State v. Stoer, s. 17206

• Decision Date: 01 September 1993
• Docket Number: Nos. 17206,18500,s. 17206
• Citation: 862 S.W.2d 348
• Parties: STATE of Missouri, Respondent, v. Roland R. STOER, Appellant. Roland R. STOER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 348

862 S.W.2d 348

STATE of Missouri, Respondent, v. Roland R. STOER, Appellant.

Roland R. STOER, Appellant, v. STATE of Missouri, Respondent.

Nos. 17206, 18500.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 1, 1993.

Request for Rehearing and/or Request for Transfer to

Supreme Court Denied Sept. 22, 1993.

Application to Transfer Denied Oct. 26, 1993.

Ellen H. Flottman, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM.

A jury found Defendant guilty of burglary in the first degree, § 569.160 ¹ (Count I), robbery in the first degree, § 569.020 (Count II), assault in the second degree, § 565.060 (Count III), armed criminal action, § 571.015 (Count IV), and felony resisting arrest, § 575.150 (Count V). He was sentenced as a prior offender to imprisonment as follows: fifteen years on Count I, thirty years on Count II, seven years on Count III, one hundred years on Count IV, and five years on Count V. The sentences were ordered to "run consecutive to each other." Defendant appeals in No. 17206.

After the trial, Defendant filed a motion for postconviction relief under Rule 29.15. The motion was denied after an evidentiary hearing. From that denial, Defendant appeals in No. 18500. We have consolidated the appeals, which will be dealt with separately.

No. 17206

In this appeal, Defendant claims the trial court erred in (1) submitting the verdict director on resisting arrest, (2) failing to sever Counts I and II from the remaining counts, and (3) submitting the instruction defining reasonable doubt.

The evidence favorable to the verdict follows. On February 6, 1989, Defendant escaped from the Fordland Honor Camp, a facility of the Missouri Department of Corrections, where he was incarcerated for beating his parents to death. About 2:00 p.m. that day Defendant knocked on the apartment door of Daphne Bolton in Springfield, Missouri. After she answered the door, Defendant pushed his way inside and demanded she give him her car keys and money. Bolton complied and Defendant was given $30 in cash. Defendant pushed her into the kitchen and struck her on the head. He then pushed her down the hallway into a bedroom where he tied her to the bed. After doing so, Defendant struck her on the back of the head five or six more times. When Bolton heard Defendant leave, she untied herself, called the police and reported her 1984 Chrysler missing.

Bolton was taken to the hospital for treatment of four or five head wounds which required numerous stitches to close. She testified her head hurt and the wounds bothered her for about a week.

About 3:00 p.m. the same day, Officer Bruce Waterman of the Springfield Police Department saw Defendant driving the car reported stolen from Ms. Bolton. He activated his red lights and siren and pursued Defendant, who refused to stop. The chase ended when Defendant struck a boat in a residential driveway. Officer Waterman drew his pistol and told Defendant he was under arrest for burglary and robbery. Defendant ran from the scene with Officer Waterman in pursuit. The officer reholstered his weapon during the foot chase and at one point tried to grab Defendant. Wildly swinging his fists, Defendant broke away and continued running. Finally, when Defendant fell trying to climb a fence, the officer caught him. A struggle ensued and Defendant grabbed the officer's pistol which was variously pointed at both combatants during the encounter. Defendant's efforts failed and he was eventually subdued. At trial, Defendant presented no evidence.

Defendant's first point alleges the trial court erred in submitting Instruction No. 14, patterned after the two instructions under MAI-CR 3d 329.60. Defendant claims the instruction violated his rights to due process and a fair trial because the jury was instructed on both resisting arrest by fleeing (a class A misdemeanor) and resisting arrest by using or threatening to use violence or physical force (a class D felony).

