STATE OF MISSOURI, ) 

 ) 

Plaintiff-Respondent, ) 

 ) 

vs. ) No. SD32883 

 ) 

ANDREW LUKE LEMASTERS, ) Filed: June 20, 2014 

 ) 

 Defendant- Appellant. ) 

APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY 

Honorable Timothy W. Perigo, Circuit Judge 

AFFIRMED IN PART; REVERSED AND REMANDED IN PART 

 Andrew Luke Lemasters ("Defendant") appeals from his conviction of 

first-degree statutory sodomy. See § 566.062.1 He raises two points on appeal: 

(1) the trial court erred in denying his motion to disqualify the Newton County 

Prosecuting Attorney's Office and (2) the trial court erred in entering a written 

judgment showing convictions for two counts of first-degree statutory sodomy 

when Defendant was in fact convicted of only one count. We disagree with the 

arguments raised in Defendant's first point but find merit in Defendant's second 

point. Consequently, for the reasons explained below, we affirm Defendant's 

 

1

 Unless otherwise indicated, all statutory references are to RSMo 2000. 
2 

conviction for first-degree statutory sodomy but reverse and remand the case for 

entry of an amended judgment. 

Factual and Procedural Background 

 Defendant's daughter, H.L. ("Victim"), was born in 1992. Pamela 

Lemasters ("Lemasters") married Defendant in July 1992 and raised Victim as 

her own child. During the spring of 2001 when the family lived in Newton 

County, Defendant called Victim into his bedroom one day, told her to take her 

clothes off, and put his finger in her vagina. Other incidents of sexual abuse 

continued throughout Victim's childhood, but she did not tell anyone at the time 

because she was afraid of Defendant and afraid she would be separated from 

Lemasters and other members of the family. Victim eventually disclosed 

Defendant's acts of sexual abuse. 

 Defendant was charged with two counts of first-degree statutory sodomy. 

Initially he was represented by Melia Cheney ("Cheney") who was employed by 

the Missouri State Public Defender System ("MSPD"). Cheney subsequently left 

the MSPD and joined the Newton County Prosecuting Attorney's Office. While 

the case was pending, Defendant filed a motion to disqualify the Newton County 

Prosecuting Attorney's Office because Cheney had previously represented 

Defendant in this case. 

 The trial court held a hearing regarding the motion to disqualify. The 

testimony and court documents reveal the trial court ordered the MSPD to 

represent Defendant on August 7, 2012. The MSPD then sent a form letter to 

Defendant on August 8, 2012, advising him an attorney would subsequently visit 

him as well as giving other information. On August 16, 2012, Cheney entered her 
3 

written appearance in Defendant's case. Her office received telephone calls from 

Defendant's family members, but Cheney asked her secretary to call them back 

and inform them she could not speak with them about Defendant's case. 

Cheney attempted to get a bond reduction for Defendant. Cheney believed 

the bond reduction request involved a court appearance, but she "did not 

participate in a bond reduction hearing where witnesses were called to the 

stand." Cheney met with Defendant briefly on August 19 or 20, 2012. After this 

fifteen minute interview ended, Cheney asked one of her investigators to conduct 

a recorded interview with Defendant because Defendant had "a problem using 

too many pronouns" such that Cheney had difficulty "keep[ing] track of what he's 

talking about." Finally, Cheney completed an inter-office transfer memorandum 

on September 7, 2012, indicating other public defenders were working on the 

case for preliminary hearing. She left the MSPD on September 7, 2012, and 

began work at the Newton County Prosecuting Attorney's Office on September 

10, 2012. 

 Cheney testified that once she began work at the Newton County 

Prosecuting Attorney's Office she did not have any participation "in the 

prosecution of any individuals where [she] previously represented them." 

Additionally, she did not discuss any of those cases with her colleagues at the 

Newton County Prosecuting Attorney's Office except to say she had previously 

represented the individuals involved. Cheney worked only with cases where the 

defendants were represented by private attorneys or where the defendants 

represented themselves. 
4 

After the hearing, the trial court denied Defendant's motion to disqualify 

the Newton County Prosecuting Attorney's Office. 

Defendant was tried by a jury on June 4 - 5, 2013. During the instruction 

conference, the trial judge noted "[t]he state has elected to dismiss one of the two 

counts." The jury then found Defendant guilty of one count of first-degree 

statutory sodomy. The judge sentenced Defendant to 31 years in the Missouri 

Department of Corrections. Defendant appeals. 

Discussion 

Point I: Alleged Disqualification 

 In his first point, Defendant argues the trial court erred in denying his 

motion to disqualify the Newton County Prosecuting Attorney's Office. This 

argument is without merit because Cheney was appropriately screened from the 

prosecution once she joined the Newton County Prosecuting Attorney's Office. 

