Missouri Court of Appeals Southern District
In Division
STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD37246 ) Filed: October 28, 2022 GREGORY EARL STEVENSON, ) ) Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY
Honorable R. Zac Horack, Associate Circuit Judge
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH DIRECTIONS
A jury found Gregory Stevenson (Defendant) guilty of, inter alia, the class A
misdemeanor of resisting a lawful detention, which carries a maximum sentence of one year
in jail. See § 575.150.5; § 558.011.1(6).1 Despite the jury’s findings, the trial court stated
during the sentencing hearing that Defendant had been convicted of the class E felony of
resisting arrest for a felony. The maximum sentence for that offense is four years in the
Department of Corrections (DOC). § 575.150.5(1); § 558.011.1(5). Based on the court’s
earlier finding that Defendant was a prior and persistent offender, the court enhanced the
1 All statutory references are to RSMo (2016). All rule referenced are to Missouri Court Rules (2022). punishment range to a class D felony and imposed the maximum seven-year sentence.
§ 558.016.7; § 558.011.1(4).
Defendant presents three points on appeal. He contends the trial court plainly erred
in three respects: (1) by sentencing Defendant to seven years’ imprisonment on his
conviction for resisting a lawful detention because the sentence exceeded the maximum
punishment authorized by law; (2) by entering a written judgment against Defendant for the
class E felony of resisting arrest when the jury found him guilty of the class A misdemeanor
of resisting a lawful detention; and (3) alternatively, by submitting the jury instruction of
resisting a lawful detention instead of resisting an arrest for a felony. Because Defendant’s
first two points are dispositive, we do not reach his third point. We vacate the judgment as
to Defendant’s conviction for the class E felony of resisting arrest and remand with
directions to resentence Defendant on that count within the range of punishment for a class
A misdemeanor.
Factual and Procedural Background
Defendant was charged with two counts of assault in the fourth degree, one count of
assault in the third degree, and one count of resisting an arrest. See § 565.056; § 565.054;
§ 575.150. All three charges stemmed from events occurring on September 21, 2020.
On that day, three police officers responded to a 911 call reporting that a man in a
white Dodge Charger had pointed a gun at the caller outside of a residence on Dorothy Street
in Sikeston, Missouri. The three officers responding were: Officer Ciara Shaffer; Officer
Zachary Boyer; and Sergeant Cliff Jackson. All three were witnesses at trial and gave the
following testimony.
When the officers arrived, they observed a white Dodge Charger parked close to the
Dorothy Street residence. Sgt. Jackson read the license plate number to dispatch to
2 determine the vehicle’s owner. As Sgt. Jackson did so, Defendant exited the vehicle and
asked the sergeant why he was running Defendant’s plates. Sgt. Jackson began to explain
why they were there, and Defendant abruptly said that he did not have any guns and tried to
get back into the vehicle. Because the officers were still not sure whether there was a weapon
in the car, Sgt. Jackson and Officer Boyer told Defendant to step away from the vehicle. The
officers said they were going to detain Defendant until they could investigate further.
Defendant did not listen and continued to try to get back into the car. Sgt. Jackson grabbed
Defendant by the arm, and both officers tried to turn Defendant so he was facing the vehicle.
The officers were not able to turn Defendant because he immediately charged at Sgt.
Jackson. They went to the ground, and Defendant was on top of the officer. Defendant
began punching Sgt. Jackson’s chest and abdomen. Defendant also fought with Officers
Shaffer and Boyer as they tried to intercede and move Defendant from atop Sgt. Jackson. It
was only after Officer Shaffer tased Defendant that the officers were able get control of
Defendant’s arms and handcuff him.
After Defendant was handcuffed, Officer Shaffer told Defendant that he was under
arrest for assaulting police officers. When they attempted to move Defendant into a marked
patrol car, Defendant stiffened his body and kicked the car and the officers. After tasing
Defendant again, the officers were finally able to secure Defendant in the patrol car.2 Sgt.
Jackson sustained injuries to his hand, face and elbow.
