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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 25, 2022
Plaintiff-Appellee,
v No. 349547
Macomb Circuit Court
LATAUSHA SIMMONS, LC No. 2018-000127-AR
Defendant-Appellant.
ON REMAND
Before: RIORDAN, P.J., and CAVANAGH and JANSEN, JJ.
PER CURIAM.
This matter is before us on remand by our Supreme Court. Defendant was convicted in a
jury trial before the 37th District Court of resisting or obstructing a police officer, MCL
750.81d(1), and sentenced to six months’ probation. Defendant appealed her conviction to the
Macomb Circuit Court, and the circuit court entered an order of acquittal, agreeing with defendant
that the district court erred by precluding the parties from presenting evidence on the lawfulness
of the officers’ conduct. On reconsideration, however, the circuit court set aside its order of
acquittal and remanded the matter to the district court for retrial. This Court reversed the circuit
court’s remand order, concluding that retrial was barred under the Double Jeopardy Clause, US
Const, Am V. People v Simmons (On Reconsideration), ___ Mich App ___; ___ NW2d ___
(2021) (Docket No. 349547) (Simmons I), rev’d in part ___ Mich ___ (2022) (Docket No. 163469).
Our Supreme Court reversed this Court’s double jeopardy holding because the circuit court,
acting in its appellate capacity, “properly exercised its authority under MCR 7.114(D) and MCR
2.119(F) when it reconsidered and reversed its own order of acquittal, thus eliminating any double
jeopardy concerns related to its prior determination of the defendant’s innocence.” People v
Simmons, ___ Mich ___, ___; 971 NW2d 223, 224 (2022) (Simmons II). Further, our Supreme
Court also remanded the matter to this Court to consider
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whether the circuit court found that the prosecution had failed to put forward
sufficient evidence that the defendant’s arrest was lawful and, if so, whether double
jeopardy bars the defendant’s retrial where an appellate court has determined that
there was insufficient evidence to convict, but the insufficiency resulted from the
district court’s erroneous order granting a prosecution request. [Id.]
For the reasons set forth below, we conclude that the circuit court, on reconsideration, did
not find that the prosecution had failed to put forward sufficient evidence that defendant’s arrest
was unlawful. Accordingly, we affirm the circuit court and remand this matter to the district court
for further proceedings.
I. FACTS
We previously summarized the underlying facts as follows:
This case arises out of the arrest of defendant for her failure to comply with
the directives of Warren police officers. Officer Sullivan observed defendant exit
a grocery store through an opening not typically used by the public and walk to a
car parked in an alley next to the grocery store. Defendant entered the car, drove a
few feet, exited the car next to a dumpster or shipping container that was in the
alley, and peeked around the corner of the dumpster or shipping container at Officer
Sullivan. Officer Sullivan found her behavior to be suspicious and approached her
to investigate. He requested her identification numerous times. Defendant did not
respond to Officer Sullivan and did not present her identification to him. Officer
Horlocker and Officer Sciullo were then dispatched to assist Officer Sullivan.
Officer Horlocker and Officer Sciullo independently spoke to defendant and
requested her identification. Defendant did not respond to either officer and never
produced her identification. She was ultimately arrested and charged with resisting
or obstructing a police officer.
Before trial, defendant filed a motion to dismiss and for an evidentiary
hearing on the lawfulness of the officers’ conduct. After a hearing, the district court
concluded that the officers’ conduct was lawful and the matter then proceeded to
trial. On the first day of trial, before the jury was empaneled, the parties discussed
the introduction of evidence regarding the lawfulness of the officers’ conduct and
whether the jury was to be instructed that the lawfulness of the officers’ conduct
was an element of resisting or obstructing a police officer. The district court ruled
that it previously had determined that the officers’ conduct was lawful, that no
evidence could be presented at trial regarding the lawfulness of the officers’
conduct or the legality of defendant’s arrest, and that the jury was not to be
instructed that the lawfulness of the officers’ conduct was a factual issue for it to
determine. Consequently, no evidence was presented at trial on the lawfulness of
the officers’ conduct and the jury did not consider that as one of the elements of the
criminal allegation before it. Thus, the jury did not consider the lawfulness of the
police officers’ conduct and it then found defendant guilty of resisting or
obstructing a police officer. [Simmons I, ___ Mich App at ___; slip op at 2.]
