            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 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED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.

PER CURIAM.

     Defendant appeals as of right his jury conviction of resisting or obstructing a police officer,
MCL 750.81d(1), for which he was sentenced to 270 days’ imprisonment. We reverse.

                                 I. FACTUAL BACKGROUND
        In September 2017, Jackson County Police Department (JCPD) Officer Rachel Kuhn
initiated a traffic stop at approximately 1:15 a.m. on the basis of defendant’s driving. Officer Kuhn
was in a marked police vehicle, and JCPD Detective Aaron Grove was with her during the traffic
stop. Defendant exited a parking lot without his vehicle headlights on and made a right turn to the
left northbound lane near the middle turning lane, rather than the closer, right northbound lane.
Officer Kuhn and Detective Grove indicated that this behavior constituted motor vehicle violations
and that they suspected intoxicated driving.

        Officer Kuhn activated the overhead lights on the police vehicle, but the lights did not
remain activated. Defendant then moved to the middle turning lane of the roadway and turned into
a restaurant parking lot. According to Officer Kuhn, defendant stopped at an angle such that she
could not initially park straight behind defendant’s vehicle. Officer Kuhn began to reposition the
police vehicle, but defendant exited his vehicle. Officer Kuhn and Detective Grove instructed
defendant several times to return to his vehicle. According to the police officers, defendant
continued to approach Officer Kuhn and Detective Grove and, at one point, moved his hands to
the small of his back, which concerned the police officers that defendant could have a concealed
weapon. Detective Grove repeatedly instructed defendant to “get down on the ground.” Because



                                                -1-
defendant did not comply, Detective Grove drew his service weapon and aimed it toward the
ground.

        Defendant again did not comply, so Detective Grove forced defendant to the ground by
placing his hands onto defendant’s shoulders. When defendant did not comply with Detective
Grove’s instruction to put his hands behind his back, Detective Grove struck defendant’s thigh
with his knee according to JCPD training procedures and placed defendant’s hands behind his
back. According to Detective Grove, defendant grabbed Detective Grove’s wrists as he held
defendant’s hands behind his back. Detective Grove responded by giving defendant an open-hand
stun to his forehead. Detective Grove also pulled defendant’s hair pursuant to JCPD procedures
to control him and compel him to comply with instructions when defendant yelled and threatened
the police officers. The police officers thereafter arrested defendant.

        According to defendant, he willfully laid on the ground and was trying to comply with the
police officers’ instructions. Defendant testified that, while he was on the ground, Detective Grove
sat on his back, punched defendant’s head, used his knee to hit defendant between defendant’s
legs, and hit defendant with his elbows and forearm. Defendant indicated that he “got kneed about
six times in [his] rear end.” Defendant testified that Officer Kuhn pulled his hair and dragged him
across the ground. Defendant also testified that he did not grab Detective Grove’s hand or wrist.
The jury found defendant guilty of resisting or obstructing a police officer. Defendant appeals.

                                              II. ANALYSIS
                                A. SUFFICIENCY OF THE EVIDENCE
       Defendant argues that there was insufficient evidence to support his conviction. We
disagree.

        This Court reviews de novo whether there was sufficient evidence to support a conviction.
People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). “In determining whether
sufficient evidence exists to sustain a conviction, this Court reviews the evidence in the light most
favorable to the prosecution, and considers whether there was sufficient evidence to justify a
rational trier of fact in finding guilt beyond a reasonable doubt.” People v Harris, 495 Mich 120,
126; 845 NW2d 477 (2014). This Court is required to draw all reasonable inferences and
credibility determinations in favor of the jury verdict. People v Nowack, 462 Mich 392, 400; 614
NW2d 78 (2000). This is because “[j]uries, not appellate courts, see and hear witnesses and are in
a much better position to decide the weight and credibility to be given to their testimony.” People
v Wolfe, 440 Mich 508, 515; 489 NW2d 748, amended 441 Mich 1201 (1992) (quotation marks
and citation omitted). “ ‘Circumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime.’ ” People v Carines, 460
Mich 750, 757; 597 NW2d 130 (1999) (citation omitted).

        MCL 750.81d protects police officers “who are lawfully engaged in conducting the duties
of their occupations, from physical interference or the threat of physical interference.” People v
Morris, 314 Mich App 399, 411; 886 NW2d 910 (2016). MCL 750.81d provides, in relevant part:
               (1) Except as provided in subsections (2), (3), and (4), an individual who
       assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the
       individual knows or has reason to know is performing his or her duties is guilty of

                                                -2-
       a felony punishable by imprisonment for not more than 2 years or a fine of not more
       than $2,000.00, or both.

                                                * * *

                (7) As used in this section:

               (a) “Obstruct” includes the use or threatened use of physical interference or
       force or a knowing failure to comply with a lawful command.

                (b) “Person” means any of the following:

              (i) A police officer of this state or of a political subdivision of this state
       including, but not limited to, a motor carrier officer or capitol security officer of the
       department of state police.

