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1 S T A T E O F M I C H I G A N C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED October 5, 2017 v No Jackson Circuit Court TERENCE MITCHELL BRUCE, LC No FH Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No Jackson Circuit Court STANLEY LYLE NICHOLSON, LC No FH Defendant-Appellant. Before: SERVITTO, P.J., and MURRAY and BORRELLO, JJ. PER CURIAM. Defendants, Terence Bruce and Stanley Nicholson, appeal as of right their jury trial convictions of the common law offense of misconduct in office. 1 Defendants were acquitted of larceny from a building, MCL The trial court sentenced both defendants to serve one year of probation and perform 40 hours of community service. We vacate both defendants convictions. 1 MCL provides that, [a]ny person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court. -1-

2 Defendants were federal border patrol agents assigned to the Hometown Security Team (HST), a task force comprised of members of the Michigan State Police, motor carrier officers, and federal border patrol agents. Members of the HST, including defendants, assisted the Jackson Narcotics Enforcement Team in executing a search warrant on two residences tied to a marijuana growing operation. The renter of the residences discovered that several items with no evidentiary value were missing after the search, including a stool and an antique thermometer that he considered a family heirloom. HST team leader Steven Temelko received information that defendant Bruce took an item from one of the homes during the execution of the search warrant and questioned him about the matter. Defendant Bruce admitted to taking a stool from one of the homes, and Temelko ordered him to return it. When Temelko asked why he took the stool, defendant Bruce allegedly attributed the decision to stupidity. He later returned the stool. Defendant Nicholson testified that his role in executing the search warrant was to secure a perimeter, and he entered the garage to talk with other officers present there. He asserted that Michigan State Police Trooper Craig Ziecina entered the garage and handed him a thermometer, telling him that he should fix it up because he had heard that defendant Nicholson was a tinkerer of sorts. Defendant Nicholson asserted that he thought the thermometer was trash because it had a foggy lens and a frame that appeared rusted and weathered. He added that this exchange took place in front of several other officers, and that Michigan State Police Trooper Jeffrey Schrieber indicated that everything in the home without evidentiary value would be thrown away. 2 Defendant Nicholson asserted that he scanned the group of officers present but none objected to him taking the item. He later discarded the thermometer after he inadvertently broke it while trying to refurbish it. According to defendant Nicholson, he did not realize that the thermometer was not trash until a detective contacted him to investigate the matter. Defendants were charged with misconduct in office, a common law offense, and larceny in a building, a felony. Both moved to dismiss the misconduct in office charges against them, arguing that their employment as border patrol agents did not fall within the definition of employment in a public office as defined for purposes of the crime of misconduct in office. The trial court disagreed and denied their motion to dismiss and later denied their motion for a directed verdict at trial. Defendants were convicted and sentenced as set forth above. On appeal, defendants argue that the trial court abused its discretion by denying their motions to dismiss and erred by denying their motions for a directed verdict because they are not public officers that could be charged with misconduct in office. 3 We agree. 2 Schrieber denied stating that any items not seized would be thrown away and denied seeing Ziecina hand any object to defendant Nicholson. 3 Defendant Nicholson s argument is based upon the motion to dismiss and defendant Bruce s argument is based upon the motion for directed verdict. However, because defendants joined in each other s motions in the trial court and the analysis and reasoning will apply to both equally, we treat each of these arguments raised on appeal as applying to both defendants. -2-

3 The question of whether a defendant is a public officer is a question of law reviewed de novo. People v Coutu, 459 Mich 348, 353; 589 NW2d 458 (1999). A court s ruling on a motion to dismiss is reviewed for an abuse of discretion. People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013). An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes. People v Buie, 491 Mich 294, 320; 817 NW2d 33 (2012). We review de novo a trial court's denial of a motion for a directed verdict. Abke v Vandenberg, 239 Mich App 359, 361; 608 NW2d 73 (2000). When reviewing a trial court s decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence presented by the prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt. People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001). MCL provides that, [a]ny person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court. When the Legislature codifies a common-law crime without articulating its elements, we must look to the common law for the definition of the crime and, until the Legislature modifies the common law definition, we are bound by it. People v Perkins, 468 Mich 448, 455; 662 NW2d 727 (2003). At common law, misconduct in office was defined as corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office. Coutu, 459 Mich at 354, quoting Perkins & Boyce, Criminal Law (3d ed), p 543. A public officer could be convicted of misconduct in office (1) for committing any act which is itself wrongful, malfeasance, (2) for committing a lawful act in a wrongful manner, misfeasance, or (3) for failing to perform any act that the duties of the office require of the officer, nonfeasance. Perkins, 468 Mich at 456. The specific elements of the offense of misconduct in office, i.e., what the prosecutor must prove with respect to the defendant in order to convict of the charge of misconduct in office, are as follows: (1) defendant is a public officer, (2) the misconduct occurred in the exercise of the duties of the office or under the color of the office, and (3) is corrupt behavior. People v Milton, 257 Mich App 467, 471; 668 NW2d 387 (2003). Here, the very first element, whether defendants are public officers, is at issue. In Coutu, 459 Mich at 354, our Supreme Court identified five elements necessary for an individual s position to qualify as a public officer: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an -3-

