PEOPLE OF MI V PRENTIS APOLLO HEARN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 28, 1999
Plaintiff-Appellee,
v
No. 212045
Allegan Circuit Court
LC No. 97-010511 FH
PRENTIS APPOLLO HEARN,
Defendant-Appellant.
Before: Bandstra, C.J., and Markman and Meter, JJ.
PER CURIAM.
Defendant appeals by right from his conviction by a jury of resisting arrest, MCL 750.479;
MSA 28.747. The trial court sentenced him to two years’ probation and sixty days in jail, although the
court suspended the majority of the jail term. We affirm.
Defendant argues that the trial court gave erroneous responses to two questions posed by the
jurors. The trial court responded to one of the questions – “[C]an we get a more precise definition of
exactly what legally constitutes resistance” – by stating, “I cannot give you a definition. You’re going to
have to apply your own general knowledge and common sense as to what that term means.” Defendant
argues that this response was misleading and requires reversal because the court did not set forth all the
elements of the resisting charge and thereby make clear to the jurors that the lawfulness of the arrest is a
necessary element of the crime of resisting arrest. We disagree that the trial court’s response requires
reversal.
As this Court stated in People v Piper, 223 Mich App 642, 648; 567 NW2d 483 (1997), jury
instructions are to be viewed as a whole rather than extracted piecemeal to establish error. As long as
the instructions fairly presented the issues to the jury and protected the defendant’s rights, imperfections
do not constitute error. People v Holt, 207 Mich App 113, 116; 523 NW2d 856 (1994). In the
instant case, while it is true that the lawfulness of the arrest is a necessary element of the crime of
resisting arrest, People v Rice, 192 Mich App 240, 243; 481 NW2d 10 (1991), the court was not
obligated to repeat this element in response to the jurors’ question because (1) the court had already set
forth this element in its earlier instructions, and (2) the jurors did not express confusion regarding the
elements of the crime of resisting arrest but instead focused on the meaning of the term “resistance.”
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See People v Bell, 209 Mich App 273, 275-277; 530 NW2d 167 (1995). Given that the statute in
question does not define the term “resistance,” the trial court’s response to the jurors’ question – that
they should use their general knowledge and common sense in defining the term – was accurate. See
People v Gregg, 206 Mich App 208, 211-212; 520 NW2d 690 (1994). Accordingly, the instructions
as a whole fairly presented the issues to the jury, sufficiently protected defendant's rights, and do not
require reversal. Holt, supra at 116.
The jurors’ remaining question was “[C]an we find [defendant] guilty o one charge, either
f
assault or resisting, and innocent of the other?” The trial court responded that the prosecution had
charged defendant with one statutory violation that could have occurred in two different ways – by
resisting arrest or by assaulting an officer – and that the jurors could find that defendant did one, both,
or neither of these things. Defendant argues that this response was erroneous because the jurors could
not have found defendant guilty of resisting arrest while at the same time finding him innocent of assault.
In other words, defendant contends that if he was innocent of assault, his resulting arrest based on the
assault must have been illegal – meaning that he could not be guilty of resisting arrest under Rice, supra
at 243, which indicates that the crime of resisting arrest cannot be predicated on an illegal arrest. We
disagree with defendant’s argument. If the jury found defendant innocent of assault, they could
nonetheless find him guilty of resisting arrest, since the standard for a legal arrest differs from the
standard for a criminal conviction of assault.
A police officer may legally arrest someone without a warrant if the officer has probable cause
to believe that an offense has been committed and that the suspect committed the offense. People v
Thomas, 191 Mich App 576, 579; 478 NW2d 712 (1991). Probable cause requires only a
probability or substantial chance of criminal activity, not an actual showing of criminal activity. People v
Lyon, 227 Mich App 599, 611; 577 NW2d 124 (1998). By contrast, a criminal conviction requires
the prosecution to establish each element of the crime charged beyond a reasonable doubt. People v
Gaines, 223 Mich App 230, 237-238; 566 NW2d 35 (1997), overruled on other grounds sub nom
People v Neal, 233 Mich App 649 (1999). Accordingly, as long as double jeopardy is not at issue,1
acquittal of the charge for which one is arrested does not require a corresponding acquittal on a charge
of resisting the arrest. See People v Kretchmer, 404 Mich 59, 62; 272 NW2d 558 (1978). Indeed,
as long as they believed that the officer involved had probable cause to arrest defendant, the jurors
could find defendant guilty of resisting arrest even if they ultimately concluded that defendant was
innocent of assault. For example, the jurors might have concluded that although the arresting officer
reasonably believed that defendant purposefully struck him – thereby justifying the arrest – defendant in
actuality swung his arm in frustration, hit the officer accidentally, and subsequently resisted the lawful
arrest. The trial court’s response to the jurors’ question was therefore accurate and does not warrant
reversal of defendant’s conviction. Nor, contrary to defendant’s unpreserved argument, was the trial
court obligated to sue sponte instruct the jurors that they could not convict defendant unless they
concluded that he assaulted the officer in question.
Finally, defendant argues that the trial court erred by failing to give a specific instruction that the
illegality of the arrest is a complete defense to a charge of resisting arrest, even if the accused used force
to resist the arrest. Because defendant did not request this specific instruction below or object to its
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absence, its absence warrants reversal only if our examination of the entire record indicates that the
allegedly defective jury instructions caused a miscarriage of justice. People v Hess, 214 Mich App 33,
36; 543 NW2d 332 (1995); People v Graves, 458 Mich 476, 484; 581 NW2d 229 (1998). Since
the trial court specifically instructed the jury that a legal arrest was an essential element of the crime of
resisting arrest, and since the court defined the phrase “legal arrest,” we find no miscarriage of justice.
Indeed, if the jurors concluded that defendant’s arrest had been illegal, then, under the trial court’s
correct instructions, the amount of force used by defendant in resisting the arrest would have been
irrelevant to their deliberations.
Affirmed.
/s/ Richard A. Bandstra
/s/ Stephen J. Markman
/s/ Patrick M. Meter
1
Double jeopardy is not at issue in the instant case, since defendant was charged with only one
statutory violation. Although the jurors could have found that defendant both assaulted the officer and
resisted arrest, only one criminal conviction would have resulted from this finding.
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