STATE OF MISSOURI v. VICTOR LAMONT HOUSTON (2026)

Victor Lamont Houston (“Houston”) appeals from the circuit court's judgment convicting him of the class A misdemeanor of resisting a lawful detention. See section 575.150, RSMo (2016) (eff. Jan. 1, 2017). Houston contends in two points that the circuit court erred in submitting the State's verdict director for this offense, because said submission violated his right to due process, in that the verdict director did not comply with Missouri Approved Instructions–Criminal (“MAI–CR”) 4th 429.61 (eff. July 1, 2017), as it did not require the jury to find facts that, if true, would make his detention lawful. Houston's two points differ only as to whether the appropriate remedy includes remand for a new trial. Because we agree with Houston's contention that the circuit court erred, and because we conclude that remand is appropriate, we vacate Houston's conviction and remand for further proceedings consistent with this opinion.

Legal Background

“A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute essential elements of [the] offense charged.” State v. Cooper, 215 S.W.3d 123, 125 (Mo.App. 2007) (alteration in original) (internal quotation marks and citation omitted). “A violation of due process arises when an instruction relieves the State of its burden of proving each and every element of the crime and allows the State to obtain a conviction without the jury deliberating on and determining any contested elements of that crime.” Id. at 126. Insofar as is relevant here, the offense at issue requires that a person resists when a law enforcement officer is “attempting to lawfully detain or stop” an individual or vehicle. Section 575.150.1. In other words, a stop or detention “must be lawful as a matter of law in order for its resistance to constitute an offense.” State v. Steward, 608 S.W.3d 184, 192 (Mo.App. 2020).

This requirement is reflected in paragraph Fourth of MAI–CR 4th 429.61.2, the model jury instruction for the offense of resisting (other than by flight) a lawful stop or detention (stating that the paragraph must provide “the basis for the (stop) (detention) was [Insert facts that if true would make the stop or detention lawful]”). According to the instruction's Notes on Use:

This instruction covers resisting or interfering with a lawful stop or detention. By statute, the stop or detention must be a lawful stop or detention for a felony, misdemeanor, infraction or ordinance violation. When using this instruction, the court determines the question of law as to whether the facts being submitted in paragraph Fourth constitute a lawful basis for the stop or detention. The question of whether those facts exist is for the jury.

MAI–CR 4th 429.61, Notes on Use para. 2.

Factual and Procedural Background

The following evidence is included below to provide context for our analysis. The State's only witness, Officer Holly Counts (“Officer Counts”) with the Springfield Police Department, testified that she responded to a 911 call alleging that Houston had parked his car down the street from the home of his ex-fiancée, who had an ex parte order of protection against him. Officer Counts was unable to confirm through police resources, however, whether Houston had been served with the ex parte order of protection yet. Having located the vehicle described in the 911 call, which appeared as though it was about to drive away, Officer Counts activated her patrol car lights and initiated a traffic stop. Officer Counts confirmed that Houston was the driver of the vehicle, and she informed him that the purpose of the stop was to serve him with an ex parte order of protection. Officer Counts then saw what appeared to be the ex parte order of protection on the passenger seat of the vehicle. Because of various circumstances not relevant here, Officer Counts ordered Houston out of the vehicle and placed him in handcuffs. At certain points during this encounter, Houston acted in ways that could qualify as resistance to Officer Counts’ directives and actions.

The State's verdict director for the offense of resisting a lawful detention, which was patterned after MAI–CR 4th 429.61.2, was offered, submitted, and instructed the jury, in toto, as follows:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about November 9, 2023, in the State of Missouri, Holly Counts was a law enforcement officer, and

Second, that Holly Counts was attempting to detain defendant, and

Third, that defendant knew or reasonably should have known that a law enforcement officer was attempting to detain defendant, and

Fourth, that the basis for the detention was for service of a court order, and

Fifth, that for the purpose of preventing the law enforcement officer from making the detention, the defendant resisted by using or threatening the use of violence, physical force, or physical interference,

then you will find the defendant guilty of resisting a lawful detention.

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.

(Emphasis added.)

