from the Circuit Court of Buchanan County, Missouri The
Honorable Keith Marquart, Judge.
Before: Mark D. Pfeiffer, Chief Judge, and Victor C. Howard,
Thomas H. Newton, Lisa White Hardwick, James Edward Welsh,
Alok Ahuja, Karen King Mitchell, Cynthia L. Martin, Gary D.
Witt, Anthony Rex Gabbert, and Edward R. Ardini, Jr., Judges.
KING MITCHELL, JUDGE.
Ajak appeals, following a jury trial, his conviction of
misdemeanor resisting arrest, § 575.150,  for which he was
sentenced to 280 days in the county jail. Ajak argues both
that the evidence was insufficient to support his conviction
and that the trial court plainly erred in submitting an
erroneous verdict director. We affirm.
February 15, 2015, four St. Joseph police officers were
dispatched to Ajak's home to investigate an alleged
domestic disturbance involving a male subject threatening to
kill a woman with a knife. When the officers arrived at the
residence, the front door was open, and they saw Ajak
standing in the living room. Ajak was advised to put his
hands up and not move. Ajak put his hands in front of him,
but instead of remaining still, he walked toward the
officers. One of the officers handcuffed Ajak at that point
to ensure officer safety pending further investigation. Ajak
was then escorted to the kitchen and placed in a chair while
the officers questioned the other individuals present. Ajak
began yelling and screaming, angry about being placed in
questioning the other individuals present, officers decided
to arrest Ajak for domestic assault. Ajak was advised that he
was under arrest and would be transported to the local jail.
Ajak continued yelling and screaming, claiming that he was
the victim and that he wasn't going to jail. One officer
located some shoes and additional clothing for Ajak and asked
him to put the shoes and clothing on before transport, but
Ajak refused. As the officers were walking Ajak outside to
the patrol car, Ajak was "pulling and jerking and just
trying to get away[, ] trying to break [the officer's]
grip." In doing so, Ajak knocked the name badge off of
one of the officers' uniforms. As they approached the
car, Ajak got very close to one officer's face, yelling
and screaming, and spit on the officer. Officers were able to
secure him in the patrol car and transport him to the jail.
was subsequently charged, as a persistent misdemeanor
offender, with misdemeanor resisting arrest and three counts
of third-degree domestic assault. Following a jury trial,
Ajak was convicted of misdemeanor resisting arrest and
acquitted of two counts of domestic assault. The jury was
unable to reach a verdict as to the third count of domestic
assault, and the State voluntarily dismissed the charge. The
court sentenced Ajak to 280 days in the county jail. Ajak
raises two points on appeal. First, he argues that the
evidence was insufficient to support his conviction in that
his arrest was completed and no longer in progress at the
time he pulled and jerked while the officers were walking him
to the patrol vehicle. Second, he argues that the trial court
plainly erred in submitting an erroneous verdict director,
which deviated from the statutory elements of resisting
arrest and relieved the State of its burden of proof.
The evidence was sufficient to support Ajak's
determine whether the evidence presented was sufficient to
support a conviction and to withstand a motion for judgment
of acquittal, th[e c]ourt does not weigh the evidence but,
rather, 'accept[s] as true all evidence tending to prove
guilt together with all reasonable inferences that support
the verdict, and ignore[s] all contrary evidence and
inferences.'" State v. Zetina-Torres, 482
S.W.3d 801, 806 (Mo. banc 2016) (quoting State v.
Holmes, 399 S.W.3d 809, 812 (Mo. banc 2013)). Our
"review is limited to determining whether there was
sufficient evidence from which a reasonable juror might have
found the defendant guilty beyond a reasonable doubt."
Id. (quoting State v. Letica, 356 S.W.3d
157, 166 (Mo. banc 2011)). "This is not an assessment of
whether this Court believes that the evidence at trial
established guilt beyond a reasonable doubt but rather a
question of whether, in light of the evidence most favorable
to the State, any rational fact-finder could have found the
essential elements of the crime beyond a reasonable
doubt." Id. (quoting State v. Nash,
339 S.W.3d 500, 509 (Mo. banc 2011)).
elements of resisting arrest are simple and straightforward.
"A person commits the crime of resisting . . . arrest .
