                 IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT

 STATE OF MISSOURI,                                         )
                                                            )
                                         Respondent,        )
                                                            )     WD78753
 v.                                                         )
                                                            )     OPINION FILED:
                                                            )     October 11, 2016
 JASON L. BERRY,                                            )
                                                            )
                                            Appellant.      )


                     Appeal from the Circuit Court of Jackson County, Missouri
                              The Honorable Kevin D. Harrell, Judge

                          Before Division IV: Mark D. Pfeiffer, Chief Judge, and
                              James Edward Welsh and Alok Ahuja, Judges

        Mr. Jason Berry (“Berry”) appeals from his convictions for the class B felony of burglary

in the first degree, § 569.160;1 the unclassified felony of rape in the first degree, § 566.030; and

the class B felony of sexual abuse in the first degree, § 566.100, following a jury trial in the Circuit

Court of Jackson County, Missouri (“trial court”). Berry claims the trial court plainly erred in

instructing the jury and in sentencing. We affirm Berry’s convictions, vacate his sentence on




        1
            All statutory references are to the Revised Statutes of Missouri 2000, as updated by Cumulative Supplement
2013.
Count IV (first-degree sexual abuse), and remand with directions to resentence Berry consistent

with today’s ruling as to Count IV only.

                                    Factual and Procedural Background2

         Berry was living with his girlfriend and their children in a house about 200 feet from

E.W.’s3 home in Kansas City, Missouri. On the morning of May 23, 2014, when Berry’s girlfriend

left to take their son to school at 8:00 a.m., Berry was home asleep. When she got back home at

9:25 a.m., Berry was gone, and the back door was unlocked, which was unusual because she kept

the doors locked. Berry returned about 9:45 a.m.

         That same morning, E.W. returned home after taking care of her elderly mother. She was

sitting down to eat her breakfast when she heard someone fiddling with the lock on the front door.

She went to the door and asked the person what he wanted. The man, whom E.W. identified as

Berry, opened the door and entered the house. E.W. again asked Berry what he wanted, and he

told her, “I’ll show you what I want.” Berry started pulling at E.W.’s clothing. She tried pushing

him and kicking him, but Berry pushed E.W. onto the couch on her back and started taking off her

pants and underwear. Berry then penetrated E.W.’s vagina with his penis, touched her breast with

his mouth, and choked her with his hands. Berry then told E.W. to lick his penis, and when she

moved her head out of the way, he started choking her. Then, E.W. fainted.

         When E.W. woke up, Berry was gone. She called the police. Officer Prough and another

officer were dispatched to E.W.’s home on a report of rape. When the officers arrived, Officer

Prough contacted E.W., and she told him that a man had forced his way into her home and raped

her. She described the man as a black male with collar length hair and facial hair, and he referred



         “We view the facts in the light most favorable to the jury’s verdict.” State v. Bax, 459 S.W.3d 493, 494 n.1
         2

(Mo. App. W.D. 2015).
       3
         Pursuant to section 566.226, we have used initials to identify the victim so as to protect the victim’s identity.


                                                            2
to himself as “Jason.” E.W. related to Officer Prough that Berry forced his way into her living

room, pushed her in, pulled off her clothes, made her insert his penis into her mouth, kissed and

sucked on her breasts, choked her, and inserted his penis into her vagina. Officer Prough observed

that E.W. was “highly upset” and lost consciousness multiple times while he was talking to her.

       Officer Prough observed that the screen door to E.W.’s home was slit and the exterior

handle appeared to be pulled away from the door frame. Berry’s fingerprints were recovered from

the exterior and interior sides of the storm door. E.W.’s living room was in disarray. A pair of

women’s white underwear was on the floor near the couch. There was a large stain on one of the

couch cushions.

       E.W. was taken to the hospital. An examination revealed that she had petechiae markings

on the right and left side of her neck. While E.W. was at the hospital, a detective presented her

with a photographic lineup, from which she identified Berry as her assailant.

