                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      February 28, 2017
               Plaintiff-Appellee,

v                                                                     No. 330751
                                                                      Kalamazoo Circuit Court
MICHELLE MARIE PELLETIER,                                             LC No. 2015-000784-FH

               Defendant-Appellant.


Before: BORRELLO, P.J., and MARKEY and M. J. KELLY, JJ.

PER CURIAM.

        Defendant was convicted after a bench trial of resisting and obstructing, MCL
750.81d(1). She was sentenced to 163 days in jail, with credit for 163 days, and 12 months’
probation. Defendant now appeals as of right. We affirm but remand to the trial court to
establish a factual basis for the imposed court costs or to alter the amount of costs, if appropriate.

                                         I. BACKGOUND

        This appeal arises from an attempt by local police officers to execute an arrest warrant.
Defendant and her sister, Amy Pelletier, lived in a home on Raborn Court in Portage, Michigan.
The home had been the subject of eviction proceedings with defendant’s mother attempting to
evict her children from the home. There also appears to have been a prior police standoff at the
home which left one of defendant’s brothers dead and the other wounded.

       On May 30, 2015, the City of Portage Police Department received a complaint of
multiple shots fired at defendant’s home. The police had information that Amy and defendant
kept “a large cache of guns” in their house and had outstanding warrants for trespass. The police
department obtained a search warrant for the residence and deployed the Kalamazoo
metropolitan SWAT team. About 20 officers arrived to assist, and the team went to defendant’s
house around 11:45 p.m. The officers were in uniforms that identified them as police and they
brought a large armored vehicle called a Bearcat, which was printed with lettering spelling
“Police” and equipped with headlights, spotlights, and blue emergency lights. The Bearcat also
had a very loud public announcement (PA) system that could be heard from two or three houses
away.

       Starting about 11:45 p.m., the SWAT team made a series of announcements using the
Bearcat’s PA system, which, according to police testimony meant that officers repeatedly

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announced, “police” and “we have a search warrant,” and requested that the occupants come out
of the house. The police gave commands over the PA system for about an hour, but no sign ever
came from inside the house or acknowledged the commands. After about an hour, police
attempted to “breach open” the front door of the home using the Bearcat’s ram. The Bearcat was
able to get the door “cracked open” but was unable to completely remove the door because the
Bearcat got stuck in the mud outside the home. After the door was partially opened, the SWAT
team continued to give verbal announcements for about 10 minutes, still with no result,
prompting police to fire three rounds of non-lethal chemical munitions into the home in an
attempt to drive out the occupants.

       As police were positioned in the back they saw defendant and her sister flee from the
back entrance of the home. After numerous verbal commands to defendant and her sister to get
on the ground were unsuccessful, police tossed a device which caused a “loud boom,” and
brought defendant and her sister to the ground, allowing police to take them into custody.

         At trial, defendant testified that she did not comply with the police’s orders on May 30,
2015, because she did not believe they were really police officers. Defendant testified that
various other suspicious incidents had occurred related to the eviction. For example, defendant
testified that she participated in some legal proceedings related to the eviction, but she believed
that the trial court judge refused to look at her paperwork and the police were engaged in
“suspicious” activity and might “kidnap” her. Defendant also testified that, beginning in
February 2013, she and her sister began to see “black hawk helicopters” flying low around the
property. Defendant testified that, on one occasion, a helicopter flew very close to where she
was standing outside, and she became “really very sick” as a result. According to defendant, a
similar incident occurred to her brother when he was outside when a helicopter flew by.
Defendant testified that she believed that these incidents were a part of a larger scheme by
someone who wanted her mother to sell the house.

        Defendant also testified that, on April 1, 2014, some people who “looked like they were
from the sheriff’s department” arrived at the house in a police vehicle. However, defendant did
not believe that the people were real police officers. She testified that she called 911, but the
dispatcher refused to send police officers to help her. After her interactions with the 911
dispatcher, defendant concluded that her telephone was “rigged.” What is gleaned from
defendant’s testimony is that any interaction between herself or members of her family and the
police were all the result of some conspiracy intended to deprive defendant of her rights.

        Defendant testified that, on May 30, 2015, she and her sister were at home taking care of
their animals when she heard loud noises and what she believed to be people who were trying to
assassinate her. She also saw “a huge monstrous vehicle” outside and bright lights illuminating
the front of the house but did not know that the vehicle or the lights belonged to police officers.