Defendant was charged as a prior and persistent offender with three counts of assault,
against each of the officers, and one count of resisting arrest. The first two counts alleged
that Defendant committed the class A misdemeanor of fourth-degree assault for attempting
2 After searching Defendant’s vehicle, no gun was found. 3 to cause physical pain to Officer Boyer and Officer Shaffer, respectively, by fighting with
the officers while they were attempting to detain Defendant. The third count alleged that
Defendant committed the class D felony of third-degree assault for knowingly causing
physical injury to Sgt. Jackson by striking him and causing multiple abrasions on his body
and face. The fourth count alleged that Defendant committed the “class E felony of resisting
an arrest … by using or threatening the use of physical force by stiffening his body while
the officers attempted to detain him and becoming physically aggressive by kicking the
officers and striking them with his elbows.”
During the instruction conference, the prosecutor tendered two verdict-directing
instructions (Instruction No. 7 and Instruction No. 9) submitting the class A misdemeanor
offense of fourth-degree assault involving Officers Boyer and Shaffer, as charged in Counts
1 and 2. The prosecutor also tendered one verdict-directing instruction (Instruction No. 11)
submitting the class D felony offense of third-degree assault involving Sgt. Jackson, as
charged in Count 3. Defense counsel tendered a verdict-directing instruction (Instruction
No. 13) which submitted the lesser-included offense of fourth-degree assault for the charge
involving Sgt. Jackson. The court agreed to give all four of these verdict-directing
instructions.
Finally, the prosecutor tendered, and the court agreed to give, a verdict-directing
instruction (Instruction No. 15) for Count 4. Defense counsel had no objection to that
instruction.3 Although Defendant had been charged with the class E felony of resisting an
“arrest” by physical force, Instruction No. 15 did not submit that offense for the jury’s
3 There would be no reason for competent defense counsel to object to a verdict- directing instruction, tendered by the State, that submitted a class A misdemeanor offense instead of the charged felony. 4 consideration. Instead, Instruction No. 15 submitted the class A misdemeanor offense of
resisting a lawful “detention.”4 This instruction stated:
As to Count [4], if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about September 21, 2020, in the State of Missouri, Ciara Shaffer, Zachary Boyer, and Cliff Jackson were law enforcement officers, and
Second, that Ciara Shaffer, Zachary Boyer, and Cliff Jackson were attempting to detain defendant, and
Third, that defendant knew or reasonably should have known that one or more law enforcement officers were attempting to detain defendant, and
Fourth, that the basis for the detention was that defendant fit the description of a suspect who unlawfully exhibited a firearm in an angry or threatening manner, and
Fifth, that defendant knew or reasonably should have known of the basis for the detention, and
Sixth, that for the purpose of preventing the law enforcement officers from making the detention, the defendant resisted by using physical force,
then you will find the defendant guilty under Count [4] of resisting a lawful detention.
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.
Notably, Instruction No. 15 did not include the optional paragraph required for the
offense of resisting a detention to be a felony. Resisting a lawful detention “by flight” or
4 The pattern instruction for resisting an arrest by physical force is MAI-CR 4th 429.60, option 2. The pattern instruction for resisting a lawful detention is MAI-CR 4th 429.61. With respect to resisting a detention, MAI-CR 4th 429.61 provides two options: resisting by flight; or resisting other than by flight. Instruction No. 15 was patterned after option 2 and submitted that Defendant resisted the detention “by using physical force[.]” See MAI-CR 4th 429.61.2. 5 “by fleeing” under option 1 of MAI-CR 4th 429.61 includes an optional “Seventh” paragraph
submitting “that defendant fled in such a manner that created a substantial risk of serious
physical injury or death” to a person. MAI-CR 4th 429.61.1. According to the Notes on Use,
resisting a lawful detention “will generally be a class A misdemeanor. Resisting a lawful
stop or detention by fleeing is a class E felony if the person fleeing creates a substantial risk
of serious physical injury or death to any person.” MAI-CR 4th 429.61, Note on Use 4.
The jury found Defendant guilty as charged on Counts 1 and 2. With respect to
Count 3, the jury found Defendant guilty of the lesser-included offense of fourth-degree
assault. Thus, all three fourth-degree assault convictions were class A misdemeanors. See
§ 565.056.2. The jury also found Defendant guilty on Count 4, which submitted the offense
of resisting a lawful detention. Resisting a lawful detention by using physical force is a class
A misdemeanor as well. § 575.150.5.
