                                             In the
                           Missouri Court of Appeals
                                     Western District


                                                 
STATE OF MISSOURI,                               
                                                    WD77673
                Respondent,                         OPINION FILED:
v.                                               
                                                    November 17, 2015
JAMES CALVIN SMITH,                              
                                                 
                 Appellant.                      
                                                 
                                                 


                  Appeal from the Circuit Court of Pettis County, Missouri
                     The Honorable Robert Lawrence Koffman, Judge

                                Before Special Division:
      James Edward Welsh, P.J., Gary D. Witt, J., and Andrea R. Vandeloecht, Sp. J.


       James Smith appeals his convictions, following a jury trial, of one count of first-degree

burglary, three counts of second-degree burglary, and two counts of felony stealing. We reverse

the circuit court's judgment of conviction as to these six counts.

                                           Background

       Throughout 2012 and in early 2013, several businesses in the Sedalia area were broken

into and burglarized. Based on DNA and shoeprint evidence, the State arrested James Smith on

March 20, 2013, and charged him with eleven crimes arising out of six separate incidents. In

Count 1, Smith was charged with first-degree burglary for the break-in of a camper trailer stored
on the property of Cole's Cutting Edge Lawn Care, and the theft of a semi-automatic handgun

and other items from the trailer. He was charged with second-degree burglary in Counts, 3, 5, 6,

and 9 for break-ins and thefts at Cole's Cutting Edge Lawn Care, at the Sedalia Post Office, at

Sedalia Tool and Manufacturing, and at Cranker & Sons repair business, respectively. Smith

was charged with four counts of felony stealing in Counts 2, 4, 7, and 10, in connection with the

break-ins of the camper trailer, the lawn care business, Sedalia Tool and Manufacturing, and

Cranker & Sons, respectively. He was charged in Count 8 with second-degree property damage,

related to the Tool and Manufacturing break-in, and in Count 11 with resisting arrest. The State

charged Smith as a prior and persistent offender.

        At trial, defense counsel requested an instruction for the lesser-included offense of first-

degree trespass on each of the burglary counts. Defense counsel also requested an instruction for

the lesser-included offense of misdemeanor stealing on two of the felony stealing counts. The

circuit court refused the proposed lesser-included instructions on the two felony stealing counts

and on four of the burglary counts.1 The court gave a lesser-included instruction for burglary in

the second degree on the first-degree burglary charge (Count 1).

        The jury found Smith guilty on all eleven counts. The court sentenced him to ten years'

imprisonment for first-degree burglary, seven years for each count of second-degree burglary,

and four years each for the property damage and resisting arrest convictions. The court ordered

all of the seven- and four-year sentences to run concurrently with each other but consecutively to

the ten-year sentence imposed on Count 1.




        1
         The court gave a lesser-included instruction for first-degree trespass on the second-degree burglary charge
in Count 5, related to the post office break-in.

                                                         2
                                                    Discussion

       Smith raises six points on appeal. He challenges the circuit court's refusal to submit an

instruction for first-degree trespass as a lesser-included offense of burglary in the first degree in

Point 1 and of burglary in the second degree in Points 2, 4, and 6. In Points 3 and 5, he

challenges the court's refusal to submit an instruction for misdemeanor stealing as a lesser-

included offense of felony stealing.2 The State agrees that the court's refusal to give the lesser-

included instructions for misdemeanor stealing was reversible error, and it concedes that Points 3

and 5 should be granted. Consequently, we address only the arguments pertaining to the failure

to give lesser-included instructions for first-degree trespass in Points 1, 2, 4, and 6.

       On Count 1, the circuit court instructed the jury on the charged offense of first-degree

burglary and the lesser-included offense of second-degree burglary. On Counts 3, 6, and 9, the

court instructed the jury on the charged offense of second-degree burglary only. Smith argues in

Points 1, 2, 4, and 6 that the circuit court committed reversible error in refusing his request to

instruct the jury (as to those four counts) on first-degree trespass as a lesser-included offense,

pursuant to section 556.046, RSMo.3 Our analysis of all four points is essentially the same; thus,

we address them collectively.

       "This Court reviews de novo a trial court's decision whether to give a requested jury

instruction under section 556.046." State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014).

