Opinion
353610
06-10-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOHN WESLEY TORSCH, Defendant-Appellant.
UNPUBLISHED
Muskegon Circuit Court LC No. 18-003042-FH
Before: Boonstra, P.J., and Markey and Servitto, JJ.PER CURIAM.
Defendant appeals by right his jury trial convictions for resisting and obstructing a police officer (resisting arrest), MCL 750.81d(1); and resisting and obstructing a police officer causing injury (resisting arrest causing injury), MCL 750.81d(2). The trial court sentenced defendant to six days in jail with credit for six days served, and six months of probation. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On May 31, 2018, Whitehall Police Officer Eric Whitlow was on patrol in uniform and a in a marked patrol vehicle when he saw defendant driving a truck while apparently not wearing his seatbelt. Officer Whitlow stopped defendant's vehicle and asked him if he had "a medical reason for not wearing his seatbelt." Defendant responded by grabbing his seat belt "from behind his left shoulder where the two vertical-straps were" and asking Officer Whitlow if he could see the seat belt. Officer Whitlow explained to defendant that he was improperly wearing his seatbelt. He then asked defendant for his driver's license, which defendant did not provide; instead, defendant continued to talk about his seat belt and then called 911 on his cellular phone.
Officer Whitlow called for backup, and Montague Police Officer Rick Johnson responded. Officer Whitlow continued to ask defendant for his license, and defendant continued to refuse to provide it. Officer Whitlow eventually told defendant to "get out of the car," but defendant refused. Officer Whitlow then forcibly removed defendant from his vehicle, injuring his own middle finger in the process. After Officer Whitlow got defendant out of his vehicle, he secured defendant's left arm and Officer Johnson secured defendant's right arm. When the officers attempted to place defendant's arms behind his back, defendant "locked" his arms together to prevent the officers from handcuffing him. The officers were able to pull defendant's arms apart and place him in handcuffs.
Following a preliminary examination, defendant was bound over to the circuit court on one count of resisting arrest. At a pretrial hearing on July 27, 2018, defense counsel stated on the record that the prosecution had made a plea offer, stating that "[t]here was a Cobbs commitment by the Court of not to exceed 90 days Muskegon County Jail [sic], and there was also an agreement from the Prosecutor's Office not to add any additional charges." Defense counsel also noted that, if the parties were to litigate significantly the issues in the case, the prosecution would withdraw its agreement for "no additional charges" and "proceed on potentially two additional charges." The prosecution confirmed that it would seek to amend the current charge to resisting arrest causing injury, and then add at least one additional count of resisting arrest.
People v Cobbs, 443 Mich. 276; 505 N.W.2d 208 (1993).
On March 7, 2019, the trial court held a pretrial settlement conference. The prosecution again explained that the plea offer was for defendant to plead guilty to one count of resisting arrest, with a Cobbs agreement that his sentence would not exceed 90 days of jail time. The prosecution stated that, throughout the case, defendant and defense counsel had been on notice that the prosecution would add additional charges if the matter proceeded to trial, adding that if defendant wanted to continue to trial, the prosecution would file a Goecke motion to amend the information. The trial court inquired of defendant whether he understood the plea offer and the potential for additional charges, and defendant agreed that he understood. Defendant did not accept the plea offer, and the trial court ordered that the case proceed to trial.
People v Goecke, 457 Mich. 442; 579 N.W.2d 868 (1998).
On March 12, 2019, the prosecution moved to amend the information to "add a count of Assaulting/Resisting/Obstructing a Police Officer, MCL 750.81d(1), and to amend count one of the information to the charge of Assaulting/Resisting/Obstructing a Police Officer Causing Injury, MCL 750.81d(2)." At the motion hearing, defense counsel conceded that there was notice of the potential amendments. However, he argued that there was no probable cause to add the new charges. The trial court granted the motion to amend the information and noted that there was ample notice.
The matter proceeded to trial and defendant represented himself. The jury convicted defendant as described. This appeal followed.
Defendant was represented by counsel for all pretrial matters; the trial court granted defendant's motion to represent himself on May 23, 2019, six days before trial.
II. STANDARD OF REVIEW
"For an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court." People v Danto, 294 Mich.App. 596, 605; 822 N.W.2d 600 (2011). In this case, defendant conceded that he was on notice of the amended information, but objected to the amendment on the basis of a lack of probable cause to add the new charges. Defendant's probable cause argument is therefore preserved. However, defendant did not argue that the prosecution impermissibly retaliated against defendant for asserting his right to a jury trial; that argument is therefore unpreserved. See People v Aldrich, 246 Mich.App. 101, 113; 631 N.W.2d 67 (2001). We review unpreserved issues for plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).
We review de novo issues of statutory interpretation. People v McGee, 258 Mich.App. 683, 686; 672 N.W.2d 191 (2003). We review for an abuse of discretion a trial court's decision to grant or deny a motion to amend an information. Id. at 686-687. "The trial court abuses its discretion when its decision falls outside the range of principled outcomes." People v Perry, 317 Mich.App. 589, 594; 895 N.W.2d 216 (2016). This Court reviews unpreserved issues for plain error, which occurs when there is (1) error (2) that was clear or obvious and (3) it "affected [defendant's] substantial rights." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).
