State v. Haden

Decision Date03 August 2022
Docket NumberSD 37086
Parties STATE of Missouri, Plaintiff-Respondent, v. Jordan C. HADEN, Defendant-Appellant.
CourtMissouri Court of Appeals

Attorney for AppellantSteven Willibey of Kansas City, MO.

Attorneys for RespondentEric S. Schmitt, Daniel N. McPherson of Jefferson City, MO.

JENNIFER R. GROWCOCK, J.

Following a change of venue from Ozark County to Wright County, Jordan C. Haden ("Defendant") was ultimately charged by a third amended information with (1) assault in the first degree of a law enforcement officer, Missouri State Highway Patrol Corporal Daniel J. Johnson ("Corporal Johnson"), by striking him in the face (Count I), and (2) felony resisting arrest for assault in the first degree "by fleeing from" Corporal Johnson (Count II).1 The third amended information also alleged Defendant was "a persistent misdemeanor offender" based on four misdemeanor convictions from North Dakota and Arkansas.

A jury found Defendant guilty of the lesser included offense of assault in the second degree of a law enforcement officer and felony resisting arrest. Based on the trial court's finding beyond a reasonable doubt that Defendant was a persistent misdemeanor offender, the trial court (rather than the jury) sentenced Defendant to 15-years imprisonment for assault in the second degree of a law enforcement officer and four-years imprisonment for resisting arrest to run concurrent to the 15 years.2 Defendant appeals raising two points: (1) the evidence was insufficient to prove beyond a reasonable doubt Corporal Johnson "was making an arrest of [Defendant] for the felony of assault in the first degree" in that the evidence showed Corporal Johnson "was making an arrest of [Defendant] for misdemeanor driving while intoxicated"; and (2) the trial court "plainly erred" in determining Defendant was a persistent misdemeanor offender and "removing sentencing from the jury" because only one of the four alleged misdemeanor convictions from North Dakota and Arkansas was a qualifying prior and status as a persistent misdemeanor offender requires at least two qualifying priors.3 We deny both of Defendant's points and affirm the trial court's judgment.

Facts and Procedural Background
Procedural Background

On July 10, 2020, the State filed a second amended information that alleged for the first time Defendant was a persistent misdemeanor offender. Status as a persistent misdemeanor offender precludes sentencing by a jury. Sections 557.036.4(2) and 558.016.5.4 At a pretrial hearing that same day, the trial court admitted documents establishing Defendant had four misdemeanor convictions – two from North Dakota and two from Arkansas. The convictions, date of guilty pleas and imposition of sentences, and places were: (1) on February 3, 2012, Defendant pled guilty to "the charge of Drove Or In Actual Physical Control Of Motor Vehicle" while under the influence of an intoxicating liquor and/or any drug, a Class B Misdemeanor, in Wells County, North Dakota (sentence was imposed on February 10, 2012); (2) on August 29, 2012, Defendant pled guilty "to the charge of Driving While License Privilege Is Suspended," a Class B Misdemeanor, in January 2012, in Ward County, North Dakota (sentence also imposed on August 29, 2012); (3) on December 22, 2015, Defendant was found guilty after a plea of "NC" to "(1st) Driving On Suspended DL" in July 2015, in Baxter County, Arkansas; and (4) on May 24, 2018, Defendant was found guilty after a plea of "NC" to "(2nd) Driving On Suspended DL" in December 2016, in Baxter County, Arkansas.

The following colloquy between the trial court and defense counsel occurred in connection with the filing of the second amended information:

THE COURT: ... Okay. First of all, we have a little housekeeping. First of all, the State has filed a substitute information. [Defense Counsel], do you have any objection?
[Defense Counsel]: Your Honor, I would like to object, but, unfortunately, I don't think that there's anything I can object on.
THE COURT: So the difference is, is the prior and -- the prior convictions; is that correct?
[Defense Counsel]: Yes, Your Honor. The prior misdemeanor convictions.
....
THE COURT: Okay. I'm looking at State's Exhibit No. 1 [February 3, 2012 North Dakota conviction]. It appears to be certified and exemplified for an out-of-state conviction. Is there any objection?
[Defense Counsel]: No, Your Honor.
THE COURT: I'm looking at State's Exhibit No. 2 [August 29, 2012 North Dakota conviction]. It appears to be certified and exemplified for an out-of-state conviction. Is there an objection?
[Defense Counsel]: No.
THE COURT: Okay. I'm looking at State's Exhibit No. 3 [Arkansas convictions]. It also is a certified and exemplified record of conviction which is required for an out-of-state conviction. Is there an objection?
[Defense Counsel]: No, Your Honor.
THE COURT: Okay. Is there anything you wish to add, [Defense Counsel]?
[Defense Counsel]: No, Your Honor.
THE COURT: The Court makes a finding that the Defendant, Mr. Haden, is a prior and persistent misdemeanor offender under Section 558.016 beyond a reasonable doubt, and that would, if he's convicted, take sentencing away from the jury.

