PEOPLE OF MI V TODD MICHAEL FORTIN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 18, 2002
Plaintiff-Appellee,
v
No. 227070
Genesee Circuit Court
LC No. 99-004010-FC
TODD MICHAEL FORTIN,
Defendant-Appellant.
Before: Hood, P.J., and Murphy and Markey, JJ.
PER CURIAM.
Defendant was charged with assault with intent to commit murder, MCL 750.83,
intentionally killing a police dog, MCL 750.50c(2), possession of a firearm by a felon, MCL
750.224f, carrying a concealed weapon, MCL 750.227, possession of a firearm during the
commission of a felony, MCL 750.227b, and resisting and obstructing a police officer, MCL
750.479. The jury found defendant guilty on all of the charges, except for the assault and killing
a police dog charges. Defendant was convicted on the lesser charge of assault with intent to do
great bodily harm less than murder, MCL 750.84, and the jury could not reach a verdict on the
charge regarding the killing of a police dog. Following the jury verdict, defendant pleaded nolo
contendere to attempted killing of a police dog. Defendant appeals as of right. We affirm.
Defendant fled from a trailer after police officers arrived to arrest him on a felony
warrant. After fleeing from the police officers into a wooded area, defendant shot and killed a
police tracking dog while defendant was hiding in some tall brush. Defendant then fled from the
brush and became involved in a shootout with a state trooper, who had been accompanying the
K-9 handler in the search. Defendant was shot in the leg by the officer, after defendant fired
twice at the officer while fleeing. The officer was not hit, and defendant was subsequently
arrested near a party store in the area after trying to further elude police.
Defendant’s first contention on appeal is that the trial court erred in denying his motion
for directed verdict on the charges of assault with intent to commit murder, killing a police dog,
and resisting and obstructing a police officer. We initially note that, although defendant argues
that the trial court erred in denying the motion for directed verdict, defendant relies, in part, on
his own testimony in supporting reversal. Although defendant moved for a directed verdict at
the close of the prosecution’s proofs, the trial court improperly reserved argument and its
decision on defendant’s motion until the close of all proofs. MCR 6.419(A). MCR 6.419(A)
indicates that a motion for directed verdict may be made after a defendant presents proofs. We
-1-
believe that it is appropriate in this case to treat defendant’s motion as one being made after the
close of all proofs, thereby allowing us to consider all the evidence presented, as similar to a
sufficiency of the evidence claim.
When reviewing a trial court’s decision on a motion for directed verdict, this Court
reviews the record de novo. People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999).
This Court views the evidence presented up to the time the motion for directed verdict was made
in a light most favorable to the prosecution to determine if a rational factfinder could find the
essential elements of the crime proved beyond a reasonable doubt.” People v Peebles, 216 Mich
App 661, 664; 550 NW2d 589 (1996).
As to defendant’s claim that the charge of assault with intent to commit murder was
improperly submitted to the jury, we find any error harmless. Defendant was convicted on the
lesser charge of assault with intent to do great bodily harm less than murder, MCL 750.84.
Defendant does not argue that there was insufficient evidence to support that charge. The
submission to the jury of the charge concerning assault with intent to murder, even if erroneous,
did not affect the ultimate verdict. See People v Graves, 458 Mich 476, 487; 581 NW2d 229
(1998). Regardless, the evidence presented, when viewed in a light most favorable to the
prosecution, could lead a rational trier of fact to find beyond a reasonable doubt that defendant
assaulted the state trooper with an actual intent to kill.
Defendant next argues that there was no evidence that defendant intended to kill a police
dog; therefore the trial court should not have sent the charge to the jury. In light of defendant’s
unconditional nolo contendere plea to attempted killing of a police dog, which is not challenged
on appeal, this issue is moot. See People v Greenberg, 176 Mich App 296, 302-303; 439 NW2d
336 (1989). Regardless, the evidence presented, when viewed in a light most favorable to the
prosecution, could lead a rational trier of fact to find beyond a reasonable doubt that defendant
intentionally killed a police dog.
Defendant next argues that he did not have the requisite state of mind to be guilty of
resisting and obstructing a police officer.
