                          In the Missouri Court of Appeals
                                  Eastern District
                                                DIVISION FIVE


    DALE M. WRIGHT,                                          )   No. ED103814
                                                             )
            Movant/Appellant,                                )   Appeal from the Circuit Court of
                                                             )   St. Louis County
    vs.                                                      )
                                                             )   Honorable Robert S. Cohen
    STATE OF MISSOURI,                                       )
                                                             )
            Respondent.                                      )   Filed: November 1, 2016

                                                   Introduction

           Dale Wright (Movant) appeals the judgment of the Circuit Court of St. Louis County

denying his Rule 29.15 1 motion for post-conviction relief without an evidentiary hearing. On

appeal, Movant argues that the motion court erred when it denied his Rule 29.15 motion because

he pleaded facts, unrefuted by the record, that his counsel was ineffective for failing to object when

the prosecutor called Movant a child molester during closing arguments. Finding no error, we

affirm.

                                              Factual Background

           On May 28, 2012, Movant hosted a barbecue at his home. Victim, the eleven-year-old

daughter of Movant’s cousin, attended the barbecue. After the barbecue, Victim spent the night at




1
    All references to Rules are to Missouri Supreme Court Rules (2015).
Movant’s home because she thought that her cousin would also be staying the night. However,

Victim’s cousin left in the evening, leaving Victim alone with Movant and his girlfriend. Later in

the evening, Movant and Victim watched a movie together in Movant’s living room. Victim fell

asleep during the movie, and awoke to Movant touching her vagina over her clothing. She flinched

but otherwise laid still. Movant then tried to put his fingers up her shorts. Victim flinched again,

and Movant stopped. Movant, realizing Victim was awake, asked if she wanted to see his “little

boy” and asked her if she minded that he touched her. Victim replied that she wanted to go home,

and Movant left the room.

       Victim then found a phone and tried to call her father, but was unable to reach him. She

called her father’s girlfriend, Krystal. Victim told Krystal that she was hiding in Movant’s home

and that she was scared of Movant because he had touched her. Krystal was able to contact

Victim’s father, who then called the police. Police officers retrieved Victim from Movant’s home,

and Movant was later questioned by detectives and arrested.

       In January 2014, a jury convicted Movant of first-degree child molestation and first-degree

attempted statutory sodomy.      The trial court sentenced Movant to two concurrent ten-year

sentences. Movant appealed his conviction and sentence, which this Court affirmed by an order

and memorandum in State v. Wright, 475 S.W.3d 702 (Mo. App. E.D. 2015). Before this Court

issued its mandate, Movant prematurely filed his pro se Rule 29.15 motion for post-conviction

relief. The motion court issued an order to hold the premature filing open pending the conclusion

of the direct appeal. In June 2015, Movant’s appointed counsel filed a timely amended motion for

post-conviction relief. In November 2015, the motion court entered its findings of fact and

conclusions of law, denying Movant’s Rule 29.15 motion without an evidentiary hearing. This

appeal follows. Movant’s sole claim of error is that the motion court clearly erred when it




                                                 2
determined that Movant’s trial counsel was not ineffective for failing to object when the prosecutor

called Movant a child molester during closing arguments.

                                        Standard of Review


         To be entitled to an evidentiary hearing on a post-conviction relief claim, a movant must:

“(1) allege facts, not conclusions, that, if true, would warrant relief; (2) these facts must raise

matters not refuted by the record and files in the case; and (3) the matters complained of must have

resulted in prejudice to the movant.” Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003). An

evidentiary hearing is not required if the record conclusively shows that the movant is not entitled

to relief. Id. “When the requested evidentiary hearing involves a claim of ineffective assistance

of counsel, the movant must allege unrefuted facts establishing that (1) counsel’s performance did

not conform to the degree of skill, care, and diligence of a reasonably competent attorney and (2)

he was thereby prejudiced.” Matthews v. State, 175 S.W.3d 110, 113 (Mo. banc 2005).

