ALAN HANELINE v. STATE OF MISSOURI (2026)

Alan Haneline (Movant) appeals from an order denying his amended Rule 29.15 motion to set aside his convictions for the following two counts: child molestation in the first degree; and child molestation in the fourth degree. See § 566.067; § 566.071.¹ Movant presents three points on appeal, alleging that the motion court clearly erred in denying claims that Movant received ineffective assistance of both trial and appellate counsel because: (1) trial counsel failed to object to the verdict-directing instructions and failed to request unanimity as to each count; (2) trial counsel failed to call Movant's wife (Wife) as a witness; and (3) appellate counsel failed to properly brief the State's failure to disclose expert witness testimony. Because the motion court's decision to deny relief after an evidentiary hearing was not clearly erroneous, we affirm.

Movant bore the burden of proving the grounds asserted in his post-conviction motion by a preponderance of the evidence. See Rule 29.15(i); McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012). Our review of the denial of a Rule 29.15 motion is limited to determining whether the motion court's findings of fact and conclusions of law are “clearly erroneous.” Rule 29.15(k); Flaherty v. State, 694 S.W.3d 413, 416-18 (Mo. banc 2024); McLemore v. State, 635 S.W.3d 554, 559 (Mo. banc 2021).

[A]n appellate court can overrule the motion court's judgment after an evidentiary hearing if it is based on: (1) a mistake of law, (2) a factual finding for which there was insufficient evidence, or (3) a factual finding for which there was sufficient evidence but which the appellate court, nevertheless, finds was clearly erroneous, i.e., the appellate court on the whole of the evidence is left with a definite and firm conviction that a mistake has been committed.

Flaherty, 694 S.W.3d at 418 (internal footnote omitted).

This Court presumes that the motion court's findings are correct. Id. at 416. An appellate court also “defers to the motion court's superior opportunity to judge the credibility of witnesses.” Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019) (internal quotation marks and citation omitted). The motion court is “entitled to believe all, part, or none of the evidence presented at the post-conviction hearing.” State v. Hunter, 840 S.W.2d 850, 863 (Mo. banc 1992). The following summary of facts has been prepared in accordance with these principles.

Factual and Procedural Background

Movant was indicted for acts that occurred between January 1, 2009 and December 31, 2016 (Count 1), and between December 31, 2016 and January 25, 2017 (Count 2). His step-granddaughter (Victim) first disclosed sexual abuse in January 2017. In her first forensic interview, she recounted multiple instances of Movant touching her genitals with his hand and mouth. At a second forensic interview the following year, Victim disclosed another incident involving oral sex and vaginal intercourse.

Movant was tried by a jury in October 2021. At trial, Victim testified about several incidents of sexual abuse, including intercourse she had not originally remembered. In Movant's defense, he testified that everything Victim said about sexual abuse was “a lie” and that she had motive to lie because her mother owed Movant and his wife $25,000. Movant was found guilty of both Counts 1 and 2. On January 5, 2022, Movant was sentenced to consecutive terms of 10 years and 2 years, respectively, in the Missouri Department of Corrections.

Movant appealed that judgment. He included claims that the trial court erred in: (1) submitting verdict directors that did not require a unanimous jury verdict in a case charging multiple acts; and (2) admitting the State expert's testimony based on a discovery violation. In State v. Haneline, 680 S.W.3d 550 (Mo. App. 2023), this Court: (1) held that, by failing to object, trial counsel had waived the verdict-director issue at trial; (2) dismissed the discovery-violation claim for failure to comply with Rule 84.04 briefing requirements; and (3) affirmed Movant's convictions on appeal. Id. at 558, 562. Our mandate issued on January 18, 2024.

Thereafter, Movant timely filed his pro se motion for post-conviction relief. Appointed counsel timely filed an amended motion.² The amended motion alleged Movant received ineffective assistance of counsel for, inter alia: (1) trial counsel's failure to object to the verdict-director instructions for Counts 1 and 2, and failing to request unanimity on each count; (2) trial counsel's failure to call Wife as a witness; and (3) appellate counsel's failure to properly brief the State's failure to disclose expert witness testimony.

In September 2024, the motion court held an evidentiary hearing on Movant's amended motion. Those testifying included Movant's trial counsel (Trial Counsel), Movant, and Wife. After hearing the evidence presented, the motion court issued findings of fact and conclusions of law denying post-conviction relief. This appeal followed. Additional facts will be included below as we address Movant's three points on appeal.

