                          In the Missouri Court of Appeals
                                  Eastern District
                                               DIVISION THREE

DAVID A. MCNEAL,                                           )       No. ED102152
                                                           )
           Appellant,                                      )       Appeal from the Circuit Court
                                                           )       of the City of St. Louis
           vs.                                             )       0922-CC09606
                                                           )
STATE OF MISSOURI,                                         )       Honorable Michael K. Mullen
                                                           )
           Respondent.                                     )       Filed: February 16, 2016

           David A. McNeal (“Movant”) appeals the judgment denying his Rule 29.151 motion for

post-conviction relief. In 2008, Movant was convicted of second-degree burglary and stealing

for the theft of a drill from an apartment he entered. He has an extensive criminal history, such

that he was prosecuted as a prior and persistent offender, subjecting him to an extended term of

imprisonment if convicted of a felony. At Movant’s trial, trial counsel effectively conceded

Movant’s guilt of trespass, but failed to request the lesser-included instruction for trespass to

submit this misdemeanor alternative to the jury. In his Rule 29.15 motion for post-conviction

relief that is the subject of this appeal, Movant asserts his trial counsel was ineffective for failing

to request a lesser-included instruction on trespass, which might have shielded him from a felony

conviction and an extended term of imprisonment. The motion court denied Movant’s motion

after an evidentiary hearing. Because we find counsel’s failure to request a trespass instruction

unreasonable given these particular circumstances, and because we find Movant was prejudiced

1
    All references to Rules are to Missouri Supreme Court Rules (2015).
by counsel’s failure to request the instruction, we reverse the judgment denying the motion for

post-conviction relief and remand for a new trial.

                                          I.       BACKGROUND

        As mentioned, Movant’s convictions stem from his theft of a drill from an apartment.

Movant acknowledged stealing the drill, but denied entering the apartment with intent to steal, as

charged in the indictment. Rather, he maintains that he did not decide to steal the drill until he

was already in the apartment and saw the drill. He thus contends his conduct was consistent with

the offense of trespass. We return to the scene of the crime.2

        In May of 2008, two men were installing a floor in an apartment at the Riverbend

Apartments in St. Louis. At the same time, Movant was visiting his son’s mother, Arlene

Sanders, who lived in the apartment next door. While there, Sanders asked Movant to go buy her

a drink. Movant, short on cash, was determined to collect $10 owed to him by a woman named

Tracy who lived in the adjoining apartment, where the men were installing the floor.

        Movant knew Tracy through Sanders. He considered Tracy an acquaintance, not a close

friend. He did not know her last name. According to Movant, Tracy received phone calls on

Sanders’s phone, as she did not have a phone of her own. Movant explained that in the past,

when Tracy received a phone call on Sanders’s phone, he would go to Tracy’s apartment and

knock on the door to tell Tracy she had a phone call. Movant also noted that he had been in

Tracy’s apartment a number of times, but he never testified that he just walked into the

apartment after knocking or that he had been given general permission to enter Tracy’s

apartment at will. Rather, Movant explained that the relationship with Tracy was such that he

would knock on the door, open it, and call her name. He admitted he did not have keys to


2
 We credit and borrow greatly from the Missouri Supreme Court’s statement of facts, without further citation.
McNeal v. State, 412 S.W.3d 886 (Mo. banc 2013).

                                                         2
Tracy’s apartment and that his name was not on the lease for the apartment. The apartment

property manager testified that Movant did not have permission to be in the apartment.

       As Movant exited Sanders’s apartment and approached Tracy’s apartment, he saw two

men leave the apartment. Movant believed that the men had visited Tracy, so he approached the

men and followed them to the elevator, to ask if Tracy was busy. It is not clear what was said,

but after the two workers left on the elevator, Movant, under the impression that Tracy still lived

in the apartment, headed back down the hallway to Tracy’s apartment.

       Once back at Tracy’s apartment, Movant knocked on the door. No one answered, but

Movant heard the sound of a radio in the apartment. Movant opened the door, called Tracy’s

name, and observed that the apartment was empty. Movant testified that he then entered the

apartment, “in shock” that it was empty:

       I went in there looking for Tracy. I opened the door up, ‘Hey Tracy,’ but now I’m
       in shock. It’s empty. I step in there and I look over and see the radio playing, you
       know, because it’s a shock to me. I didn’t have any idea that the lady had moved
       and so I’m standing there.

