            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 22, 2019
               Plaintiff-Appellee,

v                                                                   No. 342225
                                                                    Livingston Circuit Court
MICHAEL FARNSWORTH,                                                 LC No. 16-023521-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and TUKEL, JJ.

PER CURIAM.

       Defendant appeals as of right his convictions of four counts of resisting or obstructing a
police officer, MCL 750.81d(1), and one count of public intoxication and being a disorderly
person, MCL 750.167(1)(e). We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Prior to 2:00 a.m. on February 20, 2016, Brighton Police Department Officers Anthony
Mitchell, Christopher Parks, and Thomas Sliwa responded to a call reporting an assault at a local
bar. Upon arriving, the officers observed defendant, along with several staff and security
members, outside the bar on the sidewalk. Bar staff informed Parks that defendant, who was
visibly intoxicated, had been told to leave the bar, had refused, had attempted several times to
push and force his way back in, and had attempted to punch two bouncers, grazing one bouncer’s
face. Parks and Sliwa decided to issue defendant a civil infraction for drunk and disorderly
conduct under a local ordinance.

         However, while Sliwa began writing the ticket in his patrol car, defendant’s actions
became more erratic. He approached the bar doors and yelled profanities at the security staff.
Defendant also went in and out of the street, and Parks observed that there was a fair amount of
traffic. Additionally, at this point, it was closing time, and a substantial number of patrons were
filtering out of the bar.

       The officers informed defendant that he would be receiving a ticket for being drunk and
disorderly and for refusing to leave the bar when directed to do so. Defendant became “very
agitated” and “very argumentative” with the officers, swearing at them, using vulgar language,
yelling at them, refusing to obey commands, and being uncooperative. Defendant also
approached and began yelling at a fourth police officer on the scene, Livingston County Sheriff’s
Office Sergeant Kretzschmer, and he refused to comply with Kretzschmer’s commands to step
away. Parks advised defendant that he had two options: either get into the cab that the officers
had called for him, or go to jail. Parks repeated these two options three times, but defendant
refused to choose and, instead, continued to yell at the officers. Defendant then approached
Sliwa with an outstretched hand, and the officers grabbed defendant’s arms and wrists and
decided to arrest him for the misdemeanor offense of being a disorderly person under MCL
750.167. Defendant resisted the officers’ attempts to handcuff him and, once handcuffed,
refused several commands to enter the patrol car’s backseat. Following a struggle, the officers
were finally able to get defendant fully into the patrol car.

       At trial, defense counsel moved for a directed verdict, arguing that the arrest was
unlawful and that the prosecution had not presented enough evidence for a rational trier of fact to
be persuaded that the arrest had been lawful. Defense counsel argued that, under People v
Moreno, 491 Mich 38; 814 NW2d 624 (2012), defendant had the common-law right to resist this
unlawful arrest. The trial court denied defendant’s motion.

                                         II. ANALYSIS

       Defendant’s sole argument on appeal is that the trial court erred by denying defendant’s
motion for a directed verdict because the evidence was insufficient for a rational trier of fact to
be persuaded that the arrest was lawful. We disagree.

                                 A. STANDARD OF REVIEW

       This Court reviews de novo the trial court’s decision on a motion for a directed verdict.
People v Quinn, 305 Mich App 484, 491; 853 NW2d 383 (2014). This Court must view the
evidence in the light most favorable to the prosecution to determine whether such evidence
“could persuade a rational trier of fact that the essential elements of the crime charged were
proved beyond a reasonable doubt.” Id. (quotation marks and citations omitted).

                                        B. DISCUSSION

       The trial court did not err by denying defendant’s motion for a directed verdict.
Examining the evidence in the light most favorable to the prosecution, a rational trier of fact
could be persuaded that the arrest was lawful.

        Our Supreme Court in Moreno recognized the common-law right to resist an unlawful
arrest. Moreno, 491 Mich at 58. The Court stated that “the right to resist unlawful arrests, and
other unlawful invasions of private rights, is well established in our state’s common law.” Id. at
46-47.

       An arrest may be lawful in multiple ways. Relevant to this case, “[f]or an arrest to be
lawful, the police officer making the arrest must have probable cause . . . that a felony or


                                                -2-
misdemeanor was committed by the individual in the officer’s presence . . . .”              People v
Vandenberg, 307 Mich App 57, 69; 859 NW2d 229 (2014).

        Defendant argues that his arrest was unlawful because it was based at least in part on a
violation of the local ordinance, a civil infraction, which cannot be the basis for a warrantless
arrest. Defendant maintains that the evidence could not persuade a rational trier of fact that the
arrest was lawful. However, we find defendant’s arguments unpersuasive because the arrest was
not based on the civil infraction but, rather, on two criminal offenses committed in the officers’
presence: (1) being a disorderly person in violation of MCL 750.167 and (2) resisting or
obstructing a police officer.

