PEOPLE OF MI V DOUGLAS VANSICKLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 16, 1998
Plaintiff-Appellee,
v
No. 191839
Livingston Circuit Court
LC No. 94-008307-FH
DOUGLAS VANSICKLE,
Defendant-Appellant.
Before: Hoekstra, P.J., and Griffin and Bandstra, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of three counts of the common law felony
offense of misconduct in office, MCL 750.505; MSA 28.773, in connection with several remodeling
tasks that were performed by an inmate in defendant’s home while the inmate was on a work pass to
the police department where defendant was employed. For each of the three convictions, defendant
was ordered to pay a fine of $5,000. He now appeals as of right, and we reverse.
Of the issues that defendant presents on appeal, one is outcome-determinative. Defendant
argues that the trial court should have granted his motions for a directed verdict because there was
insufficient evidence to support his convictions for misconduct in office. A person guilty of this offense
must be a public officer who, while acting in the exercise of the duties of his office or while acting under
color of his office, committed any act that is wrongful in itself, i.e., malfeasance. People v Carlin, ___
Mich App ___; ___ NW2d ___ (Docket No. 186263, issued 9/23/97), slip op p 2. At issue here is
whether there was sufficient evidence from which the jury could conclude that defendant, a lieutenant
police officer for the Hamburg Township Police Department, was a public officer. If the evidence is
insufficient to support a conviction, then the trial court must direct a verdict of acquittal. MCR 6.419.
When reviewing a trial court’s ruling on a motion for directed verdict, this Court tests the validity of the
motion by the same standard as the trial court. People v Daniels, 192 Mich App 658, 665; 482
NW2d 176 (1992). Thus, we must consider the evidence presented by the prosecutor up to the time
the motion was made in the light most favorable to the prosecution and determine whether a rational
trier of fact could find that this essential element of the charged crime was proven beyond a reasonable
doubt. People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
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On facts similar to this case, this Court recently held in Carlin, supra at slip op p 5, that a
deputy sheriff could not be bound over on charges of misconduct in office because the deputy sheriff
was not a public officer. To decide whether the position of deputy sheriff was employment considered
a public office in Michigan, this Court in Carlin, supra at slip op pp 2-3, applied a five-part test:
(1) [I]t must be created by the Constitution or by the legislature or created by a
municipality or other body through authority conferred by the legislature; (2) it must
possess a delegation of a portion of the sovereign power of government, to be
exercised for the benefit of the public; (3) the powers conferred, and the duties to be
discharged, must be defined, directly or impliedly, by the legislature or through
legislative authority; (4) the duties must be performed independently and without control
of a superior power other than the law, unless they be those of an inferior or
subordinate office, created or authorized by the legislature, and by it placed under the
general control of a superior officer or body; (5) it must have some permanency and
continuity, and not be only temporary or occasional. Meiland v Wayne Probate
Judge, 359 Mich 78, 87; 101 NW2d 336 (1960); Kent Co Register of Deeds v Kent
Co Pension Bd, 342 Mich 548, 551-552; 70 NW2d 765 (1955).
Relying on this Court’s holding in Schultz v Oakland Co, 187 Mich App 96, 98, 101; 466 NW2d 374
(1991), the Carlin Court reasoned that the deputy sheriff was not a public officer who could be
charged with misconduct in office because his employment was governed by a collectively bargained
labor contract and because he must answer to authorities other than the law itself.
Although this case involves a lieutenant police officer, not a deputy sheriff, the reasoning in
Carlin is applicable here. At the trial in this case, the prosecution rested on the mere fact that defendant
was a police officer to satisfy this element of the crime. Indeed, the evidence that was part of the
testimony at trial supported defendant’s argument that he was only a public employee. For example, the
chief of police testified that defendant was responsible for the police department’s building and
equipment, its scheduling, as well as the inmate workers’ program at the police department. These are
presumably not duties that are defined, either directly or impliedly, by the Legislature or through
legislative authority. It is also apparent from the police chief’s testimony that defendant’s duties were
not performed independently, but under the control of and with instruction by the city police chief, who
was the next officer in the chain of command. Even viewing the evidence in the light most favorable to
the prosecution, a rational trier of fact could not find beyond a reasonable doubt that defendant was a
public officer; therefore, we hold that the trial court erred in denying defendant’s motions for a directed
verdict, and we reverse defendant’s convictions.
Because of our resolution of the public officer issue, we find it unnecessary to address
defendant’s remaining four issues.
Reversed.
/s/ Joel P. Hoekstra
/s/ Richard Allen Griffin
/s/ Richard A. Bandstra
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