                SUPREME COURT OF MISSOURI
                                             en banc



STATE OF MISSOURI,                              )
                                                )
                         Respondent,            )
                                                )
vs.                                             )      No. SC94646
                                                )
ANWAR RANDLE,                                   )
                                                )
                         Appellant.             )

             APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
                        Honorable Robert S. Cohen, Judge

                                  Opinion issued August 4, 2015

          Anwar Randle appeals from a judgment convicting him of first-degree trespass,

second-degree assault, and armed criminal action. 1 Mr. Randle asserts that the trial court

erred by denying his request to instruct the jury on the lesser-included offense of third-

degree assault. 2 The judgment is vacated because the trial court erred by not instructing

the jury on the lesser-included offense of third-degree assault.




1
    This Court has jurisdiction pursuant to Mo. Const. art. V, § 10.
2
  Mr. Randle also argues that the trial court plainly erred by holding the instructions conference
in his absence. This Court will not address this claim because the judgment is vacated based on
the trial court’s error in refusing to instruct the jury on the lesser-included offense of third-degree
assault.
                                               Facts

       In November 2009, Mr. Randle and two other men broke into a home occupied by

Cameron Bass and Kena Coleman. Mr. Randle had been involved in a relationship with

Ms. Coleman. Mr. Randle, armed with a bottle of vodka, and one of his companions,

armed with a gun, went to the bedroom looking for Mr. Bass. Mr. Bass fled to an

adjacent room, where he saw a man armed with a shotgun. Mr. Randle followed Mr.

Bass and hit him repeatedly with the vodka bottle until the bottle broke on Mr. Bass’

head. Mr. Randle and his two companions then left the house. Mr. Randle was arrested

following a vehicle chase.

       The State charged Mr. Randle as a prior offender with one count of first-degree

burglary, one count of first-degree assault and two counts of armed criminal action. At

trial, Mr. Randle testified that he entered the house using his own keys. He also testified

that he threw the vodka bottle at Mr. Bass in self-defense.

       The trial court instructed the jury that it could find Mr. Randle guilty of second-

degree assault if the State proved beyond a reasonable doubt that Mr. Randle

“knowingly” caused injury to Mr. Bass by shattering the vodka bottle over his head. 3

The trial court rejected Mr. Randle’s proposed instruction on the lesser-included offense

of third-degree assault, which would require the jury determine if Mr. Randle

“recklessly” injured Mr. Bass.



3
  The trial court also instructed the jury on first-degree burglary, the lesser-included offense of
first-degree trespass, first-degree assault and two counts of armed criminal action.
       The jury found Mr. Randle guilty of trespass, second-degree assault and armed

criminal action based on the assault. The trial court sentenced Mr. Randle to six months

in the St. Louis County jail for trespass and seven years each in the Missouri Department

of Corrections for the assault and armed criminal action convictions. Mr. Randle appeals.

                                          Analysis

       Mr. Randle’s first point on appeal is dispositive. Mr. Randle asserts that the trial

court erred by refusing to submit his proposed jury instruction on the lesser-included

offense of third-degree assault. Mr. Randle is correct.

       Section 556.046.3, RSMo Supp. 2013, provides that a trial court must “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.”

There is almost always a basis in the evidence for acquitting the defendant of the

immediately higher-included offense because the jury has a right to disbelieve all, some,

or none of the evidence presented in a particular case. State v. Jackson, 433 S.W.3d 390,

399 (Mo. banc 2014). The State agrees that there was a basis in the evidence to acquit

Mr. Randle of second-degree assault because, as recognized in Jackson, the jury, in its

role as finder of fact, could disbelieve the State’s evidence. The issue in this case is

whether there is a basis in the evidence for convicting Mr. Randle of the lesser-included

offense of third-degree assault. If there is a basis in the evidence for convicting Mr.

Randle of third-degree assault, then the trial court erred by refusing to submit that

instruction to the jury.

                                              3
          “[T]he 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 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.” Jackson, 433 S.W.3d at 401. 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.” Id. at 404 (quoting State v. Derenzy, 89 S.W.3d 472, 474

(Mo. banc 2002)) (emphasis in original). 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. Id. at 401-402.

          In pertinent part, section 565.060 4 defines the crime of second-degree assault as

“knowingly” causing physical injury to another person. Section 565.070 defines the

crime of third-degree assault as “recklessly” causing physical injury to another person.

Section 562.021.4 provides that, “[w]hen recklessness suffices to establish a culpable

mental state, it is also established if a person acts purposefully or knowingly.” Therefore,

proof that Mr. Randle committed second-degree assault by “knowingly” causing physical



4
    All references to statutes are to RSMo 2000, unless indicated otherwise.
                                                  4
injury to Mr. Bass necessarily means there was also a basis in the evidence for the jury to

convict Mr. Randle of third-degree assault by “recklessly” causing physical injury to

Mr. Bass. Mr. Randle was entitled to his properly requested instruction on the nested

lesser-included offense of second-degree assault.

       The State argues that third-degree assault is not a “nested” lesser-included offense

within the offense of second-degree assault because the different mental states do not

constitute differential elements. The State reasons that each offense involved “physical

injury,” but second-degree assault requires proof that the defendant “knowingly” caused

physical injury while third-degree assault requires proof that the defendant “recklessly”

caused physical injury. The State concludes that “knowingly” is not a differential

element that, when removed from the greater offense, leaves a smaller subset of elements

that comprise the offense of assault in the third degree.

       The State’s argument is without merit. The offenses of second- and third-degree

assault require the State to prove that the defendant acted with a different intent with

respect to the infliction of physical injury. Therefore, different mental states are required

to prove the separate offenses of second- and third-degree domestic assault, and these

different mens rea requirements are differential elements on which the State bears the

burden of proof. The remaining element of both offenses, the infliction of physical

injury, remains the same. Second- and third-degree assault are “nested” lesser-included

offenses.

       The State also argues that the evidence showing that Mr. Randle smashed the

vodka bottle over Mr. Bass’ head cannot support an inference of recklessness because

                                              5
such conduct is practically certain to result in injury and, therefore, supports only an

inference that Mr. Randle “knowingly” caused physical injury to Mr. Bass. This

argument is foreclosed by section 562.021.4, in which the legislature specifically

provided that “knowingly” engaging in criminal conduct establishes that the conduct was

also reckless. Therefore, if Mr. Randle “knowingly” inflicted physical injury, he

necessarily engaged in conduct sufficient to establish that he “recklessly” inflicted

physical injury. The offense of third-degree assault is a “nested” lesser-included offense

within the offense of second-degree assault, and Mr. Randle was entitled to his requested

instruction.

                                        Conclusion

       The trial court erred by refusing Mr. Randle’s proffered jury instruction on the

nested lesser-included offense of third-degree assault. Consequently, Mr. Randle’s

conviction for second-degree assault is vacated. Mr. Randle’s conviction for armed

criminal action based on his assault conviction is also vacated.

       The judgment is vacated, and the case is remanded.



                                           ______________________________________
                                           Richard B. Teitelman, Judge

All concur.




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