proffered instruction in Missouri

2023CNH’s 10 argument fundamentally misunderstands that CNH bore the burden to submit a proffered instruction in proper form.3 Marion, 199 S.W.3d at 889 . “[A]lthough a party is entitled to have its own instruction submitted to the jury if it is correct, this entitlement does not impose a duty on the trial court to draft a proper instruction when the parties fail to submit a correct instruction.” Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845 , 852 n.5 (Mo. banc 2018) (quoting Cluck, 367 S.W.3d at 34 ) (emphasis added).

2023“The imperative ‘shall’ in Rule 70.02(a) does not admit discretion on the part of the trial judge if the proffered instruction is supported by the evidence and the law and is in proper form.” Id. 1 Rule references are to the Missouri Supreme Court Rules (2018). 6 Analysis CNH argues on appeal that it should have been permitted an instruction on comparative fault.

2025“In order for an appellate court to reverse a criminal case based on a claim of instructional error, a defendant must demonstrate the trial court committed instructional error and that the error was so prejudicial that it deprived him of a fair trial.” Fowler, 690 S.W.3d at 210 (citing State v. Sanders, 522 S.W.3d 212, 215 (Mo. banc 2017)). “[A]n appellate court will affirm the trial court’s refusal to give a proffered instruction ‘if the trial court was correct for any reason.’” Id. (quoting Sanders, 522 S.W.3d at 215 ).

2025“In order for an appellate court to reverse a criminal case based on a claim of instructional error, a defendant must demonstrate the trial court committed instructional error and that the error was so prejudicial that it deprived him of a fair trial.” Fowler, 690 S.W.3d at 210 (citing State v. Sanders, 522 S.W.3d 212, 215 (Mo. banc 2017)). “[A]n appellate court will affirm the trial court’s refusal to give a proffered instruction ‘if the trial court was correct for any reason.’” Id. (quoting Sanders, 522 S.W.3d at 215 ).

2025Only when “a party’s proffered instruction involving a nested or non- nested lesser included offense alleges the defendant engaged in the same criminal conduct as alleged in the greater charged offense” do these subsections collectively obligate a trial court to give a lesser-included offense instruction when “three circumstances are met: (1) the party timely requests it; (2) there is a [rational] basis in the evidence for acquitting the defendant of the greater charged offense; and (3) there is a [rational] basis in the evidence for convicting the defendant of the lesser[-]included offense[.]

2024See Brown, 524 S.W.3d at 46-48 (applying this rule to a non-nested lesser included offense); State v. Jackson, 433 S.W.3d 390, 392, 395-405 (Mo. banc 2014) (applying this rule to a nested lesser included offense).

2021P’ship, L.L.L.P. v. City of Columbia, 307 S.W.3d 243, 252 (Mo.App. 2010).

2019P'ship, L.L.L.P. v. City of Columbia, 307 S.W.3d 243, 252 (Mo. App. W.D. 2010) (citing Marion v. Marcus, 199 S.W.3d 887, 893-94 (Mo. App. W.D. 2006)).

2025Only when “a party’s proffered instruction involving a nested or non- nested lesser included offense alleges the defendant engaged in the same criminal conduct as alleged in the greater charged offense” do these subsections collectively obligate a trial court to give a lesser-included offense instruction when “three circumstances are met: (1) the party timely requests it; (2) there is a [rational] basis in the evidence for acquitting the defendant of the greater charged offense; and (3) there is a [rational] basis in the evidence for convicting the defendant of the lesser[-]included offense[.]

2024However, pursuant to the reasoning and holdings in the Missouri Supreme Court’s decision in State v. Sanders, 522 S.W.3d 212 , and the Western District’s decision in State v. Collins, 154 S.W.3d 486 (Mo. App. W.D. 2005), 8 both explained in detail below, this general rule only applies when the party’s proffered instruction alleges the defendant engaged in the same criminal conduct as alleged in the greater charged offense. b.

2017The “trial court’s rejection of a proffered instruction should be affirmed ‘[i]f the trial court was correct ... for any reason[.]’ ” Id. (quoting State v. White, 936 S.W.2d 793, 794 (Mo. banc 1997)); see also State v. Bradley, 811 S.W.2d 379, 383 (Mo. banc 1991) (judgment will be affirmed on any sustainable ground even if the stated reason for a circuit court’s ruling is incorrect).

2016It is not, however, necessary to address Mr. Blurton’s claim that he was entitled to submission of the lesser included offense of felony murder because a trial court’s rejection of a proffered instruction should be affirmed “[i]f the trial court was correct ... for any reasonf.]” State v. White, 936 S.W.2d 793, 794 (Mo. banc 1997).

