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State v. Isbell

Court of Appeals of Missouri, Eastern District, First Division

March 28, 2017

STATE OF MISSOURI, Respondent,
v.
TERRY DALE ISBELL, Appellant.

         Appeal from the Circuit Court of Washington County 15WA-CR00061-01 Honorable Wendy Wexler Horn

          Lisa P. Page, Judge.

         Terry Isbell ("Defendant") appeals his conviction, after a jury trial in the Circuit Court of Washington County, of one count of abuse of a child, in violation of Section 568.060.[1] We affirm.

         BACKGROUND

         On September 19, 2014, the Potosi High School football team was set to square-off in a Friday night duel. C.M. ("Victim"), a seventeen-year-old female student at Potosi High School, desired to attend the Friday night match-up but needed money for bus fare and concessions. Victim asked her mother ("Mother") and step-father, Defendant, for the money, but they declined, citing a lack of funds, which resulted in a verbal brawl on the front porch of their house. Victim, who suffers from behavioral challenges, began exhibiting extreme agitation by pulling her hair and biting her arm. As the argument escalated, Victim kicked the inside of Defendant's shin. Defendant immediately retaliated and struck Victim in the face, giving her a bloody-nose. Victim then fled nearby to her aunt's house.

         The following day, an investigator from the Children's Division interviewed Defendant and Mother at their home. The investigator testified that during Defendant's interview he was "[v]ery defiant" and "arrogant." In fact, upon being questioned about whether he struck Victim, Defendant was unrepentant and responded: "Damn right I hit her, and I will do it again." Defendant ultimately became belligerent and coarsely directed the investigator to "suck his dick."

         Defendant was arrested and charged with one count of abuse of a child, in violation of Section 568.060, a class C felony. At trial, Defendant neither submitted nor requested a self-defense instruction be tendered to the jury. The trial court did not, sua sponte, submit a self-defense instruction. However, the trial court did give Defendant's requested justification instruction based on the reasonable discipline of a minor.

         Upon the jury's guilty verdict, Defendant was sentenced to seven years of imprisonment as a prior offender. This appeal follows.

         DISCUSSION

         In his sole point on appeal, Defendant avers the trial court plainly erred in failing to submit, sua sponte, an instruction for self-defense.[2]

         Standard of Review

         Rule 30.20 grants an appellate court limited review of unpreserved claims of error to consider "plain errors affecting substantial rights[.]" Rule 30.20; see also State v. Johnson, 207 S.W.3d 24, 43 (Mo. banc 2006) ("Unpreserved issues can be reviewed only for plain error."). However, appellate courts retain complete discretion whether to review an unpreserved issue for possible plain error. State v. Marshall, 131 S.W.3d 375, 377 (Mo. App. E.D. 2004). In fact, instructional error seldom rises to the level of plain error. State v. Oudin, 403 S.W.3d 693, 697 (Mo. App. W.D. 2013). For instructional error to be plain error the defendant must demonstrate more than mere prejudice; the defendant must "establish that 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." State v. Haynes, 158 S.W.3d 918, 919 (Mo. App. W.D. 2005) (quoting State v. Wright, 30 S.W.3d 906, 912 (Mo. App. E.D. 2000)); see also State v. Miller, 372 S.W.3d 455, 470 (Mo. banc 2012).

         Analysis

         It is undisputed Defendant did not submit or request a self-defense instruction.[3]However, now, on appeal, Defendant contends the trial court plainly erred in failing to submit, sua sponte, an instruction for self-defense. We need not decide if the trial court was required to sua sponte submit a self-defense instruction, per se as a matter of law[4] because we ...


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