People of Michigan v. James Patrick Dargis ( 2016 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
    September 15, 2016
    Plaintiff-Appellee,
    v                                                                  No. 327166
    Macomb Circuit Court
    PATRICK JAMES DARGIS,                                              LC No. 2014-002455-FH
    Defendant-Appellant.
    Before: CAVANAGH, P.J., and SAAD and FORT HOOD, JJ.
    PER CURIAM.
    Defendant appeals his jury trial conviction of resisting and obstructing a firefighter, MCL
    750.81d(1). Defendant was sentenced to serve 29 days in the Macomb County jail and 18
    months’ probation. We affirm.
    I. BASIC FACTS
    This appeal arises from an incident when the Sterling Heights Fire Department responded
    to a call about a potential fire at defendant’s home on March 28, 2014. On that day, there was a
    911 call from defendant’s neighbor who reported a possible fire and heavy smoke coming from
    defendant’s chimney. Bonnie DeMeyere was one of the first people to arrive at defendant’s
    home.1 DeMeyere was wearing her normal, full, fire gear. Upon arrival, DeMeyere saw “very
    heavy smoke” coming out of defendant’s chimney and “banking down” between defendant’s
    house and a neighbor’s. In fact, in her 25 years in the fire-fighting business, she had never seen
    that much smoke result from a “normal” fire in the fireplace. As DeMeyere walked toward the
    driveway of defendant’s home, defendant’s wife and child came outside, and the wife informed
    DeMeyere that the family was burning pallets in the fireplace and there was no problem. During
    the course of this conversation, additional fire vehicles arrived, making a total of four fire
    vehicles, all painted in the familiar fire-engine red color. DeMeyere then asked defendant’s wife
    1
    At the time of the incident, DeMeyere was a Captain Paramedic who was responsible for the
    fire station to which she was assigned. As of the date of trial, DeMeyere had been promoted to
    Battalion Chief.
    -1-
    if she could enter the home. Defendant’s wife agreed, but she stated that she had to secure the
    family cats so they would not escape when DeMeyere entered.
    After the wife went back into the house, DeMeyere turned and talked to another fire
    officer for about 30 seconds. DeMeyere then went up to defendant’s house, opened the storm
    door, and knocked on the partially closed steel door to be polite. The steel door then “flew
    open,” defendant pushed DeMeyere with one hand, and yelled, “[G]et the f**k . . . out of my
    house. There is no fire. Get off my property,” before slamming the steel door shut. DeMeyere
    described defendant as being very angry and said that the push was in her right shoulder area,
    which had enough force to make her turn and take a couple steps back. While DeMeyere and the
    other firefighters waited outside, the police arrived and entered defendant’s home. After police
    arrived and contained defendant, DeMeyere went inside the house to check on the fire.
    DeMeyere noted that the fire was much larger than what should occur in a fireplace. Flames
    were coming out of the fireplace, soot was forming on the interior wall above the fireplace, and
    smoke stains were evident on the ceiling. Although the fire was not extinguished by the fire
    department, the household was advised to take proper safety precautions. DeMeyere testified
    that she did not cite anyone for any violation of fire codes because that falls outside her job
    responsibilities.
    II. ANALYSIS
    Defendant argues that there was insufficient evidence to support his conviction. We
    disagree. This Court reviews a defendant’s challenge to the sufficiency of the evidence de novo.
    People v Bailey, 
    310 Mich. App. 703
    , 713; 873 NW2d 855 (2015). In determining whether the
    prosecutor has presented sufficient evidence to support a conviction, this Court must review the
    evidence in the light most favorable to the prosecution and determine “‘whether a rational trier of
    fact could find the defendant guilty beyond a reasonable doubt.’” People v Smith-Anthony, 
    494 Mich. 669
    , 676; 837 NW2d 415 (2013), quoting People v Tennyson, 
    487 Mich. 730
    , 735; 790
    NW2d 354 (2010). The standard of review for a challenge to the sufficiency of the evidence is
    deferential and this Court should “draw all reasonable inferences and make credibility choices in
    support of the jury verdict.” People v Nowack, 
    462 Mich. 392
    , 400; 614 NW2d 78 (2000).
