STATE OF MISSOURI, Plaintiff-Respondent v. ANGELA KAY FURTADO, Defendant-Appellant

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STATE OF MISSOURI, Plaintiff-Respondent, v. ANGELA KAY FURTADO, Defendant-Appellant.

No. SD38810

APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Laura J. Johnson, Judge AFFIRMED Angela Kay Furtado ("Furtado") appeals the judgment of the Circuit Court of Christian County, Missouri ("trial court") convicting her of burglary in the first degree, assault in the third degree, and resisting arrest following a jury trial. See sections 569.160, 565.054, and 575.150. 1 In three points on appeal, Furtado challenges the sufficiency of

1 Unless otherwise noted, all statutory references are to RSMo 2016, including changes effective January 1, 2017.

In Division

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the evidence to sustain her conviction for resisting arrest (Points I and II) and alleges the trial court plainly erred in instructing the jury on the burglary in the first degree charge (Point III). Finding no error, we affirm. Factual Background and Procedural History Viewed in the light most favorable to the verdict, State v. Winter, 719 S.W.3d 738, 753 n.7 (Mo. banc 2025), the evidence at trial showed as follows. 2 Furtado had known the victim in this case ("Victim") for approximately five years because Furtado used to be Victim's brother's girlfriend. Furtado and Victim had a relationship where Furtado would show up at Victim's house, sometimes unannounced, and the two would buy, trade, and barter tools and sometimes drink alcohol and do drugs together. Victim, however, had previously asked Furtado not to show up at his home unannounced. On October 31, 2023, K.S. and Victim were at Victim's home where K.S. was doing some chores for Victim because K.S. owed Victim money. The two had drank alcohol and Victim did not want to take K.S. home, so K.S. stayed the night in Victim's guestroom. In the early morning hours of November 1, 2023, around 4:45 a.m., Victim heard someone banging on his front door. He looked out the window in the guestroom where K.S. was sleeping and saw Furtado and two men outside his home. Victim did not recognize the men, and he told K.S. to hide in the closet. Victim then saw Furtado and the

2 Not only does our standard of review require us to view all the evidence in the light most favorable to the verdict, but we must ignore all contrary inferences. Winter, 719 S.W.3d at 753 n.7. "If that evidence supports equally valid inferences, it is up to the factfinder to determine which inference to believe, as the factfinder is permitted to draw such reasonable inferences from the evidence as the evidence will permit." Id. (quoting State v. Lehman, 617 S.W.3d 843, 847 (Mo. banc 2021)).

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two men taking items out of Victim's truck bed. Furtado screamed that Victim needed to let them in because they had been speeding and were running from the police, but Victim told them to leave. Furtado and the two men did not leave and, at one point, someone was also pounding on the back door. Victim retrieved his shotgun and went to the front door, thinking the intruders would leave when they saw the shotgun. Victim opened the front door with the shotgun and Furtado and the two men pushed past him and into the home. Furtado told Victim she wanted money and drugs, but Victim said he had neither. A struggle ensued where all involved were going for Victim's gun. Furtado and the two men eventually dragged Victim to the ground and hit and kicked him. Victim specifically remembered Furtado kicking him because of her shoes. Eventually K.S. called 911, which produced an approximately 42-minute-long recorded call. The police arrived, whereupon the two males with Furtado fled, but Furtado remained in Victim's home. Furtado was upset and afraid of going to jail. One of the officers to respond was Officer Deaver, who went to the front door and contacted Furtado. He stated, "Police, don't move." Furtado turned around, ran back into the house, yelled, "The cops are here," and slammed the door. When he was unable to open the front door, Officer Deaver treated it as "a barricaded subject with possible hostages[.]" About 15 to 30 minutes after Officer Deaver arrived at the residence, the Nixa Emergency Tactical Team ("NETT") arrived at Victim's home. NETT kicked Victim's front door down and found Furtado standing on the other side. A NETT officer told

