STATE v. HUBER (2026)

Introduction

A jury convicted Kyle J. Huber (“Huber”) of four counts of statutory sodomy in the first degree in violation of section 566.062 ¹ arising from multiple acts occurring between on or about January 1, 2020, and December 19, 2022. The jury assessed punishment at ten years on each count. The circuit court entered judgment in accordance with the convictions and sentenced Huber to ten years imprisonment on each count with the sentences to run consecutively for a total of forty years.

Huber raises two points on appeal. First, Huber claims the circuit court erred in denying an alibi instruction. Second, Huber claims the circuit court erred in excluding testimony from a character witness of Huber's character traits pertinent to the charge of statutory sodomy in the first degree.

Because Huber failed to make the requisite evidentiary showing to establish his proposed alibi defense, the circuit court did not err in denying submission of an alibi instruction, and this court denies Huber's first point. To the extent Huber's second point on appeal was preserved for appellate review, this court finds the circuit court did not abuse its discretion in excluding proposed evidence of character traits. Insomuch as Huber enlarged his second point of error on appeal and failed to preserve additional argument, this court declines to exercise its discretion to review the expanded point for plain error. This court denies Huber's second point.

Accordingly, this court affirms the judgment against Huber.

Factual and Procedural Background

Huber began dating Victim's mother in early 2019, when Victim was seven or eight years old. By October 2019, Huber moved into Victim's home in Perryville, Missouri. Victim called Huber “dad.”

On various occasions from January 1, 2020, to December 19, 2022, when they were alone, Huber repeatedly touched Victim's thighs, breasts, buttocks, and vagina. Huber used his hands and penis to touch Victim's vagina and buttocks.

During this timeframe, Huber worked as a traveling certified nursing assistant for a healthcare staffing company. At trial, Huber testified he took work assignments requiring him to travel for work between 2020 and 2022. Huber testified he would be gone for months at a time before returning home for no more than a few weeks.

Huber introduced evidence of his contracts for work assignments during the charged timeframe. The contracts indicate Huber was assigned to the following facility locations and terms: Cedar Rapids, Iowa from April 13, 2020 to July 11, 2020; Lake City, Iowa from July 8, 2020 to December 15, 2020; Springfield, Missouri from January 6, 2021 to April 3, 2021; Ste. Genevieve, Missouri from June 9, 2021 to July 31, 2021; Ste. Genevieve, Missouri from August 9, 2021 to November 27, 2021; Marshall, Missouri from December 8, 2021 to January 22, 2022; Perryville, Missouri from March 16, 2022 to June 11, 2022; and Ste. Genevieve, Missouri from June 14, 2022 to December 10, 2022. The contracts specified Huber's work assignments would be either for forty hours per week or for a designated number of twelve-hour day or night shifts per week.

Under these contracts, Huber was not required to remain at the facilities twenty-four hours a day for seven days a week, and he was allowed to take paid time off during the contract's term. Huber testified he commuted from his domicile in Perryville when working in Ste. Genevieve, and he acknowledged he was living in Perryville for the majority of 2021 and 2022.

Victim, her mother, and her little sister would sometimes visit Huber when he was traveling. Victim testified Huber continued to sexually assault her during these visits.

In 2022, Victim confided in a friend about the abuse. Police learned about the allegations, and a detective spoke with the Victim on December 20, 2022. Victim explained Huber had been sexually abusing her.

Officers arrested Huber and took him to the police station where he was interviewed. In the interview, Huber admitted he would give Victim massages and scratch her legs and there were instances where he would apply a cream on or around Victim's vagina. The interview was admitted as an exhibit at trial and played for the jury.

On December 21, 2022, Victim participated in a forensic interview during which she described the acts of sexual abuse. This interview was admitted as an exhibit at trial and played for the jury.

Detectives interviewed Huber a second time during which Huber admitted he had anal and oral sex with Victim. This second interview was admitted as an exhibit at trial and played for the jury.

At trial, Huber denied the allegations. Huber testified the statements he made in his second interview were not true and he felt like the only way the detectives would listen to him is if he told them what they wanted to hear.

Offer of Proof

After the close of the State's evidence, Huber made an offer of proof with respect to a proposed character witness, S.S. Huber sought admission of S.S.’s testimony that Huber possessed certain character traits making it less likely Huber would commit the offense of statutory sodomy in the first degree.

