             SUPREME COURT OF MISSOURI
                                        en banc



STATE OF MISSOURI,                                )
                                                  )
                                Respondent,       )
                                                  )
              v.                                  )       No. SC93108
                                                  )
DENFORD JACKSON,                                  )
                                                  )
                                Appellant.        )


        APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
                   The Honorable Michael F. Stelzer, Judge

                              Opinion issued June 24, 2014

       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.

       Here, a jury found Denford Jackson guilty of robbery in the first degree. The trial

court declined to instruct the jury on second-degree robbery, as Jackson requested. A

lesser included offense instruction was not required, the trial court held, because there

was no basis in the evidence for a reasonable juror to determine that the victim did not
reasonably believe that Jackson was holding a gun to her back throughout the robbery.

This was error. A jury always can disbelieve all or any part of the evidence, just as it

always may refuse to draw inferences from that evidence. Accordingly, in a criminal

case, the trial court cannot refuse a defendant’s request for this type of “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.

        Here, there was a basis in the evidence for the jury to find that the victim did not

reasonably believe Jackson held a gun on her because the jury did not have to believe any

of the evidence and did not have to infer that the victim believed anything, reasonably or

otherwise. To put it simply, evidence never proves any element until the jury says it

does. Accordingly, Jackson’s robbery conviction is vacated, and the case is remanded.

I.      Facts

        The jury found that Jackson entered a coffee shop on the morning of August 27,

2009, loitered in the store for several minutes, and then robbed the store’s cash register

while holding a gun on the employee. The only people in the shop at the time of the

robbery besides the employee were two customers, JS and SS. All three testified in the

state’s case at trial.

        Jackson entered the coffee shop through the dining area, walked toward the table

where JS and SS were seated, and had a short conversation with SS. Neither JS nor SS

noticed whether Jackson had a gun, though JS noticed that he kept his hand in his pocket

all the time SS was speaking with him. After his brief conversation with SS, Jackson
crossed over to the convenience store side of the shop where the cash register was

located.

       Neither JS nor SS noticed where Jackson went when he left the dining area, but

they both soon noticed that he was standing close behind the employee at the cash

register behind the counter. Again, neither could see whether Jackson had a gun, but they

could see Jackson only from behind and from the waist up. Though SS thought they

were counting money out of the cash register, she could not hear what either was saying.

Neither customer saw Jackson leave or knew that anything untoward had occurred until

the employee ran out of the kitchen saying she had been robbed.

       The employee testified that she was in the kitchen when the incident began and did

not notice Jackson until he came through the door behind the cash register counter. It

was not unusual for customers to come into the kitchen looking for the dining area, so the

employee approached Jackson to provide directions. When she got near him, he grabbed

her arm and turned her around until she was heading back out the door toward the cash

register.

       I felt something in my back. Looked down and it was a gun, and he said –
       exactly I don’t know what it was. Basically, take me to the drawer. … I
       looked down and I could see it after I had looked down and he guided me
       forward. … I saw it. Not a super long barrel but a six-inch barrel, silverish.
       … It was a revolver.

       After the employee gave Jackson the money from the cash register, he took her

back into the kitchen, made her lie down, patted her pockets looking for additional

money, and then exited the shop through the door on the market side. As soon as she

heard the door open and close, the employee yelled for help. She tried to telephone the


                                             3
police but had to have JS and SS help her because her hands were shaking too badly to

dial her phone.

       In addition to the foregoing testimony from the employee and the two customers,

the state introduced videos of the incident taken from multiple angles by the coffee

shop’s video surveillance system. These videos show Jackson entering the shop with one

hand in his pocket, stopping for a minute or less near SS, and then moving into the empty

market side of the shop. There, Jackson is seen looking around, taking something out of

his pocket, examining it, and then entering the kitchen through the door behind the cash

register counter. Seconds later, the employee is seen coming out of the kitchen with

Jackson pressed firmly behind her. He is holding the employee with one hand, and his

other hand is holding an object against the small of her back. Jackson’s head is close to,

and along side of, the employee’s head so he can see where she is going. He directs her

behind the counter and over to the cash register.

       After the employee hands Jackson the money from the cash register, he and the

employee are seen emerging from behind the counter. The employee turns right, away

from the kitchen, but Jackson plainly expects her to turn left into the kitchen. As a result,

for the only time in any of the videos, the two are separated by more than a couple of

inches. Jackson is seen extending his arm fully to keep the object in his hand (which, at

that point, is plainly visible) shoved firmly against the small of the employee’s back.

Jackson again grabs the employee with his other hand, turns her toward the kitchen and

closes up next to her again. There is no camera in the kitchen, but a camera in the dining

area points through the partially open door to the kitchen. This captures Jackson


                                              4
reentering the kitchen with the employee, putting her on the kitchen floor, patting her

pockets as though looking for money, and then leaving through the market area.

       A police detective viewed these videos during his testimony as well as

enlargements of individual frames from those videos. He testified that, in several shots,

he could see that Jackson is holding a small, dark blue or black pistol to the employee’s

back. In addition, when the video shows Jackson taking something out of his pocket and

inspecting it before first entering the kitchen to grab the employee, the detective testified

that these gestures distinctly are those of someone checking a revolver to see if it is

loaded. In other words, the detective testified that it looked to him as though Jackson was

releasing the cylinder to swing it out and to the left, spinning the cylinder, and then

reseating it in front of the hammer. Though the detective admitted on cross-examination

that it was possible that “a person could pull something out that appears to be a gun to

you on this blurry video but [it] could be a cell phone,” the detective did not admit it was

possible that this video shows Jackson holding a cell phone and not a gun. Instead, the

detective noted that people do not check to see if their cell phone is loaded right before

committing a crime.

       At the close of the evidence, Jackson’s counsel requested that the trial court

instruct the jury on both second-degree robbery and first-degree robbery, the crime with

which Jackson was charged. The only difference between these two instructions is that a

conviction of first-degree robbery requires the jury to find the following element, but a

conviction for second-degree robbery does not:




                                              5
       [T]hat in the course of taking the property, the defendant displayed or
       threatened the use of what appeared to be a deadly weapon or dangerous
       instrument.

Compare §§ 569.020 and 569.030, RSMo 2000. 1

       In support of his request that the jury be instructed on second-degree robbery,

Jackson’s counsel argued:

       [T]he argument is that in the video there is evidence to dispute or refute her
       testimony that there was, in fact, a gun; therefore, the jury could take that
       video evidence and not only disbelieve her that she believed there was a
       gun. They may believe that she was completely mistaken, and therefore it
       was not a reasonable belief. There was no testimony that there was a
       threat I had a gun or statements such as there is a gun. The only evidence
       that there was a gun is [the employee’s] testimony that she looked down for
       a split second and saw a gun. I think that the video refutes that. I think
       therefore we are entitled to an instruction on robbery in the second degree.
       [Emphasis added].

       The trial court refused to instruct the jury on the lesser included offense of

robbery in the second degree, stating “if I were to submit it here then I’d have to

submit it every time there’s a robbery first brought, and I don’t think that that’s the

law.” After viewing the videos and still photos of the crime during its

deliberations, the jury found Jackson guilty of robbery in the first degree. 2


1
   To be clear, this element requires the jury to find beyond a reasonable doubt that the
defendant objectively displayed or threatened to use an object during the robbery. If so, the jury
also must find that the object appeared to the victim – subjectively, but reasonably – to be a gun
or other deadly weapon or dangerous instrument.
2
   Jackson also was charged and found guilty of armed criminal action. The instruction for this
count stated that the jury could convict him of armed criminal action only if it found beyond a
reasonable doubt that Jackson committed robbery in the first degree and that he “committed that
offense by or with or through the use or assistance or aid of a deadly weapon.” Based on the
jury’s verdicts, therefore, the jury not only found beyond a reasonable doubt that the object in
Jackson’s hand reasonably appeared to the employee to be a gun, the jury found beyond a
reasonable doubt that the object in Jackson’s hand was a gun.


                                                6
       Jackson moved for a new trial based, in part, on the trial court’s failure to instruct

on second-degree robbery. The court overruled this motion and sentenced Jackson to

concurrent 30 and 10-year sentences for the robbery and armed criminal action

convictions, respectively. Jackson timely filed this appeal, and this Court has jurisdiction

over the matter. See Mo. Const. art. V, § 10. Jackson’s judgment of conviction on both

counts is vacated, and the case is remanded.

II.    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, 3 and, if the statutory

requirements for giving such an instruction are met, a failure to give a requested

instruction is reversible error. 4 State v. Derenzy, 89 S.W.3d 472, 475 (Mo. banc 2002).

III.   Analysis

       Jackson concedes that the evidence in this case was sufficient to support the jury’s

verdict that he was guilty of first-degree robbery. The employee testified that he held a




3
   Statutory references are to the version of the statute in effect on August 27, 2009, when this
crime occurred. No changes to the procedural statutes, e.g., § 556.046, occurred after that date.
4
   An appellate court will not remand for a new trial on the basis of an error that did not violate a
defendant’s constitutional rights unless “there is a reasonable probability that the trial court's
error affected the outcome of the trial.” State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006).
Here, any such prejudice from the refusal to instruct the jury on second-degree robbery seems
logically inconsistent with the fact, discussed above, that the jury found both that the object in
Jackson’s hand reasonably appeared to be a gun and that he actually used a gun. The Court need
not reconcile these, however, because prejudice is presumed when a trial court fails to give a
requested lesser included offense instruction that is supported by the evidence. State v.
Redmond, 937 S.W.2d 205, 210 (Mo. banc 1996) (defendant “is entitled to a new trial before a
properly instructed jury”).


                                                 7
gun on her, and, if the jury believed her testimony beyond a reasonable doubt, her

testimony was sufficient to convict Jackson of first-degree robbery.

       Rather than argue that the evidence was insufficient to convict him of first-degree

robbery, Jackson claims that the evidence also was sufficient to convict him of

second-degree robbery and, therefore, the trial court erred in refusing to instruct the jury

on that lesser included crime. His claim is based solely on section 556.046, and he

asserts no state or federal constitutional right to this lesser included offense instruction. 5

Accordingly, the analysis of Jackson’s claim begins with the statutory language:

       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.

