State v. Zuidema, 552 S.W.3d 186

Zuidema, without a valid driver's license, drove home on rural "scenic" roads in a malfunctioning car to avoid traffic and being stopped. Her car stalled on a rural driveway; she lost reliable cell service and entered the occupied house because a light was on.
Inside, she used the home phone, plugged in her cell charger, put on pajama bottoms found there, drew a bath, made tea, and ran the washing machine; homeowners were away and later discovered some items moved or missing.
The homeowners’ nephew discovered a stranger and summoned family; Zuidema was encountered on the driveway when the parents arrived and the police arrested her shortly thereafter.
Zuidema was charged with two alternative counts of second-degree burglary (entering or remaining unlawfully with intent to steal) and stealing; acquitted of one burglary count and stealing, convicted of the alternative burglary count (knowingly remaining unlawfully in an inhabitable structure with intent to steal).
At trial, defense sought a jury instruction on justification by necessity (emergency) under Mo. Rev. Stat. § 563.026; the trial court refused. Zuidema appealed, arguing the evidence (taken as true) legally supported the necessity instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing a justification-by-necessity instruction under § 563.026	Zuidema: her testimony showed imminent risk of hypothermia and her use of the house (tea, pajamas, charger, bath, washer) was proportionate and unavoidable	State: Zuidema’s emergency was self-created; she had legal alternatives (call for help, request ride, call tow, not use property) so necessity is not available	Court: No error — facts legally insufficient for necessity instruction because danger was occasioned by defendant’s own choices and legal alternatives existed

State v. Nash, 339 S.W.3d 500 (Mo. banc 2011) (reversal for instructional error requires prejudice that deprived defendant of fair trial)
State v. Avery, 275 S.W.3d 231 (Mo. banc 2009) (standards for instructional error review)
State v. Anderson, 306 S.W.3d 529 (Mo. banc 2010) (instructional error precedents)
State v. Cox, 248 S.W.3d 1 (Mo. App. W.D. 2008) (elements of necessity defense summarized)
State v. Stewart, 186 S.W.3d 832 (Mo. App. S.D. 2006) (necessity elements articulated)
State v. Baumruk, 280 S.W.3d 600 (Mo. banc 2009) (review evidence in light most favorable to verdict)
State v. Karr, 968 S.W.2d 712 (Mo. App. W.D. 1998) (when testing refusal to instruct on necessity, court assumes defendant’s testimony true)
State v. Owen, 748 S.W.2d 893 (Mo. App. W.D. 1988) (precedent for assuming defendant’s testimony in instruction-review)