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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 17, 2015

v No. 322788 Ogemaw Circuit Court JAMEY LEE ROLLAND, LC No. 13-004216-FH

Defendant-Appellant.

Before: M ETER , P.J., and B ORRELLO and B ECKERING , JJ.

P ER C URIAM

. A jury convicted defendant o f resisting arrest, MCL 750.81d(1) ; resisting arrest causing injury, MCL 750.81d(2); malicious destruction of personal prope rty valued less than $200, MCL 750.377a(1)(d); and domestic violence, MCL 750.81(2). He was s entenced as a third-offense habitual offender, MCL 769.11, to prison terms of 18 months to 4 years for resisting arrest and 22 months to 8 years for resisting arrest causing injury, and t o 93 days in jail for domestic violence and malicious destruc tion of personal property. Defen dant appeals as of right, challenging his convictions for resisting arrest on the basis t hat the trial court erred in failing to instruct the jury regarding his defense that the officers used excessive force in effectuating his arrest. We affirm.

Tonya Rolland, defendant’s wife, stated that she and defendant were arguing outside of their mobile home when defendant slapped her. A 13-year-old bo y testified that he saw defendant throw his hands in the air and yell at his wife, “I h ave a gun and ammo and I’m not afraid to kill you.” The boy ran home and told his mother, who called 911. Tonya testified that as she was walking away from her residence, she encountered Oge maw County Sheriff’s Office Deputy Robert Weishuhn. Michigan State Police Trooper Renee Ri ckel was on duty when a call came across the radio that there was a man with a gun at the mo bile home community. When she arrived, she saw Weishuhn speaking with Tonya on the side o f the road, and after they conferred, Rickel and Weishuhn proceeded into the community in their patrol cars. Rickel testified that they pulled into d efendant’s driveway, and defen dant was on the porch, bent over with his back toward the officers.

Weishuhn testified that he approached defendant, asking him wha t had happened, but defendant did not say anything. Weishuhn testified that he saw “at least probably a dozen pill[s] in the back of [defendant’s] mouth.” Rickel saw Weishuhn hold his hand out, inviting defendant-2- to hand over the contents of hi s mouth; Weishuhn then “placed o ne hand on [defendant’s] cheeks to try to get him to stop chewing.” Weishuhn testified that he grabbed defendant by the jaw to prevent him from chewing because “now the situation changed, we have to protect him.” Rickel testified that defendant pulled away, and a “tussle” began. We ishuhn testified that defendant had grabbed his hand, and the “fight was on.”

According to Weishuhn, the two fell back on a chair and defenda nt’s head was “right down in the rail” of the chair. Weishuhn continued to tell def endant to put his hands behind his back. Weishuhun then “drive-stunned” defendant with a Taser. That did not cause defendant to comply, and as Rickel was attempting to gain control of defenda nt’s hands or feet, defendant grabbed her left hand, bending her fingers back. Rickel was te lling defendant to stop, and he proceeded to kick her in the midsection, pushing her against th e porch railing. Rickel testified that at that point, defendant “grabbed a hold of” the Taser and would not let it go. Because he would not release the Taser, Rickel sprayed pepper spray in def endant’s face. Defendant “sat there,” let go of the Taser, but f ailed to comply with the comm and to get on the ground.

Rickel was able to get defendant on the ground, where he lande d on his hands and knees. Despite the commands to do so, defendant would not lay flat, so Weishuhn again used his Taser, causing defendant to go “prone.” Defendant would still not pla ce his arms behind his back, so Rickel placed one foot on defendant’s back with “downward press ure.” She testified that defendant yelled that she was “breaking his f--king back.” Def endant eventually put his hands behind his back and was handcuffed. Weishuhn testified that de fendant said he was “gonna kill [Weishuhn] . . . and that female . . . .”

Defendant testified that he had gum, not pills, in his mouth a nd that Weishuhn then grabbed his throat and slammed him down on the wicker chair. D efendant testified that he struggled because this was happening “out of the blue,” and whe n he realized that Weishuhn was reaching for a Taser, defendant pushed it away. Defendant test ified that Weishuhn then struck him on the head with the butt of the Taser, splitting his eye o pen. After that, defendant testified, Weishuhn tased him while Rickel s prayed him with pepper spray.

During a pretrial hearing, the prosecution took issue with def endant’s proposed jury instructions that would have pr ovided a defense to the resistin g-arrest charges if the jury believed that defendant was using reasonabl e force to protect himself ag ainst the officers’ use of excessive force. The prosecution argued that a defendant charged with resisting an arrest has no right to resist physically the arrest whe re the arrest was lawful as, th e prosecution maintained, it was in this case. Defense counsel res ponded that the special instruct ion was based on People v Moreno