       The trial court considered the evidence and found as follows:

       The issue really is whether or not there’s enough evidence that she either resisted,
       obstructed, or opposed an officer, and whether or not she knew, or had reason to
       know, that these were officers who were performing their duties. There’s no
       question, based on what’s been presented to me, that the officers were performing

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       the duties that they were responsible for given what they were dispatched to do,
       and the circumstances they faced. The only issues are her behavior and what she
       knew or had to know, or had reason to know, I should say.

Ultimately, the trial court concluded:

       Whether or not she believed that they were law enforcement officers, it was a
       lawful command, and that she failed to comply with it. She heard the commands.
       Um, whether or not she believed they were in fact officers, that’s not the point.
       She had reason to know that they were officers, and she did not comply with the
       various commands. In particular, those commands outside, while she was near
       the barn, when officers repeatedly told her to show her hands, get down on the
       ground, and she didn’t do that.

       The trial court convicted defendant and sentenced her as indicated above. This appeal
then ensued.

        On appeal, defendant raises two issues. First defendant argues that there was insufficient
evidence to support her conviction. A challenge to the sufficiency of the evidence requires this
Court to view the evidence de novo in a light most favorable to the prosecution and determine
whether any reasonable fact-finder would be warranted in finding that the essential elements of
the crime were proven beyond a reasonable doubt. People v Harverson, 291 Mich App 171,
177; 804 NW2d 757 (2010). To convict defendant of resisting and obstructing, the prosecution
was required to prove that defendant (1) “assaulted, battered, wounded, resisted, obstructed,
opposed, or endangered” a police officer, and that defendant, (2) “knew or had reason to know
that” the person was a police officer performing his or her duties. People v Corr, 287 Mich App
499, 503; 788 NW2d 860 (2010). The prosecution is also required to prove that the officer’s
actions were lawful. People v Moreno, 491 Mich 38, 52; 814 NW2d 624 (2012).

        Viewed in a light most favorable to the prosecution, the testimony in this case was legally
sufficient to allow a trier of fact to infer beyond a reasonable doubt that defendant resisted and
obstructed police officers. From the testimony we find there was sufficient evidence to enable a
rational trier of fact to find the first element for each count, that defendant resisted or obstructed
police. As used in the statute, the word “obstruct” 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). In this case, the record reflects that defendant knowingly failed to comply with
the officers’ lawful commands. The record supports that a SWAT team positioned outside
defendant’s house used a PA system, which was loud enough to be heard from two or three
houses away, to make announcements for over an hour. The team repeatedly announced,
“police,” “we have a search warrant,” and requested that the occupants come out of the house.
The record reflects that defendant did not comply with the officers’ orders to come out of the
house. Even after non-lethal gas was deployed into the home, defendant did not exit the house
through the front door as requested. Instead, she exited out a back patio and out into the
backyard. As defendant walked toward a barn, officers identified themselves as police, told her
that she was under arrest, and commanded her to stop and show her hands. The record supports
that defendant did not comply with these commands. Defendant was then commanded to take
steps toward the officers, and initially started walking toward the officers but changed her mind

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and went back to her position near the barn. The officers ordered defendant to “get on the
ground,” but she did not comply. Even after defendant and the home’s other occupant were hit
in the thigh with “less lethal” rounds administered by the officers, she did not comply with
orders to get on her stomach. Defendant did not comply until a distraction device was deployed.
Viewing this evidence in a light most favorable to the prosecution, this evidence was sufficient
for the fact-finder to find that defendant knowingly failed to comply with the officers’ lawful
commands and therefore resisted or obstructed the police officers.

         There was also sufficient evidence for the fact-finder to find that the second element—
that defendant knew or had reason to know that the people outside her house were police officers
performing their duties—was proven beyond a reasonable doubt. The record supports that about
20 uniformed officers were positioned around defendant’s house. They brought a large armored
vehicle, which was printed with lettering spelling “Police” and equipped with headlights,
spotlights, and blue emergency lights. The officers used a PA system to announce “police” and
“we have a search warrant,” and to request that the occupants come out of the house. The door
was eventually breached open with a ram, and gas was deployed into the house. When defendant
finally left the house, officers yelled, “stop police,” “you’re under arrest,” and “let me see your
hands.” The record supports that defendant heard the officers identify themselves as police and
commanded her to stop, show her hands, and take steps toward the police. However, defendant
testified that she “didn’t just automatically believe that they were doing legal stuff just because
they say that they’re the police” and was not willing to comply with orders because, “even if they
were the police, that I knew that, um, they weren’t doing what was right, and I wasn’t willing to
go along with that.” Even if defendant did not actually believe the officers were police officers
performing their duties, the record supports that she had reason to know that the people outside
her house were police officers performing their duties. This evidence was sufficient for the fact-
finder to find the second element of resisting and obstructing.

