If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

June 17, 2021

V No. 351243

Newaygo Circuit Court

ERIC LEE VANZANT, LC No. 19-012074-FH

Defendant-Appellant.

Before: BOONSTRA, P.J., and MARKEY and SERVITTO, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of resisting a police officer, MCL 

750.81d. The trial court sentenced defendant to serve 210 days in jail and imposed a fine of $100, 

along with various costs including a $60 DNA assessment fee. We affirm defendant’s conviction 

but remand to the trial court for the ministerial task of elimination of any requirement that 

defendant pay a $60 DNA assessment fee.

On December 26, 2018, Deputies David Isreal, Juan Gonzales, and Hunter Niederer went 

to defendant’s house to arrest him based upon an outstanding warrant. Deputy Isreal informed 

defendant through the door that he had a warrant to take him into custody, and repeatedly asked 

him to come to the door. He did not come to the door but, according to the officers, defendant 

eventually told them that the door was open, and they entered the home. Deputy Isreal instructed 

defendant to put his hands behind his back, but, according to the officers, defendant shoved Deputy

Isreal into Deputy Gonzalez. Defendant continued to physically resist the officers, but they were 

eventually able to handcuff him and forcefully place him in one of the patrol cars. Defendant was 

charged with and convicted of one count of resisting a police officer. This appeal followed.

I. INSTRUCTIONS

Defendant first argues that the trial court plainly erred by improperly instructing the jury 

with regard to resisting a police officer, and/or that his trial counsel provided ineffective assistance 

by approving the instructions. We disagree.
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Unpreserved instructional issues are reviewed for plain error affecting substantial rights. 

People v Young, 472 Mich. 130, 135; 693 NW2d 801 (2005). Reversal is warranted only if the 

plain error resulted in the conviction of an innocent defendant or if “the error seriously affected 

the fairness, integrity, or public reputation of judicial proceedings independent of the defendant’s 

innocence.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An unpreserved claim 

of ineffective assistance of counsel is reviewed for errors apparent on the record. People v Unger 

(On Remand), 278 Mich App 210, 253; 749 NW2d 272 (2008). The constitutional question 

whether an attorney provided ineffective assistance, depriving a defendant of his right to counsel, 

is reviewed de novo. Id. at 242.

A defendant has the right to “a properly instructed jury.” People v Mills, 450 Mich 61, 80; 

537 NW2d 909 (1995). “The trial court is required to instruct the jury concerning the law

applicable to the case and fully and fairly present the case to the jury in an understandable manner.” 

Id. Jury instructions are reviewed “in their entirety to determine if there is error requiring reversal.” 

People v McFall, 224 Mich App 403, 412; 569 NW2d 828 (1997). “Jury instructions must not 

exclude consideration of material issues, defenses, and theories for which there is supporting 

evidence.” People v Kurr, 253 Mich App 317, 328; 654 NW2d 651 (2002). See also People v 

McKinney, 258 Mich App 157, 162-163; 670 NW2d 254 (2003). There is no error where the 

instructions “fairly presented the issues to be tried and sufficiently protected the defendant’s 

rights.” McFall, 224 Mich App at 412-413.

To convict a defendant of resisting and obstructing a police officer, the prosecution must 

prove that “(1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or 

endangered a police officer, and (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 performing his or her duties,” and that “the officers’ actions were lawful.” People v 

Vandenberg, 307 Mich App 57, 68; 859 NW2d 229 (2014) (quotation marks and citation omitted). 

In this case, the trial court’s instructions for resisting a police officer were consistent with the law 

and properly instructed the jury regarding the elements of the offense.

Defendant, however, argues that the trial court erred by not informing the jury what 

constitutes a lawful arrest. “[T]he lawfulness of the arrest” is an element of resisting a police 

officer and is “a factual question for the jury.” Vandenberg, 307 Mich App at 68-69. “[T]he right 

to resist unlawful arrests, and other unlawful invasions of private rights, is well established in our 

state’s common law.” People v Moreno, 491 Mich 38, 46-47; 814 NW2d 624 (2012). M Crim JI 

13.5 provides, in pertinent part, as follows:

(1) An arrest is legal if it is made by an officer relying on an arrest warrant 

for the defendant issued by a court.

