Introduction
Aрpellant Ronald Tucker (“Tucker”) appeals from the judgment of the motion court denying his Rule 29.15
Because counsel made a reasonable strategic decision in declining to file a meritless motion to dismiss, the motion court did not clearly err in denying Tucker’s Rule 29.15 motion without an еviden-tiary hearing as to Point One. Because counsel’s decision not to cross-examine B.M. and G.M. was reasonable trial strategy in light of the circumstances of the case, the motion court did not clearly err in denying Tucker’s Rule 29.15 motion following an evidentiary hearing as to Point Two. Because counsel was not ineffective for failing to make a meritless objection to the introduction оf admissible evidence, the motion court did not clearly err in denying Tucker’s Rule 29.15 motion without an evidentiary hearing as to Point Three. Accordingly, we affirm the judgment of the motion court.
Tucker was convicted, following a jury trial, of one count of first-degree statutory sodomy and two counts of first-degree child molestation and sentenced to ten years’ imprisonment. Tucker’s convictions arose оut of his contact with B.M. (born February 5, 2001) and G.M. (born May 5, 2003), sisters who lived in the same apartment building as Tucker. B.M. and G.M. interacted frequently with Tucker, visiting his apartment and receiving food and candy from him. Tucker would also fix things around the apartment building and often let the girls’ mother, Wanda Lee (“Mother”), do laundry in his apartment.
In August of 2009, both B.M. and G.M. told Mother that Tucker had touched their “private parts.” B.M. told Mother that Tucker had touched and licked her private parts, pointing to her vagina. Mother knew that was how B.M. referred to the female anatomy. G.M. also told Mother that Tucker had touched her private parts. Mother immediately called the police and took the girls to the hospital. B.M. and G.M. were later brought to the Child Advocacy Center (“CAC”), where they were each interviewed separately about the incidents by forensic interviewers. Both B.M. and G.M. told the interviewers the same story they had told Mother.
Tucker was charged by indictment in September of 2009 with statutory sodomy and child molestation as to B.M. and two counts of child molestation as to G.M. The charged timeframe as to B.M. was between February 5, 2001 and August 13, 2009, and the charged timeframe as to G.M. was between May 5, 2003 and August 13, 2009. On February 14, 2011, Appellant was charged as a рersistent misdemeanor offender by a substitute information in lieu of indictment, which listed the same charges and timeframes. The case proceeded to trial.
At trial, Tucker confirmed that B.M. and G.M. frequently visited his apartment and that he often gave them food. Tucker denied ever touching the girls sexually. Tucker also testified that he was friendly with Mother and had done favors for her in the past. Tucker stated that he became upset with Mother when she hinted that she wanted Tucker to help pay her rent.
Recordings of the CAC interviews were played at trial. B.M.’s and G.M.’s testimony at trial was also consistent with what they told Mother and the CAC forensic interviewers. B.M. in particular was very upset during the trial, screaming in the hallway outside of the courtroom prior to testifying and crying during direct examination. Although both girls testified at trial, сounsel declined to cross-examine either of them. Counsel did, however, cross-examine Mother.
The forensic interviewer from the CAC who interviewed B.M. also testified at trial, offering testimony about the concept of “grooming.” The forensic interviewer’s testimony about grooming during direct examination was as follows:
Q. Are you familiar with your training and education, the concept of grooming?
A. I am.
Q. And what is that concept?
A. The concept embodies this practice where a person may do a number of things to position themselves in a place of favor with a child or to overcome some inhibitions setting up a greater likelihood that they can then touch a child inappropriately without the child running or saying anything.
Q. Is that why you asked if anything else had been given to her? She had talked about the cat food аnd then you specifically asked her if anything else.
A. It’s part of my practice of trying to remember to ask that for a number ofreasons. It may attach an item or an object to allow investigators to come up with a specific date of timeframe as well as it gives a glimpse of perhaps the relationship between the child and the suspect.
Counsel did not object to this testimony аnd the trial continued. The jury found Tucker guilty of one count of first-degree statutory sodomy and two counts of first-degree child molestation. The trial court subsequently sentenced Tucker to ten years’ imprisonment.
This Court upheld Tucker’s convictions and sentence on direct appeal in State v. Tucker,
The motion court held a partial eviden-tiary healing solely with respect to Tucker’s cross-examinatiоn claim. The motion court denied Tucker an evidentiary hearing on his remaining two claims. At the hearing, Tucker and counsel each testified. Counsel explained the reasoning behind his decision not to cross-examine B.M. and G.M. at trial. On June 10, 2014, the motion court entered its Findings of Fact, Conclusions of Law and Order denying Tucker’s Rule 29.15 motion. This appeal follows.
