State of Missouri, Respondent, v. Mark R. Perry, Appellant.

STATE OF MISSOURI, Respondent, v. MARK R. PERRY, Appellant. ) ) ) ) ) ) ) ) ) No. ED113016

Appeal from the Circuit Court of the City of St. Louis The Honorable David A. Roither, Judge Introduction Mark Perry ("Appellant") appeals the circuit court's judgment entered after a jury convicted him of second-degree murder and armed criminal action. Appellant brings five points on appeal. In Point One, Appellant argues the circuit court abused its discretion in admitting photographs of firearm magazines, which were irrelevant. In Point Two, Appellant claims the circuit court abused its discretion in admitting a gun belt, ballistic vest, and shoulder holster, which were irrelevant. In Point Three, Appellant alleges the circuit court plainly erred in giving the voluntary manslaughter instruction because it modified the applicable Missouri Approved Instruction ("MAI"). In Point Four, Appellant contends the circuit court abused its discretion in admitting evidence about his

2 bond violations because it was unlawful propensity evidence. In Point Five, Appellant posits the circuit court violated his constitutional rights under Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840, 219 L.Ed.2d 451 (2024), when the circuit court, rather than a unanimous jury, made the factual determinations necessary to prove his prior and persistent status. Because Appellant cannot demonstrate a reasonable probability the outcome of his trial hinged on the admission of the weapons-related evidence, Appellant cannot show he was prejudiced. Points One and Two are denied. Because Appellant caused or contributed to the alleged instructional error, this Court exercises its discretion to decline plain error review of his point. Point Three is denied. Because Appellant submitted the voluntary manslaughter instruction about which he now complains, he invited any error and waived plain error review. Point Three is denied. Because the evidence of Appellant's escape from GPS monitoring custody was relevant to show his consciousness of guilt, and because he opened the door to the admission of the other bond violations, the circuit court did not abuse its discretion in admitting this evidence. Point Four is denied. Because Appellant freely admitted the prior convictions listed in his indictment were valid, he relieved the jury of its fact-finding burden and waived his Erlinger rights. Point Five is denied. The circuit court's judgment is affirmed.

3 Factual and Procedural Background Appellant does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the jury's verdict, the evidence established the following: 1

1 State v. Vandergrift, 669 S.W.3d 282, 291 (Mo. banc 2023). Appellant a nd K.M. ("Partner") were in a relationship for over 15 years and have two children together. Partner met J.J. ("Nephew") a year before the shooting and took him in. Partner testified Nephew had no other family but that he soon "became [her] family." On the night of September 6, 2021, Partner worked a shift at a restaurant in downtown St. Louis. When her shift ended, Partner asked Appellant and Nephew to pick her up. Around this same time, B.S. ("Victim") was travelling in the area. Downtown surveillance cameras captured the entirety of their movements that night. At 11:38 p.m., the cameras revealed Nephew drove Partner's white, three-row Suburban SUV to the restaurant. Nephew was wearing a white tank top and neon yellow pants with a vertical stripe down the legs. He parked the Suburban and retrieved Partner. Partner got into the driver's seat, with Nephew taking the front passenger seat. Nephew and Partner testified Appellant was sleeping behind them. Partner drove north on 4th Street, a one-way road for northbound traffic only. Victim drove the wrong way down this street in a Dodge Charger. As the two cars passed each other, Partner rolled down the window and shouted, "Bitch, you're going the wrong way. This is one-way." Partner then continued north on 4th Street before turning east on Washington Avenue. She stopped at

4 the traffic light at Washington Avenue and Memorial Drive, behind an other car. Victim waited for another car to pass him on 4th Street, then turned around and drove northbound. He turned east on Washington Avenue and stopped at the same traffic light as the Suburban, pulling ahead of it in the next lane. At this point, the surveillance footage captured both cars from behind, roughly one block away. At 11:53 p.m., the traffic light turned green and the car in front of the Suburban accelerated out of the intersection. The Suburban moved forward, pulled even with the Charger, and applied its brakes. The Charger also applied its brakes. After a few seconds, an arm reached out of the passenger side of the Suburban and shot at Victim. Mere moments later, another arm reached out of the passenger side and shot at Victim. Both arms remained out of the car as the Suburban pulled away. The Charger accelerated forward, lodging itself into the north stairwell of the Arch Grounds. Appellant and Nephew dropped off Partner at her Monte Carlo in Illinois. Appellant arrived at his girlfriend's ("Girlfriend") house around 12:30 a.m. Appellant woke her up, gave her a kiss, said he was back in town, and told her he would "catch up with [her] tomorrow." Meanwhile, the police were arriving at the scene. The police recovered fourteen 9- millimeter casings, fired from two different guns. One firearm left elliptical firing pin impressions on 10 casings. The other firearm left hemispherical firing pin impressions on four casings. The casings' spray pattern indicated the firearms continued to discharge even as the Suburban pulled away. Seven bullets hit Victim and one severed his carotid artery, killing him almost instantly.

