State v. Nutt, 432 S.W.3d 221

Nutt and Durbin, both inmates, fought in front of Durbin’s cell; Nutt choked Durbin for 15–30 seconds.
Guard observed the choke from a cell-door window and the incident was captured on video; Durbin appeared red and breathless.
Durbin reported injuries but Deputy Weber found no injuries; Durbin was not medically treated.
Nutt was charged with first-degree assault for attempting to cause serious physical injury by choking.
Trial court refused Nutt’s two third-degree assault instructions; jury convicted Nutt of first-degree assault.
The court reverses and remands for a new trial based on instructional error regarding the lesser included offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether third-degree assault should have been given as a lesser included offense	Nutt argued third-degree instruction was a valid lesser included offense	State contends no basis to submit third-degree since greater offense tested	Yes; court erred in refusing third-degree instruction

State v. Hibler, 5 S.W.3d 147 (Mo. banc 1999) (third-degree assault as lesser included)
State v. Frost, 49 S.W.3d 212 (Mo.App.W.D.2001) (test of lesser included offense requires adequate testing of elements)
State v. Pond, 131 S.W.3d 792 (Mo. banc 2004) (instructions on lesser offenses if evidentiary basis supports)
State v. Johnson, 284 S.W.3d 561 (Mo. banc 2009) (prejudice analysis of missing lesser-included instructions)
State v. Jones, 979 S.W.2d 171 (Mo. banc 1998) (standard for testing lesser offenses)