People of Michigan v. Barry Alan Knowles ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 22, 2023
Plaintiff-Appellee,
v No. 359641
Genesee Circuit Court
BARRY ALAN KNOWLES, LC No. 18-043202-FH
Defendant-Appellant.
Before: RIORDAN, P.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM.
Defendant Barry Alan Knowles appeals as of right his jury-trial conviction of assaulting,
resisting, or obstructing a police officer causing injury, MCL 750.81d(2). The trial court sentenced
defendant as a fourth-offense habitual offender, MCL 769.12, to serve 40 months to 15 years in
prison. We affirm.
I. BACKGROUND FACTS
The charge in this case arose from police efforts to address an issue between defendant and
his neighbors, Phillip and Crystal Hubbard, on August 4, 2017. According to the Hubbards, the
conflict with defendant began after they moved into their home in 2014 and continued for years.
In May 2017, Phillip obtained a personal protection order (PPO) prohibiting defendant from (1)
appearing at the workplace or residence of Phillip; (2) approaching or confronting Phillip in a
public place or on private property; (3) entering onto or remaining on the property owned by
Phillip; (4) placing an object on or delivering an object to property owned by Phillip; and (5)
threatening to kill or physically injure Phillip.
According to Crystal, on August 4, 2017, defendant screamed and told a visitor to the
Hubbards’ home that the Hubbards were pedophiles, sex offenders, drug dealers, and “not good
people.” Phillip testified that defendant was at the end of the Hubbards’ driveway when he asked
defendant to leave and reminded him that he was in violation of the PPO. Although defendant left,
he continued to appear outside the Hubbards’ home approximately three or four additional times
that day. The prosecution showed home surveillance footage and cell phone footage from that day
as the Hubbards testified about defendant’s conduct. The home surveillance footage showed that
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defendant appeared in front of the Hubbards’ home, confronted the Hubbards outside their home,
apparently threw glass onto their driveway, entered their yard, and threated harm to the Hubbards.
The Hubbards eventually called the police because they believed that defendant’s conduct violated
the PPO.
Flint Police Officers Albert Essix and Quion Wheeler responded to the call regarding a
“disorderly neighbor.” The officers spoke with the Hubbards about defendant’s actions earlier in
the day and were provided with the PPO so they could review it. At this time, defendant allegedly
began to cross the street toward the Hubbards’ property while yelling at or about the Hubbards.
Officer Wheeler believed, on the basis of his observations of defendant, that defendant was
violating the PPO. As defendant approached, Officer Wheeler observed something in defendant’s
hand and was concerned because of the “potentially criminal nature of [defendant’s] conduct.”
Officer Wheeler initially intended to give defendant an appearance ticket for disorderly
conduct. However, as Officer Wheeler walked toward defendant, defendant started running
toward his house. Officer Wheeler ordered defendant to stop, but defendant refused the command.
Defendant ran to his front porch and opened the front door to his house. Officer Wheeler grabbed
defendant to prevent him from going into the house out of concern for the officers’ safety. This
resulted in both defendant and Officer Wheeler falling over the banister on defendant’s porch,
which caused an injury to Officer Wheeler’s hand. Officer Essix crossed the street and assisted
Officer Wheeler with arresting defendant because of the injury Officer Wheeler sustained to his
hand.
At trial, the prosecution’s theory was that the officers were lawfully attempting to
apprehend and arrest defendant for violating the PPO and committing disorderly conduct when he
resisted the officers. The jury found defendant guilty as charged.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecutor presented insufficient evidence to establish that the
officers’ actions were lawful. We disagree.
We review de novo a challenge to the sufficiency of evidence to support a conviction.
People v Speed, 331 Mich App 328, 331; 952 NW2d 550 (2020). “In examining the sufficiency
of the evidence, this Court reviews the evidence in a light most favorable to the prosecutor to
determine whether any trier of fact could find the essential elements of the crime were proven
beyond a reasonable doubt.” Id. (quotation marks and citation omitted). This Court “is required
to draw all reasonable inferences and make credibility choices in support of the jury verdict.”
