¶1concurring.
¶2I concur with the Courts analysis in regard to the admission of the blood alcohol evidence.
¶3I reluctantly concur with the Courts result as to the resisting arrest conviction.
¶4Instruction No. 19, which is MAI-CRBd 329.60.2, was given to the Jury as Follows:
Instruction No. 19
As to Count V, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about June 1, 2002, in the County of St. Louis, State of Missouri, James Livingston was a law enforcement officer, and
Second, that James Livingston was making an arrest of the defendant for assault of a law enforcement officer in the first degree, and
Third, that defendant knew or reasonably should have known that a law enforcement officer was making an arrest of defendant, and
Fourth, that for the purpose of preventing the law enforcement officer from making the arrest, the defendant resisted by using or threatening the use of violence or physical force, then you will find the defendant guilty under Count V of resisting arrest.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
MAI-CR3d 329.60.2
Submitted by the State
¶5By this instruction the Jury had to believe beyond a reasonable doubt that James Livingston was making an arrest of defendant for assault of a law enforcement officer. The prosecutor failed in eleven pages of testimony of Officer Livingston, to ask the officer what the basis of the arrest was. In fact there is no testimony that Livingston placed defendant under arrest at all. An odd lack of testimony as the information was also based on Livingston’s conduct of the arrest. The only testimony at all in regard to Officer Livingston’s intention was in answer to a leading question by counsel which the Court accurately reflects in its discussion of Livingston’s testimony.
¶6Simply, there is no evidentiary basis for the giving of Instruction # 19, and the resisting arrest charge must be reversed. We need not inquire further into the subtleties of the resisting arrest statute and the morass of the cases. The discussion of resisting arrest is dicta. Further, reliance on State v. Brooks, 158 S.W.3d 841 (Mo.App.E.D.2005) is misplaced in any case where the State pursues felony resisting as in BrooksId. the State conceded that there was only misdemeanor resisting thus all the conclusions drawn in Brooksconcerning resisting arrest are likewise dicta.