MCL 750.479 states:
Any person who shall knowingly and willfully obstruct, resist or oppose
any . . . officer or person . . . authorized by law to maintain and preserve the
peace, in their lawful acts, attempts and efforts to maintain, preserve and keep the
peace, shall be guilty of a misdemeanor . . . .
“Willfully” means that defendant must have done the proscribed act intending to do it. People v
Gleisner, 115 Mich App 196, 198; 320 NW2d 340 (1982). “Knowingly” means defendant must
have done the act to an officer, knowing him to be an officer. Id. at 199. Knowledge can be
inferred from circumstantial evidence. People v Royal, 62 Mich App 756, 761; 233 NW2d 860
(1975).
The state trooper testified that during his pursuit of defendant in the woods, he came to a
point where he waited for defendant to emerge from the tall grass and trees into a clearing.
When defendant reached the clearing, and the trooper had a clear view, he ordered defendant to
-2-
stop and drop the gun he was holding. Instead, defendant looked at the trooper and fired twice in
his direction. At this time, the trooper was approximately fifty feet from defendant and dressed
in full police uniform. The trooper also testified that he believed, from his police training, that
he identified himself as a police officer. Further, after defendant reached the nearby party store,
he was surrounded by approximately a dozen police officers with guns drawn and did not drop
his weapon for several minutes. This all occurred in full daylight.
Viewing the evidence in a light most favorable to the prosecution, a rational factfinder
could infer from the circumstances beyond a reasonable doubt that defendant willfully and
knowingly resisted and obstructed a police officer. Therefore, the trial court properly denied
defendant’s motion for directed verdict on the charge.
Defendant’s next contention on appeal is that the trial court abused its discretion in
sentencing him because the sentence was not individualized and was not tailored to fit the
offense and the offender.1 The standard of review for a sentence imposed by the trial court under
the habitual offender statute is whether the trial court abused its discretion. People v Reynolds,
240 Mich App 250, 252; 611 NW2d 316 (2000). A sentencing court abuses its discretion when
it violates the principle of proportionality. A sentence must be proportionate to the seriousness
of the crime and the defendant’s prior record. People v Milbourn, 435 Mich 630, 635-636, 654;
461 NW2d 1 (1990).
Defendant was sentenced as an habitual offender. The judicial sentencing guidelines do
not apply to habitual offenders and may not be considered on appeal in determining an
appropriate sentence. People v Gatewood (On Remand), 216 Mich App 559, 560; 550 NW2d
265 (1996). Defendant had one prior felony conviction. Therefore, the trial court was
authorized to sentence defendant as an habitual offender and refuse to consider the judicial
sentencing guidelines.
When an habitual offender’s underlying felony and criminal history demonstrates that he
is unable to conform his conduct to the law, a sentence within the statutory limits is
proportionate. People v Hansford (After Remand), 454 Mich 320, 326; 562 NW2d 460 (1997).
MCL 769.10 permits an habitual offender’s maximum sentence to be 1½ times that of an original
conviction.
MCL 750.84 provides that the crime of assault with intent to do great bodily harm less
than murder is punishable by imprisonment in the state prison for not more than ten years.
Therefore, defendant’s maximum sentence was properly enhanced to fifteen years and under the
two-thirds rule from People v Tanner, 387 Mich 683, 689-690; 199 NW2d 202 (1972),
defendant’s ten-year minimum sentence is within the statutory limits. The two-thirds rule of
1
Defendant was sentenced as a second habitual offender, MCL 769.10, to 10 to 15 years’
imprisonment for assault with intent to do great bodily harm less than murder, 2½ to 3¾ years’
imprisonment for attempted killing of a police dog, 5 to 7½ years’ imprisonment for possession
of a firearm by a felon, 5 to 7½ years’ imprisonment for carrying a concealed weapon, 2 years’
imprisonment for felony firearm, and 2 to 3 years’ imprisonment for resisting and obstructing a
police officer. The crime occurred in October 1998; therefore, the new statutory guidelines do
not apply. MCL 769.34(2).
-3-
Tanner applies to sentences imposed under section 10 of the habitual offender act, MCL 769.10.
