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., 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 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 *805their
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., 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. Rule 84.04(d). The rule further provides
that "[t]he point shall be in substantially the following form: 'The trial court
erred in [identify the challenged ruling or action], because [state the legal reasons
for the claim of reversible *807error], in that [explain why the legal reasons,
in the context of the case, support the claim of reversible error].' " Id. "The
purpose of the briefing requirements regarding points relied on is to give notice
to the party opponent of the precise matter which must be contended with and answered
and to inform the court of the issues presented for resolution." MoBay Props., LLC
, 540 S.W.3d at 879 (internal quotation marks omitted)., Cox's first point relied
on "is clearly multifarious, containing more than one basis for reversal." Kirk
v. State , 520 S.W.3d 443, 450 n.3 (Mo. banc 2017) (internal quotation marks omitted).
"A point relied on violates Rule 84.04(d) when it groups together multiple, independent
claims rather than a single claim of error, and a multifarious point is subject
to dismissal." Id. "Multifarious points relied on are noncompliant with Rule 84.04(d)
and preserve nothing for review." Id. See also Thummel v. King , 570 S.W.2d 679,
688 (Mo. banc 1978) (a point relied on violates Rule 84.04(d) when it groups together
multiple contentions not related to a single issue)., Moreover, the first assertion
in Cox's first point relied on is that this court violated his constitutional rights
by harassing him, as a pro se litigant proceeding in forma pauperis , with the requirement
to file multiple copies of his appellate brief. Cox's first assertion does not
identify trial court error; instead, it is a matter that originated on appeal.,
As discussed above, the first assertion in Cox's first point is that this court
violated his constitutional rights by harassing him, as a pro se litigant proceeding
in forma pauperis , with the requirement to file multiple copies of his appellate
brief. This issue is moot., On January 5, 2018, this court notified Cox that his
case had been placed on a dismissal docket for failure to timely file his appellant's
brief, which was due on December 26, 2017. Cox was advised that his appeal would
be dismissed unless the brief was filed on or before January 22, 2018. On January
16, 2018, Cox filed a Motion to File Brief Under Protest Out of *808Time and for
Leave to File One Copy of the Brief Because of Undue Hardship and State Interferences.
On January 30, 2018, this court denied Cox leave to file one copy of his brief but
granted him until February 28, 2018, to file three more copies of his brief, at
which time his brief would be deemed filed. On February 9, 2018, this court advised
Cox that it had received two additional copies of his brief but that, pursuant to
the January 30 ruling, one additional copy was still required before February 28
before his brief would be deemed filed., The second assertion in Cox's first point
is that the trial court lacked subject matter jurisdiction when it denied his post-conviction
motion for DNA testing on May 12, 2017, because the United States district court
had not yet sent a certified remand order to the trial court. "Jurisdictional issues
present questions of law, which we review de novo and without deference to the circuit
court's determination." State ex rel. Nixon v. Moore , 159 S.W.3d 488, 490 (Mo.
App. W.D. 2005)., "The federal courts are courts of limited jurisdiction, empowered
to hear only such cases as are provided by the Constitution and the Constitutionally-authorized
acts of Congress." State ex rel. Nixon v. Moore , 108 S.W.3d 813, 816 (Mo. App.
W.D. 2003). The jurisdiction of the federal courts is defined in Article III, Section
2 of the United States Constitution. Id. "Although Article III does not in terms
permit the removal of cases to federal courts, removal was authorized by the First
Judiciary Act in 1789 as 'necessary and proper' to the execution of the tasks
delegated the national government." Id. 28 U.S.C. § 1446 eliminates conflict between
the federal and state systems of courts "by specifying that, once removal has been
procedurally effected, any subsequent state action is void, even if it turns out
the case was removed improperly." Id. However, if the federal court determines that
the case is not appropriate for federal jurisdiction, the court is to remand the
case to the state court for further proceedings, with the remand ending federal
court jurisdiction. Id. (citing 28 U.S.C. § 1447 ). The procedure for remand is
described in 28 U.S.C. § 1447(c), which states:, The third assertion in Cox's first
point is that the motion court erred by not addressing a timely filed motion to
recuse the judge on the grounds of unfairness and prejudice. A denial6 of a motion
for recusal for cause is to be affirmed unless that denial constituted an abuse
of discretion. Betts-Lucas v. Hartmann , 87 S.W.3d 310, 328 (Mo. App. W.D. 2002)
(citing *810Robin Farms v. Bartholome , 989 S.W.2d 238, 245 (Mo. App. W.D. 1999)
). A trial court abuses its discretion if the trial court's decision "defies logic
under the circumstances, is sufficiently arbitrary and unreasonable to shock the
conscience of the court, and exhibits a dearth of careful consideration." Id. "Put
another way, if reasonable persons would disagree regarding the appropriateness
of [the] trial court's decision, we must affirm." Id., Rule 81.12(a) provides that
"[t]he record on appeal shall contain all of the record, proceedings and evidence
necessary to the determination of all questions to be presented, either by appellant
or respondent, to the appellate court for decision." 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). The recusal motion is not included in Cox's legal
file. Without the recusal motion before us, the record is inadequate for us to review
Cox's sub-point that he was entitled to have Judge Robb recused before he ruled
on the DNA motion. The omission of the document necessary for a review on the merits
is an error fatal to Cox's appeal of this issue.7 This sub-point of Point I is
denied.8, In Cox's second point, he asserts that the motion court erred in denying
his motion for post-conviction DNA testing., A motion for DNA testing, pursuant
to section 547.035, is a post-conviction motion, governed by that standard of appellate
review set forth in Rules 24.035 and 29.15. Weeks v. State , 140 S.W.3d 39, 43-44
(Mo. banc 2004). Accordingly, "[d]enial of a post-conviction motion for DNA testing
is reviewed to determine whether the motion court's findings of fact and conclusions
of law were clearly erroneous." State v. Ruff , 256 S.W.3d 55, 56 (Mo. banc 2008).
A motion court's findings of fact and conclusions *811of law are clearly erroneous
only if a full review of the record leaves us with a definite and firm impression
that a mistake has been made. Id., "Section 547.035.1 authorizes a prisoner in the
custody of the Missouri Department of Corrections, who claims that forensic DNA
testing will prove that he is innocent of the crime for which he is imprisoned,
to file in the sentencing court a post-conviction motion for DNA testing." Hudson
v. State , 190 S.W.3d 434, 438 (Mo. App. W.D. 2006). Pursuant to section 547.035.2,
upon the filing of a post-conviction motion for forensic DNA testing, an evidentiary
hearing shall be afforded to a movant if the motion alleges facts demonstrating,
by a preponderance of the evidence, that: