State v. Hopson, ED 84509.

• Decision Date: 30 August 2005
• Docket Number: No. ED 84509.,ED 84509.
• Citation: 168 S.W.3d 557
• Parties: STATE of Missouri, Respondent, v. Earl HOPSON, Appellant.
• Court: Missouri Supreme Court

168 S.W.3d 557

STATE of Missouri, Respondent, v. Earl HOPSON, Appellant.

No. ED 84509.

Missouri Court of Appeals, Eastern District, Division Two.

May 17, 2005.

Application for Transfer to Supreme Court Denied June 30, 2005.

Application for Transfer Denied August 30, 2005.

COPYRIGHT MATERIAL OMITTED

Craig A. Johnston, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Attorney General, Jefferson City, MO, for Respondent.

ROBERT G. DOWD, JR., Judge.

Earl Hopson (Defendant) appeals from the judgment upon his conviction by a jury of resisting arrest, a class D felony, Section 575.150, RSMo 2000,¹ endangering the welfare of a child in the first degree, a class D felony, Section 568.045, and possession of cocaine base, a class C felony, Section 195.202. Defendant was sentenced as a persistent drug offender, Sections 195.275 and 195.285, to concurrent terms of four years' imprisonment for resisting arrest, four years' imprisonment for first-degree endangering the welfare of a child, and ten years' imprisonment for possession of cocaine base. On appeal, Defendant challenges the sufficiency of the evidence to support his convictions for resisting arrest and first-degree child endangerment. Defendant also contends the trial court abused its discretion in precluding Defendant from presenting evidence of police failure to conduct fingerprint test on the plastic baggies, and the trial court plainly erred in overruling Defendant's objection to the State's statement in closing argument that the jury had to believe all of Defendant's testimony or none of it. We affirm.

On appeal, Defendant challenges the sufficiency of the evidence to support his convictions for resisting arrest and endangering the welfare of a child in the first degree.² We view the facts in the light most favorable to the verdict. State v. Chaney, 967 S.W.2d 47, 49 (Mo. banc 1998). Viewed in the light most favorable to the verdict, the evidence presented at trial established the following relevant facts. Officer Paul Bachman was on patrol in the city of Jennings between 4:30 and 5:00 p.m. when he was called to respond to the area of Switzer and Jennings Station Road to investigate a complaint of children throwing rocks. When Officer Bachman arrived in the area, he did not locate any children. Officer Bachman, however, noticed Defendant driving a car with a license plate that looked like the tags had been torn away from another license plate. Officer Bachman pulled behind the car as it traveled west on Switzer and ran a check on the license plate. Upon checking, Officer Bachman discovered that no license plate was issued to the car driven by Defendant. Thereafter, Officer Bachman activated his emergency lights in an effort to pull Defendant over.

Defendant slowed down over the length of the street in front of three or four houses and then threw three "off-white chunks" from the driver's side window. Officer Bachman drove up to where Defendant had thrown the "off-white chunks," exited his patrol car, and picked up the three "off-white chunks," which were wrapped in individual plastic baggies. At this point, Defendant who had stopped the car sped off at a high rate of speed. Officer Bachman got back into his patrol car, turned on the siren, and pursued Defendant.

Defendant proceeded down the block to where some people were playing football in the street. The people were able to get out of the way of Defendant's oncoming car after being alerted to the danger by Officer Bachman's patrol car siren. Defendant came within ten to fifteen feet of hitting them. At the end of the block, Defendant turned right onto another street at a speed of about forty miles per hour, making the car appear "to almost go on the two wheels." Once he was halfway down the street, Defendant stopped the car, got out, and ran down the street. Officer Bachman got out of his patrol car and pursued Defendant on foot. At the same time, Officer Bachman called for assistance and provided a description of Defendant. Defendant ran down the street before turning and running through backyards.

