                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      April 26, 2016
               Plaintiff-Appellee,

v                                                                     No. 325429
                                                                      Berrien Circuit Court
OWEN CARL HINDS,                                                      LC No. 2014-003505-FH

               Defendant-Appellant.


Before: SAAD, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

        Defendant appeals his three jury trial convictions of resisting and obstructing a police
officer, MCL 750.81d(1). For the reasons provided below, we affirm.

                             I. SUFFICIENCY OF THE EVIDENCE

        Defendant claims that there was insufficient evidence to prove that he knew or had reason
to know that the three officers, whose instructions he did not follow, were performing their
lawful duties. We disagree. This Court reviews sufficiency of the evidence claims de novo.
People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001) “[A] reviewing court ‘must
consider not whether there was any evidence to support the conviction but whether there was
sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.’ ”
People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), amended 441 Mich 1201
(1992), quoting People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979). The Court
“must view the evidence in the light most favorable to the prosecution,” People v Kloosterman,
296 Mich App 636, 639; 823 NW2d 134 (2012), and “should not interfere with the jury’s role of
determining the weight of the evidence or the credibility of witnesses,” People v Lee, 243 Mich
App 163, 167; 622 NW2d 71 (2000). Additionally, any factual conflicts are to be resolved in
favor of the prosecution. Wolfe, 440 Mich at 515.

       Defendant was convicted of violating MCL 750.81d(1), which provides:

       [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. [Emphasis added.]


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The phrase “has reason to know” “requires the fact-finder to engage in an analysis to determine
whether the facts and circumstances of the case indicate that when resisting [or obstructing],
[the] defendant had ‘reasonable cause to believe’ the person he was assaulting [or obstructing]
was performing his or her duties.” People v Nichols, 262 Mich App 408, 414; 686 NW2d 502
(2004).

        Defendant does not dispute that he, in fact, resisted the officers. Instead, his argument
focuses on his assertion that he did so but did not know that the officers were, indeed, officers.1
In this case, evidence was presented that Officer Jerol Williams was in full police uniform near a
fully marked patrol vehicle when he ordered defendant to stop. There was also evidence that
Officer Williams verbally identified himself as police when he yelled, “Stop.” Officer Josh
Allen verbally identified himself as police, and he also was standing near a fully marked patrol
vehicle in full uniform when defendant was first ordered to stop. Sergeant William Althouse was
driving a fully marked patrol vehicle with activated lights, while wearing a full uniform, when he
ordered defendant to stop two different times. Viewing the evidence in a light most favorable to
the prosecution, there is indeed more than sufficient evidence to justify a rational trier of fact to
find beyond a reasonable doubt that defendant had reasonable cause to believe that the people he
was obstructing were performing their duties as police officers.

        While defendant testified that he did not see or hear the officers because he was running
from who he thought to be the men who previously attacked him, the jury necessarily rejected
defendant’s testimony when it convicted him. Defendant’s claim that the evidence was
insufficient for the jury to find that defendant had the requisite knowledge comes down to a
credibility determination, and to credit defendant’s version of events would be tantamount to
viewing the evidence in a light most favorable to defendant, which is contrary to the standard of
review. Kloosterman, 296 Mich App at 639. This Court will not interfere with the jury’s role in
determining defendant’s credibility. Lee, 243 Mich App at 167.

                                    II. DOUBLE JEOPARDY

       Defendant argues that double jeopardy barred defendant from being charged three
separate times for the same offense. Because defendant never raised this issue at the trial court,
we review this unpreserved constitutional claim for plain error affecting his substantial rights.
People v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008). “To avoid forfeiture under


1
  Defendant claims that prior to his encounter with the police, he was attacked by other
individuals and that because he was pepper-sprayed during that initial attack, his ability to sense
his surroundings, i.e., notice that the officers were police officers, was impaired. Defendant uses
the term “self-defense” to describe why he evaded the police officers, but that would not be
accurate in this instance, as defendant merely attempted to evade the police, not attack them. See
People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010) (providing that self-defense
involves the exercise of force against an attacker to prevent harm). Moreover, defendant never
raised the issue of self-defense at the trial court. Thus, the prosecution was not required to
disprove such a theory beyond a reasonable doubt. People v Fortson, 202 Mich App 13, 20; 507
NW2d 763 (1993).


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the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error
was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

        “Both the United States and the Michigan constitutions protect a defendant from being
placed twice in jeopardy, or subject to multiple punishments, for the same offense.” McGee, 280
Mich App at 682. However, “double jeopardy does not apply to crimes committed against
different victims, even if the crimes occurred during the same criminal transaction.” People v
Hall, 249 Mich App 262, 273; 643 NW2d 253 (2002). In this case, defendant was charged with
resisting and obstructing three different officers. Defendant disregarded a different order to stop
from each officer. Therefore, double jeopardy was not violated by defendant’s convictions.
Accordingly, defendant cannot demonstrate a clear of obvious error related to his double
jeopardy argument. Furthermore, defendant’s argument that his trial counsel was ineffective for
failing to raise this issue of double jeopardy at the trial court is without merit, as counsel is not
ineffective for failing to raise a futile objection. See People v Ericksen, 288 Mich App 192, 201;
793 NW2d 120 (2010).

                                   III. JURY INSTRUCTIONS

         Defendant argues that the trial court erred in failing to instruct the jury on excuse or
justification. If a defendant expressly approves of the trial court’s instructions as given, the issue
is waived on appeal. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002), citing
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Express approval of the trial
court’s instruction “constitutes a waiver that extinguishes any error.” Carter, 462 Mich at 215
(emphasis in the original). Here, defendant expressly approved of the given jury instructions
twice. Therefore, this issue is waived, and there is no error to review. Id. at 215, 219.

        Further, defendant’s claim that his trial counsel was ineffective for failing to request such
an instruction fails. Defendant has not provided any authority that supports his assertion that a
general “excuse” instruction should have been given, or let alone exists, and our review of the
law reveals no authority for his assertion.

                                   IV. SENTENCING ISSUES

       Defendant raises several issues related to his sentence. However, defendant has already
served his minimum sentence and has been released from prison,2 and therefore we cannot afford
him any meaningful relief on these issues. Accordingly, we deem the sentencing issues moot,
and we decline to address them. BP 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586
NW2d 117 (1998).




2
    Defendant was released from his 14-month minimum sentences on March 1, 2016.


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Affirmed.



                  /s/ Henry William Saad
                  /s/ Stephen L. Borrello
                  /s/ Michael F. Gadola




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