       Officer Prough had additional officers canvass the area to see if they could find a male

matching the description given by E.W. Berry was interviewed by police and claimed that he was

home all day and had not left the house. Later, he said he left the house the night before at

6:00 p.m. to take his uncle to work.

       The Kansas City police crime laboratory analyzed evidence that had been collected during

the investigation of the case. E.W.’s vaginal, oral, and external genitalia were all positive for a

protein indicative of the presence of semen. Tests run on E.W.’s right breast swab indicated the

presence of saliva. DNA testing on the right breast swab revealed both E.W.’s and Berry’s DNA

were present. The frequency of the DNA profile that matched Berry’s was one in forty-five

quintillion unrelated individuals. Testing of E.W.’s vaginal swab identified Berry’s DNA profile.




                                                3
        The State charged Berry by indictment with one count of the class B felony of burglary in

the first degree, one count of the unclassified felony of rape in the first degree, one count of the

unclassified felony of sodomy in the first degree, and one count of the class C felony of sexual

abuse in the first degree. An information in lieu of indictment was subsequently filed, charging

Berry as a prior and persistent offender. While Berry was in jail awaiting trial, he called his

girlfriend and told her that he needed her to testify that he was with her when she took their son to

school on the morning of the assault.

        Berry testified at trial in his own defense and claimed that he did not rape, sodomize, or

sexually abuse E.W. He stated that he was in E.W.’s house in 2012 but not on the day she was

assaulted.

        The jury found Berry guilty of burglary in the first degree, rape in the first degree, and

sexual abuse in the first degree, and not guilty of sodomy in the first degree. The trial court, having

previously found Berry was a prior and persistent offender, subsequently sentenced him to thirty

years’ imprisonment on the burglary charge, seventy years’ imprisonment on the rape charge, and

fifteen years’ imprisonment on the sexual abuse charge, to be served consecutively.

        Berry timely appealed.

                                               Analysis

                                   Point I – Instructional Error

        In Berry’s first point, he asserts that the trial court plainly erred in submitting the verdict

director for sexual abuse (Instruction No. 17) to the jury because it failed to require the jury to find

an essential element of the crime: that E.W. was a woman.

        The State proffered the verdict director for sexual abuse, and Berry’s trial counsel stated

that he had no objection to the instruction. Berry concedes that his allegation of error is not




                                                   4
preserved for appellate review. See Rule 29.03 (“Counsel shall make specific objections to

instructions or verdict forms considered erroneous. No party may assign as error the giving or

failure to give instructions or verdict forms unless the party objects thereto before the jury retires

to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.”).

See also State v. Vaughn, 11 S.W.3d 98, 105 (Mo. App. W.D. 2000) (“The failure to object to an

instruction constitutes a waiver of that error.”). Nevertheless, Berry requests that we review his

claim of instructional error for plain error. Although Berry waived appellate review when his trial

counsel affirmatively stated that he had no objection to Instruction No. 17, unpreserved claims of

plain error relating to jury instructions may still be reviewed under Rule 30.204 if manifest injustice

would otherwise occur. See State v. Wurtzberger, 40 S.W.3d 893, 898 (Mo. banc 2001). See also

State v. Manuel, 443 S.W.3d 669, 672 (Mo. App. W.D. 2014) (citing Wurtzberger and holding that

neither a failure to object to an instruction, nor an express statement of “no objection” to an

instruction, waive plain error review).

        “Plain error review is discretionary and involves two steps: first, we must determine

whether the trial court committed evident, obvious, and clear error affecting the defendant’s

substantial rights; second, if plain error is found, we then consider whether the error actually

resulted in manifest injustice or a miscarriage of justice.” State v. Holmes, 491 S.W.3d 214, 219

(Mo. App. W.D. 2016) (internal quotation omitted). “When the unpreserved allegation concerns

instructional error, plain error exists when it is clear that the circuit court has so misdirected or

failed to instruct the jury that manifest injustice or miscarriage of justice has resulted.” State v.

