             In the Missouri Court of Appeals
                     Eastern District
                                         DIVISION THREE

STATE OF MISSOURI,                               )      No. ED102581
                                                 )
       Respondent,                               )      Appeal from the Circuit Court
                                                 )      of St. Charles County
       vs.                                       )      1211-CR06531-01
                                                 )
MATTHEW R. BURNETT,                              )      Honorable Jon A. Cunningham
                                                 )
       Appellant.                                )      Filed: February 2, 2016

       Matthew R. Burnett (“Defendant”) appeals the judgment entered upon a jury verdict

convicting him of two counts of first-degree burglary and two counts of first-degree child

molestation. We affirm.

                                    I.      BACKGROUND

A.     Evidence Presented at Defendant’s Jury Trial

       Defendant was charged with and convicted of the four counts referenced above, and he

does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light

most favorable to the verdict, the evidence presented at Defendant’s jury trial revealed the

following.

       On December 12, 2012, H.G., who was thirteen years old, and her little sister, who was

eight years old, were home alone while their mother was at work. At around 5:30 p.m., when

H.G. was in the living room and her sister was taking a bath, H.G. heard a loud noise from the
kitchen, and she saw the door fling open. A man later identified as Defendant then came into the

home. Defendant grabbed H.G. by the arms and told her to sit, which she did, and then

Defendant said “all clear.” At that point, a man who lived in the neighborhood, whom H.G.

knew as “Bob” and who was later identified as Bob Mohrmann,1 came in the back door.

        Bob stayed in the kitchen while Defendant looked around the house. After Defendant

looked around the house, he and Bob left out the backdoor. Subsequently, Defendant came back

into the house, held H.G. down on his lap, and touched her breasts and vagina over her clothing.

Defendant also tried to touch H.G. under her pants, but she struggled against him.

        H.G. started running towards the front door, but she fell. Defendant got on top of her,

and put his hands on her face, covering up her mouth and nose. H.G. kicked, screamed, and tried

to punch Defendant, and he eventually left the house. H.G. and her sister then went to a

neighbor’s house for help, and the neighbor called the police.

        When the police arrived, H.G. told them what happened and pointed out where she

thought Bob lived. The police went to Bob’s house, and Bob told the police it was Defendant’s

idea to rob H.G.’s house, Defendant kicked the door in, and Defendant was located in a house

across the street. The police went to the house across the street, found Defendant, and took him

into custody. Later that evening, H.G. identified Defendant and Bob as the men who broke into

her house, and she identified Defendant as the man who held her down and touched her breasts

and vagina over her clothing.

        Bob testified at trial that Defendant came by his house on the day of December 12, 2012,

brought rum, and the two men sat at Bob’s house and “drank a little bit.” Bob stated he drank




1
 For purposes of this opinion, we will refer to Bob Mohrmann by his first name for clarity and ease of reading. No
disrespect is intended.

                                                         2
about one-third to one-half of a bottle of rum but did not know exactly how much Defendant

drank.

         In addition, Detective Brett Jansen from the St. Charles County Sheriff’s Department

testified at Defendant’s trial regarding his interview of Defendant on the night of the crimes

involving H.G. Detective Jansen stated he noticed during the interview that Defendant’s speech

was slurred and Defendant “had an odor on his breath of what [Detective Jansen] considered an

intoxicating beverage.” Detective Jansen testified he “definitely believed that [Defendant] was

intoxicated at the time.” The detective testified he was very familiar with observing signs of

intoxication, having previously worked in the DWI unit of the Sheriff’s Department for six years.

Defendant told Detective Jansen that earlier in the day, he bought a bottle of rum for Bob, but

Defendant only had one “swig” and went home. However, based on Detective Jansen’s

observations of Defendant and his past experience, he believed Defendant did not present

himself as someone who had only taken one “swig” of alcohol.

