                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 10, 2015
               Plaintiff-Appellee,

v                                                                    No. 321352
                                                                     Ingham Circuit Court
VICKIE ROSE HAMLIN,                                                  LC No. 13-000924-FH

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                    No. 322207
                                                                     Ingham Circuit Court
BARBARA ELLEN CARTER,                                                LC No. 13-000917-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

        In these consolidated appeals, defendants appeal by right their convictions following a
jury trial of resisting and obstructing a police officer, MCL 750.81d(1) and trespass, MCL
750.552. In Docket No. 321352, defendant Hamlin was sentenced to 13 months of probation, 36
days of that to be served in jail with credit for 36 days, fine, costs and fees, and restitution. In
Docket No. 322207, defendant Carter was sentenced to 13 months of probation, 36 days of that
to be served in jail with credit for 36 days, fine, costs and fees, and restitution. We affirm.

        These cases arise from an incident where defendants entered a construction site to protest
a pipeline project by Enbridge Energy. Enbridge held an easement on the property. Defendants
affixed themselves to the construction equipment. Defendants were told to disengage themselves
from the equipment and leave, but they refused. They were eventually cut loose and arrested.

       Defendants both contend that insufficient evidence supports their convictions. This Court
reviews a challenge to the sufficiency of the evidence de novo. People v Lanzo Constr Co, 272

                                                -1-
Mich App 470, 473; 726 NW2d 746 (2006). “The evidence is viewed in a light most favorable
to the prosecution to determine whether the trial court could have found that the essential
elements of the crime were proven beyond a reasonable doubt.” Id. at 474. All conflicts in the
evidence must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452;
569 NW2d 641 (1997).

       Section 552(1) of the criminal trespass statute provides as follows:

               (1) Except as otherwise provided in subsection (2), a person shall not do
       any of the following:

              (a) Enter the lands or premises of another without lawful authority after
       having been forbidden to do so by the owner or occupant or the agent of the
       owner or occupant.

               (b) Remain without lawful authority on the land or premises of another
       after being notified to depart by the owner or occupant or the agent of the owner
       or occupant.

               (c) Enter or remain without lawful authority on fenced or posted farm
       property of another person without the consent of the owner or his or her lessee or
       agent. A request to leave the premises is not a necessary element for a violation
       of this subdivision. This subdivision does not apply to a person who is in the
       process of attempting, by the most direct route, to contact the owner or his or her
       lessee or agent to request consent.

“Merely entering the private property of another is not an offense unless one has been forbidden
to do so or refuses to depart after having been told to do so by a proper person.” People v
Shankle, 227 Mich App 690, 694; 577 NW2d 471 (1998). The court instructed the jury
consistent with MCL 750.552(1).

        There is no dispute that defendants Hamlin and Carter did not have authority to enter on
the property. What is in dispute is whether Enbridge had the authority to forbid defendants’
entry or to instruct them to leave once there. The answer to this question turns on whether
Enbridge was an “occupant” of the property. An “occupant” is defined as “[o]ne who has
possessory rights in, or control over, certain property or premises.” Black’s Law Dictionary (9th
ed). Although the right-of-way did not grant Enbridge possessory rights in the property,1 it did
give it “control over” the land. The easement indicated that Enbridge had the authority




1
 “An easement is a right to use the land burdened by the easement rather than a right to occupy
and possess [the land] as does an estate owner.” Schumacher v Dep’t of Natural Resources, 275
Mich App 121, 130; 737 NW2d 782 (2007) (internal citations, quotation marks, and emphasis
omitted).


                                               -2-
       to construct, operate, maintain (including cathodic protection systems), clear,
       inspect (including aerial patrol), remove, abandon in place, reactivate, repair,
       replace, and reconstruct one or more pipelines, together with any valves, fittings,
       communication systems, protective apparatus and all other equipment and
       appurtenances . . . and to conduct such other activities as may be convenient in
       connection therewith as determined by Grantee, for the transportation of crude oil
       and petroleum, and any product, by-product and derivatives thereof, whether
       liquid or gaseous, or any material or substance that can be conveyed through a
       pipeline; on over, under, and across a strip of land[.] [Emphasis omitted.]

This language gives Enbridge broad control over the property. Enbridge is given authority to
monitor the pipeline and to move about the property to make any changes needed to the pipeline,
including reconstructing it if deemed necessary. Indeed, Enbridge is given the authority to
“conduct such other activities as may be convenient” to the specific activities mentioned,
including the authority to determine for itself what those “other activities” are. In accord with
this broad grant of authority, Enbridge forbade defendants’ entry on the property by posting
signs on the site such as “Keep Out Construction Zone” and “Approved Access.”

