STATE v. KEMPKER (2026)

Francis Henry Kempker (“Kempker”) appeals from his convictions and sentence entered by the trial court after a jury found Kempker guilty of two counts of rape in the first degree. Kempker raises three points on appeal. First, he argues the trial court abused its discretion in overruling his request for disqualification of the Cole County Prosecutor's Office. Next, Kempker claims the trial court abused its discretion in denying his request to hold an evidentiary hearing to prove the Cole County Prosecutor's Office should be disqualified. Finally, Kempker contends the trial court abused its discretion in excluding the testimony of a lay witness. Finding no error, we affirm.

Factual and Procedural History

On September 2, 2020, the State charged Kempker by indictment with multiple felonies including rape, sodomy, kidnapping, and armed criminal action. Assistant Cole County Prosecuting Attorney (“APA 1”) signed the indictment and later filed a substitute information in lieu of indictment asserting similar charges. Later, another Assistant Cole County Prosecuting Attorney (“APA 2”) filed an amended information charging Kempker with three counts of rape in the first degree against three different victims for acts that occurred between March and June of 2016. Ultimately, a jury found Kempker guilty of two counts of first-degree rape for his actions against two of the women. Both sexual assaults occurred in Kempker's place of business, against women with whom he was familiar. Additional facts regarding the evidence adduced at trial will be discussed in Point III below. We begin by recounting the pretrial proceedings relevant to Kempker's first two points on appeal.

On June 17, 2022, Kempker filed a Motion to Disqualify APA 1. In his motion, Kempker alleged APA 1 previously worked at a private law firm which represented him in a 2017 case for which he was incarcerated at the time of the motion (“the 2017 Case”).¹ Kempker's motion further alleged that APA 1 appeared on his behalf in the 2017 Case, that he recalled discussing details of the 2017 Case with APA 1, and that APA 1 had access to his client files at the law firm. Kempker explained the acts at issue in the present case occurred when he was represented by the law firm and that both the present case and the 2017 Case involved many of the same people and locations. Kempker's motion included as an exhibit a portion of the docket sheet in the 2017 Case which demonstrates that APA 1 obtained a continuance in Kempker's case. The docket sheet also indicates APA 1 appeared on behalf of Kempker, not with Kempker present. The docket sheet does not show any further involvement in the case by APA 1. Based on these allegations, Kempker argued Missouri's Rules of Professional Conduct prohibit APA 1 from participating in the prosecution of the present case.

APA 1 did not recall her appearance on Kempker's behalf while in private practice until being reminded of it by Kempker's Motion to Disqualify APA 1. In light of such motion, the Cole County Prosecuting Attorney (“Prosecuting Attorney”) and APA 2 promptly entered their appearance and moved to withdraw APA 1 as counsel of record.² On July 5, 2022, the trial court held a hearing and considered Kempker's Motion to Disqualify APA 1. At the hearing, Kempker's counsel did not argue the motion but instead stated, “Judge, I don't believe that that motion needs to be heard today. I believe the proper remedies were taken. I would just like to reiterate on the record that [APA 1] not have any participation as far as the State's case is concerned.” The trial court asked if the State wished to be heard on the matter and APA 2 responded, “No, Your Honor. Other than I will be taking over all litigation in this matter. And I will be receiving the legal file from [APA 1], and she will not be co-counsel from this point forward.” The trial court's corresponding docket entry provided, “Motion to Disqualify [APA 1] is discussed on the record but not taken up by the [c]ourt at the request of [Kempker] due to remedial measures pertaining to the motion that were taken by the prosecuting attorney's office.” Accordingly, no ruling was made on Kempker's Motion to Disqualify APA 1. At this point, trial was scheduled for October 10, 2023.

On September 29, 2023—approximately a week and a half before the scheduled trial date and fifteen months after filing his Motion to Disqualify APA 1—Kempker filed a motion to dismiss all charges pending against him for prosecutorial misconduct (“Motion to Dismiss”). This motion contained all of the allegations made in Kempker's Motion to Disqualify APA 1, however it alleged that the defense recently learned new information through discovery which warranted dismissal of the present action in its entirety. Specifically, Kempker alleged a detective's deposition revealed the investigation of the present case began at the direction of APA 1. Further, Kempker identified a search warrant application signed by APA 1. The application requested a warrant to search various electronic devices seized during a 2017 search of Kempker's residence. Kempker alleged this was the same search which led to the 2017 Case and his representation by APA 1's former law firm. Kempker explained this new information demonstrated a possibility that APA 1 used information gained from the private law firm to initiate prosecution in the present case.

The State filed a timely response requesting the court either deny the motion or set the matter for an evidentiary hearing. In its response, the State denied Kempker's factual allegations and argued no violation of the Rules of Professional Conduct occurred, providing affidavits ³ of APA 1 and Prosecuting Attorney in support. APA 1 stated that she did not perform any legal work on behalf of Kempker beyond requesting one continuance. APA 1 explained when she was assigned to the present case, she did not know who Kempker was and was unsure if she had ever seen him as he was not in court during her sole appearance on his behalf. She also stated she did not learn any privileged information from Kempker as the only possible communication she could have had with him was to obtain his new court date. APA 1 stated she had not believed a conflict was present when she withdrew but did so to avoid even the possible appearance of impropriety, after which she had no involvement in the case. Finally, APA 1 stated the instant case was initiated at the express request of a detective.⁴ Prosecuting Attorney's affidavit similarly stated investigation into the present case began after a meeting with the Cole County Sheriff's Office and that no assistant prosecuting attorney has the authority to open a major criminal investigation. Prosecuting Attorney noted APA 1 never expressed any prior knowledge of Kempker. He explained he made the decision to charge Kempker, and a grand jury determined probable cause.

