People of Michigan v. Robert Arthur Johnson Jr ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 28, 2020
Plaintiff-Appellee,
v No. 343882
Ontonagon Circuit Court
ROBERT ARTHUR JOHNSON, JR., LC No. 2017-000069-FH
Defendant-Appellant.
Before: O’BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right his convictions by a jury of one count of resisting or
obstructing a police officer, MCL 750.81d(1), and one count of allowing a dog to stray off-leash,
MCL 287.262. Defendant was sentenced to 12 months in jail for the resisting or obstructing a
police officer charge and three months in jail for the stray-dog charge. We affirm.
I. PERTINENT FACTS
This case arose out of an incident on August 31, 2017, involving a stray dog. On August
31, 2017, Deputy Emily Rady, of the Ontonagon County Sheriff’s Department, was dispatched
to a local clinic following two separate incidents involving a dog at large. Following her review
of surveillance video and interviews with clinic staff, Rady searched for the dog and found the
dog on defendant’s front porch. When Rady inquired about the dog’s ownership, defendant
responded that “the dog is a free spirit, and you can’t own a spirit.” Rady explained to defendant
that if the dog was not owned and was not registered, it would be considered a stray and would
be taken to the local animal shelter. Defendant told Rady, “Go ahead. Take it.”
However, as Rady was leading the dog back to her vehicle, defendant instructed his
children to get the dog, but Rady explained to them that she needed to take the dog for a ride.
Defendant also attempted to call the dog into the house. However, Rady had picked the dog up
in her arms, so defendant attempted to physically remove the dog from Rady’s arms. The exact
nature of defendant’s actions is disputed, but some witnesses testified that defendant swung his
arms at Rady, and it is not disputed that defendant physically touched the dog. In any event,
defendant’s conduct caused the dog to jump away. Rady pulled out her Taser, but she did not
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actually deploy it; eventually, she took defendant into custody for assaulting or resisting an
officer. Thereafter, while Rady waited for defendant’s wife to arrive home to watch the children,
defendant yelled and kicked at the windows inside the patrol vehicle.
Defendant chose to represent himself at trial; however, he was appointed standby
counsel. During a two-day trial, several witnesses testified concerning these events. The
gravamen of defendant’s theory of the case was that Rady had acted unlawfully by entering his
property and attempting to take the dog, so he was entitled to resist Rady’s allegedly unlawful
conduct. Following the prosecution’s case-in-chief, defendant moved for a directed verdict,
arguing that the witness testimony was inconsistent and that Rady was not acting lawfully within
her duties at the time of the incident. The trial court denied defendant’s motion, and the jury
ultimately found defendant guilty of both resisting or obstructing a police officer and allowing a
dog to stray off-leash.
II. JURY INSTRUCTIONS
Defendant argues that he is entitled to a new trial because the jury was not properly
instructed on the elements of the crimes of which he was convicted. We disagree.
A. STANDARD OF REVIEW
A trial judge must instruct the jury as to the applicable law. People v McGhee, 268 Mich
App 600, 606; 709 NW2d 595 (2005). A trial court may give additional instructions on the
applicable law not covered by the model instructions as it deems necessary so long as the
instructions are “concise, understandable, conversational, unslanted, and nonargumentative.”
MCR 2.512(D)(4). Jury instructions are to be read as a whole rather than extracted piecemeal to
establish error. People v Kowalski, 489 Mich. 488, 501; 803 NW2d 200 (2011). The instructions
must include all of the elements of the crime charged and any material issues, defenses, and
theories for which there is evidence in support. McGhee, 268 Mich. App. at 606. No error results
from the omission of an instruction if the instructions as a whole covered the substance of the
omitted instruction. People v Kurr, 253 Mich. App. 317, 327; 654 NW2d 651 (2002).
Furthermore, failure to object to jury instructions limits our review to plain error affecting
substantial rights. MCL 768.29; People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
An explicit approval of an instruction constitutes waiver, Kowalski, 489 Mich. at 503, and a
defendant who waives an instructional issue cannot obtain appellate review. People v Hall (On
Remand), 256 Mich. App. 674, 679; 671 NW2d 545 (2003).