Prior to submission, Houston objected to the aforementioned verdict director, arguing that “service of a court order” was not a lawful basis for a detention. Houston also offered a verdict director containing the alternative language under paragraph Fourth “that the basis for the detention was for reasonable suspicion of a violation of an order of protection[.]” In response, the State referred to the “community caretaking” functions of police officers and argued that this function serves as an exception to the Fourth Amendment's warrant requirement and provides a lawful basis to detain an individual to effectuate the service of a court order. After considering the parties’ arguments, the circuit court overruled Houston's objection and submitted the State's verdict director.

On the first day of Houston's trial, the jury retired to deliberate at 4:47 p.m. After an hour, the jury asked to review Officer Counts’ body camera footage and asked that the term “detention” used in the verdict director be defined. Less than an hour later, the jury asked what they should do if they were stuck at a 10-2 vote on the verdict. Fifteen minutes later, the circuit court discharged the jury for the evening and instructed them to return in the morning for further deliberations. The next morning, the jury started deliberations at 8:44 a.m. and reached a verdict at 11:39 a.m., finding Houston guilty as charged.

Thereafter, Houston raised his objection to the State's verdict director again in a motion for a new trial. Ultimately, the circuit court denied this motion and issued a judgment convicting him of said offense and sentencing him to three-hundred days in jail.

Discussion

Houston timely appeals his conviction, taking issue only with paragraph Fourth of the State's verdict director. As he argued below, Houston disputes the State's argument that law enforcement may lawfully detain someone for “service of a court order” under the guise of their “community caretaking” function. Thus, according to Houston, paragraph Fourth of the State's verdict director relieved the State of its burden to prove his detention was lawful. We agree.

As relevant here, “[t]he Fourth Amendment to the United States Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures.” State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004); see also State v. Ross, 254 S.W.3d 267, 273 (Mo.App. 2008) (stating that “Missouri's constitutional protection against unreasonable searches and seizures, found in Article I, Section 15 of the Missouri Constitution, is coextensive with that provided by the Fourth Amendment of the United States Constitution”). “Generally speaking, a search or seizure without a warrant is unreasonable unless the circumstances bring it within a well-recognized exception.” State v. Beck, 436 S.W.3d 566, 568 (Mo.App. 2013).

“Generally, there are three categories of police-citizen encounters: (1) a consensual encounter; (2) an investigative detention requiring only reasonable suspicion based upon specific articulable facts; and (3) an arrest requiring probable cause.” State v. Long, 599 S.W.3d 908, 914 (Mo.App. 2020). No party asserts that “service of a court order” falls into any of these well-established categories. The State relies on an altogether different category: the community caretaking functions of law enforcement.

As our high court has recognized, “[i]nsisting that every encounter be based on suspicion of criminal activity ignores law enforcement officers’ community caretaking functions.” State v. Schroeder, 330 S.W.3d 468, 473 (Mo. banc 2011). In that opinion, our high court quoted from an opinion of the Supreme Court of the United States, which described these functions as follows:

Some [police-citizen] contacts [involving automobiles] occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers ․ frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Id. (alterations in original) (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)).

The State relies on the aforementioned language from Cady, 413 U.S. at 441, and later cases, like Schroeder, discussing the extent to which the community caretaking functions of law enforcement do not infringe on the Fourth Amendment. See, e.g., Schroeder, 330 S.W.3d at 473 (stating that “[u]nder the Fourth Amendment, a law enforcement officer may approach a vehicle for safety reasons, or if a motorist needs assistance, so long as the officer can point to reasonable, articulable facts upon which to base his actions”). The State nevertheless acknowledges in its brief that “there is no statute or caselaw to [its] knowledge” addressing such community caretaking functions in the context of the “service of a court order” like the ex parte order of protection in the instant case.

This Court's research, however, has revealed U.S. v. Wertenberger, No. 20-00203-01-CR-W-DGK, 2021 WL 3877686 (W.D. Mo. Aug. 10, 2021) (Report and Recommendation of Mag. J. Gaddy). In that case, the defendant moved to suppress incriminating evidence uncovered during a traffic stop in Buchanan County, Missouri. Id. at *1. The Federal Government did not contend that the traffic stop was in response to any traffic offense or violation. Id. at *6. Rather, one of the Federal Government's arguments was that “the community caretaking exception to the Fourth Amendment warrant requirement justified the stop of the vehicle to obtain custody of [a] child as provided for in [a] full order of protection.” Id.

