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State v. Bell10/30/2000
Appeal From: Circuit Court of New Madrid County, Hon. Fred W. Copeland
Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS.
Barney, C.J., and Crow, J., concur.
Opinion:
Following a jury trial, Defendant was convicted of the class D felony of interfering with an arrest. Section 575.150, RSMo Supp. 1996. He was sentenced as a prior and persistent offender to seven years' imprisonment.
On appeal, Defendant has one point relied on, asserting that the evidence was insufficient to prove him guilty of a felony charge of interfering with the arrest of Kenneth Campbell because "the evidence failed to establish beyond a reasonable doubt that Officer Roberts was making a felony arrest."
The following facts were adduced at trial. At 1:30 a.m. on June 11, 1999, police officer Rollin Roberts was patrolling an area of Cape Girardeau as bars in the area were closing. Roberts stopped his car when a man waved at him. Roberts rolled down his window. The man, Gregg Campbell, began cursing at him. Roberts radioed for help and attempted to arrest Campbell for violation of a municipal noise ordinance.
Roberts attempted to handcuff Campbell, but Campbell refused to place his hands behind his back. Roberts sprayed Campbell with pepper mace. Campbell approached Roberts with a clenched fist, and Roberts struck him with his baton. Campbell "stomp-kicked" Roberts in the chest, knocking him to the ground. Campbell's brother, Kenneth Campbell, ran up and together the two began stomping Roberts in the face, chest and body. The officer later testified that he believed the brothers delivered fifteen kicks each and that he feared for his life.
Two other officers arrived and broke up the fight. Kenneth Campbell ran down the street, and Roberts chased him. Roberts attempted to arrest Kenneth Campbell, but he resisted. A large crowd had formed, and when two other officers arrived to assist Roberts, the crowd attempted to stop them from advancing on the scene. Some people in the crowd began throwing rocks at the officers.
Roberts noticed Dimitri Bell (Defendant) throwing rocks and told him to leave. Defendant responded, "You don't know who you're messing with." Defendant was later charged with assault of a law enforcement officer in the second degree, rioting, and interfering with an arrest. See section 565.082(1), RSMo 1994; section 574.050, RSMo 1994; and section 575.150, RSMo Supp. 1996.
The State dismissed the rioting charge prior to trial. At trial, the jury acquitted Defendant of the assault charge, but found him guilty of interfering with Kenneth Campbell's arrest. Defendant was convicted of the class D felony of interfering with a felony arrest.
The State asserts that any review here is for plain error only, as Defendant's present theory was not asserted at trial. Rule 30.20 provides that "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." If the evidence was not sufficient to sustain a conviction, plain error affecting a substantial right is involved from which manifest injustice must have resulted. Thus, the issue will be considered on appeal even though it was not properly preserved. State v. White, 439 S.W.2d 752, 753 (Mo. 1969); State v. Moriarty, 914 S.W.2d 416, 422 (Mo.App. 1996). Accordingly, we review Defendant's point.
Section 575.150.1, RSMo Supp. 1996, defines the crime of resisting or interfering with an arrest. It provides:
A person commits the crime of resisting or interfering with an arrest if, knowing that a law enf
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