             SUPREME COURT OF MISSOURI
                                         en banc

STATE OF MISSOURI,                                 )
                                                   )
               Respondent,                         )
                                                   )
v.                                                 )      No. SC93321
                                                   )
BRUCE PIERCE,                                      )
                                                   )
               Appellant.                          )

        APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
                   The Honorable Thomas C. Grady, Judge

                               Opinion issued June 24, 2014

       Bruce Pierce appeals his convictions for second-degree trafficking and resisting

arrest. He claims that both charges should have been dismissed under article I, section

19, of the Missouri Constitution because the trial court lacked authority to retry him after

the end of the court term following the term in which his earlier trial ended in a mistrial.

In addition, Pierce claims that the trial court erred in refusing his request that the jury be

instructed regarding possession as a lesser included offense of second-degree trafficking.

Finally, Pierce claims that the evidence was not sufficient to support his conviction for

resisting arrest.

       The Court rejects the first claim because Pierce failed to raise it at a time when the

trial court could still comply with the constitutional deadline for retrials. On Pierce’s

second claim, the Court holds that the trial court erred in refusing to give the requested
lesser included offense instruction. Finally, the Court rejects Pierce’s third claim because

the evidence was sufficient for his conviction for resisting arrest. Accordingly, the Court

affirms Pierce’s conviction for resisting arrest, but vacates his conviction for second-

degree trafficking and remands the case for further proceedings.

I.     Facts

       On May 5, 2010, two police officers in a patrol car observed Pierce sitting on the

front steps of a vacant building. Pierce began running from the officers when one of

them shouted: “Hey, it’s the police. How you doing?” The officers pursued Pierce in

their cruiser. When Pierce left the road, one of the officers pursued him on foot. During

the chase, this officer observed Pierce throw an object on the ground. The officer

retrieved the item, saw it was a clear plastic bag containing a substance he believed to be

narcotics, and continued to chase after Pierce. Trailing Pierce by about 20 feet, the

officer again identified himself as a police officer, told Pierce that he was under arrest,

and ordered him to stop. Pierce continued running through a yard and into a nearby

residence, where the officer caught and restrained him.

       Pierce was charged with second-degree trafficking under section 195.223 and

resisting arrest under section 575.150.1.1 His first trial, which began on November 9,




1
    All statutory references are to RSMo 2000 unless otherwise indicated. Sections 195.222
(first-degree trafficking) and 195.223 (second-degree trafficking) were amended in August 2012.
One effect of the amendment was to increase the amount of cocaine base required for second-
degree trafficking from two grams to eight grams. Section 195.223 RSMo Supp. 2012; S.B. 628,
96th Gen. Assemb., 2d Reg. Sess. (Mo. 2012). But a defendant must be tried for the offense as
defined by the law that existed at the time of the offense. State v. Edwards, 983 S.W.2d 520, 521
(Mo. banc 1999); Section 1.160. Accordingly, because the crime occurred in 2010 and Pierce
2010, ended in a mistrial when the jury was unable to reach a unanimous verdict on either

count. After declaring this mistrial, the trial court remanded Pierce into custody and set

his case for retrial beginning January 10, 2011. This setting later was continued seven

times, however, for a variety of reasons. Pierce did not object to any of these

continuances. As a result, his retrial did not begin until November 30, 2011. On that

day, for the first time, Pierce moved to have his charges dismissed on the ground that

article I, section 19, requires that his trial begin no later than the end of the term

following the term in which his earlier mistrial occurred. Because that deadline had

passed, Pierce contended that the trial court lacked authority to retry him. The trial court

overruled Pierce’s motion to dismiss, and the case proceeded to trial.

       During the instruction conference after the close of evidence, the trial court

announced that it would give the state’s proposed instruction for drug trafficking in the

second degree. Pierce did not object to this instruction but requested the court also

instruct the jury on the lesser included offense of possession of a controlled substance

under section 195.202.1. The trial court refused this request, and the court also overruled

Pierce’s motion for a directed verdict on the resisting arrest charge, finding that the

evidence was sufficient to support that charge. The jury found Pierce guilty of resisting

arrest and trafficking in the second degree, and the trial court sentenced him to concurrent

prison terms of seven and ten years, respectively. Pierce appealed, and this Court has

jurisdiction under article V, section 10, of the Missouri Constitution.


was sentenced in May 2012, the 2012 amendments are not relevant to this case, and Pierce is
subject to the previous version of section 195.223.


                                               3
II.     The Trial Court did not Lack Authority to Retry Pierce

       Pierce contends that that the trial court lacked authority to retry him under

article I, section 19, of the Missouri Constitution. This section provides, in relevant part,

that no person shall:

       be put again in jeopardy of life or liberty for the same offense, after being
       once acquitted by a jury; but if the jury fail to render a verdict the court
       may, in its discretion, discharge the jury and commit or bail the prisoner
       for trial at the same or next term of court; and if judgment be arrested
       after a verdict of guilty on a defective indictment or information, or if
       judgment on a verdict of guilty be reversed for error in law, the prisoner
       may be tried anew on a proper indictment or information, or according to
       the law.

Mo. Const. art I, § 19 (emphasis added).

       Pierce’s first trial began on November 10, 2010, i.e., during the November 2010

term of court. 2 That trial ended in a mistrial when the jury was unable to reach a

unanimous verdict. The trial court’s next term (i.e., the February 2011 term) began on

February 14, 2011, and ended on May 6, 2011. Because Pierce’s retrial did not begin

until November 2011, it is clear that the deadline in article I, section 19, was not met.

Because the trial court failed to retry him during “the same or next term of court,” Pierce

contends that the court lacked authority to retry him at all.

       Pierce is not the first defendant to attempt to use the deadline in article I, section

19, to prevent a retrial after the first trial ended with a hung jury. In State v. Fassero, 256




2
   Because the St. Louis City Circuit Court has no local rule governing terms of court, section
478.205 establishes those terms. It sets four terms each year, and those terms begin on the
second Monday of each February, May, August, and November.

                                                4
S.W.3d 109 (Mo. banc 2008), this Court rejected the same argument under very similar

circumstances.

       Fassero argues that, under art. I, sec. 19, his second trial should have
       commenced before the end of June (“the same term”) or during the next
       term, from July - September 2004. Because his second trial did not begin
       until January 18, 2005, Fassero asserts that the trial court did not have
       jurisdiction. Fassero raises this issue for the first time on appeal.

       Generally, a party on appeal “must stand or fall” by the theory on which he
       tried and submitted his case in the court below. Walker v. Owen, 79 Mo.
       563, 568 (Mo. 1883). Under this general rule, issues that are not raised in
       the trial court are waived. Id. Although Fassero acknowledges this general
       rule, he argues that article I, section 19 deprived the second trial court of
       jurisdiction. And “jurisdictional” issues, he contends, may be raised for the
       first time on appeal. Searcy v. State, 981 S.W.2d 597, 598 (Mo. App.
       1998).

       Fassero’s argument results from a misunderstanding of jurisdiction.
       Jurisdiction describes the power of a court over the person of the defendant
       (personal jurisdiction) and the authority of the court to hear the particular
       kind of case (subject matter jurisdiction). See generally, 21 Am.Jur.2d
       Criminal Law section 503 (2007). The court had power over Fassero’s
       person. It was empowered to hear criminal cases. The court, thus, had
       jurisdiction.

       Fassero did not object in the circuit court to the timing of his second trial
       under art. I, sec. 19. His art. I, sec. 19 objection is a constitutional claim
       that, to be preserved for appellate review, must be made at the first
       opportunity. State v. Chambers, 891 S.W.2d 93, 103-4 (Mo. banc 1994). If
       not raised at the first opportunity in the circuit court, a constitutional claim
       is waived and cannot be raised here. Id.

Fassero, 256 S.W.3d at 117 (Mo. banc 2008) (footnote omitted).

       Accordingly, Fassero sets forth two holdings that, taken together, defeat Pierce’s

claim. First, Fassero holds that a defendant must raise a claim based on the retrial

deadline in article I, section 19, “at the first opportunity” and, if he does not do so, that

claim is waived. Second, Fassero holds that, if a defendant fails to raise this


                                               5
constitutional deadline in a timely manner, the trial court’s authority to retry the

defendant is not affected by a failure to comply with that deadline.

