STATE OF MISSOURI v. TERRELL EUGENE PRINE

STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) No. SD32940
) Filed: January 13, 2015
TERRELL EUGENE PRINE, )
)
Appellant. )

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

Honorable David B. Mouton, Circuit Judge

AFFIRMED

Terrell Eugene Prine (“Prine”),1 appeals his conviction of the class A felony of

first-degree robbery, pursuant to section 569.020; and the unclassified felony of armed criminal

action, pursuant to section 571.015.2 We affirm the judgment of the trial court.

1
In the record, Prine is sometimes referred to as “Bud.”
2
All references to statutes are to RSMo 2000, unless otherwise indicated.
 Facts and Procedural Background

Prine does not challenge the sufficiency of the evidence to support his conviction. This

Court views the evidence in the light most favorable to the verdict. State v. Perry, 275 S.W.3d

237, 242 (Mo. banc 2009). We accept as true all facts and inferences favorable to the verdict,

and we disregard evidence and inferences to the contrary. State v. Oliver, 293 S.W.3d 437, 444

(Mo. banc 2009). In light of these principles, the following evidence was adduced at trial.

On the evening of January 14, 2012, Prine, intoxicated, had his girlfriend drive him to the

home of Bradley Clark (“Clark”) to collect fifteen dollars that Clark owed Prine. When Clark

refused to pay Prine because Clark only had a fifty dollar bill, Prine became angry and told Clark

he was going out to his girlfriend’s car to retrieve his gun. Prine returned to Clark’s home with

his gun (wearing gloves), kicked in the front door, took two steps inside, and fired the gun. Prine

took the fifty dollars from Clark, then threatened to kill a second man in the house, Gary

Mitchell (“Mitchell”), unless Mitchell gave Prine his money. Prine left Clark’s house in his

girlfriend’s car after taking about two hundred dollars from Mitchell, but was later apprehended

and arrested.3

Police found a bullet hole in Clark’s home during a search, found a glove worn by Prine

at the time of the shooting, retrieved the gun fired by Prine, as well as the shell casing from the

bullet Prine fired.

On April 24, 2012, a special prosecutor was appointed for the State due to a conflict of

interest within the office of the Jasper County Prosecuting Attorney.

3
Clark was a long-time family friend and had known Prine since he was a baby. Mitchell and Prine were cousins;
Mitchell was also related to Clark.

2
 A jury trial was held on June 18, 2013. At the close of all the evidence, an instruction

conference was held in which Prine’s counsel offered Instruction 5A,4 a lesser-included-offense

instruction for second-degree robbery. When the trial court offered counsel for Prine an

opportunity to make a record regarding the instruction, the following transpired:

[PRINE’S ATTORNEY]: Yes, Judge. I believe there’s evidence
of intoxication of Mr. Clark, and I believe Mr. Mitchell. Both testified that Mr.
Prine was not himself, that he was intoxicated, under the influence. I would ask
that the Court offer Instruction - I have marked it as 5A, Judge, you’re marking it
as A, is that right[?]

BY THE COURT: Yes. [STATE], any record you wish to
make[?]

[STATE]: Yes. Your Honor, the only difference between what
the defense is submitting in its proposed #A and robbery first that is in Instruction
No. 5, which is properly given by the Court, they’re attempting to negate, as I
understand, the elements of - the intent element of the crime on purpose, that he
was intoxicated therefore purposely did this.

If you recall the testimony[,] the defense is I just didn’t do it.
Period. In other words, he didn’t do the robbery, number one. So the only
difference between robbery first and robbery second is paragraph four in the two
instructions. Robbery first requires the additional element of using - the MAI
would say you can charge it by doing deadly weapon or dangerous instrument in
the commission of the crime.

4
INSTRUCTION NO. [5]A
As to Count I, if you do not find the defendant guilty of robbery in the first degree, you
must consider whether he is guilty of robbery in the second degree.
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 14th day of January, 2012, in the County of Jasper, State of
Missouri, the defendant took $50.00 in cash from Brad Clark, which was property owned by Brad
Clark, and
Second, that defendant did so for the purpose of withholding it from the owner
permanently, and
Third, that defendant in doing so threated [sic] the immediate use of physical force on or
against Brad Clark for the purpose of preventing resistance to taking of the property, then you will
find the defendant guilty under Count I of robbery in the second degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each
and all of these propositions, you must find the defendant not guilty of that offense.

