                                   Missouri Court of Appeals
                                               Southern District
                                                   Division Two


STATE OF MISSOURI,                                              )
                                                                )
         Plaintiff-Respondent,                                  )
                                                                )
vs.                                                             )        No. SD33622
                                                                )
JOEY LYNN PLUNKETT,                                             )        Filed February 5, 2016
                                                                )
         Defendant-Appellant.                                   )

                   APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY

                          Honorable Mark A. Stephens, Associate Circuit Judge

AFFIRMED

         A jury found Joey Lynn Plunkett (“Defendant”) guilty of three counts of assault of a law

enforcement officer in the second degree, see section 565.081.1, and one count of resisting

arrest, see section 575.150. 1 On appeal, Defendant’s first point claims the trial court erred in

refusing his tendered instruction for “self-defense in resisting excessive force in an arrest,” and

his remaining three points claim that the trial court plainly erred in failing to sua sponte instruct

the jury on Defendant’s right to self-defense on the three assault counts. Because there is no




1
  References to statutes are to RSMo Cum.Supp. 2012. Rule references are to Missouri Court Rules (2015). The
trial court sentenced Defendant to concurrent sentences of fifteen years, seven years, and seven years in the
Department of Corrections for the three counts of assault of a law enforcement officer. For resisting arrest, the trial
court sentenced Defendant to four years in the Department of Corrections to run consecutively to the other
sentences.

                                                           1
merit in Defendant’s first point and his remaining points are not properly briefed for our review,

as required by Rule 84.04(e), we affirm his convictions.

                                        Standard of Review

                The Court will reverse due to instructional error if there is error in
       submitting an instruction and prejudice to the defendant. To ascertain whether or
       not the omission of language from an instruction is error, the evidence is viewed
       in the light most favorable to the defendant and the theory propounded by the
       defendant. If the evidence tends to establish the defendant’s theory, or supports
       differing conclusions, the defendant is entitled to an instruction on it.

                The general rule is that an instruction must be based upon substantial
       evidence and the reasonable inferences therefrom. Substantial evidence of self-
       defense requiring instruction may come from the defendant’s testimony alone as
       long as the testimony contains some evidence tending to show that he acted in
       self-defense. Moreover, an instruction on self-defense must be given when
       substantial evidence is adduced to support it, even when that evidence is
       inconsistent with the defendant’s testimony. Even if no objection is made, the
       failure to instruct upon a defense supported by the evidence is plain error
       affecting substantial rights. This Court has also recognized that jury instruction,
       as to all potential convictions and defenses, is so essential to ensure a fair trial that
       if a reasonable juror could draw inferences from the evidence presented the
       defendant is not required to put on affirmative evidence to support a given
       instruction.

State v. Westfall, 75 S.W.3d 278, 280-81 (Mo. banc 2002) (citations and quotations omitted).

                              Factual and Procedural Background

       On the evening of January 8, 2013, according to a 911 recording, Cara Plunkett called

911 emergency services. She began by telling the dispatcher her address and that “you guys do

not want to go there with blue lights on” because her husband (Defendant) was “very stressed

out” and “withdrawing from medication that his pain doctor put him on.” Cara told the

dispatcher that Defendant’s “truck hit my home.” She explained: “He’s got a Chevy Silverado




                                                  2
. . . full of gasoline and propane tanks[,]” 2 and “[h]is medication is not right, right now. He’s

bipolar. He’s got pain problems.”