        The elements of resisting or obstructing a police officer under MCL 750.81d(1) are: “ ‘(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.’ ” People v Quinn, 305 Mich App 484, 491; 853 NW2d 383 (2014)
(citation omitted). Additionally, the lawfulness of the police officer’s actions is an element of the
offense. Id. at 491-492.

        If a police officer reasonably suspects, on the basis of the police officer’s observations, that
“criminal activity may be afoot,” the police officer may conduct a traffic stop to investigate the
circumstances that provoke suspicion. Terry v Ohio, 392 US 1, 30; 88 S Ct 1868; 20 L Ed 2d 889
(1968); see also People v Steele, 292 Mich App 308, 318; 806 NW2d 753 (2011). A police
officer’s reasonable suspicion of a traffic law violation justifies a traffic stop. People v Simmons,
316 Mich App 322, 326; 894 NW2d 86 (2016).

       In this case, the testimony and evidence presented during the trial was sufficient to
demonstrate that defendant resisted or obstructed Officer Kuhn and Detective Grove while they
were performing their lawful duties. The police officers testified that defendant exited his vehicle
and quickly approached them, which prevented them from completing the traffic stop. Officer
Kuhn and Detective Grove also testified that defendant appeared angry, upset, or frustrated as he
approached them and that he reached behind his back, which could indicate that he had a concealed
weapon. Additionally, the police officers instructed defendant several times, first to return to his
vehicle and then to get on the ground. Therefore, a rational jury could find that defendant
obstructed Officer Kuhn and Detective Grove with the threatened use of physical interference or
force when he approached the police officers during the traffic stop and reached behind his back.
A rational jury could also find that defendant obstructed the police officers by knowingly failing
to comply with their commands. See Morris, 314 Mich App at 415.

        Further, defendant knew that Officer Kuhn and Detective Grove were police officers who
were performing their police duties. The police officers drove a marked patrol vehicle when they
initiated the traffic stop, and both police officers were wearing their patrol uniforms. Officer Kuhn

                                                  -3-
and Detective Grove testified that Officer Kuhn activated the overhead police vehicle lights to
initiate the traffic stop. Finally, Officer Kuhn and Detective Grove gave defendant commands to
return to his vehicle, to get down on the ground, and to put his hands behind his back during the
traffic stop. Although defendant testified at trial that he did not see the police vehicle overhead
lights, there was evidence to support that Officer Kuhn activated the police vehicle lights to initiate
the traffic stop. It was the jury’s role to make credibility determinations and to weigh the evidence.
See Dunigan, 299 Mich App at 582. A rational jury could determine that defendant knew that
Officer Kuhn and Detective Grove were performing their police duties. See Morris, 314 Mich
App at 415.

        Finally, Officer Kuhn’s and Detective Grove’s actions were lawful. The police officers’
traffic stop was based on a reasonable suspicion that defendant was violating traffic laws.
Defendant drove on a roadway without the headlights of his vehicle illuminated. Defendant also
made a right turn to exit the parking lot and entered the left northbound lane, rather than the right
northbound. Both of these acts were violations of the Michigan Vehicle Code. See MCL 257.684;
MCL 257.686; MCL 257.647(1)(a). Defendant’s traffic violations justified Officer Kuhn and
Detective Grove’s traffic stop. See Simmons, 316 Mich App at 326.

        Therefore, there was sufficient evidence to support the jury’s verdict that defendant resisted
or obstructed a police officer performing his or her lawful duties. See Quinn, 305 Mich App at
491. This evidence supported the jury’s credibility determinations and the jury verdict. See
Nowack, 462 Mich at 400; Dunigan, 299 Mich App at 582. When viewed in the light most
favorable to the prosecution, the evidence and testimony presented at trial were sufficient to
support defendant’s conviction of resisting or obstructing a police officer. See Harris, 495 Mich
at 126; Morris, 314 Mich App at 413-415.

                                        B. JURY INSTRUCTIONS
        Defendant argues that the trial court provided erroneous instructions to the jury regarding
the elements of resisting or obstructing a police officer. We generally review de novo claims of
instructional error. People v McMullan, 284 Mich App 149, 152; 771 NW2d 810 (2009).
However, “to preserve an instructional error for review, a defendant must object to the instruction
before the jury deliberates.” People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003);
see also MCR 2.512(C). In this case, defense counsel agreed that the jury instructions were
satisfactory before the trial court instructed the jury, and defense counsel affirmed that he had no
objections to the trial court’s instructions to the jury. We conclude that defense counsel waived
this issue by affirmatively approving the jury instructions. See People v Carter, 462 Mich 206,
215-216; 612 NW2d 144 (2000). However, we will address this issue in the context of defendant’s
ineffective assistance of counsel claim.

                              C. PROSECUTORIAL MISCONDUCT

       Defendant argues that he was denied a fair and impartial trial on the basis of prosecutorial
misconduct. Defendant argues that the prosecutor committed misconduct by failing to introduce
the police vehicle video recording with “trigger” indicator data, presenting false testimony,
questioning defendant regarding a witness’s credibility, and arguing facts that were not in
evidence. We disagree.


