verdict-directing instruction in Missouri

2023Legal Principles “In every trial for a criminal offense the court shall instruct the jury in writing upon all questions of law arising in the case that are necessary for their information in giving the verdict.” Rule 28.02(a).2 “‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of the offense charged.’” State v. Cooper, 215 S.W.3d 123, 125-26 (Mo. banc 2007) (quoting State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995); State v. Krause, 682 S.W.2d 55, 56 (Mo.App. 1984)).

2019Failing to require the jury to find every fact essential to conviction may constitute plain error. “‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.’” Id. (quoting State v. Doolittle, 896 S.W.2d 27, 30 (Mo. 1995)).

2010W.D.2000) (citing Rule 28.02(f)). “ ‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of the offense charged.’ ” State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995) (quoting State v. Ward, 745 S.W.2d 666, 670 (Mo. banc 1988)).

2010There was evidence from which a reasonable juror could have found that a weapon was used in the rape but not used in the robbery, which occurred at a point in time after the rape was concluded. “‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of offense charged.’ ” Doolittle, 896 S.W.2d at 30 (quoting Ward, 745 S.W.2d at 670 ).

2023See State v. Borst, 643 S.W.3d 586 , 593 (Mo. App. W.D. 2022) (quoting State v. Shepard, 442 S.W.2d 58, 60 (Mo. banc 1969)) (“It has long been the rule that when a crime may be committed by any of several methods, the information must charge one or more of the methods, and the method or methods submitted in the verdict directing instruction must be among those alleged in the information[.]”).

2022Consistent with due-process notice principles, the Missouri Supreme Court has held that “[o]ne cannot be charged with one offense, or with one form of an offense, and convicted of another.” State v. White, 431 S.W.2d 182, 186 (Mo. 1968); accord State v. Lee, 841 S.W.2d 648, 650 (Mo. 1992). “[W]hen a crime may be committed by any of several methods, . . . the method or methods submitted in the verdict directing instruction must be among those alleged in the information.” Lee, 841 S.W.2d at 650 (internal quotation marks omitted; citing State v. Shepard, 442 S.W.2d 58, 60 (Mo. 1969), and State v.

2023Instruction 11 allowed the jury to find Appellant guilty if they found that he “attempted to kill or cause serious physical injury to Tricia Hicks by shooting her.” Despite the omission of the word “at,” the indictment and the verdict-director presented the same method of committing assault first degree, namely that Appellant fired a gun when attempting to kill or cause serious physical injury to Wife. “[W]hen a crime may be committed by any of several methods, ... the method or methods submitted in the verdict directing instruction must be among those alleged in the information.” Id. (quoting

2022Consistent with due-process notice principles, the Missouri Supreme Court has held that “[o]ne cannot be charged with one offense, or with one form of an offense, and convicted of another.” State v. White, 431 S.W.2d 182, 186 (Mo. 1968); accord State v. Lee, 841 S.W.2d 648, 650 (Mo. 1992). “[W]hen a crime may be committed by any of several methods, . . . the method or methods submitted in the verdict directing instruction must be among those alleged in the information.” Lee, 841 S.W.2d at 650 (internal quotation marks omitted; citing State v. Shepard, 442 S.W.2d 58, 60 (Mo. 1969), and State v.

2024Analysis “A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.” State v. Stover, 388 S.W.3d 138, 153-54 (Mo. banc 2012) (citing State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007)).

2023Legal Principles “In every trial for a criminal offense the court shall instruct the jury in writing upon all questions of law arising in the case that are necessary for their information in giving the verdict.” Rule 28.02(a).2 “‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of the offense charged.’” State v. Cooper, 215 S.W.3d 123, 125-26 (Mo. banc 2007) (quoting State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995); State v. Krause, 682 S.W.2d 55, 56 (Mo.App. 1984)).