III. ANALYSIS
Defendant argues that the trial court erred by granting the prosecution's motion to amend the information. We disagree.
"Both MCL 767.76 and MCR 6.112(H) authorize a trial court to amend an information before, during, or after trial." McGee, 258 Mich.App. at 686. The trial court may amend the information if the amendment will not "unfairly surprise or prejudice the defendant." MCR 6.112(H). This Court has "concluded that no unfair surprise, inadequate notice, or insufficient opportunity to defend exists when the elements of both the charged offenses and an offense the prosecutor moves to add at the end of the preliminary examination, are shown by testimony." McGee, 258 Mich.App. at 691.
In Perry, 317 Mich.App. at 594-595, the prosecution stated on the morning before trial that if the facts at trial supported it, she intended to move to amend the information to add a charge of identity theft for defendant's use of another person's information when he attempted to purchase a vehicle. "On the second day of trial, over defense counsel's objection, the trial court granted the prosecution's motion to amend the information to include the additional charge." Id. at 595. The trial court ruled that the charge was not a surprise because it involved facts that had already been presented and that defense counsel had notice of the possibility of another charge. Id. This Court upheld the trial court's ruling "[b]ecause defendant knew of the prosecution's intent to amend the charges in this case before trial started," and he did not demonstrate that "the amendment during the trial itself denied him the opportunity to cross-examine the witnesses on the new charge." Id.
In this case, defendant was provided with even more ample notice than in Perry. Defendant was notified on the record by both defense counsel on July 27, 2018, and by the prosecution on March 12, 2019, that the prosecution would move to amend the information if defendant did not accept the plea offer. Indeed, defendant conceded before trial that he had notice of the possibility of an amendment. Defendant does not argue that he was unfairly surprised or prejudiced by the amended charges. See MCR 6.112(H).
Instead, defendant argues that there was no testimony supporting the additional charge of resisting arrest related to defendant's resistance of Officer Johnson. We disagree. The elements of resisting arrest under MCL 750.81d(1) are that (1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a police officer, and (2) that the defendant knew or had reason to know that the person the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered was a police officer performing his duties at the time. Probable cause supports a bindover for an offense when evidence offered at a preliminary examination is "sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief" that a felony was committed and that the defendant was the person who had committed it. See People v Yost, 468 Mich. 122, 125-126; 659 N.W.2d 604 (2003) (citations omitted).
Defendant's brief on appeal does not address the amended charge of resisting arrest causing injury related to defendant's resistance of Officer Whitlow.
In this case, Officer Whitlow testified at the preliminary examination that Officer Johnson was securing defendant's right arm as the officers attempted to handcuff defendant. When the officers attempted to place defendant's arms behind his back defendant "locked" his arms together to prevent the officers from handcuffing him. The officers were able to pull defendant's arms apart and place handcuffs on him. This evidence was sufficient to establish probable cause that defendant had obstructed Officer Johnson's attempt to arrest him. See MCL 750.81d(7)(a) (defining "obstruct" as including "the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command.") Therefore, the trial court did not abuse its discretion when it granted the prosecution's motion to amend the information. See Perry, 317 Mich.App. at 589, 595.
Defendant also argues that the trial court should have denied the prosecution's motion because the prosecution's "sole intention for amending the information was a form of retaliation since [defendant] did not accept the plea offer, and instead, insisted on his constitutional right to a jury trial." We disagree.
It is a violation of due process to punish a defendant for asserting a statutory or constitutional right. People v Ryan, 451 Mich. 30, 35; 545 N.W.2d 612 (1996). Our Supreme Court has recognized two types of prosecutorial vindictiveness: presumed vindictiveness and actual vindictiveness. Id. at 36. "Actual vindictiveness will be found only where objective evidence of an expressed hostility or threat suggests that the defendant was deliberately penalized for his exercise of a procedural, statutory, or constitutional right." Id. (quotation marks and citation omitted). It is defendant's burden to "affirmatively establish actual vindictiveness." Id. "The mere threat of additional charges during plea negotiations does not amount to actual vindictiveness where bringing the additional charges is within the prosecutor's charging discretion." Id.
Presumptive vindictiveness has been found in "certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right," such as a trial court's practice of imposing a harsher sentence on retrial whenever a defendant successfully attacks his initial conviction on appeal. See U.S. v Goodwin, 457 U.S. 368, 373; 102 S.Ct. 2485; 73 L.Ed.2d 74 (1982) (citations omitted). Defendant does not argue that such a presumption should be applied in this case.
Defendant does not explain how the prosecution was vindictive or retaliated in this case, other than the mere fact that the prosecution, as it had previously advised it would do, carried out the act of amending the information; as stated, the mere fact of threatening to bring additional charges, or carrying out that threat, is insufficient to show actual vindictiveness. See id. And there is no evidence in the record to suggest that the prosecution's conduct was motivated by vindictiveness. There also is no basis for concluding that the amendment was retaliatory, given that the prosecution had given prior notice that it would move to amend, nor does defendant develop an argument in this regard. The amended charges were well within the prosecution's discretion. See id. Defendant has not shown plain error affecting his substantial rights. Carines, 460 Mich. at 763.
Affirmed.