FROM THE CIRCUIT COURT OF BUCHANAN COUNTY The Honorable Keith
DENVIR STITH, JUDGE
Daniel Ajak was charged with three counts of domestic
assault. He was also charged with resisting arrest at the
time of his arrest on those charges under section
575.150. The jury acquitted him of two of the
domestic assault charges and the State dismissed the third
charge after the jury was unable to reach a verdict. The jury
convicted Mr. Ajak of the charge of resisting arrest. He
appeals, alleging the circuit court erred by (1) overruling
his motion for judgment of acquittal of resisting arrest
because the relevant conduct occurred after his arrest was
effected and (2) by submitting a jury instruction which
allowed the jury to convict him of resisting arrest if he
used "physical interference" rather than requiring
he actually resist the arrest. This Court reverses. Mr.
Ajak's arrest was already effected and he was in police
custody by the time any resistance occurred. Any resistance
could not have been for the purpose of resisting an arrest
which already had been accomplished. Accordingly, the
judgment is reversed.
PROCEDURAL AND FACTUAL BACKGROUND
February 15, 2015, Mr. Ajak and his girlfriend, Shanna
McMackin were at home in the house they shared. Ms.
McMackin's two adult children, Sean and Courtney Elder,
also were in the house that night when Courtney and Mr. Ajak
got into a fight after Mr. Ajak refused to allow
Courtney's boyfriend to come over to drink. Various
witnesses testified Courtney was the aggressor, yelling at
Mr. Ajak, hitting him, and pulling on his dreadlocks as he
kept trying to push her away. When Courtney's brother
Sean thought the argument had gone too far, he intervened and
took Mr. Ajak to the ground. Mr. Ajak got back up and picked
up a knife in the kitchen (he said to protect himself) as
Courtney continued to yell and scream at him. Although Mr.
Ajak did not use the knife, Ms. McMackin believed the fight
had escalated too far and called the police. Courtney left
before the police arrived shortly thereafter, at about 8:45
or 9:00 p.m. Upon their arrival, Mr. Ajak placed the knife in
the sink and went toward the front door.
Ms. McMackin and Sean, who were on the front porch, told the
arriving officers Mr. Ajak was inside. The officers went in
the open front door and saw Mr. Ajak approaching them from
the kitchen. They ordered him to put his hands up and stop
moving because they previously had been advised the
disturbance involved a knife. Mr. Ajak put his hands in front
of him but at first continued moving toward the officers.
Once he stopped moving forward, an officer immediately
detained him and placed him in handcuffs. Mr. Ajak yelled he
was the victim, angry he had been placed in handcuffs. The
officer walked Mr. Ajak to the kitchen and put Mr. Ajak in a
chair at the kitchen table, where Mr. Ajak continued to yell
point, two more officers arrived, so there was a total of six
officers at the residence. One officer stood over Mr. Ajak as
he sat in the kitchen chair, while the other five officers
spent some time moving between the kitchen and other areas of
the house and speaking with each of the other individuals
present about the alleged domestic disturbance.
speaking with the witnesses and while Mr. Ajak still was
handcuffed in a chair in the kitchen, one of the officers
advised him he was under arrest and would be transported to
jail. One of the officers later testified Mr. Ajak "knew
at that point that he was under arrest." Mr. Ajak
continued screaming and yelling he was the victim and he was
not going to jail while one of the officers left the
residence to go pull the patrol car in front of the house.
While that officer was walking to and retrieving the patrol
car, because the weather was cold an officer "[g]rabbed
some shoes and a shirt and a jacket to cover [Mr. Ajak]
up" and "tried to get him to put on the clothing
for a couple minutes." He refused the clothes.
at this point Mr. Ajak, restrained in handcuffs, was escorted
out of the residence by two officers, one on each arm, with a
third officer following behind. As the four walked to the
patrol car that had been moved right outside the residence,
Mr. Ajak "kind of was jerking back and forth trying to
break [the officers'] grip." This caused one of the
officer's name tags to fall from his uniform. Mr. Ajak
continued yelling and screaming, and "in doing so spit
on the side" of one officer's face just before he
was placed inside the patrol car. That officer testified,
"As I was opening the patrol vehicle door to place him
in the backseat, he began to fight back a little bit and jerk
and pull back away from us." Mr. Ajak did not break free
from the officers' hold, however, and was secured in the
patrol car and transported to the jail.
State charged Mr. Ajak with three counts of domestic assault
and one count of resisting arrest. The jury acquitted Mr.
Ajak of two counts of domestic assault but was unable to
reach a verdict on the third count of domestic assault; the
State ultimately dismissed that charge. The jury found Mr.
Ajak guilty only of the one count of resisting arrest, and
Mr. Ajak was sentenced to 280 days in jail. Mr. Ajak
appealed. This Court granted transfer after opinion by the
court of appeals. Mo. Const. art. V, § 10.
STANDARD OF REVIEW
reviewing the evidence supporting the resisting arrest
conviction, this Court's "review of sufficiency of
the evidence is limited to whether the State has introduced
sufficient evidence from which a reasonable juror could have
found each element of the crime beyond a reasonable
doubt." State v. Hunt, 451 S.W.3d 251, 257 (Mo.
banc 2014). "To determine whether the evidence presented
was sufficient to support a conviction and to withstand a
motion for judgment of acquittal, this Court does not weigh
the evidence" but, instead, "'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) (alterations in original). But the
"Court will not supply missing evidence or grant the
State unreasonable, speculative, or forced inferences."
State v. Lammers, 479 S.W.3d 624, 632 (Mo. banc
2016) (citation omitted).
MR. AJAK'S ARREST WAS EFFECTED BEFORE HIS RESISTANCE
Ajak was charged and found guilty of misdemeanor resisting
arrest under section 575.150, which provides:
1. A person commits the crime of resisting or interfering
with arrest, detention, or stop if, knowing that a law
enforcement officer is making an arrest, or
attempting to lawfully detain or stop an individual or
vehicle, … for the purpose of preventing the
officer from effecting the arrest, stop or detention,
(1) Resists the arrest, stop or detention of such
person by using or threatening the use of violence or
physical force or by fleeing from such officer;
(Emphasis added). In order to prove resisting arrest, the
statute thus requires proof of three elements: (1) knowledge
that the law enforcement officer is making an arrest; (2)
purpose on the part of the defendant to prevent the officer
from effecting the arrest; and (3) resisting the arrest by
threatening the use of violence or physical force or by
fleeing from such officer. § 575.150.1.
parties disagree as to whether Mr. Ajak's arrest was
completed while he was in the kitchen with the officers. Mr.
Ajak does not claim he submitted to the custody of the
officers, but rather argues he was under actual physical
restraint while in the kitchen, handcuffed, and surrounded by
officers who told him he was under arrest and kept him there
under their control. The State argues that being confined in
the kitchen was inadequate and Mr. Ajak had to be placed in
the patrol car to be under arrest.
resolution to the parties' disagreement depends on the
statutory meaning of the term "arrest." The State
acknowledges that section 544.180, RSMo 2000, defines arrest
as "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, " but it and the
dissent nonetheless argue this definition does not apply to
the resisting arrest statute, section 575.150. They do not
identify any specific alternative definition of
"arrest" they believe is controlling but rather say
that because the criminal code in effect in 2015, chapters
556 to 579 of Title 38, did not specifically adopt or reference
section 544.180, that section's definition of arrest
simply should be held to provide "guidance"
comparable to guidance provided by common law interpretations
of the term arrest. The dissent simply ...