Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri once again reinforced the standard that a defendant is entitled to a jury instruction on a lesser included offense when he may be acquitted of a more serious offense and convicted on the lesser offense. Further, the court reemphasized that affirmative evidence is not required on the defendant’s part for such an instruction and that the jury may make any inferences from the evidence, even if that means believing some parts and disbelieving other parts of the evidence presented by either side.
I. Facts and Holding
The State of Missouri charged defendant Robert Williams with robbery in the second degree, a class B felony, on January 5, 2007.[2] The indictment filed was related to conduct on October 17, 2006, when Williams allegedly acted with another to forcibly steal money from victim Timothy Wagner.[3] During the trial, Williams maintained his innocence by testifying that he had witnessed his codefendant enter the victim’s apartment and take marijuana from the victim as part of a drug transaction.[4] Williams testified, however, that at no time did he see his codefendant forcibly take money or marijuana from the victim and at no time did he personally take or forcibly take anything from the victim.[5]At the close of all the testimony, the trial court held a jury instruction conference in which both parties submitted suggested jury instructions outside the presence of the jury.[6] Williams requested a jury instruction that included felony stealing, a lesser offense to robbery in the second degree.[7] The distinction between felony stealing and robbery in the second degree is that in the latter the State must prove the element of force, while in the former the State is not required to prove this element.[8] The State submitted a jury instruction with regard to robbery in the second degree.[9] In the end, the trial court decided to submit the State’s requested jury instruction to the jury, which did not include the lesser offense of felony stealing.[10]
After the jury instructions were given, the jury returned with a guilty verdict of robbery in the second degree.[11] After the trial, Williams was sentenced to 15 years imprisonment because of his status as a persistent felony offender.[12]
Williams subsequently appealed on the ground that the trial court erred when it refused to instruct the jury on the lesser included offense of felony stealing.[13] After hearing the case, the Supreme Court of Missouri held that it was error for the trial court to decline to offer Williams’ proffered instruction.[14] The court reasoned that, when there is a basis for acquitting a defendant of the higher offense and convicting him of the lesser offense, the defendant is entitled to a jury instruction on the lesser included offense regardless of whether or not this may require the jury to believe some parts of the defense’s or State’s evidence and disbelieve other parts.[15]
II. Legal Background
Missouri Revised Statute § 556.046.1 provides that: "A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when: (1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged . . . ."[16]
Several Missouri cases have established that stealing is in fact a lesser included offense of robbery in the second degree. For example, in State v. Ide,[17] the Missouri Court of Appeals for the Western District noted that “second degree robbery is made the greater offense of stealing by adding the element of ‘forcibly steals’, to the crime of stealing.”[18] That same court in 2003 reaffirmed this notion in State v. Patterson.[19]
Leading up to the current case, a plethora of case law addresses when a defendant is entitled to an instruction on a lesser included offense. Furthermore, Missouri Revised Statute § 556.046.3 provides that: "The court shall be obligated to instruct the jury with respect to a particular included offense only if there is a basis in the evidence for acquitting the defendant of the immediately higher included offense and there is a basis in the evidence for convicting the defendant of that particular included offense."[20]
Two key cases have established the standard that governs when a defendant is entitled to a jury instruction on a lesser included offense.[21] The Supreme Court of Missouri established the old standard that courts used for many years in State v. Olson.[22] However, this standard only lasted from 1982 until 1997, when it was overruled and redefined by the same court in State v. Santillan.[23]
In Olson, the defendant was charged with and convicted of assault in the first degree and appealed on the ground that the trial court erred in refusing to instruct the jury on assault in the second and third degree, both lesser included offenses of assault in the first degree.[24] The Supreme Court of Missouri held that the defendant was not entitled to an instruction on the lesser included offenses stating specifically that “section 556.046.2[25] limits the requirement of instructing down to those instances where there is some affirmative evidence of a lack of an essential element of the higher offense which would not only authorize acquittal of the higher but sustain a conviction of the lesser.”[26]
Fifteen years later, in Santillan, the court overruled Olson and set forth the standard that the courts use today.[27] The defendant in Santillan was charged with and convicted of first degree murder and armed criminal action.[28] He appealed his conviction contending that the trial court erred in declining to instruct the jury on the lesser included offense of murder in the second degree.[29] The court held that the defendant was entitled to the second degree murder instruction and noted that defendants are not required to put forth affirmative evidence to show a lack of an essential element in the higher offense.[30] Thus, it is enough that a reasonable juror could draw inferences from the evidence presented that an essential element of the higher offense is lacking, and no affirmative evidence is required of the defense in order to get an instruction on a lesser included offense.[31]
Further, the court in the instant case cited to State v. Pond[32] in its opinion.[33] The defendant in Pond was charged with statutory sodomy in the first degree within which child molestation in the first degree is a lesser included offense.[34] However, at trial the court declined to instruct the jury on that lesser included offense.[35] On appeal, the Supreme Court of Missouri held that the defendant was entitled to the instruction as “a defendant is entitled to an instruction on any theory the evidence establishes.”[36] Therefore, it is clear the courts have continued to adhere to the standard set forth by the Supreme Court of Missouri in Santillan.
