20231130_C362132_45_362132.Opn.Pdf ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 30, 2023
Plaintiff-Appellee,
v No. 362132
St. Clair Circuit Court
STEVEN JAMES HOCH, LC No. 20-000869-FH
21-002387-FH1
Defendant-Appellant.
Before: RIORDAN, P.J., and CAVANAGH and GARRETT, JJ.
PER CURIAM.
A jury convicted defendant, Steven James Hoch, of operating a motor vehicle while
intoxicated (OWI), third offense, MCL 257.625(1) and (9), operating a motor vehicle while license
suspended or revoked, MCL 257.904(1), and operating a motor vehicle without security, MCL
500.3102. Hoch argues that the traffic stop leading to his arrest was unlawful, so the trial court
erred by denying his motion to suppress. He also claims that the trial court should have instructed
the jury on the affirmative defenses of duress and necessity. Because the police had reasonable
suspicion derived from a reliable 911 call to stop Hoch’s vehicle, the motion to suppress was
properly denied. And because Hoch did not present evidence to support every element of duress
and necessity, the trial court did not err by refusing to instruct the jury on those defenses. We
affirm.
I. BACKGROUND
During the overnight hours of March 1, 2020, a bizarre series of events occurred in St.
Clair, Michigan that led to Hoch’s arrest and convictions on several driving-related offenses.
Around 2:15 a.m. that morning, Dawn Decker and her daughter, Bridgette Dano, were watching
1
Hoch’s charges were originally filed under lower court number 20-000869-FH. The charges
were later dismissed, and the prosecution refiled the charges under lower court number 21-002387-
FH.
-1-
television in Decker’s home on Clinton Avenue. They suddenly heard a “loud bang” from outside
in front of the house. When they looked outside, they saw Hoch standing outside of a dark-colored
vehicle. Dano believed the vehicle had hit and gone up the curb, as “the front end of [Hoch’s]
vehicle was in [the] front yard and then crossing over the driveway.” Decker went outside on the
porch and spoke to Hoch, who said he was fixing his car door. She also observed another man
walking up Clinton Avenue street toward Carney Drive. Decker told Hoch that the police had
been called and not to leave the scene.
Meanwhile, Dano had called 911 and provided real-time information to the operator about
her and Decker’s observations. Dano said that “somebody crash[ed] in [her] driveway.” She noted
that Hoch “ripped” the passenger-side door of the car off, while another man, later identified as
Michael Basman, took off on foot up Clinton Avenue toward Carney Drive. About halfway into
the call, Dano told the 911 operator that Hoch got the door back on, jumped into the vehicle, and
drove up Clinton Avenue in the same direction as the man who walked away. “He’s driving in the
middle of the road, you can’t really miss him,” she continued. Dano then described Hoch turning
the vehicle around twice and later “doing circles” in the middle of the road. Based on Dano’s
observations, police officers were dispatched for a “possible drunk driver.”
Three minutes into the 911 call, Officer Ryan Young and Sergeant Jacob Patchett of the
St. Clair Police Department arrived at the scene. As he approached, Officer Young observed
Hoch’s vehicle make a U-turn on Clinton Avenue and then activated his emergency lights to pull
the vehicle over. Hoch exhibited several signs of intoxication, including bloodshot eyes, slurred
speech, and a strong alcohol odor on his breath. He refused to take a field sobriety test or a breath
test, so officers obtained a warrant for a blood draw. The toxicology report found that Hoch had
a blood-alcohol content of 0.218 grams of alcohol per 100 millimeters of blood, nearly three times
higher than the legal limit. See MCL 257.625(1)(b) (stating that a person shall not operate a
vehicle when the person has an “alcohol content of 0.08 grams or more per 100 milliliters of
blood”). Additionally, Hoch did not have a valid driver’s license, and the vehicle did not have
insurance on the day of the incident. Hoch was arrested and charged with OWI-third offense,
operating a motor vehicle with a suspended license, and operating a motor vehicle without security.