Zetina-Torres, 482 S.W.3d 801, 810 (Mo. banc 2016). “The defendant bears the burden of




        4
           Under Rule 30.20, “plain errors affecting substantial rights may be considered in the discretion of the
[appellate] court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.”


                                                        5
showing that an alleged error has produced such a manifest injustice.” Holmes, 491 S.W.3d at

219. “Instructional error seldom rises to the level of plain error.” Manuel, 443 S.W.3d at 672.

         Berry contends that the verdict directing instruction conflicts with the substantive law

because it failed to require the jury to find one of the essential elements of the crime. “A

verdict-directing instruction must contain each element of the offense charged and must require

the jury to find every fact necessary to constitute essential elements of [the] offense charged.”

Zetina-Torres, 482 S.W.3d at 811 (internal quotation omitted). “A violation of due process arises

when an instruction relieves the State of its burden of proving each and every element of the crime

and allows the State to obtain a conviction without the jury deliberating on and determining any

contested elements of that crime.” Id. (internal quotation omitted). “Plain error exists when an

instruction omits an essential element and the evidence establishing the omitted element was

seriously disputed.” Id. (internal quotation omitted).5

         The State charged Berry with committing first-degree sexual abuse by “knowingly

subject[ing] E.W. to sexual contact when he kissed the breast of E.W. by the use of forcible

compulsion.” Section 566.100.1 provides in pertinent part: “A person commits the offense of

sexual abuse in the first degree if he or she subjects another person to sexual contact . . . by the use

of forcible compulsion.” The statutory definition of “sexual contact” in section 566.010(3)




         5
            Berry argues that the “seriously disputed” standard for reviewing a claim that an element was omitted from
a jury instruction is untenable under State v. Jackson, 433 S.W.3d 390, 406 (Mo. banc 2014) and State v. Pierce, 433
S.W.3d 424, 432 (Mo. banc 2014). In both Jackson and Pierce, however, the claims of instructional error had been
preserved at trial. The Supreme Court’s later decision in Zetina-Torres involved a case—like this one—in which the
claim of instructional error was being reviewed for plain error. We cannot accede to Berry’s request to alter our
standard of review. “[T]he Court of Appeals is constitutionally bound to follow the most recent controlling decision
of the Supreme Court of Missouri.” State v. Brightman, 388 S.W.3d 192, 199 (Mo. App. W.D. 2012) (internal
quotation omitted). Berry concedes that if we “find the beyond-serious-dispute standard still applies to plain error
claims alleging a criminal instruction omitted an essential element of the offense, . . . he cannot meet that standard
with this claim.”


                                                          6
provides for various methods of commission of the crime by touching another person, including

touching “the breast of a female person.”

         The pattern instruction for submitting the crime of sexual abuse under section 566.100 is

MAI-CR 3d 320.27 [9-1-03]. Paragraph First of the pattern instruction submits the elements of

“sexual contact,” including the option labeled [1]: “touched the (genitals) (or) (anus) (or) (breast)

of [name of victim].” “Whenever there is an MAI-CR instruction or verdict form applicable under

the law and Notes On Use, the MAI-CR instruction or verdict form shall be given or used to the

exclusion of any other instruction or verdict form.” Rule 28.02(c). The verdict form submitted to

the jury complied with the pattern instruction and the evidence establishing the allegedly “omitted

element” of E.W.’s sex was not seriously disputed. E.W. testified at trial, so the jury was able to

observe her gender. The forensic nurse examiner who performed the sexual assault examination

on E.W. described her examination of E.W.’s external female genitalia and testified that she did

not perform a cervical examination because E.W. had had a hysterectomy.

         Under these circumstances, we conclude that “the circuit court has [not] so misdirected or

failed to instruct the jury that manifest injustice or miscarriage of justice has resulted.” Holmes,

491 S.W.3d at 219, and Berry’s claim of plain error fails.

         Point I is denied.

