State v. Smith, 522 S.W.3d 221

Background

James Smith was convicted after multiple 2012–2013 break-ins in Sedalia: one first‑degree burglary (Count 1), four second‑degree burglaries (Counts 3, 5, 6, 9), four felony stealing counts (Counts 2, 4, 7, 10), property damage, and resisting arrest.
Jury instructions included the charged burglary offenses and second‑degree burglary as a lesser for Count 1; the court refused Smith’s requested first‑degree trespass instruction for Counts 1, 3, 6, and 9 (gave trespass only for Count 5).
Smith was sentenced as a prior and persistent offender to consecutive and concurrent prison terms; he appealed.
Smith argued (1) the court erred by refusing nested lesser‑included trespass instructions for several burglary counts, (2) his felony stealing convictions must be resentenced under State v. Bazell, and (3) the trial court lacked subject‑matter jurisdiction over the post office burglary (federal property).
The Court reversed convictions for Counts 1, 3, 6, and 9 (instructional error) and remanded those counts for new trials; it reversed the four felony stealing convictions for resentencing as misdemeanors under Bazell; it affirmed the post office burglary conviction for lack of plain error showing loss of state jurisdiction.

Issues

Issue	Smith's Argument	State's Argument	Held
Whether trial court erred by refusing first‑degree trespass instruction for Count 1 (first‑degree burglary)	Trespass is a nested lesser‑included offense; refusal denied jury chance to convict on trespass when intent was disputed	Harmless because jury was instructed on second‑degree burglary and convicted of the greater offense	Court: Error to refuse trespass instruction; prejudice presumed because no instruction tested the specific disputed element (intent); conviction on Count 1 reversed and remanded (majority)
Whether refusal to give trespass instructions for Counts 3, 6, 9 (second‑degree burglary) requires reversal	Same: trespass is nested lesser; jury should have been allowed to consider it	Evidence of intent to steal was strong; no prejudice	Court: Reversal required under Jackson/Pierce precedent; convictions reversed and remanded for new trials
Whether felony stealing enhancements under §570.030.3 applied (value‑based enhancements)	Under Bazell, §570.030.1 does not include value as an element; therefore §570.030.3 enhancements do not apply and felony convictions must be resentenced as misdemeanors	Contended some §570.030.3 subdivisions (e.g., value ≥ $500) furnish the element of value and Bazell is inapplicable	Court: Bazell controls; §570.030.3 applies only where value is an element — Smith’s four stealing convictions reversed and remanded for resentencing as misdemeanors
Whether trial court lacked subject‑matter jurisdiction over Count 5 (post office burglary)	Post office is federal property; exclusive federal jurisdiction would preclude state prosecution	Record does not show federal acceptance of jurisdiction; presumption against acceptance for post‑1940 acquisition	Court: No plain error; Smith failed to prove exclusive federal jurisdiction (property acquired 1968, presumption against acceptance); conviction affirmed

Key Cases Cited

State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014) (defines when lesser‑included offense instruction must be given)
State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016) (§570.030.3 enhancements inapplicable where value is not an element of the underlying stealing offense)
State v. Jensen, 524 S.W.3d 33 (Mo. banc 2017) (presumption of prejudice when court refuses a properly requested nested lesser‑included instruction; two‑step analysis)
State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695 (Mo. banc 2010) (federal acceptance of jurisdiction over federal property and its effect on state court jurisdiction)
State v. Johnson, 284 S.W.3d 561 (Mo. banc 2009) (context on harmlessness analysis for rejected lesser‑included instructions)