                                            In the
                         Missouri Court of Appeals
                                   Western District


                                                
STATE OF MISSOURI,                              
                                                   WD78288
               Respondent,                         OPINION FILED:
v.                                              
                                                   May 24, 2016
TIMOTHY LIBERTUS,                               
                                                
                Appellant.                      
                                                
                                                

                  Appeal from the Circuit Court of Clay County, Missouri
                         The Honorable Larry D. Harman, Judge

                                  Before Division Three:
           Gary D. Witt, P.J., Thomas H. Newton, and James Edward Welsh, JJ.

       Timothy Libertus appeals his convictions and sentences, following a jury trial, for

forcible rape, forcible sodomy, and unlawful use of a weapon, for which he was sentenced to two

consecutive 100-year prison sentences and one concurrent three-year sentence, respectively. We

affirm, but we are compelled to remand for resentencing because Libertus was improperly found

to be a dangerous offender and sentenced as such.

                                          Background

       We view the evidence in the light most favorable to the verdict. State v. Taylor, 298

S.W.3d 482, 491 (Mo. banc 2009). The evidence at trial showed that, after having argued with

his wife, D.L., all weekend, Libertus came home from work, mid-shift, on Monday, June 24,
2013, to continue the quarrel. When he got home, the two argued, and, according to D.L., the

situation "escalated." Libertus returned to work, but continued to send angry texts.

       When Libertus arrived home after work, he told D.L. that he wanted to work things out,

but she rebuffed him, and he became enraged. Libertus went and got a rifle, which he pointed at

D.L.'s face and threatened to "blow" her face off. She pushed the barrel of the rifle away and

then tried to get past him. Libertus shoved D.L. into a bookcase, causing her to hit against a wall

and fall to the floor. D.L. got up and ran into their bedroom, but Libertus followed her. He stood

between her and the door and would not let her out of the room. She jumped across the bed to

try to get out the window, but she could not get the window open. Libertus pulled her to the

floor and got on top of her. He put his arm around her throat and choked her until she passed out.

       When D.L. awoke, Libertus said that he was not going to rape her and just wanted to talk.

He then took her clothes off, ripping her bra off, and gave her "cooler" clothes to put on.

Libertus tried to lay D.L. down on the bed, but she said that she could not breathe and needed to

sit up. He said, "I'm not going to rape you, you stupid bitch." Libertus stormed out of the room.

He then yelled that she wanted him to hit her and to rape her. He came back, threw her on the

bed, and started taking her clothes off. When she tried to fight him, he threatened to break her

jaw and kill her and her whole family. Libertus first raped her vaginally and then sodomized her

anally. He did both repeatedly. While he was raping her, he held her down by the throat and

choked her. While he was sodomizing her, he held her down by her hair and punched her in the

legs and buttocks. He also hit her in the head and her vision became "blurry."

       Libertus forced D.L. to give him oral sex, even though he had just sodomized her. He

then announced that he wanted to go get some alcohol. He gave D.L. clothes to put on so she

could go with him. He said that he "wasn't done with [her] yet" and graphically threatened her



                                                 2
with other vile acts. Libertus left the room, and D.L. got dressed. When she came out, she saw

her cell phone, grabbed it, and called 911 as she ran from the house. She hid in a neighbor's

backyard while talking to the 911 operator.

       Another neighbor saw D.L. as she ran out of the house screaming. She saw that D.L.'s

clothes were open, and she was holding onto herself. The neighbor then saw Libertus come

outside yelling at D.L. and holding a handgun. Libertus "froze" when he saw the neighbor, and

he dropped the handgun behind his back. Libertus then turned and went back into his house. He

came back out with a long gun, got into his car, and sped off, swerving in and out of the yards.

       Libertus drove to the house of Christopher Hufford, who noticed that Libertus was angry,

hostile, and nervous. Libertus told Hufford that he had "raped the bitch" and held a weapon to

her head (referring to D.L.). Libertus asked Hufford to hide the rifle, but Hufford refused. As

Hufford went back inside, he saw Libertus reach into his van. Hufford later found Libertus's

rifle in his van. He reported it to the police, and the police recovered the rifle.

