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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KENNETH ALLEN APRILL, Defendant-Appellant.

UNPUBLISHED September 13, 2007

No. 275562 Grand Traverse Circuit Court LC No. 06-010159-FH

Before: Sawyer, P.J., and White and Talbot, JJ. PER CURIAM. Defendant appeals as of right from his jury trial conviction of assaulting, resisting and obstructing a police officer. MCL 750.81d(1). Defendant was found not guilty of assault (domestic). MCL 750.81(2). He was sentenced as a second-offense habitual offender, MCL 769.10, to a prison term of 18 to 36 months. We affirm. Defendant first contends that the trial court erred in not granting his pre-trial motion for severance of the domestic violence and resisting and obstructing charges. According to defendant, severance was mandatory in this case because law enforcement entered defendant's residence several hours after the alleged domestic violence incident and arrested him pursuant to an unrelated misdemeanor warrant. Because these incidences were unrelated, defendant asserts, joinder was improper and severance was mandatory. We disagree. Generally, an issue is properly preserved if it is raised before, addressed and decided by the trial court. People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). In this case, defendant properly preserved the issue whether severance was mandatory under MCR 6.120(C) by raising it in a pre-trial motion. However, to the extent that defendant argues on appeal that the lower court erred in failing to grant severance under MCR 6.120(B), which provides for permissive severance when unfair prejudice would result, that argument is unpreserved because it was not raised before the trial court. We review de novo whether defendant was entitled to mandatory severance on the basis that the charges against him were unrelated. People v Abraham, 256 Mich App 265, 271; 662 NW2d 836 (2003). Generally, two charged offenses may be tried together if they are related. MCR 6.120(B)(1). However, "[o]n the defendant's motion, the court must sever for separate trials offenses that are not related . . . ." MCR 6.120(C). MCR 6.120 provides that offenses are related, and thus joinder is appropriate, if they are based on "(a) the same conduct or transaction, -1-


or (b) a series of connected acts, or (c) a series of acts constituting parts of a single scheme or plan." MCR 6.120(B)(1). Further, "joinder is allowed for offenses which are part of a single scheme, even if considerable time passes between them." People v Tobey, 401 Mich 141, 152 n 15; 257 NW2d 537 (1977). In this case, the evidence adduced at trial indicated that defendant left the scene of the alleged domestic assault and walked home. Approximately four hours later, after determining that defendant was a suspect in the assault, law enforcement arrived at his residence. When defendant did not respond to their repeated requests that he make contact with them, the officers entered defendant's residence on an unrelated warrant and searched for him. During a search of the downstairs portion of the residence, officers heard sounds coming from upstairs, and exited the residence in order to put on protective tactical gear for their safety. The officers then reentered the residence and discovered defendant in an unlit portion of the attic "in . . . a fetal position on the floor on his side." Thereafter, defendant began what one officer characterized as defensive resistance. We conclude that the evidence adduced at trial is sufficient to support a finding that defendant left the scene of the alleged domestic violence incident in order to avoid a confrontation with police and possible arrest on that charge. Although defendant had an outstanding misdemeanor warrant on an unrelated matter, pursuant to which he was ultimately arrested, there is no evidence in the record that indicates that defendant was aware of the warrant, and thus was attempting to resist and obstruct arrest on the outstanding warrant. Therefore, defendant's alleged subsequent action in resisting and obstructing the police arguably was, at least, an act connected to the prior act of domestic assault, MCR 6.120(B)(1)(b), and at most constituted a part of a single plan or scheme centered on the act of domestic violence, MCR 6.120(B)(1)(c). Therefore, the acts were related and severance was not mandatory. As for defendant's unpreserved argument, defendant fails to show that the charges should have been severed "to promote fairness . . . and a fair determination of the defendant's guilt or innocence of each offense." MCR 6.120(B). Defendant argues that it is highly likely that joinder of the charges resulted in his conviction of resisting and obstructing arrest. This argument is purely speculative. Indeed, the fact that defendant was found not guilty of domestic assault belies this speculation. Moreover, there is no evidence of a compromise verdict1 in that there is no evidence that any juror did not approve the whole verdict. In fact, following the announcement of the verdict, the jurors affirmed that the verdict was theirs when asked by the court to do so. Finally, the jurors were instructed that the domestic assault and resisting and obstructing charges were separate crimes that they must consider separately during deliberations. "It is well established that jurors are presumed to follow their instructions." People v Graves,

A compromise verdict is " `[a] verdict which is reached only through the surrender of conscientious convictions as to a material issue by some members of the jury in return for a relinquishment by other members of their like settled opinion on another issue, the result not commanding the approval of the whole panel . . . .' " Niemi v Ford Motor Co, 127 Mich App 811, 813-814; 339 NW2d 651 (1983), quoting 76 Am Jur 2d, Trial,

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