STATE OF MISSOURI v. JOHN OTIS (2026)

John Otis appeals the circuit court's judgment convicting him of three counts of first-degree domestic assault, one count of armed criminal action, and one count of endangering the welfare of a child. The circuit court, after finding Otis a persistent offender [pursuant to section 558.016]¹ , sentenced him to prison terms of life for each of the three domestic assault counts, 15 years for armed criminal action, and seven years for endangering the welfare of a child. Otis brings three points on appeal, arguing: (I) there was insufficient evidence to determine he was a persistent offender; (II) the circuit court erred in determining Otis was a persistent offender rather than leaving the question to the jury; (III) and the jury was improperly instructed. Because there was sufficient evidence to find Otis a persistent offender and Otis has failed to demonstrate manifest injustice, the circuit court's judgment is affirmed.

Factual and Procedural Background

In July 2021, Otis, Victim, and a minor child were in a vehicle. As Victim drove, Otis became angry and started hitting the vehicle's dashboard. Victim pulled into a gas station and exited the vehicle along with the child. Otis moved to the driver seat and drove away. Otis returned to the gas station minutes later and told Victim to get into the vehicle. After Victim refused to do so, Otis drove the vehicle and positioned it in front of Victim and the child. Otis then accelerated and struck Victim with the vehicle. The child was able to move out of the way, but Victim was knocked to the ground. As Victim was getting back on her feet, Otis struck her with the vehicle a second time, pinning Victim between the vehicle and the gas station building. Otis then reversed the vehicle and fled.

Otis returned to the gas station on foot, struck Victim with a metal pole, punched her, and stomped on her until she was unconscious before fleeing again. The child was present for the attack and stayed with Victim until two bystanders brought him into the gas station building. Victim was then transported to the hospital.

The State charged Otis with three counts of first-degree domestic assault, one count of armed criminal action, and one count of endangering the welfare of a child. The circuit court found Otis to be a persistent offender pursuant to section 558.016 based on evidence the State submitted showing Otis has a 2009 conviction for felony assault and armed criminal action and a 2020 conviction for felony criminal trespass to residence under Illinois law.

A jury found Otis guilty of all charges. The circuit court sentenced Otis to prison terms of life for each of the three domestic assault counts, 15 years for the armed criminal action count, and seven years for the endangering the welfare of a child count. The court ordered the life sentences to run concurrently, with the 15-year sentence consecutive to the life sentences and the seven year sentence consecutive to the 15-year sentence.

Otis appealed the judgment, raising three points. After an opinion by the court of appeals, this Court granted transfer pursuant to Rule 83.02 and article V, section 10 of the Missouri Constitution. Because Otis has failed to demonstrate plain error or that there was insufficient evidence to find him a persistent offender, the circuit court's judgment is affirmed.

Standard of Review

Two of Otis's arguments on appeal are not preserved. “Generally, this Court does not review unpreserved claims of error.” State v. Brandolese, 601 S.W.3d 519, 525 (Mo. banc 2020). Appellate courts may exercise discretion, however, to review alleged errors under the plain error framework. “[P]lain errors affecting substantial rights may be considered in the discretion of the court ․ when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20. Courts will decline to review for plain error unless “the appellant's request for plain error review establishes facially substantial grounds for believing that the [circuit] court's error was evident, obvious, and clear and that manifest injustice or miscarriage of justice has resulted.” State v. Jones, 725 S.W.3d 577, 583 (Mo. banc 2025) (internal quotation omitted). “Generally, the existence of manifest injustice or miscarriage of justice depends on the strength of the evidence leading to conviction and whether the error was outcome determinative.” Id. (internal quotation omitted).