3
 The specific intent for both of those is purposely, Judge, so I don’t
think you go down to a second-degree robbery and eliminate the use of a weapon
in the commission of a crime just because you’re drunk. Plus the defendant is
saying I just didn’t do this anyway. I don’t know how you get - it seems like a
contradictory argument. If you believe I did it then negate the elements of
robbery by - down to second-degree robbery, forget about the gun, and let me off
with a second-degree because I was drunk. It’s the same standard for both.

BY THE COURT: I agree. As I indicated in chambers, there is, I
don’t think, any evidence at all in the case, much less substantial evidence to
support the giving of a second degree robbery instruction. I don’t believe
anybody gives a version that he was there and robbed Brad Clark but did so
without the use of a gun or a dangerous instrument. And so for all of those
reasons I am refusing the proffered instruction, which I have marked as #A,
323.04, and that is the only instruction - that’s the only instruction offered by the
defense.

The jury found Prine guilty of robbery in the first degree and armed criminal action. The

jury recommended Prine be sentenced to ten years in the Missouri Department of Corrections for

the charge of robbery in the first degree, and three years in the Missouri Department of

Corrections for the charge of armed criminal action. The trial court ruled the sentences would

run consecutively after finding the recommendation of the jury was appropriate and within the

limits of the law.

On July 15, 2013, Prine filed a “Motion for Judgment of Acquittal Notwithstanding the

Verdict, or, in the Alternative, Motion for New Trial” asserting that:

The trial court clearly erred and/or abused its discretion by refusing to submit
[Prine]’s jury instruction NUMBER 5A on ROBBERY IN THE SECOND
DEGREE MAI-CR 3rd 323.04. Gary Mitchell and Bradley Clark testified they
had known Mr. Prine all his life and had never before observed him [to] act the
way he did on 14 January 2012. Clark opined Prine appeared to be under the
influence of something. He stated Mr. Prine drank several alcoholic beverages in
his presence. Mr. Prine admitted to drinking alcohol that evening as well. The
Defense asserts Instruction Number 5A should have been an option for the jury
and refusing to submit same violates Mr. Prine’s rights to Due Process, Fair Trial,
a Fair and Impartial Jury under the Fifth, Sixth and Fourteenth Amendments of
the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri
Constitution[.]

This appeal followed.
4
 In his four points on appeal, Prine contends the trial court erred in: (1) refusing to

instruct jurors as to Prine’s lesser-included-offense instruction for robbery in the second degree

because it deprived Prine of a fair trial before a properly instructed jury in that robbery in the

second degree is a lesser-included offense of the charged robbery in the first degree, and there

was a basis for the jury to acquit on the offense charged but still convict on the lesser offense;

(2) in sustaining the State’s objection to Prine’s counsel questioning Mitchell about his pending

criminal charges because Prine was prevented from exposing Mitchell’s potential bias and

prejudice; (3) assessing court costs against Prine and ordering him to pay $31,065.98 for the

special prosecutor because Prine was indigent; and (4) assessing court costs against Prine in the

amount of $31,027.50 for the costs of a special prosecutor because this amount was prohibited

by section 56.130 and not reasonable.

Point I: Lesser-Included Instruction

Standard of Review

“This Court reviews de novo a trial court’s decision whether to give a requested jury

instruction under section 556.046, RSMo Supp.2002[.]” State v. Jackson, 433 S.W.3d 390, 395

(Mo. banc 2014) (footnote omitted). A preliminary issue is preservation; to “preserve a claim of

instructional error for review, counsel must make specific objections to the allegedly erroneous

instruction at trial and in a motion for new trial.” State v. Steinmann, 431 S.W.3d 495, 498

(Mo.App. E.D. 2014); Rule 28.03.