2022Consistent with due-process notice principles, the Missouri Supreme Court has held that “[o]ne cannot be charged with one offense, or with one form of an offense, and convicted of another.” State v. White, 431 S.W.2d 182, 186 (Mo. 1968); accord State v. Lee, 841 S.W.2d 648, 650 (Mo. 1992). “[W]hen a crime may be committed by any of several methods, . . . the method or methods submitted in the verdict directing instruction must be among those alleged in the information.” Lee, 841 S.W.2d at 650 (internal quotation marks omitted; citing State v. Shepard, 442 S.W.2d 58, 60 (Mo. 1969), and State v.

2022The purpose of these rules is “to foster and protect the primary purpose of the information, that of providing notice to the accused so that the accused may prepare an adequate defense against the charges brought.” Id. 8 To constitute reversible error, a variance between a charging instrument and a verdict-directing instruction must be “fatal,” or, in other words, both “material” and “prejudicial.” State v. Tillman, 289 S.W.3d 282, 292 (Mo. App. W.D. 2009). “‘Variances are material when they affect whether the accused received adequate notice,’” or whether “the information reasonably inform[ed

2025“A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.” State v. Stover, 388 S.W.3d 138, 153-54 (Mo. 2012) (cleaned up).

2024Analysis “A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.” State v. Stover, 388 S.W.3d 138, 153-54 (Mo. banc 2012) (citing State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007)).

1987There is no MAI instruction pertaining to this statute; however, “in cases of statutory violation it is generally sufficient to couch a verdict directing instruction substantially in the language of the statute unless the statutory language requires construction.” May v. Bradford, 369 S.W.2d 225, 228 (Mo.1963).

1980May v. Bradford, 369 S.W.2d 225, 228 (Mo.1963).

2010Rule 28.02(f); see State v. Newhart, 503 S.W.2d 62, 69 (Mo.App.1973) (holding that in relation to verdict directing instructions “there is one principle of law ... so basic and fundamental that its violation irrevocably *756 precludes a finding of harmless error — a verdict directing instruction must require a finding of all the constituent facts necessary to constitute an offense in order to support a conviction”).

1981It has been observed “[tjhere is one principle of law relative to verdict directing instructions in criminal cases so basic and fundamental that its violation irrevocably precludes a finding of harmless error — a verdict directing instruction must require a finding of all the constituent facts necessary to constitute an offense in order to support a conviction.” State v. Newhart, 503 S.W.2d 62, 69 (Mo.App.1973).

2004There, the verdict directing instruction submitted as the act of negligence whether “defendant performed a midforceps rotation delivery when such procedure was not medically proper.” 655 S.W.2d at 72 (italics added).

1995The verdict directing instruction must “submit sufficient ultimate facts so as to make it clear to the jury what facts it must find in order to return a verdict against defendant.” Grindstaff v. Tygett, 655 S.W.2d 70, 74 (Mo.App.1983).

1991Village’s fifth point on appeal states in its entirety, “The trial court erred in improperly instructing the jury on Village’s counterclaim by refusing Village’s proposed verdict director and substituting the court’s own verdict director, which by its terms violated M.A.I. 26.06 and prejudiced Village.” Village argues that, because the trial court omitted from Instruction 11 the underlined phrases in Instruction “B,” it im-permissibly deviated from MAI 26.06 because “[w]here the terms of an agreement are in dispute the verdict directing instruction must hypothesize the proponent’s version of t

1991“Where a dispute exists as to one or more of the terms of the agreement relied on by the claimant to support recovery, that issue must be hypothesized in the verdict directing instruction.” Braun, supra, 585 S.W.2d at 107 ; Schlemer v. Connell Agencies, 741 S.W.2d 307, 308 (Mo.App.1987).

1974It points out that some verdict directing in-structons have at their end an appropriate clause negating contributory negligence as required by Moore v. Ready Mixed Concrete Company, supra, but that when such is not the case, the verdict directing instruction should be modified to negate the affirmative defense in issue.

