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State v. Mayer10/5/1999
eater offense. It might be argued that the section 565.024 offense is expressly made a lesser-included offense by the language of the statute, and that there is ample evidence of recklessness, so that instructing down is required.
We need not pursue this point, however, because cases uniformly hold that a lesser-included instruction is not required unless there is a basis in the evidence for finding the defendant not guilty of the greater offense, but nevertheless guilty of the lesser. Here the first element of the greater offense required the jury to find that the defendant was driving while intoxicated. See State v. Coleman, 949 S.W.2d 137, 142 (Mo. App. 1997). If the jury did not make that finding there was no basis for conviction of either the greater or the lesser offense, and the jury should have found the defendant not guilty under Count I. The second element of the greater offense called for a finding that the defendant collided with another car, "killing Amanda Beiter." If the jury did not make this finding, then again it should have returned a verdict of not guilty, because it is not charged that anybody but Amanda Beiter was killed. If so, there could be no rationality in a finding that the defendant "recklessly caused the death of Amanda Beiter." Thus, if the jury acquits on the greater offense, there is no rational basis for finding guilt of the lesser offense submitted by Requested Instruction C. If the jury found the defendant not guilty under Instruction 8, there would be nothing left for it to deliberate on.
Although lesser-included offenses should be instructed upon if there is any hypothesis under which there could be conviction of the lesser following acquittal of the greater, the evidence in this case provides no basis at all for such findings. To instruct on the lesser offense under the circumstances of this case would tend to deprive the prosecutor of the discretion discussed earlier as to what is to be charged. The court did not err in refusing Requested Instruction C.
The judgment is affirmed.
Separate Opinion:
Nonep
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