Otis's remaining argument relates to the sufficiency of the evidence in finding him a persistent offender. “[A] claim that there is insufficient evidence to sustain a criminal conviction is preserved for review without regard to whether it was raised below.” State v. Claycomb, 470 S.W.3d 358, 359 (Mo. banc 2015). This Court reviews de novo “whether the evidence is sufficient to permit a reasonable fact-finder to find the necessary facts beyond a reasonable doubt.” State v. Nowicki, 682 S.W.3d 410, 414 (Mo. banc 2024). “[T]his Court will accept as true all evidence tending to prove those facts and will draw all reasonable inferences in favor of finding those facts.” Id.

Discussion

This Court will first address Otis's unpreserved argument related to the procedure of the persistent offender determination and will subsequently consider Otis's argument that there was insufficient evidence to find him a persistent offender. Finally, the Court will consider Otis's unpreserved argument related to the jury instructions.

Persistent Offender Determination

Pursuant to section 558.016, a sentencing court may sentence a person to an extended term of imprisonment if the defendant is found guilty of a class B, C, D, or E felony and the defendant is a persistent offender. Section 558.016.1(1). The legislature defines a persistent offender as “one who has been found guilty of two or more felonies committed at different times.” Section 558.016.3.

Otis was sentenced to an extended term of imprisonment because he was found guilty of a B felony and the circuit court determined he is a persistent offender because he has been found guilty of two or more felonies committed at different times. See section 558.016.² During the pendency of Otis's direct appeal, however, the Supreme Court of the United States 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[.]” Erlinger v. United States, 602 U.S. 821, 834 (2024) (alteration and internal quotation omitted). The finding at issue in Erlinger was whether the defendant's prior convictions occurred on separate occasions. Id. at 836. The determination of Otis as a persistent offender exposes him “to an extended term of imprisonment” equivalent “to the authorized term of imprisonment for the offense that is one class higher than the offense for which the person is found guilty.” Section 558.016.7. Pursuant to Erlinger, therefore, a jury should make such a finding. Otis's argument, however, is not preserved and may be reviewed only for plain error. This Court declines to conduct plain error review because Otis “fails to facially establish substantial grounds that any alleged error the circuit court committed resulted in manifest injustice or miscarriage of justice.” Jones, 725 S.W.3d at 585.

Otis argues the error in permitting the circuit court to find him a persistent offender is a structural error justifying an automatic finding of manifest injustice because he was not convicted by the proper finder of fact and, thereby, was denied his right to a jury trial on the sentence enhancement determination. However, “[t]his Court has soundly rejected the notion there are different frameworks for examining a request for plain error review.” Id. The plain error framework applies to all claims of error, “even serious constitutional and statutory violations.” Id. Under this Court's plain error framework, manifest injustice is not presumed. See State v. Johnson, 524 S.W.3d 505, 514 (Mo. banc 2017); Brandolese, 601 S.W.3d at 530 (finding, despite a statutory violation, the defendant still bears the burden of establishing manifest injustice). Rather, “[m]anifest injustice is determined by the facts and circumstances of the case, and the defendant bears the burden of establishing manifest injustice.” State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006). Otis's unsupported and conclusory argument does not satisfy his burden to establish manifest injustice.

Otis also argues he suffered manifest injustice because he was sentenced to a higher sentencing range. As a persistent offender, however, Otis would have been subjected to the higher sentencing range if, pursuant to Erlinger, the jury determined him to be a persistent offender. To establish manifest injustice on this basis, therefore, Otis must demonstrate a jury would have made a different decision, i.e., that the error was outcome determinative. Brandolese, 601 S.W.3d at 533. Otis does not attempt to make this showing, however, instead relying on the argument that an Erlinger error is a structural error. As discussed above, this is insufficient to warrant reversal.