During the offer of proof, S.S. testified about her familiarity and friendship with Huber. She testified she had known Huber since 2009, and they worked together in 2021 in a facility in Perryville. S.S. testified she became aware of Huber's reputation and character over the course of that time. S.S. responded affirmatively in response to questions whether Huber possessed a reputation for being “professional,” “caring,” “friendly,” “law-abiding,” “peaceful,” “honest,” “sincere,” “genuine,” “forthright,” and he was a “good parent” and “appropriate with children.” In response to the question of whether Huber “didn't have a reputation of doing anything sexually inappropriate,” S.S. responded, “No.”

At the conclusion of this offer of proof, Huber argued these traits were “relevant character traits” for the charged offense of statutory sodomy akin to the trait of “peacefulness” being a relevant character trait for defendants charged with murder or “honesty” being a relevant character trait for stealing.

In turn, the State renewed its objections to the admission of this character evidence previously lodged in pre-trial motions in limine. The State argued the character traits S.S. testified to are irrelevant to the charges against Huber, because Missouri does not recognize any pertinent traits related to the crime of statutory sodomy. As such, the State argued the testimony was inadmissible hearsay.

The circuit court sustained the State's objection and did not allow S.S. to testify as to any character traits other than Huber's reputation for “truth and veracity.”

During her testimony at trial on behalf of Huber, S.S. testified about her familiarity and friendship with Huber. She testified Huber, in 2021, would travel for work, returning home for a couple of weeks to a month before leaving again. S.S. testified further Huber had a reputation for being honest and truthful no matter how challenging or hard pressed he might be.

Instruction Conference

During the instruction conference, Huber proposed an alibi instruction under MAI-CR 4th 408.06 ² arguing there was sufficient evidence from Huber's employment contracts that Huber was working in various locations during the charged offense period of January 1, 2020, to December 31, 2022. The proposed instruction read:

One of the issues in this case is whether the defendant was present at the home in which [Victim] lived on or about January 1, 2020 and December 19, 2022. On that issue, you are instructed as follows:

1. The state has the burden of proving beyond a reasonable doubt that the defendant was present at the time and place the offense is alleged to have been committed.

2. If the defendant was in Cedar Rapids, Iowa, and Lake City, Iowa, and Springfield, Missouri, and Sainte Genevieve, Missouri on or about January 1, 2020 and December 19, 2022, or if you do not find and believe from the evidence beyond a reasonable doubt that the defendant was present at the home in which [Victim] lived on or about January 1, 2020 and December 19, 2022, then you must find the defendant not guilty.

The State objected to Huber's proposed alibi instruction arguing Huber did not adduce sufficient evidence supporting this instruction, because Huber admitted he was living at home in Perryville for most of 2021 and 2022. The State argued further the evidence showed that even when Huber was traveling for work, Huber was not required to be in those locations twenty-four hours a day for seven days a week and could return home for weekends, vacations, and holidays. Moreover, the State argued just because Huber was under contract for work in another location during the time frame did not mean the act did not occur during the charged period and the Victim, a child, could not say precisely when the offenses were committed.

The circuit court sustained the State's objection and denied submission of the alibi instruction to the jury.

After a three-day jury trial, Huber was found guilty of four counts of first-degree statutory sodomy against Victim for four incidents of child sexual abuse occurring between on or about January 1, 2020, to December 19, 2022.

Huber timely filed a motion for judgment of acquittal after discharge of the jury, or, in the alternative, motion for new trial, which the circuit court denied.

This appeal follows.

Discussion

Point One – Alibi Instruction

In support of his first point on appeal, Huber asserts the evidence presented at trial proved he was somewhere other than the place of the crimes, the denial of an alibi instruction prejudiced his ability to defend against the charges, and the inclusion of an alibi instruction would have required the State to provide detail as to date, time, and place of the alleged incidents to contravene his alibi instruction. The circuit court did not err in rejecting Huber's requested alibi instruction because Huber failed to present sufficient evidence he was in a different place than the scene of the crimes during the entire time period of the charged crimes.

Standard of Review: De Novo Review

Appellate courts review de novo a circuit court's decision whether to give a requested jury instruction. State v. Lawson, 693 S.W.3d 82, 111 (Mo. App. E.D. 2023) (internal citations and quotations omitted). The sufficiency of evidence warranting submission of an instruction on alibi is a question of law for the court. State v. Franklin, 591 S.W.2d 12, 14 (Mo. App. E.D. 1979) (internal citation omitted). This court will only reverse the judgment when there is a reasonable probability the circuit court's error affected the outcome at trial. Lawson, 693 S.W.3d at 112 (internal citations and quotations omitted).

