State of Missouri v. Bruce Pierce, 2014 Mo. LEXIS 159

Jackson was convicted of first-degree robbery in Missouri; the trial court refused his request for a second-degree robbery instruction.
The state’s evidence included employee testimony that a gun was displayed against her back and video surveillance of the robbery.
The differential element between first- and second-degree robbery is whether the employee reasonably believed Jackson displayed or threatened a gun.
Jackson argued the jury could disbelieve the State’s gun evidence and still convict on the lesser offense; the trial court rejected this.
The appellate court vacated both counts and remanded for new trial, holding that nested lesser-included instructions must be given when the evidence supports them.
The Supreme Court reaffirmed that a defendant is entitled to a nested lesser-included offense instruction if a basis in the evidence supports acquittal of the greater offense and conviction of the lesser.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court must give a nested lesser-offense instruction	Jackson argues it must be given if evidence supports it	State contends only a ‘basis in the evidence’ for acquittal exists if the court believes jurors must decide	Yes; instruction must be given when a basis in the evidence supports acquittal of the greater and conviction of the lesser
What standard governs whether there is a basis in the evidence	Disbelief of State’s evidence can create a basis	Evidence must show a rational basis to acquit of the greater and convict the lesser	A basis exists if a reasonable juror could infer lack of proof of a distinguishing element
Relation to prior standards Olson, Santillan, Pond, Williams	Earlier cases require no affirmative evidence to justify instruction	Earlier language remains applicable to require no reliance on affirmative evidence	Overruled to the extent Olson conflicted with Santillan, Pond, and Williams; adopt the later standard
Effect of the decision on constitutional rights	Granting instruction aligns with presumption of innocence and jury trial	No constitutional right to a nested instruction; state interest in avoiding junk verdicts	Holding remains faithful to presumption of innocence and jury trial; no constitutional bar

State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997) (defendant not required to present affirmative evidence)
State v. Pond, 131 S.W.3d 792 (Mo. banc 2004) (defendant entitled to instruction on any theory the evidence establishes)
State v. Williams, 313 S.W.3d 656 (Mo. banc 2010) (jury may disbelieve all or part of the State's evidence; instruction may be warranted)
State v. Derenzy, 89 S.W.3d 472 (Mo. banc 2002) (de novo review of lesser-included-offense instructions)
State v. Hibler, 5 S.W.3d 147 (Mo. banc 1999) (basis in the evidence standard governs lesser offenses)
Santillan cited Keeble v. United States, 412 U.S.205 (U.S. 1973) (lesser included instruction proper when evidence supports it)