       Although this Court generally relies only on the foregoing section 556.046.2 to

analyze claims involving lesser included offense instructions, see, e.g., State v. Pond, 131

S.W.3d 792, 794 (Mo. banc 2004); State v. Thomas, 161 S.W.3d 377, 380 (Mo. banc

2005), this statute was amended in 2001 to include an entirely new subsection addressing

this same subject:



5
   This decision not to raise a constitutional claim at trial may have reflected the “widely held
view that failure of a state court to instruct on a lesser offense [in a non-capital case] fails to
present a federal constitutional question[.]” Trujillo v. Sullivan, 815 F.2d 597, 607 (10th Cir.
1987) (citing Easter v. Estelle, 609 F.2d 756, 758 (5th Cir.1980); James v. Reese, 546 F.2d 325,
327 (9th Cir.1976); DeBerry v. Wolff, 513 F.2d 1336, 1339 (8th Cir.1975)). Jackson attempts to
assert constitutional claims for the first time in his point relied on in this Court. Not only were
the claims not raised at the first opportunity, but Jackson also failed to develop them in the
argument portion of his brief. Accordingly, these arguments are not properly before the Court.


                                                 8
       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.

       Despite the addition of subsection 3 and its emphasis that a lesser included offense

instruction must be justified by a “basis in the evidence,” § 556.046.3 (emphasis added),

this Court’s interpretation of section 556.046 did not change after 2001. See State v.

Williams, 313 S.W.3d at 659 n.5 (Mo. banc 2010) (quoting both subsections without

noting any substantive difference between the two). Accordingly, the Court views these

statutory provisions as interchangeable for purposes of whether the trial court is obligated

to give an instruction on a first-level lesser included offense, 6 and they provide that a trial

court is obligated to do so when each of the following requirements is met:



6
   Another effect of the 2001 amendments to section 556.046 was to clarify the analysis when a
party asks for multiple lesser included offense instructions. In State v. Hibler, 5 S.W.3d 147, 150
(Mo. banc 1999), the state argued that section 556.046.2 did not allow this. The 2001
amendments added section 556.046.3 (which avoids the phrase “charged offense” that was the
basis for the state’s argument in Hibler), and changed the definition of “charged offense” in
section 556.046.2 to include any lesser included offense for which an instruction is required. As
a result, a trial court may be obligated to give multiple lesser included offense instructions
because the first-level included offense is both a “charged offense” under section 556.046.2 and
a “higher included offense” under section 556.046.3.




                                                9
       a.      a party timely requests the instruction; 7

       b.      there is a basis in the evidence for acquitting the defendant of the
               charged offense; and

       c.      there is a basis in the evidence for convicting the defendant of the lesser
               included offense for which the instruction is requested.

       In this case, there is no dispute about the first requirement. And, because the

elements of second-degree robbery are a subset of the elements of first-degree robbery,

there is no dispute about the third requirement. The outcome of Jackson’s appeal,

therefore, depends solely on the second requirement, i.e., whether there was a basis in the

evidence for acquitting him of first-degree robbery.

       For there to be a basis in the evidence to acquit Jackson of first-degree robbery

and yet convict him of second-degree robbery, there must be a basis in the evidence for

concluding that the state failed to prove the one element that separates the two crimes.

Here, that differential element is whether the employee reasonably believed the object

Jackson held against her back throughout the robbery was a gun. Accordingly, Jackson

can only show that the trial court erred if there was a basis in the evidence to conclude

that the employee had no such belief or that it was not reasonable. 8


7
   Even when the defendant does not request a lesser included offense instruction, this Court
recently held that a defendant who was convicted of a greater offense states a valid claim for
post-conviction relief under Rule 29.15 by alleging that counsel’s failure to request the
instruction resulted from “inadvertence” rather than reasonable trial strategy. McNeal v. State,
412 S.W.3d 886, 889-90 (Mo. banc 2013). Because there was no record made during trial that
defense counsel’s decision not to request a lesser included offense instruction was a deliberate
(and objectively reasonable) strategic choice, the Court held that the defendant was entitled to an
evidentiary hearing and a chance to prove his claim and have the conviction set aside. Id. at 891.
8
   By the same token, Jackson’s request that the trial court give a lesser included instruction on
stealing depended on there being a basis in the evidence to conclude that the state failed to prove

                                                10
       Jackson argues that a sufficient basis in the evidence is established by the

surveillance videos and the discrepancy between the employee’s testimony that Jackson’s

gun was “silverish” and the detective’s testimony that it was dark-blue or black. The

state responds that, at most, this evidence disputes only whether Jackson actually held a

gun on the employee, not whether she reasonably believed he was holding a gun on her.

The state’s position is correct, but immaterial.

       What matters here is not whether Jackson actually displayed or threatened to use a

gun, but whether the object that Jackson plainly did display (and that Jackson plainly did

use or threaten to use) appeared to the employee – subjectively, but reasonably – to be a

gun. Defense counsel did not identify any evidence refuting (or offer any argument why

the state’s evidence did not show) that the employee believed Jackson held a gun on her

and that her belief was reasonable. Instead, he merely stated that the jury could choose to

believe that the employee “was completely mistaken [about seeing a gun] and therefore it

was not a reasonable belief.”

       Even though the state’s logic is correct, its argument is immaterial. The essence of

the state’s contention is that the jury’s right to disbelieve all or part of the state’s evidence

cannot, by itself, constitute a “basis in the evidence” to acquit the defendant of the greater

(or charged) crime for purposes of section 556.046. This Court disagrees. For support,

the state quotes State v. Olson, 636 S.W.2d 318 (Mo. banc 1982):

       The key phrase of that section is “a basis for a verdict”. It could be argued
       that the jury’s disbelief of the evidence necessary to establish an element of

both: (a) that the employee reasonably believed that the object Jackson was using was a gun, and
(b) that Jackson used some degree of force (no matter how slight) during the crime.


                                               11
       the greater offense is such a basis. However, such a construction would
       require an instruction on a lesser included offense in the vast majority of
       cases. … Even if the jury were to “disbelieve some of the evidence of the
       State, or decline to draw some or all of the permissible inferences, (this)
       does not entitle the defendant to an instruction otherwise unsupported by
       the evidence, on the issue of accidental homicide pursuant to § 559.050,
       ....” Achter, 448 S.W.2d at 900. It has consistently been held that an
       instruction on a lesser included offense is required only where there is
       evidence with probative value which could form the basis of an acquittal
       of the greater offense and a conviction of the lesser included offense.

Id. at 321 (emphasis added). But Olson is no longer valid.

       In State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), the state invoked Olson to

support its argument that a lesser included offense instruction was not appropriate unless

the defendant introduced affirmative evidence disputing the differential element. This

Court held that a “defendant is not required to put on affirmative evidence” to justify the

lesser included instruction and, “[t]o the extent that Olson … may be read to require a

defendant to put on affirmative evidence as to the lack of an essential element of the

higher offense, [it is] overruled.” Id. at 576.

       Because this statement overruling Olson was qualified, the state continued to rely

on Olson. In Pond, 131 S.W.3d 792, 794, the state cited several lower court opinions for

its argument that “a defendant is not entitled to a lesser-offense instruction merely

because a jury might disbelieve some of the state’s evidence.” Id. The decisions cited by

the state, however, all relied on Olson. Accordingly, Pond responds: “This Court,

however, overruled Olson, and its interpretation of section 556.046.2.” Id. (emphasis

added) (citing Santillan, 948 S.W.2d at 576). Pond then explains why the state’s

argument, and the statements in Olson on which that argument relies, are wrong:



                                              12
       A defendant is entitled to an instruction on any theory the evidence
       establishes. Hibler, 5 S.W.3d at 150. This Court leaves to the jury
       determining the credibility of witnesses, resolving conflicts in testimony,
       and weighing evidence. Rousan v. State, 48 S.W.3d 576, 595 (Mo. banc
       2001). A jury may accept part of a witness’s testimony, but disbelieve
       other parts. State v. Redmond, 937 S.W.2d 205, 209 (Mo. banc 1996). If
       the evidence supports differing conclusions, the judge must instruct on
       each. Hibler, 5 S.W.3d at 150.

Id. (emphasis added).

       As in Santillan, however, Pond fails to fasten the lid down on Olson strongly

enough. Because Pond states, “[L]ike Olson, the cases cited by the State are overruled,

to the extent they require affirmative evidence from the defendant,” id., this last limiting

phrase allowed the state to resurrect Olson again in Williams, 313 S.W.3d 656. In

Williams, this Court again set forth – and again rejected – the state’s argument:

       The State mistakenly relies on [three court of appeals decisions] to support
       its argument that a defendant is not entitled to a lesser included offense
       instruction merely because the jury might disbelieve some of the State’s
       evidence. These three cases rely on the previously overruled case of State
       v. Olson … Olson was overruled by Santillan, 948 S.W.2d at 576 (“To the
       extent that Olson … may be read to require a defendant to put on
       affirmative evidence as to the lack of an essential element of the higher
       offense, [it is] overruled.”).

       While the State acknowledges that after Santillan, the defendant was not
       required to put on affirmative evidence, it nonetheless argues that Williams
       was not entitled to a lesser included offense instruction because there was
       no affirmative evidence supporting his instruction. Therefore, the State
       contends, Williams was not entitled to the instruction on the sole basis
       that the jury might disbelieve some of the State’s evidence. This Court
       rejected that same argument in Pond, a post-Santillan case. Here, as in
       Pond, the State relies on pre-Santillan cases and argues that “a defendant is
       not entitled to a lesser included offense instruction merely because a jury
       might disbelieve some of the State’s evidence.” 131 S.W.3d at 794. In
       Pond, this Court rejected the State’s argument, stating, “A defendant is
       entitled to an instruction on any theory the evidence establishes.” Id. at
       794.


                                             13
Id. at 660-61 (emphasis added).

       Even though Williams flatly rejects the state’s argument and expressly rejects the

state’s continued reliance on any remnants of Olson, it again fails to fasten the lid on

Olson tight enough to prevent the state from continuing to make this twice-rejected

argument. In Williams – as in Pond – the Court merely referenced that Santillan

overruled Olson to the extent that it requires a defendant to put on affirmative evidence as

to the lack of the differential element. Id. at 660. Neither Pond nor Williams expressly

overrules the remainder of Olson on which the state repeatedly – but unsuccessfully –

relies. The Court now does so.

