1 STATE OF MISSOURI, ) ) Plaintiff

- Respondent, ) )

v. ) No. SD36469 ) KURTIS EDWARD AUSTIN, ) Filed: December 8, 2020 ) Defendant

- Appellant. )

APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY
Honorable Robert N. Mayer AFFIRMED

Kurtis Edward Austin ( “ Defendant ” ) appeals his conviction after a jury trial of one
count of resisting a lawful stop. 1 His sole point on appeal claims the trial court erred in
denying his motion for judgment of acquitt al at the close of the evidence because the
evidence adduced at trial was insufficient to prove that Defendant knew, beyond a
reasonable doubt, why the officer was attempting to pull Defendant over. Because such
knowledge is not a n element of the offense charged , we affirm.
On March 13, 2019, Deputy Andrew Conley ( “ Deputy Conley ” ) was on patrol in his
conspicuously

- marked vehicle that included large sheriff markings and an overhead light
bar. He was also wearing his uniform and gun belt. Just before 9: 00 p.m., Deputy Conley
noticed a black Nissan passenger car with what he believed to be illegally

- dark window

1 Section 575.150. Unless otherwise noted, all statutory citations are to RSMo 2016.2 tinting. The vehicle was also “ failing to maintain the right half of the roadway. ” Deputy
Conley activated his lights and siren to initiate a st op, but Defendant increased his speed to
approximately 100 miles per hour as he sped away.
Officer Jerry Gentry ( “ Officer Gentry ” ) was in his full uniform, standing outside of

his patrol vehicle on Main Street. He also attempted to pull Defendant over b y using his
flashlight to motion Defendant to stop. Defendant, still traveling at 100 miles per hour,
narrowly missed hitting Officer Gentry as he sped by him. Defendant further increased his
speed to 120 miles per hour as he entered the highway. Due t o the dangerously high speeds
that would be necessary to continue the chase, Officer Conley terminated his pursuit at that

point.

Defendant crossed over into Arkansas and wrecked the vehicle. Arkansas authorities
took Defendant into custody and eventual ly contacted Officer Conley. Officer Conley

traveled to Arkansas and met with Defendant, who confirmed that he was the driver of the
vehicle that Officer Conley had been pursuing.

“To determine whether the evidence presented was sufficient to support a conviction ..., this Court does not weigh the evidence but rather accept[s] as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict.” State v. Clark , 490 S.W.3d 704, 707 (Mo. banc 2016) (alteration in o riginal). The Court will “ignore all contrary evidence and inferences.” State v. Latall , 271 S.W.3d 561, 566 (Mo. banc 2008). “Evidence is sufficient to support a conviction when there is sufficient evidence from which a reasonable [fact

- finder] might h ave found the defendant guilty beyond a reasonable doubt.” Clark , 490 S.W.3d at 707 (quotation omitted).

State v. Shaw , 592 S.W.3d 354, 357 (Mo. banc 2019).
Defendant’s sole point claims the trial court erred in overruling his motion for
judgment of a cquittal because the evidence was insufficient to support his conviction of
resisting a lawful stop because “the evidence did not prove beyond a reasonable doubt that3 [Defendant] knew or reasonably should have known that the police were seeking to stop his
car for having windows tinted darker than the law allows and failing to maintain his vehicle
on the right half of the roadway[.]” We disagree.

As pertinent here, section 575.150 provides:

1. A person commits the offense of resisting or interfering with a rrest, detention, or stop if he or she knows or reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or stop an individual or vehicle, and for the purpose of preventing the officer from effecting the a rrest, stop or detention, he or she:

(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;

. . . .
3. A person is presumed to be fleeing a vehicle stop if he or she continues to operate a motor vehicle after he or she has seen or should have seen clearly visible emergency lights or has heard or should have heard an audible signal emanating from the law enforcement vehicle pursuing him or her.

Defendant a rgues that the verdict director submitted to the jury required the
State to prove that Defendant knew why law enforcement officers were attempting to

stop his vehicle. While that is true, it does not help Defendant because such
knowledge is not an element of the crime Defendant was accused of committing.