"[I]f the statutory requirements for giving such an instruction are met, a failure to give a

requested instruction is reversible error." Id. We view the evidence in the light most favorable

to the defendant. State v. Thomas, 161 S.W.3d 377, 380 (Mo. banc 2005).

       2
           Smith included these claims in his motion for new trial, which was overruled.
       3
           Statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2011 Cum. Supp.

                                                          3
       Section 556.046.1 provides that "[a] defendant may be convicted of an offense included

in an offense charged in the indictment or information." Such a lesser-included offense includes

an offense that "is established by proof of the same or less than all the facts required to establish

the commission of the offense charged" or "is specifically denominated by statute as a lesser

degree of the offense charged." § 556.046.1.

       Smith is correct that first-degree trespass is a lesser-included offense of both first-degree

and second-degree burglary. Pursuant to section 569.140.1, a person commits first-degree

trespass "if he knowingly enters unlawfully or knowingly remains unlawfully in a building or

inhabitable structure." A person commits second-degree burglary "when he knowingly enters

unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the

purpose of committing a crime therein." § 569.170.1 (emphasis added). A person commits

first-degree burglary "if he knowingly enters unlawfully or knowingly remains unlawfully in a

building or inhabitable structure for the purpose of committing a crime therein" while (in this

case) "armed with . . . a deadly weapon." § 569.160.1 (emphasis added).

       A comparison of these statutes reveals that both first- and second-degree burglary consist

of the same elements as first-degree trespass with the additional requirement that the person enter

the building "with the purpose of committing a crime therein." See §§ 569.140, 569.160,

569.170. Thus, trespass in the first degree is "established by proof of the same or less than all

the facts required" to prove first- or second-degree burglary. § 556.046.1. As such, trespass in

the first degree is a lesser-included offense of second-degree burglary. State v. Neighbors, 613

S.W.2d 143, 147 (Mo. App. 1980). It also is a lesser-included offense of first-degree burglary.

State v. Christian, 184 S.W.3d 597, 603 (Mo. App. 2006).



                                                  4
         Our Supreme Court recently explained in Jackson that, pursuant to section 556.046, a

trial court is obligated to submit a lesser-included offense instruction when (1) "a party timely

requests the instruction," (2) "there is a basis in the evidence for acquitting the defendant of the

charged offense," and (3) "there is a basis in the evidence for convicting the defendant of the

lesser included offense for which the instruction is requested."4 433 S.W.3d at 396. "Doubts

concerning whether to instruct on a lesser included offense should be resolved in favor of

including the instruction, leaving it to the jury to decide." Id. at 399 (citation omitted).

         Here, there is no dispute that Smith timely requested lesser-included instructions for first-

degree trespass. With regard to the second requirement, the Court explained in Jackson that

there will be a basis in the evidence for acquitting a defendant of the greater offense in virtually

every case, because "the jury has the right to disbelieve all or any part of the evidence, and refuse

to draw needed inferences." Id. at 399, 402. In other words, as stated in Jackson's companion

case, State v. Pierce, 433 S.W.3d 424, 433 (Mo. banc 2014), "once the defendant pleads not

guilty, there will always be a basis in the evidence to acquit . . . because the jury -- and only the

jury -- is the final arbiter of what that evidence does and does not prove." Here, there was a basis

to acquit Smith of burglary in the first and second degrees because the jury did not have to

believe that he knowingly entered unlawfully for the purpose of stealing.

         As to the requirement that there be a basis in the evidence for convicting of the lesser-

included offense, the Jackson Court stated that "the jury's right to disbelieve all or any part of the

evidence, and its right to refuse to draw any needed inference, is a sufficient basis in the

         4
           Section 556.046.2 provides that a court is "not . . . 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." Similarly, section 556.046.3 (added in 2001) requires a court to instruct as to an 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."

                                                            5
evidence to justify giving any lesser included offense instruction when the offenses are separated

only by one differential element for which the state bears the burden of proof." 433 S.W.3d at

401. Relying on Jackson, our Supreme Court recently explained in State v. Randle:

         Lesser-included offenses that are separated from the greater offense by one
         differential element for which the state bears the burden of proof are referred to as
         "nested" lesser-included offenses. A "nested" lesser-included offense consists of
         a subset of the elements of the greater offense. Consequently, "it is impossible to
         commit the greater without necessarily committing the lesser." A defendant is
         entitled, upon proper request, to an instruction on a "nested" lesser-included
         offense and, therefore, does not have to introduce affirmative evidence or "cast
         doubt" over the State's evidence in any way.

