brief is not so deficient that it fails to give notice to this court or to Movant as to the issues presented, nor has the brief impeded a disposition on the merits. Id. at 802[7].

        . The court also clearly erred when it found that preacher Kline “recommended to them [Movant and Mother] that they not mariy.” Brennfoerder did not testify that Kline made such a recommendation, nor did Kline’s testimony at the criminal trial include such a statement. This is another example of the doubtful utility of the wholesale use of a mov-ant’s allegations as the basis for a motion court’s findings.

      . This "anger and hurt” evidence was cumulative in the same sense that the "drug addiction,” “prostitution,” and "reward” evidence was cumulative in Williams, 168 S.W.3d at 441.

      . Even a cursory reading of Conover’s testimony reveals the utter lack of value he would have provided to the defense. At one point, he claimed that Victim gave him the pictures. Later in his testimony, he claimed to have received the pictures from Kevin Kline, Mov-ant’s minister, to give to Movant. When asked if he knew when the pictures were drawn, Conover replied, “No. Not exactly.” In a deposition, Victim testified that they were "probably” done before the rape occurred because she liked Movant when he first began dating Mother.