On October 3, 2023, the trial court entered an order denying Kempker's Motion to Dismiss and finding “no credence” to his allegations. Despite this finding, the trial court sua sponte referred the matter to the presiding judge for re-assignment from the Cole County Prosecuting Attorney's Office (“CCPO”) to a special prosecutor or the Attorney General. The State orally moved to reconsider the trial court's disqualification of the CCPO, which the trial court denied. The trial court subsequently appointed the Attorney General to serve as special prosecutor.

Meanwhile, the Attorney General's Office sought a writ of prohibition or mandamus from the Missouri Supreme Court to stop the trial court's disqualification of the CCPO. As exhibits to its application for writ, the Attorney General included all documents from which the facts detailed thus far herein were gleaned. The Supreme Court issued a preliminary writ of prohibition commanding the trial court to (1) vacate the order disqualifying the CCPO or (2) file a written return explaining why the Supreme Court should not issue a permanent writ directing the trial court to vacate its disqualification order. On January 23, 2024, the trial court vacated its order disqualifying the CCPO. On January 25, 2024, Kempker filed a motion requesting the trial court rescind its order vacating the disqualification of the CCPO and allow the writ to proceed in the Supreme Court, or in the alternative, rescind the same order and set a date for a hearing so Kempker may present his arguments as to why the disqualification order should stand and the writ should proceed. Kempker advised the trial court, in bold, underlined, all-capital lettering, that it “is not required to vacate the original order” by the Supreme Court's preliminary writ of prohibition (emphasis removed). Kempker suggested perhaps the trial court was “under the impression that the preliminary writ issued by the Missouri Supreme Court ․ requires [it] to vacate” the previous order disqualifying the CCPO (emphasis removed). The trial court denied Kempker's motion on January 30, 2024.

The case subsequently proceeded to a jury trial on April 2, 2024, where the State was represented by the CCPO through APA 2 and an additional assistant prosecuting attorney. Ultimately, the jury found Kempker guilty of two counts of first-degree rape. The jury was not able to reach a verdict as to the third count of first-degree rape and the trial court accordingly declared a mistrial as to that count only.⁵ Kempker filed a motion for new trial on April 29, 2024.⁶ On June 27, 2024, the trial court denied the motion and sentenced Kempker to life in prison on each count, to run consecutively. Kempker appeals in three points. Points I and II relate to APA 1's involvement in the case and Point III asserts error in the exclusion of a lay witness's testimony.

Point I

In Point I, Kempker argues the trial court abused its discretion in overruling his “request for the disqualification of [APA 1] and the [CCPO]” in violation of his rights to due process and a fair trial. Kempker asserts he established an appearance of impropriety for both APA 1 and the CCPO because APA 1 worked at a private law firm who represented Kempker where she appeared on his behalf in a related case and thereafter APA 1 began working for the CCPO and assisting in Kempker's prosecution as her name appeared on a search warrant and the charging document in the present case.

Standard of Review

“A trial court's ruling on a motion to disqualify is reviewed for an abuse of discretion.” State v. Moore, 694 S.W.3d 79, 84 (Mo. App. W.D. 2024) (citing State ex rel. Peters-Baker v. Round, 561 S.W.3d 380, 388 (Mo. banc 2018)). “A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Lemasters, 456 S.W.3d 416, 420 (Mo. banc 2015) (quoting State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004)). “If reasonable persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion.” Id. (quoting Taylor, 134 S.W.3d at 26).

Analysis

We limit our analysis to Kempker's January 25, 2024 motion requesting the trial court rescind its order vacating the disqualification of the CCPO (“Motion to Rescind”).⁷ In doing so, we note that the only trial court action discussed in said motion is the trial court's disqualification of the CCPO. The trial court never specifically disqualified APA 1 as an individual prosector. Thus, our analysis of Point I must be limited to whether the trial court erred in ultimately refusing to disqualify the entire CCPO.

“[I]n Lemasters, [the Supreme Court] set forth the framework to be applied when the disqualification of an entire prosecutor's office is sought.” Round, 561 S.W.3d at 385. “First, the court must determine whether a particular attorney in the office has a conflict prohibiting that attorney's participation in the underlying case.” Id. (citing Lemasters, 456 S.W.3d at 420). In doing so, the court considers Missouri's Rules of Professional Conduct. Id. “Second, if (and only if) such a conflict exists, the court then must determine whether that individual attorney's conflict is to be imputed to the entire office.” Id. (citing Lemasters, 456 S.W.3d at 422). “A conflict can be imputed in one of two ways: either (1) by the Rules of Professional Conduct, or (2) by the appearance of impropriety test—i.e., whether ‘a reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial’ to the defendant.” Id. (quoting Lemasters, 456 S.W.3d at 422-23). “[O]nly in rare circumstances should a circuit court interfere with the democratic process and override the voters’ choice as to who is best suited to represent the interests of the people as prosecuting attorney, even with respect to a single case.” Id. at 388.

