STATE v. BRIEN (2026)

Timothy O'Brien (O'Brien) appeals from the judgment of the Circuit Court of Jackson County (trial court) convicting him, after a jury trial, of three counts of child molestation in the first degree. The trial court sentenced O'Brien, as a predatory sexual offender pursuant to section 566.125,¹ to life imprisonment on each count to run consecutive with each other. O'Brien raises one point on appeal, arguing that the trial court plainly erred in sentencing him as a predatory sexual offender based on the trial court's finding, rather than the jury's finding, that he had a prior first-degree child molestation conviction. We affirm the trial court's judgment.

Factual and Procedural Background

The State charged O'Brien with three counts of the unclassified felony of first-degree statutory sodomy, two counts of the class A felony of first-degree child molestation, one count of the unclassified felony of first-degree sodomy, and one count of the class B felony of first-degree child molestation. In all counts, the State alleged that O'Brien was a predatory sexual offender, pursuant to section 566.125, because O'Brien had a previous first-degree child molestation conviction. In the two class A felony first-degree child molestation counts, in addition to the predatory sexual offender allegation, the State also alleged that O'Brien was a persistent offender pursuant to section 558.016 because he had previously been found guilty of two or more felonies committed at different times.²

A pre-trial conference was held on April 25, 2024. At that hearing the State sought to admit certified copies of O'Brien’s prior convictions for a 2016 second-degree statutory sodomy conviction and a 2016 first-degree child molestation conviction. When asked if defense counsel had any record he wished to make on the issue, defense counsel said that he did not have anything to add. The trial court received the certified copies of O'Brien’s prior convictions into evidence for purposes of the hearing and found that O'Brien was a predatory sexual offender under section 566.125, and a persistent offender under section 558.016 upon a finding of guilt in the case. Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840, 219 L.Ed.2d 451 (2024), discussed in further detail infra, was decided on June 21, 2024.

On November 15, 2024, an additional pre-trial conference was held where the trial court took up the procedural issue of how to handle the sentencing enhancement findings pursuant to Erlinger. To comply with Erlinger, the State suggested that the sentencing enhancement should be decided in a bifurcated phase, after the guilt phase, by submitting the issue of O'Brien’s prior convictions to the jury. O'Brien’s defense counsel stated that he would have to do more research before he took a position on how to handle the situation. The trial court then summarized the State's position as being that if the jury in fact found O'Brien to be a prior and persistent offender in the second phase, the case would then proceed to a sentencing hearing before the trial court. The trial court told O'Brien’s defense counsel that it would ask for his input if the case got to that point.

O'Brien’s case proceeded to a jury trial in early December 2024. O'Brien does not challenge the sufficiency of the evidence to support his convictions. Viewing the evidence in the light most favorable to the verdicts,³ the evidence adduced at trial showed the following:

Victim, born in January 2008, was O'Brien’s stepdaughter. Victim testified that starting when she was five or six years old, O'Brien began sexually abusing her. The abuse began after she and her family moved in with O'Brien. Victim testified that O'Brien would pull her pants down, position her so that she was face down on the edge of a bed and her feet were on the ground, and he would rub his penis back and forth against the outside of her butt and sometimes “between” her butt. Victim testified that sometimes O'Brien would put the tip of his penis into her vagina. She testified that this abuse happened multiple times a week for several years but it stopped when O'Brien left the home for a period of time. Upon O'Brien’s return to the home some time later, when Victim was around eleven or twelve years old, Victim testified that he made her touch his penis, over his clothes, with her hands. Victim told her mother, and that disclosure led to a forensic interview and investigation by the children's division, and, ultimately the State filing charges against O'Brien.

Before the close of the State's evidence, State's Exhibits 1 and 2, certified court records of O'Brien’s prior convictions for second-degree statutory sodomy and first-degree child molestation, were admitted into evidence. The trial court read a summary of the convictions to the jury.

O'Brien testified on his own behalf. He admitted that Victim was his stepdaughter and that he previously lived with her. O'Brien denied ever touching Victim inappropriately or ever putting his penis on or in Victim. O'Brien admitted to having the prior convictions for second-degree statutory sodomy and first-degree child molestation, that he pleaded guilty to those offenses, and that they occurred at different times. O'Brien admitted that the victim of the statutory sodomy offense had been his neighbor who was then nine years old, and that the victim of the child molestation offense had been his stepdaughter who was then less than fourteen years of age.