2007City of Sullivan v. Truckstop Rests., Inc., 142 S.W.3d 181, 197 (Mo.App.E.D.2004).

2006E.D.2002) (holding that a verdict directing instruction is erroneous if it is not supported by the evidence); City of Sullivan, 142 S.W.3d at 197 (finding that a proffered instruction must be supported by substantial evidence).

2025“In order for an appellate court to reverse a criminal case based on a claim of instructional error, a defendant must demonstrate the trial court committed instructional error and that the error was so prejudicial that it deprived him of a fair trial.” Fowler, 690 S.W.3d at 210 (citing State v. Sanders, 522 S.W.3d 212, 215 (Mo. banc 2017)). “[A]n appellate court will affirm the trial court’s refusal to give a proffered instruction ‘if the trial court was correct for any reason.’” Id. (quoting Sanders, 522 S.W.3d at 215 ).

2025Only when “a party’s proffered instruction involving a nested or non- nested lesser included offense alleges the defendant engaged in the same criminal conduct as alleged in the greater charged offense” do these subsections collectively obligate a trial court to give a lesser-included offense instruction when “three circumstances are met: (1) the party timely requests it; (2) there is a [rational] basis in the evidence for acquitting the defendant of the greater charged offense; and (3) there is a [rational] basis in the evidence for convicting the defendant of the lesser[-]included offense[.]

2025Only when “a party’s proffered instruction involving a nested or non- nested lesser included offense alleges the defendant engaged in the same criminal conduct as alleged in the greater charged offense” do these subsections collectively obligate a trial court to give a lesser-included offense instruction when “three circumstances are met: (1) the party timely requests it; (2) there is a [rational] basis in the evidence for acquitting the defendant of the greater charged offense; and (3) there is a [rational] basis in the evidence for convicting the defendant of the lesser[-]included offense[.]

2024“A nested lesser included offense consists of a subset of the elements of the greater [charged] offense, rendering it impossible to commit the greater without necessarily committing the nested lesser included offense.” State v. Brown, 524 S.W.3d 44, 47 (Mo. banc 2017) (citation, internal quotations, and emphasis omitted); see also section 556.046.1(1) RSMo 2016 5 5 Unless otherwise indicated, all further statutory references are to RSMo 2016. 6 (“[a]n offense is [] included when: . . . [i]t is established by proof of the same or less than all the facts required to establish the commission of t

2024Standard of Review This Court’s review of “a court’s refusal to give a proffered instruction pursuant to Section 556.046 is de novo, meaning this Court evaluates whether the instruction was supported by the evidence and the law.” State v. Welch, 600 S.W.3d 796 , 806 (Mo. App. E.D. 2020).

2021See, e.g., State v. Angle, 146 S.W.3d 4, 12 (Mo. App. W.D. 2004) (holding that former § 195.420 (now § 579.110) prohibiting the possession of “any” listed chemical precursors for methamphetamine allowed separate charges for each such chemical possessed as evidenced by the statute’s subsequent reference to “that chemical”). 11 We review “a court’s refusal to give a proffered instruction . . . de novo, meaning this [c]ourt evaluates whether the instruction was supported by the evidence and the law.” State v. Welch, 600 S.W.3d 796 , 806 (Mo. App. E.D. 2020).

2023Because Bellamy’s instruction both failed to comply with MAI-CR 4th 420.42 and omitted an essential element of the offense, the trial court did not err in refusing to give that instruction. 13 Because we will affirm a trial court’s rejection of a proffered instruction “if the trial court was correct . . . for any reason,” Sanders, 522 S.W.3d at 215 (quoting Blurton, 484 S.W.3d at 766 ), Point IV is denied. 12 Omission of this element by the State was the basis for Bellamy’s claim of error in Point II. 13 Additionally, “a defendant cannot complain about matters he himself brings into the case.”

2017The “trial court’s rejection of a proffered instruction should be affirmed ‘[i]f the trial court was correct ... for any reason[.]’ ” Id. (quoting State v. White, 936 S.W.2d 793, 794 (Mo. banc 1997)); see also State v. Bradley, 811 S.W.2d 379, 383 (Mo. banc 1991) (judgment will be affirmed on any sustainable ground even if the stated reason for a circuit court’s ruling is incorrect).

2007Myers, 914 S.W.2d at 840 .

1999Myers v. Pitney Bowes, Inc., 914 S.W.2d 835, 839-40 [9] (Mo.App.

2025“This Court views the evidence in the light most favorable to submission of the instruction.” Stevens v. Markirk Constr., Inc., 454 S.W.3d 875, 880 (Mo. banc 2015).

