                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 19, 2016
               Plaintiff-Appellee,

v                                                                    No. 325827
                                                                     Ingham Circuit Court
JOHN EARL EASLEY,                                                    LC No. 12-000741-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and HOEKSTRA and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of resisting or obstructing a police
officer, MCL 750.81d(1). He was sentenced as a third habitual offender, MCL 769.11, to serve
365 days in jail. For the reasons stated in this opinion, we affirm.

       This case arises from an incident that occurred in the courtroom of Ingham Circuit Court
Judge Clinton Canady, III, during the sentencing of defendant’s girlfriend, Blanche Hayward.
The prosecution and defense presented highly divergent versions of the incident.

       The prosecution presented evidence that the Ingham County Sheriff’s Department was
alerted that defendant might behave disruptively during Hayward’s sentencing, so several
deputies were present. Hayward’s victims were also present. One victim testified that defendant
turned toward them a couple of times and, on one occasion, moved his finger across his neck.
Deputy Gaspar Mendez testified that when defendant looked over his shoulder toward the
victims, he made several comments to them, including “this isn’t over yet” and “I’ll see you in
the hallway.” Deputy Tryon Calkins told defendant to “look forward . . . and not try to
intimidate or mess with the victims of the crime.”

         The victims gave their impact statements and returned to their seats. Deputy Mendez
testified that defendant scowled at them and continued to say things like “I’ll see you out in the
hallway” and “this isn’t over yet.” Deputy Mendez testified that he approached defendant,
intending to ask him to leave. He said that defendant stood up, saying something like, “this is
bullshit.” Deputy Mendez testified that defendant was given his bag, asked to leave, and that he
grabbed defendant’s arm to attempt to lead him out of the courtroom. Defendant, however,
“squared up” to the deputy, pulled his arm away, and allegedly said, “you’re going to have to
make me leave.”



                                                -1-
        Deputy Mendez testified that, at that point, he told defendant he was under arrest for
disorderly behavior, but defendant continued to pull away and tighten his body. Deputy Mendez
and another deputy forced defendant to the ground. Deputy Mendez explained that defendant
did not comply with commands to put his hands behind his back and that defendant attempted to
get up while he and the other deputy were trying to gain physical control of him. Deputy
Mendez radioed for assistance, pulled his taser, pressed it against defendant’s leg, and announced
that if defendant continued to resist, he would tase him. According to Deputy Mendez,
defendant responded, “you’re going to have to tase me.” At that point, other officers arrived, so
Deputy Mendez did not fire his taser.

        Defendant, however, testified that he did not make any remarks or gestures during
Hayward’s sentencing. He explained that when he learned what her sentence was going to be, he
stood up to put his coat on. Defendant testified that Deputy Mendez ran over and blocked him
from leaving. He said that Deputy Mendez told him to leave, so he politely responded that he
was leaving and reached for his bag, which was being held out by a deputy. Defendant testified
that, as he reached for his bag, Deputy Mendez grabbed him and forced him to the ground.
Defendant testified that he was never given the chance to leave and that he had not done
anything wrong.

       On appeal, defendant argues that there was insufficient evidence to support his conviction
because the deputy’s actions were not lawful.1 We disagree.

        To support a conviction for resisting or obstructing a police officer pursuant to MCL
750.81d(1), the prosecutor must demonstrate that (1) the defendant assaulted, battered, wounded,
resisted, obstructed, opposed, or endangered a police officer, (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 (3) that
the officer’s actions were lawful. People v Quinn, 305 Mich App 484, 491; 853 NW2d 383
(2014) (quotation omitted); People v Vandenberg, 307 Mich App 57, 68; 859 NW2d 229 (2014).
See also People v Moreno, 491 Mich 38, 51-52; 814 NW2d 624 (2012) (holding that in a
prosecution under MCL 750.81d(1) “the prosecution must establish that the officers’ actions
were lawful”).2 Defendant argues that there was insufficient evidence that the deputy’s actions
were lawful.



1
 Challenges to the sufficiency of the evidence are reviewed de novo. People v Ericksen, 288
Mich App 192, 195; 793 NW2d 120 (2010).
2
  In this case, the trial court only instructed the jury on the first two elements. A criminal
defendant is entitled to have all the elements of the crime submitted to the jury because he or she
“has a constitutional right to have a jury determine his or her guilt from its consideration of every
essential element of the charged offense.” People v Kowalski, 489 Mich 488, 501; 803 NW2d
200 (2011). Accordingly, the jury should have been instructed that the prosecution had to prove
beyond a reasonable doubt that the deputy’s actions were lawful. Defendant, however, has not
argued on appeal that he should receive a new trial based on the trial court’s failure to properly
instruct the jury. It is likely that defendant would be entitled to a new trial if he had raised the



                                                -2-
        The prosecution, however, argues that Moreno’s lawfulness requirement should not be
retroactively applied to defendant’s case. It is undisputed that the courtroom incident occurred
on March 7, 2012. Moreno was decided a little over a month later on April 20, 2012.
Defendant, however, was not charged until October 2014—over two years after Moreno was
decided.