Thus, pursuant to Lemasters, we first consider whether APA 1 had a conflict of interest prohibiting her initial participation in the present case. “Rule 4-1.11(d) addresses ‘conflicts arising from prior representations by current public officers or employees.’ ” Napper v. State, 679 S.W.3d 574, 581 (Mo. App. E.D. 2023) (quoting Lemasters, 456 S.W.3d at 421). Rule 4-1.11(d)(1) provides that such public officers or employees are subject to Rule 4-1.9, which addresses duties to former clients. Moore, 694 S.W.3d at 88. Here, Kempker argues that APA 1 has a conflict of interest under both Rule 4-1.9(a) and (b).⁸

We are unable to reach the merits of Kempker's Rule 4-1.9(a) argument because he never argued that APA 1 violated Rule 4-1.9(a) in the trial court. Kempker's Motion to Rescind—the only motion actually being appealed—does not reference Rule 4-1.9(a). Both Kempker's Motion to Disqualify APA 1 and Motion to Dismiss specifically state that the motion is being brought pursuant to Rule 4-1.9(b) and do not otherwise mention Rule 4-1.9(a). And, Kempker's Motion for New Trial also does not reference Rule 4-1.9(a). “We will not convict a trial court of error for reasons not presented to it and instead argued for the first time on appeal.” State v. Savage, 609 S.W.3d 71, 92 (Mo. App. W.D. 2020) (quoting State v. West, 548 S.W.3d 406, 413 (Mo. App. W.D. 2018)).

As stated, Kempker has pursued claims pursuant to Rule 4-1.9(b). It provides:

A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 4-1.6 and 4-1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

We begin our analysis of Rule 4-1.9(b) by noting the limited scope of APA 1's involvement in Kempker's 2017 Case. Both parties agree APA 1 appeared once on Kempker's behalf in the 2017 Case, at a hearing to obtain a continuance, when Kempker was not present. APA 1 did not participate in the law firm's representation of Kempker in any other way. And, the factual analysis in Kempker's appellate brief which argues this limited representation created a conflict under Rule 4-1.9(b), is quite scant. Kempker simply presupposes that in order to appear on his behalf and request a continuance, APA 1 must have had access to his case file or discussed the matter with his attorney of record and thereby acquired knowledge or information about his case. The analysis section of Kempker's brief does not utilize any pertinent facts to explain how APA 1 allegedly acquired protected information under Rule 4-1.9(b) creating a conflict of interest, or that she did so. And, Kempker's sole assertion—that APA 1 must have acquired some confidential information—is squarely refuted by APA 1 and Prosecuting Attorney. APA 1 stated she did not know who Kempker was when she was assigned as prosecutor in his case, he did not appear in court when she requested his continuance in the 2017 Case, and the only possible communication she could have had with Kempker was to provide him his new court date. Prosecuting Attorney confirmed APA 1 never expressed any knowledge of Kempker and did not indicate that she learned any facts about him from her employment with the law firm. Thus, we cannot say that APA 1 had a conflict of interest in violation of Rule 4-1.9(b).

However, even if APA 1 did have a conflict of interest under step one of the Lemasters analysis, which she does not, we would not find trial court error here because any conflict would not impute to the entire CCPO. First, any conflict would not impute under the Rules of Professional Conduct. As noted in Lemasters, the comments to Rule 4-1.11(d) provide that:

Because of the special problems raised by imputation within a government agency, Rule 4–1.11(d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

456 S.W.3d at 422 (quoting Rule 4–1.11(d), cmt. 2). The comments to Rule 4-1.10—the general rule regarding imputation of conflicts—further provides, “Under Rule 4-1.11(d), where a lawyer represents the government after having served clients in private practice, ․ former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.” Rule 4-1.10, cmt. 7. Thus, the Rules of Professional Conduct provide no basis under which to disqualify the entire CCPO.

Neither may the entire CCPO be disqualified based on an appearance of impropriety. Like the appellant in Lemasters, Kempker's Point does not focus on a violation of the Rules of Professional Conduct so much as it does his right to a fair trial. See Lemasters, 456 S.W.3d at 422. Lemasters reminds us that “justice must satisfy the appearance of justice.” Id. at 423 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)). The question becomes if a “reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial.” Id.

Kempker's original statements to the trial court on this issue are instructive. Kempker's initial Motion to Disqualify APA 1 alleged that Kempker recalled discussing details of the 2017 case with APA 1, that APA 1 had access to Kempker's client files and discussed case information with him, and that the individuals involved, locations, and timeframe implicated in the two cases shared many commonalities such that APA 1 likely learned confidential information material to the present case. However, based on these facts and with all of the above allegations in mind, Kempker believed the issue was resolved after APA 1 voluntarily withdrew from the case to avoid even the possible appearance of impropriety. At a hearing on the issue Kempker's counsel stated, “Judge, I don't believe that that motion needs to be heard today. I believe the proper remedies were taken. I would just like to reiterate on the record that [APA 1] not have any participation as far as the State's case is concerned.” Indeed, from that point forward APA 1 did not have any involvement in the case.