On Counts 1-3, the trial court sentenced Defendant to serve one year in jail with “all
counts concurrent [and] credit for time served.” As to Count 4, the court imposed a sentence
for resisting “arrest for a felony,” which is a class E felony. § 575.150.5; § 558.011.1(5).
Because Defendant had been found to be a prior and persistent offender, the court ordered
Defendant to serve seven years in the DOC. § 558.016.7; § 558.011.1(4). Defendant did
not object to his Count 4 sentence during the sentencing hearing. Thereafter, the court
entered a written judgment that reflected the convictions and sentences orally pronounced at
sentencing. This appeal followed.
Discussion and Decision
Defendant’s first two points are related, so they will be discussed together. Point 1
contends the trial court plainly erred by sentencing Defendant to seven years in prison
because this sentence “exceeded the maximum punishment authorized by law … in that the
6 jury only found [Defendant] guilty of resisting a lawful detention for Count [4], a class A
misdemeanor, which has a maximum sentence of one year of incarceration.” Point 2
contends the trial court plainly erred in entering a written judgment against Defendant “for
the class E felony of resisting arrest for Count [4] because the jury only convicted
[Defendant] of the class A misdemeanor of resisting a lawful detention, and not the class E
felony of resisting arrest[.]” According to Defendant, the “judgment should be corrected to
accurately reflect the offense for which the jury found [him] guilty.” We agree with both
points.
When there is no objection to an error in the circuit court, an appellate court has the
discretionary authority to consider plain errors affecting substantial rights when the court
finds that manifest injustice or miscarriage of justice has resulted therefrom. State v. Knox,
604 S.W.3d 316, 320 (Mo. banc 2020); Rule 30.20. It is well settled that “[b]eing sentenced
to a punishment greater than the maximum sentence for an offense constitutes plain error
resulting in manifest injustice.” State v. Russell, 598 S.W.3d 133, 136 (Mo. banc 2020);
Knox, 604 S.W.3d at 320; State v. Perry, 645 S.W.3d 713, 715 (Mo. App. 2022).
In addition, the State “has the burden of proving every element of a crime beyond a
reasonable doubt.” State v. Seeler, 316 S.W.3d 920, 925 (Mo. banc 2010). “The
defendant never has the burden of introducing evidence to lower the category of his or her
crime or to prove his or her innocence of a higher level of crime.” Knox, 604 S.W.3d at 322
(emphasis in original). “It is the State’s burden to prove every element of a crime charged.”
Id. For this reason, “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne v. United
States, 570 U.S. 99, 103 (2013) (emphasis added); see Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (“[o]ther than the fact of a prior conviction, any fact that increases the
7 penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt”); see also Perry, 645 S.W.3d at 716; State v.
Steward, 608 S.W.3d 184, 196 (Mo. App. 2020). Therefore, “[w]hen a finding of fact alters
the legally prescribed punishment so as to aggravate it, the fact necessarily forms a
constituent part of a new offense and must be submitted to the jury.” Alleyne, 570 U.S. at
114-15; State v. Wood, 580 S.W.3d 566, 583 (Mo. banc 2019).
In this case, § 575.150 sets out the elements for the offenses of resisting an arrest,
detention, or stop. § 575.150.1(1). Insofar as relevant here, this statute states that resisting
an “arrest” or “detention” is committed either by using “physical force or by fleeing”:
1. A person commits the offense of resisting or interfering with arrest, detention, or stop if he or she knows or reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or stop an individual or vehicle, and for the purpose of preventing the officer from effecting the arrest, stop or detention, he or she:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer[.]
§ 575.150.1(1) (emphasis added). The statute also specifies when the offense is a class E
felony or a class A misdemeanor:
5. The offense of resisting or interfering with an arrest is a class E felony for an arrest for a:
(1) Felony; (2) Warrant issued for failure to appear on a felony case; or (3) Warrant issued for a probation violation on a felony case.
The offense of resisting an arrest, detention or stop in violation of subdivision (1) or (2) of subsection 1 of this section is a class A misdemeanor, unless the person fleeing creates a substantial risk of serious physical injury or death to any person, in which case it is a class E felony.
8 § 575.150.5 (emphasis added). Thus, as relevant here, “there are two means by which
resisting law enforcement can constitute a felony offense.” Steward, 608 S.W.3d at 191.