         Appellate review of decisions under Rule 29.15 is limited to whether the motion court’s

findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). On review, the

motion court's findings and conclusions are “presumptively correct.” Wilson v. State, 813 S.W.2d

833, 835 (Mo. banc 1991). We will conclude the motion court’s findings and conclusions are

clearly erroneous only if, after a review of the entire record, we are left with the definite and firm

impression that the motion court made a mistake. Moore v. State, 328 S.W.3d 700, 702 (Mo. banc

2010).

                                             Discussion

         Movant argues that the motion court clearly erred when it denied his Rule 29.15 motion

because he pleaded facts, unrefuted by the record, that his trial counsel was ineffective for failing

to object when the prosecutor called Movant a child molester in closing argument. Respondent



                                                  3
contends that the motion court did not err because the evidence at trial supported the prosecutor’s

characterization of Movant as a child molester.

        The remarks Movant complains of occurred during rebuttal closing argument when the

prosecutor argued that, “[Movant] is a child molester, and he needs to be held accountable. Find

him guilty and do what is right.” The prosecutor had also argued during initial closing argument

that, “I don’t know how you would think to make up a comment like, do you want to see my little

boy, unless you are exactly what the defendant is, a child molester.” 2

        Movant, citing State v. Boone, asserts that “[g]enerally, it is improper [for the prosecution]

to argue that the defendant is a child molester and therefore he must have molested these children.”

869 S.W.2d 70, 76 (Mo. App. W.D. 1993). Movant argues that the evidence at trial did not

demonstrate that Movant had a history pedophilia, and thus the prosecutor misled the jury into

believing that Movant had a proclivity toward child molestation.

        Respondent contends that the prosecutor’s argument was proper because “[i]f one has

molested a single child, one is a child molester.” Respondent asserts that the prosecutor’s

description of Movant as a child molester was supported by the evidence presented at trial and did

not indicate to the jury that Movant was guilty of prior offenses.

        The Missouri Supreme Court decided a similar issue in State v. Perry, 275 S.W.3d 237

(Mo. banc 2009). In that case, the defendant was convicted of first-degree child molestation.

During closing arguments, the prosecutor argued that, “This was a bad touch in the wrong spot.

This was a touch done by a child molester.” Id. at 246. On appeal, the defendant argued that the

trial court should have interrupted the prosecutor during closing arguments and struck the




2
  In Movant’s point on appeal, he does not claim that his trial counsel should have objected to the prosecutor’s
statements during initial closing argument.


                                                       4
prosecutor’s statement that the defendant was a child molester from the record. Regarding the

prosecutor’s statements, the Court held that:

       [The defendant] was charged with child molestation, and the whole premise of the

       prosecution was that [the defendant]’s touch was done by a child molester for the

       purpose of sexual gratification. There was no error, plain or otherwise, in making

       this argument. The prosecutor is allowed to make arguments based on facts in

       evidence.

       Id. (emphasis added).

       In the present case, there is no indication in the record that the prosecutor based her

argument that Movant was a child molester on any evidence that was not presented at trial.

Respondent is correct in arguing that “one does not have to molest more than one child in order to

be deemed a child molester.” In describing Movant as a child molester, the prosecutor was not

insinuating that she had knowledge, outside of the evidence at trial, that Movant had a history of

pedophilia.   The prosecutor’s assertion that Movant was a child molester was supported by

Victim’s testimony at trial that Movant molested her. As in Perry, the prosecutor here did not

commit error by calling Movant a child molester in closing arguments. Accordingly, Movant’s

trial counsel was not ineffective for failing to object to the prosecutor’s description of Movant as

a child molester. Kohlheim v. State, 482 S.W.3d 851, 858 (Mo. App. E.D. 2016) (“[C]ounsel will

not be deemed ineffective for failing to make non-meritorious objections to the State's closing

argument”).

       In sum, Movant failed to plead facts unrefuted by the record that would entitle him to post-

conviction relief. Therefore, the motion court did not err in denying Movant’s Rule 29.15 motion

for post-conviction relief without an evidentiary hearing. Point denied.




                                                 5
                                        Conclusion

       We affirm the judgment of the motion court denying Movant’s Rule 29.15 motion

without an evidentiary hearing.




                                          _______________________________
                                          Philip M. Hess, Chief Judge


Gary M. Gaertner, Jr., J. and
Lisa P. Page, J. Concur.




                                             6