In September 2020, Hoch moved to suppress all evidence obtained from the stop of the
vehicle. He argued that the police lacked reasonable suspicion to conduct the traffic stop because
there was no evidence that the police witnessed any bad driving or criminal activity. The trial
court held an evidentiary hearing the next month, at which Decker, Dano, Officer Young, and
Sergeant Patchett testified. In a subsequent opinion and order, the trial court concluded that police
officers had reasonable suspicion to stop Hoch’s vehicle. The court found that the tip received
from the 911 call was “extremely reliable” and that the message relayed by dispatch to the officers
identified “erratic” driving that was “suggestive of possible operating while intoxicated.” The
court also noted several other factors that supported the reasonableness of the investigatory stop:
Given the short amount of time between the 911 call and the officers’ arrival at the
scene, the lack of other cars in the area, and the fact that the car matched the
description of the vehicle given by dispatch, the officers’ [sic] had reasonable
suspicion to believe that [Hoch’s] car was the car identified by Decker and Dano as
the one that had caused the loud noise in front of their house and had been driving
in circles in the middle of the street.
-2-
For these reasons, the trial court denied Hoch’s motion to suppress.
Hoch filed a renewed motion to suppress and motion to quash in March 2021, claiming
that he had only recently received patrol car dashcam footage and an in-car audio recording. Hoch
argued that the video and audio records did not support the evidence presented at the preliminary
examination and evidentiary hearing. Had these records been introduced earlier, Hoch asserted,
the charges against him would not have been bound over to circuit court and the motion to suppress
would have been granted. The prosecution opposed Hoch’s requests and disputed his factual
claims about disclosure of the dashcam video. The trial court denied both motions. On the motion
to suppress, the court considered Hoch’s motion to be an untimely motion for reconsideration.
Even so, the court noted that the dashcam video did not change its view that the stop of Hoch’s
vehicle was lawful. The court emphasized that at the evidentiary hearing, it considered the
testimony of the eyewitnesses and the information communicated to the officers by the 911
dispatcher. Whether or not the officers’ testimony aligned exactly with the dashcam footage was
an issue of credibility that did not invalidate the traffic stop.
In October 2021, charges against Hoch were dismissed without prejudice because Officer
Young was unavailable to attend trial and the case could not be adjourned further. The prosecution
immediately refiled the three charges against Hoch, the charges were bound over to circuit court,
and the case proceeded to trial. Hoch again moved to suppress the evidence seized from the traffic
stop and quash the complaint; he also requested another evidentiary hearing. Citing the recently
released decision in People v Pagano, 507 Mich 26; 967 NW2d 590 (2021), Hoch argued that
police officers lacked reasonable suspicion to stop Hoch’s vehicle. Hoch also claimed that the
dashcam video showed that Hoch’s vehicle never made a U-turn in front of Officer Young. The
prosecution opposed the motions and noted that the dashcam footage did not depict everything that
Officer Young observed as he approached Hoch’s vehicle. At a hearing, the court explained that,
even accepting that the dashcam footage did not show Hoch’s vehicle making a U-turn, the
information relayed by Dano and Decker and dispatched to the police officers was enough to find
reasonable suspicion of drunk driving. Accordingly, for a third time, the trial court denied the
motion to suppress; the court also denied the motion to quash and declined to hold another
evidentiary hearing.2
At trial, Dano, Decker, Officer Young, and Sergeant Patchett again testified to their actions
and observations during the early morning hours of March 1, 2020. Basman testified in Hoch’s
defense, explaining that he was Hoch’s designated driver and that he drove Hoch to a bar on the
night of the incident. After leaving the bar, Basman began to drive Hoch home. Hoch began
telling Basman where to go, putting his hand in Basman’s face, and making “annoying” comments.
“[B]eyond annoyed” with Hoch, Basman applied the emergency brake, got out of the vehicle,
walked over to the passenger side door, and tried to open the door to remove Hoch from the vehicle.
Basman and Hoch were each pulling on the door when the inside panel “ripped off.” Basman then
2
Hoch sought an interlocutory appeal from this decision. This Court denied the application for
leave to appeal “for failure to persuade the Court of the need for immediate appellate review.”
People v Hoch, unpublished order of the Court of Appeals, entered April 7, 2022 (Docket No.
360524). Our Supreme Court also denied leave to appeal. People v Hoch, 509 Mich 974 (2022).
-3-
heard Decker shouting from the house in front of the vehicle. Basman decided to leave Hoch and
the vehicle and began walking away from the scene because he “didn’t want to punch [Hoch]” in
the mouth.