Kempker then renewed the issue over one year later in his Motion to Dismiss based on allegedly new information obtained through discovery. Even in his brief to this Court, Kempker acknowledges he “believed [APA 1's] withdrawal from the case cured any issue” but once he “learned of her deeper involvement and the possibility that she had used information from her prior representation to initiate prosecution in the current case, dismissal or other appropriate relief was warranted.” Kempker alleged this new information revealed that (1) according to a detective's deposition,⁹ the law enforcement investigation leading to the present charges against Kempker began at the direction of APA 1, and (2) that APA 1 signed a search warrant in the present case requesting the search of various electronic devices seized during the search of an apartment, which led to the 2017 Case and Kempker's representation by APA 1's former law firm. These new allegations do not alter the analysis. First, APA 1 and Prosecuting Attorney stated the case was re-opened at the express request of investigators from the Cole County Sheriff's Office, who believed they already had enough information to move forward with the case. Further, Prosecuting Attorney explained no assistant prosecuting attorney has the authority to re-open a major criminal investigation. Instead, he solely made the decision to charge Kempker followed by a grand jury's probable cause determination. As to Kempker's second new piece of information—that APA 1 signed the search warrant before she was alerted to the alleged conflict and withdrew from the case—Prosecuting Attorney was contacted by a detective regarding the search warrant and delegated review of the warrant to APA 1. APA 1 did not initiate the investigation into Kempker or the search warrant. In sum, Kempker agreed there was no appearance of impropriety requiring disqualification of APA 1 until this “new” information surfaced, but this “new” information was simply a reasonable part of APA 1 working on the case prior to her withdrawal, a time that Kempker knew APA 1 was the attorney of record and working on the case, and did not occur at the behest of APA 1 at some later date.

Kempker refers us to State v. Moore, 694 S.W.3d 79 (Mo. App. W.D. 2024).¹⁰ Moore, however, is only instructive due to its stark contrast to the case at hand. In Moore, the attorney at issue, a public defender, was not the defendant's attorney of record but appeared at two hearings on his behalf. Id. at 81. Less than a week after last appearing for the defendant, the attorney began working for the prosecutor's office and assisting with the State's case against the defendant in the same matter. Id. The defendant learned of the attorney's involvement in the case approximately four days before trial. Id. The defendant then moved to disqualify the prosecutor's office, asserting the attorney at issue had access to all client files and discussed client affairs with other public defenders. Id. The prosecutor's office argued the attorney had no participation in defendant's case as a public defender beyond a video docket appearance, but notedly did not allege the attorney had not acquired protected information. Id. at 82, 82 n. 4. The court struck the motion to disqualify, the case proceeded to trial, and the attorney subsequently actively participated in the trial against the defendant. Id. at 84. On appeal, the defendant, like Kempker, asserted a violation of his right to due process and a fair trial due to the trial court's failure to disqualify the attorney and the prosecutor's office. Id. at 85. Our court agreed and disqualified the prosecutor's office based on an appearance of impropriety. Id. at 92. Moore explained an obvious conflict was present because the attorney had formerly represented the defendant in the case and was therefore prohibited from representing the prosecutor's office (on behalf of the State) in the same case. Id. at 88. Further, Moore repeatedly highlighted that the prosecutor's office did nothing to rebut the appearance of impropriety created—it never alleged the attorney did not acquire protected information about the defendant's case, did not demonstrate the steps it took to ensure no conflict existed, and did nothing to screen the attorney but instead allowed him to participate in the defendant's trial. Id. at 90-92. Moore found it “detrimental that not one ․ protective measure occurred here.” Id. at 90.

Kempker's case is factually distinct in all respects. APA 1 did not represent Kempker and the State in the same case. Further, the State did rebut any appearance of impropriety by explaining that APA 1 did not acquire or use any protected information from Kempker. And, despite finding no conflict, the CCPO did screen APA 1 from the case as soon as it was alerted to her prior, isolated appearance on behalf of Kempker. APA 1 and Prosecuting Attorney explained that after APA 1 was screened from the case she had no further involvement in Kempker's prosecution. Notably, Kempker does not dispute this fact but instead alleges APA 1's active participation in his prosecution is demonstrated by her initially being the attorney of record and signing a search warrant to search his belongings before her withdrawal. Yet neither of these acts are sufficient to create an appearance of impropriety. As discussed above, both the indictment and the search warrant were initiated by the Sheriff's Office and Prosecuting Attorney, they do not demonstrate any significant participation from APA 1.

Finally, Moore distinguished its facts from those in Lemasters—where the Court found it was unnecessary to disqualify the entire prosecutor's office based on a conflicted attorney—because in Lemasters the attorney at issue was screened and did not participate in the State's case, the attorney did not disclose any information to the prosecutors working the case, and the defendant knew nearly five months before trial that the attorney had been screened. Id. at 89-90. Each of these facts present in Lemasters, but not found in Moore, is also present in Kempker's case. APA 1 was screened after de minimis participation in the State's case, APA 1 did not disclose (or acquire) any information related to Kempker from the 2017 Case, and Kempker knew almost two years before trial that APA 1 had been screened. Moore is distinguishable and of no help to Kempker.

