State of Mo. v. SITTON

• Decision Date: 13 September 2010
• Docket Number: No. SD 30237.,SD 30237.
• Citation: 323 S.W.3d 65
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ben C. SITTON, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

323 S.W.3d 65

STATE of Missouri, Plaintiff-Respondent,
v.
Ben C. SITTON, Jr., Defendant-Appellant.

No. SD 30237.

Missouri Court of Appeals,Southern District,Division Two.

Sept. 13, 2010.

323 S.W.3d 66

Nancy A. McKerrow, Columbia, for Appellant.

Chris Koster, Atty. General, Terrence M. Messonnier, Jefferson City, for Respondent.

NANCY STEFFEN RAHMEYER, Presiding Judge.

Ben C. Sitton, Jr. (“Appellant”) was charged with and, following a bench trial, convicted of resisting or interfering with arrest in violation of section 575.150. ¹ The charges stemmed from a chase by the police when Appellant was on a dirt bike. Appellant brings two points on appeal: (1)

323 S.W.3d 67

he claims prejudice when the trial court amended the Information after the trial but before the court entered judgment, and (2) he claims there is insufficient evidence to support the finding that his actions created a substantial risk of serious physical injury to any person. We find no error and affirm the judgment of the trial court.

In reviewing a claim of insufficient evidence, we consider the record in the light most favorable to the judgment, taking as true the evidence and all logical inferences that support a finding of guilt, and ignoring the evidence and inferences that do not support a finding of guilt. State v. Niederstadt, 66 S.W.3d 12, 14 (Mo. banc 2002). The evidence, viewed in the light most favorable to the judgment, shows that on August 18, 2007, a police officer observed Appellant driving a dirt bike at what he estimated to be forty to forty-five miles per hour in a residential neighborhood. The police officer activated emergency lights and sirens and signaled Appellant to stop the dirt bike, but Appellant did not do so. Instead, Appellant fled, driving “probably above sixty miles an hour” at one point in the residential neighborhood. Along the way, Appellant ran through a stop sign without decelerating his motor and lost control of the dirt bike twice. When Appellant was ejected from the dirt bike the second time he lost control, he narrowly missed, by inches, careening into a street sign, and a utility pole, by three or four feet. The bike was so damaged that it was leaking fluids.

After being thrown off the bike, Appellant fled the officer on foot, running into a female acquaintance's apartment. The officer followed, with his gun drawn but held low at his side. The acquaintance, a female who was holding a baby, then stood outside the apartment's entrance and questioned the officer as to why the officer was chasing Appellant, which impeded the officer momentarily. Once the officer gained access to the apartment, Appellant was nowhere to be found as he had escaped out a back door. Appellant was charged by Information with the “felony of resisting arrest” for fleeing in “a manner that created a substantial risk of serious physical injury or death to any persons[.]” Appellant's identity as the individual who fled from the officer was stipulated to at trial. The officer who arrested Appellant testified at the trial that his initial intent was to stop Appellant to talk to him about speeding in a residential neighborhood.

The parties discussed a possible amendment to the Information in a post-trial discussion. Defense counsel suggested to the court that he expected the prosecution “to actually catch [any defect with the wording of the Information] and correct it. But it is their choice and it was their-you know, the State-that is the State's burden to get their [I]nformation correct.” The State responded that “it's well within the Court's power to amend to the-[Information]-by interlineation to the evidence.” ² The next mention of any amendment is from the docket sheet where, one week after trial, an entry reads: “The Court grants leave to the State to amend [I]nformation changing ‘arrest’ to ‘stop’ to conform with the evidence.” Immediately after that entry is: “The court finds defendant guilty of the class D felony of resisting arrest beyond reasonable doubt.”

Appellant concedes that the court amended the Information and, in his first point on appeal, contends the amendment

323 S.W.3d 68

prejudiced him by depriving him of a defense. In Appellant's view, a defendant could only be found guilty of resisting arrest if he resisted an actual arrest. Because the officer in this case stated he initially intended only to stop Appellant and discuss his driving speed with him, Appellant was not resisting an arrest. Appellant claims the amendment to the Information that changed the word “arrest” to “stop” deprived him of the defense that he was not resisting an arrest.

“The purpose of an information is to inform an accused of the charges against him so that he may prepare an adequate defense and to prevent retrial on the same charges in case of acquittal.” State v. Sanders, 871 S.W.2d 454, 459 (Mo.App. W.D.1993). The State may file an amended charge “at any time before [the] verdict” as long as “[n]o additional or different offense is charged” and the amendment does not prejudice a “defendant's substantial rights[.]” Rule 23.08. A decision permitting the State to file an...