State v. Powers

913 S.W.2d 138, 1996 Mo. App. LEXIS 36, 1996 WL 5644
CourtMissouri Court of Appeals
DecidedJanuary 9, 1996
DocketNos. WD 49633, WD 50857
StatusPublished
Cited by17 cases

This text of 913 S.W.2d 138 (State v. Powers) 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. Powers, 913 S.W.2d 138, 1996 Mo. App. LEXIS 36, 1996 WL 5644 (Mo. Ct. App. 1996).

Opinion

FENNER, Chief Judge.

Steven Mack Powers appeals his conviction on two counts of unlawful use of a weapon pursuant to section 571.030.1(4), in the Circuit Court of Chariton County, and also appeals the dismissal of his Rule 29.15 proceeding by the same court.

The record viewed in the light most favorable to the verdict reveals that on November 20, 1993, the family of Frank and Mary McElwee gathered at their home to celebrate Thanksgiving. Appellant’s wife, Mary Powers, is the MeElwee’s daughter. Appellant was not invited to the family gathering because of the poor relationship between him and the McElwee family. Appellant and his wife argued earlier in the day about Mary Powers’ decision to attend the gathering, with appellant ultimately telling her to lock [140]*140the house when she left because he was not coming home that night.

At approximately 10:00 p.m., appellant pulled into the McElwees’ driveway and began honking his horn. Two of Mary Powers brothers, Franky McElwee and Jerry McEl-wee, went outside to ask appellant to leave. Franky was the first to leave the house and saw appellant standing outside his ear holding a can of beer. Franky asked appellant to leave, then tried to get appellant to get back in his car, and several words were exchanged. Appellant then reached into his pocket, pulled out a knife, and stated “Franky, I’m going to cut your throat.” Franky grabbed appellant’s wrist and held the knife away until the appellant stopped struggling and put the knife back in his pocket. Appellant then got back in his car.

Other members of the McElwee family also came out of the house and observed the events involving appellant, including Frank McElwee, Sr., Mary Powers’ father. As appellant started his car, it went forward toward one of Mary Powers sisters. Powers’ father picked up a stick from a wood pile and, wielding it like a club, told appellant he was not afraid to use it on him. As appellant pulled out of the driveway and then forward onto the street so that his passenger window faced the McElwee home, he rolled down the window, pointed a gun out of it in the general direction of the McElwee family, and stated “Franky, I’ll shoot you where you stand” and told Mary that he ought to kill her. Appellant then drove away.

Later that evening, Mary Powers was accompanied by the local sheriff to the apartment that she shared with her husband. She unlocked the door and gave the sheriff permission to enter. Inside, the sheriff found a .22 caliber rifle with one round in the chamber that had misfired. A utility knife was also found in the pocket of appellant’s jacket.

Appellant testified at trial that he went to the McElwee home to get the keys to the apartment from his wife. Appellant admitted pulling the knife and threatening Franky McElwee. He also admitted picking up the rifle in his car but denied that he pointed it out the window.

Appellant’s case was tried before a jury on April 20, 1994, with appellant charged with three counts of second degree assault, three counts of armed criminal action, and two counts of unlawful use of a weapon. Appellant was convicted on the two counts of unlawful use of a weapon but acquitted on all other charges. The court found appellant to be a prior and persistent offender for the purposes of § 558.016, RSMo 1994, and sentenced him to two consecutive five year terms of imprisonment as a result of the convictions.

Appellant filed a notice of appeal on June 17.1994. On October 4, 1994, appellant filed a pro se Rule 29.15 motion in the Circuit Court of Chariton County seeking postcon-viction relief. On November 4, 1994, the State filed a motion to dismiss appellant’s Rule 29.15 motion, stating that no notice of appeal was filed, therefore the Rule 29.15 motion was untimely. An amended Rule 29.15motion was filed by appellant on December 5, 1994. On February 13, 1995, the motion court dismissed appellant’s motion as not timely filed. A motion to reconsider dismissal was filed by appellant on February 22, 1995, but no ruling was ever made by the court. Notice of appeal was filed on March 17, 1995. This consolidated appeal of appellant’s convictions and the dismissal of his Rule 29.15 motion followed.

I. DISMISSAL OF APPELLANT’S RULE 29.15MOTION

Appellant was found guilty on two counts of unlawful use of a weapon on April 21, 1994, and sentenced for those crimes on June 9.1994. Thereafter, a timely notice of appeal from appellant’s convictions and sentences was filed in this Court on June 17, 1994. Appellant’s record on appeal was filed with this Court on September 15,1994.

Under Supreme Court Rule 29.15(b), appellant has thirty days after the filing of the record on appeal to file a motion for post-conviction relief. Appellant’s pro se Rule 29.15motion, filed on October 4, 1994, was within the thirty day time period. The motion, however, indicated that appellant had not appealed from the judgment of conviction. This error was corrected in appellant’s [141]*141first amended motion filed on December 5, 1994. Consequently, appellant’s Rule 29.15 motion for post-conviction relief was timely filed. The State properly concedes in its brief that appellant’s motion was timely filed and that the trial court erred in dismissing the motion as untimely. The motion court’s dismissal of appellant’s Rule 29.15 motion is reversed and this portion of appellant’s appeal is remanded for further proceedings under Rule 29.15.

II. FAILURE TO SUBMIT, SUA SPONTE, A SELF-DEFENSE INSTRUCTION

As his second point on appeal, appellant claims that the trial court erred in failing to submit, sua sponte, a self-defense instruction. Though this issue was not preserved at trial, appellant requests that we review the alleged error under the plain error standard pursuant to Supreme Court Rule 30.20.

Instructional error is seldom plain error. State v. Hill, 865 S.W.2d 702, 707 (Mo.App.1993). In order to demonstrate plain error with regard to alleged instructional error, a defendant must “establish such a misdirection of the jury as would cause manifest injustice.” Id. (quoting State v. Root, 820 S.W.2d 682, 688 (Mo.App.1991)).

Section 563.031, RSMo 1993 Supp., authorizes the use of physical force upon another person when and to the extent an individual believes such force to be necessary to defend himself from what the individual reasonably believes to be the imminent use of unlawful force by such other person. A defendant has the burden of injecting the issue of self-defense into his case by substantial evidence. State v. Bowman, 869 S.W.2d 901, 903 (Mo.App.1994). If there is substantial evidence putting self-defense in issue, the court is required to instruct the jury on self-defense. State v. Griffin, 859 S.W.2d 816, 820 (Mo.App.1993). In determining whether there is sufficient evidence of self-defense to support an instruction, the evidence is viewed in the light most favorable to the theory of self-defense espoused by the defendant. State v. Weems, 840 S.W.2d 222, 227 (Mo. banc 1992).

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Bluebook (online)
913 S.W.2d 138, 1996 Mo. App. LEXIS 36, 1996 WL 5644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-powers-moctapp-1996.