          THE      ATJTORXEY‘GENERAI.
                       OFTEXAS

Board of Insur8nce Comml8sioner8
land Office Building
Austin, Texas              oplnlon lo. v-863
                           Re: Authority of a stock fire
                               and casualty insurance com-
                                p6ng and8 county mutual
                                insurance comjmny to enter
                               'lntormtu8lreln8uranco
                                agreerent, and related
Dear Hr. Butler:                quertlonr .
          By letter of April 18, 1949, you request an
oplnlon concerning the legality of a proposed relnaur-
ante sgreenent between ALsro Casxnlty Company, a capi-
tal 8tock oorapenyIncorporated under the provl81ona of
Chapters 2, 11, and 18 of Title 78, Vernonla Civil
Statutea, and Berar County Hutual Insurance Colnpang,
8 county 8mtual insurance co8rpanyIncorporated and
licensed under the provisions of Artlole 486Oa-20,
as amended, Vernon's Olvll Ststutes.
          Your letter ral8ea these 8peolflc   questlonsr
         .l. IS each conrpengauthorized to enter
     into the agreement?
          2. If 80, vbst %haiwcter of risks" of
     the stock corpsny my themturlcompsng    aa-
     sum3 to reinsure under the agreement?
          3. Ylll t&e agree8ent. if authoriced, re-
     lieve the stock colnparyof the relnasuranoeor
     unearned pre8tiwnreserve requirement imposed
     by Sections 7, 8, and 9 of Article 4682, Ver-
     non's Civil Ststutes, a8 to the buslnes.880
     reinsured?
          4. If 80, will the assumption b7 the
     n~tual oompany to reinsure the risks of the
     stock company Unpose s statutory obligation
     on the former to mintsin 8uch e re8erve on
     the brrsiness80 relnnsuredby It'?
                                                                *
                                                                    ,

Ron. George B. Butler, p8ge 2 (v-863)

          5. I? luthorlsed, vi11 th el88u8ptlon by
     the mtual wmpeny to reinsure risks a? the
     stock CoBpay itpore on the latter 8 ststptory
     obligation to ulntaln  a reserve in the amount
     of $1.00 per huudred of the tot81 exposure re-
     insured by the m&X81 carpuy a8 e contingent
     liablllty Of the stock Company 88 8 policy-
     holder of the mutual eo8pany by virtue of or
     in liOU Of th0 48808880nt lirbility Of POliCy-
     holder8 o?.the mutual plrderthe term8 of ertl-
     cle 4860s~20, Vernonsr Civil Statute87
%'h8conditional MturO of the vsrlour question8 is apparent,
and their pertinence 18 indicated bv ths term of the e-
greement and the vsrlous applicable statutes.
          !Pheagreement is esaenti8lly a predetermined pl8n
designed to establl8h mutual obligations of the companle8
to each other as to individual risks or portions thereof
selected by each as original or direct insurer and Shifted
or 'ceded' to the other a8 rdmnarer, 88 evidence by 8 list,
called a 'bordereau," prepared monthly end passed br the
direct vrlting insurer to the other as relnsurer.  &ch
COml~llJOblig8tOS itself to accept such risk8 e8 4l'Oi8-
posed upon It by the other In consideration of the mutual
obligations undertaken and fn conslderetlon of the relln-
qulshment or 'cession" of the premium charged by the direct
vrlting company tar thst portion of each rlbk "ceded," mf-
nu8 a stipulated "CDEWi88ioP." Be contract Is subject to
cancelletlon upon rtfpulated notice by either party..
          All 8t8tutoPy references vi11 be to yernon'a
CIvilStatutes unless otherwise Indicated.
          We will Initially conslder~your first question
from the Standpoint of the 8tock company. finexhibit from
it8 l&St am-1   StrteHeIltindfC4StOStfratit VritOtl the kinds
of Insurance clarbified es “fire and B18rlnemunder Article
4919, as vOl1 es e number Of W3Ualty liIiS8,including ailtO
end ot&er liability and workmen08 oompensatlon~in8urance.
4rticle 4919, dealing vith companies Rltlng  'so-calledfire
tid m8rlne lines, expressly authori8ea such e oomprny "to
cause Itself to be so Insured again8t a&. loss 6r~r18kn+t
may have Incurred in the course of its bUSine88. . D o To
the Same efiect is Article 4932# authorizing fire 8nd merino
companies to reinsure "in any other insurable company l?gal-
ly atithori8edto do business in this state0    It Ii neces-
sarily implied th8t 8Wh other companies are generally,au-
thorieed to 80Cept 8UCh risks as a reinnrurer. Aa to ths
other kin88 of insurance vrltten bg the stock company, there
being no'SW&tUtory e;rpreSsfOnon the SUbjOet, the rUl0 i8
stated in 46 Corpus Jurls Secyndum, lWo Section 12218
Bon. George B. Butler, page 3 (V-863)

         "As a goner81 rule, under e geuelul par-
     er to make contracts of ipl)uranae,an lnsur-
     ance ca8pamy Is euthorl8ed to relmure Its
     rl8k8   or tkm risks   Of other 808p&dOS.”
He therefore canelude th8t the stock oampany ray enter
Into 8 reciprocal relu8urauoe lg r eemntvlth another CO+
P-s*
         The subject of the county m&u81 aooeptlng qc
oedlug reinsurence is expressly treeted In Section 2q
of Prtlcle 48608-20, vhlch provider8
         "County Rut901 Izuswenee Capan     msy
     reinsure any or 411 of their risks lgelnst
     any or 411 hesards vhlah they ere p8rmitted
     to inrure agaainstvlth any other eorpsny or
     oo8panle8o
        "They shall iwve power awl euthorlty to
     m8ke and cuter into mutual oti reolprooal re-
     Insurance contreets vlth other Companle8 on
     the,mutual or oo-operative plan; provided
     that no Oouuty Mutual shall vrlte or assume
     the relnaurance on any other property than
     the property it is perrtltted to iMure, or
     on property situeted Outside of th8 &ate of
     %X88, and Vhen 8UCh a &tZ.Ut~&tUal rein-
     8ures the ~praperty, of another C*nf,    it
     sball~not by reason of rmch fact be, or be-
     care&-momberm? partner, of 8uch other     Com-
     peq, but z&all mily become liable ?or,the
     losaea of suoh other hmpany es rpeaified in
     the iontract of lnterinsurence end not other-
     vise; and provided fbrther, that a COunty
     Mutual shall only h8ve euthorlty to reinsure
     the risk8 of another   Compeny in comlderetlon
     of.the feet that stiohother comp8ny retiures
     it8 riSk8; &lidiOr the WPOSO     -itU) pSy Or
     eOllO& additional 4880888088t8   end/Or prOmi-
     'ama88 the CaSO my be."
          The first paregreph of Section 20 lp p eer s
                                                     to
authorlse the County Hut\lsl to procure relnsurance of
Its risk8 with other ins~rence compani88 vlthout qusli-
fleetion as to the type of such OthOi'iS8Uranae Uompa-
ties. The second paregreph, dealing vlth +e~~accept-
anae of relnsurance  'obligationsby county mutuel conpa-
                                                            c

Eon. Qeorge   B. Butler, page 4 (V-863)

riles*or other ln8uzance oump8nier Is less elea~ in
respect to the type of oapany vhose rlaks  th8 sounty
mutrvlwby reineuro.   That peSSibl0 ubispity reises the
8uia question SUbrittOd by you.
         You here advised PI t&t you interpret the
phrase %a the mtuel or aeeperatlve plu' to quall?y
the vord %mpenie8*    inediately preceding, ia 8UCh 8
ray es to make th@ first part  of the second paregreph
read8
          "They shall hsve power end luthority to
      make and enter Into mutual or reciprocal re-
      inruranre contrects vlth other Compenler
                  on the mutual or co-operative

You further construe the phrase "Comp8nies on the mutual
or cooperative plan" to mean county mutuals, end In rup-
port of ouch oon8truetlon you refer ua to the definition
of "Count Mutual Inwrancb Companies" in Section 1 of
Article 486OS-20 68,
          RC~panIe8 organized for the purpO88 of
      insurance on the mutuel or cooperetlve plan
      against loas or damage by $3~   lightning
      gas explosion, theft, vlndrto: and hi&    ind
      for all or either of such purposes.' (~hasir
      supplied.)
         There Is no tidamental reason thy a mutual end 4
stock company may not mutually reillsureeach other. Each
fs e corporate entity, entirely eapable, in the eyes oi
the lav, of nklng 'contract8mutually b8nefltlal to each.
The phrase, 'on the mutual or cooperatlv8 plen,” can 4180
be read to modl?y 'to make and enter into mutual or re-
ciprocal relnsurance cmtract8.”   These phreres are not
necessarily redundant, slnae one may refer to the re-
insurance contract vhile the other m8y refer to thedv;;-
all plan uader vhlch the contrect 18 to be rade.
finltlon in Section 1 is of doubtfil value since on its
face It describes mutual comp8niea vhlch ere not nec88-
serlly "County Mutu818." It does not attempt to set
out vh8t er8 companles "on ths mutual or coopentlv8
plan,' but, conversely, merely states in 8ff8et tbt
to be a county lutuel insurance company, th",coapaay must
operete "on the mutual or cooperetlve plea,
Hon..Qeorge B. Butler, page 5 (V-863)

           m       rosining      proViaiN8     Of the second     pars-
graph, upon eare?ul umlyslr, do not exclude the porei-
blllty of reciprocal relnrormce vlth other tlmn l coun-
ty mtnal.   bcept as limited by the lndlvldrul oomp8ny
oherter,   411 oeuaty       mutual8 are limited to         the   same
olmraokr        of risk8   on   the   sue   kind   s?   property. Yet
the rt8tute tirefalls prohibits rein8wanae of lny prop-
erty other than the property the oounty mutual Is per-
mitted to ln8ure, inferring     the poselblllty of reln-
SUMNO    dealings vlth companies having no nuch lirita-
tiona * The c~picuow        4bSOnCO of qualifying dO8igMtiOM
VhOrOVer  the VOrd “my”         is used tends to negetlve an
Intention to lkit the reinsuranae pover to reclproca-
tlon vlth only 'caupty mutual" or other "mutual" or "coop-
8MtiV8"   CO8JlNiOS;  Bin08   such 8 lirltation ceuld hV8
been   easily     expressed.

