State v. Dill

1

STATE OF MISSOURI, Plaintiff-Respondent, v. CARL W. DILL, II, Defendant-Appellant.

No. SD37153

Court of Appeals of Missouri, Southern District, En Banc

October 31, 2023

APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable David A Cole

PER CURIAM.

Carl W Dill, II ("Defendant") appeals his convictions following a jury trial in the Circuit Court of Lawrence County for (1) the class-A felony of trafficking in the first degree (Count 1), and (2) the class-E felony of resisting an arrest (Count 2).

In two points relied on, Defendant claims the evidence was insufficient to prove beyond a reasonable doubt that Defendant: (1) affirmatively participated in a criminal enterprise by countenancing or approving another's actions of possessing and transporting 88 grams of methamphetamine; and (2) knew the law enforcement officer "was effecting [Defendant's] arrest prior to fleeing or that [the officer] was making [Defendant]'s arrest for felony possession of a controlled substance." Finding no merit in either claim, we affirm.

Standard of Review &Governing Law

"Appellate review of sufficiency of the evidence is limited to whether the State has introduced adequate evidence from which a reasonable finder of fact could have found each element of the crime beyond a reasonable doubt." State v Mueller, 568 S.W.3d 62, 66 (Mo. App. S.D. 2019) (quoting State v. Lammers, 479 S.W.3d 624, 632 (Mo. banc 2016)). In such a review, we "accept[] as true all the evidence favorable to the verdict, including all favorable inferences properly drawn from the evidence, and disregard[] all evidence and inferences to the contrary." State v. Cline, 808 S.W.2d 822, 823 (Mo. banc 1991).

"We do not weigh the evidence. Instead, we defer to the fact-finder's superior position to weigh and value the evidence, determine the witnesses' credibility and resolve any inconsistencies in their testimony." Mueller, 568 S.W.3d at 66 (internal quotations and citations omitted). "The State may prove its case by presenting either direct or circumstantial evidence connecting the defendant to each element of the crime. Circumstantial evidence is given the same weight as direct evidence and the jury is free to draw reasonable inferences from the evidence presented." Id. (internal citation omitted). Our summary of the relevant evidence is presented in accordance with these standards.

Under the circumstances at issue in this appeal, a person commits the offense of first-degree trafficking in violation of section 579.065^[1] if that person:

knowingly distributes, delivers, manufactures, produces or attempts to distribute, deliver, manufacture or produce:

....

(8) More than thirty grams but less than ninety grams of any material, compound, mixture, or preparation containing any quantity of . . . methamphetamine[.]

Section 579.065.1(8). Section 562.012 provides, in pertinent part:

Guilt for an offense may be based upon an attempt to commit an offense if, with the purpose of committing the offense, a person performs any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

Section 562.012.1.

A person is criminally responsible for the conduct of another when:

....

(2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he . aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.

Section 562.041.1(2).

A person commits the offense of resisting arrest under section 575.150.1 if, in relevant part, he "knows or reasonably should know that a law enforcement officer is making an arrest . . ., and for the purpose of preventing the officer from effecting the arrest, . . . he . . . [r]esists the arrest . . . by fleeing from such officer[.]" Section 575.150.1(1). Section 575.150.5(1) enhances resisting arrest to a class-E felony "if the State presents sufficient evidence that the defendant resisted an officer's attempt to make an arrest 'because of' or 'on account of' an offense, and the offense constitutes a felony as a matter of law." State v. Shaw, 592 S.W.3d 354 359-60 (Mo. banc 2019).

Evidence and Procedural Background

At around 1:00 p.m. on June 18, 2019, Jasper County Transportation Deputy David Roughton ("the deputy"^[2]) was traveling in a marked Sheriff's van on Highway 96 when he noticed a white truck pulling a trailer that was traveling very fast on the shoulder of the road in the opposite lane. The truck and trailer were kicking up a lot of dust and debris. The deputy was slowing down to try to determine why the truck was going so fast on the shoulder when a blue Chevrolet Cruze ("the Cruze") coming up from behind him, shot between him and the truck at a "super high rate of speed." He then realized that the truck had moved onto the shoulder to get out of the way of the Cruze, and he slowed down to see what was going to happen with the truck, which he thought was going to crash. When the truck successfully returned to the road, the deputy focused back on the Cruze that had cut between them.

