State of Missouri, Respondent, vs. Richard Neil Burkett, Appellant.

STATE OF MISSOURI, ) Opinion issued December 29, 2025 ) Respondent, ) ) v. ) No. SC101071 ) RICHARD NEIL BURKETT, ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY The Honorable William E. Hickle, Judge Following a jury trial, Richard Neil Burkett was found guilty of first-degree assault. Burkett appeals, contending the circuit court erred in (1) failing to submit a self-defense instruction to the jury, and (2) failing to give the jury a curative instruction after the State of Missouri asserted in its closing argument that the first-degree assault jury instruction did not require the State to prove Burkett acted with intent. Burkett, however, never requested a self-defense instruction and, in fact, never objected to how the jury was instructed during his trial. In addition, Burkett's defense counsel did not object to the State's closing argument and at no time requested the curative instruction he now faults the circuit court for not providing to the jury. Thus, Burkett's claims of error are unpreserved, and he requests this Court review his claims for plain error.

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Because Burkett caused or contributed to the errors he now attributes to the circuit co urt and these errors may, in fact, be attributed to reasonable trial strategy, discretion warrants this Court declining to review for plain error as Burkett requests. Having declined to review Burkett's claims of error, this Court affirms the circuit court's judgment. Factual and Procedural Background This case involves an altercation between Burkett and his brother-in-law ("Victim") at a convenience store in Texas County. According to Victim and other witnesses, Victim confronted Burkett at the store after Burkett threatened members of the local Amish community with a weapon. This confrontation led to the two wrestling before being separated by two other men at the store. After they were separated, Burkett pulled out a semiautomatic handgun. He pointed the gun at Victim's head, stated, "You're a dead mother f****r," and pulled the trigger. The gun clicked, but it did not fire. While Burkett was seemingly trying to unjam the gun, the convenience store owner pulled out a shotgun and ordered Burkett to leave. Burkett complied with the demand but was later arrested and questioned by law enforcement. Burkett gave differing accounts of the sequence of events that had taken place at the convenience store. When interviewed by law enforcement, Burkett never mentioned pulling a gun. He claimed Victim grabbed him by the throat during a verbal argument, Burkett struck Victim to get him off, and then Victim took the store owner's shotgun and pointed it at Burkett. After the deputy questioning Burkett said he did not believe Burkett's account of the incident, Burkett said "he did pull a firearm in self-defense" after Victim pointed the store owner's shotgun at him. The deputy once again stated he did not believe

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Burkett's version of the altercation. Burkett then stated he pulled out his gun because he feared Victim was going to get the store owner's shotgun. After the deputy falsely told Burkett the store had security cameras, Burkett finally admitted he pointed the gun at Victim after the fight was over, and Victim never had a firearm. At trial, Burkett's counsel defended Burkett's actions by claiming Burkett never intended to shoot Victim and, therefore, could not be guilty of first-degree assault. Burkett's counsel claimed Burkett's gun was unloaded, and he had no intent to kill or harm anyone – he just wanted to scare Victim. When Burkett testified at trial, however, he told a slightly different story. He said he pulled his gun only after the store owner handed Victim the shotgun and told Victim to shoot Burkett. He stated he was scared for his life and felt threatened, claiming he pulled out the gun in self-defense. He also stated his gun was not loaded and he did not have any ammunition to load it, and he denied ever pointing the gun at Victim's head and pulling the trigger. When questioned why he changed his version of the altercation so many times, he responded he did so because the deputy told him there was video evidence. The circuit court read and submitted instructions to the jury, directing the jury on how to properly reach its verdict for first-degree assault. The circuit court did not instruct the jury to consider whether Burkett acted in self-defense. Burkett never objected to the circuit court's submission of the instructions. In fact, at a conference discussing the proposed jury instructions, the following exchange took place between the circuit court, the prosecutor, and Burkett's counsel:

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The Court: And for the defense, is there any objection to any of the instructions or verdict forms?