Hoch testified in his own defense and confirmed that he had several drinks at the bar, and
that, afterward, Basman began to drive him home. After the altercation that Basman described,
Decker came out of her house and started shouting, which “startled [Basman] enough to walk
away.” Hoch then noticed that the vehicle was parked in front of Decker’s house and that the
“back portion of the trunk [was] blocking her driveway.” He claimed that he was not too drunk
“to move the vehicle to a safe parking space.” Unbeknownst to Hoch at the time, the vehicle was
also parked in a fire lane outside of Decker’s house and there were “no parking” signs displayed
on the street. Hoch testified that he drove the vehicle down the street and was looking for a place
to park when the police arrived.
At the close of trial, Hoch asked the trial court to instruct the jury on the affirmative
defenses of duress and necessity. Hoch argued that Basman’s conduct of trying to remove him
from the vehicle constituted a reasonable threat of death or serious bodily harm, so he was
compelled to drive the vehicle while intoxicated to get away from Basman. Hoch also claimed
that he was afraid of Basman returning to the scene and had a reasonable fear of traffic in the area.
The trial court concluded that the alleged threat of serious bodily injury from Basman was no
longer present or imminent when Hoch drove the vehicle away from Decker’s house, so a duress
instruction was not justified. And the court found no legal basis for Hoch’s proposed instruction
on necessity. The trial court therefore declined to instruct the jury on either defense.
The jury convicted Hoch as previously noted. The trial court sentenced Hoch as a fourth-
offense habitual offender, MCL 769.12, to 10 months in jail and two years’ probation for the OWI
conviction, and six days in jail, time served, for the remaining two convictions. Hoch now appeals
as of right.
II. MOTION TO SUPPRESS
Hoch argues that the police lacked reasonable suspicion to justify the stop of his vehicle,
so the evidence seized as a result of the stop should have been suppressed.
“We review for clear error a trial court’s findings of fact in a suppression hearing, but we
review de novo its ultimate decision on a motion to suppress.” People v Hyde, 285 Mich App 428,
436; 775 NW2d 833 (2009). Under the clear-error standard, we defer to a trial court’s factual
findings unless we are left with a “definite and firm conviction that the trial court made a mistake.”
People v Wiley, 324 Mich App 130, 165; 919 NW2d 802 (2018) (cleaned up). But on de novo
review, we evaluate the legal issues independently, “with no required deference to the trial court.”
People v Beck, 504 Mich 605, 618; 939 NW2d 213 (2019).
Both the Michigan and United States Constitutions guarantee the right of persons to be
secure against unreasonable searches and seizures. Const 1963, art 1, § 11; US Const, Am IV.
“Searches and seizures conducted without a warrant are unreasonable per se, subject to several
specifically established and well-delineated exceptions.” People v Champion, 452 Mich 92, 98;
549 NW2d 849 (1996). One such exception is an investigative stop, also known as a Terry stop.
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Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Under Terry, “if a police officer
has a reasonable, articulable suspicion to believe a person has committed or is committing a crime
given the totality of the circumstances, the officer may briefly stop that person for further
investigation.” People v Barbarich, 291 Mich App 468, 473; 807 NW2d 56 (2011). Because a
traffic stop constitutes a seizure of a vehicle’s occupants, a lawful traffic stop requires a police
officer to have “an articulable and reasonable suspicion that a vehicle or one of its occupants is
subject to seizure for a violation of law.” People v Simmons, 316 Mich App 322, 326; 894 NW2d
86 (2016) (cleaned up). Reasonable suspicion is a lesser showing than probable cause, but it
requires more than a hunch that a crime is afoot. Pagano, 507 Mich at 32. “[T]he police officer
must be able to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant” the brief detention. Terry, 392 US at 21. “Whether an
officer has reasonable and articulable suspicion to briefly detain an individual is a fact-specific
inquiry that is determined on a case-by-case basis.” Pagano, 507 Mich at 32. When reviewing
the validity of a traffic stop, we consider the totality of the circumstances “in light of commonsense
judgments and inferences about human behavior.” Barbarich, 291 Mich App at 474. Of particular
relevance here, “[a] police officer’s reasonable suspicion may be based on information obtained
from another.” People v Chambers, 195 Mich App 118, 122; 489 NW2d 168 (1992).
