State v. Johnson, s. WD
| Decision Date | 05 May 1992 |
| Docket Number | Nos. WD,s. WD |
| Citation | 830 S.W.2d 36 |
| Parties | STATE of Missouri, Respondent, v. John C. JOHNSON, Appellant. John C. JOHNSON, Appellant, v. STATE of Missouri, Respondent. 43176, WD 44811. |
| Court | Missouri Court of Appeals |
J. Gregory Mermelstein, Columbia, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before FENNER, P.J., and ULRICH and SPINDEN, JJ.
John C. Johnson was charged by a three-count information with the class D felony of resisting arrest, § 575.150; unlawful use of a weapon, § 571.030.1(4); and assault in the second degree § 565.060. 1 At the conclusion of the evidence, the court dismissed the charge of assault in the second degree. The jury found Mr. Johnson guilty of resisting arrest and unlawful use of a weapon. On March 13, 1990, Mr. Johnson was sentenced by the trial court to three years imprisonment for resisting arrest and to a consecutive five-year term of imprisonment for the unlawful use of a weapon conviction. Mr. Johnson was sentenced as both a "prior" and "dangerous offender," §§ 558.016 and 557.036.4. Mr. Johnson filed a Rule 29.15 motion for postconviction relief. Following an evidentiary hearing, Mr. Johnson's motion was denied.
Appellant challenges on appeal his convictions on both counts. Although Mr. Johnson also appealed the judgment denying his motion for postconviction relief, he abandons that appeal. The judgment of conviction for unlawful use of a weapon, § 571.030.1(4), and the resulting five-year term of imprisonment are affirmed. The conviction for felony resisting arrest, § 575.150, is reversed.
On October 2, 1989, three St. Joseph, Missouri, police officers responded to the Heartland Hospital West in St. Joseph. They had been informed by their dispatcher that John C. Johnson was in Room 317 Annex at the hospital and that there were "a couple of warrants" for his arrest. Officers Galen Streeter, John Duty, and Larry Wion, along with two hospital security guards, went to Room 317. The door was ajar and Officer Wion saw the appellant run into the bathroom. Officer Wion yelled for Mr. Johnson to halt and that he was under arrest. Officer Wion attempted to open the bathroom door, but it was being held shut from the inside. On the second try, the door opened and Officer Wion saw Mr. Johnson run out the door on the other side of the bathroom.
Mr. Johnson entered Room 319 and crouched behind a hospital bed occupied by a patient who was connected to intravenous tubes. When Officer Streeter told Mr. Johnson to "hold it right there," Mr. Johnson yelled to the officers to stay away from him. When Officers Streeter and Wion moved toward Mr. Johnson, Mr. Johnson pushed the bed forward, opened the blade of a lock-blade knife, held the knife up, and grabbed the patient's gown.
Officer Duty drew his revolver and ordered Mr. Johnson to drop the knife. Mr. Johnson replied, Mr. Johnson lowered the knife but refused to drop it and maintained his hold on the patient's gown. Officer Streeter grabbed Mr. Johnson and Officer Wion was able to wrest the knife from Mr. Johnson's hand. A minor cut to Officer Wion's hand was the only injury experienced during the incident.
Mr. Johnson raises two points on appeal. His first point claims that the trial court erred in denying his motion to dismiss one of the two counts which, Mr. Johnson contends, violated the double jeopardy clause of the United States Constitution. Mr. Johnson claims that the conviction for the class D felony of unlawful use of a weapon supplied the essential element of threat of violence or physical force necessary to support his conviction for the class D felony of resisting arrest and that his conduct constituted but one offense for which the legislature did not intend multiple punishments. Because Mr. Johnson's second point on appeal is dispositive, this first point is not addressed.
Mr. Johnson's second point on appeal claims that the state failed to prove that the arrest Mr. Johnson was resisting was for a felony violation, an essential element of the felony resisting arrest conviction. Section 575.150. Mr. Johnson claims that no evidence was presented at trial that he was being arrested for a felony. Therefore, Mr. Johnson contends, his felony conviction for resisting arrest is improper.
Section 575.150 provides in pertinent part:
1. A person commits the crime of resisting or interfering with arrest if, knowing that a law enforcement officer is...
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State v. Good, s. 17276
...the court upheld two convictions based upon an act of distribution of the illegal drugs Desoxyn and Tuinol.5 Followed in State v. Johnson, 830 S.W.2d 36 (Mo.App.1992). However, MAI-CR 3d 329.60 embodies a different construction of § 575.150 concerning the distinction between the felony and ......
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State v. Stoer, s. 17206
...resisting arrest for a felony is only a felony if the resistance is accomplished by a means other than flight. State v. Johnson, 830 S.W.2d 36, 38 (Mo.App.1992). The Notes on Use to MAI-CR 3d 329.60 instruct Resisting one's own arrest by fleeing from an arresting law enforcement officer is ......
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State v. Patterson, WD 78203
...altogether or insufficient to prove beyond a reasonable doubt that the underlying arrest was for a felony. See, e.g., State v. Johnson, 830 S.W.2d 36, 38 (Mo.App.W.D. 1992) (noting State's acknowledgement that the information failed to plead and that no evidence was presented to prove that ......