. . if[, knowing] that a law enforcement officer is making an
arrest, . . . for the purpose of preventing the officer from
effecting the arrest, . . . the person . . . [r]esists the
arrest . . . by using or threatening the use of . . .
physical force." § 575.150.1. Obviously, a person
cannot resist with the necessary purpose of
preventing something (the effectuation of an arrest)
if that something has already come to fruition. Likewise, an
officer cannot be said to be "making an
arrest" if the arrest procedure has already concluded.
Accordingly, the crux of Ajak's point on appeal is that
the arrest had been completed when he allegedly resisted, and
thus the elements of resisting arrest were not satisfied. To
fully understand Ajak's claim, it is necessary to examine
the legislative history of the resisting arrest statute and
related sections of Chapter 575.
History of § 575.150
§ 575.150 was enacted, resisting arrest was criminalized
under § 557.215, which prohibited interference with a
police officer in the performance of his duties. State v.
Thomas, 625 S.W.2d 115, 122 n.3 (Mo. 1981)
("Section 557.215 has been repealed and Section 575.150
RSMo. 1978 substituted in its stead."). Former §
557.215 provided: "[a]ny person who shall willfully
strike, beat or wound any . . . peace officer while such
officer is actively engaged in the performance of duties
imposed on him by law . . . shall be punished by imprisonment
by the department of corrections." Case law has found an
officer to be engaged in the performance of duties imposed by
law when he or she was making an arrest and interpreted
"arrest" to be an ongoing concept: "An arrest
by a peace officer . . . continues so long as the arresting
officer has the custody and control of the arrestee's
movements for the purpose of delivering the person arrested
into incarceration to be held to answer the particular
charge." State v. Mallett, 542 S.W.2d 584, 587
(Mo. App. 1976).
1977, however, Chapter 557 was repealed and replaced by
current Chapter 575 of the new criminal code, which contained
the new crimes of resisting arrest (§ 575.150), escape
or attempted escape from custody (§ 575.200), and escape
or attempted escape from confinement (§ 575.210). Mo.
Laws 1977 S.B. 60, p. 662, § 1, eff. 1-1-79. The new
§ 575.200 indicated that "A person commits the
crime of escape from custody or attempted escape from custody
if, while being held in custody after arrest for any crime,
he escapes or attempts to escape from custody." §
575.200.1. The new § 575.210 criminalized the escape or
attempted escape from confinement "if, while being held
in confinement after arrest for any crime, . . . such person
escapes or attempts to escape." § 575.210.1. In the
same bill, the legislature added to the criminal code
definitions for "custody" and
"confinement" but not "arrest." §
556.061. The definition of custody indicated that "a
person is in custody when the person has been arrested but
has not been delivered to a place of confinement."
§ 556.061(7). And the definition of
"confinement" indicated that "a person is in
confinement when such person is held in a place of
confinement pursuant to arrest or order of a court."
§ 556.061(4)(a). The definition of "custody, "
however, did not identify the parameters of what it meant to
be in custody, only when in the timeline custody
occurred (after arrest). In other words, the new definitions
told us only that arrest, custody, and confinement were on a
continuum so that there is no gap between them-a person is
either being arrested, is in custody, or is in confinement.
Thus, once the new crimes were enacted, courts had to
distinguish between arrest, custody, and confinement, as the
previous understanding of arrest would have included any time
now separately deemed to be custody under our current
after the repeal of § 557.215 and the enactment of the
replacement provisions in Chapter 575, the Eastern District
of this court had the opportunity to address what constitutes
"custody." In State v. Jackson, 645 S.W.2d
725, 727 (Mo. App. E.D. 1982), the Eastern District held
that, for purposes of the new § 575.200 (escape from
custody), "'[c]ustody' includes one person's
exercise of control over another to confine the other person
within certain physical limits." (Emphasis
added.) Of course, those limits had to be locations other
than statutorily defined "place[s] of confinement";
for, once a person was delivered to a place of confinement,
he was no longer merely in custody, but was then in
"confinement" under the criminal code. §
556.061(4)(a). Missouri courts have long held that
"custody" means confinement "within certain
physical limits." See, e.g., State v. Hahn, 625
S.W.2d 703, 705 (Mo. App. S.D. 1981); State v.
