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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 18, 2017

v No. 331356

Berrien Circuit Court RONALD DUANE ROSEBURGH, LC No. 2015-002448-FH

Defendant-Appellant.

Before: M ARKEY , P.J., and M URPHY and M ETER , JJ.

P ER C URIAM

.

Defendant appeals as of right his convictions of assault by st rangulation, MCL 750.84(1)(b), assault with a dangerous weapon (felonious assaul t), MCL 750.82, and assault and battery, MCL 750.81. The trial cour t sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to a term of 76 months to 20 years’ imprisonment fo r the conviction on assault by strangulation, to a concurrent t erm of 48 months to 20 years’ i mprisonment for the felonious assault conviction, and to 93 da ys’ incarceration for the assau lt and battery conviction. We

affirm.

This case arises out of an incident that occurred in the early morning hours of June 5, 2015, in Benton Township. On that day, the victim in this case received a call from her daughter, asking for transportation to the hospital because she had a broken arm. Eventually, the victim, her boyfriend, and her granddaughter got into their veh icle and drove to the home that the victim’s daughter shared with defendant. Upon arrival, the vic tim exited the vehicle and walked to the front porch, where defendant was standing. The victim’s daughter was behind defendant, and the victim became upset when she observed injuries to her d aughter’s face and body, believing defendant to have infli cted those injuries. The vict im and defendant began arguing, defendant told her to leave the property, and, eventually, defe ndant pushed the victim off of the porch. According to defendant, he only did so after the victim attempted to enter the home and prevented him from closing the door.

The victim then walked to a truck parked in the home’s drivewa y, and defendant

followed her. 1 According to the victim’s testimony at trial, she was afraid and attempted to enter

1 The truck was owned or “shared ” by defendant and the victim’s daughter.-2- the truck in order to find a weapon to defend herself. When sh e opened the truck door, defendant slammed the door shut and subsequently choked her, which formed the basis of the charge of assault by strangulation. The vic tim testified that while defe ndant was choking her, he held a metal child’s bicycle in his other hand and threatened her with it, which act formed the basis of the felonious assault charge. 2 According to defendant, he slammed the truck door shut and, a fter the victim began hitting him, he pushed her and the two engaged in a shoving match. Defendant claimed that he did not choke the victim at any point during th e altercation. Defendant did acknowledge that he picked up th e child’s bicycle, but only to defend himself after the victim grabbed a tire iron. The victim’s granddaughter and boyfriend testified that defendant choked the victim and that, during the a ssault, defendant wielded the bicycle in a threatening manner.

On appeal, defendant argues that the trial court erred in refu sing to instruct the jury on the right to use force to protect pro perty or to eject a trespasser , thereby denying him his constitutional right s to a fair trial, t o due process, and to p resent a defense. 3

Issues of law arising from jury instructions are reviewed de n ovo on appeal, but a trial

court’s determination whether an instruction was applicable to the facts of the case is reviewed

for an abuse of discretion. People v Gillis

, 474 Mich 105, 113; 712 NW2d 419 (2006). Reversal based on instructional error is merited only where the defendan t demonstrates “that the asserted instructional error resulted in a miscarriage of justice.” People v Dupree , 486 Mich 693, 702; 788 NW2d 399 (2010), citing MCL 769.26 and People v Lukity , 460 Mich 484, 493-494; 596 NW2d 607 (1999). A miscarriage of justice occurs where “it is more probable than not that a

different outcome would have res ulted without the error.” Lukity , 460 Mich at 495.

“A criminal defendant has the right to have a properly instruc ted jury consider the evidence against him.” People v Rodriguez , 463 Mich 466, 472; 620 NW2d 13 (2000) (quotation marks and citations omitted). Jury instructions mus t include all of the elements of the crimes charged and “must not exclude material issues, defenses, and theories if the evidence supports them.” People v Canales , 243 Mich App 571, 574; 624 NW2d 439 (2000) (citations omitted). A defendant is entitled to a jury instruction when h e requests an instruc tion on a theory or defense that is suppo rted by the evidence. People v Riddle , 467 Mich 116, 124; 649 NW2d 30 (2002). Further, MCR 2.512(D)(2) requires that pertinent porti ons of the Michigan Model Criminal Jury Instructions be gi ven if “(a) they are applicable , (b) they accurately state the applicable law, and (c) they are requested by a party.” The tr ial court is also permitted to give additional instructions on appli cable law not covered by the mo del instructions. MCR 2.512(D)(4); see also Bouverette v Westi nghouse Electric Corp , 245 Mich App 391, 401-402; 628 NW2d 86 (2001) (“When the standard jury instructions do not adequately cover an area, the trial court is obligated to give additional instructions when r equested, if the supplemental instructions properly inform t he jury of the applicable law andare supported by the evidence.”). 4

2 The record does not make clear what specific act formed the ba sis of the simple assault and battery charge.

3 We note that the jury was thor oughly instructed on the issue o f self-defense.

4 There does not appear to be a sta ndard or model instruction on defense of property.-3- In People v Shaffran , 243 Mich 527, 528-529; 220 NW 716 (1928), our Supreme Court

observed:

In the application of the rule that a man may use such force a s is necessary for the protection of his propert y, it must be noted that the p rinciple is subject to this most important qualificati on, that he shall not, except in extreme cases, inflict great bodily harm or endanger hu man life. [Citations and quota tion marks omitted.]

As to defendant’s specific argument on appeal, he maintains tha t one could infer from the evidence that the victim appeared intent on stealing and possib ly damaging the truck and that

defendant’s actions were intended to prevent the theft and then escalated as caused by the victim’s aggressive behavior. Assuming for the sake of argumen t that the charged offenses could theoretically constitute reasonable and necessary force f or purposes of protecting property from damage or theft, which is certainly questionable, especial ly as to assault by strangulation, the evidence simply did not supp ort the requested instruction. Defendant’s own testimony

undermines his assertion that he was entitled to an instruction on the right to use force to protect property, given that he effectivel y testified that his actions were taken in an effort to defend himself from assaultive behavior allegedly perpetrated by the v ictim. And we note that the jury rejected any type of self-defense claim by defendant. Defendan t’s testimony, along with all of the other evidence, cannot be characterized as showing, either directly, circumstantially, or inferentially that defendant emp loyed force against the victim in order to protect the truck from damage or theft. Contrary to de fendant’s claim, at no point di d defendant indicate or suggest that he was concerned about the potent ial destruction or theft of hi s property, let alone that the conduct underlying the charges w as motivated by such concerns. 5

In sum, the trial court did not a buse its discretion by refusin g to issue a “defense of property” jury instruction, consid ering that such an instructio n was not supported by the facts.

Affirmed.

/s/ Jane E. Markey /s/ William B. Murphy

/s/ Patrick M. Meter

5 The prosecution seems to accept the view that the evidence sup ported the requested instruction solely as to the assault and battery charge based on defendant pushing the victim while on his porch in order to prevent her e ntry into the home. However, de fendant makes no such argument on appeal and, again, it is not clear to us that the altercatio n on the porch even formed the basis for the simple assault and battery charge.