Discussion and Decision

Points 1 and 2 – Alleged Errors by Trial Counsel

Movant's first two points contend the motion court clearly erred by denying post-conviction relief because Movant received ineffective assistance of Trial Counsel. To prevail on this claim, a movant bears the burden of proof and must demonstrate by a preponderance of the evidence that: (1) counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation; and (2) the movant was prejudiced by that failure. Davis v. State, 486 S.W.3d 898, 905-06 (Mo. banc. 2016); see Strickland v. Washington, 466 U.S. 668, 687-93 (1984).

To establish that counsel's performance was deficient, the movant must show “that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. The movant “must overcome the strong presumption that trial counsel's conduct was reasonable and effective.” Davis, 486 S.W.3d at 906; see Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019). “To overcome this presumption, a movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance.” Hosier, 593 S.W.3d at 81 (citation omitted). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.” Id. at 688. Decisions of trial strategy, for example, “only may serve as a basis for ineffective counsel if they are unreasonable.” Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009).

To satisfy the prejudice prong of the Strickland test, a movant “must demonstrate that, absent the claimed errors, there is a reasonable probability that the outcome would have been different.” Zink, 278 S.W.3d at 176. We need not address both prongs of the Strickland test if the movant fails to make a sufficient showing on one. Taylor v. State, 382 S.W.3d 78, 81 (Mo. banc 2012).

Movant's first point alleges ineffective assistance based on Trial Counsel's failure to object to the verdict directors for both Counts 1 and 2, citing State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011). In Celis-Garcia, our Supreme Court discussed a defendant's right to a unanimous verdict in a case involving “multiple, distinct criminal acts, each of which could serve as the basis for a criminal charge, but the defendant is charged with those acts in a single count.” Id. at 155-56. The Court agreed that “a defendant's right to a unanimous verdict would be protected in a multiple acts case” by either: (1) the State “electing the particular criminal act on which it will rely to support the charge”; or (2) providing a “verdict director specifically describing the separate criminal acts presented to the jury and the jury being instructed that it must agree unanimously that at least one of those acts occurred.” Id. at 157. Should multiple offenses occur at the same location, separate offenses could be distinguished on the basis of time or other characteristics aside from the place in which the offense occurred. Jarrett v. State, 572 S.W.3d 143, 150-51 (Mo. App. 2019). The following facts are relevant to this point.

At trial in this case, Victim testified to detailed instances of sexual contact by Movant at his cabin, including:

(1) When she was between eleven and thirteen years old (February 2013 to February 2016), while at Movant's cabin, Movant told her that she could have sex with him without getting pregnant and showed her for the first time what “eating a girl out” meant by touching her vagina with his tongue and licking her vagina.

(2) When she was twelve or thirteen years old (February 2014 to February 2016), or perhaps between December 2016 and December 2017, while at Movant's cabin, Movant used his tongue on her vagina, told her to “play with” his penis and put it in her mouth, and had sexual intercourse with her causing her to bleed.

Victim also testified to three other instances of sexual contact, another instance at the cabin and two at Movant's house:

(3) In January 2017, Movant touched her breasts and vagina and penetrated her vagina with his tongue at his cabin.

(4) When she was six years old (February 2008 to February 2009), Movant kissed her vagina in the bedroom at Movant's house.

(5) When she was ten or eleven years old (February 2012 to February 2014), Movant grabbed her breasts in the bathroom of Movant's house.

Movant denied ever having any sexual contact with Victim. His defense strategy was to convince the jury that Victim was lying about all of the abuse.

Before the instructions conference, the prosecutor asked Trial Counsel to look at alternative verdict directors he had offered “[t]o distinguish the two incidents” by including additional information, such as location of the charged acts. After conferring with Trial Counsel, however, the additional distinguishing language was removed. At the instructions conference, Trial Counsel denied any objection to the instructions, saying, “No, Your Honor. [Prosecutor] and I cooperated pretty well on – on formulating these instructions, and I think we worked them out by ourselves.” On direct appeal, this Court held this statement waived appellate review of instructional error.