5 St. Louis Metropolitan Police Department ("SLMPD") Detective Sergeant Matthew Frictl viewed the surveillance footage and gave the Suburban's license plate number to SLMPD Detective Thomas Walsh. Detective Walsh discovered Partner had an address in Illinois and connected her to Appellant through phone numbers, a police report, and "a few other things." Using "detective work," Detective Walsh connected both Appellant and Partner to a house in St. Louis County ("St. Louis County House"). At the St. Louis County House, Appellant and Nephew, who was still wearing the tank top and neon pants from the night before, moved the Suburban out of the driveway an d took the Monte Carlo out to pick up Appellant and Partner's kids. After waiting until the Monte Carlo was a safe distance from the house, the police pulled Nephew and Appellant over and transported them to the police station for questioning. Partner gave the police consent to search the St. Louis County House and then was transported to the police station for questioning. Inside the house, the police seized a ballistic vest, gun belt, and shoulder holster. They took photographs of and seized handgun magazines lying around the house. Three of the seized magazines were from 9-millimeter firearms which leave hemispherical firing pin impressions on a bullet's casing, consistent with the firearm that fired four bullets at the crime scene. In the Suburban, the police found a blanket in the second row of the car. Partner denied to police she was in the Suburban that night, but later admitted she and Appellant were in the car. Importantly, Partner said Appellant was in the second row of the Suburban, not the third. When Detective Walsh told Appellant he had been placed in the car, Appellant repeatedly denied he was ever in the Suburban. He insisted he was

6 with Girlfriend that night who could provide Detective Walsh with his alibi. Girlfriend did not provide Appellant an alibi at trial. At trial, Partner testified Appellant was sleeping in the third row of the Suburban when the shooting occurred. Nephew testified he and Appellant were returning from a concert where Appellant had consumed marijuana, which made him sleepy. Nephew testified he dual-wielded both firearms and killed Victim in self-defense. He testified he saw something shiny from the car and thought Victim was raising a gun. Nephew stated he continued to shoot because he thought the echo of his shots from the nearby overpass was Victim attempting to shoot back. He testified he received the guns for the first time that same day from a friend whose last name he forgot. He stated he and Appellant manufactured an alibi and he threw the murder weapons out of the car window. The jury convicted Appellant of second-degree murder and armed criminal action. The circuit court found him to be a prior and persistent offender and sentenced him to twenty-five years' imprisonment on the murder count and 10 years' imprisonment on the armed criminal action count, to run consecutively. This appeal follows. The points will be addressed out of order for clarity and additional facts will be adduced in the analysis section to reduce repetition. Discussion Point Four: Absconding Evidence Admissibility Party Positions Appellant contends the circuit court abused its discretion in admitting evidence of his multiple bond violations because it was unlawful propensity evidence. The State

7 contends this evidence was relevant because it demonstrated his consciousness of guilt, and, even if it was not, Appellant opened the door to this evidence by eliciting—on his own—evidence regarding his bond compliance. Analysis This Court will first analyze the evidence regarding Appellant's escape from GPS monitoring custody, then address all other evidence regarding his bond compliance. This Court holds the former was relevant because it indicated Appellant's consciousness of guilt and the latter was admissible because he opened the door to it. This Court "review[s] a [circuit] court's decision to admit evidence for an abuse of discretion." State v. Betts, 559 S.W.3d 47, 57 (Mo. App. E.D. 2018). "A [circuit] court abuses its discretion when its ruling is clearly against the logic of the circumstances then before it, and is so unreasonable as to indicate a lack of careful consideration." Id. "If an abuse of discretion is found, [this Court] will reverse only where the error resulted in prejudice so substantial that it deprived the defendant of a fair trial." Id. On October 24, 2023, Appellant was on GPS monitoring for this offense. The circuit court granted the State's motion to revoke his bond and granted his request to self- surrender to law enforcement before October 25, 2023, at 5:00 p.m. Instead of turning himself in, Appellant cut off his GPS ankle monitor and went into hiding. Because of his failure to self-surrender, a warrant was issued for his arrest on October 26, 2023. SLMPD Detective Steven Saito testified his Fugitive Apprehension Strike Team apprehended Appellant one month later in a female companion's house, hidden underneath the cushions of a storage sectional sofa. He lay on the floor and refused to surrender. This

