Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable David B. Mouton, Circuit Judge
WILLIAM W. FRANCIS, JR., C.J./P.J.
Terrell Eugene Prine ("Prine"),  appeals his conviction of the class A felony of first-degree robbery, pursuant to section 569.020; and the unclassified felony of armed criminal action, pursuant to section 571.015. We affirm the judgment of the trial court.
Facts and Procedural Background
Prine does not challenge the sufficiency of the evidence to support his conviction. This Court views the evidence in the light most favorable to the verdict. State v. Perry, 275 S.W.3d 237, 242 (Mo. banc 2009). We accept as true all facts and inferences favorable to the verdict, and we disregard evidence and inferences to the contrary. State v. Oliver, 293 S.W.3d 437, 444 (Mo. banc 2009). In light of these principles, the following evidence was adduced at trial.
On the evening of January 14, 2012, Prine, intoxicated, had his girlfriend drive him to the home of Bradley Clark ("Clark") to collect fifteen dollars that Clark owed Prine. When Clark refused to pay Prine because Clark only had a fifty dollar bill, Prine became angry and told Clark he was going out to his girlfriend's car to retrieve his gun. Prine returned to Clark's home with his gun (wearing gloves), kicked in the front door, took two steps inside, and fired the gun. Prine took the fifty dollars from Clark, then threatened to kill a second man in the house, Gary Mitchell ("Mitchell"), unless Mitchell gave Prine his money. Prine left Clark's house in his girlfriend's car after taking about two hundred dollars from Mitchell, but was later apprehended and arrested.
Police found a bullet hole in Clark's home during a search, found a glove worn by Prine at the time of the shooting, retrieved the gun fired by Prine, as well as the shell casing from the bullet Prine fired.
On April 24, 2012, a special prosecutor was appointed for the State due to a conflict of interest within the office of the Jasper County Prosecuting Attorney.
A jury trial was held on June 18, 2013. At the close of all the evidence, an instruction conference was held in which Prine's counsel offered Instruction 5A,  a lesser-included-offense instruction for second-degree robbery. When the trial court offered counsel for Prine an opportunity to make a record regarding the instruction, the following transpired:
[PRINE'S ATTORNEY]: Yes, Judge. I believe there's evidence of intoxication of Mr. Clark, and I believe Mr. Mitchell. Both testified that Mr. Prine was not himself, that he was intoxicated, under the influence. I would ask that the Court offer Instruction - I have marked it as 5A, Judge, you're marking it as A, is that right[?]
BY THE COURT: Yes. [STATE], any record you wish to make[?]
[STATE]: Yes. Your Honor, the only difference between what the defense is submitting in its proposed #A and robbery first that is in Instruction No. 5, which is properly given by the Court, they're attempting to negate, as I understand, the elements of - the intent element of the crime on purpose, that he was intoxicated therefore purposely did this.
If you recall the testimony[, ] the defense is I just didn't do it. Period. In other words, he didn't do the robbery, number one. So the only difference between robbery first and robbery second is paragraph four in the two instructions. Robbery first requires the additional element of using - the MAI would say you can charge it by doing deadly weapon or dangerous instrument in the commission of the crime.
The specific intent for both of those is purposely, Judge, so I don't think you go down to a second-degree robbery and eliminate the use of a weapon in the commission of a crime just because you're drunk. Plus the defendant is saying I just didn't do this anyway. I don't know how you get - it seems like a contradictory argument. If you believe I did it then negate the elements of robbery by - down to second-degree robbery, ...