Further, even if Otis had preserved the claim of error, it would be subject to harmless error review, not automatic reversal. Although automatic reversal may be permitted in federal court for structural errors, Erlinger violations are not structural and, instead, are subject to harmless error review. See, e.g., United States v. Beasley, 163 F.4th 403, 406-07 (7th Cir. 2025) (“We reject Beasley's suggestion that his Erlinger error is structural. Instead, we review the error for harmlessness, as every federal circuit to address this issue has done.”); United State v. Xavior-Smith, 136 F.4th 1136, 1137 (8th Cir. 2025) (applying harmless error review in light of Erlinger); United States v. Brown, 136 F.4th 87, 94 (4th Cir. 2025) (same); United States v. Butler, 122 F.4th 584, 589 (5th Cir. 2024) (same); United States v. Campbell, 122 F.4th 624, 631 (6th Cir. 2024) (same); United States v. Johnson, 114 F.4th 913, 917 (7th Cir. 2024) (same); United States v. Rivers, 134 F.4th 1292, 1306 (11th Cir. 2025) (same).³ Because appellate review for a preserved Erlinger violation would be for harmless error, it is nonsensical that review of an unpreserved claim of error could require a higher standard, i.e., automatic reversal, as Otis suggests. For these reasons, this Court rejects Otis's arguments that an unpreserved Erlinger violation requires automatic reversal and his alternate argument that he suffered manifest injustice in the circuit court making the persistent offender determination.

Sufficiency of the Evidence Supporting Persistent Offender Status

Otis also argues the circuit court erred in finding Otis to be a persistent offender because there was insufficient evidence to make such a determination. Otis specifically argues there is not sufficient evidence to establish, beyond a reasonable doubt, that his prior Illinois conviction was for a felony. This Court reviews de novo “whether the evidence is sufficient to permit a reasonable fact-finder to find the necessary facts beyond a reasonable doubt.” Nowicki, 682 S.W.3d 410, 414 (Mo. banc 2024). “[T]his Court will accept as true all evidence tending to prove those facts and will draw all reasonable inferences in favor of finding those facts.” Id.

A persistent offender finding is required if “[e]vidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a prior offender, persistent offender, dangerous offender, persistent sexual offender or predatory sexual offender[.]” Section 558.021.1(2). The statute defines a persistent offender as “one who has been found guilty of two or more felonies committed at different times.” Section 558.016.3. The State's evidence, therefore, must be sufficient to permit a reasonable fact-finder to determine beyond a reasonable doubt Otis has been found guilty of two or more felonies committed at different times. Nowicki, 682 S.W.3d at 414; section 558.016.3. Otis does not dispute the fact he pleaded guilty to felonies committed in 2009 in Missouri. See supra note 1. The only dispute is whether there was sufficient evidence of another felony alleged to have occurred in 2020 in Illinois that would give rise to a finding that Otis has been found guilty of “two or more felonies committed at different times.”

To support a finding that Otis has been found guilty of a felony in Illinois, the State produced certified court records of Otis's Illinois case, including the information, indictment, plea form, an order the trial court entered memorializing his plea and sentence, and several motions to revoke Otis's probation following the guilty plea. Reasonable inferences sufficient to permit a reasonable fact-finder to determine beyond a reasonable doubt that the Illinois guilty plea was for a felony may be drawn from these documents. For example, the face of the order entered upon the guilty plea and sentence does not indicate Otis pleaded guilty to a lesser included or amended charge. In fact, the order states “defendant changes his plea on listed charges to guilty.” (Emphasis added). Although the listed charge is “CRIM TRESPASS TO RESIDENCE” without clarifying whether the charge is for a felony, the fact the order indicates it was Otis's plea that changed, rather than the charge, demonstrates the charge to which Otis pleaded guilty was the charge as stated in the indictment, i.e., a felony. Further, the indictment charging the felony was dated September 17, 2020, the same date Otis entered his guilty plea. The reasonable inference to be drawn is that Otis pleaded guilty to the charge as listed in the charging document. Additionally, the order of probation references Otis's guilty plea to a class “4.” Under Illinois law, “class 4” refers to a felony. 730 ILCS 5/5-5-1 (West 2020). In fact, each of the documents created after Otis's plea, i.e., each of the documents related to Otis's probation, consistently refer to the offense as a felony offense or “class 4.” This consistency, as well as the face and timing of the order entered upon Otis's guilty plea, are sufficient to permit a reasonable fact-finder to determine Otis pleaded guilty to a felony in 2020 in Illinois beyond a reasonable doubt.

