117) Then, Olson was rejected again in Pond, which also rejected the State's argument that the jury's ability to disbelieve evidence was not sufficient to entitle a defendant to an instruction for a lesser included offense by stating, "A jury may accept part of a witness's testimony, but disbelieve other parts.
The majority then turned to Williams, where it emphasized the court's express rejection of the State's argument that the defendant "was not entitled to the instruction on the sole basis that the jury might disbelieve some of the State's evidence.
The court stated that it would now expressly hold what Pond and Williams implied: the jury's right to disbelieve the evidence and its right to refuse to draw necessary inferences, standing alone, is a sufficient basis in the evidence to acquit the defendant of the charged offense, and that Olson is overruled to the extent that it suggests otherwise.
Thus, the trial court is not permitted to refuse to grant a defendant's request for a jury instruction for a nested lesser included offense, when the burden to prove the differential element is on the State, because the jury's right to disbelieve evidence is sufficient, by itself, to establish a basis in the evidence to acquit the defendant of the charged offense.
Judge Laura Denvir Stith, joined by Judge Breckenridge, concurred with the majority's result, but dissented from the court's holding that the jury's right to disbelieve evidence is sufficient, on its own, to establish a basis in the evidence that would require a trial court to instruct a jury on a lesser included offense.
149) The dissent stated the jury's right to disbelieve evidence is a factor to be considered by the trial court in determining what reasonable conclusions and inferences the evidence supports.
157) The only new factor in Pond was the State's argument that the jury's ability to disbelieve some part of the State's evidence did not establish a basis to acquit the defendant of the greater offense.
Therefore, unlike in Pond, the jury could only acquit the defendant of the greater offense if it chose to disbelieve the victim's account of the events.
Pond rejected the State's argument that the defendant was required to put on affirmative evidence, and Pond said the fact that a jury "might disbelieve some of the State's evidence" did not entitle the defendant to an instruction.
175) Instead, Williams required trial courts to instruct on a lesser included offense merely based on the jury's ability to disbelieve the State's evidence.