Jury could have found defendant guilty of lesser offense

A finding by the Missouri Court of Appeals for the Western District that a defendant's counsel was ineffective at trial led the appellate court to vacate the man's conviction and order a new trial.

James Patterson was convicted of second-degree robbery and sentenced to 20 years as a prior and persistent offender. Patterson filed a Rule 29.15 motion for post-conviction relief, claiming his trial counsel was ineffective.

Patterson was found guilty of robbing a Long John Silver's restaurant in Platte County. Throughout the entire incident, Patterson kept his right hand in his jacket pocket. He grabbed money out of an employee's shirt pocket, and then grabbed money out of the register. Patterson shouted at the employee when he felt she was not responding fast enough.

At trial, Patterson's counsel stated a jury instruction for the lesser offense of felony stealing should be submitted for consideration by the jury, arguing there was sufficient evidence that the jury could find he did not use or threaten to use force.

According to Section 569.030.1 RSMo. 2000, a person commits second degree robbery if they forcibly steal, meaning the person "uses or threatens the immediate use of physical force upon another person for the purpose of [p]reventing or overcoming resistance to the taking of the property or [c]ompelling the owner of such property or another person to deliver up the property." Felony stealing, according to Section 570.030 RSMo. 1994, is committed if the person "appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion."

Patterson's trial attorney submitted a proposed jury instruction for the lessor offense that read, in part, "If you find and believe from the evidence beyond a reasonable doubt: First, that on or about April 25, 1996, in the County of Platte, State of Missouri, the defendant forcibly stole United States currency owned by Long John Silver's Restaurant." The trial court rejected this proposed instruction, and no instruction on the lessor offense was submitted to the jury.

The appellate court found this failure to submit the lessor instruction prejudiced the jury against Patterson because there was sufficient evidence the jury could have found him guilty of either offense. The appellate court found the proposed instruction for the lessor offense should not have contained the "forcibly stole" language.

Because Patterson's right hand was in his pocket throughout the entire incident, the court found the jury could have found Patterson implied the threat of force. Past Missouri cases have held that the express use of force or intent to use force is not necessary, but even the implied intent, through body language and other non-verbal communication could allow a jury to believe the defendant would have used force.

The appellate court also found the jury could have found him guilty of felony stealing, because the victim and none of the witnesses knew if Patterson actually had a weapon in his pocket.

"Where doubt exists over whether a reasonable juror could draw inferences from the evidence supporting a finding that an essential element of the greater offense has not been established, the trial court should instruct on the lessor-included offense and leave it to the jury to decide which offense, if any, the defendant committed," Judge Patricia Breckenridge wrote.

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