                                               Officers’ Testimony

         Officer Dustin Wells and Corporal Nathan Boone responded to Defendant’s home in

uniform and in their county-issued patrol cars without using the emergency lights, sirens, or

megaphones. Upon arriving, Officer Wells observed a “male subject walking from the front

porch to his vehicle[,]” so he announced “Stone County Sheriff’s Office” multiple times. The

male subject, Defendant, got inside the vehicle, a red truck, on the driver’s side. Officer Wells

went to the passenger’s side of the truck and opened the door. Corporal Boone went to the

driver’s side and yelled for Defendant to exit the vehicle. Defendant then started the truck and

moved it in reverse, almost hitting Corporal Boone. Defendant stopped and then started

accelerating forward toward Officer Wells in the front yard. As Officer Wells ran toward his

patrol car for protection, Defendant turned his truck, drove it into the backyard, hit a tree, and got

stuck in the muddy yard. Officer Wells then approached the passenger side of the truck and

knocked out the passenger-side window with a metal bar that he found on the ground. Corporal

Boone knocked out the driver’s side window with his baton and then opened the driver’s side

door. Corporal Boone punched Defendant in the head “two times, couple times” to get him to let

go of the steering wheel so that Corporal Boone could pull him from the vehicle.

         Defendant threw a clear container at Corporal Boone. The container turned out to be a

Mason jar with the lid on and a rag coming out of the side. Corporal Boone realized later that

the jar had been filled with gasoline, which had covered his clothes. Officer Wells and Corporal

Boone pulled Defendant from the vehicle while he struggled. Defendant continued resisting, so


2
  The police later confirmed that the truck contained a fifty-five gallon blue plastic barrel of gasoline and a propane
tank.

                                                           3
Corporal Boone instructed Officer Wells to “tase” Defendant, and Officer Wells did so. After

that occurred, Defendant stated that he was “done fighting.” Officer Wells placed Defendant in

handcuffs, and after doing so, he found a Bic lighter in Defendant’s hand.

                                      Defendant’s Testimony

       Defendant testified he had previously been diagnosed with bipolar disorder and ADHD,

for which he had been prescribed Xanax and Adderall. Additionally, in 2012 and 2013, he

sustained work-related injuries to his right shoulder and lower back. Because of his injuries, he

was prescribed Lortab, Percocet, and Morphine, pain medications. He became dependent on

Morphine. On January 8, 2013, Defendant’s doctors decided to discontinue his use of Morphine.

He had previously been taking Morphine twice a day.

       According to Defendant, on the night in question, his yard was muddy and when he put

his truck in gear, he couldn’t get it to stop and it accidentally hit the “tongue of the trailer” home.

Defendant went inside to talk to his wife, but she and the kids were gone. By this time,

Defendant was “[d]etoxing off the medication[,]” which made him “kind of suicidal[,]” and he

planned to kill himself using the gasoline and the lighter that he carried in his hand.

       On his way back to his truck, two men approached Defendant, shined a flashlight on him,

and said “we want to talk to you.” Defendant continued to his truck and got in it because he was

scared. Defendant never heard either man announce that they were from the Stone County

Sheriff’s Office. Defendant believed these men to be “some friends of Billy’s, the guy that

showed up there the night before and we got into it.” In describing Billy and the events of the

preceding evening, Defendant testified as follows: Billy had called Defendant on the night of

January 7 and told Defendant that he could get Defendant more Morphine. Defendant agreed

and gave Billy five hundred dollars. Billy “stiffed” Defendant on the Morphine but brought a

PlayStation over to Defendant’s instead. Defendant was going to take the PlayStation for the
                                                   4
five hundred dollars. Upon learning that the PlayStation was stolen, Defendant refused, and a

fight followed.

         According to Defendant, once he was in his truck on the evening in question, he rolled

up the windows and locked the doors. Then he heard what he believed to be baseball bats trying

to bust out his windows. He turned the ignition on and off in order to flash the lights and warn

his attackers that he was going to move the vehicle. Defendant then drove through the yard

without trying to hit either person. In trying to get away from the men, Defendant got stuck in

mud next to a tree in his yard. Near the tree, there was a Mason jar with an old rag in it that

Defendant had been using to burn leaves and clean some rusted pipes in order to install the

propane tank. The Mason jar was never in the vehicle, and he never threw its contents on

Corporal Boone. The men busted out the windows on each side of his truck, and the man on the

driver’s side began punching Defendant in the forehead. Defendant picked up a jug of gasoline

and used it as a shield against the punches. Then, Defendant opened the door and tried to get out

of the vehicle to defend himself. Defendant first realized that the men were deputies when he

heard one ordering the other to “tase” him. Once he realized this, he dove onto his stomach. He

did not know that he was under arrest before he was “tased.”