Next, Kempker directs us to State v. Ross, 829 S.W.2d 948 (Mo. banc 1992). The appellant in Lemasters also relied on Ross where, “a part-time assistant prosecutor brought criminal assault charges against [the defendant] even though another lawyer in the assistant prosecutor's law firm (who also was a part-time prosecutor) was already representing [the defendant] in a civil action arising out of the same assault.” Lemasters, 456 S.W.3d at 423. Ross involved concurrent representations rather than successive ones, thus different rules than applicable here were used to determine whether a conflict existed. Id. at 423-24. However, Ross then analyzed whether an appearance of impropriety was created when the trial court refused to disqualify the entire prosecutor's office. Id. at 424. Lemasters explained that in Ross, the connection between the prosecutor's office and the law firm raised facts that created an appearance of impropriety, while there was no evidence of steps taken to screen the actual prosecutor and no steps to dispel the appearance of impropriety. Id. The defendant in Ross thus did not know what confidential information his attorney may have shared with the prosecutor. Id. Lemasters presented the opposite case where no facts existed to create an appearance of impropriety and instead the evidence dispelled any such appearance. Id. Here, as in Lemasters, any concerns that may be attributed to APA 1's brief appearance on behalf of Kempker to request a continuance were dispelled by CCPO's screening measures and testimony that no confidential information was acquired. As Kempker initially agreed, the proper remedies were taken and there is nothing in the record to support a concern that APA 1 may not have kept his confidences.

Finally, we note the trial court disqualified the CCPO even though it explicitly found “no credence” to Kempker's allegations of a prosecutorial conflict of interest. Our Supreme Court has warned against disqualifying an entire prosecutor's office based on an “abundance of caution” or vague and unsubstantiated reasons, however. Round, 561 S.W.3d at 386-87. That is what the trial court did here—until it vacated its order disqualifying the CCPO. Based on the limited involvement of APA 1 in both cases at issue—where APA 1 requested a continuance on behalf of Kempker in 2017 with no information about the case and years later in 2020 completed the initial charging documents and signed a search warrant for the State in the present case—we cannot say that a reasonable person with knowledge of same would find an appearance of impropriety and doubt the fairness of Kempker's trial. The trial court did not err in denying Kempker's Motion to Rescind and ultimately refusing to disqualify the CCPO. Point 1 is denied.

Point II

In Point II, Kempker alleges that in the alternative to Point I, the trial court erred in denying his request for a hearing to prove his allegations that the CCPO should have been disqualified. Specifically, Kempker asserts he alleged specific facts that, if proven, would have required disqualification of the CCPO under the Rules of Professional Conduct. Kempker acknowledges that he was unable to locate a case discussing when or if a hearing is required on a claim that a prosecutor or prosecutor's office has a disqualifying conflict of interest. Yet, based on allegedly analogous contexts, Kempker asks this Court to hold that when a defendant pleads sufficient facts to establish a conflict of interest or the appearance of such, the trial court must hold an evidentiary hearing at which the State may rebut those allegations and the defense may impeach the State's evidence and elicit its own evidence.

It is not necessary for us to decide when or if a trial court is required to hold an evidentiary hearing in this context because at no point during the trial court proceedings did Kempker request an evidentiary hearing. Kempker's Point does not detail when he requested an evidentiary hearing, however his brief later cites to his Motion to Rescind, which simply requested a date to hear argument. The motion further included a heading titled “[Kempker] wishes his arguments to be considered,” believing his “original arguments have merit.” (emphasis added). Finally, Kempker concludes with a request that the trial court “set a hearing on this matter so that [Kempker] can be heard. [Kempker] strongly believes his arguments have merit” and that he is entitled to present them. None of these statements suggest a desire to present evidence or commence an evidentiary hearing. They simply request the opportunity to apprise the trial court of his arguments, which he could have included in his Motion to Rescind, and notably, did include in his Motion to Disqualify APA 1 and Motion to Dismiss. Further, Kempker's Motion to Rescind did not indicate that his arguments varied from these motions’ arguments in any way. Kempker also directs us to his Motion for New Trial when arguing that his request for an evidentiary hearing is preserved for our review. However, his Motion for New Trial also only alleges trial court error in denying his Motion to Rescind “without the opportunity for[ ] counsel to argue said motion.” Again, Kempker does not mention a desire to put forth evidence. Thus, Point II challenges a ruling never requested of the trial court. “We will not convict a trial court of error for reasons not presented to it and instead argued for the first time on appeal.” State v. Roth, 734 S.W.3d 343, 359 (Mo. App. W.D. 2026) (quoting State v. West, 548 S.W.3d 406, 413 (Mo. App. W.D. 2018)).¹¹ Point II is denied.

Point III

In Point III, Kempker argues the trial court erred in excluding a lay witness's (“Witness”) testimony because the excluded evidence was logically and legally relevant to his defense that he did not rape or confine one of the alleged victims. Witness's desired testimony relates only to the victim at issue in Count I (“Victim”).¹² Witness would have testified that she was familiar with Victim, that she spent time at the location of the rape during the time period in which the rape was alleged to have occurred, and that during this time, Victim was there willingly. The State moved to exclude Witness's testimony, arguing it was cumulative of other defense evidence that Victim was not confined or sexually assaulted, irrelevant, and would tend to confuse the jury. We begin by providing additional facts relevant to the evidence supporting Count I, that Kempker raped Victim on or between April 5 to April 6, 2016, and omit evidence relating to the victim at issue in Count II.

