In the Missouri Court of Appeals Eastern District DIVISION TWO
STATE OF MISSOURI, ) No. ED112516 ) Respondent, ) Appeal from the Circuit Court ) of Franklin County vs. ) Cause No. 19AB-CR01097-01 ) BRIAN S. HENSLEY, ) Honorable Craig E. Hellmann ) Appellant. ) FILED: June 24, 2025
Introduction
Brian Hensley (Hensley) appeals his sentence following convictions for involuntary
manslaughter and armed criminal action. Hensley argues the circuit court plainly erred because it
improperly obtained extrajudicial information from jurors and because he had no opportunity to
cross-examine the jurors regarding their out-of-court conversations with the circuit court prior to
his sentencing. Hensley acknowledges that he did not preserve this issue, but instead requests we
exercise our discretion and review his claim for plain error. Finding neither evident, obvious, and
clear error nor manifest injustice or miscarriage of justice, we decline to conduct plain error review
and affirm the judgment of the circuit court.
Background
On the night of April 15, 2019, Hensley’s neighbor, K.C., came over to his house. When
K.C. attempted to enter, she found R.M. (Victim) lying in the doorway. When K.C. stated Victim was hurt, Hensley insisted Victim was faking and couldn’t be hurt because there were blanks in
the gun. Hensley announced Victim would quit faking if they ordered pizza. K.C. went inside
where Hensley was sitting with a handgun next to him and they ordered a pizza. After the pizza
was delivered, K.C. told Hensley she needed to go back to her house to see if her fiancé wanted
food. K.C. went home and called 911. Police responded shortly after and confirmed Victim was
deceased with a bullet wound to her left eye.
Hensley was arrested and charged with second-degree murder and armed criminal action.
A jury found Hensley guilty of the lesser included involuntary manslaughter and armed criminal
action on December 12, 2023, and recommended sentences of 10 years and 100 years for each
count respectively. After dismissing the jurors, and instructing counsel to remain in the courtroom,
the Judge met with the jurors in their assembly room to personally thank them for their service.
Hensley did not object to this meeting.
Sentencing was held on March 7, 2024, during which the court remarked to Hensley that
the jury made it quite clear to him that they felt like the voice of the community and wanted to be
heard. Hensley did not object to the court’s actions or statement. The court then imposed the
sentence recommended by the jury. This appeal follows.
Standard of Review
We only review unpreserved claims of error under Rule 30.20,1 which grants us discretion
to review plain errors affecting substantial rights if we find the alleged errors resulted in manifest
injustice or miscarriage of justice. State v. Brandolese, 601 S.W.3d 519, 525-26 (Mo. banc 2020).
We “will not review a claim for plain error unless the claimed error facially establishes substantial
grounds for believing that manifest injustice or miscarriage of justice has resulted.” Id. at 526
1 All rule references are to the Missouri Supreme Court Rules (2023).
2 (internal quotation omitted). Plain error review is a two-step analysis. State v. Hill, 697 S.W.3d
885, 888 (Mo. App. E.D. 2024). First, we evaluate whether there was evident, obvious and clear
error that affected substantial rights. Id. If so, we then decide whether that error resulted in a
manifest injustice or miscarriage of justice. Id.
“Manifest injustice must be established in connection to the particular facts and
circumstances of the case.” State v. Jones, 686 S.W.3d 293, 301 (Mo. App. E.D. 2024) (citing
State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006)). There is no presumption of prejudice in
a plain error review, and the defendant bears the burden of showing prejudice resulting in manifest
injustice. State v. Vitale, 688 S.W.3d 740, 746-47 (Mo. App. E.D. 2024). We review the entire
record to determine the presence of prejudice. Id. at 747.
Discussion
Hensley asserts the circuit court plainly erred by sentencing him based on extrajudicial
information obtained while conversing with jurors outside of the presence of counsel. Hensley
further argues the court violated his rights to due process, a fair trial, and the right to confront
witnesses, which resulted in manifest injustice, as the judge failed to consider all circumstances of
the offense and his history and character in determining his sentence. We disagree.
The “general rule is that no communication whatever should take place between the Court
and the jury, after the cause has been submitted to them, unless in open court, and where
practicable, in the presence of the attorneys in said cause.” State v. Harris, 842 S.W.2d 953, 956
(Mo. App. E.D. 1992) (internal quotation omitted). Judges shall recuse themselves from the
proceeding if their impartiality may reasonably be questioned as in such circumstances as a
personal bias against the party, their counsel, or if they have knowledge of disputed facts that
would prevent them from being fair and impartial. Rule 2-2.11(A). However, a judge may
3 communicate with jurors after their verdict to express appreciation for their service. See Rule 2-
2.8.
Hensley fails to establish the circuit court’s actions constituted a clear, evident, and obvious
error that affected his substantial rights. The jury rendered its decision and handed down its
sentencing recommendation. After the jurors were discharged, the judge met with them to
personally thank them for their service, as is allowed. See id.