       Based on this evidence, Defendant’s counsel requested an instruction on self-defense on

Count III (assault of Corporal Boone by throwing gasoline on him). Counsel argued:

       Your Honor, I would like an instruction related to instruction number 306.22,
       only in relation to count three. I think the evidence was certainly that [Defendant]
       mentioned during the course of his testimony that he defended himself, but
       furthermore - my intern has taken some notes and I remember him saying this
       now, that when I asked him if he was trying to get out of the vehicle, he said that
       he, that [Defendant] was the one who tried to open the door to get out so he could
       get on the ground and defend himself, never swung at officers, did not try to kill
       them, but I think the gist of it is that he actually tried to effectuate getting out of
       the car so that he could defend himself, and I believe that’s what his testimony



                                                 5
       was, and as such I believe that the instruction on 306.22 is appropriate and I'm
       going to ask that you give that today.

The trial court refused the requested instruction because

       I’m reading your proposed instruction, which says a person who resists an arrest
       or threatens to resist an arrest is not entitled to use force to protect himself from
       that force which he has so provoked, unless he first clearly indicates to the law
       enforcement officer his desire to end his resistance and submit to the arrest, and
       there’s just – there’s no evidence. I don’t think your client ever even attempted to
       claim that he tried to do that[.]

       The jury was instructed on three different degrees of assault of a law enforcement officer

for each of the first three counts, and Count 4 was submitted under both resisting an arrest and

resisting lawful detention. The jury found Defendant guilty of three counts of assault of a law

enforcement officer in the second degree and one count of resisting arrest. Under Count 1, the

jury found Defendant guilty of assault of a law enforcement officer in the second degree, in that

Defendant attempted to injure Officer Wells by striking him with a motor vehicle and Defendant

knew that Officer Wells was a law enforcement officer. Under Count 2, the jury found

Defendant guilty of assault of a law enforcement officer in the second degree, in that Defendant

recklessly placed Corporal Boone in apprehension of immediate serious physical injury by

driving at him and Defendant was reckless as to whether Corporal Boone was a law enforcement

officer. Under Count 3, the jury found Defendant guilty of assault of a law enforcement officer

in the second degree, in that Defendant recklessly placed Corporal Boone in apprehension of

immediate serious physical injury by throwing gasoline on him and Defendant was reckless as to

whether Corporal Boone was a law enforcement officer. Under Count 4, the jury found

Defendant guilty of resisting arrest, in that Defendant knew or reasonably should have known

that Corporal Boone was a law enforcement officer, was making an arrest for assault of a law

enforcement officer (Officer Wells), and Defendant resisted by using violence or physical force.

Defendant’s motion for new trial alleged that the trial court “erred when it refused to submit

                                                 6
MAI-CR 306.22 to the jury to consider related to Count [3].” Defendant’s motion was denied,

and this appeal followed.

                                                  Discussion

                            Point 1—No Error in Refusal of Instruction A

        Defendant’s first point alleges that the trial court erred in refusing Defendant’s “tendered

Instruction A.” As tendered by Defendant, Instruction A 3 provided:

                                           INSTRUCTION NO A

        PART A - GENERAL INSTRUCTIONS
                One of the issues as to Count [3] is whether the use of force by the
        defendant against Nathan Boone was in self-defense. In this state, the use of force
        including the use of deadly force to protect oneself from excessive force by a law
        enforcement officer is lawful in certain situations.
                A law enforcement officer making an arrest is entitled to use such physical
        force as reasonably appears necessary to effect such arrest. A person being
        arrested is required to submit to the arrest and is not entitled to use force to resist
        an arrest even if he believes such arrest to be unlawful.
                A person being arrested can lawfully use force to protect himself from
        harm from the use of excessive force by a law enforcement officer if he
        reasonably believes that submitting to the arrest will not stop the use of excessive
        force by the officer and that force is the only means by which he can protect
        himself from the excessive force.

