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UNPUBLISHED

October 10, 2019

v No. 331232

Jackson Circuit Court

TERENCE MITCHELL BRUCE, LC No. 15-004687-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 331233

Jackson Circuit Court

STANLEY LYLE NICHOLSON, LC No. 15-004688-FH

Defendant-Appellant.

ON REMAND

Before: SERVITTO, P.J., and MURRAY, C.J. and BORRELLO, J.

PER CURIAM.

This matter returns to this Court on remand for consideration of issues not addressed by 

this Court’s prior opinion, People v Bruce, unpublished per curiam opinion of the Court of 

Appeals, issued October 5, 2017 (Docket Nos. 331232 and 331233), rev’d ___ Mich ___ (2019) 

(Docket Nos. 156827 and 156828), reh den ___ Mich ___ (2019) (Docket Nos. 156827 and 

156828). For the reasons set forth in this opinion, we affirm.
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I. BACKGROUND

Defendants “were federal border patrol agents assigned to a Hometown Security Team 

(HST) task force operating in Jackson County in December 2014. The HST is a ‘criminal 

intervention team’ assigned mostly to freeways and that focuses on drugs and firearms.” The 

HST “consisted of Michigan State Police troopers, border patrol agents, and other officers.” 

People v Bruce, ___ Mich ___, ___; ___ NW2d ___ (2019) (Docket Nos. 156827 and 156828); 

slip op at 2. The HST executed a search warrant in December 2014 at two private residences 

rented by Benjamin Scott. Id. at ___; slip op at 3. While the purpose of the searches was to 

obtain evidence of an “elaborate marijuana-growing operation,” id., Nicholson took an antique

thermometer and barometer device home with him, and Bruce took a stool, id. at ___; slip op at 

3-4. Nicholson tried to refurbish the thermometer and barometer device, but he broke the lens 

and threw the entire device away. Id. at ___; slip op at 3. Bruce kept the stool until he was asked 

about it by an HST team leader. Id. at ___; slip op at 4. Bruce admitted that he took the stool, and 

returned it to a Michigan State Police post in Jackson. Id. “Defendants were charged with 

common-law misconduct in office1 as well as larceny in a building2.” Id. A jury convicted both 

men of common-law misconduct in office, but acquitted each of larceny in a building. Id. 

On appeal, both defendants argued, in part, that they could not be convicted of 

misconduct in office because they were not public officers, an element of the common-law 

offense. In a two-to-one decision, this Court agreed, and vacated defendants’ convictions.3

Judge Borrello dissented. 

In a decision issued on July 25, 2019, our Supreme Court held that defendants were 

public officials who could be convicted of common-law misconduct in office. Bruce, ___ Mich 

___. The Court “reverse[d] the decision of the Court of Appeals,” and remanded the matter to 

this Court “for consideration of defendants’ remaining arguments.” Id. at ___; slip op at 19. 

Following our Supreme Court’s decision in this matter, there are two arguments left to be 

decided by this Court. First, both defendants argue that insufficient evidence was presented to 

prove that they acted with corrupt intent, a necessary element of common-law misconduct in 

office. Additionally, Nicholson argues that the trial court erred by submitting his defense of 

entrapment by estoppel to the jury, asserting that the trial court decided the issue after which 

dismissal of the charges was warranted. We consider each of these arguments and find they lack 

merit for the reasons set forth infra.

 1 As is provided by MCL 750.505, “[a]ny person who shall commit any indictable offense at the 

common law, for the punishment of which no provision is expressly made by any statute of this 

state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 

years or by a fine of not more than $10,000.00, or both in the discretion of the court.” 

2 MCL 750.360.

3 Bruce, unpub op at 1-4 (Docket Nos. 331232 and 331233). 
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II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

On appeal, defendants argue that, even if they were public officials, there was insufficient 

evidence to show that they acted with corrupt intent, a necessary element of misconduct in 

office. 

When reviewing a challenge to the sufficiency of the evidence, this Court reviews “the 

evidence in a light most favorable to the prosecutor to determine whether any trier of fact could 

find the essential elements of the crime were proven beyond a reasonable doubt.” People v 

Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). “Circumstantial evidence and reasonable 

inferences therefrom may be sufficient to prove all the elements of an offense beyond a 

reasonable doubt.” People v Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007)[, lv 

den 480 Mich 1043 (2008)]. Any conflicting evidence must be resolved in favor of the 

prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997). Questions of 

credibility are left to the trier of fact and will not be resolved anew by this Court. People v Avant, 

235 Mich App 499, 506; 597 NW2d 864 (1999). 

“[T]he elements of the common-law offense of misconduct in office are (1) the person 

must be a public officer, (2) the conduct must be in the exercise of the duties of the office or 

done under the color of the office, (3) the acts were malfeasance or misfeasance, and (4) the acts 

must be corrupt behavior.” People v Carlin (On Remand), 239 Mich App 49, 64; 607 NW2d 733 

(1999). Defendants challenge the sufficiency of the evidence with respect to the fourth element. 

This Court has clarified the meaning of corrupt behavior: 

“Corruption” in this context means a “sense of depravity, perversion or taint.” 