       In the meantime, the police arrived and found D.L. crying, shaking, and visibly afraid.

They took a statement from her and also from one of the neighbors. In the house, the police

found evidence that corroborated what D.L. told them. D.L. then went to a hospital where she

was examined by a forensic nurse examiner, who found areas of bruising, abrasions, lacerations,

redness, and burst blood vessels on D.L.'s neck, shoulders, knee, and leg. The nurse also found

redness, lacerations, and other evidence consistent with trauma around D.L.'s vagina and rectum.

       The State charged Timothy Libertus with forcible rape (§ 566.030, RSMo1), forcible

sodomy (§ 566.060), and unlawful use of a weapon (§571.030). At a pre-trial hearing, the circuit

court found that Libertus is a prior offender, as defined by section 558.016.


       1
           Statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2012 Cum. Supp.

                                                          3
       The cause was tried before a jury in November 2014, and the jury found Libertus guilty

as charged. Prior to sentencing, the court found Libertus to be a "dangerous offender," pursuant

to section 558.016.4. The court sentenced him to consecutive terms of 100 years each for

forcible rape and forcible sodomy and to a concurrent three-year term for the weapons charge.

                                 Standard of Review-Plain Error

       Libertus concedes that he failed to preserve any of his three claims on appeal and, thus,

requests plain error review. Rule 30.20 authorizes this Court, in its discretion, to review "plain

errors affecting substantial rights . . . when the court finds that manifest injustice or miscarriage

of justice has resulted therefrom." Our Supreme Court has established a threshold review to

determine if a court should exercise its discretion to entertain a Rule 30.20 review of a claimed

plain error. First, we determine whether or not the claimed error "facially establishes substantial

grounds for believing that 'manifest injustice or miscarriage of justice has resulted[.]'" State v.

Brown, 902 S.W.2d 278, 284 (Mo. banc 1995) (quoting Rule 30.20). If not, we should not

exercise our discretion to conduct plain error review. If, however, we conclude that we have

passed this threshold, we may proceed to review the claim under a two-step process pursuant to

Rule 30.20. In the first step, we decide whether plain error has, in fact, occurred. State v.

Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). "All prejudicial error, however, is not plain

error, and plain errors are those which are evident, obvious and clear." Id. (citation and internal

quotation marks omitted). In the absence of evident, obvious, and clear error, we should not

proceed further with our plain error review. If, however, we find plain error, we must continue to

the second step to consider whether or not a miscarriage of justice or manifest injustice will

occur if the error is left uncorrected. Id. at 607-08.




                                                   4
                                                      Point I

         Libertus first contends that the circuit court plainly erred in sentencing him to 100-year

prison terms for forcible rape and forcible sodomy because the maximum range of punishment

for a "dangerous offender" convicted of those unclassified felonies is that of a class A felony,

which is ten years to thirty years or life. He claims that this error created a manifest injustice

because he is being required to serve a longer sentence than is authorized by law.

         Section 558.016.4 defines a "dangerous offender" as one who:

         (1) Is being sentenced for a felony during the commission of which he knowingly
         . . . endangered or threatened the life of another person or knowingly inflicted or
         attempted or threatened to inflict serious physical injury on another person; and

         (2) Has pleaded guilty to or has been found guilty of a class A or B felony or a
         dangerous felony.

         For purposes of applying the dangerous offender provisions to an unclassified felony, if

the authorized penalty for the felony includes life imprisonment, it is classified as a class A

felony. § 557.021.3(1)(a). Both forcible rape and forcible sodomy are unclassified felonies

carrying a range of punishment that includes life imprisonment. §§ 566.030.2 &.060.2. Thus,

for purposes of the dangerous offender statute, both crimes are considered class A felonies. The

maximum authorized sentence for a class A felony is life imprisonment (as opposed to the 100-

year sentences imposed here).2 § 558.011.1(1).

