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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 9, 2017

v No. 331154 Dickinson Circuit Court ROBERT MAKSYMILIAN SOLECKI, LC No. 15-005121-FH

Defendant-Appellant.

Before: G ADOLA , P.J., and J ANSEN and S AAD , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of re sisting and obstructing a police officer, MCL 750.81d(1), fourth-degree fleeing and eludi ng a police officer (fleeing and eluding), MCL 257.602a(2), and oper ating a vehicle with a suspe nded license, second offense, MCL 257.904(1) and (3)(b). He was se ntenced to eight months in jail for each conviction. We affirm. I. FACTS

Defendant was spotted by police driving an off-road vehicle (O RV) on two roadways and failing to stop at a stop sign. Upon pulling defendant over, M ichigan State Police Trooper Ryan Rossler discovered that defendant’s license was suspended. Def endant was told he was going to be arrested and taken to jail. Defendant had two dogs with him and was concerned about what would happen to them and the ORV. Trooper Rossler offered seve ral options on how to transport the dogs and the ORV to defendant’s home, all of whic h defendant refused. Defendant told Trooper Rossler he was going home and drove away from the scene. Trooper Rossler followed defendant for the approximate 1⁄2 mile to defendant’s ho me. Defendant put his dogs inside his residence, sat in a lawn chair in his yard, and cont inued to refuse to cooperate with the police. Eventually, Trooper Rossler and another officer physic ally removed defendant from the lawn chair. He was handcuffe d and transported to jail.

II. SUFFICIENCY O F THE EVIDENCE

Defendant argues that there was insufficient evidence presente d to convict him of fourthdegree fleeing and eluding. We disagree.-2- We review this argument de novo. People v Harverson , 291 Mich App 171, 177; 804 NW2d 757 (2010). “A court must ‘view the evidence in a light m ost favorable to the prosecution and determine if any rational trier of fact could have found th at the essential elements of the crime were proven beyond a reasonable doubt.’ ” People v Cline , 276 Mich App 634, 642; 741 NW2d 563 (2007) (citation omitted). “Circumstantial evidence a nd the reasonable inferences that arise from that evidence can constitute satisfactory proof of the elements of the crime.” People v Henderson , 306 Mich App 1, 9; 854 NW2d 234 (2014).

MCL 257.602a provides, in relev ant part, as follows:

(1) A driver of a motor vehicle who is given by hand, voice, e mergency light, or siren a visual or audible signal by a police or conse rvation officer, acting in the lawful performance of his or her duty, directing the dri ver to bring his or her motor vehicle to a stop shal l not willfully fail to obey th at direction by increasing the speed of the moto r vehicle, extinguishing the li ghts of the motor vehicle, or otherwise attempti ng to flee or elude the officer. This subsection does not apply unless the police or c onservation officer giving the signal is in uniform and the officer’s vehicle is identified as an official police o r department of natural resources vehicle.

(2) Except as provided in subsection (3), (4), or (5), an indi vidual who violates subsection (1) is guilty of fourth-degree fleeing and eluding, a felony punishable by imprisonment for not more than 2 years or a fine of not more than $500.00, or both.

Fleeing and eluding is a general intent crime and only require s the intent to do the physical act of fleeing and eluding an officer. People v Abramski , 257 Mich App 71, 73; 665 NW2d 501 (2003).

Defendant’s sufficiency challe nge is focused on the intent ele ment of the crime. He argues that because he did not intend to permanently flee or elude the police, as evidenced by his testimony that he told Trooper Ro ssler he was heading home and that Trooper Rossler should meet him there, the evidence was constitutionally insufficient to convict him of the crime. Defendant misunderstands the behavior the statute is designed t o proscribe. The statute is focused on punishing the willful failure to obey a directive by an identifiable police or conservation officer. In other words, the f ocus is on the act of disobedience, not the perpetrator’s internal mindset on how long he or she is attempting to avoid a rrest. The statute is designed to protect the public from harm stemming from the failure to obey in circumstances where the perpetrator is driving a motor ve hicle, which can, if operated in an unsafe manner, cause injury to persons and property. This is further evidenced by the incr eased penalties provided where “the violation results in a c ollision or accident,” MCL 257.602 a(3)(a), the “violation occurred in an area where the speed limit is 35 miles an hour or less,” MCL 257.602a(3)(b), and “the violation results in serious injury,” MCL 257.602a(4)(a), or “d eath of another individual,” MCL 257.602a(5). In other words, the statute is a public safety me asure intended to punish the failure-3- to comply with lawful orders from police. It is not intended t o simply punish a singular intent to avoid capture on the part of a defendant. 1