                 However, a person who resists an arrest or threatens to resist an arrest is
                 not entitled to use force to protect himself from the force which he has so
                 provoked unless he first clearly indicates to the law enforcement officer
                 his desire to end his resistance and submit to the arrest. Then, if the law
                 enforcement officer persists in his use of excessive force, the person being
                 arrested may use only that force which he reasonably believes is necessary
                 to protect himself from the use of excessive force.

                 In order for a person being arrested to lawfully use force to protect himself
                 from excessive force by a law enforcement officer, he must reasonably
                 believe he is in imminent danger of harm from the officer’s use of
                 excessive force. He need not be in actual danger but he must have a
                 reasonable belief that he is in such danger.


3
 The State points out that “[b]ecause the charged offense occurred after August 28, 2007, the instruction should
have been based on MAI-CR 3d 306.22A (Jan. 1, 2011), which differs in some respects from MAI-CR 3d 306.22,”
but that those differences are not “germane to the issue before the Court.”

                                                        7
        If he has such a belief, he is then permitted to use that amount of force
which he reasonably believes to be necessary to protect himself from the
excessive force.
        But a person is not permitted to use deadly force, that is force which he
knows will create a substantial risk of causing death or serious physical injury,
unless he reasonably believes he is in imminent danger of death or serious
physical injury.
        And, even then, a person may use deadly force only if he reasonably
believes that submitting to the arrest will not stop the officer’s use of excessive
force, and he reasonably believes the deadly force is necessary to protect himself
from the excessive force.

       As used in this instruction, the term “reasonable belief” means a belief
              based on reasonable grounds, that is, grounds which could lead a
              reasonable person in the same situation to the same belief. This
              depends upon how the facts reasonably appeared. It does not
              depend upon whether the belief turned out to be true or false.

PART B - SPECIFIC INSTRUCTIONS
     On the issue of self-defense as to Count [3], you are instructed as follows:

        If the defendant did not resist or threaten to resist arrest in his encounter
with Nathan Boone, or if he resisted or threatened to resist arrest and clearly
indicated to Nathan Boone his desire to end his resistance and submit to the arrest

        and if, the defendant reasonably believed he was in imminent danger of
harm from the excessive force by Nathan Boone and that submitting to the arrest
would not stop the use of excessive force, and the defendant used only such force
as reasonably appeared to be necessary to defend himself from such excessive
force, then he acted in lawful self-defense.

       And if, the defendant reasonably believed he was in imminent danger of
               death or serious physical injury from the excessive force by Nathan
               Boone and that submitting to the arrest would not stop the use of
               excessive force and he used only such deadly force as reasonably
               appeared necessary to defend himself from such excessive force,
               then he acted in lawful self-defense.

       And if, the defendant reasonably believed he was in imminent danger of
               harm from the excessive force by Nathan Boone and that
               submitting to the arrest would not stop the use of excessive force
               and he used only such non-deadly force as reasonably appeared to
               him to be necessary to defend himself from such excessive force,
               then he acted in lawful self-defense.




                                          8
                  And if, the defendant reasonably believed he was in imminent danger of
                          harm from the excessive force by Nathan Boone and that
                          submitting to the arrest would not stop the use of excessive force
                          and he used only such non-deadly force as reasonably appeared to
                          him to be necessary to defend himself from such excessive force,
                          then he acted in lawful self-defense, or

                 if the defendant reasonably believed he was in imminent danger of death
         or serious physical injury from the excessive force by Nathan Boone and that
         submitting to the arrest would not stop the use of excessive force and he
         reasonably believed that the use of deadly force was necessary to defend himself
         from such excessive force and he used only such deadly force as reasonably
         appeared necessary to defend himself from such excessive force, then his use of
         deadly force was in lawful self-defense.

                The state has the burden of proving beyond a reasonable doubt that the
         defendant did not act in lawful self-defense. Unless you find beyond a reasonable
         doubt that the defendant did not act in lawful self-defense, you must find the
         defendant not guilty.

