GROCE v. STATE (2026)

Travis Groce appeals the judgment of the Boone County Circuit Court denying his Rule 29.15 motion for post-conviction relief. In his sole point on appeal, Groce states his defense counsel was ineffective for failing to move to strike a witness's testimony. He claims that the testimony was improper and prejudicial. The judgment is affirmed.

Facts 1

Groce was tried by jury and found guilty of first-degree domestic assault, § 565.072, for stomping on the victim's (“Victim”) head. He was sentenced as a persistent assault offender to ten years’ imprisonment. Groce appealed his conviction, and this court affirmed the same on January 30, 2024. State v. Groce, 682 S.W.3d 864 (Mo. App. W.D. 2024). The relevant facts included in the unpublished opinion of this court and stated by the motion court are stated below.

In July 2021, Victim's mother (“Mother”) received an eviction notice and needed to vacate her home that day. A neighbor (“Neighbor”) offered to let Mother store some belongings, including a mattress and box spring, in Neighbor's basement. Groce and Victim, who were in a relationship, had been staying with Mother. Neighbor offered to let Groce and Victim spend the night at Neighbor's house because they had nowhere else to go. They accepted the offer. After moving a few items out of Mother's house that morning, Groce went to work and then met a friend in the park where they consumed alcohol. Victim came and went from Neighbor's house throughout the day. On one occasion, Victim met up with Mother and smoked crack with her.

At some point, Groce carried Mother's box spring to Neighbor's basement, intending to place it under the mattress, but Victim was lying on the mattress. Victim refused to move. Groce became irritated with Victim as a result. Groce, Victim, and Neighbor then watched television until Groce went out to Neighbor's garage to smoke a cigarette and call his mother, who lived out of state. Victim overheard Groce tell his mother that he wanted to leave Missouri and go back home.

Victim assumed Groce was planning to leave her, so she locked the door connecting Neighbor's kitchen and garage. Victim asked to use Neighbor's phone and called 911. Victim told Neighbor that Groce had beaten her, that she was terrified, and she wanted to get away from him.

Groce tried to reenter the house through the kitchen door. After realizing the door was locked, Groce went to the front door and pounded on it. He realized the front door was unlocked, but Victim was holding the door closed. Eventually, Groce entered the house.

Neighbor testified that Groce was “very angry,” and he started punching Victim, who was “freaking out.” Victim fell to the floor and was in a fetal position. Neighbor also testified that Groce “kicked [Victim], and he bent over and punched her ․ And he stomped on her head with his foot three times. Most horrifying thing I've ever seen.” When Victim finally got up, she had blood dripping from her nose. Neighbor got Victim a glass of water, but Groce “flipped it out of [Victim's] hand.” Victim then left the room until police arrived.

The State referenced neighbor's unsolicited comment in closing argument, stating:

[Neighbor] did not stutter when she said that. She said it was the most horrible thing she had ever seen. That, I submit to you, is the truth and not a fabrication; not something that someone who was high out of their mind was recalling. That's the truth, and that's what [Neighbor]saw. She was sober. She was very clear about that.

On cross-examination, Neighbor said that, earlier in the day, she had noticed Victim's one eye was bruised and she had a cut and was complaining of ear pain. Victim told Neighbor that those injuries were caused by Mother's boyfriend.

When Victim saw police officers outside Neighbor's home, Victim yelled “Police!” and ran to them. Groce went out the back door. Victim pounded on one of the police cars and demanded to be let in. A responding officer testified that Victim “was very panicked and very afraid of whatever had just occurred and was trying to make herself as safe as possible.” Both sides of Victim's face were swollen. Victim's speech was slurred, and she was starting to lose consciousness. She requested an ambulance and was later transported to a local hospital.

Police officers entered Neighbor's house looking for Groce, but, instead, they found Victim's blood-stained shoes in the living room and her earring located near blood stains on the floor. Police then searched the neighborhood on foot but were unable to find Groce until another area resident called 911 to report a man hiding on her front porch. Police found Groce on the front porch and arrested him. The arresting officer testified that Groce was verbally abusive. Groce told the officer, “[M]y bitch ain't gonna press charges ․ Tell the State to do it. She ain't gonna come—come to court, she's gonna ․ be sucking my dick. She gonna eat this dick and forget what happened, bro.” Groce further said, “I'm just in here for fighting my bitch.”

