People v. Morris, Docket No. 323762.

• Decision Date: 11 February 2016
• Docket Number: Docket No. 323762.
• Citation: 314 Mich.App. 399,886 N.W.2d 910
• Parties: PEOPLE v. MORRIS.
• Court: Court of Appeal of Michigan — District of US

314 Mich.App. 399

886 N.W.2d 910

PEOPLE

v.MORRIS.

Docket No. 323762.

Court of Appeals of Michigan.

Submitted Feb. 2, 2016, at Lansing.

Decided Feb. 11, 2016, at 9:10 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, David E. Gilbert, Prosecuting Attorney, and Jennifer Kay Clark, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Jessica Zimbleman) for defendant.

Before: BOONSTRA, P.J., and K.F. KELLY and MURRAY, JJ.

MURRAY

, J.

Defendant was convicted after a jury trial of one count of resisting/obstructing a police officer, in violation of MCL 750.81d(1)

. Defendant was sentenced to six months in the county jail. In this appeal defendant challenges the factual support for his conviction as well as the constitutionality of the statute. For the reasons expressed below, we affirm.

I. FACTUAL BACKGROUND

In the early morning hours of April 19, 2014, Battle Creek Police Officer Trevor Galbraith and Sergeant John Chrenenko were separately dispatched to a Battle Creek gas station in response to a report that a potentially suicidal man was at the gas station armed with a gun.¹ Galbraith arrived at the station first and, once inside, saw defendant near the cash register. Galbraith approached defendant with his gun drawn until he realized that defendant did not have a gun in his hands. Galbraith grabbed defendant and placed his hands behind his back. Defendant was then turned over to Chrenenko. At this point, both officers knew that defendant did not have a gun in either hand, but in light of the initial call they remained concerned that he might still have a gun in his clothing. Chrenenko testified that for this reason he wanted to put defendant in handcuffs. Both officers testified that once outside the gas station's enclosed building, defendant stiffened up and broke their grip. A struggle ensued in which the officers commanded defendant to go to the ground, and when defendant did not comply, the officers forced him down. According to both officers, defendant also refused to comply with commands to put his arms behind his back, so they had to force him into handcuffs. Both officers also smelled alcohol on defendant, but Chrenenko did not believe defendant was too intoxicated. No weapon was found on defendant.

Defendant testified that he suffers from psychotic episodes, had been off his medication for six months prior to the night of the incident, and had been drinking. According to defendant, when he heard that he was being placed in handcuffs, he asked why and told the officers he just wanted help. Defendant agreed that a struggle ensued (which he described as “tousling”), but also stated that he complied as much as possible. He also claimed to have blacked out for parts of the encounter.

After hearing the evidence, the jury convicted defendant, and then defendant was sentenced, as outlined above. We now turn to the issues raised.

II. ANALYSIS

A. CONSTITUTIONALITY OF MCL 750.81d

Defendant contends that MCL 750.81d

is unconstitutional as being both overbroad and vague. Defendant did not raise these constitutional challenges at any point during the trial court proceedings, rendering the issues unpreserved. People v. Cameron, 291 Mich.App. 599, 617, 806 N.W.2d 371 (2011)

. We therefore review these unpreserved issues for a plain error affecting substantial rights. People v. Schumacher, 276 Mich.App. 165, 177, 740 N.W.2d 534 (2007).

In relevant part, MCL 750.81d

reads as follows:

(1) Except as provided in subsections (2), (3), and (4), 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.

* * *

(7) As used in this section:

(a) “Obstruct” includes the use or threatened use of physical interference or force or a knowing failure to comply with a lawful command.

(b) “Person” means any of the following:

(i ) A police officer of this state or of a political subdivision of this state including, but not limited to, a motor carrier officer or capitol security officer of the department of state police.

Recognizing the stringent standards applicable when reviewing the constitutionality of a statute is critical to properly resolving these issues. We expressed those standards in People v. Vandenberg, 307 Mich.App. 57, 62, 859 N.W.2d 229 (2014)

, which we apply with equal force to this case:

When considering the constitutionality of a statute, we begin with the presumption that statutes are constitutional and we construe statutes consistent with this presumption unless their unconstitutionality is readily apparent.

