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06/07/83 CITY INDEPENDENCE v. DOUGLAS ELDER

June 7, 1983

CITY OF INDEPENDENCE, MISSOURI, RESPONDENT,
v.
DOUGLAS ELDER, APPELLANT



From the Circuit Court of Jackson County; Criminal Appeal from Conviction Under Municipal Ordinance; Judge Laurence R. Smith.

Before Somerville, C.j., Presiding, Turnage, Manford, JJ.

The opinion of the court was delivered by: Manford

This is an appeal from a conviction for a misdemeanor violation, interfering with a police officer, in violation of a municipal ordinance. The judgment is affirmed.

Appellant presents two points, which in summary charge that the trial court erred in (1) denying his motion for acquittal because the evidence failed to prove beyond a reasonable doubt all elements of the ordinance violation for which he was charged, in that the City failed to prove there was a lawful arrest of appellant with which he could interfere; and (2) in admitting evidence, over objection, related to appellant's physical condition, because that evidence was outside the scope of the information in that the information was silent as to appellant's physical condition when he was arrested.

On October 3, 1981 at approximately 10:20 p.m., Officer Abraham of the Independence, Missouri Police Department stopped a motor vehicle being operated by Terry Lasley at the intersection of Noland Road and 23rd Street in Independence, Missouri. Lasley was charged with driving while intoxicated and having an expired vehicle license (state tags). Appellant was a passenger in Lasley's vehicle.

Without objection, Officer Abraham testified that appellant appeared intoxicated. This same officer was also asked, and without objection responded, as follows: "Q. Was he in any condition to be left by himself, officer? A. Not in my opinion, he was not."

Another officer, Passiglia, who had arrived on the scene, took appellant into custody for safekeeping. *fn1 Officer Abraham was then asked what he observed at this point. In summary, the officer stated that he observed appellant and Officer Passiglia walking toward the "paddy wagon" and that he heard appellant say to Officer Passiglia, "Take your hands away from me." Appellant pulled away from Officer Passiglia and attempted to strike the officer. A struggle ensued and Officer Abraham went to assist Officer Passiglia. The struggle continued, during which appellant obtained Officer Passiglia's nightstick. Appellant tried to strike both officers with the nightstick before he was disarmed and subdued. Upon cross-examination, Officer Abraham testified again that appellant was intoxicated.

Officer Passiglia testified that he arrived at the scene, and that appellant was intoxicated. He informed appellant that he was going to be taken into custody for safekeeping. Passiglia stated further that as he was escorting appellant to the "paddy wagon" appellant swung his right arm toward the officer's head. The officer "blocked the punch", and appellant and Officer Passiglia "rolled to the ground". Passiglia further testified that appellant continued to be combative and was carried to the "paddy wagon". A third officer, Willoughby, testified that he arrived at the scene and observed appellant trying to pull away from and strike Officer Passiglia. Willoughby joined in and helped subdue appellant. Without objection, a fourth officer testified that appellant was intoxicated. After the introduction and admission of the applicable municipal ordinances, the city rested. Appellant's motion for acquittal was denied.

Appellant testified. On cross-examination, he admitted that he had been drinking, but denied being intoxicated. He admitted that he was aware the officers were acting in their official capacity as police officers. He further testified that he was ordered from Lasley's vehicle by Officer Abraham and that the officer got "cocky". Appellant stated that as he got out of the vehicle, Officer Abraham had his nightstick in his hand "slapping it in his other hand." Appellant testified that Officer Abraham made some comment about his "Harley shirt", and while standing there, the officer struck him in the ribs. Appellant claimed that he raised his hand to stop the blow; the officer became mad, and "went wild and came at head with the baton." Appellant stated that he caught the baton and held onto it. The other officers were with Lasley. Appellant stated that Abraham jerked the baton and made it look like a fight, and then Officer Passiglia threw him to the ground. Appellant then stated that Abraham tried to strangle him with the baton; he raised his hand to stop it but did not fight with the officers. Appellant stated that after the officers subdued him, Abraham struck him and tried to kick him. He stated that these latter events occurred while he was on the ground, and that while on the ground he saw the mace coming. He was taken to the "paddy wagon" and did not try to run. Appellant stated that at no time at the scene was he ever told he was under arrest.

The evidence closed. Appellant's second motion for acquittal was denied. Appellant was found guilty and was assessed a penalty by the court. Appeal was lodged with the Circuit Court, 16th Judicial Circuit, which upheld the ruling of the Municipal Court of Independence, Missouri. The current appeal then followed.

Appellant's point (1) is found to be meritless and is ruled against him.

Appellant was charged pursuant to § 12.04.003 of the ordinances of Independence, Missouri, which reads:

"SEC. 12.04.003. INTERFERENCE WITH THE POLICE DEPARTMENT.

A. No person shall knowingly and willfully obstruct, resist, or oppose any police officer, any member of the police department, or any person duly empowered with police authority, while in the discharge or apparent discharge of his duty, or in any ...


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