At the hospital, Victim received a CT scan. At trial, the radiologist who reviewed the scan testified that Victim had soft tissue swelling of the right cheek, two fractures on the right zygomatic arch (a thin bone extending from the cheek to the ear), a small fracture of the medial wall of the frontal bone, and another fracture of the left nasal bone. A police officer who interviewed Victim at the hospital testified that Victim's right eye was swollen shut and she was struggling to keep her left eye open. According to that officer, Victim was initially “very incoherent, very sluggish in her attempt to talk, and still very scared.” Victim made multiple statements that Groce was “going to find out where she was [and] he was going to kill her.”

After a short break, Victim told the officer that Groce was the one who beat her. Victim described Groce hitting her with his hands and fist. She did not report being kicked or stomped. But, when Victim spoke to a crime scene investigator a couple of days later, Victim indicated that Groce had used his fists and his feet to attack her.

At trial, Victim recanted her accusations against Groce. She claimed that her injuries were caused solely by Mother hitting her in the face with a broom the day before the assault. Victim admitted that Groce “bopped” her after she threw a liquor bottle at him. Victim testified that she was drunk the day of the incident and had smoked marijuana and crack. Victim did not recall speaking with officers at the hospital and claimed that she made allegations against Groce at that time because she wanted to get him in trouble and secure housing for herself at a local shelter.

Groce testified that Victim had no bruises when he left for work on the day before the assault, but when he returned to Mother's house that evening, Victim's face was swollen, she had a black eye, and she was experiencing ear pain. Victim told Groce that Mother and her boyfriend had jumped Victim, and Mother had hit her in the face with a broom. Groce told Victim to call the police, but she refused because she did not want to get Mother in trouble.

Talking about the day of the assault, Groce testified that, after he smoked a cigarette and spoke to his mother on the phone, he tried to reenter Neighbor's house from the garage, but the door was locked. He entered through the front door. When Groce walked inside, Victim threw a vodka bottle at his head, and he “hit her back ․ off reflexes.” Groce claimed that he never kicked Victim or stomped on her head and that he did not intend to hurt her. He did, however, admit fleeing from the police.

The jury found Groce guilty of domestic assault in the first degree. Having previously found Groce to be a persistent assault offender, the trial court sentenced Groce to ten years’ imprisonment.

In Groce's direct appeal, this court considered whether Neighbor's testimony that Groce assaulting Victim was the “[m]ost horrifying thing I've ever seen” was error. At trial, defense counsel objected to Neighbor's testimony, stating “I object to the witness's commentary. If she could just stick to the facts.” The trial court overruled the objection. Defense counsel, however, did not move to strike Neighbor's answer. The issue was not preserved for appellate review. This court found that Groce failed to establish manifest injustice because Neighbor's comment was singular, isolated, and not magnified by the State. This court further found that Neighbor's comment was somewhat vague because it could have referred to Groce stomping on Victim's head (the charged crime) or the altercation generally.

Finally, this court stated that it did not appear that Neighbor's comment had a decisive effect on the jury. The evidence of Groce's guilt was substantial and included Neighbor's eyewitness testimony, forensic evidence in the form of Victim's blood and earring on Neighbor's floor, testimony of law enforcement officials regarding Victim's own statements, medical testimony about the severity of Victim's injuries, and Groce's evasion of the police and his admission that he struck Victim.

This court issued its mandate affirming Groce's conviction and sentence in February 2024. Groce timely filed a pro se motion for post-conviction relief. Appointed counsel's amended motion for post-conviction relief was not timely filed. The motion court found that appointed counsel abandoned Groce and considered the amended motion on the merits.

Relevant to this appeal, Groce's Rule 29.15 motion claimed that defense counsel was ineffective in failing to move to strike Neighbor's testimony that Groce assaulting Victim was the “[m]ost horrifying thing I've ever seen.” The Rule 29.15 motion stated that this issue was raised on direct appeal as plain error. It claimed that Groce “was prejudiced because if counsel had moved to strike, there was a reasonable probability of a more favorable outcome at trial and on direct appeal.”

Defense counsel testified at the evidentiary hearing. She stated that Neighbor's statement about “most horrifying thing I've ever seen” was an unsolicited comment. Neighbor had “said far worse than that in the deposition.” The prosecutor told defense counsel that Neighbor had been instructed prior to trial to just answer the questions and not give opinions. Defense counsel stated she did not know how to object to an unsolicited statement that had not been made yet. Defense counsel did not know if she had an obligation to ask the court to strike the answer to preserve the issue for appeal. Defense counsel testified:

Q. Okay. Did you have any -- well, if you recall, I know it's been some time, do you recall if you contemplated moving to strike the answer itself?