People v. Rogers, 249 Mich.App. 77, 94, 641 N.W.2d 595 (2001)

. The party challenging a statute's constitutionality bears the burden of proving its invalidity. People v. Malone, 287 Mich.App. 648, 658, 792 N.W.2d 7 (2010) [overruled in part on other grounds by People v. Jackson, 498 Mich. 246, 262 n. 5, 869 N.W.2d 253 (2015) ].

1. FACIALLY OVERBROAD CHALLENGE

Citing People v. Rapp, 492 Mich. 67, 821 N.W.2d 452 (2012)

, defendant argues that MCL 750.81d(1) is facially overbroad because nothing in the statute limits how an individual can be said to have “resisted”, “obstructed”, or “opposed” a police officer,² and so it is possible that asking simple questions of an officer could be construed as criminal.³ And, of course, asking an officer “simple questions” is typically—though not always⁴ —protected by the First Amendment to the United States Constitution and Article 1, § 5 of the Michigan Constitution of 1963

.

The test for reviewing a constitutional challenge to a statute on the basis that it is overbroad was set forth in People v. Gaines, 306 Mich.App. 289, 320–321, 856 N.W.2d 222 (2014)

:

A statute is overbroad when it precludes or prohibits constitutionally protected conduct in addition to conduct or behavior that it may legitimately regulate. People v. McCumby, 130 Mich.App. 710, 714, 344 N.W.2d 338 (1983)

. Under the overbreadth doctrine, a defendant may “challenge the constitutionality of a statute on the basis of the hypothetical application of the statute to third parties not before the court.” People v. Rogers, 249 Mich.App. 77, 95, 641 N.W.2d 595 (2001). Defendant argues that the statute regulates both speech and conduct. Therefore, defendant must demonstrate that the overbreadth of the statute is both real and substantial—there is a “ ‘realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.’ ” Id. at 96, 641 N.W.2d 595, quoting Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The statute will not be found to be facially invalid on overbreadth grounds, however, “where it has been or could be afforded a narrow and limiting construction by state courts or if the unconstitutionally overbroad part of the statute can be severed.” Rogers, 249 Mich.App. at 96, 641 N.W.2d 595.

Thus, even if a criminal statute has a “legitimate application,” and virtually all do, it is nevertheless unconstitutional if it stretches so far that it makes “unlawful a substantial amount of constitutionally protected conduct.” Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)

. In order to balance the competing interests of protecting free speech and “the free exchange of ideas” with the interest of upholding laws “directed at conduct so antisocial that it has been made criminal,” a reviewing court is required to find “that a statute's overbreadth be substantial ” in order to justify invalidation. United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). See also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

“The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Williams, 553 U.S. at 293, 128 S.Ct. 1830

. Not surprisingly, in interpreting a statute we are first and foremost guided by the words of the statute itself. People v. Gillis, 474 Mich. 105, 114, 712 N.W.2d 419 (2006). We must also keep in mind the context within which the words are found, People v. Vasquez, 465 Mich. 83, 89, 631 N.W.2d 711 (2001) (opinion by MARKMAN, J.), such as the Legislature placing the statute within Chapter XI of the Michigan Penal Code, MCL 750.81 et seq., which compiles the listed crimes under the heading “Assaults.”

For several reasons we conclude that the terms of the statute are clear and have a narrow application that does not run afoul of the state or federal Constitutions.

First, this Court has determined that “the unambiguous language of [MCL 750.81d(1)

] ... shows that the Legislature intended that the statute encompass all the duties of a police officer as long as the officer is acting in the performance of those duties.”

People v. Corr., 287 Mich.App. 499, 505, 788 N.W.2d 860 (2010)

. So, to fall under the statute, the individual must assault, batter, wound, resist, obstruct, oppose, or endanger an officer who is performing his duties. Second, the terms challenged by defendant are clear and well defined. Indeed, in Vasquez, 465 Mich. at 89–91, 631 N.W.2d 711 (opinion by MARKMAN, J.), a plurality of the Court defined among others the terms “resist,” “oppose,” “assault,” and “wound ” under another resisting/obstructing statute, MCL 750.479 :

In the present case, the statute uses the word “obstruct” as part of a list containing five other words, namely, “resist, oppose, assault, beat [and] wound

.” The meaning of the word “obstruct” should be determined in this particular context, and be given a meaning logically related to the five...