            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 14, 2019
               Plaintiff-Appellee,

v                                                                   No. 341677
                                                                    Allegan Circuit Court
TRAVIS DEE BRIMHALL,                                                LC No. 16-020456-FH

               Defendant-Appellant.


Before: GLEICHER, P.J., and RONAYNE KRAUSE and O’BRIEN, JJ.

PER CURIAM.

        Defendant, Travis Dee Brimhall, appeals as of right his jury conviction for resisting and
obstructing a police officer in violation of MCL 750.81d(2).1 On appeal, defendant claims that
(1) insufficient evidence supported the guilty verdict for resisting and obstructing; (2) the trial
court improperly admitted MRE 404(b) evidence that defendant had previously resisted and
obstructed a police officer; (3) the trial court improperly instructed the jury that voluntary
intoxication was not a defense; and (4) defendant received ineffective assistance of trial counsel.
We affirm.

                                I. FACTUAL BACKGROUND

        Deputy Randy Beute, a deputy sheriff with the Allegan County Sheriff’s Office, was on
duty, in uniform and in a marked police cruiser, and assigned to general road patrol on October
18, 2016. On that date, he responded to several 911 calls regarding “a disorderly subject that
was running around naked.” A 911 caller explained that her husband’s uncle was “out in the
road running around naked,” and that she did not “know if he is OD’ing or what.” She identified
defendant by name and gave the dispatcher her address. In another 911 call, a woman explained


1
  The jury also convicted defendant of indecent exposure in violation of MCL 750.335a, and
obscene conduct in violation of MCL 750.167(1)(f). Defendant does not challenge those
convictions.



                                                -1-
that, less than a minute previously, there had been “a guy running down the street with his pants
down to his ankles grabbing himself, chasing after vehicles.” This second caller said that the
man “had his pants literally down to his ankle, grabbing himself, chasing after a truck,” and that
the caller’s 8-year-old daughter had also seen the man.

        When he arrived at the scene, Beute saw two men, one of whom was standing and the
other “was laying down, partially in the roadway” on his stomach. Beute identified defendant as
the man lying down. The other man, who identified himself only as Jessie, indicated to Beute
that defendant was the individual who was previously running around naked. Beute knelt down
next to defendant in order to ask him what assistance was necessary.

         While awaiting medical personnel and emergency backup, defendant “did kind of
become twitchy” and “completely flip flopped from his stomach to his back.” At that time,
Beute “made the decision that [he] was going to place [defendant] into protective custody”
because “[t]here was still a pending investigation that needed to take place with regards to the
obscenity that had been called into dispatch.” Accordingly, Beute “tried to get [defendant] to
roll back over onto his stomach where [the deputy] could place handcuffs on him behind his back
and restrain him until further help arrived.” In response, defendant “shouted, ‘no’, very
intelligibly” and “began pulling away and flipped back over onto his back again.” At that point,
the deputy had only attached one handcuff and did not “want to lose control of a loose handcuff.”
Beute testified that he therefore tried to get defendant into a position where he “would be able to
effectively handcuff him, restrain him behind his back,” but defendant continued “to pull away
and just resisted those efforts.” Beute also recalled defendant “saying something about it being a
long night, or it’s going to be a long night.”

        During the process, Beute kept telling defendant to go back on his stomach, but defendant
failed to comply. Before Beute could completely handcuff him, defendant “jumped up” and the
deputy knew that he “was losing grip.” At that point, defendant “started coming directly at”
Beute, who warned defendant, who was about two arms’ lengths away, that he would use his
taser if defendant continued. The deputy testified that he “could visually see [defendant’s]
muscles tense” and that he “feared that [defendant] was going to jump back up again,” so Beute
deployed his taser. Beute was eventually able to subdue and handcuff defendant.