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Defendant appealed her conviction to the circuit court, asserting, in part, that the district
court erred by precluding evidence and argument regarding the lawfulness of the officers’ conduct
and by failing to instruct the jury about the lawful-arrest element of the offense. The prosecution
did not respond to defendant’s appeal or appear for the hearing. The circuit court agreed that the
district court erred in the manner asserted by defendant:
Even if the – somebody on behalf of the State of Michigan or the City of
Warren did appear, on the merits, you win. This matter is reversed and a judgment
of acquittal is entered in favor of the Defendant.
***
Congratulations and on behalf of the State of Michigan let me apologize to
the Defendant for going through what you did go through. I mean, even if the
instructions had been correct, I see no way that you could have been or should have
been convicted on this evidence.
***
You’re an innocent person. Finally the record caught up with that. Thank
you. Okay.
The circuit court entered an order of acquittal “[f]or the reasons stated on the record . . . .”
The prosecution subsequently moved for reconsideration on the basis that defendant failed
to serve her claim of appeal or related documents. The prosecution conceded that the district court
committed evidentiary and instructional error, but argued that the appropriate remedy was remand
for a new trial, rather than acquittal. Because the record did not reflect service on the prosecution,
the circuit court set aside its order of acquittal and directed defendant to file a delayed application
for leave to appeal. In connection with the delayed application, defendant argued that acquittal
was the proper remedy because there was insufficient evidence at trial and double jeopardy barred
retrial. The prosecution continued to maintain that the errors requiring reversal were evidentiary
and instructional in nature, such that the appropriate remedy was remand for retrial so a jury could
consider the lawful-arrest element in the first instance. In an opinion and order dated June 5, 2019,
circuit court ultimately agreed with the prosecution, determined that the district court erred by
removing the lawful-arrest element from the jury’s consideration, and remanded to the district
court for retrial.
Defendant’s initial application for leave to appeal in this Court was denied for lack of merit
on the grounds presented. People v Simmons, unpublished order of the Court of Appeals, entered
July 30, 2019 (Docket No. 349547). Her motion for reconsideration was likewise denied. People
v Simmons, unpublished order of the Court of Appeals, entered September 17, 2019 (Docket No.
349547). Defendant continued to pursue her appeal before our Supreme Court. In lieu of granting
her application, our Supreme Court remanded the case to this Court for consideration as on leave
granted. People v Simmons, 506 Mich 912 (2020).
Of the issues raised in that appeal, only defendant’s double-jeopardy challenge is relevant
at this juncture. A majority of the previous panel held that the circuit court’s on-the-record
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statements constituted an acquittal for purposes of the Double Jeopardy Clause, thereby baring
retrial of the resisting-or-obstructing charge. Simmons I, ___ Mich App at ___; slip op at 7. Judge
BECKERING dissented, reasoning that the circuit court, sitting as an appellate court, had authority
to set aside its order of acquittal and that defendant’s conviction was “logically reinstated” when
the circuit court chose to do so. Id. at ___ (BECKERING, P.J., dissenting); slip op at 7-8. Moreover,
because defendant was originally convicted by a jury, double jeopardy did not preclude the
reinstatement or retrial after the conviction was set aside on the basis of a trial error. Id. at ___;
slip op at 7-8.