In the instant case, the Supreme Court of Missouri held that while the defendant maintained his innocence throughout the trial, the jury was entitled to believe the state’s evidence that the defendant had in fact stolen from the victim while disbelieving the state’s evidence that force had been used.[37]
III. Comment
State v. Williams demonstrates that Missouri courts still adhere to the Santillan standard established over ten years ago regarding when a defendant is entitled to an instruction on a lesser included offense. Additionally, the case also stands for the proposition that a defendant may maintain his innocence as to the current charge while at the same time requesting that the jury be instructed as to a lesser included offense of that charge.
The important distinction between the standard used in Missouri prior to 1997 and the standard used currently is the requirement of affirmative evidence. The lack of such a requirement in the latter standard allows a defendant to use innocence as a defense and still submit to the jury an instruction on lesser included offenses. More importantly, it allows the jury more independence in that it gives the jurors the opportunity to believe some parts while disbelieving other parts of the same party’s evidence in order to reach the most appropriate result. This is essential for both the purpose of ensuring the autonomy of the jury as well as allowing a defendant a lesser included offense instruction when there is evidence to support it and to maintain his or her innocence at the same time.
-Lindsay A Ponce
[1] No. SC90501, 2010 WL 2103044 (Mo. banc 2010).
[2] Id at *1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at n.2.
[9] Id. at *2.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at *3-4.
[16] Mo. Rev. Stat. § 556.046.1 (West 2010).
[17] 933 S.W.2d 849 (Mo. App. W.D. 1996).
[18] Id. at 851.
[19] 110 S.W.3d 896, 901 (Mo. App. W.D. 2003) (noting that felony stealing is a lesser included offense of second degree robbery).
[20] Mo. Rev. Stat. § 556.046.3 (West 2010).
[21] See State v. Olson, 636 S.W.2d 318 (Mo. banc. 1982); see State v. Santillan, 948 S.W.2d 574 (Mo. banc. 1997).
[22] 636 S.W.2d 318 (Mo. banc 1982).
[23] 948 S.W.2d 574 (Mo. banc 1997).
[24] Olson, 636 S.W.2d at 319-20.
[25] “The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. An offense is charged for purposes of this section if: (1) It is in an indictment or information; or (2) It is an offense submitted to the jury because there is a basis for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense.” Mo. Rev. Stat. § 556.046.2 (West 2010).
[26] Olson, 636 S.W.2d at 322.
[27] Santillan, 948 S.W.2d at 574.
[28] Id. at 575.
[29] Id.
[30] Id. at 576.
[31] Id.
[32] 131 S.W.3d 792 (Mo. banc 2004).
[33] Williams, 2010 WL 2103044 at *5.
[34] Id. at 793.
[35] Id.
[36] Id. at 794.
[37] Williams, 2010 WL 2103044 at *3-4.