State v. McCauley , 528 S.W.3d 421, 429 (Mo. App. E.D. 2017) (“[A] defendant’s
knowledge of the basis for his detention is not an element of the offense of resisting

a lawful detention”). Instructional er ror violates a defendant’s right to due process if
the instruction “relieves the State of its burden to prove the existence of every

essential element of the crime[.]” State v. Henderson , 551 S.W.3d 593, 600 (Mo.
App. W.D. 2018). The very opposite of tha t occurred here.4 In requiring the jury to find that Defendant knew or reasonably should have

known why officers were trying to pull him over, the State assumed an unnecessarily
higher burden, not a lower one. See McCauley , 528 S.W.3d at 429. The only

knowledge requirement for the crime of resisting a lawful stop “is that [D]efendant
knew or reasonably should have known that a law enforcement officer is making an
arrest or attempting to lawfully detain him

. ” Id. ( ci ting section 575.150.1) (internal

cita tion omitted) , and Defendant does not claim that such evidence was lacking here.
Defendant’s point is denied, and the judgment of the trial court is affirmed.

DON E. BURRELL, J.

– OPINION AUTHOR

JEFFREY W. BATES, P. J.

– CONCURS IN SEPARATE OPINIO N

MARY W. SHEFFIELD, J.

– CONCURSSTATE OF MISSOURI, ) ) Plaintiff

- Respondent, ) )

v. ) No. SD36469 ) Filed: December 8, 2020 KURTIS EDWARD AUSTIN, ) ) Defendant

- Appellant. )

APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY
Honorable Robert N. Mayer

CONCURRING OPINION
I concur in the principal opinion. I write separately to caution judges and attorneys

not to use MAI

- CR 4 th 429.61 without first modifying it to accurately follow § 575.150 and

the case la w applying the statute

. 1

Austin argued on appeal that the State had to prove he “knew or reasonably should

have known of the basis for the stop

.... ” This factual finding was included as the fifth
paragraph of Instruction No. 5, the verdict

- directing instru ction submitting the offense of
resisting a lawful stop. Instruction No. 5 was patterned after MAI

- CR 4 th 429.61. The

1 All ref erences to MAI

- CR 4th are to the 2019 edition. All references to § 575.150 are to RSMo (2016).2 principal opinion correctly holds that a defendant’s knowledge of the basis for the stop is not

an element of the offense. See § 575.15 0 . The eastern district of this Court reached the

same conclusion in State v. McCauley , 528 S.W.3d 421, 429 (Mo. App. 2017). 2

The fifth paragraph of MAI

- CR 4 th 429.61 requires the jury to find “that defendant
(knew) (or) (reasonably should have known) of the basis for the (stop) (detention) ....” Id

. This finding is not required by § 575.150 or the case law applying the statute. When an

approved instruction conflicts with a statute, the statute prevails. State v. Taylor , 238
S.W.3d 145, 148 (Mo. banc 200 7) ( holding that MAI

- CR 3d 320.01 was not correct because
it included a required finding as to venue, which was not an element of the offense in

§ 566.030 RSMo (2000))

. This bedrock principle is explicitly recognized in MAI

- CR 4 th
, which states that “[f]o r crimes occurring after January 1, 2017, care also must be taken to
insure that no change by statute or court decision has been made that requires that the

instruction be modified or not used .” MAI

- CR 4 th
, “How to Use This Book” at 31

. Therefore, MAI

- CR 4 th 429.61 should only be given after it is modified to omit the
unnecessary fifth paragraph.

JEFFREY W. BATES, C.J./P.J.

– CONCURRING OPINION AUTHOR

2 In McCauley , the verdict

- directing instruction required the jury to find that the defendant knew or should have known of the basis for his detention. McCaul ey , 528 S.W.3d at 429

. The eastern district held that “whether or not McCauley knew this fact is of no consequence because it is not a fact the State was required to prove.” Id

.