The court’s language at sentencing echoed the sentiment that the State offered during
sentencing arguments. In closing, the State asserted, “You can put 100 years there . . . . Don’t
make this a slap on the wrist, ladies and gentlemen. Something terrible has happened. There is
extreme culpability over there. And this is your opportunity to send a message. Send it.” In
response, the jury recommended 10 years for count I and 100 years for count II.
Victim’s family gave statements before the court reached its sentencing decision. In a letter
to the court, Victim’s brother described Hensley as an evil monster and suggested an increased
culture of gun violence caused by leniency in punishments. He described the impact that losing
his sister had on him and their family, and he urged the court to implement the jury recommended
sentence. Similarly, Victim’s sister described how hard it has been for their family since Victim’s
death and reiterated her brother’s request that Hensley receive the jury recommended sentence.
The record reflects the court’s response to the testimony of Victim’s family: “None of what you’ve
said or your brother said is going to be lost on this Court. Or the evidence that I heard that was
presented to this jury.”
At sentencing, the court pronounced: “one thing that [the jury] made quite clear to me is
that they felt like the voice of the community, and they wanted to be heard, and they will be.” This
statement does not indicate the court gained any extrajudicial information while speaking to the
4 jury in their assembly room. The jury appeared to send a message by recommending a 100-year
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In the Missouri Court of Appeals Eastern District DIVISION TWO
STATE OF MISSOURI, ) No. ED112516 ) Respondent, ) Appeal from the Circuit Court ) of Franklin County vs. ) Cause No. 19AB-CR01097-01 ) BRIAN S. HENSLEY, ) Honorable Craig E. Hellmann ) Appellant. ) FILED: June 24, 2025
Introduction
Brian Hensley (Hensley) appeals his sentence following convictions for involuntary
manslaughter and armed criminal action. Hensley argues the circuit court plainly erred because it
improperly obtained extrajudicial information from jurors and because he had no opportunity to
cross-examine the jurors regarding their out-of-court conversations with the circuit court prior to
his sentencing. Hensley acknowledges that he did not preserve this issue, but instead requests we
exercise our discretion and review his claim for plain error. Finding neither evident, obvious, and
clear error nor manifest injustice or miscarriage of justice, we decline to conduct plain error review
and affirm the judgment of the circuit court.
Background
On the night of April 15, 2019, Hensley’s neighbor, K.C., came over to his house. When
K.C. attempted to enter, she found R.M. (Victim) lying in the doorway. When K.C. stated Victim was hurt, Hensley insisted Victim was faking and couldn’t be hurt because there were blanks in
the gun. Hensley announced Victim would quit faking if they ordered pizza. K.C. went inside
where Hensley was sitting with a handgun next to him and they ordered a pizza. After the pizza
was delivered, K.C. told Hensley she needed to go back to her house to see if her fiancé wanted
food. K.C. went home and called 911. Police responded shortly after and confirmed Victim was
deceased with a bullet wound to her left eye.
Hensley was arrested and charged with second-degree murder and armed criminal action.
A jury found Hensley guilty of the lesser included involuntary manslaughter and armed criminal
action on December 12, 2023, and recommended sentences of 10 years and 100 years for each
count respectively. After dismissing the jurors, and instructing counsel to remain in the courtroom,
the Judge met with the jurors in their assembly room to personally thank them for their service.
Hensley did not object to this meeting.
Sentencing was held on March 7, 2024, during which the court remarked to Hensley that
the jury made it quite clear to him that they felt like the voice of the community and wanted to be
heard. Hensley did not object to the court’s actions or statement. The court then imposed the
sentence recommended by the jury. This appeal follows.
Standard of Review
We only review unpreserved claims of error under Rule 30.20,1 which grants us discretion
to review plain errors affecting substantial rights if we find the alleged errors resulted in manifest
injustice or miscarriage of justice. State v. Brandolese, 601 S.W.3d 519, 525-26 (Mo. banc 2020).
We “will not review a claim for plain error unless the claimed error facially establishes substantial
grounds for believing that manifest injustice or miscarriage of justice has resulted.” Id. at 526
1 All rule references are to the Missouri Supreme Court Rules (2023).
2 (internal quotation omitted). Plain error review is a two-step analysis. State v. Hill, 697 S.W.3d
885, 888 (Mo. App. E.D. 2024). First, we evaluate whether there was evident, obvious and clear
error that affected substantial rights. Id. If so, we then decide whether that error resulted in a
manifest injustice or miscarriage of justice. Id.
“Manifest injustice must be established in connection to the particular facts and
circumstances of the case.” State v. Jones, 686 S.W.3d 293, 301 (Mo. App. E.D. 2024) (citing
State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006)). There is no presumption of prejudice in
a plain error review, and the defendant bears the burden of showing prejudice resulting in manifest
injustice. State v. Vitale, 688 S.W.3d 740, 746-47 (Mo. App. E.D. 2024). We review the entire
record to determine the presence of prejudice. Id. at 747.
