*1 573, (Mo.App.1983). will, by police We neverthe- heard a “that he had a less, appellant’s point couple review gratia. privileged ex of beers” was communi physician patient. Ap cation between and Appellant apparently believes that pellant privilege cannot in re assert allowing court abused its in discretion a spect to this statement overheard Offi pharmacist testify a medical in during appellant’s cer Beach treatment presented doctor should have the evidence. emergency room. The facts of qualification expert The of an is a instant case are similar to those in v. State matter that lies within the discretion of a Lewis, In supra. Lewis a state Mallett, supra, trial court. v. State incriminating overheard statements made qualifies S.W.2d at 537. witness as an “[A] by the while the defendant defendant was if, expert special reason of education or treating being injuries. treated for his experience, possesses superior knowl physician testify was allowed to as to what edge respecting subject per a about which In said. Id. at 187. the instant particular training sons who have no are party, case the third in the incapable forming of an accurate or room, emergency testified as to what drawing correct conclusions.” v. overheard. The same rationale that Jordan, (Mo.App. 77-78 applied allowing Lems court in the doctor 1988). In the instant case in the witness testify applies here. The disclosure com question, Watson, Dr. William A. was emi plained of in the instant case was made nently qualified. publicly freely presence of a Beach, party, third
Dr. Watson is a Officer and the state profes- clinical associate ment was not to treatment. sor the school of medicine at the Univer- sity privi these a of Missouri at circumstances waiver of the City Kansas and Tru- lege Scott, occurs. v. man Medical Center. He See State holds a Doctor of (Mo. 1973). Pharmacy degree, Appellant’s banc degree a similar in na- Accordingly, judg III ture that of a Point is denied. Doctor of Medicine in that they ment is affirmed. primarily degrees. clinical He is licensed three states and teaches under
the Practice Act in the State of Missouri. All concur.
He has been licensed to run a clinical toxi-
cology lab the state of New York. He is
associated with the Southwestern Associa- Toxicology, Academy
tion of the American Toxicology, Fellowship Clinical Toxicology
the Center of and has trained Regional
with the Intermountain Poison Control Center. Dr. Watson has authored Missouri, STATE publications relating number Plaintiff-Respondent, drug including overdoses alcohol. He has published “The abstract entitled Intoxi- Motorcycle A Comparison cated Driver: LONG, Defendant-Appellant. R. William Motorcycle and Car/Truck DWI’s.” No. 16895. short, Dr. Watson knows what he is talking of alcohol in about—the metabolism Appeals, Missouri Court of (cid:127) beings, subject normally human with- District, Southern juror’s knowledge. in the bounds of a Division Two. of discretion in allow- There was no abuse Jan. testify appellant’s Dr. Watson to Point II is denied. appellant’s he com final him,
plains that a statement made over *2 question in
cause we answer the second affirmative, it is not to decide the first one. The conviction of the defen- dant is reversed and we order that he be discharged.
FACTS Highway At Missouri State Patrol James Portman testified driving Highway west on DD in Dallas County mile of the about one-half west Highway county intersection of DD with DD70 when he saw the defendant’s east-bound white-over-maroon 1959 Ford pickup expired plate. truck license Portman did not know the defendant. He not, sight- he could on initial said based his him, pick line-up. him out of a Portman turned his car around to follow and the defendant’s truck. ac- pickup When he noticed the truck was celerating, turned on his red pick- lights at which time he estimated the up yards county road to be 200 west of at pickup DD70. The truck turned south a speed gravel-sur- faster than onto normal DD70, pursued it down faced and Portman Shaffer, Buffalo, turning George Shortly A. for defen- road DD70. dant-appellant. the siren on onto Portman activated his vehicle. The estimated Rieschel, Buffalo, Wayne plaintiff- K. DD70 at 60 to 65 pickup speed truck’s respondent. accelerating, MPH. Because Portman was “pace” he was unable to SHRUM, Judge. speed. determine its exact Long appeals R. The defendant William conviction, driveway pulled into a at his in a court-tried The defendant farm, Hoogland place employ- A his class misdemeanor