 "Generally, the court's decision on a motion to disqualify is reviewed based 

on the abuse of discretion standard." State v. Walters, 241 S.W.3d 435, 437 

(Mo. App. W.D. 2007). "Abuse of discretion only occurs if a 'ruling is clearly 

against the logic of the circumstances then before the court and is so arbitrary 

and unreasonable as to shock the sense of justice and indicate a lack of careful 

consideration.'" State v. Hawkins, 328 S.W.3d 799, 808 (Mo. App. S.D. 2010) 

(quoting State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004)). "If reasonable 

persons can differ as to the propriety of the trial court's action, then it cannot be 

said that the trial court abused its discretion." Id. (quoting Taylor, 134 S.W.3d 

at 26). The facts of this case show no abuse of discretion.
5 

 At the time of trial, Cheney was an attorney representing a government 

agency, the Newton County Prosecuting Attorney's Office. She had previously 

represented Defendant in the same criminal case as his public defender. Cheney 

did not participate in the prosecution of Defendant's case while she worked for 

the Newton County Prosecuting Attorney's Office and disclosed no information 

regarding his case. Consequently, this case involves imputation of a conflict 

involving a government attorney. The applicable rule is Rule 4-1.11(d).2 Rule 4-

1.10(d); Rule 4-1.11 cmt. 2. That rule provides as follows: 

Except as law may otherwise expressly permit, a lawyer currently 

serving as a public officer or employee: 

(1) is subject to Rules 4-1.7 and 4-1.9; and 

(2) shall not: 

(i) participate in a matter in which the lawyer 

participated personally and substantially while in 

private practice or nongovernmental employment, 

unless the appropriate government agency gives its 

informed consent, confirmed in writing[.] 

Rule 4-1.11(d). 

Rule 4-1.7 governs concurrent conflicts, so is not relevant to the 

disposition of this case. Rule 4-1.9, governing duties to former clients, provides 

that "[a] lawyer who has formerly represented a client in a matter shall not 

thereafter represent another person in the same or a substantially related matter 

in which that person's interests are materially adverse to the interests of the 

former client unless the former client gives informed consent, confirmed in 

writing." Rule 4-1.9(a). 

 

2 Unless otherwise indicated, all rule references are to Missouri Court Rules (2013). 
6 

These rules prohibit the government attorney's participation in a matter 

where the attorney participated personally and substantially prior to joining the 

government agency, but, contrary to the practice involving private attorneys, see

Rule 4-1.10, they do not impute the attorney's conflict to the entire agency. As 

the comments to the rules explain, "[b]ecause of the special problems raised by 

imputation within a government agency, Rule 4-1.11(d) does not impute the 

conflicts of a government lawyer currently serving as an officer or employee of 

the government to other associated government officers or employees, although 

ordinarily it will be prudent to screen such lawyers." Rule 4-1.11 cmt. 2. 

 In the present case, Cheney did not participate in any way in Defendant's 

case once she joined the Newton County Prosecuting Attorney's Office. Thus, 

Cheney complied with Rule 4-1.9(a) which prevented her participation in 

Defendant's case because she had participated in the case during her employment 

with the MSPD. Furthermore, Cheney did not talk to other attorneys in the 

Newton County Prosecuting Attorney’s Office about the case or appear in court 

on any MSPD dockets. Thus, the Newton County Prosecuting Attorney's Office 

complied with Rule 4-1.11. Cheney's individual conflict was not imputed to the 

government office as the procedures implemented to screen Cheney were 

appropriate. See Rule 4-1.11 cmt. 2. The trial court did not abuse its discretion 

when it denied Defendant's motion to disqualify. 

 In reaching this conclusion, we have not overlooked our previous decision 

in State v. Reinschmidt, 984 S.W.2d 189 (Mo. App. S.D. 1998). Rather, we 

believe Reinschmidt was incorrectly decided. 
7 

 In Reinschmidt, one of the attorneys associated with the prosecutor's 

office represented the defendant for two years while she worked as an assistant 

public defender. Id. at 192. After the former defense attorney started working 

for the prosecutor's office, the defendant filed a motion to disqualify the 

prosecutor's office. Id. at 191. The former defense attorney submitted an 

affidavit assuring the trial court she was not involved in the defendant's 

prosecution, and the trial court overruled the motion. Id. at 190-91. The 

defendant was subsequently tried and convicted. Id. at 191. 

 On appeal, the defendant again argued the prosecutor's office should have 

been disqualified. Id. This Court found the situation created "such suspicions 

and appearances of impropriety" that disqualification of the entire prosecutor's 

office was required. Id. at 191-92. 

 That conclusion was incorrect because it did not apply Rule 4-1.11. 

Nowhere in the Reinschmidt opinion did the Court cite to the applicable rule. 

