State v. Nicholson, s. WD
| Decision Date | 30 June 1992 |
| Docket Number | Nos. WD,s. WD |
| Citation | 839 S.W.2d 593 |
| Parties | STATE of Missouri, Respondent, v. Douglas NICHOLSON, Appellant. 44154, WD 45116. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Columbia, for appellant.
William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.
Before HANNA, P.J., and FENNER and ULRICH, JJ.
Douglas Nicholson appeals his conviction for felonious escape from custody, § 575.200, RSMo 1986, and his sentence as a prior and persistent offender, §§ 558.016 and 557.036.4, RSMo 1986. Mr. Nicholson contends on appeal that (I) the amended information charging him with felonious escape from custody is fatally defective because the charging instrument does not allege that when Mr. Nicholson escaped he was in custody after an arrest for a felony, an essential element of § 575.200, and (II) there is insufficient evidence proving that Mr. Nicholson was in the custody of a police officer, an essential element of § 575.200. 1 The judgment is reversed.
The evidence at trial established the following facts. On June 18, 1990, Officer Cathy Dodd, Columbia Police Department, after reviewing a laboratory test result from the Missouri Highway Patrol, determined that probable cause existed to arrest Mr. Nicholson for a felony. Officer Dodd attempted to locate Mr. Nicholson by leaving a message at the home of an acquaintance of Mr. Nicholson that Officer Dodd had items belonging to Mr. Nicholson and that Mr. Nicholson could contact Officer Dodd at the Columbia Police Department to retrieve the items.
Mr. Nicholson arrived at the police station around 6:30 p.m. while Officer Dodd was on patrol. The officer returned from patrol and greeted Mr. Nicholson in the public portion of the police station lobby. Officer Dodd asked Mr. Nicholson to accompany her to the secured area of the station in order to retrieve his property, but he declined. After making several unsuccessful attempts to persuade Mr. Nicholson to accompany her to another area of the station, Officer Dodd approached Mr. Nicholson, showed him the incriminating lab results, and told him he was under arrest for a felony. Mr. Nicholson denied culpability. Officer Dodd informed Mr. Nicholson again that he was under arrest. Mr. Nicholson then stood up and ran out the front door of the police station. Officer Dodd radioed for assistance, and several officers pursued Mr. Nicholson. Mr. Nicholson was apprehended about five minutes later.
The jury found Mr. Nicholson guilty of felonious escape from custody, § 575.200, RSMo 1986. The court accordingly sentenced Mr. Nicholson as a prior and persistent offender to five years' imprisonment. Mr. Nicholson filed a Rule 29.15 motion, which was denied. Mr. Nicholson appeals only his conviction and sentence.
Mr. Nicholson contends for his first point that the information charging him with felonious escape from custody is fatally defective because it failed to allege that he was in custody for a felony when he escaped, an essential element of § 575.200. The information charges:
[T]he defendant, Douglas J. Nicholson: In violation of Section 575.200, RSMo, committed the Class D felony of escape from custody, punishable upon conviction under Sections 558.011.1(4) and 560.011, RSMo, in that on or about the 18th day of June, 1990, in the County of Boone, State of Missouri, the defendant, while being held in custody after arrest for possession of a controlled substance, escaped from custody, and all against the peace and dignity of the State.
Mr. Nicholson contends that the phrase "after arrest for possession of a controlled substance," does not specifically state that he was arrested for a felony.
The purposes of an information are threefold: first, to inform the defendant of the charges filed against him so he can adequately prepare his defense; second, to preclude his retrial on the same issues; and third, to allow the trial court to determine whether sufficient facts are alleged to support the conviction. State v. Gilmore, 650 S.W.2d 627, 628 (Mo. banc 1983). An information is sufficient if it contains all the essential elements of an offense as set forth in the statute and it apprises the defendant of the facts constituting the offense. State v. Turner, 705 S.W.2d 108, 109 (Mo.App.1986). The charge must allege all elements of the crime intended to be charged, and if an element is omitted, it cannot be supplied by intendment or implication. Gilmore, 650 S.W.2d at 629. The trial court lacks jurisdiction if an information is fatally insufficient, and any proceedings that transpired after a defective information is filed are a nullity. State v. Gilmore, 650 S.W.2d at 628; State v. Murphy, 787 S.W.2d 794, 796-97 (Mo.App.1990).