       Pierce seeks to distinguish Fassero by emphasizing that he raised his claim in a

motion to dismiss the charges in the trial court, not on appeal as the defendant did in

Fassero. But Fassero does not hold that a claim under the retrial deadline in article I,

section 19, only needs to be raised in the trial court to be timely. It holds that such a

claim “must be made at the first opportunity.” Fassero, 256 S.W.3d at 117 (emphasis

added). Pierce’s “first opportunity” to raise the constitutional retrial deadline in article I,

section 19, was not in a motion to dismiss filed long after that deadline had passed. The

trial court initially set Pierce’s retrial in time to meet the constitutional deadline of May 6,

2011, i.e., the end of the term following the term in which his first trial occurred. As a

result, Pierce had multiple opportunities to raise that deadline when the trial court was

considering whether to continue his retrial prior to (and, ultimately, beyond) that date.

He chose not to do so. Under Fassero, therefore, Pierce waived his claim under the

retrial deadline in article I, section 19, because he failed to raise it at his earliest

opportunity.

       Enforcing a waiver in these circumstances “is in accord with the usual rule that the

trial court must be given the opportunity to correct error while correction is still

possible.” Douglass v. Safire, 712 S.W.2d 373, 374 (Mo. banc 1986) (emphasis added).

The purpose of the constitutional deadline for timely retrials under article I, section 19, is

not to create a trap for unwary trial judges or to produce a windfall (i.e., dismissal) for

defendants who do not assert that deadline while compliance is still possible. The


                                                 6
purpose of this constitutional deadline is to ensure that neither the defendant nor the state

is disadvantaged by stale evidence or fading memories when the only reason for the

retrial is the first jury’s failure to reach a verdict. If the defendant wants the benefit of

this provision, he must assert it while compliance is still possible.

       Pierce’s claim assumes that article I, section 19, explicitly requires all charges to

be dismissed whenever a case is not retried before the stated deadline. There is no

constitutional language explicitly imposing that consequence, however, and this Court

need not decide whether to infer that such a sanction was intended unless and until a

defendant invokes this deadline while compliance is still possible and the trial court fails

to comply. Here, Pierce did not do so. Accordingly, under the first holding in Fassero,

Pierce has waived any claim for relief.

       The second holding in Fassero precludes Pierce’s argument that his article I,

section 19, claim cannot be waived because it “goes to the very power of the state” to

bring him before the trial court at all. The defendant in Fassero made this same

argument, and the Court rejected it, holding that a failure to comply with the retrial

deadline in article I, section 19, does not deprive the trial court of its “jurisdiction” to

retry the defendant. Fassero, 256 S.W.3d at 117. Pierce cannot avoid this holding

merely by using the word “authority” everywhere the defendant in Fassero used the word

“jurisdiction.” Because a defendant waives his claim under the constitutional retrial

deadline in article I, section 19, by not raising it when compliance is still possible,

Fassero necessarily – and explicitly – holds that the trial court’s authority to retry the

defendant is unaffected by this constitutional deadline unless and until the defendant


                                               7
asserts that deadline in a timely manner. Accordingly, the trial court had authority to

retry Pierce after the deadline in article I, section 19, passed because Pierce failed to

assert that deadline when it was still possible for the trial court to comply.

III.   The Trial Court Erred in Not Giving Pierce’s Requested
       Instruction on the “Nested” Lesser Offense of Possession

       In the companion case, State v. Jackson, __ S.W.3d __ (Mo. banc 2014) (No.

SC93108), the Court holds:

       The question presented in this case is whether the trial court can refuse to
       give a lesser included offense instruction requested by the defendant under
       section 556.046 when the lesser offense consists of a subset of the elements
       of the charged offense and the differential element (i.e., the element
       required for the charged offense but not for the lesser offense) is one on
       which the state bears the burden of proof. The answer, unequivocally, is
       no.

Id. at __ (slip op. at 1).

       As explained in Jackson, a trial court commits error under section 556.046 in such

circumstances because: (1) if the evidence is sufficient to convict the defendant of the

charged offense, there is always a basis in the evidence to convict the defendant of a

“nested” lesser offense; and (2) if the only difference between the charged offense and

the “nested” lesser offense is an element on which the state bears the burden of proof,

there is always a basis in the evidence to acquit the defendant of the charged offense

because the jury is free to disbelieve all or any part of the evidence concerning that

differential element. Jackson, __ S.W.3d at __ (slip op. at 24-28).




                                              8
        Here, the state charged Pierce with second-degree trafficking under

section 195.223.3, and the jury was instructed:

              As to Count I, if you find and believe from the evidence beyond a
        reasonable doubt:
                First, that on or about May 5, 2010, in City of St. Louis, State of
                Missouri, the defendant possessed more than 2 grams of a mixture or
                substance containing cocaine base, a controlled substance,
                Second, that defendant knew or was aware of the presence and
                nature of the controlled substance,
        then you will find the defendant guilty under Count I of trafficking 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.

        Pierce did not object to this instruction. Instead, he requested that the trial court

also instruct the jury on the lesser included offense of possession of a controlled

substance under section 195.202.1. 3 The only element required for second-degree

trafficking that is not also required for possession (i.e., the differential element) is that the

jury cannot convict the defendant of second-degree trafficking unless it finds beyond a


3
    Pierce tendered the following verdict director for the “nested” lesser offense of possession:
        As to Count I, if you do not find the defendant guilty of trafficking in the second
        degree as submitted in Instruction No. ___, you must consider whether he is
        guilty of possessing a controlled substance.
        As to Count I, if you find and believe from the evidence beyond a reasonable
        doubt:
                First, that on or about May 5, 2010, in the City of St. Louis, State of
                Missouri, the defendant possessed cocaine base, a controlled substance,
                and
                Second, that defendant knew or was aware of its presence and nature,
        Then you will find the defendant guilty under Count I of possessing a controlled
        substance.

                                                  9
reasonable doubt that the defendant was in possession of more than two grams of cocaine

base. For the reasons set forth in Jackson, the Court holds that the trial court erred in

refusing Pierce’s request to instruct the jury on the “nested” lesser offense of possession.

Accordingly, Pierce’s trafficking conviction must be vacated and the case remanded.

       As in Jackson, the trial court refused to instruct on the lesser offense in this case

because it concluded that – in light of the evidence showing that Pierce was in possession

of cocaine base weighing more than two grams – all reasonable jurors must believe that

evidence and find that the state proved this differential element beyond a reasonable

doubt. This was error. Cf. United Brotherhood of Carpenters & Joiners of Am. v. United

States, 330 U.S. 395, 410 (1947) (“No matter how clear the evidence, [defendants] are

entitled to have the jury instructed in accordance with the standards which Congress has

prescribed. To repeat, guilt is determined by the jury, not the court.”) (emphasis added).

       Under State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997), the state concedes

that the trial court cannot refuse to give a lesser offense instruction merely because Pierce

failed to introduce affirmative evidence contesting the differential element (i.e., the

weight of the cocaine base in Pierce’s possession). Nevertheless, the state contends that

Pierce was not entitled to an instruction on possession because he failed to put that

differential element “in dispute,” either by impeaching the credibility of the evidence

supporting that element or otherwise creating a “real question” as to why the jury should

disbelieve the evidence showing that the cocaine base in Pierce’s possession weighed

more than two grams. The state contends that Pierce failed to meet this requirement

because all of the evidences showed that he was carrying more than two grams of cocaine


                                             10
base and because Pierce never successfully impeached the credibility of that evidence or

explained how or why a reasonable jury could refuse to find that element proved beyond

a reasonable doubt.

       This Court has often said that the jury is the sole and final arbiter of the facts and,

in that role, the jury is entitled to believe or disbelieve all or any part of the evidence

before it. See, e.g., State v. Celis-Garcia, 344 S.W.3d 150, 159 (Mo. banc 2011) (“Of

course, the jury was free to believe or disbelieve any of the witness testimony.”); State v.

Williams, 313 S.W.3d 656, 660 (Mo. banc 2010) (“A jury may accept part of a witness’s

testimony, but disbelieve other parts.”) (quoting State v. Pond, 131 S.W.3d 792, 794 (Mo.

banc 2004)); State v. Hineman, 14 S.W.3d 924, 927 (Mo. banc 1999) (“The jury is

permitted to draw such reasonable inferences from the evidence as the evidence will

permit and may believe or disbelieve all, part, or none of the testimony of any witness.”).

Some principles prove easier to utter than to abide, however, and so it is with this one.

       If the Court is to be true to this oft-stated principle, then this Court must also

acknowledge the unavoidable corollary that “evidence never proves any element until the

jury says it does.” Jackson, __ S.W.3d at ___ (slip op. at 2).

       No matter how strong, airtight, inescapable, or even absolutely certain the
       evidence and inferences in support of the differential element may seem to
       judges and lawyers, no evidence ever proves an element of a criminal case
       until all 12 jurors believe it, and no inference ever is drawn in a criminal
       case until all 12 jurors draw it.

