             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PEOPLE OF THE STATE OF MICHIGAN,                                        UNPUBLISHED
                                                                        July 23, 2020
                Plaintiff-Appellee,

v                                                                       No. 347212
                                                                        Kent Circuit Court
CLAYTON ANDREW BYERS,                                                   LC No. 17-011231-FH

                Defendant-Appellant.


Before: BORRELLO, P.J., and SAWYER and SERVITTO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of felony-firearm, MCL
750.227b(1); assaulting, resisting, or obstructing a police officer (resisting and obstructing), MCL
750.81d(1); and possession of a firearm under the influence, MCL 750.237(1)(a). The trial court
sentenced defendant to 2 years’ imprisonment for the felony-firearm conviction, a $750 fine for
the resisting and obstructing conviction, and a $100 fine for his possession of a firearm under the
influence conviction. We affirm.

         This case arose from defendant’s interaction with his next-door neighbor. Trisha Nickels
testified at trial that she lived in a trailer right next to defendant’s trailer. Nickels stated that she
called 911 after defendant allegedly pointed two guns at her head during a conversation inside her
home. According to Nickels, defendant appeared intoxicated during this incident. Nickels
testified that at about 9:30 p.m., when defendant had gone home, she saw the police arrive at
defendant’s trailer. Nickels testified that she saw about four or five police officers in uniform
surround defendant’s home with their guns drawn.

       Nickels stated that this occurred while it was dark outside, but the police officers had lights.
Nickels testified that she could hear the police officers announce that they were police officers
from inside her home. Nickels testified that it took defendant a minute to come out onto his porch,
and the police officers tried to get him to come off the porch. Nickels stated that defendant
eventually came off the porch and was taken into custody by police officers, but it took up to five
minutes for defendant to begin cooperating with the police officers.




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        Deputy Brandon Marz, a road patrol deputy with the Kent County Sheriff’s Office, testified
that he was dispatched at about 9:15 p.m. to defendant’s home on a call regarding the brandishing
of weapons. Deputy Marz stated that defendant’s neighbor reported that defendant “arrived at her
address and pointed two firearms in her face.” Deputy Marz testified that he was the first police
officer to arrive on the scene in full uniform and a marked police cruiser. Deputy Marz stated that
because of safety concerns he staged in an area out of sight of defendant’s home to wait for other
officers to arrive and turned off all the lights on his vehicle so that no one would see him.

        Deputy Marz testified that a second deputy, Deputy John White, arrived on the scene, but
they continued to wait for additional backup until dispatch told them that defendant had gone back
to the victim’s trailer and was attempting to gain access. Deputy Marz stated that when they heard
that the situation had escalated, he and Deputy White decided to approach the trailers on foot
without backup. Deputy Marz testified that he could not see anyone at the victim’s address, but
he saw defendant standing on the porch at his own residence and determined that defendant
matched the description of the suspect provided by dispatch. Deputy Marz stated that it was dark
outside, but he could see defendant clearly because there were streetlights near defendant’s trailer
and some motion activated lights on a few of the nearby trailers.

         Defendant testified that he was sitting at home and could see lights moving outside.
However, defendant stated that it was dark outside and there was only one streetlight across the
street from his trailer, so he could not see what was causing the moving lights. Defendant testified
that he walked onto his porch to check out the situation. Defendant stated that, when he walked
onto the porch, someone shone a flashlight in his face and he did not know what was going on.
Defendant testified that he could not hear anything at first, and he did not know who was outside
his trailer.

       According to Deputy Marz, the incident progressed as follows:

       He turned towards us. We ordered him at that point to come down from the deck.
       He stood there. He did a motion with his right hand, swept his coat to the side
       revealing a firearm, placed his hand on the handgrip or the pistol grip of the firearm,
       and then brushed it aside. So he left his hands down at his side while we gave him
       verbal commands to come down off of the porch. We were identified, obviously
       in full uniform, identified ourselves as deputies with the Kent County Sheriff’s
       Office, and he refused to come off the porch at that time.

                                              * * *

       I believe at one point I told him to drop the gun because I believed he was going to
       pick it up out of the holster. We gave him loud verbal commands to slowly step
       down off the porch. And at one point he indicated that he was not going anywhere.