        The prosecution directs us to People v Pulley, 66 Mich App 321; 239 NW2d 366 (1976)
for the proposition that the relevant date for retroactivity of a judicial decision is the date on
which the conduct took place, not the date of trial. In that case, the defendant argued that People
v Beavers, 393 Mich 554; 227 NW2d 511 (1975) mandated that evidence obtained in violation of
a warrant requirement be excluded from his trial. Id. at 325. The Pulley Court, however, noted
that the Beavers opinion explicitly stated that it was “to be applied prospectively.” Id. at 326.
Further, given that the primary purpose of the warrant requirement was to deter unlawful police
behavior, “the effective date of Beavers is the date on which the challenged police conduct
occurred, not the date of the trial.” Id. In this case, however, the primary purpose of the
lawfulness requirement in Moreno does not relate to a defendant or a police officer’s conduct at
the time the offense was committed. Instead, it relates to an element that the prosecution must
prove at trial. Accordingly, Pulley is inapposite to the facts in this case.

        Moreno overruled this Court’s decision in People v Ventura, 262 Mich App 370; 686
NW2d 748 (2004). The Moreno Court concluded that, contrary to the holding in Ventura, the
enactment of MCL 750.81d(1) had not abrogated the common law right to resist an unlawful
arrest. Moreno, 491 Mich at 57. In Quinn, this Court addressed whether Moreno should be
given retroactive effect in a case where defendant was convicted and sentenced before Moreno
was decided. The Quinn Court held:

               The purpose of the new rule announced in Moreno was to reestablish the
       common-law rule that a person may resist an unlawful arrest, which was deemed
       abrogated by this Court in Ventura . . . [P]rosecutors and courts relied on Ventura
       and full retroactivity could upset the public’s interest in the finality of
       convictions. Therefore, we conclude that the new rule in Moreno should be given
       limited retroactive effect to cases in which a defendant raised the issue on appeal
       and the defendant either preserved it in the trial court or can demonstrate plain
       error affecting substantial rights[.] [Quinn, 305 Mich App at 490.]

In this case, given that defendant was not convicted at the time Moreno was decided, the finality
of his conviction is not at issue. Indeed, defendant was not tried until over two years after
Moreno was decided. Thus, the prosecutor and the court, presumably fully aware of the
lawfulness requirement set forth in Moreno, had no reason to rely on this Court’s decision in

issue. Defendant was sentenced to a year in jail—a sentence that was well below the guidelines
range for a third habitual offender—and he has already served the entirety of his sentence.
Given that there is a reasonable probability that defendant would receive a longer sentence
should he be convicted following a new trial, it appears that defendant’s decision not to raise an
instructional error on appeal was strategic. We will not presume that appellate defense counsel
was ineffective for failing to raise this issue.



                                                -3-
Ventura. Accordingly, we conclude that, consistent with Moreno, the prosecution was required
to establish that Deputy Mendez’s actions were lawful.

        On appeal, defendant argues that Deputy Mendez had no reason to ask him to leave the
courtroom because he did not shout out or cause a loud disturbance. Instead, he was merely
muttering under his breath and making a subtle rocking motion. After Hayward was sentenced,
defendant was getting ready to leave, but Deputy Mendez, acting hastily, snatched defendant’s
bag, grabbed him, and attempted to push him out of the courtroom. Then, when defendant
stiffened his arms and squared his body to Deputy Mendez, he was wrestled to the ground and
eventually placed in lockup. Defendant contends that Deputy Mendez broke his tooth and that,
to cover up a civil suit against the county, defendant was charged with resisting or obstructing a
police officer.

       When reviewing a challenge to the sufficiency of the evidence, we view the facts in the
light most favorable to the prosecution in order to determine whether a reasonable trier of fact
could find each element of the crime established beyond a reasonable doubt. People v Lundy,
467 Mich 254, 257; 650 NW2d 332 (2002). Witness credibility is a question for the jury.
People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999).

        Contrary to defendant’s presentation of the facts, several witnesses testified that
defendant was threatening Hayward’s victims and making inappropriate comments. Deputy
Mendez testified that he asked defendant to leave because, in his training and experience,
defendant’s behavior was inappropriate for the courtroom. A court may temporarily remove
disruptive and disorderly persons from the courtroom. In re Hague, 412 Mich 532, 559; 315
NW2d 524 (1982). Thus, there was sufficient evidence to establish that Deputy Mendez’s initial
command was lawful. Moreover, there was sufficient evidence to establish that Deputy
Mendez’s decision to arrest defendant for being a disorderly person was also lawful. A law
enforcement officer may make a lawful arrest when a person commits a felony or misdemeanor
in the officer’s presence. Vandenberg, 307 Mich App at 69. Again, there was testimony that
defendant threatened Hayward’s victims, made inappropriate comments in court, refused to leave
the courtroom, pulled away from Deputy Mendez when he tried to escort defendant from the
courtroom, physically resisted being handcuffed after being forced to the ground, and refused to
comply with commands to stop resisting. Finally, defendant knew or had reason to know that the
deputies were law enforcement officers performing their duties because the deputies were
wearing full uniforms and defendant admitted at trial that he knew they were deputies.
Therefore, on this record, there was sufficient evidence to support defendant’s conviction.

       Affirmed.

                                                            /s/ Michael J. Talbot
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Douglas B. Shapiro




                                               -4-