The prosecution sought leave to appeal in our Supreme Court. In lieu of granting the
application, our Supreme Court reversed this Court’s holding that double jeopardy barred
defendant’s retrial. Simmons II, ___ Mich at ___; 971 NW2d at 223-224. Our Supreme Court
explained that the circuit court’s order of acquittal was not final because it remained subject to
appellate review or reconsideration. Id. at ___; 971 NW2d at 224. Thus, when the circuit court
properly exercised its authority under MCR 7.114(D) and MCR 2.119(F) to reconsider and reverse
its own order, it eliminated double jeopardy concerns arising from its earlier determination of
defendant’s “innocence.” Id. at ___; 971 NW2d at 224.
But that conclusion did not fully resolve the double-jeopardy issue. Our Supreme Court
remanded the case to this Court with instructions to consider (1) “whether the circuit court found
that the prosecution had failed to put forward sufficient evidence that the defendant’s arrest was
lawful” and (2), “if so, whether double jeopardy bars the defendant’s retrial where an appellate
court has determined that there was insufficient evidence to convict, but the insufficiency resulted
from the district court’s erroneous order granting a prosecution request.” Id. at ___; 971 NW2d at
224. We do so now.
II. STANDARD OF REVIEW
“[A] double jeopardy claim presents a question of law that is reviewed de novo.” People
v Grace, 258 Mich App 274, 278; 671 NW2d 554 (2003).
III. DISCUSSION
The first issue that our Supreme Court directed us to address is “whether the circuit court
found that the prosecution had failed to put forward sufficient evidence that the defendant’s arrest
was lawful.”1
“Under both the Double Jeopardy Clause of the Michigan Constitution and its federal
counterpart, an accused may not be ‘twice put in jeopardy’ for the same offense.” People v Lett,
466 Mich 206, 213; 644 NW2d 743 (2002) (citations omitted). “[T]he Double Jeopardy Clause
bars retrial following a court-decreed acquittal, even if the acquittal is based upon an egregiously
erroneous foundation.” Evans v Mich, 568 US 313, 318; 133 S Ct 1069; 185 L Ed 2d 124 (2013)
1
This issue, we believe, refers to the circuit court’s June 5, 2019 opinion and order following the
motion for reconsideration, notwithstanding that the first sentence of the second paragraph of our
Supreme Court’s order seemingly suggests a particular resolution of this issue.
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(quotation marks and citation omitted). To decide whether an acquittal has occurred, “the
reviewing court must determine whether the ruling of the judge, whatever its label, actually
represents a resolution, correct or not, of some or all of the factual elements of the offense
charged.” People v Anderson, 409 Mich 474, 486; 295 NW2d 482 (1980) (quotation marks and
citation omitted). “There is an acquittal . . . when the judge evaluated the government’s evidence
and determined that it was legally insufficient to sustain a conviction.” Id. (quotation marks and
citation omitted).
In its June 5, 2019 opinion and order, the circuit court stated, in relevant part, as follows:
On March 27, 2018, the trial court held an evidentiary hearing on the issue
of whether the defendant’s arrest was legal. The court held that it was. As a result
of that ruling, the trial court precluded the defense from arguing to the jury, at trial,
that the arresting officers acted illegally, and, therefore, not in the performance of
their duties. Because of that ruling, evidence, testimony and arguments which the
defendant would have pursued regarding that element were never allowed at the
trial.
The defendant was convicted as charged.
***
In 2002, the legislature enacted the current version of the resisting arrest
statute . . . . As a result of the Supreme Court’s decision in [People v Moreno, 491
Mich 38; 814 NW2d 624 (2012)], “the prosecution must establish that the officers
acted lawfully as an actual element of the crime of resisting or obstructing a police
officer under MCL 750.81d.” People v Quinn, 305 Mich App 484, 492; 853 NW2d
383 (2014). Because the trial judge took that necessary element away from the
jury, the conviction must be reversed, and a new trial is ordered. As with any
element of a crime, it is the prosecutor’s burden to prove beyond a reasonable doubt
that the police acted legally in the arrest of the defendant. It is not the defendant’s
burden to prove that the police acted illegally.