                                                 -4-
       Defendant did not object at trial to the prosecutor’s alleged misconduct and did not argue
on appeal or demonstrate that objections during the trial could not have cured any alleged
prosecutorial misconduct. Therefore, this issue is not properly preserved for appellate review. See
People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011).

        Generally, this Court reviews de novo claims of prosecutorial misconduct to determine
whether defendant was denied a fair and impartial trial. People v Bennett, 290 Mich App 465,
475; 802 NW2d 627 (2010). However, the failure to object to prosecutorial misconduct at trial
limits our review to whether there was plain error affecting the defendant’s substantial rights. Id.
Even if there was a plain error affecting a defendant’s substantial rights, this Court “must exercise
its discretion in deciding whether to reverse,” and “[r]eversal is warranted only when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings . . . .” People
v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (quotation marks and citations omitted;
second alteration in original).

        “Issues of prosecutorial misconduct are decided case by case, and this Court must examine
the entire record and evaluate a prosecutor’s remarks in context.” People v Dobek, 274 Mich App
58, 64; 732 NW2d 546 (2007). Generally, prosecutors are afforded great latitude regarding their
arguments and conduct during a trial. People v Unger, 278 Mich App 210, 236; 749 NW2d 272
(2008). A prosecutor may argue the evidence and reasonable inferences from the evidence as it
relates to the facts and the prosecutor’s theory of the case. Id. “A prosecutor’s good-faith effort
to admit evidence does not constitute misconduct.” Dobek, 274 Mich App at 70. The prosecutor
may question a defendant as to whether the defendant disputed a witness’s testimony or whether
the defendant had a different version of the facts in order to ascertain which facts are in dispute.
People v Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003). An improper statement does
not require reversal when the prosecutor is responding to defense counsel’s argument. People v
Watson, 245 Mich App 572, 593; 629 NW2d 411 (2001).

         “It is inconsistent with due process when the prosecution allows false testimony from a
state’s witness to stand uncorrected.” People v Smith, 498 Mich 466, 475; 870 NW2d 299 (2015).
A prosecutor may not knowingly use false testimony, and a prosecutor has an affirmative duty to
correct any false testimony. Id. at 475-476. A prosecutor may not make a statement of fact that
is not supported by the evidence or mischaracterize the evidence presented during the trial.
Ackerman, 257 Mich App at 450; Watson, 245 Mich App at 588. It is improper for a prosecutor
to ask a defendant to comment on the credibility of the prosecution’s witness because the
defendant’s opinion on the witness’s credibility is not probative. People v Buckey, 424 Mich 1,
17; 378 NW2d 432 (1985).

        In this case, it was not improper for the prosecutor to question Detective Grove and Officer
Kuhn regarding the incident. Defendant did not demonstrate that Officer Kuhn’s and Detective
Grove’s testimonies that they activated the police overhead lights was false testimony. Officer
Kuhn and Detective Grove both testified that Officer Kuhn activated the police lights but that the
lights did not remain on. Additionally, defendant told the police officers during the traffic stop
that he did not realize that the police officers were “flashing for me.” This evidence supports that
the police vehicle overhead lights were on at some point before defendant stopped his vehicle.


                                                  -5-
Because there was evidence to support Officer Kuhn’s and Detective Grove’s testimonies, this
evidence was not false.

        It is unclear whether the jury was able to view the version of the police vehicle video
recording with the “trigger” indicators that showed when the vehicle lights or brakes were used.
However, defendant failed to demonstrate that the prosecutor did not act in good faith to admit the
police vehicle video recording evidence. Therefore, the prosecutor did not commit misconduct by
questioning Officer Kuhn and Detective Grove regarding the police overhead lights and by
admitting the police vehicle video recording. See Smith, 498 Mich at 475.

        Although defendant does not identify when the prosecutor asked defendant to comment on
Detective Grove’s credibility, it appears that the prosecutor questioned defendant regarding
whether he put his hands behind his back and whether Detective Grove had a reason to lie about
that fact. Examining the prosecutor’s questions in the context of cross-examination, the prosecutor
improperly asked defendant to comment on Detective Grove’s credibility and whether Detective
Grove had lied during his testimony. Admittedly, the prosecutor did not directly ask defendant
whether Detective Grove had lied during his testimony or whether defendant believed that
Detective Grove was a liar. Cf. Buckey, 424 Mich at 16-17. The prosecutor asked the question as
a hypothetical, conditional question. However, this question invited defendant to opine whether
Detective Grove lied during his testimony and to label Detective Grove as a liar. The prosecutor
asked defendant to comment on Detective Grove’s credibility, and therefore, the prosecutor’s
questioning regarding Detective Grove’s testimony was improper. See Buckey, 424 Mich at 17;
cf. Ackerman, 257 Mich App at 449.