The deputy called 9-1-1 to report a reckless driver, and he sped up to keep the Cruze within eyesight. As the Cruze approached the intersection of Highway 96 and Route UU, it tried to maneuver onto the shoulder, then it suddenly changed direction as if to make a southbound turn onto a gravel road. The driver lost control, and the Cruze went off the roadway into a real deep ditch, landing upside down.^[3]

The deputy informed dispatch of the location of the wreck and stopped to check on the occupants in the Cruze, handing his phone to a bystander that he asked to call 9-1-1. The deputy watched the driver, later identified as Douglas Ward ("Ward") of Lebanon, punch out the driver's-side window of the Cruze with his fist and crawl out. The deputy heard other people in the Cruze. The deputy identified himself as law enforcement, told everyone to relax, and asked if anyone was hurt. The deputy informed them that he had help on the way, and he directed them to "stay down" and not get up and walk around. Ward started to get up, appearing dazed, and the deputy told him to just stay down. At first, Ward was compliant, and he sat and looked up at the deputy.

Meanwhile, two other passengers crawled out of the overturned vehicle. One passenger, Tara Ivy ("Ivy"^[4]), was also from Lebanon. Defendant, the other passenger, was from Conway, a town eighteen miles from Lebanon. Again, the deputy told everyone to stay down and told them that an ambulance was on its way. Ward, down in the ditch on the driver's side of the Cruze, was the closest of the three occupants to the deputy. Defendant was on the opposite side of the Cruze, standing at the passenger-side door.

After Ivy crawled out, she started to come around to the front of the overturned car. She then attempted to crawl up the ditch and began screaming, "I'm hurt, I need help, I'm pregnant." The deputy told Ivy to stay down and that the ambulance was on its way, but Ivy was non-compliant. She "was just flipping out" and started to crawl up the ditch toward the deputy. The deputy said, "[N]o lady just stay back, stay down, stay away." The deputy realized that Ivy, who did not appear to be hurt, was trying to distract him from watching Ward. Ivy was not doing anything the deputy would normally expect to see from a car-crash victim.

The deputy turned his attention back to Ward and saw that he was attempting to stand up. Ward then started digging in his pockets. The deputy ordered Ward to stay down and take his hands out of his pockets. The deputy was in fear for his life when Ward ignored his directive and kept digging in his pockets while giving the deputy "this stare like a flight or fight."

Due to Ivy's distraction and all the ensuing chaos, the deputy felt that he was losing control of the scene, so he pulled his gun and trained it on Ward, fearing that Ward might be trying to pull a gun out of his pocket. The deputy wanted to "up the ante[,]" maintain control, and "quell whatever this guy was getting ready to pull out of his pockets." The deputy screamed at Ward to keep his hands up where he could see them, keep his hands above his head, and lay down and relax, but Ward did not comply. The deputy was "very focused on him, screaming at him saying stop, you know, don't make me shoot you." During the deputy's exchange with Ward, the deputy observed that Defendant was at the back of the driver's side of the Cruze, but it was hard for him to say whether Defendant was standing or sitting at that time.

At one point, Ivy and Defendant stood up to watch the encounter between the deputy and Ward, then crouched back down when the deputy drew his weapon. As soon as the deputy's attention was back on Ward, Defendant and Ivy stood back up and watched what the deputy was doing with Ward. Defendant and Ivy were watching the encounter when Ward "flipped" from his pocket a large baggie of clear, white, crystalline substance that the deputy believed to be an illegal drug.^[5] The bag landed a couple of feet away from Ward by the driver's-side door of the Cruze.

After Ward flipped the "very large bag" out of his pants, the deputy testified that "the tension just kind of went out." The deputy testified:

So, I'm like, okay, dude, really. So, I holstered up. And I realized he is not digging in his pockets for a gun. And I pull out the handcuffs and I start to go down the ravine. I start to approach [Ward].

I told him I am placing you under arrest. As soon as I literally holster my gun and pulled the handcuffs all of them jumped up. Ward was on his feet. I

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