        Defendant Hamlin argues that Enbridge’s easement is void because the Michigan Crude
Oil and Petroleum Act (COPA), MCL 483.1 et seq., expressly abolished any and all inherent or
implied rights for a person or corporation to do anything having to do with petroleum pipelines.
However, as plaintiff argues, whether the easement was valid under COPA is beyond the scope
of this prosecution. In any event, resolution of the sufficiency challenges rests on whether
Enbridge was in control of the property, which the evidence established beyond a reasonable
doubt.

        The elements required to establish resisting and obstructing a police officer 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 duties. MCL 750.81d(1); People v Corr, 287 Mich App 499, 503; 788 NW2d
860 (2010). MCL 750.81d(7)(a) defines the term “obstruct” as including “the use or threatened
use of physical interference or force or a knowing failure to comply with a lawful command.”

       Defendants argue that the evidence was insufficient to prove all elements of the crime of
obstruction because the prosecution failed to show that they disobeyed a lawful command.
Defendant Carter’s argument focusses on an exchange she had with Sergeant Brown. Also
present was codefendant Lisa Leggio:

               Brown: I know you saw me earlier, but I’ve not had the chance to come
       and speak with you. I’ve not met you ladies yet, Sergeant Brown, Ingham County
       Sheriff’s Office. You guys have already been told that you are under arrest for
       trespassing, correct?

               Leggio: Uh . . . no . . . I’ve never been told that I am under arrest for
       trespassing.


                                               -3-
                 Brown: Well, I am going to tell you right now that you are under arrest
         for trespassing; however, if you guys, um, will willingly detach yourself from the
         piece, no additional charges will occur.

                Leggio: Okay.

                Brown: You will just get the mere trespassing, if not, additional charges
         such as resisting/obstructing the police officer . . . will be charged.

                Leggio: Understood.

                 Brown: I am going to give you guys one opportunity to tell me yes or no,
         right but I just need to know what you intend to do you whether you need to be
         cut by a special team that will come out or if you guys are going to release and let
         go.

                Leggio: Cut it up.

                Carter: nodding

                Brown: Okay, cut it.[2]

       Defendant Carter argues that what Brown said were queries, not commands. This
argument is unpersuasive. Although Brown did say that she was going to give defendants “one
opportunity to tell me yes or no,” it is clear Brown was directing them to detach themselves from
the machinery. Moreover, Brown’s commands came after Ingham County Sheriff’s Office
Detective Ryan Cramer told the protestors that they were trespassing and asked them to remove



2
    Brown similarly addressed defendant Hamlin and William Lawrence:
                 Brown: Sergeant Melissa Brown, Ingham County Sheriff’s Office,
         [We’re] going to give you one more opportunity to let go, or you’re going to be
         cut out, the cut team is here, they’re ready to go, if you refuse to do that there’s
         going to be the additional charge of resisting and obstructing, are you
         understanding? You two, can I have your last decision? Are you guys willing to
         let go and peacefully let go, or do you need to be cut out?

                Hamlin: We’re staying.

                Brown: You’re staying?

                Lawrence: I’m staying.

                Brown: You’re staying? Ok.




                                                 -4-
themselves from the equipment and leave the property, and after Ingham County Sheriff’s Office
Deputy Greg Harris had twice warned those on the site that they would be arrested for
trespassing if they remained.

        Defendant Hamlin asserts that the issue of whether Enbridge was a person the trespass
statute protects should have been submitted to the jury because it goes to the issue of lawfulness.
“[T]he prosecution must establish that the officers’ actions were lawful.” People v Moreno, 491
Mich 38, 52; 814 NW2d 624 (2012); see also People v Quinn, 305 Mich App 484, 494; 853
NW2d 383 (2014). However, there is nothing in the record to indicate that the command given
by Brown was unlawful. Defendant Hamlin’s property rights were not being invaded, as she had
none. And whether Enbridge had a possessory interest in the property is not relevant, because
there is no indication that Brown did not believe that defendants were trespassing on the
property. Under the circumstances, Brown had reasonable suspicion to arrest defendants for
trespassing, People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996), and thus, by
extension, for refusing to abide by the command.