8 escape evidence was relevant to show his consciousness of guilt. See State v. Williams, 97 S.W.3d 462, 469 (Mo. banc 2003) ("Evidence of escape is admissible as bearing on defendant's consciousness of guilt as to pending charges .... Whether the escape was motivated by a consciousness of guilt or another reason is a question for the jury."). Appellant cites State v. Moyers, 266 S.W.3d 272, 281 (Mo. App. W.D. 2008), for the proposition that an escape is irrelevant to the offenses for which he was charged. However, Moyers is distinguishable because there the State offered evidence the defendant violated his bond by going on a "crime spree." Id. The Western District held this was impermissible propensity evidence. Id. at 281–82. Here, the escape evidence was not offered to show Appellant's propensity to violate the law, but to show his consciousness of guilt. See Williams, 97 S.W.3d at 469. Whether the escape was motivated by consciousness of guilt was a jury question. Id. Because Appellant escaped GPS monitoring custody, the State could offer this evidence to demonstrate his escape indicated his consciousness of guilt. See id. Turning to the remaining bond violations, "[u]nder the doctrine of curative admissibility, '[o]therwise inadmissible evidence can nevertheless become admissible because a party has opened the door to it with a theory presented in an opening statement or through cross-examination.'" Betts, 559 S.W.3d at 58 (internal quotation and citation omitted) (quoting State v. Shockley, 410 S.W.3d 179, 194 (Mo. banc 2013)). A defendant opens the door to otherwise inadmissible evidence when he "has injected an issue into the case ...." Id. When that occurs, "the State may be allowed to admit otherwise inadmissible evidence in order to explain or counteract a negative inference raised by the

9 issue defendant injects." Id. "In such situations, prosecutors have been permitted to introduce additional evidence, notwithstanding that the facts elicited may be prejudicial to the defendant [and] this evidence can come in even though [it] was in the first place illegal." Id. (quoting State v. Watson, 391 S.W.3d 18, 23 (Mo. App. E.D. 2012)). Here, Defense Counsel cross-examined Appellant's Original Trial Counsel. 2 2 Original Trial Counsel withdrew from the case because Nephew left him a voicemail stating only he had shot Victim, making Original Trial Counsel a witness to the case. Aston as Trs. for KALA Tr. v. DBK Tr., LLC, 679 S.W.3d 584, 588 (Mo. App. E.D. 2023) (holding a lawyer may not "act as an advocate in a trial in which the lawyer is likely to be a witness.").

Def ense Counsel admitted a copy of a bond order "releasing [Appellant] on bond on the GPS monitor to be placed on house arrest in Collinsville, Illinois." The following exchange occurred: [DEFENSE COUNSEL]: So the time between December 15, 2021, when [Appellant] was released on bond, and it was about October of 2023, when the judge issued a warrant for his arrest, right? [ORIGINAL TRIAL COUNSEL]: October 26th, 2023, yes. [DEFENSE COUNSEL]: Okay. So it's nearly two years that [Appellant] is on bond? [ORIGINAL TRIAL COUNSEL]: Almost. [DEFENSE COUNSEL]: Okay. On re-cross examination, Original Trial Counsel stated: [Appellant] was on bond for a very long time. For the exhibits that were entered -- when a defendant is out on bond for a long period of time, those bond conditions can get changed so many times for so many different reasons. They usually -- they can get more restrictive or less restrictive. Meaning, maybe they're allowed to go to work, maybe they aren't. Maybe