       The state argues that Jackson was not entitled to an instruction on the lesser

included offense of second-degree robbery solely because the jury could refuse to believe

that the employee saw a gun in Jackson’s hand or reasonably believed it was a gun that

he was holding against her back throughout the robbery. Even though Williams and Pond

expressly rejected such an argument, the state continues to assert it and continues to

claim that it is supported by the parts of Olson it claims survived Santillan.

       Accordingly, because the state continues to rely on the part of Olson that survived

Santillan to assert an argument that this Court has twice rejected expressly, and because

Williams and Pond continue to suggest that some part of Olson remains good law despite

explicitly rejecting all of its reasoning, the Court again holds that the jury’s right to

disbelieve all or any part of the evidence and its right to refuse to draw needed inferences

is a sufficient basis in the evidence – by itself – for a jury to conclude that the state has



                                              14
failed to prove the differential element. To the extent Olson suggests anything to the

contrary, it is overruled.

       The holdings of Pond and Williams should have made lesser included offense

instructions nearly universal, at least when the differential element is one for which the

state bears the burden of proof. All decisions as to what evidence the jury must believe

and what inferences the jury must draw are left to the jury, not to judges deciding what

reasonable jurors must and must not do. 9 Pond, 131 S.W.3d at 794; Williams, 313

S.W.3d at 660. The Court now reaffirms those holdings because, as long as the jury has

the right to disbelieve all or any part of the evidence, and refuse to draw needed

inferences, section 556.046 cannot be read any other way. 10 See Pond, 131 S.W.3d at

794 (“defendant is entitled to an instruction on any theory the evidence establishes” and

“if the evidence supports differing conclusions, the judge must instruct on each”);

Williams, 313 S.W.3d 659-60 (“jury may accept part of a witness’s testimony, but

disbelieve other parts”) (quoting MAI–CR 3d 304.11.G). “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.” Derenzy, 89 S.W.3d at 474-75).




9
   Williams quotes prior opinions that purport to decide what instructions to give based on what
the court thinks a reasonable jury can and cannot refuse to believe. Williams, 313 S.W.3d at 660.
The Court rejected that approach, however, by holding that the jury can refuse to believe any
part of the state’s evidence. Id. at 661. The two approaches are antithetical and, as explained
herein, Williams wisely rejected the former in favor of the latter.
10
    The Court reaches this same conclusion in the companion case, State v. Pierce, ___ S.W.3d
___ (Mo. banc 2014) (No. SC93321).


                                               15
       Here, the differential element is whether the employee believed (subjectively, but

reasonably) that the object Jackson held against her back throughout the robbery – and

that he used or threatened to use to force her to do what he wanted – was a gun. 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. Accordingly, the

evidence supported an instruction on robbery in the second degree. 11

       The temptation to violate this principle and refuse to instruct down – though

plainly wrong – can be almost overpowering in some cases, especially when the evidence

is so strong and the inferences are so obvious that giving a lesser included offense

instruction seems almost to beg for jury nullification or compromise verdicts. A sure

sign that a judge or court is about to yield to this temptation is a reference to what a

“reasonable juror” in a criminal case must or must not find. For example, in State v.

Mease, 842 S.W.2d 98 (Mo. banc 1992), the Court surveyed the state’s extensive

evidence of deliberation and held that “[n]o rational fact finder could conclude that the



11
     In Pierce, ___ S.W.3d ___, the Court applies this holding to a case in which the defendant
was charged with second-degree trafficking and the trial court refused the defendant’s request to
instruct on the “nested” lesser offense of possession. The differential element, i.e., the element
required for the trafficking charge but not for possession, is that the defendant possessed cocaine
base weighing more than two grams. No matter how compelling (or even uncontested) the
evidence may be on this element, it is for the jury – and only the jury – to decide whether the
state proved that element beyond a reasonable doubt. Accordingly, it was error in Pierce for the
trial court to refuse to instruct the jury on possession on the ground that a reasonable jury must
believe this evidence and must find that differential element.


                                                16
defendant committed this homicide but that he did not deliberate on the killing.” Id. at

111. 12

          The temptation to deprive the jury of the right to disbelieve all or any part of the

evidence, as this Court did in Mease, is neither new nor is it a weakness peculiar to this

Court. Even luminaries of the judicial heavens have fallen prey to this temptation on

occasion. For example, Justice Holmes once wrote:

          The judge cannot direct a verdict [in a criminal case] it is true, and the jury
          has the power to bring in a verdict in the teeth of both law and facts. But
          the judge always has the right and duty to tell them what the law is upon
          this or that state of facts that may be found, … and when there is no dispute
          he may say so although there has been no formal agreement. Perhaps there
          was a regrettable peremptoriness of tone – but the jury were allowed the
          technical right, if it can be called so, to decide against the law and the facts
          – and that is all there was left for them after the defendant and his witnesses
          took the stand. If the defendant suffered any wrong it was purely formal
          since, as we have said, on the facts admitted there was no doubt of his guilt.

Horning v. D.C., 254 U.S. 135, 138-39 (1920). This uncharacteristic usurpation of the

jury’s role was noted at the time, id. at 139 (Brandeis, J., dissenting) (noting that the trial

court’s statement constituted a directed verdict in a criminal case and arguing that there is

nothing “technical” about the jury’s right to find the facts because it is only that finding


12
    Nor is Mease the only time that this Court has held what a jury in a criminal case was not
allowed to find. See, e.g., State v. Murray, 744 S.W.2d 762, 774 (Mo. banc 1988) (defendant’s
theory of second-degree murder contradicted by the state’s evidence); State v. Amerson, 518
S.W.2d 29, 33 (Mo.1975) (second-degree murder instruction not required when victim was killed
while sitting peacefully by the street and defense was that defendant was not the killer); State v.
Parker, 509 S.W.2d 67, 71 (Mo.1974) (second-degree murder instruction not required when
victims were forced to lie on floor and then were shot and defense was that defendant was not the
killer); State v. Crow, 486 S.W.2d 248, 254–55 (Mo.1972) (second-degree murder instruction not
required when victim was bound and strangled and defense was that defendant was not killer);
State v. Holland, 354 Mo. 527, 543, 189 S.W.2d 989, 998 (1945) (second-degree murder
instruction not required when victims’ headless bodies, which had two or three shotgun wounds
each, were found in a lake and defense was that defendant was not killer).

                                                17
that gives the government any right or power to punish), and history has adjudged it “an

unfortunate anomaly in light of subsequent cases.” United States v. Gaudin, 515 U.S.

506, 520 (1995).

       It is the “universally accepted law of this state that a court in the trial of a criminal

prosecution cannot direct the jury to return a verdict of guilty[.]” State v. McNamara,

110 S.W. 1067, 1071-72 (Mo. 1908).

       We have held that in criminal cases “no court in Missouri has the power or
       right to direct a verdict of guilty in the face of our constitutional guaranty of
       trial by jury, our statute forbidding the judge to sum up or comment on the
       evidence.” In State v. Buck, supra, 25 S. W. 573, 577, the court said: “The
       presumption of innocence with which defendant is clothed, and never
       which shifts, rests with him throughout, and, notwithstanding the prima
       facie case made out by the state, it must still go further. ‘A prima facie
       case will not warrant a conviction.’”

State v. Shelby, 64 S.W.2d 269, 275 (Mo. banc 1933) (emphasis added, citations

omitted).

       When a court decides what instructions to give the jury in a criminal case under

section 556.046 based on what a reasonable juror must and must not find, or what a

reasonable juror must and must not infer, it tacks far too close to the forbidden waters of

directing a verdict in a criminal case. Here, the trial court concluded – and the state

would have this Court hold – that the evidence was so compelling that the jury must

believe that the employee saw something in Jackson’s hand and must infer that she

reasonably believed it was a gun. The effect of such a ruling, however, is the same as a

directed verdict on the differential element.




                                                18
       In other words, there is no difference between: (a) rejecting a lesser included

offense instruction on second-degree robbery and (b) giving only a second-degree

robbery instruction but telling the jury that if it finds all of the elements of second-degree

robbery, it must find Jackson guilty of first-degree robbery. If the latter is prohibited, so

must the former be. Santillan, Pond, and Williams combine to hold 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 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. The Court reaffirms those holdings here.

       Santillan holds that the defendant is not required to put on affirmative evidence to

support the lesser offense or refute the greater. Pond and Williams hold that there is no

requirement for such affirmative evidence regardless of who adduces it. Now, the Court

holds expressly what Pond and Williams only may have implied: a defendant not only

does not need to introduce affirmative evidence, he does not have to “cast doubt” over the

state’s evidence via cross-examination or explain to the judge or jury precisely how or

why the jury can disbelieve that evidence and so acquit him of the greater offense and

convict him of the lesser. To the extent Olson or any other case suggests otherwise, it no

longer should be followed.

       Finally, the Court does not accept the argument in the separate opinions that this

holding does unnecessary violence to the language or intent of section 556.046. Even

though the effect of this decision likely will be that lesser included offense instructions

will be given virtually every time they are requested (and even though trial courts likely


                                              19
will give such instructions even when not requested simply to avoid the possibility of

post-conviction claims under McNeal), these particular clothes were missing from the

emperor’s wardrobe long before this case. This holding was implied (at least) in Pond,

and it was stated expressly in Williams. Accordingly, the Court’s decision in this case

merely acknowledges what the rest of the villagers already have seen.

       As noted at that outset, this decision is based solely on the language of section

556.046. But this statute must be applied in the context of the constitutional imperatives

of the presumption of innocence and the right to a trial by jury. The holding in this case

is faithful to the language of section 556.046 in that context. Unless there is a

constitutional right to a lesser included offense instruction in non-capital cases, a question

that the Court does not address here, statutory language eliminating such instructions in

all such cases would seem to pose no drafting difficulty. But, to the extent that the

purpose of section 556.046 is to make a lesser included offense instruction available in

one first-degree robbery case but not another based on how strong or weak the trial judge

believes the state’s evidence to be, the language presently chosen to accomplish that goal

fails for the reasons (and to the extent) set forth above. There simply is no way for this

Court to construe the phrases “a basis in the evidence to acquit the defendant,”

§ 556.046.3, or “a basis for a verdict acquitting the defendant,” § 556.046.2, to achieve

such an end without undermining the fundamental values embodied in the presumption of

innocence and the right to a jury trial. Accordingly, until some other language is

employed, the construction given here (and in Williams) to subsections 2 and 3 of

section 556.046 is the best – and only – construction reasonably available.


