STATE OF MISSOURI, ) ) Respondent, ) ) No. SD37085 vs. ) ) Filed: May 23, 2022 JULIUS D. PARHAM, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY
Honorable David A. Dolan, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Officers on patrol on Washington Street in East Prairie, Missouri, at 2:40 a.m. on
May 18, 2019, noticed two men riding bicycles on the street without headlights.1 The
officers drove up in their patrol vehicle to the bicyclists but did not activate flashing lights
or sirens and did not instruct the riders to stop. One bicyclist voluntarily stopped and
1Section 307.185 prescribes the lighting requirements for a bicycle used on a street or highway from one- half hour after sunset to one-half hour before sunrise. We can take judicial notice of the time of sunrise in East Prairie, Missouri, on that date. See Larrea v. Ozark Water Ski Thrill Show, Inc., 562 S.W.2d 790, 792 (Mo. App. 1978). Sunrise occurred at approximately 5:46 a.m. Sunrise and sunset times calendar for East Prairie, Missouri, on May 18, 2019, http://sunrise-sunset.org (last visited May 20, 2022). All statutory references are to the Revised Statutes of Missouri as updated through 2018. talked to the deputies; the other bicyclist, Julius Parham, rode away at a fast pace. The
bicyclist who stopped was instructed to get a light for his bicycle.
The officers then took off after Parham, activating their flashing red and blue lights
and yelling for him to stop. Parham crashed the bicycle. In his backpack, officers found
a clear plastic baggie containing methamphetamine residue.
Parham eventually was charged with the class D felony of possession of
methamphetamine (§ 579.015), the class D misdemeanor of unlawful possession of drug
paraphernalia (§ 579.074), and the class A misdemeanor of resisting arrest (§ 575.150).
The jury acquitted Parham of the drug paraphernalia charge but found him guilty of
methamphetamine possession and resisting arrest.
Parham claims the court abused its discretion when it permitted the state to
instruct the venire panel on the law during voir dire. Parham did not object, therefore
his claim of error has not been preserved for review. State v. Edwards, 116 S.W.3d 511,
536 (Mo. banc 2003). “Counsel nonetheless asks this Court to review his claims for plain
error under Rule 30.20, claiming that the comments were so egregious that the trial court
erred in not sua sponte declaring a mistrial.” Id.
“‘[A] liberal latitude is allowed in the examination of jurors, as long as the scope of
voir dire remains commensurate with its purpose to discover bias or prejudice in order to
select a fair and impartial jury.’” State v. Fields, 624 S.W.3d 414, 418 (Mo.App. 2021)
(quoting State v. Ousley, 419 S.W.3d 65, 73 (Mo. banc 2013)).
During voir dire, especially, it is important to make objections, because the court may take corrective action by giving a cautionary instruction or, in an aggravated case, by excusing the panel and calling for a new one, with minimal waste. By failing to object counsel deprives the trial judge of the opportunity to correct any deficiencies or misapprehensions.
2 State v. Darden, 843 S.W.2d 376, 377 (Mo.App. 1992).
When no objection was made, as here, we will not reverse the judgment unless we
believe the comment affected the outcome of the trial. Edwards, 116 S.W.3d at 537.
To be entitled to relief under the plain error rule, an appellant must go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights. In other words, the appellant must show that the error affected his rights so substantially that a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.
State v. Johnson, 524 S.W.3d 505, 513 (Mo. banc 2017) (internal quotation marks and
citations omitted). “‘Manifest injustice is determined by the facts and circumstances of
the case, and the defendant bears the burden of establishing manifest injustice.’” Fields,
624 S.W.3d at 418 (quoting Johnson, 524 S.W.3d at 513).
Parham does not claim the state misstated the law, misdirected the jury, enflamed
the passions of the jury, or that the state’s voir dire otherwise had an outcome-
determinative effect on the verdict. Parham simply argues, “Since the trial court took no
action to stop the state, the venire members would be justified in looking to the state as
the expert on the law and assuming that what the prosecutor argued must be accurate.”
This is nothing more than a speculative, post hoc conclusion. Had the jury been as
enraptured with the state’s voir dire statements as Parham now claims, the jury would
not have acquitted Parham of possession of drug paraphernalia. Moreover, defense
counsel twice referenced the state’s voir dire statements about the law, each time
characterizing the statements in diminutive terms: “So [the state] talked to you a little
bit about burden [of proof]. . . . [The state] went over the elements a little bit with you
and the Judge will include that in the jury instructions.” (Emphasis added).
3 Parham has not demonstrated a manifest injustice or miscarriage of justice
necessary for plain error relief. We decline plain error review and deny Point I.
Parham next asserts his resisting arrest conviction is not supported by substantial
evidence because the officers testified they had no intention of arresting Parham for the
bicycle light violation as he rode away. The state concedes the evidence was insufficient
to support a conviction for resisting arrest. We agree, but for a slightly different reason
than Parham asserts.
