State v. Williams

• Decision Date: 29 June 2010
• Docket Number: No. SC 90501.,SC 90501.
• Parties: STATE of Missouri, Respondent, v. Robert Earl WILLIAMS, Appellant.
• Court: Missouri Supreme Court

313 S.W.3d 656

STATE of Missouri, Respondent, v. Robert Earl WILLIAMS, Appellant.

No. SC 90501.

Supreme Court of Missouri, En Banc.

May 25, 2010.

Rehearing Denied June 29, 2010.

Gwenda Renee Robinson, Public Defender's Office, St. Louis, for Appellant.

Mary H. Moore, Atty. General's Office, for Respondent.

ZEL M. FISCHER, Judge.

Timothy Wagner was robbed. Robert Williams was charged with robbery in the second degree by acting with another. At trial, Williams testified in his own defense, denying the charge. At the instruction conference, he requested the jury be instructed on the lesser included offense of felony stealing. The trial court refused Williams' request and only instructed the jury on robbery in the second degree. The jury found Wagner guilty of robbery. The trial court erred in refusing to instruct the jury as Williams requested. The judgment is reversed, and the case is remanded.¹

Facts

On January 5, 2007, the State of Missouri filed an indictment against Robert Williams, charging him with the class B felony of robbery in the second degree for his conduct on October 17, 2006, acting with another, by forcibly stealing money from Timothy Wagner.

A trial was held on July 16 and 17, 2008. At trial, Williams testified that his friend, nicknamed Sweets, had taken marijuana from Wagner at Wagner's apartment during a drug transaction that Wagner had arranged. Williams testified he watched Sweets enter Wagner's apartment and saw Wagner place something on a scale and hands go down on the table. He testified that he did not see Sweets forcibly take marijuana or money from Wagner. Williams testified that he had not personally taken or forcibly taken the marijuana, money or anything from Wagner.²

After Williams rested his case, the trial court held a jury instruction conference outside the presence of the jury. By written request, Williams submitted Instruction A, regarding felony stealing, a lesser included offense to second degree robbery. The proffered instruction stated:

A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it.

If you do not find the defendant guilty of robbery in the second degree as submitted in Instruction No. 5, you must consider whether he is guilty of stealing under this instruction.

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about October 17, 2006, in the State of Missouri, the defendant or another took money, which was property owned by Timothy Wagner, and

Second, that defendant or another did so for the purpose of withholding it from the owner permanently, and

Third, that the property was physically taken from the person of Timothy Wagner, then you are instructed that the offense of stealing has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:

Fourth, that with the purpose of promoting or further the commission of that stealing, the defendant acted together with or aided another person in committing the offense, then you will find the defendant guilty of stealing under this instruction.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

The State submitted a verdict directing jury instruction for the offense of robbery in the second degree.³ The trial court submitted the State's proffered instruction but denied the proffered lesser included offense. The jury found Williams guilty of robbery in the second degree. On September 25, 2008, Williams was sentenced as a persistent felony offender to 15 years imprisonment.

Standard of Review

"At the close of the evidence, or at such earlier time as the court may direct, counsel shall submit to the court instructions and verdict forms that the party requests be given." Rule 28.02(b). Further, "the giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes On Use shall constitute error, the error's prejudicial effect to be judicially determined, provided that objection has been timely made pursuant to Rule 28.03." Rule 28.02(f).

Analysis

Stealing from a person is a lesser included offense of robbery in the second degree. See Patterson v. State, 110 S.W.3d 896, 901 (Mo.App.2003); State v. Ide, 933 S.W.2d 849, 851 (Mo.App.1996). Under § 556.046.1, RSMo Supp.2008:

A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when: (1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged. . . .

Williams was charged with robbery in the second degree, which requires the State to prove beyond a reasonable doubt that the defendant forcibly stole property.⁴ To support a conviction of stealing, the State does not have to prove the element of force; the State must prove beyond a reasonable doubt that the defendant "appropriated property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion." Section 570.030.1, RSMo Supp.2008.

MAI-CR 3d 304.11.G. provides as follows:

Instructions on lesser included offenses and lesser degree offenses require a written request by one of the parties. Section 565.025.3, RSMo Supp.2004. Moreover, such an instruction will not be given unless there is a basis for acquitting the defendant of the higher offense and convicting him of the lesser offense. Section 556.046, RSMo Supp.2004 (citation omitted). A defendant is entitled to an instruction on any theory the evidence establishes. 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.

"A defendant is entitled to an instruction on any theory the evidence establishes." State v. Pond, 131 S.W.3d 792, 794 (Mo. banc 2004). "Section 556.046.2. . . requires only that there be a basis for the jury to acquit on the higher offense in order for the court to submit an instruction for the lesser included offense." State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997) (emphasis added).⁵ "If the evidence supports differing conclusions, the judge must instruct on each." Pond, 131 S.W.3d at 794.

Moreover, "this Court leaves to the jury determining the credibility of witnesses, resolving conflicts in testimony, and weighing evidence." Id. "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. Derenzy, 89 S.W.3d 472, 474 (Mo. banc 2002) (citing State v. Hineman, 14 S.W.3d 924, 927 (Mo. banc 1999)). "The 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." Hineman, 14 S.W.3d at 927; see also Pond, 131 S.W.3d at 794 ("A jury may accept part of a witness's testimony, but disbelieve other parts."). "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.

In this case, the evidence provided a basis for the jury to acquit Williams of robbery in the second degree and convict him of felony stealing. The jurors could have believed Williams was complicit in the taking of money from Wagner, believed Wagner's testimony that no gun or knife was used, and disbelieved Wagner's testimony about the use of physical force. Therefore, the trial court erred in not submitting the stealing instruction to the jury.

The State argues that there was no reasonable basis in the evidence for acquitting Williams of robbery in the second degree and convicting him of stealing because Williams denied the commission of the charged offense and there was no basis in the State's evidence or the conflicting version of the crime offered by Williams to support instructing down. The State contends there was no such basis because the jury would have been required to "disbelieve some of the evidence of the state, or decline to draw some or all of the permissible inferences." This, the State claims, "does not entitle the defendant to an instruction otherwise unsupported by the evidence."

The State mistakenly relies on State v. Warrington, 884 S.W.2d 711, 717 (Mo.App. 1994); State v. Arbuckle, 816 S.W.2d 932, 935 (Mo.App.1991); and State v. Pruett, 805 S.W.2d 724, 725-26 (Mo.App.1991), to support its argument that a defendant is not entitled to a lesser included offense instruction merely...