STATE OF MISSOURI,                                       )
                                                         )
                             Respondent,                 )
                                                         )
           vs.                                           )       No. SD32940
                                                         )       Filed: December 16, 2014
TERRELL EUGENE PRINE,                                    )
                                                         )
                             Appellant.                  )


                     APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                                   Honorable David B. Mouton, Circuit Judge


AFFIRMED

           Terrell Eugene Prine (“Prine”),1 appeals his conviction of the class A felony of

first-degree robbery, pursuant to section 569.020; and the unclassified felony of armed criminal

action, pursuant to section 571.015.2 We affirm the judgment of the trial court.




1
    In the record, Prine is sometimes referred to as “Bud.”
2
    All references to statutes are to RSMo 2000, unless otherwise indicated.
                                  Facts and Procedural Background

        Prine does not challenge the sufficiency of the evidence to support his conviction. This

Court views the evidence in the light most favorable to the verdict. State v. Perry, 275 S.W.3d

237, 242 (Mo. banc 2009). We accept as true all facts and inferences favorable to the verdict,

and we disregard evidence and inferences to the contrary. State v. Oliver, 293 S.W.3d 437, 444

(Mo. banc 2009). In light of these principles, the following evidence was adduced at trial.

        On the evening of January 14, 2012, Prine, intoxicated, had his girlfriend drive him to the

home of Bradley Clark (“Clark”) to collect fifteen dollars that Clark owed Prine. When Clark

refused to pay Prine because Clark only had a fifty dollar bill, Prine became angry and told Clark

he was going out to his girlfriend’s car to retrieve his gun. Prine returned to Clark’s home with

his gun (wearing gloves), kicked in the front door, took two steps inside, and fired the gun. Prine

took the fifty dollars from Clark, then threatened to kill a second man in the house, Gary

Mitchell (“Mitchell”), unless Mitchell gave Prine his money. Prine left Clark’s house in his

girlfriend’s car after taking about two hundred dollars from Mitchell, but was later apprehended

and arrested.3

        Police found a bullet hole in Clark’s home during a search, found a glove worn by Prine

at the time of the shooting, retrieved the gun fired by Prine, as well as the shell casing from the

bullet Prine fired.

        On April 24, 2012, a special prosecutor was appointed for the State due to a conflict of

interest within the office of the Jasper County Prosecuting Attorney.




3
 Clark was a long-time family friend and had known Prine since he was a baby. Mitchell and Prine were cousins;
Mitchell was also related to Clark.


                                                      2
       A jury trial was held on June 18, 2013. At the close of all the evidence, an instruction

conference was held in which Prine’s counsel offered Instruction 5A,4 a lesser-included-offense

instruction for second-degree robbery.            When the trial court offered counsel for Prine an

opportunity to make a record regarding the instruction, the following transpired:

                        [PRINE’S ATTORNEY]: Yes, Judge. I believe there’s evidence
       of intoxication of Mr. Clark, and I believe Mr. Mitchell. Both testified that Mr.
       Prine was not himself, that he was intoxicated, under the influence. I would ask
       that the Court offer Instruction - I have marked it as 5A, Judge, you’re marking it
       as A, is that right[?]

                         BY THE COURT:               Yes.    [STATE], any record you wish to
       make[?]

                       [STATE]: Yes. Your Honor, the only difference between what
       the defense is submitting in its proposed #A and robbery first that is in Instruction
       No. 5, which is properly given by the Court, they’re attempting to negate, as I
       understand, the elements of - the intent element of the crime on purpose, that he
       was intoxicated therefore purposely did this.

                      If you recall the testimony[,] the defense is I just didn’t do it.
       Period. In other words, he didn’t do the robbery, number one. So the only
       difference between robbery first and robbery second is paragraph four in the two
       instructions. Robbery first requires the additional element of using - the MAI
       would say you can charge it by doing deadly weapon or dangerous instrument in
       the commission of the crime.




4
                                           INSTRUCTION NO. [5]A

                 As to Count I, if you do not find the defendant guilty of robbery in the first degree, you
       must consider whether he is guilty of robbery in the second degree.
                 As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
                 First, that on or about the 14th day of January, 2012, in the County of Jasper, State of
       Missouri, the defendant took $50.00 in cash from Brad Clark, which was property owned by Brad
       Clark, and
                 Second, that defendant did so for the purpose of withholding it from the owner
       permanently, and
                 Third, that defendant in doing so threated [sic] the immediate use of physical force on or
       against Brad Clark for the purpose of preventing resistance to taking of the property, then you will
       find the defendant guilty under Count I of robbery 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.

                                                        3
                      The specific intent for both of those is purposely, Judge, so I don’t
       think you go down to a second-degree robbery and eliminate the use of a weapon
       in the commission of a crime just because you’re drunk. Plus the defendant is
       saying I just didn’t do this anyway. I don’t know how you get - it seems like a
       contradictory argument. If you believe I did it then negate the elements of
       robbery by - down to second-degree robbery, forget about the gun, and let me off
       with a second-degree because I was drunk. It’s the same standard for both.

