                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 21, 2018
               Plaintiff-Appellee,

v                                                                    No. 337148
                                                                     Ionia Circuit Court
ANDY REDD SPARKS,                                                    LC No. 2016-016777-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and MARKEY and TUKEL, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of assaulting and resisting an officer in
violation of MCL 750.81d(1) and public intoxication and disorderly conduct in violation of MCL
750.167(1)(e). The trial court sentenced defendant as a fourth-offense habitual offender under
MCL 769.12 to concurrent terms of 36 months to 15 years’ imprisonment for assaulting and
resisting an officer and 90 days in jail for being drunk and disorderly. Defendant appeals of
right, and we affirm.

       On May 11, 2016, Kyle Cashen noticed a man wandering around on the road. The man
reportedly was staggering, yelling, and talking to himself. When Cashen later drove by the area,
he saw the man lying “half in the road and half kind of in the ditch” and had to drive around the
man to avoid hitting him. Cashen called the police.

         Michigan State Trooper Bradley Campbell responded and found defendant intoxicated
and lying in the grassy shoulder of the roadway with his feet close to the road. The roadway had
a hill that obscured defendant’s position, and Campbell opined that defendant could have been
hit by a car coming over the hill. When Campbell confronted defendant, defendant became
agitated and told him that he intended to fight.

       Defendant became increasingly more agitated, jumped up, and started to walk away,
which led to Campbell attempting to restrain him. Campbell ultimately subdued defendant but
not without a struggle. Defendant refused to obey Campbell’s orders, struggled, and kicked him.
When backup officers arrived, they tried to walk defendant to the sheriff deputy’s patrol car, but
defendant still resisted and refused to cooperate. While being seated in the back of the patrol car,
defendant kicked Campbell again.


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        After the parties concluded their cases at trial, the trial court gave the jury its instructions
and stated in relevant part as follows:

        To prove this charge [of obstructing a police officer,] the prosecution must prove
        each of the following elements beyond a reasonable doubt. First, that the
        defendant assaulted, battered, wounded, resisted, obstructed, opposed, endangered
        a police officer. Obstruct includes the use or threatened use of physical
        interference or force or a knowing failure to comply with a lawful command. The
        defendant must have actually resisted by what he said or did, but physical
        violence is not necessary. Second, that the defendant knew or had reason to know
        that the person the defendant assaulted, battered, wounded, resisted, obstructed,
        opposed, endangered was a police officer performing his duties at the time.

                                                * * *

                A verdict in a criminal case must be unanimous. In order to return a
        verdict it is necessary that each of you agrees on that verdict.

                                                * * *

                The defendant here is charged with two counts, that is, with the crimes of
        assaulting, resisting, or obstructing a police officer and disorderly person-drunk.
        These are separate crimes, and the prosecutor is charging the defendant
        committed both of them. You must consider each crime separately in light of all
        the evidence in the case. You may find the defendant guilty of all or any
        combination of these crimes or not guilty.

        After instructing the jury, the trial court asked if the prosecution or defendant had any
objections to the instructions. Defense counsel responded that defendant had none. The trial
court sent the jury to deliberate and asked the parties if they had any other issues. Defense
counsel responded, “No. Thank you.” The jury deliberated and returned a verdict finding
defendant guilty as charged.

        At defendant’s sentencing hearing, the trial court opined that it found that the Michigan
Department of Corrections’ recommendation—that defendant be sentenced to a term of 46
months to 15 years’—was “warranted” because defendant was 38 years old and had eight prior
felonies and 29 misdemeanors, many of which resulted in terms of probation that defendant
failed to complete. The trial court opined that it considered the matter to be serious because
defendant was a habitual offender but chose to not impose “the maximum sentence” and instead
imposed a sentence of 36 months to the statutory maximum of 15 years.

        Defendant appealed and moved in this Court for remand of his case to the trial court
solely for reconsideration of the maximum sentence imposed for assaulting and resisting an
officer. This Court granted defendant’s motion and remanded the case so that defendant could




                                                  -2-
move for resentencing and ordered the trial court to consider defendant’s motion and resentence
him if appropriate.1 On remand, defendant moved for resentencing for his conviction for
resisting and obstructing an officer on the ground that the trial court failed to recognize that, in
sentencing defendant as a fourth-offense habitual offender, it had discretion to sentence him to
less than the maximum term of 15 years’ imprisonment. Defendant asserted that one could infer
from the trial court’s remarks at sentencing that the trial court did not know that it had discretion
regarding the maximum sentence.

