                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 12, 2016
              Plaintiff-Appellee,

v                                                                  No. 323322
                                                                   Muskegon Circuit Court
ANTHONY DEWAYNE TYLER,                                             LC No. 14-064636-FH

              Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals by right his conviction, following a jury trial, of resisting and
obstructing a police officer, MCL 750.81d(1). Defendant was sentenced as a fourth-offense
habitual offender, MCL 769.12, to 20 months to 15 years’ imprisonment. We affirm.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

        On March 24, 2014, Scott Oliver, a parole agent through the Michigan Department of
Corrections (MDOC), received a telephone call regarding “some potential trouble that happened
over the weekend” at a house where defendant was residing. The “trouble” allegedly occurred
between defendant and another individual who were both assigned to Oliver as parolees. As a
result, Oliver decided to conduct a parole investigation, and went to the house. When he arrived,
he observed defendant walking down the street and away from the house. Oliver told defendant
to get in his car, but defendant refused. Nevertheless, when Oliver continued to the residence,
defendant eventually turned around and headed there as well.

        Approximately 10 minutes later, Oliver determined that defendant and the other
individual had each committed potential parole violations and should be arrested pending further
investigation. Oliver contacted Officer Fernando Hernandez of the Muskegon Heights Police
Department for support in conducting the arrest. When Hernandez arrived at the house,
defendant was upstairs. Shortly thereafter, defendant walked downstairs into the foyer, and
Hernandez told him that he was being arrested. Hernandez told defendant to face the wall and
place his hands on the wall so that Hernandez could search and secure defendant. However,
defendant did not do as told. Rather, according to Hernandez, “[h]e started mumbling some
profanities and went towards trying to go back upstairs.” Although Hernandez did not know
exactly what defendant said, Oliver testified that defendant made a comment about going to put
something back in his room.
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        When defendant attempted to go back upstairs, Hernandez grabbed defendant’s hands
and “used some force to place both his hands on the wall.” Hernandez began to search
defendant’s person, but defendant “started to pull away again.” Hernandez testified that he had
one hand on defendant while he was using his other hand to pat defendant down, but then
defendant started to move his hand away from the wall. As a result, Hernandez had to use
“additional force to secure” defendant. At that point, defendant “became agitated and verbally
insulting to” Hernandez; he “started to make threats” and began accusing Hernandez of
“roughing him up.” Defendant told Hernandez that he “better not rough him up” because
defendant “would get out of jail soon and . . . knew that [Hernandez] had to leave work at some
point, [so] he would be there to make sure that [Hernandez] would not do that to him again.”
Hernandez asked defendant if he was making threats, and defendant responded that he was.
Defendant also used “racial slurs” including “the N word,” and he stated that he would “kick
[Hernandez’s] a[**].”

       At some point thereafter, Hernandez attempted to place defendant’s hands behind his
back. Hernandez testified that he had to use more force than was ordinary because defendant
would not voluntarily place his hands behind his back, but instead “kept pulling away.”
Nevertheless, Hernandez eventually secured defendant in handcuffs, and defendant was
transported to the county jail.

         Hernandez testified that approximately five to six minutes passed between Hernandez’s
initial encounter with defendant to the time that defendant was placed in the patrol car, and that it
took approximately one to two minutes to secure defendant in handcuffs after Officer Hernandez
told defendant to put his hands behind his back. Hernandez testified that this procedure would
generally take a matter of seconds, but it took longer because of defendant’s resistance.

       After the prosecutor rested, defendant requested a jury instruction for the lesser-included
offense of attempted resisting and obstructing a police officer. The trial court denied defendant’s
request for the reason that the evidence only supported a conviction of the completed offense.
Defendant was convicted as described above. This appeal followed.