Deputy Marz further testified that he asked defendant to come off his porch 10 or more times in a
clear and concise manner that could be heard by defendant, the other officer, and onlookers inside
the nearby trailers. Deputy White’s account of the incident at trial matched Deputy Marz’s
testimony, and Deputy White confirmed that defendant would not cooperate with the officers’
verbal commands to put his hands up and come off the porch. Defendant testified that he “heard


                                                -2-
someone yelling something about getting down, and [he] probably said [he was] not going
anywhere because [he] did not know who it was.”

        Deputy Marz stated that “from the time we got there to when [defendant] was taken into
custody was approximately a minute, minute and-a-half.” According to Deputy White, it took
defendant about five minutes to come off the porch from the time the officers first saw him.
Deputy Marz testified that when two additional deputies arrived on the scene, defendant elected to
comply with their commands and stepped off the porch. Defendant testified that he did not know
that there were police officers outside his home until he saw that one of the people in his driveway
was wearing a badge. Defendant stated that as soon as he realized that the people outside his home
were police officers, he stepped down from his porch and complied with their commands.
According to defendant, it took him about a minute to recognize that they were police officers.

        Deputy Marz stated that he ordered defendant to get down on his knees, and defendant
complied. Deputy Marz testified that one of the officers handcuffed defendant and searched him
for weapons. Deputy Marz stated that two firearms were recovered from defendant’s person.
Defendant admitted that he possessed a firearm under the influence of alcohol and was guilty on
that count. Defendant was charged with felonious assault with a dangerous weapon, MCL 750.82;
carrying a concealed weapon, MCL 750.227; and resisting and obstructing in relation to the
incident.

        At the preliminary examination hearing, the prosecutor dropped the carrying a concealed
weapon charge and added the charges of possession of a firearm under the influence and a felony-
firearm on the basis of defendant’s underlying felonious assault charge. The district court
determined that there was probable cause to bind over defendant on the amended charges of
felonious assault, felony-firearm with the underlying felony being felonious assault, resisting and
obstructing, and possession of a firearm under the influence. At defendant’s jury trial, before jury
selection began, the trial court granted the prosecutor’s proposed amendment to the information
which added resisting and obstructing as an underlying felony for defendant’s felony-firearm
charge. Defense counsel did not object to the amendment. Ultimately, the jury found defendant
not guilty of felonious assault but convicted him of felony-firearm, resisting and obstructing, and
possession of a firearm under the influence.

       Defendant argues that there was not sufficient evidence to support his resisting and
obstructing conviction. We disagree.

        This Court reviews de novo a claim of insufficient evidence. People v Jones, 297 Mich
App 80, 86; 823 NW2d 312 (2012). “The evidence is viewed in a light most favorable to the
prosecution to determine whether a rational jury could find that each element of the crime was
proved beyond a reasonable doubt.” Id. In making the determination, this Court must “not
interfere with the fact-finder’s role of deciding the credibility of the witnesses.” People v
Solloway, 316 Mich App 174, 180; 891 NW2d 255 (2016). Circumstantial evidence and the
reasonable inferences that arise therefrom may be properly relied upon as satisfactory proof of
each element of a crime. People v Mikulen, 324 Mich App 14, 20; 919 NW2d 454 (2018).

       Under MCL 750.81d, an individual is guilty of resisting or obstructing if the individual
“assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual


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knows or has reason to know is performing his or her duties.” MCL 750.81d(1). Obstruction is
defined as “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). The duration of a defendant’s resistance
or noncompliance does not matter because “even the briefest moments” of resistance or
noncompliance can give rise to a claim under MCL 750.81d. People v Morris, 314 Mich App 399,
414-415; 886 NW2d 910 (2016).

        The prosecutor must also establish that the officers’ actions were lawful as an element of
resisting and obstructing. Id. at 413. An arrest is lawful when the arresting officer has probable
cause that a felony “occurred outside the officer’s presence and that the individual in question
committed the offense.” People v Vandenberg, 307 Mich App 57, 69; 589 NW2d 229 (2014).
“Probable cause is found when the facts and circumstances within an officer’s knowledge are
sufficient to warrant a reasonable person to believe that an offense had been or is being
committed.” People v Chapo, 283 Mich App 360, 367; 770 NW2d 68 (2009) (quotation marks
and citation omitted).