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Furtado to show her hands and get to the floor, but she did not comply. The officer then grabbed Furtado and passed her to another officer behind him to clear the doorway and make entry. Victim had scratches and bruises from the assault, and his preexisting hip injury was exacerbated. The jury found Furtado guilty as charged. Furtado appeals. We will recite additional facts as necessary to address Furtado's points on appeal. Analysis Points I and II Because Furtado's first and second points on appeal both allege there was insufficient evidence to support her resisting arrest conviction, we address them together. In her first point on appeal, Furtado claims there was insufficient evidence to establish that Officer Deaver was arresting her. In her second point on appeal, Furtado claims there was insufficient evidence to show Furtado knew or reasonably should have known that officers were arresting her. Standard of Review "[T]his Court reviews whether there is sufficient evidence to support the charged crime, based on the elements of the crime as set forth by statute and common law and the evidence adduced at trial." State v. Winter, 719 S.W.3d 738, 745 (Mo. banc 2025) (alteration in original) (internal quotation omitted). ... "The elements of a crime are found only in the statute creating that crime." Id.; see also sec. 556.026, RSMo 2016 ("No conduct constitutes an offense or infraction unless made so by this code or by other applicable statute."). In determining whether there is sufficient evidence to support a judgment of conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Winter, 719 S.W.3d at 746 (alteration and internal

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quotation omitted). "[T]he Court does not act as a 'super juror' with veto powers, but gives great deference to the trier of fact." Id. (alteration in original) (internal quotation omitted). This Court "accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignores all contrary evidences and inferences." Id. (internal quotation omitted). This Court "may not supply missing evidence, or give the [s]tate the benefit of unreasonable, speculative or forced inferences." Id. (internal quotation omitted).

State v. Eggleston, No. SC101152, 2026 WL 287141, at *2 (Mo. banc Feb. 3, 2026).

Resisting Arrest Resisting arrest has three elements:

(1) that [Furtado] knew or reasonably should have known that a law enforcement officer was making an arrest or attempting to lawfully detain or stop [her]; (2) that [s]he resisted this arrest, stop or detention by fleeing from that officer; and (3) that [s]he did so for the purpose of preventing the officer from effecting the arrest, stop or detention.

State v. Yates, No. ED112932, 2025 WL 3522018, at *12 (Mo. App. E.D. Dec. 9, 2025)

(quoting State v. Jones, 479 S.W.3d 100, 109 (Mo. banc 2016)).

The State presented sufficient evidence for a reasonable juror to find that officers intended to arrest Furtado

"Resisting arrest cannot occur unless the officer was in the process of arresting the defendant." State v. Redifer, 290 S.W.3d 184, 186 (Mo. App. W.D. 2009). The officer does not have to tell the person [s]he is under arrest if the circumstances show that the officer is attempting an arrest. State v. Nichols, 200 S.W.3d 115, 121-22 (Mo. App. W.D. 2006); See State v. Chamberlin, 872 S.W.2d 615, 619 (Mo. App. W.D. 1994) (the officer's verbal commands and invocation of authority as a state trooper were sufficient evidence that the defendant should have known the officer was attempting an arrest). Once an officer is attempting to actually restrain or control the person of the defendant, an arrest is in progress. State v. St. George, 215 S.W.3d 341, 346 (Mo. App. S.D. 2007). The totality of the circumstances allows a jury to reasonably find police officers' intent to

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arrest a defendant to support a conviction of resisting arrest. State v. Nickels, 598 S.W.3d 626, 639-40 (Mo. App. E.D. 2020).

State v. Dill, 693 S.W.3d 177, 186-87 (Mo. App. S.D. 2024) (en banc).