         In this connection,ve note that by ACta 1947,
50th Legislature, p* ngo ohapter 36~~ Art. &86Oa-20 V&S
~aplenaed
        SQ that the vord "Qampany" is defined to “refer
t0 Sad imolude Eblltype8 Of OFganiTi&tiOM, 4880Cistitill8,
dOlQ%%&iOSOr gFOUp8 sUbj&%t t0 the pl’OVi8iOM Of thl8
Aot.”  (~haS18 SUpplied). -8VbF,          it 18 to be noted
that the definition of the word “Company”     does not ex-
clude other types of organizations but laerelyincluirzizi
Fhose subject to the provl81ona of "this acten The con-
tOXt.iItUSt
          McO888rily be coMid8r8d in dOtOrI&iing th8
meaning of rGompanyA as used in various provisions of
the lav.
         we0 therefore9 cOnClud8 that the rOaiproC81 re-
insuFance contemplated by the statute 1s not limited ox-
pressly or by necessary Smplicetlon to county mutual8 or
other ia-    or eoaperatlve plan companies9 end In the
absence of such limitation v8 conclude that the stock end
the mutual oempany ury e&oh enter into the agreement.
The egrsement purport8 to oentemplate r8alprooetlon, co-
operation,and mutuality In the exoh8nge of relnsurenoe
obligetions su??iciently to meet the loose standards of
the statute.
         Your second question appear8 to be ensvered by
the OXpreSS forma of Section 20, heretofore quoted
vhiah, taken together vlth Seation la of Article &Oa-
200 .Fefera to the various etatut   prescribhg  the has-
ards against vhlch fire and vlndstom insurance compa-
nies b#eat      in Texas may insure and refers to Section
1 of Artiele 86Oa-20 in determining the klnda of prop-
erty vhich pay be so ln8ured. It vould uuduly lengthen
                                                             ,

                               ,L &,’   ,.,

Eon.   George   B. Butler, page 6 (V&3)

this O'~biniOR
             t0 qUOt0 Or di@St SuOh St8tatOS 8nd ve Vi11
assume that your board my 8atl8?eatorlly determine the
propriety of speoiilc Item8 by such referewe es indl-
Q&ted.
         Yoar third quOSt%QP et the time it v88-88ked v88
governed by 3eotlea~ 7, 8 ead 9 of Artiole 4682, prowrib-
iag the duties Of the Beard Of InNMSiOO COUiSSiOaOrS, v&oh
provide:
               *7. 3hll csloulate reserve on fire In-
       8uraace0- For every ao8pmy. dolag fix-elnaur-
       NC0 bUSiM88 ir this 3trte, h8 ShEi CSlOU-
       late the rein8uranoe reserve for unexpired
       fire risks by t8klng ?Uty per sent of the
       premium received on 811 unexpired rlsk8 that
       have less th8n One yur       to ruu, end 4 pro
       r8t8 of all premium8 received en risk8 tht
       luve more tbanone year to rvn. When th8 re-
       lnsurenc8     reserve, 8818ul8ted es above, Is
       less t&in forty per cent of 411 the premlumn
       received during the year, the relasurence re-
       serve in this ease ah811 be the vhole of the
       pMdUM        reuelved On 4ll of it8 IlllOXptiOd
       risks. For every oomprry transecting 8x1~
       kind Of iMtlrsnC0 bUSiM88 in th.i.8     3t8t0, for
       vhloh no bIt@iS 18 preserlbed by lav, h8 S&11
       celaulate the relasurenoe reserve upon the
       88me b88i8 prescribed in this 4rtiole as t0
       c0apan188 transaetlng     fire lnsurence busl-
       ness.
           "8. 3hQl ohsrge    premium8. - In M8rlne
       and inland in8ur8noe, he ah811 oh8rge 011 the
       prenium8 reoeived   on uuexpbed risks es 4 re-
       lnmrance    reserve.

            '9. When comp8ny18~c8pital is wired.-
       Revlng ohargedageinste a~              other then
       life, the reizmurance reserve, es~pre8orlbed
       by the lam of this State, and eddlng thereto
       al1 other debts~8nd alelm lg8in8t the aomp8-
       nj, h. Shs&   in -80 h0 ?indrthS 08pit81
       stock 0r th0 ocmpnny hpalred to the extent
       of twenty per cent give notloe to the oomp8ny
       to m&e good its vhole oapitel stook vlthin
       Sixty,drg8, Nd, if this 18 not done, h8
       Sbs11'requlre the company to ceese to do bus-
       iness VltJxLnthis State, and ah811 theaeupon,
           .

tin;   George Bi Butler, page 7 (V-863)

       in the Case the corpuy Is org4nlsed ander 4th
       thorlty o? the State, lnedl8tely inrtitute
       leg81 proceedln8a to determine vhet farther
       ah811 be dose in the case.”
m    ebete stetutes uke the rintenance of the required re-
serves a oondltlon of rolveaoy, IIIour eplaloa the re-
serves 8ust be Prlnhlned by the reinsurer or th8 relasur-
ed or in the lg@egate betveen the&
                third question v&r caked, hovever, prier te
           fcotar
the enactment of 3ePrte Bill 192, 51st bglrletare, 3ec-
tlon 16 of vhlch reads, in part,   es ?ollowr:
            "County Mutu81 Insur8nce Companies ah811
       8~lntein et all times unearned premium reserves
       for 811 tmerpired risks by reserving 502 of
       the unearned portion of premiUm8 collected l$-
       ter the effective &to of thlr Aot oa bu83qte88
       In forae or vrltten thereefter having tvo yurs
       or less to runI and by reserrimg  4 pro .mfi8of
       411 premiUm8 00118oted on risks that hve more
       tivm  tvo yeers to run. o o o
          u8 BSSWPO tbst the 8b88nCO Of r88Orve rOqUirOmeIlt8
under the old law on county mutu81 comp8nies prompted your
third question, but the hbove enaotrent has now placed cer-
tain reserve requlrements upon such companies,      We heve
been referred by th8 proponent8 of this agreement to the
prectlce of yopr Board in llloving e reserve     reduction vhere
reinsurenae is ceded, bat you edvise tbt such preetice bs
been epplied only to the extent th8t the reln8urlng comp8ny
18 subject to stetutory re5erv8     requirements end thps the
ml1 statutory reserve is &a feet, nint8ined by the oom-
pmles vhlch are parties to the relnrUr8nce transection,
either by one or th8 other    or in the eggreg8te betveen them.
It now seem8 tint your cited preetlce of ellewing 8 reserve
reduction oELeccoUnt of reln8urance     is eppllcable to th8
extent tht reserve8 ere reqrriredof these cemp8nler by lav.
Tow prectlee vi11 nov epply to those companies to th8t ex-
tent to vhich they ere requeed by rktUte to m8lntrln re-
serves,  lpearing in alnd that the full required r888rve as
to each comp8ny mU8t be m8fntalned by one or th8 other or
In the 8gBregate betveen them under your prectice.
         Our conclusion regarding the third qUO8tiOn diSpOS-
es of the fourth, since the latter question is predicated
on a negetlve an8ver to the third,
RN.      -orgo     B. Butler,       page 8 W-863)

             -,SOlUti-    Of th0 fifth -  fiul qUO8tiOn
depend8     upon vhether Artlole 486&-20 eakrpl4tOS'een-
Idgent      llablllty On the pert Of the rOia8m'0dStOCk
            cad cm vhetbr r~oh~rein8eed a-       beoemer 4
hzor          pollqholder of the m-1     by vlrtae of the
SktUtO. m     St4tUtO 008krpbtOS   Oapu OVBOFS:O? inStir-
eble property 88 8aberr of the mtul.     Only 'pollcy-
holder8' are '&xprOSSlysubjo& t0 a oeatiBge8t.liability
In Sectlonr 6 uad a(r),. The lien remrlag such lirbll-
lty etteohe8 only to rwl and perrwel   property lnsur8d,
ReiamFeda hare been  held rot to be "polioyholder8*
vlthla the 8eealag of ether regulatory 8trtute8. Cvn-
        v. Bembllc In8. Co., 127 hr. 499, 94 3.m
        6, Per a m      J 1   Section 20 eontemplates
e r~oi roul oon:eat iy &~e      of vhlch th, eamtty
ml-          not be 8 me8bor or pertaor of the reoipro-
c4Btlngecmpeny. It appear8 to eontapletetbat Oaoh am-
peny shall bOar the charges ega$xut it, looklng to ltr
ovn resoUrcea-endaemborrhip for rPBdr to meet them.
We, thereforo, oanolude tht the 8tOCk Co8pCn~ in lto
t8pscity es 4 rOiMUMd   i8 aOt required by St4tUtO t0
maintain 4 rosorvo           to meet oomtingent liabiliti88          lm-
posed by th8 rtatuto on polloyholder8 es 8emberr.                    ft
ny, of oourss, voluntarily oontreot to do 80.

               A stook fire ead carrririty
                                         bSur&IWO             cob
         paayeadecwatymtual                ioSPrmo0     Qempeay
         are not prohibitedby rtetuto fro3 entorlng
         Into.8mutualrotasureaee            egroement. A ts.
         4919. 4932. 4060s~20. v.C.3.:46              cJ.35~.
               A   oouuty   mttul     i.llS&~CO   OorpuJ      84s
         roh8uro 8Wh risk8 Of &~Stook fir0 8nd ml-
         Ualty inrllrenoo company es the eormty autual
         la8~00    acRpra) 18 luthorl8od  by StStUtO
         to iaiurees 8.direot lnsaror. Art.    486Ob20,
         VS.                                .
               Va der
                   th e
                      lSt&bliShO~ pl'Wti80 Of the
         Board Of     hNMN0          CariSSiOlAWS,     th0    pI1-
         earned premlUm r68orros roqulrod by 8tetuto
         aunt k ralatelaod by the reiaourlag co8peay
Ron. Goorge B. Butler,,page 9 (V-863)

     or by the reinsured company or in the aggregate
     b8tVOen them.

