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State v. Ajak

Court of Appeals of Missouri, Western District

February 21, 2017

STATE OF MISSOURI, Respondent,
v.
DANIEL DUOT AJAK, Appellant.

         Appeal 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.

         En Banc

          KAREN KING MITCHELL, JUDGE.

         Daniel Ajak appeals, following a jury trial, his conviction of misdemeanor resisting arrest, § 575.150, [1] 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.

         Background[2]

         On 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 handcuffs.

         After 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.

         Ajak 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 appeals.

         Analysis

         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.

         A. The evidence was sufficient to support Ajak's conviction.

         "To 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)).

         The 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.

         1. History of § 575.150

         Before § 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).

         In 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 statutory scheme.[3]

         Shortly 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).[4] But they have resisted applying a precise definition to "arrest" for purposes of § 575.150.

         In 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.").

         Several 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.[5] 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 otherwise."

         Both 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.

         First, 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.

         Second, 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.

         The 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."[6] 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 § 575.150.[7]

         2. The definition of "arrest"

         "Words 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.[8] 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).

         Though, 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."

         This is 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.[9] 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 effectuated arrest.

         In 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).

         In 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, [10] evidenced by either actual physical restraint or submission to authority, [11] that remains in progress so long as "the officer is attempting to actually restrain or control the person of the defendant, "[12] and concludes once the arrestee is confined "within certain physical limits"[13] other than places of confinement.[14]

         3. Decision of other states

         The 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.[15]

         For 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.

         In 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, "[16] 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."[17] 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 time." Id.

         The 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." Id.

         The 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.[18]

         As the 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 "arrest."[19]

         We 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.[20] 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.[21] 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.

         Point I is denied.

         B. Ajak has failed to demonstrate manifest injustice from the inclusion of erroneous language in his verdict director.

         In his 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.

         As Ajak 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.

         "Plain 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.

         In 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.

         Though 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.

         Here, unlike in Meeks and its progeny, [22] 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 director).

         Furthermore, 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.[23] 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 force."

         In 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 injustice.

         In 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.

         Point II is denied.

         Conclusion

         The 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 affirmed.

          Chief Judge Mark D. Pfeiffer, and Judges James Edward Welsh, Lisa White Hardwick, Anthony Rex Gabbert, and Edward R. Ardini, Jr., concur.

          Judge Welsh writes a separate concurring opinion, in which Judge Gabbert joins.

          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.

          Judge Martin writes a separate dissenting opinion, in which Judge Ahuja joins.

         CONCURRING OPINION

          James Edward Welsh, Judge.

         I 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. ...


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