        Finally, a rational fact-finder could find that the officers’ actions were lawful.1 The
record reflects that the officers had a search warrant for defendant’s residence and that defendant
had an outstanding arrest warrant. Thus, a rational fact-finder could find that the officers’
actions were lawful. The prosecution’s evidence in this case, when viewed in a light most
favorable to the prosecution, People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992),
sufficiently proves beyond a reasonable doubt that defendant committed resisting and
obstructing. Accordingly, defendant is not entitled to relief on this issue.

        Defendant next argues that the trial court rendered inconsistent verdicts. Judges sitting as
triers of fact must render consistent verdicts. People v Ellis, 468 Mich 25, 26; 658 NW2d 142
(2003). Inconsistent verdicts occur when the trial court’s factual findings “cannot be rationally



1
  Defendant argues on appeal that the trial court erroneously failed to consider whether the third
element, whether officers’ actions were lawful. This argument is without merit. The record
reflects that the trial court found that the officers had search and arrest warrants and had the
responsibility to affect court orders, thereby concluding that the officers’ commands were
“lawful.”


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reconciled” with the verdict. Id. at 27. Defendant argues that the trial court’s conclusion that she
did not know that the people outside were law enforcement officers was inconsistent with the
conclusion that she had reason to know that the commands came from law enforcement officers.
At trial, the trial court found that, based on defendant’s past experiences, she “may have had
some questions in her mind about what was really happening in terms of her being at the home,
and her relationship to, um, anyone trying to get her out of the home, or having law enforcement
contact with her.” The trial court stated, “I’m not going to find that she, in fact, did know, given
what she stated, but certainly beyond a reasonable doubt that she had reason to know.” These
conclusions were not inconsistent. To convict defendant of resisting and obstructing, the
prosecution was required to prove that defendant “knew or had reason to know that” the person
she assaulted, battered, wounded, resisted, obstructed, opposed, or endangered was a police
officer performing his or her duties. Corr, 287 Mich App at 503 (emphasis added). This
element specifically allows for a trial court to find either that defendant knew that the person was
a police officer, or had reason to know that the person was a police officer. It is not necessary to
find that defendant actually knew the person was a police officer. Because the trial court’s
factual findings can be “rationally reconciled” with the conclusion that defendant had reason to
know that the people outside her house were police officers performing their duties, the trial
court’s verdict was not inconsistent. Ellis, 468 Mich at 26. Accordingly, defendant is not
entitled to relief on this issue.

        Finally, defendant challenges on appeal the sentencing court’s imposition of $1,000 in
court costs. According to defendant, the court imposed the costs without establishing a factual
basis for the costs, restricting her ability to challenge the reasonableness of the costs. Plaintiff
concedes error.

        As amended, MCL 769.1k(1)(b)(iii) applies to all fines, costs, and assessments imposed
under MCL 769.1k before June 18, 2014, and after October 17, 2014. Thus, when defendant was
sentenced, November 9, 2015, the trial court was authorized to impose any costs reasonably
related to the actual costs incurred by the trial court. As defendant argues and the prosecution
concedes, the trial court did not establish a factual basis for the imposed costs. There is nothing
on the record to provide any reasoning for the $1,000 court costs. Without a factual basis for the
court costs, we cannot determine whether the costs were reasonably related to the actual costs
incurred by the trial court. Therefore, we remand the case to the trial court to establish a factual
basis for the costs or to alter the amount of costs, if appropriate. People v Konopka (On
Remand), 309 Mich App 345, 356; 869 NW2d 651 (2015).

        Conviction affirmed, but remanded to establish a factual basis for the costs or to alter the
costs imposed, if appropriate. We do not retain jurisdiction.



                                                             /s/ Stephen L. Borrello
                                                             /s/ Jane E. Markey
                                                             /s/ Michael J. Kelly




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