                                             20
IV.    The Separate Opinions

       The divide between the Court’s holding and the positions taken in the separate

opinions is narrow and easily stated: 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. 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.

       A.     The Harm

       Before debating the merits of this holding further, however, it seems both fair and

reasonable to ask: Where is the harm? Even if the evidence is such that every reasonable

juror must find the differential element proved beyond a reasonable doubt, where is the

harm in giving the defendant the lesser included offense instruction he requests?

       To isolate this harm, assume: (1) a defendant is charged with a crime consisting of

three elements; (2) the defendant requests an instruction on a lesser included offense

consisting only of the first two elements; (3) the jury will find that the first two elements

have been proved; and (4) the evidence is such that every reasonable juror must find the

third element has been proved.

       If the jury in this case is “reasonable,” i.e., if it finds element C proved as every

reasonable juror must, it will convict the defendant of the greater offense whether the

lesser included offense instruction is given or not. Therefore, a lesser included offense


                                              21
instruction will make a difference in this case only if the jury is “unreasonable” regarding

the proof of element C, yet willing to convict the defendant of the lesser offense if given

that option. This is the supposed harm that the separate opinions seek to prevent. But the

alternative is unacceptable. It forces an unreasonable jury either:

       A)     to acquit Defendant of the greater offense, or

       B)     to convict him of a crime it believes (unreasonably, but genuinely)
              Defendant did not commit.

       The Court perceives no harm in giving a lesser included offense instruction that

allows the jury to convict a defendant of an offense that the evidence proves he

committed and that the jury believes he committed. Instead, the harm comes from a rule

that either: (A) allows the defendant to go free despite evidence that proves he committed

a crime the jury was not allowed to consider, or (B) sends him to prison for a crime that

the jury genuinely (though perhaps unreasonably) believes he did not commit.

       That is harm enough, but it is not the only harm caused by the approach that the

separate opinions champion. The question of whether the trial court will give a lesser

included offense instruction cannot be answered until the very end of the trial, when the

trial court sifts and weighs the evidence to determine which elements (if any) a

reasonable juror must find. This means that the defendant must prepare and try his case

never knowing for sure whether the trial court will give the lesser included offense

instruction he wants. By acknowledging the effect of its prior decisions, the Court’s

holding in this case creates certainty that will benefit defendants and, ultimately, the state

and the trial court as well.



                                              22
       B.      The Arguments

       The separate opinions want to have their cake and eat it too. This Court has held

that a “defendant is not required to put on affirmative evidence” to justify a requested

lesser included instruction, Santillan, 948 S.W.2d at 576, and the jury “may believe or

disbelieve all, part, or none of the testimony of any witness.” Williams, 313 S.W.3d at

660. 13 The separate opinions are willing to follow these principles, but only to a point.

       For example, the position taken in the separate opinions acknowledge that a

“defendant has no obligation to put on affirmative evidence” to justify a requested lesser

included instruction, but would accept the state’s proposed limitation that the defendant

still must put the differential element “in dispute” by impeaching the state’s witnesses on

that element, by making a “credible” argument that the state’s proof of that element need

not be believed, or by otherwise creating a “real question” as to whether this differential

element was proved beyond a reasonable doubt. This argument was rejected by this

Court in Pond and Williams.

       By the same token, the Court has rejected the idea that the jury “may believe or

disbelieve all, part, or none of the testimony of any witness,”but only if it believes all of

the evidence that a reasonable juror must believe and does not believe any of the

evidence that a reasonable juror must disbelieve. The question of whether the evidence is


13
     The separate opinions rely on the fact that Williams quoted “reasonable juror” language and
argue that the evidence there was such that reasonable jurors could disagree about the differential
element. Whether the Court could have come to such a conclusion is debatable, but what is clear
is that the Court did not do so. The basis for the holding in Williams is that the jury is entitled to
believe all, part or none of the evidence, not that such belief or disbelief was (or was not)
reasonable.

                                                 23
sufficient (i.e., whether a jury may find guilt beyond a reasonable doubt) is a proper

question for trial and appellate courts, but the question of what the jury must find has no

place in a criminal trial or appeal.

       This Court serves the criminal justice system best when it says what it means and

means what it says. Accordingly, the Court should not continue to articulate the

foregoing principles in Santillan and Williams on the one hand and, on the other, continue

to suggest that a requested lesser included offense instruction need not be given if the

trial court finds that all reasonable jurors must find that the differential element was

proved. It is unfair to the trial court that makes its decision on the basis of the latter, only

to be reversed on the basis of the former. And it is unfair to the defendant who must go

through a second trial just to get the instructions he should have gotten in the first.

       For these reasons, the Court’s holding acknowledges what most of the villagers

already have seen, i.e., that the emperor’s wardrobe is more imaginary than real. When a

defendant requests an instruction for a lesser included offense that consists of a subset of

the elements of the charged offense, that instruction must be given. This is not a new

holding but, because the state persists in insisting that the emperor is well-clothed, the

Court here underscores its holdings in Pond and Williams.

C.     No Basis to Convict of the Lesser Offense

       The implication in the state’s arguments and the separate opinions is that the

Court’s holding will give the jury an opportunity to convict the defendant of a crime for

which there is no basis in the record to find him guilty. This is incorrect.




                                              24
       When dealing with “nested” lesser included offenses (i.e., those comprised of a

subset of the elements of the charged offense), “it is impossible to commit the greater

without necessarily committing the lesser.” Derenzy, 89 S.W.3d 472, 474 (Mo. banc

2002) (emphasis added). See also State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981)

(“it is impossible to commit the greater [offense] without first committing the lesser”).

For example, 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.

       The error in the contention that the Court’s holding allows a jury to convict a

defendant of a lesser offense that is not supported by the evidence can result only from a

concatenation of three logical missteps: (1) it treats a sufficiency analysis (i.e.,

determining what a reasonable juror may find) like a directed verdict analysis (i.e.,

determining what a reasonable juror must find); (2) it makes the lack of the differential

element in the lesser offense into an element of that offense (e.g., if “weapon” is an

element of robbery first, then “no weapon” must be an element of robbery second); and

(3) it converts this new element into an affirmative defense. Only by adding all three of

these together is it possible to reach the erroneous conclusion that giving a lesser included


                                              25
offense instruction allows the jury to convict the defendant of a crime for which there is

no basis in the record to find him guilty.

       Here, there is sufficient evidence for a reasonable juror to find that Jackson stole

the victim’s property by force (i.e., that he committed second-degree robbery), even if the

video confirmed beyond any question that he was carrying a gun. In fact, this would still

be true even if the video showed – and four unimpeachable eyewitnesses confirmed – that

Jackson was carrying a bazooka and a machete. This is because whether the defendant

was or was not armed is irrelevant for purpose of the elements of second-degree robbery.

       The same is true in the companion case, Pierce. No matter how compelling the

evidence in Pierce was – or was not – concerning whether the cocaine base in the

defendant’s possession weighed more than two – or 2,000 – grams, the evidence in that

case had to be sufficient to convict Pierce of possession (for which weight is not an

element) because the evidence was sufficient to prove second-degree trafficking (for

which proof that the substance weighed two grams or more is required). Pierce, __

S.W.3d at __ (slip op. at 12). In other words, the jury did not have to find that the

defendant possessed less than two grams of that substance in order to convict him of the

“nested” lesser offense of possession; it could convict him of that crime without deciding

(or even considering) how much the substance weighed. By the same token, the jury in

this case did not have to find that Jackson was unarmed in order to convict him of the

“nested” lesser offense of second-degree robbery; it could convict him of that crime

without ever considering or deciding that question. By definition, therefore, a “nested”

lesser offense omits – it does not negate – the differential element.


                                             26
       Accordingly, the holding in this case does not allow a jury to convict a defendant

of a crime for which he has not been proven guilty. Any evidence that is sufficient to

prove the elements of the charged offense must necessarily be sufficient to prove a crime

that is comprised of a subset of those same elements, i.e., a “nested” lesser offense.

       D.     Putting the Differential Element “In Dispute”

       Though the state concedes that, under Santillan, the defendant cannot be denied a

lesser included offense instruction on the basis that he failed to introduce affirmative

evidence negating the differential element, the separate opinions would replace this

unlawful – but at least workable – standard with an amorphous standard that is both

unlawful and unworkable. The Court rejects the assertion that it should hold that a

defendant is not entitled to a lesser included offense instruction unless and until he puts

the differential element “in dispute,” especially as the proponents of this approach fail to

provide even vague guidance as to how a defendant can meet this new requirement.

Moreover, the Court refuses any approach that would borrow from civil cases on

summary judgments or directed verdicts to determine when a criminal defendant has

done enough to put an element on which the state bears the burden of proof “in dispute.”

       This Court has long been faithful to the basic principle that entering a plea of “not

guilty” is all that a defendant needs to do to put the government to its proof on every

element of the crime. 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); State v. Shawley, 67

S.W.2d 74, 83 (Mo. 1933) (“Defendant’s plea of ‘not guilty’ put in issue every allegation


                                             27
of the indictment, and, if the prosecutor had failed to prove the killing, defendant would

have been entitled to an acquittal.”) (quoting State v. Winter, 34 N. W. 475, 478 (Iowa

1887)).

       As explained herein, any attempt to narrow this principle so that a plea of “not

guilty” only puts “in dispute” those elements that the trial court (or an appellate court on

de novo review) believes reasonable jurors can disagree about comes dangerously close

to denying the defendant the fair trial to which he is entitled under the state and federal

constitutions. 14

       E.      Federal Cases

       This case is about the application of a Missouri statute to Missouri prosecutions in

Missouri courts. Even so, the separate opinions cite to federal court decisions that

supposedly preclude the Court’s holding. Yet none of these cases reject the principles

underlying the Court’s holding.

