From the Circuit Court of Jasper County; Criminal Appeal; Judge Herbert C. Casteel.
Motion for Rehearing Overruled, Transfer Denied August 16, 1983. Application Denied September 20, 1983.
Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.
The opinion of the court was delivered by: Crow
Appellant, tried as a prior offender, § 558.016, RSMo 1978, as amended by Laws 1981, p. 636, was found guilty by a jury of robbery in the first degree, § 569.020, RSMo 1978, and sentenced by the trial court to 12 years' imprisonment. His sole contention here is that the trial court erred in failing to instruct on robbery in the second degree, § 569.030, RSMo 1978, and stealing, § 570.030, RSMo 1978, as amended by Laws 1981, p. 638, as lesser-included offenses.
Each side submitted instructions to the trial court. Rule 28.02(b). *fn1 At the instructions conference, Rule 27.92(k), the trial court advised counsel that all requested instructions would be given. The only verdict directing instruction requested was on robbery in the first degree, submitted by the State. The trial court ended the conference asking, "Either counsel have any additions?"
Appellant's counsel answered, "No, sir."
State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982) squarely holds that except in homicide cases, a defendant may not complain on appeal about a trial court's failure to give a lesser-offense instruction unless the defendant requests it specifically. Appellant failed to request either instruction he now says the trial court should have given. Olson forecloses appellant's complaint. *fn2
Greene, C.J., Flanigan, P.J., and Titus, ...