During closing argument, defense counsel emphasized that O'Brien had answered the State's questions about his convictions and counsel argued that O'Brien had admitted to his priors, took responsibility for his actions, and had “served his time.”

The jury ultimately found O'Brien guilty of three counts of first-degree child molestation,⁴ and not guilty on the remaining counts. Therefore, the counts for O'Brien to be sentenced on were two counts of first-degree child molestation, where the State had alleged predatory offender status, and one count of first-degree child molestation, where the State had alleged both predatory sexual offender and persistent offender status.⁵

Following the jury's verdicts, the State informed the trial court that although it had charged O'Brien as a predatory sexual offender and a persistent offender for one of the first-degree child molestation counts, it was not proceeding on its persistent offender allegation. The State reasoned that because the offense was an A felony, the range of punishment would not be impacted by a persistent offender finding. The State then contended that the case did not need to move to an Erlinger phase for the jury to determine a sentencing enhancement because it was not pursuing its persistent offender allegation and the predatory sexual offender allegation was predicated on only one prior conviction, the 2016 first-degree child molestation conviction. When the trial court asked defense counsel whether he wanted to weigh in on the issue, defense counsel replied that he did not, and only requested that the jury be polled before it was excused. The jury was polled and then excused by the trial court.

At the sentencing hearing in February 2025, for the first time, O'Brien argued that the trial court did not have the authority to sentence him as a predatory sexual offender because the issue of whether he had a prior first-degree child molestation conviction was not submitted to the jury as required by case law, including Erlinger. O'Brien’s counsel, therefore, requested that the trial court sentence him under the regular B felony range of punishment instead of the sexual predator enhanced sentence of life in prison with eligibility for parole, and specifically requested five years on those counts. The State argued that no case had applied Erlinger to the predatory sexual offender statutory scheme in Missouri and submission to the jury was not required to determine whether O'Brien had the one prior qualifying conviction. The trial court ultimately agreed with the State and sentenced O'Brien as a predatory sexual offender to life imprisonment with the possibility of parole, on each count, to be served consecutively. The trial court also ordered that O'Brien be required to serve a minimum of thirty years before he would be eligible for parole.

O'Brien appeals.

Standard of Review

At the sentencing hearing, O'Brien’s counsel objected for the first time to the trial court's failure to submit the predatory sexual offender finding to the jury. He failed to include the issue in his motion for new trial. To preserve an allegation of error for appellate review, an objection stating the grounds must be made at trial, that same objection must be included in the motion for new trial, and carried forward in the appellate brief. State v. Ratliff, 622 S.W.3d 736, 745 (Mo. App. W.D. 2021). “Including a claim of error in a motion for new trial is a requirement for preserving an issue for review[.]” State v. Walter, 479 S.W.3d 118, 123 (Mo. banc 2016). O'Brien acknowledges that his claim is unpreserved and he requests this Court review it for plain error under Rule 30.20.⁶

“Rule 30.20 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)). See also State v. Mosley, 729 S.W.3d 301, 308 (Mo. App. W.D. 2026). The Supreme Court of Missouri recently 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 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.” Mosley, 729 S.W.3d at 308 (citation omitted). “Unless manifest injustice or a miscarriage of justice is shown, an appellate court should decline to review for plain error under Rule 30.20.” Id.

When reviewing a trial court's decision for plain error, we conduct a two-step process:

The first step requires a determination of whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear. If plain error is found, the court then must proceed to the second step and determine whether the claimed error resulted in manifest injustice or a miscarriage of justice.

State v. Johnson, 720 S.W.3d 638, 645 (Mo. App. W.D. 2025) (quoting State v. Mills, 687 S.W.3d 668, 675 (Mo. banc 2024)). Because O'Brien seeks plain error review, he has the burden to show that plain error occurred and that a manifest injustice or miscarriage of justice resulted. See Jones, 725 S.W.3d at 583; Mosley, 729 S.W.3d at 308.