         In this case, there was sufficient evidence introduced at trial to allow the jury to find that
defendant knowingly failed to comply with the police officers’ lawful commands to come down
from his porch. See MCL 750.81d(1), (7)(a); Jones, 297 Mich App at 86. First, Deputy Marz
testified that the police officers identified themselves as deputies with the Sheriff’s Office in a
voice loud enough to allow defendant and people in nearby trailers to hear them. In fact, Nickels
stated that she could hear the officers announce their presence, identify themselves as police
officers, and give defendant commands to come off his porch from inside her home. Even
defendant admitted that he could hear people yelling from his porch. Therefore, it was reasonable
for a jury to conclude that defendant heard the officers identifying themselves. See Jones, 297
Mich App at 86.

        Additionally, Nickels testified that, although it was dark outside, she could see police
officers in uniform surrounding defendant’s home through her living room window. Although
Deputy Marz testified that he initially concealed himself from defendant’s view, he also testified
that he could see defendant clearly in the light from nearby trailers and streetlights as he
approached defendant’s trailer on foot. Defendant confirmed that he could see people with lights
moving outside his home, which is why he went out onto his porch in the first place. Therefore,
despite defendant’s claim that he did not know that the people he saw with the flashlights outside
his home were police officers, a rational juror could have found that defendant saw the police
officers in uniform and, on the basis of their uniforms, had reason to know that they were police
officers. See MCL 750.81d(1), (7)(a); Jones, 297 Mich App at 86. Consequently, there was
sufficient evidence to allow a reasonable jury to determine that defendant knew or had reason to
know that there were police officers outside his home because the officers were in uniform and
verbally identified themselves as police officers, despite defendant’s claims to the contrary. See
MCL 750.81d(1), (7)(a); Jones, 297 Mich App at 86.

        Next, there was sufficient evidence to support a finding that the police officers’ commands
that defendant put his hands up and come down from his porch were lawful. See Morris, 314 Mich
App at 413; Vandenberg, 307 Mich App at 69; Jones, 297 Mich App at 86. Deputy Marz testified
that he responded to the incident when dispatch informed him that it had received a call regarding
the brandishing of weapons. Deputy Marz stated that the call came from defendant’s neighbor


                                                 -4-
who reported that defendant pointed two firearms at her head while inside her home. On the basis
of this information from dispatch, Deputy Marz and the other responding officers had probable
cause to reasonably believe that a crime had been committed by the suspect. See Chapo, 283 Mich
App at 367. Moreover, Deputy Marz testified that defendant matched the description of the suspect
provided by dispatch, giving him probable cause that defendant was the one who committed the
crime. See Vandenberg, 307 Mich App at 69; Chapo, 283 Mich App at 367. Therefore, Deputy
Marz’s testimony provided a sufficient basis for the jury to reasonably determine that the police
officers were acting lawfully, and with probable cause, by attempting to detain defendant. See
Morris, 314 Mich App at 413; Vandenberg, 307 Mich App at 69; Jones, 297 Mich App at 86.

        Finally, there was sufficient evidence that defendant resisted or obstructed the police
officers’ lawful commands. See MCL 750.81d(7)(a); Morris, 314 Mich App at 414-415. Deputy
Marz testified that the police officers commanded defendant to come down from his porch more
than 10 times in a manner loud enough for defendant to hear, but defendant did not comply for
over a minute and told the officers that he was not going anywhere. Deputy White testified that
defendant would not cooperate with their verbal commands to put his hands up and come off the
porch for about five minutes after the officers first saw him. Similarly, Nickels testified that it
took defendant up to five minutes to begin cooperating with the police officers.

        Despite claiming that he did not know what was going on, defendant admitted that he
“heard someone yelling something about getting down, and [he] probably said [he was] not going
anywhere.” Moreover, although defendant testified that he complied with the officers’ commands
as soon as he realized that they were police officers, defendant also admitted that it took about one
minute to recognize that the people outside his home were police officers. Because noncompliance
can occur in “even the briefest of moments,” the testimony at trial provided the jury with sufficient
evidence to support a conclusion that defendant failed to comply with the police officers’ lawful
commands. See Morris, 314 Mich App at 414-415; Jones, 297 Mich App at 86. Additionally, to
the extent that there was any conflicting testimony, this Court must not interfere with the jury’s
credibility determinations. See Solloway, 316 Mich App at 180.

