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State v. Thomas2/27/2004
fense, and the jury verdict rejected his theory of defense. Simply because no lessers were charged is no indication the jury "would" have convicted on a lesser offense had it been charged.
In order for the jury to find Defendant Bond guilty of facilitation of felony murder as opposed to felony murder, the jury would have to disregard the undisputed evidence and conclude Defendant Bond did not intend to promote or assist in the robbery or share in its proceeds. Although the jury within its prerogative could have done so, the harmless error issue is not determined by what the jury could have done. I would conclude beyond a reasonable doubt, based upon (1) the undisputed proof at trial; (2) Defendant Bond's theory of defense; and (3) the jury's rejection of his theory of defense; that no reasonable jury would have convicted Defendant Bond of facilitation of felony murder instead of the charged offense. See Richmond, 90 S.W.3d at 662. Thus, I would affirm Defendant Bond's conviction for felony murder.
JOE G. RILEY, JUDGE
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