    Defendant was convicted of violating MCL 750.81d(1), which provides as follows:
    Except as provided in subsections (2), (3), and (4), an individual who assaults,
    batters, wounds, resists, obstructs, opposes, or endangers a person who the
    individual knows or has reason to know is performing his or her duties is guilty of
    a felony punishable by imprisonment for not more than 2 years or a fine of not
    more than $2,000.00, or both.
    And according to MCL 750.81d(7)(b)(viii), a “person” includes a firefighter.
    Thus, to satisfy the elements of MCL 750.81d(1), the prosecution had to present evidence
    that defendant (1) “assaulted, battered, wounded, resisted, obstructed, opposed, or endangered”
    DeMeyere, and that defendant, (2) “knew or had reason to know that” DeMeyere was performing
    her duties. People v Corr, 
    287 Mich. App. 499
    , 503; 788 NW2d 860 (2010). The Michigan
    Supreme Court has held that the common-law right to resist unlawful officer conduct is not
    -2-
    abrogated by MCL 750.81d(1). People v Moreno, 
    491 Mich. 38
    , 57; 814 NW2d 624 (2012).
    Therefore, the prosecution is required to prove as a third element that the officer’s actions were
    lawful. 
    Id. at 52.
    On appeal, defendant claims that his conviction should be vacated because (1) MCL
    750.81d(1) is inapplicable, as DeMeyere was not acting as a firefighter, (2) the intent element of
    assault was absent, (3) any obstruction did not occur as defined by MCL.750.81d(7)(a) because
    no command was given by DeMeyere, and, (4) defendant was acting in self-defense in response
    to DeMeyere’s unlawful conduct.
    A.
    Defendant asserts that he cannot be guilty of resisting a firefighter because DeMeyere
    was not acting as a firefighter at the time of the incident. Instead, defendant claims that
    DeMeyere was acting as a “fire code inspector,” which is not covered under the statute. This
    argument is unavailing. Nothing in the record indicates that DeMeyere was acting as a fire code
    inspector. DeMeyere explicitly testified that she was not there to perform such duties and that
    she had no authority to do so, in any event. Because DeMeyere was a Captain Paramedic at the
    time of the incident and responded to a 911 call of a possible fire, the inescapable conclusion is
    that DeMeyere acted as a firefighter. Indeed, at the trial court, defense counsel indicated that
    taking a position to the contrary would be futile.
    Further, defendant had reason to know that DeMeyere was performing her duties as a
    firefighter. This Court has held that the knowledge element requires actual, constructive,
    implied, or imputed knowledge. People v Nichols, 
    262 Mich. App. 408
    , 414; 686 NW2d 502
    (2004). In this case, the knowledge requirement of MCL 750.81d(1) was met where defendant
    had “reasonable cause to believe” that DeMeyere was performing her duties. 
    Id. While defendant
    asserts that he did not have actual knowledge that DeMeyere was entering his home to
    check for a fire, given the facts that DeMeyere was called in response to a potential fire, was in
    her full fire-gear uniform, was accompanied by multiple officers and fire department vehicles,
    and was attempting to enter the home to ensure that the area was safe, there is sufficient evidence
    to support the jury’s conclusion that defendant ought to have had knowledge that DeMeyere was
    performing her duties as a firefighter. Moreover, defendant yelling at DeMeyere that “There is
    no fire,” before pushing her away, also demonstrates that he knew exactly why she was
    present—to investigate a possible fire in the course of her duties as a firefighter.
    B.
    Though defendant claims that he did not touch DeMeyere, and even if he did, it was
    “incidental to shutting the door” and not intentionally done to commit an assault, the record
    evidence showed that defendant battered DeMeyere.2
    2
    Under MCL 750.81d(1), a defendant is guilty if he “assaults, batters, wounds, resists, obstructs,
    opposes, or endangers” a firefighter. (Emphasis added.) Notably, the disjunctive use of the
    -3-
    This Court has applied the traditional, common-law definition of battery to MCL
    750.81d(1), which is “[t]he wilful and harmful or offensive touching of another person which
    results from an act intended to cause such a contact.” People v Morris, ___ Mich App ___; ___
    NW2d ___ (Docket No. 323762, issued February 11, 2016), slip op, p 6 (quotation marks and
    citation omitted). Although defendant argues that any touching was incidental to his closing the
    door to his home, and thereby accidental, this assertion contradicts the record evidence.