         The State concedes this point (which, ironically, in this case, would work to Libertus's

advantage).3 The State claims, however, that the circuit court lacked the authority to find


         2
          The significance of this is that, pursuant to section 558.019.4, for purposes of determining a minimum
prison term, a life sentence is calculated to be thirty years, whereas any sentence over seventy-five years is
calculated to be seventy-five years.
         3
          In State v. Davis, this Court noted the irony in the fact that the defendant's persistent offender status
"necessitate[d]" granting the relief of a reduced sentence on his unclassified felony of rape. 867 S.W.2d 539, 542-43
(Mo. App. 1993).

                                                         5
Libertus a "dangerous offender," because the statutorily prescribed procedures for such a finding

were not properly observed.4 Section 558.021 provides, in relevant part:

        1. The court shall find the defendant to be a prior offender, persistent offender, [or]
        dangerous offender . . . if:

                 (1) The indictment or information . . . pleads all essential facts warranting
                 a finding that the defendant is a prior offender, persistent offender, [or]
                 dangerous offender . . . ; and

                 (2) Evidence is introduced that establishes sufficient facts pleaded to
                 warrant a finding beyond a reasonable doubt that the defendant is a prior
                 offender, persistent offender, [or] dangerous offender . . . ; and

                 (3) The court makes findings of fact that warrant a finding beyond a
                 reasonable doubt by the court that the defendant is a prior offender,
                 persistent offender, [or] dangerous offender. . . .

        2. In a jury trial, the facts shall be pleaded, established and found prior to
        submission to the jury outside of its hearing, except the facts required by
        subdivision (1) of subsection 4 of section 558.016 [for a finding of dangerous
        offender] may be established and found at a later time, but prior to sentencing,
        and may be established by judicial notice of prior testimony before the jury.

        In Scharnhorst v. State, this Court explained that section 558.021, was enacted to comply

with the mandates set forth in Specht v. Patterson, 386 U.S. 605 (1967), which held that, where

an extended-term punishment (such as for a dangerous offender) rests on evidence of guilt of an

offense other than the felony charged and involves new determinations of fact, "due process

requires those safeguards [that are] essential in a criminal prosecution." 775 S.W.2d 241, 244

(Mo. App. 1989) (quoting State v. Berry, 609 S.W.2d 948, 956 (Mo. banc 1980)). We opined, in

Scharnhorst, that the "constitutional necessity for notice is met by the § 558.021.1(1) & (2)

provisions that the information formally plead the intention to invoke the extended term penalty

and the facts upon which that imposition rests." 775 S.W.2d at 244 (emphasis added).



        4
         The State originally claimed that Libertus was not actually found to be a "dangerous offender" but has
since abandoned that argument.

                                                         6
       Noting that the requirements of section 558.021 are mandatory (citing State v. Emery, 95

S.W.3d 98, 101-02 (Mo. banc 2003); State v. Starnes, 318 S.W.3d 208, 213-14 (Mo. App.

2010)), the State observes that, here, the substitute amended information contained no allegation

that Libertus was a dangerous offender and did not allege the essential facts necessary to

establish that he was a dangerous offender -- i.e., facts showing that his crimes (1) "endangered

or threatened the life of another person or knowingly inflicted or attempted or threatened to

inflict serious physical injury" or (2) that his previous conviction was for a class A, class B, or

dangerous felony, as required by section 558.016.4. In addition, although Libertus was charged

as a "prior offender," as defined in section 558.016.2, and properly found to be a "prior offender"

under section 558.021, the State did not contend or present any evidence that Libertus's Florida

conviction was equivalent to a class A, class B, or dangerous felony under Missouri law.

       We find that the applicable statutes and other authorities confirm the State's contention.

While section 558.021.2 provides that, in a jury trial, "the facts [as to dangerous offender status]

may be established and found at a later time," it does not dispense with the necessity that the

indictment or information "pleads all essential facts warranting a finding that the defendant is a

. . . dangerous offender," or the requirement that "[e]vidence [be] introduced that establishes

sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a . . .

dangerous offender." § 558.021.1 (emphasis added).