Lorenze, 596 S.W.2d 762, 764 (Mo. App. S.D. 1980);
State v. Baker, 199 S.W.2d 393, 396 (Mo.
1947). But they have resisted applying a precise
definition to "arrest" for purposes of §
1991, the Eastern District was asked to determine whether the
evidence was sufficient to support a resisting arrest
conviction, under § 575.150, where the resistance
occurred after the defendant had been handcuffed, placed in
the patrol car, and transported to the station. State v.
Shanks, 809 S.W.2d 413, 417-18 (Mo. App. E.D. 1991),
overruled on other grounds by Joy v.
Morrison, 254 S.W.3d 885 (Mo. banc 2008). After
noting the statutory elements of the offense, the court
held-in a matter of first impression-that, "it is
logical to require that for a valid conviction of resisting
arrest pursuant to § 575.150 RSMo 1986, the arrest must
be in progress when the 'resistance' occurs."
Id. at 418. The court further held (consistent with
the statutory scheme of Chapter 575) that, "[o]nce the
arrest has been fully effectuated[, ] a defendant should be
considered to be in custody." Id. And it
determined that the facts before it reflected custody, rather
than an ongoing arrest. Id. ("We believe [the
officer] effectuated the arrest at the time he placed the
defendant in his patrol car.").
decisions since Shanks have attempted to define the
parameters of an arrest in order to discern, under a variety
of factual scenarios, whether the arrest was fully
effectuated at the time of an individual's resistance.
But because there is no definition of "arrest"
within either § 575.150 or the criminal code, courts
turned to § 544.180 for guidance. See, e.g.,
State v. Ondo, 231 S.W.3d 314, 316 (Mo. App. S.D. 2007);
State v. Belton, 108 S.W.3d 171, 175-76 (Mo. App.
W.D. 2003); State v. Feagan, 835 S.W.2d 448, 449
(Mo. App. S.D. 1992). Section 544.180 provides, in pertinent
part: "An arrest is made by an actual restraint of the
person of the defendant, or by his submission to the custody
of the officer, under authority of a warrant or
Ajak and Judge Newton's dissent rely on § 544.180 to
argue that his arrest had already been fully effectuated at
the time of his resistance because Ajak was "actually
restrained." Notably, despite their citation to §
544.180, each of the post-Shanks cases interpreting
the resisting arrest statute also indicated that
"'[a]rrest' is susceptible to more than one
definition, depending on its context." Ondo,
231 S.W.3d at 316; Belton, 108 S.W.3d at 175;
Feagan, 835 S.W.2d at 449. These cases do not
support the wholesale incorporation of § 544.180's
description of arrest into § 575.150 for purposes of
determining when the arrest process is complete, as advocated
by Ajak and Judge Newton's dissent. In fact, such a
simplistic approach is not supported by either the structure
or the language of the statutes.
it is important to note that § 544.180 is not part of
the criminal code. "'[C]ode offenses' a[re]
'those offenses defined in the criminal code (Senate Bill
60) adopted in 1977, effective January 1, 1979.'"
State v. Danforth, 654 S.W.2d 912, 919 n.5 (Mo. App.
W.D. 1983) (quoting MAI-CF.2d 17.00.4). Section 544.180 was
first enacted in 1939. Judge Newton's dissent suggests
that, because § 544.180 predates the current criminal
code, "the Legislature felt no need to define
'arrest' for purposes of the criminal code or Chapter
575." Newton, J., dissenting op. at 8. But, if the
legislature intended to import the definition of
"arrest" from § 544.180, it could have easily
included a cross-reference to that statute in either §
556.061 or § 575.150, but it chose not to do so. Thus,
there appears to be no basis for assuming that the
legislature intended for § 544.180 to apply to §
575.150. Therefore, the central issue is how we define
"arrest" as used in § 575.150, for purposes of
determining whether the arrest was ongoing at the time the
defendant offered resistance.
