State v. Mack

• Decision Date: 15 February 2000
• Citation: 12 S.W.3d 349
• Parties: (Mo.App. W.D. 2000) . State of Missouri, Respondent, v. Willie Mack, Appellant. WD56489 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

12 S.W.3d 349 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Willie Mack, Appellant.

WD56489

Missouri Court of Appeals Western District

Handdown Date: 02/15/2000

Appeal From: Circuit Court of DeKalb County, Hon. Stephen K. Griffin

Counsel for Appellant: Kent Denzel

Counsel for Respondent: Attorney General's Office

Opinion Summary:

Inmate Willie Mack appeals his conviction of committing violence against Corrections Officer Randy Fletchall for spitting in his face.

REVERSED.

Division One holds:

Under its plain and ordinary meaning, "violence" as used in section 217.385 does not encompass spitting. After reviewing definitions of this term from various sources including dictionaries, case law, and other relevant statutes, this Court rejects the State's argument that because force is required to impel saliva from one's mouth, a person who spits on another has committed violence on that person.

Mack may well have violated other statutes, such as those prohibiting unwanted physical contact. There is, however, a distinction between proof of unwanted physical contact, and committing violence. While spitting is the former, it does not, at least in the circumstances of this case, constitute the latter.

Opinion Author: Laura Denvir Stith, Presiding Judge

Opinion Vote: REVERSED. Howard and Newton, J.J., concur.

Opinion:

Defendant Willie Mack was convicted of committing violence against an employee of the Department of Corrections under Section 217.385 RSMo Cum. Supp. 1995 for spitting in the face of Officer Randy Fletchall. Mr. Mack appeals, arguing that spitting does not rise to the level of "violence" under Section 217.385. We agree. While such conduct may be actionable as third degree assault under Section 565.070.1(5) RSMo 1994, or under other statutes, it does not constitute violence as that term is used in Section 217.385. Accordingly, we reverse. I. STATEMENT OF FACTS

Viewed in the light most favorable to the verdict, the facts adduced at trial are as follows:

At approximately 1:00 p.m. on November 13, 1996, the classification staff at the Western Missouri Correctional Center (WMCC) in DeKalb County, Missouri, sent Randy Fletchall, a Corrections Officer at WMCC a list of inmates to be placed under "room restriction." This list included Defendant.

Being under room restriction is one of many sanctions that may be imposed on inmates who violate the rules of the correctional center. Once it is imposed, the inmates are required to remove their gray clothing in return for blue clothing. This difference in the color of the clothing assists the officers in the correctional center in determining whether inmates are where they are supposed to be.

According to the testimony of Steven E. Moore, Associate Superintendent of Inmate Management for WMCC, before an inmate is placed under room restriction, the inmate is granted a hearing before a disciplinary hearing officer to discuss the imposition of the sanction. Mr. Mack denies receiving a hearing concerning his placement under this restriction and nothing in the record indicates that such a hearing took place.

The evidence was that, upon learning that Defendant was to be placed under room restriction, Mr. Fletchall called Defendant over a voice amplification device and requested that he report to the control unit of the correctional center. When Mr. Mack arrived, Mr. Fletchall instructed him to turn in his gray clothes in return for blue clothes. Mr. Mack began to argue with Mr. Fletchall, believing that he should not be placed under room restriction, and demanded to know why he was being sanctioned.

When Mr. Mack continued to resist Mr. Fletchall's orders, the latter began to fear that the heated nature of their exchange might lead to behavior problems involving other inmates who were near enough to hear them. To avoid escalating the situation, Mr. Fletchall therefore asked Mr. Mack to go with him to the classification office where the matter could be discussed outside the presence of the other inmates. Defendant voluntarily accompanied Mr. Fletcher to this office.

Once in the office, Mr. Fletchall again demanded that Defendant turn in his gray clothes. Mr. Mack continued to defy these orders, stating that he did not know why he was being placed under room restriction, and asking the reason. Officer Fletchall stated at trial that he did not know the reason for the sanction. He could have found out, but did not do so because he thought doing so would have interfered with the tasks he had to complete.