         A stock fire and oasoqlty bumrance oom-
     pany IS not required by St8tUtO t0 maintain 4
     retserve equal to 4 mpollcyholders' contingent
     &ssesement llablllty 4.8 a mOmb8r Of a OOtInty
     mutual Insurance company by reason of being
     r8insur8dby   the county mutual insuranc8 Cam-

                            Yours very truly,

                            ATTORREY ffEREFUiL
                                             OF 'PEJCAS

R#:bh:gw
                                I?ed&&niOl
                                Assistant

                            /cfiikdBk
                                I)avldB. Irons
                             AdmInistrative ABBiSkrnt

                             APF'EOVED


       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                     CITY OF WEST PALM BEACH,
                              Appellant,

                                      v.

              SCHOOL BOARD OF PALM BEACH COUNTY,
               a political subdivision of the State of Florida,
                                  Appellee.

                                No. 4D18-183

                            [January 23, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lisa S. Small, Judge; L.T. Case No. 50-2013-CA-010144-
XXXX-MB AH.

  Douglas N. Yeargin and Anthony M. Stella, West Palm Beach, for
appellant.

    Sean Fahey of the Office of General Counsel, SBPBC, West Palm Beach,
for appellee.

  Steven L. Brannock of Brannock & Humphries, Tampa, for Amicus
Curiae Florida Stormwater Association.

  Susan M. Seigle of Alvarez Winthrop Thompson & Storey, P.A.,
Gainesville, and Walter Harvey of Miami-Dade County School Board,
Miami, for Amicus Curiae Miami-Dade County School Board.

PER CURIAM.

   Affirmed. See City of Gainesville v. Fla. Dep’t of Transp., 920 So. 2d 53
(Fla. 1st DCA 2005); City of Key West v. Fla. Keys Cmty. College, 81 So. 3d
494 (Fla. 3d DCA 2012).

CONNER and KLINGENSMITH, JJ., and ROBY, WILLIAM, L., Associate Judge,
concur.

                            *          *          *
Not final until disposition of timely filed motion for rehearing.

                               2


                           STATE OF MICHIGAN

                            COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      May 17, 2018
               Plaintiff-Appellee,

v                                                                     No. 338100
                                                                      Calhoun Circuit Court
MICHAEL ANTHONY MCEWEN,                                               LC No. 2014-003165-FH

               Defendant-Appellant.

Before: MURRAY, C.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals by right his conviction, following a jury trial, of resisting or
obstructing a police officer resulting in injury; MCL 750.81d(2). The trial court sentenced
defendant to 270 days in jail with credit for 100 days served. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises from a traffic stop on December 23, 2013 in Albion, Michigan. On that
day, Deputy Ronald Leggitt of the Calhoun County Police Sheriff’s Department was on patrol,
dressed in full uniform and driving a marked patrol car. At approximately 1:30 a.m., Leggitt
observed a blue Chevrolet Impala facing southbound on State Street at the intersection of Austin
Avenue. This was a “T” intersection, meaning that a vehicle in the Impala’s position would have
to turn either left or right on Austin Avenue. Positioning his vehicle to make a right-hand turn,
Leggitt pulled up next to the Impala. Leggitt noticed that the driver—defendant—was looking
straight ahead, holding onto the steering wheel. Defendant was not looking to the left or right to
see if cars were coming from either direction. Leggitt testified that he found this behavior to be
“suspicious or a bit odd.”

         Upon further inspection of the vehicle, Leggitt noticed that it had no working license
plate lights, so he decided to “turn around and start to follow this car potentially to make a traffic
stop on it.” Leggitt stated that, after observing the vehicle follow what he deemed to be
“increasingly odd, more suspicious” driving patterns, he “turn[ed] on [his] overhead emergency
lights because [he was] going to pull the vehicle over for, the odd behavior, but two, it [had] no
license plate lights which are required by state law.” Leggett also shined his spotlight on the
vehicle to further gain the driver’s attention. Defendant did not immediately pull over in
response to Leggitt’s activation of his vehicle’s emergency lights and spotlight. After Leggitt
followed defendant for 2 or 3 city blocks, defendant pulled over into a parking lot. Defendant

                                                 -1-
testified that he never saw Leggitt’s police car or lights until he was in the parking lot.
Defendant remained in his vehicle, and even though defendant was alone in the vehicle, Leggitt
testified that he could hear yelling coming from inside the car.

        Leggitt left his vehicle and approached defendant’s car. As Leggitt arrived at the driver’s
side of defendant’s car, defendant started to yell at him, demanding to know why Leggitt had
pulled him over. Leggitt testified that he explained to defendant that he was being stopped for
his faulty license plate lights, to which defendant’s response was, “This is f*****g bulls**t.”
Leggitt testified that he asked defendant for his driver’s license, registration, and proof of
insurance, but that defendant kept on repeating, “This is f*****g bulls**t.” Defendant testified,
to the contrary, that Leggitt refused to tell him why he was being pulled over despite defendant
repeatedly inquiring about the reason. Defendant also testified that his vehicle had been properly
inspected during an oil change and was fully functional mere days before the incident.
Defendant also stated that his license plate lights were inspected days after the incident and that
they were working properly at that time.

       Based on defendant’s level of anger, Leggitt decided to open the driver’s side door of the
Impala. Defendant told Leggitt “not to f*****g open his door.” Leggitt explained to him that he
needed to calm down so that Leggitt could complete the traffic stop; otherwise, he would have to
place defendant in handcuffs for their safety. Defendant calmed down slightly, so Leggitt
explained to him again that he was pulled over because his license plate lights were not working
properly, which was against state law in Michigan. Defendant responded by saying, “This is
f*****g bulls**t. You are pulling me over for no f*****g reason.” While conversing with
defendant, Leggitt testified that he smelled alcohol from inside the vehicle and noticed that
defendant’s eyes were glassy and bloodshot.

        Leggitt testified that defendant eventually found his driver’s license, but that instead of
handing it to Leggitt, defendant threw it at him. Defendant denied throwing his driver’s license,
testifying that the license slipped from his hand and fell into the snow. By this time, three other
officers had arrived at the scene. Leggitt testified that he believed that defendant was operating
his vehicle under the influence of alcohol, and ordered defendant to step out of his vehicle, to
which defendant responded “f**k off.” To help assist Leggitt, Officer Rich Cuatt of the Albion
Department of Public Safety came to the driver’s side of the vehicle, pulled out his Taser, turned
it on, and pointed it at defendant. Defendant finally got out of the vehicle and yelled at a nearby
woman to “[r]ecord this, record this. They are brutally harassing me.” Leggitt did not respond
other than to ask defendant to turn around and put his hands behind his back. Defendant
complied, and Leggitt was able to secure the handcuffs, telling defendant that he was under
arrest for resisting and obstructing his investigation.

        Defendant resisted Leggitt’s attempts to place him inside the patrol car, stiffening his
body and refusing to sit in the back seat. Cuatt attempted to assist Leggitt in placing defendant
in the back of the patrol car by entering the backseat from the driver’s side and pulling defendant
toward the vehicle by his belt. With Cuatt pulling defendant from behind and Leggitt pushing
from the front, defendant began to enter the car; however, without any warning, defendant
kicked Leggitt in his left knee while wearing big snow boots. Leggitt described this kick as
intentional, stating that defendant “cocked back” his leg and kicked out. Defendant denied
intentionally kicking Leggitt. He did recall his legs swinging up and stated, “You being pulled

                                                -2-
back into a police car you have no choice but your legs to swing up [sic]. So yeah my legs did
swing up.” Defendant admitted that it took physical force to place him into the vehicle.

        After defendant kicked Leggitt, Leggitt fell to the ground. Another officer testified that
he heard someone say “ouch” from the other side of the police car and that when he went around
the vehicle, he saw Leggitt sitting on the ground. Two other officers took over securing
defendant while Leggitt dragged himself out of the way. An ambulance was called to assist with
Leggitt’s injuries because he could not stand. Defendant also began to yell about having
sustained a shoulder injury. By the time Leggitt arrived at the hospital, his knee was
significantly swollen.

        Officer Ben Hess, a road patrol deputy with the Calhoun County Sheriff’s Department,
was instructed to transport defendant to the hospital to be examined for injuries. Although
defendant was still yelling and screaming, Hess was able to get defendant into his patrol car for
transport. On the way to the hospital, defendant continued to yell, saying that he was going to
sue the Sheriff’s Department and the officers involved. Additionally, defendant made
threatening statements and yelled obscenities toward Hess. Defendant also kicked the patrol car
door and cage as he was being transported to the hospital. While at the hospital, defendant
continued to yell even after being told several times by officers and hospital staff that he was
causing a scene. Defendant was cleared by the emergency room doctor with no injuries and
taken to jail.

       Leggitt required extensive surgery on his knee and could not return to full duty for four
months. Additionally, he was told by his orthopedic surgeon that he would need a full knee
replacement in approximately 10 years.

       The jury convicted defendant as described. This appeal followed. On appeal, defendant
makes several challenges to the sufficiency of the evidence against him.

                                 II. STANDARD OF REVIEW

        We review de novo challenges to the sufficiency of evidence, viewing the evidence, and
all reasonable inferences therefrom, in the light most favorable to the prosecution. People v
Bennett, 290 Mich App 465, 471; 802 NW2d 627 (2010). We also review de novo as a question
of law whether an officer’s suspicion is reasonable under the Fourth Amendment. People v
Bloxson, 205 Mich App 236, 245; 517 NW2d 563 (1994).

                                        III. ANALYSIS

        The test for sufficiency of the evidence is “whether there was sufficient evidence to
justify a rational trier of fact in finding guilt beyond a reasonable doubt.” People v Wolfe, 440
Mich 508, 513-514, 489 NW2d 748 (1992), mod 441 Mich 1201 (1992) (quotation marks and
citation omitted). “A prosecutor need not present direct evidence of a defendant’s guilt. Rather,
[c]ircumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime.” People v Williams, 294 Mich App 461, 471; 811
NW2d 88 (2011) (quotation marks and citation omitted; alteration in original). In reviewing the
sufficiency of the evidence, this Court must not interfere with the jury’s role as fact-finder.

