STATE OF MISSOURI v. ANTHONY BREWER (2026)

Introduction

Anthony M. Brewer (“Brewer”) appeals his convictions of two counts of statutory rape in the first degree, two counts of sodomy, and one count of child molestation in the second degree, all involving two victims who were less than twelve years old. Brewer asserts two points on appeal. In Point One, Brewer argues the trial court erred in sentencing Brewer as a “persistent sexual offender” because the trial court's decision enhanced his sentencing range without a jury finding. Point Two contends the trial court erred in denying Brewer's motion to sever the charges.

Brewer's points on appeal are not preserved for appellate review. Point One does not facially establish substantial grounds for believing the trial court committed plain error. As to Point Two, Brewer failed to file a motion to sever the charges in the underlying case and thus this Court will not convict a trial court of error on an issue that was not presented to or decided by it. Therefore, this Court declines plain error review of both points on appeal.

Accordingly, the trial court's judgment is affirmed.

Factual and Procedural Background

Brewer was charged with three counts of statutory rape in the first degree (Counts One–Three), two counts of statutory sodomy (Counts Four and Six), and one count of child molestation in the second degree (Count Five). The charges involved two victims who were less than twelve years of age. Brewer was charged as a prior offender and a persistent sexual offender because he had previously been convicted of criminal sexual assault in Illinois in 1990. The matter proceeded to a jury trial.

On the first day of trial, before jury selection, the trial court took up the State's request to prove Brewer was a prior offender and a persistent sexual offender. The following colloquy took place:

THE COURT: Is -- there is a request to prove the defendant as a prior and persistent offender, correct?

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[PROSECUTOR]: Prior offender and a persistent sexual offender.

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[PROSECUTOR]: ․The [S]tate will prove that the defendant is a persistent sexual offender and is punishable by sentence to an extended term of imprisonment for life without eligibility for probation or parole ․ in that, number one, on or about 3/9/1990, defendant was convicted of criminal sexual assault ․ in St. Clair County, Illinois, an offense that would be statutory sodomy first degree if it occurred in Missouri․.

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THE COURT: All right. So then is it necessary to make any findings under 558.016 relevant to, like, a prior offender to qualify him?

[PROSECUTOR]: Well, I think the -- I don't think it's critical you make a prior finding that he's a prior offender. I think for the record it would be cleaner if we both -- or the Court makes finding that he is both a prior offender and persistent sexual offender under 566.125.

THE COURT: [Defense counsel], do you have a response?

[DEFENSE COUNSEL]: We'll waive arraignment, enter a plea of not guilty.

[PROSECUTOR]: To the information in lieu of indictment. Do you have a response to the allegation that he's a prior offender or persistent offender?

[DEFENSE COUNSEL]: No response, Your Honor.

THE COURT: You have no response to that?

[DEFENSE COUNSEL]: No response.

The trial court then found Brewer to be a prior offender and a persistent sexual offender. Brewer did not object to the court's finding he was a persistent sexual offender.

After the close of all of the evidence, the jury found Brewer guilty of Counts One, Two, and Four–Six, and acquitted him of Count Three. The trial court sentenced Brewer to consecutive terms of life imprisonment without the possibility of parole in the Missouri Department of Corrections on Counts One, Two, Four, and Six, and an additional consecutive sentence of fifteen years on Count Five.

This appeal follows.

Standard of Review

Neither of Brewer's points on appeal are preserved for review. “Rule 30.20 ¹ is the exclusive means by which an appellant can seek review of any unpreserved claim of error and said claim--no matter if it is statutory, constitutional, structural, or of some other origin--is evaluated by this Court's plain error framework without exception.” State v. Minor, 648 S.W.3d 721, 731 (Mo. banc 2022) (quoting State v. Brandolese, 601 S.W.3d 519, 530 (Mo. banc 2020)). Recently, the Supreme Court of Missouri explained the framework set forth in Rule 30.20:

The first sentence of Rule 30.20 dictates “[a]llegations of error that are not briefed or are not properly briefed on appeal shall not be considered by the appellate court.”

The second sentence of Rule 30.20 permits an appellate court to review “plain errors affecting substantial rights” that are not briefed or otherwise properly preserved for appellate review. An appellate court “may” in its discretion review such claims if the court finds “manifest injustice or miscarriage of justice” resulted from the error.

