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- Appellee, UNPUBLISHED June 17, 2021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: B OONSTRA

, P .J., and M ARKEY and S ERVITTO , JJ.

P ER C URIAM

.

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,

a long 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 D NA assessment fee.

On December 26, 2018, Deputies David Isre a l, 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, a ccording to the officers, defendant eventually told them that the door was open, and they entered the home. Deputy Isre a l instructed
defendant to put his ha nds behind his back, but, according to the officers, defendant shoved Deputy

Isre a l into Deputy Gonzalez

. D efendant continued to physical ly resist the officers, but they were eventually able to handcuff him and forcefully place him in one of the patrol ca rs. 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 polic e officer , and /or that his trial counsel provided ineffective assistance by approving the instructions. We disagree.- 2

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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 c onstitutional 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 N W2d 909 (1995). “ The trial court is required to instruct the jury concerning the law

a pplicable t o 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 determin e 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 , 25 3 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. ” M

cFall , 224 Mich App at 412

- 413.

T o 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) t he 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

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. “ [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.- 3

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D efendant ’ s position i s 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 lawfulnes s 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. ” P eople 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 de fendant ’ s arrest issued earlier on the d ay 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 inf ormed the jury that it had spoken to the parties and determined that there was no requirement to show
defendant an arrest warrant , and t here was no evidence that the warrant was in valid. 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 a rrest, 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 a rgues 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 ). A n attorney ’ s performance is deficient if “ it fell below an objective standard of professional
reasonablene ss. ” 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 t he 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- 4

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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 INSTRU CTION S

Defendant next argues that the trial court twice p lainly 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 instruction s

. 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 Isre a l 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, wh ich 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 m erits 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). T he statements of which
defendant makes iss ue 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 con trast to his testimony that the officers were the aggressors.

However, d uring 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, re gardless 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 , 27 9 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

s teer 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
request s 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.- 5

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People v Coddington , 188 Mich App 584, 608; 470 NW2d 478 (19 91). Because defense counsel may have had that strategic purpose for confining his immediate display of disapproval regarding the improper testimony to raising sustained objections, d efendant has failed to overcome the presumption of sound strategy in thi s instance, and this Court will not second

- guess trial counsel ’ s strategy. Id

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DNA ASSESSMENT FEE

D efendant lastly argues that the trial court erred by ordering defendant to pay a fee for his
DNA collection. T he 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 Poli ce 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 a dditional 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, b ecause the trial court did not state on the record that defendant had to pay a DNA pro cessing 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 t hat 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