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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 17, 2021
Plaintiff-Appellee,
V No. 351243
Newaygo Circuit Court
ERIC LEE VANZANT, LC No. 19-012074-FH
Defendant-Appellant.
Before: BOONSTRA, P.J., and MARKEY and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of resisting a police officer, MCL
750.81d. The trial court sentenced defendant to serve 210 days in jail and imposed a fine of $100,
along with various costs including a $60 DNA assessment fee. We affirm defendant’s conviction
but remand to the trial court for the ministerial task of elimination of any requirement that
defendant pay a $60 DNA assessment fee.
On December 26, 2018, Deputies David Isreal, Juan Gonzales, and Hunter Niederer went
to defendant’s house to arrest him based upon an outstanding warrant. Deputy Isreal informed
defendant through the door that he had a warrant to take him into custody, and repeatedly asked
him to come to the door. He did not come to the door but, according to the officers, defendant
eventually told them that the door was open, and they entered the home. Deputy Isreal instructed
defendant to put his hands behind his back, but, according to the officers, defendant shoved Deputy
Isreal into Deputy Gonzalez. Defendant continued to physically resist the officers, but they were
eventually able to handcuff him and forcefully place him in one of the patrol cars. Defendant was
charged with and convicted of one count of resisting a police officer. This appeal followed.
I. INSTRUCTIONS
Defendant first argues that the trial court plainly erred by improperly instructing the jury
with regard to resisting a police officer, and/or that his trial counsel provided ineffective assistance
by approving the instructions. We disagree.
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Unpreserved instructional issues are reviewed for plain error affecting substantial rights.
People v Young, 472 Mich. 130, 135; 693 NW2d 801 (2005). Reversal is warranted only if the
plain error resulted in the conviction of an innocent defendant or if “the error seriously affected
the fairness, integrity, or public reputation of judicial proceedings independent of the defendant’s
innocence.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An unpreserved claim
of ineffective assistance of counsel is reviewed for errors apparent on the record. People v Unger
(On Remand), 278 Mich App 210, 253; 749 NW2d 272 (2008). The constitutional question
whether an attorney provided ineffective assistance, depriving a defendant of his right to counsel,
is reviewed de novo. Id. at 242.
A defendant has the right to “a properly instructed jury.” People v Mills, 450 Mich 61, 80;
537 NW2d 909 (1995). “The trial court is required to instruct the jury concerning the law
applicable to the case and fully and fairly present the case to the jury in an understandable manner.”
Id. Jury instructions are reviewed “in their entirety to determine if there is error requiring reversal.”
People v McFall, 224 Mich App 403, 412; 569 NW2d 828 (1997). “Jury instructions must not
exclude consideration of material issues, defenses, and theories for which there is supporting
evidence.” People v Kurr, 253 Mich App 317, 328; 654 NW2d 651 (2002). See also People v
McKinney, 258 Mich App 157, 162-163; 670 NW2d 254 (2003). There is no error where the
instructions “fairly presented the issues to be tried and sufficiently protected the defendant’s
rights.” McFall, 224 Mich App at 412-413.
To convict a defendant of resisting and obstructing a police officer, the prosecution must
prove that “(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,” and that “the officers’ actions were lawful.” People v
Vandenberg, 307 Mich App 57, 68; 859 NW2d 229 (2014) (quotation marks and citation omitted).
In this case, the trial court’s instructions for resisting a police officer were consistent with the law
and properly instructed the jury regarding the elements of the offense.
Defendant, however, argues that the trial court erred by not informing the jury what
constitutes a lawful arrest. “[T]he lawfulness of the arrest” is an element of resisting a police
officer and is “a factual question for the jury.” Vandenberg, 307 Mich App at 68-69. “[T]he right
to resist unlawful arrests, and other unlawful invasions of private rights, is well established in our
state’s common law.” People v Moreno, 491 Mich 38, 46-47; 814 NW2d 624 (2012). M Crim JI
13.5 provides, in pertinent part, as follows:
(1) An arrest is legal if it is made by an officer relying on an arrest warrant
for the defendant issued by a court.