465 S.W.3d 477, 479 (Mo. banc 2015) (quoting Jackson, 433 S.W.3d at 401-02, 404) (internal

citations omitted); see also State v. Roberts, 465 S.W.3d 899, 902 (Mo. banc 2015) (handed

down with Randle and employing the same analysis).5 The Pierce Court summarized it this way:

"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." 433 S.W.3d at 430.

The Jackson Court recognized that "the effect of this decision likely will be that lesser included

offense instructions will be given virtually every time they are requested." 433 S.W.3d at 402.

         Here, the only difference between first-degree trespass and both first- and second-degree

burglary was Smith's intent of entering the property "for the purpose of committing the crime of

stealing therein" (which is an element of both degrees of burglary but not of trespass). See

         5
           In Jackson, the Court found that second-degree robbery is a "nested" lesser-included offense of first-
degree robbery, because it is comprised of a subset of the elements of first-degree robbery, with the only
"differential element" being that, in first-degree robbery, the victim must reasonably believe that the defendant was
using or threatening to use a weapon. 433 S.W.3d at 404. See also Pierce, 433 S.W.3d at 432 (evidence that was
sufficient to prove that defendant found in possession of cocaine base committed second-degree trafficking -- in that
the substance weighed two or more grams -- also had to be sufficient to prove the "nested" lesser-included offense of
possession, which includes all of the same elements except weight); Randle, 465 S.W.3d at 480 (holding that third-
degree assault is a "nested" lesser-included offense of second-degree assault because proof that the defendant
"knowingly" committed second-degree assault necessarily means that there was also a basis in the evidence for the
jury to convict of third-degree assault, for which the mens rea is "recklessly" but the remaining elements are the
same); and Roberts, 465 S.W.3d at 902-03 (same with regard to second- and third-degree domestic assault).

                                                         6
Neighbors, 613 S.W.2d at 147. Thus, first-degree trespass "is comprised of a subset of the

elements" of first- and second-degree burglary. See Jackson, 433 S.W.3d at 404. As stated in

Neighbors, "it is impossible to commit burglary in the second degree without also committing

trespass in the first degree." 613 S.W.2d at 147; see §§ 569.140 and 569.170. The same is

equally true of first-degree burglary. See §§ 569.140 and 569.160; Christian, 184 S.W.3d at

603-04. Thus, first-degree trespass is a "nested" lesser-included offense of both burglary

charges. See Jackson, 433 S.W.3d at 404. As stated in Jackson, when a defendant requests an

instruction for a "nested" lesser included offense, that instruction must be given. Id. at 392, 404.

        In this case, the evidence the State would use at trial to prove burglary would necessarily

establish that Smith unlawfully entered the properties; thus, there was a basis to convict Smith of

the "nested" lesser-included offense of first-degree trespass. Accordingly, Smith met all three

requirements for submission of the lesser-included instruction. Where that is the case, and the

court fails to give the instruction, "prejudice is presumed," and the court's failure to give the

instruction is reversible error. Id. at 395, n.4.

        The State concedes that the circuit court's erroneous refusal to instruct the jury on first-

degree trespass carries a presumption of prejudice. It contends, however, that "the failure to

instruct down does not always warrant a new trial." As to Point 1, the State claims that the

presumption of prejudice was rebutted under the facts of this case because an instruction for one

lesser-included offense was given, and the jury did not choose that option. As to all four Points

(1, 2, 4, and 6), the State argues that the presumption of prejudice was rebutted because the jury

also found Smith guilty on related charges of stealing.

        In support of its first argument, the State cites several cases pre-dating Jackson and

Pierce stating that the failure to give an additional lesser-included offense instruction is neither

                                                    7
erroneous nor prejudicial when instructions for the greater offense and one lesser-included

offense are given and the defendant is found guilty of the greater offense. See, e.g., State v.

Johnson, 284 S.W.3d 561, 575 (Mo. banc 2009); State v. Glass, 136 S.W.3d 496, 515 (Mo. banc

2004); State v. Johnston, 957 S.W.2d 734, 751-52 (Mo. banc 1997). The State therefore argues

that, because the jury in this case was instructed on the lesser-included offense of second-degree

burglary on Count 1, and the jury found Smith guilty of first-degree burglary, the presumption of

prejudice was rebutted.