4 inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. [Id. (citation and quotation marks omitted).] The existence of [o]ath and bond requirements may also assist in making this determination. Id. at 355. The word the is a definite article, and Constitution and legislature are both singular nouns. Because the appears before these singular nouns, it is clear that the phrase created by the Constitution or by the legislature contemplated one Constitution and one legislature. And, because the phrase was drafted by the Michigan Supreme Court, applying Michigan law, reason dictates that the Constitution and the legislature contemplated were those of Michigan. This interpretation is consistent with our general interpretation of definite articles and nouns as they appear in statutes. See, e.g., Robinson v City of Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000)( [R]ecognizing that the is a definite article, and cause is a singular noun, it is clear that the phrase the proximate cause contemplates one cause. ). Moreover, Michigan case law refers to this state s lawmaking branch of government as the Legislature while referring to the nation s lawmaking branch as Congress. See e.g., Taxpayers of Mich Against Casinos v State, 471 Mich 306, 332; 685 NW2d 221 (2004), cert den 543 US 1146; 125 S Ct 1298; 161 L Ed 2d 106 (2005); Moorman v Moorman, 340 Mich 636, 643; 66 NW2d 248 (1954); Mich Dep t of Civil Rights ex rel Jones v Mich Dep t of Civil Serv, 101 Mich App 295, 307; 301 NW2d 12 (1980). Thus, the words legislature and Congress are not synonymous. Because the position of federal border patrol agent was not created by the Michigan Constitution or by the Legislature, it must have been created by a municipality or other body through authority conferred by the legislature in order for defendants to qualify as public officers. It was not; it is uncontested that this position was created by Congress. While MCL d allows federal law enforcement officers to enforce state law to the same extent as a state or local officer if certain conditions are met, the fact that defendants were temporarily enforcing Michigan law bears no relation to how their positions were created. The Coutu Court described the elements as the five indispensable elements (Id. at 354) and plaintiff has failed to establish that defendants position meets even the first element. Thus, the trial court abused its discretion by denying defendants motion to dismiss and further erred in failing to grant defendants motions for a directed verdict on the charge of misconduct in office. Defendants convictions of misconduct in office must be vacated. This being true, we need not consider defendants remaining arguments on appeal. We vacate both defendants convictions. /s/ Deborah A. Servitto /s/ Christopher M. Murray -4-

5 S T A T E O F M I C H I G A N C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED October 5, 2017 v No Jackson Circuit Court TERENCE MITCHELL BRUCE, LC No FH Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No Jackson Circuit Court STANLEY LYLE NICHOLSON, LC No FH Defendant-Appellant. Before: SERVITTO, P.J., and MURRAY and BORRELLO, JJ. BORRELLO, J. (dissenting). Contrary to the majority s conclusion that defendants were not public officers, and therefore could not be convicted of misconduct in office, I would conclude that, pursuant to People v Coutu, 459 Mich 348; 589 NW2d 458 (1999), defendants qualify as public officers for purposes of the misconduct in office offense. Therefore I would conclude that the trial court properly denied defendants motions to dismiss and motion for a directed verdict. Accordingly, I respectfully dissent. My colleagues in the majority have aptly stated the facts and standard of review; I therefore proceed by addressing the parties legal arguments. I. MISCONDUCT IN OFFICE [T]he elements of the common-law offense of misconduct in office are (1) the person must be a public officer, (2) the conduct must be in the exercise of the duties of the office or done under the color of the office, (3) the acts were malfeasance or misfeasance, and (4) the acts -1-

