FROM THE CIRCUIT COURT OF PULASKI COUNTY The Honorable D.
Gregory Warren, Judge
PATRICIA BRECKENRIDGE, JUDGE
Jensen appeals a judgment convicting him of one count of
murder in the second degree, section 565.021.1,  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.
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.
and Procedural Background
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.
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.
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.
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.
in Refusing to Instruct on Involuntary Manslaughter
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.
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
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
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."
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 ...