                                               -3-
People v Meshell, 265 Mich App 616, 619; 696 NW2d 754 (2005). “The credibility of witnesses
and the weight accorded to evidence are questions for the jury, and any conflict in the evidence
must be resolved in the prosecutor’s favor.” People v Harrison, 283 Mich App 374, 378; 768
NW2d 98 (2009).

       Defendant first argues that the evidence presented at trial was insufficient to establish a
permissible traffic stop. We disagree. Leggitt testified that defendant’s license plate lights were
not functioning properly as required by state law. MCL 257.686(2) provides,

               Either a tail lamp or a separate lamp shall be constructed and placed so as
       to illuminate with a white light the rear registration plate and render it clearly
       legible from a distance of 50 feet to the rear. A tail lamp or tail lamps, together
       with any separate lamp for illuminating the rear registration plate, shall be wired
       so as to be lighted whenever the head lamps or auxiliary driving lamps are
       lighted.

A police officer may stop and detain a driver when the officer witnesses a civil infraction
violation. See People v Rizzo, 243 Mich App 151, 156-157; 622 NW2d 319 (2000) (concluding
that a broken taillight on a motorist’s vehicle, which constituted a defective equipment violation,
provided reasonable suspicion for an investigatory stop); see also People v Williams, 236 Mich
App 610, 612; 601 NW2d 138 (1999) (“[T]o effectuate a valid traffic stop, a police officer must
have an articulable and reasonable suspicion that a vehicle or one of its occupants is subject to
seizure for a violation of the law.”). Leggitt testified that defendant’s vehicle did not have
functioning license plate lights, while defendant testified that his vehicle had been inspected
during an oil change and was fully functional mere days before the incident. Despite the
apparently conflicting testimony, the jury found Leggitt’s testimony to be credible. Matters
involving the weighing of evidence and determining the credibility of witnesses are left to the
jury. See Wolfe, 440 Mich at 514-515; see also Meshell, 265 Mich App at 619. The evidence
was therefore sufficient to conclude that Leggitt had reasonable suspicion to believe that
defendant had committed a civil infraction, and to allow a rational jury to conclude that the
traffic stop was valid. See Wolfe, 440 Mich at 514-515.

       Defendant also argues that the evidence presented at trial was insufficient to establish that
defendant kicked Leggitt and caused Leggitt’s injuries. Again, we disagree. Once again, there
was conflicting testimony on this issue. Leggitt testified that defendant kicked him in his left
leg. Defendant denied intentionally kicking Leggitt. Resolution of the issue again required an
assessment of witness credibility. The jury found that Leggitt’s testimony was credible, and we
will not interfere with that determination. Meshell, 265 Mich App at 619; Harrison, 283 Mich
App at 378. The evidence was sufficient to enable the jury to conclude that defendant kicked
Leggitt.

       The circumstantial evidence was also sufficient to allow the jury to conclude that
defendant’s kick caused Leggitt’s injury. Williams, 294 Mich App at 471. Leggitt stated that
once defendant kicked him, he felt his kneecap slide off and heard “a pop and a snap.” Leggitt
immediately fell to the ground in pain. Another officer also testified that he heard someone say
“ouch” from the other side of the car and that he then saw Leggitt sitting on the ground.
Additionally, an ambulance was called to assist with Leggitt’s injuries because he could not

                                                -4-
stand. By the time he arrived at the hospital, Leggitt’s knee had swollen significantly. Leggitt
had to undergo extensive surgery on his knee and did not return to full duty for four months. In
sum, viewing the evidence in the light most favorable to the prosecution, the evidence supports
the conclusion that defendant physically kicked and injured Leggitt. See Wolfe, 440 Mich at
514-515.

        Finally, defendant argues that the evidence was insufficient to allow the jury to conclude
that he resisted or obstructed Leggitt. We disagree. Under MCL 750.81d(1), the elements
required to establish a violation 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 Corr, 287
Mich App 499, 503; 788 NW2d 860 (2010). Under MCL 750.81d(2), the prosecution is required
to establish, in addition to these two elements, that defendant’s actions caused the police officer
an injury requiring medical treatment.

        The jury found that Leggitt’s testimony was credible. Harrison, 283 Mich App at 378.
The record evidence supports the conclusion that defendant assaulted, battered, and wounded
Leggitt. Further, defendant admits that it took physical force to place him into Leggitt’s police
car after he failed to follow police officers’ orders to enter the police vehicle. This action alone
would qualify as “obstructing” a police officer. The term “obstruct,” as defined in the statute,
“includes the use or threatened use of physical interference or force or a knowing failure to
comply with a lawful command.” MCL 750.81d(7)(a). In addition to Leggitt’s testimony,
several officers testified that defendant resisted being placed in the back of the patrol car. The
prosecution presented sufficient evidence that defendant resisted or obstructed Leggitt.1

       Finally, Leggitt received medical care for his knee injury after the incident with
defendant. In fact, Leggitt had to undergo surgery on his knee. Clearly, Leggitt’s bodily injury
required medical attention or medical care, as Leggitt sought out and actually received such care
because of defendant’s actions. Therefore, the third element of the statute is satisfied. Given the
evidence, a reasonable jury could conclude that the prosecution satisfied its burden of proving
the elements of resisting arrest causing bodily injury, MCL 750.81d(2), beyond a reasonable
doubt. See Wolfe, 440 Mich at 514-515.

       Viewing the evidence in the light most favorable to the prosecution, there was sufficient
evidence for the jury to find that Leggitt’s traffic stop was reasonable because defendant had
committed a civil infraction. Further, there was sufficient evidence for the jury to convict
defendant of resisting or obstructing Leggitt, causing him physical injury that required medical
treatment.

1
  Defendant does not argue that he did not know that Leggitt, who was wearing full police
uniform and driving a marked police vehicle with flashing emergency lights, was a police
officer.

                                                -5-
Affirmed.

                  /s/ Christopher M. Murray
                  /s/ Deborah A. Servitto
                  /s/ Mark T. Boonstra

            -6-


J-S67044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     Appellee             :
                                          :
                     v.                   :
                                          :
GIOVANNI ROBERT MUCCI,                    :
                                          :
                     Appellant            :     No. 1754 EDA 2018

                 Appeal from the PCRA Order April 30, 2018
             in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002024-2013

BEFORE: OTT, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED JANUARY 04, 2019

     Giovanni Robert Mucci (Appellant) appeals from the order dismissing his

motion for new trial based upon after-discovered evidence, which the trial

court treated as a petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

     We provide the following background. On October 30, 2014, Appellant

was found guilty of numerous charges stemming from actions that occurred

on September 13, 2012. That evening, around 10:00 p.m., Officer Michael

Taylor of the Upper Darby Township Police Department observed a silver

Lincoln Navigator stop suddenly in the middle of the street. The car remained

there for approximately 20 seconds, when Officer Taylor decided to initiate a

* Retired Senior Judge assigned to the Superior Court.
J-S67044-18

traffic stop to determine why the car was stopped in the middle of the street.

Officer Taylor also called for back up1 and decided not to approach the car

until other officers arrived.

      The first officer to respond was Officer Stephen Oreskovich.            Once

Officer Oreskovich arrived, Officer Taylor approached the driver, who was later

identified as Appellant.        According to Officer Taylor, Appellant appeared

nervous, his hands were trembling, and Officer Taylor was unable to

determine if Appellant had a weapon. Thus, Officer Taylor asked Appellant to

step out of the vehicle to conduct a pat down for weapons. Appellant opened

the driver’s side door, placed his left foot on the ground as if he were going to

step out of the vehicle, “then all of a sudden [leaped] back into the car [and]

began to slam the door shut.” N.T., 10/22/2014, at 126.             Despite being

ordered to stop and get out of the car, Appellant started the vehicle, attempted

to strike Officer Taylor, and fled the scene in his vehicle, all of which Officer

Taylor announced over the police radio.

      A police chase ensued, with a number of police vehicles chasing

Appellant. During the course of this chase, Appellant violated traffic laws, hit

a parked vehicle, and hit police vehicles occupied by Officer David Snyder and

1At the police station, Officer Francis George received that call. At trial, Officer
George testified that “a call came over the police radio that an officer was out
with a silver Lincoln Navigator that had just stopped in front of him with the
operator sticking his hands out the car window.” N.T., 10/24/2014, at 20.
Believing this to be “odd”, Officer George “jumped in [his] police car with [his]
partner[, Officer Shawn Kenney,] and [they] drove to the scene.” Id.

                                        -2-
J-S67044-18

Officer James Billie. An officer in one of the vehicles chasing Appellant, Officer

Amanda Klingensmith, “relayed on the radio that she observed a gun in

Appellant’s hand.” Commonwealth v. Mucci, 143 A.3d 399, 404 (Pa. Super.

2016). “[A]s Appellant attempted to cut across a store parking lot, a police

cruiser being driven by [Officer] George collided with Appellant’s vehicle, thus

stopping the pursuit.” Id. “[Officer] George testified that, as he pointed his

duty weapon at Appellant and demanded to see his hands, Appellant threw a

dark object out the passenger side.”2 Id. at 407 (citing N.T., 10/24/2014, at

27). “Officer Oreskovich testified that Appellant refused to exit his vehicle so

the police pulled him out of his vehicle.” Id. at 404. After Appellant was pulled

from the vehicle, a struggle ensued, and officers had to Taser Appellant in

order to subdue him.

      Eventually, Appellant was handcuffed and transported to a local

hospital. According to Officer Francis Devine, based upon his observations of

Appellant at the scene, he believed “Appellant was under the influence of a

controlled substance and/or alcohol.” Id. at 404. Blood testing at the hospital

confirmed that Appellant’s blood was positive for “benzodiazepine agents,

opiates, and amphetamines.” Id. at 405.           Furthermore, upon searching

Appellant’s vehicle pursuant to a warrant, “police discovered a black handgun

2 Later, Detective Raymond Blohm recovered a black revolver approximately
seven feet from the passenger side of Appellant’s vehicle.
                                      -3-
J-S67044-18

holster, a small baggie containing a white powdery substance, and a pill bottle

containing several different types of pills.” Id. at 406.

