In the fisherman dinner of appeals
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DIVISION ONE
STATE OF MISSOURI, ) No. ED100905
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis City
vs. )
) Honorable Steven R. Ohmer
KENNETH DUDLEY, )
)
Appellant. ) Filed: April 21, 2015
A jury convicted the defendant, Kenneth Dudley, of selling marijuana, possessing drug
paraphernalia, and felonious resisting arrest. Defendant asserts two points of trial-court error on
appeal, both directed toward his conviction for resisting arrest. He challenges both the
sufficiency of the evidence to support the conviction and the verdict-directing instruction
submitting the count to the jury. We find the evidence sufficient, but the instruction plainly
erroneous. We therefore reverse the trial court’s judgment entered 011 defendant’s conviction for
resisting arrest and remand the case to the trial court for a new trial on that count.
Factual and Procedural Background
One day, in February of 2012, members of the St. Louis Metropolitan Police Department
were conducting undercover drug buy-bust operations in one of the city’s parks. Officer
DeSheila Howlett was assigned as the undercover buyer. She wore regular street clothes and
drove in an unmarked vehicle. She wore a recording device that allowed the other officers to
hear her.
Officer Howlett, driving around the park, called out to defendant, who was walking in the
park. She asked defendant if he had “a dub,” the street name for $20 worth of drugs. Defendant
replied that “he was good” and showed Howlett that he had marijuana.
Officer Howlett invited defendant into her car. After sitting in the front passenger seat,
defendant took out a bag of marijuana. Defendant did not have anything to put the drugs on, so
Officer Howlett handed him a lid from a soda cup she had in the car. Defendant placed some
marijuana on the lid, and Officer Howlett gave him $20. At this point Officer Howlett spoke a
code phrase that let her feliow officers know a transaction had taken place and was completed.
Upon hearing the code phrase, Officers Bradford Ellis and Jeremy Cotton exited their
cars and immediately approached the passenger side of Howlett’s car, where defendant was still
sitting in the passenger seat. The officers wore vests that had “Police” written on the front and
back in bold white letters. Both officers carried their department-issued handguns. Officer Ellis
made eye contact with the defendant and said, “Come on man, get out of the car.” Defendant
stiffened and did not comply. He remained seated in the car. The officers opened the car door
and each grabbed one of defendant’s arms and pulled defendant out of the car onto the ground.
In taking defendant to the ground, defendant landed with his arms underneath him. Due
to safety concerns, and so they could place the defendant in handcuffs, the officers tried to
remove his hands from under him, to no avail. Defendant clenched his hands near his body by
his waistline area. Officer Cotton ordered defendant to put his hands where the officers could
see them. Defendant did not comply. The officers continued to pull on defendant's arms,
ordering defendant to let them see his hands, but defendant stiffened up and refused to remove
his hands and arms from underneath his body. A detective who had responded to the scene
ultimately used his Taser on the defendant to make him comply. Defendant finally complied,
and the officers placed him in handcuffs and placed him under arrest. Officers found a bag of
marijuana and a $20 bill on the ground between defendant and Howlett’s car. A search revealed
a digital scale in defendant’s pockets.
The jury found defendant guilty of selling marijuana, possessing drug paraphernalia, and
resisting arrest. The trial court sentenced defendant, as a prior offender and a prior and persistent
drug offender, to ten years for the sale of marijuana, and sixty days in a medium security
institution on the remaining counts.
Sufficiency of the Evidence
Defendant alleges the trial court erred in overruling his motion for judgment of acquittal
and in entering judgment on the jury’s verdict finding him guilty of resisting arrest because the
State presented no evidence that he resisted arrest “by using or threatening the use of violence or
physical force.”
When a defendant challenges the sufficiency of the evidence to support a conviction, this
Court’s review is limited to determining whether the State introduced sufficient evidence from
which a reasonable juror could have found each element of the offense beyond a reasonable
doubt. State v. Batcmcm, 318 S.W.3d 681, 686—87 (Mo. banc 2010). In making this
determination, this Court does not reweigh the evidence. Id. We accept as true all evidence
favorable to the verdict, including all favorable inferences drawn from the evidence. Id. And we
disregard all evidence and inferences contrary to the verdict. Id.