“‘An appellate court’s review of the sufficiency of the evidence to support a criminal
conviction is limited to determining whether there is sufficient evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.’”
State v. Knox, 604 S.W.3d 316, 319 (Mo. banc 2020) (quoting State v. Porter, 439
S.W.3d 208, 211 (Mo. banc 2014)). We must accept as true all evidence and inferences
favorable to the state and reject all evidence contrary to the state’s verdict. Knox, 604
S.W.3d at 319-20. In other words, on Point II our appellate review is constrained to
answering the following question: In light of the evidence most favorable to the state,
could any rational fact-finder have found the essential elements of the crime beyond a
reasonable doubt? Id. at 320.
To find Parham guilty as it did, the verdict director required the jury to find beyond
a reasonable doubt that the officer was arresting Parham for failure to have a lighted
headlamp on his bicycle, that Parham reasonably should have known the officer was
making an arrest, and that Parham fled from the officer to prevent the arrest. See
§ 575.150.1. The state typically presents evidence of an arresting officer’s subjective state
of mind for initiating an arrest, but it is not required to do so to make a prima facie case
4 for resisting arrest. State v. Shaw, 592 S.W.3d 354, 360-61 and fn.11 (Mo. banc 2019)
(discussing a prior version of § 575.150.5).
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STATE OF MISSOURI, ) ) Respondent, ) ) No. SD37085 vs. ) ) Filed: May 23, 2022 JULIUS D. PARHAM, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY
Honorable David A. Dolan, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Officers on patrol on Washington Street in East Prairie, Missouri, at 2:40 a.m. on
May 18, 2019, noticed two men riding bicycles on the street without headlights.1 The
officers drove up in their patrol vehicle to the bicyclists but did not activate flashing lights
or sirens and did not instruct the riders to stop. One bicyclist voluntarily stopped and
1Section 307.185 prescribes the lighting requirements for a bicycle used on a street or highway from one- half hour after sunset to one-half hour before sunrise. We can take judicial notice of the time of sunrise in East Prairie, Missouri, on that date. See Larrea v. Ozark Water Ski Thrill Show, Inc., 562 S.W.2d 790, 792 (Mo. App. 1978). Sunrise occurred at approximately 5:46 a.m. Sunrise and sunset times calendar for East Prairie, Missouri, on May 18, 2019, http://sunrise-sunset.org (last visited May 20, 2022). All statutory references are to the Revised Statutes of Missouri as updated through 2018. talked to the deputies; the other bicyclist, Julius Parham, rode away at a fast pace. The
bicyclist who stopped was instructed to get a light for his bicycle.
The officers then took off after Parham, activating their flashing red and blue lights
and yelling for him to stop. Parham crashed the bicycle. In his backpack, officers found
a clear plastic baggie containing methamphetamine residue.
Parham eventually was charged with the class D felony of possession of
methamphetamine (§ 579.015), the class D misdemeanor of unlawful possession of drug
paraphernalia (§ 579.074), and the class A misdemeanor of resisting arrest (§ 575.150).
The jury acquitted Parham of the drug paraphernalia charge but found him guilty of
methamphetamine possession and resisting arrest.
Parham claims the court abused its discretion when it permitted the state to
instruct the venire panel on the law during voir dire. Parham did not object, therefore
his claim of error has not been preserved for review. State v. Edwards, 116 S.W.3d 511,
536 (Mo. banc 2003). “Counsel nonetheless asks this Court to review his claims for plain
error under Rule 30.20, claiming that the comments were so egregious that the trial court
erred in not sua sponte declaring a mistrial.” Id.
“‘[A] liberal latitude is allowed in the examination of jurors, as long as the scope of
voir dire remains commensurate with its purpose to discover bias or prejudice in order to
select a fair and impartial jury.’” State v. Fields, 624 S.W.3d 414, 418 (Mo.App. 2021)
(quoting State v. Ousley, 419 S.W.3d 65, 73 (Mo. banc 2013)).
During voir dire, especially, it is important to make objections, because the court may take corrective action by giving a cautionary instruction or, in an aggravated case, by excusing the panel and calling for a new one, with minimal waste. By failing to object counsel deprives the trial judge of the opportunity to correct any deficiencies or misapprehensions.
2 State v. Darden, 843 S.W.2d 376, 377 (Mo.App. 1992).
When no objection was made, as here, we will not reverse the judgment unless we
believe the comment affected the outcome of the trial. Edwards, 116 S.W.3d at 537.
To be entitled to relief under the plain error rule, an appellant must go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights. In other words, the appellant must show that the error affected his rights so substantially that a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.
