             SUPREME COURT OF MISSOURI
                                        en banc



STATE OF MISSOURI,                            )
                                              )
                             Respondent,      )
                                              )
v.                                            )    No. SC94924
                                              )
JUSTIN FLOYD EUGENE JONES,                    )
                                              )
                             Appellant.       )


          APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
                   The Honorable Michael D. Burton, Judge

                            Opinion issued January 26, 2016

       Justin Jones appeals the judgment of the St. Louis County Circuit Court, entered

after a jury trial, convicting him of, and sentencing him for, one count of burglary in the

first degree and an associated count of armed criminal action, one count of attempted

robbery in the first degree and an associated count of armed criminal action, one count of

assault in the third degree, and one count of resisting arrest for a felony. On appeal,

Jones claims that the trial court erred by: (1) overruling his motion for judgment of

acquittal on the armed criminal action charge associated with his burglary conviction;

(2) overruling his motion for judgment of acquittal on the resisting arrest charge; and

(3) overruling his motion for a continuance. The judgment is affirmed.
                                      Background

      The evidence at trial supported the following findings and inferences beyond a

reasonable doubt. On February 10, 2010, C.H. returned to her home from grocery

shopping shortly after 11 p.m. She drove her vehicle into the driveway, parked, and went

inside the home through the front door to ask for help in unloading the groceries. C.H.

then walked back outside, opened the automatic garage door, and backed her car into the

attached garage. She got out of the car, grabbed a few bags of groceries, and walked

toward the interior door between the garage and the house. There, C.H. pressed a keypad

to lower the garage door and, as the door began to lower, turned to go through the

doorway and into her house. Before she could enter her home, however, C.H. heard the

garage door stop and start to go back up, which it was programmed to do if the threshold

sensors were triggered. C.H. turned toward the garage door when she heard it start to go

back up and saw Jones coming into the garage and holding out a black gun in both hands.

C.H. ran into the house, slamming the door behind her, and went into the nearest

bedroom, where she activated her home alarm and called the police.

      M.H., one of C.H.’s sons, was in the kitchen doing dishes when this occurred.

Hearing the interior door to the garage open, slam shut, and open again, M.H. turned

toward that door and saw Jones pointing a gun at him. Jones told M.H. to come over to

him and, when he did, Jones put M.H. in a “headlock” and repeatedly demanded “dope,

money, and weed.” When M.H. told Jones he did not have any, Jones pushed M.H.

toward the back door. M.H. told Jones he did not want to leave, so Jones began to push

him through the house toward the interior door to the garage. On the way, Jones’ cell
phone rang. Jones let go of M.H. to try to answer his phone, and M.H. grabbed Jones’

gun. Jones abandoned his effort to answer his cell phone and began to struggle with

M.H. to regain control of the gun. When Jones bit M.H.’s jaw and tried to gouge out his

eyes, M.H. was forced to relinquish his hold on Jones’ gun. Having regained control of

his gun, Jones pointed it at M.H. for a moment and then fled out the back door of the

home without firing a shot. The police arrived shortly thereafter, and M.H. pointed them

in the direction Jones had fled.

       Officer Virgil Avery was on patrol at the time these crimes occurred. When he

received the dispatch regarding the incident and a description of the perpetrator, he

responded to the area to set up containment. Officer Avery drove to a subdivision that

was located directly behind C.H.’s home and separated from that house only by a wood

fence. Within seconds of exiting his vehicle, Officer Avery saw Jones running from the

direction of C.H.’s house. Jones matched the description of the perpetrator that Officer

Avery had just received. Officer Avery identified himself as a police officer and told

Jones to stop running. Jones looked at the officer but continued to run away. Officer

Avery gave chase, and Jones continued to flee. After approximately 15 seconds, Officer

Avery caught Jones from behind, placed him in handcuffs, and arrested him immediately

for the robbery attempted in C.H.’s home.

       After Officer Avery detained Jones, Officer Robert Dean and Lass, his K-9

partner, performed a “trackback” from the location where Jones was arrested. The track

led to the back door of C.H.’s home. Officer Kathryn Mumford then performed a “victim

showup,” meaning she picked M.H. up from his house, told him that the police had found


                                             3
someone that they would like him to see, and drove M.H. to where Jones was located.

When Officer Mumford asked M.H. if he had seen Jones before, M.H. identified Jones as

the individual who had just assaulted him in his home.

       Jones was charged with one count of burglary in the first degree and an associated

count of armed criminal action, one count of attempted robbery in the first degree with a

separate associated count of armed criminal action, one count of assault in the third

degree, and one count of resisting arrest for a felony. With respect to the first-degree

burglary charge, the state alleged that Jones “knowingly entered unlawfully in an

inhabitable structure … possessed by [C.H.] …, for the purpose of committing Robbery

in the First Degree therein, and while in such inhabitable structure there was present in

such inhabitable structure [C.H. and M.H.], persons who were not participants in the

crime.” The associated armed criminal action count alleged that Jones committed the

felony of first-degree burglary “by, with and through, the knowing use, assistance and aid

of a deadly weapon.” With respect to the resisting arrest charge, the indictment alleged

that Jones resisted arrest “by fleeing” from an officer.

       At the close of the state’s case at trial, Jones moved for a judgment of acquittal.

He argued that there was insufficient evidence to support the charge for armed criminal

action associated with the first-degree burglary charge because there was no evidence that

he actually “used” the gun to effect entry into C.H.’s garage or that he “used” the gun to

intimidate C.H. into granting him entry. Jones also contended that there was insufficient

evidence to support the charge for resisting arrest because there was no evidence showing




                                              4
that he ran from the officer after the arrest occurred or was attempted. The trial court

overruled the motion.

       Jones did not present any evidence on his own behalf, and the jury found him

guilty on all counts. Jones filed a motion for judgment of acquittal or, in the alternative, a

new trial, which the trial court overruled. The trial court entered a judgment and

sentences consistent with the jury’s verdicts. Jones now appeals, and this Court has

jurisdiction under article V, section 10, of the Missouri Constitution.