In addressing this argument, the magistrate judge noted that “[m]ost decisions involving the community caretaking exception have involved police responding to an emergency situation” and cited caselaw setting out that a law enforcement officer must have a “reasonable belief” that an emergency exists in order to act under said exception. Id. The magistrate judge also referenced a recent opinion by the Supreme Court of the United States, Caniglia v. Strom, 593 U.S. 194 (2021), which discusses the Cady opinion, cited supra, at length. Wertenberger, 2021 WL 3877686, at *7. Caniglia states that the acknowledgement in Cady of “caretaking” duties was not meant to create a standalone doctrine that justified a warrantless search and seizure of a home. Caniglia, 593 U.S. at 196. Caniglia further states that “this recognition that police officers perform many civic tasks in modern society was just that—a recognition that these tasks exist, and not an open-ended license to perform them anywhere.” Id. at 199. According to the magistrate judge, although the Caniglia case involved the warrantless search of a home, “a fair reading of the opinion calls into question whether community caretaking is a standalone exception to the Fourth Amendment warrant requirement in those circumstances beyond the search of a home.” Wertenberger, 2021 WL 3877686, at *7.

Whether a standalone exception or not, the magistrate judge considered if it applied to the facts of the case before it and held that the Federal Government “has not provided sufficient evidence to establish the deputies’ actions were permitted under the community caretaker exception.” Id. As relevant here, “the deputies had been asked to assist in serving the full order of protection.” Id. at *8 (emphasis added). The deputies, however, were unaware of the underlying facts giving rise to the full order of protection and, “[b]ased on the deputies’ limited factual information, they did not have a “reasonable belief” that an emergency existed, permitting them to stop the vehicle under a community caretaking exception to the warrant requirement.” Id.

In so ruling, the magistrate judge also addressed a case, Commonwealth v. Sanborn, 77 N.E.3d 274 (Mass. 2017), that Houston also cites in his appellate brief. Wertenberger, 2021 WL 3877686, at *8. The magistrate judge noted that, in Sanborn, the majority opinion “held the state civil abuse statutes did not authorize the police to effectuate a motor vehicle stop simply to serve a civil abuse prevention order.” Id. (citing Sanborn, 77 N.E.3d at 276-77). “Instead, the majority opinion states the civil abuse statutes do not authorize a traffic stop absent a constitutional justification, such as a warrant, reasonable suspicion of criminal activity, a traffic violation or a reasonable belief that an emergency intervention is required.” Id. (citing Sanborn, 77 N.E.3d at 276-77).

Ultimately, however, the magistrate judge found in favor of the Federal Government based upon its alternative argument—that the traffic stop was permissible under the Fourth Amendment as an investigatory detention based upon reasonable suspicion that the defendant was in violation of the full order of protection. Id. at *8-*11. Thus, the magistrate judge recommended denying the defendant's motion to suppress. Id. at *12.

Returning to the instant case, it is unnecessary to address whether Officer Counts had a reasonable belief that an emergency existed or whether she had reasonable suspicion of the violation of a court order. Both such justifications were ultimately rendered irrelevant to the jury's decision-making because the State's verdict director required the jury to find only that the basis for the detention was for “service of a court order[.]” As the magistrate judge in Wertenberger determined, a detention made solely on such a basis runs afoul of the Fourth Amendment. See id. at *8. We find said determination to be persuasive, especially so in light of the fact that the magistrate judge's report and recommendation was adopted by the district court, even despite an objection from the Federal Government to the legal conclusion that the traffic stop there at issue was not justified as a community caretaking function. See U.S. v. Wertenberger, No. 4:20-cr-00203-DGK, 2021 WL 3877684, at *1 (W.D. Mo. Aug. 30, 2021) (Order Adopting Report and Recommendation and Denying Motion to Suppress). In short, we conclude that the State's verdict director, to which Houston properly objected, did not comply with MAI–CR 4th 429.61, in that it did not provide a lawful basis for his detention.