                    Points II, III, IV, and V – Sentencing Error on Sexual Abuse Count

         In Berry’s second, third, fourth, and fifth points, he contends that the trial court plainly

erred by granting the State’s motion to correct the sentence on the first-degree sexual abuse charge

(Count IV) by order nunc pro tunc and resentencing him to fifteen years.6 Berry argues that the



         6
          Berry’s Points III through V elaborate on the errors raised in Point II regarding trial court error in sentencing
Berry on the sexual abuse count, and he requests the same relief in Points III through V as he requests in Point II.
Because we find Point II dispositive as to resentencing, we do not directly address Points III through V.


                                                            7
imposition of the new sentence was in violation of his constitutional due process rights,

sections 546.5507 and 546.560,8 and Rule 29.07(b)(2)9 because he was not personally present for

resentencing.

         Berry concedes that defense counsel did not object to the trial court’s initial sentencing on

Count IV to thirty years’ imprisonment or to the trial court’s granting the State’s motion to correct

the sentence imposed on Count IV nunc pro tunc and resentencing Berry to fifteen years’

imprisonment. Berry concedes that there was no objection by his trial counsel at sentencing or to

resentencing. He requests that we review for plain error pursuant to Rule 30.20. According to

Rule 30.20, this court may in its discretion consider plain errors affecting substantial rights if it

finds that manifest injustice or a miscarriage of justice has resulted therefrom. “We employ a

two-step process in determining whether relief should be granted under the plain error standard.”

State v. Washington, 249 S.W.3d 255, 257 (Mo. App. W.D. 2008). “First we determine whether

the claim of error facially establishes substantial grounds for believing that manifest injustice or a

miscarriage of justice has resulted.” Id. If we find plain error, then we can, in our discretion,

consider whether a miscarriage of justice or manifest injustice will occur if the error is not

corrected. Id. “An appellant must go beyond a mere showing of prejudice to show manifest

prejudice affecting his substantial rights.” Id.

         The jury found Berry guilty of first-degree burglary, first-degree rape, and first-degree

sexual abuse, but acquitted him of first-degree sodomy. The trial court found Berry to be a prior

and persistent offender. Subsequently, at the sentencing hearing, the State asked the trial court to




         7
            “For the purpose of judgment, if the conviction be for an offense punishable by imprisonment, or
imprisonment be assessed as punishment by the jury, the defendant must be personally present . . . .” § 546.550.
         8
           “If the defendant is in custody, he must be brought before the court for judgment . . . .” § 546.560.
         9
           “If the defendant has been convicted of a felony, he must be personally present when sentence and judgment
are pronounced.” Rule 29.07(b)(2).


                                                         8
sentence Berry to seventy years’ imprisonment on the sexual abuse count. The prosecutor

informed the trial court that the sexual abuse count was an ungraded felony. Berry’s counsel asked

for seven years’ imprisonment on the sexual abuse count. The trial court orally pronounced

sentence: thirty years on the burglary count, seventy years on the rape count, and thirty years on

the sexual abuse count, all sentences to run consecutively. On the same day as the sentencing

hearing, June 18, 2015, the trial court issued its written judgment, sentencing Berry to thirty years

on first-degree burglary, seventy years on first-degree rape, and fifteen years on first-degree sexual

abuse, all sentences to run consecutively.

       The next day, June 19, 2015, the State filed its motion to correct sentence in Count IV

nunc pro tunc. The State asserted that Count IV (first-degree sexual abuse) was a class C felony

with a range of punishment of one to seven years; that as a prior and persistent offender Berry was

subject to fifteen years—the maximum term of imprisonment for a class B felony; and that Berry’s

sentence of thirty years was thus in excess of the maximum allowed by law. The State requested

that the trial court resentence Berry to fifteen years’ imprisonment. On June 22, 2015, the trial

court entered a nunc pro tunc order granting the State’s motion.

