People v. Chapo, Docket No. 281172.

CourtCourt of Appeal of Michigan (US)
Citation283 Mich. App. 360,770 N.W.2d 68
Docket NumberDocket No. 281172.
PartiesPEOPLE v. CHAPO.
Decision Date14 April 2009

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jon P. Wojtala, Assistant Prosecuting Attorney, for the people.

James D. Brittain, Taylor, for the defendant.

BEFORE: WILDER, P.J., and MARK J. CAVANAGH and MURRAY, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of fourth-degree fleeing or eluding a police officer, MCL 257.602a(2), for which he was sentenced to three years' probation. He appeals as of right. We affirm.

I

Defendant drove a pickup truck over a fire hose that firefighters were using to extinguish a fire at a thrift shop. Flat Rock Police Officer Glen Hoffman activated the overhead flashers of his patrol vehicle and stopped defendant's truck. Officer Hoffman recognized the driver as defendant, but asked for his driver's license, proof of insurance, and vehicle registration, because he intended to cite defendant for driving over the fire hose. According to Officer Hoffman, defendant was upset and said that he was in a hurry to take his son to his mother's home. After Officer Hoffman requested defendant's driver's license three or four times, defendant had thrown it to the officer through a partially opened window and said something like, "Here you go, bozo." Defendant told Officer Hoffman that he was going to leave and would be back later for the ticket. Defendant drove a few feet, Officer Hoffman ordered him to stop and defendant did stop but continued to say that he was going to leave. Officer Hoffman then ordered defendant to step out of the vehicle and told him he would be arrested if he continued to leave. Defendant refused Officer Hoffman's demands to get out of the truck. Officer Hoffman testified that it was his intention to arrest defendant for hindering or obstructing an officer, if he did not comply with his order to get out of the vehicle. Officer Hoffman warned defendant that he had a taser, and he stood on the truck's running board while attempting to shoot the taser at defendant's chest. Officer Hoffman jumped off the running board as defendant drove off. Defendant testified that he drove off only after Officer Hoffman "went berserk" and shot something at him.

Following defendant's conviction, he moved for a new trial, asserting ineffective assistance of counsel, or, alternatively, requesting a directed verdict of acquittal, claiming that there was insufficient evidence to establish that Officer Hoffman was lawfully performing his duties before defendant's flight. The trial court denied the motion.

II

Defendant argues that the evidence was insufficient to establish the lawful performance element of the offense of fleeing or eluding a police officer. In connection with this issue, defendant argues that he was denied "procedural due process" because, in response to his posttrial motion, the prosecution responded that it was proceeding under a theory that this element could be proven by evidence that there was probable cause to arrest defendant for obstruction under MCL 750.81d. We find no basis for relief.

We review de novo defendant's challenge to the sufficiency of the evidence. People v. Cline, 276 Mich.App. 634, 642, 741 N.W.2d 563 (2007). "Taking the evidence in the light most favorable to the prosecution, the question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v. Hardiman, 466 Mich. 417, 421, 646 N.W.2d 158 (2002). The prosecution need not negate every theory consistent with innocence, but is obligated to prove its own theory beyond a reasonable doubt, in the face of whatever contradictory evidence the defendant may provide. Id. at 423-424, 646 N.W.2d 158. Due process commands a directed verdict of acquittal where the evidence is insufficient. People v. Lemmon, 456 Mich. 625, 633-634, 576 N.W.2d 129 (1998).

Defendant's claim that he was denied notice of the prosecution's theory was not raised below and, therefore, is unpreserved. Accordingly, we review the issue for plain error affecting defendant's substantial rights. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999).

The Due Process Clause of the Fourteenth Amendment mandates that a state's method for charging a crime give a defendant fair notice of the charge against the defendant, to permit the defendant to adequately prepare a defense. Koontz v. Glossa, 731 F.2d 365, 369 (C.A.6, 1984). "[I]t is a practical requirement that gives effect to a defendant's right to know and respond to the charges against him." People v. Darden, 230 Mich.App. 597, 601, 585 N.W.2d 27 (1998). Prejudice is essential to any claim of inadequate notice. Id. at 602 n. 6, 585 N.W.2d 27.