B. RESISTING AND OBSTRUCTING
The elements of resisting or obstructing a police officer require the prosecution to prove:
“(1) the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a
police officer, and (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.” People v Vandenberg, 307 Mich. App. 57, 68; 859
NW2d 229 (2014) (quotation marks and citation omitted). In addition, the prosecution must also
show that “the officers’ actions were lawful.” Id. at 68 (quotation omitted). Because the
lawfulness of the officer’s actions is an element of the offense, that lawfulness must be presented
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as a factual question for the jury. Id. at 68-69; see also People v Moreno, 491 Mich. 38; 814
NW2d 624 (2012). Defendant argues that the jury was not properly instructed regarding the
lawfulness of Rady’s actions, because the jury was not specifically instructed that Rady allegedly
lacked legal authority to seize defendant’s dog.
Initially, defendant waived this issue by stipulating1 that the jury should be instructed that
Rady must have been “acting lawfully in the performance of her duties at the time of the charged
crime.” Expressing affirmative approval of an instruction constitutes a waiver. Kowalski, 489
Mich. at 503. Furthermore, the trial court unambiguously did instruct the jury that it had to find
beyond a reasonable doubt that Rady was acting lawfully before they could find that defendant
obstructed a police officer. The jury instructions completely and correctly instructed the jury as
to all elements of resisting or obstructing a police officer.
Defendant apparently contends that the above instructions were insufficient because the
jury was not instructed that Rady was acting illegally. Defendant argues that the Dog Law of
1919, 287.261 et seq., does not authorize law enforcement officers to remove dogs from their
owners.2 We disagree.
Pursuant to MCL 287.308, it is illegal for a person to take a registered dog without lawful
authority, and it is illegal for a person to harbor “any stray dog of which he is not the owner” for
more than 48 hours without reporting the dog to the sheriff or police department. Pursuant to
MCL 287.262, it is unlawful for the owner of a dog to permit the dog to stray, and it is unlawful
to own a dog aged 6 months or older without licensing the dog. Pursuant to MCL 287.277, “[a]
dog required to be licensed under this act that is unlicensed is a public nuisance.” Furthermore,
violation of the dog law is a misdemeanor. MCL 287.286. Defendant is simply misplaced in
arguing that the dog law does not explicitly state, in literally so many words, that an officer is
authorized to seize an unlicensed or unleashed dog. The dog law grants counties the authority to
enforce its provisions, and counties are therefore implicitly granted by Const 1963, art 7, § 34 the
necessary power to carry out that enforcement. Youngblood v Jackson Co, 28 Mich. App. 361,
364-365; 184 NW2d 290 (1970).3 We are aware of no dispute that the dog was older than 6
1
At the time of defendant’s trial, M Crim JI 13.1 had not yet been amended to specifically
require the jury to be instructed that the officer was acting lawfully.
2
We question whether defendant may challenge the seizure of the dog in light of his statement
that the dog had no owner and Rady’s inability to formally establish defendant’s ownership of
the dog at the scene. However, because it does not appear that Rady ever seriously doubted that
defendant did own the dog, we will presume for purposes of resolving this appeal that defendant
may challenge the legality of Rady’s seizure of the dog.
3
Because Youngblood was decided before November 1, 1990, it is not binding on us pursuant to
the “first-out rule.” MCR 7.215(J)(1). However, as a published opinion, it “has precedential
effect under the rule of stare decisis.” MCR 7.215(C)(2).
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months and was not licensed. Investigating a possible misdemeanor and abating a public
nuisance are both generally within law enforcement officers’ powers.4
Defendant is incorrect in asserting that it was unlawful for Rady to investigate a
complaint of a menacing stray dog and seize a dog that was either unlicensed, unowned, or both.
Even if defendant had not waived any claim of instructional error, he would not have been
entitled to an instruction that Rady was acting unlawfully. A defendant
is not entitled of right to put an argument into the instructions; that must be left to
counsel. Neither is he entitled of right to have from the judge any comment upon
the evidence, or any pointing out of the weak points in the case of the State, so far
as they involve questions of fact and not of law. All that can be demanded is,
correct instructions on the legal points and no incorrect or unfair comments upon
or presentation of the evidence. [People v Crawford, 48 Mich. 498, 501; 12 N.W.
673 (1882).
