Court of Appeals of Missouri, Western District, Second Division
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
Demont Brown ("Brown") appeals his conviction of
the class A misdemeanor of assault in the third degree
pursuant to section 565.070. 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.
and Procedural Background
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.
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.
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.
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 (Count II); and (iii) the class A
misdemeanor of assault in the third degree under section
565.070in 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.
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. 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.
jury was instructed on Count I, the resisting arrest charge,
by Instruction No. 8, the verdict director submitted by the
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
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.
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. .
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.
jury was instructed on Count III, the misdemeanor assault
charge, by Instruction No. 12, the verdict ...