                                             Analysis

       Jones raises three points on appeal. 1 His first and second points challenge the

sufficiency of the evidence to support his conviction for armed criminal action in

connection with the first-degree burglary and his conviction for resisting arrest. Jones’

third point claims that the trial court erred by overruling his motion for a continuance.

       I.      Standard of Review

       When reviewing a challenge to the sufficiency of the evidence, the standard of

review is “whether there is sufficient evidence from which a reasonable juror might have

found the defendant guilty beyond a reasonable doubt.” State v. Letica, 356 S.W.3d 157,

166 (Mo. banc 2011). “The evidence and all reasonable inferences therefrom are viewed

in the light most favorable to the verdict, disregarding any evidence and inferences



1
   This appeal originally was briefed in the Missouri Court of Appeals, Eastern District. There,
Jones raised a fourth point claiming that the trial court erred in allowing Officer Avery to testify
that the “call log” on Jones’ cell phone (that was taken from him at the time of his arrest and to
the search of which Jones had consented) showed three missed calls between 11:11 p.m. and
11:12 p.m. Jones did not include this claim in his points relied on in this Court, however. “Any

                                                 5
contrary to the verdict.” State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). “This is

not an assessment of whether the Court believes that the evidence at trial established guilt

beyond a reasonable doubt but rather a question of whether, in light of the evidence most

favorable to the State, any rational fact-finder could have found the essential elements of

the crime beyond a reasonable doubt.” State v. Miller, 372 S.W.3d 455, 463 (Mo. banc

2012). In reviewing the sufficiency of the evidence supporting a criminal conviction, an

appellate court “does not act as a ‘super juror’ with veto powers” but “gives great

deference to the trier of fact.” Id.

        II.     Jones committed the burglary with the aid and assistance of a gun

        A “person commits the crime of burglary in the first degree if he knowingly enters

unlawfully … a building or inhabitable structure for the purpose of committing a crime

therein, and when in effecting entry or while in the building or inhabitable structure or in

immediate flight therefrom,” § 569.160.1, 2 and “[t]here is present in the structure another

person who is not a participant in the crime,” § 569.160.1(3). 3 A person commits armed

criminal action when he or she “commits any felony under the laws of this state by, with,



material included in the court of appeals brief that is not included in the substitute brief is
abandoned.” Rule 83.08(b).
2
    Unless otherwise stated, all statutory references are to RSMo 2000.
3
   Even if a person enters a building or inhabitable structure lawfully, a burglary may still occur.
Section 590.160.1 provides for two mutually exclusive scenarios, i.e., that a person commits
first-degree burglary if he “enters unlawfully or knowingly remains unlawfully in a building or
inhabitable structure for the purpose of committing a crime therein ….” [Emphasis added.] See
§ 569.010(8) (defining the phrase “Enter unlawfully or remain unlawfully" to mean that “enters
or remains in or upon premises when he or she is not licensed or privileged to do so”) (emphasis
added). As a result, even though a person may be licensed or privileged to enter, he commits
burglary if – knowing that the privilege or license no longer exists – he remains for the purpose

                                                   6
or through the use, assistance, or aid of a dangerous instrument or deadly weapon.”

§ 571.015.1.

       In his first point, Jones argues that he cannot be guilty of armed criminal action

because there was no evidence that he made “use” of the gun to overcome a physical

obstacle in order to enter the garage in that the garage door automatically opened when

his foot or leg triggered the sensor at the threshold of the garage. Nor, Jones argues, was

the evidence sufficient for the jury to find that he made “use” of his gun to intimidate

C.H. into granting him entry because C.H. did not see Jones with the gun until after he

had crossed the threshold of the garage. Because Jones contends these are the only

means by which the state can convict him of armed criminal action in connection with

this burglary, he maintains he must be acquitted as a matter of law. The Court rejects this

argument and holds that the evidence was sufficient to support Jones’ conviction for

armed criminal action in connection with the first-degree burglary.

       Jones’ argument reads section 571.015 as though it limits armed criminal action

solely to circumstances in which the defendant “uses a dangerous instrument or deadly

weapon to commit any felony under the laws of this state.” But this is not how the statute

reads, and construing section 571.015 so narrowly ignores the other terms the legislature

chose to include in that statute.

       “This Court’s primary rule of statutory interpretation is to give effect to legislative

intent as reflected in the plain language of the statute at issue.” Ivie v. Smith, 439 S.W.3d


of committing a crime. This language is omitted above and not considered in the Court’s
analysis, however, because this not how Jones was charged or convicted here.

                                              7
189, 202 (Mo. banc 2014) (quoting Parktown Imports, Inc. v. Audi of Am., Inc., 278

S.W.3d 670, 672 (Mo. banc 2009)) (internal quotation marks omitted). “It is a basic rule

of statutory construction that words should be given their plain and ordinary meaning

whenever possible.” State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 479 (Mo. banc

2013) (quoting Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998))

(internal quotation marks omitted).

       Jones’ argument places great emphasis on the word “use” but ignores all of the

other words the legislature used when enacting section 571.015. “When interpreting a

statute, this Court must give meaning to every word or phrase of the legislative

enactment.” State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010). The statute reads:

       [A]ny person who commits any felony under the laws of this state by, with,
       or through the use, assistance, or aid of a dangerous instrument or deadly
       weapon is also guilty of the crime of armed criminal action ….

§ 571.015.1 (emphasis added). These three prepositions (by, with, or through) and the

three nouns those prepositions modify (use, assistance, or aid), demonstrate that section

571.015.1 was intended to reach as broadly as possible. Accordingly, the statute provides

that Jones is guilty of armed criminal action under this statute in connection with the

burglary if the evidence was sufficient for the jury to find beyond a reasonable doubt

any one of at least the following nine permutations:

       He committed this unlawful entry for the purpose of committing a felony by
       the use of his gun.

       He committed this unlawful entry for the purpose of committing a felony by
       the assistance of his gun.