Having reviewed the trial court’s factual findings, the testimony from the evidentiary
hearing, and the recording of the 911 call, we conclude that police officers had reasonable and
articulable suspicion to conduct a traffic stop of Hoch’s vehicle.3 The series of events leading to
Hoch’s convictions began when Decker and Dano both heard a sudden loud noise outside their
house and noticed a dark-colored vehicle in or alongside their driveway. Decker went outside to
investigate, while Dano called 911 and relayed contemporaneous information from her and
Decker’s observations. Dano reported to the operator that a car had crashed into the driveway, the
passenger-side door had been damaged, and Hoch was standing outside by this door while another
man was walking away on Clinton Avenue. Dano further reported that Hoch fixed the door, got
into the vehicle, and drove away. And she described the vehicle as “doing circles” in the middle
of the street near the railroad tracks. Police officers were dispatched to the scene on reports of a
possible drunk driver doing several circles in the middle of the road.4 Officer Young and Sergeant
Patchett promptly arrived in separate vehicles. Officer Young testified that he observed Hoch’s
vehicle make a U-turn in the middle of Clinton Avenue before activating his emergency lights and
pulling the vehicle over. No other vehicles were present on the road. Officer Young also explained
that, in his experience working as a police officer for several years, a majority of single-car
accidents involved the use of alcohol.
3
On appeal, Hoch does not argue that any evidentiary dispute created by the dashcam video
provides a basis for suppression. His brief states, “Even if we ignore the conflict between the
police testimony and the police video, the stop fails Fourth Amendment standards.” We therefore
focus on the testimony and exhibits admitted at the evidentiary hearing.
4
Officer Young confirmed that a dispatch report, which contained several time-stamped
statements from Dano’s 911 call, was consistent with the information that had been dispatched to
him as he drove to the scene.
-5-
Dano’s 911 call, combined with police officers’ observations corroborating her report,
provided reasonable suspicion that Hoch was driving while intoxicated. To reiterate the specific
and articulable facts: it was after 2:00 a.m.; Decker and Dano heard a “loud bang” consistent with
a car accident; Hoch’s vehicle was outside obstructing Decker’s driveway; no other cars were on
the road; the passenger-side door had broken; and Hoch drove off and began “doing circles” in the
middle of the road. “[C]ommonsense judgments and inferences about human behavior” could lead
a reasonable police officer to conclude that all these factors were consistent with a drunk driver.
Barbarich, 291 Mich App at 474. See also Hyde, 285 Mich App at 437 (“[E]rratic driving . . . can
give rise to a reasonable suspicion of intoxication justifying an investigatory stop.”) Reasonable
and articulable suspicion therefore existed to stop Hoch’s vehicle on suspicion that he was driving
while intoxicated.
Hoch claims that the Supreme Court’s recent decision in Pagano supports his argument
that police officers lacked reasonable suspicion to stop his vehicle. In Pagano, 507 Mich at 29-
30, an anonymous 911 caller reported that an “obnoxious” woman was standing outside of her
vehicle and was yelling at her children. The caller attributed the woman’s behavior to intoxication.
Id. The caller relayed a description of the vehicle, including the license plate number, and the
direction in which it was traveling. Id. at 30. Within 30 minutes of the call, a police officer
observed the defendant’s vehicle, which matched the caller’s description. Id. The officer followed
the vehicle but did not see the defendant violate any traffic laws. Id. Yet based entirely on the
anonymous 911 call, the officer stopped the defendant’s vehicle and ultimately arrested her for
driving while intoxicated. Id.
The Pagano Court noted that “[a]n anonymous tip, when sufficiently corroborated, can
exhibit sufficient indicia of reliability to justify a Terry stop.” Id. at 33. But that standard was not
met in Pagano, as “the anonymous tip did not give rise to a reasonable and articulable suspicion
that [the] defendant was engaged in a traffic violation, much less criminal activity.” Id. at 33.
While “certain driving behaviors are so strongly correlated with drunk driving that, when reported
to the police by anonymous callers, the totality of the circumstances may give rise to a reasonable
and articulable suspicion of criminal activity,” this case fell far short of the justification needed for
a traffic stop. Id. at 34, citing Navarette v California, 572 US 393, 402; 134 S Ct 1683; 188 L Ed
2d 680 (2014). The caller’s assertion that the defendant was acting “obnoxious” and yelling at her
children did not create a reasonable suspicion that the defendant was intoxicated. Id. at 34-35.
“Certainly, commonsense judgments and inferences about human behavior lead one to conclude
that many parents yell at their children, even without the aid of intoxicants.” Id. at 34. Properly
characterized, the 911 call provided “little more than a conclusory allegation of drunk driving,”
without any corroboration. Id. at 34-35. For these reasons, the traffic stop in Pagano violated the
Fourth Amendment. Id. at 35.