2024Accordingly, Defendant’s proffered instruction was improper under Sanders, 522 14 All further references to MAI-CR 419.16 and its Notes on Use are to the version effective from July 1, 2017, to the present. 15 All further references to 28 MOPRAC section 28:7.3.i are to the January 2024 update. 12 S.W.3d at 213-19, Collins, 154 S.W.3d at 489-97 , Note on Use No. 4 to MAI-CR 419.16, and 28 MOPRAC section 28:7.3.i.

2024“A nested lesser included offense consists of a subset of the elements of the greater [charged] offense, rendering it impossible to commit the greater without necessarily committing the nested lesser included offense.” State v. Brown, 524 S.W.3d 44, 47 (Mo. banc 2017) (citation, internal quotations, and emphasis omitted); see also section 556.046.1(1) RSMo 2016 5 5 Unless otherwise indicated, all further statutory references are to RSMo 2016. 6 (“[a]n offense is [] included when: . . . [i]t is established by proof of the same or less than all the facts required to establish the commission of t

2024Analysis “Missouri law requires instruction on a lesser included offense when (1) a party timely requests the instruction; (2) there is a basis in the evidence for acquitting the defendant of the charged offense; and (3) there is a basis in the evidence for convicting the defendant of the lesser included offense for which the instruction is requested.” Id. at 806–07 (quoting State v. Smith, 522 S.W.3d 221, 225 (Mo. banc 2017)) (internal quotation marks omitted).

2024Relevant Law Pertaining to Nested Versus Non-Nested Lesser Included Offenses Missouri Courts often characterize a lesser included offense at issue in a proffered instruction as “nested” or “non-nested.” See, e.g., State v. Jensen, 524 S.W.3d 33, 37-38 (Mo. banc 2017).

2024Relevant Law Pertaining to Nested Versus Non-Nested Lesser Included Offenses Missouri Courts often characterize a lesser included offense at issue in a proffered instruction as “nested” or “non-nested.” See, e.g., State v. Jensen, 524 S.W.3d 33, 37-38 (Mo. banc 2017).

2023Because Bellamy’s instruction both failed to comply with MAI-CR 4th 420.42 and omitted an essential element of the offense, the trial court did not err in refusing to give that instruction. 13 Because we will affirm a trial court’s rejection of a proffered instruction “if the trial court was correct . . . for any reason,” Sanders, 522 S.W.3d at 215 (quoting Blurton, 484 S.W.3d at 766 ), Point IV is denied. 12 Omission of this element by the State was the basis for Bellamy’s claim of error in Point II. 13 Additionally, “a defendant cannot complain about matters he himself brings into the case.”

2021See id. 22 The MTCM has four prongs: “(1) the nature of the particular losses make it impossible or highly impractical to determine them with a reasonable degree of accuracy; (2) the plaintiff's bid or estimate was realistic; (3) its actual costs are reasonable; and (4) it was not responsible for the added expenses.” Penzel I, 544 S.W.3d at 236 (internal quotation omitted).

2021See, e.g., State v. Angle, 146 S.W.3d 4, 12 (Mo. App. W.D. 2004) (holding that former § 195.420 (now § 579.110) prohibiting the possession of “any” listed chemical precursors for methamphetamine allowed separate charges for each such chemical possessed as evidenced by the statute’s subsequent reference to “that chemical”). 11 We review “a court’s refusal to give a proffered instruction . . . de novo, meaning this [c]ourt evaluates whether the instruction was supported by the evidence and the law.” State v. Welch, 600 S.W.3d 796 , 806 (Mo. App. E.D. 2020).

2021See id. 22 The MTCM has four prongs: “(1) the nature of the particular losses make it impossible or highly impractical to determine them with a reasonable degree of accuracy; (2) the plaintiff's bid or estimate was realistic; (3) its actual costs are reasonable; and (4) it was not responsible for the added expenses.” Penzel I, 544 S.W.3d at 236 (internal quotation omitted).

2020SKMDV Holdings, Inc. v. Green Jacobson, P.C., 494 S.W.3d 537, 545 (Mo. App. E.D. 2016). “[I]f the statutory requirements for giving such an instruction are met, a failure to give a requested instruction is reversible error.” State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc 2014).

2019See Satterlee, 82 S.W.2d at 74 (although a plaintiff may proceed under subsection 1 or subsection 3 to show negligence per se, a plaintiff’s ability to proceed under subsection 3 is “paramount.”); see also Ploch v. Hamai, 213 S.W.3d 135, 142 (Mo. App. E.D. 2006) (the plaintiff was prejudiced by the trial court’s refusal to submit the proffered instruction “by not allowing the jury to consider [the defendant’s] potential liability on an issue sufficiently presented at trial”).