Movant repeatedly denied entering Tracy’s apartment with an intent to steal anything. Rather, he

explained that he went in looking for Tracy and that he just wanted to collect the money she

owed him. He admitted to stealing the drill, but testified that he only made the decision to steal

the drill after he was already in the apartment and spotted the drill:

       I saw the radio playing and I’m on my way back out now, got to figure out how
       I’m going to buy [Sanders] something to drink with these $2, and I looked at the
       radio because it drawed [sic] my attention, there was a drill laying there. I picked
       the drill up and ‘Grrr, rrrr, rrrr,’ that’s when the thought came to my mind, ‘Hm, I
       might could [sic] sell this here.’ Now, that was wrong on me, but that’s what
       happened.




                                                  3
Movant placed the drill in a plastic bag, left the apartment, and sold the drill to a man down the

street for $8. He was apprehended and charged with second-degree burglary and misdemeanor

stealing.3

         At trial, Movant’s counsel argued that Movant did not enter the apartment with the intent

to steal. Counsel also questioned a police officer if Movant’s conduct, although charged as a

burglary, could constitute a trespass. The officer confirmed that it could. Although defense

counsel raised the issue of trespass, he failed to request a trespass instruction. During

deliberations, the jury submitted the following question to the trial court regarding the intent

necessary – specifically the timing of forming that intent – to convict for burglary:

         Regarding Inst. No 5 and the second point – can the intent to commit the crime
         occur after he opens the door for burglary?          Must it occur prior to
         opening/touching the door?

The court responded for the jury to be guided by the instructions.4 The jury ultimately convicted

Movant of stealing and burglary. The trial court sentenced Movant, a prior and persistent

offender, to consecutive terms of ten years’ imprisonment in the Missouri Department of

3
  Specifically, for Count I, the State charged that Movant, in violation of section 569.170 RSMo 2000, committed
the class C felony of second-degree burglary, in that “on or about May 8, 2008 in the City of St. Louis, State of
Missouri, [Movant] knowingly entered unlawfully in an inhabitable structure, located at 4720 South Broadway and
possessed by Riverbend Apartments, for the purpose of committing stealing therein.” For Count II, the State
charged that Movant, in violation of section 570.030 RSMo Supp. 2006, committed misdemeanor stealing, in that
“on or about May 8, 2008, in the City of St. Louis, State of Missouri, [Movant] appropriated an electric drill which
property was in the possession of Matthew Harrison, and [Movant] appropriated such property without the consent
of Matthew Harrison and with the purpose to deprive him thereof.”
4
  Instruction No. 5, the verdict-directing instruction for second-degree burglary, read in full:
          As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
          First, that on or about May 8, 2008, in the State of Missouri, the defendant knowingly entered
          unlawfully in an inhabitable structure located at 4720 S. Broadway and possessed by Riverbend
          Apartments, and
          Second, that defendant did so for the purpose of committing the crime of stealing therein,
          then you will find the defendant guilty under Count I of burglary in the second-degree.
          However, unless you find and believe from the evidence beyond a reasonable doubt each and all
          of these propositions, you must find the defendant not guilty of that offense.
          A person commits the crime of stealing if he or she appropriates property or services of another
          with the purpose to deprive him or her thereof, either without his or her consent or by means of
          deceit or coercion.
The instructions submitted to the jury also included a paragraph explaining that a person “enters unlawfully” in or
upon premises when the person is not licensed or privileged to do so.

                                                          4
Corrections for the burglary and six months in jail for the stealing. We affirmed the convictions

on direct appeal. State v. McNeal, 292 S.W.3d 609 (Mo. App. E.D. 2009).

       Subsequently, Movant sought post-conviction relief alleging that trial counsel was

ineffective for failing to request a trespassing instruction as a lesser-included offense of burglary.

The motion court denied Movant’s claim without an evidentiary hearing, concluding that counsel

may have had a reasonable trial strategy for not submitting a trespass instruction. The Missouri

Supreme Court reversed and remanded for an evidentiary hearing. McNeal v. State, 412 S.W.3d

886 (Mo. banc 2013).

