State v. Cox

• Decision Date: 30 October 2018
• Docket Number: WD 80797
• Citation: 563 S.W.3d 801
• Parties: STATE of Missouri, Respondent, v. Lewis Shawn COX, Appellant.
• Court: Missouri Court of Appeals

563 S.W.3d 801

STATE of Missouri, Respondent,

v.Lewis Shawn COX, Appellant.

WD 80797

Missouri Court of Appeals, Western District.

OPINION FILED: October 30, 2018 Motion for Rehearing and/or Transfer to Supreme Court Denied December 18, 2018

Joshua D. Hawley, Attorney General, and Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Lewis Shawn Cox, Jefferson City, MO, Appellant, pro se.

Before Division Two: Alok Ahuja, Presiding Judge, and Thomas H. Newton and Mark D. Pfeiffer, Judges

Mark D. Pfeiffer, Judge

Mr. Lewis Shawn Cox ("Cox") appeals from the order of the Circuit Court of Buchanan County, Missouri ("motion court"), denying, without an evidentiary hearing, his post-conviction motion for DNA testing. We affirm.

Factual and Procedural History¹

Cox was charged by felony information with three counts of statutory sodomy in the first degree, one count of statutory rape in the first degree, and one count of rape in the first degree. When the State tried to file an amended information to correct the charging period on three of the counts, Cox filed a motion for continuance. The circuit court would not allow the State to proceed on the amended information without a continuance. The prosecutor therefore dismissed those three counts and proceeded to trial on the remaining two counts for statutory sodomy and rape.

Cox’s case went to trial before a jury, the Honorable Patrick K. Robb, presiding. Viewed in the light most favorable to the verdict, State v. Baumruk , 280 S.W.3d 600, 607 (Mo. banc 2009), the following evidence relevant to this appeal was adduced.

In February 2010, Cox took custody of his biological daughter, S.S.,² after her mother was incarcerated. S.S. was eleven years old at the time. Shortly after S.S. went to live with Cox, he began sexually abusing her.³ S.S. told her prior custodian about the abuse soon after it began. S.S. also told a girlfriend, T.B., about the abuse but asked her not to tell anyone. Then, in September 2014, when S.S. was spending the night at a friend’s house, she told her friend’s mother, R.W., that Cox had been sexually abusing her. R.W. called the police.

Officer Sarah Nolte came to R.W.’s home. R.W. explained to the officer that S.S. told her that S.S.’s father may have sexually assaulted her. Officer Nolte interviewed S.S. and took a four-page statement from her about what had happened to her with her father. Officer Nolte observed that S.S. was crying and upset. Officer Nolte and another officer took S.S. to the hospital where she underwent a sexual assault examination. Other officers were dispatched to Cox’s residence. When the officers arrived, they told Cox that they were there to investigate a claim of sexual assault, and Cox consented to a search of his apartment. The officers found evidence that corroborated certain details of S.S.’s statement to Officer Nolte.

Cox was arrested and taken to the Buchanan County Jail where he was interviewed by Detective Frank Till. Detective Till asked Cox about body fluids being on his bed. Cox said there should be body fluids from him and from two women with whom he had recently been involved. When asked if S.S.’s body fluids would be found on his bed, Cox said that S.S. and her girlfriend, T.B., had slept in his bed about three weeks earlier and therefore their bodily fluids might be found on his bed. When asked if his body fluids or pubic hairs would be found inside S.S., Cox said not unless it had come off his boxer shorts because she had been wearing them. Later, Cox said that his body fluids would not be inside S.S. unless she had wiped herself with a rag into which he masturbated. Cox said that he did not know if S.S. knew what the rag was for but then said, "Well, maybe she does." When Detective Till asked Cox if he had ever had sex with S.S., Cox stated that he had not had sex with S.S. but that he had flirted with some of her friends. He also told Detective Till that he once had walked in on S.S. and T.B. in a sexual situation.

Three days later, Cox called Detective Till wanting to give a DNA sample to compare against any evidence that might be found in the sexual assault examination kit done on S.S. Detective Till went to Cox’s apartment and obtained a DNA sample from him. Two days later, Cox contacted Detective Till and told him that he had found something behind the toilet that he wanted the detective to look at. Detective Till asked Cox what it was, but Cox was evasive and wanted the detective to examine it himself. When Detective Till refused to come over and look at the item, Cox said that he believed the item was a used condom that he had thrown in the trash after using it to have sex with a woman the night before S.S. made the allegation against him. Cox said the used condom was on a wooden hammer handle behind the toilet.

