APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS. The Honorable Michael F. Stelzer, Judge.
Paul C. Wilson, Judge. Russell, C.J., Fischer and Teitelman, JJ., concur; Stith, J., concurs in part and dissents in part in separate opinion filed; Breckenridge, J., concurs in opinion of Stith, J.; Draper, J., dissents in separate opinion filed; Stith, J., concurs in opinion of Draper, J.
Paul C. Wilson, Judge.
The question presented in this case is whether the trial court can refuse to give a lesser included offense instruction requested by the defendant under section 556.046 when the lesser offense consists of a subset of the elements of the charged offense and the differential element (i.e., the element required for the charged offense but not for the lesser offense) is one on which the state bears the burden of proof. The answer, unequivocally, is no.
Here, a jury found Denford Jackson guilty of robbery in the first degree. The trial court declined to instruct the jury on second-degree robbery, as Jackson requested. A lesser included offense instruction was not required, the trial court held, because there was no basis in the evidence for a reasonable juror to determine that the victim did not reasonably believe that Jackson was holding a gun to her back throughout the robbery. This was error. A jury always can disbelieve all or any part of the evidence, just as it always may refuse to draw inferences from that evidence. Accordingly, in a criminal case, the trial court cannot refuse a defendant's request for this type of " nested" lesser offense instruction based solely on its view of what evidence a reasonable juror must believe or what inferences a reasonable juror must draw.
Here, there was a basis in the evidence for the jury to find that the victim did not reasonably believe Jackson held a gun on her because the jury did not have to believe any of the evidence and did not have to infer that the victim believed anything, reasonably or otherwise. To put it simply, evidence never proves any element until the jury says it does. Accordingly, Jackson's robbery conviction is vacated, and the case is remanded.
The jury found that Jackson entered a coffee shop on the morning of August 27, 2009, loitered in the store for several minutes, and then robbed the store's cash register while holding a gun on the employee. The only people in the shop at the time of the robbery besides the employee were two customers, JS and SS. All three testified in the state's case at trial.
Jackson entered the coffee shop through the dining area, walked toward the table where JS and SS were seated, and had a short conversation with SS. Neither JS nor SS noticed whether Jackson had a gun, though JS noticed that he kept his hand in his pocket all the time SS was speaking with him. After his brief conversation with SS, Jackson crossed over to the convenience store side of the shop where the cash register was located.3
Neither JS nor SS noticed where Jackson went when he left the dining area, but they both soon noticed that he was standing close behind the employee at the cash register behind the counter. Again, neither could see whether Jackson had a gun, but they could see Jackson only from behind
and from the waist up. Though SS thought they were counting money out of the cash register, she could not hear what either was saying. Neither customer saw Jackson leave or knew that anything untoward had occurred until the employee ran out of the kitchen saying she had been robbed.
The employee testified that she was in the kitchen when the incident began and did not notice Jackson until he came through the door behind the cash register counter. It was not unusual for customers to come into the kitchen looking for the dining area, so the employee approached Jackson to provide directions. When she got near him, he grabbed her arm and turned her around until she was heading back out the door toward the cash register.
I felt something in my back. Looked down and it was a gun, and he said -- exactly I don't know what it was. Basically, take me to the drawer.... I looked down and I could see it after I had looked down and he guided me forward.... I saw it. Not a super long barrel but a six-inch barrel, silverish.... It was a revolver.
After the employee gave Jackson the money from the cash register, he took her back into the kitchen, made her lie down, patted her pockets looking for additional money, and then exited the shop through the door on the market side. As soon as she heard the door open and close, the employee yelled for help. She tried to telephone the police but had to have JS and SS help her because her hands were shaking too badly to dial her phone.
In addition to the foregoing testimony from the employee and the two customers, the state introduced videos of the incident taken from multiple angles by the coffee shop's video surveillance system. These videos show Jackson entering the shop with one hand in his pocket, stopping for a minute or less near SS, and then moving into the empty market side of the shop. There, Jackson is seen looking around, taking something out of his pocket, examining it, and then entering the kitchen through the door behind the cash register counter. Seconds later, the employee is seen coming out of the kitchen with Jackson pressed firmly behind her. He is holding the employee with one hand, and his other hand is holding an object against the small of her back. Jackson's head is close to, and along side of, the employee's head so he can see where she is going. He directs her behind the counter and over to the cash register.
