State v. Bienkowski, 43410
| Decision Date | 15 September 1981 |
| Docket Number | No. 43410,43410 |
| Parties | STATE of Missouri, Respondent, v. Robert BIENKOWSKI, Appellant. |
| Court | Missouri Court of Appeals |
Mary K. Wefelmeyer, Joseph W. Downey, Asst. Public Defenders, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
Appeal from a jury conviction of first degree assault. The jury was instructed on first and second degree assault and self-defense. Instructions on the defense of intoxication (MAI-CR.2d 3.30.1) and mitigation of assault because of extreme emotional disturbance (MAI-CR.2d 19.02 and 19.03) were refused. Defendant alleges error in the refusal of those instructions and their corresponding verdict directors. We affirm.
On December 21, 1979, Ronald Townsend met his wife, daughter, mother and his mother's friend Jim at a tavern shortly after 11:00 p. m. Shortly thereafter, they left the tavern and went to a restaurant.
Upon arriving at the restaurant's parking lot, Ronald and his wife heard a group of six to eight teenagers singing Christmas carols. Ronald called across the lot, "(w)here did you use the money that your mother gave you for singing lessons?" The boys responded "(w)e spent it," and laughed. Just then another boy came from the restaurant and asked, "(y)ou don't like my buddies' singing?" Ronald's wife assured him, "(h)e doesn't mean anything, he's just kidding around."
Ronald heard shouting and cursing and saw Jim on the ground. He ran toward his wife and daughter at the rear of his car. As he reached the back of the car, defendant shot him. The teenagers, including defendant, ran and dispersed. Ronald suffered a severe abdominal wound.
Defendant asserts he was intoxicated at the time he shot Ronald. He suggests error in failure of the trial court to give MAI-CR.2d 3.30.1. This intoxication instruction had to be given if defendant was prevented by his intoxication from acting knowingly in shooting Ronald.
Voluntary intoxication operates as a defense by negating entirely the "knowingly" element of a crime. Section 562.076.1(1), RSMo. 1978. A person acts "knowingly" with respect to his conduct when he is aware of the nature of his conduct. Section 562.016, RSMo. 1978. To support an instruction on this defense, evidence must be presented that tends to show defendant was so intoxicated that he did not know what he was doing. Note on Use 4, MAI-CR.2d 3.30.1. It is not every degree of intoxication that is a defense. State v. Gullett, 606 S.W.2d 796, 805 (Mo.App. 1980). In deciding whether to give this instruction, defendant is entitled to the benefit of his evidence and the inferences flowing from it. State v. Harris, 598 S.W.2d 200, 203 (Mo.App. 1980). His evidence shows:
On the day of the assault, between 4:00 p. m. and 7:00 p. m., defendant shared a six-pack of beer with his younger brother. During the next five hours leading up to the assault, defendant drank 9 to 12 more beers. Defendant was 19 years old, about 5' 11 tall, and weighed about 160 pounds. He was drinking every day and was having problems with drinking. Defendant said he was intoxicated, however, he testified too much. He was able to recount the incident and the story of the night's events. He named five of his companions present, pointed out the progress of the dispute on a map of the restaurant's parking lot, and provided several quotes from the parties involved. His recall belies his intoxication theory. There was no substantial evidence of the severe intoxication required by § 562.076.1(1), hence the trial court properly refused an instruction on that issue. Defendant did not carry his burden of "injecting the issue." Section 562.076.2, RSMo. 1978.
Finally, defendant says he was improperly convicted of assault in the first degree. He maintains he was acting under the influence of extreme emotional disturbance within the meaning of § 565.060(3)(a). He asserts error in the refusal of the trial court to give his offered instructions on this issue, MAI-CR.2d 19.02 and 19.03 and corresponding verdict director.
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Battle v. Armontrout, 88-2043 C (5).
...conscious will; under such facts, the defendant was not entitled to the instruction on voluntary intoxication); State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981) (defendant's recall of the events belied his intoxication theory; therefore, refusal to give intoxication defense instructio......
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State v. Sherrill
...was so intoxicated that he did not know what he was doing [State v. Lee, 647 S.W.2d 817, 819-820 (Mo.App.1983); State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981) ] and until defendant introduces evidence of the required degree of intoxication the issue need not be submitted to the jury......
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State v. Ehlers
...the "extreme emotional disturbance" language of § 565.060.1 include State v. Ellis, 639 S.W.2d 420 (Mo.App.1982) and State v. Bienkowski, 624 S.W.2d 107 (Mo.App.1981). In each of those cases the evidence was held insufficient to inject the issue. In Ellis the defendant and his accomplice Tu......
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Smith v. State, 56459
...intoxication was so extreme he did not know what he was doing. State v. Edmaiston, 679 S.W.2d 360, 362 (Mo.App.1984); State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981). The degree of intoxication required to constitute a defense under § 562.076, RSMo 1978, was thoroughly discussed in S......