“The giving of an instruction in violation of the Notes on Use under MAI–CR constitutes error, its prejudicial effect to be judicially determined.” State v. Anderson, 306 S.W.3d 529, 534 (Mo. banc 2010) (citing Rule 28.02(f), Missouri Court Rules (2010)). “Further, if a proper timely objection is made, the giving of an instruction in violation of MAI–CR is presumptively prejudicial unless the contrary is clearly shown.” Id. “However, reversal is only warranted when the instructional error is so prejudicial that it deprived the defendant of a fair trial.” Id.

The State argues that Houston was not prejudiced, comparing the instant case to State v. Ganaway, 624 S.W.3d 361 (Mo.App. 2021). Ganaway involved a variance between the indictment (containing a resisting-arrest-by-fleeing charge) and the verdict director (containing a resisting-a-lawful-stop-by-fleeing charge). Id. at 367. The issue was whether this variance affected the defendant's ability to adequately defend against the charge set out in the verdict director. Id. at 368. Because the defendant's defense that he did not know if or why the officers were trying to stop him would, if the jury had believed it, have provided a defense to either resisting an arrest or resisting a lawful stop, the aforementioned variance did not prejudice his defense. Id. at 368-69. The State argues that, not only did Houston assert a similar defense, but that the jury was exposed to facts that would have supported a guilty finding under Houston's proposed but rejected verdict director.

We fail to see how Ganaway is in any way analogous to the instant case. Here, the State was relieved of its burden, by way of the submitted verdict director, to prove an essential element of the offense charged. No such essential element was absent from the verdict director in Ganaway. Additionally, even if the jury in the instant case might have been able to find Houston guilty based upon the facts adduced at trial under a different but proper instruction, we cannot presume it would have actually done so. Cf. Steward, 608 S.W.3d at 196 (stating that “a trial court cannot rely on requisite facts that the jury might have found—but did not have the chance to consider and so did not find—to enhance the penalty for an offense from a misdemeanor to a felony”). In sum, we are unconvinced by the State's arguments that this error did not deprive Houston of a fair trial.

The only issue that remains is the appropriate remedy. In his first point, Houston compares the instant case to State v. Stevenson, 658 S.W.3d 115 (Mo.App. 2022). In that case, the State charged the defendant with the offense of resisting an arrest for a felony by using or threatening physical force, a class E felony. Id. at 118. Yet, at trial, the State did not submit a verdict director for this charged offense; instead, it submitted the MAI–CR 4th 429.61 verdict director for the class A misdemeanor of resisting a lawful detention, and the jury found the defendant guilty of said offense. Id. at 119. The circuit court, however, convicted the defendant of and sentenced him in accordance with the offense originally charged—the class E felony of resisting an arrest for a felony by using or threatening physical force. Id. at 119-20.

This Court held in Stevenson that the circuit court plainly erred in its “sentencing” because the seven-year sentence imposed exceeded the maximum punishment authorized by law and also in “entering a written judgment against [the defendant] for the class E felony of resisting arrest” because, as already noted, the jury found him guilty of the class A misdemeanor of resisting a lawful detention. Id. at 123. Additionally, we disagreed with the State that the correct remedy involved “remand for a retrial with the correct instruction.” Id. We noted that “[i]t is well settled that a party cannot complain about an alleged error invited by the party's conduct at trial” and the remedy consistently applied in similar cases is to remand to the circuit court for resentencing within the correct range of punishment. Id.

Based upon Stevenson, Houston argues that the State “invited” instructional error in the instant case and, therefore, this Court should “discharge” him from the offense of resisting a lawful detention. We disagree. Unlike the instant case, Stevenson did not involve a claim that the verdict director for resisting a lawful detention, which was submitted in that case, violated MAI–CR 4th 429.61 in any way. See id. at 120. Rather, the defendant claimed, and this Court agreed, the circuit court erred in basing its sentencing and judgment that followed on an offense never submitted to the jury. Id. at 120-23. Here, in contrast, Houston has raised a successful claim of instructional error and, as he rightly concedes in seeking an alternative remedy under his second point, “[t]he general rule is that the remedy for instructional error is to remand the case for a new trial.” State v. Neal, 328 S.W.3d 374, 383 (Mo.App. 2010). Accordingly, we deny Houston's first point and grant his second point.

Decision

The circuit court's judgment is vacated and the case is remanded for further proceedings consistent with this opinion.

BECKY J. WEST, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – Concurs MATTHEW P. HAMNER, J. – Concurs