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State v. Brown

Court of Appeals of Missouri, Western District, Second Division

June 28, 2019

STATE OF MISSOURI, Respondent,
v.
DUSTIN DEMONT BROWN, Appellant.

          Appeal from the Circuit Court of Randolph County, Missouri The Honorable Cynthia A. Suter, Judge

          Before: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

          Cynthia L. Martin, Judge

         Dustin Demont Brown ("Brown") appeals his conviction of the class A misdemeanor of assault in the third degree pursuant to section 565.070.[1] Brown alleges that the trial court committed error when it permitted the State during closing argument to read and display a statute addressing the crime of resisting arrest pursuant to section 575.150, and to read from appellate cases describing the physical force required to resist arrest, because in doing so, the State improperly instructed on the law and misled the jury. Although the State's references during closing argument to statutory and decisional law relating to the crime of resisting arrest pursuant to section 575.150 was erroneous, the error did not prejudicially effect Brown's conviction for misdemeanor assault in the third degree pursuant to section 565.070. We therefore affirm.

         Factual and Procedural Background

         On August 22, 2015, Brown was involved in an altercation outside of a night club in Moberly, Missouri. Brown was observed kicking one of the night club employees, Robert Harrington ("Harrington"), in the head. Harrington had been attempting to intervene in the altercation.

         As officers arrived, Brown was seen leaving the scene in a Cadillac Escalade. The vehicle did not stop when instructed to do so by officers, and a pursuit of the vehicle commenced. The vehicle was stopped by Officer Andrew Jones ("Officer Jones") shortly thereafter. Because the vehicle was occupied by several people, Officer Jason Ward ("Officer Ward") arrived at the scene as backup.

         A person in the vehicle was ordered to exit, and was arrested. Although Brown had been instructed to remain in the vehicle, he exited the vehicle and approached Officers Jones and Ward in a verbally aggressive manner. Brown had previously been yelling at the officers from inside the vehicle. Officer Jones advised Brown that he was under arrest. He took hold of Brown's left arm while Officer Ward took hold of Brown's right arm, with the intent of pulling Brown's arms behind his back to place him in handcuffs. Brown tried to pull away from the officers, and to pull his arms to the front of his body. The officers had to use force to restrain Brown, and to handcuff him with his arms behind his back. During the struggle, Officer Jones received a small cut and abrasions to his left hand.

         Brown was charged by amended information with: (i) the class A misdemeanor of resisting arrest pursuant to section 575.150 (Count I); (ii) the class A misdemeanor of assault of a law enforcement officer in the third degree pursuant to section 565.083[2] (Count II); and (iii) the class A misdemeanor of assault in the third degree under section 565.070[3]in connection with the assault on Harrington (Count III). Following a jury trial, Brown was acquitted on Count II (assault of a law enforcement officer), and was convicted on Counts I and III.

         Brown received a suspended imposition of sentence on Count I, the charge of resisting arrest. That conviction is therefore not final for purposes of appeal, and is not the subject of this appeal.[4] Brown received a suspended execution of sentence on Count III, the charge of misdemeanor assault on the bar employee, Harrington. Brown's appeal challenges his conviction on Count III. Brown claims that the State's discussion during closing argument about a statute and decisional law applicable to Count I prejudicially resulted in his conviction on Count III.

         The jury was instructed on Count I, the resisting arrest charge, by Instruction No. 8, the verdict director submitted by the State:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on August 22, 2015, in the County of Randolph, State of Missouri, Andrew Jones and Jason Ward were law enforcement officers, and
Second, that Andrew Jones and Jason Ward were attempting to making [sic] an arrest of defendant, and
Third, that defendant knew or reasonably should have known that law enforcement officers were making an arrest of defendant, and
Fourth, for the purpose of preventing the law enforcement officers from making the arrest, the defendant resisted by using physical force,
Then you will find the defendant guilty under Count I of resisting an arrest.
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.

         The jury was also given Instruction No. 9, a converse instruction submitted by Brown as follows:

If you find and believe that the defendant's use of physical force, [sic] was not for the purpose of preventing the law enforcement officers from making an arrest, you must find the defendant not guilty under Count I of resisting arrest as submitted in Instruction No. .

         Brown's converse instruction was consistent with his defense strategy at trial which emphasized that the State had to prove beyond a reasonable doubt that Brown's purpose in using physical force to resist was to prevent law enforcement officers from making an arrest. See section 575.150.1.

         The jury was instructed on Count III, the misdemeanor assault charge, by Instruction No. 12, the verdict ...


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