Burkett's Counsel: No.

The Court: All right. I will plan on using those instructions and verdict forms. And, by the way, by either the State or the defense, does anybody have any additional instructions they wish to tender for consideration of the Court?

Burkett's Counsel: No.

The Prosecutor: None by the State.

During closing argument, Burkett's counsel argued Burkett used a gun to scare Victim and never intended to injure Victim when Burkett pointed the gun at him. Counsel asserted Burkett "had no intention of causing serious physical injury. He knows the gun's unloaded. So the act of pointing it at [Victim] is simply to scare him, not to cause physical injury." Counsel argued the verdict-directing instruction for first-degree assault required a finding that Burkett intended to cause Victim serious physical injury when he pulled the trigger, and Burkett lacked such intent. In rebuttal, the State directed the jury to the same verdict-director instruction for first-degree assault, arguing "nowhere in these instructions does intent matter." The State repeated this argument several times, explaining intent does not matter under the assault instruction. 1 Burkett did not object to the State's argument and never requested the circuit

1 The verdict-director for first-degree assault instructed the jury to find Burkett guilty if it found: "[Burkett] attempted to cause serious physical injury to [Victim] by pointing a pistol at him and pulling the trigger." The instruction then explained "a person attempts to cause serious physical injury if, with the purpose of causing serious physical injury, he does an act that is a substantial step toward causing that serious physical injury . . . ."

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court a curative instruction to cure any misstatement made during the State's closing argument. The jury ultimately found Burkett guilty of first-degree assault and a related armed criminal action charge. Burkett filed a motion for new trial but did not raise the lack of a self-defense instruction nor the State's alleged improper closing arguments as grounds for a new trial. This appeal follows. 2

Standard of Review Because Burkett never objected to the lack of a self-defense instruction, nor did he object to the State's closing argument, the circuit court was never given the opportunity to address the claims of error Burkett raised on appeal. Burkett concedes these arguments were not properly preserved for appellate review, so he requests this Court review his claims for plain error. Because the circuit court cannot be convicted of error for something it was never asked to do, appellate courts do not generally review unpreserved claims of error. State v. Jones, No. SC101104, S.W.3d, slip op. at 5 (Mo. banc Dec. 29, 2025). Rule 30.20 alters this guiding principle, providing "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20 (emphasis added). Because plain error review is discretionary, alleged errors caused by or contributed to an appellant's actions or inactions may justify this Court declining to exercise its authority under Rule

2 This Court transferred this case after an opinion by the Missouri Court of Appeals. Mo. Const. art. V, sec. 10.

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30.20. Jones, No. SC101104, slip op. at 8- 9. Likewise, certain claims are ill-suited for plain error review, such as when reasonable trial strategy is likely to have contributed to or caused the alleged error to occur. Id. at 8. Nonetheless, this Court retains discretion to review for plain error even when an appellant's actions or inactions may have caused or contributed to the error. Id. at 9. Discretion also lies when the claimed error is not well-suited for plain error review. Id. This Court is free to assess the facts and circumstances of the case to determine whether it should exercise its discretion to review for plain error. Id. "This is true because Rule 30.20 provides unpreserved claims of plain error may still be reviewed under Rule 30.20 if manifest injustice or miscarriage of justice would otherwise occur." Id. at 9-10 (alteration omitted) (internal quotations omitted). The plain error rule, however, should "be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review." Id. at 10. 3

Analysis Point I: Self-Defense Instructional Error In his first point on appeal, Burkett argues the circuit court plainly erred in failing to give a self-defense instruction to the jury. Because Burkett never requested such an instruction, did not object to how the jury was instructed, and ultimately did not rely on

3 This discretion is not without limits. "Courts abuse their discretionary authority when they act clearly against the logic of the circumstances then before the court and are so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Jones, No. SC101104, slip op. at 10 n.5 (alteration omitted) (internal quotations omitted).