                                             8
       He committed this unlawful entry for the purpose of committing a felony by
       the aid of his gun.

       He committed this unlawful entry for the purpose of committing a felony
       with the use of his gun.

       He committed this unlawful entry for the purpose of committing a felony
       with the assistance of his gun.

       He committed this unlawful entry for the purpose of committing a felony
       with the aid of his gun.

       He committed this unlawful entry for the purpose of committing a felony
       through the use of his gun.

       He committed this unlawful entry for the purpose of committing a felony
       through the aid of his gun.

       He committed this unlawful entry for the purpose of committing a felony
       through the assistance of his gun.

       The legislature did not define the words “by,” “through,” “with,” “use,” “aid,” or

“assistance” for purposes of section 571.015 but, in “the absence of a statutory definition,

words will be given their plain and ordinary meaning as derived from the dictionary.”

State v. Oliver, 293 S.W.3d 437, 446 (Mo. banc 2009). The prepositions “by,”

“through,” and “with” are defined as function words used to indicate the means, agency,

or instrumentality of something else. 4 “Use” means “the act or practice of employing

something.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2523 (3d

ed. 1993).



4
   “By” means “through the means or instrumentality of,” “through the direct agency of,” or
“through the medium of.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 307
(3d ed. 1993). “With” means “by means of” or “by the use or agency of.” Id. at 2626.
“Through” also means “by means of” or “by the use or agency of.” Id. at 2384.

                                             9
       A person may walk with the “use” of a cane, but doing so does not necessarily

mean that the person could not walk without it. By the same token, given the context of

section 571.015, the noun “use” does not mean or suggest that the weapon must have

been necessary to commit the crime or that – but for the defendant’s “use” of the weapon

– the crime could not have occurred.

       Moreover, even if the definition of “use” did not encompass Jones’ conduct in this

case, it is clear that the terms “assistance” and “aid” reach even further. “Aid” refers to

“the help given,” and “assistance” refers to “the help supplied or given.” Id. at 44, 132.

Neither of these terms suggests that the help provided by, through, or with the weapon

must have been essential to the commission of the crime or that, but for that help, the

crime could not have occurred. Instead, the terms “aid” and “assistance” suggest the

opposite. This construction is further strengthened and compelled by the fact that the

nouns “aid” and “assistance” are included as alternatives to the noun “use.”

       Accordingly, and without belaboring the applicability of all nine permutations of

section 571.015.1, there was sufficient evidence for the jury to find beyond a reasonable

doubt that Jones committed first-degree burglary with the assistance or aid of his gun.

C.H. testified that she saw Jones immediately after he crossed the threshold of the garage.

Even though C.H. did not see Jones at the precise moment he crossed the threshold of the

garage, she did see Jones an instant later and – at that time – Jones already was holding

his gun out in both hands and pointing it at C.H. As a result, the evidence was sufficient

for the jury to find that Jones crossed the threshold of the garage with the aid or




                                             10
assistance of his gun regardless of whether Jones first broke the plane of the garage’s

entrance with his gun, foot or knee. 5

       In support of his argument, Jones cites two decisions from the court of appeals that

he claims require the state to prove that the defendant made “use” of a weapon either to

overcome a barrier to entry (e.g., break a window or open a door) or to threaten someone

into granting entry before the defendant can be convicted of armed criminal action in

connection with a burglary. See State v. Hopkins, 140 S.W.3d 143 (Mo. App. 2004) (to

be convicted of armed criminal action in connection with a burglary, the evidence must

show that the defendant used the knife to pry open the door or explicitly threaten the

victim prior to entry); State v. Carpenter, 109 S.W.3d 718, 723 (Mo. App. 2003) (a

defendant does not commit burglary by, with, or through the use, aid, or assistance of a

gun unless the defendant shoots the door open or explicitly threatens the victim with the

gun to compel the victim to open the door). 6 This is incorrect.




5
    The dissent notes, properly, that the elements for burglary were complete upon Jones’ entry
into the garage. See State v. Pigques, 310 S.W.2d 942, 945 (Mo. 1958). The question here is
whether he made that entry with the aid or assistance of his gun. The evidence was sufficient to
prove he did.
6
   See also Obasogie v. State, 457 S.W.3d 793, 798 (Mo. App. 2014) (holding “there was an
implicit threat to [the victim] by [defendant’s] display of the gun in his hand; he did not need to
point the gun at her or to make an explicit verbal threat” to be found guilty of armed criminal
action in connection with a burglary). Even though Obasogie rejects the construction of
section 571.015.1 in Carpenter, the court similarly misconstrued this statute by concluding that
the victim must see the defendant brandishing the weapon as he crosses the threshold. As
explained herein, nothing in section 571.015.1 suggests that a defendant cannot unlawfully enter
a dwelling with the “assistance” or “aid” of a weapon without actively brandishing it, nor is there
any language in the statute to support a requirement that the victim actually must see the
defendant enter with such “assistance” or “aid.”


                                                11
       Armed criminal action under section 571.015.1 does not require that the defendant

actually attack or threaten an imminent attack with the weapon. It only requires that the

defendant commit a crime “by, through, or with” the “use, assistance, or aid” of a

weapon. In connection with a charge of burglary, therefore, section 571.015.1 does not

require that the weapon must have been the means of forcing entry, either directly or

indirectly through intimidation. Such might be a reasonable construction of the term

“use” if it were the only term used in the statute, but “use” is just one of three alternatives

describing the conduct prohibited by section 571.015.1. The addition of the words

“assistance” and “aid” broaden the reach of the armed criminal action statute to any crime

committed with the help of a weapon, not merely to those crimes that necessarily resulted

only from the use of a weapon.

       The plain meaning of “assistance” and “aid,” especially when considered in light

of the alternative prepositions “by, through, or with,” make it clear that the legislature

intended section 571.015.1 to reach as far as possible and to discourage defendants from

arming themselves during the commission of felonies by imposing a separate punishment

when the defendant’s criminal purpose is assisted or aided by ready access to a dangerous

weapon. Any other construction of section 571.015.1 robs the words “assistance” and

“aid” of any meaning in defining “armed criminal action.”