The verdict directors submitted to the jury for Counts 1 and 2, Instruction Nos. 5 and 6, respectively, read as follows:

Instruction No. 5

As to Count [1], if you find and believe from the evidence beyond a reasonable doubt:

First, that between January 1, 2009 and January 31, 2016, in the County of Texas, State of Missouri, the defendant touched the genitals of [Victim],

Second, that defendant did so for the purpose of arousing or gratifying the sexual desire of any person, and

Third, that [Victim] was a child less than fourteen years old,

then you will find the defendant guilty of child molestation in the first degree, under this instruction. (Emphasis added.)

Instruction No. 6

As to Count [2], if you find and believe from the evidence beyond a reasonable doubt:

First, that between December 31, 2016 and January 25, 2017, in the County of Texas, State of Missouri, the defendant touched [Victim's] genitals with his mouth,

Second, that defendant did so for the purpose of arousing or gratifying the sexual desire of any person,

Third, that [Victim] was a child less than seventeen years old, and

Fourth, that defendant was more than four years older than [Victim],

then you will find the defendant guilty of child molestation in the fourth degree, under this instruction. (Emphasis added.)

Lastly, Instruction No. 8 required that the jury's verdict be unanimous. This instruction provided, in relevant part, that: “Your verdict, whether guilty or not guilty, must be agreed to by each juror. Although the verdict must be unanimous, the verdict should be signed by your foreperson alone.”

In closing, the prosecutor specified the particular criminal acts to support the counts charged in the verdict directors. With respect to Count 1 and Instruction No. 5, the prosecutor specified the earlier dates, when Victim was less than 14 and Movant first “touched the genitals” of Victim:

So, ladies and gentlemen, when you look and you recall the evidence and you look at the instructions, No. 5, that's Count [1], that instruction ․ here, between January 1, 2009, and January 31, 2016, in Texas County, Defendant touched the genitals of [Victim]. You've heard [Victim] say that “he touched my breasts, put his finger inside of me, he touched my vagina, and he did those acts when I was in the cabin,” the first time, after he told her about eating her out, what that meant, “Let me show you,” and he touched her, he put his mouth on her vagina and he performed oral sex.

With respect to Count 2 and Instruction No. 6, the prosecutor specified the later dates, when Victim was less than 17 and Movant touched Victim's genitals “with his mouth”:

Count [2], Instruction 6, is from December 31, 2016, to January 25, 2017. In the State of Missouri, Texas County, Defendant touched [Victim's] genitals with his mouth. That was when he performed oral sex on her and told her to play with his penis, told her to put his penis in her mouth, and then attempts and does penetrate her vagina causing her to bleed.

Trial Counsel told the jury that “you all are tasked with choosing who's the liar. There's – somebody here is not telling you the truth. Two people and only two people know. One of them's not telling you the truth, so you have to declare one of these people to be a liar.”

When the verdicts on each count were read at trial, the foreperson confirmed that the verdict forms were signed by the foreperson, and the trial court confirmed that the verdicts were “of each and every member of the jury[.]” When the court asked if either party wished to have the jurors polled, Trial Counsel responded, “No, Your Honor.” The prosecutor declined as well.

At the post-conviction evidentiary hearing, Trial Counsel maintained that the jury instructions given were consistent with Movant's trial strategy. When asked if Trial Counsel had “a strategic reason for not asking ․ that the instructions reflect what's required by [Celis-Garcia,]” such as differentiating locations, Trial Counsel responded:

A. I believe the strategic objective throughout this case and with everything that was done was to prove that [Movant] was telling the truth and that [Victim] was not. [I]t was what I would sort of couch as a swearing match between two people, and it was sort of an all-or-nothing proposition. You either believed him or you believed her. ․ I recognize that it doesn't comport with the case law that you cited. ․ But what I would suggest is, is what the point is – in all of this is that – the strategy being she's not telling the truth about anything, he's telling the truth about everything. And it ․ boiled down to just that.

Later in the hearing, the prosecutor clarified:

Q. ․ And so you were arguing ․ hey, regardless of what the jury sees, they're gonna see her inconsistencies, the impossibility of her story, and that's the winning ticket in this case, in this trial?

A. Correct.

On redirect examination, Movant's counsel addressed the issue again:

Q. And let me ask you, does [the verdict director] say anything about a location?

A. No. [T]he way this is written up, it's just – it's just asking the jury to decide whether he did it or didn't do it. ․ It's not asking about multiple times or multiple locations or any of that.