Discussion
Hensley asserts the circuit court plainly erred by sentencing him based on extrajudicial
information obtained while conversing with jurors outside of the presence of counsel. Hensley
further argues the court violated his rights to due process, a fair trial, and the right to confront
witnesses, which resulted in manifest injustice, as the judge failed to consider all circumstances of
the offense and his history and character in determining his sentence. We disagree.
The “general rule is that no communication whatever should take place between the Court
and the jury, after the cause has been submitted to them, unless in open court, and where
practicable, in the presence of the attorneys in said cause.” State v. Harris, 842 S.W.2d 953, 956
(Mo. App. E.D. 1992) (internal quotation omitted). Judges shall recuse themselves from the
proceeding if their impartiality may reasonably be questioned as in such circumstances as a
personal bias against the party, their counsel, or if they have knowledge of disputed facts that
would prevent them from being fair and impartial. Rule 2-2.11(A). However, a judge may
3 communicate with jurors after their verdict to express appreciation for their service. See Rule 2-
2.8.
Hensley fails to establish the circuit court’s actions constituted a clear, evident, and obvious
error that affected his substantial rights. The jury rendered its decision and handed down its
sentencing recommendation. After the jurors were discharged, the judge met with them to
personally thank them for their service, as is allowed. See id.
The court’s language at sentencing echoed the sentiment that the State offered during
sentencing arguments. In closing, the State asserted, “You can put 100 years there . . . . Don’t
make this a slap on the wrist, ladies and gentlemen. Something terrible has happened. There is
extreme culpability over there. And this is your opportunity to send a message. Send it.” In
response, the jury recommended 10 years for count I and 100 years for count II.
Victim’s family gave statements before the court reached its sentencing decision. In a letter
to the court, Victim’s brother described Hensley as an evil monster and suggested an increased
culture of gun violence caused by leniency in punishments. He described the impact that losing
his sister had on him and their family, and he urged the court to implement the jury recommended
sentence. Similarly, Victim’s sister described how hard it has been for their family since Victim’s
death and reiterated her brother’s request that Hensley receive the jury recommended sentence.
The record reflects the court’s response to the testimony of Victim’s family: “None of what you’ve
said or your brother said is going to be lost on this Court. Or the evidence that I heard that was
presented to this jury.”
At sentencing, the court pronounced: “one thing that [the jury] made quite clear to me is
that they felt like the voice of the community, and they wanted to be heard, and they will be.” This
statement does not indicate the court gained any extrajudicial information while speaking to the
4 jury in their assembly room. The jury appeared to send a message by recommending a 100-year
sentence, and Victim’s family member statements endorsed that recommendation. In response,
the court followed the jury’s recommendation when sentencing Hensley. Hensley fails to establish
the court obtained any extrajudicial information constituting an evident, obvious, and clear error
that would warrant plain error review by this court.
Though we need not continue our analysis because we do not find that the court committed
evident, obvious, and clear error, we note that Hensley fails to show that had the court gained
extrajudicial information, it would have then resulted in manifest injustice or miscarriage of
justice. It is presumed that judges do not consider improper evidence during sentencing.
Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005). Inadmissible evidence relevant to
sentencing is neither prejudicial nor fundamentally unfair in court-tried matters. Id.
Here, Hensley argues the court obtained extrajudicial information outside his presence and
further that the court based its sentencing decision on this information. Hensley adds the court
made very clear its decision was based on the post-verdict juror conversation. However, the court
merely stated “[the jury] wanted to be heard, and they will be. They were heard by me and they
were heard by the family. They were heard by the community.”
Beyond the post-verdict conversation, the court had a myriad of information, including the
State’s closing arguments, the victim impact statements, and the jury’s lengthy sentence
recommendation that mirrored the court’s remarks regarding the jury’s wishes. Furthermore, it
is presumed that even if the court gained extrajudicial information while speaking with the
discharged jury, that information was not prejudicial or fundamentally unfair because the court is
presumed not to have considered it. Worthington, 166 S.W.3d at 573. The jury’s sentencing
5 recommendation was based on the evidence at trial, and the court agreed with their
recommendation.
Because Hensley failed to establish that evident, obvious and clear error occurred that
affected his substantial rights, his asserted error does not “facially establish[ ] substantial grounds
for believing that manifest injustice or miscarriage of justice has resulted.” Vitale, 688 S.W.3d at
746. Therefore, we decline to conduct plain error review.
Conclusion
For the reasons set forth above, the judgment of the circuit court is affirmed.
________________________ Virginia W. Lay, J.
Lisa P. Page, P.J., concurs. Rebeca Navarro-McKelvey, J., concurs.