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(5) The prosecutor must prove beyond a reasonable doubt that the [arrest
was legal / the (officer / (state authorized person) was acting within (his / her) legal
authority]. It is up to you to determine whether the [officer’s / (state authorized
person)’s] actions were legal according to the law as I have just described it to you.
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Defendant’s position is that the police entered the closed door to his home without
permission and were overly aggressive in arresting him. Defendant also emphasized that he
believed that the police were required to display the arrest warrant. Because the lawfulness of an
arrest is an element of the charged crime that the prosecutor must prove, and defendant suggested
that the police officers’ misconduct provoked his responses, the definition of “lawful arrest” was
relevant to both the elements of the crime and the defense and so should have been provided by
the trial court.
However, the omission of such instructional detail was not plain error because it did not
deprive defendant of a fair trial or affect the outcome of it. “[I]f an applicable instruction was not
given, the defendant bears the burden of establishing that the trial court’s failure to give the
requested instruction resulted in a miscarriage of justice.” People v Riddle, 467 Mich 116, 124;
649 NW2d 30 (2002). As noted, the omitted parts of M Crim JI 13.5 stated that a lawful arrest
required only that the arresting officer rely on “an arrest warrant for the defendant issued by a
court.” As defendant conceded in closing argument, there was a valid warrant for defendant’s
arrest issued earlier on the day of defendant’s arrest, which was admitted into evidence during the
testimony of Deputy Gonzalez. Defendant, Deputy Gonzalez, and Deputy Isreal all testified that
the officers advised defendant that they had a warrant for his arrest The trial court informed the
jury that it had spoken to the parties and determined that there was no requirement to show
defendant an arrest warrant, and there was no evidence that the warrant was invalid. Further, even
imperfect instructions do not require reversal if they fairly presented the issues to be tried and
sufficiently protected the defendant’s rights. McFall, 224 Mich App at 412-413. Because
defendant did not request the elaboration concerning the lawfulness of an arrest, did not challenge
the legality of the arrest, and agreed with the jury instructions as given, and because the given
instructions required the jury to determine whether the officers’ acted lawfully, defendant has not
demonstrated that the challenged instruction was plain error.
Defendant also argues that his trial counsel provided ineffective assistance by failing to
request additional instruction on the lawfulness of an arrest. A defendant’s right to counsel is
guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963 art
1, § 20. This “right to counsel encompasses the right to the effective assistance of counsel.”
People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). The “effective assistance of
counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v
Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). In order to prevail on a claim of
ineffective assistance of counsel, a defendant must show (1) “that counsel’s performance was
deficient” and (2) “that counsel’s deficient performance prejudiced the defense.” People v Taylor,
275 Mich App 177, 186; 737 NW2d 790 (2007) (quotation marks and citation omitted). An
attorney’s performance is deficient if “it fell below an objective standard of professional
reasonableness.” People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). The
performance will be deemed to have prejudiced the defense if it is reasonably probable that, but
for counsel’s error, “the result of the proceeding would have been different.” Id.
In this case, a request for the instruction about the definition of legal police conduct would
properly have been approved because it was appropriate for the circumstances of the crime and the
defense. But, it could have been trial strategy to not request the instruction that defines the legality
of police conduct broadly when defendant sought to essentially assert that the police were
responsible for the conflict. The additional instruction would thus not likely have made a
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difference in the outcome of the case and might even have made it easier for the jury to convict
defendant. Thus, defendant’s trial counsel was not deficient for failing to request the additional
instruction.
II. CURATIVE INSTRUCTIONS
Defendant next argues that the trial court twice plainly erred by failing to give curative
instructions immediately after Deputy Isreal provided prejudicial hearsay testimony, and that his
trial counsel was ineffective for failing to request such instructions. We disagree.