Jackson, __ S.W.3d at ___ (slip op. at 16) (emphasis in the original).

       Here, the trial court overruled Pierce’s requested instruction on the lesser offense

of possession because it concluded that no reasonable jury could believe the evidence


                                               11
showing that Pierce possessed a controlled substance without also believing the evidence

that the substance was cocaine base and that it weighed more than two grams. This was

error. The decision of what evidence to believe or disbelieve belongs solely to the jury.

In determining what instructions are supported by the evidence, the trial court (like the

appellate court) is required to decide what facts a reasonable jury may find from the

evidence, but it is never permitted to go further and decide what facts the jury must find.

       The state attempts to characterize its argument in the familiar terms of a

sufficiency review, i.e., that the evidence in this case does not support a conviction for

possession, but that is plainly wrong. Because possession is a “nested” lesser offense of

the charged crime of second-degree trafficking, any evidence that is sufficient to prove

the elements of that charged crime must be sufficient to prove the subset of those

elements that comprise the crime of possession.

       The unstated premise of the state’s argument is that the evidence in this case is not

sufficient for a reasonable jury to find that Pierce’s cocaine base weighed less than two

grams. This assertion is reasonable, given the nature of the evidence, but it is wholly

irrelevant. The jury was not required to find that Pierce’s cocaine base weighed less than

two grams in order to convict him of possession. “Less than two grams” is not an

element of possession. Evidence containing undisputed – even undisputable – proof that

the defendant possessed more than two (or 2,000) grams of cocaine base is sufficient to

convict that defendant of possession because the jury is not required to make any finding

about weight in order to return a guilty verdict for that crime. See Jackson, __ S.W.3d at

__ (slip op. at 26) (evidence that defendant “was carrying a bazooka and a machete” is


                                             12
irrelevant to whether the evidence is sufficient to support second-degree robbery because

the jury does not have to decide whether the defendant was or was not armed in order to

convict the defendant of that crime).

       By the same token, the jury in this case did not have to find that Pierce’s cocaine

base weighed less than two grams in order to acquit him of second-degree trafficking.

Under the instruction for second-degree trafficking, the jury was told that the state had

the burden of proving beyond a reasonable doubt that this substance weighed more than

two grams. Because a jury may always believe or disbelieve all or any part of the

evidence before it, the state’s burden of proof is carried only when the jury says it is, i.e.,

when the jury returns a unanimous guilty verdict.

       The only thing the defendant has to do to hold the state to this burden of proof, or

to put the elements of a crime “in dispute,” is to plead not guilty. See Jackson, __

S.W.3d at __ (slip op. at 27-28); State v. Moore, 435 S.W.2d 8, 11-12 (Mo. banc 1968)

(“It must be remembered, however, that the defendant here entered a plea of not guilty

which puts in issue all facts constituting” the crime and the defendant’s guilt).

Accordingly, once the defendant pleads not guilty, there will always be a basis in the

evidence to acquit the defendant at trial because the jury – and only the jury – is the final

arbiter of what that evidence does and does not prove.

       [I]n a jury trial the primary finders of fact are the jurors. Their overriding
       responsibility is to stand between the accused and a potentially arbitrary
       or abusive Government that is in command of the criminal sanction. For
       this reason, a trial judge is prohibited from entering a judgment of
       conviction or directing the jury to come forward with such a verdict,
       regardless of how overwhelmingly the evidence may point in that direction.
       The trial judge is thereby barred from attempting to override or interfere


                                              13
       with the jurors’ independent judgment in a manner contrary to the
       interests of the accused.

United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) (emphasis added)

(citations omitted).

       As in Jackson, therefore, the Court holds that where the defendant requests the

trial court to instruct the jury on a “nested” lesser offense, the trial court cannot refuse to

give that instruction solely because the court concludes that the evidence is so

overwhelming that all reasonable jurors must find the differential element proved beyond

a reasonable doubt. “Unless waived, the right to trial by jury means that the jury – and

only the jury – will decide what the evidence does and does not prove beyond a

reasonable doubt.” Jackson, __ S.W.3d at __ (slip op. at 21). Accordingly, the Court

vacates Pierce’s conviction for second-degree trafficking and remands the case for further

proceedings.

IV.    The Evidence was Sufficient to Prove that
       Pierce Committed the Crime of Resisting Arrest

       Pierce asserts that the state did not present sufficient evidence to support his

conviction for resisting arrest. This Court’s review of this claim is limited to a

determination of whether there was sufficient evidence admitted at trial for a reasonable

jury to find Pierce guilty of this crime beyond a reasonable doubt. State v. Silvey, 894

S.W.3d 662, 673 (Mo. banc 1995). The Court considers the evidence (and reasonable

inferences) supporting the jury’s verdict in the light most favorable to that verdict and

will disregard any evidence or inferences that are inconsistent with that verdict. Id.




                                              14
       Under section 575.150.1, Pierce committed the crime of resisting arrest if: (1) he

knew or reasonably should have known that a law enforcement officer was making an

arrest; (2) he resisted that arrest by using or threatening to use violence or physical force

or by fleeing from the officer; and (3) he did so for the purpose of preventing the officer

from completing the arrest. Pierce admits that he knew the officer was attempting to

arrest him, and he admits that he ran from the officer so the officer could not do so.

Pierce argues that he cannot be convicted of resisting arrest, however, because he started

running before the officer decided to – or had grounds to – arrest him. In other words,

because the officer did not attempt to arrest him (or have grounds to arrest to him) until

he saw Pierce throw away the cocaine (which happened during, not prior to, Pierce’s

flight), Pierce argues that his flight cannot constitute resisting arrest.

       Pierce relies on decisions from the court of appeals that hold that merely running

from an officer is not resisting arrest if the officer was not attempting to arrest the

defendant when he began to run. See, e.g., State v. Long, 802 S.W.2d 573, 577 (Mo.

App. 1991). But these cases do not mean that a defendant is immune from arrest (or

prosecution for resisting arrest) as long as he runs before the officer attempts to arrest

him, nor would such a rule be supported by the language of the statute. See State v.

Chamberlin, 872 S.W.2d 615, 618 (Mo. App. 1994) (“[d]uring a suspect’s flight from a

law enforcement officer, the actions of the suspect may constitute a separate crime,

giving rise to a reason to arrest the suspect”); State v. Hopson, 168 S.W.3d 557, 561

(Mo. App. 2005) (evidence supported conviction for resisting arrest, even though the

flight started before officers had grounds to arrest, because the defendant gave the


                                               15
officers grounds to arrest by throwing narcotics out of his car and the defendant

continued to flee after the officers attempted to arrest him).

       Here, it does not matter whether the officers were attempting to arrest Pierce at the

moment he started running. What matters is whether Pierce continued to run after the

officer told Pierce to stop because he was under arrest. The evidence was sufficient for

the jury to find that Pierce continued running after he dropped the bag that gave the

officer probable cause to arrest him and, more importantly, that he continued to run after

the officer told Pierce he was under arrest and ordered him to stop. Finally, the evidence

was sufficient to prove that Pierce’s purpose in continuing to run after being told he was

under arrest was to avoid that arrest. Accordingly, Pierce’s conviction for resisting arrest

is affirmed.

V.     Conclusion

For the reasons set out above, Piece’s conviction for resisting arrest is affirmed.         His

conviction for second-degree trafficking is vacated, however, and the case is remanded.



                                                   _________________________________
                                                   Paul C. Wilson, Judge


Russell, C.J., and Fischer, J., concur; Breckenridge, J., concurs in section II of opinion of
Wilson, J.; Teitelman, J., concurs in opinion of Wilson, J., except section II; Stith, J.,
concurs in part and dissents in part in separate opinion filed; Breckenridge, J., concurs in
section II of opinion of Stith, J.; Teitelman, J., concurs in section I of opinion of Stith, J.;
Draper, J., dissents in separate opinion filed; Stith, J., concurs in opinion of Draper, J.




                                              16
                SUPREME COURT OF MISSOURI
                                        en banc

STATE OF MISSOURI,                                )
                                                  )
                Respondent,                       )
                                                  )
v.                                                )      No. SC93321
                                                  )
BRUCE PIERCE,                                     )
                                                  )
                Appellant.                        )

            OPINION CONCURRING IN PART AND DISSENTING IN PART

       I agree that sufficient evidence supported Mr. Pierce’s resisting arrest conviction.

