LEONARD BURST JR v. STATE OF MISSOURI (2026)

Introduction

Leonard H. Burst, Jr. (Burst) appeals from the motion court's judgment denying his Rule 29.15 amended motion for post-conviction relief (PCR).¹ Burst raises three points on appeal, each alleging ineffective assistance of his trial counsel (Trial Counsel). In Points One and Two, Burst argues Trial Counsel was ineffective for failing to request and submit jury instructions on general self-defense and self-defense under the castle doctrine. In Point Three, Burst claims Trial Counsel was ineffective for failing to properly object to State's Exhibit 38, an approximately one-minute and twenty-one second video of Burst threatening a police sergeant a few hours after the charged events. Because Trial Counsel employed a reasonable trial strategy by negating the element of force in each charged offense, he was not ineffective for failing to request and submit self-defense instructions. Hence, we deny Points One and Two. Because Burst previously litigated the relevance of Exhibit 38 on direct appeal and this Court found no error, it may not be reviewed here. We dismiss Point Three. Accordingly, we affirm the motion court's judgment.

Factual and Procedural Background

Evidence at Trial

Burst and his ninety-year-old mother (Mother) lived together. On October 6, 2020, Mother received a phone call from an individual selling tickets to Disney World and she provided the caller with her credit card information. Burst overheard this phone call and he became upset. Burst yelled in Mother's face telling her she was being scammed and to quit letting people do this to her, which frightened Mother.

Mother drove herself away from the house and called the Missouri Department of Health and Senior Services (MDHSS) to ask for somewhere she could spend the night away from Burst. After receiving Mother's call, MDHSS sent investigator Lori Meyer (Meyer) to meet with Mother. Meyer, following standard procedure, called Sherriff's Deputy Trevor Green (Deputy Green) for assistance. Meyer and Deputy Green decided it would be best if all three of them returned to Burst's home. Meyer, Deputy Green, and Mother all traveled back to the home in their individual vehicles.

Once inside, Meyer and Deputy Green informed Burst of their desire to speak with him about what happened between him and Mother earlier that day. Burst asked Mother if earlier she had provided her credit card information to the caller on the phone and she said yes. Burst told Mother she probably lost her money. During this exchange, Mother walked past Meyer and Deputy Green and left the room to go take a shower. Burst told Deputy Green and Meyer to leave his house three times and refused to answer any questions.

Burst testified that upon Deputy Green giving him the ‘evil eye’ and putting his hand on his hip, near Deputy Green's firearm, Burst grabbed a 9-millimeter Taurus semiautomatic handgun and put it into his back pocket. Burst told Deputy Green that he was “arming [himself] for [his] protection,” and “don't do anything else stupid. You could get popped here.” Burst testified he feared Deputy Green was going to escalate the situation by pulling out his gun. Burst testified he intended to get the gun and tell Deputy Green he might get “popped” to warn him not to break another one of his rights and not to become more aggressive with him. Burst told Deputy Green and Meyer to “[g]et the fuck out of [his] house. And stay the fuck out.” Deputy Green responded, “[y]ou're going to be sorry you touched that gun.” Deputy Green said he and Meyer would leave and they did so. However, Mother remained in the home.

Concerned for Mother's safety, Deputy Green called for backup and informed Staff Sergeant Jeff Dorenkamp (Sergeant Dorenkamp) of the situation. Sergeant Dorenkamp evacuated the neighbors, shut down the nearby highway, and placed other officers around the house. Sergeant Dorenkamp then called Burst and asked him to allow Mother to leave the home. Burst eventually complied and Mother safely made it to one of the officers’ patrol cars. Burst, becoming increasingly frustrated with the encounter, threatened to kill Sergeant Dorenkamp's family and used several vulgar insults toward Sergeant Dorenkamp and law enforcement in general. Following multiple attempts by law enforcement to coax Burst out of the house, he eventually surrendered and the police arrested him. At no point did Burst aim the firearm at anyone.

The State charged Burst with two counts: (1) unlawful use of a weapon, and (2) fourth-degree assault. At trial the State sought to admit Exhibit 38, a video depicting Burst's threats to Sergeant Dorenkamp and his family. Sergeant Dorenkamp testified that the video fairly and accurately depicted his interaction with Burst, and the video was admitted into evidence. After the video's admission, Trial Counsel objected on the grounds of foundation as Sergeant Dorenkamp did not film the video, did not know who filmed the video, and did not know if the video was edited. The trial overruled the untimely objection and the video was published to the jury.

