State v. Summers
| Decision Date | 23 January 2001 |
| Citation | 43 S.W.3d 323 |
| Parties | (Mo.App. W.D. 2001) . State of Missouri, Respondent v. David Matthew Summers, Appellant. WD58150 Missouri Court of Appeals Western District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Howard County, Hon. Channing D. Blaeuer
Counsel for Appellant: Emmett D. Queener
Counsel for Respondent: Philip M. Koppe
Opinion Summary: David M. Summers appeals from his jury convictions for assault of a law enforcement officer and armed criminal action for which he was sentenced to consecutive prison terms of life and 50 years, respectively. He claims the evidence was insufficient to support his conviction for assaulting a law enforcement officer.
AFFIRMED.
Division Four holds: Summers's claim actually refers to the trial court's denial of his motion for judgment of acquittal notwithstanding the jury's guilty verdicts. In that context, he argues that his case should not have gone to the jury on those charges in that the State failed to prove each and every element of section 565.081 beyond a reasonable doubt. Specifically, Summers asserts that in order to make a submissible case on that offense, the State was required, but failed, to prove that the officer in question, at all pertinent times, was acting within his authority as a law enforcement officer.
Section 565.081 provides that "[a] person commits the crime of assault of a law enforcement officer in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer." "Law enforcement officer" for purposes of this section is defined in section 556.061(17) as "any public servant having both the power and duty to make arrests for violations of the laws of this state . . . ." Summers asserts that section 565.081.1 should be interpreted as requiring the State to show that the officer was acting lawfully with respect to his statutorily authorized powers and duties. In reading section 565.081 and section 556.061(17), and giving the language used its plain and ordinary meaning, this Court finds no such requirement for conviction.
Furthermore, an interpretation of section 565.081 as not requiring proof that the victim was acting constitutionally at the time of the alleged assault is consistent with the legislative intent expressed in section 575.150, regarding resisting or interfering with an arrest. In that regard, section 575.150.3, provides: This Court reads this statute as expressing a legislative intent to protect a law enforcement officer who in his or her official capacity as a law enforcement officer was attempting to carry out his or her official duty to effectuate an arrest even though he or she may have done so in an unconstitutional or unlawful manner. Thus, it seems illogical to us that given the same factual situation, an officer attempting to carry out an official duty, albeit unconstitutionally, the legislature would deny an officer the protection of section 565.081.
For the reasons stated, in order for the State to make a submissible case under section 565.081, it was not required to show that the victim was acting constitutionally in carrying out his official duties during the incident in question. As such, the State's evidence showing that the victim of the assault was a law enforcement officer, of which Summers was well aware, and that he was acting in his official capacity as a police officer at the pertinent times in question, was sufficient to make a submissible case under section 565.081. The trial court did not err in denying the motion for judgment of acquittal notwithstanding the verdicts.
David M. Summers appeals from his jury convictions for the class A felonies of assault of a law enforcement officer in the first degree, section 565.081.1,1 and armed criminal action, section 571.015, for which he was sentenced to consecutive prison terms of life and 50 years, respectively.2
In his sole point on appeal, the appellant claims that "the trial court erred in imposing judgment and sentence against [him] for assaulting a law enforcement officer and armed criminal action" because the evidence was insufficient to support his conviction for assaulting a law enforcement officer.
We affirm.
On October 22, 1998, the appellant returned to his home in Marshall, Missouri, from work. At the time, his wife, Patricia Summers, and daughter, Hanna, were next door. Mrs. Summers was using the neighbor's telephone to call her employer. Upon returning home, Mrs. Summers gave the appellant a letter indicating that she wanted to leave the marriage. After discussing the matter, the appellant convinced Mrs. Summers that she should go on to work and that they would discuss the divorce later. Mrs. Summers then packed some clothes and went to her neighbor's, leaving Hanna in the care of the appellant.
At some point, Mrs. Summers called 911 and reported that the appellant would not relinquish custody of their daughter. At approximately 5:06 p.m., Officer Mark Henley of the Marshall Police Department was dispatched to the scene. Officer Henley arrived at the appellant's home at approximately 5:09 p.m. and knocked on the door. The appellant did not answer. Mrs. Summers then approached Officer Henley and advised him that the appellant would not relinquish custody of her daughter to her. The officer asked her if she was currently married to the appellant or if she had a court order granting her custody of their child. Mrs. Summers explained that she was married to the appellant and that she had no such court order. Officer Henley responded that he could not force the appellant to release custody of the child. Mrs. Summers then asked if Officer Henley could retrieve her keys from the house so that she could go to work. Officer Henley replied that he would ask the appellant for the keys.
Officer Henley approached the house and knocked on the front door. No one answered. He proceeded to the side of the house and knocked on the carport door, and again there was no answer. At this point, Mrs. Summers exclaimed that she could hear her daughter crying and that the appellant must be "doing something to her." Officer Henley put his ear to the door, but he could not verify Mrs. Summers' claim. Nevertheless, he again knocked on the door; identified himself as a police officer; and yelled that if the appellant did not come to the door, he was going to kick it in. The appellant responded by shouting "if you fucking come in the house, I'll fucking kill you."
Officer Henley called the dispatcher at 5:13 p.m. for backup. Before backup could arrive, the appellant opened the front door and, standing with his fists clinched, stated again that he would kill Officer Henley if he attempted to enter his home. Officer Henley, standing between the appellant and the screen door, attempted to look around the appellant to determine the status of the appellant's daughter, but he was unable to see or hear her.
The appellant attempted to close the door, but Officer Henley prevented him from doing so by stepping into the house. A struggle ensued, which resulted in the appellant falling backwards onto his couch. Officer Henley straddled the appellant and attempted to restrain him. While Officer Henley was holding the appellant's left hand, the appellant stabbed him with a knife using his right hand. Officer Henley backed away from the appellant and drew his gun. The appellant approached him still holding the knife. Officer Henley stopped the appellant's approach by kicking him in the abdomen. The appellant subsequently fled to his mother's house located close by with Officer Henley in pursuit.
The appellant knocked on his mother's carport door several times before gaining entry. His mother subsequently fled her house through the front door. Officer Henley instructed the appellant's mother to leave the area. While Officer Henley was attempting to force his way through the carport door, backup officers arrived at the scene and entered the house through the front door. These officers arrested the appellant without further resistance.
The appellant was indicted on November 17, 1998, in the Circuit Court of Saline County for one count of assault of a law enforcement officer, section 565.081, a class A felony; one count of armed criminal action, section 571.015, a class A felony; and one count of resisting arrest, section 575.150, RSMo Supp. 1996, a class D felony. The appellant filed a motion for a change of venue on November 25, 1998, which the trial court granted on June 30, 1999. Venue was changed to Howard County. His jury trial began on September 16, 1999, and concluded on September 17, 1999, with the jury finding him guilty on all three charges.
The appellant filed a motion for a judgment notwithstanding the verdict or in the alternative for a new trial on October 5, 1999, which was heard and overruled on November 15, 1999. The appellant was sentenced to consecutive terms of life imprisonment for the assault, 50 years for armed criminal action, and 10 years for resisting arrest, respectively.
The appellant appeals from his convictions and sentences for assault of a law enforcement officer and armed criminal action.
I.
In his sole point on appeal, the appellant claims that "the trial court erred in imposing judgment and sentence against [him] for assaulting a law enforcement officer and armed criminal action" because the evidence was insufficient to support his conviction for assaulting a law enforcement officer. Obviously, it was not error...
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