State v. Smith

522 S.W.3d 221

STATE of Missouri, Respondent,

v.James Calvin SMITH, Appellant.

No. SC 95461

Supreme Court of Missouri, en banc.

Opinion issued July 11, 2017

Smith was represented by Amy M. Bartholow of the public defender's office in Columbia, (573) 777-9977.

The state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City, (573) 751-3321.

Mary R. Russell, Judge

James Smith was arrested after a string of break-ins at businesses in Sedalia. Smith was charged with one count of first-degree burglary, four counts of second-degree burglary, four counts of felony stealing, as well as one count of property destruction and resisting arrest. For the first-degree burglary charge, the jury was instructed on the charged offense and the lesser included offense of second-degree burglary. The trial court refused Smith's request for an additional instruction on first-degree trespass. Smith also requested the trespass instruction for each of the second-degree burglary charges, but the trial court refused to give the instruction for three of the four charges. The jury found Smith guilty of all charged offenses.

On appeal, Smith argues his convictions for first- and second-degree burglary on counts for which no trespass instruction was given must be reversed and remanded for a new trial. Additionally, he claims the case must be remanded for resentencing of his felony stealing convictions in the wake of State v. Bazell , 497 S.W.3d 263 (Mo. banc 2016).¹ Finally, he contends the trial court lacked subject matter jurisdiction to convict him of one second-degree burglary count for allegedly burglarizing the United States Post Office in Sedalia.

The trial court erred when it refused to give an instruction for first-degree trespass for the charged burglary offenses. As a result, Smith's convictions for those counts are reversed, and the case is remanded for a new trial on those charges.

Additionally, because the enhancement provisions of section 570.030.3² do not apply to the definition of stealing in section 570.030.1, as this Court held in Bazell , Smith's felony stealing convictions must be reversed and remanded for resentencing as misdemeanors. In all other respects, the trial court's judgment is affirmed.

Factual Background

Smith broke into a number of buildings in Sedalia in 2012 and 2013. In April 2012, Smith cut open a fence surrounding a landscaping business and a large camper parked on the property. Smith's DNA was found on a cigarette butt recovered near the hole in the fence. He took a computer, a tablet, and a number of trimmers and leaf blowers from the business. Smith also broke into the camper by breaking the glass in the front door. He stole a television and a handgun from the camper.

In August 2012, Smith broke into the United States Post Office in Sedalia. An employee of the post office testified a window had been broken with a brick and items in the office had been disturbed and moved around. Police found a small amount of blood by the broken window and a larger blood smear elsewhere in the building. The DNA profile of the blood matched Smith's DNA.

The following month, Smith broke into Sedalia Tool and Manufacturing using a piece of steel to break a window. He vandalized a vending machine by trying to pry it open and damaged a number of interior doors and other items in the business. Smith stole a laptop computer containing a "SURFCAM access key," which had a value of approximately $14,000. His blood was found after the break-in on a piece of paper located in the building's office. When asked by police about the break-in at Sedalia Tool and Manufacturing, Smith stated he did not know where the business was located and had never been there.

In December 2012, Smith broke into a repair shop in Sedalia. He stole money, whiskey, and the key to the front door. After the break-in, the shop's owner changed the locks on the doors and installed a security camera. Several months later, Smith broke into the shop again. The key previously stolen from the shop was found bent in the new lock. When the key did not work and he could not kick in the door, Smith gained access to the building by breaking a window. He took a computer, software, a motorcycle welder, a stereo receiver, and a bottle of vodka. The aggregated value of the items stolen from the shop was estimated at $1,274.71. Shoe prints found around the shop matched the tread on a pair of Smith's shoes, which were discovered during a search of his residence.

Smith was charged as a prior and persistent offender with one count of burglary in the first degree, four counts of burglary in the second degree, four counts of felony stealing, one count of property damage in the first degree, and one count of resisting arrest. Smith requested the jury be instructed on the lesser included offense of trespass in the first degree for each of the burglary counts. Similarly, he requested lesser included offense instructions for misdemeanor stealing on Counts 4 and 7, which were charged as felony stealing for the appropriation of property valued at more than $500. The trial court refused all requested instructions for lesser included offenses,³ and the jury found Smith guilty of all offenses as charged.