though it is true that "[w]hen the legislature enacts a
statute referring to terms which have had other legislative
or judicial meanings attached to them, the legislature is
presumed to have acted with knowledge of these meanings,
" Boyd v. State Bd. of Registration for Healing
Arts, 916 S.W.2d 311, 315 (Mo. App. E.D. 1995), it
is also true that, "[w]hen the language of a statute is
unambiguous and conveys a plain and definite meaning, the
courts 'have no business foraging' among the rules of
statutory construction to look for or impose another
meaning." Hudson v. Marshall, 549 S.W.2d 147,
151-52 (Mo. App. 1977) (quoting DePoortere v. Commercial
Credit Corp., 500 S.W.2d 724, 727 (Mo. App. 1973)). For
example, in State v. Harrison, 390 S.W.3d 927, 928
(Mo. App. S.D. 2013), a defendant convicted of involuntary
manslaughter for the death of his pregnant girlfriend's
unborn child "argue[d] that his conviction [could not]
be squared with a § 194.005 [Uniform Determination of
Death Act] definition of death [as the 'cessation of
spontaneous respiration' because] fetal respiration . . .
could not cease if it never began." In other words, the
defendant argued that the court was bound by the definition
of "death" in the UDDA when determining his guilt
of "caus[ing] the death of another person" for
purposes of involuntary manslaughter under § 565.024,
because the UDDA predated the involuntary manslaughter
statute, and the rule of lenity required the court to
interpret the involuntary manslaughter statute in the manner
most favorable to the defendant. Id. at 929. The
Southern District disagreed, noting that, while
"ambiguities in statutes in criminal cases must be
construed against the State, . . . this rule of strict
construction does not require that the court ignore either
common sense or evident statutory purpose." Id.
(quoting State v. Knapp, 843 S.W.2d 345, 347 (Mo.
banc 1992)). And the court determined that the definition of
"death" under the UDDA had a purpose distinct from
that of the involuntary manslaughter statute, such that the
definition from the UDDA should not be imported into the
involuntary manslaughter statute under the auspice of
statutory construction. Id.
purpose of § 575.150, criminalizing resisting arrest in
Missouri, "is premised upon public policy considerations
against self-help . . . [and] the basic concept that
[alleged] unlawful arrests should be resolved in courts, not
by violence in the streets." State v. Maxey, 661
S.W.2d 641, 642-43 (Mo. App. E.D. 1983); see also State
v. Nolan, 192 S.W.2d 1016, 1020 (Mo. 1946) (allowing
citizens to resist arrest constitutes a threat to both
"[t]he security of the people as well as the dignity of
the law"); State v. Merritt, 805 S.W.2d 337,
339 (Mo. App. E.D. 1991) ("A person does not enjoy the
right to resist any arrest, even an unlawful one, by a known
police officer."); State v. Reynolds, 723
S.W.2d 400, 405 (Mo. App. W.D. 1986) ("Under [§
575.150.1], appellant had the duty to submit to the
arrest."); State v. Nunes, 546 S.W.2d 759, 762
(Mo. App. 1977) ("a citizen may not use force to resist
any arrest, lawful or unlawful, for such self-help tends to
intolerable disorder"). The resisting arrest statute is
designed to protect both the officers and the arrestee
throughout the entirety of their interaction with one
another, from the initiation of the arrest, through the
"making" of the arrest, until finally
"effecting" the arrest by placing the person in
custody. It is not meant to apply to a momentary snapshot in
time, such as the handcuffing of a suspect or brief
submission to a show of authority. Thus, much like importing
the UDDA definition of "death" to the crime of
involuntary manslaughter, importing the description of arrest
from § 544.180 is inconsistent with the purposes of
The definition of "arrest"
and phrases shall be taken in their plain or ordinary and
usual sense, but technical words and phrases having a
peculiar and appropriate meaning in law shall be understood
according to their technical import." § 1.090. As
mentioned above, there is no definition of "arrest"
in either Chapter 575 or the criminal code. In accordance
with § 1.090, our Supreme Court directs us "to
consider statutory terms not defined by the legislature in
'their plain or ordinary and usual sense.'"
Sw. Bell Yellow Pages, Inc. v. Dir. of Revenue, 94
S.W.3d 388, 390 (Mo. banc 2002) (quoting § 1.090). It
further directs that "[a] dictionary will provide the
plain meaning of words used in a statute." Id.