Although Mr. Mack made no threats, gestures, or contact with Mr. Fletchall, Officer Fletchall feared that Mr. Mack's continued refusal to obey him might lead to physical violence. He therefore ordered Defendant to "cuff up," that is, to allow himself to be handcuffed by placing his hands behind his back. Despite several requests, Mr. Mack refused to allow himself to be handcuffed. Officer Fletchall then informed Mr. Mack that if he continued to ignore the "cuff up" requests, Officer Fletchall would use mace. The officer removed a mace can from his belt, but Mr. Mack still failed to comply. At that point, Officer Fletchall testified that Mr. Mack turned towards him in a way that caused Mr. Fletchall to believe the encounter might escalate. Officer Fletchall therefore sprayed a one-second burst of mace into Mr. Mack's face.

Based on his observations of others who were sprayed with mace, compared to how Mr. Mack reacted, Officer Fletchall believed the mace did not work as well as it should have worked, for instead of turning away, Mr. Mack continued to look at him. This was an unusual reaction, according to the officer. In addition, Officer Fletchall noticed that he felt fewer peripheral effects of the mace in the air, too, compared to the effects he had noticed on other occasions when he had sprayed mace. Officer Fletchall kept his distance from Mr. Mack and called for assistance.

Within a few seconds, another officer arrived and ordered Mr. Mack to "cuff up". Defendant did so after a couple of requests. Once Mr. Mack was under the control of the other officer, Officer Fletchall went into the hallway to ensure that the path was clear. The other officer then brought Defendant out of the room and down the hallway. When Mr. Mack passed Officer Fletchall in the hall, he turned his head towards Officer Fletchall and spit. The spit went directly into Officer Fletchall's face and eye.

At trial, Mr. Mack testified that spitting in Officer Fletchall's face was purely accidental. He said that the mace had gone into his eyes and mouth and caused him to rub his eyes and spit uncontrollably. Thus, he claims, his spitting was only a reaction, not intentionally directed at Officer Fletchall, but intended to mitigate the effects of the mace. Although Officer Fletchall conceded the possibility that Mr. Mack could have been trying to get rid of the mace, he firmly believed that the mace had not affected Mr. Mack that much and that the spitting in his face was not accidental. He testified that when Mr. Mack passed him, he turned his head, cleared his throat, and spit in the direction of his face. Officer Fletchall has not suffered from any injury or illness as a result of this incident, and there is no evidence that Mr. Mack's saliva contained any infectious disease.

Mr. Mack was tried for violating Section 217.385, which prohibits "committing violence" to an employee of the department of corrections. The jury found him guilty. As a prior offender, he was sentenced by the judge. Although Judge Stephen K. Griffin orally stated at trial that Mr. Mack was a prior but not a persistent offender, his written judgment sentenced him as both a prior and persistent offender to six years imprisonment, the sentence to run consecutively to Mr. Mack's prior sentence.¹

II. STANDARD OF REVIEW

We review issues of law de novo, and give no deference to the trial court's determination. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998); State v. Tinoco, 967 S.W.2d 87, 89 (Mo. App. W.D. 1998). In reviewing sufficiency of the evidence claims, the "evidence and all reasonable inferences therefrom are reviewed in the light most favorable to the jury's verdict and any contrary evidence and inferences are discounted." State v. Smith, 944 S.W.2d 901, 916 (Mo. banc 1997). We consider whether, in light of this evidence, a jury could reasonably have found Defendant guilty beyond a reasonable doubt. State v. Dawson, 985 S.W.2d 941, 951 (Mo. App. W.D. 1999).

III. SPITTING DOES NOT CONSTITUTE VIOLENCE AGAINST A CORRECTIONS OFFICER

Defendant argues that the court erred in overruling his motion for judgment of acquittal on the charge that he committed violence against an employee of the department of corrections in violation of Section 217.385 because the State's evidence showed, at best, that he spit on Officer Fletchall while walking past him in handcuffs, and spitting alone does not constitute a violation of Section 217.385. That section states, in relevant part:

1. No offender shall knowingly commit violence to an employee of the department or to another offender housed in a department correctional center. Violation of this subsection shall be a class B felony.

Sec. 217.385. (emphasis added) Although Section 217.385 criminalizes violence against a corrections officer by an offender, neither it nor any other section in Chapter 217 defines "violence" as used in that statute. See Sec. 217.010 et seq. In the absence of such a statutory definition, prior cases have held that the word violence is a word of common usage and the courts should be guided by the plain and ordinary meaning of the term in instructing the jury. See e.g. State v. Carson, 941 S.W.2d 518, 521 (Mo. banc 1997) (words in statutes should be given their plain and ordinary meaning unless a special meaning is indicated); ...