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State v. Villeme

Court of Appeals of Missouri, Eastern District, Fourth Division

May 14, 2019

STATE OF MISSOURI, Respondent,
v.
ANTHONY R. VILLEME, Appellant.

          Appeal from the Circuit Court of Monroe County Honorable David C. Mobley

          KURT S. ODENWALD, PRESIDING JUDGE

         Introduction

         Anthony 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.

         Factual and Procedural History

         The 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 arrested Villeme.

         The 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.

         At the 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.

         The jury convicted Villeme of elder abuse in the first degree. The sentencing court sentenced Villeme to ten years in prison. Villeme now appeals.

         Points on Appeal

         Villeme 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.

         Standard of Review

         We have 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[1]). 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); see ...


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