       Assuming, arguendo, that the general rule set forth in those cases is still viable in the

wake of Jackson and Pierce (and, more recently, Randle and Roberts), an exception applies

"where the lesser offense that was actually submitted at trial did not 'test' the same element of the

greater offense that the omitted lesser offense would have challenged." Briggs v. State, 446

S.W.3d 714, 720 n. 9 (Mo. App. 2014); see also State v. Nutt, 432 S.W.3d 221, 224-25 (Mo.

App. 2014); State v. Frost, 49 S.W.3d 212, 219-20 (Mo. App. 2001).

       This Court acknowledged and applied this exception in Frost. There, the trial court

instructed on second-degree murder, voluntary manslaughter, and self-defense but refused to

instruct on involuntary manslaughter. Frost, 49 S.W.3d at 219. The jury found the defendant

guilty of second-degree murder. Id. at 216. This court remanded the case for a new trial after

finding that the voluntary manslaughter instruction did not "test" whether the jury might have

found that the defendant acted with a lesser mental state than knowingly or purposely, only

whether or not sudden passion was involved. Id. at 219-21. We held that, because the proffered

instruction offered a basis that had not been before the jury, and thus had yet to be rejected, we

could not conclude that "the jury was adequately tested . . . to the extent that submission of

involuntary manslaughter would have made no difference." Id. at 221. See also Nutt, 432

                                                  8
S.W.3d at 225 (reaching same result where the trial court refused a third-degree assault

instruction and submitted first- and second-degree assault instructions; held that Nutt was

prejudiced, even though convicted of first-degree assault, because we could not conclude that

elements of first-degree assault were adequately tested by second-degree assault instruction).

       The same is true in this case. Here, the first-degree trespass instruction asked the jury to

determine only whether Smith "knowingly entered unlawfully . . . in a building or inhabitable

structure." § 569.140.1. Both the first-degree burglary instruction and the second-degree

burglary instruction asked the jury to determine whether Smith "knowingly enter[ed] unlawfully

. . . in a building or inhabitable structure for the purpose of committing a crime therein."

§§ 569.160 & .170. The instructions differed, not on the question of Smith's purpose for entering

the building, but only as to whether he was armed with a deadly weapon (as required for first-

degree burglary). Consequently, the second-degree burglary instruction did not "test" whether

the jury might have found that Smith did not enter with any intent to steal. See Nutt, 432 S.W.3d

at 225; Frost, 49 S.W.3d at 219-21. The only way to test that intent was to submit the requested

instruction for first-degree trespass. The fact that the jury did not convict on second-degree

burglary does not establish that the jury evaluated or was able to test Smith's intent upon entry.

       We also reject the State's claim, as to all four points, that the presumed prejudice from the

circuit court's failure to instruct on first-degree trespass was "rebutted" because the jury also

found Smith guilty of stealing. Smith's convictions for stealing do not answer the question of

whether Smith had the intent to steal when he entered the properties -- which is what

distinguishes trespass from burglary. As explained in Jackson, no matter how compelling the

evidence may be, "it is for the jury -- and only the jury -- to decide whether the State proved that

element beyond a reasonable doubt." 433 S.W.3d at 400, n.11.

                                                  9
         The Jackson Court faced an analogous situation. There, the defendant was charged with

first-degree robbery and with armed criminal action. Id. at 394. The differentiating factor

between first-degree robbery and second-degree robbery was that the defendant displayed or

threatened to use what appeared to be a deadly weapon. Id. In addressing the question of

prejudice, the Jackson Court explained that, while prejudice from the refusal to instruct on

second-degree robbery "seems logically inconsistent" with the fact that the jury found Jackson

guilty of armed criminal action (i.e., that he actually used a gun), "the Court need not reconcile

these . . . because prejudice is presumed" when the court fails to give a requested lesser included

instruction that is supported by the evidence. Id. at 395, n. 4 (citing State v. Redmond, 937

S.W.2d 205, 210 (Mo. banc 1996) (holding that a defendant "is entitled to a new trial before a

properly instructed jury")).