       Here, Jones unlawfully entered C.H.’s garage with a gun in his hands. The jury

reasonably could infer that the gun “aided” or “assisted” Jones by bolstering his

confidence to enter a garage that he knew might be occupied. The weapon provided

“aid” or “assistance” by giving Jones both the ready means to overcome any resistance


                                              12
and the assurance that the mere presence of the gun would prevent or deter such

resistance in the first instance. It does not matter whether such resistance occurs, or even

whether anyone who might have offered such resistance actually saw him cross the

threshold. The jury reasonably could infer that Jones crossed that threshold with the

“aid” or “assistance” of his gun because the gun bolstered Jones’ confidence in making

the unlawful entry. Accordingly, the evidence was sufficient for a jury to find beyond a

reasonable doubt that Jones committed armed criminal action in connection with the

first-degree burglary. 7

       III.    Jones Reasonably Should Have Known He Was Under Arrest.

       In his second point, Jones claims that the evidence was not sufficient to support

his conviction for resisting arrest. Section 575.150.1, RSMo Supp. 2010, provides:

       A person commits the crime of resisting or interfering with 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 vehicle, or
       the person reasonably should know that a law enforcement officer is
       making an arrest or attempting to lawfully detain or lawfully stop an
       individual or vehicle, for the purpose of preventing the officer from
       effecting the arrest, stop or detention, the person:
       (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; or



7
   This holding is not in conflict with State v. Reynolds, 819 S.W.2d 322, 329 (Mo. banc 1991),
which held that mere intention to use a weapon, without actual use, is not enough to convict
under the armed criminal action statute. There, the Court found there was “no evidence that
Reynolds committed the burglary by, with, or through the use of the knife or other deadly
weapon” because the defendant’s knife was not readily accessible. Id. Instead, throughout the
burglary, the defendant’s knife was in a sheaf and “hooked inside the boot.” Id. at 327. Unlike
the present case, therefore, the jury in Reynolds had no basis to infer that the knife was readily
accessible such that it provided the defendant with “aid or assistance” in making the entry.


                                                13
       (2) Interferes with the arrest, stop or detention of another person by using or
       threatening the use of violence, physical force or physical interference.

It is a class D felony to resist an arrest for a felony. § 575.150.5.

       To prove that Jones committed this crime, the state needed to establish three

elements: (1) that Jones knew or reasonably should have known that a law enforcement

officer was making an arrest or attempting to lawfully detain or stop him; (2) that he

resisted this arrest, stop or detention by fleeing from that officer; and (3) that he did so for

the purpose of preventing the officer from effecting the arrest, stop or detention. State v.

Pierce, 433 S.W.3d 424, 434 (Mo. banc 2014). Jones now concedes that the evidence

was sufficient to prove that Officer Avery was attempting to arrest him for the crimes

committed in C.H.’s home, 8 and that Jones fled from Officer Avery to avoid his actions.

In this Court, Jones claims only that there was insufficient evidence to prove that he knew

or had reason to know Officer Avery was making an arrest. Jones asserts that he had no

reason to know Officer Avery was attempting to arrest him even though the officer

identified himself as a police officer, told Jones to stop running, and then gave chase.

Instead, Jones argues that, because Officer Avery only said “stop running” and not “stop




8
   When this case was briefed in the court of appeals, Jones also argued in his point relied on that
there was insufficient evidence to prove that Officer Avery was attempting to make an arrest
when he told Jones to stop running. In his substitute brief filed with this Court, however, Jones
drops this argument, and the claim is abandoned. Rule 83.08(b). Jones now expressly concedes
that the evidence was sufficient for the jury to find that Officer Avery ordered him to stop
intending to arrest him for the felonies he had just committed.


                                                14
running, you are under arrest,” it was reasonable for Jones to believe the officer was– at

most – attempting to stop or detain Jones for investigation, not arrest. 9

       “It is not necessary for the officer to specifically say, ‘you are under arrest,’ when

the circumstances indicate the officer is attempting an arrest.” State v. Chamberlin, 872

S.W.2d 615, 619 (Mo. App. 1994). In Chamberlin, the defendant fled in a vehicle while

an officer followed him with his emergency lights and siren activated. Id. The defendant

eventually stopped his car and fled on foot. Id. The officer then exited his vehicle and

yelled at the defendant to stop. Id. The court of appeals found that these circumstances

indicated that the officer was attempting an arrest even though the officer did not pursue

the defendant on foot. Id. The court further found that “[t]he officer’s verbal commands

and the invocation of his authority as a state trooper were an attempt to effect the arrest of

the defendant.” Id. Accordingly, Chamberlin properly holds that this evidence was

sufficient for a jury to find that the defendant knew or had reason to know that the officer

was attempting to arrest him. Id. The present case is similar to Chamberlin because the

officers in both cases gave a verbal command to the defendants to stop running and

invoked their authority as police officers. See Pierce, 433 S.W.3d at 434 (defendant is

not “immune from arrest (or prosecution for resisting arrest) as long as he runs before the




9
   At times, Jones’ argument on this point appears to challenge the legality of his arrest in that he
claims Officer Avery could not have had probable cause to arrest him at the time he did and, at
most, could only have had resasonable suspicion to stop Jones and make further inquiries. But
Jones cannot challenge the lawfulness of the arrest as a defense to a charge of resisting arrest.
§ 575.150.4. Because Jones concedes that Officer Avery was, in fact, attempting to arrest him,
the relevant point is whether Jones knew or had reason to know that this is what was occurring.



                                                 15
officer attempts to arrest him, nor would such a rule be supported by the language of the

statute”).

       In addition to those circumstances, the evidence in this case showed that Jones had

even more compelling reasons to know that Officer Avery was attempting a felony arrest.