       Nunc pro tunc orders are allowed under Rule 29.12(c), which provides that “[c]lerical

mistakes in judgments, orders or other parts of the record and errors in the record arising from

oversight or omission may be corrected by the court at any time after such notice, if any, as the

court orders.” “A nunc pro tunc order may be used only to correct clerical errors in entering a

rendered judgment, it may not be used to alter or amend the rendered judgment.” State v. Bibb,

922 S.W.2d 798, 803 (Mo. App. E.D. 1996). “When a judicial mistake is made in the rendering

of a judgment, the error cannot be corrected nunc pro tunc.” Id.




                                                  9
       The State concedes that the trial court erred in entering a new sentence, nunc pro tunc, on

Berry’s conviction for first-degree sexual abuse because the trial court did not use the proper due

process procedures to correct the erroneous oral sentence it initially imposed on the sexual abuse

charge. The trial court orally pronounced a thirty-year sentence on the first-degree sexual abuse

count, but the written judgment reflected a fifteen-year term of imprisonment. The written

judgment and sentence of the trial court should reflect the oral pronouncement of sentence. State

v. Irvin, 944 S.W.2d 592, 593 (Mo. App. W.D. 1997). “If there is a material difference between

the court’s oral pronouncement of sentence and the written judgment, the oral pronouncement of

sentence controls.” State v. Harris, 364 S.W.3d 790, 796 (Mo. App. W.D. 2012). “[I]f the oral

pronouncement contains a discrepancy, the trial court can correct the discrepancy before it is

reduced to writing only if the defendant is present.” Irvin, 944 S.W.2d at 593-94 (emphasis added).

“If the defendant is not returned for resentencing, the court has authority only to enter the sentence

as orally pronounced.” State v. Burrell, 944 S.W.2d 948, 951 (Mo. App. W.D. 1997). “[A]

defendant has a due process right to be personally present at the time of sentencing and to be heard

on the pronouncement.” Washington, 249 S.W.3d at 258.

       Berry was denied his due process right to be personally present at resentencing. Because

there was a denial of the due process required for resentencing, we conclude that there was clear,

obvious error affecting substantial rights. See id. The trial court plainly erred by granting the

State’s motion to correct the sentence on the first-degree sexual abuse charge (Count IV) by order

nunc pro tunc and resentencing Berry to fifteen years’ imprisonment. Therefore, we vacate the

sentence on Count IV for first-degree sexual abuse and remand for resentencing consistent with

our ruling today.

       Point II is granted.




                                                 10
                           Point VI – Sentencing Error on Burglary Count

        In Berry’s sixth point on appeal, he asserts that the trial court plainly erred in sentencing

him to thirty years’ imprisonment on the first-degree burglary count because the sentence was

based on the trial court’s misunderstanding as to the range of punishment. Specifically, Berry

claims that the trial court erroneously believed that a persistent offender finding increased both the

minimum and maximum sentences to the next grade of felony.

        Berry concedes that his trial counsel did not object to the trial court imposing thirty years’

imprisonment at sentencing or to the trial court granting the State’s motion to correct sentence in

Count IV nunc pro tunc and resentencing him to fifteen years’ imprisonment. He again requests

that we review for plain error pursuant to Rule 30.20. We decline to do so for the following

reasons.

        The jury found Berry guilty of first-degree burglary, first-degree rape, and first-degree

sexual abuse, but acquitted him of first-degree sodomy. The trial court found Berry to be a prior

and persistent offender. Subsequently, at the sentencing hearing, the State asked the trial court to

sentence Berry to thirty years’ imprisonment on the burglary count. The prosecutor informed the

trial court that the burglary count was a B felony, but the prosecutor argued that since Berry was

found to be “a prior sex offender,”10 he was subject to the A felony range of ten years to life.