Analysis

After Prine filed his brief in this appeal, our Supreme Court ruled that a trial court cannot

refuse a requested nested-lesser instruction “based solely on its view of what evidence a

reasonable juror must believe or what inferences a reasonable juror must draw.” Jackson, 433

5
S.W.3d at 392.5 Thereafter, we allowed Prine to amend his brief to also seek reversal based

upon Jackson and its companion case, State v. Pierce, 433 S.W.3d 424 (Mo. banc 2014).

Jackson held that “in a criminal case, the trial court cannot refuse a defendant’s request

for . . . [a] ‘nested’ lesser offense instruction based solely on its view of what evidence a

reasonable juror must believe or what inferences a reasonable juror must draw.” 433 S.W.3d at

392 (our emphasis). This requirement was reiterated in Jackson, then again in Pierce:

If the defendant requests that the jury be instructed on a lesser included offense
consisting of all but one of the elements required for the greater offense, is the
trial court allowed to refuse to give that instruction solely because it determines
that no reasonable juror could refuse to find that the differential element had been
proved beyond a reasonable doubt? The answer is no.

Id. at 402 (our emphasis).

As in Jackson, therefore, the Court holds that where the defendant
requests the trial court to instruct the jury on a ‘nested’ lesser offense, the trial
court cannot refuse to give that instruction solely because the court concludes that
the evidence is so overwhelming that all reasonable jurors must find the
differential element proved beyond a reasonable doubt.

Pierce, 433 S.W.3d at 433 (our emphasis).

Prine sought a second-degree robbery instruction, but his sole basis was a claim that he

was intoxicated at the time of the offense. The trial court correctly agreed with the prosecutor’s

argument against that theory (i.e., “forget about the gun, and let me off with a second-degree

because I was drunk[,]” to quote the instruction conference record). “Missouri has defined all of

its criminal offenses so as to render voluntary intoxication legally irrelevant.” State v. Fanning,
5
Second-degree robbery is a “nested” lesser-included offense of first-degree robbery because
second-degree robbery requires the state to prove beyond a reasonable doubt that the defendant
took the victim’s property by force. First-degree robbery requires proof of those same elements
and proof beyond a reasonable doubt of the differential element that the victim reasonably
believed the defendant was using or threatening to use a weapon. By definition, therefore, if the
evidence in a specific case is sufficient to allow a reasonable juror to find the defendant guilty of
robbery first, that evidence also must be sufficient to allow a reasonable juror to find the defendant
guilty of robbery second.
Jackson, 433 S.W.3d at 404 (emphasis in original).

6
939 S.W.2d 941, 947 (Mo.App. W.D. 1997). The trial court opined further that the evidence did

not support the request and “for all of those reasons” rejected the proffered instruction.

Prine cited a single, specific, legally insufficient basis for his instruction request, which

the trial court correctly rejected. Fanning, 939 S.W.2d at 947. That the trial court volunteered

further observations, now flawed in hindsight after Jackson and Pierce, does not render wrong

its ruling on Prine’s stated request; nor, did the trial court “refuse to give that instruction solely

because the court conclude[d] that the evidence [was] so overwhelming that all reasonable jurors

must find the differential element proved beyond a reasonable doubt.” Pierce, 433 S.W.3d at

433 (our emphasis). On the record before us, the trial court did not err in denying Prine’s

instruction request.

Even were it preserved, therefore, this point would fail. However, Prine cannot even

“assign as error the . . . failure to give instructions . . . unless [he] object[ed] thereto . . . stating

distinctly the matter objected to and the grounds of the objection. . . . The objections must also

be raised in the motion for new trial . . . .” Rule 28.03.6 See Steinmann, 431 S.W.3d at 498;

State v. Oudin, 403 S.W.3d 693, 696 (Mo.App. W.D. 2013).

Prine’s sole basis for requesting a second-degree robbery instruction, and his sole theory

of instructional error in his new trial motion, was intoxication. For that matter, neither Point I

nor its theory of error was included in Prine’s original brief in this Court.

Point I facially violates Rule 28.03 by assigning a different theory of error on appeal.

Prine cannot broaden or change his theory of error on appeal, and we will not “convict the trial

court of error on issues that were not presented below and raised for the first time here.” State v.

