Double jeopardy; People v. Smith; Convictions for assault & battery as well as resisting arrest; Convictions based on different conduct; People v. Lugo; Denial of motion for a judgment of acquittal on a resisting arrest charge; People v. Reese; People v. Nowack; People v. Lockett; People v. Eisen; People v. Lemmon

Because defendant’s assault and battery and resisting arrest convictions were based on different conduct, and the prosecution theory was that the assault was complete before he resisted arrest, the court held that he could be convicted of both crimes without violating the protection against double jeopardy. It also concluded that the trial court did not err in denying his motion for a judgment of acquittal on the resisting arrest charge. He was convicted of both offenses, but the trial court granted his motion for a new trial on the resisting arrest charge due to a jury instruction error. Thus, the court noted that his double jeopardy argument was “somewhat hypothetical” as to what relief it could grant even if it found error. In any event, it concluded that there was no double jeopardy violation. “It was the prosecution’s theory at trial that defendant first committed an assault and battery against” the deputy (B) when he shoved him, and then resisted arrest when B tried to arrest him for the assault. The court held in Lugo that there “is no violation of double jeopardy protections if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other.” As to his sufficiency of the evidence claim, the court held that a rational jury could find that B, “a police officer in uniform, told defendant he was under arrest after defendant assaulted him, that defendant responded by punching [B] and then actively resisted the arrest, and that [B] was acting within the scope of his duties when he arrested defendant.” Thus, there was sufficient evidence for a jury to determine that he committed the crime of resisting arrest. His arguments to the contrary were based on the premise that B’s testimony was less credible than “defendant’s testimony. These arguments relate to the weight of the evidence rather than its sufficiency, and” the court declined to reweigh the witnesses’ credibility. Affirmed.