* * *

(5) The prosecutor must prove beyond a reasonable doubt that the [arrest 

was legal / the (officer / (state authorized person) was acting within (his / her) legal 

authority]. It is up to you to determine whether the [officer’s / (state authorized 

person)’s] actions were legal according to the law as I have just described it to you.
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Defendant’s position is that the police entered the closed door to his home without 

permission and were overly aggressive in arresting him. Defendant also emphasized that he 

believed that the police were required to display the arrest warrant. Because the lawfulness of an 

arrest is an element of the charged crime that the prosecutor must prove, and defendant suggested 

that the police officers’ misconduct provoked his responses, the definition of “lawful arrest” was 

relevant to both the elements of the crime and the defense and so should have been provided by 

the trial court.

However, the omission of such instructional detail was not plain error because it did not 

deprive defendant of a fair trial or affect the outcome of it. “[I]f an applicable instruction was not 

given, the defendant bears the burden of establishing that the trial court’s failure to give the 

requested instruction resulted in a miscarriage of justice.” People v Riddle, 467 Mich 116, 124; 

649 NW2d 30 (2002). As noted, the omitted parts of M Crim JI 13.5 stated that a lawful arrest 

required only that the arresting officer rely on “an arrest warrant for the defendant issued by a 

court.” As defendant conceded in closing argument, there was a valid warrant for defendant’s 

arrest issued earlier on the day of defendant’s arrest, which was admitted into evidence during the 

testimony of Deputy Gonzalez. Defendant, Deputy Gonzalez, and Deputy Isreal all testified that 

the officers advised defendant that they had a warrant for his arrest The trial court informed the 

jury that it had spoken to the parties and determined that there was no requirement to show 

defendant an arrest warrant, and there was no evidence that the warrant was invalid. Further, even 

imperfect instructions do not require reversal if they fairly presented the issues to be tried and 

sufficiently protected the defendant’s rights. McFall, 224 Mich App at 412-413. Because 

defendant did not request the elaboration concerning the lawfulness of an arrest, did not challenge 

the legality of the arrest, and agreed with the jury instructions as given, and because the given 

instructions required the jury to determine whether the officers’ acted lawfully, defendant has not 

demonstrated that the challenged instruction was plain error.

Defendant also argues that his trial counsel provided ineffective assistance by failing to 

request additional instruction on the lawfulness of an arrest. A defendant’s right to counsel is 

guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963 art 

1, § 20. This “right to counsel encompasses the right to the effective assistance of counsel.” 

People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). The “effective assistance of 

counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v 

Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). In order to prevail on a claim of 

ineffective assistance of counsel, a defendant must show (1) “that counsel’s performance was 

deficient” and (2) “that counsel’s deficient performance prejudiced the defense.” People v Taylor, 

275 Mich App 177, 186; 737 NW2d 790 (2007) (quotation marks and citation omitted). An

attorney’s performance is deficient if “it fell below an objective standard of professional 

reasonableness.” People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). The 

performance will be deemed to have prejudiced the defense if it is reasonably probable that, but 

for counsel’s error, “the result of the proceeding would have been different.” Id.

In this case, a request for the instruction about the definition of legal police conduct would 

properly have been approved because it was appropriate for the circumstances of the crime and the 

defense. But, it could have been trial strategy to not request the instruction that defines the legality 

of police conduct broadly when defendant sought to essentially assert that the police were 

responsible for the conflict. The additional instruction would thus not likely have made a 
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difference in the outcome of the case and might even have made it easier for the jury to convict

defendant. Thus, defendant’s trial counsel was not deficient for failing to request the additional 

instruction.

II. CURATIVE INSTRUCTIONS

Defendant next argues that the trial court twice plainly erred by failing to give curative 

instructions immediately after Deputy Isreal provided prejudicial hearsay testimony, and that his 

trial counsel was ineffective for failing to request such instructions. We disagree.