       In addition, under the statute that sets forth the "role of court and jury" in sentencing, "the

court, and not the jury, shall assess punishment if . . . [t]he state pleads and proves the defendant

is a . . . dangerous offender," as defined in section 558.016. § 557.036.4(2)) (emphasis added).

       We also note that Missouri Supreme Court Rule 23.01, which governs the form and

contents of an indictment or information, requires the charging document to "[s]tate plainly,



                                                  7
concisely, and definitely the essential facts constituting the elements of the offense charged,

including facts necessary for any enhanced punishment[.]" Rule 23.01(b)(2) (emphasis

added); see also 28 Mo. Prac., Mo. Criminal Practice Handbook § 7:2 (2016) (noting that "[i]n

light of Apprendi v. New Jersey, [530 U.S. 466] (2000), Rule 23.01(b)(2) now requires that any

sentence-enhancing facts must be pleaded. This rule is directed at facts, other than prior

convictions, that change the classification or sentencing range of the offense.").

       In Apprendi, the United States Supreme Court held that, "[o]ther 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." 530 U.S. at 490.

Jones v. United States, 526 U.S. 227 (1999), a predecessor to Apprendi, involved a "sentence

enhancement" for crimes that inflicted serious physical injury on the victim (a situation very

similar to the designation of dangerous offender in this case). In Jones, the United States

Supreme Court very clearly decided that the facts giving rise to the "enhancement" must be

charged, proven beyond a reasonable doubt, and submitted to the jury for its verdict. 526 U.S. at

243 n. 6, 252. In this case, Libertus was neither charged as a dangerous offender, nor were the

facts necessary for that determination submitted to a jury for their verdict.

       We find the applicable Missouri Approved Charge Code ("MACH-CR") and its Notes on

Use extremely persuasive here. MACH-CR 2.30 sets forth the language to be used for alleging

"dangerous offender" status in a charging document. It indicates that the indictment or

information must allege, pursuant to sections 558.016 and 557.036, that the defendant is a prior

offender and that the defendant is a dangerous offender. It then must set forth in detail the facts




                                                  8
that support those allegations.5 Significantly, Note on Use 7 for MACH-CR 2.30 states: "The

punishment range for a 'dangerous offender' may be enhanced either due to prior convictions or

because defendant's conduct in committing the present felony endangered or threatened the life

of another person." The Note thus instructs that

       [i]f the dangerous offender status is being alleged due to the defendant's conduct
       in the present offense [such as in Libertus's case], those additional facts must be
       pleaded pursuant to the first numbered paragraph in 2.30.3. Those additional facts
       must also be submitted to the jury, and the jury must make a finding thereon
       before the punishment range can be enhanced.

Note on Use 7 for MACH-CR 2.30 (citing Apprendi v. New Jersey, 530 U.S. 466; Shepard v.

United States, 544 U.S. 13 (2005)) (emphasis added).

       Here, at the sentencing hearing, just prior to finding Libertus to be a dangerous offender

and pronouncing sentence, the circuit court stated, "I believe Counts I [forcible rape] and III

[forcible sodomy] and the evidence in the case indicated that this would be a dangerous offender.

Does the state agree . . . under the law?" Both the Prosecutor and Defense Counsel agreed.




       5
           Missouri Approved Charge Code 2.30.3, as to charging a "Dangerous Offender," provides as follows:

       [The indictment or information will first set out the basic charge, using MACH-CR 2.10 or 2.15. It
       will then continue as below.]

       Defendant is a prior offender under Sections 558.016 and 557.036, RSMo, in that he has (pleaded
       guilty to) (been found guilty of) (been convicted of) a felony. Defendant is also a dangerous offender
       punishable by sentence to an extended term of imprisonment under Sections 558.016 and 557.036,
       RSMo, in that:

              1. During the commission of the felony of [name of felony] referred to in the next above
              paragraph, the defendant knowingly (murdered) (endangered the life of) (threatened the life of)
              (inflicted serious physical injury on) (attempted to inflict serious physical injury on) (threatened
              to inflict serious physical injury on) [name of another person], and

              2. Defendant has (pleaded guilty to) (has been found guilty of) (been convicted of) a (class A)
              (class B) (dangerous) felony as follows: (on) (on or about) [date], defendant (pleaded guilty to)
              (was found guilty of) (was convicted of) the felony of [name of felony] in the [name of court
              and jurisdiction], and such felony was a (class A felony under the provisions of Section       ,
              RSMo) (class B felony under the provisions of Section _____, RSMo) (dangerous felony as
              defined in Section 556.061(8), RSMo).