        As a result of this incident, Appellant was charged with numerous crimes

related to the injuries that occurred to police officers involved in the chase,

his reckless driving and fleeing from police officers, resisting arrest, and

possession of controlled substances and paraphernalia. Prior to his jury trial,

Appellant requested, and was granted, permission to proceed pro se.3          In

addition, he served subpoenas on 15 individual police officers, as well as the

Upper Darby Police Department, seeking disciplinary files for all of these

officers. The Commonwealth moved to quash these subpoenas, and the trial

court granted that motion.

        A jury trial commenced on October 20, 2014. At trial, with Appellant

representing himself, many officers testified about the incident as discussed

supra.     Appellant’s defense was that he acted reasonably under the

circumstances, and that the officers used more force than was necessary to

subdue him.

        The jury convicted Appellant of aggravated assault as to Officer Snyder,

aggravated assault as to Officer Billie, fleeing or attempting to elude a police

officer, driving under the influence of a controlled substance, resisting arrest,

possession of a controlled substance, and possession of drug paraphernalia.

On January 9, 2015, Appellant was sentenced to an aggregate term of 10 to

3   Appellant was appointed stand-by counsel.
                                      -4-
J-S67044-18

22 years of incarceration to be followed by four years of probation. Appellant,

through counsel, timely filed post-sentence motions, which were denied.

Appellant timely filed a notice of appeal, and a panel of this Court affirmed

Appellant’s judgment of sentence on June 29, 2016. Mucci, 143 A.3d at 412.

Appellant timely petitioned our Supreme Court for allowance of appeal.

      Prior to our Supreme Court’s ruling on Appellant’s petition, Appellant,

through counsel, on January 17, 2017, filed a motion for a new trial based

upon after-discovered evidence, as well as a petition for remand with our

Supreme Court. By way of background, after Appellant was arrested in this

matter, he instituted a civil lawsuit against the Upper Darby Township Police

Department and officers involved in this case in the United States District

Court for the Eastern District of Pennsylvania.     During discovery for those

proceedings, Appellant was provided with a document dated September 14,

2012, entitled “Upper Darby Township Police Department Use of Force Report”

(the Report) authored by Officer George. Motion for New Trial, 1/17/2017, at

¶ 7. In the Report, Officer George detailed Appellant’s actions after Officer

George’s vehicle ran into Appellant’s vehicle.      Officer George wrote that

Appellant “had just thrown [a] firearm from vehicle and put hands out

driverside (sic) window.” Id. at ¶ 8, Exhibit A. The Report also provided that

Appellant’s hands remained outside the driver’s side window, even though

Appellant refused commands to exit the vehicle. Id. Appellant contends that

this information was contrary to Officer George’s testimony at trial. Id. at ¶ 9.

                                      -5-
J-S67044-18

Appellant argues that the Report entitles him to a new trial on the resisting

arrest charge, because it shows that Appellant was “cooperative with police

but that police utilized excessive force in apprehending him.” Id. at ¶ 14.

      On April 11, 2017, our Supreme Court denied both Appellant’s petition

for allowance of appeal and his petition for remand. Commonwealth v.

Mucci, 168 A.3d 1252 (Pa. 2017).        On August 8, 2017, the trial court

concluded that Appellant’s motion for new trial based upon after-discovered

evidence should be treated as a PCRA petition and ordered the Commonwealth

to file a response. The Commonwealth filed a response, and on September

29, 2017, the PCRA court filed notice of its intent to dismiss Appellant’s PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907.     Appellant filed a

response, and the PCRA court conducted a proceeding to discuss the positions

of Appellant and the Commonwealth on April 13, 2018. See generally, N.T.,

4/13/2018. On April 30, 2018, the PCRA court denied Appellant’s petition.

      Appellant timely filed a notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant contends the

PCRA court erred in denying the petition because the Report contained

“substantive evidence [that] contradicted sworn testimony given by [Officer

George] at trial.” We review this issue mindful of the following.4

4 We would be remiss not to point out a procedural issue in this case.
Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a] post-
sentence motion for a new trial on the ground of after-discovered evidence
must be filed in writing promptly after such discovery.” Pa.R.Crim.P. 720(C).
The comment to that rule provides the following.
                                     -6-
J-S67044-18

             Our standard of review of an order granting or denying post-
      conviction relief is limited to examining whether the court’s
      determination is supported by evidence of record and whether it
      is free of legal error…. After-discovered evidence is a basis for a
      new trial only if it: (1) has been discovered after the trial and could
      not have been obtained prior to the conclusion of the trial by the
      exercise of reasonable diligence; (2) is not merely corroborative
      or cumulative; (3) will not be used solely for impeachment
      purposes; and (4) is of such a nature and character that a different
      verdict will likely result if a new trial is granted.

      Accordingly, after-discovered evidence discovered during the
      post-sentence stage must be raised promptly with the trial judge
      at the post-sentence stage; after-discovered evidence
      discovered during the direct appeal process must be raised
      promptly during the direct appeal process, and should
      include a request for a remand to the trial judge; and after-
      discovered evidence discovered after completion of the direct
      appeal process should be raised in the context of the PCRA.

Pa.R.Crim.P. 720 (comment) (emphasis added).

       Instantly, Appellant filed his motion for a new trial on January 17, 2017,
which was prior to our Supreme Court’s ruling on his petition for allowance of
appeal. In addition, on the same day, Appellant filed with our Supreme Court
an application for remand for a hearing on a motion for new trial based upon
after-discovered evidence.          The Supreme Court subsequently denied
Appellant’s application for remand. However, it is unclear what effect the
Supreme Court’s order had on the procedural posture of Appellant’s motion
for new trial filed with the trial court, which was filed before the completion of
Appellant’s direct appeal. Moreover, the PCRA does not come into effect until
a judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Here,
Appellant’s judgment of sentence became final on July 10, 2017, after
Appellant did not file a petition for writ of certiorari to the United States
Supreme Court. Thus, Appellant’s motion for new trial was filed prior to his
right to be able to file a PCRA petition. Nevertheless, at the hearing, counsel
for Appellant told the court that this motion for a new trial was a PCRA petition.
N.T., 4/13/2018, at 10. In addition, the standard for whether Appellant is
entitled to a new trial under a timely-filed PCRA petition or a motion for new
trial based upon after-discovered evidence is the same.
                                       -7-
J-S67044-18

Commonwealth v. Cobbs, 759 A.2d 932, 934 (Pa. Super. 2000) (internal

citations omitted).

        At issue in this case is the Report, and specifically the portion of the

Report where Detective George writes that after Appellant threw an object

from the vehicle, he “put [his] hands out [the] driversside [sic] window.”

Motion for New Trial, 1/17/2017, at Exhibit A. According to Appellant, this

new information could not have been discovered prior to trial,5 is not merely

corroborative or cumulative, will not be used solely for impeachment, and if it

were available during trial, the outcome of the trial on the resisting arrest

charge and aggravated assault charges6 would have been different. See

Appellant’s Brief at 31-34. Appellant argues that Officer George’s writing this

information in the Report, while then testifying to the opposite at trial, is

substantive evidence that Appellant “tried to surrender and if a finder of fact

5   The Commonwealth does not contest this point.

6 In his motion for new trial, Appellant requested a new trial on the resisting
arrest charge based upon the Report. See Motion For New Trial, 1/17/2017,
at ¶ 14. In addition, he requested a new trial on the aggravated assault
charge related to Officer Billie based on information he learned during a
deposition of another officer. Id. at ¶¶ 15-23. On appeal, Appellant argues
that the Report entitles him to a new trial on both the aggravated assault and
resisting arrest charges. See Appellant’s Brief at 35. It is not entirely clear
whether his claim that the Report entitles him to a new trial on the aggravated
assault charge is a claim he failed to raise in the trial court in violation of
Pa.R.A.P. 302(a). However, based upon our discussion infra, it does not
matter, because Appellant has not satisfied this Court he is entitled to relief.

                                      -8-
J-S67044-18

accepts that conclusion, the rest of Appellant’s defense falls into place.” Id.

at 35.

         The trial court considered this argument and concluded that “the

information contained in the Report is not new, [and] it merely corroborates

the information contained in the Police Incident Report regarding the position

of [Appellant’s] hands.” Trial Court Opinion, 7/19/2018, at 2. In addition, the

trial court concluded that the information in the Report would not likely result

in a different verdict. Id.

         We begin by considering whether the Report is corroborative or

cumulative,     which   was    recently   defined   by   our   Supreme   Court   in

Commonwealth v. Small, 189 A.3d 961 (Pa. 2018), and referred to as the

“same point, same character test.” Id. at 973.

         [A]fter-discovered evidence is merely corroborative or cumulative
         — and thus not sufficient to support the grant of a new trial — if
         it is of the same character and to the same material point as
         evidence already adduced at trial. It is clear the terms “of the
         same character” and “to the same point” refer to distinct qualities
         of evidence; to be “merely corroborative or cumulative,” newly
         discovered evidence must tend to prove material facts that were
         already in evidence at trial, and also be of the same grade or
         character of evidence as that produced at the trial to prove those
         material facts. If the new evidence is of a different and “higher”
         grade or character, though upon the same point, or of the same
         grade or character on a different point, it is not “merely”
         corroborative or cumulative, and may support the grant of a new
         trial based on after-discovered evidence.

Id. at 973–74 (citations omitted).

         During direct examination at trial, Officer George offered the following

description of the events after Appellant’s car was forced to stop.

                                          -9-
J-S67044-18

      [Officer George:] We were ordering [Appellant] to show me his
      hands, show me his hands, show his hands. Immediately – when
      we immediately hit and I was still in the car I was focused on
      [Appellant]. We kind of – you know, we kind of got rocked a little
      bit. He kind of – he was leaning over his seat. I saw him throw
      a dark colored – a dark object out the passenger side window. I
      didn’t know what it was, but it was, you know, some object that
      was dark. Again, I got out and was ordering him commands at
      gunpoint to show me his hands.

      [Commonwealth:] Did he put his hands up?

      [Officer George:] He initially did, and then when Officer Kenny was
      on the driver’s side he – I think right now there is another officer.
      Officer Oreskovich was over with Officer Kenn[e]y. [Appellant]
      became real fidgety and put his hands down and stopped
      complying.

N.T., 10/24/2014, at 26-27.