The Circuit Court Did Not Err in Rejecting Alibi Instruction

An alibi is “a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for defendant to be the guilty party.” Wren v. State, 313 S.W.3d 211, 218 (Mo. App. E.D. 2010) (internal citation and quotation omitted). To warrant an alibi instruction, this evidence must be sufficient to create a reasonable doubt in the average juror's mind as to the defendant's presence at the scene of the crime during the relevant time period. Lawson, 693 S.W.3d at 113 (internal citations and quotations omitted). “An alibi instruction should not be given ‘unless there is supportive evidence that the defendant was somewhere other than the place of commission, during the entire time of commission.’ ” Id. (emphasis in original) (“The trial court did not err in failing to issue Appellant's requested alibi instruction because he failed to present sufficient evidence establishing that his alibi covered the entire time of the commission of the crimes.”).

At trial, Huber testified he was in various cities away from Perryville at some points during the charged time period, but he admitted he was in Perryville for the majority of 2021 and 2022. His character witness, S.S., testified that around 2021, Huber would travel for work, returning home for a couple of weeks to a month before leaving again.

Additionally, the work contracts Huber introduced into evidence undermine his proposed alibi defense. The plain terms of these contracts indicate Huber was assigned to facilities in Ste. Genevieve and Perryville during various times within the charged time period. Huber acknowledged he was living in Perryville for the majority of 2021 and 2022 and he lived in the same home as Victim for the duration of these contracts. Huber further testified he commuted from his domicile in Perryville when working in Ste. Genevieve.

This evidence indicates Huber was not “somewhere other than the place of commission, during the entire time of commission.” Lawson, 693 S.W.3d at 113 (emphasis in original) (internal citations and quotations omitted). The evidence showed even when Huber was traveling for work, he was not required to be in those locations the entire time and could return home for weekends, vacations, and holidays. Thus, the evidence did not support Huber was “so removed” from the scene of the crimes “as to render it impossible for [him] to be the guilty party.” Wren, 313 S.W.3d at 218 (internal citation and quotations omitted).

Huber argues fundamental fairness requires “when an alibi is interposed, the time span within which the crime is alleged to have occurred must not be such as to place an impossible burden on the defendant to offer evidence of his whereabouts over an extended period of time” and cites to State v. Clark in support of this proposition. 509 S.W.2d 740, 743 (Mo. App. W.D. 1974) (denying appellant's point on appeal). However, “Time is not essential in child sexual abuse cases because it can be impossible to ascertain specific dates of the sexual abuse.” State v. Miller, 372 S.W.3d 455, 464 (Mo. banc 2012) (internal citations omitted). An “alibi defense does not change the nature of the charges against the defendant or suddenly incorporate time as a necessary element of the offense.” State v. Hoban, 738 S.W.2d 536, 541 (Mo. App. E.D. 1987) (internal citations omitted). “Any other rule would too often preclude prosecution of crimes involving child victims as here where the crimes are not discovered until some time after their commission.” Id. Hence, the State was not required to specify exact dates on which the sexual abuse occurred, and the use of a charged period of time was appropriate.

Huber's “defense can hardly be characterized as an alibi defense.” See id. at 540. “While it is true [Huber] contended he was away from home on business during certain dates within the charged period, he did not contend he was never at his home during the charged period.” See id. Huber failed to present sufficient evidence establishing his alibi covered the entire time of the commission of his crimes.

The circuit court did not err in rejecting Huber's requested alibi instruction. Huber's first point is denied.

Point Two – Exclusion of Character Testimony

In his second point on appeal, Huber argues the trial court erred in excluding testimony from S.S. of certain relevant character traits to the charged offense of statutory sodomy. There is no Missouri law, statutory or otherwise, prescribing relevant character traits of the charged offense of statutory sodomy. As such, the circuit court did not err in excluding the proposed testimony of S.S.

Standard of Review: Abuse of Discretion

“The decision to admit or exclude ․ testimony is within the sound discretion of the trial court.” State v. Jones, 322 S.W.3d 141, 144 (Mo. App. W.D. 2010) (internal citations omitted). “The trial court abuses its discretion when a ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. (internal citations omitted). “If reasonable minds could differ on the propriety of the ruling, no abuse of discretion has occurred.” State v. Benedict, 319 S.W.3d 483, 487 (Mo. App. S.D. 2010) (internal citation omitted).

The Circuit Court Did Not Err in Excluding Testimony of Character Traits

A party claiming the circuit court improperly excluded evidence must raise the claimed error in a timely fashion offering the evidence at trial and making a detailed offer of proof. Schultz v. Great Plains Trucking, Incorporated, 707 S.W.3d 570, 576 (Mo. banc 2025). The “party must preserve that claim by including it in its motion for a new trial” and presenting the claim “in a proper point relied on in the appellate brief. Finally, the party must provide a sufficient argument on that point in the party's brief.” Id.

