STATE OF MISSOURI v. JUSTIN BROWN (2026)

Convicted felon Justin Brown was operating a vehicle that an officer observed failing to maintain a single lane on a roadway. The officer, who was in a marked patrol car, activated his lights and attempted to initiate a traffic stop. Brown did not stop. That officer and two others in marked cars with flashing lights pursued Brown as he greatly exceeded the speed limit, drove past stop signs, cut through ditches and residential lawns, and twice attempted to sideswipe an officer in a pursuing patrol vehicle. The pursuit ended when an officer successfully performed a tactical vehicle intervention, which caused Brown's vehicle to go into a ditch and collide with a storm culvert. Brown fought the officers as they attempted to handcuff him and place him under arrest.

Brown was charged with first-degree assault, resisting arrest, careless and imprudent driving, failure to yield to an emergency vehicle, and failure to stop at a stop sign. The trial court found him to be a persistent offender and a jury found him guilty on all charges. His sentences were orally pronounced as fifteen years for first-degree assault, seven years for resisting arrest, one year each for careless and imprudent driving and failure to yield to an emergency vehicle, and ten days for failure to stop at a stop sign, all to run concurrently. He was given credit for time served. The written judgment reflects these sentences except as to Count II, resisting arrest, for which no sentence is shown, and Count V, failure to stop at a stop sign, for which both a seven-year sentence and a ten-day sentence are indicated.

Brown raises three claims on appeal: 1) erroneous admission of Exhibit 4, a map with the pursuit route labeled thereon; 2) plain error in that the trial court, rather than the jury, found him to be a persistent offender, which enhanced his sentence; and 3) the sentence reflected in the written judgment as to Count V, failure to stop at a stop sign, is materially inconsistent with the orally pronounced sentence. Brown's third point has merit and compels us to remand this case to the trial court for entry of an order nunc pro tunc correcting the written judgment to conform with the oral pronouncement of sentences on Counts II and V. We deny his other two points and affirm the convictions and written judgment in all other respects.

Admission of Map with Markings (Point I)

Brown first contends the trial court abused its discretion in admitting Exhibit 4, a map with the route of the pursuit traced and color-coded to indicate each of the three officers’ portion of the pursuit. When the exhibit was offered, Brown did not object that the map itself was inadmissible or that the route markings were inaccurate or misleading. His raised and preserved objection is based on foundation: only one of the pursuing officers verified Exhibit 4, so no foundation was laid as to the markings for the other officers’ pursuit routes on that exhibit.

“The standard of review for the admission of evidence is abuse of discretion. Trial courts have broad leeway in choosing to admit evidence; therefore, an exercise of this discretion will not be disturbed unless it is clearly against the logic of the circumstances.” State v. Townsend, 720 S.W.3d 918, 923 (Mo.App. S.D. 2025) (citation modified). “The decision to admit a diagram or drawing into evidence lies within the discretion of the trial court.” State v. Isa, 850 S.W.2d 876, 891 (Mo. banc 1993). “Generally, the use of maps, diagrams[,] and charts may be used to communicate complicated or confusing information to the trier of fact.” Scheble v. Mo. Clean Water Comm'n, 734 S.W.2d 541, 555 (Mo.App. E.D. 1987). “Maps, drawings, and diagrams which illustrate scenes and the relative location of objects are admissible if shown to be reasonably accurate and correct so as to permit the fact finder to understand the facts.” Blackburn v. Richardson, 849 S.W.2d 281, 291 (Mo.App. S.D. 1993).

The court's treatment of Exhibit 4 indicates careful consideration rather than an abuse of discretion. The State properly was denied the opportunity to refer to or publish Exhibit 4 during opening statements. During the State's case-in-chief, each pursuing officer testified to the route taken and incidents that occurred during their portion of the pursuit. The final officer testified Exhibit 4 was a fair and accurate depiction of the pursuit. In response to Brown's objection to the admission of Exhibit 4, the State noted that the route reflected on the map was based on the officers’ descriptions and “certainly aids the jury in understanding the case.” After admitting Exhibit 4, the court remarked, “The Court has observed the map, basically it is based on the reports from the officers who testified in the case and the routes they described in the testimony is [sic] what is represented on the map.” Although Exhibit 4 was admitted, the court sua sponte ruled that it would not be sent back with the jury during deliberation even if requested by the jury.