                                                            9
       Based on the foregoing, however, we are persuaded that the circuit court lacked the

authority under section 558.021 to pronounce Libertus a dangerous offender and therefore erred

in doing so. The State urges this Court to simply strike the judgment reference to the dangerous

offender finding and let the 100-year sentences stand. We decline to do so. The trial judge

sentenced Libertus under the belief that he was sentencing a dangerous offender. We must

remand for resentencing in light of the fact that he was not.

       Although we deny Point I, in the sense that we do not agree with Libertus's argument that

the error below was a failure to correctly sentence him as a "dangerous offender," we find that

we must grant relief on this point because we have concluded that, in fact, the circuit court erred

in finding Libertus to be a dangerous offender and sentencing him as such; hence, we order the

case remanded for resentencing.

                                              Point II

       Libertus next contends that the circuit court plainly erred in admitting State's Exhibit 42,

which the State introduced to prove Libertus's "prior offender" status, because it did not comply

with statutory requirements for out-of-state records. He asserts that this was a manifest injustice

because being found a prior offender denied him of his statutory right to jury sentencing.

       Under section 558.016.2, a "prior offender" is "one who has pleaded guilty to or has been

found guilty of one felony." The State is required to plead facts in the information or indictment

that the defendant is a prior offender and offer evidence to prove such status prior to the case's

submission to the jury. § 558.021. If the court finds that a defendant is a prior offender, the

judge sentences the defendant rather than allowing the jury to recommend a sentence. §§ 558.016

& 557.036.4(2). Emery, 95 S.W.3d at 100.




                                                 10
       To succeed on this point, Libertus must demonstrate that the procedures set forth in

section 558.021were not followed and that this resulted in prejudice. State v. Teer, 275 S.W.3d

258, 260-61 (Mo. banc 2009). Matters of statutory application are reviewed de novo, without

deference to the trial court's judgment. State v. Jackson, 385 S.W.3d 437, 444 (Mo. App. 2012).

       Libertus claims that Exhibit 42 did not comply with section 490.130, which governs the

admissibility of out-of-state court records and provides:

       The records of judicial proceedings of any court . . . of any state, attested by the
       clerk thereof, with the seal of the court annexed, if there be a seal, and certified by
       the judge, chief justice or presiding associate circuit judge of the court to be attested
       in due form, shall have such faith and credit given to them in this state as they
       would have at the place whence the said records come.

"Consequently, to be given faith and credit in Missouri courts, foreign judgments must be

authenticated; they must bear the attestation and seal of the clerk of the court and the certification

of a judge." State v. Monroe, 18 S.W.3d 455, 458-59 (Mo. App. 2000). "When prior convictions

are the basis for enhanced punishment . . . , the state must prove the fact of prior convictions and

do so in conformity with applicable statutory requirements for such proof." Id. at 458 (citing

State v. Young, 366 S.W.2d 386, 388 (Mo. 1963)).

       To prove Libertus a prior offender, the State moved for admission of Exhibit 42 at a pre-

trial hearing. The exhibit consisted of an exemplification certificate authenticating a judgment

from the Circuit Court of Pasco County, Florida. The judgment reflected that in 1998 Libertus

entered a plea of nolo contendere to the second-degree felony of attempted sexual battery. FLA.

STAT. § 794.011. Defense counsel objected to the admission of Exhibit 42 based on its form,

stating that it was a copy, was "not stapled together in Florida," and did not contain a raised seal.