                 As used in this instruction, the term “serious physical injury” means
         physical injury that creates a substantial risk of death or that causes serious
         disfigurement or protracted loss or impairment of the function of any part of the
         body.

         Defendant’s point contends that this instruction was appropriate because “the jury was

permitted to infer that Boone used excessive force in trying to break out [Defendant’s] truck

window . . . , that Boone’s and Wells’ conduct escalated the situation, causing [Defendant] to

flee, and that Boone struck [Defendant] repeatedly, giving rise to [Defendant’s] right to defend

himself[.]”4 The argument portion of Defendant’s brief further contends that “[i]t was only after

he had been subjected to this unjustified physical abuse that [Defendant] became aware that his


4
  Defendant concludes his argument under this point by stating that he is entitled to a new trial on Count 4, resisting
arrest. The State responds that Defendant is not entitled to relief on Count 4 because self-defense is not a defense to
a charge of resisting arrest, citing State v. Morris, 285 S.W.3d 407, 415 (Mo.App. 2009). Because Defendant
offered this instruction at trial for Count 3, one of the charges of assault of a law enforcement officer, the State’s
brief goes on to analyze whether the instruction is applicable to that offense. Defendant’s Reply Brief notes that
Point 1 of his original brief “inadvertently requested relief as to Count [4]” when it should have requested relief
concerning Count 3. Defendant goes on to assert, however, that he is “entitled to a new trial on Count [3], assault of
a law enforcement officer, and Count [4], resisting arrest.” After full review of the briefs, the requested instruction,
and the transcript, it is clear that Defendant is requesting relief concerning Count 3 only, and we will review
accordingly.

                                                           9
two assailants were law enforcement officers—when he heard one give the other the order to use

the Taser.” Defendant’s argument also contends that “he was through fighting” and indicated “a

desire to end his resistance as required by the instruction” upon being “tased.”

       Defendant’s characterization of the facts on appeal support, at best, that he submitted to

arrest the moment he realized his assailants were officers—according to Defendant, this was

when Corporal Boone ordered Officer Wells to “tase” Defendant. Because Defendant threw

gasoline on Corporal Boone before Corporal Boone told Officer Wells to “tase” Defendant, an

instruction under MAI-CR3d 306.22A is inappropriate for two reasons.

       First, the Notes on Use concerning MAI-CR3d 306.22A specify that “[t]his instruction is

intended for those situations in which the defendant . . . knew the victim was a law enforcement

officer making an arrest and claims he was defending himself against the use of excessive force

by the law enforcement officer.” MAI-CR3d 306.22A, Notes on Use 1. Under the theory

propounded by Defendant, he could not have known that Corporal Boone was a law enforcement

officer when he threw gasoline on him because Defendant did not realize that either man was a

law enforcement officer until Corporal Boone ordered Officer Wells to “tase” Defendant. The

events, as recounted by both Corporal Boone and Defendant, support that Defendant was “tased”

after Corporal Boone was covered in gasoline. Therefore, Defendant’s factual theory in this case

does not support that he was defending himself against the use of excessive force by a known

law enforcement officer.

       Second, as the trial court noted, Defendant’s requested instruction stated:

       However, a person who resists an arrest or threatens to resist an arrest is not
       entitled to use force to protect himself from the force which he has so provoked
       unless he first clearly indicates to the law enforcement officer his desire to end his
       resistance and submit to the arrest. Then, if the law enforcement officer persists
       in his use of excessive force, the person being arrested may use only that force



                                                10
         which he reasonably believes is necessary to protect himself from the use of
         excessive force.

In order for this instruction to be appropriate, Defendant would have had to “clearly indicate[] to

the law enforcement officer his desire to end his resistance and submit to the arrest” before using

force to defend himself. Under the facts as theorized by Defendant, he did not attempt to submit

to arrest until after he threw the gasoline on Corporal Boone. Therefore, Defendant’s theory

does not support giving the instruction. Defendant’s first point is denied.