Brown's authentication argument relies heavily on the “personal observation” requirement of the standard for admission of a photograph: “that the photograph is an accurate representation of what it purports to show via the testimony of any witness who is familiar with the subject matter of the photograph and competent to testify from personal observation.” State v. Brownlee, 501 S.W.3d 556, 559 (Mo.App. E.D. 2016) (citation modified). Personal observation or familiarity with the subject or scene in a photograph typically would be required when a photograph is taken by a third party who does not testify at trial and the photograph serves as substantive evidence. See id. In this case, the substantive evidence was the officers’ testimony; the drawings of the pursuit route on Exhibit 4 were demonstrative.¹ The diagrams on the map served to aid the jury in understanding the officers’ oral testimony. See Isa, 850 S.W.2d at 892; Scheble, 734 S.W.2d at 555.

The testimony of the pursuing officers was sufficient to establish a foundation for admission of the demonstrative markings on Exhibit 4. The trial court did not abuse its discretion in admitting Exhibit 4. Point I is denied.

Persistent Offender Finding (Point II)

Brown next contends the trial court plainly erred in finding him to be a persistent offender, as a jury, not the trial court, was required to find the fact that multiple offenses were committed at different times before he could be sentenced as a persistent offender, citing Erlinger v. United States, 602 U.S. 821 (2024). Brown concedes this claim was not preserved and requests plain error review under Rule 30.20.²

Plain error review is discretionary and is to be used sparingly. State v. Jones, 725 S.W.3d 577, 584 (Mo. banc 2025). “[T]he plain language of Rule 30.20 demonstrates not every allegation of error is entitled to appellate review.” Id. at 584. “Certain types of claims are particularly ill-suited for plain error review and justify declining to review for plain error. This is especially true when the appellant's actions or inactions caused or contributed to the error alleged.” Id. (citation modified).

“ ‘Plain errors’ have been defined as errors that are ‘facially evident, obvious, and clear.’ Requiring the error to be ‘facially evident, obvious, and clear’ signifies the circuit court definitively should have recognized the error.” Id. at 583 (citation modified). “By their very definition, they are plainly erroneous, inherently self-evident, discernible, and undeniable, affecting the basic rights of a litigant. They are the type of errors on which the circuit court should have taken corrective action because, left uncorrected, a manifest injustice may result.” Id.

While Erlinger presents new considerations for Missouri courts, the legal standards and principles at issue are not novel. In State ex rel. Hanaway v. Hellmann, 728 S.W.3d 410, 415 (Mo. banc 2026), as modified (Feb. 24, 2026), our Supreme Court examined the application of Erlinger to the sentence enhancement provided in § 577.023.2 RSMo. (2016) for persistent offenders charged with intoxication-related traffic offenses. The court held that the statute was not unconstitutional on its face because both the statute and Erlinger concerns would be satisfied by a process in which the trial court makes a preliminary determination of persistent offender status prior to submission to the jury, and, upon a guilty verdict, additional sentence-enhancing facts are submitted to the jury for it to determine if the defendant is a persistent offender. Hellmann at 414-15. In reaching this holding, the court was guided by its prior holding in State v. Johnson, 524 S.W.3d 505 (Mo. banc 2017), which predates Erlinger.

Our colleagues in the Eastern District addressed Erlinger, its applicability to Missouri sentencing law, and the availability of plain error relief on an Erlinger claim in State v. El-Mumin, No. ED 112755, 2025 WL 2698537, at *10 (Mo.App. E.D. Sept. 23, 2025), reh'g and/or transfer denied (Oct. 27, 2025). El-Mumin recently was cited with approval in State v. Brewer, No. ED113149, 2026 WL 336249, at *4 (Mo.App. E.D. Mar. 10, 2026).