“The first is by resisting an arrest for a felony. Section 575.150.5(1). The other is by fleeing
an arrest, detention, or stop in a manner that creates a substantial risk of serious physical
injury or death to any person. Section 575.150.5.” Steward, 608 S.W.3d at 191 (emphasis
added).5
In Count 4, Defendant was charged with the class E felony of resisting arrest, which
would require the State to prove that Defendant was being arrested for a felony. See
§ 575.150.5(1). To submit this offense to the jury, the prosecutor should have tendered an
instruction patterned after MAI-CR 429.60, option 2. This pattern instruction states:
2. RESISTING ARREST OTHER THAN BY FLIGHT
(As to Count , if) (If) you find and believe from the evidence beyond a reasonable doubt: First, that (on) (on or about) [date], in the State of M issouri, [name(s) of law enforcement officer(s)] (was a) (were) law enforcement officer(s), and
Second, that [name(s) of law enforcement officer(s)] (was) (were) making an arrest of the defendant for [name of offense], and Third, that defendant (knew) (or) (reasonably should have known) that (a law enforcement officer) (one or more law enforcement officers) (was) (were) making an arrest of (the defendant), and
5 According to MAI-CR 4th 429.61, option 1, resisting a detention can only be enhanced to a felony by first submitting that a defendant resisted “by fleeing[.]” Option 1 of this pattern instruction submits resisting “by flight” and is the only option that includes an additional “Seventh” paragraph submitting “that defendant fled in such a manner that created a substantial risk of serious physical injury or death” to a person. MAI-CR 4th 429.61.1. The alternative option 2 of this instruction submits resisting “other than by flight” and includes only the first six paragraphs as similarly submitted in Instruction No. 15. MAI- CR 4th § 429.61.2; see also Steward, 608 S.W.3d at 195 (discussing the pattern instructions and model charge codes for offenses under § 575.150.5). 9 Fourth, that for the purpose of preventing the law enforcement officer(s) from making the arrest, the defendant resisted by (using) (threatening the use of) (violence) (physical force),
then you will find the defendant guilty (under Count ) of resisting arrest.
MAI-CR 429.60.2.
When this instruction is used, the trial court first must decide as a matter of law that the
offense for which a defendant was being arrested is a felony under Missouri law. See State v.
Shaw, 592 S.W.3d 354, 359-60 (Mo. banc 2019). Next:
the State must present sufficient evidence to support a factual finding beyond a reasonable doubt the defendant was arrested “because of” or “on account of” an offense to support a conviction of felony resisting arrest. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding “any fact that increases the penalty for a crime ... must be submitted to [the factfinder], and proved beyond a reasonable doubt”).
Shaw, 592 S.W.3d at 359-60. Third, the instruction must include paragraph Second, which
hypothesizes that a defendant was being arrested for that named predicate felony. Finally, a
jury must find this ultimate fact beyond a reasonable doubt. See id. at 362 (finding sufficient
evidence to support Shaw’s conviction because the State introduced evidence to support a
finding beyond a reasonable doubt that Shaw resisted arrest for an offense that was a felony
as a matter of law).
Here, the State failed to submit a verdict director that included a required element
that is essential to convict Defendant of a felony offense. The State did not submit an
instruction: (1) for resisting an arrest for a felony, as originally charged; or (2) for resisting
a lawful detention “by fleeing” in a manner creating “a substantial risk of serious physical
injury or death” to any person. § 575.150.5. As such, Instruction No. 15 did not hypothesize
an essential element required to enhance the offense to a class E felony. Id.; Steward, 608
S.W.3d at 191. Instead, Instruction No. 15 hypothesized that Defendant resisted a lawful
10 “detention” by “using physical force” – an offense limited to a class A misdemeanor
punishment only. See MAI-CR 4th 429.61, Notes on Use 4 (resisting a lawful “detention
will generally be a class A misdemeanor”; enhanced to a class E felony only if the person
resists “by fleeing” in a manner that “creates a substantial risk of serious physical injury or
death to any person”).