Q. Which is exactly the problem?

A. Well, I don't know that it is the problem. I mean, again, it was a swearing match and people, you know – I suppose you could say, hey, you're putting in more instances here where they would have to choose where one thing occurred over the other. But she was saying things occurred in multiple locations and he was denying it. And so the question was to say, I didn't do it, not I didn't do it there and I didn't do it there. He just said emphatically I didn't do it. And I think that's what this jury instruction communicates.

The motion court concluded that Trial Counsel's failure to object was reasonable trial strategy. The court credited counsel's testimony that he used an “all or nothing” defense, which focused on exposing Victim's testimony as not credible. The court found that the removal of distinguishing facts from the verdict directors, after the State consulted with Trial Counsel, further demonstrated that counsel's failure to object was a strategic decision.³ The motion court also agreed that, if successful, Trial Counsel's strategy would have negated the need to focus on specific locations and, in fact, such an argument would have been counterintuitive. The court explained:

Such strategic defenses are reasonable when the evidence can be boiled down to credibility and believability of parties. This case hinged on the jury's determination of credibility and believability of [V]ictim. Trial [C]ounsel's evidentiary hearing testimony compared with [V]ictim's trial testimony lead this Court to conclude an all or nothing defense was reasonable.

Trial [C]ounsel sought to paint [V]ictim as not credible and if successful would have negated focusing on specific locations of the crimes because the jury would believe [V]ictim lied about everything. If successful on this theory it would be counterintuitive to then argue about very specific moments and locations where events did or didn't occur because the jury doesn't believe [V]ictim at all. Trial Counsel's strategy on this is further clearly demonstrated when during the trial the Prosecutor informs the Court that locations were added to verdict directors and after the jury instruction conference they were removed, wherein the prosecutor and [T]rial [C]ounsel collaborated on final jury instructions.

Trial [C]ounsel executed a reasonable trial strategy, however in hindsight it was ill-fated, thus Movant cannot now claim the ill-fated strategy as a basis for ineffective assistance of counsel.

Point 1 contends the motion court clearly erred in denying post-conviction relief because Trial Counsel: (1) “failed to object to the verdict director instructions” for both counts charged, and (2) “failed to request instructions requiring unanimity as to each count[.]” According to Movant, Trial Counsel's failures in these respects were “without a reasonable strategic basis” and he was “prejudiced because he was denied a unanimous verdict[.]” For the following reasons, we disagree.

Trial Counsel's failure to object to the verdict directors was based on reasonable trial strategy. Trial Counsel consistently maintained the “all or nothing” strategy throughout the trial that Movant was credible, Victim was not, and the abuse did not happen. Trial Counsel presented Movant's testimony emphatically denying the abuse and offering a motive for Victim to lie. Under the circumstances of this case, we agree with the motion court that Trial Counsel's strategic rationale for not objecting to the verdict directors was reasonable, and that to argue about specific details would have been counterintuitive. If the jurors did not believe Victim, the particulars of how the offense was allegedly committed would not have mattered at all. Because the strategy was reasonable at the time, it is “virtually unchallengeable.” Vaca v. State, 314 S.W.3d 331, 335 (Mo. banc 2010). “[N]o matter how ill-fated it may appear in hindsight,” a reasonable choice of trial strategy “cannot serve as a basis for a claim of ineffective assistance.” Id.

In support of Movant's argument, he relies on Hoeber v. State, 488 S.W.3d 648 (Mo. banc 2016), but that case is factually distinguishable from the case at bar. In Hoeber, the verdict directors for two separate counts of statutory sodomy contained “identical language” and trial counsel had “no strategy for failing to object to the verdict directors.” Id. at 653, 655. Our Supreme Court concluded that the verdict directors “created a real risk that the jurors did not unanimously agree on the specific acts of statutory sodomy for which they found Mr. Hoeber guilty.” Id. at 655. The Court therefore held:

In the absence of reasonable trial strategy, trial counsel's failure to object to the insufficiently specific verdict directors did not conform to the degree of skill, care, and diligence of a reasonably competent attorney. Mr. Hoeber, therefore, has shown that, under the circumstances of this case, trial counsel's performance fell outside the wide range of professional, competent assistance.