People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
“The elements of resisting or obstructing a police officer under MCL 750.81d(1) are: (1)
the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a police
officer, and (2) the defendant knew or had reason to know that the person that the defendant
assaulted, battered, wounded, resisted, obstructed, opposed, or endangered was a police officer
performing his or her duties.” People v Quinn, 305 Mich App 484, 491; 853 NW2d 383 (2014)
(quotation marks and citation omitted). Additionally, “ ‘the prosecution must establish that the
officers’ actions were lawful’ as an element of resisting or obstructing a police officer under MCL
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750.81d.” Id., quoting People v Moreno, 491 Mich 38, 52; 814 NW2d 624 (2012). Finally, to
obtain a conviction under MCL 750.81d(2), the prosecution also must establish that the
defendant’s actions “caus[ed] a bodily injury requiring medical attention or medical care.”
To demonstrate the lawfulness of an officer’s actions, the prosecution must prove that the
officer gave the defendant a lawful command, was making a lawful arrest, or was otherwise
performing a lawful act. See Moreno, 491 Mich at 55-56; M Crim JI 13.1(4). “For an arrest to be
lawful, the police officer making the arrest must have probable cause, either that a felony or
misdemeanor was committed by the individual in the officer’s presence, or that a felony or
specified misdemeanor (i.e., a misdemeanor punishable by imprisonment for more than 92 days)
occurred outside the officer’s presence and that the individual in question committed the offense.”
People v Vandenberg, 307 Mich App 57, 69; 859 NW2d 229 (2014). “Probable cause to arrest
exists where the facts and circumstances within an officer’s knowledge and of which he has
reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable
caution in the belief that an offense has been or is being committed.” Id. (quotation marks and
citation omitted). Because the legality of an officer’s actions is an element of MCL 750.81d(1), it
is a question of fact for the jury. Quinn, 305 Mich App at 494.
Defendant argues that the prosecution presented insufficient evidence to support a finding
that the officers’ actions were lawful. Specifically, defendant argues that “the evidence was not
sufficient to show that the officers had knowledge that [he] was served with the PPO nor that they
had probable cause to believe that he had violated the state [disorderly] person statute or local
ordinance regarding disorderly person/conduct in their presence.”
With regard to the PPO, MCL 600.2950(22) provides, in relevant part:
If the individual restrained or enjoined has not received notice of the personal
protection order, the individual restrained or enjoined must be given an opportunity
to comply with the personal protection order before the law enforcement officer
makes a custodial arrest for violation of the personal protection order. The failure
to immediately comply with the personal protection order is grounds for an
immediate custodial arrest. . . .
Moreover, MCL 764.15b provides, in relevant part:
(1) A peace officer, without a warrant, may arrest and take into custody an
individual when the peace officer has or receives positive information that another
peace officer has reasonable cause to believe all of the following apply:
(a) A personal protection order has been issued under [MCL 600.2950 and
600.2950a] or is a valid foreign protection order.
(b) The individual named in the personal protection order is violating or has
violated the order. . . .
To the extent that defendant argues that the officers could not lawfully arrest him for
violating the PPO because they did not have knowledge that he was “served” with the PPO, we
disagree. MCL 600.2950(22) simply requires that “notice” of the PPO be given before an
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individual is arrested. See Kampf v Kampf, 237 Mich App 337, 385; 603 NW2d 295 (1999). The
PPO in this case, which was admitted into evidence as a trial exhibit, was titled “PERSONAL
PROTECTION ORDER (NONDOMESTIC)” and, immediately below that title, had a checkbox
next to the term “EX PARTE.” The checkbox was not checked. Thus, a momentary glance at the
PPO would have revealed that the PPO was not issued ex parte. The logical inference is that the
PPO was issued during an ordinary adversarial hearing with defendant present, and as a result,
defendant had actual notice of the PPO.1 At a minimum, because the PPO did not reflect that it
was issued ex parte, the officers had probable cause to believe that defendant had actual notice of
it.2
Further, it is undisputed that the officers were otherwise aware of the existence and terms
of the PPO. Officer Wheeler witnessed defendant yell at or about the Hubbards and cross the street
towards the Hubbards’ yard, possibly while carrying an unknown object in his hands. Crystal
testified that she discussed the matter with the officers and showed them “the beginning of the
video where [defendant] was standing in front of our house screaming insanities.” On the basis of
defendant’s hostile behavior known to the officers, or at least Officer Wheeler, the officers had
probable cause to believe that defendant violated the PPO and therefore may be arrested for that
violation.