                            Points 2, 3, and 4 – Plain Error Review Declined

         Defendant’s second, third, and fourth points argue that the trial court plainly erred in

failing to sua sponte instruct the jury on Defendant’s right of self-defense as to Counts 1, 2, and

3, “in that, taking the evidence in the light most favorable to [Defendant], the jury was permitted

to infer that [Defendant] . . . believed that he was being assaulted by confederates of a drug

dealer with whom [Defendant] had fought, and that his best defense against that assault was to

[drive toward the attacker/throw gasoline on him] to get him to retreat and allow [Defendant] to

escape.” Defendant’s points do not specify which self-defense instruction 5 he believes the trial

court should have sua sponte instructed the jury to consider; however, the argument section of

his brief states: “Trial courts are required to sua sponte instruct on self-defense under MAI-

CR3d 306.06A when the issue is raised by the evidence. State v. Hiltibidal, 292 S.W.3d 488,

493 (Mo.App. W.D. 2009).” 6



5
  There are eighteen jury instructions within the 306 series of MAI-CR related to self-defense.
6
  In his reply brief, Defendant attempts to amend his choice of instruction. Defendant states he mistakenly “argued
that the conventional self-defense instruction in MAI-CR3d 306.06 should apply, rather than the specific instruction
referring to law enforcement officers in MAI-CR3d 306.22.” Defendant continues by stating that MAI-CR3d
306.22 “possibly should apply, but even if that is correct, [Defendant] believes the State was not prejudiced by this
arguable error by appellate counsel[.]” Defendant is not permitted to amend his claim of error in his reply brief to
argue that the trial court should have sua sponte instructed the jury on MAI-CR3d 306.22. “A claim of error first set
forth in a reply brief does not present an issue for appellate review.” In re Marriage of Hunter, 614 S.W.2d 277,
278 (Mo.App. 1981).

                                                         11
        Defendant’s point fails because Defendant did not “set forth in full in the argument

portion of the brief” the instruction that he claims the trial court should have given. Rule

84.04(e) requires, in pertinent part, that “[i]f a point relates to the giving, refusal or modification

of an instruction, such instruction shall be set forth in full in the argument portion of the brief.”

Rule 84.04(e).

        “The MAI self-defense instruction provides a selection of four formats with differing

language to be used depending upon the evidence in any particular case.” Westfall, 75 S.W.3d at

281. Additionally, MAI-CR3d 306.06A contains five potentially applicable provisions in Part A

and six case-specific provisions in Part B. Defendant made no attempt to identify which

provisions the trial court should have known to apply as having been supported by the evidence

and his theory of the case.

        To address Defendant’s points in the absence of the specific instruction Defendant claims

the trial court should have given would require this court to adopt Defendant’s theory of the case,

seine the record for evidence supporting that theory, and then craft an instruction such that each

instructional element is supported by substantial evidence consistent with Defendant’s theory of

the case. Such actions would make us an advocate for Defendant; a role we will not assume. “It

is not the function of the appellate court to serve as advocate for any party to an appeal.”

Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978).

        When counsel fail in their duty by filing briefs which are not in conformity with
        the applicable rules and do not sufficiently advise the court of the contentions
        asserted and the merit thereof, the court is left with the dilemma of deciding that
        case (and possibly establishing precedent for future cases) on the basis of
        inadequate briefing and advocacy or undertaking additional research and briefing
        to supply the deficiency. Courts should not be asked or expected to assume such
        a role.

Id.



                                                  12
       Plain error may be considered, “in the discretion of the court.” Rule 30.20. In order to

avoid becoming Defendant’s advocate because Defendant’s brief fails to comply with Rule

84.04(e), we exercise our discretion to decline plain error review as requested in Defendant’s

second, third, and fourth points. Accordingly, those points are denied.

                                            Decision

       Defendant’s convictions are affirmed.



GARY W. LYNCH, J., Opinion author

DON E. BURRELL, P.J., concurs

NANCY STEFFEN RAHMEYER, J., concurs




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