Opinion
No. WD 45858.
May 5, 1992.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, H. MICHAEL COBURN, J.
William H. Pickett, Kansas City, for appellants.
Jack W.R. Headley, Thomas A. Ryan, Kansas City, for respondent.
Before LOWENSTEIN, C.J., and BERREY and SPINDEN, JJ.
Dr. John Mattes and Marcia Longan Mattes appeal from an order of dismissal in favor of Mobay Corporation in an action for personal injury to Ms. Mattes allegedly arising out of her exposure to toxic chemicals while she was an employee of Mobay. The dismissal is affirmed.
The Matteses brought this action against Mobay on December 29, 1989, alleging both negligent and intentional tort. Mobay moved to dismiss for lack of subject matter jurisdiction, asserting that the Labor and Industrial Relations Commission ("LIRC") has exclusive subject matter jurisdiction under the Workers' Compensation Law, Chapter 287, RSMo 1986, for personal injuries suffered by accident arising out of and in the course of employment. In response, the Matteses raised a number of constitutional challenges to § 287.120 as applied by the Missouri Supreme Court in Killian v. J J. Installers, Inc., 802 S.W.2d 158 (Mo. banc 1991).
The Matteses assert that the United States and Missouri Constitutions require that the circuit court have jurisdiction to decide whether it or the LIRC has jurisdiction to decide the issues raised by a plaintiff. Pursuant to Killian, the LIRC has original jurisdiction over all injuries sustained in the course of employment. If the LIRC determines that the injury resulted from an accident, the commission retains jurisdiction over the matter. If, on the other hand, the commission determines that the injury resulted from an employer's intentional act, jurisdiction lies with the circuit court. Id. at 160-61. The question raised by the Matteses is, "Who decides who decides."
After the trial court sustained Mobay's motion, plaintiffs requested and were granted leave to file an early notice of appeal with the Supreme Court of Missouri, which court had exclusive appellate jurisdiction over plaintiffs' constitutional challenges. The issues raised by plaintiffs are that § 287.120 as interpreted by Killian violates: (1) the open courts provision, Mo. Const. art. I, § 14; (2) the Due Process clause of the Fifth and Fourteenth Amendments of the United States Constitution and Mo. Const. art. I, § 10; (3) the Equal Protection clause of the Fourteenth Amendment of the United States Constitution and Mo. Const. art. I, § 2; (4) the right to trial by jury, Mo. Const. art. I, § 22(a); and (5) Mo. Const. art. V, § 14, granting exclusive jurisdiction of all cases and matters to the circuit court.
While this case was making its way through the appellate system, another case, in which the identical issues and challenges were raised, was decided by the Supreme Court of Missouri. Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6 (Mo. banc 1992). The Court in Goodrum upheld Killian and ruled that § 287.120 did not violate any of the constitutional rights raised by the plaintiffs. The Court held that the LIRC, rather than the circuit court, has exclusive jurisdiction to determine whether claimant's injuries were the product of an accident or of an intentional act of the employer. Id.
The Matteses acknowledge that their legal arguments are "virtually identical" to those raised by the plaintiffs in Goodrum. After handing down the Goodrum decision, the Supreme Court of Missouri ordered this cause transferred to the Court of Appeals, Western District. This court agrees that the issues presented herein are identical to those addressed in Goodrum and affirms the order of the trial court dismissing the instant action for lack of subject matter jurisdiction.
All concur.
STATE v. JOHNSON, 830 S.W.2d 36 (Mo.App.W.D. 1992) STATE OF MISSOURI, RESPONDENT, v. JOHN C. JOHNSON, APPELLANT. JOHN C. JOHNSON, APPELLANT, v. STATE OF MISSOURI, RESPONDENT. Nos. WD 43176, WD 44811. Missouri Court of Appeals, Western District. May 5, 1992.
APPEAL FROM THE CIRCUIT COURT, BUCHANAN COUNTY, PATRICK K. ROBB, J.
J. Gregory Mermelstein, Columbia, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before FENNER, P.J., and ULRICH and SPINDEN, JJ.
ULRICH, Judge.
John C. Johnson was charged by a three-count information with the class D felony of resisting arrest, § 575.150; unlawful use of a weapon, § 571.030.1(4); and assault in the second degree § 565.060. At the conclusion of the evidence, the court dismissed the charge of assault in the second degree. The jury found Mr. Johnson guilty of resisting arrest and unlawful use of a weapon. On March 13, 1990, Mr. Johnson was sentenced by the trial court to three years imprisonment for resisting arrest and to a consecutive five-year term of imprisonment for the unlawful use of a weapon conviction. Mr. Johnson was sentenced as both a "prior" and "dangerous offender," §§ 558.016 and 557.036.4. Mr. Johnson filed a Rule 29.15 motion for postconviction relief. Following an evidentiary hearing, Mr. Johnson's motion was denied.
All statutory references are to RSMo 1986.