With regard to disorderly conduct,3 Flint Ordinance § 31-12 provides, in relevant part:
(5) Persists in disturbing the public peace and quiet by loud or aggressive
conduct, having once been clearly informed by persons affected that he is in fact
unreasonably causing such a disturbance, provided, however, that notice need not
be given when such persons affected reasonably believe that to do so would
constitute a risk to their personal safety.
***
(8) Knowingly harasses any other person. HARASS is defined as any
repeated nonverbal conduct which is specifically intended to frighten, embarrass,
or anger the person or persons who are the object of such conduct, or which the
1
Indeed, Phillip testified that defendant was present at the hearing.
2
We acknowledge that the officers did not testify to such an understanding of the PPO. However,
“the fact that the officer does not have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer’s action does not invalidate the action taken as
long as the circumstances, viewed objectively, justify that action.” People v Glenn-Powers, 296
Mich App 494, 500; 823 NW2d 127 (2012) (quotation marks and citation omitted).
3
Arguably, because the evidence was sufficient to establish probable cause to arrest defendant for
violating the PPO, we need not address the prosecution’s alternate theory regarding disorderly
conduct. See People v Asevedo, 217 Mich App 393, 397-398; 551 NW2d 478 (1996) (explaining
that when the prosecution presents two alternate theories of a single element, the evidence need
only be sufficient for one theory).
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person accused has reason to know is likely to produce such reactions or any
repeated verbal communication which by its very utterance inflicts injury or incites
an immediate breach of peace. [Emphasis in original.]
The evidence also is sufficient to show a violation of that ordinance in the officers’
presence.4 See MCL 764.15(1)(a) (providing that a peace officer may arrest a person when an
“ordinance violation is committed in the peace officer’s presence”). Officer Essix testified that he
observed defendant “yelling something” across the street. In addition, Officer Wheeler testified
that he observed defendant “being very like disorderly and aggressive towards the Hubbards” and
that he was “shouting things.” Officer Wheeler added that defendant shouted such comments as
the Hubbards were “baby rappers.”5 From this testimony, the officers had reason to believe that
defendant violated Flint Ordinance § 31-12 by disturbing the public peace and harassing the
Hubbards. As a result, they had probable cause to arrest defendant for that violation. While
defendant on appeal disputes the accuracy of Officer Wheeler’s testimony, we are required to infer
that it was accurate and supported the jury’s verdict. See Nowack, 462 Mich at 400.
Moreover, we note that there was sufficient evidence to support a finding that Officer
Wheeler was acting within the scope of his duties and gave defendant a lawful command to stop
when defendant ran toward his house as Officer Wheeler approached him. Defendant ignored
Officer Wheeler’s command and attempted to enter his house. Officer Wheeler continued to ask
defendant to stop while struggling with him, but he ignored the commands. Given these
circumstances, a rational fact-finder could find beyond a reasonable doubt that the officers gave
the defendant a lawful command, were making a lawful arrest, or were otherwise performing a
lawful act. See M Crim JI 13.1(4). Therefore, when viewed in the light most favorable to the
prosecution, the evidence was sufficient to support defendant’s conviction of assaulting, resisting,
or obstructing a police officer causing injury.6
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that he was denied effective assistance of counsel by trial counsel’s
failure to request a jury instruction with respect to what constitutes disorderly conduct. We
disagree.
4
The prosecution does not address MCL 750.167, the disorderly person statute, so we will assume
that the evidence was insufficient to show a violation of that statute.
5
Presumably, this was an accusation of being baby rapists.
