State v. Steward

608 S.W.3d 184

STATE of Missouri, Respondent,

v.Patrick Jerome STEWARD, Appellant.

No. ED 108086

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: September 15, 2020

Katharine P. Curry, 1000 W. Nifong, Building 7, Suite 100, Columbia, MO. 65203, for appellant.

Robert J. Bartholomew, Jr., P.O. Box 899, Jefferson City, MO. 65102, for respondent.

Angela T. Quigless, P.J.

The defendant, Patrick Jerome Steward, appeals the judgment entered by the Circuit Court of Warren County for the class E felony of resisting a lawful stop in violation of section 575.150 RSMo. (2016).¹ Following his conviction by a jury, the trial court sentenced the defendant as a persistent felony offender to seven years of imprisonment.

Because the State charged and tried the defendant with resisting a lawful stop "for a felony offense," and because the verdict director did not require the jury to find that the defendant fled in a manner creating a substantial risk of serious physical injury or death, the evidence was insufficient to allow enhancement of the offense of resisting a lawful stop from a class A misdemeanor to a class E felony pursuant to section 575.150.5. We affirm the defendant's conviction for resisting a lawful stop, but we must remand for the purpose of correcting the judgment and resentencing the defendant within the applicable range of punishment for a class A misdemeanor.

Factual and Procedural Background

We set forth the relevant facts viewed in the light most favorable to the verdict. On the evening of October 31, 2017, Missouri Highway Patrol Trooper Bishop ran the license plate of the car driven by the defendant and stopped ahead of her at a traffic light in Warren County. Trooper Bishop's license-plate check revealed that the car was reported stolen. Trooper Bishop testified that she stopped the car to investigate further, and that she would have arrested the occupants for tampering with a motor vehicle if her investigation revealed that the car was indeed stolen. The defendant pulled over, but when Trooper Bishop exited her vehicle and approached, the defendant drove away at a high rate of speed into a residential neighborhood. Trooper Bishop pursued the vehicle briefly, but terminated her pursuit because it was Halloween and children were still out. The defendant and a passenger in the car were later apprehended after a high-speed chase culminating in a crash in Lincoln County.

The State's second amended information charged the defendant as a prior and persistent felony offender with the class E felony of resisting a lawful stop in violation of section 575.150 in that:

[O]n or about October 31, 2017, in the County of Warren, State of Missouri, Trooper Bishop, a law enforcement officer, was attempting to make a lawful stop of a vehicle being operated by defendant, and the defendant knew or reasonably should have known that the officer was making a lawful stop for a felony offense, and, for the purpose of preventing the officer from effecting the stop, resisted the stop of defendant by fleeing from the officer.

The State also charged the defendant with the class D misdemeanor of driving while license suspended, and the class D felony of first-degree tampering with a motor vehicle. The State dismissed the tampering charge, and the defendant pled guilty to the charge of driving while license suspended. The parties proceeded to trial only on the charge of resisting a lawful stop.

The defendant's former girlfriend, Tamara Carter, testified that she was the owner of the car driven by the defendant. Carter explained that while she was jailed, she gave permission for the defendant to obtain her keys and use the car to bring items to her at the jail. Because the defendant continued to use her vehicle, Carter reported it stolen. She did not inform the defendant that she reported the car stolen. The defendant's new girlfriend was in the car at the time of the defendant's flight from Trooper Bishop. She testified that as he pulled over, the defendant told her that perhaps Carter had reported the car stolen.

The court gave the jury two verdict directors. Instruction Number 6 submitted by the State followed MAI-CR 4th 429.61, the parties described it as an instruction for "felony" resisting a lawful stop. The instruction read:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about October 31, 2017, in the State of Missouri, Trooper Bishop was a law enforcement officer, and

Second, that Trooper Bishop was attempting to stop a vehicle being operated by defendant, and

Third, that defendant knew or reasonably should have known that a law enforcement officer was attempting to stop defendant, and

Fourth, that the basis for the stop was a reasonable suspicion of the commission of the crime of stealing a motor vehicle, and

Fifth, that defendant knew or reasonably should have known the basis for the stop, and

Sixth, that for the purpose of preventing the law enforcement officer from making the stop, the defendant resisted by fleeing from the officer, then you will find the defendant guilty under Count I of resisting a lawful stop.

