State v. Mast

• Decision Date: 15 July 1986
• Docket Number: No. 49789,49789
• Citation: 713 S.W.2d 601
• Parties: STATE of Missouri, Respondent, v. Steve MAST, Appellant.
• Court: Missouri Court of Appeals

Page 601

713 S.W.2d 601

STATE of Missouri, Respondent, v. Steve MAST, Appellant.

No. 49789.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 15, 1986.

Howard L. Snowden, Private Atty., La Grange, for appellant.

Frederick Leo Westhoff, Pros. Atty., Canton, for respondent.

DOWD, Judge.

Defendant, Steve Mast, appeals his jury conviction on Count I, unlawful assembly in violation of § 574.040 RSMo (1979), a Class B misdemeanor, and on Count II, refusal to disperse from an unlawful assembly, in violation of § 574.060 RSMo (1979), a Class C misdemeanor. On Count I, defendant was sentenced to a fine of $250.00 plus costs. On Count II, defendant was sentenced to two days in jail plus a fine of $100.00 plus costs. The information was filed in Lewis County, and after a change in venue, a jury trial was held in the Knox County Circuit Court. Defendant appeals from these convictions.

On appeal, defendant contends the evidence was insufficient to support the convictions and it was therefore error not to grant his motions for judgments of acquittal.

In testing the sufficiency of the evidence by a motion for judgment of acquittal, the evidence must be viewed in the light most favorable to the state, assuming the evidence of the state and every reasonable inference therefrom to be true, and the evidence and inferences to the contrary are disregarded. State v. Newton, 637 S.W.2d 805, 806 (Mo.App.1982).

On October 31, 1984, Halloween night, defendant, a student at Northeast Missouri State College in Kirksville, drove to the town of Maywood so that he could participate in the traditional Halloween gathering with his friends. Defendant was aware of Maywood's reputation for "anything goes on Halloween." He had been in Maywood on Halloween in past years, and arrived in Maywood around 5:45 p.m. with a friend, Donnie Martin. Defendant was dressed in his ROTC army fatigues and his face was covered with a black substance. Defendant had a bundle of bottle rockets in his possession and Donnie Martin carried a can of spray paint in his back pocket.

After arriving in Maywood, defendant and Donnie Martin socialized with some friends in front of a general store. Jerry Callow, the deputy sheriff, and Steve Waters, the special deputy appointed for Halloween night, warned defendant and his friends "to keep it down and keep it within reason." At that time, the officers explained to them that seven or more gathered constituted an illegal assembly, but as long as they were not doing anything but having fun, then the officers had no objections. Moreover, Waters informed defendant that it was not illegal to possess bottle rockets, but it was illegal to fire the bottle rockets. Additionally, he confiscated Donnie Martin's can of spray paint because of previous acts of vandalism.

Throughout the course of the night, different unlawful activities transpired such as: bottle rockets were set off in close vicinity to the general store's gas pumps and in the direction of the police car; Mr. Seals' house was egged and a stop sign was placed on his front porch; fire bombs and M-80s were set off; and eggs, bottle rockets, and a beer bottle were all thrown in the direction of the officers and their patrol car. In fact, Officer Callow was struck by an egg.

All of the above occurrences are not attributable to the defendant, but in the course of the evening the officers saw the defendant set off one bottle rocket away from the crowd and the buildings. The officers had difficulty identifying and determining the members of the crowd who were taking part in the unlawful activities. At one point in the evening, Deputy Callow told the crowd that they were getting unruly and committing unlawful acts, and consequently he "asked them to break it up." In response to his request, the crowd divided up into groups of four or five, but these groups did not separate far from each other and proceeded to call the officers names. After the officers departed, the crowd regrouped and continued to set off bottle rockets and fire bombs and throw eggs. Shortly after 10:30 p.m., the two officers turned on the red lights of their patrol car, drove up to the scattering crowd and made some arrests. Waters saw defendant in the middle of the crowd, immediately prior to this time, but he did not see defendant after the arrests.

This is the first appellate attack on the present unlawful assembly statute (§ 574.040 RSMo 1978). This statute provides in part:

1. A person commits the crime of unlawful assembly if he knowingly assembles with six or more other persons and agrees with such persons to violate any of the criminal laws of this state or of the United States with force or violence.

A presumption exists "that the intent of the legislature in enacting a statute is to serve the best interests and welfare of the citizenry at large." Tribune Publishing Company v. Curators of University of Missouri, 661 S.W.2d 575, 583 (Mo.App.1983). This presumption must take into consideration the fact that the legislature did not intend to effect an unreasonable, oppressive or absurd result. Supra at 583. Consequently, when interpreting § 574.040, we must determine the legislature's intent from what can be necessarily implied from the language it employed, because the legislature did not expressly state its intention. By identifying the general purposes for enacting a statute and by identifying the problem sought to be remedied, we can ascertain legislative intent. Sermchief v. Gonzales, 660 S.W.2d 683, 688 (Mo. banc 1983).

Since § 574.040 was enacted, no Missouri case has interpreted this statute. However, other jurisdictions have addressed this issue interpreting similar statutes. The court in Lair v. State, 316 P.2d 225, 234 (Okla.Crim.App.1957), defined an unlawful assembly as being an assembly which consists of three or more persons assembled to do an unlawful act or who being assembled, attempt to do a lawful act in a violent or unlawful manner to the terror and the disturbance of the public in general. See also BLACK'S LAW DICTIONARY 1377 (5th ed. 1979). To constitute the offense of unlawful assembly, the participants must have a common purpose and act in concert. The intent or purpose necessary to render an assembly unlawful need not exist from the onset, but may be formed either before or at the time of the assembly. Lair v. State, supra at 234.

An unlawful assembly causes a disturbance of the public order so that it is reasonable for rational, firm and courageous persons in the neighborhood of the assembly to believe the assembly will cause injury to persons or damage to property and will interfere with the rights of others by committing disorderly acts. Lair v. State, supra at 234; State v. Simpson, 347 So.2d 414, 415 (Fla.1977). The intent with which such persons assemble is the very offense of unlawful assembly in that this intent is reflected by the participants' acts, conduct and language. Lair v. State, supra at 235. The purpose of unlawful assembly statutes is to discourage assemblies which interfere with the rights of others and endanger the public peace and excite fear and alarm among the people. State v. Hipp, 298 Minn. 81, 213 N.W.2d 610, 615 (1973).

Even though a person does not individually commit a violent act which poses a clear and present danger of violence, this individual can be guilty of unlawful assembly. In Re Wagner, 119 Cal.App.3d 90, 173 Cal.Rptr. 766, 771 (1981). The statutory denunciation applies to the assembly at large. Annot., 71 A.L.R.2d 875 (1960). Consequently, each member of an assembly need not individually commit unlawful acts to render the assembly unlawful, but a person can become a member of an unlawful assembly by not disassociating himself from the group assembled and by knowingly joining or remaining with the group assembled after it has become unlawful. In Re Wagner, supra at 771. Whether a person acted knowingly and whether the necessary intent existed, are both questions of fact for the jury. Supra at 771.

If it were necessary that each member of an unlawful assembly commit an unlawful act, before that member could be convicted then there would be no necessity to make participation in the unlawful assembly a crime. The independent unlawful act would itself be grounds for prosecution.

Supra at 771. In short, every person who is present and cognizant of the unlawful acts...