6 must be corrupt behavior. People v Carlin (On Remand), 239 Mich App 49, 64; 607 NW2d 733 (1999). The majority concludes that defendants were not public officers at the time of the offense and therefore the trial court erred in denying defendants motions to dismiss and motions for a directed verdict. However, the majority erroneously reads public officer to exclude a federal agent acting under the color of state law at the time of the offense. Our Supreme Court has set forth five elements to determine whether an individual s position qualifies as a public officer : (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. [Coutu, 459 Mich at 354 (quotation marks and citation omitted).] Additionally, oath and bond requirements are of assistance in determining whether a position is a public office. Id. at 355. Before trial, defendants moved to dismiss the charge of misconduct in office. They asserted that they did not meet the first element under Coutu because neither the Michigan Constitution nor the Michigan Legislature created their positions as federal border patrol agents. The state countered and relied on MCL d, which provides in pertinent part as follows: (1) A federal law enforcement officer may enforce state law to the same extent as a state or local officer only if all of the following conditions are met: (a) The officer is authorized under federal law to arrest a person, with or without a warrant, for a violation of a federal statute. (b) The officer is authorized by federal law to carry a firearm in the performance of his or her duties. -2-

7 (c) One or more of the following apply: * * * (iii) The officer is participating in a joint investigation conducted by a federal agency and a state or local law enforcement agency. (iv) The officer is acting pursuant to the request of a state or local law enforcement officer or agency. * * * (2) Except as otherwise provided in subsection (3), a federal law enforcement officer who meets the requirements of subsection (1) has the privileges and immunities of a peace officer of this state. The state argued that as federal law enforcement officers, defendants could enforce state law to the same extent as a state police officer under certain applicable conditions, and that they were entitled to all the privileges and immunities of a state peace officer. Moreover, plaintiff argued that the Michigan State Police, whose task force defendants joined in the execution of the warrant, were an agency created by the Michigan Constitution or Legislature, or, at a minimum, that defendants were agents of the Michigan State Police. The trial court agreed that defendants could enforce Michigan law while executing the search warrant under MCL d. The trial court thereafter denied the motion for dismissal, holding that defendants acted under the color of State Police powers as agents of the State Police because they were in a joint venture during the execution of the search warrant. At the close of trial, the trial court denied defendants motion for a directed verdict, holding that a jury could determine whether defendants were public officers when viewing the evidence in the light most favorable to the prosecution. Applying the factors set forth above in Coutu, I would conclude that the trial court did not err in denying defendants motions to dismiss and for a directed verdict because defendants qualified as public officers at the time they were members of the Hometown Security Team (HST), a joint task force comprised of members of the Michigan State Police, motor carrier officers, and federal border patrol agents. The first factor concerns whether the position was created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature. Coutu, 459 Mich at Here, the majority notes that the word the is a definite articular and concludes that, [b]ecause the appears before these singular nouns, it is clear that the phrase created by the Constitution or by the legislature contemplated one Constitution and one legislature. And, because the phrase was drafted by the Michigan Supreme Court, applying Michigan law, reason dictates that the Constitution and the legislature contemplated were those of Michigan. [Ante at 5.] -3-

8 However, there is nothing in the text of the Coutu opinion indicating that the words constitution and legislature refer exclusively to the state constitution and the state legislature. Moreover, even assuming that Coutu referred exclusively to the state constitution and state legislature, here, at the time of the charged offense, defendants were in positions that were created by the state legislature. The majority concludes that defendants were border patrol agents and that these border patrol positions were not created by the state legislature or the state constitution. However at the time the offenses were committed, defendants were serving as members of the HST a task force that was authorized by the Legislature. The only legal mechanism by which federal officers (in this case border agents) can operate under state law is by a statute conferring state authority upon them. In this case, MCL d permits federal law enforcement officer[s] [to] enforce state law to the same extent as a state or local officer. Thus, the Legislature crafted a law that permits federal law enforcement officers to act under the color of state law to the same extent as state or local officers under certain circumstances such as part of a joint federal-state investigation. See MCL d(1)(c)(iii)-(iv). Hence at the time of the offenses, defendants were operating not as border patrol agents but as part of a joint task force. The only way defendants could participate in the joint task force was by state statute, MCL d. The majority fails to address the impact that MCL d has on whether the federal officers, at the time the offense was committed, were acting in law enforcement positions i.e. HST members that were created by the Legislature pursuant to the statutory authorization under MCL d. Contrary to the majority, I would therefore conclude that under the first factor set forth in Coutu, that at the time the offense was committed, the officers were acting in a position that was created by the Legislature pursuant to the legislative authority conferred under the Michigan Constitution. Next, I would examine the other Coutu factors to determine whether defendants were public officers at the time of the offenses. The second factor provides that the position in question [m]ust possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public.... Coutu, 459 Mich at Here, in permitting certain federal law enforcement officers to participate in state law enforcement actions in certain circumstances, MCL d delegates a portion of sovereign power of government to federal officers such as defendants. By acting in the joint task force, defendants were permitted to enforce state law to the same extent as a state or local officer.... MCL d(1). Thus, defendants were exercising the sovereign power of the state government for the benefit of the public. See e.g. Tzatzken v City of Detroit, 226 Mich 603, 608; 198 NW2d 214 (1924) ( [police officers] act for the state in its sovereign capacity ). The third factor concerns whether the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority. Coutu, 459 Mich at Here, the powers conferred and the duties to be discharged while defendants were acting as HST members were governed, in part, by MCL d, which governs the parameters as to when a federal law enforcement officer may enforce state law, and -4-