        Notwithstanding the improper questioning, the trial court’s instructions cured the error.
The trial court instructed the jury at the beginning of the trial and at the close of trial that the
parties’ arguments and questions were not evidence. The trial court also instructed the jury that it
was required to determine the facts of the case and to determine whether all or part of a witness’s
testimony is credible. Because jurors are presumed to follow their instructions, the curative
instruction weighs against the conclusion that the prosecutor committed misconduct. See Stevens,
498 Mich at 177, 190; Ackerman, 257 Mich App at 449.

         Regarding the prosecutor’s statements during closing argument, the prosecutor did not
improperly argue the evidence of the case and the prosecutor’s theory of the case. There were
facts in evidence to support the prosecutor’s arguments during his closing and rebuttal arguments.
Officer Kuhn and Detective Grove testified that: Officer Kuhn activated the police vehicle
overhead lights to initiate a traffic stop, defendant exited his vehicle, defendant approached the
police officers, and defendant reached behind his back, which concerned the police officers that
defendant had a weapon. Defendant’s behavior prevented the police officers from completing the
traffic stop. Additionally, there was evidence and testimony presented at trial that defendant did
not comply with the police officers’ instructions. The evidence supported the conclusion that
defendant obstructed the police officers’ performance of their duties.

       Additionally, the prosecutor’s statement regarding Detective Grove’s credibility and
defense counsel’s opportunity to cross-examine or impeach Detective Grove with the information
contained in a police report was not improper. The prosecutor stated that Detective Grove’s
testimony was consistent with “what happened” but did not state that Detective Grove’s testimony

                                                -6-
was consistent with police reports, which were not introduced as evidence. The prosecutor’s
argument was based on Officer Kuhn’s testimony and the police vehicle video recording that
showed that defendant approached the police officers, failed to comply with the police officers’
instructions, and reached behind his back. Furthermore, the prosecutor made these statements
during his rebuttal argument in response to defense counsel’s closing argument regarding the
police reports. Therefore, any improper statement by the prosecutor regarding Detective Grove’s
credibility and defense counsel’s opportunity to cross-examine or impeach Detective Grove does
not warrant reversal. See Watson, 245 Mich App at 593; see also Ackerman, 257 Mich App at
450.

         Regarding the prosecutor’s statement of the law, the prosecutor did not include the third
element of the offense during his closing argument. Although the prosecutor’s statement of the
law was incorrect, the prosecutor’s argument on its face did not deny defendant a fair and impartial
trial, unlike when a prosecutor asks a nondefendant witness to comment on the credibility of other
witnesses or on the guilt or innocence of the defendant. See Buckley, 424 Mich at 17. Rather, the
instructional error denied defendant a fair and impartial trial. Defendant did not demonstrate that
the jury specifically relied on the prosecutor’s incorrect statement of the law when it found
defendant guilty of resisting or obstructing a police officer.

        We conclude that the prosecutor’s questions and arguments were not plainly erroneous.
Defendant did not demonstrate that it was reasonably likely that the prosecutor’s presentation of
the police vehicle video recording that was introduced at trial, closing argument, questioning of
defendant, or questioning of Detective Grove and Officer Kuhn denied him a fair and impartial
trial. See Bennett, 290 Mich App at 475. Additionally, defendant did not demonstrate that he was
actually innocent or that the alleged errors of prosecutorial misconduct seriously affected the
fairness of the trial. Therefore, defendant did not establish that there was a plain error on the basis
of prosecutorial misconduct that affected his substantial rights. See Carines, 460 Mich at 763-
764.

                                       D. JUDICIAL MISCONDUCT

        Defendant argues that he was denied a fair and impartial trial on the basis of judicial
misconduct. Defendant argues that the trial court committed misconduct by conducting and
predicting the result of an in camera review of the JCPD investigative report regarding the incident,
questioning Detective Grove and Officer Kuhn during the trial, and stating an intention to enter
the jury room after deliberations had begun. We disagree.

        Defendant did not raise a claim of judicial bias or misconduct before the trial court.
Therefore, this issue is not preserved for appellate review. See People v Jackson, 292 Mich App
583, 597; 808 NW2d 541 (2011). This Court reviews unpreserved issues for plain error affecting
the defendant’s substantial rights. Carines, 460 Mich 763-764. Even if there was a plain error
affecting a defendant’s substantial rights, this Court “must exercise its discretion in deciding
whether to reverse,” and “[r]eversal is warranted only when the plain, forfeited error resulted in
the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings . . . .” Id. at 763 (quotation marks and citations
omitted; second alteration in original).


                                                  -7-
        A defendant has a right to a neutral and detached judge. People v McDonald, 303 Mich
App 424, 437; 844 NW2d 168 (2013). “A trial judge’s conduct deprives a party of a fair trial if a
trial judge’s conduct pierces the veil of judicial impartiality.” Stevens, 498 Mich at 170. A
defendant must overcome “a heavy presumption of judicial impartiality.” People v Wells, 238
Mich App 383, 391; 605 NW2d 374 (1999). “A judge’s conduct pierces this veil and violates the
constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is
reasonably likely that the judge’s conduct improperly influenced the jury by creating the
appearance of advocacy or partiality against a party.” Stevens, 498 Mich at 171. In considering
the totality of the circumstances, this Court reviews various factors, including
       [T]he nature of the judicial conduct, the tone and demeanor of the trial judge, the
       scope of the judicial conduct in the context of the length and complexity of the trial
       and issues therein, the extent to which the judge’s conduct was directed at one side
       more than the other, and the presence of any curative instructions. [Id. at 172.]