Additional Relevant Facts 13

In early 2016, Kempker rented a recently closed antique store in Centertown, Missouri (“the Shop”). Kempker had planned to use the Shop to house an online antique market. During that time frame, Kempker was using methamphetamine, as well as selling it from the Shop. He controlled access to the Shop, but certain people regularly came in and out.

Victim was homeless and addicted to methamphetamine when she was arrested and placed in the Cole County Jail. After learning bond had been set in her case, Victim reached out to her boyfriend for help securing bond. Her boyfriend contacted Kempker who agreed to pay Victim's bond. Through the services of a bond agent, Kempker paid Victim's bond, and upon her release on April 5, 2016, the bond agent told Victim she would be taking her to the person who bonded her out. The bond agent took Victim to a bank where she met Kempker, and Kempker took her with him to the Shop. On the way to the Shop, Kempker told Victim that she was going home with him to stay until she worked enough for her bond to be paid off.

Upon arrival at the Shop, Victim had an altercation with Kempker's girlfriend that ended inside the Shop with Victim unconscious. Once Victim regained consciousness, she observed between five and eight people come and go from the Shop. Eventually, Kempker told all of the guests to leave, and he told Victim to join him in the back room. When she entered the room, Kempker told her to turn around to face the bed and pull her pants down. Victim complied, in part because she knew Kempker had a weapon. Victim closed her eyes, and at some point, Kempker penetrated her vagina with his penis. During the occurrence, Victim was afraid she was going to die. Victim felt scared, disgusted, gross, and violated.

Immediately after the rape, Victim recalled once again falling unconscious, and believed she had been drugged. When she woke up, she was in a utility room which she described as small, concrete, and containing a furnace. Victim attempted to leave the utility room, but she was not able to open the locked door. Kempker eventually released her from the utility room. Because Victim was homeless, she remained at the Shop for at least a few weeks, though she did not want to be there.

In his defense, Kempker presented the testimony of four witnesses that spent time at the Shop during the spring of 2016. First, a witness who was a friend of Victim's boyfriend testified regarding witness's weekly visits to the Shop during this time. That witness was familiar with Victim and recalled seeing her at the Shop. She never saw anyone held against their will or sexually assaulted at the Shop.

Second, a witness whose father was a friend of Kempker testified about her role in securing bond for Victim on April 5, 2016. She testified that she went with the bond agent to pay Victim's bond and was present when Victim met Kempker at the bank after leaving the Cole County Jail. She recalled that Victim seemed to know Kempker when they arrived at the bank. This witness also testified that she never saw anyone tied up, including Victim, while she was at the Shop.

Third, a witness who was a mutual friend of both Kempker and Victim testified that he was at the Shop in the spring of 2016. He agreed Victim was at the Shop willingly during this time and was never tied up.

Finally, a long-time friend of Kempker's testified that in 2016 she spent most of her time at the Shop, including in April 2016. This witness was present at the Shop when Victim arrived upon her release from jail. After Victim left the shop, she spent time at this witness's home.

Following the testimony of those witnesses, Kempker intended to elicit testimony from Witness. The State moved to exclude her testimony arguing it was cumulative, irrelevant, and would tend to confuse the jury. Defense counsel suggested they make an offer of proof to address the State's concerns and Witness subsequently testified outside the presence of the jury. Witness testified that she spent time at the Shop in 2016, including in April 2016. She was familiar with Victim and testified she saw Victim at the Shop a couple of times, but not often. Witness explained that she never saw Victim locked up in a room and that she was there willingly. Following this offer of proof, the trial court noted Witness was never able to place Victim at the Shop specifically in April, and asked defense counsel how her testimony was relevant and not cumulative to other defense witnesses. Defense counsel agreed that Witness could not remember if Victim was at the Shop in April 2016 and that her testimony was cumulative but argued it was still relevant and informative for the jury. The trial court ultimately excluded Witness's testimony.

Finally, Kempker elected to testify in his own defense and admitted that he knew Victim, and she spent time at the Shop, but he denied raping or confining her.

Standard of Review

“The [trial] court ‘has broad discretion to admit or exclude evidence during a criminal trial, and error occurs only when there is a clear abuse of this discretion.’ ” State v. Loper, 609 S.W.3d 725, 731 (Mo. banc 2020) (quoting State v. Hartman, 488 S.W.3d 53, 57 (Mo. banc 2016)). “A trial court abuses its discretion only if its decision to admit or exclude evidence is ‘clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.’ ” State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016) (quoting Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014)). “[I]f reasonable [persons] can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Palma, 719 S.W.3d 798, 807 (Mo. App. W.D. 2025) (alterations in original) (quoting State v. Lawson, 693 S.W.3d 82, 107 (Mo. App. E.D. 2023)). “The erroneous exclusion of evidence in a criminal case creates a presumption of prejudice that the State may rebut by proving that the error was harmless beyond a reasonable doubt.” Id. (quoting Lawson, 693 S.W.3d at 107). “That is because ‘[a] defendant in a criminal case has a constitutional right to present a complete defense.’ ” State v. Ellis, 512 S.W.3d 816, 825 (Mo. App. W.D. 2016) (alteration in original) (quoting State v. Miller, 372 S.W.3d 455, 472 (Mo. banc 2012)). Thus, “[t]his Court will reverse the [trial] court's decision only if there is a reasonable probability that the error affected the outcome of the trial or deprived the defendant of a fair trial.” Loper, 609 S.W.3d at 731 (citation modified) (quoting State v. Wood, 580 S.W.3d 566, 574 (Mo. banc 2019)).

