             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PEOPLE OF THE STATE OF MICHIGAN,                                        UNPUBLISHED
                                                                        April 16, 2020
                Plaintiff-Appellee,

v                                                                       No. 346665
                                                                        Jackson Circuit Court
BRYAN SCOTT REYNOLDS,                                                   LC No. 17-005385-FH

                Defendant-Appellant.


Before: CAVANAGH, P.J., and BECKERING and GLEICHER, JJ.

GLEICHER, J. (concurring in part and dissenting in part).

        A jury convicted defendant of resisting and obstructing a police officer, MCL 750.81d(1).
Defendant raises several challenges to his conviction, including that his counsel performed
ineffectively by failing to object to an incomplete jury instruction. The majority holds that only
this appellate claim is meritorious, and that the omission was prejudicial. Although I concur with
the majority’s resolution of all of the other issues presented, I respectfully dissent regarding the
finding of prejudice.

        As the majority opinion explains, the trial court neglected to read to the jury the third
element of the charge of resisting and obstructing a police officer: that the police officer acted
lawfully in stopping defendant and by commanding him to remain in his car. The court should
have instructed the jury that the prosecutor was obligated to prove beyond a reasonable doubt that
the officers “gave the defendant a lawful command, [were] making a lawful arrest, or [were]
otherwise performing a lawful act.” MI Crim JI 13.1(4).

        I concur with the majority that the trial court’s failure to read MI Crim JI 13.1 in its entirety
was error. But defense counsel affirmatively approved the instructions as given, forfeiting any
direct appellate challenge. By neglecting to either recognize that the jury had received an
incomplete instruction or to acknowledge a basis for providing an incomplete instruction, counsel
probably performed ineffectively. Nevertheless, I discern no prejudice flowing from this omission.

        The record supports that the stop of defendant’s vehicle was legal. The officers initiated
the stop after watching defendant pull out of a parking lot at night with his headlights off, and
observed him pull into an incorrect lane of traffic. An officer activated the marked scout car’s


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lights and defendant conceded that he saw them but claimed “I did not realize you were flashing
for me.” The officers had reasonable cause to believe that defendant had violated at least two
traffic laws. Defendant admitted to at least one of the violations at trial.

         In my view, defendant cannot establish a reasonable probability that but for the trial court’s
failure to instruct the jury on the third element of the resisting and obstructing charge, the results
of his trial would have differed. See People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018)
(“Prejudice means a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.”) (quotation marks and citation omitted). The lawfulness
of the stop was uncontested and not subject to dispute. Accordingly, I would affirm his conviction.



                                                               /s/ Elizabeth L. Gleicher




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