        A prosecutor must provide, upon request, any exculpatory information or evidence known
to the prosecuting attorney and any police report concerning the case. See MCR 6.201(B)(1) and
(2). A trial court may conduct an in camera review of records that may be privileged to determine
whether that information is material and necessary to the defense. MCR 6.201(C)(2) provides:

               If a defendant demonstrates a good-faith belief, grounded in articulable fact,
       that there is a reasonable probability that records protected by privilege are likely
       to contain material information necessary to the defense, the trial court shall
       conduct an in camera inspection of the records.

If the in camera review reveals evidence that is necessary to the defense, the trial court shall order
that such necessary evidence be made available to defense counsel. MCR 6.201(C)(2)(b).

         Under MRE 614(b), “[t]he court may interrogate witnesses, whether called by itself or by
a party.” The primary purpose of judicial questioning is to clarify. Stevens, 498 Mich at 173.
Therefore, a trial judge may question a witness “to produce fuller and more exact testimony or to
elicit additional relevant information.” Id.

        A trial court instructs the jury on the law and controls the proceedings during a trial. See
MCR 2.512(B)(2); MCR 2.513(A) and (B); see also People v Traver, 502 Mich 23, 31-33; 917
NW2d 260 (2018). Specifically, the trial court must provide the jury with a written copy of the
final jury instructions for the jury’s deliberation. MCR 2.513(N)(3).

        In this case, the trial court’s conduct was not improper. Defendant filed a motion for
discovery to receive the JCPD internal investigation report that was produced as a result of his
complaint to the JCPD that the police officers used excessive force during the traffic stop and
arrest. During the hearing regarding defendant’s motion for discovery, defendant argued that the
JCPD internal investigative report could contain exculpatory information regarding problems and
improper conduct that occurred while Officer Kuhn was training on the night of his arrest. The
trial court stated,
               All right. Well, the court is gonna [sic] grant the defense relief at least to
       the extent of an in camera review. So, if they can at least give me a written brief
                                                 -8-
       summary of what occurred, then it probably, as you are—that I would probably
       agree that there is nothing that needs to be turned over. But I will require it’s [sic]
       production in the next 21 days so the court can review it in camera. All right?

         The trial court’s remarks before receiving the internal investigative report did not “predict”
that it would deny defendant’s discovery request. Read in context of the parties’ arguments, the
trial court used a conditional statement to suggest that it would likely deny defendant’s discovery
request if the investigative report resulted in a finding of no wrongdoing by the police officers. A
finding of no wrongdoing by the police officers would render the internal investigative report not
necessary to the defense, which would support the denial of defendant’s motion for discovery of
the report. Additionally, although it is ambiguous whether the trial court reviewed the entire JCPD
internal investigative report or a memorandum of the report, defendant consistently requested that
the trial court review the entire investigative report. The trial court indicated that it reviewed the
report with the trial court’s staff and determined that defendant was not entitled to review the
report. It appears that the trial court reviewed the investigative report and confirmed that it resulted
in a finding of no wrongdoing, which supported that the full investigative report did not contain
exculpatory information and provided a legal basis to deny defendant’s motion for discovery. See
generally MCR 6.201(C)(2); see, e.g., Jackson, 292 Mich App at 599.1 Furthermore, the trial
court’s remark did not improperly influence the jury because the jury did not hear the remark. See
People v Conley, 270 Mich App 301, 310; 715 NW2d 377 (2006). Therefore, the trial court’s
remark regarding the in camera review and the denial of defendant’s motion for discovery was not
plainly erroneous.

        The trial court’s questioning of Officer Kuhn and Detective Grove clarified JCPD
procedures, training, and expectations for civilians. Each of the trial court’s questions were
relevant to the questions that the parties asked the police officers regarding their training and
experience as police officers. These questions produced more comprehensive testimony from
Officer Kuhn and Detective Grove regarding their responses to defendant’s behavior on the basis
of their JCPD training and experience. Although the police officers’ training did not appear to be
particularly complex, the witnesses discussed their specialized training and situation-specific
response procedures. Therefore, the trial judge’s questions clarified Officer Kuhn’s and Detective
Grove’s testimonies and aided the jury in understanding additional relevant information regarding
police training and procedures. See Stevens, 498 Mich at 173, 183.

         Moreover, the trial court instructed the jury at the beginning of the trial and at the close of
trial that the trial court’s comments, rulings, questions, and instructions were not evidence and that
the jury should not pay any attention to the trial court’s opinion of the case if the jury believes that
the trial court has such an opinion. Because jurors are presumed to follow their instructions, this
curative instruction weighs against the conclusion that the trial court’s conduct was improper. See




1
  Moreover, defense counsel questioned Detective Grove regarding the internal investigation, and
defendant had the opportunity to discover the information and conclusions contained in the internal
investigation report during the trial.