Legal Analysis

In his sole point on appeal, O'Brien argues that the trial court plainly erred in sentencing him as a predatory sexual offender based on the trial court's finding, rather than the jury's finding, that he had a prior first-degree child molestation conviction. O'Brien argues that the failure to do so was evident, obvious, and clear error affecting his substantial rights and that manifest injustice resulted. O'Brien, relying on Erlinger, contends that his prior conviction was a fact that increased his exposure to punishment and, therefore, it was a fact that had to be submitted to a jury and found unanimously and beyond a reasonable doubt.

In Erlinger, the government charged the defendant with being a felon in unlawful possession of a firearm. 602 U.S. at 825, 144 S.Ct. 1840. The government had also charged the defendant under the Armed Career Criminal Act (ACCA). Id. The ACCA increased the defendant's minimum sentence to fifteen years if the defendant had three prior violent felony convictions or serious drug offenses that were “committed on occasions different from one another.” Id. Although the defendant requested that a jury determine whether his previous convictions were committed on different occasions, the federal district court denied his request and proceeded to find that the defendant's prior convictions were committed on different occasions. Id. at 827, 144 S.Ct. 1840. On appeal, the United States Supreme Court held that the defendant was entitled, pursuant to the Fifth and Sixth Amendments, to have the jury unanimously determine beyond a reasonable doubt whether the prior convictions occurred on different occasions. Id. at 835, 144 S.Ct. 1840. The Supreme Court stated that “[v]irtually ‘any fact’ that ‘increase[s] 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 834, 144 S.Ct. 1840 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The Supreme Court noted that “[j]udges may not assume the jury's factfinding function for themselves” because it would violate the Fifth and Sixth Amendments. Id. at 834-35, 144 S.Ct. 1840. Notably, the Court held that “[w]hile recognizing [the defendant] was entitled to have a jury resolve ACCA's occasions inquiry unanimously and beyond a reasonable doubt, we decide no more than that.” Id. at 835, 144 S.Ct. 1840.

Erlinger also recognized that the narrow exception in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), permitting judges to find only “the fact of a prior conviction,” remained. Id. at 838, 144 S.Ct. 1840. Almendarez-Torres permits a judge to “do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Id. (quoting Mathis v. United States, 579 U.S. 500, 511-12, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016)). In Erlinger, the Supreme Court expressly declined to revisit Almendarez-Torres. Id. See also Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).

Turning to this case, section 566.125.5 defines a “predatory sexual offender,” in pertinent part, as “a person who ․ [h]as previously been found guilty of ․ committing child molestation in the first ․ degree ․” § 566.125.5. Section 566.125.4 provides that “[t]he court shall sentence a person to an extended term of imprisonment as provided for in this section if it finds the defendant is a predatory sexual offender and has been found guilty of ․ committing child molestation in the first ․ degree ․”⁷ Thus, in order to find that O'Brien was a predatory sexual offender, the trial court only needed to find that O'Brien had previously been found guilty of a qualifying offense contained in section 566.125, specifically, in this case, first-degree child molestation.

The trial court did not run afoul of Erlinger because the trial court only determined the fact of a prior conviction and not whether prior offenses occurred on different occasions. The trial court was permitted to determine what crime, with what elements, O'Brien was previously convicted of. See Erlinger, 602 U.S. at 838, 144 S.Ct. 1840. In making its finding that O'Brien was a predatory sexual offender, the trial court received into evidence and reviewed O'Brien’s prior 2016 first-degree child molestation conviction, finding the fact of the prior conviction only. Nothing more was required. The jury was not required to make this finding.

Here, because the trial court determined only the fact of a single prior conviction, not whether prior offenses occurred on different occasions, the trial court's finding falls within the Almendarez-Torres exception as explained in Erlinger. See id. (quoting Mathis, 579 U.S. at 511-12, 136 S.Ct. 2243) (“Under that exception, a judge may ‘do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.’ ”).

O'Brien acknowledges the exception in Almendarez-Torres, but contends that the Supreme Court is not fully convinced that the exception should not be overturned, that the Court is “suspicious” of its holding, and that his case is distinguishable from Almendarez-Torres because the possible sentence enhancement in his case is far greater than that contemplated by the Court in Almendarez-Torres. O'Brien urges us to reach a different conclusion here and find plain error. We decline to do so.