Immediately after committing the crimes of burglary, attempted robbery, assault, and

armed criminal action in C.H.’s home, Jones was running away from the scene of those

crimes when a uniformed officer identified himself as a police officer and commanded

Jones to stop running. A defendant’s “presence at the crime scene and flight therefrom

are evidence of consciousness of guilt.” State v. Clay, 975 S.W.2d 121, 140 (Mo. banc

1998); see also State v. Rodden, 728 S.W.2d 212, 219 (Mo. banc 1987) (finding that

flight shows a consciousness of guilt).

       The jury was entitled to consider what Jones knew and what Jones had just done

when deciding whether Jones had reason to know whether Officer Avery was attempting

to arrest him for those felonies. See State v. Whitley, 183 S.W. 317, 320-21 (Mo. 1916)

(“But being guilty, and knowing his guilt thereof (as the inference is from the jury’s

verdict), the duty was by law incumbent on him to submit to this arrest, under penalty, if

he refused, of taking away his defense when tried for any act done by him while resisting

arrest.”).

       Not only was the evidence sufficient for the jury to find that Jones knew he had

committed burglary, attempted robbery, and assault, but Jones also does not contest his

convictions for those crimes. Because of the “trackback,” the evidence also was

sufficient for the jury to find that, after committing these crimes and fleeing out the back


                                             16
of C.H.’s house, Jones ran directly into Officer Avery’s view. When this officer

identified himself and told Jones to stop running, Jones continued to flee. Finally, and

most persuasively, Jones continued to flee Officer Avery even after that officer began

chasing him. Given all of this, there was a sufficient basis for the jury to infer Jones

knew – or reasonably should have known – that he was being arrested for the crimes he

had just committed. 10

       For the foregoing reasons, the trial court did not err by overruling Jones’ motion

for judgment of acquittal on the charge of resisting arrest.

       IV.     Jones’ Motion for Continuance Was Properly Overruled

       In his third point, Jones claims that the trial court abused its discretion by

overruling his last-minute motion for a continuance on the eve of trial. The decision

whether to grant a motion for continuance is committed to the sound discretion of the

trial court, and, on appeal, this Court’s review is limited to whether the trial court abused

that discretion. State v. Griffin, 848 S.W.2d 464, 468 (Mo. banc 1993). “Reversal is

warranted only upon a very strong showing that the court abused its discretion and

prejudice resulted.” State v. Edwards, 116 S.W.3d 511, 535 (Mo. banc 2003). “[T]he


10
    In support of his argument that he did not know he was under arrest, Jones relies on State v.
Hunter, 179 S.W.3d 317, 321 (Mo. App. 2005). In Hunter, the defendant was a passenger in a
pickup. When the driver ran through a red light, a police officer behind him activated the lights
on his patrol car and pursued the vehicle. Though the driver had reason to know he was being
stopped, Hunter holds that the passenger had no reason to know he was being arrested for a
felony unrelated to the traffic offense just committed. Id. More importantly, Hunter notes that
the officer never testified he intended to arrest the defendant. Id. Here, Officer Avery testified
that he ordered Jones to stop and chased after him intending to arrest him for the felonies he had
just committed, and Jones concedes this point. Hunter, therefore, is distinguishable from the
present case and does not support Jones’ argument.


                                                17
party requesting the continuance bear[s] the burden of showing prejudice.” State v.

Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991).

       Jones moved for a continuance on the morning of the day on which trial was set to

begin. He claimed a delay was necessary for defense counsel: (1) to locate a potential

defense witness and (2) to conduct a forensic examination of Jones’ cell phone and

present expert testimony as to the results of that examination. 11 The trial court heard

argument on Jones’ motion on the morning of the first day of trial. Noting its concerns

that the case was four years old, that neither of these issues was raised at the pretrial

conference the prior week, and that Jones already had sought and received continuances

on four previous occasions, the trial court overruled the motion. Jones raised these issues

in his motion for a new trial, preserving them for appellate review, and the trial court

overruled that motion.

       Last-minute motions for a continuance are not favored. In reviewing the

overruling of such a motion, this Court has stated:

       Under Rule 24.10, an application for continuance due to the absence of a
       witness must show: (1) the materiality of the evidence sought to be
       obtained and due diligence on the part of the applicant to obtain the
       witness; (2) the name and residence of the witness; (3) the facts that the
       witness will prove and that there is no other person who could have been
       present at trial to testify to such facts; and (4) the application was made in
       good faith for the purpose of obtaining a fair and impartial trial.




11
   In his motion for continuance, Jones also argued that the court should grant a delay to give
defense counsel more time to investigate Jones’ mental health. Jones has abandoned this claim
on appeal, however, and it is not before the Court.


                                               18
State v. Salter, 250 S.W.3d 705, 712 (Mo. banc 2008). “In deciding whether to grant a

continuance, the trial court is entitled to consider whether the application meets the

requirements of this rule.” Id. If the trial court finds that the application does not comply

with the rule, the court’s decision to deny the continuance is not an abuse of discretion.

Id.

       Jones’ written motion did not meet the requirements of Rule 24.10 with respect to

the witness. The motion merely stated that she lived in the neighborhood and that “at the

time of the incident she saw an African-American man with dreadlocks waiting for a bus

and that this man is the person responsible for the alleged crimes in this case.” The

motion does not explain how the witness’ name came to light or why, in the exercise of

due diligence, defense counsel could not have identified her and secured her testimony

earlier. In addition, the testimony ascribed to the witness would not have been of

material aid to Jones’ defense. Whether she saw a man in the area whom she thinks

resembled Jones is not material, nor would it have served to impeach the testimony of the

officers who testified only that that they saw no one else (i.e., the witness or this third

person) in the vicinity. The officers did not testify – and could not have testified – who

was or was not present beyond their sight and hearing.