The facts here are far afield from those in Pagano. First, Dano was not an anonymous
tipster like the caller in Pagano; Dano gave the 911 operator her first name and address. Second,
unlike in Pagano, the police officers in this case arrived at the scene and located Hoch’s vehicle
within minutes of the 911 call. Dano was even on the phone with the operator when she saw
officers show up, which confirmed that she generally maintained sight of Hoch’s vehicle during
the entire call. Third and most importantly, Dano’s call exhibited “sufficient indicia of reliability
to justify a Terry stop.” Id. at 33. The call contained specific and contemporaneous factual
allegations about Hoch’s actions, not generalized behavioral conclusions like those drawn by the
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anonymous caller in Pagano. The contents of Dano’s call were also corroborated in several
respects by officers’ observations—among other things, Hoch’s vehicle generally matched the
description of a dark sedan,5 the vehicle was near the railroad tracks on Clinton Avenue when
officers arrived, and Officer Young observed the vehicle make a U-turn. Considering the totality
of the circumstances, police officers had reasonable suspicion to stop Hoch’s vehicle, and therefore
the trial court did not err when it denied Hoch’s motion to suppress.
III. JURY INSTRUCTIONS
Finally, Hoch claims that the trial court erred by denying his request to instruct the jury on
the affirmative defenses of duress and necessity.
“Claims of instructional error are generally reviewed de novo by this Court, but the trial
court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an
abuse of discretion.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). “An abuse
of discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008).
A criminal defendant is “entitled to have a properly instructed jury consider the evidence
against him or her.” Dobek, 274 Mich App at 82. Therefore, “[j]ury 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).
Additionally, “[a] defendant asserting an affirmative defense must produce some evidence on all
elements of the defense before the trial court is required to instruct the jury regarding the
affirmative defense.” People v Guajardo, 300 Mich App 26, 34-35; 832 NW2d 409 (2013)
(emphasis added). An affirmative defense does not negate the elements of a crime but rather
“seeks to justify, excuse, or mitigate it.” People v Aspy, 292 Mich App 36, 49; 808 NW2d 569(2011) (cleaned up).
A. DURESS
Hoch contends that he presented sufficient evidence of threatening conduct by Basman to
justify a jury instruction on duress.
“Duress is a common-law affirmative defense.” People v Lemons, 454 Mich 234, 245; 562
NW2d 447 (1997). To merit an instruction on the defense, a defendant must produce some
evidence from which the jury could conclude that each element of duress is present:
A) The threatening conduct was sufficient to create in the mind of a
reasonable person the fear of death or serious bodily harm;
5
Although the vehicle was green, Basman testified at trial that it was a dark green; it also would
have reasonably appeared darker to Dano and Decker at 2:15 a.m. than during daylight hours.
-7-
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
246-247.]
“The rationale of the defense of duress is that, for reasons of social policy, it is better that the
defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in
order to avoid the greater evil threatened by the other person.” People v Gafken, 510 Mich 503,
511; 990 NW2d 826 (2022) (cleaned up).
At a minimum, Hoch’s assertion of duress fails on the last element—whether Hoch
committed the charged offenses to avoid the threatened harm. The undisputed evidence
established that any alleged threat to Hoch’s safety had passed by the time that he chose to drive
the car while intoxicated. At trial, Basman testified that he stopped the vehicle and told Hoch that
he was not going to drive him anymore because he was being annoying. Basman then walked
around the vehicle to the passenger-side door. Basman began “yanking on the door” while Hoch
tried to pull it closed. After Decker came out of her house, Basman stopped pulling on the door
and walked away from Hoch and the vehicle. As Basman walked away, Hoch asked him, “[You
are] leaving me like this?” As Basman began walking down the street, Decker and Hoch had a
brief interaction. When Decker asked Hoch what happened, he told her that he was trying to fix
his door because it had “fallen off.” Decker told Hoch not to leave the scene because the police
were on their way. But within a minute, Hoch moved to the driver’s seat of the vehicle and drove
down the street in the same direction that Basman had gone.
Any alleged threat that Basman posed to Hoch’s safety had passed once Basman walked
away from the scene and Hoch remained by the car outside Decker’s house. Indeed, Hoch’s claim
that he was avoiding a purported threat is belied by his own actions. By driving the car in the
direction that Basman had walked, he was putting himself closer to the allegedly threatening
individual than if he had simply remained outside Decker’s house.6 Therefore, Hoch presented no
evidence that he “committed the act [of driving while intoxicated] to avoid the threatened harm.”
