PEOPLE OF MI V CALVIN EDWARD HICKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 12, 2004
Plaintiff-Appellee,
v
No. 248149
Calhoun Circuit Court
LC No. 02-003503-FH
CALVIN EDWARD HICKS,
Defendant-Appellant.
Before: Murray, P.J., and Markey and O’Connell, JJ.
PER CURIAM.
The jury convicted defendant of resisting, obstructing, or opposing one of the two police
officers that arrested him incident to disorderly conduct committed in the presence of the
officers. Defendant had been charged for resisting both of the officers. Defendant was
sentenced to eighteen months’ probation. Defendant appeals as of right his conviction for
resisting, obstructing, or opposing a person he knew was performing his duties. MCL
750.81d(1). We affirm.
I.
Facts
Two police officers arrived at defendant’s home to investigate a complaint that noise was
coming from the home. It was quiet when the officers arrived, although while the officers were
outside discussing the complaint with defendant, defendant became irate and began yelling at the
officers. The officers decided to arrest defendant for this behavior, but before they could do so,
defendant went inside his house, continuing to yell at the officers while he slammed shut the
doors and windows.
Defendant later came outside through the side door of his home. After speaking briefly
with defendant, one of the officers announced that he was placing defendant under arrest, and
defendant turned and ran back up his driveway, toward both the door to his home and toward his
pet Rottweiler that was chained near the garage. The officers grabbed defendant, dragged him
out of reach of the dog’s chain, and, because defendant was struggling against them, took
defendant to the ground and put handcuffs on defendant as he flailed and kicked. At this point, a
friend of defendant’s pulled his vehicle into the driveway, and defendant proceeded to struggle
against the officer holding him as his friend was arrested by the other officer.
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II.
Analysis
Defendant first argues that the trial court erred when it denied defendant’s motion to
admit evidence under MRE 404(b) that one of the two arresting officers had pleaded guilty to
disorderly jostling in relation to an off-duty fight at a bar. Defendant contends that the evidence
was admissible to demonstrate the identity of the police as the aggressors in the scuffle as he was
being arrested, and that the prior conviction demonstrated the existence of a prior plan or scheme
on the part of the officer to engage in acts of assaultive behavior. The trial court denied
defendant’s motion, reasoning that there was no question that the police had grabbed defendant
when they were arresting defendant. The trial court further reasoned that the evidence was
inadmissible because there was an insufficient factual connection between the circumstances
surrounding the officer’s conviction, resulting from a bar fight while the officer was off-duty,
and the methods used by the police when arresting defendant.
We review a trial court’s order relating to the admissibility of evidence for an abuse of
discretion. People v Sabin (After Remand), 463 Mich 43, 60; 614 NW2d 888 (2000). To be
admissible under MRE 404(b), the evidence must be offered for a proper purpose, the proper
purpose must be relevant to the case under MRE 402 as it is enforced through MRE 104(b), and
the probative value of the evidence cannot be substantially outweighed by the danger of unfair
prejudice. People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993), amended 445
Mich 1205; 520 NW2d 338 (1994).
The trial court did not abuse its discretion when it determined that one off-duty bar fight
was not proper evidence of a common plan or scheme to commit violent acts. Defendant argues
that the evidence would have been admissible to demonstrate that the officer acted in conformity
with the earlier violent act. Introduction of evidence for the purpose of proving that a person
acted in conformity with character is exactly the purpose prohibited by MRE 404(b). Id. at 5556.
Defendant next argues that his conviction was against the great weight of the evidence,
and that the trial court improperly denied his motions for new trial and directed verdict of
acquittal. Initially, we note that defendant argues that the trial court failed to apply the
“thirteenth juror” standard when evaluating the evidence. This argument is inherently flawed,
because the “thirteenth juror” standard was invalidated by People v Lemmon, 456 Mich 625,
646-647; 576 NW2d 129 (1998).
In Lemmon, our Supreme Court recognized that jurors were the ultimate triers of fact, and
that the trial court could not dismiss the jury’s findings simply because it disagreed with the
result reached by the jury. Id. at 636-640, 646-647. As a result, the trial court may only grant a
motion for new trial if “the evidence preponderates heavily against the verdict and a serious
miscarriage of justice would otherwise result” were the result to stand. Id. at 642. Here, both
officers testified that they were in uniform, that they were driving marked police vehicles, and
that defendant struggled against them after being told he was under arrest. The jury was free to
believe this version of events, and the trial court did not abuse its discretion when it denied
defendant’s motions.
Defendant also argues that his conviction was against the great weight of the evidence
because it was the result of an inconsistent compromise verdict because the jury convicted
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defendant of resisting one of the arresting officers, but not the other. Although inconsistent
verdicts may not be rendered by a trial court sitting without a jury, it is permissible for juries to
render inconsistent verdicts. People v Vaughn, 409 Mich 463, 465-466; 295 NW2d 354 (1980).
Defendant’s claim is legally without merit.
Finally, defendant argues that offenses under local ordinances regulating disorderly
conduct and loud, vociferous, and boisterous persons are lesser included offenses of resisting,
obstructing or opposing a police officer in the exercise of his duties as the crime is set forth in
MCL 750.81d. Because these were lesser included offenses, defendant argues, the trial court
erred when it refused defendant’s request that the jury be instructed on the elements of these
offenses. We review defendant’s claims de novo to determine whether, as a matter of law, the
trial court should have deemed the offenses provided under the local ordinances lesser included
offenses of statutory resisting and obstructing. People v Mendoza, 468 Mich 527, 531; 664
NW2d 685 (2003). “[A] requested instruction on a necessarily included lesser offense is proper
if the charged greater offense requires the jury to find a disputed factual element that is not part
of the lesser included offense and a rational view of the evidence would support it.” People v
Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002).
Only offenses that are wholly encompassed by the greater offense are necessarily
included lesser offenses. Mendoza, supra at 532-533, citing Cornell, supra at 357. The creation
of noise, which by its title is necessarily an element of loud, vociferous, or boisterous conduct, is
not included as an element of the offense of resisting, obstructing, or opposing a person
performing a duty on the face of MCL 750.81d. See also People v Ventura, ___ Mich App ___;
___ NW2d ___ (Docket No. 248064, rel’d 6/10/2004) (holding that the MCL 750.81d does not
include element of proving that arrest was lawful). Further, defendant provides nothing but the
bald assertion that the elements of the offense of “disorderly person” or “disorderly conduct”
under the local ordinance are wholly encompassed by MCL 750.81d to support his claim that the
ordinance provided a lesser included offense to resisting and obstructing. “An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims, nor may he give only cursory treatment with little or no citation of supporting
authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Defendant has
not established that the trial court erred when it denied his request for additional jury
instructions.
Affirmed.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Peter D. O’Connell
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