People v. Morris, 021116 MICA, 323762

Docket Nº:323762
Opinion Judge:Murray, J.
Party Name:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAY BRADLEY MORRIS, Defendant-Appellant.
Judge Panel:Before: Boonstra, P.J., and K. F. Kelly and Murray, JJ.
Case Date:February 11, 2016
Court:Court of Appeals of Michigan



JAY BRADLEY MORRIS, Defendant-Appellant.

No. 323762

Court of Appeals of Michigan

February 11, 2016

Calhoun Circuit Court LC No. 2014-001440-FH

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.


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.1Galbraith 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 then 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 may 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.



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 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 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; 869 N.W.2d 253].


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, 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.


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