The allegation that Defendant was a persistent misdemeanor offender also was included in the third amended information on which Defendant was tried.

Trial

The trial occurred on December 3 and 4, 2020. Viewed in accordance with our standard of review, the evidence at trial showed the following facts. About 10:45 p.m., on December 2, 2017, Corporal Johnson was in uniform and on routine patrol in his "fully marked Dodge Charger" in Gainesville. As Corporal Johnson was traveling north on Highway 5, he noticed a Mustang traveling west on First Street and then turning north on Elm Street. Corporal Johnson did not observe a front license plate on the Mustang and, on getting behind the Mustang, noticed that the rear license plate "didn't look right. It was not reflecting as plates usually do, and it appeared to be flimsy, like it was flopping." Corporal Johnson subsequently noticed the Mustang backing in south of The Antler. The Antler was a restaurant/bar for which the "primary services" at that time of the evening were "[a]dult beverages." Defendant exited the Mustang and Corporal Johnson stopped next to it. Corporal Johnson told Defendant that he believed Defendant had a registration violation. Corporal Johnson and Defendant went to the rear of the Mustang, and Corporal Johnson "observed a temporary Missouri license plate with ... writing on the back with permanent marker." Corporal Johnson had not seen "temporary plates in that style" before or since seeing the Mustang.

Corporal Johnson requested Defendant accompany him to his patrol vehicle so Corporal Johnson could check the registration. While Defendant was sitting in the patrol vehicle with Corporal Johnson, Corporal Johnson "detected the faint odor of alcohol emitting from" Defendant. On inquiry, Defendant said "he had consumed alcohol" at The Antler earlier, left to get cigarettes at a gas station, and was returning to the Antler.

Corporal Johnson's patrol vehicle had two cameras – a forward-facing camera that films through the front glass and a rear-facing camera located near the rearview mirror that films inside the vehicle as well as outside the back glass. Corporal Johnson turned on the cameras after noting the "odor of alcohol" and Defendant's "bloodshot eyes." At that point, the nature of Corporal Johnson's investigation changed as he was able to confirm that the registration was a valid registration. An audio/video recording of the film from the cameras that shows "some" of Corporal Johnson's "contact" with Defendant that evening was played for the jury. Corporal Johnson conducted a horizontal gaze nystagmus test while Defendant was seated in the patrol vehicle and then took Defendant to the rear of the patrol vehicle for two walking field sobriety tests. Based on these tests, Corporal Johnson "formed [the] opinion" that Defendant was intoxicated.

Corporal Johnson then asked Defendant to provide a breath sample for a preliminary breath test, and Defendant asked if he could wait. At that point, Corporal Johnson told Defendant he was under arrest for driving while intoxicated, then "turned to [his] left and placed [his] Preliminary Breath Tester on the rear of [his] patrol vehicle, turned around to face [Defendant], and got sucker punched in the left side of [his] face." Following the punch, Defendant ran, and, despite the fact Corporal Johnson's "jaw hurt very bad and [he] felt dazed," Corporal Johnson pursued Defendant. Audio from Corporal Johnson's belt microphone recorded during the chase was played for the jury.

After pursuing Defendant to the north side of The Antler and through a guardrail, Corporal Johnson tased Defendant causing Defendant to "fall[ ] to the ground on his stomach." At that point, Corporal Johnson "was feeling really bad," his "jaw hurt really bad," and he noticed Defendant "had a pocketknife in his pocket" so he did not approach Defendant and was trying to wait until backup arrived. Defendant "partially turned over to look" at Corporal Johnson, and Corporal Johnson told Defendant to "[r]oll over." Corporal Johnson "repeatedly" "commanded [Defendant] to stay on the ground." A short time later, Corporal Johnson "observed [Defendant] reach down with his hand close to where one of [the taser] probes was." Knowing that if Defendant was able to pull one of the probes out the "taser would be useless," Corporal Johnson attempted to deploy the second and last set of probes in his taser, but inadvertently hit the trigger because he was "dazed" and shot the second set of taser probes into the ground and transferred the electricity from Defendant to the second set of probes in the ground. That permitted Defendant "to get up and continue[ ] to run away from [him]."

Corporal Johnson again caught up to Defendant, and...

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