       Defendant Cater also argues that the trial judge’s actions pierced the veil of judicial
impartiality. “The Sixth Amendment of the United States Constitution and article 1, § 20 of the
Michigan Constitution guarantee a defendant the right to a fair and impartial trial,” People v
Conley, 270 Mich App 301, 307; 715 NW2d 377 (2006), which includes a neutral and detached
magistrate, People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996). A trial court is
presumed to be fair and impartial. People v Wade, 283 Mich App 462, 470; 771 NW2d 447
(2009). However, if it is shown that

       the trial court’s conduct pierces the veil of judicial impartiality, a defendant’s
       conviction must be reversed. The appropriate test to determine whether the trial
       court’s comments or conduct pierced the veil of judicial impartiality is whether
       the trial court’s conduct or comments were of such a nature as to unduly influence
       the jury and thereby deprive the appellant of his right to a fair and impartial trial.
       [Conley, 270 Mich App at 307-308 (internal quotation marks and citation
       omitted).]

        A trial court has wide discretion and power concerning the conduct of a trial, but this
power is not unlimited. Conley, 270 Mich App at 307-308. For example, a “trial court’s
comments must be fair and impartial, and the court should not make known to the jury its own
views regarding disputed factual issues, the credibility of witnesses, or the ultimate question to
be submitted to the jury.” People v Anstey, 476 Mich 436, 453-454; 719 NW2d 579 (2006)
(citations omitted). Opinions formed by a judge on the basis of facts introduced during the
proceedings will not amount to a basis for disqualification, however, unless they demonstrate a
“‘deep-seated favoritism that would make fair judgment impossible.’” Cain v Dep’t of
Corrections, 451 Mich 470, 496; 548 NW2d 210 (1996), quoting Liteky v United States, 510 US
540, 555; 114 S Ct 1147; 127 L Ed 2d 474 (1994). Similarly, judicial remarks during the course
of proceedings that are critical, disapproving, or even hostile to counsel or the parties will not
ordinarily support a finding of judicial partiality. FMB-First Michigan Bank v Bailey, 232 Mich
App 711, 728-729; 591 NW2d 676 (1998).



                                                -5-
        Defendant Carter’s argument is focused on the court’s questioning of her with respect to
her testimony regarding whether Brown had commanded her to do something. The challenged
questioning is the following:

               Court: Ma’am, [Brown] asked you politely to stop this behavior and
       leave, was that what you said?

               Defendant: I’m sorry?

               Court: Didn’t you say she asked you to leave?

               Defendant: She asked me if I would detach myself.

               Court: Did you do that?

               Defendant: No, I did not.

               Court: What is the difference between asking you and commanding you?
       Does someone have to say the word, I command, in order for you to understand
       the police officer is directing you to do something?

               Defendant: Well, I mean—

               Court: That’s what you’ve said here.

               Defendant: I was just saying it was a question.

               Court: It was a question? Did you answer the question?

               Defendant: I did answer the question.

               Court: What did you say?

               Defendant: I said that I wouldn’t detach.

                                             * * *

               Court: You think she needed to command you further to leave? What did
       she need to do beyond asking you politely to leave? I’m just asking because you
       sit here and told this jury you weren’t commanded anything, and I thought maybe
       you had some distinction I am not aware of.

               Defendant: Well, my only point was that it was a question, and I
       responded to her that I, that morally I could not detach myself because I was there
       for a purpose. I was . . . there because I believed in what I was doing.

       A trial court’s questioning of a witness must be limited in scope, material to the issues in
the case, and posed in a neutral manner. People v Davis, 216 Mich App 47, 50; 549 NW2d 1
(1996). “As long as the questions would be appropriate if asked by either party and, further, do
                                                -6-
not give the appearance of partiality, . . . a trial court is free to ask questions of witnesses that
assist in the search for truth.” Id. at 52.

       Plaintiff could have asked these questions. And initially they seem to be focused on
understanding what distinction defendant Carter was drawing. However, as the trial court’s
questioning advances, the court seems to be challenging defendant Carter’s perception.
However, the court’s questions did not evidence a deep-seated favoritism or antagonism that
would make judgment impossible.

       In any event, any prejudice was cured by the following jury instruction:

               Questions put to witnesses are not evidence. My questions to witnesses
       are also not evidence. You should consider these questions only as they give
       meaning to the answers you receive. The answers of the witnesses supply the
       evidence, even on my questions.

               Now, my comments, rulings, questions, and instructions are not evidence
       and I have a duty to see that this trial is conducted under the law and to tell you
       the law that applies to this matter, but when I make a comment or give an
       instruction I’m not trying to influence your vote or express a personal opinion
       about the case. If you believe that I have an opinion about how you should decide
       this matter, pay no attention to that. You’re the judges of the facts and you should
       decide the case from the evidence that you receive.

