STATE OF MISSOURI,                        )
                                          )
                    Respondent,           )
                                          )
      vs.                                 )   No. SD33384
                                          )
EDDIE L. MARSHALL,                        )   FILED: August 19, 2015
                                          )
                    Appellant.            )

         APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY

                          Honorable Randall L. Head, Judge

AFFIRMED

      A domestic call to police led to a foot chase and eventually to Eddie Marshall’s

felony conviction for resisting arrest, § 575.150. 1 On appeal, Marshall challenges (1)

the sufficiency of the evidence to support his conviction, and (2) the requisite mental

state for the offense. We affirm.

1 Statutory citations are to Missouri’s Criminal Code, RSMo §§ 556.011 et seq. as
amended through 2012. All citations herein were accessed electronically via Westlaw
or LEXIS. We summarize facts as we must view them, in the light most favorable to
the verdict, giving the state the benefit of all reasonable inferences and ignoring any
evidence or inferences that might favor Marshall. State v. Sprofera, 427 S.W.3d
828, 832 (Mo.App. 2014).
                                     Background

      Marshall’s girlfriend called police and reported that he had threatened her

with a knife in a domestic dispute. Patrol cars headed to the scene with Officer

Hickey in the lead.

      Marshall, who was standing in the road, fled as the first patrol car

approached. Officer Hickey gave chase by car, then on foot, yelling loudly that

Marshall was under arrest and to stop. 2 Marshall kept running.

      Coming from all directions, a trail of six patrol cars joined the chase. Officer

Martellaro intercepted Marshall, then drew his weapon and ordered Marshall to stop

and lay on the ground. Marshall did so and was handcuffed.

      A jury found Marshall guilty of resisting arrest. We consider Marshall’s two

points out of order for ease of analysis.

                      Point II – “Reasonably Should Know”

      Marshall complains that neither the resisting arrest statute (§ 575.150) nor its

verdict-directing instruction (MAI-CR 3d 329.60) require proof of any culpable

mental state listed in Criminal Code § 562.016.

                   Statutes, Instruction, and Marshall’s Complaint

      As relevant here, § 562.016:

           States that “a person is not guilty of an offense unless he acts with a
            culpable mental state, that is, unless he acts purposely or knowingly or
            recklessly or with criminal negligence, as the statute defining the
            offense may require …,” (subsection 1), then



2Officer Hickey’s claim of probable cause to arrest Marshall is not challenged on
appeal.

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           Defines the mental states of “purposely,” “knowingly,” “recklessly,” and
            “with criminal negligence” (subsections 2-5).

      Yet under § 575.150.1., resisting arrest includes a culpable mental state not

specified in § 562.016 – that the accused “reasonably should know” that a law

enforcement officer was making an arrest, etc. – and MAI-CR 3d 329.60 authorized

similar language to direct the jury on Marshall’s charge of resisting arrest by flight.

        Thus, Marshall’s brief succinctly states his complaint: “The challenged

language, ‘reasonably should know,’ or as in the instruction, ‘reasonably should have

known,’ is not one of the four mental states listed in Section 562.016, without proof

of which he is ‘not guilty of an offense.’ Section 562.016.1.”

                                        Analysis

      We reject Marshall’s argument. “Viewed in full, § 562.016.1 references all the

bases of liability, including strict liability. Section 562.016.1 is definitional and

tautological. Section 562.016.1 does not exclude any specific mental state …. Section

562.016.1 expressly says that ‘the statute defining the offense’ indicates the culpable

mental state for an offense.” State v. Carson, 941 S.W.2d 518, 522 (Mo. banc

1997). See also State v. Munson, 714 S.W.2d 515, 522 (Mo. banc 1986) (upholding

“reasonably should know” mental state in statute then criminalizing possession of

drug paraphernalia).

      Carson and Munson involved non-Code drug crimes, but Code commentary

is consistent with Carson and inconsistent with Marshall’s theory. We quote the

official comment to § 562.016, the statute upon which Marshall relies:

          Subsection 1 states the proposition that, with exceptions, crime
          requires a culpable mental state and that the mental state must


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          relate to the elements of conduct, result and attendant
          circumstances as set out in the statute defining the offense.

          Subsections 2 to 5 define the four basic culpable mental states.
          These four cover nearly all the mental states that are needed. There
          may be a specific crime that will require its own peculiar mental
          element but these four cover nearly all, and perhaps all, of the
          variety of terms in the present statutes. [our emphasis]

      To sum up:

           Consistent with § 562.016, its official comment, and Carson, resisting
            arrest requires a culpable mental state and § 575.150.1 sets it out.

           Although that mental state (“reasonably should know”) is not one
            specifically listed or defined in § 562.016, the latter “does not exclude
            any specific mental state …. [and] expressly says that ‘the statute
            defining the offense’ indicates the culpable mental state for an offense.”
            Carson, 941 S.W.2d at 522.

           It was not beyond the legislature’s power to choose this culpable mental
            state. Munson, 714 S.W.2d at 522.

      Point II fails.

                        Point I – Sufficiency of the Evidence

      Marshall challenges the sufficiency of proof that he knew or reasonably should

have known that a law enforcement officer was attempting to arrest him. We must

determine whether such evidence and reasonable inferences were sufficient for

reasonable jurors to find Marshall guilty beyond a reasonable doubt. Sprofera, 427

S.W.3d at 832. As previously noted, we credit all evidence and reasonable inferences

tending to prove guilt and ignore all those to the contrary. Id.

      Marshall urges that the state did not prove that Marshall heard Officer Hickey

say that Marshall was under arrest. That would be a burden higher than the law

places on the state, which need not even prove “you are under arrest” was said if




                                           4
circumstances otherwise indicate that the officer was attempting an arrest. State v.

Chamberlin, 872 S.W.2d 615, 619 (Mo.App. 1994).

      The evidence and reasonable inferences, when viewed favorably to the verdict,

support the conviction. Reasonable jurors could have believed that Marshall heard

Officer Hickey shouting that Marshall was under arrest, or should have known that

the other officers chasing him on foot and in squad cars wanted to arrest him, or that

a domestic violence suspect who fled this way was seeking to avoid arrest. We deny

Point I and affirm Marshall’s conviction.




DANIEL E. SCOTT, P.J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS




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