State of Missouri vs. Dustin Demont Brown
Annotate this Case
Download PDF
In the Missouri Court of Appeals Western District STATE OF MISSOURI, Respondent, v. DUSTIN DEMONT BROWN, Appellant. ) ) ) ) ) ) ) ) ) WD81514 OPINION FILED: May 14, 2019 Appeal from the Circuit Court of Randolph County, Missouri The Honorable Cynthia A. Suter, Judge Before Division Two: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge Dustin Demont Brown ("Brown") appeals his conviction of the class A misdemeanor of resisting arrest pursuant to section 575.150.1 Brown alleges that the trial court committed error when it allowed the State to read and display a statute, and to read from appellate cases, during closing argument because in doing so, the State improperly instructed on the law and misled the jury. Because the State's references to statutory and 1 All statutory references are to RSMo 2000 as supplemented by revisions effective as of August 22, 2015, the date of Brown's alleged offenses, except as otherwise expressly noted. decisional law during closing argument over Brown's objections resulted in prejudicial error, we reverse Brown's conviction for resisting arrest pursuant to section 575.150, and remand for a new trial. Factual and Procedural Background On August 22, 2015, Brown was involved in an altercation outside of a night club in Moberly, Missouri. Brown was observed kicking one of the night club employees, Robert Harrington ("Harrington"), in the head. Harrington had been attempting to intervene in the altercation. As officers arrived, Brown was seen leaving the scene in a Cadillac Escalade. The vehicle did not stop when instructed to do so by officers, and a pursuit of the vehicle commenced. The vehicle was stopped by Officer Andrew Jones ("Officer Jones") shortly thereafter. Because the vehicle was occupied by several people, Officer Jason Ward ("Officer Ward") arrived at the scene as backup. A person in the vehicle who was identified as having been involved in the altercation was ordered to exit the vehicle, and was arrested. Although Brown had been instructed to remain in the vehicle, he exited the vehicle and approached Officers Jones and Ward in a verbally aggressive manner. Brown had previously been yelling at the officers from inside the vehicle. Officer Jones advised Brown that he was under arrest. He took hold of Brown's left arm while Officer Ward took hold of Brown's right arm, with the intent of pulling Brown's arms behind his back to place him in handcuffs. Brown tried to pull away from the officers, and to pull his arms to the front of his body. The officers had to use force 2 to restrain Brown, and to handcuff him with his arms behind his back. During the struggle, Officer Jones received a small cut and abrasions to his left hand. Brown was charged by amended information with: (i) the class A misdemeanor of resisting arrest pursuant to section 575.150 (Count I); (ii) the class A misdemeanor of assault of a law enforcement officer in the third degree pursuant to section 565.0832 (Count II); and (iii) the class A misdemeanor of assault in the third degree under section 565.0703 in connection with the assault on Harrington (Count III). Following a jury trial, Brown was acquitted on Count II (assault of a law enforcement officer), and was convicted on Counts I and III. Brown's conviction on Count III is not challenged on appeal. Brown's conviction on Count I is challenged on appeal.4 Our remaining discussion is limited to facts relevant to Count I. The jury was instructed on Count I using the following verdict director submitted by the State: As to Count I, if you find and believe from the evidence beyond a reasonable doubt: First, that on August 22, 2015, in the County of Randolph, State of Missouri, Andrew Jones and Jason Ward were law enforcement officers, and Second, that Andrew Jones and Jason Ward were attempting to making [sic] an arrest of defendant, and 2 Section 565.083 was repealed in 2014, effective January 1, 2017. Section 565.060 was transferred in 2014, effective January 1, 2017, to section 565.054. 4 In the jurisdictional statement in Brown's appellate brief, Brown confusingly states that he is challenging his conviction under section 565.070 for misdemeanor assault in the third degree, which was Count III. However, Brown's points on appeal plainly address the State's closing argument relating to the charge of resisting arrest pursuant to section 575.150, which was Count I. And Brown's motion for new trial raising the same concerns as those raised on appeal refers to Count I, the charge of resisting arrest pursuant to section 575.150. We have elected to overlook the apparent clerical error in Brown's appellate brief. The State's appellate brief acknowledges that the issue on appeal is Brown's conviction on Count I for resisting arrest pursuant to section 575.150. 3 3 Third, that defendant knew or reasonably should have known that law enforcement officers were making an arrest of defendant, and Fourth, for the purpose of preventing the law enforcement officers from making the arrest, the defendant resisted by using physical force, Then you will find the defendant guilty under Count I of resisting an arrest. 