"If some ambiguity persists in the statute after
consulting a dictionary, courts derive meaning from the
intent of the legislature." Id. But the Court
cautioned that "[c]ourts cannot add words to a
statute under the auspice of statutory
construction." Id. (emphasis added).
at first blush, § 544.180 seems applicable, importing it
into a statute where the legislature did not violates both
§ 1.090 and the rules of statutory construction laid out
by our Supreme Court. According to both § 1.090 and the
Supreme Court, we are to apply the plain and ordinary meaning
of arrest, as defined in a dictionary. And according to the
dictionary definition, "arrest, " when used as a
noun, means "the taking or detaining of a person in
custody by authority of law." Webster's Third
New International Dictionary, p. 121 (1993) (emphasis added).
Thus, under the plain and ordinary meaning, an arrest is
ongoing unless and until a person is "in custody."
not to say that § 544.180 is wholly irrelevant to the
question. While it is relevant to determining whether there
is an arrest at all, it is not controlling as to whether an
arrest is complete for purposes of §
575.150. See State v. Lee, 498 S.W.3d 442,
457 (Mo. App. W.D. 2016) (holding that "[a]n arrest is
in progress once the officer is attempting to actually
restrain or control the person of the defendant"
(quoting State v. St. George, 215 S.W.3d 341, 346
(Mo. App. S.D. 2007))). In other words, § 544.180 states
a necessary condition for determining whether there is an
arrest, but not a mandatory test for finding a fully
State v. Nicholson, 839 S.W.2d 593 (Mo. App. W.D.
2003), this court applied § 544.180 in analyzing a
sufficiency challenge for a conviction of escape from
custody. Id. at 596-97. Citing the statutory
definition of custody, this court held that the evidence was
insufficient to establish custody because the evidence did
not establish the existence of the necessary preceding
arrest. Id. This court relied on § 544.180 and
noted that the defendant was never physically restrained and
never submitted to the officer's show of authority; thus,
he had never been arrested. Id. at 597. Though not
expressly stated, the crux of the court's holding was
that, without an arrest, there can be no custody.
Id. The court's reliance on § 544.180 was
not to determine whether an arrest was still in
progress but instead to determine whether there was any
evidence that an arrest had occurred at all. And, in
determining that there had been no arrest, the court
specifically noted that "Mr. Nicholson's ability to
absent himself [had not] been impaired." Id. at
597. Then, consistent with Jackson, the
Nicholson court cited Lorenze, 596 S.W.2d
at 764 for its holding that "[c]ustody refers . . . to
where one person exercises control over the custody of
another which confines such other person within certain
limits" to support the determination that the defendant
had never been in custody from which he could have escaped.
Nicholson, 839 S.W.2d at 597 (quoting
Lorenze, 596 S.W.2d at 764).
short, though § 544.180 is helpful in establishing the
existence of an arrest, it does not answer the question of
when an arrest is fully effectuated for purposes of
distinguishing between the crimes of resisting arrest and
escape or attempted escape from custody. In light of the
history of § 575.150, the plain and ordinary meaning of
"arrest, " and our case law definition of
"custody, " we hold that "arrest" is a
continuing process,  evidenced by either actual physical
restraint or submission to authority,  that remains
in progress so long as "the officer is attempting to
actually restrain or control the person of the defendant,
" and concludes once the arrestee is
confined "within certain physical
limits" other than places of
Decision of other states
majority of cases from other states, addressing resisting
arrest statutes with similar language, have concluded that
arrest is a process that is not necessarily fully effectuated
simply because the Fourth Amendment or another narrow
description of arrest has been met.
example, in State v. Lindsey, 973 A.2d 314 (N.H.
2009), the New Hampshire Supreme Court rejected a challenge
similar to Ajak's on a conviction of resisting arrest. In
Lindsey, two police officers had reported to a home
on a domestic disturbance call, where they found the
defendant in the disheveled home with a knife. Id.
at 315. The police ultimately handcuffed the defendant and
two other persons and placed them on the floor. Id.
The defendant continued to struggle and try to get up.
