If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

September 19, 2019

v No. 344100

Kalamazoo Circuit Court

ANTRON DARNELL JENNINGS, LC No. 2017-000252-FH

Defendant-Appellant.

Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

Defendant, Antron Jennings, appeals as of right his jury trial conviction of resisting or 

obstructing a police officer, MCL 750.81d(1). Because there are no errors warranting reversal, 

we affirm.

I. BASIC FACTS

This case arises from Jennings’s failure to comply with a police officer’s commands. It is 

undisputed that Jennings was a passenger in a vehicle driven by Darius Williams. Jennings 

testified that Williams was in a liquor store parking lot when a police officer knocked on the 

window and told him that he was “not supposed to drive.” Williams then sped away, eventually 

parking the vehicle near his house where he and Jennings then began to drink vodka. After a 

while a police patrol located the vehicle, confirmed that it was the same one that had fled the 

liquor store, and pulled up behind it with the overhead lights activated. Williams got out of the 

vehicle, leaving Jennings in the passenger seat. Jennings recounted that Williams ran from the 

police, first trying to get into his house and then running around it twice before being tackled to 

the ground.

Jennings stated that he exited the vehicle and walked closer because he could not see 

what was happening. He added that he wanted to inform the police that Williams had mental 

health issues. Jennings testified that as he approached the scene, two officers were “wrestling” 

with Williams on the ground. He stated that one of the officers on the ground, Eric Shaffer, told 

him to get back in the vehicle, but he did not because he wanted to know if the officer had heard 

him. He stated that Shaffer responded by telling him to get back in the vehicle again. Jennings 
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admitted that he did not do so. According to Jennings, Shaffer then approached him, and when 

Shaffer was next to him, Jennings took his cellular phone out to record because he felt the police 

were using excessive force. He testified that an officer took his phone. He also testified that 

before handcuffing him, Shaffer told him to take his hands out of his pocket and turn around. 

Jennings admitted that it took two police officers to handcuff him.

Shaffer’s testimony was similar. He stated that he observed two occupants in the vehicle 

when he arrived on the scene. When Williams fled the vehicle on foot, Shaffer pursued him, 

chasing him around a house two times before taking him to the ground. While Shaffer and 

another officer were attempting to handcuff Williams, Shaffer saw Jennings exit the vehicle and 

walk toward them. Jennings approach was “highly aggressive,” and he was angry and 

confrontational. One officer stayed on the ground to detain Williams, and Shafer moved to 

intercept Jennings so the officers could maintain “scene safety.” Shaffer explained that Jennings 

was not just a bystander; he was someone who had been a passenger in Williams’s vehicle, and 

Williams was actively resisting arrest. Shaffer did not know what Jennings intended to do. He 

ordered Jennings to get back into the vehicle multiple times, but Jennings refused. According to 

Shaffer, Jennings got in his face. Shaffer told Jennings to turn around, and he asked him to 

identify himself. Jennings said he would not, so Shaffer told him to turn around and that he was 

under arrest. Because Jennings would not turn around, Shaffer grabbed him and tried to turn him 

around to handcuff him. Jennings, however, would not put his hands behind his back and was 

“tensing his arms.” Shaffer explained that he was only able to get Jennings under control when a 

second officer assisted him.

II. INEFFECTIVE ASSISTANCE

A. STANDARD OF REVIEW

Jennings argues that his defense lawyer was ineffective for failing to object to the court’s 

omission of an element of the offense and for failing to request jury instructions explaining that a 

command is only lawful it if does not unnecessarily infringe a person’s First Amendment rights. 

Because Jennings failed to move for a new trial or an evidentiary hearing, this Court’s review of 

his claim is limited to errors apparent on the record. See People v Sabin (On Second Remand), 

242 Mich App 656, 659; 620 NW2d 19 (2000).

B. ANALYSIS

In order to establish that his or her defense lawyer provided ineffective assistance, a 

defendant must show that his or her lawyer’s performance “was below an objective standard of 

reasonableness under prevailing professional norms” and that, absent the lawyer’s deficient 

performance, there is “a reasonable probability” that “the outcome of the proceedings would 

have been different.” Id. It is presumed that the defense lawyer provided effective assistance, 

“and the defendant bears a heavy burden of proving otherwise.” People v Solmonson, 261 Mich 

App 657, 663; 683 NW2d 761 (2004).

