State v. Jordan

• Decision Date: 20 December 2005
• Docket Number: No. ED 84583.,ED 84583.
• Citation: 181 S.W.3d 588
• Parties: STATE of Missouri, Respondent, v. Larry JORDAN, Appellant.
• Court: Missouri Supreme Court

181 S.W.3d 588

STATE of Missouri, Respondent, v. Larry JORDAN, Appellant.

No. ED 84583.

Missouri Court of Appeals, Eastern District, Division Two.

December 20, 2005.

COPYRIGHT MATERIAL OMITTED

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

Deborah Daniels, Evan J. Buchheim, Jefferson City, MO, for respondent.

GEORGE W. DRAPER III, Judge.

Larry Jordan (hereinafter, "Defendant") appeals from the trial court's judgment after a jury found him guilty of: assaulting a law enforcement officer in the third degree, Section 565.083 RSMo (2000);¹ assaulting a law enforcement officer in the second degree, Section 565.082; armed criminal action, Section 571.105; felony resisting arrest, Section 575.150; felony driving while intoxicated, Section 577.010; and driving while revoked, Section 302.321. Defendant was sentenced to a total of fifteen years' imprisonment.

Defendant raises two points on appeal. First, Defendant argues the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence because he alleges there was insufficient evidence to convict him of felony resisting arrest. Second, Defendant argues the trial court abused its discretion in overruling his objection and allowing the State to introduce the blood alcohol content when the State failed to lay a proper foundation for the results. We affirm in part, reverse in part.

Viewing the evidence in the light most favorable to the jury's verdict, the facts are as follows: On June 1, 2002, Officer Steven Wooten (hereinafter, "Officer Wooten") was working secondary employment as a security officer directing traffic for a large church festival in Bridgeton, Missouri. Officer Wooten observed a Cadillac heading north in the southbound lane of Fee Fee Road. As the Cadillac approached the intersection where Officer Wooten was directing traffic, he noticed the vehicle did not have brake lights or a license plate. Officer Wooten raised his hands and motioned the driver to slow down. The Cadillac slowed down as it passed Officer Wooten and came to a stop behind another vehicle at the stoplight. After receiving complaints from other motorists about the driving of the Cadillac, Officer Wooten approached the vehicle.

Upon reaching the Cadillac, Officer Wooten instructed the driver, Defendant, not to move the vehicle when the stoplight turned green. Defendant questioned Officer Wooten's reasons for wanting to see his driver's license. Expressing his disagreement, Defendant cursed, at which point Officer Wooten reached into the car in an attempt to find the car keys in order to turn off the ignition. The steering column had been pried open, so Officer Wooten tried to reach the gear selector to put the Cadillac into park. At this point, Defendant turned the steering wheel and began accelerating, thereby catching Officer Wooten's arm inside the car. As soon as Officer Wooten was able to extract his arm, Defendant turned the car away, hitting Officer Wooten in the right knee and driving off.

Officer Wooten radioed for assistance, stating he was struck by the Cadillac which was traveling northbound on Fee Fee Road and providing a description of Defendant. Officer Daniel O'Connor (hereinafter, "Officer O'Connor"), Officer Brian Pulling (hereinafter, "Officer Pulling"), and Officer Jimmy Livingston (hereinafter, "Officer Livingston") responded to the call in separate marked police vehicles with their lights and sirens activated. These officers attempted to stop Defendant several times while Defendant led the officers on a chase through a residential neighborhood, which resulted in Defendant ramming Officer O'Connor's vehicle.

After the collision, Officer O'Connor and Officer Livingston exited their vehicle and approached the Cadillac. The engine was racing and the wheels continued spinning. Defendant was belligerent, yelling, and cursing at the officers, threatening to kill them. Officer Livingston walked up to the driver's side door in an attempt to "get [Defendant] under control." Defendant was ordered to stop accelerating the vehicle, but he refused to do so. Officer Livingston reached in to turn off the vehicle, and Defendant grabbed him by the arm and attempted to pull him into the vehicle. An altercation ensued, and Officer Livingston struck Defendant several times. Ultimately, Defendant was removed from the vehicle and arrested.

Defendant's speech was slurred, there was a strong odor of alcohol on his breath, and he continued to be belligerent by continuing to curse and yell at the officers. Officer Pulling found bottles of alcohol and beer in the vehicle, some of which had been consumed. Later, after Defendant was taken to the hospital, Officer Pulling requested that blood be drawn for testing.