9 provides that the officer may enforce state law to the same extent as a state or local officer. In addition, the statute provides that, when a federal officer qualifies under the statute, the officer has the privileges and immunities of a peace officer of this state. MCL d(2). Thus, the powers conferred to defendants and duties to be discharged in relation to the task force were defined by the Legislature through its legislative authority. The fourth factor provides that the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body.... Coutu, 459 Mich at Here, by acting as part of a statefederal task force, defendants duties were controlled and governed by the law i.e. MCL d. Furthermore, to the extent that defendants were inferior or subordinate to other officers in the task force, those positions were created by the Legislature under MCL d. The fifth factor provides that the position must have some permanency and continuity, and not be only temporary or occasional. Coutu, 459 Mich at Here, the position in which defendants were in i.e. HST members was not a temporary or occasional positon. Instead, the state and federal government continually participate in joint operations and, given defendants status as border patrol agents, defendants were eligible to participate in future joint operations. The sixth factor concerns whether the position contains an oath. Coutu, 459 Mich at Here, state and federal officers swear an oath of office. In sum, contrary to the majority s conclusion that defendants were not public officers for purposes of misconduct in office, the six factors set forth in Coutu indicate that defendants were public officers for purposes of the misconduct in office offense and I would therefore conclude that the trial court did not abuse its discretion in denying defendants motions to dismiss and motions for a directed verdict. 1 Having concluded that defendants qualified as public officers, I would proceed to address defendants remaining arguments as follows: II. SUFFICIENCY OF THE EVIDENCE Defendants argue that, even if they were public officials, there was insufficient evidence to show that they acted with corrupt intent, a necessary element of misconduct in office. 1 Defendant Nicholson, contends that he does not meet the statutory definition of a police officer or law enforcement officer under the version of MCL (l), a provision of the Michigan Commission on Law Enforcement Standards Act, MCL et seq., or the definition of public officer under MCL (e), which is a part of the Incompatible Public Offices Act, MCL et seq. However, there is no indication that the Legislature intended these acts to define the term public officer for purposes of the common-law offense of misconduct in office. Rather, as discussed above, our Supreme Court has set forth a five-part test to determine whether someone is a public officer for purposes of misconduct in office. Thus, defendant Nicholson s argument that these statutes control lacks merit. -5-

10 When reviewing a challenge to 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. People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). Circumstantial evidence and reasonable inferences therefrom may be sufficient to prove all the elements of an offense beyond a reasonable doubt. People v Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007). Any conflicting evidence must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997). Questions of credibility are left to the trier of fact and will not be resolved anew by this Court. People v Avant, 235 Mich App 499, 506; 597 NW2d 864 (1999). As stated above, [T]he elements of the common-law offense of misconduct in office are (1) the person must be a public officer, (2) the conduct must be in the exercise of the duties of the office or done under the color of the office, (3) the acts were malfeasance or misfeasance, and (4) the acts must be corrupt behavior. Carlin, 239 Mich App at 64. Defendants challenge the sufficiency of the evidence with respect to the fourth element. This Court has clarified the meaning of corrupt behavior: Corruption in this context means a sense of depravity, perversion or taint. [Perkins & Boyce, Criminal Law (3d ed), p] 542. Depravity is defined as the state of being depraved and depraved is defined as morally corrupt or perverted. Random House Webster s College Dictionary (1997). Perversion is the act of perverting, and the term perverted includes in its definition misguided; distorted; misinterpreted and turned from what is considered right or true. Id. The definition of taint includes a trace of something bad or offensive. Id. Pursuant to the definitions, a corrupt intent can be shown where there is intentional or purposeful misbehavior or wrongful conduct pertaining to the requirements and duties of office by an officer. See also Perkins & Boyce, supra at 542 ( It is corrupt for an officer purposely to violate the duties of his office. ). [People v Coutu (On Remand) (Coutu II), 235 Mich App 695, ; 599 NW2d 556 (1999) (First emphasis added).] Acts are sufficient to sustain the charge of misconduct in office if they demonstrate a tainted or perverse use of a public officer s powers and privileges or demonstrate a perversion of the trust placed in the officer by the people of the state. Id. at 707. Defendant Bruce asserts that appropriating a stool for personal use during the execution of a search warrant is insufficient to constitute corrupt behavior because this Court has upheld convictions for misconduct in office in instances that he characterizes as being more serious than his misconduct. But there is no requirement that an act be sufficiently serious, only that it demonstrate corrupt behavior. Defendant Bruce s appropriation of a stool for his personal use during the execution of the search warrant demonstrates purposeful misbehavior or wrongful conduct pertaining to the requirements and duties of office by an officer. Coutu II, 235 Mich App at 706. Indeed, seizing a citizen s private property during the execution of a search warrant and appropriating it for personal use is a perversion of the trust placed in law enforcement officers to execute their duties in accordance with the law. For the same reason, defendant Nicholson s appropriation of the thermometer also demonstrates corrupt behavior. This is true -6-

