FROM THE CIRCUIT COURT OF PETTIS COUNTY The Honorable Robert
L. Koffman, Judge
R. Russell, Judge
Smith was arrested after a string of break-ins at businesses
in Sedalia. Smith was charged with one count of first-degree
burglary, four counts of second-degree burglary, four counts
of felony stealing, as well as one count of property
destruction and resisting arrest. For the first-degree
burglary charge, the jury was instructed on the charged
offense and the lesser included offense of second-degree
burglary. The trial court refused Smith's request for an
additional instruction on first-degree trespass. Smith also
requested the trespass instruction for each of the
second-degree burglary charges, but the trial court refused
to give the instruction for three of the four charges. The
jury found Smith guilty of all charged offenses.
appeal, Smith argues his convictions for first- and
second-degree burglary on counts for which no trespass
instruction was given must be reversed and remanded for a new
trial. Additionally, he claims the case must be remanded for
resentencing of his felony stealing convictions in the wake
of State v. Bazell, 497 S.W.3d 263 (Mo. banc
2016). Finally, he contends the trial
court lacked subject matter jurisdiction to convict him of
one second-degree burglary count for allegedly burglarizing
the United States Post Office in Sedalia.
trial court erred when it refused to give an instruction for
first-degree trespass for the charged burglary offenses. As a
result, Smith's convictions for those counts are
reversed, and the case is remanded for a new trial on those
because the enhancement provisions of section
570.030.3 do not apply to the
definition of stealing in section 570.030.1, as this Court
held in Bazell, Smith's felony stealing
convictions must be reversed and remanded for resentencing as
misdemeanors. In all other respects, the trial court's
judgment is affirmed.
broke into a number of buildings in Sedalia in 2012 and 2013.
In April 2012, Smith cut open a fence surrounding a
landscaping business and a large camper parked on the
property. Smith's DNA was found on a cigarette butt
recovered near the hole in the fence. He took a computer, a
tablet, and a number of trimmers and leaf blowers from the
business. Smith also broke into the camper by breaking the
glass in the front door. He stole a television and a handgun
from the camper.
August 2012, Smith broke into the United States Post Office
in Sedalia. An employee of the post office testified a window
had been broken with a brick and items in the office had been
disturbed and moved around. Police found a small amount of
blood by the broken window and a larger blood smear elsewhere
in the building. The DNA profile of the blood matched
following month, Smith broke into Sedalia Tool and
Manufacturing using a piece of steel to break a window. He
vandalized a vending machine by trying to pry it open and
damaged a number of interior doors and other items in the
business. Smith stole a laptop computer containing a
"SURFCAM access key, " which had a value of
approximately $14, 000. His blood was found after the
break-in on a piece of paper located in the building's
office. When asked by police about the break-in at Sedalia
Tool and Manufacturing, Smith stated he did not know where
the business was located and had never been there.
December 2012, Smith broke into a repair shop in Sedalia. He
stole money, whiskey, and the key to the front door. After
the break-in, the shop's owner changed the locks on the
doors and installed a security camera. Several months later,
Smith broke into the shop again. The key previously stolen
from the shop was found bent in the new lock. When the key
did not work and he could not kick in the door, Smith gained
access to the building by breaking a window. He took a
computer, software, a motorcycle welder, a stereo receiver,
and a bottle of vodka. The aggregated value of the items
stolen from the shop was estimated at $1, 274.71. Shoe prints
found around the shop matched the tread on a pair of
Smith's shoes, which were discovered during a search of
was charged as a prior and persistent offender with one count
of burglary in the first degree, four counts of burglary in
the second degree, four counts of felony stealing, one count
of property damage in the first degree, and one count of
resisting arrest. Smith requested the jury be instructed on
the lesser included offense of trespass in the first degree
for each of the burglary counts. Similarly, he requested
lesser included offense instructions for misdemeanor stealing
on Counts 4 and 7, which were charged as felony stealing for
the appropriation of property valued at more than $500. The
trial court refused all requested instructions for lesser
included offenses,  and the jury
found Smith guilty of all offenses as charged.