       At that hearing, counsel acknowledged that he thought he could have requested a trespass

instruction. But he did not. In all, counsel offered three reasons in explanation. Counsel first

explained that he was not inclined to request a trespass instruction because such an instruction

did not fit with his defense theory. Counsel believed it inconsistent to request a trespass

instruction when they were arguing that Movant’s entry was legitimate, or at least not

intentionally illegitimate. He secondly explained that he did not know if the trial court would

have submitted such an instruction. And lastly, counsel expressed concern that Movant would be

upset by a trespass instruction. Counsel described Movant as a “pretty good jailhouse lawyer,”

and noted that Movant had very definite ideas about what he wanted presented at trial. Counsel

noted that Movant did not bring a trespass instruction to his attention, although he was not

waiting for Movant to mention it, and did not think he would have asked for it anyway, based on

the other reasons he had stated. Nevertheless, counsel thought Movant might have objected to

the instruction, and explained that he had to consider how he was interacting with Movant and he

did not want to appear to be at loggerheads with Movant in front of the jury. Counsel, however,

did not remember having a discussion with Movant about whether to submit the instruction, and



                                                  5
ultimately conceded that it was mere speculation that Movant may have objected to the

instruction.

       In the end, counsel explained that, as a matter of trial strategy, he decided to seek

acquittal on burglary and to not submit a trespass instruction. When asked at what point he

decided not to request the instruction, he responded: “I’m not sure it was that much of a

conscious decision as much as it just didn’t seem appropriate.”

       The motion court denied Movant’s motion, concluding that counsel’s decision was

objectively reasonable. Movant now appeals.

                                      II.     DISCUSSION

A.     Standard of Review

       Our review of a motion court’s denial of a Rule 29.15 motion for post-conviction relief is

limited to a determination of whether the motion court’s findings of facts and conclusions of law

are clearly erroneous. Rule 29.15(k). The motion court’s findings and conclusions are clearly

erroneous if, after reviewing the entire record, we are left with a “definite and firm impression

that a mistake has been made.” McNeal v. State, 412 S.W.3d 886, 889 (Mo. banc 2013)

(quotations omitted).

B.     Whether the Motion Court Erred In Denying Movant’s Post-Conviction Claim

       In Movant’s sole point on appeal, he asserts the motion court erred in denying his post-

conviction claim that trial counsel was ineffective for failing to request a lesser-included

instruction on trespass. For the reasons discussed below, we agree.

       1.      General Law

       Movant is entitled to post-conviction relief if he shows by a preponderance of the

evidence that, (1) his counsel failed to exercise the customary skill and diligence of a reasonably



                                                  6
competent attorney under similar circumstances; and (2) Movant was prejudiced by his counsel’s

deficient performance. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (citing Strickland

v. Washington, 466 U.S. 668, 687 (1984)). Movant must meet both prongs of this Strickland test

in order to prevail on his ineffective-assistance-of-counsel claim. Zink v. State, 278 S.W.3d 170,

175 (Mo. banc 2009). To show deficient performance, Movant must demonstrate that his

counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S.

at 687-88; Anderson, 196 S.W.3d at 33. To satisfy the prejudice prong of the Strickland test,

Movant must demonstrate that, but for counsel’s deficient performance, a reasonable probability

exists that the outcome of the proceeding would have been different. Strickland, 466 U.S. at

694; Anderson, 196 S.W.3d at 33. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694; Anderson, 196 S.W.3d at

33-34.

         In the context here, to establish a claim of ineffective assistance of counsel for failure to

request a lesser-included offense instruction, Movant must show that the evidence would have

required submission of a lesser-included offense instruction had one been requested, that the

decision not to request the instruction was not reasonable trial strategy, and that he was thereby

prejudiced. Jackson v. State, 205 S.W.3d 282, 285 (Mo. App. E.D. 2006).

         2.     The Evidence Presented at Trial Required a Lesser-Included Instruction on
                Trespass

         A defendant is entitled to a jury instruction when the evidence, viewed in the light most

favorable to the defendant, establishes a theory or supports differing conclusions. State v.

Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009); State v. Avery, 120 S.W.3d 196, 200 (Mo. banc

2003). If the evidence supports differing conclusions, the court must instruct on each. McNeal,

412 S.W.3d at 890; State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004).


                                                   7
           “A jury instruction for a lesser-included offense is required when the evidence provides a

basis for both the acquittal of the greater offense and the conviction of the lesser offense.”