The information in this case gave defendant notice that the charge under MCL 257.602a(2) was predicated on his failure to comply with Officer Hoffman's order to stop his vehicle, while Officer Hoffman was acting in the lawful performance of his duties, on December 1, 2006. This case is distinguishable from Olsen v. McFaul, 843 F.2d 918, 931 (C.A.6, 1988), in which a theft indictment was so indefinite that it provided no assistance to the defendant in determining what property he was charged with stealing and how the theft was committed. The information in this case provided fair notice that the charge against defendant was based on a particular event on December 1, 2006.

Further, defendant has not shown that he was prejudiced by the fact that the information did not state his alleged offense with greater specificity. It is apparent from the trial record that defendant clearly knew the acts for which he was being tried. Before jury selection, defense counsel used the police report to argue an evidentiary matter, and counsel explained to the trial court that there would be a divergence between the parties' evidence regarding what happened after defendant produced his driver's license. Consistent with Officer Hoffman's trial testimony, the police report indicates that Officer Hoffman decided that he could arrest defendant for hindering or obstructing a police officer during the traffic stop. Further, trial counsel expressed no surprise when the prosecutor argued to the jury, during closing argument, that the element of lawful performance was established, by evidence that defendant was stopped for the civil infraction of driving over the fire hose, and that the traffic stop had not concluded when defendant drove off. Consistent with his earlier remarks, defense counsel instead argued to the jury that defendant's testimony established that Officer Hoffman overreacted and that defendant drove off because of the taser.

We find no basis in the record for concluding that defendant did not have adequate notice of the charge against him. We also find no support for defendant's claim that the prosecution attempted to change its theory, for purposes of opposing defendant's posttrial motion for a directed verdict. At best, the record indicates that the prosecution responded to defendant's own attempt to recast his actions as an escape from an attempted arrest rather than an avoidance of a lawful traffic stop. The prosecution's response did not create any procedural due process concerns.

We also reject defendant's argument that the evidence was insufficient to establish that Officer Hoffman was lawfully performing his duties when defendant fled. MCL 257.602a(1) provides, in part:

A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop shall not willfully fail to obey that direction by increasing the speed of the motor vehicle, extinguishing the lights of the motor vehicle, or otherwise attempting to flee or elude the officer. [Emphasis added.]

Viewed in a light most favorable to the prosecution, the evidence that Officer Hoffman was attempting to detain defendant for the purpose of issuing a citation for driving over the fire hose was sufficient to enable the jury to find, beyond a reasonable doubt, that Officer Hoffman was acting in the lawful performance of his duties. Driving over an active fire hose, without the consent of the fire department, is a civil infraction. MCL 257.680. A police officer who witnesses a civil infraction may stop and temporarily detain the offender for the purpose of issuing a written citation. MCL 257.742(1). Because the traffic stop was incomplete when defendant fled, the evidence was sufficient to sustain the conviction, regardless of whether Officer Hoffman also had probable cause to arrest defendant for obstruction. See People v. Laube, 154 Mich.App. 400, 407, 397 N.W.2d 325 (1986) (whether reasons other than a civil infraction justify the police action is irrelevant).

We also reject defendant's claim that Officer Hoffman's testimony established that he lacked probable cause to arrest defendant for obstruction. A police officer may make an arrest without a warrant if there is probable cause to believe that a felony was committed by the defendant, or probable cause to believe that the defendant committed a misdemeanor in the officer's presence. MCL 764.15; People v. Dunbar, 264 Mich.App. 240, 250, 690 N.W.2d 476 (2004). "Probable cause is found when the facts and circumstances within an officer's knowledge are sufficient to warrant a reasonable person to believe that an offense had been or is being committed." Id. The standard is an objective one, applied without regard to the intent or motive of the police officer. People v. Holbrook, 154 Mich.App. 508, 511, 397 N.W.2d 832 (1986).

Here, in denying defendant's posttrial motion, the...

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