1970As to plaintiff’s first assignment of error, it is to be acknowledged — and plaintiff does not doubt — that where the defense of contributory negligence has been pleaded and is supported by some substantial proof, and “where the court gives a defendant’s instruction submitting his affirmative defense of contributory negligence, it is error to give a verdict-directing instruction for plaintiff which fails to refer to or negative his contributory negligence.” Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 24 [6]; Norris v. Winkler, Mo.App., 402 S.W.2d 24, 31 [6]; Myers v. Buchanan, M

2010State v. Winn, 324 S.W.2d 637, 640-41 (Mo.1959) (a verdict-directing instruction that excluded the idea of self-defense was reversible error); see also State v. Pruett, 425 S.W.2d 116, 118 (Mo.1968) (citing several of this Court’s cases as holding that “[tjhere is no question that a verdict-directing instruction which purports to cover the whole case and ignores a defense supported by the evidence is erroneous and constitutes reversible error”) (emphasis added).

2010State v. Winn, 324 S.W.2d 637, 640-41 (Mo. 1959) (a verdict-directing instruction that excluded the idea of self-defense was reversible error); see also State v. Pruett, 425 S.W.2d 116, 118 (Mo.1968) (citing several of this Court's cases as holding that "[t]here is no question that a verdict-directing instruction which purports to cover the whole case and ignores a defense supported by the evidence is erroneous and constitutes reversible error") (emphasis added).

2020Marley complains that Instruction No. 6 omitted paragraph Third. “‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.’” State v. Berry, 506 S.W.3d 357, 362 (Mo. App. W.D. 2016) (quoting State v. Zetina- Torres, 482 S.W.3d 801, 811 (Mo. banc 2016)). “‘A violation of due process arises when an instruction relieves the State of its burden of proving each and every element of the crime and allows the State to obtain a conviction without the jury deliberati

2020Marley complains that Instruction No. 6 omitted paragraph Third. “‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.’” State v. Berry, 506 S.W.3d 357, 362 (Mo. App. W.D. 2016) (quoting State v. Zetina- Torres, 482 S.W.3d 801, 811 (Mo. banc 2016)). “‘A violation of due process arises when an instruction relieves the State of its burden of proving each and every element of the crime and allows the State to obtain a conviction without the jury deliberati

2006It is “generally sufficient to couch a verdict directing instruction substantially in the language of the statute.” Rooney v. Lloyd Metal Products Co., 458 S.W.2d 561, 570 (Mo.1970).

1980See Rooney v. Lloyd Metals Products Co., 458 S.W.2d 561, 570 (Mo.1970); Miles v. Gaddy, 357 S.W.2d 897, 902 (Mo. banc 1962).

1995Gaffher v. Alexander, 331 S.W.2d 622, 627 (Mo.1960); Kettler v. Hampton, 365 S.W.2d 518, 522 (Mo.1963); Anthony v. Jennings, 368 S.W.2d 533, 538 (Mo.App.1963).

1965Aside from such considerations, however, we are of the view that plaintiff’s factual hypothesis was sufficient. 7 Although, as we have said, a verdict-directing instruction must hypothesize and require a finding of *274 all the elements essential in law to establish the proposition upon which the verdict is based, Gaffner v. Alexander, Mo., 331 S.W.2d 622, 627 [3]; Carson v. Evans, 351 Mo. 376, 379 , 173 S.W.2d 30, 31 [1]; Ritchie v. Burton, Mo.App., 292 S.W.2d 599, 609-610 [13], these instructions do not submit a bald legal conclusion to the jury.

1992Bunch v. McMillian, 568 S.W.2d 809, 811 [1] (Mo.App.1978); Shelton v. Bruner, 449 S.W.2d 673, 676 (Mo.App.1969).

1972To support this contention, defendants cite a number of cases, including Wolfe v. Harms, Mo., 413 S.W.2d 204, 209-210 [1] and Shelton v. Bruner, Mo.App., 449 S.W.2d 673, 676 [1], all of which hold that there must be evidence to support every hypothesis submitted in a verdict-directing instruction.

