PEOPLE
v.
GAYDOSH
Docket No. 149510.
Michigan Court of Appeals.
Submitted September 15, 1993, at Lansing. Decided January 18, 1994, at 9:10 A.M.Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Irving C. Shaw, Jr., Prosecuting Attorney, and Jonathan L. Poer, Assistant Prosecuting Attorney, for the people.
James L. Fisher, for the defendant.
Before: McDONALD, P.J., and SAWYER and MARILYN KELLY, JJ.
*236 MARILYN KELLY, J.
Defendant appeals as of right from his jury conviction for resisting and obstructing a police officer in the discharge of duty. MCL 750.479; MSA 28.747. On appeal, defendant claims that the judge's instruction to the jury impermissibly shifted the burden of proof to him and amounted to a directed verdict for the prosecution. We agree and reverse.
I
Defendant was arrested for operating a motor vehicle while under the influence of intoxicating liquor. He failed various sobriety tests and refused a Breathalyzer test. As a consequence, a magistrate issued a warrant authorizing the police to seize a sample of his blood. Defendant refused to consent to the blood test. The arresting officer testified that he informed defendant that his failure to comply would cause him to be charged with resisting and obstructing a police officer. Defendant continued to refuse the blood test.
Consequently, he was charged with operating a vehicle under the influence of intoxicating liquor and with resisting and obstructing a police officer. MCL 257.625(6); MSA 9.2325(6); MCL 750.479; MSA 28.747. The jury acquitted him of the drunk driving charge but convicted him of resisting and obstructing.
On appeal, defendant challenges the validity of a portion of the jury instruction. The judge first gave the standard instruction on resisting and obstructing. CJI2d 13.3. The section on intent reads:
Sixth, that the Defendant intended to [resist/assault] the officer. [CJI2d 13.3(7).]
Immediately after giving it, the judge added:
*237 It is not necessary that the officer or medical personnel attempt to take the sample by force. As a matter of law, a Defendant's refusal to consent to the Court-ordered blood test is sufficient resistance to support a conviction of this charge if the blood draw is being done or was being offered to be done in a medically safe manner.
Defendant's objection is to the addition.
II
We read jury instructions in their entirety to determine if error occurred requiring reversal. Instructions which are somewhat imperfect are acceptable, so long as they fairly present to the jury the issues to be tried and sufficiently protect the rights of the defendant. People v Caulley, 197 Mich. App. 177, 184; 494 NW2d 853 (1992).
Reading the instructions in their entirety and the disputed instruction in context, we conclude that the added instruction given in this case left the jury with no alternative but to convict defendant. Defendant admitted that he refused the blood test. The medical technologist assigned to draw his blood testified to her qualifications and the safe manner she would have used to draw the blood. As a result, the instruction improperly invaded the province of the jury and was tantamount to a directed verdict from the bench.
Directed verdicts of guilt in criminal jury trials are forbidden by the Sixth and Fourteenth Amendments. People v Chamblis, 395 Mich. 408, 420; 236 NW2d 473 (1975), overruled in part on other grounds in People v Stephens, 416 Mich. 252; 330 NW2d 675 (1982), citing People v Reed, 393 Mich. 342, 349; 224 NW2d 867 (1975). Appellate courts considering the issue have not hesitated to reverse a guilty verdict when an instruction amounted to *238 a directed verdict or otherwise improperly invaded the province of the jury. People v Clark, 295 Mich. 704; 295 N.W. 370 (1940); People v Anschutz, 335 Mich. 375, 380-381; 56 NW2d 224 (1953); 75A Am Jur 2d, Trial, §§ 1017-1024, pp 568-572.
Our Supreme Court as well has concluded that an instruction must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them. The Court determined that a harmless error analysis is not appropriate where a judge has invaded the province of the jury. Reed, 348-351.
In this case, defendant argued that he lacked the requisite intent to resist the officer, but because of the challenged instruction, the jury was not entitled to consider that testimony. The instruction removed from the jury the factual determination of one element of the crime. See Sandstrom v Montana, 442 U.S. 510; 99 S. Ct. 2450; 61 L. Ed. 2d 39 (1979).
The instruction also freed the prosecution from its obligation to prove each element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358; 90 S. Ct. 1068; 25 L. Ed. 2d 368 (1970). We are aware that defendant's refusal showed resistance. People v Kelley, 78 Mich. App. 769, 774; 260 NW2d 923 (1977). However, when covering defendant's refusal in instructing on intent, the judge omitted language which permitted the jury to accept or reject the inference that defendant's behavior established his intent. A fair and simple reading of the instruction leads one to conclude that defendant's refusal established the requisite intent as a matter of law. In giving the instruction, the trial court undermined the essential fact-finding function of the jury.
Certainly no one would deny the jury's absolute *239 right to disbelieve all the "undisputed evidence" and acquit the defendant altogether. A "jury has the power to bring in a verdict in the teeth of both law and facts." [Chamblis, 421, quoting Horning v District of Columbia, 254 U.S. 135, 138; 41 S. Ct. 53; 65 L. Ed. 185 (1920).]
We find, also, that the challenged instruction impermissibly shifted the burden of proof on the question of intent to defendant. It required him to overcome a presumption that refusal meant that he intended to resist the officer. In a criminal trial, a defendant is under no such obligation.
Instructions to the effect that the jury should look to defendant for evidence explaining his acts or that the law presumes intent from defendant's acts may serve to impermissibly shift the burden of proof. Where the burden is erroneously cast upon defendant to prove the absence of the intent required for conviction, reversal is mandated. [People v Smith, 67 Mich. App. 145, 149-150; 240 NW2d 475 (1976).]
The instruction denied the jury the right to believe or disbelieve the evidence as it saw fit. It freed the prosecutor from his duty to prove each element of the crime charged beyond a reasonable doubt. It impermissibly shifted the burden of proof to defendant and left the jury with no alternative but to convict defendant. We reverse.
McDONALD, P.J., concurred.
SAWYER, J. (concurring).
I concur in the result only.