Lane, 415 S.W.3d 740, 750 (Mo.App. S.D. 2013). As repeatedly stated by our appellate courts:

6
All rule references are to Missouri Court Rules (2014).

7
 ‘Because an appellate court is not a forum in which new points will be
considered, but is merely a court of review to determine whether the rulings of the
trial court, as there presented, were correct, a party seeking the correction of error
must stand or fall on the record made in the trial court, thus it follows that only
those objections or grounds of objection which were urged in the trial court,
without change and without addition, will be considered on appeal.’

State v. Davis, 348 S.W.3d 768, 770 (Mo. banc 2011) (quoting State v. Thomas, 969 S.W.2d

354, 355 (Mo.App. W.D. 1998), and State ex rel. Selby v. Day, 929 S.W.2d 286, 288 (Mo.App.

S.D. 1996)).7

Prine has asserted in this Court that his “counsel had no way of knowing that the

Missouri Supreme Court would change the rules as to when a trial court is required to give a

lesser-included instruction.” We consider ourselves bound by our supreme court’s view

otherwise—that Jackson reiterates what our supreme court has held in cases dating back to State

v. Santillan, 948 S.W.2d 574 (Mo. banc 1997), followed by State v. Pond, 131 S.W.3d 792, 793

(Mo. banc 2004), and again in State v. Williams, 313 S.W.3d 656 (Mo. banc 2010). See

Jackson, 433 S.W.3d at 397-99, 401-02, 409.

Point I asserts an unpreserved claim. Prine does not allege plain error and ex gratia

review satisfies us that none occurred.8 Point I fails.

7
A civil case, Kline v. City of Kansas City, 334 S.W.3d 632, 647 (Mo.App. W.D. 2011), summarizes these
principles well:
A point on appeal must be based upon the theory voiced in the objection at trial and an appellant
cannot expand or change on appeal the objection as made. A point on appeal may not enlarge or
change the objection made at trial. When the point on appeal contends that an instruction is
erroneous on a different ground than was asserted in the objection made at trial, we may not
review that error on appeal [except for plain error].
Id. at 647 (internal citations and quotation marks omitted).
8
Instructional error is not plain error unless the trial court so misdirected or failed to instruct jurors as to cause
manifest injustice or a miscarriage of justice. State v. Ousley, 419 S.W.3d 65, 75 (Mo. banc 2013). Our review of
the whole record, the correctness of the instructions this jury did receive, the jury’s two findings that Prine used a
gun, and our presumption that the jury followed its instructions, all combine to seriously undermine any suggestion
(although none has been made) of jury misdirection or manifest injustice.

8
 Point II: Cross-Examination Regarding Pending Charges

Prine contends in his second point that the trial court erred in sustaining the State’s

objection in cross-examination of Mitchell concerning pending charges, and he was thus

prejudiced. Prine concedes the general rule that the subject of pending charges against a witness

is not admissible.

Generally, to preserve the issue for appeal, the proponent of evidence excluded by the

trial court must make an offer of proof. State v. Woods, 357 S.W.3d 249, 253 (Mo.App. W.D.

2012). An offer of proof is made after an unfavorable ruling, Sturma v. Sturma, 674 S.W.2d

626, 627 (Mo.App. E.D. 1984), and “must specifically show: (1) what the proffered evidence

would be; (2) its object and purpose; and (3) all the facts necessary to establish its relevance and

admissibility.” Calzaretta v. Willard, 391 S.W.3d 488, 493 (Mo.App. S.D. 2013).

Having reviewed the record, we see no offer of proof on this issue9 meeting the

requirements set out in Calzaretta.10 Notably, we find Prine did not offer testimony regarding

what the pending charges might have been. Further, the complained-of error was not contained

in a motion for new trial. As a result, this issue is not preserved for our review.

Nevertheless, Rule 30.20 permits this Court, in its discretion, to grant plain error review

if the requirements of a two-step analysis are satisfied. First we determine whether the

complained-of error facially establishes substantial grounds for believing a manifest injustice or

miscarriage of justice has occurred. State v. Mayes, 281 S.W.3d 918, 921 (Mo.App. S.D. 2009).

