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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v FREDERICK MICHAEL ZACHARY, Defendant-Appellant.

UNPUBLISHED August 31, 2010

No. 290649 Allegan Circuit Court LC No. 06-014866-FH

Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ. PER CURIAM. A jury convicted defendant of resisting or obstructing an officer, MCL 750.81d(1), and possession of marijuana, MCL 333.7403(2)(d). The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to 2/1-2 to 15 years in prison for the resisting or obstructing conviction and 222 days for the marijuana possession conviction. Defendant appeals as of right. We affirm. In August 2006, State Police Trooper Carlos Fossati responded to a 911 call from Tina Plasterer, who had reported defendant's intoxicated and unwelcome presence inside her Pullman residence.1 Fossati testified that when he arrived, he saw defendant "staggering around in the front yard." Defendant gave Fossati his name and acknowledged his recent eviction from the residence, but insisted that he had come to retrieve some belongings. Plasterer came outside and began approaching defendant while yelling at him, prompting defendant to start yelling back at her. Fossati urged Plasterer to go back inside the house, which she started to do while continuing to argue with defendant. Fossati also twice instructed defendant to move away from the house and stand by a nearby parked car, but defendant did not comply. Fossati recounted that he decided to secure defendant because he appeared more aggressive than when Fossati had arrived. Fossati asked defendant multiple times to turn around and place his hands behind his back, but defendant ignored Fossati's instructions. When Fossati took defendant's arm to place it behind his back, defendant tried to pull away his arm and body. Defendant said nothing, but continued to resist Fossati's attempt to handcuff him. Fossati
1

A court officer related at trial that on August 3, 2006, he served defendant with an eviction order that gave him 48 hours to move from the residence.

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eventually got defendant's hands behind his back, walked him over to a parked car, and bent his upper torso over the trunk of a parked car to facilitate Fossati's retrieval of his handcuffs. In Fossati's description, defendant "started to torque around" and tried to talk to Fossati. As Fossati started placing handcuffs on defendant, he began struggling to escape. While Fossati handcuffed defendant, his legs "were flaying [sic] around" and they made contact with Fossati. Fossati testified that after he handcuffed defendant,2 he walked defendant to the patrol car. During the walk, defendant yelled and screamed profanities. As Fossati started to put defendant in the car, defendant's "whole body torqued and I seen his hands

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