      Upon cross-examination, Appellant presented Officer George with the

police incident report filed by Officer George. In that report, Officer George

wrote that Appellant “was seen throwing a dark object out of the passenger

side window before displaying his hands.” N.T., 10/24/2014, at 56. Appellant

asked Officer George specifically whether he saw Appellant’s hands out the

driver’s side window. Officer George stated, “You never put your hands out

the window.” Id. at 57. It is this answer that is contradicted by the Report.

      Instantly, there is no question that a police incident report and the

Report are of the same quality.     Both reports were authored by the same

police officer shortly after this incident. Furthermore, both reports indicate

that Appellant’s hands were displayed, with the Report adding the hands were

“out” the window. Motion for New Trial, 1/17/2017, at Exhibit A. Thus, the

                                     - 10 -
J-S67044-18

Report and the police incident report were of similar, but not the same

character. Accordingly, we conclude the PCRA court erred in determining that

the Report was “merely cumulative or corroborative.” Trial Court Opinion,

7/19/2018, at 2.

      However, what is clear is that this one small point was not enough for a

jury to reach a different verdict on the resisting arrest charge. There is no

question that shortly after displaying his hands, whether inside or outside the

driver’s side window, Appellant stopped complying with orders from the

officers. See N.T., 10/22/2014, at 132 (testimony from Officer Taylor

explaining that officers were “trying to struggle and get [Appellant] out of the

vehicle” and the “whole time he was kicking, swinging, punching”).           In

addition, there was testimony that Appellant continued to struggle once he

was handcuffed. See N.T., 10/28/2014, at 9 (testimony from Detective Lydon

stating that when Appellant was being escorted to the police vehicle in

handcuffs, he was “actively pulling away and [] kind of kicking at the officers

as they were taking him”).

      Based on the foregoing, even if Appellant were able to present evidence

that his hands were outside the window, and the jury believed that evidence,

such evidence “is [not] of such a nature and character that a different verdict

will likely result if a new trial is granted.” Cobbs, 759 A.2d at 934.

Accordingly, we agree with the PCRA court that Appellant is not entitled to a

new trial based upon this after-discovered evidence.

                                     - 11 -
J-S67044-18

     Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/19

                          - 12 -


582 S.W.2d 639 (1979)
Lois Ann FAULKNER, Appellant,
v.
Bobby Gerald FAULKNER, Appellee.
No. 19947.
Court of Civil Appeals of Texas, Dallas.
May 31, 1979.
Robert C. Cox, James Albert Jennings, Erhard, Cox & Ruebel, Dallas, for appellant.
Brian A. Eberstein, Dallas, for appellee.
Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
GUITTARD, Chief Justice.
Both parties to this divorce suit appeal from a decree dividing the community property and awarding the wife a "judgment lien" on certain corporate stock given to the husband by his parents. The court found that the stock was enhanced in value by the couple's personal services and by the lending of their credit to the corporation. The wife contends that the court should have awarded her an ownership interest in the corporation. The husband contends that there is no evidence to support the finding of enhancement or to justify imposition of the "judgment lien." We agree with the husband that there is no basis in the evidence for the finding of any community interest in the corporation or its stock or for any finding of enhancement of the stock. Accordingly, we reverse and remand for a new trial of the property issues.
The parties were married approximately twenty years. Their only possessions were a home subject to a large mortgage, household goods, automobiles, life insurance, and 2,170 shares of stock in Dallas Truck Plaza, Inc. Both were employed by that corporation, and the husband was a participant in *640 the corporation's profit-sharing plan. The stock was originally owned by the husband's parents, and was transferred to the husband as a gift on April 1, 1976.
The corporation was organized by the husband's father. In 1971, the father proposed that the corporation go into the truck repair and servicing business on a tract of land he owned. To obtain funds for construction costs a loan was sought from Skelly Oil Company, which agreed to lend the corporation $275,000 on condition that a promissory note be signed by the father, the mother, the three sons, and their wives. Accordingly, on May 25, 1971, a note in that amount was executed on behalf of Dallas Truck Plaza, Inc. and was signed individually by the father and mother, the three sons, and their wives.
The proceeds of the loan were used to build the truck stop. The present parties went to work as employees, the wife as a waitress and the husband as mechanic and shop manager. The husband served also as general manager in his father's absence. Both husband and wife were compensated for their services by salaries paid by the corporation. The business prospered and its stock increased in value. The corporation paid the installments on the note to Skelly as they fell due. None of the individual signers of the note have ever been required to make a payment.
None of the stock in the corporation was issued to either of the present parties until April 1, 1976, when the husband's parents transferred the 2,170 shares in question to him. This was one-eighth of the total shares outstanding. Similar gifts were made at the same time to the other two sons, and all these gifts were listed in a federal gift tax return filed by the parents.

The Wife's Appeal
The only point urged by the wife for reversal of the decree is the court's failure to find that she and her husband had a twenty-five percent community interest in Dallas Truck Plaza, Inc. by virtue of the tender of their community credit for the construction of Dallas Truck Plaza and their guaranty of its financial obligation. In support of this contention, she cites Broussard v. Tian, 156 Tex. 371, 295 S.W.2d 405 (1956) and Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881 (1937). Those cases stand for the rule that property acquired by either spouse on the credit of the community is community property. The obvious distinction is that in this case neither the husband nor the wife acquired any property interest in the stock of the corporation or in its assets by signing the corporation's note. That note was secured by the land, which had been owned by the husband's father, and by the truck stop and other facilities built on it. There is no evidence of any conveyance to the husband of any interest in that property or of any agreement that he should have such an interest. Neither is there any evidence that the husband acquired any property interest in the corporation until five years later, when his parents made him a gift of 2,170 shares of stock and made similar gifts to his two brothers. Counsel has cited no authority to support the view that a married couple can obtain a community interest in an incorporated enterprise by co-signing the corporation's note, and we know of none that would even remotely tend to support such a view. Consequently, we hold that the trial court was correct in its finding that the parties did not have a twenty-five percent community interest in the Dallas Truck Plaza, Inc.

The Husband's Appeal
The divorce decree recites findings that the community estate of the parties, through tendering its credit on the $275,000 note and the work efforts of both parties, has contributed a community interest in 2,170 shares of stock of Dallas Truck Plaza, Inc. It further recites that there has been an increase in value of the 2,170 shares attributable in part to the community by reason of both parties' efforts. The decree recites, however, that the part of the increase so attributable is not precisely ascertainable, and, consequently, that the entire amount of the increase is community in character by reason of commingling. To *641 determine what portion of the 2,170 shares is community property, the court found the value per share to have been $11.97 on April 1, 1976, and $14.44 on July 31, 1978, making a "community increase" per share of $2.47. Multiplying this figure by the 2,170 shares resulted in a total "community increase" of $5,359.90, of which the one-half interest of each spouse was $2,679.95. However, the judge did not award this figure to the wife as her community interest. Instead, unaccountably, he awarded her $17,750 as her share of the enhancement. To do this he devised a formula based in part on figures for the total value of the stock in the corporation and the gross sales of the corporation. He then awarded the stock to the husband as his separate property, but impressed that stock with a "judgment lien" of $17,750, to be paid to the wife at the rate of $300 per month.
The husband contends that the undisputed evidence shows that the 2,170 shares were wholly his separate property by virtue of the gift to him by his parents on April 1, 1976, and that there is no evidence of any subsequent enhancement in its value as a result of the earlier lending of community credit or as a result of any work by the present parties all of which were fully compensated by salaries paid to them by the corporation. The husband further contends that there is no evidence to support the figure of $17,750, which the court determined to be due the wife because of such enhancement. We agree. Any enhancement to the stock as a result of signing the note occurred five years earlier. And whether any enhancement occurred as a result of the value of the husband's services as a mechanic and manager or the wife's services as a waitress above and beyond the salaries they received is a matter of pure speculation under this record. Consequently, the stock, which was the husband's separate property on April 1, 1976, when given to him by his parents, remained entirely his separate property in 1978 at the time of the divorce. The $17,750 "judgment lien" awarded to the wife is without any evidentiary support.
The wife attempts to justify the $17,750 "judgment lien" on the theory that even if the stock should be considered separate property, the judge had discretion, under section 3.63 of the Texas Family Code, to impose this obligation on the stock in order to make a division of the estate "in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." To support this contention, she cites the opinion of this court in Muns v. Muns, 567 S.W.2d 563, 566 (Tex.Civ.App.Dallas 1978, no writ) and the more recent opinion of Crowell v. Crowell, 578 S.W.2d 562, 564-65 (Tex.Civ.App.Fort Worth 1979, no writ). These authorities, she argues, stand for the rule that it is immaterial how the trial court characterizes the property, so long as the division is fair and equitable under the circumstances. In this case the circumstances relied on to support the decree are the parties' assistance to the corporate enterprise by signing the corporation note in 1971 and their services to the corporation over the years as salaried employees, when they might have engaged in some enterprise on their own if they had not expected to be among those ultimately benefitted by the success of the corporate business. The wife insists that for the court to leave her almost wholly without assets after twenty years of marriage while permitting the husband to enjoy the benefits they both anticipated, would be so unfair as to justify this relatively modest charge on the husband's separate property.
This argument has a strong appeal, but we conclude that it cannot avail to support the judgment here. It was not advanced in the trial court. Neither did the judge find, as in Muns, that the estate of the parties was divided in a manner that was just and right, without regard to whether the property so divided was community or separate. We doubt that such a finding can be implied in view of the specific formula used to determine the $17,750 charge. That formula has no basis in the evidence and cannot be supported on any rational theory. What decree the judge *642 might have issued if he had approached the problem under section 3.63 is a matter of speculation. We cannot properly review the case here on a theory not presented in the trial court. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245 (1942); Rutherford v. Clark, 546 S.W.2d 932 (Tex.Civ.App.Tyler 1977, writ ref'd n. r. e.). Consequently, we have no alternative but to reverse.