Viewing the evidence in the light most favorable to the prosec ution, there was sufficient evidence to establish that defendant intended to flee and elude Trooper Rossler. The statute expressly notes that fleeing and eluding can be shown by a defe ndant “increasing the speed of the motor vehicle” after being signaled to stop. MCL 257.602a( 1). Although there is no evidence that defendant attempted to elude capture by increasin g the speed of the ORV when he was seen by Trooper Rossler, defendant did increase the speed o f the ORV from a complete stop and drove away after repeatedly b eing warned that he could be c harged with fleeing and eluding if he left the scene of the traffic stop. He drove over 1⁄2 mile to his home. “[T]he use of the ejusdem generis clause ‘or otherwise attempting’ means that act s or conduct of the same kind, class, or character as speeding or extinguishing lights are als o included within the offense.” People v Grayer , 235 Mich App 737, 740 n 2; 599 NW2d 527 (1999). 2 Driving away from an officer after being stopped is of the same kind, class, or char acter as increasing a vehicle’s speed to elude a pursuing police officer. See id. at 745 (“[T]he statute itself does not limit fleeing and eluding to high-speed or long-distance chases.”). While defend ant informed Trooper Rossler where he intended to go, he still fled 3 the scene of the initial traffic stop and eluded, 4 or evaded the officer, for over 1⁄2 mile. In sum, viewing the evidence in the light most favorable to the prosecution, it is clear that there was sufficient evidence to establish that defendant intended to flee and elude a police officer.

III. GREAT WEIGHT OF THE EVIDENCE

Defendant also argues that his f ourth-degree fleeing and eludi ng conviction is against the great weight of the evidence. “Th e test to determine whether a verdict is against the great weight of the evidence is whether the e vidence preponderates so heavil y against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” People v Lacalamita , 286 Mich App 467, 469; 780 NW2d 311 (2009). This issue was not preserved be low through the filing of a

1 The sentencing guidelines identi fy fourth-degree and third-deg ree fleeing and eluding as crimes against public safety, and second- and first-degree fleeing and eluding as crimes against a person. MCL 777.12e.

2 We note that although Grayer involved the crime of fleeing a nd eluding as outlined in MCL 750.479a, the two fleeing and eluding statutes contain nearly i dentical relevant language. See MCL 750.479a; MCL 257.602a.

3 Grayer notes that “Random House Webste r’s College Dictionary (1997) de fines ‘flee’ as ‘to run away, as from danger or pursuers; take flight; to move of p ass swiftly; fly; speed’ ” Grayer
, 235 Mich App at 741 (citation omitted).

4 Grayer notes that “Random House Webste r’s College Dictionary (1997) de fines . . . ‘elude’ as ‘to avoid capture or escape by detection by; evade.’ ” Grayer , 235 Mich App at 741 (citation omitted).-4- motion for new trial. See People v Cameron , 291 Mich App 599, 617; 806 NW2d 371 (2011). Therefore, the issue is reviewed for plain error affecting defe ndant’s substantial rights. Id

. “Generally, a verdict may be vacated only when the evidence doe s not reasonably support it and it was more likely the result of causes outside the record, suc h as passion, prejudice, sympathy, or some other extraneous influence.” Lacalamita , 286 Mich App at 469. Defendant again argues, in effect, that because he did not intend to permanentl y evade the police, he cannot be guilty of violating MCL 257.602(a). As stated above, this argu ment is without merit. Therefore, defendant cannot establish plai n error affecting his substantia l rights.

IV. MOTION FOR MISTRIAL

Next, defendant argues that the trial court abused its discret ion by denying his motion for a mistrial predicated on comments made by the prosecutor in her rebuttal argument. We disagree.

We review a trial court’s decision to deny a motion for a mist rial for an abuse of discretion. People v Lane , 308 Mich App 38, 60; 862 NW2d 446 (2014). “ The trial court a buses its discretion when its decision falls outside the range of pri ncipled outcomes.” Id . “The trial court should only grant a mistri al for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial and when the prejudicial effect of the error cannot be removed in any other way.” Id . (citations and quotation marks omitted). In addition, “[t]he trial court may consider, among other things, whether th e prosecutor intentionally presented the information to the j ury or emphasized the informa tion.” Id

. Underlying defendant’s argument is a claim of prosecutorial mi sconduct. “Given that a prosecutor’s role and responsibility is to seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant was denied a fa ir and impartial trial.” People v Dobek , 274 Mich App 58, 63; 732 NW2d 546 (2007). In considering a c hallenge to remarks made by a prosecutor, we examine the context in which they were made, including arguments made by the defense and “the relationship the comments bear to the evidence admitted at trial.” Id . at 64.

Defendant challenges the following statements made by the pros ecutor in her rebuttal argument regarding the lack of me dical evidence of injuries def endant asserted he sustained when arrested:

I was waiting to hear some comments about the Defendant’s inju ries as a result of this incident, and I didn’t hear that, but I would be remiss if I didn’t address that . . . .

Now, you were able to hear with your own ears the Defendant la ughing and joking with Trooper Rossler on the way to the jail talking about fishing. That isn’t someone who’s suffering with multiple broken ribs and a d islocated shoulder, ladies and gentlemen. Believe you me, if he were injured in this incident, you would have heard medical testimony . [Emphasis added.]-5- We agree with defendant that the prosecutor’s statements regard ing the absence of medical evidence were improper. Her argument implies that defendant ch ose not to provide such evidence. However, the trial court excluded as irrelevant a me dical discharge summary and testimony of a nurse. Therefore, we conclude that the prosecut or’s statements were improper.