A person resists arrest when: (1) he knows or reasonably should know a law-enforcement
officer is making an arrest; (2) he resists the arrest by using or threatening to use violence or
physical force or by fleeing from the officer; and (3) he does so for the purpose of preventing the
officer from completing the arrest. Section 575.150; State v. Pierce, 433 S.W.3d 424, 434 (Mo.
banc 2014). Defendant only challenges the evidence regarding the second element — that he
resisted the arrest by using or threatening violence or physical force. Without citing authority
supporting his position, defendant contends that refusing to exit the car, being forcibly removed
from the car and then taken to the ground without resistance, and merely stiffening his arms to
resist being handcuffed is insufficient to constitute “physical force” under Section 575.150 in the
absence of other evidence of intentional physical force.
Caseiaw holds otherwise. in State v. Belton, 108 S.W.3d 171 (Mo. App. W.D. 2003), the
defendant used his muscles to overcome an attempt to pull him from a car. The Court found this
evidence sufficient to support a finding that the defendant had resisted arrest by physical force.
Id. at 175. Defendant Belton was a passenger in a vehicle that was stopped by a highway
patrolman for traffic violations. [(1. at 172. The officer observed Belton throw plastic bags out
the car window before the car stopped. 10’. at 173. After the car came to a stop, the officer
approached the car and told Belton he was under arrest for littering. Id. The officer ordered
Belton out of the car. Id. Belton initially complied but then sat back down on the car’s front
seat. Id. The officer again ordered Belton out of the car, but Belton refused. Id. The officer
tried to pull Belton front the car, but could not. 10’. Noting that the legislature intended for
“physical force” to include nonviolent force, the Court held that the jury could reasonably
conclude that Belton used physical force in resisting arrest “by exerting the strength and power
of his bodily muscles to overcome [the officer’s] attempts to pull him from the car. Id. at 175.
In State v. Feagan, 835 S.W.2d 448 (Mo. App. SD. 1992), the defendant stiffened his
arms when officers attempted to put him in handcuffs. The Court found the evidence sufficient
to support defendant’s conviction. Id. at 450. There, law-enforcement officers were dispatched
to defendant Feagan’s home to arrest him for the forcible rape of his ex-wife. Id. at 449. The
officers found Feagan asleep in his bedroom. Id. They awoke him and informed him that he was
under arrest. Id. Feagan did not submit to the custody of the officers. Id. instead, Feagan stated
he was not going to go with the officers, and that it was going to take more than the two officers
to take him in. Id. at 449-50. When the officer attempted to place Feagan in handcuffs, Feagan
stiffened up his arms, requiring the officers to coerce him by force. Id. at 450. The Court found
this evidence sufficient for the jury to find that defendant resisted arrest by threatening violence
and using physical force. Id.
The same result was reached in State v. ML.S., 275 S.W.3d 293 (Mo. App. W.D. 2008).
The defendant there stiffened his arms using muscle pressure to resist being handcuffed. Id. at
300. The defendant’s noncompliance forced the law-enforcement officer to struggle with him in
an attempt to get his arms behind his back. Id. Again noting that “physical force,” as used in the
statute, inciudes nonviolent force, the Court found the evidence sufficient for the jury to find that
the defendant used physical force to resist his arrest. Id.
Similarly here, defendant stiffened his body and refused to exit the car, forcing two
officers to puil him out of the car and onto the ground. Defendant then clenched his hands near
his waistline, stiffened his arms, and refused to remove his hands and arms from underneath his
body. Officers pulled on defendant’s arms in order to secure his hands and place him in
handcuffs, all to no avail. Like the defendants in Belron, Feagan, and ML.S., defendant exerted
the strength and power of his muscles to overcome the officers’ attempts. And he refused to
comply with the officers’ orders to show his hands. Defendant did not relent and release his
arms and hands until he was subdued by the officer’s use of a Taser. We hold that this
constitutes evidence from which a reasonable juror could have found that defendant used
physical force to resist his arrest. We deny this point.
Verdict—Director g Instruction
Defendant next alleges the trial court plainly erred in submitting the verdict-directing
instruction for resisting arrest. The State concedes error.
Defendant correctly acknowledges that he did not preserve this claim of error for review.