An indictment or information is sufficient if it adequately alleges through its factual assertions the essential elements constituting the criminal offense. State v. Turner, 705 S.W.2d at 109. Turner held that the information must either state specifically the essential elements of a criminal offense or must plead factually, by the collective meaning of the words charging the offense, all of the essential elements of the crime. Id. Thus, the information must either specifically or collectively allege that Mr. Nicholson escaped from custody after being arrested for a felony. This essential element was included in the information through the collective meaning of its factual assertions.
Section 575.200 prescribes that an escape from custody is a class A misdemeanor unless the escape is either "effected or attempted by means of a deadly or dangerous instrument or by holding any person hostage ...," which is then a class A felony pursuant to § 575.200.2(1), or the escape is made while the escapee is under arrest for a felony, in which case the offense is a class D felony. § 575.200.2(2). A person possessing a controlled substance can be charged with either a misdemeanor or a felony. See § 195.202.3, RSMo Supp.1990. 2 The information states that "the defendant, Douglas J. Nicholson, ... committed the class D felony of escape from custody ... [after] being held in custody after arrest for possession of a controlled substance...." This allegation in the charging instrument sufficiently charges Mr. Nicholson with being under arrest for a felony when he purportedly escaped, an essential element of § 575.200.2(2), a class D felony. The information, by charging Mr. Nicholson with class D felonious escape from arrest, sufficiently alleges that Mr. Nicholson was under arrest for a felony when he allegedly escaped because the controlled substance he purportedly possessed must either have been a specific controlled substance other than marijuana or marijuana in a quantity greater than thirty-five grams, which identifies the offense as a felony by statutory definition. See § 195.202. Therefore, the information charging Mr. Nicholson with felonious escape from arrest is sufficient. 3 Mr. Nicholson's first point is denied.
Mr. Nicholson advances for his second argument that the trial court erred in overruling his motion for judgment of acquittal because, Mr. Nicholson contends, the state's evidence did not sufficiently prove beyond a reasonable doubt that he had been arrested and was being held in custody, an essential element of § 575.200. Appellate courts review a challenge to the sufficiency of the evidence by viewing the evidence and all reasonable inferences from such evidence in the light most favorable to the state and disregard all contrary evidence. State v. Woods, 620 S.W.2d 443, 444 (Mo.App.1981).
Section 575.200 defines the offense for which Mr. Nicholson was convicted as follows: "A person commits the crime of escape from custody ... if, while being held in custody after arrest for any crime, he escapes ... from custody." (Emphasis added.) "[A] person is in custody when he has been arrested but has not been delivered to a place of confinement...." § 556.061(7), RSMo Supp.1991. An arrest is made by either the "actual restraint of the person of the defendant, or by his submission to the custody of the officer...." § 544.180, RSMo 1986.
The United States Supreme Court recently defined the term "arrest," within the provision of the Fourth Amendment, to mean either the actual restraint by physical force or, where this is absent, submission by the person to the law enforcement officer's assertion of authority. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 1551-52, 113 L.Ed.2d 690 (1991). The Court held that an officer's "show of authority," which is intended to stop a fleeing individual, does not constitute an arrest if the individual does not stop. Id. 111 S.Ct. at 1552. Accordingly, "[t]he subjective Mendenhall test that a person was seized as soon as 'a reasonable person would have believed that he was not free to leave,' has been modified." State v. Shahid, 813 S.W.2d 38, 40 (Mo.App.1991) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)).
Section 544.180 does not conflict with the United States Supreme Court's definition of arrest enunciated in Hodari D. Both Hodari D. and § 544.180 define arrest as the suspect's actual restraint by physical force or the suspect's submission to the officer's custody. The Eastern District in State v. Shahid, 813 S.W.2d at 40, Hodari D., held that a fleeing suspect has not been arrested until he has either been physically apprehended or until he submits to the authority of the law enforcement officer. Thus, in order for the conviction to be affirmed, substantial evidence must have been presented establishing that Mr. Nicholson was either under the actual restraint of Officer Dodd or that he had submitted to her "show of authority," thereby constituting an arrest.
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