Thus, the jury verdict supports only a judgment for resisting a lawful detention as a
class A misdemeanor. See Knox, 604 S.W.3d at 323. The trial court plainly erred in
sentencing Defendant for that offense as a class E felony conviction. See id. at 320; Perry,
645 S.W.3d at 716; see also Steward, 608 S.W.3d at 196 (“a trial court cannot rely on
requisite facts that the jury might have found – but did not have the chance to consider and
so did not find – to enhance the penalty for an offense from a misdemeanor to a felony”).6
We also reject the State’s argument that the difference between the original charge
of resisting arrest for a felony and the verdict director for resisting a lawful detention is
merely a “variance” that is “neither material nor prejudicial.” The State relies on State v.
Ganaway, 624 S.W.3d 361 (Mo. App. 2021), but that case is factually distinguishable from
the case at bar. In Ganaway, the defendant was charged with resisting an arrest by fleeing
but the verdict director submitted resisting a lawful stop by fleeing. Id. at 367. Further, both
the charge and the verdict director alleged a class E felony – that the defendant “fled in such
a manner that created a substantial risk of serious physical injury or death to other persons[.]”
Id. at 367 n.4-5. Because Ganaway’s defense – that he did not know officers were trying to
6 Further, because the jury did not find Defendant guilty of a felony, the trial court also erred in enhancing Defendant’s sentence from an E to a D felony, after finding Defendant was a prior and persistent offender. Section 558.016.7 authorizes the court to enhance a term of punishment to “one class higher” only if the persistent offender “is found guilty of a class B, C, D, or E felony[.]” Id. Here, the jury found Defendant guilty of class A misdemeanors only. 11 stop him – applied to “both variations of Section 575.150” for resisting an arrest or a lawful
stop by fleeing, the Court found the variance between the charge and instruction did not
prejudice the defendant. Ganaway, 624 S.W.3d at 368-69.
Ganaway is factually distinguishable because the jury’s finding that the defendant
resisted a lawful stop was sufficient to support the class E felony sentence imposed. The
same would have been true if the State had submitted, and the jury found, that Ganaway
resisted arrest by fleeing. Neither finding involves enhanced punishment. Here, on the other
hand, the original Count 4 charge of resisting arrest for a felony – a class E felony – is an
offense with an enhanced penalty different than resisting a lawful detention by using physical
force – a class A misdemeanor. § 575.150.5. Therefore, Ganaway provides no support for
the State’s argument that the punishment imposed by the trial court was legally permissible.
We therefore agree with Defendant that the trial court plainly erred in: (1) sentencing
Defendant to seven years’ imprisonment on his conviction for resisting a lawful detention
because the sentence exceeded the maximum punishment authorized by law; and (2) entering
a written judgment against Defendant for the class E felony of resisting arrest when the jury
found him guilty of the class A misdemeanor of resisting a lawful detention. Points 1 and 2
are granted.
The State argues that the correct remedy is for this Court to reverse and remand for
a retrial with the correct instruction. We disagree. The prosecutor chose to submit
Instruction No. 15, and the State is bound by that choice. It is well settled that a party cannot
complain about an alleged error invited by that party’s conduct at trial. State v. Hernandez,
613 S.W.3d 909, 915 n.4 (Mo. App. 2020); State v. Pickens, 332 S.W.3d 303, 319 n.14 (Mo.
App. 2011). Furthermore, the remedy consistently applied in cases where the trial court
erred by sentencing a defendant beyond the maximum authorized by law is to remand for
12 the trial court to resentence within the correct range of punishment. See Knox, 604 S.W.3d
at 325; Perry, 645 S.W.3d at 717; Steward, 608 S.W.3d at 196; see also State v. Luster, 544
S.W.3d 263, 264 (Mo. App. 2017); State v. Buch, 513 S.W.3d 412, 415-16 (Mo. App. 2017);
State v. Baldwin, 507 S.W.3d 173, 179-80 (Mo. App. 2017).
Accordingly, we vacate the judgment against Defendant for the class E felony of
resisting arrest only and remand with directions for the trial court to: (1) resentence
Defendant within the range of punishment for the class A misdemeanor of resisting a lawful
detention; and (2) enter a new judgment reflecting this class A misdemeanor conviction and
corrected sentence. In all other respects, the judgment is affirmed.
JEFFREY W. BATES, J. – OPINION AUTHOR
DON E. BURRELL, J. – CONCUR
JACK A. L. GOODMAN, C.J. – CONCUR