State v. Johnson, 524 S.W.3d 505, 513 (Mo. banc 2017) (internal quotation marks and
citations omitted). “‘Manifest injustice is determined by the facts and circumstances of
the case, and the defendant bears the burden of establishing manifest injustice.’” Fields,
624 S.W.3d at 418 (quoting Johnson, 524 S.W.3d at 513).
Parham does not claim the state misstated the law, misdirected the jury, enflamed
the passions of the jury, or that the state’s voir dire otherwise had an outcome-
determinative effect on the verdict. Parham simply argues, “Since the trial court took no
action to stop the state, the venire members would be justified in looking to the state as
the expert on the law and assuming that what the prosecutor argued must be accurate.”
This is nothing more than a speculative, post hoc conclusion. Had the jury been as
enraptured with the state’s voir dire statements as Parham now claims, the jury would
not have acquitted Parham of possession of drug paraphernalia. Moreover, defense
counsel twice referenced the state’s voir dire statements about the law, each time
characterizing the statements in diminutive terms: “So [the state] talked to you a little
bit about burden [of proof]. . . . [The state] went over the elements a little bit with you
and the Judge will include that in the jury instructions.” (Emphasis added).
3 Parham has not demonstrated a manifest injustice or miscarriage of justice
necessary for plain error relief. We decline plain error review and deny Point I.
Parham next asserts his resisting arrest conviction is not supported by substantial
evidence because the officers testified they had no intention of arresting Parham for the
bicycle light violation as he rode away. The state concedes the evidence was insufficient
to support a conviction for resisting arrest. We agree, but for a slightly different reason
than Parham asserts.
“‘An appellate court’s review of the sufficiency of the evidence to support a criminal
conviction is limited to determining whether there is sufficient evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.’”
State v. Knox, 604 S.W.3d 316, 319 (Mo. banc 2020) (quoting State v. Porter, 439
S.W.3d 208, 211 (Mo. banc 2014)). We must accept as true all evidence and inferences
favorable to the state and reject all evidence contrary to the state’s verdict. Knox, 604
S.W.3d at 319-20. In other words, on Point II our appellate review is constrained to
answering the following question: In light of the evidence most favorable to the state,
could any rational fact-finder have found the essential elements of the crime beyond a
reasonable doubt? Id. at 320.
To find Parham guilty as it did, the verdict director required the jury to find beyond
a reasonable doubt that the officer was arresting Parham for failure to have a lighted
headlamp on his bicycle, that Parham reasonably should have known the officer was
making an arrest, and that Parham fled from the officer to prevent the arrest. See
§ 575.150.1. The state typically presents evidence of an arresting officer’s subjective state
of mind for initiating an arrest, but it is not required to do so to make a prima facie case
4 for resisting arrest. State v. Shaw, 592 S.W.3d 354, 360-61 and fn.11 (Mo. banc 2019)
(discussing a prior version of § 575.150.5). Unlike Shaw, in which there was no evidence
of the arresting officer’s subjective state of mind, here Parham points to testimony that
the officers did not subjectively intend to arrest Parham as he initially rode away on his
bicycle. Parham seems to assert that because of this testimony alone, there was not
sufficient evidence in the record to support the conviction. Parham overlooks the
fundamental principles cited in the preceding paragraph. Because the officers’ testimony
that they did not intend to arrest Parham was contrary to the verdict, we are required to
reject it. Knox, 604 S.W. 3d at 319-20. Since we are not permitted to consider that
testimony, it follows that the testimony may not be the basis of our decision. However,
that does not end our analysis.
As one might expect when the officers did not subjectively intend to make an arrest,
there was no evidence of communication or manifestation of an attempt to arrest as
Parham initially rode away from the officers. There simply was no evidence from which
a reasonable juror could have concluded that the officers were arresting or attempting to
arrest Parham or that Parham should have known the officers were attempting to arrest
him when they drove near him without lights, sirens, or a verbal command to stop. Even
when viewed in the light most favorable to the verdict, as we must, the state’s evidence
was insufficient to support resisting arrest as charged. Point II is granted.2
2Defendant asks us to give him credit toward his methamphetamine possession sentence for time served while awaiting trial. The judgment already indicates credit is to be given for time served prior to sentencing. No ambiguity or error exists on the face of the judgment for us to correct regarding the now-reversed resisting arrest conviction, for which Parham had been sentenced only to pay a fine, not to serve a term of imprisonment. Disagreement, if any, over how the Department of Corrections will credit time served is not before us and is not ripe for adjudication.
5 We reverse Parham’s conviction for the class A misdemeanor of resisting arrest
and affirm the judgment in all other respects. We remand for entry of an amended
judgment consistent with this opinion.
JACK A. L. GOODMAN, J. – OPINION AUTHOR
WILLIAM W. FRANCIS, JR., P.J. – CONCURS
JEFFREY W. BATES, J. – CONCURS