Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MICHAEL WAYNE NICHOLS, Defendant-Appellant.

FOR PUBLICATION June 15, 2004 9:00 a.m. No. 248102 Jackson Circuit Court LC No. 02-006553-FH Official Reported Version

Before: Hoekstra, P.J., and O'Connell and Donofrio, JJ. DONOFRIO, J. Defendant appeals as of right his convictions on two counts of assaulting, battering, resisting, obstructing, or opposing a police officer, MCL 750.81d(1). Defendant was sentenced as a third-offense habitual offender to two to four years' imprisonment for each count, to be served concurrently. Defendant argues that MCL 750.81d is void for vagueness, and that the prosecution abused its discretion when it charged defendant under MCL 750.81d rather than MCL 750.479. After reviewing the record, we are not persuaded by defendant's arguments. We affirm. Defendant first argues that MCL 750.81d is void for vagueness as applied to the facts of this case. Defendant specifically states that the statute is void because it confers unlimited discretion on the trier of fact to determine whether the mental element of MCL 750.81d is satisfied. The prosecution responds that MCL 750.81d is not unconstitutionally vague because the average person would understand the meaning of the statute, including the mental element defendant puts at issue. "This Court reviews de novo a challenge to the constitutionality of a statute under the void-for-vagueness doctrine." People v Tombs, 260 Mich App 201, 217-218; ___ NW2d ___ (2003), quoting People v Beam, 244 Mich App 103, 105; 624 NW2d 764 (2000). "A statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; (3) its coverage is overbroad and impinges on First Amendment freedoms. Id., p 218, citing People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976), and Grayned v Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972). "[V]agueness challenges to statutes which do not involve First Amendment freedoms must be

-1-


examined in the light of the facts of the case at hand." Id., citing Howell, supra, p 21, and United States v Nat'l Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963). Because defendant does not claim that his conduct is constitutionally protected by the First Amendment, we examine defendant's vagueness challenge in light of the facts of this case. MCL 750.81d(1) provides, in relevant part: [A]n individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both. Defendant asserts that the phrase "knows or has reason to know" does not articulate an ascertainable standard of guilt, and is so indefinite that it does not have any real meaning. He claims that the statute is therefore unconstitutionally vague because it confers on the fact-finder unstructured and unlimited discretion to determine whether an offense has been committed. The evidence at trial showed that at on October 25, 2002, at approximately 2:40 a.m., after being dispatched to the scene, Officer Craig Edmondson encountered defendant in the middle of a road yelling. Officer Edmondson was dressed in his police uniform and his police car was a fully marked patrol vehicle. The officer stopped his car in the middle of the roadway, turned on the red and blue overhead lights, and positioned the spotlight directly on defendant. At this point defendant was standing with his back to Officer Edmondson directly in front of the police vehicle, yelling and making hand gestures. Officer Edmondson surveyed the scene and did not see anyone else around defendant. Officer Edmondson got out of his vehicle, yelled at defendant in an attempt to get his attention, and tried to make eye contact with defendant. Defendant continued yelling, and walked toward the right side of the police car and then behind the vehicle but did not look at the officer. Officer Edmondson turned around and walked to defendant. As Officer Edmondson raised his hand in an attempt to keep defendant at a safe distance, defendant, who was sweating, and screaming in a high-pitched voice, looked at the officer with wide, dilated eyes. Defendant swung at Officer Edmondson's hand and yelled "I'm going to die first." Officer Edmondson loudly commanded defendant to calm down and relax. Defendant pushed the officer, hit his vest, started kicking, and ran away while screaming expletives directed at Officer Edmondson. The officer pursued defendant for approximately two blocks, grabbed defendant, and got him under momentary control. But, defendant continued to push, pull, kick, scream, and bite. A wrestling match then ensued until back-up arrived and another officer assisted in attempting to subdue defendant. However, the officers were unable to control defendant in order to handcuff him and only after a third officer arrived and assisted in apprehending defendant were the officers able to handcuff him. Throughout this time the officers repeatedly gave defendant oral commands to calm down and stop resisting. Defendant continued to resist and kick at the officers as he was taken into custody. There was evidence admitted at trial that at certain points during the m

Download 20040615_C248102_26_114O.248102.OPN.COA.PDF

Michigan Law