Accepting as true all evidence tending to prove the Illinois conviction was a felony and drawing all reasonable inferences in favor of finding Otis a persistent offender, the evidence presented is sufficient to permit a reasonable fact-finder to find Otis a persistent offender beyond a reasonable doubt. Nowicki, 682 S.W.3d at 414.

Failure to Define Term in Jury Instructions

Finally, Otis argues the circuit court plainly erred in submitting a verdict-directing jury instruction without including the definition of an essential element of the offense. Specifically, the verdict director for first-degree domestic assault failed to include a definition of “serious physical injury.”

The Missouri Approved Instructions – Criminal require “serious physical injury” to be defined within the instruction. MAI-CR 4th 419.73, Notes on Use 8(a). Failure to define essential terms as required by the Notes on Use may constitute error. See State v. Rodgers, 641 S.W.2d 83, 84 (Mo. banc 1982) (holding failure to define terms requiring definition pursuant to the applicable Notes on Use constitutes error). Further, “[t]echnical terms which may be misapplied by the jury must be defined or explained in such a way as to give the jury a correct idea of their meaning.” Id. at 85 (internal quotation omitted). Nonetheless, Otis did not preserve this argument and this Court declines to conduct plain error review because Otis “fails to facially establish substantial grounds that any alleged error the circuit court committed resulted in manifest injustice or miscarriage of justice.” Jones, 725 S.W.3d at 585.

This Court exercises its discretion to decline plain error review of Otis's claim for two reasons. First, Otis's defense did not rely on the theory that Otis did not cause serious physical injury to Victim.⁴ Rather, Otis relied on a defense that the State had not proven he drove the vehicle that struck the victim. See State v. Burkett, 725 S.W.3d 565, 575 (Mo. banc 2025). Second, Otis failed to request the term “serious physical injury” be defined and stated he had no objection to how the jury was instructed. See id. at 574. Considering these factors, the Court declines to review Otis's claim for plain error. Id. at 575.

Conclusion

The circuit court's judgment is affirmed.

FOOTNOTES

1.   All statutory references are to RSMo 2016 unless otherwise noted.

2.   The State presented evidence demonstrating Otis pleaded guilty in January 2010 to the felonies of second-degree assault and armed criminal action in the St. Louis County circuit court. The State also purported to present evidence demonstrating Otis pleaded guilty in August 2020 to the felony of criminal trespass to residence in Madison County, Illinois. Otis disputes only the alleged Illinois felony.

3.   Although the Supreme Court in Erlinger did not conduct harmless error review or explicitly state under which standard such violations are to be reviewed, Chief Justice Roberts's concurring opinion and Justice Kavanaugh's dissenting opinion suggest Erlinger claims would be subject to harmless error review. 602 U.S. at 850 (Roberts, C.J., concurring); Id. at 859 (Kavanaugh, J., dissenting). The Supreme Court in Erlinger did not conduct harmless error review because it decided only the question directly before it. Id. at 835. (“While recognizing Mr. Erlinger was entitled to have a jury resolve ACCA's occasions inquiry unanimously and beyond a reasonable doubt, we decide no more than that.”).

4.   Otis did not rely on this defense, likely recognizing the record would not support it. The evidence adduced at trial demonstrates Otis struck Victim twice with a vehicle, pinned Victim between the vehicle and a building, and then later returned and struck her with a metal pole, punched her, and stomped on her. The evidence also demonstrates Victim became unconscious during the incident, had a “chunk of hair or scalp” torn from her head, and suffered lacerations to the head, black eyes, a torn earlobe, bleeding from the ear and head, gashes inside of the mouth, facial bruising, facial swelling, a bloodshot cornea, and “big holes” in her knees.

Kelly C. Broniec, Judge

All concur.