Id. On appeal, the defendant claimed that the
evidence was insufficient to support his conviction because,
once he was handcuffed and placed on the floor, the officer
was no longer "seeking to effect an arrest or detention,
" as the resisting arrest statute required. Id.
at 316. Like Ajak, the Lindsey defendant argued that
"all resistance which occurs after the moment in which
an individual comes under the control of law enforcement
officers is no longer culpable under the resisting arrest
statute." Id. at 317.
rejecting the defendant's construction, the court relied
on definitions of "effect" (to cause to come into
being, to bring about, accomplish, execute),
"arrest" (the taking of a person into custody), and
"detain" (to hold or keep in or as if in custody).
Id. at 316-17. Noting that the policy behind the
resisting arrest statute was to require persons to
"follow the commands of law enforcement . . ., [to]
discourage self-help[, ] and [to] provide for the safety
of officers, " id. at 317 (quoting State
v. Kelley, 899 A.2d 236, 238 (2006)), the court held
that "seeking to effect an arrest . . . include[ed] the
entire course of events during which law enforcement officers
seek to secure and maintain physical control of an
individual." Id. at 317 (emphasis added)
(quotation omitted). The court "agree[d] with those
jurisdictions that hold that effecting an arrest or detention
is not necessarily an instantaneous event and should not be
assessed by parsing out discrete, snapshot moments in
court expressly "reject[ed] the defendant's reliance
upon the meaning of 'seizure' within the
constitutional context to aid in the interpretation of key
terms in the resisting arrest statute." Id. The
court recognized that, "[w]hile concepts involving the
restraint upon a person's liberty, such as arrest,
detention and seizure may overlap in various legal contexts,
the legislature's intended meaning of the phrase
'seeking to effect an arrest or detention' within the
context of the resisting arrest statute controls."
court further noted that it
need not define precise beginning and end points that
encompass the process of "seeking to effect an arrest or
detention"[; r]ather, we limit our review of the
defendant's insufficiency argument to determining whether
a rational jury could have concluded that the process of
seeking to effect the defendant's detention was still in
progress at the time he began struggling with the officers to
get off the floor, even though he had been handcuffed and
momentarily left to lie face down on the apartment floor.
Id. at 318.
majority of other states to address the issue have held, our
focus, when determining whether the evidence was sufficient
to support a resisting arrest conviction, should be on
whether the defendant was "in custody" in the sense
of being confined within certain physical limits at the time
he offered resistance, rather than questioning whether the
arrest is complete under an alternate definition of
recognize that, in many cases, these two moments in time will
coincide, as they did in Shanks. But here, as is
reflected by both this opinion and the dissent, they might
not. The dissent believes Ajak's arrest was fully
effectuated once he was placed in handcuffs and advised that
he was under arrest, all of which occurred in the
kitchen. Because of this, the dissent argues that
Ajak's resistance during the walk to the patrol vehicle
came after the arrest was fully effectuated, rendering the
evidence supporting his resistance during this time
insufficient to sustain his conviction. But, under the plain
meaning of "arrest, " we must look at whether Ajak
was in custody (i.e., confined with certain physical limits)
at the time of his resistance in order to discern if the
arrest was still "in progress." Because he was not
confined within any physical limits until he was
placed into the patrol car, he was not yet in custody at the
time of his resistance. And under the plain meaning of
"arrest, " until he was in custody, the arrest was
still in progress, meaning that the evidence was sufficient
to sustain his conviction.
Ajak has failed to demonstrate manifest injustice from the
inclusion of erroneous language in his verdict
second point, Ajak argues that the trial court plainly erred
in submitting Instruction Number 6 (the verdict director for
resisting arrest) to the jury because it erroneously included
the phrase, "physical interference, " as a means by
which the jury could find he resisted arrest. Though we agree
that the instruction was erroneous, we see no basis for
finding a manifest injustice.
notes, the Eastern District recently considered the very same
claim of error in State v. Meeks, 427 S.W.3d 876
(Mo. App. E.D. 2014). While we agree with Meeks that
§ 575.150 lays out two separate crimes-resisting
one's own arrest (subsection 1) and interfering with the
arrest of another (subsection 2)-and it is apparent that
Instruction Number 6 erroneously conflated the two, we
disagree that the error here resulted in a manifest
injustice, as is required for reversal under the plain error
standard of review.
errors affecting substantial rights may be considered in the
discretion of the court when the error has resulted in a
manifest injustice or miscarriage of justice." State
v. Chambers, 481 S.W.3d 1, 7 (Mo. banc 2016). "For
instructional error to amount to plain error, it must be
clear that the trial court has so misdirected or failed to
instruct the jury that manifest injustice or miscarriage of
justice has resulted." Id. "In short, it
must be apparent that the instructional error affected the
jury's verdict." Id.
