special negative defense in Missouri

2024State v. Davis, 71 S.W.3d 659, 665 (Mo. App. W.D. 2002) (The State has the burden to disprove a special negative defense, but only once the defendant “first produces evidence sufficient to inject the defense at trial.”); State v. Jones, 519 S.W.3d 818, 825 (Mo. App. W.D. 2017) (explaining that an affirmative defense “is an independent bar to liability in which the defendant carries the burden of persuasion . . . that the defense is more probably true than not.”).

2006A special negative defense is a defense: (1) upon which the defendant does not carry the burden of proof, (2) supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant’s guilt, and (3) which presents a positive fact or set of circumstances, as distinguished from a bare denial or converse, which, if found, would negate one or more essential elements of an offense, or which would, if found, constitute a legal defense. *489 State v. Davis, 71 S.W.3d 659, 665 (Mo.App.2002).

2021Acting under the influence of sudden passion arising from adequate cause “is a special negative defense to the crime of conventional second degree murder.” State v. Stidman, 259 S.W.3d 96, 102 (Mo. App. S.D. 2008) (citing State v. Boyd, 913 S.W.2d 838, 842 (Mo. App. E.D. 1995)).

2008Acting under the influence of sudden passion arising from adequate cause “is a special negative defense to the crime of conventional second degree murder.” State v. Boyd, 913 S.W.2d 838, 842 (Mo.App.1995). 3 The trial court refused to give instructions submitting voluntary manslaughter because there was insufficient evidence that Defendant acted under the influence of sudden passion.

2021We held that because Shaw admitted to police that he knew Golston intended to rob Greene and because the evidence at trial permitted the inference that Shaw aided Golston in setting up the meeting with Greene, there was evidence that Shaw participated in a course of conduct with Golston to rob Greene, and that it was reasonable for Shaw "to anticipate that a joint criminal enterprise to forcibly rob another may involve reckless conduct resulting in death and may involve the use of a dangerous instrument or deadly weapon." Id. at 688-89 . 3 Shaw's contention borders on an argument of diminished

2019State v. Gill, 806 S.W.2d 48, 50 (Mo. App. W.D. 1991); State v. Walkup, 220 S.W.3d 748, 754-55 (Mo. 2007).

2011State v. Stidman, 259 S.W.3d 96, 102 (Mo.App.2008); State v. Boyd, 913 S.W.2d 838, 842 (Mo.App.1995); State v. Blackman, 875 S.W.2d 122, 131 (Mo.App.1994).

1996State v. Blackman, 875 S.W.2d 122, 131 (Mo.App.1994).

1986See State v. Cummings, 516 S.W.2d 49, 50 (Mo.App.1974).

1980See MAI-CR 2.04, Notes on Use, n. 2-Fifth; cf. State v. Cummings, 516 S.W.2d 49, 50 (Mo.App.1974). 5 .

2025See, e.g., State v. Jones, 686 S.W.3d 293 , 304 (Mo. App. E.D. 2024) (holding that criminal defendant had the initial burden of injecting substantial evidence supporting the defense- of-another justification into evidence); State v. Kendrick, 550 S.W.3d 117, 122 (Mo. App. W.D. 2018) (holding that the burden was on criminal defendant to inject substantial 4 We need not and do not discuss whether the invited error doctrine (and corresponding waiver of plain error review) is applicable to the verdict-directing jury instruction in question, compare State v. Bolden, 371 S.W.3d 802, 805-06 (Mo. banc

2025As set out in more detail in this Court's opinion, governing case law from our Supreme Court and our intermediate appellate courts have found "[s]elf-defense is a special negative defense pursuant to which the defendant has the burden of injecting into the evidence the issue of self-defense while the State continues to have the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense." State v. Kendrick, 550 S.W.3d 117, 122 (Mo. App. W.D. 2018) (internal quotations and citation omitted).

2021Acting under the influence of sudden passion arising from adequate cause “is a special negative defense to the crime of conventional second degree murder.” State v. Stidman, 259 S.W.3d 96, 102 (Mo. App. S.D. 2008) (citing State v. Boyd, 913 S.W.2d 838, 842 (Mo. App. E.D. 1995)).