Analysis

“Evidence must be logically and legally relevant to be admissible.” Wood, 580 S.W.3d at 574 (quoting State v. Prince, 534 S.W.3d 813, 817 (Mo. banc 2017)). “Evidence is logically relevant if it tends to make the existence of a material fact more or less probable.” Palma, 719 S.W.3d at 809 (quoting State v. Fisher, 705 S.W.3d 664, 681 (Mo. App. W.D. 2024)). “Legal relevance requires ‘weigh[ing] the probative value of the evidence against its costs—unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.’ ” Id. (quoting Fisher, 705 S.W.3d at 681). “[L]ogically relevant evidence is excluded if its prejudice outweighs its probative value.” State v. Anderson, 306 S.W.3d 529, 538 (Mo. banc 2010).

At trial and before our Court, the State primarily asserts that Witness's testimony had little relevance and would have been cumulative of other defense evidence presented at trial. “The test for relevancy is whether an offered fact tends to prove or disprove a fact in issue or corroborates other evidence.” State v. Allen, 597 S.W.3d 420, 427 (Mo. App. E.D. 2020) (quoting Kansas City v. Keene Corp., 855 S.W.2d 360, 367 (Mo. banc 1993)). Here, Witness's testimony would have done little to prove or disprove that Kempker raped Victim in April 2016. While Witness testified in her offer of proof that she was at the Shop in April 2016, she could not place Victim at the Shop in April 2016. And defense counsel agreed with this fact. Thus, Witness's testimony that Victim was at the Shop willingly “a couple of times,” does nothing to establish if Victim was raped in April 2016.

Further, the defense had already presented four witnesses that testified Victim was at the Shop in the spring of 2016 (or April specifically), but they never saw Kempker restrain or assault Victim. “Cumulative evidence is additional evidence that reiterates the same point.” State v. Brandolese, 601 S.W.3d 519, 536 (Mo. banc 2020) (quoting Saint Louis Univ. v. Geary, 321 S.W.3d 282, 292 (Mo. banc 2009)). “The trial judge has discretion over the admission of cumulative evidence, and this exercise of discretion will not be disturbed on review unless an abuse of discretion is clearly shown.” State v. Rios, 314 S.W.3d 414, 421 (Mo. App. W.D. 2010) (quoting State v. Radford, 646 S.W.2d 366, 367 (Mo. App. W.D. 1982)). Again, the trial court observed that Witness could not place herself and Victim at the Shop together in April 2016. The record supports the trial court's finding as it is devoid of testimony specific to that month and year. Instead, Witness only stated that Victim was at the Shop “a couple of times.” This was similar to other defense witnesses who testified that they saw Victim at the Shop willingly but could not definitely say they saw her there in April 2016. Indeed, defense counsel acknowledged Witness's testimony was cumulative. Even so, Kempker argues that “[e]vidence is not to be rejected as cumulative when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence.” Black v. State, 151 S.W.3d 49, 56 (Mo. banc 2004) (quoting State v. Perry, 879 S.W.2d 609, 613-14 (Mo. App. E.D. 1994)). Kempker identifies the main issue as whether Victim “was raped or confined.” However, the main issue at trial on Count I was whether Victim was raped on or between April 5 to April 6, 2016.¹⁴ Witness could not assist the jury in making that determination. Finally, even if the exclusion of Witness's testimony was erroneous, which it was not, any error was harmless. “The exclusion of evidence is harmless beyond a reasonable doubt where the excluded evidence is cumulative of other evidence which was admitted at trial.” State v. Schnelle, 398 S.W.3d 37, 45 (Mo. App. W.D. 2013) (collecting cases). Thus, Kempker has not demonstrated the trial court abused its discretion. Point III is denied.

Conclusion

For the above and foregoing reasons, the judgment of the trial court is affirmed.

FOOTNOTES

1.   The parties seem to agree that in the 2017 Case, Kempker was convicted of possession of a controlled substance, however no information pertaining to the 2017 Case is contained in our record on appeal.

2.   Ultimately, APA 2 filed an amended information charging Kempker with three counts of rape in the first degree against three different victims for acts that occurred between March and June of 2016.