       Although I concur with the principal opinion that retrial of Mr. Pierce did not

violate article I, section 19, I do so on different grounds. As set out in Section I below,

Mr. Pierce did not waive his right to claim such a violation by not alerting the court of the

deadline prior to its passage. It was not his responsibility to keep track of such deadlines

for the court, and no objection was required as the passage of the deadline did not violate

any of his rights; they could be violated only by the State’s attempt to retry him. He did

timely raise the article I, section 19 claim as soon as retrial occurred. By that point,

however, he repeatedly had consented to delays in his retrial. Just as is the case with

traditional double jeopardy rights, a violation does not occur when the defendant consents

to the delay.



                                             1
         I disagree entirely with the principal opinion’s holding that a trial court always

must submit a lesser included offense instruction if requested to do so by a party. The

principal opinion intentionally leaves vague the source of that requirement. In places, it

implies that this obligation is inherent in the right to jury trial, yet it never says that a

court’s refusal to instruct down violates a defendant’s right to jury trial. It could not do

so, for, as discussed in Section II below, the United States Supreme Court has made it

clear that the right to jury trial does not bar the courts from limiting lesser included

offense instructions to those that a reasonable juror could find supported by the evidence.

Rather, the United States Supreme Court has said that submitting unsupported lesser

included offenses invites arbitrary decision making and, therefore, itself invites due

process scrutiny.

         In other places, the principal opinion suggests that lesser included offense

instructions are required by statute.      Yet the governing Missouri statute, section

556.046.2, RSMo 2000,1 provides exactly the contrary, stating that a trial court is

obligated to instruct down “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” (emphasis added). See

also § 556.046.3, RSMo Supp. 2013. The principal opinion is in conflict with these

statutory standards.

         In yet other places, the principal opinion suggests its result necessarily follows

from this Court’s prior recognition that a defendant need not put on affirmative evidence

1
    All statutory references are to RSMo 2000 unless otherwise noted.
                                              2
to support a request for a lesser included offense instruction. In so stating, the principal

opinion blatantly ignores the portions of the key case on which it and the companion

case, State v. Jackson, rely – State v. Williams, which, while repeating the admonition

that affirmative evidence is not required, also holds that an instruction down is required

only when “a reasonable juror could draw inferences from the evidence presented that an

essential element of the greater offense has not been established.” 313 S.W.3d 656, 660

(Mo. banc 2010).

       In so holding, Williams reaffirmed the standard followed by numerous prior

Missouri cases. That is also the standard followed by the United States Supreme Court

and by 47 of our 49 fellow states. It is the standard this Court should continue to follow.

       Indeed, not even the defense asked this Court to reject its long-standing rule and

hold that lesser included offense instructions must be submitted even if a reasonable juror

could not find them to be supported. The principal opinion created an issue where there

was none. It then nullified a statute and overruled this Court’s precedent without the

benefit of argument or briefing. Principles of due process and separation of powers

counsel against such activism.

       Finally, assuming just for the moment that the principal opinion is correct that a

defendant is entitled to a lesser included offense instruction even if a rational juror could

not convict him of the lesser offense and acquit him of the greater, Mr. Pierce is not

entitled to one here, for he conceded that the State had proved the only element

differentiating the greater and lesser offenses by admitting in closing argument, in his

motion for new trial and in the instruction conference that the substance seized weighed

                                             3
more than two grams. Yet the jury could acquit of the greater offense only if it found he

did not possess more than two grams. The principal opinion thereby holds that defense

counsel cannot concede an issue. The folly that this will cause in future cases and the

arguments that heretofore would have been held waived but that henceforth must be

considered on the merits cannot be overstated.

       Because the principal opinion changes the law in contravention of Missouri statute

and this Court’s precedent and ignores the facts conceded by the defense, I dissent from

the principal opinion’s holding that the trial court erred in refusing to instruct the jury on

the lesser included offense of possession.

I.      MR. PIERCE WAIVED HIS OBJECTIONS TO RETRIAL UNDER ARTICLE
       I, SECTION 19

       Article I, section 19 requires that, when a mistrial is declared because the jury

cannot reach a verdict, the case must be set for retrial in the same or the following term.

That requirement was not followed here. Mr. Pierce, therefore, moved the trial court to

dismiss his case because of failure to comply with article I, section 19 at the start of his

second trial in November 2011. The principal opinion concludes that this was too late

and that Mr. Pierce waived his claim under the retrial deadline in article I, section 19,

because he failed to raise it at his earliest opportunity, stating, “Pierce had multiple

opportunities to raise that deadline when the trial court was considering whether to

continue his retrial prior to (and, ultimately, beyond) that date. He chose not to do so.”

(Slip op. at 6).




                                              4
       This is incorrect. The key case that the principal opinion cites for this rule, State

v. Fassero, concerns errors that the defendant attempted to raise for the first time on

appeal. 256 S.W.3d 109, 117 (Mo. banc 2008) (not analyzing when an article I, section

19 retrial deadline argument must be raised but merely applying the rule that “issues that

are not raised in the trial court are waived”). 2 Of course, Mr. Pierce did not raise this

issue for the first time on appeal; he raised it in the trial court at the start of his second

trial. So why does the principal opinion say he raised it too late to preserve it? Because

it says he has an obligation to object when there is still time for the prosecution or court

to correct the situation. But why? In what other circumstance do the courts require a

defendant to tell the prosecution that it is about to let an important deadline pass that may

be beneficial to the defendant? Does the defendant also waive the statute of limitations

by not warning the court or prosecutor that it is about to expire? Must a defendant now

inform the prosecutor that, if she empanels the jury, double jeopardy will attach or risk

waiving her right to claim that double jeopardy attached? Must a defendant warn the

prosecutor who asks for a mistrial that, if granted, will allow the defendant to claim

double jeopardy?

       Indeed, does the principal opinion’s reasoning mean that defendant’s failure to

raise a double jeopardy claim also constitutes a “waiver” of defendant’s right to later

claim double jeopardy when a retrial is ordered? Of course it does not. To so hold would

2
 The other cited case, Douglass v. Safire, 712 S.W.2d 373, 374 (Mo. banc 1986), states
simply that a claim that a verdict is inconsistent must be brought before the jury is
discharged. It is inapposite here, as the first jury long had been discharged and the
second not empaneled when Mr. Pierce raised his article I, section 19 claim at the start of
the second trial, when the error in his case first occurred.
                                              5
turn double jeopardy law on its head. The law is well settled that a defendant is under no

obligation to inform the court that if it dismisses suit, that defendant cannot be retried

without violating double jeopardy principles. To the contrary, our cases explicitly hold

that a defendant need not raise a double jeopardy objection until the state attempts to

retry him or her, for only at that point is double jeopardy violated. In fact, as State v.

Tiger, 972 S.W.2d 385, 391 n.1 (Mo. App. 1998), explained, “We could not logically

require [Defendant] to preserve [his double jeopardy claim] at his first trial, since no

double jeopardy would yet have occurred. It only arose once the State decided to proceed

against [Defendant] a second time.” Accord State ex rel. Reynolds v. Kendrick, 868

S.W.2d 134, 136 (Mo. App. 1993). In effect, the principal opinion’s reasoning requires

the defendant to become an advocate for the state, saving it from its own failure to

recognize a double jeopardy situation. This the law does not require in the case of

traditional double jeopardy, and neither should it so require here.

       While not involving the classic form of double jeopardy, the retrial deadline is

likewise contained within article I, section 19 of the Missouri Constitution, which

actually is titled “Self-incrimination and double jeopardy.” Like classic double jeopardy,

the retrial deadline precludes retrial of a defendant if its requirements are not met. It is

logical, therefore, that the principles governing application of a classic double jeopardy

claim under article I, section 19 also govern application of article I, section 19’s retrial

deadline.

       A defendant need not alert the state if it is about to take an action that would result

in a violation of double jeopardy if the defendant later were to be retried. So too, Mr.

                                              6
Pierce was not required to alert the court that, if it did not try him within the same or the

next term after his first mistrial, it would violate his article I, section 19 rights. Of

course, once that retrial commenced, he was obligated to raise his article I, section 19

retrial deadline objection, and he did just that. That was the proper time to do so, for

before that time, none of his rights under article I, section 19 had been violated. Only the

actual retrial could constitute such a violation.

       This does not mean, however, that Mr. Pierce’s article I, section 19 rights were

violated. It means only that he did not waive them by failing to alert the court to the

existence of the deadline for retrial set out in article I, section 19 before it had passed.

       Double jeopardy principles do not always protect a defendant from retrial. It is

axiomatic that a defendant who appeals a case and asks for a remand for new trial, for

example, cannot claim the retrial violates his right to be free from double jeopardy.