2011State v. Stidman, 259 S.W.3d 96, 102 (Mo.App.2008); State v. Boyd, 913 S.W.2d 838, 842 (Mo.App.1995); State v. Blackman, 875 S.W.2d 122, 131 (Mo.App.1994).

2020“A claim of right defense is a special negative defense for a defendant charged with stealing.” State v. McPike, 514 S.W.3d 86, 88 (Mo. App. E.D. 2017).

2020The defendant bears the burden of injecting a claim of right issue at trial. § 570.070.2; McPike, 514 S.W.3d at 88 .

2017“Whether the evidence raises the issue of self-defense is a question of law.” State v. Kasparie, 498 S.W.3d 804, 811 (Mo. App. S.D. 2015) (quoting State v. Nunn, 697 S.W.2d 244, 246 (Mo. App. E.D. 1985)). ■ [8-10] A self-defense instruction shall be submitted to the jury only “when substantial evidence is adduced to support it, even when that evidence is inconsistent with the^ defendant’s testimony.” State v. Westfall, 75 S.W.3d 278, 281 (Mo. banc 2002).

2005In State v. Westfall, discussed, supra, the Supreme Court held that the failure to instruct upon self-defense was plain error affecting substantial rights, requiring reversal. 75 S.W.3d 278, 281 (Mo. banc 2002).

2016State v. Howard, 896 S.W.2d 471, 482 (Mo.App. 1995); section 556.051.

2016State v. Howard, 896 S.W.2d 471, 482 (Mo.App. 1995); section 556.051.

1990State v. Cooper, 563 S.W.2d at 785 ; State v. Achter, 514 S.W.2d 825, 830 (Mo.App.1974).

1978State v. Lewis, 491 S.W.2d 326, 327 (Mo.1973); State v. Achter, 514 S.W.2d 825, 830 (Mo.App.1974); MAI-CR 2.04, Notes on Use, p. 2-9 (10-8-73).

1987Before such instructions *438 are required to be given this special negative defense must be “supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant’s guilt.” State v. Stiers, 610 S.W.2d 83, 84 (Mo.App.1980), quoted in Williams, 696 S.W.2d at 813 .

1985However, before it is required that such instructions be given, a special negative defense must be “supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant’s guilt.” State v. Stiers, 610 S.W.2d 83, 84 (Mo.App.1980).

2013“Inherent in the concept of the special negative defense is the idea that the act charged was committed, but by reason of the defense, it did not possess the qualities of criminality.” State v. Quisenberry, 639 S.W.2d 579 , 583 n. 8 (Mo. banc 1982).

1984The Court of Appeals held that the failure to submit the special negative defense instruction requires reversal, relying on State v. Quisenberry, 639 S.W.2d 579 (Mo.banc 1982) for the proposition that an accessory may not be convicted of an offense of a greater degree than the principal was guilty of.

2019In our unpublished memorandum, we explained that, in cases such as State v. McClure, 632 S.W.2d 314, 317 (Mo. App. 1982), when the failure to cross-reference a special negative defense like the one set forth in Instruction No. 6 was preserved, appellate courts have found the failure to cross-reference prejudicial, even in the presence of evidence that the jury was not likely misdirected, and have reversed and remanded for a new trial.

1991Appellant cites to State v. McClure, 632 S.W.2d 314 (Mo.App.1982), where the Southern District Court of Appeals held that failure of the trial court to provide a cross reference to a special negative defense instruction could not be said to be harmless error.

2018Thus, " '[s]elf-defense is a special negative defense pursuant to which the defendant has the burden of injecting into the evidence the issue of self-defense while the State continues to have the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense.' " Isbell , 524 S.W.3d at 93 (quoting Jones v. State , 495 S.W.3d 789 , 791 (Mo. App. E.D. 2016) ).