10 work hours change. Addresses change all the time. So every time you have to change, put in the order to change addresses. The State objected, arguing the answer was narrative and nonresponsive. The circuit court sustained the objection. Defense Counsel then asked, "[D]id you submit other bond modifications that modified some of the details of this order?" Original Trial Counsel responded, "I believe so. And I know that there were times where addresses changed." After the re-cross examination ended, the State argued Defense Counsel "opened the door" to evidence regarding Appellant's bond compliance. The circuit court agreed, and on further redirect examination, the State entered Exhibit 123. This exhibit demonstrated Appellant had violated his bond more than once. Appellant again cites Moyers, 266 S.W.3d at 280–81, for the proposition prior bond violations are impermissible propensity evidence. Moyers does not aid Appellant here, either. Moyers held the defendant had not opened the door to the evidence because he had not injected the issue of his good character into the case. Id. There, the defendant was charged with murdering an infant. Id. at 281. At trial, the defendant testified he violated his bond, which was revoked, because he was around an infant at his girlfriend's house. Id. at 278–80. The State argued this testimony opened the door to evidence about his bond compliance. Id. at 280. The State contended his bond was not revoked for the "innocuous" reason defendant offered; it argued his bond was revoked because he was arrested after a "crime spree" for burglary and stealing. Id. The Western District held the defendant never injected the issue of his good character into the case because "[h]aving one's bond revoked for being in the presence of an infant hardly seems innocuous"

11 considering he was "on trial for murdering an infant ...." Id. at 281. Because the defendant never testified or implied he had an innocuous reason for violating his bond, he never injected the issue of his compliance while on bond. Id. Thus, because he never injected the issue, he did not "open[] the door" and the State could not use the curative admissibility doctrine. Id. at 280–81. Here, unlike in Moyers, Original Trial Counsel injected the issue of Appellant's compliance while on bond because he testified Appellant's bond violations were for merely changing his address, which could be viewed as innocuous. Original Trial Counsel's testimony Appellant was on bond for "nearly two years," or was "on bond for a very long time," that "[a]dresses change all the time" and that "I know that there were times where addresses changed," injected the issue of Appellant's compliance while on bond. The State could counteract this testimony by admitting evidence about his multiple bond violations for other reasons, such as failing to appear for court. See Betts, 559 S.W.3d at 58. Because Original Trial Counsel testified (or at least implied) the reason for Appellant's bond violations was innocuous, he injected the issue of Appellant's compliance while on bond and opened the door to the State rebutting this evidence. See id. The circuit court did not abuse its discretion in admitting this evidence. Point Four is denied.

12 Points One and Two: Weapons-Related Evidence Admissibility Party Positions In Points One and Two, Appellant argues the circuit court erred in admitting photographs of empty handgun magazines, a ballistic vest, gun belt, and shoulder holster for a .380 or .45 caliber handgun. Appellant contends these items were irrelevant because they were "random items" not used to commit the offense. The State contends Appellant was not prejudiced because the outcome of trial did not hinge on the admission of this evidence. Analysis This Court's standard of review is the same as in Point Four. We need not decide if the admission of this evidence was erroneous because—even if it were—Appellant cannot demonstrate he was prejudiced. "This Court 'reviews the [circuit] court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.'" State v. Brandolese, 601 S.W.3d 519, 533–34 (Mo. banc 2020) (citation modified) (quoting State v. Zink, 181 S.W.3d 66, 73 (Mo. banc 2005)). A defendant "is deprived of a fair trial and prejudice is established if the Court concludes the erroneously admitted evidence improperly influenced the jury to a point at which there is a reasonable probability that, but for the improperly admitted evidence, the jury would have reached a different result." State v. Hollowell, 643 S.W.3d 329, 337 (Mo. banc 2022). Admission of weapons evidence is subject to the traditional prejudice test. State v. Anderson, 76 S.W.3d 275, 277–78 (Mo. banc 2002) (holding the admission of a weapons brochure was erroneous but not prejudicial).