                                                  -9-
Stevens, 498 Mich at 177, 190. Therefore, the trial court’s questioning of Officer Kuhn and
Detective Grove was not plainly erroneous. See id. at 171; Carines, 460 Mich at 763-764.

        Regarding the trial court’s communication with the jury, the trial court fulfilled its
responsibilities to instruct the jury on the law of the case and to provide the jury with a written
copy of the final jury instructions for the jury’s deliberation. See MCR 2.513(N)(3). Arguably, it
is ambiguous whether the trial court or the court clerk delivered the written jury instructions to the
jury. However, defendant presented no evidence that either the trial court or the court clerk
improperly influenced or communicated with the jurors beyond delivering a written copy of the
jury instructions. Therefore, the trial court’s apparent communication with the jury regarding the
written jury instructions was not plainly erroneous, and defendant failed to demonstrate that the
trial court in fact communicated with the jury. See Stevens, 498 Mich at 171; Carines, 460 Mich
at 763-764.

        We conclude that defendant did not overcome the presumption of judicial impartiality.
Defendant did not establish that it was reasonably likely that the trial court’s remark regarding
defendant’s motion for discovery, questioning of Officer Kuhn and Detective Grove, and alleged
communication with the jury improperly influenced the jury by creating the appearance of
advocacy or partiality against a party. See Stevens, 498 Mich at 171. Therefore, defendant did not
establish that there was a plain error on the basis of judicial misconduct that affected his substantial
rights. See Carines, 460 Mich at 763-764.

                         E. INEFFECTIVE ASSISANCE OF COUNSEL

        Defendant argues that he was denied the effective assistance of counsel. He contends that
counsel was ineffective for failing to insist on the admission of the version of the police vehicle
video recording that included the “trigger” indicator data, failing to question and impeach
Detective Grove and Officer Kuhn with the “trigger” indicator data, failing to correct the jury
instruction error, failing to request criminal responsibility and competency evaluations, failing to
object to prosecutorial misconduct, and failing to object to judicial misconduct. We agree
regarding the jury instruction error, but we disagree regarding defendant’s additional ineffective
assistance of counsel claims.

        Generally, “[t]he question whether defense counsel performed ineffectively is a mixed
question of law and fact; this Court reviews for clear error the trial court’s findings of fact and
reviews de novo questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826
NW2d 136 (2012). Because no evidentiary hearing has been held, our review is limited to mistakes
apparent on the lower court record. See People v Payne, 285 Mich App 181, 188; 774 NW2d 714
(2009).

       “Effective assistance of counsel is presumed, and the defendant bears the heavy burden of
proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). In
order to overcome this presumption, a defendant must show that: (1) defense counsel’s
performance did not meet an objective standard of reasonableness under the circumstances and
according to prevailing professional norms and (2) there was a reasonable probability that, but for
defense counsel’s errors, the results of the proceeding would be different. Strickland v
Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446

                                                 -10-
Mich 298, 312-313; 521 NW2d 797 (1994). Additionally, a defendant must show that the result
that occurred was fundamentally unfair or unreliable. People v Lockett, 295 Mich App 165, 187;
814 NW2d 295 (2012).

        “Defense counsel must be afforded ‘broad discretion’ in the handling of cases . . . .”
Pickens, 446 Mich at 325. This Court gives “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). Defense counsel is not ineffective for failing to advance a meritless
argument or raising a futile objection. Ericksen, 288 Mich App at 201. Declining to raise
objections can often be consistent with sound trial strategy. Unger, 278 Mich App at 242, 253.
Defense counsel’s decisions regarding which arguments to make and what evidence he or she
presents on behalf of the defense is presumed to be a matter of trial strategy. People v Dixon, 263
Mich App 393, 398; 688 NW2d 308 (2004). How defense counsel questions a witness is also
presumed to be a matter of trial strategy. People v Horn, 279 Mich App 31, 39; 755 NW2d 212
(2008). Moreover, “[j]urors are presumed to follow their instructions, and it is presumed that
instructions cure most errors.” Stevens, 498 Mich at 177, 190.

        The defense of insanity is an affirmative defense that a defendant “was legally insane when
he or she committed the acts constituting the offense.” MCL 768.21a(1). A defendant must
demonstrate by a preponderance of the evidence that, as the result of mental illness or having an
intellectual disability, the defendant “lack[ed] substantial capacity either to appreciate the nature
and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the
requirements of the law.” MCL 768.21a(1), (3); see also People v Lacalamita, 286 Mich App 467,
470; 780 NW2d 311 (2009). Mental illness, in and of itself, does not constitute the defense of
legal insanity. MCL 768.21a(1).

        A criminal defendant is presumed competent to stand trial. MCL 330.2020(1). A
defendant “shall be determined incompetent to stand trial only if he is incapable because of his
mental condition of understanding the nature and object of the proceedings against him or of
assisting in his defense in a rational manner.” MCL 330.2020(1).