    DeMeyere testified that defendant first quickly opened the door, then pushed her with one hand
    while angrily yelling, “[G]et the f**k . . . out of my house. There is no fire. Get off my
    property.”3 Only then did defendant slam the door shut. Hence, a jury could reasonably
    conclude that the pushing was not incidental to the door closing but instead was an independent
    act that was merely done before the door was shut. Surely, with defendant opening the door
    initially, one could conclude that defendant opened it just so he could yell at and push DeMeyere
    away. Further, a reasonable jury could easily conclude that, given defendant’s aggressive and
    vulgar tone that accompanied the push, the contact was indeed intentional and intended to be
    “harmful or offensive.” Therefore, there was sufficient evidence to allow a jury to conclude
    beyond a reasonable doubt that defendant battered DeMeyere.
    Defendant also contends that he did not “obstruct” DeMeyere under the statute because
    she did not give defendant a command, and therefore, he could not have failed to comply with a
    command. MCL 750.81d(7)(a) provides that “‘Obstruct’ includes the use or threatened use of
    physical interference or force or a knowing failure to comply with a lawful command.”
    However, as 
    discussed supra
    , in order for a defendant to be guilty of violating MCL 750.81d(1),
    only one of the enumerated acts needs to be proven—not all of them. Therefore, while the fact
    that DeMeyere never gave any commands to defendant would be relevant in determining
    whether defendant failed to comply with a lawful command, this fact is wholly irrelevant
    regarding whether defendant battered her.
    C. SELF-DEFENSE
    In an unclear argument, defendant appears to contend that the force used against
    DeMeyere was lawful self-defense against unlawful officer conduct. In his brief on appeal,
    defendant cites Moreno, where the Michigan Supreme Court held the enactment of MCL
    750.81d(1) did not abrogate the common-law right to resist illegal police conduct. 
    Moreno, 491 Mich. at 57
    . However, defendant does not present a well-developed legal argument of how
    Moreno is applicable in this case. Instead, defendant merely avers that “DeMeyere did not have
    the constitutional authority to enter [defendant’s] home, without presenting her credentials and
    asking for entry.” However, assuming arguendo that DeMeyere did need permission to enter the
    word “or” means that defendant need only perform one of the listed actions in order to violate
    the statute.
    3
    Defendant avers that DeMeyere’s testimony is insufficient to prove that he battered her because
    “there is only her word.” He seems to rely on the premise that the still photographs from the
    security system introduced at trial do not definitively show the push. But in reviewing a
    sufficiency of the evidence claim, this Court is to resolve all conflicts in the evidence in favor of
    the prosecution. People v Kanaan, 
    278 Mich. App. 594
    , 619; 751 NW2d 57 (2008). Thus,
    DeMeyere’s testimony is indeed sufficient to establish that defendant pushed her.
    -4-
    house, defendant fails to recognize that the evidence indicates that defendant’s wife gave
    DeMeyere permission. When DeMeyere initially arrived at the scene, defendant’s wife came out
    of the house and the two talked. During this discussion, the wife mentioned that there was “no
    fire,” as they were just burning pallets in the fireplace. When DeMeyere asked if she could go
    inside to look, the wife said yes but wanted to safeguard her cats so they would not escape. After
    approximately 30 seconds lapsed, DeMeyere then knocked on the partially open front door and
    before she could say or do anything else, defendant swung the door open, pushed DeMeyere
    back, yelled at her, and slammed the door shut. Although not dispositive (because of the
    permission that was given), it is notable that DeMeyere testified that she never took a step into
    the house. Looking at the evidence in a light most favorable to the prosecution shows that
    DeMeyere had permission to be where she was when defendant struck her. Hence, defendant’s
    reliance on the principle of law enunciated in Moreno is fallacious.
    Affirmed.
    /s/ Mark J. Cavanagh
    /s/ Henry William Saad
    /s/ Karen M. Fort Hood
    -5-
    

Document Info

Docket Number: 327166

Filed Date: 9/15/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021