State v. Branyon

939 S.W.2d 921, 1996 Mo. App. LEXIS 1900, 1996 WL 666222

• Court: Missouri Court of Appeals
• Decided: November 19, 1996
• Docket: Nos. 67432, 68810
• Status: Published

Opinions

GRIMM, Judge.

The State charged defendant with first degree robbeiy and armed criminal action. A jury found him guilty of the lesser included Class C felony offense of stealing from the person in violation of § 570.030.¹ The trial court found him to be a persistent offender pursuant to § 558.016 and sentenced him to thirteen years.

On appeal, he raises one point. He contends the trial court erred in refusing to instruct on misdemeanor stealing. We disagree. A misdemeanor stealing instruction was not required because there was no basis for convicting defendant of misdemeanor stealing.

Defendant also appealed the denial of his Rule 29.15 motion. That appeal is deemed abandoned because defendant did not brief or argue any issues concerning it. We affirm.

I. State’s Evidence

On February 2, 1994, victim walked through a park. As victim started across a foot bridge, he saw defendant sitting on a bench. Defendant asked if he could buy some drugs from victim. Victim said he did not have any.

Defendant got up from the bench. He had a “long, silver wrench” in his hand. Defendant asked victim for money and victim refused. Defendant hit victim with the wrench on the top of his head. They struggled over the wrench.

Defendant then took victim’s wallet. They did not struggle over it. Victim said he “just gave him the wallet.” Later, victim said that defendant “hit me on the top of the head with the wrench, and took my wallet.” Defendant then ran away.

Victim called the police. They came to the park, and after searching, found victim’s wallet. The police determined that a fingerprint on the wallet matched defendant’s fingerprint.

Later, the police spoke to defendant. He said that “if I committed a robbery, I wouldn’t have robbed an innocent person, I would have robbed somebody like a dope dealer who was a problem in the community.”

About a week before trial, the trial court heard pretrial motions. At a recess, defendant followed a police officer into the hallway. At that time, defendant told the officer “that he did the robbery, but that he did not hit the man with a wrench.”

II. Defendant’s Evidence

Defendant’s evidence consisted solely of his testimony. He testified that in 1987, he pled guilty to two second degree burglary charges and one attempted second degree burglary. In 1989, he pled guilty to second degree robbery. He served time in the penitentiary on each charge.

Defendant said he went to the park. He asked victim if he had any drugs for sale. Victim said no, “he had just sold out.” Defendant then asked for money. He asked victim to loan him a dollar. When victim “took his wallet out of his pocket and he was taking a dollar out of his wallet, I snatched the wallet out of his hand.” (emphasis added).

Another time, defendant said that when victim was going into his wallet to give defendant a dollar, “I snatched the wallet out of his hand, like, I was snatching the money, too, because it was a five and a one, or something like that.” (emphasis added).

Defendant said he did not have a wrench and did not hit victim. He said he “snatched the wallet from [victim’s] hand and started to run, and didn’t [sic] stop me. And [victim] asked me, he said, ‘Hey, man, could you give me my wallet back, because my bus pass is in there, and I got to catch the bus tomorrow?”’ (emphasis added). Defendant said he dropped the wallet so victim could get it back.

Defendant acknowledged talking to the police officer. Defendant said, “I told him that I had told [my attorney] that an incident occurred, but I did not do what I’m being tried for.” Defendant was being tried for first degree robbery and armed criminal action.

III. Misdemeanor Stealing Instruction

In his sole point, defendant alleges the trial court erred in refusing to submit his tendered misdemeanor stealing instruction. He contends it is “a lesser included offense of first degree robbery and there was sufficient evidence to authorize an acquittal of first degree robbery while sustaining a conviction of misdemeanor stealing.”

Prior to the adoption of The Criminal Code in 1977, effective January 1, 1979, considerable confusion existed concerning a trial court’s duty to instruct on a lesser included offense. “Where supported by the evidence, instructions on lesser graded or necessarily included offenses must be given, whether requested or not, because they are part of the law of the case.” 0. Richardson, Lesser Graded or Included Offenses, in The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions, § VII B.l Duty to Instruct (1974).

Thus, the practice of “automatic submission” of lesser included offenses became the norm. This occurred, although a troublesome question existed “as to the quantum of evidence sufficient to require the giving of a lesser graded or necessarily included offense.” Id., § VIIB. 4.

With the adoption of The Criminal Code, “automatic submission” of lesser included offenses was eliminated.² Section 556.046 of The Criminal Code provides:

1. A defendant may be convicted of an offense included in an offense charged in the indictment or information.

⅜ ⅞: ⅝ ⅜ ⅜ ⅜

2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict [1] acquitting the defendant of the offense charged and [2] convicting him of the included offense.

(brackets and numbers added).

Our supreme court discussed this statute in State v. Olson, 686 S.W.2d 318, 320-22 (Mo.banc 1982). It said, “[t]he last paragraph of § 556.046 has for its purpose the exclusion of the requirement to instruct down in certain instances. It seems the intent was to not require an instructing down unless there were facts in evidence from which the jury could find the appellant NOT guilty of the higher offense AND guilty of the lesser.” Id. at 321 (emphasis original).

This court, in State v. Pruett, 805 S.W.2d 724 (Mo.App.E.D.1991), discussed a claimed error of failure to give a lesser included misdemeanor stealing instruction. In Pruett, this court observed that there “was no affirmative evidence of a lack of any essential element of the felony offense of stealing which would ‘authorize acquittal of the higher but sustain a conviction of the lesser offense.’” Id. at 726. Further, this court noted that the defendant was not entitled to a lesser included offense instruction “merely because the jury might disbelieve some of the state’s evidence.” Id.

