People v. Baker

127 Mich. App. 297 (1983) 338 N.W.2d 391

PEOPLE
v.
BAKER

Docket No. 62673.

Michigan Court of Appeals.

Decided June 1, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Bruce Plackowski, Prosecuting Attorney, and Michael A. Nickerson, Assistant Attorney General, Prosecuting Attorneys Appellate Service, for the people.

State Appellate Defender (by Terence R. Flanagan), for defendant on appeal.

Before: DANHOF, C.J., and ALLEN and D.F. WALSH, JJ.

PER CURIAM.

Defendant was convicted of resisting or obstructing a police officer in the discharge of his duty, MCL 750.479; MSA 28.747, following a jury trial. He was placed on probation for two years with the first six months to be spent in jail. Defendant appeals his conviction as of right.

Defendant claims that the trial court erred by refusing to instruct the jury on a lesser offense of attempted resisting arrest. The trial court ruled that, because the crime of resisting arrest is in the nature of an assault, it would be improper to give the requested instruction because there is no such crime as attempted assault. See People v Richard Banks, 51 Mich App 685; 216 NW2d 461 (1974).

We find it unnecessary to decide whether an attempt to resist arrest may be a lesser-included offense to this crime. Even assuming that the crime exists, we agree that it was inappropriate to give such an instruction in this case. A judge is only required to instruct on attempt where there is evidence indicating that only an attempt was committed. People v Adams, 416 Mich 53; 330 NW2d 634 (1982).

Defendant did not deny that he used force to resist the arrest. Rather, he claimed that the arrest was unlawful in that the degree of force used by the officer was excessive. Those claims, if believed, would have constituted complete defenses to the charge. See People v Stark, 120 Mich App 350; 327 NW2d 474 (1982). There was no evidence that a crime was committed which was less than the completed offense. Therefore, an instruction on attempt was not appropriate. People v Adams, supra.

Defendant also complains that the trial court erred by refusing to instruct the jury on the misdemeanor offense of simple assault. MCL 750.81; MSA 28.276.

Assuming that defendant is correct in his claim that, because of the assaultive nature of his actions, simple assault was a cognate lesser-included offense to this charge, we do not believe that the trial court was required to give an instruction concerning that charge. In People v Stephens, 416 Mich 252; 330 NW2d 675 (1982), the Supreme Court backed away from the rule stated in People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975). Chamblis, supra, precluded the giving of instructions for misdemeanor offenses in most felony prosecutions. In Stephens, supra, the Court ruled that a requested misdemeanor instruction may be given if it is supported by a rational view of the evidence adduced at trial.

The purpose of the resisting arrest statute is to protect police officers from physical violence and harm. People v Kretchmer, 404 Mich 59, 64; 272 NW2d 558 (1978). The Legislature has provided for an aggravated penalty for resisting arrest. The distinguishing feature which transforms the midemeanor of simple assault into the felony of resisting arrest is the fact that an officer of the law is the victim where resisting arrest is charged. Therefore, an instruction on simple assault in a case in which resisting arrest is charged would be based on a rational view of the evidence only if there is some evidence that the victim was not a police officer or a question is raised concerning defendant's knowledge of the victim's status.

In the present case, defendant testified that he knew that the person who attempted to arrest him was a police officer. Therefore, the evidence did not support the requested misdemeanor instruction. People v Stephens, supra.

Affirmed.