13 Appellant has not demonstrated prejudice because he has not shown there was a reasonable probability the outcome of his trial hinged on the admission of the weapons- related evidence. Appellant contends the only two eyewitnesses to the shooting— Nephew and Partner—both testified Appellant was sleeping in the third row of the Suburban and that Nephew shot Victim. Appellant asserts the jurors filled in the gaps of the State's case with propensity reasoning, convicting him on his association with dangerous weapons, rather than the actions he actually took. Appellant overlooks the weighty and material evidence the State presented to the jury to support his conviction. Surveillance footage captured one arm reach out of the passenger side of the Suburban and shoot at Victim and, a few seconds later, captured another arm reach out of the passenger side and shoot at Victim again. The two guns fired 14 times, with a spray pattern of the casings indicating they were discharged even as the Suburban was leaving the scene. See State v. Tisius, 92 S.W.3d 751, 764 (Mo. banc 2002) (quoting State v. Ervin, 979 S.W.2d 149, 159 (Mo. banc 1998) ("Evidence of ... multiple wounds, or repeated blows may ... support an inference of deliberation.")). Seven shots hit Victim, severing his left carotid artery, and killing him almost instantly. After the shooting, Appellant, Partner, and Nephew fled to Illinois. As they were fleeing, Nephew put the firearms into a bag and threw the bag out of the window. "[D]isposing of evidence and flight can support the inference of deliberation." State v. Denham, 686 S.W.3d 357, 373 (Mo. App. W.D. 2024). Once in Illinois, Appellant attempted to manufacture an alibi. He woke up Girlfriend, kissed her goodnight, and told her he would "catch up with [her] tomorrow." When Appellant returned to the St. Louis

14 County House, he conspicuously moved the Suburban—the getaway car—out of the driveway and took the Monte Carlo out. When originally questioned by Detective Walsh, Appellant attempted to use the alibi he had manufactured, telling Detective Walsh he had been with Girlfriend when the crimes were committed. Even after Detective Walsh told Appellant he had been placed in the Suburban, Appellant consistently and repeatedly maintained he was with Girlfriend that night. See State v. Cave, 698 S.W.3d 499, 504 (Mo. App. W.D. 2024) ("A defendant's dishonesty about a material fact can be considered by a factfinder as affirmative evidence of guilt"); State v. Norman, 618 S.W.3d 570, 580 (Mo. App. W.D. 2020) (quoting State v. Webb, 569 S.W.3d 530, 541 (Mo. App. W.D. 2018) ("[G]uilt may be inferred when an accused attempts to deceive the police, as in making a false exculpatory statement.")). While on bond, Appellant was ordered to self-surrender in October 2023. Instead, he cut off his GPS bracelet and fled custody. The police finally apprehended him a month later. This flight from custody indicates Appellant's consciousness of guilt. See Williams, 97 S.W.3d at 469. Additionally, Nephew and Partner implicated Appellant. Nephew testified he received the guns from a friend, but the police recovered three 9-millimeter magazines consistent with the murder weapon at the St. Louis County House. Partner initially told the police Appellant was in the second row of the Suburban, not the third. The blanket Appellant was using while allegedly sleeping was found in the second row of the Suburban, not the third.

15 Because Appellant participated in the disposal of the evidence, fled from the scene, attempted to manufacture an alibi, consistently lied to police, escaped from custody, and was placed in the second row of the Suburban by competent evidence, he has not demonstrated there was a reasonable probability the outcome of the trial hinged on the admission of a holster, a gun belt, a ballistic vest, and photographs of handgun magazines. See Anderson, 76 S.W.3d at 277–78. The circuit court did not abuse its discretion in admitting this evidence. Points One and Two are denied. Point Three: Voluntary Manslaughter Instruction Party Positions Appellant argues the circuit court plainly erred in submitting the voluntary manslaughter instruction because it failed to comply with the second paragraph of MAI- CR 4th 414.08. The State contends Appellant "waived" plain error review because he submitted the instruction he seeks to challenge on appeal. This Court disagrees with the State Appellant waived plain error review. This Court, however, declines Appellant's request for plain error review. Analysis Because Appellant did not object to the voluntary manslaughter instruction, nor did he include this error in his motion for new trial, Appellant requests plain error review under Rule 30.20. 3 3 All rule references are the Missouri Supreme Court Rules (2023) unless otherwise indicated. Appellant submitted the very instruction he now argues is defective

