State of Missouri, Respondent, vs. Desmond Harris, Appellant.

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Point II – Sentencing In Point II, Harris asserts that the trial court plainly erred in considering at sentencing his prior charges. Harris argues that because no evidence of the prior charges was presented, the trial court could not have determined by a preponderance of the evidence that he committed those offenses, and that because the trial court based its decision on that consideration, manifest injustice occurred. We agree. A. Standard of Review Harris acknowledges that he did not preserve this issue, but requests we review this claim under Rule 30.20, 1 which gives us the discretion to review a plain error affecting substantial rights if we find it has resulted in manifest injustice or miscarriage of justice. State v. Hill, 697 S.W.3d 885, 888 (Mo. App. E.D. 2024). We will not review claims of plain error "unless the claimed error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020) (internal quotation omitted). Plain error review is a two-step analysis where we first determine "whether there was 'evident, obvious, and clear' error 'affecting substantial rights'" and, if so, "whether that plain error resulted in 'manifest injustice or miscarriage of justice.'" Hill, 697 S.W.3d at 888 (quoting State v. Kendrick, 550 S.W.3d 117, 120-21 (Mo. App. W.D. 2018)). B. Discussion Trial courts are "allowed to rely on a wide range of evidence at sentencing, including evidence of the history and character of the defendant." Childs v. State, 440 S.W.3d 580, 585 (Mo. App. E.D. 2014). Evidence that may be considered includes conduct for which a defendant has been acquitted "so long as that conduct has been proved by a preponderance of the evidence."

1 All rule references are to the Missouri Supreme Court Rules (2024).

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United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam); State v. Clark, 197 S.W.3d 598, 602 (Mo. banc 2006) (per curiam). Generally, this burden of proof can be satisfied when the acquitted charges were part of the same case, or when the State presents evidence of the acquitted charges. See State v. Davis, 422 S.W.3d 458, 463-64 (Mo. App. E.D. 2014) (court considered acquitted conduct which had been part of the same underlying case); Clark, 197 S.W.3d at 599- 600 (State introduced testimonial and forensic evidence of acquitted conduct at sentencing). Mere evidence that a defendant was charged with an offense is irrelevant to establish that he or she actually committed that offense. See State v. Fassero, 256 S.W.3d 109, 119 (Mo. banc 2008) (holding that an indictment was not "history and character" evidence and therefore inadmissible because it was not relevant to prove that the defendant engaged in the conduct alleged in the indictment). Harris has established that the court's mistake was evident, obvious, and clear. The trial court was correct in that it could consider Harris's prior charges, but omitted the important qualifier – that they must be proven by a preponderance of the evidence. There was no evidence before the trial court that could have established that Harris committed the prior charges, even by a lower standard of proof. Harris's prior case was not part of the same underlying case, and was presided over by a different judge. The present case is unlike Davis, where the acquitted charges were part of the same case, thus heard by the same judge. 422 S.W.3d at 464. Furthermore, the State, at the direction of the trial court, merely summarized the charging language from the prior charges. If an indictment is an improper way to prove that a defendant committed conduct alleged therein, so too is a paraphrasing of its language. Respondent argues that it was not improper for the trial court to consider the prior charges because courts routinely consider the contents of police reports and sentencing assessment reports.