trial court sentenced Smith as a prior and persistent
offender to 10 years' imprisonment for the first-degree
burglary charge (Count 1), seven years' imprisonment each
for the second-degree burglary and felony stealing charges
(Counts 2, 3, 4, 5, 6, 7, 9, and 10), four years'
imprisonment for resisting arrest (Count 11), and 30 days in
jail for destruction of property (Count 8). The sentences for
counts 2 through11 were set to run concurrently with each
other but consecutively to the sentence for Count 1. Smith
The trial court's failure to give a lesser included
offense instruction for Counts 1, 3, 6, and 9 was error
Count 1, the jury convicted Smith of first-degree burglary,
the charged offense, after also being instructed on
second-degree burglary. Smith's counsel timely requested
an instruction for first-degree trespass, which the trial
court refused to give. Smith contends the failure to give the
requested trespass instruction was reversible error because
trespass is a nested lesser included offense of the charged
to give a requested jury instruction pursuant to section
556.046 is a question of law this Court reviews de novo.
State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014).
Section 556.046.1(1) defines a lesser included offense as one
"established by proof of the same or less than all the
facts required to establish the commission of the offense
charged." Missouri law requires instruction 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." Jackson,
433 S.W.3d at 396; see also sec. 556.046.2.
Smith's counsel timely requested the trespass
instruction, and the parties agree trespass in the first
degree is a "nested" lesser included offense of
first- and second-degree burglary because it is composed of a
subset of the elements of those offenses.See Jackson, 433 S.W.3d at 404.
Because it is impossible to commit first-degree burglary
without also necessarily committing first-degree trespass,
there was a basis in the evidence to convict Smith of
first-degree trespass. See id. Finally, this Court
has held there is always a basis in the evidence to acquit
the defendant of the charged offense because the jury is free
to disbelieve any or all of the evidence presented.
Id. at 399; see also State v. Randle, 465
S.W.3d 477, 479 (Mo. banc 2015); State v. Roberts,
465 S.W.3d 899, 901 (Mo. banc 2015); State v.
Pierce, 433 S.W.3d 424, 430 (Mo. banc 2014).
Consequently, the trial court was required to give the
requested first-degree trespass instruction and erred in
failing to do so.
is presumed when a trial court erroneously refuses to give a
properly requested instruction on a nested lesser included
offense." State v. Jensen, No. SC95280,
__S.W.3d __(Mo. banc 2017) (handed down contemporaneously
with this opinion); Jackson, 433 S.W.3d at 395 n.4.
Nonetheless, the State argues the Court should not reverse
Smith's conviction for Count 1 based on the trial
court's failure to give the requested trespass
instruction because the jury was instructed on one lesser
included offense, burglary in the second degree, and found
Smith guilty of first-degree burglary.The State relies on State v.
Johnson, 284 S.W.3d 561 (Mo. banc 2009), a
pre-Jackson case, to support its argument that the
failure to give a requested lesser included offense
instruction is not prejudicial, reversible error under the
present circumstances. Specifically, the State points to
Johnson's holding that "[t]he failure to
give a different lesser included offense instruction is
neither erroneous nor prejudicial when instructions for the
greater offense and one lesser included offense are
given and the defendant is found guilty of the greater
offense." Id. (emphasis in original).
Johnson, the defendant was charged with first-degree
murder for shooting a police officer at close range, walking
away to converse with someone, and then returning to resume
the fatal shooting. Id. at 567-68. The jury was
instructed on first- and second-degree murder. Id.
at 575-76. Defense counsel also requested instructions for
second-degree murder without sudden passion and voluntary
manslaughter, but the trial court refused to give those
instructions. Id. at 575. The jury returned a
verdict finding the defendant guilty of first-degree murder,
and the trial court sentenced the defendant to death.
Id. at 567. This Court affirmed his convictions,
finding no error in the failure to give the requested
instructions. Id. at 575.
is not dispositive here. Unlike this case, Johnson
does not fall under the umbrella of Jackson's
lesser included offense instruction analysis. The
instructions requested by the defendant in Johnson
were for voluntary manslaughter, which is not a
nested lesser included offense of first-degree murder because
it requires proof of "sudden passion, " an
additional element not belonging to the greater offense.