ment, Highway DD. charged 1.2 miles south of The state in its information a getting out of his truck highway patrolman making an arrest The defendant was asked register a as the officer arrived. The officer of the defendant for failure problem was.” annually, and the defendant “what motor objection, the defendant’s knowing that the officer was Over replied he did not by fleeing. testified the defendant resisted arrest We Portman testified questions: Whether have a driver’s license. asked to decide two stop, he minutes after the variance between the that within five there was a fatal charges: three arrested the defendant on charge and the evidence adduced state’s license, “Driving a valid driver’s state failed to without trial and whether the plate1 Be- with an element of the offense. an essential (§ 301.130.7), plates or the record whether the set of license It is unclear from plates his license charged affix the annual (§ 301.130.8). tabs on with failure to brief, state, 1986), (§ advises us annually motor vehicle legal charge displaying operating that “the of failure a motor vehicle without by fleeing in a motor ve- the court shall have the force and effect of hicle.” 27.01(b). Portman testified the defendant did jury. the verdict of a Rule Ac- not resist after he advised him he was cordingly, appellate of this case is review under transporting arrest. After the de- though guilty a verdict of was returned *3 county jail, fendant to the Portman read jury, and if there is substantial evi- him the warning. Miranda The defendant support findings dence to of the trial just get then told the “he wanted to court, judgment is to be affirmed. the vehicle home.” Portman testified that 128, (Mo. 130 Giffin, State v. 640 S.W.2d jail, while at the he overheard the defen- 1982); Edsall, S.W.2d telling dant his sister that “when he saw (Mo.App.1989). determining the suffi- lights come on ... he turned on the [the] evidence, ciency accepts this court as gravel road and headed for home.” tending prove true all evidence the de- together guilt, fendant’s with inferences questioned extensively
Portman was favorable to the state that can be reason- about when he formed an intent to arrest therefrom, ably disregards and all drawn the defendant. At the time he first saw contrary and inferences. Giffin, evidence pickup and turned his 130; Edsall, 781 S.W.2d at around, Portman said it was his intention “to investigate and
apparent violation of motor annually.” Asked he when ANALYSIS AND DECISION made the actually place decision “to this alleges point The defendant on this particular subject opposed under arrest as appeal that the trial court erred because might to what be a normal detention in a prove the state failed to all the elements of stop,” routine traffic responded, Portman 575.150, RSMo 1986. The defendant’s § “when I actively fleeing determined he was argument is two-fold: the state failed to from me.” Portman said his location at prove Trooper Portman intended to arrest that time was on about flight present him did not one-quarter mile south of DD. On redirect evidence that the defendant knew examination, distinguished Portman said he making an arrest. pull between motorists who over and those try get away who from him when decid- argument We find that the first ad ing whether to make an “I arrest. arrest vanced the defendant is sound. Section people me,” who flee from he testified. pertinent reads in case, At the end of the state’s the defen- part: judgment dant acquittal moved for a person “1. A the crime of commits contending prove the state did not the de- if, resisting knowing ... arrest that a making fendant knew Portman was an ar- enforcement is law officer rest and the state did not arrest, purpose preventing for the began intended to make an arrest he effecting arrest, officer from he: of the defendant. The court (1) of himself Resists ... took the motion under advisement and later fleeing from such officer....” it. overruled language It is clear from the of the statute SCOPE OF REVIEW Assembly that the of Missouri in- General flight prohibit tended to as one of several appeal In his consider which we resisting gravamen dispositive, challenges means of sufficiency of the offense is of the state’s evidence. findings
court-tried criminal
from a law enforcement officer.2 It
38.04(a)
annually
commonly
motor vehicle
is
referred to
examined Tex.Penal Code Ann.
provides:
person
plate.”
“A
commits an offense
which
with an
intentionally
person
if he
flees from a
he knows
State,
(Tex.