After the employee hands Jackson the money from the cash register, he and the employee are seen emerging from behind the counter. The employee turns right, away from the kitchen, but Jackson plainly expects her to turn left into the kitchen. As a result, for the only time in any of the videos, the two are separated by more than a couple of inches. Jackson is seen extending his arm fully to keep the object in his hand (which, at that point, is plainly visible) shoved firmly against the small of the employee's back. Jackson again grabs the employee with his other hand, turns her toward the kitchen and closes up next to her again. There is no camera in the kitchen, but a camera in the dining area points through the partially open door to the kitchen. This captures Jackson reentering the kitchen with the employee, putting her on the kitchen floor, patting her pockets as though looking for money, and then leaving through the market area.
A police detective viewed these videos during his testimony as well as enlargements of individual frames from those videos. He testified that, in several shots, he could see that Jackson is holding a small, dark blue or black pistol to the employee's back. In addition, when the video shows
Jackson taking something out of his pocket and inspecting it before first entering the kitchen to grab the employee, the detective testified that these gestures distinctly are those of someone checking a revolver to see if it is loaded. In other words, the detective testified that it looked to him as though Jackson was releasing the cylinder to swing it out and to the left, spinning the cylinder, and then reseating it in front of the hammer. Though the detective admitted on cross-examination that it was possible that " a person could pull something out that appears to be a gun to you on this blurry video but [it] could be a cell phone," the detective did not admit it was possible that this video shows Jackson holding a cell phone and not a gun. Instead, the detective noted that people do not check to see if their cell phone is loaded right before committing a crime.
At the close of the evidence, Jackson's counsel requested that the trial court instruct the jury on both second-degree robbery and first-degree robbery, the crime with which Jackson was charged. The only difference between these two instructions is that a conviction of first-degree robbery requires the jury to find the following element, but a conviction for second-degree robbery does not:
[T]hat in the course of taking the property, the defendant displayed or threatened the use of what appeared to be a deadly weapon or dangerous instrument.
Compare § § 569.020 and 569.030, RSMo 2000.
In support of his request that the jury be instructed on second-degree robbery, Jackson's counsel argued:
[T]he argument is that in the video there is evidence to dispute or refute her testimony that there was, in fact, a gun; therefore, the jury could take that video evidence and not only disbelieve her that she believed there was a gun. They may believe that she was completely mistaken, and therefore it was not a reasonable belief. There was no testimony that there was a threat I had a gun or statements such as there is a gun. The only evidence that there was a gun is [the employee's] testimony that she looked down for a split second and saw a gun. I think that the video refutes that. I think therefore we are entitled to an instruction on robbery in the second degree. [Emphasis added].
The trial court refused to instruct the jury on the lesser included offense of robbery in the second degree, stating " if I were to submit it here then I'd have to submit it every time there's a robbery first brought, and I don't think that that's the law." After viewing the videos and still photos of the crime during its deliberations, the jury found Jackson guilty of robbery in the first degree.
Jackson moved for a new trial based, in part, on the trial court's failure to instruct
on second-degree robbery. The court overruled this motion and sentenced Jackson to concurrent 30 and 10-year sentences for the robbery and armed criminal action convictions, respectively. Jackson timely filed this appeal, and this Court has jurisdiction over the matter. See Mo. Const. art. V, § 10. Jackson's judgment of conviction on both counts is vacated, and the case is remanded.
II. Standard of review
This Court reviews de novo a trial court's decision whether to give a requested jury instruction under section 556.046, RSMo Supp. 2002, and, if the statutory requirements for giving such an instruction are met, a failure to give a requested instruction is reversible error. State v. Derenzy, 89 S.W.3d 472, 475 (Mo. banc 2002).
Jackson concedes that the evidence in this case was sufficient to support the jury's verdict that he was guilty of first-degree robbery. The employee testified that he held a gun on her, and, if the jury believed her testimony beyond a reasonable doubt, her testimony was sufficient to convict Jackson of first-degree robbery.