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 jury was also given a converse instruction submitted by Brown as follows: If you find and believe that the defendant's use of physical force, [sic] was not for the purpose of preventing the law enforcement officers from making an arrest, you must find the defendant not guilty under Count I of resisting arrest as submitted in Instruction No. ____. Brown's converse instruction was consistent with his defense strategy at trial which emphasized that the State had to prove beyond a reasonable doubt that Brown's purpose in using physical force to resist was to prevent law enforcement officers from making an arrest. See section 575.150.1. After the jury was instructed, the State argued as follows during closing argument: State: Count I is resisting arrest. What is resisting arrest? Let's take a look at the statute. This is the statute that was in place at the time in 2015: A person commits the crime of resisting arrest, detention or stop if, knowing that a law enforcement officer is making an arrest or attempting to lawfully detain or stop an individual or a vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully -- Brown's Counsel: Your Honor, may we approach? The Court: You may. 4 (At this time counsel approached the bench, and the following proceedings were had:) Brown's Counsel: What bothers me right now is we've now had you instruct them and now, all of a sudden, we're talking about what -- State: I'm going to go over the instruction. Brown's Counsel: I know, but you're putting something up as authoritative before the Court -- or before the jury, and I don't believe that's appropriate. The Court: So you're objecting to her showing the statute? Brown's Counsel: Yeah. The statute shouldn't be -- State: I have every right to read the statute, and -- I've read it every trial I have. Brown's Counsel: Well, whether you do it in every trial or not, it supplants -- the record that I want to make is that it supplants the instructions that the Court has made, and I do not feel it's appropriate. The Court: I'll overrule the objection. (Proceedings returned to open court.) State: All right. This gives you the definition of resisting arrest. We're going to talk about the elements of that crime here in a minute, but -- but what I really want to point out to you at this particular point in time is this, this paragraph No. 4: It is no defense to a prosecution pursuant to this section that the law enforcement officer was acting unlawfully in making the -- in the arrest. However, nothing in this section shall be construed to bar civil suits for unlawful arrest. I read that to you not because I'm trying to suggest that Andrew Jones or Jason Ward were -- was unlawfully making arrest. In fact, in a minute here, I'm going to argue to you quite the opposite. However, the defense, 5 in their opening argument, tried to paint a picture that this just was chaos and that it was a misunderstanding, and if someone had just listened, so on and so forth -I'm going to talk about that in a minute, too -- maybe this would have been different. That's no defense. If a -- if a law enforcement officer is making an arrest, a defendant, an individual cannot resist that arrest. There may be other actions, if the officer's actions are unlawful, illegal, harassing, something that's not what we're discussing today, there may be another time or place for actions against that officer. But I point that out just based on some of the argument or some of the statements that you've already heard. [Tr. pp. 109-111] The State's closing argument continued with a discussion of the essential elements of the crime of resisting arrest as posited by the verdict director. When the State referred the jury to paragraph Fourth of the verdict director -- the paragraph conversed by Brown's tendered instruction -- the State seized on the phrase "physical force," a term that was not defined in the jury instructions. The State began referring to reported appellate decisions addressing whether specific actions by a defendant constituted "physical force." Brown timely objected, noting that the State's reference to holdings in reported appellate decisions about whether a defendant's actions constituted physical force "supplant[s] the Court's instructions regarding the law." [Tr. p. 112] The trial court overruled the objection. The State then identified several appellate decisions by case name, and referred to the holdings in those cases to argue that "exerting the strength and power of [the defendant's] bodily muscles to overcome the officer's attempts to pull him from the car," and the use of "stiffened [] arms when officers attempted to put [the defendant] into handcuffs," were 6 sufficient to constitute physical force. [Tr. p. 112] The State also referred to one appellate decision for the proposition that "physical force" includes nonviolent force. [Tr. p. 112] Following his conviction on Count I for resisting arrest, Brown asserted in his motion for new trial that the trial court erred in permitting the State to read and display section 575.150 to the jury, and in allowing the State to refer to holdings from reported appellate cases to discuss whether evidence established "physical force." The motion for new trial was denied. This appeal followed.5 Analysis Brown raises two points on appeal. First, Brown