Meeks, the Eastern District found that,
"because 'physical interference' was included
and stated in the disjunctive as an alternative means of
resisting, the instruction erroneously gave the jury the
option of basing its conviction on 'physical
interference' alone, " which effectively
"relieved [the State] of its burden of proving that
Meeks resisted his own arrest by one of the means set forth
in the statute." Meeks, 427 S.W.3d at 880.
it is true that "[a] violation of due process arises
when an instruction relieves the State of its burden of
proving each and every element of the crime[, ] . . . [a]
verdict directing instruction that omits an essential element
rises to the level of plain error [only] if the evidence
establishing the omitted element was seriously
disputed." State v. Cooper, 215 S.W.3d 123, 126
(Mo. banc 2007). But, "if the evidence establishing the
omitted element was not in dispute, the jury's verdict
would not have been affected and no plain error relief need
be given." Id.
unlike in Meeks and its progeny,  the nature of
Ajak's resistance was not disputed at trial. Instead,
what Ajak disputed was that he resisted at all-not
that his resistance was something other than "physical
force." See Cooper, 215 S.W.3d at 127
(discussing cases finding no plain error where the defense
presented was that the defendant committed no crime at all,
rather than challenging the element omitted from the verdict
unlike in Meeks, the State here did not
urge the jury to find that Ajak's actions constituted
"physical interference, " as opposed to
"physical force." In fact, Ajak does not argue that
his actions of "pulling and jerking" in an effort
to break the officers' grips constituted anything other
than physical force. See Belton, 108 S.W.3d at 175
(concluding that "physical force" includes
"exerting the strength and power of [one's] bodily
muscles to overcome [an officer's] attempts to [control
an arrestee's actions.]"). And, because that issue
was not disputed at trial, there was simply no
evidence presented that would have supported a finding that
Ajak resisted in some manner that would constitute
"physical interference" but not "physical
Meeks, the Eastern District noted that
"[w]hatever constitutes 'physical interference,
' we must presume it is something different than
'physical force.'" Meeks, 427 S.W.3d at
881 n.3. Though we can envision a distinction when evaluating
the actions of a third party, we find it difficult, at best,
to conceive of a scenario in which an arrestee can
"physically interfere" with his own arrest without
simultaneously resisting by use of "physical force,
" as that phrase is understood by our courts. The
absence of any sort of meaningful distinction between the
phrases in this context should preclude a finding of manifest
short, though the instruction was erroneous insofar as it
potentially omitted an essential element, the omitted element
was not disputed at trial; thus, there is no basis for
finding a manifest injustice.
II is denied.
evidence was sufficient to support Ajak's conviction of
resisting arrest. Ajak has failed to demonstrate either a
manifest injustice or a miscarriage of justice from the
instructional error. The trial court's judgment is
Judge Mark D. Pfeiffer, and Judges James Edward Welsh, Lisa
White Hardwick, Anthony Rex Gabbert, and Edward R. Ardini,
Welsh writes a separate concurring opinion, in which Judge
Thomas H. Newton dissents in a separate opinion, in which
Judges Victor C. Howard, Alok Ahuja, Cynthia L. Martin, and
Gary D. Witt join.
Martin writes a separate dissenting opinion, in which Judge
Edward Welsh, Judge.
concur in the majority opinion and write only to express my
own opinion that effecting an arrest may overlap having a
person in custody. The fact that the legislature has created
a crime for the escape or attempted escape from custody does
not mean that resistance for the purpose of impeding an
officer from effecting an arrest (with no hope of escape)
cannot be punished. As noted by the majority, the phrases
"making an arrest" and "effecting an
arrest" in section 575.150 contemplate
"arrest" being a process, rather than any given
isolated moment in time-isolated moments such as being
handcuffed in the kitchen or being delivered to a police car.