        Beute suffered several physical injuries during the altercation with defendant, including a
large gash to his right knee, a minor abrasion to his left knee, and further injuries to his hands.
He obtained treatment at the local hospital for these injuries and, subsequently, underwent
surgery for torn cartilage in his shoulder that had resulted from the altercation with defendant.
Deputy Phil Arnsman of the Allegan County Sheriff’s Office testified that defendant admitted
during the ambulance ride to the hospital that he had taken an ounce of mushrooms and two to
four hits of acid, and that he “needed help with his drug use.” The prosecution played a video
recording taken by a bystander of the latter portion of the police encounter and also played a
final 911 call during which the caller opined that defendant needed “to stop getting tased because
they are going to kill him.” The prosecution also presented photographs of Beute’s injuries.
Defendant did not call any witnesses and rested his case. The following day, the jury found
defendant guilty of all three charges. Defendant now appeals.

                                II. “PROTECTIVE CUSTODY”

                                                -2-
         Defendant asserts that “there was no lawful authority for [Beute] to handcuff [defendant]
under the circumstances of the case.” Defendant provides little clarification of this assertion,
much of which pertains to his intoxication or unconsciousness. However, even though defendant
has not clearly asserted it, we are concerned by Beute’s decision to take defendant into
“protective custody.” We have not been provided with any explanation of what “protective
custody” is supposed to be, but as a practical matter, we construe it as indistinguishable from
placing defendant under arrest.2 Beute admitted that he never saw defendant with his pants
down; therefore, the record appears to indicate that Beute never personally observed defendant
commit any crime until after Beute attempted to arrest defendant. This is critical, because all
persons enjoy a longstanding and well-established absolute right to resist unlawful conduct
committed by a police officer. See People v Clements, 68 Mich 655, 658; 36 NW 792 (1888);
People v Krum, 374 Mich 356, 361; 132 NW2d 69 (1965); People v Moreno, 491 Mich 38, 40-
41, 50-51, 57-58; 814 NW2d 624 (2012). If Beute’s de-facto arrest of defendant was unlawful,
defendant cannot have committed the crime of resisting and obstructing by refusing to comply,
because as a practical matter, defendant would merely have been defending himself from an
assault.

        Nevertheless, we must conclude that it was lawful for Beute to effectuate an arrest of
defendant, whether or not Beute was aware of it. “For an arrest to be lawful, the police officer
making the arrest must have probable cause, either that a felony or misdemeanor was committed
by the individual in the officer’s presence, or that a felony or specified misdemeanor (i.e., a
misdemeanor punishable by imprisonment for more than 92 days) occurred outside the officer’s
presence and that the individual in question committed the offense.” People v Vandenberg, 307
Mich App 57, 69; 859 NW2d 229 (2014) (emphasis added). Obscene conduct, MCL 750.167, is
punishable by imprisonment for not more than 90 days. MCL 750.168. However, indecent
exposure is punishable by either not more than 1 year or not more than 2 years. MCL 750.335a.
Consequently, indecent exposure is a “specified misdemeanor,” arrestable upon probable cause
even if committed outside the arresting officer’s presence. The evidence in the record amply
supports Beute having had probable cause to believe that defendant had committed indecent
exposure shortly before Beute arrived on the scene. Therefore, although we do not understand
the nature of “protective custody,” Beute was lawfully permitted to arrest defendant.

                              III. SUFFICIENCY OF EVIDENCE

         Defendant first argues that there was insufficient evidence to support his conviction of
restricting and obstructing. We disagree.

       A challenge to the sufficiency of the evidence is reviewed de novo. People v Meissner,
294 Mich App 438, 452; 812 NW2d 37 (2011). However, despite that de novo standard, we are
obligated to defer to any fair and reasonable inference or credibility assessment in favor of the


2
 Not every act of handcuffing a person necessarily constitutes an arrest. See People v Green,
260 Mich App 392, 397-398; 677 NW2d 363 (2004), overruled on other grounds by People v
Anstey, 476 Mich 436, 447 n 9; 719 NW2d 579 (2006). However, Beute’s intent of taking
defendant into custody, “protective” or otherwise, indicates that Beute was effectuating an arrest.


                                                -3-
jury’s verdict. People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018). Our role is only to
determine whether a rational trier of fact could have found defendant guilty beyond a reasonable
doubt. Id. Although the jury may not speculate, the jury may pick and choose which evidence to
accept or reject. People v Howard, 50 Mich 239, 242-243; 15 NW 101 (1883); People v Bailey,
451 Mich 657, 673-675, 681-682; 549 NW2d 325 (1996). Even where the standard of review is
otherwise de novo, we defer to the trier of fact’s superior ability to observe witnesses and
evaluate their credibility. See In re Loyd, 424 Mich 514, 535; 384 NW2d 9 (1986).

