PEOPLE OF MI V OLIVER EARL PLAIR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 29, 1999
Plaintiff-Appellee,
v
No. 210566
Chippewa Circuit Court
LC No. 97-006377 FH
OLIVER EARL PLAIR,
Defendant-Appellant.
Before: Griffin, P.J., and Sawyer and Smolenski, JJ.
PER CURIAM.
A jury convicted defendant of two counts of assaulting a prison employee, MCL 750.197c;
MSA 28.394(3). The trial court sentenced him to three to fifteen years in prison on each count.
Defendant appeals as of right. We affirm.
The evidence at trial showed that defendant hit two corrections officers working in his prison
housing unit in an effort to make prison officials transfer him to a higher security facility where he would
have more privacy than in the open, dormitory-style setting at the Chippewa Temporary Facility. Prior
to the assault, defendant had asked to be transferred to a different facility approximately fourteen times,
with officials at the prison denying each request. Defendant does not dispute that the prosecution
proved every element of assaulting a prison employee, MCL 750.197c; MSA 28.394(3). Rather, he
argues that he satisfied his burden of production on the affirmative defenses of duress and necessity.
See People v Sorscher, 151 Mich App 122, 132; 391 NW2d 365 (1986). Therefore, he claims, the
prosecutor had the additional burden of disproving those defenses beyond a reasonable doubt but failed
to do so, requiring this Court to reverse his convictions.
A defendant must present some evidence on each element of the affirmative defenses of duress
and necessity before the prosecutor has a burden of disproving the defenses beyond a reasonable
doubt. People v Lemons, 454 Mich 234, 247; 562 NW2d 447 (1997); People v Field, 28 Mich
App 476, 478; 184 NW2d 551 (1970). Consequently, this Court must first determine if defendant
made a minimal showing on each element of duress or necessity before considering whether the
prosecutor introduced sufficient evidence to disprove duress and necessity.
-1
In Lemons, supra at 245, our Supreme Court explained that duress is a defense in cases where
the criminal act avoids a greater harm. Relying on People v Luther, 394 Mich 619, 623; 232 NW2d
184 (1975), the Lemons Court established that a defendant satisfies his burden of production when
there is “some” evidence from which the jury can conclude:
A) The threatening conduct was sufficient to create in the mind of a reasonable
person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the
mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time
of the alleged act; and
D) The defendant committed the act to avoid the threatened harm. [Id. at 247
(footnote omitted).]
Further, the Lemons Court explained, the “threatening conduct or act of compulsion must be ‘present,
imminent, and impending[, that] [a] threat of future injury is not enough,’ and that the threat ‘must have
arisen without the negligence or fault of the person who insists upon it as a defense.’” Id., quoting
People v Merhige, 212 Mich 601, 610-611; 180 NW 418 (1920). Defendants do not satisfy their
burden of production if they fail to present evidence on any one or more of these factors. Id. at 248.
We conclude that the first factor identified in Luther, supra at 623, disposes of defendant’s
claim that the prosecutor had to disprove duress. There is simply no evidence on the record regarding
the nature of a threat or compelling conduct by any other inmate against defendant. A prison
psychologist testified in the abstract that older prisoners may misinterpret younger prisoners’ noisy or
different behavior as threatening. He also said that defendant reported feeling “agitated” and “unsafe”
around the other prisoners. Yet, he neither testified that defendant, who was thirty-four years old at the
time of the offense, was an “older” inmate nor that defendant mentioned any particular threat to his
personal safety from other prisoners.
There was ample evidence that defendant disliked the dormitory-style housing unit because he
was uncomfortable and did not sleep well there; however, testimony did not establish that defendant
was at risk for physical harm, much less serious bodily injury or death. Although defendant now argues
that the open setting at the prison “provided younger inmates with ample opportunity to inflict harm” on
defendant, there is no evidence that any of them had done so in the past or intended to do so in the
future. See People v Ramsdell, 230 Mich App 386, 401; 585 NW2d 1 (1998); People v Rau, 174
Mich App 339, 341; 436 NW2d 409 (1989). None of the corrections officers or managers in
defendant’s housing unit described any incident between defendant and other inmates at any time, from
which this Court might infer that defendant had reason to be afraid for his personal safety. Furthermore,
defendant’s failure to introduce evidence on the record describing the nature of the threat makes it
impossible to assess the threat objectively to determine if a reasonable person would have been afraid
of physical injury or death. See People v Gimotty, 216 Mich App 254, 257; 549 NW2d 39 (1996).
-2
Therefore, we need not consider whether the prosecutor introduced sufficient evidence to disprove
duress because defendant failed to provide any evidence of the alleged threat. Lemons, supra at 248.
Defendant asks this Court to extend the defense of necessity to the offense of assaulting a prison
employee. We decline the invitation. In People v Hocquard, 64 Mich App 331, 337 n 3; 236 NW2d
72 (1975), this Court noted that “[t]he difference between the defenses of duress and necessity is that
the source of compulsion for duress is the threatened conduct of another human being, while the source
of compulsion for necessity is the presence of natural physical forces.” Addressing the defense of
necessity in that case, the Court explicitly limited the necessity defense in criminal cases to circumstances
in which officials deny an inmate medical care. Id. at 337. In light of that limitation the Court stated the
elements of a necessity defense:
1. The compulsion must be present, imminent and impending, and of such a
nature as to induce a well-grounded apprehension of death or serious bodily harm if the
act is not done. A threat of future injury is not enough.
2. There is no time for a complaint to the authorities or there exists a history of
futile complaints which make any result from such complaints illusory;
3. There is no time or opportunity to resort to the courts;
4. There is no evidence of force or violence used towards prison personnel or
other “innocent” persons in the escape; and
5. The prisoner immediately reports to the proper authorities when he has
attained a position of safety from the immediate threat. [Id. at 337-338 (footnotes
omitted).]
Since Hocquard, we have affirmed necessity as a defense for prison escape for medical reasons and
extended the necessity defense to other crimes without changing the essential elements of the defense.
See, e.g., People v Hubbard, 115 Mich App 73; 320 NW2d 294 (1982); People v Martin, 100
Mich App 447; 298 NW2d 900 (1980).
Even if we were willing to extend the defense of necessity to assaultive crimes, we would not
relieve a defendant of the burden of showing that there was an actual and immediate threat of serious
bodily injury or death underlying his actions. As in our analysis of the duress defense, we see no
evidence of such a threat in this case. Therefore, the prosecutor did not have the burden of disproving
the necessity of defendant’s assaults.
Affirmed.
/s/ Richard Allen Griffin
/s/ David H. Sawyer
/s/ Michael R. Smolenski
-3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