[Perkins & Boyce, Criminal Law (3d ed), p] 542. “Depravity” is defined as “the 

state of being depraved” and “depraved” is defined as “morally corrupt or 

perverted.” Random House Webster’s College Dictionary (1997). “Perversion” is 

“the act of perverting,” and the term “perverted” includes in its definition 

“misguided; distorted; misinterpreted” and “turned from what is considered right 

or true.” Id. The definition of “taint” includes “a trace of something bad or 

offensive.” Id. Pursuant to the definitions, a corrupt intent can be shown where 

there is intentional or purposeful misbehavior or wrongful conduct pertaining to 

the requirements and duties of office by an officer. See also Perkins & Boyce, 

supra at 542 (“It is corrupt for an officer purposely to violate the duties of his 

office.”). People v Coutu (On Remand) (Coutu II), 235 Mich App 695, 706-707; 

599 NW2d 556 (1999))(First emphasis added). 

Acts are sufficient to sustain the charge of misconduct in office if they demonstrate a 

tainted or perverse use of a public officer’s powers and privileges or demonstrate a perversion of 

the trust placed in the officer by the people of the state. Id. at 707. 

Bruce asserts that appropriating a stool for personal use during the execution of a search 

warrant is insufficient to constitute corrupt behavior because this Court has upheld convictions 

for misconduct in office in instances that he characterizes as being more serious than his 
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misconduct. However, there is no requirement that an act be sufficiently “serious,” only that it 

demonstrate corrupt behavior. Bruce’s appropriation of a stool for his personal use during the 

execution of the search warrant demonstrates “purposeful misbehavior or wrongful conduct 

pertaining to the requirements and duties of office by an officer.” Coutu II, 235 Mich App at 706.

Certainly seizing a citizen’s private property during the execution of a search warrant and 

appropriating it for personal use is a perversion of the trust placed in law enforcement officers to 

execute their duties in accordance with the law. For similar reasons, Nicholson’s appropriation of 

the thermometer also demonstrates corrupt behavior. Nicholson’s argument on this issue implies 

that the state had a burden to show that the object taken had value. However, the corrupt intent 

needed to prove misconduct does not necessarily require intent for one to profit for oneself, nor 

does official misconduct necessarily involve money. Contu II, 235 Mich App at 707. This same 

analysis also negates Nicholson’s argument that because another trooper originally presented the 

thermometer to Nicholson, he believed it to have no significant value. Interestingly, this 

assertion directly contradicts Nicholson’s testimony where he admitted he knew not to take 

anything from the home, even if it was trash.

Thus, we find from this record there existed legally sufficient evidence from which a 

rational trier of fact could find beyond a reasonable doubt that defendants’ taking of items from a 

citizen whose home had been searched constituted corrupt behavior as that term is defined in the 

common-law offense of misconduct in office. Accordingly, defendants are not entitled to relief 

on this issue. Contu II, 235 Mich App at 707.

B. ENTRAPMENT BY ESTOPPEL (DOCKET NO. 331233)

In Docket No. 331233, Nicholson argues that the trial court found that he sustained his 

burden of proof on all the elements of the defense, but submitted the issue to the jury instead of 

dismissing the case. Nicholson argues that this was error warranting reversal because entrapment 

by estoppel is a question of law that must be decided by the trial court and is not a question of 

fact for the jury. 

Whether entrapment occurred is a question of law reviewed de novo. People v Fyda, 288 

Mich App 446, 456; 793 NW2d 712 (2010). The trial court must make specific findings 

regarding entrapment that this Court reviews for clear error, which occurs if this Court is left 

with a firm conviction that a mistake was made. Id. If defendant demonstrates an error, under the 

harmless error test “preserved, nonconstitutional error is not a ground for reversal unless ‘after 

an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not 

that the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 

607 (1999), quoting MCL 769.26. “[T]he effect of the error is evaluated by assessing it in the 

context of the untainted evidence to determine whether it is more probable than not that a 

different outcome would have resulted without the error.” Id. at 495. 

The doctrine of entrapment by estoppel precludes prosecution if a defendant can establish 

the following elements: 

(1) that a government official advised the defendant that certain illegal conduct 

was legal, (2) that the defendant actually relied on the government official’s 

statements, (3) that the defendant’s reliance was reasonable and in good faith 
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given the identity of the government official, the point of law represented, and the 

substance of the official’s statements, and (4) that, given the defendant’s reliance, 

prosecution would be unfair. People v Pierce, 272 Mich App 394, 399-400; 725 

NW2d 691 (2006).

“When a defendant claims entrapment, including entrapment by estoppel, the proper 

procedure is for the trial court to hold an evidentiary hearing, at which the defendant bears the 

burden of proving entrapment by a preponderance of the evidence.” Id. at 400. Entrapment, 

including entrapment by estoppel, is “a question of law for the trial court to decide, not a 

question of fact for the jury to resolve.” People v Woods, 241 Mich App 545, 554; 616 NW2d 

211 (2000). 

