State v. Fults

• Decision Date: 04 March 2003
• Docket Number: No. ED 80673.,ED 80673.
• Citation: 98 S.W.3d 877
• Parties: STATE of Missouri, Respondent, v. Joseph FULTS, Appellant.
• Court: Missouri Court of Appeals

Page 877

98 S.W.3d 877

STATE of Missouri, Respondent, v. Joseph FULTS, Appellant.

No. ED 80673.

Missouri Court of Appeals, Eastern District, Division One.

March 4, 2003.

Joseph Fults, Moberly, MO, for Appellant.

Jeremiah W. Nixon (Jay), Attorney General, Stephanie Morrell, Assistant Attorney General, Jefferson City, MO, for Respondent.

GEORGE W. DRAPER III, Judge.

Joseph E. Fults (hereinafter, "Appellant") was convicted of one count of rape, Section 566.030 RSMo (1986), two counts of sodomy, Section 566.060 RSMo (1986), and one count of incest, Section 568.020 RSMo (1986). Appellant was sentenced to consecutive sentences of twenty-five years for rape, five years for each count of sodomy, and five years for incest. This Court affirmed Appellant's convictions and sentences. State v. Fults, 719 S.W.2d 46 (Mo. App. E.D.1986). Appellant then filed a Rule 27.26 (now repealed) motion for post-conviction relief which was denied, and subsequently affirmed by this Court. Fults v. State, 779 S.W.2d 688 (Mo.App. E.D.1989). Appellant filed another post-conviction relief motion which also was denied and subsequently affirmed by this Court. Fults v. State, 820 S.W.2d 525 (Mo.App. E.D.1991). Now, Appellant appeals from the judgment entered by the circuit court denying his Section 547.035 RSMo (Supp.2001)¹ pro se motion for post-conviction DNA testing. We affirm.

The facts from Appellant's underlying conviction are:

[Appellant's] fifteen year old daughter lived with [Appellant] and her younger brother in a house trailer situated in Jefferson County, Missouri. On the evening of September 20, 1983, [Appellant] went out drinking and returned home intoxicated in the early morning hours. [Appellant] entered his daughter's room. [Appellant] awakened her and demanded she let him get in bed with her. She refused and left the room. [Appellant] followed her and forced her back into the room, pulling her arm and hair. He demanded that she remove her clothing and repeatedly threatened to hurt her if she did not comply. She removed her clothes and was forced by [Appellant] to lie on the bed and orally sodomize him. [Appellant] licked his daughter's genitals, raped her, and forced her to orally sodomize him a second time. She was finally able to escape to a neighbor's trailer. The police were called and [Appellant] was arrested the next day.

Fults, 719 S.W.2d at 47.

Appellant filed his Section 547.035 pro se motion seeking DNA testing from his underlying conviction on September 6, 2001. The trial court entered its judgment denying his motion on the basis that Appellant's identity was not at issue. Appellant then brought this twopoint appeal.

In his first point on appeal, Appellant alleges there was clear error in denying his motion for forensic DNA testing because Appellant's basic rights to due process and equal protection were violated by not ordering a show-cause hearing. Appellant claims that the DNA testing would have established his innocence, discredited his daughter, and exonerated him as the actual perpetrator. We disagree.

Section 547.035.1 allows for persons in the custody of the department of corrections to file a post-conviction motion for forensic DNA testing when they claim the results will demonstrate their innocence. The motion must demonstrate certain enumerated requirements, including that "[i]denity was an issue in the trial." Section 547.035.2(4). Following the proper filing of the motion, the court will issue a show-cause order to the prosecutor unless the motion establishes that the movant is not entitled to relief, or the "court finds that the files and records of the case conclusively show that the movant is not entitled to relief." Section 547.035.4. After receiving Appellant's motion, considering the transcript of the trial, and the records of the proceeding, the court found that Appellant was not entitled to relief because his identity was not an issue in the trial. Section 547.035.4.

The identity of Appellant's daughter's accused assailant was not at issue during the trial, nor would the forensic DNA testing prove Appellant's innocence. In addition to the facts from Appellant's original appeal, testimony presented at his trial demonstrated that Appellant ejaculated into his daughter's mouth.² There was no testimony as to whether or not Appellant ejaculated into his daughter's vagina. Following the encounter with his daughter, there were fluids collected from her vagina but not her mouth. Assuming arguendo there were forensic DNA testing on the previously collected fluids and the results were negative as to Appellant's DNA, Appellant would not be proven innocent as to his convicted crimes. Hence, the trial court did not err in denying Appellant's motion without a show-cause hearing. Point denied.

In his second point on appeal, Appellant claims that he was deprived of his right to appellate counsel in that he is indigent and this Court rescinded the circuit court's appointment of counsel. Appellant alleges that because the Missouri Legislature specified Section 547.035 to be post-conviction relief, he should be afforded the same protection as provided in Rule 29.15 and Rule 24.035 post-conviction proceedings. Appellant recognizes Section 547.035 is silent as to remedial appellate procedures; however, Section 547.037, which delineates procedure for Section 547.035, states that an "appeal may be taken from the court's findings and conclusions as in other civil cases." Section...