Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of of St. Francois County 16SF-CR01351
Honorable Wendy Wexler Horn.
M. Dowd, Presiding Judge.
Schelsky appeals the judgment of the Circuit Court of St.
Francois County entered after a jury found him guilty of
three counts of first-degree assault of a law enforcement
officer, one count of first-degree robbery, four counts of
armed criminal action, and one count of attempted escape from
custody. All of Schelsky's convictions, except for
attempted escape from custody, stem from two separate traffic
stops which occurred on the same day, August 30, 2016, and
during which Schelsky threatened law enforcement with a
firearm. During the first stop, Schelsky swiftly exited his
vehicle, surprised the lone police officer present by running
toward him before he could exit his patrol vehicle, and stuck
his pistol beneath the officer's left arm before he could
draw his own weapon. Schelsky then took the officer's
taser at gunpoint and fled. About twelve hours later, after
he was stopped again, Schelsky drew and aimed his pistol at
two police detectives for nearly a minute during a standoff
appeal, Schelsky challenges the sufficiency of the evidence
to support his convictions of first-degree assault and armed
criminal action for threatening the two detectives during the
second stop. He also challenges the trial court's
jurisdiction in this case-asserting that the indictment was
invalid because it bore a recused judge's signature-and
contends that two of the State's witnesses gave opinion
testimony that invaded the province of the jury. As to these
points, we find no reversible error, and accordingly we
affirm all of Schelsky's convictions except for attempted
escape from custody.
respect to that conviction, however, Schelsky points out-and
the State concedes- that the conviction cannot stand where
the alleged escape attempt occurred while he was no longer in
custody but had already been delivered to a place
of confinement, negating an essential element of the
charged offense. See State v. Rickman, 23 S.W.3d
914, 914 (Mo.App.S.D. 2000) (citing §§ 556.061 and
575.200, defining "custody" and the offense of
"escape from custody," respectively, for the
principle that a person is not in custody when he has already
been delivered to a place of confinement, and holding
therefore that the defendant in confinement did not escape
from custody). Accordingly, we affirm in part and reverse and
remand in part.
approximately 7 a.m. on August 30, 2016, Officer Jacob Sitton
of the Desloge, Missouri Police Department was driving his
patrol vehicle in downtown Desloge when he encountered
Schelsky driving a black Pontiac Trans Am with a broken
taillight. Officer Sitton decided to follow the vehicle
because he noticed Schelsky was not paying attention to the
road, and because he learned upon checking the vehicle's
registration that it was registered to a driver with a
suspended license, Garrett Williams, whom Officer Sitton
assumed was driving the vehicle.
following the vehicle, Officer Sitton observed Schelsky make
an illegal left turn at a stop sign. As Officer Sitton
attempted to position his patrol vehicle to effect a traffic
stop, Schelsky drove away at a "high rate of
speed." Officer Sitton activated his emergency lights
and siren and pursued Schelsky. Officer Sitton observed
Schelsky fail to stop at two stop signs on his way to Old
Highway 8, a road leading out of town.
Officer Sitton closed in on Schelsky on Old Highway 8,
Schelsky left the highway, swerved into a private driveway,
and ran into a fish pond in front of a residence. Officer
Sitton "nosed" his patrol vehicle toward
Schelsky's driver's side door and Schelsky made eye
contact with him. Suddenly, Schelsky attempted to drive away
again, but he quickly lost control and drove nose first into
a ditch beside the highway. Officer Sitton positioned his
patrol vehicle directly behind Schelsky so he could not back
out onto Old Highway 8.
Sitton emerged from his patrol vehicle after alerting
dispatch about the situation. By that time, however, Schelsky
had already exited the Pontiac and was running toward Officer
Sitton from approximately ten to 15 feet away. Officer Sitton
ordered Schelsky to get on the ground but he kept running
toward the officer. Officer Sitton testified that when
Schelsky was approximately seven to ten feet away, "his
right hand [came] up, and he had a silver, small framed
pistol in his hand." Officer Sitton attempted to draw
his own weapon but did not have enough time to do so.
Schelsky stuck his pistol into Officer Sitton's body
beneath his left arm and, while maintaining the pistol in
that position, told the officer to stop trying to draw his
Officer Sitton attempted to convince Schelsky not to shoot
him, Schelsky with his free hand turned off the officer's
radio and took his taser from his belt. Officer Sitton
testified that once Schelsky had the taser out, "it
appeared that he was looking at the taser trying to figure
out how to operate it." Officer Sitton believed that
Schelsky was going to use the taser on him. He testified he
feared for his life, so he continued to attempt to convince
Schelsky not to harm him. Eventually, Schelsky ordered
Officer Sitton to return to his patrol vehicle and drive
away, which he did. Schelsky kept Officer Sitton's taser
and it was later found in a wooded area nearby.
twelve hours after his assault on Officer Sitton, Schelsky
encountered Detectives Kenneth Wakefield and Matthew Wampler
of the St. Francois County Sheriffs Department at a second
traffic stop. The stop was the result of the detectives'
plan to apprehend Schelsky that they had arranged with an
unidentified informant who gave them a tip several hours
after the first traffic stop that Schelsky remained near Old
Highway 8. The informant agreed to pick up Schelsky while a
cell phone in his truck allowed the detectives to listen in
as they followed in their patrol vehicle, and he agreed that
when the truck reached a particular location where other
officers were waiting to provide backup, the detectives would
activate their emergency lights, the informant would stop his
truck, and law enforcement would apprehend Schelsky.
as planned, the detectives activated their lights and the
informant came to a stop outside Desloge near Old Highway 8,
Schelsky exited the vehicle from the passenger's side
door and aimed his pistol at both Det. Wakefield and Det.
