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September 1, 1993



The opinion of the court was delivered by: Per Curiam

PER CURIAM. A jury found Defendant guilty of burglary in the first degree, § 569.160 *fn1 (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 post-conviction 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 ...

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