       Some of the federal cases relied upon are constitutional reviews of state court

prosecutions in which the state’s law governing lesser included offense instructions bear

no resemblance to section 556.046.2. For example, in Beck v. Alabama, 447 U.S. 625

(1980), the Alabama capital murder statute prohibited the trial court from giving a lesser


14
    Nor is there any basis for claiming that the Court’s holding in this case imperils the
defendant’s state or federal due process rights. As noted from the outset, this case and the
Court’s holding are limited to trials in which the defendant timely requests an instruction on a
“nested’ lesser included offense. Obviously, there can be no due process violation in granting a
defendant’s own request. Using constitutional precedents meant to protect defendants cannot
justify a new rule that requires a defendant to do more than plead not guilty before giving him
the full benefit of the presumption of innocence and imposing on the state the full burden of
persuading the jury that it has proved each element beyond a reasonable doubt.


                                               28
included offense instruction in any case. The Supreme Court rejected this attempt to

force the jury to choose between convicting the defendant of the charged crime (with its

mandatory penalty) or allowing the defendant to walk free. Id. at 634 (noting lesser

included offense instructions are a vital party of “ensur[ing] that the jury will accord the

defendant the full benefit of the reasonable-doubt standard”). 15 This is the principle that

this Court’s holding vindicates in this case. 16

       In Roberts v. Louisiana, 428 U.S. 325, 333 (1976) (plurality opinion), the Court

declared Louisiana’s first-degree murder statute unconstitutional because it mandated a

death sentence for anyone found guilty of any of five categories of killings. In reaching

this conclusion, the Court rejected the state’s argument that the legislature can overcome

the “constitutional vice of mandatory death sentence statutes” simply by requiring the

trial court in every case to instruct the jury on all lesser included forms of homicide. The

Court rejected “such an approach [because it] makes the jurors’ power to avoid the death

penalty dependent on their willingness to accept this invitation to disregard the trial


15
    In Hopper v. Evans, 456 U.S. 605 (1982), the Court denied habeas relief to a state prisoner
on the grounds that Beck did not recognize a general due process right to lesser included offense
instructions in state court and that relief was not merited when, under state law, the defendant
would not have been entitled to such an instruction even in a non-capital case. Id. at 612.
But see Keeble v. United States, 412 U.S. 205, 213 (1973) (noting “while we have never
explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a
defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a
construction of the Major Crimes Act to preclude such an instruction would raise difficult
constitutional questions”). Accordingly, the Supreme Court has not yet recognized a
constitutional right to lesser included offense instructions, nor does this Court do so here.
16
    This Court’s willingness to invade the jury’s province typified in Mease and the other cases
cited in the separate opinions decreased markedly after Beck, and the Court’s holding here
merely extends the same certainty to non-capital cases in which a defendant seeks an instruction
on a “nested” lesser included offense.

                                                29
judge’s instructions” to find the defendant guilty of a lesser included offense even though

it believed beyond a reasonable doubt that the defendant committed all of the elements of

the charged offense. Id. at 335.

       The other cited federal cases are even less relevant. Unlike Missouri practice

under section 554.046.2, federal court decisions regarding lesser included offense

instructions are not persuasive because their practice is not the result of a statute (let

alone one similar to section 554.046.2). Instead, it is governed entirely by decisional law.

See Fed. R. Crim Proc. Rule 31(c) (defining lesser included offenses without addressing

when instructions of such must be given).

       For example, the separate opinions rely heavily on language from Keeble v. United

States, 412 U.S. 205 (1973), and Sansone v. United States, 380 U.S. 343, 350 (1965).

The former does not help their argument, however, and the latter actually hurts it. In

Keeble, the Supreme Court rejected the government’s argument that Congress intended to

deprive defendants of the general rule in federal courts (i.e., allowing lesser included

offense instructions when supported by the evidence) in prosecutions on Indian lands, but

it did not address whether the defendant was entitled to such an instruction. Keeble, 412

U.S. at 213 (noting that any attempt to preclude the availability of a lesser included

offense instruction in an entire category of cases would be constitutionally suspect).

       In Sansone, the Supreme Court returned to its rationale that overuse of lesser

included offense instructions could permit juries to “pick between the felony and the

misdemeanor so as to determine the punishment to be imposed, a duty Congress has

traditionally left to the judge.” Sansone, 380 U.S. at 350. This is significant here


                                              30
because it shows that the distrust of juries inherent in the “rational juror” threshold urged

by the separate opinions is far more appropriate in federal courts where sentencing is

determined solely by the judge, than it is in Missouri where the legislature preserves a

significant role for the jury in sentencing first-time offenders.

       For these reasons, the quoted federal cases do not provide a sufficient basis for the

Court to close its eyes to the meaning of its prior holdings in Santillan, Pond, and

Williams. Moreover, the use of these federal cases leaves the impression that federal

courts are ready and willing to use this issue to usurp the jury’s role. If true, this still

would not justify this Court in doing the same. But, more important, this is not a true

portrait of these issues in the federal courts.

       The Supreme Court has stated repeatedly that criminal guilt is to be determined by

the jury, not the judge, and that a court cannot usurp the jury’s role simply because it

finds that the evidence establishes an element beyond dispute:

       [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
       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). See also 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


                                                  31
which Congress has prescribed. To repeat, guilt is determined by the jury, not the

court.”) (emphasis added).

       The Supreme Court explained with great force and eloquence why the jury’s role

extends to guilt and innocence and is not limited simply to resolving disputed questions

of fact:

       The guarantees of jury trial in the Federal and State Constitutions reflect a
       profound judgment about the way in which law should be enforced and
       justice administered. A right to jury trial is granted to criminal defendants
       in order to prevent oppression by the Government …. Providing an accused
       with the right to be tried by a jury of his peers gave him an inestimable
       safeguard against the corrupt or overzealous prosecutor and against the
       compliant, biased, or eccentric judge …. Beyond this, the jury trial
       provisions in the Federal and State Constitutions reflect a fundamental
       decision about the exercise of official power – a reluctance to entrust
       plenary powers over the life and liberty of the citizen to one judge or to a
       group of judges. Fear of unchecked power, so typical of our State and
       Federal Governments in other respects, found expression in the criminal
       law in this insistence upon community participation in the determination of
       guilt or innocence.

Duncan v. State of Louisiana, 391 U.S. 145, 155-56 (1968) (emphasis added).

       The approach championed in the separate opinions violates these principles

because it restricts the jury’s decision-making only to questions that a court believes are

fairly debatable among “reasonable jurors.” Federal courts do not condone this, even

when the evidence is overwhelming or uncontradicted.

       The presumption of innocence to which appellant was entitled demanded
       that all factual elements of the government’s case be submitted to the jury.
       It is immaterial that the government’s evidence as to the actual theft was
       uncontradicted. The acceptance of such evidence and the credibility of
       witnesses is for the jury, even though to the court the only possible
       reasonable result is the acceptance and belief of the government’s
       evidence. A partial direction of the verdict occurs when the court
       determines an essential fact, and this denies the appellant trial by jury.


                                             32
United States v. Manuszak, 234 F.2d 421, 424-25 (3d Cir. 1956) (emphasis added). See

also United States v. Muse, 83 F.3d 672, 679-80 (4th Cir. 1996) (“Although a fact

stipulation may have the effect of providing proof beyond a reasonable doubt of the

existence of the facts that make up an element, a conviction is not valid unless a jury

considers the stipulation and returns a guilty verdict based on its finding that the

government proved the elements of the crime beyond a reasonable doubt …. [and the]

court may not by-pass the jury and enter its own finding that the element has been

established.”).

       It is not for this Court to tell the federal courts that these essential principles

cannot be reconciled with a “reasonable juror” gateway to a defendant’s request for a

lesser included instruction on a “nested” lesser offense. But the Court can – and here

does – abandon such inconsistency in its own practice.

       F.     Model Penal Code Statutes and Cases

       Even less persuasive than these federal court cases is the reliance placed on how

the model penal code addresses the use of lesser included offense instructions in states

that have adopted that approach. The model penal code provided:

       The Court shall not be obligated to charge the jury with respect to an
       included offense unless there is a rational basis for a verdict acquitting the
       defendant of the offense charged and convicting him of the included
       offense.

ALI Model Penal Code at § 1.07(5) (1962) (emphasis added).

       Missouri explicitly rejected the model penal code on this point. Section 556.046.2

predates the model penal code and requires only “a basis,” not “a rational basis.” By


                                               33
refusing to change section 556.046.2 when it adopted much of the remainder of the model

penal code, the legislature rejected this “rational basis” approach. See Comments to

Missouri Criminal Code, p. 1-5, § 1.090 (1973). This Court cannot amend the statute

now to adopt the model penal code approach that the legislature considered and rejected.

       For all these reasons, the separate opinions fail to justify an approach that

authorizes (if not actually encourages) courts to invade the jury’s province and usurp its

role as the final arbiter of a defendant’s guilt. Presented as a defense of the status quo,

their approach seeks to avoid the unavoidable consequences of the principles that this

Court recognized and protected in Santillan, Pond, and Williams. As a result, that

approach would be a backward step, and the Court’s holding in this case moves Missouri

practice toward greater certainty, fewer retrials, and renewed faith in the jury system.

V.     Conclusion

       For the reasons stated above, Jackson’s judgment of conviction is vacated both as

to the first-degree robbery count and, because the jury’s verdict on the armed criminal

action count was predicated on its verdict regarding first-degree robbery, the armed

criminal action count as well. 17 The case is remanded.


                                                    _________________________________
                                                    Paul C. Wilson, Judge

Russell, C.J., Fischer and Teitelman, JJ., concur; Stith, J., concurs in part and dissents in
part in separate opinion filed; Breckenridge, J., concurs in opinion of Stith, J.; Draper, J.,
dissents in separate opinion filed; Stith, J., concurs in opinion of Draper, J.

17
    Because Jackson’s convictions are vacated and the case is remanded on the grounds
discussed above, the Court does not reach or address Jackson’s claims relating to the sufficiency
of the transcript in this appeal.