Jennings first contends that his lawyer’s performance was deficient because he did not 

object to the trial court’s omission of an element of resisting or obstructing a police officer. A 

criminal defendant has the right to have the jury properly instructed regarding the elements of the 
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offense of resisting or obstructing a police officer. People v Quinn, 305 Mich App 484, 493; 853 

NW2d 383 (2014). The elements of resisting or obstructing a police officer require the 

prosecution to prove: “(1) the defendant assaulted, battered, wounded, resisted, obstructed, 

opposed, or endangered a police officer, and (2) the defendant knew or had reason to know that 

the person that the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or 

endangered was a police officer performing his or her duties.” People v Vandenberg, 307 Mich 

App 57, 68; 859 NW2d 229 (2014) (quotation marks and citation omitted). Here, the 

prosecution’s theory was that Jennings obstructed the police officer by failing to comply with a 

lawful command. The “knowing failure to comply with a lawful command” constitutes 

obstruction of a police officer. MCL 750.81d(7)(a). In addition, the prosecution must also show 

that “the officers’ actions were lawful.” Vandenberg, 307 Mich App at 68. Because the 

lawfulness of the officers’ actions is an element of the offense, it must be presented as a factual 

question for the jury. Id. at 68-69; see also Quinn, 305 Mich App at 494; People v Moreno, 491 

Mich 38; 814 NW2d 624 (2012).

The trial court instructed the jury that it should convict Jennings of resisting or 

obstructing a police officer if it found beyond a reasonable doubt:

First, that the defendant resisted, obstructed, or opposed a police officer.

Obstruct includes the use or threatened use of physical interference or 

force or a knowing failure to comply with a lawful command. The defendant 

must have actually resisted by what he said or did, but physical violence is not 

necessary.

Second, that the defendant knew or had reason to know that the person 

resisted, obstructed, or opposed was a police officer performing his duties at that 

time.

Jennings takes issue with the fact that the trial court did not separately instruct the jury 

that the prosecution had to prove beyond a reasonable doubt that the officers’ actions were 

lawful. He directs this Court to the Michigan Standard Jury instructions. At the time of his trial, 

the standard jury instructions were effectively identical to the instructions given at his trial. 

However, in June 2018, the instructions were amended to expressly provide that the prosecution 

must establish three elements. With regard to the third element, the jury instructions now require 

the prosecution to prove “that the complainant gave the defendant a lawful command, was 

making a lawful arrest, or was otherwise performing a lawful act.” M Crim JI 13.1 (emphasis 

added). The use note for the directions adds that “[t]he court should provide detailed legal 

instructions regarding the applicable law governing the officer’s legal authority to act.” M Crim 

JI 13.1, n 4. Yet, Jennings’s reliance on the amended jury instructions is misplaced because, as it 

relates to the lawfulness of the police command, the jury in this case was actually instructed that 

it had to find beyond a reasonable doubt that the command was lawful before they could find that 

Jennings obstructed a police officer. Because the jury was properly instructed that it had to find 

the police command was lawful, Jennings cannot establish that his lawyer’s performance was 

deficient. See Sabin (On Second Remand), 242 Mich at 659.
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Jennings next asserts that his defense lawyer was ineffective because he did not request a 

jury instruction stating that a command is not lawful if it infringes on a defendant’s First 

Amendment right to record the police. Decisions regarding which jury instructions to request are 

generally considered part of trial strategy, and this Court will not second-guess a defense 

lawyer’s trial strategy “with the benefit of hindsight.” People v Dunigan, 299 Mich App 579, 

584, 590; 831 NW2d 243 (2013). “The fact that defense counsel’s strategy was unsuccessful 

does not render him ineffective.” People v Solloway, 316 Mich App 174, 190; 891 NW2d 255 

(2016).

