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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 19, 2016

v No. 325827 Ingham Circuit Court JOHN EARL EASLEY, LC No. 12-000741-FH

Defendant-Appellant.

Before: T ALBOT , C.J., and H OEKSTRA and S HAPIRO , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial conviction of res isting or obstructing a police officer, MCL 750.81d(1). He was sentenced as a third habitual offender, MCL 769.11, to serve 365 days in jail. For the reasons stated in this opinion, we a ffirm.

This case arises from an incident that occurred in the courtro om of Ingham Circuit Court Judge Clinton Canady, III, during the sentencing of defendant’s girlfriend, Blanche Hayward. The prosecution and defense pres ented highly divergent versions of the incident.

The prosecution presented evidence that the Ingham County Sher iff’s Department was alerted that defendant might beh ave disruptively during Hayward ’s sentencing, so several deputies were present. Hayward’s victims were also present. O ne victim testified that defendant turned toward them a couple of times and, on one occasion, move d his finger across his neck. Deputy Gaspar Mendez testified that when defendant looked over his shoulder toward the victims, he made several comments to them, including “this isn’ t over yet” and “I’ll see you in the hallway.” Deputy Tryon Calkins told defendant to “look for ward . . . and not try to
intimidate or mess with the victims of the crime.”

The victims gave their impact statements and returned to their seats. Deputy Mendez
testified that defendant scowled at them and continued to say t hings like “I’ll see you out in the hallway” and “this isn’t over yet.” Deputy Mendez testified th at he approached defendant, intending to ask him to leave. He said that defendant stood up , saying something like, “this is bullshit.” Deputy Mendez testifie d that defendant was given hi s bag, asked to leave, and that he grabbed defendant’s arm to attempt to lead him out of the court room. Defendant, however, “squared up” to the deputy, pulled his arm away, and allegedly said, “you’re going to have to
make me leave.”-2- Deputy Mendez testified that, at that point, he told defendant he was under arrest for disorderly behavior, but defendant continued to pull away and t ighten his body. Deputy Mendez and another deputy forced defendant to the ground. Deputy Mend ez explained that defendant did not comply with commands to put his hands behind his back a nd that defendant attempted to get up while he and the other deputy were trying to gain physic al control of him. Deputy Mendez radioed for assistance, pul led his taser, pressed it aga inst defendant’s leg, and announced that if defendant continued to resist, he would tase him. Acco rding to Deputy Mendez, defendant responded, “you’re going to have to tase me.” At tha t point, other officers arrived, so Deputy Mendez did not fire his taser.

Defendant, however, testified that he did not make any remarks or gestures during Hayward’s sentencing. He explained that when he learned what h er sentence was going to be, he stood up to put his coat on. Defendant testified that Deputy M endez ran over and blocked him from leaving. He said that Deputy Mendez told him to leave, so he politely responded that he was leaving and reached for his bag, which was being held out b y a deputy. Defendant testified that, as he reached for his bag, Deputy Mendez grabbed him and forced him to the ground. Defendant testified that he was never given the chance to leave and that he had not done anything wrong.

On appeal, defendant a rgues that there was insufficient eviden ce to support his conviction because the deputy’s actions were not lawful. 1 We disagree.

To support a conviction for resi sting or obstr ucting a police officer pursuant to MCL 750.81d(1), the prosecutor must demonstrate that (1) the defend ant 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, ba ttered, wounded, resisted, obstructed, opposed, or endangered was a police officer perform ing 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 establis h that the officers’ actions were lawful”). 2 Defendant argues that there was insufficient evidence that th e deputy’s actions
were lawful.

1 Challenges to the sufficiency of the evidence are reviewed de novo. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010).

2 In this case, the trial court onl y instructed the jury on the first two elements. A criminal
defendant is entitled to have all the elements of the crime sub mitted 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). Accordingly, the jury should have been instructed that the prosecution had to prove beyond a reasonable doubt that th e deputy’s actions were lawful . Defendant, however, has not argued on appeal that he should receive a new trial based on th e trial court’s failure to properly instruct the jury. It is likely that defendant would be entitl ed to a new trial if he had raised the-3- The prosecution, however, argues that Moreno’s lawfulness requirement should not be retroactively applied to defendant’s case. It is undisputed th at the courtroom incident occurred on March 7, 2012. Moreno was decided a little over a month later on April 20, 2012. Defendant, however, was not charged until October 2014—over two years after Moreno was decided.

The prosecution directs us to People v Pulley , 66 Mich App 321; 239 NW2d 366 (1976) for the proposition that the relevant date for retroactivity of a judicial decision is the date on which the conduct took place, not the date of trial. In that c ase, the defendant argued that People

v Beavers , 393 Mich 554; 227 NW 2d 511 (1975) mandated that evidence obta ined in violation of a warrant requirement be excluded from his trial. Id . at 325. The Pulley Court, however, noted
that the Beavers opinion explicitly stated that it was “to be applied prospecti vely.” Id . at 326. Further, given that the primary purpose of the warrant requirem ent was to deter unlawful police behavior, “the effective date of Beavers is the date on which the challenged police conduct occurred, not the date of the trial.” Id . In this case, however, the primary purpose of the lawfulness requirement in Moreno does not relate to a defendant or a police officer’s conduct a t the time the offense was committed. Instead, it relates to an element that the prosecution must

prove at trial . Accordingly, Pulley is inapposite to the facts in this case.

