                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 11, 2017
               Plaintiff-Appellee,

v                                                                   No. 330681
                                                                    Midland Circuit Court
DENNIS ELDON SKUTT,                                                 LC No. 15-006110-FH

               Defendant-Appellant.


Before: BORRELLO, P.J., and WILDER and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as of right from his convictions following a jury trial of assaulting a
police officer, MCL 750.81d(1), possession of a controlled substance, second offense, MCL
333.7403(2)(d) and MCL 333.7413(2), operating a motor vehicle on a suspended license,
subsequent offense, MCL 257.904(1), (3)(b), and operating a motor vehicle with the bodily
presence of a controlled substance, MCL 257.625(8). Defendant was sentenced as a fourth
habitual offender, MCL 769.12, to serve terms of imprisonment of 24 months to 15 years for
assaulting a police officer, 196 days each for possession of marijuana and driving on a suspended
license, and 93 days for driving with a controlled substance in his system. The court ordered that
defendant serve the assault sentence consecutive to the remaining sentences. We affirm
defendant’s convictions, but remand to the trial court so that it may separately consider its order
of a consecutive sentence.

         After witnessing defendant driving his vehicle at a high rate of speed and crossing over
his lane’s fog line, Michigan State Trooper Richard Kearns signaled for defendant to pull over.
Defendant did not pull over immediately; rather, defendant drove slowly for a quarter mile until
he reached and stopped in his driveway. According to Trooper Kearns, once defendant stopped
his vehicle, he yelled for defendant to place his hands outside the window, and defendant
initially complied but then “jerk[ed] back into the car” when Kearns took a step forward.
Defendant apparently then returned to placing his hands outside the window. Trooper Kearns
attempted to remove defendant from the vehicle to ensure that he did not have a weapon. When
Trooper Kearns took hold of defendant’s wrist, defendant struck him above his eye with his fist.
Trooper Kearns stepped back from the vehicle, presented his Taser gun, and issued verbal
commands to defendant, which defendant did not follow. After defendant attempted to kick him,
Trooper Kearns deployed his Taser, the probes of which struck defendant in the chest.


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        Trooper Kearns testified that defendant then “disengaged the wires from his chest and
came running out of the vehicle, charging at me.” Defendant again struck Trooper Kearns in the
face with his fist and Trooper Kearns used his Taser on defendant multiple times and “gave him
a left hook to the head.” Eventually, defendant submitted to arrest. A search of defendant’s
vehicle uncovered a marijuana pipe and a pill bottle containing a green substance which smelled
strongly of marijuana. Testing revealed that this substance was indeed marijuana. Execution of
a warrant to test defendant’s blood turned up the presence of THC, the active ingredient in
marijuana. Through the trooper’s testimony, the prosecution entered into evidence, without
objection from defense counsel, a laboratory report confirming the presence of THC in
defendant’s blood.

        Trial Counsel Not Ineffective. On appeal, defendant first argues that he was
unconstitutionally deprived of the effective assistance of trial counsel because his counsel did not
object to the admission of the laboratory report on his blood analysis. We disagree. Because
defendant failed to request a Ginther1 hearing or move for a new trial in the matter, 2 “our
review of this issue is limited to mistakes apparent on the appellate record.” People v Davis, 250
Mich App 357, 368; 649 NW2d 94, lv den 467 Mich 910 (2002). “If the record does not contain
sufficient detail to support defendant’s ineffective assistance claim, then he has effectively
waived the issue.” Id.

        An appellate court is required to reverse a defendant’s conviction when defense “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v Washington, 466 US 668, 687; 104 S Ct
2052; 80 L Ed 2d 674 (1984). A defendant requesting reversal of an otherwise valid conviction
bears the burden of proving “(1) the performance of his counsel was below an objective standard
of reasonableness under prevailing professional norms and (2) a reasonable probability exists
that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would
have been different.” People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d
19 (2000).

       To prove the first prong, “[t]he defendant must overcome a strong presumption that
counsel’s assistance constituted sound trial strategy.” People v Stanaway, 446 Mich 643, 687;
521 NW2d 557 (1994). Defense counsel has “wide discretion in matters of trial strategy because
counsel may be required to take calculated risks to win a case.” People v Heft, 299 Mich App
69, 83; 829 NW2d 266 (2012). “Decisions regarding what evidence to present and whether to


1
    People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).
2
  Defendant asserts that he personally preserved this issue at trial “in part by voicing his concern
about his counsel’s failure to call witnesses on the record.” The concern raised by defendant,
however, went to defense counsel’s alleged refusal to call witnesses who would testify to injuries
that defendant sustained on the night of his arrest. This stated concern has nothing to do with the
alleged instance of ineffective assistance now raised on appeal and does not preserve this issue
for appellate review.