9
“If an offer of proof consists of evidence which is admissible in part and inadmissible in part, the trial court is
justified in rejecting the entire offer.” State v. Broussard, 57 S.W.3d 902, 911 (Mo.App. S.D. 2001).
10
While we note that defense counsel attempted several times (unsuccessfully) to elicit testimony about this
evidence after the trial court sustained an objection to its admission (thereby drawing a formal admonishment from
the trial court), the corresponding open court colloquies and bench conference discussions in the transcript are
insufficient to preserve this issue for our consideration.

9
Only if the first step is satisfied do we then move to the second step to determine whether

manifest injustice or miscarriage of justice actually occurred. Id.

We find no facially substantial grounds to believe that manifest injustice or a miscarriage

of justice has occurred, and therefore decline to review for plain error. Point II is denied.

Points III and IV: Court Costs

In his third and fourth points, Prine argues that the trial court plainly erred in assessing

court costs against Prine because the trial court found Prine to be indigent. Prine concedes on

appeal that this issue was not preserved, and that we therefore may only review for plain error.

Finding no substantial facial grounds to believe that manifest injustice or a miscarriage of

justice has occurred, we decline to review for plain error.11 Points III and IV are denied.

The judgment of the trial court is affirmed.

WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

DANIEL E. SCOTT, J. – CONCURS AND FILES SEPARATE CONCURRING OPINION

11
The State argues that a “Bill of Costs” assessing the special prosecutor’s fee against the state of Missouri was
submitted to the Missouri Department of Corrections by the Jasper County prosecutor and the trial court, thereby
rendering this issue moot. The State suggests that this Bill of Costs is contained in “Appendix A” in the record on
appeal. However, it appears that such Bill of Costs was not included in Appendix A or elsewhere in the record on
appeal; therefore, we may not consider it.

10
STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) No. SD32940
)
TERRELL EUGENE PRINE, )
)
Appellant. )

CONCURRING OPINION

Must we conclusively presume prejudice from error in not instructing down,

even if that seems logically inconsistent with reasoned consideration of the verdicts?

What of Rule 28.02(f), which calls for the “prejudicial effect” of instructional error to

“be judicially determined”?

These questions came to mind as I weighed footnote 4 of State v. Jackson,1

which declined to reconcile an observed inconsistency shared by this case. To

suspect prejudice from a failure to instruct on second-degree robbery “seems

1 433 S.W.3d 390 (Mo. banc 2014), discussed in Point I of the principal opinion.
logically inconsistent” with the jury’s finding of armed criminal action. See 433

S.W.3d at 395 n.2 & 4.

The Court need not reconcile these, however, because prejudice is
presumed when a trial court fails to give a requested lesser included
offense instruction that is supported by the evidence. State v.
Redmond, 937 S.W.2d 205, 210 (Mo. banc 1996) (defendant “is
entitled to a new trial before a properly instructed jury”).

Id. at n.4. This begged the question of the presumption’s nature and effect. I

underst0od the presumption and “reversible error” in this context as follows:

“Failure to provide the required instruction … is reversible error. Such errors are

presumed to prejudice the defendant unless it is clearly established by the State that

the error did not result in prejudice.” State v. Westfall, 75 S.W.3d 278, 284 (Mo.

banc 2002) (quotation marks, citations, and brackets omitted).

So I was surprised to research back from Redmond and discover so many

“instructing down” reversals that never addressed prejudice. Eventually I found this

suggestion of a reason in State v. Sykes, 436 S.W.2d 32, 36 (Mo. 1969):

[I]t is error for the Court to fail to instruct upon a lower degree of
any offense, if there is any evidence to warrant a submission of a
lesser offense and that the error is not cured simply because a jury
found the defendant guilty of a higher degree of the offense. [My
emphasis.]

I accept the last proposition (error is not cured simply …), but that neither addresses

nor excuses our Rule 28.02(f) obligation to determine prejudice. This case differs

markedly from Sykes, Redmond, or any case that does not involve the logical

inconsistency noted in Jackson and also found here.

Here, an ACA verdict corroborates this jury’s belief that Prine used a gun.

This exceeds a Sykes-like claim that error is “cured simply because a jury found the
2
defendant guilty of a higher degree of the offense.” The ACA finding collaterally

establishes and substantiates first-degree robbery’s “differential element” (as

Jackson uses that term).