Johnson, 284 S.W.3d at 575 (quotations omitted). “Doubt as to whether to instruct on the lesser-

included offense is resolved in favor of giving the lesser-included offense instruction.” McNeal,

412 S.W.3d at 890.

           In this case, Movant stood charged with second-degree burglary. First-degree trespass is

a lesser-included offense of second-degree burglary. Id.; State v. Yacub, 976 S.W.2d 452, 453

(Mo. banc 1998). A person commits the crime of first-degree trespass if he “knowingly enters

unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real

property.” Section 569.140.1 RSMo 2000.5 Second-degree burglary requires the additional

element that a person entered or remained in the building or structure “for the purpose of

committing a crime therein.” Section 569.170.1; Yacub, 976 S.W.2d at 453 (noting that second-

degree burglary, as compared to first-degree trespass, requires the additional element of intent to

commit a crime within the premises).

           Viewing the evidence from Movant’s perspective, our Supreme Court concluded that a

basis existed in the evidence for an instruction on first-degree trespass. McNeal, 412 S.W.3d at

890-91. The State charged that Movant unlawfully entered the apartment for the purpose of

committing the crime of stealing. Movant admitted entering Tracy’s apartment. The apartment

property manager testified that Movant did not have permission to be in that apartment. Movant

conceded that he did not have a key to the apartment and that his name was not on the lease.

And although he testified that he had been in Tracy’s apartment a number of times before, and

that he had previously knocked and opened the door to tell Tracy that she had a phone call,

Movant never testified that he had just walked into the apartment or that he had been given
5
    All further statutory references are to RSMo 2000.

                                                         8
permission to enter the apartment at will. Nor could such a conclusion be reasonably inferred

from the evidence presented. Movant’s knowing entry into an apartment where he had no lawful

right to be is trespass. Section 569.140.1. The trial court would have been required to give an

instruction for the lesser-included offense of first-degree trespass, if counsel had requested such

an instruction.

       3.         Counsel’s Performance and Trial Strategy

       We acknowledge that counsel is afforded wide latitude in conducting a defense and may

use his best judgment in matters of trial strategy. Patterson v. State, 467 S.W.3d 395, 406 (Mo.

App. E.D. 2015); accord Wolfe v. State, 446 S.W.3d 738, 749 (Mo. App. S.D. 2014). We also

acknowledge that “[s]trategic choices made after a thorough investigation of the law and the

facts relevant to plausible opinions are virtually unchallengeable.” Anderson, 196 S.W.3d at 33

(quoting Strickland, 466 U.S. at 690). Courts should rarely second-guess counsel’s strategic

choices when counsel has investigated the possible strategies. Middleton v. State, 103 S.W.3d

726, 736 (Mo. banc 2003). “Reasonable choices of trial strategy, no matter how ill-fated they

appear in hindsight, cannot serve as a basis for a claim of ineffective assistance.” Anderson, 196

S.W.3d at 33. Here, if counsel made an objectively reasonable choice not to submit the trespass

instruction, that decision would not constitute ineffective assistance of counsel. Love v. State,

670 S.W.2d 499, 502 (Mo. banc 1984); Thompson v. State, 437 S.W.3d 253, 260 (Mo App. W.D.

2014); Brock v. State, 242 S.W.3d 430, 433 (Mo. App. W.D. 2007). But, this is not to say that

relief is unavailable. To deny post-conviction relief on the basis of trial strategy, that strategy

must be reasonable. State v. Hamilton, 871 S.W.2d 31, 34 (Mo. App. W.D. 1993); see also

Smith v. State, 370 S.W.3d 883, 886 (Mo. banc 2012) and Zink, 278 S.W.3d at 176 (noting

counsel’s strategic trial decisions only may serve as a basis for ineffective assistance of counsel



                                                  9
if they are unreasonable). The motion court here found counsel’s decision objectively

reasonable. We disagree. Because defense counsel effectively conceded Movant’s guilt as to

trespass and a trespass instruction might shield Movant from an extended term of imprisonment,

we hold that counsel did not exercise reasonable trial strategy in foregoing a trespass

instruction.6

         Counsel acknowledged that he could have asked for a trespass instruction. At trial, he

even raised the possibility that Movant had committed a trespass offense. But he then failed to

request an instruction on trespass, as a matter of strategy, based on his belief that a trespass

would have been inconsistent with the defense theory. Contrary to counsel’s supposition, a

trespass instruction would have been entirely consistent with the evidence and with counsel’s

argument. See McNeal, 412 S.W.3d at 891.

