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State v. Jensen

Supreme Court of Missouri, En Banc

July 11, 2017

STATE OF MISSOURI, Respondent,
v.
NATHAN WAYNE JENSEN, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY The Honorable D. Gregory Warren, Judge

          PATRICIA BRECKENRIDGE, JUDGE

         Nathan Jensen appeals a judgment convicting him of one count of murder in the second degree, section 565.021.1, [1] one count of armed criminal action, section 571.015, and one count of abandonment of a corpse, section 194.425. Mr. Jensen was sentenced to life imprisonment on the murder conviction, five concurrent years on the count of armed criminal action, and four consecutive years on the count of abandonment of a corpse. The trial court instructed the jury on second degree murder and voluntary manslaughter. The trial court erred by refusing Mr. Jensen's properly requested instruction on the nested lesser included offense of involuntary manslaughter. The instructional error is prejudicial because the omitted involuntary manslaughter instruction would have directly tested whether Mr. Jensen acted "recklessly" as opposed to "knowingly." Therefore, Mr. Jensen's convictions for second degree murder and the corresponding charge of armed criminal action are reversed.

         The circuit court's instructional error does not mandate reversal of Mr. Jensen's conviction for abandonment of a corpse because that conviction was not predicated on the second degree murder conviction. Mr. Jensen's other claims that the trial court erred in failing to declare a mistrial due to the admission of evidence of uncharged misconduct, comments the defendant had "gangster tattoos all over him, " and the emotional outburst of the victim's mother are without merit, and his conviction for abandonment of a corpse is affirmed. The case is remanded for further proceedings consistent with this opinion.

         Factual and Procedural Background

         In early December 2011, Nathan Jensen and Christopher Jorgensen got into a "texting war" with Kenny Stout and Shon Gossett because Mr. Gossett believed Mr. Jensen was "messing with" his 16-year-old cousin. The conflict culminated in a fight between Mr. Stout and Mr. Jensen. Mr. Jorgensen stepped in and hit Mr. Stout, knocking him unconscious. Mr. Jorgensen and Mr. Jensen beat Mr. Stout with their fists and baseball bats and stomped on his head, chest, and midsection. They dragged Mr. Stout into the woods and left him for dead. The next day, Mr. Jensen and Mr. Jorgensen drove back to where they had left Mr. Stout to "make sure he was gone." They discovered Mr. Stout was still breathing. Mr. Jorgensen had brought a hunting knife with him and proceeded to stab Mr. Stout multiple times and attempted to cut his throat. Mr. Jorgensen would eventually testify both he and Mr. Jensen stabbed Mr. Stout, a claim that Mr. Jensen denied in statements to law enforcement and at trial.

         Concerned Mr. Jensen would not be able to "keep his mouth shut, " Mr. Jorgensen decided to kill Mr. Jensen. He told Mr. Jensen he could hide out at the Texas County home of Judy Greuter. After they arrived at Ms. Greuter's property, Mr. Jorgensen tried to shoot Mr. Jensen with Ms. Greuter's gun, but it misfired twice. Mr. Jensen ran off into the woods and eventually went to a neighbor, who called 911. When law enforcement arrived, Mr. Jensen said that someone had tried to kill him and that he had information about a missing boy. He asked for protection from Mr. Jorgensen and was placed in protective custody until Mr. Jorgensen was arrested. Initially, Mr. Jensen gave law enforcement little information about Mr. Stout, but eventually he led authorities to the location of Mr. Stout's body. In his statements to the police and in his trial testimony, Mr. Jensen maintained he acted under duress from Mr. Jorgensen.

         The state charged Mr. Jensen, as a persistent offender, with murder in the first degree, armed criminal action, and abandonment of a corpse. As related to the alleged homicide, the trial court instructed the jury on first degree murder, second degree murder, and voluntary manslaughter. The trial court instructed the jury that duress was an affirmative defense to the voluntary manslaughter charge. The trial court refused Mr. Jensen's timely request to instruct the jury on the lesser included offense of involuntary manslaughter.

          The jury convicted Mr. Jensen of the second degree murder, armed criminal action, and abandonment of a corpse. Mr. Jensen appeals. This Court granted transfer following an opinion by the court of appeals. Mo. Const. art. V, sec. 10.

         Error in Refusing to Instruct on Involuntary Manslaughter

         Mr. Jensen's first point asserts the trial court committed reversible instructional error by refusing his request to instruct the jury on the nested lesser included offense of involuntary manslaughter. Mr. Jensen is correct.

         Section 556.046, RSMo Supp. 2002, defines the trial court's obligation to instruct on lesser included offenses. In pertinent part, section 556.046.2, RSMo Supp. 2002, provides, "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." Section 556.046.3, RSMo Supp. 2002, further provides:

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.

         Collectively, sections 556.046.2 and 556.046.3, RSMo Supp. 2002, obligate a trial court to instruct the jury on a "lesser included offense" when: (1) "a party timely requests the instruction, " (2) "there is a basis in the evidence for acquitting the defendant of the charged offense, " and (3) "there is a basis in the evidence for convicting the defendant of the lesser included offense for which the instruction is requested." State v. Jackson, 433 S.W.3d 390, 396 (Mo. banc 2014).[2]

         The Jackson analysis of nested lesser included offenses focuses on offenses charged, not the evidence in the case. Consistent with the more detailed analysis in State v. Sanders, SC94865, ___ S.W.3d ___ (Mo. banc July 11, 2017), handed down contemporaneously with this opinion, analyzing the elements of second degree murder, as defined by section 565.021.1(1), and involuntary manslaughter, as defined by section 565.024.1(1), demonstrates involuntary manslaughter is a nested lesser included offense of second degree murder. In pertinent part, section 565.021.1(1) provides, "A person commits the crime of murder in the second degree if he [or she] . . . [k]nowingly causes the death of another person." Section 565.024.1(1) provides, "A person commits the crime of involuntary manslaughter in the first degree if he [or she] . . . [r]ecklessly causes the death of another person."

         The differential element distinguishing the two offenses is that second degree murder requires the state to prove the defendant acted "knowingly" instead of "recklessly." Section 562.021.4 provides, "When recklessness suffices to establish a culpable mental state, it is also established if a person acts purposefully or knowingly." The fact that the culpable mental state of recklessness is, by statute, subsumed within the culpable mental state of knowingly means it was "impossible [for Mr. Jensen] to commit the greater [offense of second-degree murder] without necessarily committing" the nested lesser included offense of involuntary manslaughter. Jackson, 433 S.W.3d at 404 (emphasis in original). As charged in this case, involuntary manslaughter is, therefore, a nested lesser included offense of second degree murder. State v. Ramirez, 479 S.W.3d ...


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