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call or question witnesses are presumed to be matters of trial strategy.” People v Rockey, 237
Mich App 74, 76; 601 NW2d 887 (1999). “This Court does not second-guess counsel on matters
of trial strategy, nor does it assess counsel’s competence with the benefit of hindsight.” People v
Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Consistent with this principle, the fact
that “a defense strategy ultimately fails does not establish ineffective assistance of counsel.”
People v Masroor, 313 Mich App 358, 368; 880 NW2d 812 (2015). A defendant is prejudiced if
there is a reasonable probability that, “but for defense counsel’s errors, the result of the
proceeding would have been different.” Heft, 299 Mich App at 80-81; 829 NW2d 266 (2012).

        In this case, Trooper Kearns did not prepare the laboratory report analyzing the THC
level in defendant’s blood and did not have any other personal knowledge of the contents
contained therein. As offered, the report was testimonial hearsay which would have been
inadmissible at trial had defense counsel lodged an objection.

        Yet, this need not be error. “[D]eclining to raise objections,” including to the admission
of evidence “can often be consistent with sound trial strategy.” People v Unger, 278 Mich App
210, 253; 749 NW2d 272 (2008). Regarding the marijuana charge, defense counsel stated in
closing argument, “As to the. . . possession of marijuana, we offer no defense to that.
[Defendant] was found in possession of marijuana. He tested positive for marijuana.” Defense
counsel also stated that whether defendant’s license was suspended was “not an issue” and that
defendant admitted that his license was suspended. Defense counsel then addressed the resisting
and obstructing charge, stating as follows:

       Why did this become an issue? Why was this different than obviously at least
       once, you know, a situation where he had lost his license?

              It was because of what Trooper Kearns was doing. He gave him the
       opportunity to stick his hands out the window. And [Defendant] did that.

              Who escalated the situation was Trooper Kearns. . . . I ask that you find
       my client not guilty based on that fact. That he wasn’t the one that was resisting
       obstructing. . . .

        This is consistent with defense counsel’s opening argument. Although counsel did not
indicate defendant was not challenging the two marijuana-based charges and the suspended-
license charge, counsel’s argument focused only on the circumstances of defendant’s interaction
with Trooper Kearns after defendant stopped his vehicle. Additionally, defense counsel’s cross-
examination of Trooper Kearns was focused on the same issue. After asking Trooper Kearns
about how the two men came to be parked in defendant’s driveway, counsel asked about whether
defendant’s hands were outside the window (as he had been commanded) when Kearns opened
the driver’s side door; Kearns responded “Yes.” Defense counsel’s questioning prompted
Trooper Kearns to admit that defendant did not run from the vehicle, that he never told defendant
to step out of the vehicle or that he was going to grab his hand, and that, in the officer’s own
words, “The moment I grabbed onto him is when things started to go south.” Defense counsel
also went through with the officer how many times he used his Taser, getting him to agree that
he employed the devise four times in about 20 seconds.

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        Failing to challenge the evidence with respect to some criminal charges can lend
credibility to simultaneous protestations of innocence concerning others, and thus may constitute
sound trial strategy. See People v Wise, 134 Mich App 82, 98; 351 NW2d 255 (1984). This
characterizes the approach taken by defense counsel. Counsel’s strategy appears to have been to
admit, or at least not contest, the misdemeanor drug and driving charges, in an attempt to
improve defendant’s credibility with the jury and limit the impact of the evidence of defendant’s
drug usage and prior bad acts. This was a “calculated risk,” Heft, 299 Mich App at 83,
apparently undertaken to win an acquittal on the most serious charge, a decision we will not
second-guess “with the benefit of hindsight,” Russel, 297 Mich App at 716. Accordingly, we
conclude that defendant has not established that his trial counsel was constitutionally ineffective.

        No Error with Jury Instructions. Next, defendant argues that the trial court erred when it
instructed the jury on fleeing and eluding, on the ground that any fleeing and eluding occurred
before the skirmish between himself and the arresting officer. Again, we disagree.

        “A criminal defendant has the right to have a properly instructed jury consider the
evidence against him.” People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000) (internal
quotation notation and citation omitted). “Jury instructions must clearly present the case and the
applicable law to the jury.” People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005).
“[A] trial court’s determination whether a jury instruction is applicable to the facts of the case is
reviewed for an abuse of discretion.” People v Gillis, 474 Mich 105, 113; 712 NW2d 419
(2006). A trial court abuses it discretion when its decision falls “outside the principled range of
outcomes.” People v Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006). “Even if
somewhat imperfect, instructions do not warrant reversal if they fairly presented the issues to be
tried and sufficiently protected the defendant’s rights.” People v Kurr, 253 Mich App 317, 327;
NW2d 651 (2002).