         Next, this was not an “all-or-nothing” situation. It is well-established that counsel will

not be found ineffective for employing an “all-or-nothing” defense and not offering the jury a

middle ground for conviction. See Jackson, 205 S.W.3d at 285-86; McKee v. State, 336 S.W.3d

151, 154 (Mo. App. E.D. 2011); Neal v. State, 99 S.W.3d 571, 575-76 (Mo. App. S.D. 2003).

Often counsel will proceed with a defense that a defendant is entirely innocent, and thus will not

request a lesser-included offense and risk the chance that the jury may convict of the lesser

offense rather than acquitting defendant entirely. See Neal, 99 S.W.3d at 576. But that was not

the situation here, as even counsel recognized at the evidentiary hearing. Counsel at trial did not

argue that Movant had committed no crime whatsoever. As our Supreme Court concluded,



6
 Movant’s motion counsel urges us to decide whether a movant or counsel holds the ultimate authority to decide
whether to request a lesser-included instruction. We decline the invitation. Instead we decide whether counsel’s
decision was reasonable under the circumstances. Movant’s motion counsel also urges us to decide if counsel’s
decision here could even be considered strategy in the first place, given that counsel testified that his decision was
not “much of a conscious decision.” For purposes of our analysis, we have presumed that counsel’s decision was a
matter of strategy.

                                                          10
Movant’s counsel effectively conceded during the trial that Movant had trespassed. McNeal, 412

S.W.3d at 891. Given defense counsel’s concession of trespass, we cannot conclude that

foregoing the trespass instruction was due to the reasonable employment of an all-or-nothing

defense.

       We lastly note that counsel’s failure to request a trespass instruction placed Movant at an

obvious risk of an extended term of imprisonment. Movant was a prior and persistent offender,

confined at the time of trial. He had much to fear from a felony burglary conviction, but

precious little to fear from a misdemeanor trespass conviction. After trial, Movant was

sentenced to ten years’ imprisonment for his misdeeds.

       In sum, we hold that, under the circumstances of this case, counsel lacked an objectively

reasonable strategic reason for failing to request a trespass instruction.

       4.      Prejudice

       We also hold that Movant was prejudiced by counsel’s failure to request the instruction.

The evidence demonstrated a trespass. Without a trespass instruction, however, the jury was left

with only two choices on this count: conviction of burglary or acquittal. As our Supreme Court

noted, where, like here, “‘one of the elements of the offense charged remains in doubt, but the

defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of

conviction.’” Id. at 892 (quoting Breakiron v. Horn, 642 F.3d 126, 138 (3rd Cir. 2011) (quoting

Beck v. Alabama, 447 U.S. 625, 634 (1980))). Even though juries are obligated as a theoretical

matter to acquit a defendant if they do not find every element of the offense beyond a reasonable

doubt, a substantial risk exists that the jury’s practice will diverge from theory when it is not

presented with the option of convicting of a lesser offense instead of acquittal. McNeal, 412

S.W.3d at 892 (citing Keeble v. U.S., 412 U.S. 205, 213 (1973)). “[T]he failure to provide the



                                                  11
jury with the option of a lesser-included offense deprives the defendant of a fair trial, even if the

jury ultimately convicts the defendant of the greater offense.” McNeal, 412 S.W.3d at 892. The

jury’s decision here to convict Movant on the greater offense of burglary does not foreclose all

possibility that the jury would have convicted him of the lesser offense of trespass. Id. Indeed,

the jury’s question, inquiring about the timing of the intent necessary to sustain a burglary

verdict, directly addressed the distinction between burglary and trespass. Had a trespass

instruction been submitted, we conclude a reasonable probability existed that the outcome of the

trial would have been different and the jury would have acquitted Movant of burglary. Point

granted.

                                      III.    CONCLUSION

       Based on the foregoing, the motion court clearly erred in denying Movant relief.

Accordingly, we reverse the motion court’s judgment and remand for a new trial.




                                                                                _________
                                                ROBERT M. CLAYTON III, Presiding Judge

Lawrence E. Mooney, J., and
James M. Dowd, J., concur.




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