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 defense submitted Instruction Number 7, which the parties characterized as an instruction for "misdemeanor" resisting a lawful stop. The two instructions were identical, except that Instruction Number 7 did not contain the paragraphs about the basis for the stop (paragraph Fourth above) or the defendant's knowledge of its basis (paragraph Fifth above). In closing argument, defense counsel acknowledged that the defendant resisted a stop, and she urged the jury to convict the defendant of a misdemeanor rather than of a felony. The jury returned a guilty verdict pursuant to Instruction Number 6.

The defendant filed a motion for new trial challenging the sufficiency of the evidence and the verdict-directing jury instructions. At the hearing on the motion for new trial and sentencing, counsel argued that the offense of which the defendant was convicted could not be enhanced to a felony under section 575.150.5 because: (1) Trooper Bishop sought to make a lawful stop rather than to make an arrest for a felony offense; and (2) the charge against the defendant failed to allege that the defendant fled in a manner creating a substantial risk of serious physical injury or death, and the jury was not required to find those facts. The trial court rejected the defendant's argument, stating that:

Well, obviously, it was a stop, not a—not an arrest or attempted arrest. But, however, the other evidence in the case of an extremely highspeed, I guess, brief chase, I could call it, until the officer cut it off because of the danger involved, I think, is sufficient to increase it to a Class E felony. And in this case, Mr. Steward was also shown to be a prior and persistent felony offender, also, so which makes it—raises the range of punishment up to a D felony, of course.

As a result, the trial court sentenced the defendant to seven years of imprisonment, the maximum sentence for a class D felony. The defendant appeals.

Standard of Review

When a defendant challenges the sufficiency of the evidence, we accept as true all evidence favorable to the State, including all favorable inferences drawn from the evidence, and we disregard all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) ; State v. Sloan , 561 S.W.3d 831, 837 (Mo. App. E.D. 2018). We limit our review to determining whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Grim , 854 S.W.2d at 405 ; Sloan , 561 S.W.3d at 837.

Discussion

On appeal, the defendant claims the trial court erred in overruling his motion for judgment of acquittal at the close of the State's evidence, and in entering judgment and sentence for the class E felony of resisting an arrest. He contends the State charged him only with resisting a lawful stop "for a felony," and not resisting an arrest for a felony. Under Section 575.150, the defendant argues, resisting a lawful stop "for a felony" is not a felony offense. He also argues that the State did not allege that he resisted a stop by fleeing in a manner that created a substantial risk of serious physical injury or death, nor did the verdict director require the jury to find those facts. As a result, the defendant maintains that he could not be convicted for a felony violation of Section 575.150. We agree.

The State's second amended information charged the defendant with "the class E felony of resisting a lawful stop" in that the defendant fled from Trooper Bishop who "was making a lawful stop for a felony offense." The elements of resisting a lawful stop are: (1) the defendant knew or reasonably should have known that a law enforcement officer was making a lawful stop; (2) the defendant resisted the stop by fleeing from the officer, or by threatening to use violence or physical force; and (3) the defendant did so for the purpose of preventing the officer from completing the stop. Section 575.150.1(1); State v. Nelson , 505 S.W.3d 437, 445 (Mo. App. W.D. 2016). The State made a submissible case for resisting a lawful stop, and the defendant in closing argument conceded that he committed the offense of resisting a lawful stop although he argued the jury should convict him only of a misdemeanor in accord with Instruction Number 7. The jury found the defendant guilty pursuant to Instruction Number 6, which the parties described as an instruction for "felony" resisting a lawful stop. Viewing the evidence in the light most favorable to the verdict and ignoring all contrary evidence and inferences, we hold the State adduced sufficient evidence to convict the defendant of resisting a lawful stop, in violation of section...