       At the hearing on defendant’s motion, the trial court explained that it knew what it was
saying at defendant’s sentencing. The trial court explained its reasons for the sentence it
imposed and clarified that it chose to impose the statutory maximum because defendant, at the
age of 38 years old had eight prior felonies and 29 misdemeanors, had been in and out of jail
repeatedly, and failed to complete parole a number of times. Therefore, the trial court denied
defendant’s motion for resentencing.

                            I. JURY INSTRUCTION—UNANIMITY

        Defendant first argues that the trial court erred by not giving a special unanimity
instruction to the jury with respect to whether defendant committed the crime of resisting or
obstructing an officer. We disagree.

        The Court of Appeals has consistently held that an affirmative statement that there are no
objections to the jury instructions constitutes express approval of the instructions, thereby
waiving review of any error on appeal. People v Kowalski, 489 Mich 488, 505; 803 NW2d 200
(2011), citing People v Chapo, 283 Mich App 360, 372-373; 770 NW2d 68 (2009); People v
Matuszak, 263 Mich App 42, 57; 687 NW2d 342 (2004); People v Lueth, 253 Mich App 670,
688; 660 NW2d 322 (2002). Accordingly, by expressing satisfaction with the jury instructions
here, “defendant waived any objection to the erroneous instructions, and there is no error to
review.” Id. at 504. Even absent a waiver, we would review unpreserved issues for plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999). To establish a plain error affecting his substantial rights, defendant must establish
that (1) an error occurred, (2) the error was plain, and (3) the plain error affected his substantial
rights, meaning that “the error affected the outcome of the lower court proceedings.” Id. at 763.

       Criminal defendants have the right to have the jury properly instructed before it considers
the evidence. People v Quinn, 305 Mich App 484, 493; 853 NW2d 383 (2014). In People v
Chelmicki, 305 Mich App 58, 67-68; 850 NW2d 612 (2014), this Court explained:

               Michigan law provides criminal defendants the right to a unanimous jury
       verdict. MCR 6.410(B). “In order to protect a defendant’s right to a unanimous
       verdict, it is the duty of the trial court to properly instruct the jury regarding the
       unanimity requirement.” People v Cooks, 446 Mich 503, 511; 521 NW2d 275


1
  See People v Sparks, unpublished order of the Court of Appeals, entered August 16, 2017
(Docket No. 337148).


                                                -3-
       (1994). Often, the trial court fulfills that duty by providing the jury with a general
       instruction on unanimity. Id. at 512. However, a specific unanimity instruction
       may be required in cases in which “more than one act is presented as evidence of
       the actus reus of a single criminal offense” and each act is established through
       materially distinguishable evidence that would lead to juror confusion. Id. at 512-
       513.

However, “[w]hen a statute lists alternative means of committing an offense which in and of
themselves do not constitute separate and distinct offenses, jury unanimity is not required with
regard to the alternate theory.” Chelmicki, 305 Mich App at 68, quoting People v Johnson, 187
Mich App 621, 629-630; 468 NW2d 307 (1991).

        Here, the prosecution charged and tried defendant for a single continuous violation of
MCL 750.81d(1), which contains “alternative means of committing” the offense. The
prosecution did not allege alternative acts that could have constituted resisting or obstructing in
this case. Accordingly, the trial court did not err by not providing the jury with a special
unanimity instruction. 2

       In a related issue, defendant contends that defense counsel provided ineffective assistance
by not objecting to the jury instructions and by not requesting a special unanimity instruction.
We disagree. To succeed on a claim of ineffective assistance, a defendant must show that “(1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (quotation marks and citation
omitted).

        As already explained, a special unanimity instruction was not needed. Accordingly, an
objection lodged by defense counsel would have been futile, and counsel does not render
ineffective assistance by failing to raise meritless objections. See People v Putnam, 309 Mich
App 240 245; 870 NW2d 593 (2015). Moreover, assuming counsel’s performance was deficient,
defendant cannot show that there is a reasonable probability that the outcome would have been
different had the special unanimity instruction been given. For instance, the evidence was
uncontested that defendant violated MCL 750.81d(1) when, inter alia, he kicked Campbell. As
such, there is no principled reason to think that the jury would have deviated from its prior guilty
verdict had it been supplied with a special unanimity instruction.

                       II. JURY INSTRUCTION—MISSING ELEMENT

        Defendant also argues that the trial court failed to properly instruct the jury regarding all
of the elements related to the resisting and obstructing offense. Defendant argues that, in order


2
  To be clear, the trial court did instruct the jury that its verdict had to be unanimous. It simply
did not provide the special unanimity instruction described in Chelmicki.


                                                -4-
to be found guilty, the prosecution was required to prove, as an element of the offense, that
Trooper Campbell’s actions were lawful and that defendant had a right to defend himself against
an unlawful arrest. However, because defense counsel expressed satisfaction with the jury
instructions, this issue is waived. See Kowalski, 489 Mich at 505. Again, assuming the issue
was not waived, our review would be for plain error affecting defendant’s substantial rights.
Carines, 460 Mich at 763-764.