Here, Jennings asserts that he has a constitutional right to record the police, and he 

suggests that Shaffer’s order to get back into the vehicle infringed on that right so the command 

was not lawful. Generally, however, a police officer may lawfully command a passenger to stay 

in a vehicle in order to maintain control over the scene even after the driver has been arrested. 

See People v Corr, 287 Mich App 499, 507-508; 788 NW2d 860 (2010) (finding that the 

officers’ commands to a passenger “to stay in the vehicle . . . to be lawful.”). We discern no 

meaningful distinction between a command for a passenger to stay in a vehicle and a command 

to return to the vehicle. In both instances, the officers have the same interest in maintaining 

control over the scene. A defense lawyer is not ineffective for failing to raise a novel legal 

argument. People v Reed, 453 Mich 685, 695; 556 NW2d 858 (1996). Accordingly, under these 

circumstances, Jennings cannot establish that his lawyer’s performance was deficient.

In addition, even if Jennings’s lawyer should have requested such jury instruction, 

Jennings cannot show that there is a reasonable probability that the outcome of the trial would be 

different because he cannot show that the police violated the First Amendment by ordering him 

to return to the vehicle. As explained by the United States Court of Appeals for the First Circuit, 

although there is a constitutional right to film “government officials engaged in their duties in a 

public place, including officers performing their responsibilities,” that right is not unlimited and 

it “may be subject to reasonable time, place, and manner restrictions.” Glik v Cunniffe, 655 F3d 

78, 82, 84 (CA 1, 2011). Thus, having a cellular phone and recording or to attempting to record 

the police does not automatically give an individual carte blanche to ignore police commands 

aimed at securing or maintaining scene safety. See State v Russo, 141 Hawai’i 181, 194; 407 

P3d 137 (2017) (stating that “that the constitutionally-guaranteed right to photograph or film the 

activities of police officers in public may be limited by time, place, and manner restrictions so 

long as a reasonable officer would conclude that the individual’s action is interfering or about to 

interfere with the officer’s performance of his or her duties” and noting that “[a]n order that a 

reasonable officer would conclude is necessary to ensure the safety of all persons involved in a 

police stop—including the safety of the officer—would be a reasonable restriction . . . .”); see 

also ACLU of Illinois v Alvarez, 679 F3d 583, 607 (CA 7, 2012) (noting that reasonable orders to 

maintain safety and control, which have incidental effects on an individual’s exercise of the First 

Amendment right to record, may be permissible); Gericke v Begin, 753 F3d 1, 7 (CA 1, 2014)

(recognizing that safety concerns might justify a command to bystanders to disperse 

notwithstanding that the command might “incidentally impact an individual’s exercise of the 

First Amendment right to film.”).

On appeal, Jennings asserts that if the jury believed his testimony that he intended to film 

the police and if it had been instructed that Jennings had a right to speak to the police and film 

them, then “the jury may have reached a different conclusion.” We disagree. Under the 
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circumstances of this case, there is not a reasonable probability that a jury would conclude the 

police commands violated Jennings’s constitutional rights. Jennings ignored multiple commands 

to get back in the vehicle before he attempted to film the police with his cellular phone. Further, 

the officers’ testimony makes clear that Jennings exited Williams’s vehicle and approached in an 

aggressive, confrontational manner, which was why he was commanded to return to the vehicle. 

Jennings was not a random bystander attempting to see what was happening; he was an associate 

of a man who had twice fled from the police and was actively resisting arrest. The scene was not 

secure, especially in light of the fact that Williams was still struggling with the officers when 

Shaffer gave the first command for Jennings to return to the vehicle. For the foregoing reasons, 

Jennings’s lawyer was not ineffective for failing to request a jury instruction that a command is 

unlawful if it infringes on a constitutional right.

Affirmed.

/s/ Brock A. Swartzle

/s/ Elizabeth L. Gleicher

/s/ Michael J. Kelly