Court of Appeals of Missouri, Eastern District, First Division
Appeal from the Circuit Court of St. Louis City. Honorable Steven R. Ohmer.
Jessica Hathaway, St. Louis, MO, for appellant.
Chris Koster, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for respondent.
LAWRENCE E. MOONEY, PRESIDING JUDGE. CLIFFORD H. AHRENS, J., and LISA VAN AMBURG, J., concur.
LAWRENCE E. MOONEY, PRESIDING JUDGE.
A jury convicted the defendant, Kenneth Dudley, of selling marijuana, possessing drug paraphernalia, and felonious resisting arrest. Defendant asserts two points of trial-court error on appeal, both directed toward his conviction for resisting arrest. He challenges both the sufficiency of the evidence to support the conviction and the verdict-directing instruction submitting the count to the jury. We find the evidence sufficient, but the instruction plainly erroneous. We therefore reverse the trial court's judgment entered on defendant's conviction for resisting arrest and remand the case to the trial court for a new trial on that count.
Factual and Procedural Background
One day, in February of 2012, members of the St. Louis Metropolitan Police Department were conducting undercover drug buy-bust operations in one of the city's parks. Officer DeSheila Howlett was assigned as the undercover buyer. She wore regular street clothes and drove in an unmarked vehicle. She wore a recording device that allowed the other officers to hear her.
Officer Howlett, driving around the park, called out to defendant, who was walking in the park. She asked defendant if he had " a dub," the street name for $20 worth of drugs. Defendant replied that " he was good" and showed Howlett that he had marijuana.
Officer Howlett invited defendant into her car. After sitting in the front passenger seat, defendant took out a bag of marijuana. Defendant did not have anything to put the drugs on, so Officer Howlett handed him a lid from a soda cup she had in the car. Defendant placed some marijuana on the lid, and Officer Howlett gave him $20. At this point Officer Howlett spoke a code phrase that let her fellow officers know a transaction had taken place and was completed.
Upon hearing the code phrase, Officers Bradford Ellis and Jeremy Cotton exited their cars and immediately approached the passenger side of Howlett's car, where defendant was still sitting in the passenger seat. The officers wore vests that had " Police" written on the front and back in bold white letters. Both officers carried their department-issued handguns. Officer Ellis made eye contact with the defendant and said, " Come on man, get out of the car." Defendant stiffened and did not comply. He remained seated in the car. The officers opened the car door and each grabbed one of defendant's arms and pulled defendant out of the car onto the ground.
In taking defendant to the ground, defendant landed with his arms underneath him. Due to safety concerns, and so they could place the defendant in handcuffs, the officers tried to remove his hands from under him, to 110 avail. Defendant clenched his hands near his body by his waistline area. Officer Cotton ordered defendant to put his hands where the officers could see them. Defendant did not comply. The officers continued to pull on defendant's arms, ordering defendant to let them see his hands, but defendant stiffened up and refused to remove his hands and arms from underneath his body. A detective who had responded to the scene ultimately used his Taser on the defendant to make him comply. Defendant finally complied, and the officers placed him in ...