       A rational trier of fact could be persuaded that defendant committed, in the officers’
presence, the misdemeanor offense of being a disorderly person.

       MCL 750.167(1)(e) provides:

               (1) A person is a disorderly person if the person is any of the following:

                                             * * *

             (e) A person who is intoxicated in a public place and who is either
       endangering directly the safety of another person or of property or is acting in a
       manner that causes a public disturbance.

A violation of MCL 750.167 is a misdemeanor offense. MCL 750.168(1).

       At trial, Officers Parks, Sliwa, Mitchell, and Kretzschmer all testified that they believed
defendant to have been heavily intoxicated. Parks testified specifically that defendant’s clothes
were disheveled, his speech was slurred, he swayed, there was alcohol odor on his breath, and his
eyes were glossy and bloodshot. Additionally, a security guard for the bar testified that
defendant was “stagger stepping” and “kind of stumbly,” that “his eyes were very shaky,” that he
could not hold much of a conversation, and that he appeared intoxicated.

       Furthermore, throughout the encounter with the police officers, defendant was in a public
place because he was on a sidewalk outside the bar.

        Additionally, a rational trier of fact could be persuaded that defendant acted in a manner
that endangered people or property or caused a public disturbance. Parks observed defendant
approach the bar doors and yell at security staff, using profanities, while a large number of
patrons were leaving the bar at closing time. Defendant was consistently “very agitated,” swore
and yelled at the officers, and used vulgar language. Furthermore, Parks testified that defendant
went in and out of the street, despite there being a fair amount of traffic, and Parks was
concerned that he might get hit. From this, a rational trier of fact could conclude that
defendant’s erratic behavior endangered directly the safety of people or property or caused a
public disturbance. MCL 750.167(1)(e).

       A rational trier of fact could also conclude that defendant committed, in the officers’
presence, the felony of resisting or obstructing a police officer.

                                                -3-
       MCL 750.81d(1) provides:

               Except as provided in subsections (2), (3), and (4), an individual who
       assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who
       the individual knows or has reason to know is performing his or her duties is
       guilty of a felony punishable by imprisonment for not more than 2 years or a fine
       of not more than $2,000.00, or both.

        The elements of resisting or obstructing a police officer are: “(1) the defendant . . .
resisted . . . [or] obstructed . . . a police officer, and (2) the defendant knew or had reason to
know that the person that the defendant . . . resisted . . . [or] obstructed . . . was a police officer
performing his or her duties.” Quinn, 305 Mich App at 491 (quotation marks and citations
omitted). Third, the police officer’s actions must have been lawful. Id. at 491-492. The failure
to comply with a lawful command can constitute obstruction.                      MCL 750.81d(7)(a).
Additionally, threatening the use of physical interference or force can also constitute obstruction.
MCL 750.81d(7)(a).

         Kretzschmer testified that, after defendant started raising his voice and yelling at
Kretzschmer, Kretzschmer asked defendant multiple times to step away but defendant refused to
comply. Likewise, Parks testified that he and Sliwa approached defendant and told him that he
needed to stop talking to Kretzschmer, but defendant ignored these commands. Parks further
testified that he repeatedly gave defendant two options: get in the cab and go home, or go to jail.
Defendant refused to choose an option and, instead, continued yelling at the officers in an
agitated state while approaching Officer Sliwa with his hand outstretched. From this evidence, a
rational trier of fact could conclude that defendant obstructed the officers by failing to comply
with a lawful command, Quinn, 305 Mich App at 491-492, and that he threatened the use of
physical interference or force on Sliwa, MCL 750.81d(7)(a). Furthermore, a rational trier of fact
could be persuaded that defendant knew or should have known that the officers issuing these
lawful commands were police officers performing their duties. Parks testified that he, Sliwa, and
Mitchell drove in marked patrol cars and that each of them was in full police uniform.
Defendant even asked for their badge numbers, showing that he had direct knowledge of the
officers’ status as police officers.

        Defendant maintains that he had the common-law right to resist the officers’ arrest.
However, Moreno applies only when an officer’s actions are unlawful. The jury was properly
instructed on the charged offenses of being a disorderly person and resisting or obstructing a
police officer, the differences between misdemeanors and civil infractions, and what constitutes a
lawful arrest. Because a rational trier of fact could have found the arrest lawful, Moreno is
inapposite.

       Affirmed.



                                                               /s/ Mark T. Boonstra
                                                               /s/ David H. Sawyer
                                                               /s/ Jonathan Tukel

                                                 -4-