Similarly, a defendant who requests or causes a mistrial cannot complain that the

resulting retrial violates double jeopardy. State v. Tolliver, 839 S.W.2d 296, 299 (Mo.

banc 1992). The rationale of Tolliver and similar cases is that no violation of double

jeopardy protections occurs when it is the defendant who caused or consented to retrial.

Id. Consent to mistrial is not a waiver of double jeopardy rights so much as it is the

failure of double jeopardy protections to apply in the first instance, much like voluntary

consent to a search would preclude a claim of a Fourth Amendment violation and

voluntary agreement with a request not to print a fact would preclude later claiming a

First Amendment violation.



                                               7
       And, just as one can consent to a retrial, and just as one can consent to a search

that otherwise might violate the Fourth Amendment or to a restriction on speech that

otherwise might violate the First Amendment, so too one can consent to a continuance of

a trial to a date that otherwise might violate article I, section 19. Such consent is valid

and precludes the defendant from later claiming that his retrial violates that constitutional

provision. Id.

       In the context of double jeopardy violations, consent to a mistrial may be express

or implied. Id. In analyzing whether a defendant has consented and so vitiated any

double jeopardy bar, this Court employs a case-specific factual analysis rather than a

“mechanical formula.” Id. “[C]onsent may always be implied from the totality of the

circumstances attendant on the declaration of a mistrial.” Id.

       Mr. Pierce’s first trial began on November 9, 2010, which fell within the

November 2010 term. The next term began on February 14, 2011 and ended on May 6,

2011. His retrial originally was set within the same term as his first trial, on January 10,

2011. The first two continuances would have allowed the trial to occur within the next

term, but the third through seventh continuances placed the retrial past May 6, 2011, the

last day of the next term following his first trial.

       Mr. Pierce objected to none of these continuances, despite being represented by

counsel in each instance, and he requested two of them. He has not supplemented the

record with any evidence that he ever moved to set a trial date, nor has he claimed that he

had no opportunity to object. The totality of the circumstances shows that Mr. Pierce



                                                8
impliedly consented to the delay in the start of his second trial and thereby vitiated any

claim that article I, section 19 barred his retrial after the end of the next term of court.

       Accordingly, I concur that article I, section 19 does not bar Mr. Pierce’s retrial, but

I would hold that this is because he consented to the delays, not because he waived his

right by not alerting the court or prosecutor to the article I, section 19 issue before the

deadline for retrial passed.

II.    THE TRIAL COURT DID NOT ERR IN REFUSING TO SUBMIT AN
       INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF POSSESSION

       A.     The Trial Court’s Authority to Instruct the Jury

       The principal opinion’s holding that a court always must instruct down if

requested subverts the trial court’s exclusive authority to declare the law and requires this

Court to overrule more than 15 years of its own precedent and to nullify the effect of two

validly enacted statutes.

       The principal opinion says this result is required by the rule that the jury has a

right to believe or disbelieve all or any part of the evidence. Certainly, our cases so

provide. See, e.g., Williams, 313 S.W.3d at 660.

       But the principal opinion then goes on to reach a conclusion never before reached

in any other Missouri case – that the “unavoidable corollary” of this rule is that any

requested lesser included offense instruction must be submitted to the jury, even if no

reasonable juror could find the fact on which it is premised, because “[a]ll decisions as to

what evidence the jury must believe and what inferences the jury must draw are left to the




                                               9
jury.”    In effect, the principal opinion concludes that the jury’s ability to believe and

disbelieve evidence somehow restricts the trial court’s discretion to instruct the jury.

         This logic confuses questions of law with questions of fact. It undercuts the

fundamental structure of our court system, in which the court’s function is to declare the

law and the jury’s function is to apply the law. United States v. Gaudin, 515 U.S. 506,

513 (1995); Sparf v. United States, 156 U.S. 51, 102 (1895). The jury’s right to find facts

cannot shape the trial court’s declaration of law.

         As the United States Supreme Court notes in Sparf, “It is true, the jury may

disregard the instructions of the court, and in some cases there may be no remedy. But it

is still the right of the court to instruct the jury on the law, and the duty of the jury to obey

the instructions.” 156 U.S. at 72 (emphasis added). In other words, the jury’s function

and the court’s function are different; that the jury has the power to disregard the law

does not deprive the court of its fundamental authority to declare and instruct on the law.

         But by mandating that courts instruct the jury on a lesser included offense

whenever a party so requests, the principal opinion effectively strips courts of their

authority to declare the law in these circumstances. This is wrong, for “the judge always

has the right and duty to tell [the jury] what the law is upon this or that state of facts.”

Horning v. District of Columbia, 254 U.S. 135, 138 (1920), abrogated on other grounds

as recognized by Gaudin, 515 U.S. at 520.

         Exercising this authority, the Supreme Court holds that an “independent

prerequisite for a lesser included offense instruction [is] that the evidence at trial must be

such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit

                                               10
him of the greater.” Schmuck v. United States, 489 U.S. 705, 720 n.8 (1989); see also

Keeble v. United States, 412 U.S. 205, 208 (1973) (“[T]he defendant is entitled to an

instruction on a lesser included offense if the evidence would permit a jury rationally to

find him guilty of the lesser offense and acquit him of the greater”).

       As Sparf states, “If the jury were to be made judges of the law as well as of fact,

parties would be always liable to suffer from an arbitrary decision.” 156 U.S. at 96.

Consequently, “The lesser-included offense charge is not required simply because the

jury could exercise its power of acquitting on the greater charge for no reason at all.”

United States v. Tsanas, 572 F.2d 340, 343 (2d Cir. 1978). 3

       For this reason, the Supreme Court expressly has disapproved of state laws that

require a trial court to instruct down when there “is not a scintilla of evidence to support

the lesser verdicts.” Roberts v. Louisiana, 428 U.S. 325, 334 (1976) (plurality opinion).

The Supreme Court also admonishes that “[a] lesser included offense instruction is only

proper where the charged greater offense requires the jury to find a disputed factual



3
  On this issue, the principal opinion cites language from the United States Supreme
Court espousing the rule that a trial court is prohibited from directing a verdict against a
defendant in a criminal case. We note also that in State v. Jackson, --- S.W.3d --- (Mo.
banc 2014), a companion case, the principal opinion states, without a supporting citation,
that a trial court’s refusal to instruct down where a party has so requested amounts to
impermissibly directing a verdict against the defendant.
       The United States Supreme Court rejected this argument in Sparf, 156 U.S. at 102-
03, 105-07. Sparf recognized a trial court’s authority to decide as a matter of law
whether to instruct down and held that the trial court did not err in refusing a request to
instruct down. Relying on Sparf, at least two other states have directly rejected the
argument that a court’s refusal to instruct down constitutes a directed verdict, People v.
Prince, 40 Cal. 4th 1179, 1269-70 (Cal. 2007); Hartley v. State, 653 P.2d 1052, 1055
(Alaska App. 1982).
                                             11
element which is not required for a conviction of the lesser-included offense.” Sansone v.

United States, 380 U.S. 343, 349-50 (1965).

       Not surprisingly, in light of this wealth of Supreme Court cases, every state except

Iowa and Florida requires a basis in the evidence for a court to be obligated to instruct

down. See, e.g. Ex parte Smith, 756 So.2d 957, 963 (Ala. 2000) (“A defendant is entitled

to a charge on a lesser-included offense only if there is any reasonable theory from the

evidence to support the charge”). 4

       Nonetheless, in the face of nearly unanimous precedent among the federal and

state courts, the principal opinion implicitly holds that a trial court’s authority to refuse to

instruct down violates the defendant’s right to have his guilt determined by a jury. 5 In


4
  Accord State v. Wall, 126 P.3d 148, 151 (Ariz. 2006); Atkinson v. State, 64 S.W.3d 259,
268 (Ark. 2002); People v. Hughes, 27 Cal.4th 287, 366 (Cal. 2002); State v. Tomlin, 835
A.2d 12, 27 (Conn. 2003); State v. Hupp, 809 P.2d 1207, 1212 (Kan. 1991); Perry v.
Commonwealth, 839 S.W.2d 268, 273 (Ky. 1992); Commonwealth v. Porro, 939 N.E.2d
1157, 1167 (Mass. 2010); People v. Cornell, 646 N.W.2d 127, 130 (Mich. 2002); State v.
Dahlin, 695 N.W.2d 588, 595-97 (Minn. 2006); State v. Brent, 644 A.2d 593, 118 (N.J.
1994); People v. Van Norstrand, 647 N.E.2d 1275, 1278 (N.Y. 1995); State v.
Tamburano, 271 N.W.2d 472, 475 (Neb. 1978); Rosas v. State, 147 P.3d 1101, 1106-07
(Nev. 2006), abrogated on other grounds by Willing v. State, 2013 WL 3297070, at *2
(Nev. May 14, 2013); State v. Keller, 695 N.W.2d 703, 711 (N.D. 2005); State v. Wilkins,
415 N.E.2d 303, 308 (Ohio 1980); State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999);
Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994); State v. Fernandez-Medina, 6
P.3d 1150, 1154 (Wash. 2000); State v. Sarabia, 348 N.W.2d 527, 531 (Wis. 1984).
Contra State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988); State v. Wimberly, 498 So.2d
929, 932 (Fla. 1986).
       These cases and their holdings are discussed in more detail in the separate opinion
of Stith, J., in State v. Jackson, --- S.W.3d --- (Mo. banc 2014), also handed down this
day.
5
  An analogy to cases discussing a court’s review of the sufficiency of the evidence may
prove helpful. A sufficiency of the evidence analysis requires a court to determine
“whether the record evidence could reasonably support a finding of guilt beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). In Jackson, the
                                              12
support, it cites only to Missouri statutes and to prior Missouri cases. As shown below,

neither supports its reasoning.