      To convict a defendant of resisting or obstructing a police officer pursuant to MCL
750.81d(2), the prosecution must establish that:

       (1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or
       endangered a police officer, and (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. [People v Quinn, 305 Mich App 484, 491; 853 NW2d 383 (2014)
       (quotation marks and citation omitted).]

The prosecution must also prove that defendant’s conduct caused bodily injury or required
medical care or attention. See MCL 750.81d(2). Finally, “the prosecution must establish that
the officers acted lawfully as an actual element of the crime of resisting or obstructing a police
officer under MCL 750.81d.” Id. at 492; Vandenburg, 307 Mich App at 68-69 (stating that “the
lawfulness of the arrest was an element of the offense, and it presented a factual question for the
jury”). A lawful arrest generally requires probable cause. Id at 69.

        Viewed in the light most favorable to the prosecution, the evidence was sufficient to
support defendant’s conviction. At trial, the jury heard evidence from Beute and several other
witnesses concerning defendant’s behavior and the lengthy altercation between defendant and
the deputy. The jury also independently viewed a video of the police encounter. The record
unambiguously provides ample evidence that Beute was injured in the incident. We are also
satisfied that the jury could have found beyond a reasonable doubt that defendant knew or should
have known that Beute was a police officer performing his duties. Although Beute was not sure
whether he explicitly identified himself, he arrived in a marked police cruiser and fully
uniformed. Moreover, it was defendant’s own family member who, fearing defendant was
overdosing, initially called law enforcement to the scene; significantly, the video also revealed
that defendant’s own family members and others present implored defendant to obey Beute’s
commands. It is a fair and reasonable inference that defendant was aware that Beute was a
police officer performing his duties.

        Finally, the evidence is sufficient to show that Beute was acting lawfully. Beute testified
that he responded to several emergency 911 calls that stated that defendant was walking down a
public street with his pants at his ankles, fondling himself. When he arrived on scene, Beute was
able to quickly and accurately identify defendant as the suspect. According to Beute’s
testimony, defendant “was laying down, partially in the roadway.” As noted, defendant does not
challenge his convictions for indecent exposure or disorderly conduct, and the evidence in the
record certainly shows that Beute had probable cause to believe that, in fact, defendant was
committing or had just committed the crimes of indecent exposure and disorderly conduct. See

                                                -4-
Vandenburg, 307 Mich App at 69. Furthermore, it appears that Beute initially decided not to
take defendant into custody in favor of awaiting medical attention, and Beute only decided to
place defendant into custody when it appeared defendant would not stay where he was. As
discussed, indecent exposure is a “specified misdemeanor” for which defendant could lawfully
be arrested on probable cause, even though the crime was committed outside Beute’s presence.
The jury could reasonably conclude that Beute acted lawfully.

        Defendant finally contends that he “was unconscious for a significant portion of law
enforcement conduct,” and, therefore, that he did not act voluntarily and is not criminally liable.
There is ample evidence that defendant’s mental state was poor, likely due to the drugs he had
ingested. However, voluntary intoxication is not a defense to a general-intent crime. People v
Abramski, 257 Mich App 71, 73; 665 NW2d 501 (2003); People v King, 210 Mich App 425,
431; 534 NW2d 534 (1995). Furthermore, Beute testified that defendant appeared sufficiently
lucid to comprehend what was happening, including clearly yelling “no” and stating that “it’s
going to be a long night,” implicitly suggesting that defendant understood that his conduct would
have consequences. As noted, the jury was able to observe at least some of defendant’s behavior
for itself. It is not implausible that a taser shock could cause uncontrollable flailing, but
defendant’s statements and attempt to approach Beute suggest that defendant was not simply
undergoing shock-induced muscle spasms. We therefore reject defendant’s unconsciousness
defense.