Points on Appeal
Tucker presents three points on appeal. First, Tucker contends that the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing as to Point One because Tucker alleged facts not refuted by the record that would entitle him to relief on his ineffective assistance of counsel claim. Specifically, Tucker claims that counsel was ineffective for failing to file a motion to dismiss the substitute information in lieu of indictment because the charging document failed to adequately inform Tucker of the specific dates of the charges against him. Second, Tucker avers that the motion court clearly erred in denying his Rule 29.15 motion after an evidentia-ry hearing as to Point Two because Tucker proved facts showing that he was denied effective assistance of counsel. Specifically, Tucker argues that counsel was ineffective for failing to cross-examine B.M. and G.M. at trial. Third, Tucker contends that the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing as to Point Three because Tucker alleged facts not refuted by the record that would entitle him to relief on his ineffective assistance of counsel claim. Specifically, Tucker maintains that counsel was ineffective for failing to object to expert witness testimony about “grooming,” because such testimony constituted evidence of uncharged bad acts.
Standard of Review
Appellate review of a motion court’s denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15; Day v. State,
Discussion
To prevail on a claim of ineffective assistance of counsel, the movant must show by a preponderance of the evidеnce that (1) his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) he was prejudiced thereby. Sanders v. State,
There is a strong presumptiоn that counsel’s conduct fell within the “wide range of reasonable professional assistance.” Strickland,
I. Point One — Substitute Information
Tucker argues he was entitled to an evidentiary hearing on his claim that counsel was ineffective for failing to file a motion to dismiss the State’s substitute information in lieu of indictment. The focus of Tucker’s argument is that the charging document failed to adequately inform him of the specific dates of the charges against him, making it impossible for Tucker to defend himself. The substitute information in lieu of indictment identified a six-year and eight-year window of time, respectively, for the charges relating to each child. Tucker posits that had counsel filed a motion to dismiss, there is a reasonable probability the trial court would have sustained the motion. We disagree.
Under Missouri law, time is not of the essence in sex offense cases. State v. Bunch,
As a result, any motion to dismiss the substitute information on these grounds would have been unsuccessful. We are mindful that “[t]he decision whether to file a motion is a matter of trial strategy,” McArthur v. State,
II. Point Two — Failure to Cross-Examine
In Point Two, Tucker asserts that counsel was ineffective for failing to cross-examine B.M. and G.M. at trial about inconsistencies in their accounts of Tucker’s alleged abuse. Tucker maintains that had counsel, cross-examined B.M. and G.M., the outcome of the trial would have been different. We are not persuaded.
It is well-settlеd that reasonable choices of trial strategy, no matter how ill-fated in hindsight, cannot serve as a basis for a claim of ineffective assistance. Cole v. State,
The extent of cross-examination is generally a matter of trial strategy. Kelley v. State,
Counsel testified at the evidentia-ry heаring that his decision not to cross-examine B.M. and G.M. was a matter of trial strategy. Counsel explained that he
The record reflects that counsel carefully considered the substantial risks associated with cross-examining B.M. and G.M. based upon his professional experience, as well as the overall effect of his decision on Tucker’s defense, and made a reasonable strategic decision based on those factors. Counsel’s decision not to cross-examine B.M. and G.M., in light of the circumstances of the case, was reasonable trial strategy. Because Tucker failed to show that counsel rendered ineffective assistance by failing to cross-examine B.M. and G.M., the motion court did not clearly err in denying Tucker’s Rule 29.15 motion following an evidentiary hearing on this claim. Point Two is denied.
III. Point Three — Expert Testimony
Tucker contends in Point Thrеe that the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing because he alleged facts entitling him to relief on his ineffective assistance of counsel claim. Specifically, Tucker asserts that counsel was ineffective for failing to object to expert witness ■ testimony about “grooming,” claiming such testimony was evidence of uncharged bad acts that Tucker was grooming B.M. and G.M. in order to facilitate commission of the charged crimes. Tucker claims that had counsel objected to the testimony, the outcome of the trial would have been different. We disagree.
Ineffective assistance of counsel will rarely be found in cases where trial counsel has failed to object. Johnson v. State,
Here, the expert witness, a forensic interviewer for the CAC who interviewed B.M., provided general background information about the concept of grooming, a subject not commonly known to the average juror. The expert witness’s testimony about grooming consisted simply of a brief explanation of the concept and application of that concept to explain why she had asked B.M. certain questions during the forensic interview. Such testimony was helpful background information about a sexual abuse concept not understood by the average juror. Thus, the expert testimоny about grooming was relevant and admissible. See Whitnell v. State,
Because the expert testimony was relevant and admissible, counsel had no duty to object to the evidence. Any objection made by counsel to the testimony would have been meritless and unsuccessful. Because counsel was not ineffective for failing to make a meritless objection to the introduction of admissible evidence, Tucker failed to allege facts that would warrant relief on his ineffective assistance of counsel claim. Accordingly, the motion court did not clearly err in denying Tucker’s Rule 29.15 motion without an evidentiary hearing. Point Three is denied.
Conclusion
The judgment of the motion court is affirmed.
Notes
. All rale references are to Mo. R. Crim. P. (2013).
. All statutory references are to RSMo. 2000.