This court agrees with the prosecution that the appropriate remedy is
reversal and remand for a new trial rather than dismissal. Where a verdict is
overturned because of instructional error, the remedy is retrial, not acquittal.
People v Lynn, 459 Mich 53; 586 NW2d 534 (1998). This court is guided in its
holding by the closely analogous case of People v Reed, unpublished per curiam
opinion of the Court of Appeals issued November 21, 2013 (Docket No. 311067).
In that case the defendant was charged with resisting/obstructing a police office
[sic]. The trial court conducted an evidentiary hearing to determine whether the
officer’s conduct was lawful. The trial court found the defendant to be the more
credible witness and, based on the testimony in the pretrial hearing, dismissed the
charge. The prosecution appealed, and the Court of Appeals reversed the trial
court’s dismissal. The Court of Appeals held that in reaching the decision that the
officer acted illegally, the trial court decided an essential element of the charged
offense. When the lawfulness of the police conduct is properly understood as an
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element, it is a question of fact to be decided by the jury – and not by a judge. The
Court held that the trial court’s determination of this essential element usurped the
jury’s fact-finding function.
Applying the teachings of People v Reed, it is clear that the trial court in
this case usurped the jury’s fact-finding function. Similarly, if this court
determined that the actions of the officers in this case were not lawful, this court
would be committing the same error in usurping the jury’s function.
Defendant-appellant’s request for a dismissal without a retrial must be
denied. The insufficiency of the evidence on the element of proving that the
officers were in the lawful performance of their duties arises from the error of the
court and not from any wrongdoing on the part of the prosecution. Therefore, the
remedy of dismissal with prejudice is not proper.
We conclude that the circuit court did not resolve the lawfulness element of the charged
offense. In its opinion and order, the circuit court stated that a new trial was warranted “[b]ecause
the trial judge took that necessary element away from the jury.” The circuit court added that the
verdict must be “overturned because of instructional error” and that the district court “usurped the
jury’s fact-finding function.” In support of its reasoning in this regard, the circuit court cited two
cases, Lynn and Reed. Neither of those cases involved an acquittal, legally insufficient evidence,
or otherwise implicated double jeopardy. Importantly, the circuit court expressly declined to
“determine[] that the actions of the officers in this case were not lawful.” Therefore, because the
circuit court held that a new trial was warranted because of instructional error, not legally
insufficient evidence, double jeopardy does not bar retrial. See People v Houston, 792 F3d 663,
670 (CA 6, 2015).
It is true that the circuit court noted near the end of its opinion and order that “[t]he
insufficiency of the evidence on the element of proving that the officers were in the lawful
performance of their duties arises from the error of the court and not from any wrongdoing on the
part of the prosecution.” While this statement explicitly references the “insufficiency of the
evidence,” it is clear from context that the circuit court used that phrase only to respond to
defendant’s position that the case should be dismissed and not to convey that the circuit court
evaluated the prosecution’s evidence on the challenged element and found it wanting. Again, the
circuit court expressly declined to “determine[] that the actions of the officers in this case were not
lawful.”
For these reasons, the circuit court did not find that the prosecution had failed to put
forward sufficient evidence that defendant’s arrest was lawful. Instead, the circuit court merely
determined that the lawfulness element of the offense was improperly removed from the jury’s
consideration through instructional error. Consequently, because the opinion and order was not
an “acquittal” for the purposes of double jeopardy, see Anderson, 409 Mich at 485-486, a retrial
of defendant is not barred on that basis.
IV. CONCLUSION
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We conclude that the circuit court did not find that the prosecution had failed to put forward
sufficient evidence that defendant’s arrest was lawful. Accordingly, we affirm the circuit court
and remand this matter to the district court for further proceedings consistent with our opinion.
We do not retain jurisdiction.2
/s/ Michael J. Riordan
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
2
Having resolved the first issue identified by our Supreme Court in the negative, we need not
address the conditional second issue identified by that Court.
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