State v. Goodine

• Decision Date: 30 May 2006
• Docket Number: No. 26827.,26827.
• Citation: 196 S.W.3d 607
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Larry GOODINE, Defendant-Appellant.
• Court: Missouri Court of Appeals

196 S.W.3d 607

STATE of Missouri, Plaintiff-Respondent, v. Larry GOODINE, Defendant-Appellant.

No. 26827.

Missouri Court of Appeals, Southern District, Division One.

May 30, 2006.

Motion for Rehearing or Transfer Denied June 21, 2006.

Application for Transfer Denied August 22, 2006.

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Ellen H. Flottman, Columbia, for Appellant.

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

NANCY STEFFEN RAHMEYER, Presiding Judge.

Larry Goodine ("Appellant") was convicted of assault in the first degree, a violation of section 565.060, and armed criminal action, a violation of section 571.015.¹ He was sentenced to twenty years for assault and a consecutive term of five years for the armed criminal action. Appellant brings three points on appeal: two claiming error in the jury instructions and one positing plain error for a remark made by the State in closing argument. We find no error and affirm; however, we remand for a correction of a clerical error in the written sentence and judgment.

Appellant does not challenge the sufficiency of the evidence; however, he did claim self-defense at the trial so facts favorable to his defense will be related in our discussion of the incident. Appellant was residing with his brother, Rick Goodine ("Rick"), because his utilities had been disconnected by his landlord, Fred Bounous ("Fred"), in an effort to evict Appellant.² Appellant had been served with an eviction notice a few days before the incident which led to the ultimate convictions. When Fred asked his son, Mike Bounous ("Mike"), to speak with the Goodines about leaving, Mike asked brothers Corey Baldwin ("Corey") and Randy Baldwin ("Randy") to go with him to the trailer park and assist him in notifying the Goodines that they were being evicted.

The stories of the witnesses diverge at this point; however, it is clear that Mike and Corey went to Rick's trailer while Randy waited at the landlord's trailer. According to the State's evidence, neither Mike nor Corey were carrying weapons when they knocked on Rick's trailer door. Appellant and his brother, who had been drinking, both answered the door and a "heated argument" ensued. Appellant, who had kept his hand in his pocket up until then, stepped out and started swinging at Mike; Mike realized that Appellant had stabbed him in the chest. The knife, a 4 ½ to 6-inch long, locked blade hunting knife, hit Mike's rib and went under his chest muscle.³

As Mike jumped off the deck, Rick, who did not have a weapon, attacked Corey. Appellant then came over and stabbed Corey in the arm and wrist.⁴ Mike grabbed a weed eater, which was lying in the yard, and used it to knock Appellant off Corey. Appellant said he was going to kill them, jumped off the porch and tried to stab Mike again, but Mike used a TV dinner tray to block the knife.

Randy, who had heard the screaming and saw the commotion, came into the yard to help Corey and Mike, who were trying to get away. Rick told Randy to "stay out of it"; however, Appellant approached Randy and stabbed him in the chest within seconds. Randy collapsed, but Appellant continued stabbing him in the arm and leg until Fred came into the yard and hit Appellant in the head with a cinder block.⁵ Appellant then stabbed Fred under the armpit.⁶

Appellant did not testify at trial, however, some of his statements were introduced through various witnesses. Also, his brother, Rick, testified in order to relate the defense's version of the events. Rick testified that sometime before the incident at issue, Appellant and Randy had an argument after Randy and Corey tried to pick a fight with Appellant at a local bar called the Stagger Inn. There was a physical altercation between Appellant and Randy at the Stagger Inn. Randy and Corey also threatened Appellant and Rick after the fight by stating, "[t]hey'd catch [Appellant and Rick] outside."