A. I don't recall one way or the other. I objected. The Court said, “Objection overruled. [Prosecutor], ask your next question.” And it just flowed on from there. I don't know that I wanted to interrupt again. I don't believe that making – I mean, I had to make a lot of objections during this trial.

Q. Yes.

A. And I don't believe that making another one or making another motion at that time would have benefitted my client, but I have no actual recollection of whether I thought about it or not.

Q. Okay.

A. I think probably by the time I thought about it, she had already went on to something else.

Q. So can you say today one way or the other whether you made a strategic decision not to move to strike her answer?

A. I cannot say one way or the other.

The motion court denied Groce's Rule 29.15 motion. When it recounted the facts of this case in its judgment denying Groce's Rule 29.15 motion, the motion court explicitly stated “that the evidence of [Groce's] guilt at trial for first-degree domestic assault was overwhelming.” In denying the claim pertaining to Neighbor's testimony, the motion court found that defense counsel “had a reasonable trial strategy not to move to strike testimony that this Court had already ruled was not improper when this Court overruled the objection.”

The motion court also found that Neighbor's testimony was not improper. At trial, the State was required to prove that Groce knowingly caused serious injury to Victim. Neighbor's comment was relevant for this purpose. It was not unfairly prejudicial because the comment was brief and isolated.

The motion court also found that, even if defense counsel was ineffective in failing to move to strike Neighbor's testimony, Groce failed to establish prejudice. The motion court noted the finding of this court in Groce's direct appeal. The motion court stated: “This Court agrees with the Western District's assessment. This Court finds that the evidence of [Groce's] guilt was overwhelming and that Neighbor's comment did not have any effect of the jury's determination of [Groce's] guilt. [Groce] has not satisfied his burden of proving prejudice.”

This appeal follows.

Standard of Review

“Our review of the motion court's ruling on a Rule 29.15 motion is limited to whether the motion court's findings and conclusions are clearly erroneous.” Linzie v. State, 727 S.W.3d 800, 803 (Mo. App. W.D. 2025) (citing Rule 29.15(k)). “The findings and conclusions are clearly erroneous when, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made.” Id. (internal quotation marks omitted). “We presume the motion court's findings are correct.” Id.

“To be entitled to postconviction relief based on ineffective assistance of counsel, the movant must satisfy Strickland’s two-prong test.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “The movant must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the movant.” Id. at 803-04.

“To establish that counsel's performance was deficient, the movant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 804 (internal quotation marks omitted). “The movant must overcome the strong presumption that trial counsel's conduct was reasonable and effective.” Id. “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.” Id. (internal quotation marks omitted).

“Besides showing deficient performance, the movant must additionally show that he was prejudiced by the deficiency, meaning that there is a reasonable probability that, but for counsel's errors, the outcome would have been different.” Id. (internal quotation marks omitted). “If a movant fails to establish both deficient performance and resulting prejudice, [the movant] has failed to prove a right to post-conviction relief.” Id. (internal quotation marks omitted).

“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Brandolese v. State, 715 S.W.3d 587, 595 (Mo. App. W.D. 2025) (internal quotation marks omitted). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. (internal quotation marks omitted).

Analysis

In his sole point on appeal, Groce claims the motion court erred in denying his Rule 29.15 motion. He states that his defense counsel was ineffective in failing to move to strike Neighbor's testimony. The State argues in its brief that this claim was raised in Groce's direct appeal and may not be relitigated in a post-conviction proceeding.

An appellate court can decide an unpreserved error on appeal by: (1) declining to exercise its discretionary authority to review the point for plain error; (2) conducting plain error review and concluding that no error occurred; (3) conducting plain error review and concluding that an error occurred, but it was harmless and caused no prejudice to the appellant; (4) conducting plain error review and concluding that a prejudicial error occurred, but it did not rise to the level of manifest injustice or miscarriage of justice and deny relief; or (5) conducting plain error review and concluding that the error rose to the level of manifest injustice or miscarriage of justice and grant relief.