                                               34
               SUPREME COURT OF MISSOURI
                                         en banc

STATE OF MISSOURI,                                 )
                                                   )
                                Respondent,        )
                                                   )
              v.                                   )       No. SC93108
                                                   )
DENFORD JACKSON,                                   )
                                                   )
                                Appellant.         )


         OPINION CONCURRING IN PART AND DISSENTING IN PART

       I concur with the result the principal opinion reaches, but 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 to 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

to support a request for a lesser included offense instruction. In so stating, the principal

opinion simply ignores, and sub silencio overrules, key portions of the principal case it

relies on, State v. Williams, 313 S.W.3d 656, 660 (Mo. banc 2010). Williams, while

reaffirming that affirmative evidence is not required, also expressly reaffirms Missouri’s

well-established standard 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.” Id. As discussed in detail below, this 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.

         Not even defendant Denford Jackson asked this Court to reject its long-standing

rule and hold that lesser included offense instructions must be submitted even if a

1
    All statutory references are to RSMo 2000 unless otherwise noted.

                                              2
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.

I.     A TRIAL COURT MAY SUBMIT A LESSER INCLUDED OFFENSE
       INSTRUCTION ONLY IF THERE IS A BASIS IN THE EVIDENCE
       SUPPORTING THAT INSTRUCTION

       Section 556.046.2 specifies when a trial court must or must not instruct down. It

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). This Court repeatedly has held this means that, “[i]f 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.” Williams, 313 S.W.3d at 660, quoting State v. Derenzy, 89 S.W.3d 472, 474 (Mo.

banc 2002).

       Contrary to this well-established understanding, the principal opinion here and the

companion case State v. Pierce, --- S.W.3d --- (Mo. banc 2014), hold that a court always

must instruct down if requested. This holding undermines 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.




                                             3
       A.     The Trial Court’s Authority to Instruct the Jury

       The principal opinion states that this is the result required by the rule that the jury

has the right to believe or disbelieve all or any part of the evidence. To be sure, this

Court long has held that a trial court must consider the jury’s ability to believe or

disbelieve any and all evidence when the court determines whether there is a basis in the

evidence for a reasonable jury to acquit the defendant of the charged offense and convict

him of the lesser offense. See, e.g., Williams, 313 S.W.3d at 660. But the principal

opinion improperly manipulates this truism to reach a conclusion never before reached by

any other Missouri case – that the corollary of this rule is that, even if no reasonable juror

could find that facts on which a lesser included offense instruction would be premised,

the fact that “[a]ll decisions as to what evidence the jury must believe and what

inferences the jury must draw are left to the jury” means that a lesser included offense

instruction must be given in every case if requested.

       The principal opinion is unable to cite any direct authority for this, as no case has

ever so held, and for good reason. Its logic confuses questions of law with questions of

fact. The jury’s right to find facts cannot shape the trial court’s declaration of law.

Indeed, it is fundamental to our criminal law system that 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).

       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


                                               4
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.

       By mandating 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

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”).

       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

element which is not required for a conviction of the lesser-included offense.” Sansone v.


                                              5
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 infra, Section I(D).

       Nonetheless, without a supporting citation, the principal opinion states that a trial

court’s refusal to instruct down where a party has so requested amounts to impermissibly

directing a verdict against the defendant. From this, the principal opinion concludes that,

by refusing to instruct down, a trial court violates the defendant’s right to have his guilt

determined by a jury. It does so even though the United States Supreme Court expressly

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 directly have 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).

       The principal opinion’s mistake results from its misunderstanding of the import of

the admonition in Williams, State v. Pond, 131 S.W.3d 792 (Mo. banc 2004), and other

cases that the jury can believe or disbelieve any and all evidence. Of course it can. But,

just as it is the jury’s role to decide what it believes, it is still the judge’s duty to decide

what instructions to give based on which instructions are supported by the evidence. In

so determining, there need not be affirmative evidence to support a proposition necessary

to acquit of the greater and convict of the lesser offenses. Neither, however, must a court

submit issues untied to the evidence in the case or based on the jury’s admitted ability to


                                               6
engage in “jury nullification” – that is, to acquit arbitrarily. The admonition that “[t]he

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” is part of the test that the trial court must consider when assessing the reasonable

inferences the evidence supports. See, e.g., State v. Hineman, 14 S.W.3d 924, 927-28

(Mo. banc 1999) (invoking this rule when evaluating reasonable inferences from the

evidence). It permits the court to make a more nuanced assessment of what a reasonable

juror could or could not infer by recognizing that “[a] jury may accept part of a witness’s

testimony, but disbelieve other parts.” Williams, 313 S.W.3d at 660, quoting Pond, 131

S.W.3d at 794. This allows a court to instruct down in situations such as when the state’s

witness testifies to one set of facts that supports conviction of the charged offense and the

defense’s witness testifies to a different set of facts that supports acquittal of the charged

offense. But the judge still must determine what offenses the evidence supports, for, 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).

       In Pond, for example, this Court reversed the trial court’s refusal to instruct on the

lesser offense of child molestation where the defendant was charged with statutory

sodomy. 131 S.W.3d at 793. At trial, the victim testified that the defendant penetrated

her, but on cross-examination, her testimony indicated the defendant inappropriately


                                              7
touched her but did not penetrate her. Id. at 794. This Court concluded that the trial

court should have submitted the lesser offense because “the jury could have found

touching, and not penetration.      The jury could have believed part of the victim’s

testimony, that defendant touched her, and disbelieved that defendant penetrated her.” Id.

(internal quotation omitted). Because the Court could account for the jury’s ability to

believe part of the victim’s testimony on direct examination as well as her testimony on

cross, it was able to reach this holding and instruct that the trial court should have

submitted the lesser included offense.

       It is its confusion of the roles of the court and the jury that leads the principal

opinion to reach its unprecedented holding in the face of authority from the United States

Supreme Court and nearly every state court. Because the language that the jury always

can believe or disbelieve any and all evidence pertains to the trial court’s evaluation of

whether evidence supports instructing down, not the jury’s right to find facts, it does not

invoke the rule the principal opinion cites that “evidence never proves or disproves any

element until the jury says so.” Accordingly, a trial court’s authority to refuse to instruct

down does not impinge on the defendant’s right to trial by jury.2 This unsupported leap


2
 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
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

                                             8
is not the principal opinion’s lone misstep, however, as the principal opinion’s holding

also defies Missouri’s statutory and common law.

       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). It 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 correctly states that these statutes mean that a trial court is

obligated to instruct down when the following requirements are met:

       a.     a party timely requests the instruction;

       b.     there is a basis in the evidence for acquitting the defendant of the charged
              offense; and

       c.     there is a basis in the evidence for convicting the defendant of the lesser
              included offense for which the instruction is requested.


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.

                                             9
       The principal opinion then goes on to conclude that because the jury can believe

any and all evidence, there is always a basis in the evidence, so these requirements

always are satisfied if a timely request is made.          This interpretation guts sections

556.046.2 and 556.046.3 of their express requirements that a trial court is obligated to

instruct down only in limited circumstances. The principal opinion’s 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.

See, e.g., Williams, 313 S.W.3d at 660 (holding that “the evidence provided a basis for the

jury to acquit [the defendant] of robbery in the second degree and convict him of felony

stealing.”). 3 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 precisely what the principal opinion has done

in interpreting the statutory requirement as always being satisfied when the statute

expressly states that it is satisfied only under certain conditions.




3
  See also, e.g., Pond, 132 S.W.3d at 794 (“In order for there to be a basis for an acquittal
of the greater offense, there must be some evidence that an essential element of the
greater offense is lacking and the element that is lacking must be the basis for acquittal of
the greater offense and the conviction of the lesser.”); State v. Santillan, 948 S.W.2d 574,
576 (Mo. banc 1997) (“If a reasonable juror could draw inferences from the evidence
presented that the defendant did not deliberate, the trial court should instruct down.”).



                                              10
       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).

       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. And, as

discussed above in subsection A, the rule that a jury may believe or disbelieve any and all

evidence does not mean there is always a basis in the evidence to support the trial court’s

determination that the jury reasonably could acquit the defendant of the charged offense

and convict him of the lesser offense.

       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


                                            11
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

accused was guilty of no crime at all” because another committed the act). 4 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.



4
 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).

                                             12
       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

evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. 605, 611 (1982)

(emphasis original).

       By their terms, therefore, sections 556.046.2 and 556.046.3 provide that a trial

court need not instruct down unless there is a basis in the evidence.

       C.     Prior Missouri Cases Require a Trial Court to Instruct Down Only When
              There Is a Basis in the Evidence to Do So

       The principal opinion justifies its holding by stating it is required by prior case

law. The principal opinion claims that it is merely reaffirming the holdings of cases like

Williams and Pond. Williams, the primary authority on which the principal opinion

relies, is the latest in the line of this Court’s lesser included offense instruction cases.

And, like its predecessors, Williams does not state that a court must instruct down



                                            13
whenever so requested. To the contrary, it reaffirms the well-established rule that a

party’s entitlement to a lesser included offense instruction under section 556.046.2 is

determined by whether “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 at 660 (emphasis added).        Had Williams adopted the rule espoused by the

principal opinion that a party always is entitled to a lesser included offense instruction, it

would not have gone on to analyze the evidence and base its holding on its conclusion

that “the evidence provided a basis for the jury to acquit [the defendant] of robbery in the

second degree and convict him of felony stealing.” Nowhere does Williams hold that a

court always must instruct down if a party so requests. That just is not Missouri law.

       Rather, this Court long has held that, when determining “whether there is a basis

to acquit of the offense charged and convict of the included offense, the trial court looks

at the evidence.” State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999). And, “for there to

be a basis for an acquittal of the greater offense, there must be some evidence that an

essential element of the greater offense is lacking and the element that is lacking must be

the basis for acquittal of the greater offense and the conviction of the lesser.” Pond, 131

S.W.3d at 794 (emphasis added). In other words, the differential element must be in

dispute for a trial court to be obligated to instruct down. See id.; see also Sansone, 380

U.S. at 349-50.

