approved instruction in Missouri

2023Though, generally, the “[u]se of an approved instruction cannot, by definition, be deemed plain error,” State v. Goodwin, 891 S.W.2d 435, 438 (Mo. App. W.D. 1994), there is an 7 Kerksiek dances around a jury unanimity claim arising from a “multiple acts” case, as presented in State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011), without ever directly claiming a jury unanimity problem but still asserting that “[t]he issue here is in the same vein as in Celis-Garcia.” To the extent his argument can be, in any way, perceived as raising a jury unanimity issue, we reject it because this is not a “

2015We recognize, however, that “[u]se of an approved instruction cannot, by definition, *343 be deemed plain error[,]” State v. Goodwin, 891 S.W.2d 435, 438 (Mo.App.W.D.1994), and, in such instances, plain error review is precluded, State v. Sanders, 449 S.W.3d 812, 816 (Mo.App.S.D.2014).

1985State v. Richardson, 674 S.W.2d 161, 164 (Mo.App.1984) quoting State v. Harris, 564 S.W.2d 561, 573 (Mo.App.1978).

1984Although a deviation from the MAI is presumptively prejudicial, State v. Graves, 588 S.W.2d 495 (Mo. banc 1979), “not every deviation from an approved instruction ... requires reversal and although deviation should be discouraged in all cases, even when a deviation is error the question whether it is prejudicial error remains to be judicially determined.” State v. Harris, 564 S.W.2d 561, 573 (Mo.App.1978).

2020State v. Taylor, 238 S.W.3d 145, 148 (Mo. banc 2007) (holding that MAI-CR 3d 320.01 was not correct because it included a required finding as to venue, which was not an element of the offense in § 566.030 RSMo (2000)).

2011Insofar as the MAI-CR 320.01 makes venue an element of the offense of rape, it is incorrect. 238 S.W.3d at 148 (citations and footnotes omitted).

2011See State v. Hayes, 563 S.W.2d 11, 12 (Mo. banc 1978) (noting the importance of the cautionary language in the then-current approved instruction that “no juror should ever agree to a verdict that violates the instructions of the Court, nor find that which under the evidence and his conscience he believes to be untrue.”).

1991The cautionary language "`is the crux of the instruction' and is consistent with the basic duty of a juror and the fundamental concept of a fair trial." State v. Broadux, 618 S.W.2d 649, 652 (Mo. banc 1981) (quoting State v. Hayes, 563 S.W.2d 11, 12 (Mo. banc 1978)).

1990State v. Oliver, 720 S.W.2d 45, 46 (Mo.App.1986).

1988State v. Oliver, 720 S.W.2d 45, 46 (Mo.App.1986).

1982Even when such an instance is apparent, it is generally for the Rules Committee and the Court to make this change ... and not for the individual proponent to submit an unapproved instruction on an ad hoc basis when an approved instruction is available.” Id. at 530.

1982State v. Phillips, 583 S.W.2d 526, 530 [4] (Mo.1979).

2006Co., 467 S.W.2d 79, 82 (Mo.1971) (“[i]f the Missouri Approved Instructions include an instruction which correctly states the substantive law [governing the case], the approved instruction must be given”).

2004On the other hand, the Missouri Supreme Court has expressly directed that “[i]f the Missouri Approved Instructions include an instruction which *672 correctly states the substantive law [governing the case], the approved instruction must be given.” Meredith, 467 S.W.2d at 82 .

1987The state argues that the decision in State v. Harvey, 641 S.W.2d 792 (Mo.App. 1982) is "directly on point" and should be adopted in this case.

1987The state argues that the decision in State v. Harvey, 641 S.W.2d 792 (Mo.App.1982) is “directly on point” and should be adopted in this case.

1977Louis Public Service Company, supra, 421 S.W.2d at 259 , it is said: ". . . where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation." (Emphasis added.) Yet, where no approved instruction is applicable so that modification of the approved instruction is required, there is no error.

1977Louis Public Service Company, supra, 421 S.W.2d at 259 , it is said: “. . . where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.” (Emphasis added.) Yet, where no approved instruction is applicable so that modification of the approved instruction is required, there is no error.

2025Co., 540 S.W.2d 39, 44 (Mo. banc 1976) (approving trial court’s giving of an instruction patterned after an approved instruction “applicable to a suit on a life insurance policy” where “[t]here [was] no approved verdict directing instruction for use in a suit on an insurance policy for damage to the insured’s automobile”).

