State v. Nutt , 703 S.W.2d 583 ( 1986 )


Menu:
  • GREENE, Judge.

    After jury-trial, Michael Dean Nutt was convicted of first degree burglary, § 569.-*584160,1 and sentenced to seven years’ imprisonment.

    The basis of the criminal charge was the state’s contention that Nutt unlawfully entered an occupied mobile home located in a trailer park in Springfield, Missouri, and that he did so with the intent to steal.

    At trial, Nutt admitted entering the trailer, but alleged that he had done so because he believed it was vacant, and only wanted to determine if it would be suitable for him to rent.

    Among the points relied on in this appeal, Nutt contends that the trial court committed prejudicial error by refusing to submit his offered instruction “B” to the jury. The instruction reads as follows:

    One of the issues in this case is whether the defendant knew he was not licensed or privileged to enter upon the premises of Ray Fort at 1705C East Caravan. The State has the burden of proving beyond a reasonable doubt not only that defendant entered such premises but also that the defendant was aware that he had no license or privilege to do so. If the defendant believed he had license or privilege to so enter then he was not aware he had no license or privilege to so enter.
    If you find that the defendant believed he was licensed or privileged to enter or if you have a reasonable doubt as to whether he believed he had a license or privilege to enter or if you have a reasonable doubt as to whether the defendant was aware he was not licensed or privileged to enter then you must find the defendant not guilty.

    Nutt asserts that his testimony outlined above was evidence that amounted to a special negative defense and, as such, entitled him to have instruction “B” read to the jury as part of the law of the case. We agree.

    A special negative defense is a defense 1) upon which the defendant does not carry the burden of proof (self-defense, accident, honest claim of ownership or use of property, entrapment, etc.), 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 (honest claim to ownership, for example), or which would, if found, constitute a legal defense (self-defense, for example). See State v. Cummings, 516 S.W.2d 49, 50 (Mo.App.1974).

    Nutt’s testimony that he believed the trailer home to be vacant, and that he entered it in an attempt to check on its suitability for rental quarters, constituted evidence which, if believed by the trier of fact, would negate an element of the crime of burglary (entry with the intent to commit a crime). In such cases, an instruction specifically setting out such a special negative defense must be given. MAI-CR2d 2.37.1.3, and its Notes on Use, para. 4. See also Rule 28.02(a). Failure to do so constitutes prejudicial error. State v. Cummings, supra, 516 S.W.2d at 50-51. See also State v. Scott, 649 S.W.2d 559, 561 (Mo.App.1983).

    We have examined the other points relied on by Nutt in his appeal, including his argument that the evidence was insufficient to support the conviction, and find they have no merit.

    The judgment is reversed and the cause remanded for new trial.

    TITUS, P.J., concurs. FLANIGAN, J., dissents and files opinion.

    . Unless otherwise indicated, all references to statutes are to RSMo 1978, V.A.M.S., and all references to rules are to Missouri Rules of Court, V.A.M.R.

Document Info

Docket Number: No. 13963

Citation Numbers: 703 S.W.2d 583

Judges: Files, Flanigan, Greene, Titus

Filed Date: 1/16/1986

Precedential Status: Precedential

Modified Date: 10/1/2021