                               IV. ADMISSION OF EVIDENCE

         Next, we consider defendant’s challenge to the admission of evidence under MRE 404(b)
that, several months before, he had resisted and obstructed the police in another matter involving
intoxication. This Court reviews a trial court’s evidentiary decision for an abuse of discretion.
People v Danto, 294 Mich App 596, 599; 822 NW2d 600 (2011). “A trial court abuses its
discretion when its decision falls outside the range of principled outcomes.” Id. We hold that
the trial court did not abuse its discretion.

       MRE 404(b)(1) provides:

               Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, opportunity,
       intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
       or absence of mistake or accident when the same is material, whether such other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case.

MRE 404(b) is a rule of inclusion: all evidence is generally admissible, even if it bears on a
defendant’s behavior, unless it has no relevance to anything other than the defendant’s character
or propensity. Danto, 294 Mich App at 599. Furthermore,

       [a]ll relevant evidence is prejudicial; only unfairly prejudicial evidence may be
       excluded. People v McGhee, 268 Mich App 600, 613-614; 709 NW2d 595
       (2005). “Unfair prejudice exists when there is a tendency that evidence with little

                                                -5-
       probative value will be given too much weight by the jury.” Id. at 614. Unfair
       prejudice may arise where considerations extraneous to the merits of the case,
       such as jury bias, sympathy, anger, or shock, are injected. Id. [Danto, 294 Mich
       App at 600.]

The trial court is obligated to “closely scrutinize the logical relevance of the evidence” and
“weed out character evidence that is disguised as something else.” People v Crawford (On
Remand), 325 Mich App 14, 23; 923 NW2d 296 (2018), vacated in part on other grounds by ___
Mich ___ (2019) (quotation marks and citation omitted). “[W]hen other acts are offered to show
intent, logical relevance dictates only that the charged crime and the proffered other acts are of
the same general category.” Id. at 25 (quotation marks and citation omitted).

        Neither party cites any cases involving an identical fact pattern to the instant matter.
However, in a case involving driving while intoxicated, it was proper to admit a prior incident of
the same to show that the “defendant knew that heavy drinking could lead to a blackout, and that
a blackout could lead to defendant’s driving without any understanding of what he was doing.”
People v Werner, 254 Mich App 528, 539-540; 659 NW2d 688 (2002). Moreover, “[t]he fact
that such an episode occurred only three weeks before the charged offense was highly material to
the proper purpose of showing defendant’s knowledge of the dangers of driving while
intoxicated.” Id. at 540. In this case, the two similar incidents were only three months apart and
both consisted of defendant resisting a law enforcement officer’s commands while intoxicated.
These two incidents were logically relevant to demonstrating defendant’s knowledge and
absence of mistake, factors placed directly in issue by defendant’s theory of the case, which
focused on defendant’s inability to recognize or understand the police officer. See Werner, 254
Mich App at 539-540. Although somewhat prejudicial, the previous encounter was highly
material and probative toward showing defendant’s knowledge, intent, and absence of mistake
when encountering a police deputy. See Danto, 294 Mich App at 600.3 The trial court did not
err by admitting the evidence.

                              V. VOLUNTARY INTOXICATION

        Defendant also challenges the trial court’s jury instruction that voluntary intoxication was
not a defense. “A criminal defendant is entitled to have a properly instructed jury consider the
evidence against him.” People v Jackson (On Reconsideration), 313 Mich App 409, 420-421;
884 NW2d 297 (2015) (quotation marks and citation omitted). Use of the model criminal jury
instructions is mandatory if the instruction is applicable, accurate, and requested. See MCR
2.512(D)(2); People v Rosa, 322 Mich App 726, 739; 913 NW2d 392 (2018). The prosecution
requested, and the trial court read, M Crim JI 6.1. Doing so was proper: voluntary intoxication is


3
  Even if we were to conclude that the trial court abused its discretion in admitting testimony
relating to defendant’s previous police encounter, the error was harmless because it did not
undermine the reliability of the verdict. See People v Lukity, 460 Mich 484, 496; 596 NW2d 607
(1999). Other evidence independently supported the conviction, including testimony from Beute
concerning his altercation with defendant, the testimony of several witnesses concerning
defendant’s behavior, and a video recording of the police encounter.