The Judgment
The husband prays that the divorce decree be reversed and that judgment be rendered in his favor with respect to the "judgment lien" of $17,750. Alternatively, he prays that the cause be remanded for a new trial on the sole issue of whether the wife has any community interest in the stock in question, and, if so, the extent of such interest. Although we agree that the decree must be reversed in this respect, we cannot simply modify the decree by striking this provision because to do so would be to make a new division of the estate of the parties, a matter within the discretion of the trial court. McKnight v. McKnight, 543 S.W.2d 863, 868 (Tex.1976). Since we hold that the wife has no community interest in the stock in question, the court would have discretion to make a different division of the other property of the parties, including the home, the insurance, and the profitsharing plan, and could possibly impose a charge on the husband's separate property if the circumstances established on another trial bring that property within section 3.63 of the Code, as interpreted in Muns. In that connection, the actual market value of the home and of the stock, as distinguished from cost of book value, may be relevant. Accordingly, the decree of divorce is reversed insofar as the property division is concerned and the cause is remanded for a new trial. The decree is undisturbed with respect to its provisions for divorce, custody and child support.
Costs are taxed against the wife, except for the transcript, which contains numerous papers requested by the husband that are not pertinent to this appeal. We shall not undertake to examine each of these papers to determine what portion of the transcript is properly taxable. Consequently, the entire cost of the transcript is taxed against the husband.
Reversed and remanded.


46 Cal.Rptr.3d 111 (2006)
141 Cal.App.4th 408
The PEOPLE, Plaintiff and Respondent,
v.
Frank Rudolph ESTRADA, Defendant and Appellant.
No. C047785.
Court of Appeal of California, Third District.
July 14, 2006.
*112 William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
SCOTLAND, P.J.
This case poses the question whether it is proper, during voir dire of prospective jurors, for a trial court to inform them that jurors have no legal authority to engage in what is known as "jury nullification," and to solicit their assurances that, if chosen to serve as jurors, they will follow the law as stated to them by the court and not substitute their own views of what the law should be.
The answer is, "Yes." As we will explain, although jurors have the "power" to engage in jury nullification, they have no legal authority to do so. "`Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court. . . . We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.' [Citation.]" (People v. Williams (2001) 25 Cal.4th 441, 460, 106 Cal.Rptr.2d 295, 21 P.3d 1209 (hereafter Williams), italics added.) Indeed, a juror who refuses to follow the court's instructions on the law can be discharged from the jury because the person is "unable to perform his or her duty" as a juror. (Pen.Code, § 1089; Williams, supra, 25 Cal.4th at p. 448, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) It logically follows that the court can also attempt to prevent such an occurrence of juror nullification by (1) informing prospective jurors at the outset that jurors have no authority to disregard the law and (2) obtaining their assurance that they will not do so if chosen to serve on the jury.

*113 FACTS AND PROCEDURAL BACKGROUND
Defendant Frank R. Estrada walked into the Nugget Market in Davis, took two bags of charcoal and a package of sausage, placed them under his coat, and left the store without paying for the items. Having witnessed this, Rodolfo Granados, Jr., a loss prevention officer, followed defendant out of the store, caught up with him, and announced "security" and "stop." Defendant turned around and hit Granados in the ear with his fist. Granados grabbed defendant and, in Granados's words, "[b]oth of us had each other in somewhat of a headlock hold by a light pole that was pinned between us. He said something to the effect of `Let me go or I'll kick your ass.' I told him to give up, that one way or the other he was coming back with me. He was placed under a citizen's arrest. He at that time became more compliant. I was able to put handcuffs on him." In the meantime, defendant's accomplice dropped a bottle of cognac, threw a can of lighter fluid at a clerk, ran out of the store, and escaped.
When questioned by a police officer, defendant admitted he and his accomplice had agreed to enter the store to steal charcoal and lighter fluid. According to defendant, they planned to use it to light a fire in order to stay warm. The incident occurred in the month of January.
Defendant was charged with attempted robbery, burglary, and petty theft of retail merchandise, and was accused of committing the crimes while released on bail or on his own recognizance.
The defense called no witnesses at trial. During closing argument to the jury, defense counsel conceded defendant's guilt on the petty theft charge, argued the attempted robbery charge was unwarranted, and left the burglary "up to you [the jurors] because it makes sense." Counsel implored the jury: "Convict [him] of a petty theft. We're talking sausage. . . . That's what this case is about, petty theft that just got a little overdrawn."
The strategy proved successful because the jury acquitted defendant of attempted robbery, finding him guilty only of burglary and petty theft. The trial court found "defendant was on bail bond status at the time of [the] offense in this case."
The probation report reflected that defendant had numerous prior arrests and adjudications for committing theft-related crimes. Thus, the trial court sentenced him, in part, to the middle term of two years in state prison for the burglary.
Defendant appeals. His sole contention is the trial court erred when, during voir dire of prospective jurors, it solicited their assurances that, if chosen as jurors in this case, they would not engage in "jury nullification."
We disagree and shall affirm the judgment.

DISCUSSION

I
During voir dire, the trial court explained that those prospective jurors who were ultimately selected to serve on the jury would have "two fundamental duties"  (1) to "determine the facts. You will decide what happened or didn't happen in this case," and (2) to listen to the law given to the jurors by the court, and to "apply it to the facts as you have determined them and that's how you arrive at your verdict."
Defendant unsuccessfully objected when the trial court stated to the prospective jurors: "I need to have your assurance, if you will, without reservation that you will follow my instructions on the law in this *114 case. . . . [¶] So I . . . need your assurance that you will not tell me then in essence, `Well, that's not what the law is.' It's not a coulda, shoulda, woulda. `I don't like that law so I'm not gonna follow it.' It's not an O.J. or anything like that. So another word for it is jury nullification. Another word, `I don't like that law. I'm not gonna follow it.' If you don't like the law, yours, mine, agree our responsibility is [to] get the law changed, let the legislature [d]o what we can to get change. [¶] Our obligation if we live in a society of laws is not just to say, `I don't like it. I'm not going to follow it,' in particularly in a courtroom such as this. I need to have your assurance you will follow the law as I state it to you and not substitute for what you think the law is or what the law should be. Anyone who just feels he or she couldn't do that? Wonderful."[1]
This instruction was loosely derived[2] from then-section 8.5(b)(19) of the California Standards of Judicial Administration, which stated a trial court should include the following inquiry during voir dire of prospective jurors: "It is important that I have your assurance that you will, without reservation, follow my instructions and rulings on the law and will apply that law to this case. To put it somewhat differently, whether you approve or disapprove of the court's rulings or instructions, it is your solemn duty to accept as correct these statements of the law. You may not substitute your own idea of what you think the law ought to be. Will all of you follow the law as given to you by me in this case?"[3]

II
Defendant's appellate counsel acknowledges that the trial court had, in counsel's words, "unquestioned" authority to tell the prospective jurors "to follow the law as instructed by the court." He also concedes that, in his words, the court had "no duty to instruct the [prospective jurors] as to their inherent power to nullify the law. While such power remains inherent in the jury system, it should not be encouraged or glorified." However, counsel complains the court went further, telling prospective jurors that, if selected to serve on the jury, they had, in his words, "no power of nullification, nor may they exercise it." This, he argues, "amounted to a[n] impermissible invasion of the province of the jury and a denial of the historic power of nullification held by all criminal juries." "By instructing the [prospective jurors] that they were forbidden to engage in nullification," he says, "the court removed from the Sixth Amendment the jury's role" as "the conscience of the community" and "the final barrier [against] unjust prosecutions and criminal convictions."
*115 From a technical perspective, it could be said defendant's counsel overstates the import of the trial court's inquiry of prospective jurors. The court did not tell them that they could not refuse to follow the law if selected as jurors; it simply sought their assurances that they would decline to second-guess the law and, instead, would follow the law as given to them by the court.
As a practical matter, however, some of the prospective jurors reasonably may have construed the inquiry as an admonition that, if selected to serve on the jury, they had no right of nullification, i.e., no authority to disregard the trial court's instructions on the law and, instead, to decide what they think is "right" under the circumstances, regardless of the law.
Thus, rather than "split hairs" over the wording of the trial court's inquiry, we will tackle a question left unanswered by the California Supreme Court in Williams, supra, 25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209, i.e., whether a trial court may specifically instruct jurors they have no authority to render a verdict contrary to the law as provided to the jury by the court. (Id. at p. 459, fn. 8, 106 Cal.Rptr.2d 295, 21 P.3d 1209.)[4]