1980See Rooney v. Lloyd Metals Products Co., 458 S.W.2d 561, 570 (Mo.1970); Miles v. Gaddy, 357 S.W.2d 897, 902 (Mo. banc 1962).

1975Miles v. Gaddy, 357 S.W.2d 897, 902 [5] (Mo. banc 1962); May v. Bradford, 369 S.W.2d 225, 228-229 [7, 8] (Mo.1963); Rooney v. Lloyd Metal Products Company, 458 S.W.2d 561, 570 [10] (Mo.1970); Matta v. Welcher, 387 S.W.2d 265, 273-274 [12, 13] (Mo.App.1965).

2023To constitute reversible error, a variance between a charging instrument and a verdict-directing instruction must be “fatal,” or in other words, both “material” and “prejudicial.” Id. (citing State v. Tillman, 289 S.W.3d 282, 292 (Mo. App. W.D. 2009)).

2022The purpose of these rules is “to foster and protect the primary purpose of the information, that of providing notice to the accused so that the accused may prepare an adequate defense against the charges brought.” Id. 8 To constitute reversible error, a variance between a charging instrument and a verdict-directing instruction must be “fatal,” or, in other words, both “material” and “prejudicial.” State v. Tillman, 289 S.W.3d 282, 292 (Mo. App. W.D. 2009). “‘Variances are material when they affect whether the accused received adequate notice,’” or whether “the information reasonably inform[ed

2021Co., 936 S.W.2d 797, 800 (Mo. 1997); first alteration added by Hervey).

2012Co., 936 S.W.2d 797, 800 (Mo. banc 1997).

1965It is true that there was a divergence in the testimony as to the speed of the motorcycle at the time of the collision, and the submission in Instruction 3 was that George Krudwig “op erated his motorcycle on the paved surface of the service station referred to in evidence, at a rate of speed which was excessive and dangerous under the circumstances then and there existing.” Appellants rely on the rule announced in Hooper v. Conrad, 364 Mo. 176 , 260 S.W.2d 496 , where it was stated: “Where the evidence presents two or more divergent sets of essential facts, under one or more of which plaintif

1965It is true that there was a divergence in the testimony as to the speed of the motorcycle at the time of the collision, and the submission in Instruction 3 was that George Krudwig “op erated his motorcycle on the paved surface of the service station referred to in evidence, at a rate of speed which was excessive and dangerous under the circumstances then and there existing.” Appellants rely on the rule announced in Hooper v. Conrad, 364 Mo. 176 , 260 S.W.2d 496 , where it was stated: “Where the evidence presents two or more divergent sets of essential facts, under one or more of which plaintif

2021Failure to do so is prejudicial error.” Penberthy v. Nancy Transp., Inc., 804 S.W.2d 404, 407 (Mo. App. E.D. 1991) (citations and internal quotation marks omitted).

2017“Where a dispute exists as to one or more of the terms of the agreement relied on by the claimant to support recovery, that issue must be hypothesized in the verdict directing instruction.” Id. (internal quotations and citation omitted).

2023Legal Principles “In every trial for a criminal offense the court shall instruct the jury in writing upon all questions of law arising in the case that are necessary for their information in giving the verdict.” Rule 28.02(a).2 “‘A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of the offense charged.’” State v. Cooper, 215 S.W.3d 123, 125-26 (Mo. banc 2007) (quoting State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995); State v. Krause, 682 S.W.2d 55, 56 (Mo.App. 1984)).

2007This instruction is identical to MAI-CR 323.25, the burglary in the first-degree instruction, except that it omits the word “unlawfully” from the phrase “defendant knowingly entered unlawfully.” “A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.” State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc *126 1995); State v. Krause, 682 S.W.2d 55, 56 (Mo.App.1985) (reversing defendant’s conviction for first-degree burglary because verdict director omitted the wo