People v Thomas, 447 Mich 390, 392; 523 NW2d 215 (1994).
According to the presentence investigation report, defendant had a juvenile conviction
and three misdemeanor adult convictions, including one weapons offense besides his prior felony
conviction. Defendant’s criminal history and the underlying felonies show that he is unable to
conform his conduct to the law; therefore, his sentence was proportionate. The trial court based
defendant’s sentence on the fact that he had one prior felony conviction, and this case involved
defendant killing a police dog and shooting at a police officer. Therefore, contrary to
defendant’s argument, the trial court did consider defendant’s background and the circumstances,
and it did not consider any improper factors. As a result, the trial court did not abuse its
discretion in sentencing defendant.
Defendant’s final contention on appeal is that the trial court erred in denying his request
to instruct the jury on the lesser offenses of intentionally pointing a firearm without malice, MCL
750.233, and intentional discharge of a firearm at another without malice, MCL 750.234. “[T]he
decision to grant or deny a requested lesser included misdemeanor instruction will be reversed on
appeal only upon a finding of abuse of discretion.” People v Stephens, 416 Mich 252, 265; 330
NW2d 675 (1982). “Failure to give such an instruction is an abuse of discretion if a reasonable
person would find no justification or excuse for the ruling made.” People v Malach, 202 Mich
App 266, 276; 507 NW2d 834 (1993).
The standard in deciding whether to give requested misdemeanor jury instructions is as
follows:
“Whenever an adequate request for an appropriate misdemeanor
instruction is supported by a rational view of the evidence adduced at trial, the
trial judge shall give the requested instruction unless to do so would result in a
violation of due process, undue confusion, or some other injustice.” [People v
Steele, 429 Mich 13, 18; 412 NW2d 206 (1987), quoting Stephens, supra at 255.]
Defendant argues that a rational view of the evidence supported the requested
misdemeanor jury instructions, and the trial court erred in considering only defendant’s theory of
the case instead of analyzing whether the misdemeanor jury instructions were supported by a
rational view of the evidence. Initially, we note that read in context, although the trial court
focused on defendant’s theories of the case, the trial court was essentially stating that the
requested misdemeanor jury instructions were not supported by a rational view of the evidence.
This is evident by the fact that the trial court quoted Steele immediately before commenting on
defendant’s theories.
Both of the offenses for which defendant requested instructions require a finding that
defendant intentionally pointed a gun without intending to threaten or harm anyone. See CJI2d
11.23 and CJI2d 11.24. The state trooper testified that defendant, while running away, raised his
gun and fired at him twice. In addition, the trooper testified that defendant continued to point the
gun at him after firing twice. Defendant testified “the gun was in his pocket the entire time.” If
the jury believed the state trooper, it could only conclude that defendant pointed the gun with the
intent to harm the trooper. If the jury believed defendant, it could only conclude that defendant
did not point the gun. There was no evidence from which the jury could conclude that defendant
-4-
pointed the gun without the intent to harm or threaten someone. Therefore, the misdemeanor
jury instructions for intentionally pointing a firearm without malice and discharge of a firearm
while intentionally aimed without malice were not supported by a rational view of the evidence.
As a result, the trial court properly declined to give the instructions and did not abuse its
discretion.
Further, even if the trial court had erred in refusing to give the misdemeanor jury
instructions, the error would have been harmless. Failure to instruct on requested misdemeanor
jury instructions is harmless if the jury rejects the least serious offense charged and convicts of a
greater offense. People v Beach, 429 Mich 450, 494; 418 NW2d 861 (1988); People v Taylor,
195 Mich App 57, 63; 489 NW2d 99 (1992). In the instant case, the jury rejected reckless use of
a firearm and convicted defendant of assault with intent to do great bodily harm less than
murder. Therefore, any error in failing to instruct on the misdemeanor offenses of intentionally
pointing a firearm without malice and discharge of a firearm while intentionally aimed without
malice was harmless.
Affirmed.
/s/ Harold Hood
/s/ William B. Murphy
/s/ Jane E. Markey
-5-
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.