       The witness’ speculation that this third person, not Jones, “is the person

responsible for the alleged crimes in this case” was of no assistance to Jones’ defense

because such speculation would not have been admissible, and the motion failed to state

that she had the firsthand knowledge of the third party’s guilt and Jones’ innocence

necessary to raise her testimony above mere speculation. See State v. Rousan, 961


                                              19
S.W.2d 831, 848 (Mo. banc 1998) (“To be admissible, evidence that another person had

an opportunity or motive for committing the crime for which a defendant is being tried

must tend to prove that the other person committed some act directly connecting him with

the crime.”). Based on the sparse description and lack of explanation or foundation for

the purported testimony, the trial court did not err in overruling Jones’ motion on the

ground that it failed to establish the witness would “be able to say anything that would be

of any benefit to the defense[.]”12

       Jones’ motion for a continuance also claimed that a delay was necessary for

defense counsel to obtain a forensic examination of his cell phone and secure an expert to

testify that the “call log” about which Officer Avery testified failed to show that Jones

had taken a call lasting several minutes “at or near” the time of the burglary. But the

motion fails to allege that counsel exercised due diligence in attempting to obtain this

evidence prior to the first day of trial. The motion alleged only that it would take counsel

45 days to secure this evidence, but it does not establish that counsel previously lacked

sufficient time or information to seek this evidence in time for trial. The fact that it was

Jones’ phone (and, therefore, that Jones was the best source of the role the phone might

or might not play in his defense) suggests that there was sufficient time and information

to pursue this evidence if counsel deemed it helpful. Counsel was appointed




12
    Jones provided greater detail regarding the witness’ potential testimony in his motion for new
trial, but none of the new information showed that her testimony would contradict the officers’
testimony directly on any meaningful issue, nor did any of these new details demonstrate that the
witness could link the third party to the crime and not just to the neighborhood.


                                               20
approximately 90 days before trial, 13 or twice as long as the 45 days allegedly needed to

test the phone and prepare an expert. Because Jones’ motion and argument failed to

comply with the requirement in Rule 24.10(a) that counsel show due diligence, the trial

court did not abuse its discretion in overruling Jones’ motion for a continuance. See State

v. Christeson, 50 S.W.3d 251, 262 (Mo. banc 2001) (trial court does not abuse its

discretion in overruling a motion for a continuance when counsel had adequate time to

prepare). 14

       Finally, Jones claims that the trial court abused its discretion in overruling the

motion for a continuance because defense counsel had entered an appearance only three

months before trial, because counsel was out of the country for a month during that

period, and because counsel was preparing other defendants’ cases while also preparing

for Jones’ trial. These arguments were not presented in Jones’ written motion for

continuance or in Jones’ motion for a new trial. Accordingly, they are not properly

before this Court, see Rule 78.07(a); State v. Davis, 348 S.W.3d 768, 769 (Mo. banc

2011) (issue raised for the first time on appeal is not preserved for appellate review), and

Jones does not seek plain error review under Rule 30.20.



13
    Jones’ first counsel was appointed in 2010, shortly after he was charged. This counsel was
allowed to withdraw and another counsel appointed following Jones’ nine pro se motions for
change of counsel.
14
    Jones’ motion for continuance also fails to establish that the forensic examination and expert
testimony concerning the “call log” on his phone – even if it turned out as Jones hoped – would
aid his defense materially. Evidence that Jones answered a phone call lasting several minutes “at
or near” the time of the crime does not contradict M.H.’s testimony that Jones missed a call
during their struggle or contradict Officer Avery’s testimony that the “call log” shows Jones
missed three calls in rapid succession at 11:11 p.m. and 11:12 p.m.

                                               21
       Even if Jones’ last arguments were properly before this Court, they would not

justify reversal. He does not claim counsel’s absence from the country or his

representation of other clients affected the outcome of the trial, nor does Jones offer any

explanation as to how any of these facts (or all of them combined) actually prejudiced

him. As noted above, counsel had ample time and information to secure examination of

Jones’ cell phone, and Jones does not claim that defense counsel’s travels or other

commitments had any effect on counsel’s ability to secure a potential witness’ testimony

even assuming it would have been admissible. Accordingly, even if this claim had been

presented to the trial court, the trial court would not have abused its discretion in denying

the motion for continuance on such grounds.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.



                                                        _____________________________
                                                        Paul C. Wilson, Judge


Breckenridge, C.J., Fischer, Stith and Russell, JJ., concur;
Draper, J., concurs in part and dissents in part in separate opinion filed;
Teitelman, J., concurs in opinion of Draper, J.




                                              22
            SUPREME COURT OF MISSOURI
                                       en banc



STATE OF MISSOURI,                            )
                                              )
                             Respondent,      )
                                              )
v.                                            )   No. SC94924
                                              )
JUSTIN FLOYD EUGENE JONES,                    )
                                              )
                             Appellant.       )

       OPINION CONCURRING IN PART AND DISSENTING IN PART

       I concur in the principal opinion’s holding that the circuit court did not err by

overruling Justin Floyd Eugene Jones’ (hereinafter, “Jones”) motion for judgment of

acquittal on the charge of resisting arrest and Jones’ motion for a continuance.        I

respectfully dissent, however, from the principal opinion’s holding that there was

sufficient evidence upon which a jury could find beyond a reasonable doubt that Jones

was guilty of committing armed criminal action during the course of the burglary of

C.H.’s home. I would hold there was insufficient evidence to support the armed criminal

action conviction associated with the burglary charge because Jones completed the

burglary as soon as he crossed the threshold into C.H.’s garage and there was no evidence

to support the fact that Jones completed the burglary by, with, or through the use,

assistance, or aid of the gun he possessed.
         Section 569.160.1(3), RSMo 2000, 1 provides that a person commits first-degree

burglary:

         [I]f he [or she] knowingly enters unlawfully or knowingly remains
         unlawfully in a building or inhabitable structure for the purpose of
         committing a crime therein, and when in effecting entry or while in the
         building or inhabitable structure…[t]here is present in the structure another
         person who is not a participant in the crime.

“[A] person ‘enters unlawfully or remains unlawfully’ in or upon premises when he [or

she] is not licensed or privileged to do so.” Section 569.010(8). Section 571.015.1 states

a person commits armed criminal action when that person “commits any felony under the

laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument

or deadly weapon ….” Jones does not challenge the sufficiency of his underlying

burglary conviction.