                      BY THE COURT: I agree. As I indicated in chambers, there is, I
       don’t think, any evidence at all in the case, much less substantial evidence to
       support the giving of a second degree robbery instruction. I don’t believe
       anybody gives a version that he was there and robbed Brad Clark but did so
       without the use of a gun or a dangerous instrument. And so for all of those
       reasons I am refusing the proffered instruction, which I have marked as #A,
       323.04, and that is the only instruction - that’s the only instruction offered by the
       defense.

       The jury found Prine guilty of robbery in the first degree and armed criminal action. The

jury recommended Prine be sentenced to ten years in the Missouri Department of Corrections for

the charge of robbery in the first degree, and three years in the Missouri Department of

Corrections for the charge of armed criminal action. The trial court ruled the sentences would

run consecutively after finding the recommendation of the jury was appropriate and within the

limits of the law.

       On July 15, 2013, Prine filed a “Motion for Judgment of Acquittal Notwithstanding the

Verdict, or, in the Alternative, Motion for New Trial” asserting that:

       The trial court clearly erred and/or abused its discretion by refusing to submit
       [Prine]’s jury instruction NUMBER 5A on ROBBERY IN THE SECOND
       DEGREE MAI-CR 3rd 323.04. Gary Mitchell and Bradley Clark testified they
       had known Mr. Prine all his life and had never before observed him [to] act the
       way he did on 14 January 2012. Clark opined Prine appeared to be under the
       influence of something. He stated Mr. Prine drank several alcoholic beverages in
       his presence. Mr. Prine admitted to drinking alcohol that evening as well. The
       Defense asserts Instruction Number 5A should have been an option for the jury
       and refusing to submit same violates Mr. Prine’s rights to Due Process, Fair Trial,
       a Fair and Impartial Jury under the Fifth, Sixth and Fourteenth Amendments of
       the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri
       Constitution[.]

This appeal followed.
                                                 4
       In his four points on appeal, Prine contends the trial court erred in: (1) refusing to

instruct jurors as to Prine’s lesser-included-offense instruction for robbery in the second degree

because it deprived Prine of a fair trial before a properly instructed jury in that robbery in the

second degree is a lesser-included offense of the charged robbery in the first degree, and there

was a basis for the jury to acquit on the offense charged but still convict on the lesser offense;

(2) in sustaining the State’s objection to Prine’s counsel questioning Mitchell about his pending

criminal charges because Prine was prevented from exposing Mitchell’s potential bias and

prejudice; (3) assessing court costs against Prine and ordering him to pay $31,065.98 for the

special prosecutor because Prine was indigent; and (4) assessing court costs against Prine in the

amount of $31,027.50 for the costs of a special prosecutor because this amount was prohibited

by section 56.130 and not reasonable.

       The issues for our determination are:

       1.      Did the trial court err in denying Prine’s request to instruct the jury on the lesser-
               included offense of second-degree robbery?

       2.      Did the trial court plainly err in denying cross-examination of Mitchell regarding
               his pending charges?

       3.      Did the trial court plainly err in assessing court costs against Prine?

                              Point I: Lesser-Included Instruction

                                        Standard of Review

       “This Court reviews de novo a trial court’s decision whether to give a requested jury

instruction under section 556.046, RSMo Supp.2002[.]” State v. Jackson, 433 S.W.3d 390, 395

(Mo. banc 2014) (footnote omitted).




                                                 5
                                                        Analysis

           While this appeal was pending, our Supreme Court ruled that a trial court cannot refuse a

requested nested-lesser instruction “based solely on its view of what evidence a reasonable juror

must believe or what inferences a reasonable juror must draw.” Id. at 392.5 Thereafter, we

allowed Prine to amend his brief to also seek reversal based upon Jackson and its companion

case, State v. Pierce, 433 S.W.3d 424 (Mo. banc 2014). Having now considered Prine’s Point I

arguments, we find Jackson and Pierce inapplicable and thus deny the point.

           Jackson held that “in a criminal case, the trial court cannot refuse a defendant’s request

for . . . [a] ‘nested’ lesser offense instruction based solely on its view of what evidence a

reasonable juror must believe or what inferences a reasonable juror must draw.” 433 S.W.3d at

392 (our emphasis). This requirement was reiterated in Jackson, then again in Pierce:

           If the defendant requests that the jury be instructed on a lesser included offense
           consisting of all but one of the elements required for the greater offense, is the
           trial court allowed to refuse to give that instruction solely because it determines
           that no reasonable juror could refuse to find that the differential element had been
           proved beyond a reasonable doubt? The answer is no.

Id. at 402 (our emphasis).

                   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.

Pierce, 433 S.W.3d at 433 (our emphasis).
5
    Second-degree robbery is a “nested” lesser-included offense of first-degree robbery because
           second-degree robbery requires the state to prove beyond a reasonable doubt that the defendant
           took the victim’s property by force. First-degree robbery requires proof of those same elements
           and proof beyond a reasonable doubt of the differential element that the victim reasonably
           believed the defendant was using or threatening to use a weapon. By definition, therefore, if the
           evidence in a specific case is sufficient to allow a reasonable juror to find the defendant guilty of
           robbery first, that evidence also must be sufficient to allow a reasonable juror to find the defendant
           guilty of robbery second.
Jackson, 433 S.W.3d at 404 (emphasis in original).