peace
2. See Jackson v.
violated 575.150. The statute creates the § PARRISH, P.J., separate dissents crime of by flight; it does opinion. not create the crime of fleeing from a PARRISH, Presiding Judge, dissenting. traffic stop where no arrest was intended principal opinion I dissent. The points until commenced. that, out pertinent the facts of this While the decisions of other states are case, the misdemeanor offense of controlling, they persuasive arrest includes two elements—that a law the facts are similar. Cherry Manor v. enforcement officer intended to arrest de- Care, Inc., American Health fendant, knowing (Mo.App.1990). State, officer intended to make an Smith v. fled 575.150.1(1).1 from the officer. (Tex.Crim.App.1987) (en S.W.2d 848 showing finds that there banc), was no the court upon was called to decide part Trooper intent on the (see whether Tex. Penal Code Ann. 38.04 because, to arrest 2) footnote was violated when an individual began fled from an officer attempt- who was not car, *5 trooper only defendant’s the in- ing to arrest him but was attempting stop investigate tended to the car to an stop to investigation him for purposes. apparent of violation to The Texas statute, court held that the sim- finding, opin- motor vehicle. From that the in language ilar ion that prove concludes the state did not was not violated under such circumstances trooper that the intended to arrest the de- because the offense “does not occur unless prior fendant flight and finds that and until an peace individual flees from a does not create the crime of “[§ 575.150] officer who at that moment in time is fleeing from a traffic where no arrest Smith, to arrest him.” 739 was intended until flight com- (emphasis added). S.W.2d at 850 Thus, the added.) (Emphasis menced.” Texas court reached the same result as I do necessary that it was believe for that reached the court in Wanner in Trooper Portman to have intended to arrest similar fact involving comparable situations trooper began the defendant before the statutes. i.e., vehicle, of the prior defendant’s attempts apprehen- defendant’s to avoid Because of Wanner, our view that my opinion, sion. testimony particular S.W.2d and the facts of this Trooper Portman in which he stated that he reversal, require case we need not address developed the intent to arrest the defen- the defendant’s contention that the state determining dant after that the defendant prove failed to knew fleeing from him was sufficient However, an arrest. we cau- establish the first element of the offense of tion that this authority is not flight arrest. Defendant’s proposition person that a who uses a ongoing. I believe all that was pursuing motor vehicle to flee a officer trooper satisfy in order for the the first may violating never be convicted of element of the offense was for the 575.150.4 to form an intent to arrest the defendant judgment The is reversed and the defen- during pursuit, prior but to defendant’s discharged. dant is ordered arrest. During might outstanding
4. some crime come to tion that there is arrest warrant and, pursuing the attention of the in hypothetical examples for him. These stand in situation, such a the officer could form the stark contrast to the case before us in which the during flight. example, intent to arrest For always “people officer testified he arrests who fleeing might person commit a crime in the flee from me.” presence arresting pursu- of the officer. Or the identity person aware of the of the 1. References to statutes are to RSMo 1986. flight, might through learn radio communica- principal effecting
The affirm v. opinion relies I would Wanner, (Mo.App.1988), decision of the court. trial proposition pur- for the that an officer contemplate
suit of a vehicle must an actu-
al arrest in order for the offense resist-
ing arrest Wanner to occur. is distin-
guishable Wanner from this case.
there was never an intent to arrest any
offender at to the offender
being during shot. In this course
of the before the defendant was developed
apprehended, Trooper Portman Missouri, Respondent, the intent to him. STATE principal opinion does not reach the charged— second element of the offense BORDELON, Randy Appellant. Lee offender, defendant, knowing the officer to make an intended No. WD 43178. that, fled from the Mindful officer. Appeals, Missouri Court determining evidence, sufficiency Western District. all appellate accepts as true evi- court tending the defendant’s dence Feb. guilt, together favorable to with inferences therefrom, state that can drawn I *6 be the element that defendant believe going to arrest him
knew the inferred conduct can be from defendant’s Allee, Columbia, Bryan appellant. for J. apprehension. De- avoid Gen., Webster, Eliza- Atty. William L. apprehension, fendant’s efforts to avoid Gen., Ziegler, Atty. Jefferson L. Asst. beth i.e., fleeing during the entire respondent. City, for Portman, includ- pursued Trooper were P.J., SHANGLER, Before appre- efforts to avoid whatever conscious FENNER, KENNEDY and JJ. Trooper was intended Portman. hension developed the in-
After contin- tent to ORDER fleeing trooper. Defendant’s from the ued actions, as shown from the evidence at PER CURIAM. per- sufficient, my opinion, to were rape, forcible from conviction of Appeal knowingly intend- mit the inference that 566.030.1, from a sen- had seen arrest. The defendant ed to avoid years imprisonment. tence of five on the activated lights had been 30.25(b). Rule Affirmed. nevertheless, automobile; he con- trooper’s speeds flee from the
tinued disregard per miles hour in
60 to 65 siren that disregard
lights and trooper turned onto after the activated supports conduct
county road DD70. This feared inference that a traffic tick-
something more than severe he fled
et—that Trooper Portman preventing
purpose