State v. Jackson, No. SC93108.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPAUL C. WILSON
Citation433 S.W.3d 390
PartiesSTATE of Missouri, Respondent, v. Denford JACKSON, Appellant.
Docket NumberNo. SC93108.
Decision Date24 June 2014

433 S.W.3d 390

STATE of Missouri, Respondent,
v.
Denford JACKSON, Appellant.

No. SC93108.

Supreme Court of Missouri,
En Banc.

June 24, 2014.


[433 S.W.3d 392]


Andrew E. Zleit, Public Defender's Office, St. Louis, for Appellant.

Shaun J. Mackelprang, Mary H. Moore, Attorney General's Office, Jefferson City, for Respondent.


PAUL C. WILSON, Judge.

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

[433 S.W.3d 393]

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 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 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

[433 S.W.3d 394]

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:

[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

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

[433 S.W.3d 395]

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. SeeMo. Const. art. V, § 10. Jackson's judgment of conviction on both counts is vacated, and the case is remanded.

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47 practice notes
  • State v. Pierce, No. SC 93321.
    • United States
    • United States State Supreme Court of Missouri
    • June 24, 2014
    ...Erred in Not Giving Pierce's Requested Instruction on the “Nested” Lesser Offense of Possession In the companion case, State v. Jackson, 433 S.W.3d 390, 2014 WL 2861550 (Mo. banc 2014) (No. SC93108), the Court holds: The question presented in this case is whether the trial court can refuse ......
  • Sprofera v. State, WD 82443
    • United States
    • Court of Appeal of Missouri (US)
    • October 27, 2020
    ...the law as it existed at the time of his trial in August 2012, prior to the Missouri Supreme Court's decisions in State v. Jackson , 433 S.W.3d 390 (Mo. 2014), and State v. Pierce , 433 S.W.3d 424 (Mo. 2014). Application of Jackson and Pierce might well alter the analysis as to whether Spro......
  • Cox v. Kan. City Chiefs Football Club, Inc., No. SC 94462
    • United States
    • United States State Supreme Court of Missouri
    • September 22, 2015
    ...State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011). The jurors are free to disbelieve a witness's testimony. See State v. Jackson, 433 S.W.3d 390, 403 (Mo. banc 2014).473 S.W.3d 127C. Exclusion of Any Testimony by Chiefs Chairman and CEO Clark Hunt Mr. Cox sought to depose Chiefs Chairman......
  • State v. Joseph, No. ED 103554
    • United States
    • Court of Appeal of Missouri (US)
    • December 6, 2016
    ...We review a trial court's decision to give a requested jury instruction de novo under § 556.046 RSMo Supp. 2001. State v. Jackson , 433 S.W.3d 390, 395 (Mo. banc 2014). "It is within the trial court's discretion to decide whether a tendered jury instruction should be submitted. However......
  • Request a trial to view additional results
47 cases
  • State v. Pierce, No. SC 93321.
    • United States
    • United States State Supreme Court of Missouri
    • June 24, 2014
    ...Erred in Not Giving Pierce's Requested Instruction on the “Nested” Lesser Offense of Possession In the companion case, State v. Jackson, 433 S.W.3d 390, 2014 WL 2861550 (Mo. banc 2014) (No. SC93108), the Court holds: The question presented in this case is whether the trial court can refuse ......
  • Sprofera v. State, WD 82443
    • United States
    • Court of Appeal of Missouri (US)
    • October 27, 2020
    ...the law as it existed at the time of his trial in August 2012, prior to the Missouri Supreme Court's decisions in State v. Jackson , 433 S.W.3d 390 (Mo. 2014), and State v. Pierce , 433 S.W.3d 424 (Mo. 2014). Application of Jackson and Pierce might well alter the analysis as to whether Spro......
  • Cox v. Kan. City Chiefs Football Club, Inc., No. SC 94462
    • United States
    • United States State Supreme Court of Missouri
    • September 22, 2015
    ...State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011). The jurors are free to disbelieve a witness's testimony. See State v. Jackson, 433 S.W.3d 390, 403 (Mo. banc 2014).473 S.W.3d 127C. Exclusion of Any Testimony by Chiefs Chairman and CEO Clark Hunt Mr. Cox sought to depose Chiefs Chairman......
  • State v. Joseph, No. ED 103554
    • United States
    • Court of Appeal of Missouri (US)
    • December 6, 2016
    ...We review a trial court's decision to give a requested jury instruction de novo under § 556.046 RSMo Supp. 2001. State v. Jackson , 433 S.W.3d 390, 395 (Mo. banc 2014). "It is within the trial court's discretion to decide whether a tendered jury instruction should be submitted. However......
  • Request a trial to view additional results

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