In the case before us, defendant tendered a second degree robbery instruction and a felony stealing from the person instruction. He was entitled to both instructions and the trial court properly gave them to the jury. The defendant’s evidence that he did not use or threaten use of a wrench or any other dangerous instrument, and did not threaten the use of physical force against victim, gave the jury a basis for finding defendant not guilty of either first or second degree robbery. See MAI-CR 3d 323.02 and 323.04.

In addition, as required by § 556.046.2, there was a basis for a verdict convicting defendant of the included offense of felony stealing. Both the state’s and defendant’s evidence established that defendant took victim’s money without his consent, that he did so to withhold it from the victim permanently, and that defendant “physically [took] the property appropriated from the person of the victim.” § 570.030.3(2). Thus, the trial court properly gave the felony stealing from the person instruction.

But, there was no basis to acquit defendant of felony stealing because victim and defendant both testified defendant took the money from victim’s hand, i.e. “from the person of the victim.” Further, § 556.046.2 provides that a trial “court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict ... convicting him of the included offense.” Here, there was no basis for a jury to convict defendant of misdemeanor stealing because defendant’s own testimony satisfied the fourth element of felony stealing, “that the property was physically taken from the person of [name of victim].” MAI-CR 3d 324.02.1.

Defendant, however, both in his brief and at oral argument, contends the misdemeanor stealing instruction was required. Thus, in his brief, he says that “the jury in this case was free to believe [victim’s] statement that there was no struggle over the wallet, and that [victim] just gave the wallet to [defendant].” Of course, if the jury believed that victim just gave the wallet to defendant, defendant did not steal and he would be entitled to an acquittal, not a lesser included misdemeanor stealing instruction.

Defendant’s brief continues, saying when “combined with [defendant’s] testimony that he ‘snatched’ the relinquished wallet out of [victim’s] hand, and that he removed seven dollars and then dropped the wallet, there is sufficient evidence to support a misdemeanor stealing theory.” This contention fails because once defendant acknowledges that he “snatched the wallet out of [victim’s] hand,” his crime becomes a class C felony. § 570.030.3(2).

Defendant also contends that “the decision of whether to instruct the jury on misdemeanor stealing requires a comparison to the greater offense, first degree robbery.” He claims State v. Williams, 708 S.W.2d 705, 708 (Mo.App.E.D.1986) supports this argument.

In Williams, the defendant was charged with first degree robbery. The trial court submitted instructions on first degree robbery and felony stealing, but refused to submit the defendant’s tendered misdemeanor stealing instruction. Id. There, the defendant contended the state’s evidence did not establish all the necessary elements of felony stealing. Id. Specifically, the defendant contended the evidence did not show that the stolen cards were credit cards. Id.

This court disagreed. We concluded that the only reasonable interpretation of the victim’s testimony “leads to the conclusion that she had credit cards stolen.” Id. We held that the trial court did not err in refusing the misdemeanor stealing instruction.

In his dissent, Judge Karohl maintains that in determining whether to give the lesser included instruction in this case, one must compare the charged offense (as distinguished from the higher offense) with the lesser included offense. This argument relies on that part of § 556.046.2 that the trial court need not instruct on 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.” (emphasis added).

This argument fails for two reasons. First, as demonstrated above, there is no basis for convicting defendant of the lesser included misdemeanor of stealing. Defendant was either at least guilty of felony stealing from the person, or was not guilty of anything.

Second, as stated in Olson, the purpose of § 556.046 was to reduce the requirement to instruct down. As that court said, instructing down is not required unless the jury could find the defendant not “guilty of the higher offense AND guilty of the lesser.” Olson, 686 S.W.2d at 321. We construe Olson and § 556.046 to require instructing down only when there is a basis for a verdict (1) acquitting the defendant of the offense charged and any lesser included offense submitted to the jury, i.e. the higher offense, and (2) convicting the defendant of another lesser included offense. See also MAI-CR 3d 804.11(G) (An instruction on lesser included and lesser degree offenses “will not be given unless there is a basis for acquitting the defendant of the higher offense and convicting him of the lesser offense.”). Point denied.

The trial court’s judgment is affirmed.

AHRENS, C.J., and GERALD M. SMITH, GARY M. GAERTNER, CRANE, CRAHAN, DOWD, RHODES RUSSELL and HOFF, JJ., concur.

GERALD M. SMITH, J., concurs in separate opinion.

CRANE and CRAHAN, JJ., concur in GERALD M. SMITH’S, J., opinion.

CRANDALL, J., concurs in result in separate opinion. REINHARD and SIMON, JJ., concur in CRANDALL’s, J., opinion. KAROHL, J., dissents in separate opinion. PUDLOWSKI, J., concurs in KAROHL’s, J., opinion.

1 . All statutory references are to RSMo 1994.

2 . Homicides were not in The Criminal Code when it was adopted. Subsequent amendments have made the Code applicable to homicides.

There is no longer any requirement of ‘‘automatic submission" of any lesser homicide offense. State v. Stepter, 794 S.W.2d 649, 654 (Mo.banc 1990). However, the Supplemental Notes on Use Applicable to 313.00 Series, contained in MAI-CR 3d, observe that the presence of "deliberation” is the basic element that distinguishes first degree murder from second degree murder. Because deliberation is subjective and usuaEy may be established only by inference, it is difficult to determine whether to submit second degree murder as a lesser included offense. In "most homicide cases, a defendant is entitled to a second degree murder instruction.” State v. Mease, 842 S.W.2d 98, 112 (Mo.banc 1992). Only in a few cases would an instruction on second degree murder be inappropriate. See MAI-CR 3d 313.00.4(A)(1).