20221229_C359800_38_359800.Opn.Pdf ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 29, 2022
Plaintiff-Appellee,
v No. 359800
Calhoun Circuit Court
NOBLE DAVID VATER II, LC No. 2020-000008-FH
Defendant-Appellant.
Before: CAVANAGH, P.J., and K. F. KELLY and GARRETT, JJ.
PER CURIAM.
A jury convicted defendant, Noble David Vater II, of two counts of resisting and
obstructing a police officer, MCL 750.81d(1), and one count of assault and battery, MCL
750.81(1). Vater’s sentence included court costs. Vater seeks reversal of his convictions and
vacatur of the court costs, arguing that the trial court improperly instructed the jury, that
insufficient evidence supported his resisting and obstructing convictions, and that the statute
authorizing court costs is unconstitutional. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
This case stems from Vater’s arrest in Calhoun Circuit Court Judge Brian Kirkham’s
courtroom. Vater had a child custody case before Judge Kirkham and was upset with how Judge
Kirkham was handling the case. Vater sat in Judge Kirkham’s courtroom over a two-week period
observing various proceedings, although he did not have a case on the docket during that time. On
December 9, 2019, at the conclusion of the morning docket, Vater approached the bench as Judge
Kirkham was exiting the courtroom. Judge Kirkham’s bailiff, Officer Crystal Watson, was still
present. Additionally, a Friend of the Court employee, Jeffrey Chapman, was standing at the
podium after finishing arraignments. Vater stood up and walked through the swinging doors into
the area limited to authorized personnel, stating that he needed to speak with the judge.
Officer Watson placed her body between the judge and Vater, telling Vater that he could
not follow the judge into chambers. Vater continued to repeat that he needed to speak with the
judge, while Officer Watson continued to refuse him access. Officer Watson then told Vater that
he needed to leave. Chapman did the same. Vater refused to leave, called Officer Watson and
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Chapman liars, and continued to demand to speak with the judge. Christy Woodard, judicial clerk
to Judge Kirkham, was sent into the courtroom by the judge to check on the bailiff because the
judge heard a conflict. Woodard entered the courtroom and observed Vater two feet in front of
Officer Watson, yelling at her. Woodard also told Vater that he needed to leave. Vater did not
comply, so Woodard and Officer Watson called for security.
Deputy Matthew Hartig, Corrections Deputy for the Calhoun County Sheriff’s Office,
responded to the call for assistance within about two minutes. He observed Vater in a verbal
confrontation with Woodard and Officer Watson. Deputy Hartig asked Woodard and Officer
Watson if Vater needed to leave. Both confirmed that he did need to leave and that he had
attempted to get past them to chambers. Deputy Hartig directed Vater to turn around and place his
hands behind his back. Vater responded, “no, sir,” and attempted to step toward the chambers
door. Deputy Hartig took control of Vater’s arm, but Vater was pulling away from him and fell
on top of Deputy Hartig on the floor. Deputy Hartig called out for assistance.
Chapman tried to intervene by pulling Vater off Deputy Hartig. Vater bit Chapman on the
right arm. Chapman and Deputy Hartig could not gain control of Vater. Deputy Teddy Warden,
employed by the Calhoun County Sheriff’s Office as court security, arrived to see Chapman and
Deputy Hartig “tussling” with Vater on the floor. Deputies Warden and Hartig gave loud verbal
commands to Vater to stop resisting, and Deputy Warden tried to take control of Vater’s left arm.
Vater continued to resist, keeping his arms tucked under his chest. Deputy Hartig warned Vater
that if he did not comply he would be tased. Vater refused to comply, and Deputy Hartig tased
him. Vater continued to struggle with the officers after he was tased.
Lieutenant Matthew Gault, who at that time was working as a transport sergeant for the
Calhoun County Sheriff’s Office, arrived after Vater was tased. Lieutenant Gault observed the
officers and Chapman struggling with Vater. He also observed Vater ignore the officers’
commands and continue to struggle. Lieutenant Gault delivered two brachial plexus stuns to
Vater’s neck that were meant to secure control of Vater. Simultaneously, Deputy Hartig delivered
a second Taser stun to Vater. Vater finally complied with the officers’ commands and was
handcuffed. Lieutenant Gault interviewed Vater after he was transported to jail. Vater admitted
that his intention was to confront Judge Kirkham and that he was attempting to step around Officer
Watson to access the judge’s chambers.
At trial, the prosecution presented testimony from the relevant witnesses and played
courtroom video of the incident for the jury. The jury acquitted Vater of one count of resisting
and obstructing as to Lieutenant Gault, but convicted him of two counts of resisting and obstructing
as to Deputy Hartig and Deputy Warden. He was also convicted of one count of assault and battery
on Chapman. The trial court sentenced Vater to 18 months’ probation and imposed court costs of
$440. Vater now appeals as of right.