Here, defendant Nicholson moved for an evidentiary hearing on entrapment by estoppel. 

He provided testimony at the hearing that was substantially similar to his trial testimony. In 

pertinent part, he testified that, during the search of the home, Trooper Ziecina presented him 

with the thermometer and suggested that he refurbish it. Trooper Schreiber stated that items not 

seized would be thrown away, and he looked at the other officers present to gauge if it was 

acceptable for him to take the thermometer. After listening to the testimony, the trial court ruled: 

When I look at the totality of the circumstances, the statements made that he 

could make something nice out of it suggesting to the Court at least that they were 

suggesting that he could take it with him, that it was just going to be trash. These 

are State Police officers making these statements. It appears that it was an old, 

rusty thermometer. In good faith he thought if they don’t have a problem with it 

and it’s just going to be thrown out, that he could do it. I’ll allow the estoppel –

entrapment by estoppel . . . as to that. 

However, when defense counsel inquired if the trial court’s ruling applied to both counts 

or only to the larceny count, the trial court responded that it only applied to the larceny count. 

Defense counsel asserted that the ruling on entrapment should apply to both counts, and that the 

trial court should dismiss both charges. However, the prosecutor interjected that the trial court 

could not dismiss the charges because of entrapment by estoppel. The trial court agreed with the 

prosecutor stating, “I totally agree with that. No. This is just a defense that he can raise at the 

time of – the time of trial.” The trial court expressed that it would provide jury instructions 

related to entrapment by estoppel for both counts. On the first day of trial, Nicholson moved to 

dismiss the case on the basis of caselaw holding that entrapment is a question of law for the court 

to decide. Further, Nicholson argued that the trial court had determined the entrapment defense 

applied. However, the trial court denied the motion explaining, in part: “I said you could raise it 

as a defense and argue it to the jury.” 

We concur with Nicholson that the trial court erred in presenting the entrapment defense 

to the jury because entrapment by estoppel is “a question of law for the trial court to decide, not a 

question of fact for the jury to resolve.” Woods, 241 Mich App at 554. Nonetheless, the trial 

court’s error was harmless and cannot warrant relief because Nicholson was not entitled to the 

defense of entrapment by estoppel. 
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This Court has previously held that entrapment by estoppel is “rarely available,”4 and 

“should be utilized only where an earnest, law-abiding citizen attempts in good faith to comply 

with the law by consulting an appropriate government official, but unfortunately receives 

misinformation.” Woods, 241 Mich App at 560. Nicholson cannot avail himself of the 

entrapment by estoppel defense for three reasons: first, by virtue of his position and experience, 

he knew or should have known better than to take any item for his own use during the execution 

of a search warrant. If a “citizen knows or should know better, but attempts to seek immunity by 

claiming reliance on misinformation obtained from a government employee, prosecution is not 

unfair and estoppel by entrapment should have no application.” Id. (emphasis added). Disclosed 

by his own testimony, Nicholson was a border patrol agent, who had previously been a police 

officer in Maine and received training about when it was appropriate to seize personal property. 

Therefore, he cannot meet the fourth element of the defense because prosecution would not be 

unfair since he knew or should have known better than to take the thermometer because of his 

law-enforcement training. Second, Nicholson cannot satisfy the third element; his reliance on 

any statement or implication that it was legal to take the thermometer could not be reasonable 

and in good faith because of his own experience and training as a police officer. Third, he cannot 

satisfy the first element because no government official advised him that taking the thermometer 

was legal. Indeed, he agreed that no one specifically told him he could take the thermometer and 

that he assumed he could. Thus, even accepting Nicholson’s assertions as what was stated by the 

Michigan State troopers, there was no affirmative representation that Nicholson could take the 

thermometer, let alone a representation that it was legal to do so. Instead, as plaintiff argues, the 

circumstances merely suggested that the other officers tacitly condoned taking the thermometer. 

Further, Nicholson’s assertion that the trial court determined he was entrapped 

and entitled to dismissal of the charges is inaccurate. It is clear from the evidentiary hearing that 

the trial court was under the misconception that entrapment by estoppel was an issue of fact for 

the jury and that it was the trial court’s role to determine whether to permit Nicholson an 

opportunity to present the defense. We reach this conclusion, in part, from the trial court’s 

statement that it would “allow” entrapment by estoppel, and its later statements that entrapment 

by estoppel was a defense for defendant to raise at trial, for which the trial court would provide 

jury instructions. Further, when Nicholson alleged entitlement to dismissal based on the trial 

court’s alleged finding of entrapment at the evidentiary hearing, the trial court denied it 

explaining, “I said you could raise it as a defense and argue it to the jury.” Thus, it is clear that 

the trial court did not intend its ruling to operate as a ruling that defendant was entrapped, but 

only as a determination that Nicholson was entitled to raise that defense for the jury to decide at 

trial. Accordingly, defendant is not entitled to relief on this issue.

Affirmed.

/s/ Deborah A. Servitto 

/s/ Christopher M. Murray 

/s/ Stephen L. Borrello

 4 Quoting United States v Howell, 37 F3d 1197, 1204 (CA7, 1994).