Moreno overruled this Court’s decision in People v Ventura , 262 Mich App 370; 686 NW2d 748 (2004). The Moreno Court concluded that, contrary to the holding in Ventura , the enactment of MCL 750.81d(1) had notabrogated the common law ri ght to resist an unlawful

arrest. Moreno , 491 Mich at 57. In Quinn , this Court addressed whether Moreno should be given retroactive effect in a case where defendant was convicted and sentenced before Moreno
was decided. The Quinn Court held:

The purpose of the new rule announced in Moreno was to reestablish the common-law rule that a person may resist an unlawful arrest, wh ich was deemed abrogated by this Court in Ventura . . . [P]rosecutors and courts relied on Ventura and full retroactivity could upset the public’s interest in the finality of convictions. Therefore, we conclude that the new rule in Moreno should be given
limited retroactive effect to cases in which a defendant raised the issue on appeal and the defendant either preserved it in the trial court or can demonstrate plain error affecting substantial rights[.] [ Quinn , 305 Mich App at 490.]

In this case, given that defenda nt was not convicted at the tim e Moreno was decided, the finality of his conviction is not at issue. Indeed, defendant was not t ried until over two years after

Moreno was decided. Thus, the prosecutor and the court, presumably f ully aware of the lawfulness requirement set forth in Moreno , had no reason to rely on this Court’s decision in

issue. Defendant was sentenced to a year in jail—a sentence th at was well below the guidelines range for a third habitual offender—and he has already served t he entirety of his sentence. Given that there is a reasonable probability that defendant wou ld receive a longer sentence should he be convicted following a new trial, it appears that d efendant’s decision not to raise an instructional error on appeal was strategic. We will not presume that appellate defense counsel was ineffective for failing to raise this issue.-4- Ventura . Accordingly, we conclude that, consistent with Moreno , the prosecution was required to establish that Deputy Mend ez’s actions wer e lawful.

On appeal, defendant argues that Deputy Mendez had no reason t o ask him to leave the
courtroom because he did not shout out or cause a loud disturba nce. Instead, he was merely muttering under his breath and making a subtle rocking motion. After Hayward was sentenced, defendant was getting ready to leave, but Deputy Mendez, acting hastily, snatched defendant’s bag, grabbed him, and attempted to push him out of the courtroo m. Then, when defendant stiffened his arms and squared his body to Deputy Mendez, he wa s wrestled to the ground and eventually placed in lockup. Defendant contends that Deputy Me ndez broke his tooth and that, to cover up a civil suit against the county, defendant was char ged with resisting or obstructing a police officer.

When reviewing a challenge to the sufficiency of the evidence, we view the facts in the light most favorable to the prosecution in order to determine w hether a reasonable trier of fact could find each element of the crime established beyond a reaso nable doubt. People v Lundy

, 467 Mich 254, 257; 650 NW2d 332 (2002). Witness credibility is a question for the jury. People v McRunels , 237 Mich App 168, 181; 603 NW2d 95 (1999).

Contrary to defendant’s present ation of the facts, several witnesses testified that defendant was threatening Haywar d’s victims and making inapprop riate comments. Deputy Mendez testified that he asked defendant to leave because, in h is training and experience, defendant’s behavior was inappropriate for the courtroom. A co urt may temporarily remove disruptive and disorderly persons from the courtroom. In re Hague , 412 Mich 532, 559; 315 NW2d 524 (1982). Thus, there was sufficient evidence to establ ish that Deputy Mendez’s initial command was lawful. Moreover, there was sufficient evidence to establish that Deputy Mendez’s decision to arrest defendant for being a disorderly pe rson was also lawful. A law enforcement officer may make a lawful arrest when a person comm its a felony or misdemeanor in the officer’s presence. Vandenberg , 307 Mich App at 69. Again, there was testimony that defendant threatened Hayward’s victims, made inappropriate comm ents in court, refused to leave the courtroom, pulled away from Deputy Mendez when he tried to escort defendant from the courtroom, physically resisted being handcuffed after being for ced to the ground, and refused to comply with commands to stop r esisting. Finally, defendant kne w or had reason to know that the deputies were law enforcement o fficers performing their duties because the deputies were wearing full uniforms and defendant admitted at trial that he k new they were deputies. Therefore, on this record, there was sufficient evidence to sup port defendant’s conviction.

Affirmed.

/s/ Michael J. Talbot
/s/ Joel P. Hoekstra /s/ Douglas B. Shapiro