B.       Relevant Procedural Posture

         During the instruction conference, the State tendered an instruction, Instruction No. 6,

which was based on and contained identical language to MAI-CR 3d 310.50 (effective October

1, 1995)2, the Missouri approved instruction on voluntary intoxication. Over defense counsel’s

objection, the trial court submitted Instruction No. 6 to the jury, which provided:

         The state must prove every element of the crime beyond a reasonable doubt.
         However, in determining the defendant’s guilt or innocence, you are instructed
         that an intoxicated condition from alcohol will not relieve a person of
         responsibility for his conduct.




2
 Unless otherwise indicated, all further references to MAI-CR 3d 310.50 and the Notes on Use are to the version
effective October 1, 1995.

                                                        3
The jury was also instructed, based on MAI-CR 3d 302.03 (effective January 1, 1987),3 “[t]he

[c]ourt does not mean to assume as true any fact referred to in these instructions but leaves it to

you to determine what the facts are.”

           Subsequently, the jury found Defendant guilty of two counts of first-degree burglary and

two counts of first-degree child molestation. The trial court then sentenced Defendant as a prior

and persistent offender to a total of twenty-seven years of imprisonment. Defendant appeals.

                                               II.     DISCUSSION

           In Defendant’s sole point on appeal, he argues the trial court erred in submitting

Instruction No. 6 to the jury, which was based on and contained identical language to MAI-CR

3d 310.50. We disagree.

A.         Standard of Review

           “A jury instruction must be supported by substantial evidence and the reasonable

inferences to be drawn therefrom.” State v. Avery, 275 S.W.3d 231, 233 (Mo. banc 2009). In

determining whether there was sufficient evidence to support an instruction for voluntary

intoxication based on MAI-CR 3d 310.50, “[w]e view the evidence and inferences in the light

most favorable to the State, which was the party tendering the instruction.” State v. Drisdel, 417

S.W.3d 773, 787 (Mo. App. E.D. 2013).

           An appellate court will only reverse a case based on instructional error when an error

occurs and the error misleads the jury to the prejudice of the defendant. Avery, 275 S.W.3d at

233. However, if an instruction contains an accurate statement of law and is supported by the

evidence, there is no prejudice. Id. Additionally:

           [It is within] the trial court’s discretion, when instructions are supported by the
           evidence, which instructions are necessary to avoid misleading or confusing the


3
    All further references to MAI-CR 3d 302.03 are to the version effective January 1, 1987.

                                                           4
           jury. Accurately informing the jury concerning a point of law will limit, rather
           than increase, the chance of a jury being misled or confused.

Id. at 235.

B.         Whether the Trial Court Erred in Submitting Instruction No. 6

           In this case, Defendant argues the trial court erred in submitting Instruction No. 6 to the

jury because there was insufficient evidence Defendant was in an intoxicated condition at the

time he committed the crimes involving H.G. Defendant further argues the instruction was

prejudicial because it confused or misled the jury into believing Defendant was admitting to

some wrongdoing and seeking to escape liability based on intoxication. Because similar

arguments were addressed and found to be non-meritorious by the Missouri Supreme Court in

Avery, 275 S.W.3d at 233-35 and by the Western District in State v. Smith, 353 S.W.3d 100, 106-

07 (Mo. App. W.D. 2011), we find those decisions are instructive here.

           In a criminal case where there is evidence of voluntary intoxication, section 562.076.3

RSMo 20004 requires the trial court to instruct the jury about the limited purpose for which the

evidence may be considered:

           Evidence that a person was in a voluntarily intoxicated . . . condition may be
           admissible when otherwise relevant on issues of conduct but in no event shall it
           be admissible for the purpose of negating a mental state which is an element of
           the offense. In a trial by jury, the jury shall be so instructed when evidence that a
           person was in a voluntarily intoxicated . . . condition has been received into
           evidence.

Smith, 353 S.W.3d at 107 (quoting section 562.076.3). MAI-CR 3d 310.50 satisfies this

requirement, providing in relevant part:

           The state must prove every element of the crime beyond a reasonable doubt.
           However, in determining the defendant’s guilt or innocence, you are instructed
           that . . . an intoxicated . . . condition . . . from . . . alcohol . . . will not relieve a
           person of responsibility for his conduct . . ..