During direct examination, the prosecutor asked Deputy Isreal whether he spoke with 

defendant’s daughter, and he replied that he “basically apologized for her being frightened and she 

made mention that, you know, she knows her dad . . . hates police.” Defense counsel objected that 

the testimony was hearsay, and the trial court sustained the objection. Then, when questioning 

Deputy Isreal on rebuttal, the prosecutor asked him why he had returned to defendant’s home days 

after the incident, and Isreal explained that he was contacted by Child Protective Services, which

was investigating “a violent incident” involving defendant and his son. Defense counsel objected 

that the testimony was irrelevant and prejudicial. The trial court sustained the objection.

Evidence that goes beyond the merits of the case to inject issues broader than the 

defendant’s guilt or innocence, such as “bias, sympathy, anger, or shock” is unfairly prejudicial. 

People v McGhee, 268 Mich App 600, 614; 709 NW2d 595(2005). The statements of which 

defendant makes issue were, in fact, effectively excluded from evidence. Defendant argues that, 

despite the sustained objections, the jury actually heard the statements and thus could have based 

its guilty verdict on their depiction of defendant as angry and violent, in contrast to his testimony 

that the officers were the aggressors.

However, during jury instructions at the close of proofs, the trial court informed the jury

as follows:

At times during the trial, I’ve excluded evidence that was offered or stricken 

testimony that was heard. Do not consider those things in deciding this case. Make 

your decision only on the evidence that I let in and nothing else. Your decision 

should be based on all the evidence, regardless of what party produced it.

. . . To repeat once more, you must decide this case only on the evidence 

admitted during this trial.

“Jurors are presumed to follow instructions, and instructions are presumed to cure most 

errors.” People v Petri, 279 Mich App 407, 414; 760 NW2d 882 (2008). Not only did the trial 

court openly sustain the defense objections to Deputy Isreal’s inadmissible statements, it 

admonished the jury not to consider excluded evidence. The trial court thus acted proactively to 

steer the jury away from considering the challenged statements.

Defendant argues that his trial counsel provided ineffective assistance by failing to request 

curative instructions immediately following Deputy Isreal’s inadmissible statements, which 

requests the trial court presumably would have granted. However, it can be valid trial strategy to 

decline to request a curative instruction in order to avoid highlighting the objectionable testimony. 
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People v Coddington, 188 Mich App 584, 608; 470 NW2d 478 (1991). Because defense counsel 

may have had that strategic purpose for confining his immediate display of disapproval regarding 

the improper testimony to raising sustained objections, defendant has failed to overcome the 

presumption of sound strategy in this instance, and this Court will not second-guess trial counsel’s 

strategy. Id.

DNA ASSESSMENT FEE

Defendant lastly argues that the trial court erred by ordering defendant to pay a fee for his 

DNA collection. The trial court did not verbally address this fee at sentencing, but the initial 

judgment of sentence lists among the various financial obligations imposed “$60 DNA 

ASSESSMENT FEE 2015.” However, the judgment of sentence elsewhere states, “A DNA 

sample is already on file with the Michigan State Police from a previous case. No assessment is 

required.” See MCL 28.176(3). Thereafter, on October 6, 2020, the trial court entered an amended 

judgment of sentence that removed the DNA assessment fee. On the same date, however, the trial 

court entered an additional order requiring defendant to provide a DNA sample. It is thus not clear 

whether defendant is or will still be required to pay a DNA processing fee.

However, because the trial court did not state on the record that defendant had to pay a 

DNA processing fee, and the first judgment of sentence indicates that no assessment is required 

because defendant’s DNA sample is already on file (and apparently has been since 2015), we agree 

with defendant that his judgment of sentence should not include a $60 DNA assessment fee. We 

therefore remand this case to the trial court with instructions to correct/clarify in the amended 

judgment of sentence that defendant is not required to pay the $60 DNA assessment fee. 

Remanded for elimination of any requirement that defendant pay a DNA assessment fee, 

but otherwise affirmed. We do not retain jurisdiction.

/s/ Mark T. Boonstra

/s/ Jane E. Markey

/s/ Deborah A. Servitto