See Jackson, 433 S.W.3d at 404 (defining a nested
lesser included offense as composed of a subset of the
elements of the greater offense); see also MAI
314.08 Notes on Use 3 (noting the instruction for voluntary
manslaughter should be given only after evidence of sudden
passion arising from adequate cause has been introduced).
noted above, Smith requested an instruction for first-degree
trespass, which is a nested lesser included offense of both
first- and second-degree burglary. This case falls squarely
within Jackson's analysis, and Jackson
clearly stands for the principle that the jury's decision
to convict of the charged crime rather than acquit a
defendant does not insulate the trial court's
instructional decisions from reversal on appeal.
Jackson, 433 S.W.3d at 392. The State's broad
argument that Smith's conviction should not be reversed
because the jury was given one nested lesser included offense
instruction is inconsistent with Jackson.
Jackson's logic, the jury's apparent
rejection of one lesser included offense in favor of the
charged offense does not automatically mean the refusal to
give additional nested lesser included offense instructions
can be ignored as harmless error on appeal. This case
illustrates why. Smith was charged with first-degree
burglary, which has three elements: (1) a knowing unlawful
entry into a building or inhabitable structure; (2) with an
intent to commit a crime therein; (3) while armed with a
deadly weapon. Second-degree burglary contains only the first
two elements of the greater offense. Consequently,
instructing the jury on first- and second-degree burglary
asks the jury to consider their belief in the presence of the
third element: whether Smith was armed with a deadly weapon.
that is not the element Smith disputed at trial or on appeal.
Instead, he contested the second element of the
charged offense, requiring the jury to find he had the intent
to commit a crime when he entered the property. Both of the
instructions given to the jury contain the same intent
element. By contrast, first-degree trespass does not have the
intent element and requires only a finding of a knowing
unlawful entry. The trespass instruction requested by Smith
would have drawn the jury's attention to the question of
his intent-the element of the charged offense Smith
contested-in a way neither of the two given instructions did.
court of appeals encountered a similar situation in State
v. Frost, 49 S.W.3d 212, 215-16 (Mo. App. 2001), in
which the defendant was charged with second-degree murder for
causing the death of a man by stabbing him. The jury was
instructed on second-degree murder, voluntary manslaughter,
and self-defense. Id. at 216. The defendant also
requested an instruction for involuntary manslaughter, a
nested lesser included offense of second-degree murder
requiring a finding the defendant recklessly, rather than
knowingly, caused the victim's death. Id. She
argued the evidence at trial also supported a finding she
recklessly stabbed the victim under the unreasonable belief
that doing so was necessary to prevent him from raping her.
Id. The jury convicted her of second-degree murder.
court of appeals reversed because the trial court failed to
give the requested involuntary manslaughter instruction.
Id. at 221. In reaching its holding, the court of
appeals considered whether "the instructions
sufficiently tested the elements of the greater
offense." Id. at 219. The instructions given to
the jury for second-degree murder and voluntary manslaughter
"present[ed] the jury with the opportunity to determine
whether" the defendant acted "under the influence
of sudden passion arising from adequate cause, " which
is "the only difference between the two
instructions." Id. at 219-20. The additional
instruction for self-defense allowed the jury to consider the
theory that the defendant acted under the reasonable belief
her use of deadly force was necessary to defend herself.
Id. at 220. The court noted that, while the jury had
the opportunity to consider and expressly rejected both a
"sudden passion" theory and a lawful self-defense
claim, none of the instructions asked the jury to consider
whether the defendant recklessly stabbed the victim
"with an unreasonable belief that the conduct
was necessary to save her own life." Id.
(internal quotations and alterations omitted) (emphasis
added). Because the requested instruction for involuntary
manslaughter would have given the jury the opportunity to
answer that question, the court of appeals concluded it could
not say "the jury was adequately tested on the elements
of second-degree murder to the extent that submission of
involuntary manslaughter would have made no difference."
Id. at 221.
case, the instruction for first-degree trespass would have
tested the jury's belief that Smith intended to commit a
crime when he unlawfully entered the property. The
instructions for first- and second-degree burglary failed to
give the jury the opportunity to find Smith knowingly and
unlawfully entered the property, but did so without the
intent to commit a crime therein. The trial court erred in
failing to give the requested trespass instruction, and Smith
was prejudiced as a result.
Counts 3, 6, and 9
argues his convictions for second-degree burglary on Counts
3, 6, and 9 must be reversed because the trial court
erroneously refused to give a timely requested instruction
for first-degree trespass for each of the charged offenses.