State v. Burks

237 S.W.3d 225, 2007 Mo. App. LEXIS 1259, 2007 WL 2584654
CourtMissouri Court of Appeals
DecidedSeptember 10, 2007
Docket27747
StatusPublished
Cited by6 cases

This text of 237 S.W.3d 225 (State v. Burks) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burks, 237 S.W.3d 225, 2007 Mo. App. LEXIS 1259, 2007 WL 2584654 (Mo. Ct. App. 2007).

Opinions

NANCY STEFFEN RAHMEYER, Presiding Judge.

Edward H. Burks, III (“Appellant”), appeals his conviction for the class A felony of assault in the first degree, section 565.050, and armed criminal action, section 571.015.1 Appellant was found guilty in a jury trial and sentenced to consecutive terms of imprisonment of twenty-five years and ten years, respectively. Appellant raises two points on appeal, both challenging the sufficiency of the jury instruction: (1) that the trial court erred in refusing to instruct the jury on assault in the second degree and failing to include an instruction on sudden passion, and (2) that the trial court erred in refusing to instruct the jury on self-defense. We find no error and affirm the judgment.

David Kantner owned Gravy’s Lounge, a karaoke bar in Springfield, Missouri. He was present there the evening of October 26, 2004, and just after midnight on October 27, 2004, when he saw what appeared to be a man, later identified as Appellant, hitting a woman, later identified as Nicole Crump, in the parking lot. Mr. Kantner, accompanied by friend and regular customer Randy Inman, left the bar, went out to the parking lot, and approached Appel[227]*227lant. As they walked toward Appellant, Ms. Crump got up and ran away. Mr. Kantner told Appellant to stop hitting Ms. Crump. Appellant answered Mr. Kantner with profanity and told him that what happened was none of his business. Mr. Kantner replied that he owned the bar, that Appellant should not be hitting women in his parking lot, and asked Appellant to leave.

Mr. Kantner grabbed for Appellant’s throat but, because Appellant tried to knock his hand away, was only able to grab his collar. Appellant and Mr. Kant-ner began shoving and pushing each other. Both swung punches towards each other but did not connect. Mr. Inman attempted to get involved in the fight but as soon as he touched Appellant, Michael Klotz, an acquaintance of Appellant, grabbed him and pushed him to the ground. Sometime during or immediately after this scuffle, Mr. Kantner was stabbed with a knife in his back below his left shoulder.

Mr. Inman got up, pushed Appellant away from Mr. Kantner, and helped Mr. Kantner back into the bar. Appellant got into his car and left the parking lot. He was later apprehended by the police. At trial, Appellant denied possessing a knife and stabbing Mr. Kantner.

Regarding the jury instructions, which are the basis of this appeal, Appellant proffered Instructions A and C. Instruction C, in the form provided by MAI-CR 3d 319.04, submitted assault in the second degree, and Instruction A, in the form provided by MAI-CR 3d 319.02, was the proposed verdict director for assault in the first degree with an additional paragraph requiring the jury to find Appellant “did not act under the influence of sudden passion arising out of adequate cause.”2 Appellant objected to the State’s verdict director that did not contain a sudden passion paragraph. The trial court refused to submit Appellant’s instructions A and C.

Appellant presents two arguments in his first point contending that the trial court erred: (1) in refusing to instruct the jury on assault in the second degree and (2) in failing to modify the verdict director with a sudden passion instruction. Both contentions are premised on the assertion that the evidence showed that Appellant was acting under sudden passion arising out of adequate cause. Therefore, the relevant question here is whether there was sufficient evidence by which the jury could have found that Appellant acted under the influence of sudden passion arising out of adequate cause. State v. Deprow, 937 S.W.2d 748, 750 (Mo.App. S.D.1997). These terms are defined in section 565.002 as follows:

(1) “Adequate cause” means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person’s capacity for self-control.
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(7) “Sudden passion” means passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation.

[228]*228We will not disturb a trial court’s refusal to submit an instruction to the jury absent a showing of an abuse of discretion. State v. Hashman, 197 S.W.3d 119, 127 (Mo.App. W.D.2006). Even if we find error in a trial court’s refusal to give an instruction, we will reverse only if such error was prejudicial to the defendant. Id. “In determining whether the refusal to submit a jury instruction was error, the evidence is viewed in the light most favorable to the defendant.” Id. “ ‘If the evidence tends to establish the defendant’s theory, or supports differing conclusions, the defendant is entitled to an instruction on it.’ ” Id. (quoting State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003)). Therefore, in this case, a specific instruction on sudden passion, or an instruction on lesser included offenses based on a finding of sudden passion, would be required only if the trial court could find that the evidence did in fact tend to establish that Appellant acted under the influence of sudden passion arising out of adequate cause.

Where Missouri courts have found sudden passion during confrontations there has been evidence of weapons being brandished and/or other minor contact combined with an exchange of words that would create a fear of great bodily harm in the defendant. See State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556, 557, 560-62 (1932) (indicating that sudden passion can arise where defendant is surprised by an unexpected provocation and where victim made threats of great bodily harm and then reached for his pocket causing defendant to fear great bodily harm); see also State v. Redmond, 937 S.W.2d 205, 208-09 (Mo. banc 1996) (supporting a finding of sudden passion where victim confronted defendant in a threatening manner and displayed a gun and the defendant was scared for his life); see also State v. Fears, 803 S.W.2d 605, 608-09 (Mo. banc 1991) (supporting a finding of sudden passion from an altercation where victim prevented defendant from leaving and made threats that created a fear of great bodily harm in the defendant).

Here, the evidence clearly indicates that Appellant was not caught by surprise as he and his girlfriend saw Mr. Kantner and Mr. Inman walk out of the bar and across the parking lot. Further, there is no evidence that the yelling that occurred during the altercation included threats of great bodily harm. Finally, there is no evidence that Mr. Kantner had possession of, or even pretended to have possession of, a weapon that would cause Appellant to fear great bodily harm. Therefore, these events alone cannot be said to give rise to sudden passion.

Viewing these same facts under an alternate accepted definition of sudden passion, it remains clear that there is no evidence of events that would cause Appellant to act under the influence of sudden passion.

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State v. Burks
237 S.W.3d 225 (Missouri Court of Appeals, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
237 S.W.3d 225, 2007 Mo. App. LEXIS 1259, 2007 WL 2584654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burks-moctapp-2007.