Furtado argues that the evidence was insufficient to show Officer Deaver was arresting her because he did not contact Furtado and did not tell her she was under arrest. Furtado also argues there was no evidence adduced at trial establishing that Officer Deaver attempted to arrest, or contemplated arresting Furtado, "even after she returned inside the house and shut the door[.]" We disagree. Officer Deaver testified at trial that he received a call on November 1, 2023, around 7:30 a.m., about a burglary in progress at a house in a cul-de-sac off Bridgewood in Nixa. Officer Deaver was wearing his police uniform, a tactical vest, and a duty belt with a pistol and a Taser. He was also carrying a rifle. As Officer Deaver approached the home in question, he contacted Furtado and stated: "Police, don't move." Furtado turned around, ran back inside the home, yelled "The cops are here," and slammed the door. Officer Deaver tried to open the front door but it did not open. Officer Deaver then testified: "At that time I'm treating it as a barricaded subject with possible hostages because I didn't see anybody outside the residence claiming to be a victim or the homeowner, so I believed the homeowner and the caller were still inside." Officer Deaver further testified:

So, you know, we're looking – the caller had stated that there was [sic] three males initially, so I didn't know if the female was a suspect, but I believed she was when she ran back inside yelling the cops were there. So, you know, we are listening for any sounds or if they're trying to make contact with us. We're advising "The police are here. Come outside with your hands up." You know, nobody came to the door at that point in time.

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We did hear some yelling, but we weren't sure what it was or anything like that. But we continued to wait for NETT to respond.

(Emphasis added.) He went on to explain:

So after they're brought out, I identify the female that I saw return and run back inside. I was like, "Hey, I believe she's a suspect. I'm not sure at this time, but she's the one that ran back inside saying that the cops were there."

While an arrest must be in progress for a defendant to resist arrest, the officer attempting the arrest need not tell the defendant she is under arrest "if the circumstances show that the officer is attempting an arrest." Redifer, 290 S.W.3d at 186. While Officer Deaver never told Furtado she was under arrest, once Officer Deaver commanded, "Police, don't move," he was attempting to control or restrain Furtado's person, and thus an arrest was in progress. See St. George, 215 S.W.3d at 345-46 (internal quotations and citation omitted) ("An arrest is in progress once the officer is attempting to actually restrain or control the person of the defendant."). Furthermore, Officer Deaver's testimony at trial was sufficient to allow a reasonable juror to conclude that he intended to arrest Furtado. Once Furtado shut the door on him and told the others inside that the police were there, Officer Deaver testified that he was treating the scene as one with a "barricaded subject" – Furtado – and "possible hostages[.]" While he stated when he was originally dispatched to the scene he did not know if there was a female subject, after she shut the door on him, "[he] believed she was[.]" When Furtado shut the door on Officer Deaver, officers outside continued yelling for Furtado and the others to come outside to the police with their hands up, but no one came. When Furtado was ultimately brought outside, Officer Deaver stated he

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"believe[d] she's a suspect." Even if he was not intending to arrest Furtado at the moment he arrived at the house, Officer Deaver's statements at trial about how the events unfolded constitute sufficient evidence for a reasonable factfinder to conclude that Officer Deaver was in fact attempting to arrest Furtado at the time in question. Dill, 639 S.W.3d at 187 (where officer was not initially intending to arrest defendant during a traffic stop, but the situation quickly escalated as all of the vehicle's occupants became non-cooperative and the officer's intent became to effect an arrest). The State presented sufficient evidence for a reasonable juror to find that Furtado knew or should have known officers were attempting to arrest her

As to whether Furtado knew or should have known an officer was attempting to arrest her, our caselaw addressing this issue has uniformly held that an officer's verbal command to a defendant to stop running, and an invocation of their authority as a police officer, are sufficient evidence for a jury to find that the defendant knew or should have known he was being placed under arrest. Jones, 479 S.W.3d at 110; Chamberlin, 872 S.W.2d at 619 (holding that an "officer's verbal commands and the invocation of his authority as a state trooper were an attempt to effect the arrest of the defendant"). Furthermore, there was also testimony at trial that Furtado screamed at Victim that Victim needed to let them in because they were running from the police. This testimony would indicate to a reasonable juror that Furtado knew police wanted to arrest her before she even entered Victim's home.