As the State points out, federal courts have recognized “that [while] the Supreme Court has questioned this exception, ․ it still remains good law.” Lairy v. United States, 142 F.4th 907, 914 n.4 (7th Cir. 2025). “[D]etermining ‘what crime, with what elements, the defendant was convicted of’ remains the province of the judge under the Court's prior precedent.” Id. at 914 (quoting Erlinger, 602 U.S. at 838, 144 S.Ct. 1840); see also United States v. Florence, 163 F.4th 1017, 1023-24 (6th Cir. 2026). Because Erlinger did not overrule Almendarez-Torres and instead expressly acknowledged that the exception permitting judges to find the fact of a prior conviction “persists,” we will continue to apply that exception. See Erlinger, 602 U.S. at 837-38, 144 S.Ct. 1840. There was no error, plain or otherwise, in the trial court sentencing O'Brien as a predatory sexual offender based on the trial court's finding, rather than a jury's finding, that O'Brien had previously been found guilty of first-degree child molestation.⁸

O'Brien’s sole point on appeal is denied.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

1.   Statutory references are to the Revised Statutes of Missouri (2016) unless otherwise noted.

2.   At the close of all the evidence, the State dismissed one of the first-degree statutory sodomy counts and one of the class A felony first-degree child molestation counts.

3.   State v. Wallace, 725 S.W.3d 112, 115 (Mo. App. W.D. 2025).

4.   Two of the first-degree child molestation guilty verdicts were lesser-included offenses of the charged offenses, first-degree statutory sodomy.

5.   As stated supra, in the April 25, 2024, pre-trial conference, the trial court had already found that O'Brien was a predatory sexual offender under section 566.125.

6.   Rule references are to the Missouri Supreme Court Rules (2025).

7.   Section 566.125.6 provides that a person found to be a predatory sexual offender shall be imprisoned for life with eligibility for parole. Section 566.125.7 then requires the court to set a minimum time required to be served before a predatory sexual offender is eligible for parole.

8.   We note that in State v. El-Mumin, the Eastern District of this Court considered whether it was plain error for a trial court to find that a defendant was a persistent felony offender instead of submitting the issue to the jury. State v. El-Mumin, No. ED112755, ––– S.W.3d ––––, 2025 WL 2698537, slip op. at *6-7 (Mo. App. E.D. Sept. 23, 2025). In El-Mumin, before jury selection, the trial court took up the State's request for it to make a persistent offender finding. Id. at *2. The defendant admitted that he was convicted of two prior felonies committed at different times, the trial court found that he was a prior and persistent offender pursuant to section 558.016, and the defendant did not object. Id. at *2-3.On appeal, the Court recognized the Erlinger holding as well as its directive that 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. at * 8. Therefore, in line with this, the El-Mumin court concluded that, for the purposes of the defendant's persistent-offender finding, there was no difference between an admission at a guilty plea and an admission during colloquy with the court before trial. Id. The Court held the “[d]efendant's admission of the pleaded facts” constituting his persistent status conceded the truth of the proposition, thus relieving the State of its burden of proof on that matter and relieving the jury from having to make the finding and that the defendant could not, on appeal, seek to avoid his own admissions. Id. The Court concluded that Erlinger did not require a jury determination in the case. Id. We note that the defendant in El-Mumin requested transfer to the Supreme Court of Missouri, and that request is pending.Again, in State v. Brewer, 731 S.W.3d 881 (Mo. App. E.D. 2026), the Eastern District of this Court considered the same issue raised on appeal in El-Mumin. Id. at 885–86. The Court held that the defendant had the chance to object to the State's evidence regarding his persistent sexual offender status, that he did not object, and when asked if he had a response to the evidence he stated “no response” twice, which effectively agreed to its admission. Id. Like the defendant in El-Mumin, the defendant acquiesced, through his counsel, to the “admission of the pleaded facts constituting his persistent status,” conceding the proposition was true, relieving the State of its burden of proof on the matter and the jury from having to make the finding. Id. Thus, the Court held that Erlinger did not require a jury determination in the case. Id.Here, like Brewer, O'Brien’s counsel did not object and stated that he had nothing to add when the State sought admission of his prior convictions, effectively agreeing to their admission. O'Brien additionally testified at trial and admitted to his prior first-degree child molestation conviction and its circumstances.El-Mumin and Brewer provide an additional basis for our holding that the trial court properly found O'Brien’s predatory sexual offender status rather than the jury, on the basis that O'Brien admitted to the prior conviction required for this status finding.

Janet Sutton, Judge

All Concur.