        Defendant had the right to have the jury properly instructed regarding the elements of the
offense of resisting and obstructing an officer. Quinn, 305 Mich App at 493. In People v
Moreno, 491 Mich 38, 57-58; 814 NW2d 624 (2012), the Michigan Supreme Court held that a
person has a right to resist an unlawful arrest for purposes of MCL 750.81d. This Court held in
Quinn, 305 Mich App at 492, that “it is clear that under Moreno, as at common law, the
prosecution must establish that the officers acted lawfully as an actual element of the crime of
resisting or obstructing a police officer under MCL 750.81d.” In People v Vandenberg, 307
Mich App 57, 69; 859 NW2d 229 (2014), this Court reflected upon MCL 750.81d and the
rulings in Moreno and Quinn and stated:

       To convict defendant for resisting and obstructing a police officer, the prosecution
       was required to show that: (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 or her duties. In addition, the prosecution must
       establish that the officers’ actions were lawful. In other words, pursuant to
       Moreno, the lawfulness of the arrest was an element of the offense, and it
       presented a factual question for the jury.

                For an arrest to be lawful, the police officer making the arrest must have
       probable cause, either that a felony or misdemeanor was committed by the
       individual in the officer’s presence, or that a felony or specified misdemeanor
       (i.e., a misdemeanor punishable by imprisonment for more than 92 days) occurred
       outside the officer’s presence and that the individual in question committed the
       offense. An arrest is legal if an officer has reasonable cause to believe that a
       crime was committed by the defendant. Probable cause to arrest exists where the
       facts and circumstances within an officer’s knowledge and of which he has
       reasonably trustworthy information are sufficient in themselves to warrant a man
       of reasonable caution in the belief that an offense has been or is being committed.
       [Quotation marks, citations, and parentheses omitted.]

        This Court specifically noted that the lawfulness of an officer’s arrest is an element of the
offense of resisting or obstructing a police officer, as to which the jury must be instructed. Id. at
69 n 3. Thus, under Vandenberg, Quinn, and Moreno, the trial court should have instructed the
jury to consider and decide the element of the lawfulness of defendant’s arrest. The trial court
plainly failed to do so.

       “An omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law.” Henderson v Kibbe, 431 US 145, 155; 97 S Ct 1730; 52 L Ed 2d 203

                                                -5-
(1977). In Kowalski, 489 Mich at 501-502, the Michigan Supreme Court explained that even
though the trial court had omitted instructing the jury on an element of the charged offense:

       Instructional errors that omit an element of an offense, or otherwise misinform the
       jury of an offense’s elements, do not necessarily render a criminal trial
       fundamentally unfair or an unreliable vehicle for determining guilt or innocence.
       Accordingly, an imperfect instruction is not grounds for setting aside a conviction
       if the instruction fairly presented the issues to be tried and adequately protected
       the defendant’s rights. [Quotation marks, citations, and emphasis omitted.]

       Despite the existence of an obvious plain error by the trial court, the Michigan Supreme
Court considered whether the plain error seriously affected the defendant’s substantial rights:

       We have previously held that jury instructions that were somewhat deficient may
       nonetheless, when viewed as a whole, have sufficed to protect a defendant’s rights
       when the jury would have convicted the defendant on the basis of the evidence
       regardless of the instructional error. If the evidence related to the missing element
       was overwhelming and uncontested, it cannot be said that the error affected the
       defendant’s substantial rights or otherwise undermined the outcome of the
       proceedings. [Id. at 506 (citations omitted).]

        Here, overwhelming and generally uncontested evidence established that Campbell
lawfully arrested defendant for his conduct and defendant had no right to resist arrest. Defendant
asserted two theories of defense: (1) that he had been too intoxicated to commit the offense, and
(2) that he never assaulted, resisted, or obstructed an officer. The jury rejected those defenses.
Although defendant attempted to blame the arresting officer for escalating the incident and
mentioned that a person had the right to resist an unlawful command, defendant did not argue
that the officer unlawfully arrested him. Nothing in the record supports defendant’s contention
on appeal that he merely resisted an unlawful arrest. We therefore conclude that defendant has
failed to establish that the trial court’s plain error affected the outcome of the trial. Accordingly,
as in Kowalski, because defendant cannot establish that any error was outcome determinative, he
is not entitled to any relief.

       Defendant also contends that defense counsel provided ineffective assistance for not
requesting an appropriate instruction or objecting to the incomplete instruction. We review this
unpreserved issue for mistakes apparent on the record. Putnam, 309 Mich at 246, 247.