 “It is well established that jurors are presumed to follow their instructions.” People v Graves,
458 Mich 476, 486; 581 NW2d 229 (1998).

        Defendant Carter also asserts that MCL 750.81d(1) is unconstitutionally vague and
overbroad as applied in this case. When considering the constitutionality of a statute, the Court
begins with the presumption that statutes are constitutional and construes statutes consistent with
this presumption unless their unconstitutionality is readily apparent. People v Rogers, 249 Mich
App 77, 94; 641 NW2d 595 (2001). The party challenging a statute’s constitutionality bears the
burden of proving its invalidity. People v Sadows, 283 Mich App 65, 67; 768 NW2d 93
(2009).To ascertain whether a statute is unconstitutionally vague or overbroad, the Court
considers the entire text of the statute and any related judicial constructions. Rogers, 249 Mich
App at 94.

         A statute may be challenged as unconstitutionally vague when (1) it is overbroad and
impinges on First Amendment freedoms, (2) it does not provide fair notice of the conduct
proscribed, or (3) it is so indefinite that it confers unstructured and unlimited discretion on the
trier of fact to determine whether the law has been violated. People v Noble, 238 Mich App 647,
651; 608 NW2d 123 (1999). A statute provides fair notice when it provides a person of ordinary
intelligence a reasonable opportunity to know what is prohibited. Id. at 652. “A statute is
sufficiently definite if its meaning can fairly be ascertained by reference to judicial
interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of
words.” Id. But “[a] term that requires persons of ordinary intelligence to speculate about its


                                                -7-
meaning and differ on its application may not be used.” People v Hrlic, 277 Mich App 260, 263;
744 NW2d 221 (2007).

       MCL 750.81d provides in part as follows:

               (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 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.

        Defendant Carter argues that because the statute does not define “lawful command,” it
does not provide notice of what conduct is proscribed and provides unfettered discretion to the
fact-finder. This argument is without merit. A reasonable person of ordinary intelligence would
know what is prohibited. Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L
Ed 2d 222 (1972). That a person might believe a command given is unlawful only to find out
that it was does not render the statute vague. The statute cannot account for each and every
situation where a command given is lawful, or is not, or even whether the action constitutes a
command (as was argued here). “Condemned to the use of words, we can never expect
mathematical certainty from our language.” Id. at 110. Further, “[c]harging the fact-finder with
the distinct assignment of determining actual knowledge does not confer unstructured and
unlimited discretion on the trier of fact to determine whether an offense has been committed.”
People v Nichols, 262 Mich App 408, 413-414; 686 NW2d 502 (2004).

        Defendant further argues that the statute is overbroad because it criminalizes protected
speech, thereby impinging on the First Amendment freedoms. In broad terms, “the First
Amendment means that government has no power to restrict expression because of its message,
its ideas, its subject matter, or its content.” Police Dep’t of the City of Chicago v Mosley, 408
US 92, 95; 92 S Ct 2286; 33 L Ed 2d 212 (1972). A law may be found to be unconstitutionally
overbroad only where it “‘reaches a substantial amount of constitutionally protected conduct.’”
People v Rapp, 492 Mich 67, 73; 821 NW2d 452 (2012), quoting Village of Hoffman Estates v
The Flipside, Hoffman Estates, Inc, 455 US 489, 494; 102 S Ct 1186; 71 L Ed 2d 362 (1982).
“[C]riminal statutes must be scrutinized with particular care, and those that prohibit a substantial
amount of constitutionally protected conduct may be facially overbroad even if they have a
legitimate application.” Rapp, 492 Mich at 73 (citations omitted).

        The First Amendment does not extend protection to those refusing to comply with a
lawful command. If a defendant is given a command to stop engaging in speech that is
constitutionally protected under the circumstances, the command is by definition unlawful.
Further, the statute is not constitutionally overbroad as applied here because defendants’ conduct

                                                -8-
clearly fell within the bounds of behavior the statute was designed to prohibit. Defendants were
on notice that they were trespassing and they knew Sergeant Brown was performing her duties.
They engaged in an act of civil disobedience in order to make a political point. They had no
First Amendment right to engage in criminal trespass. See Cholmakjian v Bd of Trustees of Mich
State Univ, 315 F Supp 1335, 1345 (WD Mich, 1970) (finding that the complainants were “being
prosecuted in good faith for their violation of a valid trespass statute” [internal quotation marks
and citation omitted]). Accordingly, defendants have failed to demonstrate that MCL 750.81d(1)
is unconstitutionally vague and overbroad as applied in this case.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Michael J. Kelly




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