       The principal opinion also erroneously asserts that Williams “wisely rejected” an

approach taken by prior opinions “that purport to decide what instructions to give based

on what the court thinks a reasonable jury can and cannot refuse to believe.” (Slip op. at


                                             14
15 n.9). To repeat, Williams states: “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.” 313 S.W.3d at 660. The inaccuracy of

the principal opinion’s characterization of Williams is self-evident. Just as Williams does

not hold that a party always is entitled to an instruction down if it requests one, neither

does it abandon the reasonable juror standard for determining when an instruction down

is – and is not – warranted.

       In fact, the reasonable juror standard is a cornerstone of this Court’s lesser

included offense instruction law. See, e.g., Pond, 131 S.W.3d at 794 (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”); Derenzy, 89 S.W.3d at 474 (“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”); Hineman, 14 S.W.3d at 927 (same), Hibler, 5 S.W.3d at

148 (“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);

Santillan, 948 S.W.2d at 576 (“If a reasonable juror could draw inferences from the

evidence presented that an essential element of the greater offense has not been


                                            15
established, the trial court should instruct down”); Mease, 842 S.W.2d 98, 112 (approving

the trial court’s refusal to instruct down in first-degree murder case when “the only

reasonable conclusion” was that the defendant deliberately murdered the victim).

       Despite its suggestions to the contrary, the principal opinions in this case and in

State v. Pierce are the first to question the use of the reasonable juror standard. Each of

the cases listed above 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


                                            16
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

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

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

       D.     Other Courts and Authorities Also Require a Basis in the Evidence from
              Which a Rational Juror Could Acquit the Defendant of the Charged
              Offense and Convict Him of the Lesser Offense

       Review of federal and state law across the United States shows that the principal

opinion’s analysis deviates from the law applied by the United States Supreme Court,

federal courts, and nearly every state court. Missouri’s statutory requirement under

sections 556.046.2 and 556.046.3 of a basis for a verdict acquitting the defendant of the

greater offense and convicting him of the lesser is consistent with that taken by the

United States Supreme Court, the vast majority of other states, and the Model Penal

Code. As discussed in subsection A above, the United States Supreme Court holds that:

“[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.” Keeble, 412 U.S. at 208. This means that a trial court must determine, as a

threshold matter, whether there is a factual dispute as to the presence of the fact that

distinguishes the greater and lesser offenses. As the Supreme Court stated in Sansone,

380 U.S. at 349-50, “[a] lesser included offense instruction is only proper where the

charged greater offense requires the jury to find a disputed factual element which is not

required for a conviction of the lesser-included offense.” This is a logical corollary –

indeed, it is the heart – of the requirement that there be a basis in the evidence to acquit


                                              17
the defendant of the greater offense and convict him of the lesser. If there is no dispute

as to the fact that differentiates the greater or lesser offenses, then a lesser included

offense instruction should not be given because the factual issues to be resolved would be

the same for both crimes, so there would be no additional issue for the jury’s

consideration that would require a separate instruction. Id.; Berra v. United States, 351

U.S. 131, 134-35, (1956), superseded by statute on other grounds as recognized by

Sansone, 360 U.S. at 348-49. 5

       Turning to the law of our sister states, as the Supreme Court noted in Beck v.

Alabama, 447 U.S. 625, 636 n.12 (1980), most state courts also “agree that [a lesser

included offense] must be given when supported by the evidence.” Courts may vary as to

whether that basis must consist of affirmative evidence or whether, as in Missouri, mere

inference or impeachment of credibility is sufficient to raise a factual issue. But, if the

evidence does not raise a question as to the existence of the determinative fact, then,

these cases say, there is no basis in the evidence for a rational juror to acquit of the

greater and convict of the lesser.

       Numerous states, like Wisconsin, follow the same approach Missouri traditionally

has and do not require affirmative evidence to support an instruction down. For instance,

the Wisconsin Supreme Court held in State v. Sarabia, 348 N.W.2d 527, 531 (Wis. 1984),

5
  State high courts also have imposed this requirement. See, e.g., State v. Jones, 961 A.2d
322, 332 (Conn. 2008) (“A defendant is entitled to an instruction on a lesser offense if …
the following conditions are met … (4) the proof on the elements or elements which
differentiate the lesser offense from the offense charged is sufficiently in dispute to
permit the jury consistently to find the defendant not guilty of the greater offence but
guilty of the lesser.” (additional quotation omitted); People v. Cornell, 646 N.W.2d 127,
139 (Mich. 2002) (to same effect).

                                            18
that there need not be affirmative evidence for a court to be required to instruct down. It

is enough, it explained, that there is “some evidence of a lesser offense even though this

depends on an inference of a state of facts that is ascertained by believing defendant as to

part of his testimony and prosecution witnesses on the other points in dispute.” Id.,

quoting Belton v. United States, 382 F.2d 150, 155 (D.C. Cir. 1967). Still, Wisconsin

requires some basis in the evidence from which a rational juror could acquit of the greater

offense and convict of the lesser. Id. The same is true in other states that follow

Missouri’s approach. 6

       Of course, states requiring affirmative evidence also require a basis in the

evidence to support submission of a lesser included offense instruction. See, e.g., State v.

Fernandez-Medina, 6 P.3d 1150, 1154 (Wash. 2000). 7 Indeed, so far as research has

shown, all jurisdictions except Iowa and Florida, which are discussed below, require

some support in the evidence for a court to be obligated to instruct down. 8


6
  See, e.g., Commonwealth v. Porro, 939 N.E.2d 1157, 1167 (Mass. 2010) (“Where there
is no evidence to justify a lesser included instruction … we have concluded that it is
reversible error to allow the jury to convict the defendant of the lesser charge.”); State v.
Keller, 695 N.W.2d 703, 716 (N.D. 2005); People v. Van Norstrand, 647 N.E.2d 1275,
1278 (N.Y. 1995) (“Our inquiry is … whether, under any reasonable view of the
evidence, it is possible for the trier of facts to acquit defendant on the higher count and
still find him guilty of the lesser one.”); Perry v. Commonwealth, 839 S.W.2d 268, 273
(Ky. 1992).
7
  See also State v. Wall, 126 P.3d 148, 151 (Ariz. 2006); State v. Tomlin, 835 A.2d 12, 27
(Conn. 2003); State v. Dahlin, 695 N.W.2d 588, 595-97 (Minn. 2006); State v. Brent, 644
A.2d 593, 118 (N.J. 1994); State v. Tamburano, 271 N.W.2d 472, 475 (Neb. 1978);
Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
8
  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”); Wall, 126 P.3d at 151 (Arizona); Atkinson v. State, 64
S.W.3d 259, 268 (Ark. 2002); People v. Hughes, 27 Cal.4th 287, 366 (Cal. 2002);

                                             19
       Likewise, the Model Penal Code requires more than the mere fact that one offense

is included nominally in another to warrant instructing down. It looks to the evidence,

not to theory, to determine when to instruct down, stating: “The Court shall not be

obligated to charge the jury with respect to an included offense unless there is a rational

basis for a verdict acquitting the defendant of the offense charged and convicting him of

the included offense.” M.P.C. § 1.07(5). And our cases have held that the Model Penal

Code’s intent accords with the language of section 556.046. Hibler, 5 S.W.3d at 150

(“The key language of Missouri’s section 556.046 tracks section 1.07(4)-(5) of the Model

Penal Code”).

       The only two states that go to the extreme advocated by the principal opinion are

Iowa and Florida. Iowa appears to be the lone state that requires the submission of a

lesser included offense instruction in all circumstances without considering whether there

is a basis in the evidence for acquitting of the greater offense but convicting of the lesser

offense.

       Iowa adopted this automatic instruction rule in State v. Jeffries, 430 N.W.2d 728,

737 (Iowa 1988), based on its belief that, if the evidence is sufficient to convict on the

charged offense, then it is necessarily sufficient to convict on any lesser included

Tomlin, 835 A.2d at 27 (Connecticut); State v. Hupp, 809 P.2d 1207, 1212 (Kan. 1991);
Perry, 839 S.W.2d at 273 (Kentucky); Porro, 939 N.E.2d at 1167 (Massachusetts);
Cornell, 646 N.W.2d at 130 (Michigan); Dahlin, 695 N.W.2d at 597 (Minnesota); Brent,
644 A.2d at 118 (New Jersey); Van Norstrand, 647 N.E.2d at 1278 (New York);
Tamburano, 271 N.W.2d at 475 (Nebraska); 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); Keller, 695 N.W.2d at 711 (North Dakota); State v. Wilkins, 415
N.E.2d 303, 308 (Ohio 1980); State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999); Bignall,
887 S.W.2d at 24 (Texas); Sarabia, 348 N.W.2d at 531 (Wisconsin).

                                             20
offense. 9    In support, Iowa cited decisions in Arkansas, Connecticut, Louisiana and

Michigan. Id. at 733. Notably, each of these jurisdictions since has abandoned its

automatic submission rule and now limits instruction on lesser included offenses to cases

in which the evidence provides a basis for acquitting of the greater offense and convicting

of the lesser. Atkinson, 64 S.W.3d at 268; Tomlin, 835 A.2d at 27; Cornell, 646 N.W.2d

at 130; State v. Johnson, 823 So.2d 917, 923 (La. 2002); LA. CODE CR. PRO. art.

814(A),(C).

         Iowa’s approach is inconsistent with the requirement of the many cases discussed

above (and formerly of Missouri) that the court must determine that a basis in the

evidence exists to acquit of the greater offense but convict of the lesser. For this reason,

states refer to an approach like Iowa’s only to expressly reject it. See, e.g., Sarabia, 348

N.W.2d at 531; Wilkins, 415 N.E.2d at 307.             In Wilkins, the Ohio Supreme Court

describes the negative consequences of automatically requiring a court to instruct on a

lesser included offense:

                [J]uries [are] not to be presented with compromise offenses which
         could not possibly be sustained by the adduced facts. Such unreasonable
         compromises are detrimental to both the state and the defendant. These
         compromises allow juries to lessen punishment at their unlimited
         discretion, even when they find the defendant guilty of the greater offense
         beyond a reasonable doubt. Further, they can allow juries to convict a
         defendant of a crime of which he is not guilty beyond a reasonable doubt
         with a clearer conscience than if only the greater offense were charged.