       B.     Missouri Statutes Require Trial Courts to Instruct Down Only When
              There Is a Basis in the Evidence to Do So

       Section 556.046.2 provides in relevant part:

       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.

§ 556.046.2 (emphasis added). The legislature amended section 556.046 in 2001 to

include subsection (3), which states:

       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.

§ 556.046.3, RSMo Supp. 2013 (emphasis added).

       The principal opinion guts the express language of sections 556.046.2 and

556.046.3 confining a trial court’s obligation to instruct down to situations in which there

is “a basis” for doing so when it holds that “there is always a basis in the evidence …


Supreme Court holds that in determining the sufficiency of the evidence, “The relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. at 319 (emphasis added). The “rational trier of
fact” standard, Jackson explains, is permissible because it “impinges upon ‘jury’
discretion only to the extent necessary to guarantee the fundamental protection of due
process of law.” That is, a court’s authority when reviewing the sufficiency of the
evidence to determine what fact a jury can and cannot find based on the reasonable juror
standard does not impermissibly infringe on the jury’s ability to believe or disbelieve any
or all of the evidence.
                                            13
because the jury is free to disbelieve all or any part of the evidence.” This reasoning

renders the requirement that there be a basis in the evidence mere surplusage, thereby

nullifying it and overruling an entire line of case law giving meaning to this statutory

requirement.    Moreover, in writing this express requirement out of existence, the

principal opinion transgresses well-established rules of statutory construction and

separation of powers, which require that courts avoid interpreting statutes in a way that

renders their language meaningless or unreasonable. See Am. Fed’n of Teachers v.

Ledbetter, 387 S.W.3d 360, 363 (Mo. banc 2012). This is just what the principal opinion

has done in interpreting the statutory requirement as always being satisfied when the

statute expressly states that it is only satisfied under certain conditions.

       This Court repeatedly has identified the proper approach to construing a statute.

“In determining legislative intent, this Court [should consider] the language of the statute

and words employed in their plain and ordinary meaning.” Finnegan v. Old Republic

Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. banc 2008); accord Goerlitz v. City

of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011), quoting Parktown Imports, Inc. v.

Audi of America, Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). “Where the language is

clear and unambiguous, there is no room for construction.”                 Hyde Park Hous.

Partnership v. Dir. of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993). “It is presumed that

the legislature intended that every word, clause, sentence, and provision of a statute have

effect.”   Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 673 (Mo. banc 2010)

(Breckenridge, J., concurring).



                                              14
       Applying these principles here, there is no room for statutory construction. The

plain meaning of sections 556.046.2 and 556.046.3 is indisputable: a trial court is

required to instruct down only when there is a basis in the evidence for so doing.

       The practical consequences of the principal opinion’s new rule highlight its

incompatibility with the plain meaning of section 556.046. Take, for example, a situation

in which the defendant is charged with armed robbery, and the evidence, including a

surveillance video, indisputably shows that the robber carried a large firearm when he

committed the robbery. The defendant denies that he was the person who committed the

robbery but does not contest that the robber used a firearm. He requests a lesser included

instruction on unarmed robbery.

       As this Court’s traditional interpretation of section 556.046.2 entitles a party to a

lesser included offense instruction only if there is a basis for a verdict (1) acquitting the

defendant of the charged offense and (2) convicting him of the lesser offense, the trial

court would not be required to instruct down because there is no basis to convict the

defendant of unarmed robbery. That is because there is no dispute that an armed robbery

occurred, the only dispute is whether the defendant was the robber. Consequently, there

may be a basis to acquit the defendant of the greater offense, but, if so, there can be no

basis to convict him of the lesser offense: he either is guilty of armed robbery or innocent

of any crime. Indeed, this Court and the court of appeals have reached this same

conclusion under parallel circumstances. See, e.g., State v. Amerson, 518 S.W.2d 29, 33

(Mo. 1975) (holding the trial court properly refused to instruct on second-degree murder

when the crime was either “a cold-blooded and wholly unprovoked murder” or “the

                                             15
accused was guilty of no crime at all” because another committed the act). 6 This is the

result that a plain meaning interpretation of sections 556.046.2 and 556.046.3 requires.

       Yet under the principal opinion’s holding, a trial court nonetheless would be

required to instruct the jury on unarmed robbery. The principal opinion explains that this

is because evidence necessary to support the differential element of a greater charge is

“wholly irrelevant” to a jury’s ability to convict the defendant of the lesser charge and,

because the State has the burden of proof, the jury always can acquit him of the greater

charge, even when there is “undisputable” evidence that the person who committed the

offense, whether or not it was defendant, committed the greater crime.

       This is precisely the arbitrary decision-making the United States Supreme Court

sought to avoid when it approved a trial court’s refusal to instruct down in Sparf, 156

U.S. at 63-64, 102-03. As explained by Professor Wayne LaFave, for the trial court to

give such a charge under those circumstances “is inappropriately to invite the jury to

exercise a degree of mercy by finding defendant guilty of a lesser crime, when the proof

truly justified conviction as charged.” 6 Wayne LaFave, Criminal Procedure § 24.8(f),

503 (3d ed. 2007). Similarly, the Supreme Court long has held that “it is clearly error in

a court to charge the jury upon a supposed or conjectural state of facts, of which no

evidence has been offered.” United States v. Breitling, 61 U.S. 252, 254 (1857); Quercia

v. United States, 289 U.S. 466, 470 (1933) (additional citation omitted). Indeed, “due

process requires that a lesser included offense instruction be given only when the

6
 This Court reached the same conclusion on similar circumstances in State v. Mease, 842
S.W.2d 98, 112 (Mo. banc 1992). See also State v. Lowe, 318 S.W.3d 812, 822 (Mo. App.
2010).
                                            16
evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. 605, 611 (1982)

(emphasis original).

       The jury’s province in determining guilt is not at issue here; this case involves the

court’s authority to instruct, and the legislature explicitly delineated this authority when it

promulgated section 556.046.2 and, later, section 556.046.3, which confine the

requirement for a trial court to instruct down to certain circumstances. That the jury has

free range to find the facts does not deprive a court of its authority—and obligation—to

apply the law.

       C.    Prior Missouri Cases Require a Basis in the Evidence to Instruct Down

       The principal opinion finally justifies its result by stating it is required by prior

case law. In support, it refers the reader to detailed discussion of those cases in the

companion case, State v. Jackson, --- S.W.3d --- (Mo. banc 2014). Of course, if those

prior cases erroneously interpreted section 556.046 to require instructing down regardless

of the evidence, they would be incorrect for the reasons just set out. But these cases do

not so require.

       Williams, the primary authority relied on by Jackson, is the latest in the line of this

Court’s lesser included offense instruction cases. It, like its predecessors, does not state

that a lesser included offense instruction must be given whenever requested, as the

majority now holds for the first time.         Rather, Williams reaffirms that a party’s

entitlement to a lesser included offense instruction under 556.046 is determined by

whether “a reasonable juror could draw inferences from the evidence presented that an



                                              17
essential element of the greater offense has not been established.” 313 S.W.3d at 660

(emphasis added).

      Myriad prior cases decided by this Court and the court of appeals similarly have

recognized that the issue is what “a reasonable juror” can infer from the evidence, not

what unreasonable inferences might be possible if the jury chose not to act rationally.