Rather than argue that the evidence was insufficient to convict him of first-degree robbery, Jackson claims that the evidence also was sufficient to convict him of second-degree robbery and, therefore, the trial court erred in refusing to instruct the jury on that lesser included crime. His claim is based solely on section 556.046, and he asserts no state or federal constitutional right to this lesser included offense instruction. Accordingly, the analysis of Jackson's claim begins with the statutory language:
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....
Although this Court generally relies only on the foregoing section 556.046.2 to
analyze claims involving lesser included offense instructions, see, e.g., State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004); State v. Thomas, 161 S.W.3d 377, 380 (Mo. banc 2005), this statute was amended in 2001 to include an entirely new subsection addressing this same subject:
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.
§ 556.046.3, RSMo.
Despite the addition of subsection 3 and its emphasis that a lesser included offense instruction must be justified by a " basis in the evidence ," § 556.046.3 (emphasis added), this Court's interpretation of section 556.046 did not change after 2001. See State v. Williams, 313 S.W.3d at 659 n.5 (Mo. banc 2010) (quoting both subsections without noting any substantive difference between the two). Accordingly, the Court views these statutory provisions as interchangeable for purposes of whether the trial court is obligated to give an instruction on a first-level lesser included offense, and they provide that a trial court is obligated to do so when each of the following requirements is met:
a. a party timely requests the instruction; 
b. there is a basis in the evidence for acquitting the defendant of the charged offense; and
c. there is a basis in the evidence for convicting the defendant of the lesser included offense for which the instruction is requested.
In this case, there is no dispute about the first requirement. And, because the elements of second-degree robbery are a subset of the elements of first-degree robbery, there is no dispute about the third requirement. The outcome of Jackson's appeal, therefore, depends solely on the second requirement, i.e., whether there was a basis in the evidence for acquitting him of first-degree robbery.
For there to be a basis in the evidence to acquit Jackson of first-degree robbery and yet convict him of second-degree robbery, there must be a basis in the evidence for concluding that the state failed to prove the one element that separates the two crimes. Here, that differential element
is whether the employee reasonably believed the object Jackson held against her back throughout the robbery was a gun. Accordingly, Jackson can only show that the trial court erred if there was a basis in the evidence to conclude that the employee had no such belief or that it was not reasonable.
Jackson argues that a sufficient basis in the evidence is established by the surveillance videos and the discrepancy between the employee's testimony that Jackson's gun was " silverish" and the detective's testimony that it was dark-blue or black. The state responds that, at most, this evidence disputes only whether Jackson actually held a gun on the employee, not whether she reasonably believed he was holding a gun on her. The state's position is correct, but immaterial.
What matters here is not whether Jackson actually displayed or threatened to use a gun, but whether the object that Jackson plainly did display (and that Jackson plainly did use or threaten to use) appeared to the employee -- subjectively, but reasonably -- to be a gun. Defense counsel did not identify any evidence refuting (or offer any argument why the state's evidence did not show) that the employee believed Jackson held a gun on her and that her belief was reasonable. Instead, he merely stated that the jury could choose to believe that the employee " was completely mistaken [about seeing a gun] and therefore it was not a reasonable belief."
Even though the state's logic is correct, its argument is immaterial. The essence of the state's contention is that the jury's right to disbelieve all or part of the state's evidence cannot, by itself, constitute a " basis in the evidence" to acquit the defendant of the greater (or charged) crime for purposes of section 556.046. This Court disagrees. For support, the state quotes State v. Olson, 636 S.W.2d 318 (Mo. banc 1982):
The key phrase of that section is " a basis for a verdict". It could be argued that the jury's disbelief of the evidence necessary to establish an element of the greater offense is such a basis. However, such a construction would require an instruction on a lesser included offense in the vast majority of cases.... Even if the jury were to " disbelieve some of the evidence of the State, or decline to draw some or all of the permissible inferences, (this) does not entitle the defendant to an instruction otherwise unsupported by the evidence, on the issue of accidental homicide pursuant to § 559.050,...." Achter, 448 S.W.2d at 900. It has consistently been held that an instruction on a lesser included offense is required only where there is evidence with probative value which could form the basis of an acquittal of the greater offense and a conviction of the lesser included offense.