argues that the trial court abused its discretion in permitting the State, over Brown's objection, to read and display section 575.150 to the jury during closing argument because in doing so, the State "improperly supplanted the trial court's instructions on the law and misled the jury about the relevant issues in the case." [Appellant's Brief, p. 10] Second, Brown argues that the trial court abused its discretion in permitting the State, over Brown's objection, to read during closing argument from reported appellate decisions addressing conduct deemed sufficient to establish physical force because in doing so, the State "supplanted the trial court's instructions on the law, misled the jury about the relevant issues in the case, encouraged the jury to abandon their duties to access the credibility of the evidence before them and decide what the facts are, and improperly lowered the burden of proof for the State." [Appellant's Brief, p. 15] We address the points together. 5 Brown was granted leave of court to file his appeal out of time. 7 "'A trial court maintains broad discretion in the control of closing arguments.'" State v. Smith, 422 S.W.3d 411, 415 (Mo. App. W.D. 2013) (quoting State v. Middleton, 995 S.W.2d 443, 455 (Mo. banc), cert denied, 528 U.S. 1054 (1999)). The "'[t]rial court's rulings on objections to closing arguments are reviewed for abuse of discretion; however, when a proper objection is made, the trial courts should exclude 'statements that misrepresent the evidence or the law' or statements that 'tend to confuse the jury.''" Id. (quoting State v. Brightman, 388 S.W.3d 192, 201 (Mo. App. W.D. 2012), itself quoting State v. Deck, 303 S.W.3d 527, 543 (Mo. banc 2010)). "'Even if a trial court is found to have abused its discretion by allowing improper closing argument, to warrant reversal of a conviction, the defendant also must establish that such abuse prejudiced him or her.'" Id. (quoting State v. Williams, 24 S.W.3d 101, 124 (Mo. App. W.D. 2000)). "'To establish prejudice, the defendant must show that there is a reasonable probability that, in the absence of the trial court's abuse, the verdict would have been different.'" Id. (quoting Williams, 24 S.W.3d at 124). Both of Brown's points on appeal argue that the trial court abused its discretion in permitting the State to advise the jury about the law by reference to external sources other than the jury instructions. We agree that this was an abuse of discretion. It is settled in this state that "the jury is to obtain the law only from approved jury instructions." Eckelkamp v. Burlington Northern Santa Fe Ry. Co., 298 S.W.3d 546, 552 (Mo. App. E.D. 2009) (citation omitted). "A jury instruction is a 'direction given by the judge to the jury concerning the law of the case.'" State v. Storey, 901 S.W.2d 886, 892 (Mo. banc 1995) (quoting Black's Law Dictionary 856 (6th ed. 1990)). "Instructing the jury as to the law is 8 a prerogative of the court, which may not be usurped by counsel in jury argument." Nicholls v. Kammerich, 626 S.W.2d 653, 659 (Mo. App. W.D. 1981) (citing Stroh v. Johns, 264 S.W.2d 304 (Mo. 1954) (other citations omitted)). Thus, "it is not the prerogative of counsel to inform the jury as to the substantive law of the case." State v. Holzwarth, 520 S.W.2d 17, 22 (Mo. banc 1975) (citations omitted). That includes by reading or displaying statutes to a jury, or by reading from reported cases or law books. See, e.g., State v. Watson, 672 S.W.2d 701, 703 (Mo. App. E.D. 1984) ("It was improper for the prosecutor to read to the jury the statute."); Holzwarth, 520 S.W.2d at 22 ("[U]nder Missouri law, it is not the prerogative of counsel . . . to read [] statutes to the jury."); Domijan v. Harp, 340 S.W.2d 728, 734 (Mo. 1960) ("The introduction into evidence of domestic statutes (or law) is wholly improper."); Lewis v. Barnes, 220 S.W. 487, 489 (Mo. banc 1920) ("The reading to the jury of the mandate and opinion of this court in this case rendered upon the former appeal was clearly error."). However, it is equally settled that although "'the practice of reading statutes [or other law] to the jury is not to be commended, nevertheless, in the absence of a plain demonstration of abuse of discretion and prejudicial effect, it has not been held to be reversible error when permitted.'" King v. Furry, 317 S.W.2d 690, 693 (St. L. Ct. App. 1958) (quoting Merrick v. Bridgeways, Inc., 241 S.W.2d 1015, 1019 (Mo. 1951) (other citations omitted)). See also, Watson, 672 S.W.2d at 703 (holding that where domestic statutes or law are read to the jury, "if counsel misstates the law or states it in a manner calculated to mislead the jury, reversible error is committed"); Holzwarth, 520 S.W.2d at 22 ("It is improper for counsel to argue questions of law not within the issues, or 9 inconsistent with the instructions of the court.") (citations omitted). Thus, although reading statutes or other law sources to the jury "is a reprehensible practice, and its tendency, under ordinary circumstances, is to confuse rather than enlighten the jury . . ., appellate courts are loathe to reverse upon this ground alone, unless it appears that the jury was thereby misled or there is some other showing of prejudice to the opposite party." Lewis, 220 S.W. at 