In this case we are guided not only by the post-Erlinger cases El-Mumin and Brewer, but also by State v. Anderson, 294 S.W.3d 96 (Mo.App. E.D. 2009), which predates Erlinger. In Anderson, the court declined plain error review when a trial court made a persistent offender determination after the case was submitted to the jury, rather than prior to submission as required by statute. The court held that plain error review was not warranted because defense counsel's statement of “no objection” when the court took up the issue, received evidence, and made its ruling constituted an affirmative waiver of appellate review. Anderson, 294 S.W.3d at 100.

As in El-Mumin, Brewer, and Anderson, Brown had the opportunity to object but effectively acquiesced by not objecting to the trial court's actions, receipt of the prior and persistent offender evidence, or ruling on the issue. When the trial court announced it was taking up the issue of Brown's prior and persistent offender status and the State offered certified copies of Brown's prior convictions, Brown's attorney stated, “No objection, your Honor.” No objection was raised when the court announced its finding that Brown is a prior and persistent offender. Brown did object to the jury seeing the exhibits regarding his prior convictions and to any reference to those exhibits in the jury's presence, with which the court and the prosecutor both agreed.

“A new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review.” El-Mumin, 2025 WL 2698537, at *8. It can be said that Erlinger did not change the law; it reiterated precedent and constitutional principles previously applied in Missouri and federal cases. Id. at *7 n.3. In any event, Erlinger was decided well before the trial and sentencing occurred in this case. Thus, a legal basis existed for an objection to be made and preserved, but Brown did not object. See id.

Brown has not carried his burden to facially establish substantial grounds for believing the trial court committed plain error. See Jones, 725 S.W. 3d at 583, 585; Brewer, 2026 WL 663249, at *4. Accordingly, we decline plain error review on Point II.

Sentencing (Point III)

In his final point, Brown asserts that the written judgment is materially inconsistent with the oral pronouncement of a ten-day sentence on Count V, failure to stop at a stop sign. The written check-box judgment contains a patent ambiguity in that it omits any sentence for Count II and appears to reflect both a seven-year sentence and a ten-day sentence on Count V.

“The written sentence and judgment of the trial court should reflect its oral pronouncement of sentence before the defendant. Where there is a material difference between the sentence orally pronounced and the corresponding written judgment, the oral pronouncement controls.” State v. Creekmore, 721 S.W.3d 917, 928 (Mo.App. S.D. 2025) (citation modified). The sentencing transcript leaves no doubt the trial court intended to impose and orally pronounced in open court a seven-year sentence on Count II and a ten-day sentence on Count V.³

Inaccurately memorializing the sentencing decisions announced by the trial judge in open court constitutes a clerical mistake, which may be corrected by an order nunc pro tunc. Id.; see also Rule 29.12(c). The State concedes the seven-year sentence reflected on the written judgment was entered in error and joins in Brown's request that the case be remanded for nunc pro tunc correction of the written judgment. Point III is granted.

Conclusion

We remand this case to the trial court for the sole purpose of entering an order nunc pro tunc correcting the written judgment to conform to the trial court's oral pronouncement of a seven-year sentence on Count II, resisting arrest, and a ten-day sentence on Count V, failure to stop at a stop sign. The written judgment and convictions are affirmed in all other respects.

FOOTNOTES

1.   Demonstrative evidence is “physical evidence that one can see and inspect (i.e., an explanatory aid, such as a chart, map, and some computer simulations) and that, while of probative value and usually offered to clarify testimony, does not play a direct part in the incident in question.” Richardson v. Hawes, 725 S.W.3d 301, 306 (Mo.App. S.D. 2025) (citation modified).

2.   Rule references are to Supreme Court Rules (2025).

3.   The maximum authorized punishment for failure to stop, a class C misdemeanor, § 304.351.8 RSMo. (2016), is a term not to exceed fifteen days. Section 558.011.1(8) RSMo. (Cum.Supp. 2021).

JACK A. L. GOODMAN, J. – OPINION AUTHOR

BECKY J. WEST, J. – CONCURS MATTHEW P. HAMNER, J. – CONCURS