In the Circuit Court of Greene County, Missouri
Associate Division 23

City of Springfield,
Robin C. McDermott
Case No.: 398MU0065
Motion to Dismiss for Failure to State a Charge

        COMES NOW, Defendant Robin C. McDermott, pursuant to Rule 21.04 to ask the court to dismiss for failure to file information against the Defendant that complies with Rule 23.01(b). In support of her motion, Defendant states:

  1. On May 1st 1998 Prosecutor Ron Dirickson, filed his "AMENDED INFORMATION" against the Defendant.
  2. The Information fails to state that the Defendant acted "Knowingly and Willfully" which is an implied necessary element of the crime. Defendant asserts the City has the burden of proving guilty knowledge or criminal intent.
  3. The Information fails to state a charge in that the claim of "verbally aggressive" does not constitute "resist or obstruct" which is a necessary element of 26-17.
  4. The Information fails to characterize the elements of the offence with sufficient particularity to give notice to the Defendant of the acts she is alleged to have committed.
  5. The Information is not sufficiently specific so as to determine the admissibility of evidence.
  6. The Information should state the allegations with reasonable certainty and the essential facts that constitute each element of the offense so that the Defendant does not have to guess or speculate as to the meaning of the allegations.
  7. The Information fails to inform the Defendant of charges against her so that she can adequately prepare a defense and protect herself from double jeopardy.
  8. Section 26-17 is overly broad and unconstitutionally vague in that it lacks explicit standards necessary to avoid arbitrary and discriminatory application by law enforcement officers, especially in the context of construing verbalizations as obstruction or resisting officers.
  9. Defendant contends that this case involves selective prosecution in that the City does not generally charge people under this ordinance for verbalizations, and that the City has an improper motive in that they are covering up the misconduct of the officers.
  10. The Information cites City Ordinances 26-17 and 1-7. These should be City Codes.
  11. These above stated deficiencies prejudice the substantial rights of the Defendant.
Supporting Arguments:

        Defendant relies on the case of Kansas City v. Larose, 524 S.W.2d 112 which is a similar case to this one. In that case the Court upheld a similar Kansas City ordinance as constitutional even though it didn't contain the language "willfully and knowingly". However, it did rule that the element of scienter or guilty knowledge is implied in the ordinance, stating:

"I believe it is implicit in the Kansas City ordinance that the hindering, obstruction, etc. of the officer be done willfully and knowingly. Thus there is no conflict between the statute and the ordinance. I do not believe that a person would be guilty of violating the Kansas City ordinance and subject to fine or imprisonment if the person were unwittingly or perhaps carelessly to hinder or obstruct an officer in the discharge of his official duty by, for example, accidentally or negligently getting in his way. A person might be driving through an intersection on a green light and fail to yield the right of way to a police vehicle chasing a suspect, thereby resulting in a collision with the police vehicle and the escape of the suspect. I doubt if this would constitute a violation of the ordinance, although it would under its literal terms. The other statutes referred to in the majority opinion -- Secs. 557.230-280 and Secs. 557.300-330, RSMo 1969 -- dealing with rescuing or helping prisoners to escape, do not in terms require criminal intent, but I doubt if we would sustain convictions under them in the absence of criminal intent."

In State v. McLarty, 414 S.W.2d 315 (Mo. 1967), we had for consideration the words of the statute against tampering with an automobile, Sec. 560.175(1), RSMo 1969, which provides: "No person shall drive, operate, use or tamper with a motor vehicle without the permission of the owner thereof." The statute says nothing about criminal intent, knowledge, or willfulness. Yet we held that criminal intent was an essential element of the offense proscribed, even though punishment therefor could be as little as a $1 fine or a day in jail. See also Davis v. State, 499 S.W.2d 445 (Mo. banc 1973) and State v. Tate, 436 S.W.2d 716 (Mo. 1969). Similarly here I do not believe the Kansas City ordinance applies regardless of intent. Interfering with a police officer in the performance of his duty involves an aspect of moral turpitude or wrongdoing accompanied by guilty knowledge or intent. It is not the same as a parking or speed limit violation, where no criminal intent need be shown.

In her verbal disagreement with the officer over a difference of opinion as to his right to execute an illegal search on her vehicle without a warrant or consent, the Defendant affirmatively denies that her intention was to obstruct or resist an officer executing his lawful duties. The City has the burden of proving guilty knowledge and criminal intent.

        The City has the burden of proof to show that "verbally aggressive" constitutes "resist or obstruct". No where in the ordinance does it state that verbal aggression is an element of this offense. If this case were permitted to be prosecuted, the City could arrest and convict anyone of saying anything that the City doesn't like. This would be a violation of free speech rights. It raises the question as to what forms of free speech constitutes obstruction. The City should be required by this Court to somehow connect the verbalizations to obstruction before a trial can proceed.

        WHEREFORE, on the basis that the Information is defective in that it fails to state a charge and to fully inform the Defendant of the offense of which she stands charged, this court lacks jurisdiction to prosecute the Defendant. The Defendant is being denied due process of law and therefore the Defendant prays for the Court to dismiss.

                                          & nbsp;                                  _____________________________________________

                                          & nbsp;                                       Robin C. McDermott on 11/06/1998

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