6
Defendant suggests that he had the Fourth Amendment right to retreat into his own home and not
engage with the officers. As discussed above, however, the evidence presented was sufficient to
show that the officers had probable cause to perform a warrantless arrest of defendant and that he
was given a lawful order to stop. While it is an open question whether a warrantless intrusion into
the home in “hot pursuit” would have been justified under these circumstances, see People v
Hammerlund, 504 Mich 442, 460; 939 NW2d 129 (2019), that is not the issue before us. Defendant
does not argue that the location of his arrest violated the Fourth Amendment.
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Whether a defendant has been deprived of effective assistance of counsel is “a mixed
question of law and fact[.]” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “A
judge first must find the facts, and then must decide whether those facts constitute a violation of
the defendant’s constitutional right to effective assistance of counsel.” People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). Appellate courts review the trial court’s factual findings
for clear error, while questions of constitutional law are reviewed de novo. Id. Because defendant
failed to move for a new trial or Ginther7 hearing, our review is limited to errors apparent on the
existing record. People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014).
The United States and Michigan Constitutions provide the right to assistance of counsel.
US Const Am VI; Const 1963, art 1, § 20. “[T]he proper standard for attorney performance is that
of reasonably effective assistance.” Strickland v Washington, 466 US 668, 687; 104 S Ct 2052;
80 L Ed 2d 674 (1984). To establish a claim of ineffective assistance of counsel, “a defendant
must show that (1) counsel’s performance fell below an objective standard of reasonableness and
(2) but for counsel’s deficient performance, there is a reasonable probability that the outcome
would have been different.” Trakhtenberg, 493 Mich at 51. “A defendant must affirmatively
demonstrate that counsel’s performance was objectively unreasonable and so prejudicial as to
deprive him of a fair trial.” People v Ortiz, 249 Mich App 297, 311; 642 NW2d 417 (2001). We
presume counsel was effective, and defendant carries a heavy burden to overcome this
presumption. People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018).
Defendant argues that trial counsel was ineffective by failing to request an instruction about
what constitutes disorderly conduct because “such an instruction could have clarified to the jury
whether [defendant’s] conduct constituted that of a disorderly person.”8 In other words, defendant
argues, “the additional instruction would have assisted the jury in evaluating [his] conduct and
whether it met the disorderly person statute or ordinance.”
During final instructions, the trial court gave the jury the following instruction:
An arrest is legal if it is made by a police officer when the arrestee commits a
misdemeanor or an ordinance violation in the police officer’s presence. Disorderly
person is a misdemeanor criminal offense in the State of Michigan.
The trial court did not elaborate upon the meaning of disorderly person or disorderly
conduct.
“Failing to request a particular jury instruction can be a matter of trial strategy.” People v
Dunigan, 299 Mich App 579, 584; 831 NW2d 243 (2013). Arguably, it was reasonable trial
strategy for trial counsel to refrain from directing the jury’s attention to the precise meaning of
disorderly conduct during final instructions. That is, a request for an instruction about disorderly
7
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
8
Defendant does not argue that such an instruction was required as an element of the charged
offense.
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conduct, if given by the trial court, may have drawn added attention during deliberations to
defendant’s allegedly unruly behavior.
In any event, defendant has failed to show a reasonable probability that, but for trial
counsel’s conduct, the outcome of trial would have been different. See Trakhtenberg, 493 Mich
at 51. It is nominally true, as defendant observes, that whether he was “behaving disorderly when
the officers arrived at the Hubbards’ home was a central issue.” However, the dispute in this regard
was whether the officers, in particular Officer Wheeler, accurately testified that defendant was
aggressively yelling at or about the Hubbards in the officers’ presence. Trial counsel asserted that
the officers’ testimony was not accurate because it was not fully corroborated by the surveillance
footage or the subsequent incident reports. In other words, the dispute was whether defendant
actually acted in a belligerent manner. Indeed, trial counsel did not remotely suggest during his
closing argument that if the officers accurately testified about defendant, then defendant was
nonetheless not a disorderly person. Nor does defendant suggest as much on appeal. Common
sense suggests that aggressive and harassing yelling in a neighborhood constitutes disorderly
conduct. An additional instruction would not have changed this fact. Therefore, the failure to
request an additional instruction regarding disorderly conduct was not prejudicial.