3.   In the argument portion of his Appellant's Brief, Kempker argues the State may not rely on sworn affidavits as evidence in support of its response. However, Kempker did not challenge the use of said affidavits at any point in the trial court. Kempker also did not challenge the affidavits in his point on appeal. Thus, we do not analyze whether the State may rely on affidavits and likewise consider them for purposes of this appeal. See State v. Jones, 530 S.W.3d 525, 528 (Mo. App. E.D. 2017) (“It is a well-established axiom of Missouri law that issues not raised or preserved in the trial court are waived and cannot, thereafter, be appealed.” (citing State v. Fassero, 256 S.W.3d 109, 117 (Mo. banc 2008))); State v. Fields, 480 S.W.3d 446, 454 n.3 (Mo. App. W.D. 2016) (“The argument shall be limited to those errors included in the ‘Points Relied On.’ ” Rule 84.04(e). “Issues raised in the argument portion of a brief but not in the point relied on are not preserved for appeal.” (further citation omitted)); see also Ryno v. State, 728 S.W.3d 827, 833 (Mo. App. S.D. 2025) (noting that the “[a]ppellant's [p]oint 1 does not challenge either the admissibility of [the victim's] affidavit or the trial court's reliance on such evidence in reaching its decision” and thus not considering the issue).

4.   The detective had been rebuffed by the former elected prosecuting attorney when seeking sexual assault charges against Kempker and, upon Prosecuting Attorney's election, the detective briefed him on the investigation that had taken place.

5.   The trial court severed the third count of first-degree rape in order to allow Kempker to proceed with this appeal of the first two counts of first-degree rape.

6.   Kempker's motion for new trial raised three claims of error related to APA 1. He argues the trial court erred in (1) denying his Motion to Dismiss, (2) vacating its order disqualifying the CCPO, and (3) denying his motion to rescind the court's order vacating the disqualification of the CCPO and denying said motion without an opportunity to argue the motion.

7.   Kempker's Point is ambiguous and does not clearly identify the trial court action being challenged as required by Rule 84.04(d)(1)(A). Kempker describes the trial court action as the overruling of his “request for the disqualification of [APA 1] and the [CCPO],” however it is unclear as to what “request” he is referring because Kempker made three motions potentially relevant here: (1) his June 17, 2022 Motion to Disqualify APA 1; (2) his September 29, 2023 Motion to Dismiss; and (3) his January 25, 2024 Motion to Rescind. Kempker's reply brief clarifies that his first two points challenge the trial court's handling of his Motion to Rescind. In light of this clarification, we will only consider the trial court's denial of Kempker's Motion to Rescind. See Pearson v. AVO Gen. Servs., LLC, 520 S.W.3d 496, 502 n.4 (Mo. App. W.D. 2017) (limiting its review based on appellant's statement in their reply brief clarifying their point on appeal); St. Louis Cnty. v. River Bend Ests. Homeowners’ Ass'n, 408 S.W.3d 116, 124 n.4 (Mo. banc 2013) (noting an appellant's clarification in their reply brief).All rule references are to Missouri Supreme Court Rules (2025).

8.   Kempker does not argue that APA 1 has a conflict under Rule 4-1.11(d) itself, but rather specifically targets Rule 4-1.9(a) and (b), which are enveloped by Rule 4-1.11(d) in this regard. Rule 4-1.11(d) has its own standard, in addition to enveloping Rule 4-1.9(a) and (b), which provides in relevant part that a current public officer or employee shall not “participate in a matter in which the lawyer participated personally and substantially while in private practice.” Kempker does not assert that APA 1 “participated personally and substantially” in his 2017 Case. Nor does he assert that APA 1 participated in a “matter” as a prosecutor and while in private practice. Kempker only alleges APA 1 participated in two separate but allegedly related matters: the 2017 Case and the underlying case to the present appeal.

9.   We note that neither the trial court, nor our Court, had the benefit of reviewing this deposition.

10.   In his brief, Kempker cites to Moore in support of his analysis under step one—determining if a particular attorney had a conflict of interest. We find Moore inapposite on this issue as Moore focused on 4-1.9(a) to find the attorney could not represent the defendant and the prosecutor's office in the same case. 694 S.W.3d at 88. Moore thus did not analyze the impact of 4-1.9(b). We do, however, find Moore instructive on step two—the appearance of impropriety.

11.   Gratuitously, we note that neither the parties nor this Court have located a case discussing when or if a trial court must hold an evidentiary hearing in considering whether to disqualify an entire prosecutor's office. Additionally, Kempker has not identified, or even generally described, what evidence he now wishes to present at an evidentiary hearing, or why he could not produce that evidence in his Motion to Dismiss, Motion to Rescind, Motion for New Trial, or at any other time during the lengthy proceedings before the trial court.

12.   At trial, the victim relevant to Count I was referred to as Victim 2. Because only one victim is relevant to our analysis here, we refer to her only as Victim.

14.   Kempker argues the trial court improperly required “calendar precision” from Witness, in that it expected her to testify that she saw Victim at the Shop on exactly April 5th or 6th. Our review of the record shows that the trial court never imposed such a requirement. Instead, prior to the offer of proof, the trial court indicated that Witness needed to be able to place herself at the Shop “in the very beginning of April[.]” After the offer of proof, the trial court inquired of defense counsel regarding Witness's inability to place herself and Victim at the Shop in the month of April. Defense counsel agreed Witness could not place Victim there in April. Ultimately, it is evident that the trial court was not only interested in two specific days, but the entire month of April. Finally, Kempker argues the trial court allowed several State witnesses to testify who also could not speak to this definite timeframe. We note that each of these witnesses provided additional information beyond simply their presence at the Shop in April 2016 without observing abuse of Victim, including specific interactions with Victim.

W. Douglas Thomson, Judge

All concur.