Berry’s counsel responded to the contrary that the minimum sentence of five years was still

available on the first-degree burglary count, and only the ceiling of punishment was increased.

Berry’s counsel then requested that the trial court sentence Berry to ten years on the burglary count.

The trial court orally pronounced a sentence of thirty years on the burglary count. On the same




        10
           The prosecutor misspoke, as Berry was charged and found by the trial court to be a prior and persistent
offender, not a prior sex offender.


                                                       11
day as the sentencing hearing, June 18, 2015, the trial court issued its written judgment, which

likewise sentenced Berry to thirty years’ imprisonment on first-degree burglary.

       Berry was found guilty of first-degree burglary, a class B felony. § 569.160. The trial

court found that Berry was a prior and persistent offender. § 558.016. The total authorized

maximum term of imprisonment for a persistent offender for a class B felony is any sentence

authorized for a class A felony. § 558.016.7(2). The maximum authorized term of imprisonment

for a class A felony is a term of years not to exceed thirty years or life imprisonment.

§ 558.011.1(1).

       Berry relies on State v. Cowan, 247 S.W.3d 617 (Mo. App. W.D. 2008), to support his

claim that he is entitled to resentencing because the trial court based his sentence on a materially

false foundation as to the range of punishment. We find Cowan is distinguishable. In Cowan, the

trial court held a hearing on Cowan’s motion to set aside his guilty plea. The trial court (i.e., not

the prosecutor) explained that setting aside the guilty plea and trying the case would result in

charging Cowan as a prior and persistent offender, which would increase the range of punishment

for the B felony of first-degree burglary to an A felony, subjecting him to a sentencing range of

ten (even though the minimum sentence for a B felony was five years) to thirty years or life

imprisonment. Id. at 618. Thereafter, a jury found Cowan guilty of the burglary charge. Id. The

trial court sentenced Cowan to ten years’ imprisonment for burglary, based on the trial court’s

misinterpretation of the minimum range of punishment it had expressed at the earlier hearing on

the motion to set aside the guilty plea. Id. Cowan appealed his sentence. Id. The allegation of

sentencing error was reviewed by this court de novo as an issue of statutory construction of

section 558.016. Id. at 619. We concluded that Cowan’s range of punishment, as a prior and




                                                 12
persistent offender, should have been five (not ten) to thirty years or life imprisonment, and the

trial court’s interpretation of the statute constituted reversible error. Id.

         Here, defense counsel corrected the prosecutor’s misstatement as to the minimum

authorized term of imprisonment during the sentencing hearing. The prosecutor did not challenge

or object to defense counsel’s correction and there is nothing in the record indicating that the trial

court misunderstood the range of punishment on the burglary count when it pronounced sentence.

Also, we note that the trial court did not sentence Berry to a minimum term of imprisonment under

any evaluation of B felony or A felony sentencing ranges.11

         Berry was lawfully sentenced upon conviction as a prior and persistent offender for

first-degree burglary. The trial court did not err, plainly or otherwise, in sentencing Berry to thirty

years’ imprisonment, which is within the statutorily-authorized maximum term of imprisonment

for a class A felony.

         Point VI is denied.

                                                     Conclusion

         Berry’s sentence on Count IV (first-degree sexual abuse) is vacated, and the cause is

remanded to the trial court for resentencing consistent with today’s ruling as to Count IV only. In

all other respects, the trial court’s judgment is affirmed.



                                                       Mark D. Pfeiffer, Chief Judge

James Edward Welsh and Alok Ahuja, Judges, concur.




         11
              Berry also argues that the trial court’s grant of the State’s motion to correct Berry’s sentence on the
first-degree sexual abuse charge (Count IV) by order nunc pro tunc and resentencing him to fifteen years demonstrates
that the trial court misunderstood the effect of the prior and persistent offender finding on the range of punishment for
the first-degree burglary charge. This speculative assertion is wholly without support in the record.


                                                          13
