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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 3, 2016 

v No. 324198 

Macomb Circuit Court 

MATTHEW RICHARD SEAR, LC No. 2014-001655-FH 

 Defendant-Appellant. 

Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of resisting or obstructing a police 

officer, MCL 750.81d(1), and disturbing the peace, MCL 750.170. We reverse his conviction for 

resisting and obstructing a police officer and remand for a new trial on that charge. Consistent 

with the prosecution’s position, we vacate the disturbing the peace conviction. 

 Defendant was loudly playing his bass guitar at his home and the police received 

complaints from neighbors. An officer went to defendant’s apartment and knocked on the door. 

According to the officer, defendant refused to keep the volume of his music at a reasonable level, 

and he poked the officer in the chest while telling him to leave. At that point, the officer placed 

defendant under arrest and defendant struggled. According to defendant, after he opened his 

door, the officer unlawfully entered his apartment and attacked him. Defendant asserted that he 

was charged with resisting or obstructing to conceal the officer’s unlawful actions. 

 Defendant first argues that he is entitled to a new trial on the resisting or obstructing a 

police officer charge because the jury was not properly instructed on all the elements of resisting 

or obstructing a police officer. A criminal defendant is entitled to have all the elements of the 

crime submitted to the jury because he or she “has a constitutional right to have a jury determine 

his or her guilt from its consideration of every essential element of the charged offense.” People 

v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011). To support a conviction for resisting or 

obstructing a police officer pursuant to MCL 750.81d(1), the prosecutor must demonstrate that 

(1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a 

police officer, (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 
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performing his or her duties, and (3) that the officer’s actions were lawful. People v Quinn, 305 

Mich App 484, 491; 853 NW2d 383 (2014) (quotation omitted); People v Vandenberg, 307 Mich 

App 57, 68; 859 NW2d 229 (2014). See also People v Moreno, 491 Mich 38, 51-52; 814 NW2d 

624 (2012) (holding that in a prosecution under MCL 750.81d(1) “the prosecution must establish 

that the officers’ actions were lawful”). 

 In this case, the jury was not instructed on the third element, i.e., whether the police 

officer’s actions were lawful. Instead, the jury was instructed on the first two elements and, after 

the jury sent a note inquiring as to the lawfulness of the entry, the jury was instructed that it was 

not to consider the lawfulness of the entry.1

 Accordingly, we reverse and remand for a new trial 

because defendant was entitled to “a properly instructed jury,” People v Mills, 450 Mich 61, 80-

81; 537 NW2d 909 (1995), mod on other grounds 450 Mich 1212 (1995), and because the jury in 

this case was not properly instructed on all three elements of resisting and obstructing a police 

officer, Quinn, 305 Mich App at 494-495 (reversing and remanding the defendant’s conviction 

for resisting or obstructing a police officer because the jury was not instructed on all three 

elements of the crime).2

 Defendant further requests that we vacate his conviction for resisting and obstructing 

rather than remanding for a new trial, asserting that there was insufficient evidence from which a 

jury could have concluded that the police officer’s actions were lawful.3 “For an arrest to be 

 

1

 The actual supplemental instruction was apparently provided to the jury off the record; 

however, after the jury reached a verdict but before the verdict was read, the court placed the 

following exchange on the record: 

The court: The record will reflect all parties are present as is the 

defendant. The Court is advised that we have a verdict. There was a note that 

was provided to the Court as to whether the entry was lawful or not. In that that 

was not decided by the Court, it is not a factual question, it is a legal question and 

the jury is not to make legal determinations. 

Defense counsel has objected to the Court indicating that that is not for 

their consideration, and that I believe is the extent of it. Counsel, is that your 

position? 

Defense counsel: Yes, your Honor, I would object that it—as far as 

whether or not he was in the performance of his duty—if he was in there illegally, 

he would not be in the performance of his duties. [Emphasis added.] 

2

 We reject the prosecution’s argument that Quinn was wrongly decided as we agree with the 

analysis and holding of that case. 

3

 Challenges to the sufficiency of the evidence are reviewed de novo. People v Ericksen, 288 

Mich App 192, 195; 793 NW2d 120 (2010). When ascertaining whether sufficient evidence was 

presented at trial to support a conviction, we view the evidence in a light most favorable to the 

prosecution and determine whether a rational trier of fact could find that the essential elements of 
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lawful, the police officer making the arrest must have probable cause, either that a felony or 

misdemeanor was committed by the individual in the officer’s presence, or that a felony or 

specified misdemeanor (i.e., a misdemeanor punishable by imprisonment for more than 92 days) 

occurred outside the officer’s presence and that the individual in question committed the 

offense.” Vandenberg, 307 Mich App at 69. Here, the officer testified that he was standing 

outside defendant’s apartment and defendant stepped forward and poked him in the chest. 

Additionally, defendant’s neighbor testified that the officer was calm, but that defendant was 

yelling profanities and derogatory names and that it was defendant who initiated the altercation. 

From this testimony, a rational jury could infer that the officer had reasonable cause to believe 

that defendant committed a crime, i.e., assault on the officer. Accordingly, we reject the 

defendant’s claim of insufficient evidence. 

 Defendant also argues that there was insufficient evidence to support his conviction for 

disturbing the peace. At oral argument, the prosecutor conceded that defendant’s disturbing the 

peace conviction was supported by insufficient evidence. Accordingly, we vacate that 

conviction. People v Mitchell, 301 Mich App 282, 294; 835 NW2d 615 (2013).4

 We reverse and remand for a new trial on the charge of resisting or obstructing a police 

officer, and we vacate defendant’s conviction for disturbing the peace. We do not retain 

jurisdiction. 

/s/ Elizabeth L. Gleicher 

/s/ Kathleen Jansen 

/s/ Douglas B. Shapiro 

the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 

NW2d 85 (2012). 

4

 Given our resolution of the issues, we need not address defendant’s argument that the trial court 

erred in refusing to appoint substitute counsel.