                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 3, 2015
               Plaintiff-Appellee,

v                                                                  No. 321832
                                                                   Iron Circuit Court
MAUREEN JAYNE GAGNE,                                               LC No. 13-009357-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals as of right from her conviction following a jury trial of resisting and
obstructing, MCL 750.81d(1), for which she was sentenced to 30 days’ in jail. For the reasons
explained below, we affirm.

        In June 2013, two police officers arrived at defendant’s home to serve a warrant for her
arrest for assault and battery and to retrieve her daughter’s medicine. Another officer had
informed defendant several days earlier that she would be notified and given the opportunity to
turn herself in if an arrest warrant was issued. The two officers who went to her home were not
aware of this conversation.

        One of the two officers knocked on defendant’s door while holding the arrest warrant; the
second officer stayed a few steps back. The officers had decided that they would not initially
inform defendant of the warrant because they wanted her assistance in obtaining her daughter’s
medicine first. Defendant opened her door, stuck her arm out, and asked for her arrest papers.
When asked about the medicine, she told the officers she had flushed it down the toilet. At that
point she tried to close the screen door, but one officer grabbed it out of her hand and again
asked about the medicine. When defendant tried to close the inner wooden door, the officer
stuck his foot out to prevent it from closing. He entered defendant’s home, grabbed her arm, and
told her she was under arrest and should put her arms behind her back. When defendant tried to
break free, the officer tripped her to gain control of the situation. She continued to struggle as
the officers placed her in handcuffs.

       On appeal, defendant claims that her conviction should be reversed and the charge
dismissed because the officers failed to meet the requirements of MCL 764.18 (arrest under
warrant) and MCL 764.21 (right to break open door). Defendant preserved her challenge based
on MCL 764.21 by relying on the statute in support of a pretrial motion to dismiss the resisting
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and obstructing charge. Defendant fails to identify where she preserved her argument that the
arresting officers violated MCL 764.18. Her counsel mentioned the statute during cross-
examination of one of the two officers on the scene, but defendant did not rely on the statute as a
basis for dismissing the charge. Thus, her argument based on MCL 764.18 is unpreserved.

        This Court reviews questions of law de novo and a lower court’s factual findings for clear
error. People v McRae, 469 Mich 704, 710; 678 NW2d 425 (2004). Unpreserved issues are
reviewed for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999). An error is plain when it is clear or obvious. Id. at 763. An error affects
substantial rights when it “could have been decisive of the outcome” of the case. People v
Grant, 445 Mich 535, 547; 520 NW2d 123 (1994). Further, “[r]eversal is warranted only when
the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an
error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.” Carines, 460 Mich at 763-764 (internal quotation
marks and citation omitted).

       Defendant fails to show any violation of MCL 764.21, which provides as follows:

               A private person, when making an arrest for a felony committed in his or
       her presence, or a peace officer or federal law enforcement officer, when making
       an arrest with a warrant or when making a felony arrest without a warrant as
       authorized by law, may break open an inner or outer door of a building in which
       the person to be arrested is located or is reasonably believed to be located if, after
       announcing his or her purpose, he or she is refused admittance.

By its plain language, MCL 764.21 applies only when a person making an arrest “break[s] open”
the door of a building. Here, the defendant opened the door to her home, and the arresting
officers merely entered without her permission after preventing her from closing the door. Thus,
the trial court did not clearly err in concluding that MCL 764.21 was inapplicable.

        Defendant also fails to establish plain error with respect to MCL 764.18, which provides
as follows:

               Where an arrest is made under a warrant, it shall not be necessary for the
       arresting officer personally to have the warrant in his possession but such officer
       must, if possible, inform the person arrested that there is a warrant for his arrest
       and, after the arrest is made, shall show such person said warrant if required, as
       soon as practicable.

MCL 764.18 applies when a warrant has been issued but the arresting officer does not personally
have the warrant with him at the time of arrest. Under such a circumstance, “such officer” can
still make an arrest by complying with the procedures set forth in the statute. The statute is
inapplicable here, where the uncontested evidence showed that the officers had a warrant for
defendant’s arrest with them.

       Defendant also argues that her counsel should have been allowed to read the text of either
MCL 764.18 or MCL 764.21 to the jury. Having failed to put forth any evidence from which a
reasonable jury could have believed that the arresting officers violated MCL 764.18 or MCL
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764.21, defendant was not entitled to have the instructions read. People v Kolanek, 491 Mich
382, 411; 817 NW2d 528 (2012) (“If . . . a defendant raises a defense but fails to present
evidence from which a reasonable jury could conclude that the elements of the defense have
been met, then the defendant is not entitled to the defense instruction and the jury is precluded
from considering the defense.”).

       Affirmed.

                                                           /s/ Jane E. Markey
                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Michael J. Riordan




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