State v. Jensen

Zel M.‘Fischer; Chief Justice

Although I concur with the bulk of the majority opinion, I dissent from its conclusion that the State did not rebut the presumption of prejudice arising from the circuit court’s failure to give the requested nested lesser-included offense instruction of involuntary manslaughter. To be sure, State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014), does not discuss the various ways the State may overcome the presumption of prejudice. After review of the record in this case, and based on the strength of the evidence in the record, in my view the State overcame the presumption of prejudice and I would affirm Jensen’s second-degree murder conviction.¹

1 . This would necessarily result in affirming the corresponding armed criminal action conviction.