       The court examined the document, found that a raised seal was not required, and stated:

       Exhibit 42 appears to be an exemplification certificate with original signatures from
       the Clerk and Comptroller of Pasco County, Florida. It appears to have an original


                                                 11
        signature of a Circuit Judge in Pasco County, the Sixth Judicial Circuit of Florida,
        and a certification from the Clerk and Comptroller of Pasco County, Florida. It's
        the exact same exemplification and authentication Missouri uses in terms of its
        form. . . . [T]here don't appear to be any changes . . . that are obvious. It indicates
        [that] he was convicted of a second degree felony of attempted sexual battery.

The court admitted Exhibit 42, found beyond a reasonable doubt that Libertus was a prior

offender, and ordered that the sentencing would be done by the court.

        Libertus asserted in his new trial motion only that Exhibit 42 did not have a raised seal.

He now claims that the circuit court plainly erred in admitting Exhibit 42 because the

exemplification certificate did not explicitly identify the court records it was authenticating or

refer to Libertus by name and was not stapled to the records that it purported to authenticate.

        We find no error in the admission of these documents. To admit a court record, the State

need only prove "conformity with applicable statutory requirements." State v. Martinez, 407

S.W.3d 669, 673 (Mo. App. 2013). As noted, under section 490.130, records of judicial

proceedings from any state are given full "faith and credit" in this state and are therefore

admissible if they are: (1) attested by the clerk of the court; (2) bear the seal of the court

annexed; and (3) are certified by a judge of the court as "attested in due form."

        The records that comprised Exhibit 42 satisfied these requirements. First, the records

were attested to by the "Clerk & Comptroller" of Pasco County, Florida, in an exemplification

certificate, which stated that the clerk certified that the "attached and foregoing" were true and

correct copies. Although the certificate was not stapled to the records, as the circuit court noted,

they appeared to all have been included in the same envelope from the Florida court, and, thus,

the records of Libertus's conviction necessarily were "foregoing" from the certification. Thus,

there was enough evidence to show that the conviction records were "attested by the clerk of the

court." Second, the records bear the seal of the "Sixth Judicial Circuit" and the title of the "Clerk



                                                  12
of Circuit Court & County Comptroller" and identify themselves as being from Pasco County in

the "State of Florida." Thus, the records bore the court's seal as required by section 490.130.

Finally, the records were certified by a judge, and that judge's signature was attested to in due

form. A judge signed the form, claiming to be a circuit judge of the Sixth Circuit and certifying

that the records were attested to in due form. The circuit clerk then attested that the judge who

signed the certificate was a commissioned and qualified judge of the circuit, thus attesting to the

judge's certification, meeting the final statutory requirement of section 490.130.

         In sum, the records were sufficiently authenticated, and the circuit court did not err in

admitting them or in relying on them to find that Libertus was a prior offender.6 Point denied.

                                                     Point III

         In his final point, Libertus contends that the circuit court plainly erred in sustaining the

State's hearsay objection and precluding the forensic nurse examiner from testifying about D.L.'s

answer to whether she had had consensual sex in the last seven days. Libertus claims that the

testimony fell under certain exceptions to the hearsay rule and that the court's refusal to permit it

created a manifest injustice because the testimony was necessary for his defense.

         "A trial court has broad discretion to admit or exclude evidence," and its decision will be

reversed only for a clear abuse of discretion. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc

2006). A court abuses its discretion when its ruling "is clearly against the logic of the

circumstances and is so unreasonable as to indicate a lack of careful consideration." Id.

         At trial, the State presented testimony, photographs, and diagrams documenting D.L.'s

injuries via the testimony of Susan Kilger, the forensic nurse examiner who examined D.L. and

gathered rape kit evidence after the attack. Kilger stated that she examined D.L. from front to

         6
         We note that Libertus does not argue that he did not meet the definition of a prior offender, only that
Exhibit 42 did not comply with the requirements of section 490.130. See Martinez, 407 S.W.3d at 674, n. 2.

                                                         13
back, head to toe, and side to side, looking for signs of trauma and documenting every mark.