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For these reasons, the State presented sufficient evidence from which a reasonable juror could find that officers intended to arrest Furtado, and that Furtado knew or should have known the same. Points I and II are denied. Point III In her third point on appeal, Furtado argues the trial court plainly erred in submitting Instruction 16, the verdict director for burglary in the first degree, because the verdict director did not track the substantive law and lowered the State's burden of proof at trial. We disagree. Furtado concedes that she did not object to Instruction 16 at trial, or raise it in her motion for new trial, and thus the issue related thereto is not preserved for our review. While this Court generally does not review unpreserved claims of error, Rule 30.20 3

affords us the opportunity to review unpreserved claims, including those of instructional error. State v. Emanuel, 683 S.W.3d 348, 352 (Mo. App. S.D. 2024). Rule 30.20 alters the general rule by giving appellate courts discretion to review "plain errors affecting substantial rights may be considered in the discretion of the court ... when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. "Plain error review is discretionary, and this Court will not review a claim for plain error unless the claimed error 'facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted.'" State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017) (quoting State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995), and Rule 30.20). ... Unless manifest injustice or a miscarriage of justice is shown, an appellate court should "decline to review for plain error under Rule 30.20." [Jones, 427 S.W.3d] at 196.

Id. at 352-53 (quoting State v. Brandolese, 601 S.W.3d 519, 525-26 (Mo. banc 2020)).

3 All rule references are to Missouri Court Rules (2025).

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To prove plain instructional error, the defendant "must demonstrate the trial court so misdirected or failed to instruct the jury that the error affected the jury's verdict." [State v.] Celis-Garcia, 344 S.W.3d [150,] 154 [(Mo. banc 2011)] (citations and internal quotation marks omitted). Even clear and obvious instructional error rarely works a manifest injustice or miscarriage of justice demanding plain-error reversal. State v. Parsons, 339 S.W.3d 543, 549 (Mo. App. [S.D.] 2011). The outcome of plain-error review depends heavily on the facts and circumstances of each case. [State v.] Ralston, 400 S.W.3d [511,] 520 [(Mo. App. S.D. 2013)].

Id. at 353 (quoting State v. Stuckley, 573 S.W.3d 766, 768 (Mo. App. S.D. 2019)). Count I of the Amended Felony Information charged Furtado, in pertinent part, with committing burglary in the first degree in that Furtado, "acting alone or in concert with another, knowingly remained unlawfully in an inhabitable structure, ... for the purpose of committing assault therein[.]" The verdict director submitted to the jury on this count, Instruction 16, stated as follows: As to Count I, if you find and believe from the evidence beyond a reasonable doubt: First, that on or about November 1, 2023, in the State of Missouri, [Furtado] knowingly remained unlawfully in an inhabitable structure located in Nixa, Missouri, and possessed by [Victim], and Second, that [Furtado] did so for the purpose of committing the offense of Assault therein, and Third, that while [Furtado] was in the inhabitable structure, [Victim] was present in the structure and [Victim] was not a participant in the offense, Then you will find [Furtado] guilty under Count I of burglary in the first degree. A person commits the offense of assault when [s]he purposely or knowingly places or attempts to place another in fear of physical harm. An "inhabitable structure," under this instruction, means a structure where any person lives[.]

(Emphasis added.)

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Instruction 16 was patterned after the applicable MAI-CR 4th 423.52 (2024), the Notes on Use for which state as follows:

1. Definitions.

(a) This instruction contains the direction "[Insert a definition of the offense that defendant intended.]." This direction refers to the offense named in paragraph Second. A definition of the offense must be included in the instruction. It shall be inserted immediately following the last paragraph of the instruction. Care should be taken to include all essential elements of the offense. Words and phrases used in the verdict directing pattern instruction for the defined offense may also be included. Mandatory definitions that appear in the verdict directing form or in Notes on Use must be inserted in the definition in subsequent paragraphs. Optional definitions may be included upon written request in proper form by the state or by the defendant or on the court's own motion. See MAI-CR 4th 433.00, Notes on Use 2D.