The trial court sentenced Smith as a prior and persistent offender to 10 years' imprisonment for the first-degree burglary charge (Count 1), seven years' imprisonment each for the second-degree burglary and felony stealing charges (Counts 2, 3, 4, 5, 6, 7, 9, and 10), four years' imprisonment for resisting arrest (Count 11), and 30 days in jail for destruction of property (Count 8). The sentences for counts 2 through 11 were set to run concurrently with each other but consecutively to the sentence for Count 1. Smith appeals.⁴

Discussion

I. The trial court's failure to give a lesser included offense instruction for Counts 1, 3, 6, and 9 was error

A. Count 1

On Count 1, the jury convicted Smith of first-degree burglary, the charged offense, after also being instructed on second-degree burglary. Smith's counsel timely requested an instruction for first-degree trespass, which the trial court refused to give. Smith contends the failure to give the requested trespass instruction was reversible error because trespass is a nested lesser included offense of the charged offense.

Whether to give a requested jury instruction pursuant to section 556.046 is a question of law this Court reviews de novo. State v. Jackson , 433 S.W.3d 390, 395 (Mo. banc 2014). Section 556.046.1(1) defines a lesser included offense as one "established by proof of the same or less than all the facts required to establish the commission of the offense charged." Missouri law requires instruction on a lesser included offense when (1) "a party timely requests the instruction;" (2) "there is a basis in the evidence for acquitting the defendant of the charged offense; and" (3) "there is a basis in the evidence for convicting the defendant of the lesser included offense for which the instruction is requested." Jackson , 433 S.W.3d at 396 ; see also sec. 556.046.2.

Smith's counsel timely requested the trespass instruction, and the parties agree trespass in the first degree is a "nested" lesser included offense of first- and second-degree burglary because it is composed of a subset of the elements of those offenses.⁵ See Jackson , 433 S.W.3d at 404. Because it is impossible to commit first-degree burglary without also necessarily committing first-degree trespass, there was a basis in the evidence to convict Smith of first-degree trespass. See id. Finally, this Court has held there is always a basis in the evidence to acquit the defendant of the charged offense because the jury is free to disbelieve any or all of the evidence presented. Id. at 399 ; see also State v. Randle , 465 S.W.3d 477, 479 (Mo. banc 2015) ; State v. Roberts , 465 S.W.3d 899, 901 (Mo. banc 2015) ; State v. Pierce , 433 S.W.3d 424, 430 (Mo. banc 2014). Consequently, the trial court was required to give the requested first-degree trespass instruction and erred in failing to do so.

"Prejudice is presumed when a trial court erroneously refuses to give a properly requested instruction on a nested lesser included offense." State v. Jensen , No. SC95280, ––– S.W.3d ––––, 2017 WL 2952320 (Mo. banc 2017) (handed down contemporaneously with this opinion); Jackson , 433 S.W.3d at 395 n.4. Nonetheless, the State argues the Court should not reverse Smith's conviction for Count 1 based on the trial court's failure to give the requested trespass instruction because the jury was instructed on one lesser included offense, burglary in the second degree, and found Smith guilty of first-degree burglary.⁶ The State relies on State v. Johnson , 284 S.W.3d 561 (Mo. banc 2009), a pre- Jackson case, to support its argument that the failure to give a requested lesser included offense instruction is not prejudicial, reversible error under the present circumstances. Specifically, the State points to Johnson 's holding that "[t]he failure to give a different lesser included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser included offense are given and the defendant is found guilty of the greater offense." Id. (emphasis in original).

In Johnson , the defendant was charged with first-degree murder for shooting a police officer at close range, walking away to converse with someone, and then returning to resume the fatal shooting. Id. at 567-68. The jury was instructed on first- and second-degree murder. Id. at 575-76. Defense counsel also requested instructions for second-degree murder without sudden passion and voluntary manslaughter, but the trial court refused to give those instructions. Id. at 575. The jury returned a verdict finding the defendant guilty of first-degree murder, and the trial court sentenced the defendant to death. Id. at 567. This Court affirmed his convictions, finding no error in the...