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self-defense as a justification to excuse his conduct, this Court exercises its discretion to decline plain error review. Self-Defense Self-defense is a justification defense. State v. Oates, 540 S.W.3d 858, 860-61 (Mo. banc 2018); see also section 563.031.5. 4 The defense provides a legal justification for the use of intentional force against another person. Section 563.031.5. Self-defense is a special negative defense. State v. Hurst, 663 S.W.3d 470, 478 (Mo. banc 2023) (Powell, J., concurring). This means the burden is on the state to prove the defense inapplicable beyond a reasonable doubt once self-defense is injected into the case. Id.; see also section 563.031.5. Because self-defense is a special negative defense, this Court has held the circuit court must submit a self-defense instruction setting out the state's burden when substantial evidence is adduced to support a self-defense instruction. State v. Bruner, 541 S.W.3d 529, 534 (Mo. banc 2018). 5 As explained in the concurring opinion of Hurst: Once injected into the case by the defendant, the burden shifts to the state to prove the defense inapplicable beyond a reasonable doubt. This distinction reflects the importance of self-defense in our criminal jurisprudence. In requiring the state to bear the burden of proof when self-defense is injected into a case, the legislature recognized the absence of self-defense as fundamental to establishing criminal liability.

663 S.W.3d at 478 (Powell, J., concurring).

4 All statutory references are to RSMo 2016. 5 This Court has approved instructions to properly instruct juries about the state's burden when self-defense is injected in a case. See Missouri Approved Instruction – Criminal 4th Edition (MAI-CR 4th) 406.06.

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Because self-defense is fundamental to establishing criminal liability, this Court has held the circuit court is obligated to give a self-defense instruction when there is substantial evidence to support it, even in the absence of a request for such an instruction. State v. Westfall, 75 S.W.3d 278, 281 n.9 (Mo. banc 2002). "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." Id. at

1. In determining whether there was substantial evidence to inject the issue of self-

defense and support a self-defense instruction, a court must view "the evidence in a light most favorable to the defendant[ ] in order to determine whether the evidence was sufficient to support and authorize instructions on the mentioned matters." State v. Barnett, 577 S.W.3d 124, 126 (Mo. banc 2019) (alteration in original) (quoting State v. Cole, 377 S.W.2d 306, 307 (Mo. 1964)). Burkett injected the issue of self-defense into the case, necessitating the circuit court giving the jury a self-defense instruction. At trial, Burkett stated he pulled his gun only after the store owner handed Victim the shotgun and told Victim to shoot Burkett. He testified he was scared for his life and felt threatened, specifically claiming he pulled out the gun in self-defense. Consistent with the holdings in Barnett, Bruner, and Westfall, this testimony constitutes substantial evidence of acting in self-defense. Because Burkett plainly injected the issue of self-defense, failing to give a self- defense instruction likely amounts to plain error. 6 As explained in Jones, however, the

6 Plain error is evident, obvious, and clear error. Jones, No. SC101104, slip op. at 6.

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existence of plain error does not guarantee review of an unpreserved claim of error. Under Rule 30.20, the Court retains the discretion to decline plain error review. Discretionary Plain Error Review This Court declines to review Burkett's claim of error. When confronted with a request to grant relief under Rule 30.20, the Court may look to the facts and circumstances of the case to determine whether to exercise its discretion to review for plain error. Jones, No. SC101104, slip op. at 9. Several factors justify declining to review Burkett's claim for plain error. First, Burkett failed to request a self-defense instruction. Moreover, he never objected to the submission of the numerous instructions the circuit court gave the jury that lacked an instruction on self-defense. This is not a situation in which the defendant requested, but was denied, a self-defense instruction and requests plain error review because the defendant failed to preserve the argument by omitting the claim in a motion for new trial. Burkett had the opportunity, on numerous occasions, to request this instruction; nevertheless, he failed to do so. He explicitly stated "no" when asked if he had objections to the instructions. He also explicitly stated "no" when the circuit court asked if he wished to tender other instructions for the court's consideration. Even after trial, Burkett failed to raise the lack of a self-defense instruction in his motion for new trial. These facts weigh heavily in favor of declining plain error review. See Jones, No. SC101104, slip op. at 8-9. Burkett unequivocally advised the circuit court he had no objections to the jury instructions and did not wish to tender additional instructions that