Defense counsel did not object at trial or include the claim in a motion for new trial as required
by Rule 28.03. State v. Meekr, 427 S.W.3d 876, 877 (Mo. App. E.D. 2014)(holding challenge to
instruction not preserved where counsel did not object at trial or include allegation of error in
motion for new trial). Defendant thus requests plain~error review under Rule 30.20. We have
discretion to consider unpreserved claims of error affecting substantial rights if manifest injustice
or a miscarriage of justice would otherwise occur. Id; Rule 30.20; State v. Wurtzberger, 40
S.W.3d 893, 898 (Mo. bane 2001).
“In the context of instructional error, plain error results when the trial court has so
misdirected or failed to instruct the jury that it is apparent to the appellate court that the
instructional error affected the jury’s verdict.” State v. Doolittle, 896 S.W.2d 27, 29 (Mo. banc
1995). “We are more inclined to reverse in cases where the erroneous instruction did not merely
include a wrong word or some other ambiguity, but excused the State from its burden of proof on
a contested element of the crime.” Meeks, 42-7 S.W.3d at 877—78; see also State v. Stover, 388
S.W.3d 138, 153-55 (Mo. banc 2012)(finding plain error and reversing conviction where
omission of essential element from jury instructions relieved State of its burden). Here, the
instruction included an element of a crime with which defendant had not been charged. The
inclusion of that element misdirected the jury on the law and excused the State from its burden of
proof on the charged crime.
Instruction 7, the verdict-directing instruction for resisting arrest, directed the jury to find
defendant guilty if they believed he resisted arrest by “using violence, physical force, or physical
l
interference.” Defendant argues that allowing the jury to find him guilty for “physical
interference” with his own arrest deviates from the statute under which he was charged.
Defendant is correct.
The State charged defendant with resisting arrest in violation of Section 575.150. That
statute provides that a person commits the crime of resisting or interfering with arrest when he
“(1) resists the arrest, stop, or detention of such person by using or threatening the use of
violence or physical force or (2) interferes with the arrest, stop or detention of another person
5
by using or threatening the use of Violence, physical force or physical interference.’ Section
575.150. The plain language of the statute clearly contemplates two distinct crimes: resisting
one’s own arrest and interfering with another’s arrest. Meeks, 427 S.W.3d at 878. Resisting
arrest by “physical interference” is not an element of the crime of resisting one’s own arrest. Id.
“Physical interference” in the statute refers only to interfering with someone else’s arrest. Id.
The trial court erroneously included this language in the submitted instruction.
1 Instruction 7 reads in full (with emphasis added):
As to Count 111, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about February 14, 2012, in the City of St. Louis, State of Missouri, Jeremy
Cotton and Bradford Ellis were law enforcement officers, and
Second, that Jeremy Cotton and Bradford Ellis were making an arrest of the defendant for sale of a
controiled substance, and
Third, that defendant knew or reasonably should have known that one or more law enforcement
officers were making an arrest of the defendant, and
Fourth, that for the purpose of preventing the law enforcement officers from making the arrest, the
defendant resisted by using violence, physical force, or physical interference,
Then you will find the defendant guilty under County 111 of resisting an arrest.
However, unless you find and believe form the evidence beyond a reasonable doubt each and all
of these propositions, you must find the defendant not guilty of that offense.
7
The erroneous inclusion of “physical interference” resulted in a manifest injustice.
“Physical interference” was included and stated in the disjunctive as an alternative means of
resisting. The instruction thus gave the jury an option of basing its conviction on “physical
interference alone.” Moreover, “physical interference” was the sole basis on which the State
asked the jury in closing to find defendant guilty. The State argued:
In order to make the arrest, they had to get his hands. He wouldn’t give them his
hands. He was clinching underneath his body. Physical interference. He was
physically interfering with these officers being able to get his hands to arrest
him... he resisted by physical interference...
And so he was tased because he was using this physical interference that
prevented them from being able to affect the arrest.
As noted, “physical interference” is not a lawful basis for holding defendant guilty of
resisting his own arrest under the statute. Inclusion of the phrase “physical interference” thus
misdirected the jury on the law and relieved the State of its burden of proving that defendant
resisted his own arrest by one of the means set forth in the statute. Meeks, 427 S.W.3d at 881.
The trial court plainly erred in submitting the instruction. That error resulted in manifest
injustice. We grant defendant’s point. We reverse the judgment entered on defendant’s
conviction for resisting arrest and remand the case to the trial court for a new trial on that count.
War)?
LAWRENCE E. MOO EY, P
SIDING JUDGE
CLIFFORD H. AHRENS, J., and
LISA VAN AMBURG, J., concur.