IV. ADMISSION OF TESTIMONY AND VIDEO FOOTAGE
Lastly, defendant argues that the trial court abused its discretion by allowing the
prosecution to play the video footage of defendant’s conduct earlier that day and by allowing the
Hubbards to testify about the footage and the overall history of their conflict with defendant.
Specifically, defendant argues that this evidence was irrelevant, prejudicial, and constituted
improper bad-acts evidence. We agree that the trial court abused its discretion but conclude that
the error was harmless.
“This Court reviews a trial court’s decision to admit or deny evidence for an abuse of
discretion.” People v Smith, 336 Mich App 79, 105; 969 NW2d 548 (2021). An abuse of discretion
occurs “when the trial court chooses an outcome falling outside the principled range of outcomes.”
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
Under MRE 401, evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Arguably, the video footage and the Hubbards’ testimony had
minimal relevance because it provided the jury with context as to why a PPO was issued and why
the officers were present that day. See People v Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996)
(“[I]t is essential that prosecutors and defendants be able to give the jury an intelligible presentation
of the full context in which disputed events took place.”).
However, this minimal relevance was substantially outweighed by the danger of unfair
prejudice. MRE 403 states that relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury . . . .” “Evidence is unfairly prejudicial when there exists a danger that marginally
probative evidence will be given undue or preemptive weight by the jury.” People v Crawford,
458 Mich 376, 398; 582 NW2d 785 (1998). As defendant argues, the evidence in dispute was not
relevant to show the lawfulness of the officers’ actions because those actions must be considered
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in light of the facts reasonably known to the officers at the time. See Vandenberg, 307 Mich App
at 69. Thus, although defendant’s conduct earlier that day could be considered by the officers in
deciding whether to arrest him for violating the PPO, if not arresting him for disorderly conduct,
that only is true to the extent that the officers were aware of his earlier conduct when they arrested
defendant, see MCL 764.15b(1), and there is nothing in the record showing such knowledge
beyond the conversation with the Hubbards. Consequently, the evidence had minimal relevance.
On the other hand, allowing the jury to consider the evidence presented the possibility that the jury
would confuse the primary legal issue in the case, i.e., whether the arrest was lawful based upon
facts reasonably known to the officers at the time. In other words, there was the possibility that
the jury could have considered this evidence in deciding whether the officers’ conduct was lawful,
when it instead only should have considered the facts reasonably known to the officers at the time
in deciding whether the officers’ conduct was lawful. Therefore, we conclude that the evidence
should have been excluded under MRE 403.9
Nonetheless, we conclude that reversal is not warranted because it does not “affirmatively
appear that it is more probable than not that the error was outcome determinative.” People v Lukity,
460 Mich 484, 496; 596 NW2d 607 (1999). Although the evidence in dispute undoubtedly
presented a possibility of confusion of the issues, the overall issues in this case were nonetheless
straightforward. According to the prosecution, defendant was belligerent and aggressive in the
officers’ presence, yelling insults and threats about the Hubbards. This, the prosecution argued,
warranted the officers’ conduct in seeking to apprehend and ultimately arrest defendant. To the
contrary, according to defendant, the evidence does not show that he committed such extreme
conduct in the officers’ presence. Defense counsel asserted during closing argument that Officer
Wheeler should not be considered a credible witness and that Officer Essix did not provide
particularly incriminating testimony against defendant. Thus, the jury was aware of the underlying
disagreement, and the final instructions were consistent with that disagreement. Under these
circumstances, in which the jury essentially was charged simply to consider the extent to which
defendant acted aggressively in the officers’ presence, evidence about his conduct earlier that day
or before that day was not outcome determinative.
V. CONCLUSION
There were no errors warranting relief. We affirm.
/s/ Michael J. Riordan
/s/ Stephen L. Borrello
9
Having so concluded, we need not address defendant’s argument that the evidence also was
inadmissible under MRE 404(b).
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