Id. at 321 (emphasis added). But Olson is no longer valid.
In State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), the state invoked Olson to support its argument that a lesser included offense instruction was not appropriate unless the defendant introduced affirmative evidence disputing the differential element. This Court held that a " defendant is not required to put on affirmative evidence" to justify the lesser included instruction and, " [t]o the extent that Olson... may be
read to require a defendant to put on affirmative evidence as to the lack of an essential element of the higher offense, [it is] overruled." Id. at 576.
Because this statement overruling Olson was qualified, the state continued to rely on Olson. In Pond, 131 S.W.3d 792, 794, the state cited several lower court opinions for its argument that " a defendant is not entitled to a lesser-offense instruction merely because a jury might disbelieve some of the state's evidence." Id. The decisions cited by the state, however, all relied on Olson. Accordingly, Pond responds: " This Court, however, overruled Olson, and its interpretation of section 556.046.2." Id. (emphasis added) (citing Santillan, 948 S.W.2d at 576). Pond then explains why the state's argument, and the statements in Olson on which that argument relies, are wrong:
A defendant is entitled to an instruction on any theory the evidence establishes. Hibler, 5 S.W.3d at 150. This Court leaves to the jury determining the credibility of witnesses, resolving conflicts in testimony, and weighing evidence. Rousan v. State, 48 S.W.3d 576, 595 (Mo. banc 2001). A jury may accept part of a witness's testimony, but disbelieve other parts. State v. Redmond, 937 S.W.2d 205, 209 (Mo. banc 1996). If the evidence supports differing conclusions, the judge must instruct on each. Hibler, 5 S.W.3d at 150.
Id. (emphasis added).
As in Santillan, however, Pond fails to fasten the lid down on Olson strongly enough. Because Pond states, " [L]ike Olson, the cases cited by the State are overruled, to the extent they require affirmative evidence from the defendant," id., this last limiting phrase allowed the state to resurrect Olson again in Williams, 313 S.W.3d 656. In Williams, this Court again set forth -- and again rejected -- the state's argument:
The State mistakenly relies on [three court of appeals decisions] to support its argument that a defendant is not entitled to a lesser included offense instruction merely because the jury might disbelieve some of the State's evidence. These three cases rely on the previously overruled case of State v. Olson... Olson was overruled by Santillan, 948 S.W.2d at 576 (" To the extent that Olson... may be read to require a defendant to put on affirmative evidence as to the lack of an essential element of the higher offense, [it is] overruled." ).
While the State acknowledges that after Santillan, the defendant was not required to put on affirmative evidence, it nonetheless argues that Williams was not entitled to a lesser included offense instruction because there was no affirmative evidence supporting his instruction. Therefore, the State contends, Williams was not entitled to the instruction on the sole basis that the jury might disbelieve some of the State's evidence. This Court rejected that same argument in Pond, a post-Santillan case. Here, as in Pond, the State relies on pre- Santillan cases and argues that " a defendant is not entitled to a lesser included offense instruction merely because a jury might disbelieve some of the State's evidence." 131 S.W.3d at 794. In Pond, this Court rejected the State's argument, stating, " A defendant is entitled to an instruction on any theory the evidence establishes." Id. at 794.
Id. at 660-61 (emphasis added).
Even though Williams flatly rejects the state's argument and expressly rejects the state's continued reliance on any remnants of Olson, it again fails to fasten the lid on Olson tight enough to prevent the state
from continuing to make this twice-rejected argument. In Williams -- as in Pond -- the Court merely referenced that Santillan overruled Olson to the extent that it requires a defendant to put on affirmative evidence as to the lack of the differential element. Id. at 660. Neither Pond nor Williams expressly overrules the remainder of Olson on which the state repeatedly -- but unsuccessfully -- relies. The Court now does so.
The state argues that Jackson was not entitled to an instruction on the lesser included offense of second-degree robbery solely because the jury could refuse to believe that the employee saw a gun in Jackson's hand or reasonably believed it was a gun that he was holding against her back throughout the robbery. Even though Williams and Pond expressly rejected such an argument, the state continues to assert it and continues to claim that it is supported by the parts of Olson it claims survived Santillan.