                                      II. JURY SELECTION

        Defendant first argues that the trial court erred by denying his request to dismiss a
prospective juror for cause. We disagree. We review a trial court’s rulings whether to excuse a
juror for cause for an abuse of discretion. People v Williams, 241 Mich App 519, 521; 616
NW2d 710 (2000). In doing so, “[t]his Court defers to the trial court’s superior ability to assess
from a venireman’s demeanor whether the person would be impartial.” Id. at 522; People v Lee,
212 Mich App 228, 251; 537 NW2d 233 (1995). However, where a defendant expresses
satisfaction with an empaneled jury and has several peremptory challenges remaining, the
defendant waives the issue for appeal. People v Legrone, 205 Mich App 77, 82; 517 NW2d 270
(1994).

       Here, defendant had multiple peremptory challenges remaining at the time his counsel
affirmatively asserted, “We have a jury.” Accordingly, defendant has waived his argument
regarding the trial court’s ruling on his challenge for cause. Id.


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        In any event, were we to review this issue under the plain error standard, People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999), we would not find that defendant’s
substantial rights were affected. Defendant used a peremptory challenge to excuse the potential
juror; thus, the juror had no impact on the ultimate verdict. When the jury was empaneled,
defendant had three peremptory challenges remaining, and thus cannot establish that he would
have used the peremptory challenge on another juror had the trial court granted his challenge for
cause. See Lee, 212 Mich App at 248-249.

                           III. SUFFICIENCY OF THE EVIDENCE

        Next, defendant argues that there was insufficient evidence to sustain his conviction. We
disagree. We review de novo a challenge to the sufficiency of the evidence. People v Ericksen,
288 Mich App 192, 195; 793 NW2d 120 (2010). We view the evidence in a light most favorable
to the prosecution, to determine whether the evidence was sufficient to justify the jury’s finding
that the essential elements of the crime were proven beyond a reasonable doubt. People v
Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). All conflicts in the evidence must
be resolved in favor of the prosecution. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748
(1992), amended 441 Mich 1201 (1992). Circumstantial evidence and all reasonable inferences
drawn therefrom may constitute satisfactory proof of the crime. Carines, 460 Mich at 757.

       The elements of resisting and obstructing a police officer under MCL 750.81d(1) are as
follows:

       (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 duties.
       [People v Quinn, 305 Mich App 484, 491; 853 NW2d 383 (2014) (citation and
       quotation omitted).]

To “obstruct” a police officer includes “the use or threatened use of physical interference or
force or a knowing failure to comply with a lawful command.” MCL 750.81d(7)(a); see also
People v Moreno, 491 Mich 38, 52; 814 NW2d 624 (2012).

        The evidence presented was sufficient to find beyond a reasonable doubt that defendant
committed the offense of resisting and obstructing a police officer. The evidence established that
during his arrest by Hernandez, who was in full uniform and identified as a police officer,
defendant failed to comply with the Hernandez’s command to turn and face a wall, that
defendant repeatedly pulled away when the officer attempted to search and handcuff him, and
that defendant threatened the officer. A rational jury could, therefore, find beyond a reasonable
doubt that defendant resisted or obstructed Hernandez. Viewing the evidence in a light most
favorable to the prosecution, Harverson, 291 Mich App at 175, sufficient evidence was presented
to establish defendant’s guilt of the charged crime. Although defendant argues that he did not
punch, kick, bite, or injure Hernandez, such conduct is not a required element of a violation of
MCL 750.81d. See MCL 750.81d(7)(a).




                                               -3-
                                 IV. ATTEMPT INSTRUCTION

        Defendant next argues that the trial court abused its discretion when it declined to instruct
the jury on a lesser-included offense of attempted resisting and obstructing a police officer.
Again, we disagree. While questions of law arising from jury instructions are reviewed de novo
by this Court, “a trial court’s determination whether an instruction is applicable to the facts of the
case is reviewed for an abuse of discretion.” People v Burks, 308 Mich App 256, 266; 864
NW2d 580 (2014). An abuse of discretion occurs when the trial court’s “decision is outside the
range of principled outcomes.” Id.