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could have included a self-defense instruction. Thus, he caused, or at least contributed to, the error he attributes to the circuit court. See id. Relying exclusively on the lack of objection to the jury instructions, the State contends this Court should end its analysis and refuse to review for plain error based on this factor alone because Burkett waived, or invited, the circuit court's error. While compelling, this argument mischaracterizes plain error analysis under Rule 30.20. In fairness to the State, this Court has used the term "waive," "waiver," or "invited error" with respect to plain error review when a defendant submits a defective instruction or fails to object to an instruction or set of instructions. See State v. Thompson, 711 S.W.3d 339, 348 (Mo. banc 2025) ("Although plain error review is discretionary, this Court will not use plain error to impose a sua sponte duty on the trial court to correct Defendant's invited errors." (quotation omitted)); State v. Jackson-Bey, 690 S.W.3d 181, 187 (Mo. banc 2024) ("Plain error review is waived when counsel has affirmatively acted in a manner precluding a finding that the failure to object was a product of inadvertence or negligence." (quotation omitted)); State v. Bolden, 371 S.W.3d 802, 806 (Mo. banc 2012) ("[T]he proffering of an incorrect instruction to the trial court is an invited error by the party who proffered the instruction."). 7 Although some of this Court's prior cases speak of waiving

7 This Court has also used these terms outside the context of instructional error. See, e.g., State v. Mills, 687 S.W.3d 668, 677 (Mo. banc 2024) (holding the Court will not use plain error to remedy an invited error after the defendant waived jury sentencing then requested plain error review because she was dissatisfied with the sentence imposed by the circuit court); State v. Mayes, 63 S.W.3d 615, 632 n.6 (Mo. banc 2001) (stating a defendant may not take advantage of a self-invited error after agreeing to a procedure at trial and later claiming it was error on the part of the circuit court).

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plain error review, these cases are merely articulating the discretion an appellate court exercises to decline review when a defendant affirmatively causes or contributes to an instructional error. This is consistent with Rule 30.20, which leaves the determination as to whether an appellate court conducts plain error review at its discretion – "plain errors affecting substantial rights may be considered in the discretion of the court . . . ." (Emphasis added). Burkett did not "waive" the right to seek plain error review by failing to object to the jury instructions nor did his failure to submit a self-defense instruction preclude him from requesting plain error review. Rather, Burkett's lack of an objection and failure to request a self-defense instruction are factors to consider when determining whether this Court exercises its discretion to provide plain error review under Rule 30.20. This Court recognized this common-sense interpretation of Rule 30.20 in State v. Wurtzberger, 40 S.W.3d 893 (Mo. banc 2001). In Wurtzberger, this Court held a defendant does not waive plain error review by inviting instructional error. Id. at 898. Specifically, this Court found the defendant did not waive plain error review by stating "no objection" to the jury instructions the circuit court proposed. Id. at 897-98. The Court held it may conduct plain error review in its discretion "if manifest injustice would otherwise occur." Id. at 898. Addressing the facts and circumstances of the case, the Court noted the law governing the case had changed after the circuit court entered judgment; therefore, although the defendant failed to object to the instruction submitted, the instruction was clearly erroneous based on the Court's decision in the interim. Id. at 897. Under those facts and circumstances, this Court said plain error

