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State v. Ajak

Supreme Court of Missouri, En Banc

April 3, 2018

DANIEL D. AJAK, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY The Honorable Keith Marquart, Judge


         Defendant 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.[1] 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.


         On February 15, 2015, Mr. Ajak and his girlfriend, Shanna McMackin were at home in the house they shared.[2] 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.

         Meanwhile, 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 and scream.

         At some 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.

         After 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.

         It was 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.

         The 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.


         In 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 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, the person:
(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).[3] 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.

         The 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.

         The 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, [4]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 ...

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