11 despite defendant Nicholson s contention that another trooper originally presented the thermometer to him and he believed it to have no significant value. Indeed, defendant Nicholson even admitted that he knew not to take anything from the home even if it was trash. In short, there was sufficient evidence to demonstrate that defendants acts constituted corrupt behavior that satisfied the fourth element of misconduct in office. III. ENTRAPMENT BY ESTOPPEL (DOCKET NO ) In Docket No , defendant Nicholson moved in the trial court to hold an evidentiary hearing on his defense of entrapment by estoppel. Defendant Nicholson argues that the trial court found that he sustained his burden of proof on all the elements of the defense, but submitted the issue to the jury instead of dismissing the case. Defendant Nicholson argues that this amounted to error because entrapment by estoppel is a question of law that must be decided by the court and is not a question of fact for the jury. Whether entrapment occurred is a question of law reviewed de novo. People v Fryda, 288 Mich App 446, 456; 793 NW2d 712 (2010). The trial court must make specific findings regarding entrapment that this Court reviews for clear error, which occurs if this Court is left with a firm conviction that a mistake was made. Id. If defendant demonstrates an error, under the harmless error test preserved, nonconstitutional error is not a ground for reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative. People v Lukity, 460 Mich 484, ; 596 NW2d 607 (1999), quoting MCL [T]he effect of the error is evaluated by assessing it in the context of the untainted evidence to determine whether it is more probable than not that a different outcome would have resulted without the error. Id. at 495. The doctrine of entrapment by estoppel precludes prosecution if a defendant can establish the following elements: (1) that a government official advised the defendant that certain illegal conduct was legal, (2) that the defendant actually relied on the government official s statements, (3) that the defendant s reliance was reasonable and in good faith given the identity of the government official, the point of law represented, and the substance of the official s statements, and (4) that, given the defendant s reliance, prosecution would be unfair. [People v Pierce, 272 Mich App 394, ; 725 NW2d 691 (2006).] When a defendant claims entrapment, including entrapment by estoppel, the proper procedure is for the trial court to hold an evidentiary hearing, at which the defendant bears the burden of proving entrapment by a preponderance of the evidence. Id. at 400. Entrapment, including entrapment by estoppel, is a question of law for the trial court to decide, not a question of fact for the jury to resolve. People v Woods, 241 Mich App 545, 554; 616 NW2d 211 (2000). Here, defendant Nicholson moved for an evidentiary hearing on entrapment by estoppel. He provided testimony at the hearing that was substantially similar to his trial testimony. In -7-