Thus, defendant would not have been entitled to a jury instruction regarding a theory
unsupported by the law or by the evidence. See People v Rodriguez, 463 Mich. 466, 472-473;
620 NW2d 13 (2000).5
C. STRAY DOG
Defendant also argues that the jury should have received additional instructions regarding
a mens rea for the stray-dog offense. Defendant does not propose any specific instructional
language. Rather, he argues that by inference from the dangerous animals act, MCL 287.321 et
seq., the stray dog statute should not be construed as a strict-liability offense. See People v
Janes, 302 Mich. App. 34, 43-52; 836 NW2d 883 (2013) (holding that although MCL 287.323
lacked specific language setting forth a mens rea requirement, the Legislature implicitly required
notice that an animal was dangerous before the animal’s owner could be held criminally liable
for harm caused by the animal). We agree in part, but we disagree with defendant’s conclusion.
MCL 287.262 states in full:
It shall be unlawful for any person to own any dog 6 months old or over,
unless the dog is licensed as hereinafter provided, or to own any dog 6 months old
or over that does not at all times wear a collar with a tag approved by the director
of agriculture, attached as hereinafter provided, except when engaged in lawful
4
Additionally, Rady testified that she intended to transport the dog to the local shelter because
its owner could not be determined. An animal control shelter is the place “for the impoundment
and care of animals that are found in the streets or at large, [or] animals that are otherwise held
due to the violation of a municipal ordinance or state law.” MCL 287.331(f).
5
Defendant was permitted to argue to the jury during closing argument that he had a common-
law right to resist an unlawful act and that Rady had no lawful reason or authority to be on his
property.
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hunting accompanied by its owner or custodian; or for any owner of any female
dog to permit the female dog to go beyond the premises of such owner when she
is in heat, unless the female dog is held properly in leash; or for any person except
the owner or authorized agent, to remove any license tag from a dog; or for any
owner to allow any dog, except working dogs such as leader dogs, guard dogs,
farm dogs, hunting dogs, and other such dogs, when accompanied by their owner
or his authorized agent, while actively engaged in activities for which such dogs
are trained, to stray unless held properly in leash. [Emphases added.]
We agree that the words “permit” and “allow” in the statute suggest that the Legislature did not
intend to punish conduct that was involuntary or otherwise beyond a person’s ability to control.
Thus, MCL 287.262 is indeed not a true strict-liability offense. However, those words only
establish a general-intent crime, not a specific-intent crime. We find nothing in the statute or the
dog law suggesting that the Legislature intended to require “a particular criminal intent beyond
the act done,” as opposed to “merely the intent to do the physical act.” People v Nowack, 462
Mich. 392, 405-406; 614 NW2d 78 (2000) (quotation omitted).
In accordance with the statute, the trial court instructed the jury that the offense required
a finding that defendant owned the dog in question and “allowed the dog to stray while not being
properly held in leash.” Defendant has not identified, and we cannot find, any additional mens
rea requirement in the statute. Accordingly, defendant has not shown that the trial court plainly
erred by failing to provide additional instructions regarding mens rea.
III. SUFFICIENCY OF THE EVIDENCE
Defendant further argues that the prosecution failed to present sufficient evidence to
support his convictions. We disagree.
A. STANDARD OF REVIEW
“This Court reviews de novo [a] defendant’s challenge to the sufficiency of the
evidence.” People v Meissner, 294 Mich. App. 438, 452; 812 NW2d 37 (2011). “This Court
reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of
fact could find the essential elements of the crime were proven beyond a reasonable doubt.”
People v Reese, 491 Mich. 127, 139; 815 NW2d 85 (2012) (quotation omitted). In reviewing the
sufficiency of the evidence, this Court must not interfere with the jury’s role as the trier of fact.
People v Hardiman, 466 Mich. 417, 431; 646 NW2d 158 (2002). Questions of law are reviewed
de novo. People v Lockett, 295 Mich. App. 165, 174; 814 NW2d 295 (2012).
B. ANALYSIS
In order to prove that defendant committed the charge of resisting or obstructing, the
prosecutor had to demonstrate that defendant “assaulted, battered, wounded, resisted, obstructed,
opposed, or endangered Rady, a sheriff’s deputy.” The prosecution was also required to show
that defendant knew or had reason to know that the person he assaulted, battered, wounded,
resisted, obstructed, opposed, or endangered was a sheriff’s deputy performing her duties at the
time; and lastly that Rady was acting lawfully in the performance of her duties at the time of the
charged crime.
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In his brief on appeal, defendant expressly disclaims any challenge to the first element.
