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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 3, 2015

v No. 321832 Iron Circuit Court MAUREEN JAYNE GAGNE, LC No. 13-009357-FH

Defendant-Appellant.

Before: M ARKEY , P.J., and S TEPHENS and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals as of right from her conviction following a jury trial of resisting and obstructing, MCL 750.81d(1), for which she was sentenced to 30 days’ in jail. For the reasons explained below, we affirm.

In June 2013, two police officers arrived at defendant’s home to serve a warrant for her arrest for assault and battery a nd to retrieve her daughter’s m edicine. Another officer had informed defendant several days earlier that she would be notif ied and given the opportunity to turn herself in if an arrest warrant was issued. The two offic ers who went to her home were not aware of this conversation.

One of the two officers knocke d on defendant’s door while hold ing the arrest warrant; the second officer stayed a few step s back. The officers had decid ed that they would not initially inform defendant of the warrant because they wanted her assista nce in obtaining her daughter’s medicine first. Defendant ope ned her door, stuck her arm out, and asked for her arrest papers. When asked about the medicine, she told the officers she had fl ushed it down the toilet. At that point she tried to close the sc reen door, but one officer grabb ed it out of her hand and again asked about the medicine. When defendant tried to close the in ner wooden door, the officer stuck his foot out to prevent it from closing. He entered defe ndant’s home, grabbed her arm, and told her she was under arrest and should put her arms behind he r back. When defendant tried to break free, the officer tripped her to gain control of the situ ation. She continued to struggle as the officers placed her in handcuffs.

On appeal, defendant claims that her conviction should be rever sed and the charge dismissed because the officers failed to meet the requirements of MCL 764.18 (arrest under warrant) and MCL 764.21 (right to break open door). Defendant preserved her challenge based on MCL 764.21 by relying on the stat ute in support of a pretria l motion to dismiss the resisting-2- and obstructing charge. Defendant fails to identify where she preserved her argument that the arresting officers violated M CL 764.18. Her counsel mentioned the statute during crossexamination of one of the two officers on the scene, but defend ant did not rely on the statute as a basis for dismissing the charg e. Thus, her argument based on M CL 764.18 is unpreserved.

This Court reviews questions o f law de novo and a lower court’ s factual findi ngs for clear

error. People v McRae , 469 Mich 704, 710; 678 NW2d 425 (2004). Unpreserved issues a re reviewed for plain error affecting substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). An error is pl ain when it is clear or obv ious. Id. at 763. An error affects substantial rights when it “coul d have been decisive of the out come” of the case. People v Grant , 445 Mich 535, 547; 520 NW2d 123 ( 1994). Further, “[r]eversal is warranted only when the plain, forfeited error resu lted in the conviction of an act ually innocent defendant or when an error seriously affect[ed] the f airness, integrity or public re putation of judicial proceedings independent of the defendant’s innocence.” Carines , 460 Mich at 763-764 (internal quotation marks and citation omitted).

Defendant fails to show any vi olation of MCL 764.21, which pro vides as follows:

A private person, when making an arrest for a felony committed in his or her presence, or a peace officer or federal law enforcement off icer, when making an arrest with a warrant or when making a felony arrest without a warrant as authorized by law, may break open an inner or outer door of a b uilding in which the person to be arrested is located or is reasonably believed to be located if, after announcing his or her purpose, he or she is refused admittance.

By its plain language, MCL 764.21 applies only when a person ma king an arrest “break[s] open” the door of a building. Here, the defendant opened the door to her home, and the arresting officers merely entered without her permission after preventing her from closing the door. Thus, the trial court did not clearl y err in concludi ng that MCL 764. 21 was inapplicable.

Defendant also fails to establish plain error with respect to M CL 764.18, which provides as follows:

Where an arrest is made under a warrant, it shall not be neces sary for the arresting officer personally to have the warrant in his possess ion but such officer must, if possible, inform the pe rson arrested that there is a w arrant for his arrest and, after the arrest is made, sh all show such person said warr ant if required, as soon as practicable.

MCL 764.18 applies when a warrant has been issued but the arres ting officer does not personally have the warrant with him at the time of arrest. Under such a circumstance, “such officer” can still make an arrest by complying with the procedures set forth in the statute. The statute is inapplicable here, where the unc ontested evidence showed that t he officers had a warrant for defendant’s arrest with them.

Defendant also argues that h er counsel should have been allowe d to read the text of either MCL 764.18 or MCL 764.21 to the jury. Having failed to put for th any evidence from which a reasonable jury could have belie ved that the arresting officers violated MCL 764.18 or MCL-3- 764.21, defendant was not entitled to have the instructions rea d. People v Kolanek , 491 Mich 382, 411; 817 NW2d 528 (2012) (“If . . . a defendant raises a d efense but fails to present evidence from which a reasonable jury could conclude that the e lements of the defense have been met, then the defendant is not entitled to the defense ins truction and the jury is precluded from considering the defense.”).

Affirmed.

/s/ Jane E. Markey /s/ Cynthia Diane Stephens /s/ Michael J. Riordan