Officer Patrick Giratos responded to Officer Bachman's call. When he arrived in the area, Officer Giratos saw Defendant, who matched Officer Bachman's description, walking down the street heading towards the car he had abandoned. Officer Giratos apprehended Defendant and handcuffed him without resistance. Officer Bachman arrived and identified Defendant. At this point, Officer Bachman approached Defendant's car and found Defendant's eight-month-old son in the backseat of the car in a car seat drinking a bottle of formula. The baby started to choke on and spit up the formula, so Officer Bachman removed the baby from the car and patted him on the back until he burped. Officer Bachman contacted the baby's grandfather, who came to get him.

Forensic testing on the "off-white chunks" confirmed that they were cocaine base, weighing a total of .85 grams. Defendant was charged with felony resisting arrest, endangering the welfare of a child in the first degree, and possession of cocaine base.

At the trial, Defendant testified in his own defense. Defendant denied all of the offenses and claimed mistaken identity. Defendant claimed he was a passenger in the car and that the driver was the person who threw the plastic baggie out of the driver's side window and ran from the car. In rebuttal, the State recalled Officer Bachman, who testified that Defendant was the only man in the car and no one was in the passenger seat.

After the presentation of all the evidence and arguments, the jury found Defendant guilty on all charges. The trial court sentenced Defendant as a persistent drug offender to concurrent terms of four years' imprisonment for resisting arrest, four years' imprisonment for endangering the welfare of a child, and ten years' imprisonment for possession of cocaine base. Defendant now appeals.

In his first point, Defendant claims the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and entering judgment and sentence on the jury's guilty verdict of felony resisting arrest because the State did not put forth sufficient evidence to prove all the elements of the crime. Defendant contends there was insufficient evidence to prove Officer Bachman was making an arrest of Defendant, and that Defendant reasonably should have known Officer Bachman was making an arrest of him. We disagree.

In examining the sufficiency of the evidence, our review is limited to a determination of whether there is sufficient evidence from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. Chaney, 967 S.W.2d at 52. In applying this standard, we accept as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. Id.

Section 575.150 sets forth the crime of resisting or interfering with arrest. Section 575.150 provides, in pertinent part:

1. A person commits the crime of resisting or interfering with arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest 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; . . .

This section applies to "arrests, stops or detentions with or without warrants and to arrests, stops or detentions for any crime, infraction or ordinance violations." Section 575.150.2. Resisting or interfering with an arrest for a felony is a class D felony. Section 575.015.5.

From the evidence the jury could properly find Officer Bachman was making an arrest of Defendant for felony possession of a controlled substance, and that Defendant fled from Officer Bachman for the purpose of preventing that arrest. The record indicates that Defendant stopped his car after throwing out the white chunks of cocaine base. It was not until Officer Bachman picked up the plastic baggies of cocaine that Defendant began to flee.³ Officer Bachman immediately got in his patrol car, turned on the siren, and pursued Defendant. Defendant then abandoned his car and fled on foot. Officer Bachman also got out of his car and pursued Defendant on foot. Once Defendant was apprehended, he was placed under arrest. The reasonable inference from the evidence was that Defendant was being arrested for possession of the cocaine base recovered by Officer Bachman.

Defendant contends the evidence that Officer Bachman was actually arresting Defendant was insufficient because there was no testimony from Officer Bachman that he was arresting Defendant for the possession of cocaine charge. Defendant cites two cases in support of his argument that such testimony was required, State v. Long, 802 S.W.2d 573 (Mo.App. S.D.1991), and State v. Wanner, 751 S.W.2d 789 (Mo.App. E.D.1988). Those cases, however, are inapposite to this case. There was no evidence that the defendants in either case had committed the offense for which they would be arrested prior to their flight. Long, 802 S.W.2d at 574-77; Wanner, 751 S.W.2d at 790-91. In both cases, the officers specifically denied an intention to arrest the defendants until after they fled, and then admitted that they decided to arrest only because the defendants fled. Long, 802 S.W.2d at 575; Wanner, 751 S.W.2d at 791.

Here, while Officer Bachman never specifically testified he was arresting Defendant for possession at the time Defendant fled, he also never testified that he was not arresting Defendant for...