Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Monroe County Honorable David C.
S. ODENWALD, PRESIDING JUDGE
R. Villeme ("Villeme") appeals from the trial
court's judgment following a jury trial convicting him of
elder abuse in the first degree. Villeme raises two points on
appeal. Villeme first contends that the trial court erred in
refusing his consent-defense jury instruction. Villeme next
argues that the trial court erred in not allowing Villeme the
opportunity to argue in support of his motion for acquittal
at the close of all evidence. Because Villeme failed to
append the refused jury instruction, his first point is not
preserved and our review is thereby precluded. Because
Villeme neither made an affirmative request to further argue
the acquittal motion nor advanced arguments distinct from his
acquittal motion at the close of the State's evidence, we
deny his remaining point. Accordingly, we affirm the judgment
of the trial court.
and Procedural History
facts of the case arose from an ongoing dispute between
Villeme and his seventy-four year-old neighbor
("Victim"). On the day of the incident,
Villeme's children were harassing Victim's wife while
she rode her bicycle. While Victim's wife went to the
police department to report the harassment, Victim approached
Villeme's house and chastised Villeme's children.
Villeme and Victim argued. The altercation culminated in
Villeme twice punching Victim in the face, knocking Victim to
the ground. Victim was taken to the hospital. The police then
State charged Villeme with elder abuse in the first degree,
and the case proceeded to a jury trial. At the close of the
State's evidence, Villeme moved for acquittal. Villeme
requested to orally argue the motion, and the trial court
permitted him to do so. Villeme maintained that the State did
not meet its evidentiary burden to prove he attempted to
cause Victim serious physical injury. The trial court denied
the motion. At the close of all evidence, Villeme again moved
for acquittal. Villeme's written motion asserted
generally that the evidence was insufficient to sustain a
conviction on the charged offense. The trial court
acknowledged the motion, and Villeme did not affirmatively
request to argue the motion orally. The trial court denied
the motion. Villeme did not object.
jury instruction conference, Villeme proposed an instruction
on consent as a defense. The trial court rejected the
instruction, acknowledging that it had reviewed the consent
issue and was disinclined to give the instruction. The trial
court proceeded to instruct the jury on elder abuse in the
first degree, as well as the lesser-included offenses of
second-degree and third-degree assault.
jury convicted Villeme of elder abuse in the first degree.
The sentencing court sentenced Villeme to ten years in
prison. Villeme now appeals.
raises two points on appeal. In Point One, Villeme asserts
that the trial court abused its discretion in refusing to
submit Villeme's proposed jury instruction for consent as
a defense. In Point Two, Villeme alleges that the trial court
erred in refusing to allow him to orally argue his motion for
acquittal at the close of all evidence.
discretion to review an unpreserved claim for plain error
when "the claimed error facially establishes substantial
grounds for believing that manifest injustice or miscarriage
of justice has resulted." State v. Clay, 533
S.W.3d 710, 714 (Mo. banc 2017) (quoting State v.
Brown. 902 S.W.2d 278, 284 (Mo. banc 1995)) (quoting
Rule 30.20). To conduct plain-error review, we engage
in a two-step process to determine: (1) whether the trial
court committed an error affecting the substantial rights of
the defendant that was "evident, obvious, and
clear" and (2) if such error exists, whether the error
rose to the level of creating manifest injustice or a
miscarriage of justice. State v. Beggs. 186 S.W.3d
306, 311 (Mo. App. W.D. 2005) (internal citation omitted);