        Regarding the issue of jury instructions, “[a] criminal defendant has a constitutional right
to have a jury determine his or her guilt from its consideration of every essential element of the
charged offense.” People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011). Instructional
errors that omit an element of an offense or misinform the jury of the elements of an offense do
not require setting aside a defendant’s conviction if the instructions fairly present the issues to be
tried and adequately protect the defendant’s rights. Id. at 501-502.

        The elements of the resisting or obstructing a police officer offense under MCL 750.81d(1)
are: (1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered
a police officer, (2) the defendant knew or had reason to know that the person who the defendant
harmed, obstructed, or endangered was a police officer performing his or her duties, and (3) the
police officer was acting lawfully. Quinn, 305 Mich App at 491.

       The trial court failed to instruct the jury that it must find that Detective Grove and Officer
Kuhn were acting lawfully in the performance of their duties as police officers in order to find
defendant guilty of the offense. Although the trial court instructed the jury that “obstruct” can

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include a knowing failure to comply with a lawful command, the trial court erred by failing to
instruct the jury to determine whether Detective Grove’s and Officer Kuhn’s actions were lawful
or how the jury would make that determination of fact. Therefore, these instructions were
erroneous and defective. See Kowalski, 489 Mich at 501; Quinn, 305 Mich App at 491.

        Although an attorney’s decision to refrain from objecting to an error can be a matter of trial
strategy, Unger, 278 Mich App at 242, 253, we cannot conclude that defense counsel’s decision
not to object to this constitutional error was a reasonable trial strategy. The instructional error did
not fairly present the issues to be tried because the jury was not properly informed that a finding
that Detective Grove’s and Officer Kuhn’s actions were lawful was required in order to find
defendant guilty. Because the jury was not instructed on the lawfulness element, it cannot be
determined whether the jury considered that element of the charged offense. See Kowalski, 489
Mich at 501-502.

        Moreover, we conclude that defense counsel’s deficient performance prejudiced defendant
because it is unclear that the jury would have determined on this record that the prosecution had
established the lawfulness element beyond a reasonable doubt. Because obstructing a police
officer includes failing to comply with a lawful command, see MCL 750.81d(7)(a), it is possible
that the jury found that Detective Grove and Officer Kuhn gave defendant a lawful command and
were acting lawfully when they initiated the traffic stop. However, it is not clear based on the
record whether the jury made this finding or understood what constitutes a lawful command or
lawful actions by a police officer. Although Officer Kuhn and Detective Grove testified that they
activated the police vehicle overhead lights, there is a reasonable probability that a properly
instructed jury would not have found beyond a reasonable doubt that the prosecution had
established that Detective Grove’s and Officer Kuhn’s actions, including the failure to completely
activate the police vehicle overhead lights to initiate the traffic stop, were lawful. Because it is
reasonably probable that the jury would have reached a different result but for counsel’s failure to
object to the erroneous instructions, defendant has established that he was prejudiced by defense
counsel’s defective performance. See Strickland, 466 US at 687-688; Pickens, 446 Mich at 312-
313. Therefore, we conclude that defendant was denied the effective assistance of counsel.

        However, it is not apparent from the record that defense counsel erred regarding
defendant’s additional ineffective assistance of counsel claims. Regarding defense counsel’s
failure to insist on the admission of the version of the police vehicle video recording with the
“trigger” indicator data and the failure to question the police officers regarding the “trigger”
indicator data, defendant did not show that defense counsel’s performance fell below an objective
standard of reasonableness. Defendant argues that “it can be assumed that the jury did not” view
the version of the video recording that showed the “trigger” indicators because neither defense
counsel nor the prosecutor referred to the “trigger” indicators when discussing the video recording
and questioning the witnesses during the trial. However, there was no evidence that the video
recording submitted to this Court was not the version played for the jury. Additionally, the record
on appeal was the original record, which included the exhibits that were introduced at trial. See
MCR 7.210(A)(1). Even if the prosecutor did not introduce the version of the video recording
with the “trigger” indicators, defendant did not demonstrate that the prosecutor’s admission of the
video recording was not a good-faith effort to admit the evidence. See Dobek, 274 Mich App at
70. Defendant did not demonstrate that defense counsel’s trial strategy of challenging the video
recording through his arguments and cross-examination of Officer Kuhn and Detective Grove fell

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below an objective standard of reasonableness. See Horn, 279 Mich App at 39; Dixon, 263 Mich
App at 398. Furthermore, defendant failed to overcome the presumption that defense counsel’s
performance constituted a trial strategy and failed to show that a different result was probable. See
Horn, 279 Mich App at 39.