Trial Counsel's opening statement in reference to Burst's use of the weapon averred that “at the conclusion of all the evidence, we are confident that you will decide it was not a threat, it was a warning and a demand, and that it was ignored.” (emphases added). During closing argument, Trial Counsel stated, “because [Burst] gets close enough to reach that gun and put it in his pocket, because the message he's saying, the warning he's saying, I have a gun too.” (emphases added). Additionally, Trial Counsel argued in closing, “[Deputy Green] is in [Burst's] house, and [Burst] has a right to tell [Deputy Green], [Burst] has a right to tell him, get out, just as if he was a trespasser.” (emphases added). The jury convicted Burst of both counts. The trial court sentenced Burst to four years’ imprisonment for Count One and six months’ imprisonment for Count Two. Burst directly appealed the trial court's judgment and sentence.

Direct Appeal

On direct appeal, this Court exercised plain error review in analyzing Burst's unpreserved claims that the State failed to properly lay a foundation for Exhibit 38 and the relevance of the video. This Court found the foundation for admission was proper and held that the video was also relevant as it provided a complete picture surrounding the charged crimes. State v. Burst, 712 S.W.3d 429, 436–443 (Mo. App. E.D. 2025).

Post-Conviction Review Proceedings

Burst's PCR counsel timely filed an amended PCR motion and requested an evidentiary hearing. On September 24, 2025, the motion court entered its judgment denying Burst's amended PCR motion without an evidentiary hearing. The motion court found no substantial evidence to support Burst's use of force—retrieving the firearm and threatening to “pop” Deputy Green—was reasonably necessary for Burst to defend himself from what he reasonably believed to be the use or imminent use of unlawful force. This appeal follows.

Standard of Review

“Appellate review of the [motion] court's action on the motion filed under this Rule 29.15 shall be limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.” Flaherty v. State, 694 S.W.3d 413, 416 (Mo. banc 2024) (quoting Rule 29.15(k)). “Appellate courts presume the motion court's findings are correct and a judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Id. (internal quotation and quotation marks omitted). “A movant has the burden to show by a preponderance of the evidence that the motion court clearly erred in its ruling.” Robinson v. State, 709 S.W.3d 413, 415 (Mo. App. E.D. 2025) (citing Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009)). “A movant is entitled to an evidentiary hearing only if: (1) he pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to movant.” Davis v. State, 622 S.W.3d 721, 726 (Mo. App. E.D. 2021) (citing McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012)).

Analysis

Points One and Two: Trial Counsel was not ineffective for declining to request or submit general self-defense and castle doctrine instructions because Trial Counsel employed a reasonable trial strategy

Burst claims he was entitled to jury instructions on general self-defense and the castle doctrine and that his Trial Counsel's failure to request these instructions rendered his performance deficient. Burst also alleges that Trial Counsel's deficient performance prejudiced the outcome of the trial. We disagree because Trial Counsel followed a reasonable trial strategy.

For claims of ineffective assistance of counsel, a movant must meet the two-prong test laid out in Strickland v. Washington, 466 U.S. 668, 687 (1984). “The movant must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant.” Sanders v. State, 652 S.W.3d 258, 266 (Mo. App. W.D. 2022) (citing Strickland, 466 U.S. at 687). “If a movant fails to satisfy either element of the test, they are not entitled to relief.” Robinson, 709 S.W.3d at 416. “The movant must overcome the strong presumption that trial counsel's conduct was reasonable and effective.” Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019) (internal quotation omitted). “An attorney's performance is deficient when it fails to rise to the level of skill that would be exercised by a reasonably competent attorney under similar circumstances.” Hounihan v. State, 592 S.W.3d 343, 347 (Mo. banc 2019) (internal quotation and quotation marks omitted). “Counsel has no duty to request an instruction that would undermine the defense theory presented at trial.” Jones v. State, 514 S.W.3d 72, 81 (Mo. App. E.D. 2017) (internal citation omitted). Trial counsel is entitled to “use their judgment and experience to determine if pursuing a defense is reasonable under the facts of the case.” Spradling v. State, 708 S.W.3d 185, 195 (Mo. App. S.D. 2025) (internal citation omitted). The Missouri Approved Instructions for both general self-defense and self-defense under the castle doctrine require the defendant to argue force was used. See Missouri Approved Instructions-Criminal (MAI-CR) 4th 406.06 and 406.10.

