Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Nodaway County, Missouri The
Honorable Roger M. Prokes, Judge.
Before: Mark D. Pfeiffer, Presiding Judge, Karen King
Mitchell, Chief Judge, and Anthony Rex Gabbert, Judge.
D. Pfeiffer, Presiding Judge.
Ashley Zuidema appeals from her judgment of conviction,
following a trial by jury, by the Circuit Court of Nodaway
County, Missouri ("trial court"), for one count of
second-degree burglary. In her sole point on appeal, Zuidema
argues the trial court erred in refusing to instruct the jury
on the defense of justification by necessity. We affirm.
about January 12, 2016, though not possessing a valid
driver's license, Ms. Ashley Zuidema
("Zuidema") gave her friend a ride home to
Stanberry, Missouri. She was going to spend the night at the
friend's home, but the friend and her husband got in an
argument, and Zuidema decided to leave and drive to her home
in Savannah, Missouri. She had difficulty starting her car,
but it eventually started. When she stopped for gas, the car
again had trouble starting. Though she had spoken on her
mobile phone to her mother about her car troubles, she
decided not to request help from her mother and, instead,
began the drive home. And, instead of taking heavily traveled
roads on her route home, she decided to take the
less-traveled "scenic route," as Zuidema did not
want to risk being pulled over in light of the status of her
driver's license. On the rural route, she lost her
cellular phone signal and the car began "spitting,
stuttering, wouldn't stay started[, ]" so she pulled
into the driveway of a house where she saw a light on,
because it was "freezing cold outside."
knocked on the door of the house, but nobody was home.
Zuidema entered the house. She picked up the home phone and
attempted to call the first number on the home phone, which
said "Jennifer," and did not get an answer. Her
cell phone got partial reception momentarily and she called
her fiancé and communicated to him that her car was
broken down, that she was safe at a house, but did not know
where she was. She did not ask her fiancé to attempt
to find her to pick her up.
plugged her mobile phone into the homeowners' cell phone
charger and found some pajama bottoms in the house, so she
put those on, "put [her] pants in the wash and decided
to get cleaned up." She testified, "I was cold. So
I made some warm tea, and was getting ready to get cleaned
up." In that regard, Zuidema began drawing warm water in
home Zuidema had entered belonged to Martin and Jennifer
Johnson. The Johnsons were away on vacation at the time and
had their nephews taking care of their pets and chores for
them while away. Their nephew, Connor Johnson, went to the
house about 6:45 a.m., and saw a car he did not recognize in
the driveway. As he backed out of the driveway, he saw
"a head pop out of the door." Connor drove away
from the house, up a hill, and called his mother and father,
Maurissa and Darren Johnson, who lived about two miles from
Martin and Jennifer Johnson's home. Maurissa dialed 911
and Darren and Maurissa arrived at Martin and Jennifer's
driveway in about three minutes, where they encountered
Zuidema. The police arrived shortly thereafter and took
Zuidema into custody. The police also accompanied Maurissa
Johnson in walking through the house, where Maurissa observed
she had some jeans and stuff laying on the floor in the
kitchen, between the kitchen and bathroom. The couch in the
living room was pulled out on one side away from the wall.
She had a tea cup, a cup of tea, in the bathroom on the
counter. There was a cup of tea on the main bar counter in
the kitchen. There was-the computer desk was a rolltop desk.
It was up. The computer was on. The chair was pulled out. In
the bathroom she had her cell phone plugged in to the plug-in
and sitting on the bathroom counter. Bathwater was drawn in
the bathtub. . . . I found out later . . . that a bag was
missing. . . . [A]nd then when Jennifer and [Martin] returned
Jennifer found clothing in the washing machine and then found
a winter coat hung up in the laundry room.
was charged with one count of second-degree burglary in
violation of section 569.170 for knowingly entering an
inhabitable structure for the purpose of committing stealing
(Count 1), an alternative count of second-degree burglary in
violation of section 569.170 for knowingly remaining
unlawfully in an inhabitable structure for the purpose of
committing stealing (Count 2), and one count of stealing in
violation of section 570.030 for appropriating clothes, tea,
electricity, water, and a canvas tote bag owned by the
Johnson family without their consent and with the purpose to
deprive them of the property (Count 3).
jury instruction conference following the close of all the
evidence at trial, defense counsel submitted instructions
related to the defense of justification by emergency or
necessity under section 563.026. After argument on the
proffered instructions and verdict directors, the trial court
refused to give Zuidema's instructions and overruled
defense counsel's objections to the verdict directors
that did not include the defense of justification.
counts were submitted to the jury, both burglary counts with
the lesser included offense of first-degree trespassing as an
alternative. Zuidema was acquitted of Count 1 and Count 3.
Zuidema was found guilty of Count 2, second-degree burglary
for knowingly remaining unlawfully in an inhabitable
structure for the purpose of committing stealing. The trial
court sentenced Zuidema to three years of imprisonment,
suspended the execution of her sentence, and placed her on
probation for five years.
the verdict, Zuidema filed a motion for judgment of acquittal
or for new trial, arguing that the trial court erred in
refusing to give the instruction on the defense of
justification by emergency or ...