Appellant challenges on appeal his convictions on both counts. Although Mr. Johnson also appealed the judgment denying his motion for postconviction relief, he abandons that appeal. The judgment of conviction for unlawful use of a weapon, § 571.030.1(4), and the resulting five-year term of imprisonment are affirmed. The conviction for felony resisting arrest, § 575.150, is reversed.
On October 2, 1989, three St. Joseph, Missouri, police officers responded to the Heartland Hospital West in St. Joseph. They had been informed by their dispatcher that John C. Johnson was in Room 317 Annex at the hospital and that there were "a couple of warrants" for his arrest. Officers Galen Streeter, John Duty, and Larry Wion, along with two hospital security guards, went to Room 317. The door was ajar and Officer Wion saw the appellant run into the bathroom. Officer Wion yelled for Mr. Johnson to halt and that he was under arrest. Officer Wion attempted to open the bathroom door, but it was being held shut from the inside. On the second try, the door opened and Officer Wion saw Mr. Johnson run out the door on the other side of the bathroom.
Mr. Johnson entered Room 319 and crouched behind a hospital bed occupied by a patient who was connected to intravenous tubes. When Officer Streeter told Mr. Johnson to "hold it right there," Mr. Johnson yelled to the officers to stay away from him. When Officers Streeter and Wion moved toward Mr. Johnson, Mr. Johnson pushed the bed forward, opened the blade of a lock-blade knife, held the knife up, and grabbed the patient's gown.
Officer Duty drew his revolver and ordered Mr. Johnson to drop the knife. Mr. Johnson replied, "Go ahead and shoot, I ain't got nothing to live for. Go ahead and shoot." Mr. Johnson lowered the knife but refused to drop it and maintained his hold on the patient's gown. Officer Streeter grabbed Mr. Johnson and Officer Wion was able to wrest the knife from Mr. Johnson's hand. A minor cut to Officer Wion's hand was the only injury experienced during the incident.
Mr. Johnson raises two points on appeal. His first point claims that the trial court erred in denying his motion to dismiss one of the two counts which, Mr. Johnson contends, violated the double jeopardy clause of the United States Constitution. Mr. Johnson claims that the conviction for the class D felony of unlawful use of a weapon supplied the essential element of threat of violence or physical force necessary to support his conviction for the class D felony of resisting arrest and that his conduct constituted but one offense for which the legislature did not intend multiple punishments. Because Mr. Johnson's second point on appeal is dispositive, this first point is not addressed.
Mr. Johnson's second point on appeal claims that the state failed to prove that the arrest Mr. Johnson was resisting was for a felony violation, an essential element of the felony resisting arrest conviction. Section 575.150. Mr. Johnson claims that no evidence was presented at trial that he was being arrested for a felony. Therefore, Mr. Johnson contends, his felony conviction for resisting arrest is improper.
Section 575.150 provides in pertinent part:
1. A person commits the crime of resisting or interfering with arrest if, knowing that a law enforcement officer is making an arrest, for the purpose of preventing the officer from effecting the arrest, he:
(1) Resists the arrest of himself by using or threatening the use of violence or physical force or by fleeing from such officer . . .
. . . .
4. Resisting, by means other than flight, or interfering with an arrest for a felony is a class D felony; otherwise, resisting or interfering with arrest is a class A misdemeanor.
"The statutory language [of § 575.150] makes it plain that resisting arrest is a felony offense only if the underlying offense is a felony and the resistance is accomplished by a means other than flight." State v. Furne, 642 S.W.2d 614, 616 (Mo. banc 1982) (emphasis added). The state acknowledges it presented no evidence that the arrest was for a felony and further acknowledges that, in light of Furne, Mr. Johnson's conviction of felony resisting arrest is improper. The state admits that the information failed to plead the offense for which Mr. Johnson was arrested is a felony, failed to prove it is a felony, and failed to obtain a jury verdict on this issue, all as required by Furne. Id. at 616-17. As the state points out, this issue was addressed in State v. Burton, 801 S.W.2d 380, 381 (Mo.App. 1990). In the appeal sub judice, as in Burton, and as required by the doctrine of stare decisis, the ruling in Furne is followed.
The state urges that this matter be transferred to the Missouri Supreme Court to reevaluate its decision in Furne. In Furne, however, the Missouri Supreme Court addressed the same semantic arguments advanced here by the state. 642 S.W.2d at 616. The state's request is denied.
The state further urges this court to remand the case to the trial court for retrial on the misdemeanor offense of resisting arrest. This issue is also addressed in Furne. "Since . . . the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only 'just' remedy available for that court is the direction of a judgment of acquittal." Id. at 617 (quoting Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2151, 57 L.Ed.2d 1 (1978). The state's request that the case be remanded to the trial court to permit recharging and retrial of Mr. Johnson on a misdemeanor charge is denied.
Accordingly, Mr. Johnson's felony conviction for resisting arrest in violation of § 575.150 is reversed. Mr. Johnson's conviction for unlawful use of a weapon, § 571.030.1(4), and the resulting five year imprisonment term are affirmed.
All concur.