Among these cases are State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004) (holding that

the defendant was entitled to a lesser included offense when discrepancies in the victim’s

statements to witnesses and her testimony at trial could have led a “reasonable jury [to]

find the prior statements more believable”), State v. Derenzy, 89 S.W.3d 472, 474 (Mo.

banc 2002) (“If a reasonable juror could draw inferences from the evidence presented

that an essential element of the greater offense has not been established, the trial court

should instruct down”), State v. Beeler, 12 S.W.3d 294, 300 (Mo. banc 2000) (“[W]here

the facts are such that no rational factfinder could conclude the defendant acted without

deliberation, no second degree murder instruction is required”), State v. Hineman, 14

S.W.3d 924, 927 (Mo. banc 1999) (same), State v. Hibler, 5 S.W.3d 147, 148 (Mo. banc

1999) (“A reasonable jury could have believed that appellant did not attempt to kill the

victim …. Therefore, there was a basis for acquitting appellant of first degree assault

….”), State v. Yacub, 976 S.W.2d 452, 453 (Mo. banc 1998) (applying rational juror

standard), State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997) (“If a reasonable juror

could draw inferences from the evidence presented that an essential element of the

greater offense has not been established, the trial court should instruct down”), and

Mease, 842 S.W.2d at 112 (approving the trial court’s refusal to instruct down in first-

                                           18
degree murder case when “the only reasonable conclusion” was that the defendant

deliberately murdered the victim).

       In other words, each of these cases holds that an evidentiary basis for acquittal of

the charged offense and conviction of the lesser offense is a predicate requirement to

instructing down.     And the reasonable juror standard defines whether that basis is

sufficiently established. To remove the reasonable juror standard from the analysis of

whether a court properly refused to instruct down requires overruling Williams and each

of these cases, which invokes stare decisis.

       As this Court repeatedly has emphasized, “a decision of this Court should not be

lightly overruled.” Eighty Hundred Clayton Corp. v. Dir. of Revenue, 111 S.W.3d 409,

411 n.3 (Mo. banc 2003). Stare decisis “promotes stability in the law by encouraging

courts to adhere to precedents.” State v. Honeycutt, 421 S.W.3d 410, 422 (Mo. banc

2013), quoting Med. Shoppe Int’l, Inc. v. Dir. of Revenue, 156 S.W.3d 333, 334-35 (Mo.

banc 2005).      Moreover, “stare decisis is most essential regarding prior statutory

interpretations because it is there that the rule of law and respect for the separation of

powers meet.” Templemire v. W & M Welding, Inc., --- S.W.3d --- (Mo. banc 2014)

(Fischer, J., dissenting).

       When, as in Templemire, the prior interpretation of the statute was inconsistent

with the plain meaning of the statute, the rules of construction required this Court to

overrule its prior precedent, which improperly added words to the statute by judicial fiat

rather than by legislative enactment. But here, the principal opinion’s departure from this



                                               19
Court’s previous interpretation of sections 556.046.2 and 556.046.3 without any directly

supportive authority is precisely the type of action stare decisis is designed to restrain.

       In sum, Williams, Pond, other cases, the Missouri statute, and constitutional

principles of due process require a basis in the evidence from which a reasonable juror

could acquit the defendant of the greater offense and convict him of the lesser. For these

reasons and those stated in my dissenting opinion in State v. Jackson, I would hold that a

juror’s right to disbelieve all or any of the evidence does not justify submitting a question

to the jury that no reasonable juror could conclude was supported by the evidence.

       D.     Mr. Pierce Was Not Entitled to an Instruction on the Lesser Included
              Offense of Possession

       Applying these principles here, the question is whether a reasonable juror could

find that the State had failed to prove that Mr. Pierce possessed more than two grams of a

substance containing cocaine but had proved that Mr. Pierce did possess some amount of

such substance. If so, then it could acquit him of trafficking but convict him of the lesser

included offense of possession.

       Had there been no concession by counsel, so that the only issue was whether the

evidence supported a lesser included offense instruction, I would hold that the trial court

was obligated to instruct the jury on possession because the evidence permitted a

reasonable juror to conclude that Mr. Pierce did possess a substance containing cocaine,

but not more than two grams of it. That was not the situation, however, as Mr. Pierce did

not dispute that the State had proved that the substance weighed more than two grams. In

fact, Mr. Pierce’s attorney admitted to the jury in closing argument and conceded at the


                                              20
instruction conference and in his motion for new trial that the substance weighed more

than two grams at the time it was seized. In the instruction conference, defense counsel

argued that the jury might find that the weight was two grams or less only if it discounted

the weight of the water: “[I]n light of the testimony of [sic] concerning moisture or water

loss which is included in the weight of those – the weights indicated, I believe that there

is a basis for possession.” The trial court rejected this as a basis for instructing down.

Nonetheless, in closing argument, counsel again made this concession in asking the jury

to find his client not guilty, stating,

       And I guess I want to wrap up with this idea of this evidence. Do we
       even know that it is 2.5 grams? Oh, I suspect it weighed this weight, around
       2.5 grams, on the date of his arrest. I have a reason to believe that. But is
       all of this that was weighed that day, was that actually all a controlled
       substance?

He repeated this argument in his motion for new trial, admitting that substance weighed

2.51 grams at the time of the arrest and stating that the “state lab witnesses testified

credibly that the vast majority of the weight loss of the controlled substance – crack –

was water.”     The trial court properly rejected this argument then, as it had at the

instruction conference, for it was based on an erroneous understanding of the law.

       His argument was not that the substance weighed two grams or less but that water

caused the substance to weigh more than two grams. That is legally irrelevant. The

trafficking instruction did not permit a jury to exclude consideration of the moisture

content of the substance seized. It was based on MAI-CR 325.14, which in turn was

based on the trafficking statute, section 195.223. The latter provides: “A person commits

the crime of trafficking drugs in the second degree if … he possesses or has under his

                                            21
control … more than two grams of a mixture or substance described in subsection 2 of

this section which contains cocaine base.” It does not matter if part of the weight is

moisture so long as there is a detectable amount of cocaine base in the substance. 7

       As the defense did not dispute at trial the credibility or reliability of the evidence

that at the time of his arrest defendant possessed more than two grams of a substance

containing cocaine base, no reasonable jury could conclude based on the evidence that

Mr. Pierce did not possess more than two grams of cocaine. Indeed, such uncontested

facts need not even be submitted. See, e.g., State v. Hook, 433 S.W.2d 41, 48 (Mo. App.

1968) (“[W]here there is no conflict in the evidence, the question becomes one of law for

the court and not one of fact for the jury.”); cf. White v. Dir. of Revenue, 321 S.W.3d 298,

308 (Mo. banc 2010) (stating that appellate court can review uncontested facts without

deference to findings below in review of license revocation). The trial court’s refusal to

instruct the jury on possession, therefore, was not error.

       For these reasons, I would hold the trial court properly refused to instruct down.


7
  As the United States Supreme Court held in Chapman v. United States, 500 U.S. 453
(1991), a case involving possession of LSD on blotter paper, it was not a violation of due
process or otherwise improper to consider the weight of both the LSD and the blotter
paper because “[s]o long as [the mixture or substance] contains a detectable amount, the
entire mixture or substance is to be weighed when calculating the sentence.” Id. at 459.
Missouri courts apply the same rule. They repeatedly have held that under Missouri
statute other substances mixed with the controlled substance are considered in
determining the weight of controlled substance possessed by a person. Applying this rule
in State v. Hill, 827 S.W.2d 196, 198 (Mo. banc 1992), this Court upheld the first degree
trafficking conviction of a defendant who possessed over 500 milligrams of a “mixture or
substance” containing LSD where much of the weight was due to the blotter paper that
contained the LSD.7 Mr. Pierce wanted a lesser included offense instruction based on
jury nullification of this element, not because he believed the jury might disbelieve all or
part of the State’s evidence as to weight.
                                             22
III.   CONCLUSION

       I concur with the principal opinion’s conclusion that Mr. Pierce’s retrial did not

violate double jeopardy, although not with its rationale, and I concur in full with the

principal opinion’s holding that the evidence was sufficient to support his resisting arrest

conviction.

       I disagree that the trial court erred in refusing to submit the lesser included offense

instruction on possession, however, and would affirm.



                                           ______________________________
                                            LAURA DENVIR STITH, JUDGE




                                             23
               SUPREME COURT OF MISSOURI
                                          en banc

STATE OF MISSOURI,                         )
                                           )
              Respondent,                  )
                                           )
vs.                                        )              No. SC93321
                                           )
BRUCE PIERCE,                              )
                                           )
              Appellant.                   )

                                 DISSENTING OPINION

       I respectfully dissent from the principal opinion in that I believe the trial court did

not err in refusing to give the instruction for the lesser included offense of possession of a

controlled substance. All of the evidence at trial demonstrated that the amount of cocaine

base in Bruce Pierce’s (hereinafter, “Pierce”) possession was more than two grams,

thussupporting an instruction for second-degree trafficking, a class B felony. There was

no evidence supporting the instruction for possession of a controlled substance.