Following the Notes on Use for MAI-CR 4th

423.52, MAI-CR 4th 433.00 states that assault or assaulting "[As used in Chapter 455.010 to 455.085] means purposely or knowingly placing or attempting to place another in fear of physical harm." See also section 455.010(1)(b), RSMo Cum.Supp. 2021. This definition is the one used in Instruction 16. Furtado argues that, because the definition of assault included in Instruction 16 was the civil definition used in Chapter 455 of the Missouri Revised Statutes – a separate chapter from criminal offenses which instead governs abuse in domestic relations – Instruction 16 carried a lower burden of proof than what is required in the criminal code. Furtado further argues that the definition of assault included in Instruction 16 did not require the jury to find her guilty of an "offense," since the definition supplied to the jury came from the civil code.

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"Rule 28.02(c) mandates the exclusive use of a MAI-CR instruction whenever there is one applicable under the law and Notes on Use." State v. Lumzy, 713 S.W.3d 729, 745 (Mo. App. E.D. 2025) (quoting State v. Henderson, 551 S.W.3d 593, 600 (Mo. App. W.D. 2018)). The law is clear that whenever there is an MAI-CR instruction or verdict form that applies, that instruction or form "shall be given or used to the exclusion of any other[,]" and "adhering to it cannot constitute error." Lumzy, 713 S.W.3d at 745 (quoting Rule 28.02(c) and citing Henderson, 551, S.W.3d at 600). As the State's brief points out, our courts have already addressed this same issue and held that use of the same definition of assault in a burglary in the first degree verdict director does not constitute instructional error. See Lumzy, 713 S.W.3d at 745-46. The Eastern District of this Court held in Lumzy that the defendant had not successfully rebutted the presumption that the MAI was correct and must be used. Id. at 746. The court's holding in Lumzy is based on the Missouri rule that mandates where there is an applicable MAI, it must be used, and adhering to use of the mandated MAI cannot constitute error. Id. at 745. Here, as in Lumzy, the applicable MAI specifically refers the drafter to MAI-CR 433.00, which provides the same civil-code-based definition of assault that was used in Lumzy and in this case. Id. While we agree with the Lumzy court that the definition at issue is problematical because it is taken from the civil code rather than the criminal code, we also agree that the MAI is the correct one because it is directly patterned after the applicable instruction, and modified with the appropriate definition exactly as directed in the Notes on Use. Id.; Rule 28.02(c).

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Furthermore, the facts of this case offer the added protection that Furtado was charged with and found guilty of assault in the third degree in a separate count and separate jury instruction. Assault in the third degree requires a finding that Furtado "knowingly cause[d] physical injury to another person." Section 565.054.1. As the State points out, assault in the fourth degree is a lesser-included offense of assault in the third degree, and the language used in Instruction 16 tracked that of assault in the fourth degree almost identically. 4 Because the jury found Furtado guilty of assault in the third degree in a separate count, we cannot say that Furtado suffered a manifest injustice when the jury was essentially instructed on assault in the fourth degree as the basis for her burglary conviction, as "a defendant is deemed to have notice that [s]he could be convicted of any lesser-included offense of a charged crime." State v. Neal, 362 S.W.3d 39, 44 (Mo. App. S.D. 2012) (quoting State v. Haynes, 88 S.W.3d 47, 56 n.4 (Mo. App. W.D. 2002)). Because we do not determine that the claimed error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted, we decline plain error review. The trial court's judgment is affirmed. JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR JEFFREY W. BATES, J. – CONCURS BRYAN E. NICKELL, J. – CONCURS

4 The language used in Instruction 16 required the jury to find that Furtado had "purposely or knowingly place[d] or attempt[ed ] to place another in fear of physical harm." Assault in the fourth degree requires a finding, in pertinent part, that a defendant "purposely places another person in apprehension of immediate physical injury[.]" Section 565.056.1(3).