                                                -6-
not, in fact, a defense to resisting and obstructing a police officer unless the defendant
“consumed a legally obtained and properly used medication or other substance and did not know
and reasonably should not have known that he or she would become intoxicated or impaired.”
See MCL 768.37. Defendant has shown no evidence that the exception applies. The instruction
was requested, applicable, and accurate, so the trial court did not err. See People v Henry, 239
Mich App 140, 147-148, 150; 607 NW2d 767 (1999); Rosa, 322 Mich App at 739.

                       VI. INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, defendant argues that his trial counsel was ineffective for (1) failing to argue that
law enforcement’s actions were unlawful, (2) failing to request an instruction that the
prosecution had to prove that defendant’s physical acts were voluntary, and (3) failing to object
to the jury instruction that voluntary intoxication was not a defense. Because defendant failed to
move for a new trial or for a Ginther4 hearing, this Court’s review is limited to mistakes apparent
on the record. See People v Sabin (On Remand), 242 Mich App 656, 658-659; 620 NW2d 19
(2000). Defendant must establish that counsel’s performance was objectively unreasonable and
that counsel’s errors likely affected the outcome of the trial. People v Pennington, 323 Mich
App 452, 460; 917 NW2d 720 (2018). We find no merit in defendant’s contentions.

        In reverse order, “[f]ailing to advance a meritless argument or raise a futile objection
does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192,
201; 793 NW2d 120 (2010). As discussed, voluntary intoxication is not a defense except under a
single, narrow circumstance obviously not present here. It would have been meritless and futile
for counsel to have requested an instruction contrary to the law. Defense counsel’s failure to
request an instruction that voluntary intoxication was a defense did not constitute ineffective
assistance.

         We are unpersuaded that counsel was ineffective for failing to request an instruction that
the prosecution must prove defendant’s physical reactions to have been voluntary. We are
unaware of any such jury instruction, and defendant not offered one. Defendant cites People v
Likine, 492 Mich 367; 823 NW2d 50 (2012), which states that “[j]ust as a defendant cannot be
held criminally liable for committing an act that he or she was powerless to prevent, so, too, a
defendant cannot be held criminally liable for failing to perform an act that was genuinely
impossible for the defendant to perform.” Likine, 492 Mich at 399 (emphasis in original). Likine
did not impose any burden of proof on the prosecution, and in any event it involved charges of
failing to pay child support, so it holds no relevance to this case. We are not persuaded that there
would have been any merit to requesting an instruction that the burden was on the prosecution to
prove voluntariness, so counsel was not ineffective for failing to do so.

        Finally, defendant argues that he was deprived of a substantial defense because counsel
did not properly argue that defendant’s level of intoxication affected his criminal culpability.
However, the record is replete with instances where defense counsel, throughout the short one-
day trial, pursued a defense strategy focused on defendant’s unconscious state and his inability to


4
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).


                                                 -7-
recognize or respond consciously to Beute’s commands. Furthermore, as already discussed,
Beute’s actions were lawful. Therefore, it would have been futile for defendant’s trial counsel to
argue that the deputy’s actions were unlawful. Even if there was some doubt about the propriety
of Beute’s actions, we would not be persuaded that it was an unsound trial strategy to focus on
defendant’s relative level of consciousness rather than risk offending or confusing the jury by
attacking Beute. See People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012) (“We give
defense counsel wide discretion in matters of trial strategy because counsel may be required to
take calculated risks to win a case.”). We will not substitute our own judgment of trial counsel’s
strategy or assess trial counsel’s competence only with the benefit of hindsight. See People v
Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).

        Finally, we note that, even assuming that trial counsel provided ineffective assistance of
counsel for one or more of the argued reasons, defendant has not overcome the heavy burden to
demonstrate that, absent the error, the outcome of the defendant’s trial would have been
different. See Pennington, 323 Mich App at 460.

                                       VII. CONCLUSION

        The trial court did not err when it found the evidence of resisting and obstructing
sufficient to convict defendant, and it did not err by allowing evidence of a prior similar incident.
Further, the trial court properly instructed the jury that voluntary intoxication was not a defense.
Finally, defense counsel’s performance did not fall below an objective standard of
reasonableness, and was therefore not ineffective. Affirmed.

                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Amy Ronayne Krause
                                                              /s/ Colleen A. O'Brien




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