12 pertinent part, he testified that, during the search of the home, Trooper Ziecina presented him with the thermometer and suggested that he refurbish it, Trooper Schreiber stated that items not seized would be thrown away, and he looked at the other officers present to gauge if it was acceptable for him to take the thermometer. After listening to the testimony, the court ruled: When I look at the totality of the circumstances, the statements made that he could make something nice out of it suggesting to the Court at least that they were suggesting that he could take it with him, that it was just going to be trash. These are State Police officers making these statements. It appears that it was an old, rusty thermometer. In good faith he thought if they don t have a problem with it and it s just going to be thrown out, that he could do it. I ll allow the estoppel entrapment by estoppel... as to that. But defense counsel inquired if the court s ruling applied to both counts or only to the larceny count, and the court responded that it only applied to the larceny count. Defense counsel asserted that the ruling on entrapment should apply to both counts, and that the court should dismiss both charges. However, the prosecutor interjected that the court could not dismiss the charges because of entrapment by estoppel. The court agreed with the prosecutor stating, I totally agree with that. No. This is just a defense that he can raise at the time of the time of trial. The court expressed that it would provide jury instructions related to entrapment by estoppel for both counts. On the first day of trial, defendant Nicholson moved to dismiss the case because caselaw provides that entrapment is a question of law for the court to decide, and he asserted that the court had determined that the entrapment defense applied at the evidentiary hearing. However, the court denied the motion explaining, I said you could raise it as a defense and argue it to the jury. Defendant Nicholson is correct that the trial court erred in presenting the entrapment defense to the jury because entrapment by estoppel is a question of law for the trial court to decide, not a question of fact for the jury to resolve. Woods, 241 Mich App at 554. Nonetheless, the trial court s error was harmless and cannot warrant relief because defendant Nicholson was not entitled to the defense of entrapment by estoppel. Entrapment by estoppel should be utilized only where an earnest, law-abiding citizen attempts in good faith to comply with the law by consulting an appropriate government official, but unfortunately receives misinformation. Id. at 560. Defendant Nicholson cannot avail himself of the entrapment by estoppel defense for three reasons: first, by virtue of his position and experience, he knew or should have known better than to take any item for his own use during the execution of a search warrant. If a citizen knows or should know better, but attempts to seek immunity by claiming reliance on misinformation obtained from a government employee, prosecution is not unfair and estoppel by entrapment should have no application. Id. (emphasis added). Defendant Nicholson was a border patrol agent, but he also testified that he had previously been a police officer in Maine and received training about when it was appropriate to seize personal property. Therefore, he cannot meet the fourth element of the defense because prosecution would not be unfair since he knew or should have known better than to take the thermometer because of his law-enforcement training. Second, for the same reason, defendant Nicholson cannot satisfy the third element; his reliance on any statement or implication that it was legal to take the thermometer could not be reasonable and in good faith -8-

13 because of his own experience and training as a police officer. Third, he cannot satisfy the first element because no government official advised him that taking the thermometer was legal. Indeed, he agreed that no one specifically told him he could take the thermometer and that he assumed he could. Thus, even crediting defendant Nicholson s testimony, there was no affirmative representation that he could take the thermometer, let alone a representation that it was legal to do so. Instead, as plaintiff argues, the circumstances merely suggested that the other officers tacitly condoned taking the thermometer. Thus, defendant Nicholson was not entitled to the entrapment by estoppel defense. Finally, defendant Nicholson is incorrect when he argues that the trial court determined that he was entrapped and entitled to dismissal of the charges. It is clear from the evidentiary hearing that the trial court was under the misapprehension that entrapment by estoppel was an issue of fact for the jury and that it was the court s role to determine whether to permit Nicholson to present the defense. Indeed, the court stated that it would allow entrapment by estoppel, and later stated that it was a defense to raise at trial for which it could provide jury instructions. Further, when defendant Nicholson alleged entitlement to dismissal based on the court s supposed finding of entrapment at the evidentiary hearing, the trial court denied it explaining, I said you could raise it as a defense and argue it to the jury. Thus, it is clear that the trial court did not intend its ruling to operate as a determination that defendant was entrapped, but only as a determination that he was entitled to raise that defense for the jury to decide at trial. In sum, the trial court erred by allowing the jury to decide the issue of entrapment by estoppel, which is a matter of law for the court to decide, but the error was harmless because defendant did not demonstrate that he was entitled to that defense. Further, defendant Nicholson s assertion that the trial court determined that he was entrapped is erroneous because the court merely determined that he was entitled to argue the defense to the jury. I would therefore conclude that defendant Nicholson is not entitled to relief on this basis. IV. CONCLUSION In conclusion, I disagree with the majority s interpretation of public officer for purposes of misconduct in office. I would hold that public officer includes federal agents when those agents are acting under the color of state law pursuant to a state statute in situations such as the joint task force that executed the warrant in this case. Accordingly, I would conclude that the trial court did not abuse its discretion in denying the motion to dismiss and the motion for a directed verdict. I would also affirm defendants convictions where there was sufficient evidence to support defendants convictions and where defendant Nicholson did not demonstrate that he was entitled to the entrapment by estoppel defense. /s/ Stephen L. Borrello -9-