       As explained above, the trial court plainly erred. It should have instructed the jury that
the lawfulness of the arrest was an element of the offense and an issue of fact for the jury’s
decision. The record indicates that defense counsel failed to properly object to the instruction’s
incompleteness and failed to request correction of the instruction to include the lawful arrest
element of the charged offense. Defense counsel should have done so, and therefore, his
performance fell below an objective standard of reasonableness.

       Nevertheless, defendant cannot establish that he suffered the requisite prejudice. See
Trakhtenberg, 493 Mich at 51 (stating that a defendant must be able to prove that “but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have

                                                 -6-
been different.”). The evidence overwhelmingly established beyond reasonable doubt that
defendant committed the charged offense. Had the jury been instructed to consider and
determine whether Campbell lawfully arrested defendant, there is not a reasonable probability
that the jury would have decided the case any differently. Our review of the record reveals that
there is no evidence to support a finding that Campbell acted unlawfully when he arrested
defendant. Accordingly, defendant cannot prevail on his claim of ineffective assistance.

                  III. DISCRETION REGARDING MAXIMUM SENTENCE

         Defendant also argues that the trial court erred by not understanding that it could exercise
its discretion under MCL 769.12(1)(b) when imposing a maximum sentence upon defendant as a
fourth-degree habitual offender. We disagree.

       A sentence is invalid if the trial court failed to exercise its discretion because of a
misconception of the law. People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981); see
also People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). Indeed, when a trial court fails to
exercise discretion at sentencing because of an erroneous belief that it had no such authority, the
case must be remanded for resentencing. People v Green, 205 Mich App 342, 346; 517 NW2d
782 (1994).

         Under Michigan’s habitual-offender sentencing statute, someone subsequently convicted
of a felony following conviction of three or more felonies can be subject to enhanced sentencing.
MCL 769.12(1). MCL 769.12(1)(c) provides that “[i]f the subsequent felony is punishable upon
a first conviction by imprisonment for a maximum that is less than 5 years, the court, except as
otherwise provided in this section or [MCL 771.1], may sentence the person to imprisonment for
a maximum term of not more than 15 years.” (Emphasis added.) Additionally, MCL 769.12(2)
explains that the trial court shall determine both the minimum and maximum terms and that the
maximum term shall not be less than the maximum term for a first conviction.

       Defendant was convicted under MCL 750.81d(1), which has a two-year maximum
sentence for first offenses. Therefore, under MCL 769.12, the trial court had the discretion to
impose a maximum term that fell within the range of 2-15 years.

        When the trial court stated at the original sentencing that it was imposing a minimum
sentence of three years and a “statutory maximum” sentence of 15 years, it was not clear if the
court thought it was bound by statute in imposing that 15-year maximum sentence. However,
after defendant filed his brief on appeal with this Court, this Court remanded the case back to the
trial court to consider defendant’s motion for resentencing based on the trial court potentially not
being aware of its discretion to fashion a maximum sentence. At that hearing, the trial court
apologized if it had provided a false impression at the original sentencing, but it stressed that it
indeed had understood at the time that it had the discretion to select the maximum term of
imprisonment, up to 15 years. Consequently, with the trial court’s knowledge of its discretion
established with absolute certainty, the basis for defendant’s request for resentencing has
evaporated, and we decline to remand again.




                                                -7-
                                    IV. STANDARD 4 BRIEF

        In his Standard 4 brief, defendant argues that there is a note on page 7 of his presentence
investigation report (PSIR) that needs to be removed because it is factually incorrect. Because
the issue was not raised at sentencing, the issue is unpreserved, People v Sharp, 192 Mich App
501, 504; 481 NW2d 773 (1992), citing MCL 771.14(5) (which is now MCL 771.14(6)), and our
review is for plain error affecting defendant’s substantial rights, Carines, 460 Mich at 763-764.
For the following reasons, we are unable to provide defendant any relief. First, defendant has
failed to provide a copy of this PSIR to this Court for review. Second, there is nothing in the
lower court record to indicate that the note defendant has identified is, in fact, incorrect. Indeed,
at sentencing, defense counsel stated that he had reviewed the PSIR with defendant and that they
had found a paragraph on page 1 that was not applicable to defendant. The prosecution did not
object, and the trial court agreed to strike that paragraph. Other than that single paragraph,
defense counsel stated that there were “[n]o other corrections or changes” that needed to be
made. Accordingly, defendant has failed to prove that the note in question is clearly or
obviously incorrect.

       Affirmed.

                                                              /s/ Christopher M. Murray
                                                              /s/ Jane E. Markey
                                                              /s/ Jonathan Tukel




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