Furthermore, the phrase the Court did use—"appearance of impropriety"—echoes 

the former rules of professional conduct which stated lawyers should strive to 

avoid "the appearance of impropriety." Rule 4, EC 9-6, Missouri Court Rules 

(1983) (repealed 1986). However, those rules were repealed when the current 

rules were adopted in 1986. State ex rel Horn v. Ray, 138 S.W.3d 729, 732 

(Mo. App. E.D. 2002). Thus, Reinschmidt applied a rule that was no longer in 

force. Consequently, it was improperly decided and should no longer be 

followed. 

 Defendant's reliance on State v. Croka, 646 S.W.2d 389 (Mo. App. W.D. 

1983), is unpersuasive for a similar reason. Croka was decided in 1983. Thus, 
8 

Croka applied the prior set of disciplinary rules which stated lawyers should 

avoid an "appearance of impropriety." Rule 4, EC 9-6, Missouri Court Rules 

(1983) (repealed 1986). As explained above, those rules were repealed in 1986. 

Since Croka did not apply the rule that is currently in force, it has no bearing on 

the proper result in this case. 

 Finally, Defendant also cites State v. Ross, 829 S.W.2d 948 (Mo. banc 

1992), in support of his argument for reversal. Ross is different from the present 

case because it involved a different type of conflict. In Ross, the prosecuting 

attorney's office charged the defendant with assault in connection with a fight. 

829 S.W.2d at 949. The defendant subsequently consulted with a private law 

firm in the hope of filing a civil lawsuit arising out of the same transaction. Two 

of the attorneys with that private law firm were also part-time prosecuting 

attorneys and received confidential information regarding the civil case at the 

same time the criminal prosecution was taking place. Id. The Supreme Court of 

Missouri discussed prior case law and the text of Rule 4-1.7 and Rule 4-1.11 before 

deciding the concurrent conflict created an appearance of impropriety. Id. at 

951. 

 Here, unlike in Ross, the conflict was not created by a concurrent 

representation but by Cheney's duties to a former client. A concurrent conflict of 

interest creates more potential dangers to the affected client. Since Ross

involved a concurrent conflict of interest and the present case does not, Ross is 

not controlling. 

 Cheney was properly screened from the prosecution of Defendant’s case 

when she joined the Newton County Prosecuting Attorney's Office. This 
9 

procedure complied with Rule 4-1.9(a) and Rule 4-1.11(d). Defendant has not 

alleged that Cheney's prior employment affected his trial in any way. The mere 

fact that an assistant prosecuting attorney who was properly screened previously 

represented a defendant in the same criminal matter should not automatically be 

imputed to require a prosecuting attorney and his entire staff to be disqualified. 

Consequently, the trial court did not abuse its discretion in denying Defendant's 

motion to disqualify the entire Newton County Prosecuting Attorney's Office. 

Defendant's first point is denied. 

Point II: Error in the Written Judgment 

 In his second point, Defendant argues the trial court erred in entering a 

written judgment which reflects convictions for two offenses when in fact 

Defendant was convicted of only one offense. The State concedes this was error, 

and we agree. 

 Clerical errors in the sentence and judgment in a criminal case may be 

corrected by an order nunc pro tunc where the written record does not reflect 

what was actually done. State v. Carroll, 207 S.W.3d 140, 142 (Mo. App. E.D. 

2006); Rule 29.12(c). "When the decision of the trial court as announced in open 

court was inaccurately memorialized, it is clear there was a clerical error." State 

v. Kerns, 389 S.W.3d 244, 248 (Mo. App. S.D. 2012). 

 Here, it is clear the written judgment does not reflect what actually 

occurred during trial and sentencing. Defendant was initially charged with two 

identical counts of first-degree statutory sodomy. During the instruction 

conference, the judge stated the State had dismissed one of the charges. Only one 

verdict director was submitted to the jury, and the jury returned only one guilty 
10 

verdict. Then, the trial court specifically imposed one sentence of 31 years 

incarceration. 

 Nevertheless, the judgment states Defendant was found guilty of two 

counts of first-degree statutory sodomy. Under this record, the trial court's 

intentions are clear—Defendant was convicted of one count and was sentenced to 

serve one term of 31 years incarceration—and a nunc pro tunc order is 

appropriate. See State v. Allison, 326 S.W.3d 81, 95 (Mo. App. W.D. 2010). 

 Defendant's second point is granted. 

Decision 

 Defendant's conviction for first-degree statutory sodomy is affirmed. The 

case is remanded for entry of an amended judgment reflecting only one 

conviction for that offense. 

Sheffield, J. - Opinion Author 

Francis, C.J. - CONCURS 

Rahmeyer, J. - CONCURS 

Bates, J. - CONCURS 

Lynch, J. - CONCURS 

Scott, J. - CONCURS 

Burrell, J. - CONCURS