Wampler. The two detectives exited their patrol vehicle
parked approximately 20 to 30 feet behind the truck, pointed
their guns at Schelsky, and ordered him to drop his pistol.
Both detectives testified that they repeatedly
"pleaded" with Schelsky to put the pistol down, but
that he did not comply. Det. Wampler testified that the
standoff lasted between 45 seconds and one minute; that
Schelsky did not speak but moved the barrel of his gun from
one detective to the other; and that his finger was in the
trigger guard. Det. Wakefield testified that the detectives
"immediately identified" themselves as law
enforcement and told Schelsky to "drop the gun,"
but he refused. Det. Wakefield also testified that when
Schelsky aimed his pistol at the two detectives, he believed
based on his extensive experience as a law enforcement
officer and on his knowledge of Schelsky's earlier
assault on Officer Sitton, that Schelsky had the intent to
kill him or cause him serious physical harm.
nearly a minute, Schelsky dropped his pistol into the bed of
the truck in which he had been riding. The gun remained
within arm's reach, however, and when the detectives
approached Schelsky to subdue him, he struggled with them
before they could place him under arrest. A bullet was found
in the chamber of the pistol Schelsky aimed at the detectives
and additional bullets were found in the gun's magazine.
Schelsky was interviewed by Officer Brad Judge at the Desloge
Police Department. Schelsky admitted that he "put [his]
gun to Officer Sitton's rib" at the first stop, and
that he knew prior to the first traffic stop that there was
an outstanding warrant for his arrest. Also, Schelsky later
testified that he recognized before the second stop that the
police believed he was "armed and dangerous"
because he had already "pulled a gun on an
his interview with Officer Judge, Schelsky was delivered to
the St. Francois County jail. At trial, the State presented
considerable evidence that while he was confined in the jail,
Schelsky attempted to escape by directing a female
acquaintance, Michelle Dessieux, to bring weapons to him.
on the foregoing facts, the jury found Schelsky guilty of
three counts of first-degree assault of a law enforcement
officer for threatening the officers at the two traffic
stops, one count of first-degree robbery for stealing Officer
Sitton's taser, four associated counts of armed criminal
action, and one count of attempted escape from custody.
was sentenced to 20 years in prison for each count of
first-degree assault of a law enforcement officer, ten years
for first-degree robbery and for each count of armed criminal
action, and two years for attempted escape from custody. The
sentences were ordered to run consecutively for a total of
112 years in prison.
The trial court did not lack jurisdiction in this case,
and the indictment was not invalid, because § 545.030. 1
(18) provides that no indictment shall be deemed invalid, nor
shall the trial or judgment be in any manner affected,
where-as here-the indictment bore no defect or imperfection
that prejudiced the substantial rights of the defendant on
argues that the indictment here was insufficient to charge a
crime because it bore the signature of a recused judge. On
this basis, he challenges the trial court's jurisdiction
and asserts plain error. We find, however, that the
indictment was sufficient under § 545.030.
indictment at issue was a superseding grand jury indictment
filed to add to the original indictment the count of
attempted escape from custody. Before the superseding grand
jury indictment was filed, Judge Sandy Martinez, who signed
the original indictment, recused pursuant to a motion for
change of judge, and the case was assigned to Judge Wendy
Wexler Horn. Nevertheless, Judge Martinez signed the
superseding indictment, and Schelsky was tried thereon with
no objection until this appeal, where he asserts for the
first time that the indictment was invalid and deprived the
trial court of jurisdiction.
545.030.1(18) sets forth in pertinent part that "[n]o
indictment... shall be deemed invalid, nor shall the trial
[or] judgment [be] in any manner affected" as the result
of any "defect or imperfection which does not tend to
the prejudice of the substantial rights of the defendant upon
the merits." Notably, this provision is subject only to
the interpretive dictate that it shall not be "construed
as to render valid any indictment which does not fully inform
the defendant of the offense of which he stands
charged." § 545.030.2.
in line with § 545.030, our cases hold that "when
the issue is raised for the first time after verdict, the
indictment or information will be deemed insufficient only if
it is so defective that (1) it does not by any reasonable
construction charge the offense of which the defendant was
convicted or (2) the substantial rights of the defendant to
prepare a defense and plead former jeopardy in the event of
acquittal are prejudiced." Id.
we find Schelsky makes no credible showing of either of these
two disjunctive grounds. There was no question Schelsky was
fully informed of the offenses with which he was charged. He
merely asserts that Judge Martinez's signature taints the
entire proceedings despite the fact that the indictment was
otherwise free of any defect or imperfection. As a result, we
conclude that none of his substantial rights to prepare a
defense was affected.
the signature of the recused judge did not deprive the trial
court of jurisdiction. "Subject matter jurisdiction of
the circuit court and the sufficiency of the information or
indictment are two distinct concepts." State v.
Parkhurst,845 S.W.2d 31, 34-35 (Mo.banc 1992).
"Circuit courts obviously have subject matter
jurisdiction to try crimes," id. at 35 (citing
Mo. Const, art. V, § 14(a)), and "[c]ases stating
that jurisdiction is dependent upon the sufficiency of the
indictment or information mix separate questions" and
"should not be relied on." Id. (citing
Montgomery v. State,454 S.W.2d 571, 575 (Mo.banc
1970)). Additionally, there can be no issue of personal
jurisdiction on appeal where such was ...