        It is not apparent that defense counsel erred by failing to request a competency evaluation
and a criminal responsibility evaluation. During his testimony, defendant appeared to question the
police officers’ conduct, to become upset, to direct his responses to the police officers’ instead of
the attorney who was questioning him, to answer beyond the scope of the question asked of him,
and to speak at the same time as the attorneys. The trial court instructed defendant to respond to
the attorneys’ questions and to direct his responses to the attorneys. Defendant presented no
evidence, such as medical records or an affidavit, that he suffered from a mental condition at the
time of trial that affected his competence to stand trial. Additionally, defendant presented no
evidence that he was incapable of understanding the nature of the trial or of assisting in his defense.
Although defendant may not have been effective in assisting in his defense by his testimony, there
was no indication that defendant was incapable of assisting in his defense or of understanding the
proceedings against him. Because a defendant is presumed competent and there were no
indications to cause defense counsel to question whether defendant was competent to stand trial,
defense counsel was not ineffective for failing to request a competency evaluation or failing to
request an adjournment of the trial on the first and only day of the presentation of the proofs. See
MCL 330.2020(1); Ericksen, 288 Mich App at 201. Further, defendant did not demonstrate that
there was a reasonable probability that the trial court would have determined him to be incompetent
or that a competency evaluation would have resulted in a different outcome or jury verdict. See
Pickens, 446 Mich at 312-313.

        Regarding a criminal responsibility evaluation, defendant did not present any evidence to
show that he had any medical or psychological condition at the time of the traffic stop and his
arrest. Additionally, defendant presented no evidence that he lacked substantial capacity to
appreciate the wrongfulness of his actions or to conform his conduct to the requirements of the
law. To the extent that defendant was confused regarding the traffic stop and the police officers’
instructions, any inability to conform defendant’s conduct to the requirements of the law was the
result of his confusion, rather than a mental illness or intellectual disability. See MCL 768.21a(1),
(3). Therefore, defendant did not overcome the presumption that defense counsel’s decision not
to present the insanity defense was a trial strategy. See Heft, 299 Mich App at 83; Ericksen, 288
Mich App at 201. Further, defendant failed to overcome the presumption that defense counsel’s
performance constituted a trial strategy and failed to show that it was reasonably probable that a
criminal responsibility evaluation or a defense of insanity would have resulted in a different
outcome or jury verdict of not guilty by reason of insanity. See Pickens, 446 Mich at 312-313.

        It is not apparent that defense counsel erred by failing to raise an objection of prosecutorial
misconduct. As previously discussed, defendant did not demonstrate that the prosecutor
committed misconduct by his statements during closing argument, presenting the police vehicle
video recording that was introduced at trial, questioning of defendant other than his question
whether Detective Grove had a reason to lie, or questioning of Detective Grove and Officer Kuhn.
Notwithstanding any improper questioning by the prosecutor, the jury instructions cured any error,
and the jury as the finder of fact determines whether a witness is credible. See Stevens, 498 Mich
at 177, 190; Dobek, 274 Mich App at 71. Defendant did not demonstrate that he was actually

                                                 -13-
innocent or that the alleged errors of prosecutorial misconduct seriously affected the fairness of
the trial. Defendant did not establish that there was plain error on the basis of prosecutorial
misconduct that affected his substantial rights. Therefore, defendant failed to overcome the
presumption that defense counsel’s performance constituted a trial strategy and failed to show that
a different result was reasonably probable. See Pickens, 446 Mich at 312-313.

        Finally, it is not apparent that defense counsel erred by failing to raise an objection of
judicial misconduct. As previously discussed, defendant did not demonstrate that the trial court
committed misconduct by conducting and predicting the result of the in camera review of the
JCPD investigative report, questioning Detective Grove and Officer Kuhn, and stating an intention
to enter the jury room after deliberations had begun. The trial court’s remarks regarding the in
camera review and the communication with the jury were not made in the jury’s presence, and
therefore, did not improperly influence the jury. See Stevens, 498 Mich at 171. The jury
instructions cured any improper questioning by the trial court, and the jury as the finder of fact
determines whether a witness is credible. See Stevens, 498 Mich at 177, 190; Dobek, 274 Mich
App at 71. Defendant did not demonstrate that he was actually innocent or that the alleged errors
of judicial misconduct seriously affected the fairness of the trial. Defendant did not establish that
there was plain error on the basis of judicial misconduct that affected his substantial rights.
Therefore, defendant failed to overcome the presumption that defense counsel’s performance
constituted a trial strategy and failed to show that a different result was reasonably probable. See
Pickens, 446 Mich at 312-313.

        We conclude that defense counsel’s decisions to refrain from insisting on the admission of
the version of the police vehicle video recording that included the “trigger” indicator data,
questioning the police officers regarding the “trigger” indicator data, requesting criminal
responsibility and competency evaluations, objecting to prosecutorial misconduct, and objecting
to judicial misconduct were trial strategies. See Unger, 278 Mich App at 242-243, 253. However,
defense counsel erred by failing to object to or correct the jury instruction error. This constitutional
error prejudiced defendant and requires reversal. See Pickens, 446 Mich at 312-313; Quinn, 305
Mich App at 494-495.

       Reversed and remanded for a new trial. We do not retain jurisdiction.



                                                               /s/ Mark J. Cavanagh
                                                               /s/ Jane M. Beckering




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