Opinion
Docket No. 54499.
Decided January 23, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard S. Allen, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.
Dreyer McLaughlin, for defendant on appeal.
Before: ALLEN, P.J., and V.J. BRENNAN and MacKENZIE, JJ.
ON REMAND
This case reappears before us by order of the Michigan Supreme Court on October 31, 1980, vacating our prior judgment at 96 Mich. App. 343; 292 N.W.2d 204 (1980) and remanding for reconsideration of the double jeopardy issue in light of People v Jankowski, 408 Mich. 79; 289 N.W.2d 674 (1980).
Defendant was convicted of both felonious assault, MCL 750.82; MSA 28.277, and resisting arrest, a misdemeanor according to MCL 750.479; MSA 28.747, stemming from a fracas between defendant and Deputy Richard Miller of the Clare County Sheriff's Department when the latter attempted to arrest defendant for drunk and disorderly conduct. Defendant was sentenced to 2-1/2 to 4 years on the felonious assault conviction and 15 months to 2 years on the resisting arrest conviction.
In Jankowski, the Court affirmed the defendant's conviction of armed robbery but reversed his two other larceny convictions based on a single taking of a cash register from a gasoline station, reasoning that "it was factually and logically impossible for the defendant to be guilty of armed robbery without at once being guilty of larceny in a building and larceny over $100". 408 Mich. 79, 89. Thus, the pertinent inquiry is whether defendant was convicted of a greater offense and a necessarily or factually included offense.
To be convicted of felonious assault, defendant must have intentionally assaulted another with a dangerous weapon. MCL 750.82; MSA 28.277. Resisting arrest is defined as follows:
See People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979).
"Any person who shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, township treasurer, constable or other officer or person duly authorized, in serving, or attempting to serve or execute any process, rule or order made or issued by lawful authority, or who shall resist any officer in the execution of any ordinance, by law, or any rule, order or resolution made, issued, or passed by the common council of any city board of trustees, or common council or village council of any incorporated village, or township board of any township or who shall assault, beat or wound any sheriff, coroner, township treasurer, constable or other officer duly authorized, while serving, or attempting to serve or execute any such process, rule or order, or for having served, or attempted [sic] to serve or execute the same, or who shall so obstruct, resist, oppose, assault, beat or wound any of the above named officers, or any other person or persons authorized by law to maintain and preserve the peace, in their lawful acts, attempts and efforts to maintain, preserve and keep the peace, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years, or by a fine of not more than 1,000 dollars." MCL 750.479; MSA 28.747.
In the amended information filed March 29, 1977, defendant was charged with two counts: (1) felonious assault upon Richard T. Miller with a dangerous weapon, to wit, a shoe; (2) resisting a lawful arrest by Richard T. Miller.
Deputy Miller testified at trial that he was alone on night shift patrol on February 9, 1977, when he observed a car in a ditch off the road. Upon coming closer, Deputy Miller observed defendant sleeping in the front seat of the vehicle. When Deputy Miller inquired of defendant whether he was all right, defendant responded "Fuck you, Dyke", apparently mistaking him for another policeman named Dyke. Deputy Miller testified that he noticed that defendant had a strong odor of alcohol on his breath and that his speech was slurred. When defendant repeated his earlier statement, Deputy Miller advised him that he was under arrest for drunk and disorderly conduct.
When Deputy Miller opened the door of defendant's car, defendant immediately struck him in the side of the head with his fist, kicked the officer in the chest with his shoe, and slammed the door and locked it. Deputy Miller returned to his patrol car and called for assistance. Another Clare County deputy sheriff, as well as a state police unit, responded.
Deputy Miller again approached defendant's vehicle and informed defendant he was under arrest. The officer succeeded in getting the door unlocked but, when he grabbed defendant, defendant kicked him in the groin area. The other officers tried to assist from the other side of the vehicle. When Deputy Miller got up off the ground, defendant kicked him down again. Deputy Miller said he was injured and in pain. Meanwhile, the reinforcements managed to get defendant out of the vehicle and wrestled him to the ground. Defendant's arms and legs were bound. Still screaming, defendant was carried into the patrol car and once more kicked Deputy Miller in the groin area.
Although Deputy Miller testified that defendant kicked him four or five times, defendant's actions were all part of a single criminal transaction, a continuing assault. Defendant was not charged with assaulting any of the assisting officers. When the elements of felonious assault were testified to by Deputy Miller, the elements of resisting arrest were also shown. This is true because the officer testified that he was assaulted by defendant after informing defendant he was under arrest. Under Jankowski, defendant's right to be free from double jeopardy was violated by his conviction of two assault crimes arising out of one continuing assault.
We affirm defendant's felonious assault conviction and vacate his conviction for resisting arrest.