The State initially counters that cases like State v. Boyd and State v. Hodge, in which this court declined to exercise plain error review over failures to give a mandatory instruction, preclude any plain error review here. SeeBoyd, 600 S.W.2d 97, 100 (Mo.App.E.D.1980); Hodge, 660 S.W.2d 400, 401 (Mo.App.S.D.1983). Insofar as those cases stood for the proposition that failing to object to instructional error at trial precludes any appellate review, they have clearly been supplanted by State v. Wurtzberger.
The State initially counters that cases like State v. Boyd and State v. Hodge, in which this court declined to exercise plain error review over failures to give a mandatory instruction, preclude any plain error review here. SeeBoyd, 600 S.W.2d 97, 100 (Mo.App.E.D.1980); Hodge, 660 S.W.2d 400, 401 (Mo.App.S.D.1983). Insofar as those cases stood for the proposition that failing to object to instructional error at trial precludes any appellate review, they have clearly been supplanted by State v. Wurtzberger.
While the jury heard the first third of the verdict-directing instruction four times, the first two-thirds three times, and the entire instruction twice, we find no harm to appellant, as the trial court made it painstakingly clear to the jury that he was attempting to give a correct instruction, that changes had to be made to accomplish that goal, and that appellant and her lawyer were not at fault. In State v. Hodge, 660 S.W.2d 400 (Mo.App. 1983), the trial court discovered during closing arguments of counsel that it had omitted a paragraph in a required instruction. The trial court called the omission to the lawyers' attention, read the omitted paragraph to the jury, and corrected the written instruction which went to the jury.
In the case at bar, the instruction given to the jury was also a definition that favored neither appellant nor the state. In State v. Hodge, 660 S.W.2d 400 (Mo. App. 1983), the initial omission of a paragraph from the instructions was corrected by the court's reading of the omitted paragraph before any possible harm was done. This correction was made during closing argument.