Instruction No. 14 reads:

As to Count V, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 6, 1989, in the County of Greene, State of Missouri, Bruce Waterman was a law enforcement officer, and

Second, that Bruce Waterman was making an arrest of the defendant for burglary, and

Third, that defendant knew that a law enforcement officer was making an arrest of defendant, and

Fourth, that for the purpose of preventing the officer from making the arrest, the defendant resisted the arrest by fleeing from the officer and by using or threatening to use violence or physical force,

then you will find the defendant guilty under Count V of resisting arrest.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

Under § 575.150 a person commits the crime of resisting arrest "if, knowing that a law enforcement officer is making an arrest, for the purpose of preventing the officer from effecting the arrest, he: (1) Resists the arrest of himself by using or threatening the use of violence or physical force or by fleeing from such officer...." The statute also states, "Resisting, by means other than flight, ... an arrest for a felony is a class D felony; otherwise, resisting ... arrest is a class A misdemeanor." Therefore, 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 that:

Resisting one's own arrest by fleeing from an arresting law enforcement officer is a class A misdemeanor, whether the arrest is for a felony or not, and is submitted by using MAI-CR 3d 329.60.1.

Resisting or interfering with an arrest as submitted by MAI-CR [3d] 329.60.2 can be either a class D felony or a class A misdemeanor.

Here, the State obviously combined MAI-CR 3d 329.60.1 and 329.60.2 to instruct the jury on both fleeing and the use of violence or force.

Rule 28.02(f) states: "The giving or failure to give an instruction or verdict form in violation of this rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined." However, "[e]rror standing alone ... is not sufficient to overturn the jury's determination of guilt. There must be a showing of prejudice to the appellant as a result of the error before there are grounds to upset the verdict." State v. Gilmore, 797 S.W.2d 802, 805 (Mo.App.1990). "Prejudice, as that term is used in connection with erroneous jury instructions, is defined as the potential for misleading or confusing the jury." State v. Green, 812 S.W.2d 779, 787 (Mo.App.1991).

Defendant claims he was prejudiced because the jury could have found that he resisted arrest by fleeing and reached a guilty verdict under Instruction No. 14. Defendant misreads the instruction. As submitted, the instruction allowed a guilty verdict only if the jury found Defendant resisted arrest by fleeing and by using or threatening to use violence or physical force. Clearly, the instruction placed a greater burden than necessary on the State by adding the requirement of flight. "A criminal jury instruction that puts an additional burden on the state beyond that which is legally required in order to establish guilt, is not prejudicial to the defendant." State v. Livingston, 801 S.W.2d 344, 350 (Mo. banc 1990).

Instruction No. 14 was not the proper instruction, but the deviation from the Notes on Use was not prejudicial and is not a basis for reversal. The instruction was not misleading or confusing to the jury because the evidence revealed Defendant's flight, violence and physical force. Without question, the instruction required the State to establish all the elements of felony resisting arrest. Point I is denied.

In his point II, Defendant alleges the trial court abused its discretion in denying Defendant's motion for severance which sought to sever the trial of the burglary and robbery counts from the remaining counts. Defendant argues the counts involving Ms. Bolton (Counts I and II) were totally separate crimes from those involving Officer Waterman (Counts III, IV and V), and he was substantially prejudiced when all the counts were tried together.

Resolving this contention requires a two-step analysis. "First is whether the offenses were properly joined in the indictment. If joinder was proper then it is necessary to determine whether the trial court abused its discretion in refusing to sever." State v. Hughes, 787 S.W.2d 802, 804 (Mo.App.1990). Joinder is either proper or improper under the law while severance is discretionary. State v. Smith, 682 S.W.2d 861, 863 (Mo.App.1984).

Joinder is governed by § 545.140.2 and Rule 23.05. Both provide, in pertinent part, joinder of two or more offenses that constitute parts of a common scheme or plan is proper. To find a common scheme or plan the offenses charged must be the product of a single or continuing motive. State v. Morant, 758 S.W.2d 110, 114 (Mo.App.1988). Here, Defendant's offenses were all part of his plan to escape from the Fordland Honor Camp, evade police and flee from the area. See State v. White, 857 S.W.2d 344, 348 (Mo.App.E.D.1993). In order to successfully escape, Defendant needed a car and money. He obtained both from the burglary and robbery of Ms. Bolton. In fleeing from the area, it was also necessary to evade the police. As Defendant drove the stolen vehicle, Officer Waterman alertly spotted him and gave chase. Defendant's remaining criminal acts resulted from his apprehension while he pursued his plan to escape. On similar facts, a common scheme or plan was found to uphold joinder in State v. Foerstel, 674 S.W.2d 583 (Mo.App.1984), and State v. White, supra. We find joinder was...