Accordingly, I would affirm the trial court’s judgment.

       A trial court is “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.” Section 556.046.3, RSMo Supp.
2002. 1 Reversal is mandated only when the failure to offer the instruction was

prejudicial to the defendant. State v. Derenzy, 89 S.W.3d 472, 475 (Mo. banc 2002).

         The principal opinion here,and in the companion case,State v. Jackson, __ S.W.3d

__ (Mo. banc 2014) (No. SC93108, decided June 24, 2014), asserts that from this point

henceforth, the trial court no longer will determine whether there is sufficient evidence

presented from which a lesser included instruction may be given, and the trial court must

always instruct on any lesser included instruction. By mandating that a trial court must

give a lesser included instruction for the sole reason that the jury may disbelieve part of

the State’s evidence, this Court has eviscerated the language of section 556.046.3. Under

the rationale advanced by the principal opinion, the jury need not have a basis in the

evidence upon which to base its verdict.

         In the underlying case, the evidence consistently and unequivocally demonstrated

that Pierce possessed more than two grams of cocaine base. The principal opinion states

the jury could have disbelieved the State’s evidence and found that the cocaine was less

than two grams. However, the principal opinion disregards the evidence presented at

trial, allowing the jury to infer that the drug base was less than two grams. The principal

opinion grants the jury a roving commission from which to determine the degree of a

defendant’s guilt.

         Our courts are instructed statutorily as to when providing a lesser included

instruction is appropriate. Section 556.046.3 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

1
    All statutory references are to RSMo Supp. 2002, unless otherwise indicated.
                                               2
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.” (Emphasis added). The primary rule of statutory construction is to ascertain

the intent of the legislature from the plain language used in the statute. State v. Moore,

303 S.W.3d 515, 520 (Mo. banc 2010). “When interpreting a statute, this Court must

give meaning to every word or phrase of the legislative enactment.” Id.

       The principal opinion relies upon State v. Celis-Garcia, 344 S.W.3d 150 (Mo.

banc 2011), State v. Williams, 313 S.W.3d 656 (Mo. banc 2010), and State v. Hineman,

14 S.W.3d 924, 927 (Mo. banc 1999) to support the proposition that the jury “is entitled

to believe or disbelieve all or any part of the evidence before it.” However, each of these

cases is distinguishable factually.

       In Celis-Garcia, Maura Celis-Garcia (“Mother”) was found guilty of two counts of

first-degree statutory sodomy against her children. 2 Mother asserted her constitutional

right to a unanimous jury verdict was violated because the verdict directors failed to

require the jury to agree on specific acts to find her guilty of a single count of statutory

sodomy against each child. Celis-Garcia, 344 S.W.3d at 152.

       At trial, both of the mother’s children testified, through videotaped depositions, as

to the various acts of sodomy committed against them. Id. at 153. The State also

presented the testimony of a forensic interviewer and a licensed social worker, both of

whom interviewed the children and testified the children told them of an occasion

2
 This case does not address the applicability of a lesser included instruction. Rather, its
analysis addressed whether the jury instructions required a unanimous jury verdict. Id. at
154-59.
                                              3
whenthere was abuse occurring in the bathroom, but it was interrupted by the

grandmother. Id. The grandmother also testified, denying she witnessed any

inappropriate touching of the children. Id. The grandmother “testified that the children

had a reputation for lying.” Id.

          In holding Mother’s convictions for first-degree statutory sodomy should be

reversed, this Court noted the fact that Mother “relied on evidentiary inconsistencies and

factual improbabilities respecting each specific allegation of hand-to-genital contact

makes it more likely that individual jurors convicted her on the basis of different acts.”

Id. at 159. The Court also remarked that the jury was free to believe or disbelieve any of

the conflicting witness testimony. Id. The Court then determined the submitted verdict

directors misdirected the jury and her right to a unanimous jury verdict was violated. Id.

at 160.

          InWilliams, the defendant was charged with second-degree robbery by acting with

another. Williams, 313 S.W.3d at 657. The defendant testified in his own defense at

trial, denying the charge against him. Id. The defendant requested, and the trial court

denied, the lesser included instruction of felony stealing. Id.

          This Court in Williamsproperly determined that a “defendant is entitled to an

instruction on any theory the evidence establishes.” Id. at 659 (quotingState v. Pond, 131

S.W.3d 792, 794 (Mo. banc 2004)). Additionally, this Court reiterated the fact that a jury

may believe or disbelieve any of the evidence presented at trial. Id. at 660. The evidence

presented at trial in Williams provided a basis for the jury to acquit the defendant “of

robbery in the second degree and convict him of felony stealing.” Id. The jury could

                                               4
have believed the defendant’s testimony and disbelieved another witness’ testimony. Id.

The defendant was entitled to the lesser included instruction because there was a basis in

the evidence for the instruction. Id.

       Finally, in Hineman,Charles Hineman (“Father”) was convicted of one count of

first-degree assault, section 565.050, RSMo 1994, and one count of child abuse, section

568.060, RSMo 1994. Hineman, 14 S.W.3d at 927. Father claimed the trial court erred

in failing to submit his proposed instruction for the lesser included offense of second-

degree assault.

       At trial, there was testimony that the type of injury the child received typically

indicated child abuse. Id. at 926. Additionally, there were various explanations

introduced into evidence as to how the child was injured and “expert testimony that

injuries such as the injury in this case can be accidental.” Id. at 927. Testimony also

supported several theories about Father’s mental state at the time of the injury. Id. at

926-27.

       The difference between the two assault charges was Father’s mental state. Id. The

evidence presented could support either a mental state of acting knowingly or acting

recklessly. Id. This Court stated that it was within the jury’s province to make that

inference based upon the evidence it heard at trial. Id. Accordingly, this Court stated, “If

there is any doubt concerning the evidence, the trial court should resolve any doubts in

favor of instructing on a lower degree of the crime, leaving it to the jury to decide which

of two or more grades of an offense, if any, the defendant is guilty.” Id. Father was



                                              5
entitled to the lesser included instruction because there was evidence from which the jury

could determine Father’s mental state.

       While the principal opinion cites Celis-Garcia, Williams, and Hinemanfor the

proposition that the jury is free to believe or disbelieve any evidence, there was a basis in

the evidence in each of those cases from which the jury could make a determination. In

contrast, there was no basis in the evidence in this case as required by section 556.046.3

to mandate the giving of the lesser included instruction. There was nothing in the record

indicating Pierce possessed anything less than two grams of cocaine base. Therewas no

evidencewhatsoever to support the lesser included instruction. Should a jury simply not

believe the evidence presented at trial, the jury does not need to convict a defendant

because the State failed to make its case.

       The legislature clearly stated that a lesser included offense may be given only

when there is a basis in the evidence. Section 556.046.3. Disbelieving all consistent

evidence presented at trial is not the same as having a basis in the evidence to support an

instruction. The principal opinion’s conclusion to the contrary has ignored the plain

language of the statute.

       By mandating that a lesser included instruction is required in every case for the

sole rationale that the jury may disbelieve the evidence presented, this Court opens

floodgates of needless litigation and error.3 This decision potentially will increase


3
  Given the principal opinion’s decision that it is prejudicial error for a lesser included
instruction not to be given on the sole basis that the jury could disbelieve the evidence,
this Court should rule on the retroactivity of this proposition and its habeas application
before issuing any additional show cause orders to set execution dates for defendants
                                              6
convictions wherein the jury decides that the defendant did not commit the crime for

which he or she was charged, but did something, thereby, convicting the defendant on the

lesser included offense that was mandated by this Court.

       Accordingly, I believe the trial court did not err in refusing to submit an

instruction for a lesser included offense when there was no evidence to support it. I

would affirm the trial court’s judgment.




                                                  __________________________
                                                  GEORGE W. DRAPER III, JUDGE




awaiting imposition of the death penalty. See, e.g., State v. Barnett, 980 S.W.2d 297,
305-06 (Mo. banc 1998) (upholding a death sentence after the trial court failed to instruct
on the lesser included offenses) and State v. Johnson, 284 S.W.3d 561, 575-76 (Mo. banc
2009) (upholding a death sentence and finding no error for failure to instruct on the lesser
include offenses requested by the defendant).

                                              7