Furthermore, defendant implicitly concedes that he was aware that Rady was a law enforcement
officer who technically was performing her duties, albeit allegedly illegally. We therefore need
not discuss the ample evidence supporting the jury’s verdict as to the first two elements of
resisting or obstructing. As discussed, the gravamen of defendant’s argument is that Rady was
acting unlawfully at all times. As also discussed, defendant is incorrect in arguing that Rady was
necessarily acting unlawfully per se by investigating the dog complaint and seizing an unowned
or unlicensed dog. Whether Rady’s specific conduct was actually proper turns significantly on
an assessment of the relative credibilities of Rady, defendant, and the other witnesses. It is the
jury’s role to evaluate witnesses credibilities and resolve conflicts in the evidence. Hardiman,
466 Mich. at 431; Nichol v Billot, 406 Mich. 284, 301-302; 279 NW2d 761 (1979); People v
Howard, 50 Mich. 239, 242-243; 15 N.W. 101 (1883). The jury apparently chose to believe Rady,
and we disagree with defendant’s implicit contention that her testimony was so intrinsically
improbable or impossible that we should interfere with the jury’s role. See People v Lemmon,
456 Mich. 625, 643-646; 576 NW2d 129 (1998).
Additionally, the evidence at trial supports the jury’s conclusion that defendant was
guilty of allowing his dog to run astray. Rady and other witnesses testified that the dog wore no
license or tag, was not on a leash, and had run to the clinic where it chased patients outside the
clinic. This testimony was further supported by a video that was played for the jury. Rady also
testified that this was not the first report the department had received in regard to this dog.
Moreover, unlike at the time of the offense, defendant openly claimed the dog as his during trial.
This evidence was sufficient to support a conclusion that defendant owned the dog involved and
that defendant allowed the dog to stray while not being properly held in leash. MCL 287.262.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL AND PROSECUTORIAL MISCONDUCT
Defendant argues that both the prosecuting attorney and defendant’s standby counsel
failed to ensure that the jury was instructed about whether Rady had the authority to take the dog,
and this failure prejudiced defendant by depriving him of a fair trial. We disagree.
Defendant represented himself at trial, after the trial court properly established that
defendant knowingly and intelligently waived his right to counsel. See People v Williams, 470
Mich. 634, 641-647; 683 NW2d 597 (2004). To the extent defendant’s own representation of
himself proved ineffective, defendant has no recourse and simply must accept the consequences.
People v Kevorkian, 248 Mich. App. 373, 419; 639 NW2d 291 (2001). Defendant asserts that his
standby counsel was ineffective for failing to ensure that the jury was properly instructed.
However, we have not been cited any point in the record where defendant turned his
representation over to standby counsel, nor have we found any. A defendant is not entitled to
“hybrid” or dual representation, and does not even have a true right to standby counsel, even if
standby counsel is generally appointed. Id. at 419-427; People v Hicks, 259 Mich. App. 518, 526-
527; 675 NW2d 599 (2003). Unless defendant foregoes his right to self-representation and turns
his representation over to standby counsel, standby counsel is not actually defendant’s attorney,
and therefore is not providing any assistance that can be either effective or ineffective.
Kevorkian, 248 Mich. App. at 424-427. In any event, as discussed above, the jury was properly
instructed, so even if standby counsel could conceivably be ineffective, defendant has not
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overcome the presumption that standby counsel’s representation was effective. See People v
Mack, 265 Mich. App. 122, 129; 695 NW2d 342 (2005).
“[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich. App. 58, 63; 732 NW2d 546 (2007). Defendant does
not assert any specific instances of alleged misconduct by the prosecutor. Rather, defendant
asserts that the prosecutor failed to comply with his duty to ensure a fair trial by failing to ensure
the jury was instructed about whether Rady had the authority to take the dog. However, as
discussed above, the jury was properly instructed on each of the required elements of the charged
crimes. Further, because we conclude that Rady was acting lawfully in the performance of her
duties, defendant cannot establish plain error by the prosecutor.
V. SENTENCING CHALLENGES
We recognize that defendant has presented several challenges to his sentences. However,
because defendant has already served his sentences in their entirety, we cannot grant any relief,
so his sentencing challenges are moot. See People v Rutherford, 208 Mich. App. 198, 204; 526
NW2d 620 (1994). This Court will generally not substantively address issues that are moot. See
People v Richmond, 486 Mich. 29, 34-37; 782 NW2d 187 (2010). We therefore decline to
address defendant’s sentencing challenges.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Amy Ronayne Krause
/s/ /Michael F. Gadola
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