489. Here, the State's initial reference to section 575.150.1 to reiterate the elements of the offense of resisting arrest, though a reprehensible practice, was arguably not prejudicial to Brown, as the same elements mentioned by the State in its closing argument were consistently captured in the verdict director.6 However, the same cannot be said for the State's express reading of, and argument about, section 575.150.4. That subsection provides that a claim of unlawful arrest is not a defense to a charge of resisting arrest. Brown never claimed that his arrest was unlawful, and never claimed that as a result, he had an absolute defense to the charge of resisting arrest. Instead, Brown's "defense strategy" at trial was to emphasize the State's burden to prove beyond a reasonable doubt, as required by section 575.150.1, that he resisted "for the purpose of preventing the officer[s] from effecting the arrest." Section 575.150.1. The State's reference to section 575.150.4 thus exceeded the law as instructed by the trial court, and injected a false issue in the case. The State's emphasis of section 6 Section 575.150 provides in pertinent part that "[a] person commits the crime of resisting or interfering with arrest . . . if, knowing that a law enforcement officer is making an arrest, . . . or the person reasonably should know that a law enforcement officer is making an arrest . . ., for the purpose of preventing the officer from effecting the arrest . . . the person: (1) resists the arrest . . . by using or threatening the use of violence or physical force or physical interference. . . ." The essential elements of the offense were accurately captured in paragraphs First through Fourth of the verdict director. 10 575.150.4 inaccurately suggested to the jury that Brown's "defense strategy" was without merit as a matter of law. By characterizing Brown's contention that the State failed to prove his purpose in resisting as a prohibited challenge to the lawfulness of his arrest, the State effectively relieved itself of the burden to prove an essential element described in section 575.150.1. The State's argument misled the jury about its obligation to independently find, beyond a reasonable doubt, as instructed by Paragraph Fourth of the verdict director, that Brown's purpose in resisting was to prevent officers from effecting his arrest. This case in indistinguishable from Holzwarth, where our Supreme Court found the State's reference during closing argument to statutes describing examples of justifiable and excusable homicide, followed by argument that each example was not applicable to the case, to be prejudicial. 520 S.W.2d at 21. The Supreme's Court's analysis is instructive: [N]ot only were the statutes which the prosecutor read to the jury outside the court's instructions (which the prosecutor had earlier been telling the jury comprised everything they needed to know) but defendant had not raised the defense of justifiable or excusable homicide defined by the statutes; there was no evidence to support these defenses; these defenses were not issues in the case. Id. The Supreme Court concluded that the State's argument was "highly misleading and diverted the jury's attention from the question raised by the court's instruction for their proper determination." Id. at 22. As such, "[t]he jury was left with the impression that since the homicides were not excusable or justifiable that ended the matter," resulting in prejudice that required reversal. Id. at 22-23. Similarly, the State read section 575.150.4 to improperly equate Brown's challenge to whether the State had established the essential element of his purpose in resisting with a 11 challenge to the lawfulness of his arrest. Because the General Assembly has declared a challenge to the lawfulness of an arrest not to be a defense to the charge of resisting arrest, the State's argument ended the matter. The State's argument was misleading, improper, and prejudicial. See also, Eckelkamp, 298 S.W.3d at 553 (holding that suggestion in a civil negligence case that a defendant's conduct violated a criminal statute read to the jury was highly prejudicial); Watson, 672 S.W.2d at 703 (holding that statute misled jury because it contained a phrase that was not in the jury instruction and that created the impression that the defendant and not the State carried the burden of proof). Point One is granted.7 The State's efforts to define "physical force" by reference to appellate cases addressing whether evidence was sufficient to support a finding of physical force is equally reprehensible. However, we need not address whether the State's efforts were prejudicial, given our disposition of point one on appeal. Point Two is moot. Conclusion The trial court's judgment of conviction and sentence is reversed as to Count I, the class A misdemeanor of resisting arrest pursuant to section 575.150, and this matter is remanded for a new trial on that charge. In all other respects, the trial court's judgment remains in effect. __________________________________ 7 It should be abundantly clear that the prosecutor's self-proclaimed practice of reading statutes in every case tried is not appropriate. 12 Cynthia L. Martin, Judge All concur 13
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