The State provides multiple reasons why Burst was not entitled to instructions on general self-defense and castle doctrine self-defense. We primarily address the argument that Trial Counsel employed a reasonable trial strategy by not requesting either instruction as it is the most pertinent to the resolution of this appeal.² We note the State asks this Court to find Burst abandoned both Points One and Two because his appellate brief failed to tie the legal principles to the facts of the case. Preliminarily, we find Burst did not abandon these points.³ Because Trial Counsel employed a reasonable trial strategy by negating the element of force in each charged offense, we hold that Trial Counsel—in not requesting general self-defense and castle doctrine instructions—was not ineffective.

A defendant may argue self-defense, which requires the use of force, against charges of unlawful use of a weapon and fourth-degree assault. “A person commits the offense of unlawful use of weapons ․ if he or she knowingly: (4) [e]xhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner[.]” Section 571.030.1(4) (emphasis added).⁴ Section 571.030.5 specifically states “Subdivisions (3), (4), (5), (7), (8), (9), and (10) of subsection 1 of this section shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031 [Missouri's self-defense statute].” (emphasis added).

“A person commits the offense of assault in the fourth degree if: ․ (3) [t]he person places another person in apprehension of immediate physical injury.” Section 565.056.1(3), RSMo (2016) (emphasis added); see State v. Epenesa, 691 S.W.3d 353, 357–58 (Mo. App. S.D. 2024) (addressing defendant's self-defense argument against a fourth-degree assault charge). Under general self-defense, a person has the right “to use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself ․ from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person ․.” State v. Straughter, 643 S.W.3d 317, 321 (Mo. banc 2022) (quoting Section 563.031.1, RSMo (2016)). Missouri's castle doctrine which may be triggered by an aggressor's unlawful entry or remaining unlawfully in a dwelling, “allows for the use of deadly force to defend against any unlawful force, which is a significantly lower threshold, provided the other elements are satisfied.” State v. Clement, 661 S.W.3d 396, 404 (Mo. App. E.D. 2023) (citing Straughter, 643 S.W.3d at 326–27) (emphasis in original). The other elements of self-defense under the castle doctrine are those applicable to general self-defense. Straughter, 643 S.W.3d at 322 n.7.

In the case at bar, Burst's Trial Counsel was not ineffective in declining to request a general self-defense instruction or a castle doctrine instruction because Trial Counsel followed a reasonable trial strategy by negating the element of force in both charged offenses. In both his opening and closing, Trial Counsel stated Burst only wanted to give Deputy Green a warning, a demand, or a message—not a threat. To pursue this strategy was reasonable as Burst did not point the gun at anyone and Trial Counsel argued that his actions were not meant to be a threat.⁵ If Trial Counsel had requested a general self-defense or castle doctrine instruction, such a request would have conflicted with this theory of the case as it would concede Burst used force. See MAI-CR 4th 406.06; see also MAI-CR 4th 406.10; see also Thomas v. State, 715 S.W.3d 161, 165 (Mo. App. E.D. 2025) (finding trial counsel was not ineffective for not requesting an imperfect self-defense instruction because trial counsel arguing for such an instruction would conflict with a viable self-defense claim.) Therefore, we deny Points One and Two.

Point Three: Trial Counsel was not ineffective for failing to object on relevance grounds to State's Exhibit 38 because this Court already reviewed this claim on direct appeal and found no error

Burst in his third Point asserts Trial Counsel was ineffective for not objecting to State's Exhibit 38 on relevance grounds. The State argues Burst cannot relitigate this issue on appeal because this Court already decided it was not an error on direct appeal. We agree with the State and find that Burst cannot reassert issues already reviewed and found non-erroneous on direct appeal.

“It is well established that issues decided on direct appeal may not be relitigated in a PCR motion under a theory of ineffective assistance of counsel; a Rule 29.15 motion cannot be used to obtain review of matters which were or should have been raised on direct appeal.” Voss v. State, 570 S.W.3d 184, 197 (Mo. App. E.D. 2019) (internal citations, quotation marks, and alterations omitted). An appellate court's ability to examine unpreserved claims made in a PCR motion that were also made on direct appeal depends on how the court resolved the issue on direct appeal. See King v. State, 682 S.W.3d 853, 860 (Mo. App. S.D. 2024). An appellate court may resolve an unpreserved error on direct appeal in one of five ways:

1. The court may simply decline to exercise its discretionary authority to review the plain error.

2. The court may conduct plain error review and conclude that no error occurred at all.

3. The court may conduct plain error review and conclude that an error occurred, but it was harmless and caused no prejudice to the appellant.