II. JURY INSTRUCTIONS
First, Vater argues that the trial court failed to properly instruct the jury by omitting an
element of the resisting and obstructing charge. “A criminal defendant has a constitutional right
to have a jury determine his or her guilt from its consideration of every essential element of the
charged offense.” People v Kowalski, 489 Mich 488, 501; 803 NW2d 200 (2011). Thus, “[j]ury
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instructions must include all the elements of the charged offense, and must not exclude material
issues, defenses, or theories if the evidence supports them.” People v Kosik, 303 Mich App 146,
155; 841 NW2d 906 (2013). The elements for resisting and obstructing are (1) “the defendant
assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a police officer,”
(2) “the defendant knew or had reason to know that the person that the defendant assaulted,
battered, wounded, resisted, obstructed, opposed, or endangered was a police officer performing
his or her duties,” and (3) that the officer’s actions were lawful. People v Quinn, 305 Mich App
484, 491-492; 853 NW2d 383 (2014) (quotation marks and citation omitted). For the third
element, the prosecution must prove beyond a reasonable doubt that the officer “gave the defendant
a lawful command, was making a lawful arrest, or was otherwise performing a lawful act.” M
Crim JI 13.1. The trial omitted this third element of the resisting and obstructing offense during
each reading of its instructions to the jury.
Vater, however, waived any claim of instructional error. Waiver is distinct from forfeiture.
Waiver is “the intentional relinquishment or abandonment of a known right,” whereas “forfeiture
is the “failure to make the timely assertion of a right.” People v Carter, 462 Mich 206, 215; 612
NW2d 144 (2000) (quotation marks and citations omitted). A defendant “who waives his rights
under a rule may not then seek appellate review of a claimed deprivation of those rights, for his
waiver has extinguished any error.” Id. (quotation marks and citations omitted). This Court has
“consistently held that an affirmative statement that there are no objections to the jury instructions
constitutes express approval of the instructions, thereby waiving review of any error on appeal.”
People v Kowalski, 489 Mich 488, 505 n 28; 803 NW2d 200 (2011). Put differently, “[w]hen the
trial court asks whether a party has any objections to the jury instructions and the party responds
negatively, it is an affirmative approval of the trial court’s instructions.” People v Miller, 326
Mich App 719, 726; 929 NW2d 821 (2019). “The failure to object, on the other hand, qualifies as
forfeiture and is reviewable for plain error.” People v Hershey, 303 Mich App 330, 349; 844
NW2d 127 (2013).
Before voir dire, the trial court gave the erroneous resisting-and-obstructing instruction to
the jury. When asked by the trial court before and after jury selection whether he had any
corrections or objections to the instructions, Vater responded, “None that I see, your Honor,” and
“No, your Honor.”1 After the close of proofs, the trial court provided both parties with printouts
of the proposed final jury instructions. The court asked Vater before and after reading the final
instructions to the jury whether he had any objections, and both times he stated, “No, your Honor.”
These statements constituted clear and affirmative satisfaction with the trial court’s instructions.
Consequently, “by expressly and repeatedly approving the jury instructions on the record,
1
Vater inaccurately suggests he did not waive the error that occurred during opening instructions
because he merely failed to object. The record shows that he affirmatively approved of the
instructions.
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defendant waived any objection to the erroneous instructions, and there is no error to review.”
Kowalski, 489 Mich at 504.2
III. SUFFICIENCY OF THE EVIDENCE
Next, Vater argues that there was insufficient evidence to support his resisting and
obstructing convictions because the prosecution failed to prove that the officers’ actions were
lawful. We review claims of insufficient evidence de novo. People v Kanaan, 278 Mich App 594,
618; 751 NW2d 57 (2008). That means “we review the issues independently, with no required
deference to the trial court.” People v Beck, 504 Mich 605, 618; 939 NW2d 213 (2019). Due
process requires the prosecutor to introduce evidence sufficient for a trier of fact to find the
defendant guilty beyond a reasonable doubt. Jackson v Virginia, 443 US 307, 318; 99 S Ct 2781;
61 L Ed 2d 560 (1979); People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). When
reviewing a sufficiency of the evidence claim, the question is “whether, after viewing the evidence
in a light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 US at 319. Circumstantial
evidence and the reasonable inferences that arise from the evidence can constitute satisfactory
proof of the elements of the crime. See People v Carines, 460 Mich 750, 757; 597 NW2d 130(1999). The reviewing court “must defer to the fact-finder’s role in determining the weight of the
evidence and the credibility of the witnesses and must resolve conflicts in the evidence in favor of
the prosecution.” People v Savage, 327 Mich App 604, 614-615; 935 NW2d 69 (2019) (quotation
marks and citation omitted).
