State v. Beck

• Decision Date: 26 July 2005
• Docket Number: No. WD 63708.,WD 63708.
• Citation: 167 S.W.3d 767
• Parties: STATE of Missouri, Respondent, v. Patrick L. BECK, Appellant.
• Court: Missouri Supreme Court

167 S.W.3d 767

STATE of Missouri, Respondent, v. Patrick L. BECK, Appellant.

No. WD 63708.

Missouri Court of Appeals, Western District.

July 26, 2005.

COPYRIGHT MATERIAL OMITTED

Craig A. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

Before EDWIN H. SMITH, C.J., and SPINDEN and HOLLIGER, JJ.

EDWIN H. SMITH, Chief Judge.

Patrick L. Beck appeals the judgment of his conviction, after a jury trial in the Circuit Court of Morgan County, of assault in the second degree, § 565.060,¹ for which he was sentenced to three years in the Missouri Department of Corrections. He was charged with assault in the first degree, § 565.050, but was acquitted of that offense. He was charged with stabbing the victim with a knife, causing serious physical injury. At trial, he admitted to the stabbing, but claimed self-defense, in accordance with § 563.031. Specifically, he claimed that he was justified in stabbing the victim in that the victim held him from behind while two of the victim's friends approached him brandishing a baseball bat and a metal pipe in a threatening manner.

The appellant raises three points on appeal. In Point I, he claims that the trial court plainly erred in failing to declare, sua sponte, a mistrial for the State's arguing to the jury that in considering whether the appellant acted in self-defense, as submitted in Instruction No. 11, which was proffered by the appellant and patterned after MAI-CR 3d 306.06, it could only consider the actions of the victim and not those of his friends because the argument misstated the law of self-defense found in § 563.031. In Point II, he claims that the trial court plainly erred in failing to modify, sua sponte, Instruction No. 11, to instruct the jury that it could consider not only the actions of the victim, but the victim's friends, in determining whether he acted in self-defense in stabbing the victim, because without modification, MAI-CR 3d 306.06, contrary to the law of self-defense, does not provide for instances of self-defense in cases of multiple assailants, as in this case. In Point III, he claims that the trial court plainly erred in entering its judgment of conviction on the jury's verdict finding him guilty of the class C felony of assault in the second degree, § 565.060, as submitted in Instruction No. 7, because it did not, as required by due process, hypothesize all the requisite proof elements of that crime.

We reverse and remand.

Facts

In the early morning hours of August 6, 2000, an incident occurred in the parking lot of the Hangout Bar and Grill in Ivy Bend, Missouri, involving the appellant and Matthew Snarr, the victim. Prior to the incident, both men, who had never met, had been in the bar for several hours with different groups of people. At some point, they exited the bar and a confrontation ensued in the parking lot, which ultimately resulted in the appellant stabbing the victim six times.

On April 14, 2003, an information was filed in the Circuit Court of Morgan County, charging the appellant with assault in the first degree, § 565.050. The appellant's case proceeded to a jury trial on September 2, 2003. The appellant admitted at trial to stabbing the victim, but claimed he was acting in self-defense. The victim testified that the appellant followed him outside of the bar and attacked him with a knife. He testified that neither he nor his friends provoked the appellant in any way.

The appellant testified that the victim and two of his friends instigated a fight with him and his friend, Waylon Bashrum, because one of the victim's friends believed Bashrum was "looking at [his] old lady." He further testified that the victim forcefully held him from behind while the victim's friends approached him brandishing a baseball bat and metal pipe in a threatening manner. According to the appellant, it was necessary for him to stab the victim because he believed it was his only means of escaping the victim's hold and the victim's friends were approaching with the intent to assault him.

The jury was instructed on first-degree assault, and the lesser-included offenses of assault in the second and third degree. At the request of the appellant, the jury was instructed on the issue of self-defense in Instruction No. 11, which was proffered by the appellant and patterned after MAI-CR 3d 306.06. Instruction No. 11 reads:

One of the issues in this case is whether the use of force by the defendant against Matthew Snarr was in self-defense. In this state, the use of force, including the use of deadly force, to protect oneself from harm is lawful in certain circumstances.

In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person. He need not be in actual danger but he must have a reasonable belief that he is in such danger.

If he has such a belief, he is then permitted to use that amount of force which he reasonably believes to be necessary to protect himself.

As used in this instruction, the term `reasonable belief' means a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.

On the issue of self-defense in this case you are instructed as follows:

If the defendant was not the initial aggressor in the encounter with Matthew Snarr, and if the defendant reasonably believed he was in imminent danger of harm from the acts of Matthew Snarr and the defendant used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self-defense.

The State has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant not guilty in this case.

During closing arguments, the State twice commented on the appellant's self-defense instruction, Instruction No. 11. First, the prosecutor stated: "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." Second, during the State's final argument, the prosecutor stated: "[The appellant], under the law, whether we like it or not, is entitled to react only against what Matthew Snarr did, not what some other people supposedly did."

On September 2, 2003, the jury returned its verdicts finding the appellant not guilty of assault in the first degree, but guilty of assault in the second degree. On September 23, 2003, the appellant filed a motion for judgment of acquittal or, in the alternative, for a new trial. None of the issues raised by the appellant on appeal, however, were asserted in the motion, which was overruled.

On January 14, 2004, the trial court sentenced the appellant to three years in the Missouri Department of Corrections. In its form judgment entry, the trial court indicated that the appellant had been convicted of assault in the first degree, a class B felony,² rather than assault in the second degree, a class C felony, as found by the jury.

This appeal followed.

I.

Before addressing the merits of the appellant's claims of error, we first must address the obvious discrepancy between the trial court's judgment entry, convicting the appellant of the class B felony of assault in the first degree, § 565.050, and the jury's guilty verdict, finding him guilty of the class C felony of assault in the second degree, § 565.060. Because the parties do not raise this issue on appeal, our review of this issue, if any, would be for plain error, in accordance with Rule 30.20.³

Rule 30.20 provides, in pertinent part, that "[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom." The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo.App.2001). In determining whether to exercise our discretion to grant plain error review, we look to determine whether on the face of the appellant's claim substantial grounds exist for believing that the trial court committed error that is evident, obvious, and clear, affecting a substantial right of the defendant, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001); State v. Hibler, 21 S.W.3d 87, 96 (Mo.App.2000).

If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious, and clear. Id. As in the case of our review for "regular" error, not every evident, obvious, and clear error found mandates reversal. Carr, 50 S.W.3d at 853. In the case of "regular" error, to be reversible, the error found must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo.App.2002). Likewise, in the case of plain error, the error found must have prejudiced a substantial right of the appellant, except that such prejudice must rise to the level of manifest injustice or a miscarriage of justice. State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002). Thus, even if evident, obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Hibler, 21 S.W.3d at 96.

In its...