During direct examination, the prosecutor asked Deputy Isreal whether he spoke with
defendant’s daughter, and he replied that he “basically apologized for her being frightened and she
made mention that, you know, she knows her dad . . . hates police.” Defense counsel objected that
the testimony was hearsay, and the trial court sustained the objection. Then, when questioning
Deputy Isreal on rebuttal, the prosecutor asked him why he had returned to defendant’s home days
after the incident, and Isreal explained that he was contacted by Child Protective Services, which
was investigating “a violent incident” involving defendant and his son. Defense counsel objected
that the testimony was irrelevant and prejudicial. The trial court sustained the objection.
Evidence that goes beyond the merits of the case to inject issues broader than the
defendant’s guilt or innocence, such as “bias, sympathy, anger, or shock” is unfairly prejudicial.
People v McGhee, 268 Mich App 600, 614; 709 NW2d 595(2005). The statements of which
defendant makes issue were, in fact, effectively excluded from evidence. Defendant argues that,
despite the sustained objections, the jury actually heard the statements and thus could have based
its guilty verdict on their depiction of defendant as angry and violent, in contrast to his testimony
that the officers were the aggressors.
However, during jury instructions at the close of proofs, the trial court informed the jury
as follows:
At times during the trial, I’ve excluded evidence that was offered or stricken
testimony that was heard. Do not consider those things in deciding this case. Make
your decision only on the evidence that I let in and nothing else. Your decision
should be based on all the evidence, regardless of what party produced it.
. . . To repeat once more, you must decide this case only on the evidence
admitted during this trial.
“Jurors are presumed to follow instructions, and instructions are presumed to cure most
errors.” People v Petri, 279 Mich App 407, 414; 760 NW2d 882 (2008). Not only did the trial
court openly sustain the defense objections to Deputy Isreal’s inadmissible statements, it
admonished the jury not to consider excluded evidence. The trial court thus acted proactively to
steer the jury away from considering the challenged statements.
Defendant argues that his trial counsel provided ineffective assistance by failing to request
curative instructions immediately following Deputy Isreal’s inadmissible statements, which
requests the trial court presumably would have granted. However, it can be valid trial strategy to
decline to request a curative instruction in order to avoid highlighting the objectionable testimony.
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People v Coddington, 188 Mich App 584, 608; 470 NW2d 478 (1991). Because defense counsel
may have had that strategic purpose for confining his immediate display of disapproval regarding
the improper testimony to raising sustained objections, defendant has failed to overcome the
presumption of sound strategy in this instance, and this Court will not second-guess trial counsel’s
strategy. Id.
DNA ASSESSMENT FEE
Defendant lastly argues that the trial court erred by ordering defendant to pay a fee for his
DNA collection. The trial court did not verbally address this fee at sentencing, but the initial
judgment of sentence lists among the various financial obligations imposed “$60 DNA
ASSESSMENT FEE 2015.” However, the judgment of sentence elsewhere states, “A DNA
sample is already on file with the Michigan State Police from a previous case. No assessment is
required.” See MCL 28.176(3). Thereafter, on October 6, 2020, the trial court entered an amended
judgment of sentence that removed the DNA assessment fee. On the same date, however, the trial
court entered an additional order requiring defendant to provide a DNA sample. It is thus not clear
whether defendant is or will still be required to pay a DNA processing fee.
However, because the trial court did not state on the record that defendant had to pay a
DNA processing fee, and the first judgment of sentence indicates that no assessment is required
because defendant’s DNA sample is already on file (and apparently has been since 2015), we agree
with defendant that his judgment of sentence should not include a $60 DNA assessment fee. We
therefore remand this case to the trial court with instructions to correct/clarify in the amended
judgment of sentence that defendant is not required to pay the $60 DNA assessment fee.
Remanded for elimination of any requirement that defendant pay a DNA assessment fee,
but otherwise affirmed. We do not retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Jane E. Markey
/s/ Deborah A. Servitto
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