         Where the defendant has met the requirements for having the jury instructed on a lesser-

included instruction, the court's failure to give the requested instruction is reversible error, and

"prejudice is presumed." Id. "Because prejudice is presumed on direct appeal, a new trial is

required if the court refuses the defendant's properly requested lesser-included offense

instruction."6 McNeal v. State, 412 S.W.3d 886, 894-95 (Mo. banc 2013) (Wilson, J., dissenting)

(citing State v. Williams, 313 S.W.3d 656, 660 (Mo. banc 2010) (failure to give requested lesser-

included offense instruction requires a new trial)). See also Jackson, 433 S.W.3d at 409, and




         6
          The dissent in McNeal (a post-conviction case) addressed the distinction, in this context, between a direct
appeal and a post-conviction appeal as to which party bears the burden of proving prejudice, stating: "[O]n direct
appeal, the state bears the burden of proving a lack of prejudice but, in a post-conviction proceeding, the defendant
bears the burden of proving the existence of prejudice." 412 S.W.3d at 894 (Wilson, J., dissenting). Similarly, in
Briggs, 446 S.W.3d at 719, n. 5, we explained that, "in a post-conviction proceeding, the movant bears the burden of
proving that he was prejudiced by counsel's alleged failure [to request a lesser-included instruction], but on direct
appeal, when a trial court fails to give a required instruction, prejudice may be presumed."

                                                         10
Pierce, 433 S.W.3d at 433 (both vacating the appellants' convictions due to trial court error in

failing to give a required lesser-included instruction).

                                                     Conclusion

         In sum, the circuit court committed reversible error in failing to instruct the jury on first-

degree trespass on Counts 1, 3, 6, and 9, and the presumption of prejudice created by that error

was not rebutted. Therefore, we vacate Smith's conviction on those four counts and remand the

case for further proceedings.7 As noted, the State concedes that the circuit court's judgment as to

Counts 4 and 7 should be reversed. We agree, and we vacate and remand as to those convictions

as well. This disposition does not impact Smith's remaining convictions.8



                                                                 /s/ JAMES EDWARD WELSH
                                                                 James Edward Welsh, Presiding Judge


All concur.


         7
           The Eastern District of this Court recently decided a case that supports the State's position. In State v.
Meine, ED 101136, 2015 WL 5135420 (Mo. App. E.D. Sept. 1, 2015), the defendant was convicted of first-degree
murder and armed criminal action. The trial court instructed the jury on the lesser-included offenses of second-
degree murder and first-degree involuntary manslaughter, and on self-defense. Id. at *2. On appeal, Meine argued
that the court erred in refusing to instruct on second-degree involuntary manslaughter. Id. Citing Johnson, 284
S.W.3d 561, and Glass, 136 S.W.3d 496, the Eastern District found that the trial court's failure to give a third lesser-
included instruction was error but was not prejudicial because the jury was instructed as to two lesser-included
offenses and found Meine guilty of the greater offense. Id. at *3-4. But see State v. Jensen, SD 33186, 2015 WL
5076702 (Mo. App. S.D. Aug. 27, 2015) (reaching the same result as we have reached here under an analogous
factual scenario); and State v. Sanders, WD 76452, 2015 WL 456404 (Mo. App. W.D. Feb. 3, 2015), reh'g and/or
transfer denied (Mar. 3, 2015), cause ordered transferred to Mo.S.Ct. (Apr. 28, 2015) (same). For the reasons set
forth herein, we disagree with the Eastern District's holding in Meine, and we decline to follow it. Pursuant to
Western District Rule XXXI, this opinion was reviewed and approved by the court en banc.
         8
           After briefing was complete, Smith sent a letter to this Court contesting the circuit court's jurisdiction over
Count 5, under which he was convicted of second-degree burglary of the U.S. Post Office and sentenced to seven
years. Citing §§ 12.010 and 12.020, RSMo, which give general consent for the United States to acquire land or
buildings in Missouri and divest the State of jurisdiction over criminal violations on such land or buildings, Smith
argues that the alleged crime in Count 5 fell under the exclusive jurisdiction of the federal government and that the
circuit court had no jurisdiction to try him on it. Because we are remanding this case to the circuit court on Smith's
other convictions, we advise counsel to raise this matter before the circuit court on remand.

                                                           11