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review was justified. Id. at 898. This does not mean appellate courts must review all allegations of plain error. See Brandolese, 601 S.W.3d at 526. Rather, Wurtzberger merely stands for proposition that an appellate court retains discretion to review for plain error under Rule 30.20 when the facts and circumstances warrant. There are other factors supporting the Court's application of discretion to decline plain error review. Not only did Burkett fail to request a self-defense instruction and fail to object to how the jury was instructed, but self-defense was completely inconsistent with Burkett's theory of the case and the crux of his defense to the alleged charges. "Claims of instructional error are particularly ill-suited for plain error analysis when the decision not to object to the state's instructions may have been motivated by reasonable trial strategy." State v. Ess, 453 S.W.3d 196, 214 n.6 (Mo. banc 2015) (Wilson, J., concurring in part and

Burkett's defense relied on his lack of the requisite mental state to have committed the crime. Burkett claimed his gun was not loaded, and he wanted only to scare Victim by pointing the gun at him and pulling the trigger. In closing arguments, counsel for Burkett asserted Burkett "had no intention of causing physical injury. He knows the gun's unloaded. So the act of pointing it at [Victim] is simply to scare him, not to cause physical injury." Burkett's counsel argued the verdict-directing instruction for first-degree assault required finding Burkett intended to cause Victim serious physical injury when he pulled the trigger of the gun, and Burkett lacked such intent. At no time during closing arguments did Burkett raise the issue of self-defense. While Burkett may have injected the issue of self-defense when he testified during the trial, his testimony directly conflicted with his

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stated defense. Self-defense is a justification defense. Oates, 540 S.W.3d at 860-61; see also section 563.031.5. The defense would excuse or legally justify Burkett's use of intentional physical force. But a self-defense instruction would have undercut Burkett's stated defense that he never had the intent to commit assault. Burkett now argues because his testimony necessarily injected self-defense into the case, the jury lacked the tools to be able to apply the jury instructions to the testimony he provided without a self-defense instruction. While this may be true, the fact Burkett relied on a separate defense provides an additional factor justifying this Court exercising its discretion to decline review of Burkett's claim for plain error. Although Burkett may have been entitled to a self-defense instruction, his failure to request such instruction, coupled with his affirmative acquiescence to the instructions the circuit court submitted, justify this Court exercising its discretion to decline Burkett's request to review his claim for plain error. Moreover, Burkett relied on a separate, distinct defense that directly contradicted a self-defense instruction. Considering all these factors, the Court declines to review Burkett's claim for plain error and Burkett's first point on appeal claiming the circuit court erred in failing to give a self-defense instruction. Point II: Closing Argument Plain Error In his second point on appeal, Burkett argues the circuit court erred in not giving a curative instruction during the State's closing argument in which the State asserted the first-degree assault jury instruction did not require the State to establish Burkett acted with the intent to cause serious physical injury. He contends the State's arguments clearly contravened the State's required burden to establish the requisite intent to kill or cause

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serious physical injury in order to convict Burkett of first-degree assault. 8 While the circuit court may have had a responsibility to correct the State's misstatement of the law, this Court again exercises its discretion to decline review of Burkett's claim under Rule 30.20. Burkett is correct in his assertions. "Misstatements of the law are impermissible during closing arguments," and the circuit court "has a duty to restrain such arguments." State v. Anderson, 306 S.W.3d 529, 543 (Mo. banc 2010). This duty may include giving a curative instruction to the jury to disregard the improper argument. State v. Holmsley, 554 S.W.3d 406, 410-14 (Mo. banc 2018). Here, the State's argument clearly misstated the law in asserting the State need not prove one of the key elements of the crime of first- degree assault. Thus, the circuit court had a duty to correct this misstatement and may have, indeed, committed an evident, obvious, and clear error when it did not issue a curative instruction to the jury. Despite the possible existence of plain error, however, this Court again exercises its discretion not to review Burkett's claim. In reaching this result, the Court again considers various factors. First, Burkett never objected to the State's closing argument, and he did not request the curative instruction he now claims the circuit court should have provided the jury. In

8 Tracking the submitted verdict-directing instruction, section 565.050.1 states: "A person commits the offense of assault in the first degree if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to another person." Section 562.012.1 and the provided jury instruction, however, clarify the meaning of "attempt" as used in the statute: "Guilt for an offense may be based upon an attempt to commit an offense if, with the purpose of committing the offense, a person performs any act which is a substantial step towards the commission of the offense." (Emphasis added).

