State v. Smith , 2017 Mo. LEXIS 337 ( 2017 )

Zel M. Fischer, Chief Justice,

concurring and dissenting.

I concur in Sections I.B., II and III of the majority opinion. However, I dissent from Section I.A; of the majority opinion because, in my. view, the State overcame the presumption of prejudice from failure to give the nested lesser-included offense instruction, of first-degree trespass.¹

As the majority opinion points out, the “testing of an element” is - one way the State could overcome the presumption of prejudice, but it is not the only way.² After review of the record in this case, and based on the jury instructions given³ and the- strength of the evidence, it is my view the State overcame the presumption of prejudice as it relates to Count 1. Accordingly, I would affirm Smith’s first-degree burglary convictibn (Count 1).

1 .Consistent with today's decision in State v. Jensen, No. SC95280, 524 S.W.3d 33, 2017 WL 2952320 (Mo. banc 2017), this Court performs a two-step analysis of whether a circuit court’s erroneous refusal to give a requested nested lesser-included offense resulted in reversible instructional error. Thé first step is to determine whether the circuit court erred by failing to instruct the jury on the properly requested nested lesser-included offense as required by § 556.046. Jensen, 524 S.W.3d at 36-38. If so, the second step is to determine whether such error was prejudicial. Id. at 38. "This Court will reverse on a claim of instructional error only if there is an error in submitting an instruction and that error results in prejudice to the defendant.” State v. Deck, 303 S.W.3d 527, 548 (Mo. banc 2010). ”[P]reju-dice is presumed when a trial court fails to give a requested lesser included offense instruction that is supported by .the evidence,” State v. Jackson, 433 S.W.3d 390, 395 n.4 (Mo. banc 2014). The State may rebut' the presumption of prejudice. See Jensen, 524 S.W.3d at 38, n.3, & n.5.

2 . Smith was charged with first-degree burglary. The jury was instructed on second-degree burglary. The circuit court refused Smith’s request for the nested lesser-included offense instruction of first-degree trespass on this count. The jury convicted Smith of first-degree burglary,

3 . "[A] jury is presumed to follow the jury instructions.” State v. Whitfield, 107 S.W.3d 253, 263 (Mo. banc 2003).