2023“A multiple acts case arises when there is evidence of multiple, distinct criminal acts, each of which could serve as the basis for a criminal charge, but the defendant is charged with those acts in a single count.” State v. Celis-Garcia, 344 S.W.3d 150, 155-56 (Mo. banc 2011).

2023Though, generally, the “[u]se of an approved instruction cannot, by definition, be deemed plain error,” State v. Goodwin, 891 S.W.2d 435, 438 (Mo. App. W.D. 1994), there is an 7 Kerksiek dances around a jury unanimity claim arising from a “multiple acts” case, as presented in State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011), without ever directly claiming a jury unanimity problem but still asserting that “[t]he issue here is in the same vein as in Celis-Garcia.” To the extent his argument can be, in any way, perceived as raising a jury unanimity issue, we reject it because this is not a “

2023“Whether a jury has been properly instructed is a question of law, which we review de novo.” State v. Walker, 549 S.W.3d 7, 10 (Mo.App. 2018).

2021However, “a self-represented defendant's failure to object at trial regarding the knowing, voluntary, and intelligent nature of his waiver of the right to counsel is generally excused.” State v. Kunonga, 490 S.W.3d 746, 759 (Mo. App. [W.D.] 2016) (citing State v. Murray, 469 S.W.3d 921, 925 (Mo. App. [E.D.] 2015)).

2021However, “a self-represented defendant's failure to object at trial regarding the knowing, voluntary, and intelligent nature of his waiver of the right to counsel is generally excused.” State v. Kunonga, 490 S.W.3d 746, 759 (Mo. App. [W.D.] 2016) (citing State v. Murray, 469 S.W.3d 921, 925 (Mo. App. [E.D.] 2015)).

2021But this Court has explained the appropriate standard of review for a self-represented defendant's failure to object to the process by which the trial court approved a waiver of counsel: “Constitutional claims must be made at the first opportunity to be preserved for review.” State v. Davis, 507 S.W.3d 41, 44 (Mo. App. 2016).

2020Omit brackets and letter.] [a] were related by blood or marriage, [b] (resided together) (and) (had resided together in the past), [c] (were) (and) (had been) in a continuing social relationship of a romantic or intimate nature, [d] have a child in common[.] In this case, the State chose to instruct under option [c], but included “or” instead of “and” between “were” and “had been.” “Rule 28.02(c) mandates the exclusive use of an MAI-CR instruction whenever there is one applicable under the law and Notes on Use.” State v. Henderson, 551 S.W.3d 593, 600 (Mo. App. W.D. 2018) (citing State v. Clay

2020Omit brackets and letter.] [a] were related by blood or marriage, [b] (resided together) (and) (had resided together in the past), [c] (were) (and) (had been) in a continuing social relationship of a romantic or intimate nature, [d] have a child in common[.] In this case, the State chose to instruct under option [c], but included “or” instead of “and” between “were” and “had been.” “Rule 28.02(c) mandates the exclusive use of an MAI-CR instruction whenever there is one applicable under the law and Notes on Use.” State v. Henderson, 551 S.W.3d 593, 600 (Mo. App. W.D. 2018) (citing State v. Clay

2019“When an approved instruction does not fit the case precisely, modifications must be made.” Shutt v. Chris Kaye Plastics Corp., 962 S.W.2d 887, 890 (Mo. banc 1998) (citing MAI 5th, Committee Comment (1996 Revision) LIII)).

2017Id. at 587 ; cf. State v. Dominguez-Rodriguez, 471 S.W.3d 337, 343 (Mo. App. E.D. 2015) (the use of an approved instruction is not deemed plain error unless “the MAI is not in ‘proper form’ because it fails to comport with substantive law”). 8 We do not decide whether the instructions complained of were erroneous because even if that were the case, we would not reverse the judgment.

2015We recognize, however, that “[u]se of an approved instruction cannot, by definition, *343 be deemed plain error[,]” State v. Goodwin, 891 S.W.2d 435, 438 (Mo.App.W.D.1994), and, in such instances, plain error review is precluded, State v. Sanders, 449 S.W.3d 812, 816 (Mo.App.S.D.2014).

2011State v. Miller, 172 S.W.3d 838, 851 (Mo.App.2005).

2010Co., 240 S.W.3d 203, 209 (Mo.App.

2007State v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997).