, 491 Mich 38; 814 NW2d 624 (2012), which held that a person has the right to resist illegal police conduct. The trial court took the matter under adviseme nt. The trial court read preliminary instructions to the jury at the beginning of the tr ial, and both parties indicated their express approval. The trial court then addressed defendant’s p roposed special instruction, ruling that defense counsel could not address it in the opening statem ent, but depending on the evidence, the defense could renew its motion at the end of the trial. Defense counsel did renew the motion, and after summarizing Moreno and the evidence presented in this case, the trial court concluded that the special ins truction was not appropriate. Gi ven the arguments made, and contrary to the prosecution’s ur ging to the contrary, we choose to treat the issues raised in this appeal as preserved.-3- “ ‘Claims of instructional error are generally reviewed de nov o by this Court, but the trial court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.’ ” People v Henderson , 306 Mich App 1, 3; 854 NW2d 234 (2014), quoting People v Dobek , 274 Mich App 58, 82; 732 NW2d 546 (2007). “An abuse of discr etion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.” People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). Jury instructions are viewed “in thei r entirety to determine if ther e is error requiring reversal.” People v Wess , 235 Mich App 241, 243; 597 NW2d 215 (1999). See also People v Kowalski , 489 Mich 488, 501-502; 803 NW2d 200 (2011) (stating that “an imperfect i nstruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant’s rights”).

“This Court also reviews de novo the constitutional question w hether a defendant was denied her constitutional right to present a defense.” People v Kurr , 253 Mich App 317, 327; 654 NW2d 651 (2003).

“Jury instructions must include all the elements of the charge d offense and must not exclude material issues, defenses, and theories that are suppor ted by the evidence.” People v Crawford , 232 Mich App 608, 620; 591 NW2d 669 (1999). The fact that an instruction “omit[s] an element of an offense, or othe rwise misinform[ s] the jury of an offense’s elements, do[es] ‘not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” Kowalski , 489 Mich at 501, quoting Neder v United States , 527 US 1, 9; 119 S Ct 1827; 144 L Ed 2d 35 (1999) (alteration added; emphasi s by Neder ). Rather, a preserved claim of instructiona l error is reviewed under the ha rmless-error standard, and requires a “thorough examination of the record” in determining whether, beyond a reasonable doubt, “the jury verdict would have been the same absent the error[;] for e xample, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding[,] [a court] should not find the error harmless.” Neder , 527 US at 19.

In 2002, the Legislature enacted t he current version of the re sisting-arrest statute, MCL 750.81d, 1 which was interpreted in People v Ventura , 262 Mich App 370, 374-377; 686 NW2d 748 (2004), as abrogating the common-law rule that a person may resist an unlawful arrest and removing as an essential element of the crime that the arrest b e lawful. However, the Michigan Supreme Court disagreed and overruled Ventura in Moreno , holding that the Legislature’s removal of the statute’s reference to the officer’s “lawful act s” did not signal an intent to abrogate the common-law right to resist unla wful arrests. Moreno , 491 Mich at 46-52.

In the wake of Moreno , “the prosecution must establish that the officers acted lawfu lly as an actual element of the crime of resisting or obstructing a po lice officer under MCL 750.81d.” People v Quinn , 305 Mich App 484, 492; 853 NW2d 383 (2014). However, and sig nificantly, defendant does not challenge the c onclusion that the arrest was valid based on probable cause that he committed domestic violence against his wife. Further, the record demonstrates that there

1 A 2006 amendment was enacted; it is not pertinent to this appe al.-4- is no reason to doubt that probable cause existed to make the a rrest. See People v Mitchell , 138 Mich App 163, 167; 360 NW2d 158 (1984) (stating that in determi ning whether probable cause existed for an arrest, a “reviewing court must determine whethe r facts available to the officer at the moment of arrest would justify a fair-minded person of aver age intelligence in believing that the suspected person” committed a crime). 2

Defendant claims that the arrest was rendered unlawful by the claimed use of excessive force on the part of the police. However, the common-law right to resist an unlawful arrest arises where the initial arrest itself was unlawful. See, e.g.

, Moreno , 491 Mich at 43 (involving an unlawful, warrantless entry into defendant’s home); People v Krum , 374 Mich 356, 360; 132 NW2d 69 (1965) (considering the defendant’s assertion that ther e was no probable cause to stop and search his car); Quinn , 305 Mich App at 493 (addressing whether the officers had a sufficient reasonable suspicion to justify the detention); and Ventura , 262 Mich App at 372-373 (addressing whether an officer could make a legal arrest in the defendant’s home). To the extent defendant attempts to use nonbinding case law to persuade us th at a defendant is allowed to argue “excessive force” as an affirmative defense to a resistin g-arrest charge when the initial arrest itself was lawful , we reject this attempt. 3

Under the circumstances of thi s case, the instructions fairly presented the issues to be tried and protected defe ndant’s rights.

Affirmed.

/s/ Patrick M. Meter /s/ Stephen L. Borrello /s/ Jane M. Beckering

2 MCL 764.15(1)(d) indicates that a police officer may arrest a person without a warrant if the officer “has reasonable cause to believe a misdemeanor punishab le by imprisonment for more than 92 days or a felony has been committed and reasonable caus e to believe the person committed it.”

3 We note that a defendant is not without recourse if an instanc e of excessive force occurs during a lawful arrest. Indeed, a defendant may request a prosecutor to press charges against the police or may initiate a civil lawsuit.