[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY. The Honorable Keith Sutherland, Judge.
In the course of arresting a suspect on two pending felony arrest warrants for the manufacture of methamphetamine and child endangerment, a deputy sheriff made a forced entry into a residence and physically subdued and arrested the suspect. As a result of the arrest, the deputy was charged and convicted of three crimes: burglary for entering the residence with intent to commit an assault; property damage for kicking in the door during the entry; and assault for the physical struggle that took place between the deputy and the suspect.
The evidence on the burglary charge under section 569.160 was insufficient because it did not establish both the required elements of a knowingly unlawful entry and the intent to commit a crime. The suspect had active warrants, and the deputy had arrest authority. The lawfulness of the entry, however, centered on whether he had a reasonable belief that the suspect was inside the residence at the time he entered. If, as the State argued, the deputy did not reasonably believe the suspect was inside, then he could not have formed the intent to assault the suspect. On the other hand, if he did have such belief, then he subjectively thought he had authority to enter and did not act knowingly unlawfully. The evidence could not establish both elements of section 569.160. The burglary conviction is reversed.
Similarly, the evidence on the property damage charge under section 569.120 was insufficient. The damage to the residence occurred during the deputy's forced entry to arrest the suspect. Section 544.200 privileges officers to break doors and windows to effectuate arrests when police presence is first announced and admittance is refused. As that statute was complied with, the deputy could not be convicted of conduct for which he was privileged under the law. The property damage conviction is also reversed.
Finally, although the sufficiency of the evidence on the third-degree assault charge under section 565.070 was not challenged, the jury instructions were misleading and were plainly erroneous. The assault conviction is reversed and remanded for a new trial or other further proceedings.
I. Factual Background
The parties disagree about many of the facts, but viewing all evidence in the light most favorable to the verdict, the following narrative emerges:
Philip Alberternst (the suspect) was a known drug manufacturer and dealer in the Montgomery County area. The suspect had two active felony arrest warrants for the manufacture of methamphetamine and child endangerment. He had been hiding out alone for two weeks at a friend's trailer in the woods of Montgomery County, yet his exact location was unknown to law enforcement.
Efforts to locate and arrest the suspect were underway by the sheriff departments
of Montgomery and Warren counties as well as the East Central Drug Task Force (EC-DTF) and the St. Charles County Regional Drug Task Force (St. Charles DTF). Deputy Christopher Hunt (Deputy Hunt) was a member of the St. Charles DTF.
Ultimately, the suspect's former girlfriend (the informant) met with detectives from Warren County and St. Charles DTF and agreed to disclose the suspect's location to law enforcement. At this meeting, the informant asked that Deputy Hunt not be involved in the arrest because she feared for the suspect's safety based on past encounters when Deputy Hunt had arrested the suspect. Previously, while released from jail, the suspect reneged on a deal with Deputy Hunt to act as a confidential informant. On another occasion, Deputy Hunt allegedly backhanded the suspect while he was in handcuffs. Detectives told the informant that Deputy Hunt would not be a part of the operation. However, no evidence at trial indicated that Deputy Hunt was ever informed of this.
The day of the operation, the informant was given several boxes of pseudoephedrine to deliver to the suspect to protect her cover. She was concerned that the suspect, who had been awake for several consecutive days cooking and using methamphetamine, would not believe that she would come to him empty handed. That night, the informant contacted the detectives and provided the address of the trailer, informing them she was inside with the suspect.
Other officers were contacted to assist with the operation. In total, 10 officers were present: one from Montgomery County, three from Warren County, two from EC-DTF, and three from St. Charles DTF. The officers met at a staging location near the trailer to discuss the approach. The informant's car was parked in front of the trailer.
The officers had felony arrest warrants for the suspect, but they did not have a search warrant for the trailer. They decided to conduct a " knock and talk" in hopes that someone might answer the door and they could proceed from there. The trailer had a closed-in porch built onto the front. Both the trailer and the porch had several windows, all of which were covered to some degree. The front door into the trailer was accessible only through the porch, which itself had an exterior door.
Officers banged on the exterior porch door and announced " sheriff's department, answer the door," but no one answered. Inside, the informant heard this but did not intend to open the door. The officers shined flashlights into the windows and porch. Seeing no one, they dropped back into a perimeter some 20 yards away.
At this point, Deputy Hunt arrived. Although he had been aware of the existence of an effort to arrest the suspect, he had been working in St. Charles County that day and was not a part of the operation's planning or initial stages. He drove to the scene after a fellow St. Charles DTF member contacted him and told him of the pending arrest. Officers testified that when Deputy Hunt arrived, he exited his truck, nodded to one of the officers, put on a tactical vest, and approached the trailer
and kicked in the exterior porch door, displacing the door from the frame.
Deputy Hunt testified at trial that, before he kicked in the porch door, he looked in the porch windows and noticed black trash bags and a partially open backpack containing tubing and rubber containers with liquid inside them. Based on his experience, he believed these were signs of a mobile methamphetamine lab. Other officers testified they could not see anything on the porch prior to the entry.
Several officers followed Deputy Hunt into the porch area and noticed items consistent with a methamphetamine lab. One officer testified he could smell a " faint odor of maybe a chemical smell." Eventually Deputy Hunt opened the interior door leading into the trailer and the other officers entered. Officers on the perimeter entered when they heard yelling and screaming coming from inside.
Inside, the informant was on the couch covered in a blanket. The officers secured her, and she told them the suspect was in the bathroom. The suspect was naked but wrapped in a towel. The suspect initially attempted to close the door on the officers but eventually stuck his hands out the bathroom door. Deputy Hunt then took him to the ground in the hallway. The suspect was " passively resisting arrest" and not complying with their commands. Deputy Hunt, the three other St. Charles officers and a Montgomery County officer held the suspect down. Deputy Hunt and others employed " control tactics," striking the suspect in the " upper area, shoulders and head area." EC-DTF and Warren County officers testified that the suspect was flailing his arms and kicking his legs, but that in their opinion the movements were defensive. One officer heard Deputy Hunt shout " you want to kick my a** now mother f*****." After the suspect was handcuffed, the control strikes stopped. He was taken to the hospital and released immediately, receiving no stitches. After the scene was secured, substantial evidence of a mobile methamphetamine manufacturing lab was seized both from the porch and inside the trailer, including a pile of crushed up pseudoephedrine.
Deputy Hunt was charged in Montgomery County with first-degree burglary for unlawful entry into the residence with intent to commit assault, second-degree property damage for breaking down the door to enter the residence, and third-degree assault for striking the suspect during the arrest. He was convicted by a jury of all three counts and sentenced to a total of five years in prison. Deputy Hunt appeals the convictions.
II. Issues on Appeal
Deputy Hunt argues that the trial court erred in failing to sustain his motion for acquittal and in submitting the charges of first-degree burglary and second-degree property damage to the jury because there was insufficient evidence from which reasonable jurors could find guilt beyond a reasonable doubt. He does not challenge the sufficiency of the third-degree assault evidence but, rather, argues that the jury instructions ...