6
In his appellate brief, Hoch stresses that he only drove “45 feet” from Decker’s house before he
was pulled over. Not only is this factually misleading but it is legally irrelevant. Officer Young
testified only that he personally observed the vehicle travel 45 feet; there was no other evidence
that Hoch drove the vehicle a total of 45 feet while intoxicated. Nor would it matter for purposes
of legal sufficiency. Operating a motor vehicle, an element of each of Hoch’s convictions, merely
requires evidence that the vehicle has been put in motion; there is no physical distance requirement.
See People v Wood, 450 Mich 399, 404-405; 538 NW2d 351 (1995) (“Once a person using a motor
vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk
of causing a collision, such a person continues to operate it until the vehicle is returned to a position
posing no such risk.”). See also M Crim JI 15.2(2) (when proving a charge of operating while
intoxicated, “operate means to drive or have actual physical control of the vehicle.”).
-8-
Lemons, 454 Mich at 247. Without any evidence to support this element of duress, the trial court
correctly concluded that the jury instruction was unwarranted.
Hoch contends that our Supreme Court’s recent decision in Gafken supports his argument
that the jury should have been instructed on the defense of duress. In that case, the defendant was
driving a vehicle that the police were trying to pull over. Gafken, 510 Mich at 509. The defendant
fled away at high speeds and collided with other vehicles, killing one person and seriously injuring
several others. Id. The defendant moved to allow a duress defense, arguing that she should be
allowed to testify that she did not pull over for the police because an occupant of the car “thrust a
gun into her ribs and threatened to kill her if she stopped the car.” Id. The trial court denied the
defendant’s motion, but on appeal, the Supreme Court held that she could raise the affirmative
defense of duress. Id. at 510, 514. Unlike in Gafken, where the alleged threat was ongoing and
imminent when the defendant was actively driving the vehicle, the alleged threat in this case had
ended by the time Hoch moved to the driver’s seat and drove the vehicle while intoxicated. Gafken
is therefore distinguishable. The trial court did not err when it denied Hoch’s request to instruct
the jury on the defense of duress.
B. NECESSITY
Hoch also argues that he presented sufficient evidence to warrant an instruction on the
defense of necessity because it was “illegal and dangerous” for him to leave the car parked on the
street by Decker’s driveway.
There is little legal daylight that separates the defense of duress from the defense of
necessity. The difference between them 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.” People v Hubbard, 115 Mich App 73, 77; 320 NW2d 294(1982).7 Hoch appears to suggest that the “natural physical force” that compelled him to drive the
vehicle while intoxicated was that the vehicle had been parked in a fire lane, a “no parking area.”
But Hoch admitted at trial that he did not even know that the vehicle was parked in a “no parking
area” when the incident took place. Hoch could not have been compelled to drive the vehicle out
of concern for something he did not know. Hoch also suggests there was a risk that an oncoming
car might have hit him had he not moved the vehicle. Unsupported speculation aside, there were
no vehicles driving toward Hoch in the fire lane. Nor is there any evidence that being parking in
7
“Although published decisions of this Court issued prior to November 1, 1990, are not strictly
binding on this Court, all published decisions of this Court are precedential under the rule of stare
decisis and generally should be followed.” Davis v Secretary of State, ___ Mich App ___, ___;
___ NW2d ___ (2023) (Docket No. 362841); slip op at 9 n 10. There is a dearth of recent caselaw
applying the necessity defense and distinguishing it from duress. At least one panel of this Court
appeared to analyze duress and necessity interchangeably. See People v Penrose, unpublished per
curiam opinion of the Court of Appeals, issued January 21, 2000 (Docket No. 214588), pp 1-3.
While there is a model criminal jury instruction on duress, M Crim JI 7.6, no such instruction
exists for necessity. In any event, we follow Hubbard’s guidance and assume that Michigan law
recognizes the defense of necessity as distinct from the defense of duress.
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the fire lane presented a risk of serious bodily injury or death to Hoch. His claim of necessity does
not withstand factual scrutiny. Therefore, the trial court did not err by denying Hoch’s request to
instruct the jury on the defense of necessity.
We affirm.
/s/ Michael J. Riordan
/s/ Mark J. Cavanagh
/s/ Kristina Robinson Garrett
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