4. The court may conduct plain error review and conclude that a prejudicial error occurred but deny relief because the prejudice to appellant does not rise to the level of a manifest injustice or miscarriage of justice.

5. The court may conduct plain error review and grant relief because the error caused manifest injustice or miscarriage of justice to occur.

Id. (quoting Shifkowski v. State, 136 S.W.3d 588, 590–91 (Mo. App. S.D. 2004)). A movant may relitigate claims that fall under the fourth category or litigate claims for the first time under the first category. Id. at 861 (internal citations omitted). However, a movant may not relitigate claims under the second or third category. Id. (internal citations omitted).

Here, the motion court did not err in denying Burst's claim that Trial Counsel should have objected on relevance grounds to Exhibit 38 because this Court already decided this issue on direct appeal. Under plain error review, this Court found Exhibit 38 relevant as it provided a complete picture of Burst's behavior surrounding the charged crimes. Burst, 712 S.W.3d at 438–39. Burst's claim falls under the second category which prevents him from relitigating the issue again in this appeal. See Shifkowski, 136 S.W.3d at 591–92 (declining to examine an unpreserved claim in the second category). Thus, we dismiss Point Three.

Conclusion

The judgment of the motion court is affirmed.

FOOTNOTES

1.   Under Rule 29.15(m), we apply the version of Rule 29.15 effective at the time of Burst's sentencing, which was on February 2, 2024. All Rule references are to Mo. R. Crim. P. (2023), unless otherwise noted.

2.   In its brief, the State contends Burst could not have raised a general self-defense instruction because he did not use force as Burst never fired the gun or even pointed the gun at anyone. The State cites to the Supreme Court of Missouri for the proposition that “self-defense justifies only the use of force, it is a defense only to prosecution for the defendant's use of force.” State v. Oates, 540 S.W.3d 858, 862 (Mo. banc 2018) (citing Sections 563.031.1, 563.074.1). Also, the State directs us to our constitutional duty to follow the most recent controlling decision of the Supreme Court. State v. Brightman, 388 S.W.3d 192, 199 (Mo. App. W.D. 2012) (internal quotation omitted); MO. CONST. art. Five, Section Two. However, the Supreme Court has also “held that unlawful use of a weapon by exhibiting it in an angry or threatening manner constitutes ‘deadly force’ for purpose of such justification defenses.” State v. Cummings, 514 S.W.3d 110, 116 n.8 (Mo. App. W.D. 2017) (citing State v. Parkhurst, 845 S.W.2d 31, 36 (Mo. banc 1992)) (internal citations omitted). “Generally, [the Court of Appeals] presumes, absent a contrary showing, that an opinion of the [Supreme] Court has not been overruled sub silentio.” State v. Shegog, 633 S.W.3d 362, 366 (Mo. banc 2021) (internal quotation omitted). The Supreme Court has not overruled Parkhurst expressly or sub silentio and the jury convicted Burst of unlawful use of a weapon satisfying the use of force requirement.

3.   The State argues Burst's appellate brief does not tie the facts to the requirements of the self-defense statute. For this failure, the State asks this Court to summarily deny Burst's Points One and Two. See State v. Robinson, 707 S.W.3d 60, 63 n.7 (Mo. App. W.D. 2025) (internal quotation omitted) (“When an appellant fails to cite relevant case law and explain how it applies to the applicable acts, we deem the point abandoned.”). Although Burst does not outline the elements of the self-defense statute, “this Court prefers to decide cases on the merits where an appellant's argument is readily understandable.” State v. Blacksure, 690 S.W.3d 629, 634 (Mo. App. S.D. 2024) (internal quotation and alterations omitted). We therefore deny the State's request.

4.   All references are to RSMo Cum Supp. (2023), unless otherwise indicated.

5.   Burst telling Deputy Green “[y]ou could get popped here” certainly can be found to be a threat, which the jury found at trial. See State v. Brooks, 446 S.W.3d 673, 676–77 (Mo. banc 2014) (finding a defendant threatened a bank teller by passing a note demanding money, slamming his hand on the counter and telling the teller to return to her station to pull money out of the drawer in front of her). Trial Counsel, however, argued it was not a threat and the jury was welcome to reject this claim.

Rebeca Navarro-McKelvey, Presiding Judge

Gary M. Gaertner, Jr., Judge and James M. Dowd, Judge, concur.