4
    All further references to section 562.076.3 are to RSMo 2000.

                                                           5
Smith, 353 S.W.3d at 107 (quoting MAI-CR 3d 310.50). The purpose of an instruction based on

MAI-CR 3d 310.50 is to ensure the jury understands intoxication is not a defense or an

explanation which excuses the defendant of responsibility for his conduct. Avery, 275 S.W.3d at

234; Smith, 353 S.W.3d at 107. To support submission of such an instruction, it is only

necessary for there to be evidence that the defendant was voluntary intoxicated.5 Smith, 353

S.W.3d at 107; see also Avery, 275 S.W.3d at 233-35; section 562.076.3.

        In this case, the State presented evidence of Defendant’s voluntary intoxication, and the

trial court did not err in admitting such evidence. Viewing the evidence and inferences in the

light most favorable to the State, which our standard of review requires us to do, the jury heard

evidence that Defendant was drinking rum with Bob on the day of the crimes involving H.G.

In addition, the jury heard Detective Jansen’s testimony that on the night the crimes occurred, he

noticed Defendant’s speech was slurred and Defendant “had an odor on his breath of what

[Detective Jansen] considered an intoxicating beverage.” Detective Jansen testified he

“definitely believed that [Defendant] was intoxicated at the time” and also testified that based on

his observations of Defendant and his past experience, he did not believe Defendant’s contention

that he had just taken one “swig” of alcohol earlier in the day. The preceding evidence was

sufficient to establish a reasonable inference that Defendant committed the crimes involving

H.G. while he was voluntarily intoxicated. Accordingly, there was sufficient evidence to support

an instruction for voluntary intoxication, and Defendant’s argument to the contrary has no merit.

        In addition, and contrary to Defendant’s other argument on appeal, we find submission of

Instruction No. 6 based on MAI-CR 3d 310.50 did not confuse or mislead the jury into believing


5
  Although the prior Notes on Use to MAI-CR 3d 310.50 also required evidence of impairment in order to submit an
instruction based on MAI-CR 3d 310.50, the Notes on Use were modified, and the current version does not contain
that requirement. Avery, 275 S.W.3d at 234; Notes on Use to MAI-CR 3d 310.50.


                                                       6
Defendant was admitting to some wrongdoing and seeking to escape liability based on

intoxication. This is because the jury was instructed pursuant to MAI-CR 3d 302.03 to not

assume any fact referred to in the instructions and we presume the jury read and followed the

instructions before it.6 See Avery, 275 S.W.3d at 233-34. Moreover, as the Supreme Court

found in Avery, “there was abundant evidence of [Defendant’s] alcohol consumption to support

the trial court’s determination that without being instructed as to the legal effect of that evidence,

the jury might well have been left to guess as to what legal effect to give that evidence.” Id. at

235.

         Based on the foregoing, the trial court did not err in submitting Instruction No. 6 to the

jury. Point denied.

                                             III.     CONCLUSION

         The trial court’s judgment is affirmed.

                                                         ___________________



                                                         ROBERT M. CLAYTON III, Presiding Judge

Lawrence E. Mooney, J., and
James M. Dowd, J., concur.




6
  To support his argument that submission of Instruction No. 6 confused or misled the jury into believing Defendant
was admitting to some wrongdoing and seeking to escape liability based on intoxication, Defendant relies on three
decisions: (1) State v. Bristow, 190 S.W.3d 479 (Mo. App. S.D. 2006) (explicitly overruled in part by Avery, 275
S.W.3d at 235); (2) State v. James, 869 S.W.2d 276 (Mo. App. E.D. 1994); and (3) State v. Kehner, 886 S.W.2d 130
(Mo. App. E.D. 1994). However, those decisions “failed to consider that MAI–CR 3d 302.03 specifically instructs
the jury not to assume any fact referred to in the instructions as well as the case law that the jury is presumed to have
read and followed the instructions.” Avery, 275 S.W.3d at 233-34, 234 (similarly holding with respect to the
Bristow decision only); see also James, 869 S.W.2d at 278; Kehner, 886 S.W.2d at 134. Accordingly, Bristow,
James, and Kehner are not controlling. See Avery, 275 S.W.3d at 233-34.



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