Kilger noted petechiae7 on D.L.'s neck, cheek, and left forearm; lacerations on her arm, leg, and

neck; abrasions on her shoulder, neck, and ankle; a bruise and small, ruptured blood vessels on

her knee; a bruise underneath her chin; and redness around her hairline. Kilger told the jury that

there also was redness in the vaginal area, which indicated trauma. Kilger stated that such

redness can occur with consensual sex but that, with consensual sex, there is less chance of such

trauma. Kilger also stated that she found two lacerations in the anal area, which were indicative

of blunt force trauma, because they were in an unusual spot. She explained that any injuries

from consensual rectal sex would have been in a different location. Kilger also testified that

mucousy tissue coming from the rectum indicated trauma to the rectum, but she again agreed that

it could result from consensual sex.

         Kilger explained that, as part of her examination of every patient complaining of a sexual

assault, she asks whether there has been consensual sex within the past seven days. On cross-

examination, defense counsel attempted to show that any abnormalities in the genital exam could

have come from recent consensual sex. Referring to Kilger's notes, he asked:

         Q. And there is a box marked that, yes, there was sex within the past seven days,
            correct?

         A. [Kilger]: Yes.

         Q. [Defense counsel]: And that was consensual sex?

             [Prosecutor:] Objection, your Honor, hearsay.

The court sustained the prosecutor's objection.




         7
         Kilger explained that "petechiae" is a more recent type of injury that occurs when pressure is applied to a
blood vessel and blood drops form underneath the skin's surface.

                                                         14
       Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

Martinez, 407 S.W.3d at 672. As a general rule, hearsay is not admissible unless it qualifies

under some recognized exception to the hearsay rule. Id. Libertus contends that two exceptions

apply here: (1) statements to a treating physician or nurse that are "reasonably pertinent to

diagnosis and treatment"; and (2) "evidence explaining evidence . . . showing that the inference

arising or sought to be drawn therefrom is not warranted," citing State v. Crews, 406 S.W.3d 91,

93 (Mo. App. 2013), and State v. Taylor, 929 S.W.2d 925, 928 (Mo. App. 1996). Libertus

argues that he should have been allowed to admit D.L.'s statement to the treating nurse that there

had been recent consensual sex to establish an alternative reason for any evidence of trauma

observed by Kilger during the exam. Libertus contends that the court's denial of this evidence

constituted a manifest injustice because it denied him his constitutional right to "a meaningful

opportunity to present a complete defense," citing Crane v. Kentucky, 476 U.S. 683, 690 (1986).

       We disagree that the exclusion of this evidence constituted a manifest injustice. As our

Supreme Court has observed, "on direct appeal, a manifest injustice or miscarriage of justice

exists so as to entitle a defendant to relief for plain error only when the error is outcome

determinative." State v. Presberry, 128 S.W.3d 80, 85 (Mo. App. 2003) (citing Deck v. State, 68

S.W.3d 418, 427 (Mo. banc 2002)). Libertus cannot show that this evidence, even if erroneously

excluded, was outcome-determinative in light of all the other evidence presented, e.g., Kilger's

observation of marks consistent with D.L. having been choked and thrown around, as well as

evidence of trauma to her vaginal and anal areas; the police officer's discovery of D.L.'s damaged

bra at the scene and a corresponding abrasion on D.L.'s shoulder; the neighbor's observation of

D.L. running out of her house with her clothes open and screaming and of Libertus following

D.L. carrying a handgun; Libertus's attempt to conceal the handgun from the neighbor and to



                                                 15
hide the rifle at his friend's (both of which evidenced his consciousness of guilt) and, most

significantly, Libertus's admission to Hufford that he had raped D.L.

       In sum, Libertus cannot prove that excluding D.L.'s answer to whether she had

consensual sex in the past week had any effect on the verdict, let alone an outcome-determinative

effect; thus, he fails to demonstrate a manifest injustice or miscarriage of justice. The circuit

court did not plainly err in excluding this evidence. Point denied.

                                            Conclusion

       Based on the foregoing, we affirm Libertus's convictions. We remand to the circuit court

for resentencing, however, based on our determination that Libertus could not be found to be a

dangerous offender by the trial court under the procedural posture of this case.



                                                      /s/ JAMES EDWARD WELSH
                                                      James Edward Welsh, Judge


All concur




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