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this manner, Burkett caused or contributed to the error he alleges the circuit court committed, providing justification to decline plain error review. Second, Burkett's claim of error is not the type particularly well-suited to plain error review. Plain error review is rarely conducted of an alleged error committed during closing argument because withholding an objection to an improper argument is often a strategic decision made by counsel. Barton v. State, 432 S.W.3d 741, 754 (Mo. banc 2014); State v. Johnson, 284 S.W.3d 561, 573 (Mo. banc 2009); State v. Clemons, 946 S.W.2d 206, 228 (Mo. banc 1997). Just as claims of instructional error are particularly ill-suited for plain error review when counsel may have failed to object or request an instruction based on reasonable trial strategy, so too are claims of error in which counsel fails to object or request a curative instruction in response to an improper statement made during closing arguments. See Ess, 453 S.W.3d at 214 n.6 (Wilson, J., concurring in part and dissenting in part). There are numerous strategic reasons why counsel may not want to object or request a curative instruction based on a misstatement made during closing argument. The circuit court actions should not be reviewed for plain error when counsel may have elected not to react or draw attention to the alleged improper argument. This Court should not second-guess the circuit court when reasonable trial strategy may have led to the court's course of conduct. Because Burkett's claim of error is particularly ill-suited for plain error review, additional justification exists for this Court to exercise its discretion to decline review under Rule 30.20. Further, an improper closing argument rarely warrants reversal unless the improper argument had a decisive effect on the jury determination. State v. Wood, 580 S.W.3d 566,

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579 (Mo. banc 2019). When claims of improper arguments are made, the Court examines the entire record, not just an isolated segment in the closing argument, to determine if the improper argument detrimentally misled the jury. Id. Here, immediately following the State's misstatement of the law, the State continued with its closing argument, proclaiming: "Why do you aim a gun at something? We talked about it earlier today, to kill him, to harm him. That's what he was doing." Three more times, the State argued Burkett had the purpose to harm Victim, stating: The defendant knew what he was doing. He was attempting to harm him, attempting to cause serious physical injury. . . . . Why pull the trigger unless you're intending to kill or harm somebody? He even admitted to the deputy he did that, I was trying to load it after. . . . . You don't pull a gun and pull the trigger unless you know what you're doing. If you're trying to scare someone you brandish a gun. You don't pull the trigger. You know what you're doing. You don't aim it at their head. He knew what he was doing. We are just lucky it was a dud. The State's isolated comments misstated the law, but these misstatements must be considered in context with the rest of the State's closing argument. The State repeatedly argued Burkett attempted to injure or kill Victim. Given this context in which the State properly framed the issue of intent, there is no indication the State's misstatement misled the jury. Finally, jurors are presumed to follow the circuit court's instructions. State v. Gilbert, 103 S.W.3d 743, 751 (Mo. banc 2003). The circuit court properly instructed the jury it must find Burkett acted with the intent and purpose to cause serious physical injury

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when he pointed the gun at Victim and pulled the trigger. In addition, the circuit court properly instructed the jury to follow the jury instructions as given and that counsel's arguments are not evidence. Burkett has made no showing the improper argument had a decisive effect on the jury's understanding of the circuit court's instructions. Absent this showing, the presumption that the jury follows the instructions as given further compels this Court to decline to review Burkett's claim pursuant to Rule 30.20. While the circuit court may have erred by not correcting the State's improper argument, this error does not warrant plain error review. Considering all the facts and circumstances, this Court exercises its discretion and declines Burkett's request to review his final claim for plain error. Conclusion Having exercised the Court's discretion to decline plain error review, the circuit court's judgment is affirmed. ___________________________ W. Brent Powell, Chief Justice

All concur.