       An attempt to commit a crime “consists of (1) an attempt to commit an offense prohibited
by law, and (2) any act towards the commission of the intended offense.” MCL 750.92; People v
Thousand, 465 Mich 149, 164; 631 NW2d 694 (2001). Thus, to be guilty of attempt, a defendant
must act in furtherance of his intent to commit a crime. Id.

MCL 768.32(1) provides:

       [U]pon an indictment for an offense, consisting of different degrees, as prescribed
       in this chapter, the jury, or the judge in a trial without a jury, may find the accused
       not guilty of the offense in the degree charged in the indictment and may find the
       accused person guilty of a degree of that offense inferior to that charged in the
       indictment, or of an attempt to commit that offense.

When a defendant requests a jury instruction on the attempted commission of the offense
charged, the trial court must give the instruction when a rational view of the evidence would
support it. People v Silver, 466 Mich 386, 388; 646 NW2d 150 (2002). However, a trial court
does not err in omitting an instruction “where the evidence tends only to prove the greater”
offense. People v Cornell, 466 Mich 335, 355-356; 646 NW2d 127 (2002) (quotation marks
omitted).

        In this case, the evidence only tended to prove that defendant completed the offense of
resisting and obstructing arrest; his actions went beyond a mere act toward the commission of the
offense. Additionally, defendant did not argue or present evidence that he tried to resist or
obstruct the officer, but that he failed to do so or was otherwise prevented from completing the
offense; rather, he argued that his conduct did not constitute resisting or obstructing under
MCL 750.81d. See People v Adams, 416 Mich 53, 56; 330 NW2d 634 (1982) (permitting courts
to consider “the evidence or defense presented or argued” in determining whether an attempt
instruction is appropriate). Moreover, the fact that the officer was able to complete the arrest is
irrelevant, given that MCL 750.81d(1) does not require a defendant to be successful in avoiding
arrest to be convicted of resisting and obstructing. When defendant failed to comply with the
officer’s commands, pulled away from the officer, and made threats, he completed the conduct
necessary to establish the offense. Simply put, defendant’s conduct either constituted resisting
arrest, or it did not. The evidence does not support the conclusion that defendant’s conduct
constituted an attempt to resist arrest. Accordingly, because the evidence only tended to prove
the greater offense, Cornell, 466 Mich at 355-356, the trial court did not abuse its discretion in
declining to give the requested instruction.


                                                 -4-
                                        V. SENTENCING

        Lastly, defendant raises several issues regarding his sentencing. Because none of these
issues were raised before the trial court, our review is limited to plain error affecting substantial
rights. Carines, 460 Mich at 763-764. Defendant argues that he is entitled to resentencing
because of the trial court’s failure to consider certain mitigating factors. Although he concedes
that a sentencing court in Michigan is not required to consider all mitigating factors, see People v
Osby, 291 Mich App 412, 416; 804 NW2d 903 (2011), he argues that this Court should follow
federal precedent requiring consideration in sentencing of any mitigating evidence. However, in
Osby, we held that such a requirement does not apply to Michigan’s sentencing scheme. Id.
Because we are bound by our decision in Osby, defendant’s argument is without merit.
MCR 7.215(J)(1).

         Nevertheless, defendant specifically argues that the trial court should have considered his
family support and his remorse as mitigating factors in measuring his rehabilitative potential.1
Although we have stated that family support may be a factor in support of a downward departure
in sentencing, People v Portellos, 298 Mich App 431, 454-455; 827 NW2d 725 (2012), and that
a trial court may consider a defendant’s remorse (or lack of) in determining a defendant’s
rehabilitative potential, People v Spanke, 254 Mich App 642, 650; 658 NW2d 504 (2003),
defendant has not provided any factual support for his claim that he even possessed such support
or expressed such remorse. See People v Elston, 462 Mich 751, 600; 614 NW2d 595 (2000)
(stating that the defendant bears “the burden of furnishing the reviewing court with a record to
verify the factual basis of any argument upon which reversal was predicated.”) Further, we are
not inclined to second-guess the trial court’s superior ability to judge defendant’s sincerity with
regard to any expressions of remorse that he made. People v Daniel, 462 Mich 1, 11; 609 NW2d
557 (2000). Therefore, no plain error with respect to defendant’s sentence has been established
in this regard.

