Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of Washington County 15WA-CR00061-01
Honorable Wendy Wexler Horn
P. Page, Judge.
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. We affirm.
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.
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."
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.
the jury's guilty verdict, Defendant was sentenced to
seven years of imprisonment as a prior offender. This appeal
sole point on appeal, Defendant avers the trial court plainly
erred in failing to submit, sua sponte, an
instruction for self-defense.
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.
undisputed Defendant did not submit or request a self-defense
instruction.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 because we ...