Contrast Redmond, cited in Jackson’s footnote 4. That jury also found

ACA, but the error was failure to instruct down from murder to sudden-passion

manslaughter (937 S.W.2d at 206-07, 208), so ACA shed no light on the differential

element (sudden passion). Here, ACA matches and corroborates the differential

element – did Prine use a gun?

State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003), although different,

also seems instructive. There, constitutional error forced the State to disprove

prejudice beyond a reasonable doubt (a higher standard than here). Id. at 263. Our

supreme court acknowledged the presumption that jurors follow the instructions,

but found that presumption alone could not carry a no-reasonable-doubt burden.

A presumption is simply inadequate to meet this high standard, and
no affirmative proof sufficient to meet this standard has been
offered by the State, as the record is silent in regard to the jury’s
findings.

Id. As to prejudice, therefore, this case differs from Whitfield in three key ways:

1. This is not a constitutional case (see Jackson, 433 S.W.3d at
395 & n.5, 402), so less proof is needed to overcome the
presumption of prejudice; i.e., not reasonably probable that the
error affected the trial’s outcome. Id. at 395 n.4.

2. Here, “affirmative proof sufficient to meet this standard has been
offered by the State” in the form of the ACA verdict.

3. And “the record is [not] silent in regard to the jury’s findings.”
The jury voiced its differential element finding in not just one,
but two verdicts.

3
 To examine this record, including Prine’s testimony, the theory of defense,

and both jury verdicts, is to dispel all concern (other than a wholly theoretical one)

that jurors who twice found that Prine was armed actually doubted that. I would

consider any Jackson error harmless, without qualms, because I share Jackson’s

“faith in the jury system” and goal of fewer retrials. 433 S.W.3d at 409.2

To summarize my thoughts, Jackson did not analyze prejudice or reconcile

the logical inconsistency noted there and also found here. I do not read that case or

2 Although Jackson eschewed “reasonable” jurors as a basis to assess error, 433
S.W.3d at 400, “reasonableness” and “reasonable jurors” surely remain relevant in
determining prejudice.
This jury, which we presume to have followed the law and instructions, dutifully
sat for two days, heard the evidence, and unanimously agreed twice that Prine was
armed – two verdict directors, two verdict forms, beyond a reasonable doubt. When
polled, each juror confirmed that these were his or her true verdicts.
The record unquestionably supports these verdicts, so to flatly reverse them per
Jackson without express consideration of prejudice invites these jurors and the
public to ask whether our court:
• disbelieves what these jurors said in two verdicts and when they were
individually polled thereafter; or
• thinks this was the “unreasonable” jury hypothesized in Jackson, 433
S.W.3d at 403, sending Prine to prison for a crime that jurors genuinely
believed he did not commit; or
• thinks this jury acted and judged fairly, but reverses anyway because a
hypothetical “unreasonable” jury might have done differently. Id.
No one wants jurors who’ve done nothing wrong to wonder these things. Yet this
may be an unintended and unfortunate consequence of Jackson’s emphasis on
protecting defendants and our justice system from theoretical misbehavior by
“unreasonable” juries. 433 S.W.3d at 402-03.
More importantly, error and prejudice are different issues. We do not reverse for
one unless we also find the other. Review of this record convinces me that there was
no prejudice, even if error occurred.
4
others to conclusively presume prejudice from error in instructing down. As with

other instructional error, the presumption can be overcome, and is overcome here.

Although error is not “cured simply because a jury found the defendant guilty

of a higher degree of the offense” (Sykes, 436 S.W.2d at 36), an additional ACA

finding here substantiates the differential element precisely, strongly indicating that

these jurors were not misled by a failure to instruct down. This, and careful review

of the record, convinces me that we cannot find prejudice if we presume, as we must,

that the jury obeyed its instructions. “Juries are presumed to follow the instructions,

and there is no indication in this case that the jurors did not.” State v. McFadden,

391 S.W.3d 408, 421 (Mo. banc 2013).

For these reasons and those stated in the principal opinion, which I also join, I

would reject Prine’s points on appeal and affirm his convictions. I concur.

DANIEL E. SCOTT – CONCURRING OPINION AUTHOR

5