City of Montgomery v. Christian

• Decision Date: 21 September 2004
• Docket Number: No. ED 83661.,ED 83661.
• Parties: CITY OF MONTGOMERY, Respondent, v. Ricky CHRISTIAN, Appellant.
• Court: Missouri Court of Appeals

144 S.W.3d 338

CITY OF MONTGOMERY, Respondent, v. Ricky CHRISTIAN, Appellant.

No. ED 83661.

Missouri Court of Appeals, Eastern District, Division One.

September 21, 2004.

Appeal from the Circuit Court, Montgomery County, Wesley Clay Dalton, J Daniel W. Deiter, Jr., Montgomery City, MO, for appellant.

Eric T. Tolen, Montgomery City, MO, for respondent.

BOOKER T. SHAW, Judge.

Ricky Christian ("Driver") appeals from the trial court's judgment convicting him of resisting arrest, driving while revoked, hazardous driving, and operating a motor vehicle in a careless and imprudent manner. Driver raises four points on appeal. First, Driver argues each information filed was insufficient to confer jurisdiction in Montgomery County Municipal Court. Second, Driver claims the trial court lacked jurisdiction to adjudicate the resisting arrest charge because he claims the evidence reflects the alleged violation did not take place in Montgomery City. Third, Driver challenges the validity of Ordinance No. 7-2002 which governs the criminal ordinances under which Driver was charged with. Finally, Driver alleges the trial court lacked jurisdiction to hear the cause because the information filed was insufficient to base a prosecution upon. We reverse.

As a preliminary matter, we note the City failed to file a respondent's brief in this matter. "When one party fails to file a brief, [this Court] is left with the dilemma of deciding the case (and possibly establishing precedent for future cases) without the benefit of that party's authorities and point of view. Appellate courts should not be asked or expected to assume such a role." State v. Musil, 935 S.W.2d 379, 380 (Mo.App. S.D.1996) (citing Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978)). Despite the absence of the City's brief, we will address Driver's appeal.

On July 6, 2002, Montgomery City Police Officer Shawn Bell ("Officer Bell") was on routine patrol when he observed two vehicles parked in an unusual manner on the shoulder of Highway 19. Officer Bell approached the scene and made contact with a female driver in a pickup truck. While speaking to the female driver, the driver of the other vehicle, a van, pulled off of the shoulder and back onto the highway. The female driver told Officer Bell the van had struck her truck and she had not exchanged information with the other driver before the van pulled away from the shoulder.

Officer Bell returned to his vehicle and activated the lights and sirens in an attempt to stop the van as it continued moving southbound along Highway 19 at an excessive rate of speed. The driver stopped briefly at a service station along Highway 19 and shut off his engine. After Officer Bell pulled up behind the van and waited for backup, the driver started the van's engine again and drove off. The pursuit continued, at which time Officer Bell observed the van travel over the double yellow center line of the highway more than once, and saw it pass several vehicles in a no passing zone. Officer Jared Brooks, who joined Officer Bell as backup, observed the van cross into the northbound lane and force vehicles off of the road and onto the shoulder.

As the pursuit approached the city limits, Officer Bell contacted the New Florence Police Department for assistance. Officer Hollis Crawford ("Officer Crawford") of the New Florence Police Department arrived at Highway WW with his canine unit in an attempt to stop the van. Upon approaching Officer Crawford's vehicle blocking the highway, Driver exited the van and began to run on foot, but was apprehended and arrested.

Driver was issued several citations, inter alia, resisting arrest, driving while revoked, hazardous driving, and operating a motor vehicle in a careless and imprudent manner. Driver was found guilty at the municipal level and again later after a trial de novo. Driver was convicted on all counts. Driver received a ten day jail sentence and five year suspended execution of sentence for resisting arrest. Driver received a ten day jail sentence and five year suspended execution of sentence for driving while revoked as well. Driver was sentenced to pay a $500.00 fine plus costs for careless and imprudent driving, and an additional $500.00 fine plus costs for hazardous driving. Driver appeals from this judgment.

Upon review, the evidence and reasonable inferences therefrom are viewed in the light most favorable to the municipality. City of University City v. MAJ Investment Corp., 884 S.W.2d 306, 307 (Mo.App. E.D.1994). All evidence and inferences to the contrary are to be disregarded. Id. When reviewing convictions under municipal ordinances, we must sustain the judgment of the trial court unless there is no substantial evidence to support it. Id.

In his first point on appeal, Driver argues the trial court erred in holding the information filed relating to each charge was sufficient to confer jurisdiction upon the court. Driver claims each information fails to: (1) allege the essential facts of the underlying charge; (2) allege the location of the ordinance violation; (3) cite the chapter and section providing the penalty or punishment for the underlying charge; and (4) state the name of the prosecuting municipality. Driver raised all of these defects in a motion to dismiss the charges before trial and again during the trial.

In order for an information to be sufficient, it must be in writing, signed by the prosecutor, and filed in the court with jurisdiction over the ordinance violation. Rule 37.35(a). Moreover, the information shall: (1) state the name of the defendant; (2) state plainly, concisely, and definitely the essential facts constituting the ordinance violation charged; (3) identify the time and place of the ordinance violation charged; (4) cite the chapter and section of the ordinance alleged to have been violated and the chapter and section providing the penalty or punishment; and (5) state the name of the prosecuting county or municipality. Rule 37.35(b). "An information charging a violation of a city ordinance must allege specific facts amounting to a violation." City of Chesterfield v. DeShetler Homes, Inc., 938 S.W.2d 671, 673-74 (Mo.App. E.D.1997). An information is considered sufficient if it describes the violation charged in the language of the ordinance itself. Jordan v. City of Kansas City, 972 S.W.2d 319, 324 (Mo.App. W.D.1998). While Rule 37.35 presents many requirements, this type of information is not held to the same rule of strictness as charges presented in a criminal case. DeShetler Homes, 938 S.W.2d at 674. "If an information is insufficient, the trial court acquires no jurisdiction and whatever thereafter transpires is a nullity." City of Cool Valley v. LeBeau, 824 S.W.2d 512, 513 (Mo.App. E.D.1992).

The information for resisting arrest reads, "In the circuit court of Montgomery County, Municipal Division, on or about July 6, 2002, upon, at or near Highway 19 and WW" Driver was "resisting arrest by flight" in violation of local ordinance 210.140. The information is signed by the prosecutor. Ordinance Section 210.140 states in pertinent part:

A. A person commits the offense of resisting or interfering with arrest if, knowing that a Law Enforcement Officer is making an arrest, or attempting to lawfully detain or stop an individual or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:

1. Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer;

In City of Berkeley v. Stringfellow, 783 S.W.2d 501 (Mo.App. E.D.1990), the defendant was issued a citation stating he was "resisting a...