       “Evidence of flight is not insignificant. It is admissible, relevant, material and can lead to
an inference of guilt.” People v Kyles, 40 Mich App 357, 360; 198 NW2d 732 (1972). Over
defendant’s objection, the trial court included the following instruction based on M Crim JI 4.4:
               There has been some evidence that the Defendant tried to run away after
       the alleged crime. This evidence does not prove guilt.

                A person may run or hide for innocent reasons such as panic, mistake, or
       fear.

                However, a person may also run or hide because of a consciousness of
       guilt.

              You must decide whether the evidence is true, and if true, whether it
       shows that the Defendant had a guilty state of mind.

       According to the trooper’s testimony, defendant failed to stop when he turned on his
overhead lights, slowed his vehicle to 15 miles per hour, and continued to drive to his home.
When Trooper Kearns attempted to remove defendant from his vehicle, defendant attacked him.
Defendant was driving on a suspended license, under the influence of marijuana, and with
marijuana in his presence. Based on this evidence, the jury could have found that when

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defendant failed to stop when Kearns turned on his lights, or when defendant attacked Trooper
Kearns, defendant was attempting to flee or escape the police because of his knowledge that he
was committing multiple crimes. This evidence was thus relevant to defendant’s guilt or
innocence on at least two of the charged counts. Accordingly, the trial court did not abuse its
discretion in providing the jury with the instruction on flight.

        Consecutive Sentences. Finally, defendant argues that he in entitled to resentencing
because the trial court failed to articulate its reasons for ordering that he serve his sentence for
the resisting-and-obstructing conviction consecutive to the other imposed sentences. On this
limited issue, we agree.

       The trial court appears to have ordered that defendant’s sentence for his resisting and
obstructive arrest conviction be served consecutively to his sentences for his drug and driving
convictions under the discretion granted the trial court by MCL 750.81d(6) (stating that a
sentence imposed for resisting and obstructing arrest “may run consecutively to any term of
imprisonment imposed for another violation arising from the same transaction”). Where the
decision to impose a consecutive sentence is left to the trial court’s discretion, rather than
mandated by statute, our review of that decision is for an abuse of discretion. People v Norfleet,
___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 328968); slip op at 1, 6.

        To determine whether an abuse occurred, we require “that the trial court set forth the
reasons underlying its decision.” Id. at ___; slip op at 7. “[A] defendant facing the specter of a
cumulative term of imprisonment is at a minimum entitled to due consideration of the
relationship between the proposed consecutive sentence and any other period of incarceration the
defendant may be subject to.” People v Chambers, 430 Mich 217, 229-230; 421 NW2d 903
(1988). Therefore, when a trial court imposes a consecutive sentence, that sentence must be
“separately justified on the record.” Norfleet, ___ Mich App at ___; slip op at 7.

        Regarding the resisting and obstructing conviction, at the sentencing hearing, defendant
requested that the trial court order a non-prison sentence, specifically based upon his nonviolent
character and the trooper’s escalation of the incident. The prosecution disagreed, arguing that
the Court should impose a sentence of 46 months in prison. The trial court addressed defendant
as follows:

       So you do have a long history . . . . And I mean, I understand you say that you
       have never been a violent person, but your record does speak for itself.

               You do have prior assault and batteries. You do have three prior R&O’s.

             You know, frankly, I’m not as concerned about . . . a lot of the other
       misdemeanor offenses that you’ve got.

               But . . . your actions on this occasion, I mean, is not a normal resisting and
       obstructing. I mean, you out and out punched that trooper in the head at least
       once, tried to hit him twice, not to mention kicking him, not to mention . . . after
       he tased you.

                                                -5-
              . . . I think you were looking for a fight with . . . this trooper. And it was
       due to his professionalism and his training that I think that he didn’t really beat
       you up frankly.

The trial court then ordered defendant to serve a 24-month minimum sentence on the resisting
and obstruction conviction and ordered that that he serve that sentence consecutive to the
sentences for his other convictions.

        Yet, it is unclear whether the trial court relied on the violent nature of defendant’s actions
in rejecting defendant’s request for a non-prison sentence and (1) imposing the 24 months of
imprison, (2) requiring that the sentence be served consecutive to the sentences for the other
crimes, or (3) both (1) and (2). Accordingly, we must remand this matter. In doing so, we take
no position on whether consecutive sentencing is appropriate for this defendant. On remand, the
trial court should separately consider the relationship between the proposed consecutive sentence
and defendant’s other periods of incarceration, Chambers, 430 Mich at 229-230, and should
separately justify its order of a consecutive sentence, if any, on the record, Norfleet, ___ Mich
App at ___; slip op at 7.


       We affirm defendant’s convictions, but remand to the trial court so that it may separately
consider its order of a consecutive sentence. We do not retain jurisdiction.


                                                              /s/ Stephen L. Borrello
                                                              /s/ Kurtis T. Wilder
                                                              /s/ Brock A. Swartzle




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