         The indictment charged Jones with committing the act of burglary when he

knowingly entered unlawfully an inhabitable structure for the purpose of committing a

robbery and while in the structure other people who were not participants in the crime

were present.       The associated armed criminal action count charged Jones with

committing the burglary by, with and through, the knowing use, assistance and aid of a

deadly weapon. The jury was instructed accordingly. The principal opinion ignored how

Jones was charged for burglary and the caselaw that discusses when a burglary is

completed, which I believe are critical components of the analysis of Jones’ claim on

appeal.



1
    All further statutory references are to RSMo 2000.
                                              2
      “[A] conviction for burglary requires distinct findings of both unlawful entry and

intent to commit a crime therein.” State v. Cooper, 215 S.W.3d 123, 127 (Mo. banc

2007). In State v. Pigques, 310 S.W.2d 942 (Mo. 1958), this Court explained:

      Entry is an essential element of the crime of burglary as understood at
      common law and as defined by our statute …. Literally, ‘entry’ is the act
      of going into the place after a breach has been effected, but the word has a
      broader significance in the law of burglary, for it is not confined to the
      intrusion of the whole body, but may consist of the insertion of any part for
      the purpose of committing a felony…. An entry of a building, that is, an
      entry (with intent to steal) of the space within the building, is necessary to a
      completed crime of burglary; but any entry, however slight (by and part of
      the body), procured by breaking, with intent to steal (or to commit another
      crime therein, as the charge may be) is sufficient.

Pigques, 310 S.W.2d at 945. (Internal citations omitted and emphasis added). See also

State v. Whitaker, 275 S.W.2d 316, 319 (Mo. 1955) (holding it was not necessary that a

defendant get his “whole body” into a structure to commit a burglary because “[t]he least

entry of any part of the body is sufficient”); State v. Tierney, 371 S.W.2d 321, 323 (Mo.

1963). Several cases have analyzed remarkably similar factual scenarios to Jones’ in

which the defendant completed his unlawful entry to commit a burglary and then used a

weapon thereafter to commit additional offenses once the burglary was complete.

      In State v. Carpenter, 109 S.W.3d 718 (Mo. App. S.D. 2003), the defendant

entered a home by breaking out the glass and kicking in the back door while possessing a

shotgun. Once inside, the defendant fired the shotgun. Carpenter, 109 S.W.3d at 720.

The defendant was convicted of armed criminal action associated with burglary. Id. at

721. On appeal, the defendant argued there was insufficient evidence presented that he

gained entry into the home by use of the shotgun when the evidence demonstrated he


                                             3
broke the glass and kicked the back door open. Id. The court agreed, stating, “[T]he

crime of [armed criminal action] is committed in a burglary setting if the weapon or

instrument is used to gain entry for the purpose of committing a crime therein.” Id. at

723. The court interpreted sections 569.160 and 571.015 to require the state to prove that

a defendant used a weapon to gain entry into a building for the purpose of committing a

crime therein by threatening the occupant or breaking open a door with a weapon. Id.

The court noted the critical distinction between charging the defendant with unlawfully

entering versus unlawfully remaining in the building for purposes of burglary and armed

criminal action. Id. at 723-24. “What did or did not follow upon his unlawful entry is

wholly immaterial to a determination whether [the defendant] committed the crime of

first-degree burglary as it was charged here.” Id. at 723.

       Carpenter relied heavily on State v. Dudley, 51 S.W.3d 44 (Mo. App. W.D. 2001).

In Dudley, the court reversed a conviction for armed criminal action associated with

burglary when the defendant gained entry into the home by kicking in the door then, once

inside, used a gun to murder the victim. Dudley, 51 S.W.3d at 48. On appeal, the state

conceded it failed to prove armed criminal action because it did not show the defendant

gained entry into the victim’s home by using the gun because the only evidence presented

was that the defendant entered the house by kicking in the door. Id. at 52. The court

agreed, finding “there is nothing in the record from which a reasonable jury could infer

that [the defendant] entered the victim’s house unlawfully by, with, or through the use,

aid, or assistance of a gun.” Id.



                                             4
       In State v. Hopkins, 140 S.W.3d 143 (Mo. App. E.D. 2004), the defendant had to

enter four separate doors to reach the victim inside the home, whom the defendant then

stabbed. Hopkins, 140 S.W.3d at 147. The defendant was charged with armed criminal

action and burglary. Id. at 158. The court reversed the defendant’s armed criminal action

conviction, finding that, as the crime was charged, the defendant completed the burglary

upon his unlawful entry into an occupied home with the intent to commit assault. Id.

(Emphasis added). The court explained that while there was sufficient evidence that a

dangerous instrument was used to commit the assault once inside, evidence of the

weapon’s use to commit the burglary was “virtually non-existent.” Id. at 159. The court

stated, “[T]he events that occurred subsequent to that unlawful entry are not relevant to a

determination of whether [armed criminal action] in connection with the underlying

felony of first-degree burglary, as charged, was committed here.” Id.

       In State v. Collins, 188 S.W.3d 69 (Mo. App. E.D. 2006), a defendant entered a

woman’s apartment while she was asleep by breaking the glass on the front door and

opening the door. While inside, the defendant used a gun during the course of a rape and

robbery. Collins, 188 S.W.3d at 72. The defendant was charged with burglary and

armed criminal action, among other charges. Id. The court reversed the defendant’s

conviction for armed criminal action, relying on Carpenter, Dudley, and Hopkins. Id. at

74-75. The court found the state failed to offer any evidence the defendant entered the

victim’s apartment “by, with, or through the use, aid, or assistance of a gun.” Id. “While

there was evidence that [the] [d]efendant had a gun, there was no evidence that he used

his gun to gain entry into [the] [v]ictim’s apartment.” Id.

                                             5
       Finally, in Obasogie v. State, 457 S.W.3d 793 (Mo. App. E.D. 2014), a man

entered the victim’s home while the victim was asleep. Obasogie, 457 S.W.3d at 795.