As stated, the prosecution had the burden to prove beyond a reasonable doubt that Deputies
Hartig and Warden gave Vater a lawful command, were making a lawful arrest, or were otherwise
performing a lawful act. See M Crim JI 13.1. The evidence at trial, when viewed in a light most
favorable to the prosecution, established that Deputies Hartig and Warden were acting within the
scope of their duties and gave Vater lawful commands. Upon arriving in the courtroom, Deputy
Hartig observed Vater arguing with court staff. Deputy Hartig asked Woodard and Officer Watson
if Vater needed to leave, and they confirmed that Vater needed to leave and that he was trying to
get past staff to confront the judge. At that point, Deputy Hartig instructed Vater to turn around
and place his hands behind his back. Vater refused, tried to step toward the chambers door, and
pulled away from Deputy Hartig as he tried to grab Vater’s arm.
Viewed in a light most favorable to the prosecution, there was sufficient evidence that
Deputy Hartig made the initial decision to arrest because of the threat to Judge Kirkham and his
2
We recognize that the cited cases involved an express approval of jury instructions by the
defendant’s counsel, and that here, Vater represented himself. Vater does not argue that a different
waiver standard should apply in this context for self-represented defendants, and thus for purposes
of this opinion, we assume without deciding that the same waiver rule applies. That said, we note
that the trial court warned Vater of the risks of self-representation—as it was required to do—
when inquiring into Vater’s waiver of his right to counsel. See MCR 6.005(D)(1); People v
Anderson, 398 Mich 361, 368; 247 NW2d 857 (1976). The court also advised Vater before trial
that it was going to “hold [him] to the same standard as [it] would a lawyer,” to which Vater
responded, “I understand that.”
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staff and because Vater refused to comply with Deputy Hartig’s lawful command. See People v
Champion, 452 Mich 92, 115; 549 NW2d 849 (1996) (“Probable cause to arrest exists where the
facts and circumstances within an officer’s knowledge and of which he has reasonably trustworthy
information are sufficient in themselves to warrant a man of reasonable caution in the belief that
an offense has been or is being committed.”). Deputy Hartig received information from court staff
that Vater was attempting to reach Judge Kirkham and that he refused to leave. Deputy Hartig
also observed Vater in a verbal confrontation with court staff. Deputy Hartig performed his legal
duty to protect the judge and court staff by giving Vater the lawful instruction to place his arms
behind his back when he refused to leave the courtroom. Vater affirmatively refused to comply
and actively resisted Deputy Hartig’s efforts to arrest him. Accordingly, a rational fact-finder
could conclude beyond a reasonable doubt that Deputy Hartig “gave the defendant a lawful
command, was making a lawful arrest, or was otherwise performing a lawful act.” M Crim JI 13.1.
There was also sufficient evidence to support the resisting and obstructing conviction
involving Deputy Warden. Deputy Warden entered the courtroom after the struggle between
Chapman, Deputy Hartig, and Vater ensued. He observed Vater physically struggling with Deputy
Hartig and Chapman on the ground. Deputy Warden gave Vater loud verbal commands to stop
resisting and tried to take control of one of Vater’s arms. Vater did not comply with these
commands. Again, the evidence at trial establishes that a reasonable trier-of-fact could find
sufficient evidence that Vater resisted a lawful command of Deputy Warden. Viewed in the light
most favorable to the prosecution, the evidence was sufficient for the jury to conclude beyond a
reasonable doubt that Vater refused to obey lawful commands by Deputies Hartig and Warden.
Thus, Vater has not established that there was insufficient evidence to support his convictions.
IV. COURT COSTS
Finally, Vater argues that the assessment of $440 in court costs must be vacated because
the authorizing statute, MCL 769.1k(1)(b)(iii),3 violates due process and the separation of powers.
As Vater recognizes, however, this Court recently upheld the constitutionality of MCL
769.1k(1)(b)(iii) in People v Johnson, 336 Mich App 688; 971 NW2d 692 (2021), lv gtd 976
NW2d 862 (2022). We are bound by this decision under the rule of stare decisis. MCR
7.215(C)(2). And our Supreme Court’s “order granting leave to appeal does not diminish the
precedential effect of a published opinion of the Court of Appeals.” Id. Thus, Vater’s argument
is foreclosed by this Court’s holding in Johnson.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
/s/ Kristina Robinson Garrett
3
MCL 769.1k(1)(b)(iii) provides that following a guilty verdict, the trial court may impose “any
cost reasonably related to the actual costs incurred by the trial court without separately calculating
those costs involved in the particular case . . . .”
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