16 and so caused or contributed to the alleged instructional error. See State v. Bolden, 371 S.W.3d 802, 806 (Mo. banc 2012). The Supreme Court of Missouri recently clarified plain error standards when the defendant has caused or contributed to an alleged instructional error. See State v. Burkett, SC No. 101071, 2025 WL 3758773, at *4–6 (Mo. banc Dec. 29, 2025). While previous cases "used the term 'waive,' 'waiver,' or 'invited error' with respect to plain error review when a defendant submits a defective instruction ... these cases are merely articulating the discretion an appellate court exercises to decline review when a defendant affirmatively causes or contributes to an instructional error." Id. at *5; see also State v. Wurtzberger, 40 S.W.3d 893, 897–98 (Mo. banc 2001). Thus, a defendant does not "waive" plain error review by submitting a defective instruction. Burkett, 2025 WL 3758773, at *5. This Court retains the ultimate discretion to review for plain error if the "facts and circumstances" warrant it, "even when an appellant's actions may have caused or contributed to the error." Id. at *3. Despite this clarification, however, the Supreme Court of Missouri reaffirmed that "alleged errors caused by or contributed to an appellant's actions or inactions may justify this Court declining to exercise its authority under Rule 30.20." Id. In Burkett, the defendant failed to request a self-defense instruction, even though he had injected that issue into the case. Id. at *4. While he was entitled to this instruction, "his failure to request such instruction, coupled with his affirmative acquiescence to the instructions the circuit court submitted, justif[ied] this Court exercising its discretion to decline [the defendant's] request to review his claim for plain error." Id. at *6. So too, here. Appellant's submission of a defective instruction did not "waive" his right to request

17 plain error review. Still, his defective instruction caused or contributed to the alleged error and supports this Court exercising its discretion to decline his request for plain error review. Point Three is denied. Point Five: Erlinger Violation Party Positions Appellant argues the circuit court made the factual determinations necessary to prove his prior and persistent status. This finding, he contends, violates Erlinger because he had a constitutional right to a unanimous jury making this determination, not a judge. The State contends Appellant freely admitted his prior crimes occurred, thereby relieving the jury from making this finding and waiving his Erlinger rights. Analysis Because Appellant did not raise this argument before the circuit court, this Court reviews this point for plain error under Rule 30.20. See State v. White, 421 S.W.3d 560, 563 (Mo. App. E.D. 2014). Plain error review is a two-step process. First, this Court must determine whether the circuit court's error was facially "evident, obvious, and clear." State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019) (quoting State v. Jones, 427 S.W.3d 191, 195 (Mo. banc 2014)). Second, if the appellant "establishes a facially 'evident, obvious, and clear' error, then this Court will consider whether the error resulted in a manifest injustice or miscarriage of justice." Id. Appellant contends this Court should apply Erlinger retroactively because it is a new rule for the conduct of criminal prosecutions. This Court need not decide this

18 question because we hold Appellant waived his Erlinger rights. In Erlinger, the United States Supreme Court stated the general rule regarding factfinding under recidivist statutes: "Virtually '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...." Erlinger, 602 U.S. at 834 (citation modified) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). However, the Supreme Court also carved out an exception to this general rule, holding a jury need not find those facts if they were "freely admitted in a guilty plea" by the defendant. Id. (emphasis added); see also People v. Sabater, 225 N.Y.S.3d 563, 567 (N.Y. Sup. Ct. 2024). Here, as in a guilty plea, Appellant freely admitted during a pretrial conference he "d[id] not dispute" the facts the State submitted to prove his prior and persistent offender status. 4 4 This particular pretrial conference occurred on June 28, 2024, exactly one week after Erlinger was handed down. Erlinger, 602 U.S. at 602. Appellant thus had the opportunity to raise his Erlinger claim before the circuit court, but did not do so. There was no disputed fact to be resolved by the court, or a jury, when Appellant f reely admitted he did not dispute his prior and persistent offender status. See State v. Lindsey, 597 S.W.3d 240, 244–45 (Mo. App. W.D. 2019) ("A judicial admission is an act done in the course of judicial proceedings that concedes for the purpose of litigation that a certain proposition is true."). Accordingly, Erlinger does not apply, and the circuit court did not commit an error, plainly or otherwise, in making the factual determination regarding Appellant's conceded prior and persistent status.

19 Point Five is denied. Conclusion The circuit court's judgment is affirmed.

Michael S. Wright, Presiding Judge and Virginia W. Lay, Judge concur.