The victim awoke and saw the defendant and another man, both carrying firearms, enter

her home through the back door. Id. The defendant discharged his firearm while inside.

Id. The defendant was charged with burglary and armed criminal action. Id. In his post-

conviction relief proceedings, the defendant argued the motion court incorrectly

distinguished his case from Carpenter and Dudley when holding appellate counsel was

not ineffective for failing to raise a sufficiency of the evidence challenge in the

defendant’s direct appeal. Id. at 797-98. The court of appeals affirmed, finding the

defendant “was openly displaying a gun in his hand as [the victim] saw him enter her

house. The jury could reasonably infer that there was an implicit threat to [the victim] by

[the defendant’s] display of the gun in his hand ….”         Id. at 798.   The court also

distinguished Carpenter, explaining:

       The dicta in Carpenter that defendant would have had to use the gun to
       break open the door or display a weapon and explicitly threaten someone to
       gain entry, was not required by the language of the statute and was not
       necessary to reach its holding in that case.

Id.

       The principal opinion makes short work of the holdings in Carpenter, Hopkins,

and Obasogie, dismissing them as incorrect because “use” is not the only term used in

section 571.015 to commit armed criminal action. The principal opinion reads section

571.015 so expansively, essentially construing its “nine permutations” in such a way as to

render “use, aid, or assistance of a weapon” synonymous with intent to use a weapon or


                                            6
mere possession of a weapon during the commission of another offense. The principal

opinion concludes that any other construction of section 571.015.1 robs the words

“assistance” and “aid” of any meaning in defining armed criminal action.

       In State v. Reynolds, 819 S.W.2d 322 (Mo. banc 1991), this Court addressed

similar facts and came to a different conclusion. In that case, the defendant entered a

home by breaking the glass of a door, reaching inside, and unlocking the door to enter,

while carrying a knife in a sheath inside of a boot. Reynolds, 819 S.W.2d at 327. Once

inside, the victim shot at the defendant, and the defendant fled. Id. The defendant was

charged with burglary and armed criminal action. Id. This Court explicitly rejected the

theory that it sufficed to prove the knife was in the defendant’s possession and accessible

during the burglary to show the defendant committed armed criminal action. Id. This

Court construed section 571.015 to mean, “the use of a dangerous instrument or deadly

weapon is an element of the crime …” and “that the intention to use, without actual use,

is not enough to convict under the statute.” Id. at 328-29.

       Even if one adopts the principal opinion’s expansive reading of section 571.015,

which is contrary to Reynolds, there is still no evidence in the record that demonstrated

how Jones used the gun or how the gun assisted or aided him in crossing the threshold

into the garage. The principal opinion recognizes, “C.H. testified that she saw Jones

immediately after he crossed the threshold of the garage.” Slip Op. at 10 (emphasis

added). The principal opinion ignores this Court’s prior caselaw that discusses when an

unlawful entry is completed to support a burglary charge.



                                             7
         In this case, the evidence demonstrated there were sensors inside of C.H.’s garage

that triggered the door to reopen if there was some type of obstruction. Due to the

placement of the sensors, it was impossible for Jones to trigger the sensors without

inserting some part of his body into the garage. Under Pigques and Whitaker, Jones

accomplished entry as soon as some part of his body triggered the sensors. Therefore, the

crime of burglary was complete when Jones unlawfully entered the garage and triggered

the sensors, which was before C.H. saw him or the gun. See Carpenter, 109 S.W.3d at

723 (finding burglary was completed upon the defendant’s unlawful entry into the

victim’s home with the intent to assault her); Hopkins, 140 S.W.3d at 159 (holding

burglary was completed upon unlawful entry into the victim’s home); Collins, 188

S.W.3d at 75 (holding defendant completed the burglary upon his unlawful entry into the

victim’s home). 2 Finally, the completion of the burglary upon entry also contradicts the

argument that Jones implicitly threatened C.H. with the gun to gain entry into the garage,

distinguishing this case from Obasogie.

         Jones undoubtedly used the gun to assist and aid him to remain unlawfully inside

C.H.’s home and commit the subsequent robbery and assault. The state had the option of

charging Jones with remaining unlawfully by use of the gun or that in effecting entry into

2
    See also, 3 Wharton’s Criminal Law § 324 (15th ed.), stating:
         A burglary is committed when, after breaking, the defendant enters with the
         requisite intent. Since the intended felony need not be committed nor even
         attempted, the burglary is completed upon the defendant’s entry.
         Therefore, the burglary is ‘completed’ at the precise point in time when it is
         ‘committed’; it is committed when any part of the defendant’s person or an
         instrument being used for the purpose of committing the felony intended
         passes the line of the threshold.

                                               8
the garage, Jones was armed with a deadly weapon. 3 See section 569.160.1(1). Had the

state pursued either of these alternatives under the burglary statute, there would be no

dispute that Jones committed the associated armed criminal action charge. However, the

state charged Jones with unlawfully entering the garage by, with, or through the use,

assistance, or aid of the gun. The principal opinion works diligently to overcome the

charging documents and ignores the corresponding instructions submitted to the jury.

Further, the principal opinion has expanded section 571.015 to now punish any mere

intention to use (without actual use) or mere possession of a weapon during the course of

an offense as sufficient to constitute armed criminal action. Moreover, even setting aside

the dicta from Carpenter that posited one must physically shoot through the door or

explicitly threaten a victim, the record demonstrates Jones did not use the gun to

effectuate entry into the garage because he was inside before C.H. observed him.

Accordingly, I would find there was insufficient evidence to support Jones’ conviction

for armed criminal action associated with first-degree burglary and reverse his conviction

on that count.


                                                ______________________________
                                                  GEORGE W. DRAPER III, JUDGE




3
   This is not to suggest a defendant commits two separate burglaries by entering
unlawfully and remaining unlawfully within the same inhabitable structure during the
same criminal endeavor. There is no question section 569.160.1 contemplates several
alternative charging scenarios that do not subject the defendant to multiple burglary
charges for a single unlawful undertaking within an inhabitable structure.
                                            9