State v. Jones, 725 S.W.3d 577, 582 (Mo. banc 2025) (internal citations omitted).

“The plain language of Rule 30.20 demonstrates not every allegation of [plain] error is entitled to discretionary review.” Id. at 584. Rather, “the plain error rule is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review.” Id. (quoting Brandolese, 601 S.W.3d at 526).

Analysis

Point One

In Point One, Brewer argues the trial court erred in sentencing him as a persistent sexual offender because the trial court's decision enhanced his sentencing range without a jury making such finding. Brewer contends he “had a constitutional right to have the jury resolve the facts that enhanced his range of punishment pursuant to the persistent sexual offender statute.”² Brewer concedes his point on appeal was not properly preserved and requests plain error review.

“Under Rule 30.20, an appellate court is free to assess the facts and circumstances of each case to determine whether to exercise its discretion to review for plain error.” Id. The following are factors this Court considers in deciding whether to exercise its discretion to provide plain error review: Brewer's failure to object to the State's request regarding the submission of his previous Illinois offense, Brewer affirmatively asserting he had “no response” to the submission of the evidence, and Brewer's failure to object to the trial court's finding he was a persistent sexual offender.

Recently, in State v. El-Mumin, ED112755, 2025 WL 2698537, at *6–7 (Mo. App. E.D. September 23, 2025),³ this Court was asked to decide the same issue raised on appeal: whether the trial court plainly erred in finding defendant was a persistent felony offender, instead of submitting the issue to the jury. There, prior to jury selection, the trial court took up the State's motion, in which the State requested the trial court to take judicial notice of the defendant's prior convictions and make a finding he was a prior and persistent offender. Id. at *2. Defendant admitted he was convicted of two prior felonies, committed at different times and the trial court found he was a prior and persistent offender pursuant to section 558.021.⁴ Id. at *2–3. Defendant did not object to the trial court's finding. Id. at *3. On appeal, this Court recognized the Supreme Court of the United States, in Erlinger v. United States, 602 U.S. 821 (2024), held “virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt.” Id. at *8 (quoting Erlinger, 602 U.S. at 834). This Court explained the Supreme Court acknowledged as an exception any fact which increases the prescribed range of penalties could be “freely admitted in a guilty plea” and “[s]uch admission relieves the State of its burden to prove a submissible case.” Id. In line with that exception, this Court concluded “[f]or purposes of [d]efendant's persistent-offender finding, [there is] no difference between an admission at a guilty plea and an admission during colloquy with the trial court prior to trial․.” Id.⁵ This Court held the “[d]efendant's admission of the pleaded facts constituting his persistent status concede[d] that the proposition [was] true thus relieving the State of its burden of proof on the matter and relieve[d] the jury from having to make the finding.” Id. Therefore, the issue did not need to be decided by the jury. Id.

This case is no different. In El-Mumin, the defendant agreed to the admission of the evidence supporting he was a persistent felony offender. Similarly, here, Brewer had an opportunity to object to the evidence presented by the prosecutor regarding his status as a persistent sexual offender. Not only did Brewer fail to object, but when the prosecutor and trial court inquired whether he had a response to this evidence, he stated twice, “No response,” effectively agreeing to its admission. Like the defendant in El-Mumin, Brewer acquiesced, through his counsel, to the “admission of the pleaded facts constituting his persistent status concedes that the proposition is true thus relieving the State of its burden of proof on the matter and ․ the jury from having to make the finding.” See id. Thus, “Erlinger does not require a jury determination in this case.” Id.

As such, considering the facts and circumstances in this case, Brewer's claim of error does not facially establish substantial grounds for believing the trial court committed plain error. Accordingly, this Court declines to conduct plain error review. See Jones, 725 S.W.3d at 585 (stating an appellate court can decline plain error review “when an appellant fails to facially establish substantial grounds that the [trial] court committed plain error, i.e., evident, obvious, and clear error.”).

Point One is denied.

Point Two

In Point Two, Brewer argues the trial court abused its discretion in denying his motion to sever the charges because the “allegations were not of the same or similar character, part of the same transactions, and they were not acts or transactions that were connected or that constitute parts of a common scheme or plan.”