Cornelious v. State, 351 S.W.3d 36, 42 (Mo. App. W.D. 2011). In his direct appeal, this court discussed Groce's argument that Neighbor's testimony should have been struck in the context of plain error analysis. This court stated that “[b]ecause Groce failed to ‘facially establish[ ] substantial grounds for believing that manifest injustice or a miscarriage of justice’ resulted from Neighbor's comment, we decline to engage in plain error review of Point II.” Thus, the first category is applicable: the appellate court declined to exercise discretionary plain error review of this claim. “In first-category cases, the issues relevant to an ineffective-assistance analysis under Strickland are not necessarily decided.” King v. State, 682 S.W.3d 853, 861 (Mo. App. S.D. 2024). “When an appellate court declines plain error review, it makes no ruling as to whether the trial court erred or whether the alleged error was prejudicial.” Id.

Though this court declined to exercise plain error review in his direct appeal, we did discuss whether Groce demonstrated prejudice under a plain error analysis. The motion court agreed with this court's findings in the direct appeal that “the evidence of [Groce's] guilt was overwhelming and that Neighbor's comment did not have any effect of the jury's determination of [Groce's] guilt.” Groce argues in the current appeal that the motion court erred in relying on a plain error prejudice analysis because that is a different standard from prejudice in post-conviction proceedings.

The standard of review in assessing Strickland prejudice is not the same as the standard of review for assessing plain error manifest injustice. Miller-Kirkland, 697 S.W.3d 867, 877 (Mo. App. W.D. 2024). “[U]nder Missouri law, plain error can serve as the basis for granting a new trial on direct appeal only if the error was outcome determinative.” Id. (internal quotation marks omitted). “The plain error standard on direct appeal presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged.” Id. (internal quotation marks omitted). “By contrast, a Rule 29.15 motion asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower.” Id. (internal quotation marks omitted). “The prejudice prong of Strickland is satisfied where there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (internal quotation marks omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (internal quotation marks omitted).

“[W]e will affirm the motion court's judgment if cognizable under any theory, regardless of whether the reasons advanced by the [motion] court are wrong or not sufficient.” Id. (internal quotation marks omitted). The motion court ruled that Groce did not meet his burden of proving prejudice, and we will uphold that conclusion unless Groce “can demonstrate he was prejudiced under Strickland’s slightly less exacting standard.” Id. “Notably, the ‘theoretical difference’ between the standards in question will only produce a different outcome in a small number of cases.” Id. (internal quotation marks omitted). “In most cases, an error that is not outcome-determinative on direct appeal will also fail to meet the Strickland test.” Id. at 878 (internal quotation marks omitted).

Groce argues in his brief that he was prejudiced by defense counsel's failure to move to strike neighbor's testimony because, had counsel done so, there is a reasonable probability of a more favorable outcome on appeal because the issue would have been preserved for appellate review. “The failure to preserve error for appellate review is not cognizable in a Rule 29.15 motion.” Strong v. State, 263 S.W.3d 636, 646 (Mo. banc 2008). “Instead, post-conviction relief for ineffective assistance of counsel is limited to errors that prejudiced the defendant by denying him a fair trial.” Id.; see also McCoy v. State, 431 S.W.3d 517, 523 (Mo. App. E.D. 2014) (“Thus, to the extent that Movant argues that counsel's inaction affected his ability to appeal by failing to preserve the issue for review, this claim is not cognizable under Rule 29.15.”); Childs v. State, 314 S.W.3d 862, 867 n.2 (Mo. App. W.D. 2010) (“To the extent that Childs bases any claim of ineffectiveness on the failure to preserve the admissibility of the evidence for appellate review, such a claim is not cognizable in a Rule 29.15 motion.”).

Groce also argues that he was prejudiced at trial by Neighbor's testimony and the State's reference to it during closing argument. We disagree. The unsolicited comments and reference during closing argument were isolated and brief. Neighbor saw the assault and testified about what she witnessed. Groce fled and hid from police. “Evidence of flight is admissible to show consciousness of guilt.” State v. Hosier, 454 S.W.3d 883, 895 (Mo. banc 2015). There was evidence of the blood at the scene and testimony about Victim's injuries. Groce admitted hitting Victim.

If defense counsel's performance was deficient in failing to move to strike neighbor's testimony, which we do not decide, it was not prejudicial. The motion court's judgment was not clearly erroneous. The point is denied.

Conclusion

The judgment is affirmed.

Anthony Rex Gabbert, Chief Judge

All concur.