Accordingly, because the state continues to rely on the part of Olson that survived Santillan to assert an argument that this Court has twice rejected expressly, and because Williams and Pond continue to suggest that some part of Olson remains good law despite explicitly rejecting all of its reasoning, the Court again holds that the jury's right to disbelieve all or any part of the evidence and its right to refuse to draw needed inferences is a sufficient basis in the evidence -- by itself -- for a jury to conclude that the state has failed to prove the differential element. To the extent Olson suggests anything to the contrary, it is overruled.
The holdings of Pond and Williams should have made lesser included offense instructions nearly universal, at least when the differential element is one for which the state bears the burden of proof. All decisions as to what evidence the jury must believe and what inferences the jury must draw are left to the jury, not to judges deciding what reasonable jurors must and must not do. Pond, 131 S.W.3d at 794; Williams, 313 S.W.3d at 660. The Court now reaffirms those holdings because, as long as the jury has the right to disbelieve all or any part of the evidence, and refuse to draw needed inferences, section 556.046 cannot be read any other way. See Pond, 131 S.W.3d at 794 (" defendant is entitled to an instruction on any theory the evidence establishes" and " if the evidence supports differing conclusions, the judge must instruct on each" ); Williams, 313 S.W.3d at 659-60 (" jury may accept part of a witness's testimony, but disbelieve other parts" ) ( quoting MAI-CR 3d 304.11.G). " Doubts concerning whether to instruct on a lesser included offense should be resolved in favor of including the instruction, leaving it to the jury to decide." Derenzy, 89 S.W.3d at 474-75).
Here, the differential element is whether the employee believed (subjectively, but reasonably) that the object Jackson held against her back throughout the robbery -- and that he used or threatened to use to force her to do what he wanted -- was a gun. No matter how strong, airtight,
inescapable, or even absolutely certain the evidence and inferences in support of the differential element may seem to judges and lawyers, no evidence ever proves an element of a criminal case until all 12 jurors believe it, and no inference ever is drawn in a criminal case until all 12 jurors draw it. Accordingly, the evidence supported an instruction on robbery in the second degree.
The temptation to violate this principle and refuse to instruct down -- though plainly wrong -- can be almost overpowering in some cases, especially when the evidence is so strong and the inferences are so obvious that giving a lesser included offense instruction seems almost to beg for jury nullification or compromise verdicts. A sure sign that a judge or court is about to yield to this temptation is a reference to what a " reasonable juror" in a criminal case must or must not find. For example, in State v. Mease, 842 S.W.2d 98 (Mo. banc 1992), the Court surveyed the state's extensive evidence of deliberation and held that " [n]o rational fact finder could conclude that the defendant committed this homicide but that he did not deliberate on the killing." Id. at 111.
The temptation to deprive the jury of the right to disbelieve all or any part of the evidence, as this Court did in Mease, is neither new nor is it a weakness peculiar to this Court. Even luminaries of the judicial heavens have fallen prey to this temptation on occasion. For example, Justice Holmes once wrote:
The judge cannot direct a verdict [in a criminal case] it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found,... and when there is no dispute he may say so although there has been no formal agreement. Perhaps there was a regrettable peremptoriness of tone -- but the jury were allowed the technical right, if it can be called so, to decide against the law and the facts -- and that is all there was left for them after the defendant and his witnesses took the
stand. If the defendant suffered any wrong it was purely formal since, as we have said, on the facts admitted there was no doubt of his guilt.
Horning v. D.C., 254 U.S. 135, 138-39, 41 S.Ct. 53, 65 L.Ed. 185 (1920). This uncharacteristic usurpation of the jury's role was noted at the time, id. at 139 (Brandeis, J., dissenting) (noting that the trial court's statement constituted a directed verdict in a criminal case and arguing that there is nothing " technical" about the jury's right to find the facts because it is only that finding that gives the government any right or power to punish), and history has adjudged it " an unfortunate anomaly in light of subsequent cases." United States v. Gaudin, 515 U.S. 506, 520, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).
It is the " universally accepted law of this state that a court in the trial of a criminal prosecution cannot direct the jury to return a verdict of guilty[.]" State v. McNamara, 212 Mo. ...