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State v. Schelsky

Court of Appeals of Missouri, Eastern District, Fourth Division

November 12, 2019


          Appeal from the Circuit Court of of St. Francois County 16SF-CR01351 Honorable Wendy Wexler Horn.


          James M. Dowd, Presiding Judge.

         Joseph 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 before surrendering.

         On 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.

         With 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.


         At 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.

         While 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.

         When 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.

         Officer 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 own weapon.

         As 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.

         Approximately 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.

         When, 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.

         After 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.

         Subsequently, 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 officer."

         Following 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.

         Based 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.

         Schelsky 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.

         This appeal follows.


         1. 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 the merits.

         Schelsky 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.[1]

         The 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.

         Section 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.

         Moreover, 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.

         Here, 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.

         Furthermore, 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 ...

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