        Defendant also argues that he was entitled to a lesser sentence because his mental health
history constituted a “serious mental disease or defect.” And, he claims that the trial court
should have conducted an assessment of his rehabilitative potential through intensive treatment.
Although defendant’s presentence investigation report (PSIR) establishes that he had a history of
mental health issues, the record is devoid of information or testimony that would substantiate
that his mental health issues diminished or precluded his culpability for committing the charged
crime. Moreover, the trial court is not required to conduct an assessment to measure
rehabilitative potential. Under MCR 6.425(A)(1)(e), defendant’s PSIR must only contain his
“medical history, substance abuse history, if any, and, if indicated, a current psychological or
psychiatric report,” and defendant’s PSIR follows these requirements. Further, because


1
  In making this argument, defendant claims that § 3E1.1 from the federal sentencing guidelines,
which provides that a sentencing court may decrease a defendant’s offense level by two levels if
the defendant “clearly demonstrates acceptance of responsibility,” should apply. Federal
Sentencing Guidelines, § 3E1.1(a). However, the federal sentencing guidelines are not binding
on the state trial courts. See People v Weathersby, 204 Mich App 98, 114; 514 NW2d 493
(1994).

                                                -5-
defendant did not object to the contents of his PSIR, the information is presumed accurate.
People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993).

       Defendant argues that his sentence was based on inaccurate information because the trial
court did not account for these specific mitigating factors in imposing his sentence. The trial
court did not err in its consideration of the mitigating factors, however, and defendant’s
argument is therefore without merit.

        Additionally, defendant argues that the trial court should have stated on the record how it
arrived at his 15-year maximum sentence. Defendant’s maximum sentence was proper in
accordance with his status as a fourth-offense habitual offender. MCL 769.12. Although a trial
court’s decision to enhance a defendant’s sentence as a habitual offender is discretionary, People
v Bonilla-Machado, 489 Mich 412, 416; 803 NW2d 217 (2011), the trial court is not legally
required to state on the record that it is exercising that discretion, People v Knapp, 244 Mich App
361, 389; 624 NW2d 227 (2001). Therefore, the trial court was not required to articulate how it
arrived at defendant’s maximum sentence.

       Defendant also claims that the trial court erred by failing to articulate why defendant’s
sentence was proportionate. When a trial court cites the appropriate guidelines range2 and
sentences the defendant within those guidelines, the trial court is not required to articulate its
reasoning further. People v Bailey (On Remand), 218 Mich App 645, 646-647; 554 NW2d 391
(1996). The trial court sentenced defendant within the guidelines range in this case; therefore, it
properly articulated its reasoning at sentencing. Id.

         Finally, defendant argues that his sentence was “excessive” under federal and state
constitutional principles. To the extent that, in making this argument, defendant is claiming that
his sentence constitutes cruel and unusual punishment under US Const, Am VIII or Const 1963,
art 1, § 16, we find nothing in the record from which to so conclude. See People v Johnson, 309
Mich App 22, 35; 866 NW2d 883 (2015), reversed in part on other grounds 497 Mich 1042
(2015).

       Finally, because none of the errors alleged by defendant require resentencing, his counsel
was not ineffective for failing to object to the imposition of his sentence. See People v Thomas,
260 Mich App 450, 457; 678 NW2d 631 (2004).

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ David H. Sawyer
                                                            /s/ Jane E. Markey



2
  We note that defendant does not challenge the calculation of his minimum sentencing
guidelines range or argue that any sentencing variables were scored in error.

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