State v. Derenzy

89 S.W.3d 472, 2002 Mo. LEXIS 105, 2002 WL 31655425

• Court: Supreme Court of Missouri
• Decided: November 26, 2002
• Docket: SC 84267
• Status: Published

Opinions

RICHARD B. TEITELMAN, Judge.

Appellant, Jared R. Derenzy, was accused of having sold ten dollars of marijuana to an undercover officer within 2,000 feet of Westminster College. He was charged with one count of delivery of a controlled substance within 2,000 feet of a school, in violation of section 195.214.1.¹

Appellant requested that the trial court instruct the jury as to the lesser included offense of possession of marijuana. He provided a proposed instruction that failed to describe the charged offense accurately. Regardless of the erroneous description of the charged offense, the trial court ruled that possession of marijuana was not a lesser included offense and declined to provide the jury with an instruction. The jury found Appellant guilty. Appellant was sentenced as a prior offender to a term of ten years imprisonment. After opinion by the Court of Appeals, Western District, the case was transferred to this Court; Mo. Const art. V, section 10.

Possession of marijuana is a lesser included offense of delivery of a controlled substance within 2,000 feet of a school; Appellant’s failure to submit a correct instruction waived all but plain error review of the point; and, once the lesser included offense instruction was requested, it was plain error resulting in manifest injustice that the trial court failed to submit such an instruction to the jury. The judgment is reversed, and the cause is remanded for a new trial.

Lesser included offense

Possession of marijuana is a lesser included offense of delivery of a controlled substance within 2,000 feet of a school. Section 556.046.1(1) provides that a lesser included offense “is established by proof of the same or less than all the facts required to establish the commission of the offense charged;....” The elements of the two offenses must be compared in theory, without regard to the specific conduct alleged. State v. Bums, 877 S.W.2d 111, 112 (Mo. banc 1994). An offense is a lesser included offense if it is impossible to commit the greater without necessarily committing the lesser. State v. Barnard, 972 S.W.2d 462, 465 (Mo.App.1998).

The question is whether one who has delivered a controlled substance has necessarily also possessed the controlled substance. “Delivery” is defined in this context by section 195.010(8) as “the actual, constructive, or attempted transfer from one person to another of ... a controlled substance, whether or not there is an agency relationship,.... ” The term “possession” includes both actual and constructive possession. Section 195.010(32) provides that a “person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it. Possession may also be sole or joint.” Regardless of the method of transfer, one cannot deliver a substance without the power and intention to exercise dominion or control over the substance, necessitating some form of possession. Anyone who has delivered a controlled substance has necessarily possessed that substance. Therefore, the offense of possession of marijuana is a lesser included offense of delivery of a controlled substance within 2,000 feet of a school.

Requirement of instruction

The trial court was required to instruct the jury on the lesser included offense because both prerequisites were present: Appellant requested the instruction, and the evidence provided a basis for a verdict acquitting Appellant of the charged (greater) offense and yet convicting Appellant of the lesser offense. State v. Mayes, 63 S.W.3d 615, 636 (Mo. banc 2001); State v. Fowler, 938 S.W.2d 894, 898 (Mo. banc 1997). For there to be a basis for an acquittal of the greater offense, there must be a questionable essential element of the greater offense. 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. Hineman, 14 S.W.3d 924, 927 (Mo. banc 1999). 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. Id. Appellant presented a defense of entrapment that would only apply to the greater offense’s element of distribution, but that could still allow a jury to find that Appellant possessed marijuana. A defendant must specifically request that the jury be instructed on a lesser included offense. State v. Black, 50 S.W.3d 778, 788 (Mo. banc 2001). Once Appellant requested that the trial court provide the jury with an instruction on the lesser included possession offense, the instruction was mandatory.

The “court shall instruct the jury in writing upon all questions of law arising in the case that are necessary for their information in giving the verdict.” Rule 28.02(a). A trial court does not commit error by rejecting an instruction that either misstates the law or would have confused the jury. State v. Betts, 646 S.W.2d 94, 99 (Mo. banc 1988); State v. Parkhurst, 845 S.W.2d 31, 86-87 (Mo. banc 1992).

Appellant was required to submit to the court proposed instructions and verdict forms. Rule 28.02(b). Appellant proposed an instruction, but it failed to describe the charged offense accurately. Therefore, it was not error for the trial court to have refused the specific instruction proposed by Appellant. Because both parties and the trial court failed to notice the flawed language of the proposed instruction, Appellant never submitted a correct instruction for the lesser included offense.

Appellant’s failure to submit a correct instruction under these circumstances renders his claims of error unpre-served. State v. Wurtzberger, 40 S.W.3d 893, 897 (Mo. banc 2001). He has therefore waived Rule 28.03 review of the point.² Id. However, “[ujnpreserved claims of plain error may still be reviewed under Rule 30.20 if manifest injustice would otherwise occur.”³ Id. at 898.

The trial court was not confused by the mistaken reference to the wrong charged offense in Appellant’s proposed instruction. The trial court rejected it out of hand and not due to the mistaken language. Appellant’s mistaken reference to the wrong charged offense was the type of mistake that could have been easily corrected by Appellant had the state pointed it out below.

Appellant was prejudiced by the trial court’s failure to instruct the jury on the lesser included offense of possession. An instruction on the lesser included offense was mandatory. The trial court committed plain error by failing to provide one to the jury. Appellant could reasonably have been acquitted on the greater delivery offense, yet convicted of the lesser included possession offense. Therefore, the trial court’s plain error resulted in manifest injustice.

The judgment is reversed, and the case is remanded for a new trial.⁴

WHITE, WOLFF and LAURA DENVIR STITH, JJ„ concur. LIMBAUGH, C.J., dissents in separate opinion filed. BENTON and PRICE, JJ., concur in opinion of LIMBAUGH, C.J.

1 . All statutory references are to RSMo 2000.

2 . Rule 28.03 provides, in pertinent part: Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.

3 . Rule 30.20 provides, in pertinent part:

Whether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

4 .As Appellant has been granted a new trial, the other claims of error raised in this appeal need not be reviewed.