                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 18, 2017
                 Plaintiff-Appellee,

v                                                                  No. 331356
                                                                   Berrien Circuit Court
RONALD DUANE ROSEBURGH,                                            LC No. 2015-002448-FH

                 Defendant-Appellant.


Before: MARKEY, P.J., and MURPHY and METER, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions of assault by strangulation, MCL
750.84(1)(b), assault with a dangerous weapon (felonious assault), MCL 750.82, and assault and
battery, MCL 750.81. The trial court sentenced defendant as a fourth-offense habitual offender,
MCL 769.12, to a term of 76 months to 20 years’ imprisonment for the conviction on assault by
strangulation, to a concurrent term of 48 months to 20 years’ imprisonment for the felonious
assault conviction, and to 93 days’ incarceration for the assault 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 vehicle and drove to the home that the
victim’s daughter shared with defendant. Upon arrival, the victim 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 daughter’s face and body,
believing defendant to have inflicted those injuries. The victim and defendant began arguing,
defendant told her to leave the property, and, eventually, defendant 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 driveway, 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.

                                                -1-
the truck in order to find a weapon to defend herself. When she 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 victim testified that while defendant 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, after
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 the altercation. Defendant did
acknowledge that he picked up the 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 assault, defendant wielded the bicycle in a threatening manner.

        On appeal, defendant argues that the trial court erred in refusing to instruct the jury on the
right to use force to protect property or to eject a trespasser, thereby denying him his
constitutional rights to a fair trial, to due process, and to present a defense.3

        Issues of law arising from jury instructions are reviewed de novo 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 defendant 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 resulted without the error.” Lukity, 460 Mich at 495.

        “A criminal defendant has the right to have a properly instructed jury consider the
evidence against him.” People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000)
(quotation marks and citations omitted). Jury instructions must 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 he requests an instruction on a theory
or defense that is supported by the evidence. People v Riddle, 467 Mich 116, 124; 649 NW2d 30
(2002). Further, MCR 2.512(D)(2) requires that pertinent portions of the Michigan Model
Criminal Jury Instructions be given if “(a) they are applicable, (b) they accurately state the
applicable law, and (c) they are requested by a party.” The trial court is also permitted to give
additional instructions on applicable law not covered by the model instructions. MCR
2.512(D)(4); see also Bouverette v Westinghouse 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 requested, if the supplemental
instructions properly inform the jury of the applicable law and are supported by the evidence.”).4


2
 The record does not make clear what specific act formed the basis of the simple assault and
battery charge.
3
    We note that the jury was thoroughly instructed on the issue of self-defense.
4
    There does not appear to be a standard or model instruction on defense of property.

                                                  -2-
       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 as is necessary
       for the protection of his property, it must be noted that the principle is subject to
       this most important qualification, that he shall not, except in extreme cases, inflict
       great bodily harm or endanger human life. [Citations and quotation marks
       omitted.]

        As to defendant’s specific argument on appeal, he maintains that one could infer from the
evidence that the victim appeared intent on stealing and possibly 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 argument that the charged offenses
could theoretically constitute reasonable and necessary force for purposes of protecting property
from damage or theft, which is certainly questionable, especially as to assault by strangulation,
the evidence simply did not support 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 effectively testified that his actions were taken in an effort to defend
himself from assaultive behavior allegedly perpetrated by the victim. And we note that the jury
rejected any type of self-defense claim by defendant. Defendant’s testimony, along with all of
the other evidence, cannot be characterized as showing, either directly, circumstantially, or
inferentially that defendant employed force against the victim in order to protect the truck from
damage or theft. Contrary to defendant’s claim, at no point did defendant indicate or suggest that
he was concerned about the potential destruction or theft of his property, let alone that the
conduct underlying the charges was motivated by such concerns.5

       In sum, the trial court did not abuse its discretion by refusing to issue a “defense of
property” jury instruction, considering that such an instruction 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 supported 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 entry into the home. However, defendant makes no such argument
on appeal and, again, it is not clear to us that the altercation on the porch even formed the basis
for the simple assault and battery charge.

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