2017“Self-defense is a special negative defense pursuant to which the defendant has the burden of injecting into the evidence the issue of self-defense while the State continues to have the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense.” Jones v. State, 495 S.W.3d 789, 791 (Mo. App. E.D. 2016).

2000Id.

1994State v. Werner, 810 S.W.2d 621, 623-24 (Mo.App.1991).

1987Before such instructions *438 are required to be given this special negative defense must be “supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant’s guilt.” State v. Stiers, 610 S.W.2d 83, 84 (Mo.App.1980), quoted in Williams, 696 S.W.2d at 813 .

1987The broad issue of mistaken belief of consent as to when an instruction of the special negative defense is to be given based upon MAI-CR 2.37.1.2 has been thoroughly and analytically discussed in State v. Williams, 696 S.W.2d 809 (Mo.App.1985).

1987The defendant’s burden is not met “by statements of the defense which self-serve, but nothing more.” Butler, 665 S.W.2d at 45 ; Williams, 696 S.W.2d at 812 .

1985State v. Butler, 665 S.W.2d 41, 45 (Mo.App.1984).

2025See, e.g., State v. Jones, 686 S.W.3d 293 , 304 (Mo. App. E.D. 2024) (holding that criminal defendant had the initial burden of injecting substantial evidence supporting the defense- of-another justification into evidence); State v. Kendrick, 550 S.W.3d 117, 122 (Mo. App. W.D. 2018) (holding that the burden was on criminal defendant to inject substantial 4 We need not and do not discuss whether the invited error doctrine (and corresponding waiver of plain error review) is applicable to the verdict-directing jury instruction in question, compare State v. Bolden, 371 S.W.3d 802, 805-06 (Mo. banc

2024State v. Davis, 71 S.W.3d 659, 665 (Mo. App. W.D. 2002) (The State has the burden to disprove a special negative defense, but only once the defendant “first produces evidence sufficient to inject the defense at trial.”); State v. Jones, 519 S.W.3d 818, 825 (Mo. App. W.D. 2017) (explaining that an affirmative defense “is an independent bar to liability in which the defendant carries the burden of persuasion . . . that the defense is more probably true than not.”).

2019State v. Gill, 806 S.W.2d 48, 50 (Mo. App. W.D. 1991); State v. Walkup, 220 S.W.3d 748, 754-55 (Mo. 2007).

2019When the error was not preserved, however, cases like State v. Burns, 292 S.W.3d 501, 508 (Mo. App. 2009) and State v. Cooksey, 805 S.W.2d 709, 710-11 (Mo. App. 1991), have required the appellant to establish that “the outcome of the trial would have been different but for the alleged error” in order to be entitled to reversal under plain error review.

2019When the error was not preserved, however, cases like State v. Burns, 292 S.W.3d 501, 508 (Mo. App. 2009) and State v. Cooksey, 805 S.W.2d 709, 710-11 (Mo. App. 1991), have required the appellant to establish that “the outcome of the trial would have been different but for the alleged error” in order to be entitled to reversal under plain error review.

2017“Whether the evidence raises the issue of self-defense is a question of law.” State v. Kasparie, 498 S.W.3d 804, 811 (Mo. App. S.D. 2015) (quoting State v. Nunn, 697 S.W.2d 244, 246 (Mo. App. E.D. 1985)). ■ [8-10] A self-defense instruction shall be submitted to the jury only “when substantial evidence is adduced to support it, even when that evidence is inconsistent with the^ defendant’s testimony.” State v. Westfall, 75 S.W.3d 278, 281 (Mo. banc 2002).

2017“Whether the evidence raises the issue of self-defense is a question of law.” State v. Kasparie, 498 S.W.3d 804, 811 (Mo. App. S.D. 2015) (quoting State v. Nunn, 697 S.W.2d 244, 246 (Mo. App. E.D. 1985)). ■ [8-10] A self-defense instruction shall be submitted to the jury only “when substantial evidence is adduced to support it, even when that evidence is inconsistent with the^ defendant’s testimony.” State v. Westfall, 75 S.W.3d 278, 281 (Mo. banc 2002).