“An offer of proof must demonstrate the relevance of the testimony offered, must be specific, and must be definite.” Jones, 322 S.W.3d at 144 (internal citation omitted).

The primary reason for the offer of proof is to preserve the record for appeal: While a secondary reason for an offer of proof is that it permits the judge to consider further the claim of admissibility, the primary reason is to include the proposed answer and expected proof in the official record of the trial, so that in case of appeal upon the judge's ruling, the appellate court may understand the scope and effect of the question and proposed answer in considering whether the judge's ruling sustaining an objection was proper.

Wilkerson v. Prelutsky, 943 S.W.2d 643, 646-47 (Mo. banc 1997) (internal citations and quotations omitted).

To be admissible, evidence must be both logically and legally relevant. Evidence is logically relevant if it tends to make the existence of a material fact more or less probable. Evidence is legally relevant when the probative value of the evidence outweighs unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.

State v. Taylor, 466 S.W.3d 521, 528 (Mo. banc 2015) (internal citations and quotations omitted).

A defendant is generally allowed to put on evidence of his good character concerning the character traits inherent in the crime charged. Such evidence is relevant to show the improbability that the defendant committed the charged crime and as substantive proof of innocence. Evidence of general good character that is not restricted to the traits of character involved in the crime, however, is not admissible.

Marschke v. State, 185 S.W.3d 295, 307 (Mo. App. S.D. 2006) (internal citations and quotations omitted).

At trial, Huber argued character traits identified by S.S. in the offer of proof made it more likely Huber did not commit first-degree statutory sodomy. Traits identified included “peaceful,” “friendly,” “law-abiding,” “professional,” “caring,” being a good parent, not sexually inappropriate, professional with clients, and Defendant had a reputation for being “appropriate with children.” Yet, Huber did not present the circuit court with any Missouri law either supporting admission of such evidence or identifying these specific character traits as traits inherent in the crime of first-degree statutory sodomy. To be clear, there is no legal authority in Missouri setting forth these traits as those inherent in the crime charged, and evidence of general good character is not admissible when not restricted to the traits of character involved in the crime charged. Marschke, 185 S.W.3d at 307.

Given the lack of legal support for admission of such evidence, we find the circuit court did not err in excluding the proposed character trait testimony of S.S. Additionally, given the discretion afforded to the circuit court in admitting or excluding evidence, this court cannot say the ruling is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.

The State correctly notes, on appeal, Huber expands the argument he presented to the circuit court by arguing now the circuit court erred in failing to apply law of other jurisdictions supporting admission of the proffered testimony. The expanded portion of Huber's argument is not preserved for appellate review, and this court declines to exercise its discretion to review the same for plain error. “Briefs on appeal cannot enlarge the assignment of error recorded at trial.” Seitz v. Lemay Bank and Trust Company, 959 S.W.2d 458, 463 n.18 (Mo. banc 1998); see also Miller v. Gulf, Mobile & Ohio Railroad Company, 386 S.W.2d 97, 104 (Mo. 1964).

An appellate court may review unpreserved claims of error regarding “the sufficiency of the information or indictment, verdict, judgment, or sentence.” Rule 30.20. Additionally, an appellate court has discretion to review “plain errors affecting substantial rights.” Id.

In reviewing these claims of plain error, this court must determine: “(1) whether the circuit court committed ‘plain error affecting substantial rights’; (2) whether ‘manifest injustice or miscarriage of justice’ resulted; and (3) whether the Court in its ‘discretion’ should review” these claims. State v. Jones, 725 S.W.3d 577, 582-83 (Mo. banc 2025). This court will conduct plain error review under Rule 30.20 only when the appellant's request meets this burden. Id. at 583 (citation omitted). This court will decline to review for plain error under Rule 30.20 unless the appellant makes this initial showing. Id. (citation omitted).

When confronted with a request to grant relief applying plain error review, this court may decline plain error review when an appellant fails to facially establish substantial grounds the circuit court committed plain error. Id. at 585. Here, Huber fails to facially establish substantial grounds the circuit court committed plain error in failing to apply law from other jurisdictions, which was not presented to the circuit court, to admit evidence of character traits that are not inherent in the crime of statutory sodomy.

Huber's second point on appeal is denied.

Conclusion

This court affirms the circuit court's judgment.

FOOTNOTES

1.   All statutory references shall be to RSMo (2016), unless otherwise indicated.

2.   All MAI-CR 4th references shall be to the version with the effective date of January 1, 2017.

Kathleen S. Hamilton, Judge

Lisa P. Page, Presiding Judge and Rebeca Navarro-McKelvey, Judge concur.