Id. at 660 (emphasis added). Here, unlike Hoeber, Trial Counsel relied on reasonable trial strategy for not objecting to the verdict directors. In addition, the verdict directors in this case were not identical, but specified different time-frames and different acts. The prosecutor also pointed to detailed incidents, consistent with Victim's age within the time-frames specified in the verdict directors when each count of the charged offenses allegedly occurred, making it less likely the verdict directors created a real risk that the jurors did not unanimously agree on the specific acts for which they found Movant guilty.⁴ Given the factual differences, Movant's reliance on Hoeber is misplaced. See, e.g., State v. Escobar, 523 S.W.3d 545, 552-53 (Mo. App. 2017) (finding no prejudice under plain-error review from trial court's failure to instruct jury according to Celis-Garcia when Escobar's two verdict directors differed only as to dates; appellate court distinguishing Hoeber noting that “the State did focus at trial and in closing argument on two specific instances of abuse” and further considering Escobar's defense of generally denying “all the allegations as a whole” and arguing victim “fabricated her story” meant the jury had to decide whether they found victim's testimony credible).

For all these reasons, Movant has failed to show, under the circumstances, that Trial Counsel's performance fell outside the wide range of professional, competent assistance. Hosier, 593 S.W.3d at 81. As a result, we cannot say that, after reviewing the whole record, we are “left with a definite and firm conviction that a mistake has been committed.” Flaherty, 694 S.W.3d at 418. Finding no clear error on the part of the motion court in denying Movant's claim regarding Trial Counsel's failure to object to the verdict directors, Point 1 is denied.⁵

Movant's second point alleges ineffective assistance based on Trial Counsel's failure to call Wife as a witness. To prevail on a claim of ineffective assistance of counsel for failure to call a witness, a defendant must show, inter alia, that the witness’ testimony would have produced a viable defense. McFadden v. State, 553 S.W.3d 289, 305 (Mo. banc 2018); see Clay v. State, 468 S.W.3d 914, 920 (Mo. App. 2015) (providing a viable defense means the testimony negates an element of the crime or otherwise establishes the defendant did not commit the crime). Further, trial counsel's decision not to call a witness is presumptively a matter of trial strategy. Worthington v. State, 166 S.W.3d 566, 577 (Mo. banc 2005). “If a potential witness's testimony would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance.” Id. (citation omitted). The following facts are relevant to this point.

Trial Counsel considered calling Wife as a witness and prepared her to testify, but ultimately did not put her on the stand. At the evidentiary hearing, Trial Counsel explained that Wife's testimony posed a risk to Movant's defense. Specifically, the original charges suggested that Wife knew about and was involved in ritualistic abuse of Victim. In addition, Trial Counsel felt that the family dynamic between Wife and Victim's mother was problematic. Counsel believed Wife's testimony “could have helped and it also could have hurt tremendously.” He determined, “based upon the nature of the allegation and the only two witnesses who could tell you what was going on in the room when the alleged events were occurring, that [it] would be better suited to just have [Movant] testify and not expose [Wife] to cross-examination by [the prosecutor].” According to Trial Counsel, “if [Movant] was gonna win this, it was going to be based on what he would communicate to the jury.” Trial Counsel advised Movant and Wife of his concerns, but left it to them to make the final decision. Movant deferred to Trial Counsel's judgment and agreed that Wife should not testify at trial.

Wife did testify at the evidentiary hearing. She said that Victim never told her about problems with Movant, and Wife never saw anything inappropriate. Wife agreed with parts of Victim's trial testimony but did not believe her allegations of abuse. She admitted, though, that Movant and Victim were sometimes alone at the cabin. Wife acknowledged that her testimony “could have helped [and] hurt” Victim's statement. She also acknowledged her conflict with Victim's mother over money and jealousy. Despite potential benefits of Wife's testimony (clarifying Victim's motive to lie, not seeing evidence of abuse), Trial Counsel testified that he thought putting Wife on the stand was “an extreme risk.” To the extent that Trial Counsel and Wife's testimony differed, the motion court specifically found Trial Counsel to be more credible.

The motion court determined that Trial Counsel's recommendation that Wife not testify did not constitute ineffective assistance and denied Movant's claim. The court specifically found that trial strategy “to protect [Wife] from cross-examination by an experienced prosecuting attorney,” when there were prior allegations that Wife “had knowledge or involvement is extremely reasonable.” The court also reasoned that, because Wife's testimony was “unable to unqualifiedly support Movant's defense, the failure to call such a witness does not constitute ineffective assistance.”

Point 2 contends the motion court clearly erred in denying post-conviction relief because Trial Counsel was ineffective for failing to call Wife as a witness. According to Movant, Trial Counsel's decision not to call Wife was “without a reasonable strategic basis” and “her testimony would have had a reasonable opportunity of affecting the outcome of the case.” We disagree.

As an initial matter, Trial Counsel was not deficient because Movant agreed and acquiesced in the decision not to call Wife as a witness. See Prince v. State, 390 S.W.3d 225, 237 (Mo. App. 2013) (movant “has no room to now complain” about a trial strategy with which he “apparently agreed” but which was ultimately unsuccessful). Further, Trial Counsel's decision not to call Wife as a witness was reasonable trial strategy. The risk of cross-examination regarding complicated family dynamics and accusations of Wife's own involvement in the abuse was a legitimate risk, which Trial Counsel weighed against the limited benefit Wife's testimony could provide. That strategy was particularly reasonable because Wife's testimony offered neither a viable defense nor unqualified support. Worthington, 166 S.W.3d at 577 (when witness’ testimony “would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance”). Accordingly, the motion court did not clearly err in denying Movant's claim of ineffective assistance of counsel because Movant did not overcome the presumption that Trial Counsel's decision not to call Wife was reasonable trial strategy. Id. Point 2 is denied.

Point 3 – Alleged Error by Appellate Counsel

Movant's third point contends his appellate counsel provided ineffective assistance. To be entitled to post-conviction relief based on ineffective assistance of appellate counsel, the movant must also satisfy the two-prong Strickland test. See Weinert v. State, 593 S.W.3d 666, 670 (Mo. App. 2020). “The movant must first establish appellate counsel's performance was deficient” and that “the deficient performance resulted in prejudice to his defense.” Id. To show prejudice, “[t]he claimed error must have been sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different.” Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006); Jarrett, 572 S.W.3d at148. The following facts are relevant to this point.

A forensic interviewer (Expert) was endorsed as a witness in the State's original indictment. Trial Counsel did not depose her. Before she testified at trial, Trial Counsel objected to Expert testifying about “timing and disclosure and memory” because Counsel did not realize that would be the subject of her testimony.

The trial court noted that the criminal disclosure rules do not require parties to disclose the specific issue an expert will discuss; they only require parties to disclose the witness and any written report the expert made on the topic. There was no written report, and the State was offering Expert's testimony about the process of disclosure generally, not her opinions on the facts of Movant's case. The trial court ruled that there was no discovery violation and permitted Expert to testify, but offered Trial Counsel time to speak with her first.

Trial Counsel did not take time to depose Expert mid-trial because he did not believe he could do so effectively that morning. Once he understood, however, that Expert would testify only “in the abstract” and not about the specifics of Movant's case, Trial Counsel conceded that they “would not be in a prejudicial mode” and he did not “have a big problem with that.”

As planned, Expert testified generally about the process of disclosure and trauma's effect on memory. Trial Counsel cross-examined her about her assumption that all interviewed children are in the process of disclosure, the possibility that they could be lying, and her inability to determine whether a child's statements were true or not.

Movant challenged the admission of Expert's testimony in his motion for new trial and on direct appeal. As stated previously, this Court dismissed the point on appeal for failure to comply with the briefing rules set forth in Rule 84.04. Movant's amended motion for post-conviction relief included a related claim of ineffective assistance of appellate counsel based on the briefing deficiencies. The motion court denied the claim. The court reasoned that because the witness had been disclosed and was competent to testify, Movant failed to demonstrate prejudice.

Point 3 contends the motion court clearly erred in denying post-conviction relief because appellate counsel was ineffective for failing to “properly brief and argue that the State violated [Movant's] right to discovery when it endorsed [Expert] as a witness without disclosing that it would seek expert testimony from her.” According to Movant, he was prejudiced because “had [the appellate argument] been properly presented,” there was a “reasonable probability of affecting the outcome of the appeal.” We disagree.

Here, Movant has failed to show prejudice. Contrary to Movant's argument, there is no reasonable probability that the outcome of Movant's direct appeal would have been different absent the alleged briefing deficiency, because that claim on appeal was meritless. See Flaherty, 694 S.W.3d at 422-23 (no reasonable probability of a different result).