       Defendant also argues that the trial court erred by allowing the prosecutor to amend
defendant’s information to include resisting and obstructing as an underlying offense for the
felony-firearm charge and improperly instructed the jury regarding defendant’s felony-firearm
charge. We disagree.

        “To be preserved for appellate review, an issue must be raised before and addressed by the
trial court.” People v Wiley, 324 Mich App 130, 150; 919 NW2d 802 (2018). Similarly, a
defendant must raise a timely objection to a jury instruction in order to preserve a challenge to that
instruction for appellate review. People v Mette, 243 Mich App 318, 324; 621 NW2d 713 (2000).
In this case, defendant did not object to the amendment of the information after the trial court
specifically asked defense counsel if he had any objections, nor did defendant raise an objection
to any of the jury instructions. Therefore, defendant failed to properly preserve his challenges to
the amended information and to the trial court’s jury instructions. See Mette, 243 Mich App 318,
324; Wiley, 324 Mich App at 150.

       Generally, “[a] trial court’s decision to grant or deny a motion to amend an information is
reviewed for an abuse of discretion,” People v McGee, 258 Mich App 683, 686-687; 672 NW2d


                                                 -5-
191 (2003), and claims of instructional error are reviewed de novo, People v Kowalski, 489 Mich
488, 501; 803 NW2d 200 (2011). However, because defendant failed to preserve his arguments
on appeal, this Court is limited to plain error review. People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999).

        “The court before, during, or after trial may permit the prosecutor to amend the
information . . . unless the proposed amendment would unfairly surprise or prejudice the
defendant.” MCR 6.112(H). A defendant is not unfairly surprised or prejudiced when the elements
of the offense that the prosecutor moves to add are supported by testimony from the preliminary
examination and the amended information does “not require a different defense or evidence.”
McGee, 258 Mich App at 691. Felony-firearm occurs when a person “carries or has in his or her
possession a firearm when he or she commits or attempts to commit a felony.” MCL 750.227b(1).

         In this case, Deputy Marz provided the same basic testimony at the preliminary
examination as he provided at trial regarding his interactions with defendant on the night of the
incident, including that defendant revealed a firearm under his jacket while not complying with
the police officers’ commands. Therefore, defendant was not unfairly surprised by the amendment
to the information because Deputy Marz’s preliminary examination testimony supported a finding
that defendant was carrying a firearm at the time he allegedly committed the underlying resisting
and obstructing felony as required for a felony-firearm charge. See MCL 750.227b(1); McGee,
258 Mich App at 691.

        Moreover, defendant was charged with the underlying resisting and obstructing felony
from the time the complaint was filed and had plenty of time to create a defense strategy for that
charge. Therefore, defendant was not unfairly prejudiced by the amendment to his information
because using the resisting and obstructing charge as the underlying felony for defendant’s felony-
firearm charge did not require defendant to come up with any additional defenses. See McGee,
258 Mich App at 691. Because the amended information did not unfairly surprise or prejudice
defendant, the trial court did not plainly err by allowing the prosecutor to amend the information
to include resisting and obstructing as an underlying felony for defendant’s felony-firearm charge.
See MCR 6.112(H); Carines, 460 Mich at 763.

         Defendant also argues that the trial court improperly instructed the jury regarding the
felony-firearm charge because it failed to inform the jury of the unanimity requirement as to the
predicate felony for defendant’s felony-firearm charge. However, defendant waived his challenge
to the trial court’s jury instructions. See People v Eisen, 296 Mich App 326, 329; 820 NW2d 229
(2012). A defendant waives a challenge to his or her jury instructions when defense counsel clearly
expresses satisfaction with the jury instructions given by the trial court. Id. In this case, defense
counsel expressed satisfaction with the jury instructions by responding, “No, your Honor,” when
the trial court asked him if he had an objection to the jury instructions. Therefore, defendant
waived appellate review regarding his challenge to the jury instructions. See id.

       Affirmed.

                                                              /s/ Stephen L. Borrello
                                                              /s/ David H. Sawyer
                                                              /s/ Deborah A. Servitto


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