State v. OlsonState v. Olson
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- Before:
- Bardgett
Appellant Olson was convicted by a jury of count I rape (
The sufficiency of the evidence is not contested and a review of the record shows there was sufficient evidence from which a jury could find beyond a reasonable doubt that appellant was guilty of all three crimes.
On October 1, 1979, the victim, a woman, had car trouble and appellant offered her a ride to work. She accepted. Appellant pulled off onto another road, pointed a gun at her, ordered her to put on handcuffs, demanded $50 from her, and said he would hold her for ransom. He then drove to a cabin where he chained her to a roof beam, gagged her, and left to call her boss to get $50. Appellant returned and forced her to commit oral sodomy upon him and then raped her. Later he forced her to commit another act of oral sodomy upon him and raped her again. He then stabbed her in
Appellant’s first point is that the court erred in overruling his motion to strike count II (sodomy) and count III (assault) “of the amended information for the reasons that the conduct described was a continuous course of conduct such as is contemplated by
When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if ...
(4) The offense is defined as a continuing course of conduct and the person’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
None of the offenses with which appellant was charged and convicted include any others with which he was charged and convicted. They all occurred during a continuous course of conduct or as a single transaction and were properly joined in a single information charging separate counts. The fact that the three offenses did occur in a continuous course of conduct does not bring into play the prohibition of double jeopardy. State v. Moton, 476 S.W.2d 785 (Mo.1972). The fact that the three crimes were committed on the same victim does not prevent conviction of each one. These are three separate crimes for which a person can be separately convicted and punished. State v. Stewart, 615 S.W.2d 600 (Mo.App.1981). The point is overruled.
Appellant’s second point is that “the trial court erred, to the prejudice of appellant, in failing to instruct the jury in this case on the lesser included offenses of assault in the second degree (
Appellant testified in his own defense. He stated that on October 1, 1979, a girl came up to his truck and told him her car was stalled and she had to get to work. He told her to signal the police patrol on the parking lot. He denied that she was in his vehicle and denied all further involvement. Appellant did not request any additional instructions be given to the jury.
1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree of the offense charged; or
(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.
2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
In
State v. Hill,
614 S.W.2d 744 (Mo.App.1981), the court analyzed
The duty involved is now defined by statute. Section 556.046.2 provides: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” The key phrase of that section is “a basis for a verdict”. It could be argued that the jury’s disbelief of the evidence necessary to establish an element of the greater offense is such a basis. However, such a construction would require an instruction on a lesser included offense in the vast majority of cases. It is appropriate to construe a statute with reference to the comment accompanying that statute when enacted. State v. Stiers, 610 S.W.2d 83 (Mo.App.1980); State v. Gullett, 606 S.W.2d 796 (Mo.App.1980). The applicable comment indicates that it is an adoption of the existing general rule and cites State v. Craig, 433 S.W.2d 811 (Mo.1968). Craig declares: “In order to require the giving of an instruction on the included or lesser offense there must be evidentiary support in the case for its submission.” Craig, 433 S.W.2d at 815. Also see State v. Achter, 448 S.W.2d 898 (Mo.1970). Even if the jury were to “disbelieve some of the evidence of the State, or decline to draw some or all of the permissible inferences, (this) does not entitle the defendant to an instruction otherwise unsupported by the evidence, on the issue of accidental homicide pursuant to § 559.-050, ....” Achter, 448 S.W.2d at 900. It has consistently been held that an instruction on a lesser included offense is required only where there is evidence with probative value which could form the basis of an acquittal of the greater offense and a conviction of the lesser included offense. State v. Howell, 524 S.W.2d 11 (Mo. banc 1975); State v. Haynes, 329 S.W.2d 640 (Mo.1959); State v. Coffmann, 360 Mo. 782, 230 S.W.2d 761 (1950). The statute must be so construed. State v. Mays, 598 S.W.2d 613 (Mo.App.1980); State v. Owens, 598 S.W.2d 174 (Mo.App.1980); State v. Decker, 591 S.W.2d 7 (Mo.App.1979).
Id. at 749-50 (emphasis added).
The only evidence as to the offense came in the state’s case from the victim. There was no testimony in the state’s or the appellant’s case which mitigated the offense or provided a different version of it. The defense was simply that appellant did not do it at all.
Appellant states the difference between first-degree and second-degree assault is the presence or absence of “malice”, citing pre-1979 cases. That is no longer totally correct.
See
Section 556.046.2 limits the requirement of instructing down to those instances where there is some affirmative evidence of a lack of an essential element of the higher offense which would not only authorize acquittal of the higher but sustain a conviction of the lesser. That evidence could be found in the totality of the evidence indicating a lack of requisite intent or knowledge necessary to assault in the first degree (mental intent), in the degree of injury actually inflicted (
In the instant case there was no evidence from which a jury could find the assault was committed in any manner or for any purpose other than the manner and purpose supported by the state’s evidence and there was no conflict within that evidence.
Trial courts are confronted with a serious dilemma and the efficient administration of criminal justice in many cases is hampered if the trial judge must instruct on all lesser-included offenses, even though no request is made therefor, and there is nothing of significance in the evidence that would draw the matter to the court’s attention. That describes the instant case. It presents an almost impossible situation. In the instant case there was no request for a lesser-assault instruction and the defense was solely that appellant did not do whatever was done — alibi.
A decision not to request a lesser-offense instruction is made frequently by defense counsel. It is a tactical decision usually based on the belief — often a reasonable one — that the jury may convict of the lesser offense, if submitted, rather than render a not guilty verdict on the higher offense if the lesser is not submitted. Likewise, the prosecutor will oftentimes request the lesser-offense instruction if he doubts the strength of his case on the higher offense and desires a conviction of something rather than a possible total acquittal.
In the instant case there was no evidence — factual or inferential — that would provide a basis for both an acquittal of the higher and a conviction of the lesser.
The Court recognizes the argument that a jury could fail (negative) to find an element of the higher offense beyond a reasonable doubt and acquit of the higher and perhaps convict of a lesser offense. This is the basis for requiring an instruction on second-degree murder when capital is submitted and of manslaughter when second is submitted. The Court, however, requires this so-called “automatic” submission only in homicide cases because the only difference between them is lack of deliberation (purely mental) as between capital murder and second-degree murder and intent to kill or do serious bodily harm as between second-degree murder and voluntary manslaughter. This is reflected in the direction the legislature has taken in the homicide cases — § 565.006 provides, in part, “In each jury capital murder case, the court shall not give instructions on any lesser included offense which could not be supported by the evidence presented in the case.” There is no requirement in murder cases, as there is in other cases under § 556.046.2, that there be no lesser-offense instructions given unless there is a basis in evidence for both an* acquittal of the higher and a conviction of the lesser.
In the instant case there was no basis in evidence to acquit of assault in the first degree and convict of assault in the second degree. Therefore, the trial court did not err in failing to give the second-degree assault instruction.
The Court further holds that a defendant may not complain about a court’s
In the instant case there was no evidence or reasonable inference from the evidence that would have supported the giving of a lesser-assault instruction even if it had been requested.
The judgment is affirmed.
RENDLEN, SEILER, MORGAN and HIGGINS, JJ., concur. DONNELLY, C. J., and WELLIVER, J., concur in result.
Notes
. Appropriate changes, of course, will need to be made in Rule 28.02(a) with respect to “Verdict directing MAI-CR instructions in the 15.00 to 32.00 Series,” except with reference to the 15.00 Series.