Movant's appellate claim lacked merit because there was no discovery violation. Under Rule 25.03(b)(2), the State is required to disclose the “names and last known addresses of persons whom the [S]tate intends to call as witnesses ․ together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements.” Id. The State also must disclose “reports or statements of experts made in connection with the particular case[.]” Rule 25.03(b)(6). The discovery rules place no duty on the State to identify a witness as an expert, categorize anticipated witnesses, or summarize witnesses’ proposed testimony. See State v. Williams, 956 S.W.2d 942, 946 (Mo. App. 1997); State v. Enke, 891 S.W.2d 134, 137-38 (Mo. App. 1994); State v. Wolfe, 793 S.W.2d 580, 587 (Mo. App. 1990).

In this case, the State endorsed Expert as a witness in the original indictment. She had not prepared a written statement or report, and the record reveals no existing memoranda summarizing oral statements. Nor did Movant present evidence that Expert made any statements “in connection with the particular case” that required disclosure prior to her testimony. Expert was providing general expert testimony, not case-specific opinions. Thus, because Expert was timely endorsed as a witness and the State had no obligation to otherwise disclose the specific information it would seek from Expert prior to trial, Movant could not have demonstrated a discovery violation on direct appeal.

Further, Trial Counsel also admitted that he was aware the process of disclosure would be an issue at trial, he intended to impeach Victim on the topic, and he had encountered expert testimony on the topic previously. Moreover, the failure to exclude Expert did not prevent Trial Counsel from exercising meaningful efforts to consider and prepare a strategy for addressing the evidence because the trial court gave him time to interview Expert and prepare for cross-examination. Trial Counsel did not use all the time the trial court allowed. Trial Counsel also admitted that, so long as Expert's testimony was general and not particularized, it was not prejudicial.

Thus, because Movant failed to show prejudice resulting from appellate counsel's briefing deficiencies, Movant failed to demonstrate that appellate counsel was ineffective. See Tisius, 183 S.W.3d at 215. Accordingly, the motion court did not clearly err in denying this claim that he received ineffective assistance of appellate counsel. Point 3 is denied.

The order denying Movant's Rule 29.15 motion for post-conviction relief is affirmed.

FOOTNOTES

1.   All rule references are to Missouri Court Rules (2024). Reference to § 566.067 is to RSMo Cum. Supp. (2013), and reference to § 566.071 is to RSMo (2016).

2.   This Court has independently verified the timeliness of Movant's pro se and amended post-conviction motions. See Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015); Haffly v. State, 651 S.W.3d 893, 894 n.2 (Mo. App. 2022).

3.   The prosecutor's proposed verdict directors were not included in the record, so it is unclear exactly what distinguishing language was removed. While the prosecutor mentioned adding two different locations during the instructions conference (the “cabin” and the “basement” of Movant's house), those locations are not consistent with what the prosecutor argued at closing. The two incidents described by the prosecutor at closing occurred at the same location – the cabin. As such, “separate offenses could be distinguished on the basis of time or other characteristics besides the place in which the offense occurred.” Hoeber v. State, 488 S.W.3d 648, 658 (Mo. banc 2016); Jarrett, 572 S.W.3d at 150-51. That is what happened here. The two counts were distinguished by different dates and different acts.

4.   We further note that the record otherwise indicates the verdicts were unanimous. The foreperson signed the verdict forms as required, the trial court confirmed the verdicts were “of each and every member of the jury[,]” and the parties were given the opportunity to poll the jury, although both parties declined. As for the jurors themselves, they were instructed to agree on a verdict and that the verdict must be unanimous. This Court presumes jurors follow the trial court's instructions. State v. Burkett, 725 S.W.3d 565, 576 (Mo. banc 2025); State v. McFadden, 391 S.W.3d 408, 424 (Mo. banc 2013).

5.   Point 1 also argues that Trial Counsel's failure to object to the verdict directors denied Movant “appellate review” and “full appellate review would have had a reasonable probability of affecting the outcome of the case.” Movant did not raise this particular claim in his amended motion, however, and it was not presented to the motion court for a ruling. As such, this additional claim is not preserved for our review. See Mallow v. State, 439 S.W.3d 764, 769 (Mo. banc 2014) (“[i]n a post-conviction proceeding, all grounds for relief not listed in a Rule 29.15 motion are waived”); Rule 29.15(d); see also Mack v. State, 716 S.W.3d 260, 262 n.2 (Mo. banc 2025) (because movant “raises this claim for the first time before this Court, it is not preserved for review”).

JEFFREY W. BATES, J. – OPINION AUTHOR

JACK A. L. GOODMAN, J. – CONCUR MATTHEW P. HAMNER, J. – CONCUR