As a preliminary issue, this Court must first decide if Brewer preserved the issue for appeal. Rule 84.04(e) requires the argument section of an appellant's brief include, “a concise statement describing whether the error was preserved for appellate review” and “if so, how it was preserved[.]” Here, Brewer included the following in his preservation statement: “Appellant incorporates the rule for preservation as stated in the preservation paragraph of Point I as though fully stated herein.” This Court is puzzled by the use of incorporation by reference as Point One concerns a completely different issue than the one asserted in Point Two and, thus the preservation statement for each point on appeal would need to be different. Not to mention, “the use of incorporation by reference is not sufficient in the argument section[.]” Hale v. Burlington N. & Santa Fe Ry. Co., 638 S.W.3d 49, 62 (Mo. App. S.D. 2021) (quoting Frazier v. City of Kansas, 467 S.W.3d 327, 346 (Mo. App. W.D. 2015)). To be specific, Brewer's preservation statement needed to identify, with specific page references to the record, both:

(1) the challenged trial court ruling or action challenged in the point relied on and (2) how the legal reasons and the context of the case supporting those legal reasons as the claim for reversible error asserted in the point relied on were timely and specifically presented to the trial court in relation to the trial court making or taking the challenged ruling or action.

Id. at 61.

Here, a review of the record makes clear Brewer did not file a written motion to sever in the underlying case nor assert the issue in a motion for a new trial.⁶ See State v. Dodd, 712 S.W.3d 454, 463 (Mo. App. E.D. 2025); see also Rule 24.07. Thus, Brewer's claim of error is not preserved and is reviewable only for plain error. Dodd, 712 S.W.3d at 463.

Notably, Brewer failed to develop an argument under the plain error review framework. As stated in our standard of review, “[a]llegations of error that are not briefed or are not properly briefed on appeal shall not be considered by the appellate court.” Jones, 725 S.W.3d at 582. Additionally, this Court will not convict a trial court of error on an issue that was not presented to or decided by it. State v. Swearinger, 699 S.W.3d 232, 241 (Mo. App. E.D. 2024). Accordingly, this Court declines to exercise its discretionary authority to review this claim of error for plain error. See Jones, 725 S.W.3d at 585.

Point Two is denied.

Conclusion

Accordingly, the trial court's judgment is affirmed.

FOOTNOTES

1.   All references are to Missouri Supreme Court Rules (2025).

2.   Brewer relies on State v. Otis, ED112475, 2025 WL 1932425 (Mo. App. E.D. July 15, 2025), which has been transferred to the Supreme Court of Missouri. “When the Missouri Supreme Court grants transfer, the decision of the court of appeals is ‘necessarily vacated and set aside and may be referred to as functus officio,’ meaning ‘without further authority or legal competence.’ ” Bolden v. State, 423 S.W.3d 803, 808 n.6 (Mo. App. E.D. 2013) (citations omitted). Therefore, Otis has no analytical value or persuasiveness.

3.   This Court notes the defendant in El-Mumin requested transfer to the Supreme Court of Missouri, and that request is pending.

4.   All references are to Mo. Rev. Stat. 2016.

5.   This Court notes the defendant in El-Mumin was found to be a persistent felony offender under section 558.021. The fact Brewer was found to be a persistent sexual offender under section 566.125 does not affect our analysis.

6.   This Court notes Brewer's “motion for judgment of acquittal notwithstanding the verdict or, in the alternative, motion for a new trial” only asserts the trial court erred “when it overruled Defense Counsel's objections to the joinder of the allegations.” He makes no claim of error concerning any motion to sever. To clarify, joinder and severance are separate and distinct issues for appellate review which should not be confused. State v. Collins, 527 S.W.3d 176, 180 n.4 (Mo. App. W.D. 2017). “Joinder deals with the issue of what crimes can be charged in a single proceeding, while severance assumes that joinder is proper and leaves to the discretion of the trial court the determination of whether prejudice may result if charges properly joined were tried together.” State v. Warren, 141 S.W.3d 478, 486 (Mo. App. E.D. 2004).

Michael S. Wright, Presiding Judge

Philip M. Hess, Judge and Virginia W. Lay, Judge concur.