Defendant was charged initially with two counts of assaulting a law enforcement officer in the first degree, two counts of armed criminal action, one count of felony resisting arrest, one count of driving while intoxicated, and one count of driving while revoked. The indictment was amended later to reduce one of the assaults of a law enforcement officer in the first degree to a second degree offense. Defendant filed motions to suppress the blood alcohol content evidence and statements made during the course of the incident. These motions were denied.

After a jury trial, Defendant was found guilty of one count of assault of a law enforcement officer in the third degree, assault of a law enforcement officer in the second degree, one count of armed criminal action, one count of felony resisting arrest, one count of driving while intoxicated, and one count of driving while revoked. As a prior and persistent offender, Defendant was sentenced to a total of fifteen years' imprisonment. Defendant appeals.

In his first point on appeal, Defendant argues the trial court erred in overruling his motion for judgment of acquittal at the close of the State's case for felony resisting arrest. Defendant argues there was insufficient evidence presented that Officer Livingston intended to arrest him for assaulting a law enforcement officer in the first degree, a class A felony.,² Therefore, the jury could not find beyond a reasonable doubt that he was guilty of felony resisting arrest.

We limit our review of a challenge to the sufficiency of the evidence supporting a criminal conviction to a determination of whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). For this review, we consider the evidence and all reasonable inferences drawn therefrom in the light most favorable to the jury's verdict, and disregard all contrary evidence and inferences. Id. While reasonable inferences may be drawn from direct and circumstantial evidence, "the inferences must be logical, reasonable and drawn from established fact." State v. Presberry, 128 S.W.3d 80, 91 (Mo.App.E.D.2003). "In considering the sufficiency of the evidence, there must be sufficient evidence of each element of the offense." State v. Dixon, 70 S.W.3d 540, 544 (Mo.App. W.D.2002).

The State has the burden to prove each and every element of a criminal case. State v. Taylor, 126 S.W.3d 2, 4 (Mo.App. E.D.2003). If the State fails to produce sufficient evidence to sustain a conviction, we must reverse the trial court's judgment. State v. West, 21 S.W.3d 59, 61 (Mo.App. W.D.2000).

The three elements of resisting arrest are: (1) knowledge that a law enforcement officer is making an arrest; (2) purpose on the part of the defendant to prevent the officer from effecting the arrest; and (3) resisting the arrest by use or threat of violence of physical force. State v. Larner, 844 S.W.2d 490, 492 (Mo.App. E.D.1992); Section 575.150. "[R]esisting arrest is a felony offense only if the underlying offense is a felony and the resistance is accomplished by a means other than flight." DeClue v. State, 3 S.W.3d 395, 397 (Mo.App. E.D.1999)(quoting State v. Furne, 642 S.W.2d 614, 616 (Mo. banc 1982)). The relevant inquiry is not whether the defendant is guilty of the charge for which he or she was arrested, but whether the arresting officer contemplated making a felony arrest. State v. Merritt, 805 S.W.2d 337, 339 (Mo.App. E.D.1991).

The State focuses on the collective testimony of the officers involved to show the reasonable inference from all of the evidence was that Officer Livingston contemplated arresting Defendant for a felony. This Court recently addressed a similar situation. In State v. Brooks, 158 S.W.3d 841 (Mo.App. E.D.2005), there was more than one police officer involved in the apprehension and arrest of the defendant. This Court stated:

Before we begin our analysis, it should be made clear that [Brooks] was charged with resisting arrest by Officer Farrow, the officer who followed the suspect truck. He was not charged with resisting arrest by Officer Siebum, the officer who found him in the shed. Arguments made by the parties regarding [Brooks'] encounter with Officer Siebum are misplaced and are not material to whether [Brooks] resisted arrest by Officer Farrow. It follows that any facts pertaining to [Brooks'] encounter with Officer Siebum are immaterial to our review.

Id. at 851.

Likewise, we find any arguments made with respect to Officer O'Connor's encounter with Defendant are immaterial to our review here. Even assuming arguendo we were to consider Officer O'Connor's testimony at trial, to wit: "He struck an officer. We were planning on arresting him for the charges, evading my red lights, and siren" this evidence would only establish resisting arrest by flight which does not constitute felony resisting arrest. Cf. Section 575.150.

At trial, Officer Livingston testified that when he approached Defendant after the chase, his intention was to "bring him under control ... and stop the vehicle." At no point in Officer Livingston's testimony did he indicate...