Rick relayed that on the day of the incident both he and Appellant bought some beer and drove home to the trailer park. After stepping onto the porch of his trailer, he saw five individuals, Randy, Corey, Mike, Fred, and a man named Floyd, walking fast toward his trailer. Mike, Randy, and Corey came onto the porch of the trailer. Mike then said to Appellant, "oh, you like to hit old men," referring to his father Fred. Appellant denied touching Fred. At that moment, Mike tried to hit Appellant, and Randy hit Rick with a spring. A fight started on the porch to the trailer and then spilled into the yard, resulting in Appellant and Rick fighting four or five people and getting beaten with "clubs and baseball bats and pipes and chains and stuff." Rick saw Randy holding a knife, but he did not see Appellant stab anyone because he was fighting other people. Every person fighting Rick and Appellant was armed with a weapon. There was additional evidence that Fred often did not get court orders to have a sheriff evict a tenant from the trailer park, and that his preferred method of eviction was to cut the power to the trailer and to solicit residents to beat up other residents so they would move out. There was also evidence that Randy had a blood alcohol level of 0.249% at the hospital, and that he went into "DT's" and tore out his tubes in intensive care. Randy also tested positive for marijuana and methamphetamine, and he told the doctors that he had taken Xanax and Valium the day of the fight. Corey was so intoxicated that one of the officers that responded to the scene said that he could smell the alcohol coming off Corey and that it was coming out of his pores.

Based on the foregoing evidence, the trial court instructed the jury on first-degree assault, armed criminal action, self-defense, and defense of third persons; however, it refused to give Appellant's proposed instruction on defense of premises. The refusal to give an instruction on the defense of premises is the basis of Appellant's first point relied on.

In Point I, Appellant posits that the trial court committed reversible error when it failed to offer an instruction on defense of premises. At trial, Appellant offered MAI-CR 3d 306.10, submitted as Instruction No. C, which was refused by the trial court. This instruction provided,

One of the issues as to Count I is whether the use of force by [Appellant] against Randy Baldwin was in defense of premises. In this state, the use of force including the use of deadly force to protect premises is lawful in certain situations.

A person can lawfully use force against another person in defense of premises if he is in

possession of the premises and reasonably believes the other person is committing or attempting to commit the crime of trespass.

If a person has such a belief, he is then permitted to use that amount of force which he reasonably believes to be necessary to end or prevent that trespass.

But in defense of premises from a trespass, a person is not permitted to use deadly force,

that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless the entry into the premises was attempted in a violent and tumultuous manner and he reasonably believes that the entry was attempted for the purpose of assaulting or offering physical violence to any person in the premises. And, even then, a person may use deadly force only if he reasonably believes the use of such force is necessary to prevent the commission of trespass and assault.

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.

As to the issue of the defense of premises in this case, you are instructed as follows:

If [Appellant] was in possession of a trailer located in the Bonous [sic] Trailer Park and reasonably believed Randy Baldwin was attempting to trespass on those premises, and if the entry into the premises was attempted in a violent and tumultuous manner and if [Appellant] reasonably believed Randy Baldwin attempted to make the entry for the purpose of assaulting [Appellant] and Rick Goodine who were on the premises, and [Appellant] reasonably believed that the use of deadly force was necessary to prevent the commission of trespass and assault, then [Appellant] acted in lawful defense of premises.

The state has the burden of proving beyond a reasonable doubt that [Appellant] did not act in lawful defense of premises. Unless you find beyond a reasonable doubt that [Appellant] did not act in lawful defense of premises you must find [Appellant] not guilty under Count I.

As used in this instruction, the term "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.

The trial court refused to give this instruction to the jury. Appellant's Point I claims it was reversible error for the trial court to refuse to instruct the jury with MAI-CR 3d 306.10.

A defendant is entitled to an instruction on any theory that the evidence and the reasonable inferences drawn therefrom establish. State v. Westfall, 75 S.W.3d 278, 280 (Mo. banc 2002). The trial court errs in failing to submit an instruction on justification when there is substantial evidence to support the defense of justification. State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992). The evidence and all reasonable inferences drawn therefrom must be viewed in a light most favorable to the defendant. Id. While there must be substantial evidence presented at trial supporting a defense before the trial court is required to submit an instruction on that defense, the defendant is not required to put on any affirmative evidence that...