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State v. Beck7/26/2005
e law of self-defense, given the evidence of multiple assailants.
In its closing argument, the State argued: "I would suggest you read the Court's instruction to you on self-defense. It only relates to what Matthew Snarr did, not what anybody else - what the defendant claims somebody else did." This argument, coupled with Instruction No. 11, would have undoubtedly led the jury to believe, contrary to the law, that it could not consider the acts of the victim's friends, in any manner, in deliberating on whether he acted in lawful self-defense in stabbing the victim in response to the victim's grabbing him from behind. Thus, there can be no doubt that the jury was confused as to an element of the State's proof, albeit in the negative. In that regard, as we noted, supra, once the trial court determined that the appellant had carried his burden of injecting the issue of self-defense in the case, it was the State's burden to prove, beyond a reasonable doubt, that the appellant did not act in lawful self-defense. White, 92 S.W.3d at 191. Hence, Instruction No. 11, in essence, erroneously instructed on a proof element of the State's case, albeit in the negative.
Having determined that Instruction No. 11 was erroneous, the question remains as to whether the error rose to the level of plain error. As we discussed, supra, instructional error is rarely found to result in manifest injustice or a miscarriage of justice, requiring reversal for plain error. However, as we noted in State v. White, 92 S.W.3d at 192:
In the context of instructional error, reversible plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury's verdict. In that regard:
an appellate court will be more inclined to reverse in cases where the erroneous instruction 'did not merely allow a wrong word or some other ambiguity to exist, but excused the State from its burden of proof on a contested element of the crime.'
(Citations omitted.) Here, the error in Instruction No. 11 effectively gave the State a pass on proving the negative of a contested element of the offense charged, that the appellant did not act in lawful self-defense when he stabbed the victim, such that plain error occurred.
A further basis for finding plain error here can be found in State v. Goucher, in which the Southern District of this court held that: "In Derenzy, the defendant met his burden of showing plain error by simply demonstrating that the trial court failed to give a mandatory instruction that possibly affected substantial rights." 111 S.W.3d at 919. As we discussed, supra, the giving of the self-defense instruction in proper form in this case was mandatory. Instruction No. 11, given its deficiencies, was not in proper form.
Having found instructional plain error in Point II, the appellant is entitled to a reversal of his conviction for second-degree assault and a new trial. State v. Smith, 154 S.W.3d 461, 471 (Mo. App. 2005). On remand, however, he cannot be re-tried for first-degree assault in that he was acquitted by the jury of that offense when it found him guilty of the lesser-included offense of second-degree assault. State v. Weekley, 967 S.W.2d 190, 193-94 (Mo. App. 1998). Further, in ruling as we do as to Point II, the appellant's claim in Point I, in which he sought a new trial, and his claim in Point III, in which he sought to be re-sentenced for the class A misdemeanor of assault in the second degree, are rendered moot.
Conclusion
The judgment of the appellant's conviction for assault in the second degree, section 565.060, is re
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