State v. Westcott

• Decision Date: 28 October 2003
• Docket Number: No. WD 62419.,WD 62419.
• Citation: 121 S.W.3d 543
• Parties: STATE of Missouri, Respondent, v. Karen Ray WESTCOTT, Appellant.
• Court: Missouri Court of Appeals

121 S.W.3d 543

STATE of Missouri, Respondent, v. Karen Ray WESTCOTT, Appellant.

No. WD 62419.

Missouri Court of Appeals, Western District.

October 28, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 23, 2003.

Karen Ray Westcott, Cameron, pro se.

Breck K. Burgess, Assistant Attorney General, Jefferson City, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, HAROLD L. LOWENSTEIN, Judge and PATRICIA BRECKENRIDGE, Judge.

JOSEPH M. ELLIS, Chief Judge.

Karen Ray Westcott appeals from the denial of his post-conviction motion for DNA testing pursuant to § 547.035, RSMo. Cum.Supp.2001. Appellant seeks to overturn his March 21, 1990 convictions on three counts of sexual abuse in the first degree, § 566.100,¹ one count of sexual assault in the first degree, § 566.040, two counts of deviate sexual assault in the first degree, § 566.070, and two counts of sexual abuse in the second degree, § 566.110. Appellant was sentenced to a total of thirty-eight years in the Missouri Department of Corrections.

As noted by this Court in Appellant's direct appeal:

The incidents giving rise to the charge[s] occurred during 1989 when Westcott lived with his wife, Maria, and their three children and two of Maria's teenaged daughters. The state presented evidence that one evening, while Maria was at work, Westcott rubbed the chest of one of Maria's daughters, put his hand inside her shorts and put a finger in her "private part" between her legs. Sometime later, Westcott twice got into the girl's bed, fondled her breasts, moved his hand between her legs and put a finger in her "private part." Once Westcott put his penis in the girl's "private place." Maria's other teenaged daughter testified that Westcott had fondled her breasts on two different nights.

State v. Westcott, 857 S.W.2d 393, 395 (Mo. App. W.D.1993).

Following his conviction, Appellant filed a motion for post-conviction relief under Rule 29.15, which was denied by the motion court following an evidentiary hearing. Subsequently, this Court affirmed both his conviction and the denial of his post-conviction motion. Id. at 398.

On May 15, 2002, Appellant filed a motion for post-conviction DNA testing pursuant to § 547.035. On August 29, 2002, the motion court denied Appellant's motion without issuing a show-cause order to the prosecutor or holding an evidentiary hearing. The motion court found that it appeared from the motion that Appellant was not entitled to relief and that the record in the case conclusively showed that Appellant was not entitled to relief. The motion court found that Appellant was "not entitled to relief on his motion because there is not evidence upon which DNA testing can be conducted; no such evidence was secured in relation to the crime; and identity was not an issue at trial."

In his sole point on appeal, Appellant contends that the motion court erred in denying his motion for DNA testing without an evidentiary hearing because he had alleged that the prosecutor and/or the prosecutor's agents had withheld DNA evidence from him at trial.² Appellant relies upon references in what he claims are DFS records indicating that one of the victims was seen by her family physician on June 27, 1989, at the request of her mother and that the doctor performed a pelvic examination and administered a pregnancy test at that time.³ Appellant argues that DNA samples must have been taken during that examination and that the State's failure to inform him of the doctor's examination and the availability of DNA samples deprived him of his rights to due process of law and to a fair trial. Appellant contends that the trial court erred in failing to conduct an evidentiary hearing "to determine the location and condition of the DNA evidence that was suppressed, before trial, by the Prosecution and/or his agents, to procure a conviction."

Our review of the motion court's ruling on a motion for DNA testing under § 547.035, as with any post-conviction proceeding, "is limited to determining whether the motion court's findings and conclusions are clearly erroneous." Snowdell v. State, 90 S.W.3d 512, 514 (Mo.App. E.D. 2002). "The motion court's findings and conclusions are clearly erroneous if, after reviewing the entire record, the court is left with the definite and firm impression that a mistake has been made." State v Tyler, 103 S.W.3d 245, 247 (Mo.App. E.D. 2003).

"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." State v. Fults, 98 S.W.3d 877, 879 (Mo.App. E.D.2003).⁴ "To be entitled to an evidentiary hearing on a post-conviction motion brought pursuant to Section 547.035, the movant must allege facts demonstrating that (1) there is evidence upon which DNA testing can be conducted; (2) the evidence was secured in relation to the crime; (3) the evidence was not previously tested by the movant;⁵ (4) identity was an issue in the trial; and (5) a reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing." Snowdell, 90 S.W.3d at 514 (citing § 547.035.2). "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.'" Fults, 98 S.W.3d at 879 (quoting § 547.035.4).

In his motion for DNA testing, Appellant contended that a pelvic examination and a pregnancy test⁶ were performed on one of the victims on June 27, 1989, and presumed that samples upon which DNA testing could be performed must have been obtained during that exam. Even if such a presumption were proper, Appellant failed to plead any facts indicating that any samples taken at that time were obtained proximate in time to any of the acts for which he was charged or to otherwise explain how such samples would contain any DNA relevant to the charges against him. Appellant was charged with conduct involving that victim that occurred in the spring of 1989, the final instance of which was to have happened in April or May 1989. The evidence presented at trial established that the sexual conduct all occurred between January 29, 1989, and the end of the school year in May 1989. Thus, the June 27, 1989 doctor's examination occurred well after any of the events...