                                                             6
       Prine sought a second-degree robbery instruction, but his sole basis was a claim that he

was intoxicated at the time of the offense. The trial court correctly agreed with the prosecutor’s

argument against that theory (i.e., “forget about the gun, and let me off with a second-degree

because I was drunk[,]” to quote the instruction conference record). “Missouri has defined all of

its criminal offenses so as to render voluntary intoxication legally irrelevant.” State v. Fanning,

939 S.W.2d 941, 947 (Mo.App. W.D. 1997). The trial court opined further that the evidence did

not support the request and “for all of those reasons” rejected the proffered instruction.

       Prine cited a single, specific, legally insufficient basis for his instruction request, which

the trial court correctly rejected. Fanning, 939 S.W.2d at 947. That the trial court volunteered

further observations, now flawed in hindsight after Jackson and Pierce, does not render wrong

its ruling on Prine’s stated request; nor, did the trial court “refuse to give that instruction solely

because the court conclude[d] that the evidence [was] so overwhelming that all reasonable jurors

must find the differential element proved beyond a reasonable doubt.” Pierce, 433 S.W.3d at

433 (our emphasis). On the record before us, the trial court did not err in denying Prine’s

instruction request. Point I is denied.

                     Point II: Cross-Examination Regarding Pending Charges

       Prine contends in his second point that the trial court erred in sustaining the State’s

objection in cross-examination of Mitchell concerning pending charges, and he was thus

prejudiced. Prine concedes the general rule that the subject of pending charges against a witness

is not admissible.

       Generally, to preserve the issue for appeal, the proponent of evidence excluded by the

trial court must make an offer of proof. State v. Woods, 357 S.W.3d 249, 253 (Mo.App. W.D.

2012). An offer of proof is made after an unfavorable ruling, Sturma v. Sturma, 674 S.W.2d

                                                  7
626, 627 (Mo.App. E.D. 1984), and “must specifically show: (1) what the proffered evidence

would be; (2) its object and purpose; and (3) all the facts necessary to establish its relevance and

admissibility.” Calzaretta v. Willard, 391 S.W.3d 488, 493 (Mo.App. S.D. 2013).

           Having reviewed the record, we see no offer of proof on this issue6 meeting the

requirements set out in Calzaretta.7 Notably, we find Prine did not offer testimony regarding

what the pending charges might have been. Further, the complained-of error was not contained

in a motion for new trial. As a result, this issue is not preserved for our review.

           Nevertheless, Rule 30.208 permits this Court, in its discretion, to grant plain error review

if the requirements of a two-step analysis are satisfied.                   First we determine whether the

complained-of error facially establishes substantial grounds for believing a manifest injustice or

miscarriage of justice has occurred. State v. Mayes, 281 S.W.3d 918, 921 (Mo.App. S.D. 2009).

Only if the first step is satisfied do we then move to the second step to determine whether

manifest injustice or miscarriage of justice actually occurred. Id.

           We find no facially substantial grounds to believe that manifest injustice or a miscarriage

of justice has occurred, and therefore decline to review for plain error. Point II is denied.

                                         Points III and IV: Court Costs

           In his third and fourth points, Prine argues that the trial court plainly erred in assessing

court costs against Prine because the trial court found Prine to be indigent. Prine concedes on

appeal that this issue was not preserved, and that we therefore may only review for plain error.

6
  “If an offer of proof consists of evidence which is admissible in part and inadmissible in part, the trial court is
justified in rejecting the entire offer.” State v. Broussard, 57 S.W.3d 902, 911 (Mo.App. S.D. 2001).
7
 While we note that defense counsel attempted several times (unsuccessfully) to elicit testimony about this evidence
after the trial court sustained an objection to its admission (thereby drawing a formal admonishment from the trial
court), the corresponding open court colloquies and bench conference discussions in the transcript are insufficient to
preserve this issue for our consideration.
8
    All rule references are to Missouri Court Rules (2013).


                                                              8
        Finding no substantial facial grounds to believe that manifest injustice or a miscarriage of

justice has occurred, we decline to review for plain error.9 Points III and IV are denied.

        The judgment of the trial court is affirmed.


WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR

JEFFREY W. BATES, J. - Concurs

DANIEL E. SCOTT, J. - Concurs




9
  The State argues that a “Bill of Costs” assessing the special prosecutor’s fee against the state of Missouri was
submitted to the Missouri Department of Corrections by the Jasper County prosecutor and the trial court, thereby
rendering this issue moot. The State suggests that this Bill of Costs is contained in “Appendix A” in the record on
appeal. However, it appears that such Bill of Costs was not included in Appendix A or elsewhere in the record on
appeal; therefore, we may not consider it.

                                                        9