9
    Currently, Iowa Rule of Criminal Procedure 2.6 reflects this rule, stating:
         In cases where the public offense charged may include some lesser offense
         it is the duty of the trial court to instruct the jury, not only as to the public
         offense charged but as to all lesser offenses of which the accused might be
         found guilty under the indictment and upon the evidence adduced, even
         though such instructions have not been requested.

                                                21
Wilkins, 415 N.E.2d at 307.

       Even the United States Supreme Court implicitly has rejected a rule that

automatically requires a trial court to instruct down, stating in Sansone that a lesser

included offense instruction “is only proper where the charged greater offense requires

the jury to find a disputed factual element which is not required for conviction of the

lesser-included offense.” 380 U.S. at 349-50 (emphasis added). This is because an

approach allowing submission without evidence is inconsistent with the United States

Supreme Court’s rule, discussed earlier, requiring a basis in the evidence for a lesser

included instruction to be warranted and precludes instruction in cases where no evidence

supports it. See Keeble, 412 U.S. at 208.

       Florida also automatically requires submission of lesser included offense

instructions for certain offenses. Its rule is based on Florida Rule of Criminal Procedure

3.510(b), which requires a trial court always to instruct down on a lesser offense that is a

“necessarily included offense,” that is, an offense that always is included in the greater

offense. State v. Wimberly, 498 So.2d 929, 932 (Fla. 1986). Instruction on other lesser

offenses that may be, but are not necessarily, included in the greater offense, such as

attempts and crimes divided into degrees, must be supported by evidence, however. Id.

at 931-32. Accordingly, Florida’s rule is based on specific Florida law and only requires

automatic submission for certain lesser included offenses.

       As is evident, this Court’s traditional requirement that there be a basis in the

evidence from which a rational juror could acquit on the greater offense and convict on



                                            22
the lesser is consistent with the law of the United States Supreme Court and nearly every

other state court.

II.    APPLICATION OF THIS STANDARD TO MR. JACKSON

       Applying Missouri’s traditional lesser included offense law to Mr. Jackson, the

first-degree robbery statute required the State to prove that Mr. Jackson robbed the victim

while displaying or threatening the use of what appeared to be a deadly weapon.10 If the

jury did not believe that Mr. Jackson used what appeared to be a weapon, then it would

find him guilty only of the lesser included offense of second-degree robbery.

       The State presented more than enough evidence to convict on first-degree robbery.

The victim testified that Mr. Jackson was the culprit, that he put something to her back

and forced her to take money from the cash register and give it to him, that she looked

and saw it was a gun with a silver barrel, and that she knew it was a revolver. There was

a video showing the robber putting his hand containing what appeared to be a dark object

against the victim’s back and forcing her to give him money from the register, and the

detective who testified said it was a gun.

       But, to be entitled to a lesser included offense, Mr. Jackson only had to raise some

question as to whether the object appeared to be a weapon, through affirmative evidence,

impeachment, challenges to the State’s evidence, or otherwise creating doubt, directly or




10
  § 569.020.1 (“A person commits the crime of robbery in the first degree when he
forcibly steals property and in the course thereof he, or another participant in the crime …
(4) Displays or threatens the use of what appears to be a deadly weapon or dangerous
instrument.”) (emphasis added).

                                             23
by inference. All inferences from the evidence will be resolved in favor of giving the

instruction.

       The standard for requiring a lesser included offense instruction was met here. On

cross-examination, the detective agreed that it was “possible” that the object shown being

pressed against the victim’s back could have appeared to be a gun but was really a cell

phone. He also said it was dark, and the video showed a dark object being held by the

robber, which is inconsistent with the victim’s description. Of course, the greater offense

required proof only that defendant appeared to have a gun. But two customers also

testified that while they saw the victim and defendant standing together at the cash

register, they did not see a gun and did not realize it was a robbery, and no gun was found

at defendant’s home when it was searched. Finally, due to a malfunction in the recording

equipment, the last part of the victim’s direct examination and her entire cross-

examination were not recorded.       It is impossible, therefore, to know whether the

questions not recorded would have affected the credibility of the victim’s testimony as to

whether she saw what appeared to be a gun. And, in closing argument, defense counsel

argued that the victim was mistaken and that the inconsistencies in the testimony of the

various witnesses did not support a finding of armed robbery.

       I agree with the principal opinion that the trial court should have instructed the

jury on the lesser included offense of second-degree robbery. There was a basis in the

evidence from which a reasonable juror could find that Mr. Jackson committed the

robbery but did not have a gun or what appeared to be a gun. Accordingly, a reasonable




                                            24
juror could acquit Mr. Jackson of the greater offense and convict him of the lesser

offense.

      For these reasons, I agree with the principal opinion that the conviction should be

reversed and the case remanded for a new trial but apply a different standard – the one

always applied by Missouri until today – in so determining.



                                                _________________________________
                                                  LAURA DENVIR STITH, JUDGE




                                           25
           SUPREME COURT OF MISSOURI
                                      en banc

STATE OF MISSOURI,                           )
                                             )
                     Respondent,             )
                                             )
v.                                           )    No. SC93108
                                             )
DENFORD JACKSON,                             )
                                             )
                     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 robbery

in the second degree. All of the evidence at trial suggested that Denford Jackson

(hereinafter, “Jackson”) carried and used a gun when he committed the robbery. There

was no evidence supporting the instruction for second degree robbery. 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 asserts that this Court found lesser included instructions

were required to be given in State v. Pond, 131 S.W.3d 792 (Mo. banc 2004) and State

v. Williams, 313 S.W.3d 656 (Mo. banc 2010). The principal opinion further directs

that, henceforth, it is mandatory to give a lesser included instruction solely because a

jury may choose not to believe the State’s evidence. I disagree and find the principal

opinion’s rationale to be wanting.

         In both Pond and Williams, there was evidence to support the lesser included

instruction. In Pond, the defendant was charged with statutory sodomy in the first

degree. Pond, 131 S.W.3d at 793. The victim testified at trial that the defendant

“press[ed] in [her] private area between [her] legs with his fingers…” and that the

defendant put his fingers “in [her] body and it hurt.” Id. at 794. Yet, on cross-

examination, the victim admitted that the first time she mentioned penetration was at

trial; previously, she reported to her mother, cousin, and a police officer that the

defendant had only touched her. Id.

         This Court properly stated that a “defendant is entitled to an instruction on any

theory the evidence establishes.” Id. (citing State v. Hibler, 5 S.W.3d 147, 150 (Mo.

banc 1999). Additionally, it is within the province of the jury to determine the

credibility of the witnesses, resolve conflicting testimony, and weigh the evidence. Id.

1
    All statutory references are to RSMo Supp. 2002 unless otherwise indicated.

                                             2
“A jury may accept part of a witness’s testimony, but disbelieve other parts. If the

evidence supports differing conclusions, the judge must instruct on each.” Id. (internal

citations omitted).

       There was conflicting testimony regarding the defendant’s actions in Pond.

Hence, there was a basis in the evidence from which the jury reasonably could decide

the defendant touched the victim rather than penetrated her. Id. The defendant was

entitled to the lesser included instruction. Id. at 795.

       Similarly, in Williams, the defendant was charged with robbery in the second

degree 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.

       Again, this Court instructed that a “defendant is entitled to an instruction on any

theory the evidence establishes.” Id. at 659 (quoting Pond, 131 S.W.3d at 794). This

Court reiterated the fact that a jury may believe or disbelieve any of the evidence

presented at trial. Id. at 660.

       The evidence in Williams provided a basis for the jury to acquit him “of robbery

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

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

The defendant was entitled to the lesser included instruction. Id.

       In this case, the principal opinion overlooks the basic evidence presented at

trial. The only evidence presented was that Jackson had a gun. The witnesses and


                                             3
victim testified they saw a gun. The police officer stated there was a gun. There was

no contradictory evidence regarding the presence of a gun during the robbery.

Moreover, there was no evidence that Jackson committed the robbery by any other

method than the use of a dangerous instrument or deadly weapon. The only scintilla of

information heard by the jury that could be latched onto and construed thereby that

Jackson did not have a gun was a question by Jackson’s attorney, which is not

evidence.

       Jackson is entitled to a lesser included instruction “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.     The jury is free to disbelieve all of the evidence

presented by the State, which would acquit Jackson of the first-degree robbery.

However, there was no basis in the evidence to support the instruction for the lesser

included offense.

       There was no conflicting testimony nor any contradictory evidence from which

a jury could find Jackson guilty of robbery in the second degree. Moreover, there was

no evidence that Jackson committed the robbery by any other method than the use of a

dangerous instrument or deadly weapon. Further, the police detective who viewed the

video surveillance and enlarged frames from the video stated that he saw a gun. The

State was required only to prove that Jackson possessed what appeared to be a deadly

weapon or dangerous instrument. Section 569.020, RSMo 2000 (emphasis ours).




                                             4
       “When there is no evidence indicating that the robbery was committed by some

means other than the use of a deadly weapon or dangerous instrument, a lesser-

included instruction is not required.” State v. Hand, 305 S.W.3d 476, 481 (Mo. App.

S.D. 2010); see also State v. Eoff, 193 S.W.3d 366, 373-74 (Mo. App. S.D. 2006) and

State v. Williams, 857 S.W.2d 530, 532-33 (Mo. App. S.D. 1993). Should the jury not

believe the State’s evidence, it should be able to return a verdict of not guilty. Hence,

the trial court did not err in refusing to submit the lesser included instruction requested

by Jackson because there was no basis in the evidence to do so. 2             See section

556.046.3.

       Further, by instructing 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 the statute. 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.

       Section 556.046.3 provides that, for a lesser included instruction to be given,

there must be a basis in the evidence to do so. In Pond and Williams, there was a basis

in the evidence to provide the defendants with the lesser included offense instructions

because there was conflicting testimony. In this case, all of the testimony indicated


2
  Since there was no evidence to support giving the lesser included instruction, there
was no prejudice to Jackson in refusing to submit the instruction.

                                            5
Jackson used a gun during the robbery; there was no conflicting evidence. This Court

in essence adopts a mandatory rule requiring the giving of lesser included offense

instructions in every criminal case no matter what the evidence at trial demonstrated,

thus, ignoring the plain language of the statute.

       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




                                            6