Regardless, we conclude that the trial court did not abuse its discretion by denying the motion for a mistrial. Defendant immediately objected to the p rosecutor’s comments. Finding the comments improper, the cour t gave the follo wing curative in structions:

Ladies and gentlemen of the j ury, you will dis regard any refer ence in these closing remarks to there being any medical documentation. Ther e has not been any proof of any medical documen tation. There was an offer of some nursing discharge statement. The Court ruled that that was not admissi ble. There was an attempt on the Defendant’s part to admit that. The Court ruled that it was not relevant to these proceedings, and that’s why you didn’t hear i t. It shouldn’t be held against the Defendant for not attempting to offer it.

* * *

[W]hen I rule that something is inadmissible, it’s inadmissible , and that’s why you didn’t hear it. It wasn’t because anyone was trying to hid e it, but it was not admissible evidence in this cas e. So the fact that you didn’t hear it does not weigh in this case at all.

“ ‘Jurors are presumed to follow their instructions, and instru ctions are presumed to cure most errors.’ ” People v Ericksen , 288 Mich App 192, 199-200; 793 NW2d 120 (2010) (citation omitted). These instructions were sufficient to cure the error made by the prosecutor. The court clearly explained to the jury the lack of medical documentation in the record and that no one was trying to hide it. Therefore, the trial court properly denied defendant’s motion for a mistrial.

V. CIVIC DUTY AN D BOLSTERING

Defendant also argues that the prosecutor committed misconductby improperly appealing to the jurors’ sense o f civic duty and placing the pr estige of her office in issue. We disagree.

Defendant failed to raise these specific objections. “In orde r to preserve a claim of prosecutorial misconduct for appe llate review, a defendant must have timely and specifically objected below, unless objection co uld not have cured the error .” People v Brown , 294 Mich App 377, 382; 811 NW2d 531 (2011). Accordingly, the issue is u npreserved. “Unpreserved claims of prosecutorial misconduc t are reviewed for plain error affecting substant ial rights.” Id

. Generally, prosecutors are given great latitude in their argum ents at trial. People v Seals
, 285 Mich App 1, 22; 776 NW2d 314 (2009). “To determine if a pr osecutor’s comments were improper, we evaluate the prosecutor’s remarks in context, in l ight of defense counsel’s arguments and the relationship of these comments to the admitte d evidence.” Id . While prosecutors cannot mischaracterize evidence, they are free to a rgue reasonable inferences that-6- arise from the evidence. People v Callon , 256 Mich App 312, 330; 662 NW2d 501 (2003). A civic duty argument “inject[s] i ssues broader than guilt or inn ocence or encourage[es] jurors to suspend their powers of judgment.” People v Thomas , 260 Mich App 450, 455-456; 678 NW2d 631 (2004). Defendant takes issue with the following statement s in the prosecutor’s rebuttal argument:

And, quite frankly, I find it appa lling that the Defendant woul d come into this courtroom and claim that these officers injured him as kind and as respectful as they were to him up until the very end of this ordeal. They do n’t deserve that kind of treatment. These are p rofessionals who get up every mo rning, put on that blue uniform, putting their lives in danger to protect and serv e the lives of you and me and him. And to come into a court of law and make those kin d of wild claims that are unfounded and unsupported by any evidence is unspeakab le.

We conclude that to the extent that the prosecutor’s statement s constituted an improper civic duty argument, any minimal prejudice from the statements was cured by the court’s jury instructions. The court instructed the jurors it was their res ponsibility to “return a true and just verdict based only on the eviden ce” and the court’s instruction s, and cautioned that they “must not let sympathy or prejudice i nfluence [their] decision.” The refore, we conclude that even assuming that the prosecutor’s discussion constituted an improp er civic duty argument, defendant cannot establish prejudice. See Thomas , 260 Mich App at 456.

Defendant also argues that the p rosecutor put the prestige of her office in issue and inappropriately bolstered her cas e, which encouraged the jurors to suspend their own powers of critical analysis. Defendant c hallenges the following argument :

There is no reasonable doubt as to what occurre d on May 3, 201 5. And, in fact, I would submit to you that t he Prosecution has met its bu rden beyond any shadow of a doubt. It’s not very often that I say that. We as k you to find the Defendant guilty as charged because he is guilty as charged.

It is well understood that prosecutors must not express their personal opinions of a defendant’s guilt. See People v Bahoda , 448 Mich 261, 286; 531 NW2d 659 (1995). In this case, however, the prosecutor di d not use the prestige of her o ffice to express her personal opinion of defendant’s guilt. Instead, she was merely arguing that the prosecution had met its burden of proof. Her assertion that she does not often express such confidence to a jury is only an expression of her conviction th at defendant’s guilt had beenestablished by the evidence adduced. Utilizing the phrases “I would submit to you” and “[w ]e ask you to find” did not ask the jurors to suspend their ow n powers of critical analysis. R ather, the comments explicitly invoked the jury’s role in decidi ng defendant’s guilt or innoce nce. Therefore, defendant’s argument is without merit.

Affirmed.

/s/ Michael F. Gadola /s/ Kathleen Jansen /s/ Henry William Saad