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State v. Nelson

Court of Appeals of Missouri, Western District, First Division

December 13, 2016

STATE OF MISSOURI, Respondent,
v.
KYLE W. NELSON, Appellant.

         Appeal from the Circuit Court of Dekalb County, Missouri The Honorable Thomas N. Chapman, Judge

          Before: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge

          Cynthia L. Martin, Judge

         Kyle Nelson ("Nelson") appeals his conviction of the misdemeanor of resisting a lawful stop and the portion of his sentence imposing a $100.00 fine. Nelson argues that the trial court erred in allowing the State to file an amended information, in giving an instruction that varied the charged method of committing the offense, and in imposing a $100.00 fine. Finding no error, we affirm.

         Factual and Procedural Background

         The State charged Nelson by information with the class D felony of resisting a lawful stop.[1] The information stated:

The Prosecuting Attorney of the County of DeKalb, State of Missouri, charges that the defendant, in violation of Section 575.150, RSMo, committed the class D felony of resisting a lawful stop, punishable upon conviction under Sections 558.011 and 560.011, RSMo, in that on or about January 16, 2015, in the county of DeKalb, State of Missouri, Deputy Kyle Schmitz, a law enforcement officer, was attempting to make a lawful stop of defendant, [and] the defendant knew that the officer was making a lawful stop, and, for the purpose of preventing the officer from effecting the stop, resisted [the] stop of defendant by fleeing from the officer and defendant fled in such a manner that created a substantial risk of serious physical injury or death to other persons in that defendant operated a motor vehicle in the dark without headlights on, and traveled southbound in the middle of Ivy Street while swerving into the northbound lan[e] close to another motorist.

         The State moved to amend the information on December 16, 2015. Relevant to this appeal, the State sought to lower the above charge to the lesser included offense of a class A misdemeanor of resisting a lawful stop. The amended information stated:

The Prosecuting Attorney of the County of DeKalb, State of Missouri, charges that the defendant, in violation of Section 575.150, RSMo, committed the class A misdemeanor of resisting a lawful stop, punishable upon conviction under Sections 558.011 and 560.016, RSMo, in that on or about January 16, 2015, in the county of DeKalb, State of Missouri, Deputy Kyle Schmitz, a law enforcement officer, was attempting to make a lawful stop of defendant, and the defendant knew that the officer was making a lawful stop, and, for the purpose of preventing the officer from effecting the stop, resisted the stop of defendant by fleeing from the officer.

         The trial court continued its disposition of the State's motion to December 21, 2015 at defense counsel's request. At a pretrial hearing on December 21, 2015, the morning of trial, defense counsel asserted a general objection to the State's motion to amend its information: "We don't have anything that we really looked at. I think for the record for the defendant I would just object generally to that, Judge." The trial court sustained the State's motion to file an amended information, and trial to the jury commenced.

         Nelson filed a motion for judgment of acquittal at the close of the State's evidence and at the close of all of the evidence. In both motions, Nelson's only reference to the State's amended information asserted that "[t]he information does not state facts sufficient to constitute an offense against the State of Missouri." The trial court overruled Nelson's motions.

         At the instruction conference, the State tendered Instruction No. 12, a verdict directing instruction for the misdemeanor charge of resisting a lawful stop charge, as follows:

As to Count 4, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about January 16, 2015, in the County of DeKalb, State of Missouri, Kyle Schmitz was a law enforcement officer, and
Second, that Kyle Schmitz was attempting to stop a vehicle being operated by defendant, and
Third, that defendant knew that a law enforcement officer was attempting to stop defendant, and
Fourth, that the basis for the stop was for the offense of operating a motor vehicle without a valid license, and
Fifth, that defendant knew that basis for the stop, and
Sixth, that for the purpose of preventing the law enforcement officer from making the stop, the defendant resisted by fleeing from the officer, then you will find the defendant guilty under Count 4 of resisting a lawful stop.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

         Nelson objected to paragraph Fourth of this instruction. Nelson argued that the basis for the stop was not pled in the amended information, and that inclusion of a finding in this regard in the verdict director raised concerns of double jeopardy and a lack of proper notice. The State pointed out that the instruction conformed with the Missouri Approved Instruction for the charged offense. The trial court overruled Nelson's objection and Instruction No. 12 was submitted to the jury.

         The jury returned a guilty verdict on the resisting a lawful stop charge. During the penalty phase of the trial, the jury completed Verdict M which asked the jury to select one of three sentencing options. First, the jury could select imprisonment in the county jail for a term not to exceed one year. This option had a blank space for a recommended duration, where the jury inserted their recommendation of 180 days. Second, the jury could select imprisonment for a term not to exceed one year and a fine, the amount to be determined by the trial court. A blank space was also available to fill in the recommended term of imprisonment, but the blank was not filled in by the jury. No blank was provided for a recommended fine. Third, the jury could select no imprisonment but a fine, in an amount to be determined by the trial court. At the top of Verdict M, in the space provided, the jury wrote in their recommended sentence of "180 days imprisonment."

         After the jury conviction, Nelson filed a motion for judgment of acquittal, in which he asserted, for the first time, specific objections to the State's amended information. Nelson contended that the original information alleged a basis for the stop, and that the amended information did not allege a basis for the stop. Nelson argued that the amended information did not adequately inform him of the charges, leaving him unable to protect himself against double jeopardy or to prepare a defense. Further, Nelson noted his ...


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