Sometime later, Cox called Detective Till again and said that the condom was still there and that he hadn't touched it. Detective Till asked Cox why he would want to come get a used condom. Cox said he believed that after he had sex with the woman, he discarded the condom in the trash and threw the trash in the dumpster. Cox believed that S.S. had retrieved the condom out of the dumpster, put it in the freezer, and then later turned it wrong-side-out and put it on the hammer handle and inserted the hammer handle inside of her so that his semen would be inside of her and show up in the sexual assault examination kit.

Laboratory tests revealed the possibility of semen on the vaginal swab taken from S.S. Seminal fluid and sperm cells were detected on S.S.’s underwear. Nothing was detected on the wooden handle. Semen was present on the used condom. The DNA profile of the sperm cells found on S.S.’s underwear was consistent with Cox’s DNA. Cox also could not be eliminated as the source of the major contributor to the DNA mixture profile from the outside of the condom.

The jury found Cox guilty of first-degree statutory sodomy and first-degree rape. Cox waived jury sentencing, and the trial court sentenced him to two consecutive thirty-year prison terms. Cox appealed, and this court affirmed Cox’s convictions on direct appeal in a per curiam order. State v. Cox , 531 S.W.3d 587 (Mo. App. W.D. 2017).

On August 25, 2016, Cox filed a pro se post-conviction motion for DNA testing pursuant to the provisions of section 547.035.⁴ He also filed a motion to recuse Judge Robb. On December 9, 2016, Cox filed a notice to remove his DNA motion to federal court. On May 3, 2017, the United States district court’s order remanding the motion for DNA testing to the Buchanan County Circuit Court was filed in the circuit court. On May 12, 2017, the motion court, without an evidentiary hearing, entered an order denying Cox’s post-conviction motion for DNA testing. The motion court found that DNA testing was conducted from the evidence collected in the case, and a DNA analyst testified at trial that analysis of the DNA profile found it was consistent with Cox’s DNA. The motion court concluded that any additional DNA testing of other items in evidence would not result in the development of exculpatory evidence.

Cox timely appealed.

Procedural Deficiencies

Before addressing Cox’s claims on appeal, we note that there are significant deficiencies in his appellate brief and in the record on appeal. This court struck his initial brief because the points relied on were not in compliance with the specific requirements of Rule 84.04(d). Cox subsequently filed an amended brief.

Cox appeals pro se. "Pro se appellants are held to the same standards as lawyers." MoBay Props., LLC v. White , 540 S.W.3d 876, 878 (Mo. App. W.D. 2018). "Although this court is mindful of the difficulties that a party appearing pro se encounters in complying with rules of procedure, pro se appellants must be required to comply with these rules." Id. "It is not for lack of sympathy, but rather is necessitated by the requirement of judicial impartiality, judicial economy, and fairness to all parties." Id. (internal quotation marks omitted).

Pursuant to Rule 81.12, Cox was required to provide this court with a sufficient record on appeal for our review. Rule 81.12(a) specifically requires an appellant to file a record on appeal containing "all of the record, proceedings and evidence necessary to the determination of all questions presented, by either appellant or respondent, to the appellate court for decision." Cox asserts that the motion court erred by not addressing a timely filed motion to recuse Judge Robb; however, Cox did not include his recusal motion in the legal file. Documents that are not contained in the legal file "do not constitute part of the record on appeal, and will not be considered in deciding an appeal." Moreland v. Div. of Emp't Sec. , 273 S.W.3d 39, 41 n.1 (Mo. App. W.D. 2008).

Furthermore, pro se appellants must comply with Supreme Court Rule 84.04, which sets forth various requirements for appellate briefs. MoBay Props., LLC , 540 S.W.3d at 878. "Compliance with the briefing requirements of Rule 84.04 is mandatory to ensure that the appellate court does not become an advocate by speculating on facts and arguments that have not been made." Id. We have the discretion to dismiss an appeal for briefing deficiencies that violate the rule. Id. However, "[t]hat discretion is generally not exercised unless the deficiency impedes disposition on the merits. It is always our preference to resolve an appeal on the merits of the case rather than to dismiss an appeal for deficiencies in the brief." Id. (quoting J.L. v. Lancaster , 453 S.W.3d 348, 350 (Mo. App. W.D. 2015) ).

Cox’s brief violates Rule 84.04(d), concerning points relied on. The rule provides that each point must identify the trial court ruling or action being challenged, state concisely the legal reasons for the claim of reversible error, and explain in summary fashion why, in the context of the case, the legal reasons support the claim of reversible error....