III
What is referred to as "jury nullification" is a jury's "defiance of the law." (U.S. v. Thomas (2d Cir.1997) 116 F.3d 606, 614.) It "can cover a number of distinct, though related, phenomena, encompassing . . . conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws." (Ibid.)
An extensive discussion of jury nullification is contained in Williams, supra, 25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209, which we summarize.
Jurors have a duty to follow the law as stated to them by the trial court. (Williams, supra, 25 Cal.4th at pp. 449, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) Nevertheless, although it is "`"a power which they ha[ve] no right to exercise"'" (id. at pp. 450, 460, 106 Cal.Rptr.2d 295, 21 P.3d 1209), jurors have "the ability to disregard, or nullify, the law." (Id. at p. 449, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) "But the circumstance that the prosecution may be powerless to challenge a jury verdict or finding that is prompted by the jury's refusal to apply a particular law does not lessen the obligation of each juror to obey the court's instructions." (Id. at p. 451, 106 Cal.Rptr.2d 295, 21 P.3d 1209.)
Accordingly, "it is important not to encourage or glorify the jury's power to disregard the law. While that power has, on some occasions, achieved just results, it also has led to verdicts based upon bigotry and racism. A jury that disregards the *116 law and, instead, reaches a verdict based upon the personal views and beliefs of the jurors violates one of our nation's most basic precepts: that we are `a government of laws and not men.' [Citation.]" (Williams, supra, 25 Cal.4th at p. 459, 106 Cal.Rptr.2d 295, 21 P.3d 1209, fn. omitted.)
For this reason, the trial court "need not instruct the jury concerning its power to nullify the law . . . ." (Williams, supra, 25 Cal.4th at pp. 456, 457, 106 Cal.Rptr.2d 295, 21 P.3d 1209.)
Courts also have the authority to prevent jury nullification from occurring. (Williams, supra, 25 Cal.4th at p. 460, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) Hence, when a trial court learns that a juror is refusing to follow the law, the court may discharge the juror because a juror who does so is "`unable to perform his duty' within the meaning of Penal Code section 1089." (Id. at pp. 448, 463, 106 Cal. Rptr.2d 295, 21 P.3d 1209.)[5]
Since the court has the authority to discharge a juror who is engaging in juror nullification, it logically follows that the court can attempt to prevent an occurrence of juror nullification by informing prospective jurors at the outset that jurors have no authority to disregard the law, and by obtaining their assurance that they will not do so if chosen to serve on the jury.
We reject defendant's claim that "such a directive to the jury amounts to an unwarranted intrusion into the province of the jury, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution." Long ago, the United States Supreme Court held that the exclusion of prospective jurors because they "could not be trusted to `abide by existing law' and `to follow conscientiously the instructions' of the trial judge" does not violate a defendant's rights under the Sixth and Fourteenth Amendments." (Lockett v. Ohio (1978) 438 U.S. 586, 595-597, 98 S.Ct. 2954, 2960, 57 L.Ed.2d 973, 983-985.) Indeed, a purpose of the Fourteenth Amendment is to ensure fairness in the adjudicatory process by guaranteeing the right to an impartial jury; hence, it is the "`trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions"; in other words, it is not within the legitimate province of a jury to engage in nullification, and it is "`self evident'" that having jurors who intend to do so falls "`woefully short of that . . . to which [a defendant is] entitled under the Sixth and Fourteenth Amendments.' [Citation.]" (Morgan v. Illinois (1992) 504 U.S. 719, 730, 732, 112 S.Ct. 2222, 2231, 119 L.Ed.2d 492, 503, 504.)
In sum, a "nullifying jury is essentially a lawless jury" (Williams, supra, 25 Cal.4th at p. 463, 106 Cal.Rptr.2d 295, 21 P.3d 1209) that is not, as defendant claims, "guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution."
Also unconvincing is his argument that an anti-nullification instruction is improper because it will result in "a direct denial of the historic power of nullification held by all criminal juries." The irony is that, as a practical matter, a jury has the power to nullify an anti-nullification instruction.
In fact, that is what occurred in this case. Defense counsel conceded to the *117 jury that defendant was guilty of petty theft and that the burglary charge also "makes sense" in light of the evidence. However, defense counsel urged the jury to acquit defendant of the charge of attempted robbery because this was an insignificant theft "that just got a little overdrawn." Even though defendant's act of punching the store's security officer, in an unsuccessful attempt to thwart him from detaining defendant and regaining control over the items that defendant had unlawfully taken from the store, constituted attempted robbery as a matter of law (People v. Estes (1983) 147 Cal.App.3d 23, 26-28, 194 Cal.Rptr. 909; accord, Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221-224, 8 Cal.Rptr.3d 872), the jury complied with defense counsel's request.
Having achieved what he requested from the jury, defendant obviously was not prejudiced by the anti-nullification inquiry because, in acquitting defendant of the charge of attempted robbery, the prospective jurors who were chosen to decide the case necessarily nullified the anti-nullification directive that had been given to them.

DISPOSITION
The judgment is affirmed.
SIMS and DAVIS, JJ., concur.
NOTES
[1]  We assume the trial court's use of the word "[w]onderful" implied that there was no overt sign of disagreement from the prospective jurors.
[2]  In embellishing the language of the standard, the trial court did not heed our high court's advice that "judges should closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards to ensure that all appropriate areas of inquiry are covered in an appropriate manner." (People v. Holt (1997) 15 Cal.4th 619, 661, 63 Cal.Rptr.2d 782, 937 P.2d 213.)
[3]  Effective January 1, 2006, this section was renumbered and amended, so it now reads: "It is important that I have your assurance that you will follow my instructions and rulings on the law and will apply that law to this case. To put it somewhat differently, whether you approve or disapprove of the court's rulings or instructions, it is your solemn duty to accept as correct these statements of the law. You must accept and follow my instructions even if you disagree with the law. You may not substitute your own idea of what you think the law ought to be. Will all of you follow the law as given to you by me in this case?" (Cal.Stds.Jud.Admin., § 8.5(b)(21).)
[4]  We recognize that the opinion in Williams stated the issue somewhat differently, namely, whether "a trial court may or must instruct a jury specifically that it has no power to render a verdict contrary to the law or the facts before it . . . ." (Williams, supra, 25 Cal.4th at p. 459, fn. 8, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) We state the question another way because jurors unquestionably have the "power" to "nullify the law." (Id. at pp. 450, 457, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) However, this does not mean jurors have the legal authority to do so. As persuasively explained by the decision in Williams, jurors have a legal duty to apply the rules of law given to them by the court's instructions. (Id. at pp. 448, 449, 451, 452, 455, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) Stated another way, jurors are legally "obligated to follow the law." (Id. at p. 453, 106 Cal.Rptr.2d 295, 21 P.3d 1209.) Thus, while jurors have the "`"power to misapply the law,"'" they do not have the right to do so. (Id. at p. 460, 106 Cal.Rptr.2d 295, 21 P.3d 1209.)
[5]  Penal Code section 1089 states in pertinent part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors."


147 A.2d 514 (1959)
Maurice RUARK and Jeanette Ruark, Plaintiffs,
v.
John Harland SMITH, Defendant.
Superior Court of Delaware, New Castle.
January 5, 1959.
John Bader, of Balick & Bader of Wilmington, for plaintiffs.
William Prickett, Jr., of Prickett & Prickett of Wilmington, for defendant.
TERRY, President Judge.
The complaint alleges that the defendant on June 29, 1957, drove a motor vehicle against the person of the plaintiff who was then crossing U. S. Rt. 13A in Little Creek Hundred, Sussex County, Delaware. The allegations continue with particularity in respect to the defendant's negligence, and conclude with a prayer for damages resulting from personal injuries alleged to have been sustained by the plaintiff by reason of said collision.
The defendant appeared, answered the complaint, and filed various forms of discovery. The plaintiff answered appropriately.
Pursuant to Rule 33 of the Rules of Civil Procedure of this Court, Del.C.Ann. the plaintiff on May 27, 1958, propounded to the defendant certain interrogatories, two of which are objected to. They are as follows:
"10. At the time of and with respect to the accident of June 29, 1957, were you insured for personal injury automobile liability?
"11. If the answer to Question No. 10 is yes, give the following further information in regard thereto.
"(a) The name of the Insurance Company.
"(b) The monetary limits of coverage for one person involved in one accident as of June 29, 1957.
"(c) The provisions, verbatim, relative to `medical payments' coverage."
The objections to Interrogatories 10 and 11 are upon the ground that the information sought therein is not relevant to the issues prior to trial.
Rule 33 authorizes a party litigant to employ the use of interrogatories as a means of discovery subject to the limitations upon their use by the provisions of Rule 26(b).
"Rule 33. * * * Interrogatories may relate to any matters which can be inquired into under Rule 26(b). * * *"
"Rule 26(b) Scope of Examination. Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant *515 to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial, if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence."
The precise question presented is whether in the ordinary motor vehicle collision case the discovery process afforded under Rules 33 and 26(b) may be used by a plaintiff to compel a defendant to reveal prior to trial (1) if the defendant had personal injury liability insurance as of the time of the collision, and (2), if so, the name of the Insurance Company, and (3) the limit of said coverage.
The question is one of first impression in this State. Plaintiff's right to such discovery, however, has arisen in other jurisdictions in connection with various discovery procedures, such as examination before trial, interrogatories as in the instant case, and motion for production. The cases generally speaking have not been determined upon the exact amount of information desired, the particular discovery procedure involved, or the precise language of the discovery statutes or rules. Rather, they address themselves to the basic question, Should an injured plaintiff be able to discover information about insurance coverage when it is clear that the same is not an issue in the case and it is evident that the plaintiff's desire for such information is for evaluation and settlement purposes.
I find a multitude of conflicting opinions upon the question both under the Federal and State decisions. The Federal conflicts appear under Rules 33 and 26(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A., while the State conflicts appear under statutes or rules of court in the particular jurisdiction carrying a close analogy to the Federal Rules.
I have concluded, after reading the decisions, that the better reasoned ones disallow the type of discovery herein sought. Dipietruntonio v. Superior Court, 1958, 84 Ariz. 291, 327 P.2d 746; Gallimire v. Dye, D.C. E.D.Ill.1958, 21 F.R.D. 283; Jeppesen v. Swanson, 1955, 243 Minn. 547, 68 N.W.2d 649; McClure v. Boeger, D.C.E.D.Pa.1952, 105 F.Supp. 612; McNelley v. Perry, D.C. E.D.Tenn.1955, 18 F.R.D. 360; Brooks v. Owens, Fla.1957, 97 So.2d 693; Goheen v. Goheen, 1931, 154 A. 393, 9 N.J.Misc. 507; State ex rel. Allen v. Second Judicial District Court, 1952, 69 Nev. 196, 245 P.2d 999; Superior Ins. Co. v. Superior Court, 1951, 37 Cal.2d 749, 235 P.2d 833; People ex rel. Terry v. Fisher, 1957, 12 Ill.2d 231, 145 N.E.2d 588; Maddox v. Grauman, Ky.1954, 265 S.W.2d 939, 41 A.L.R.2d 964; Orgel v. McCurdy, D.C., 8 F.R.D. 585; Brackett v. Woodall Food Products, Inc., D.C., 12 F.R. D. 4; Villars v. City of Portsmouth, 100 N.H. 453, 129 A.2d 914.
The Supreme Court of this State in the case of Lord v. Poore, 9 Terry 595, 108 A. 2d 366, 370, held that the "mention of liability insurance in an automobile collision case is obviously prejudicial to the defendant." In the light of this declaration of prejudice, together with a complete lack of any showing of relevancy to the issues as framed by the pleadings or otherwise indicated by the plaintiff, the information sought by Interrogatories 10 and 11 must be denied.
An order will be entered upon motion.


.       I

                  THE     ATTORNEY                GENERAL
                              OP        -XAS

                            April 3, 1968

    Hon. Thomas C. Green, P.E.                     Opinion No. ~-216
    Member Secretary, Texas State
      Board of Registration for                    Rer   Authority of the Texas
      Professional Engineers                             State Board of Reglstra-
    Austin, Texas 78701                                  tion for Professional
                                                         Engineers to pay from
                                                         Line Item No. 7 of Its
                                                         departmental approprla-
                                                         tlon, Senate Bill 15,
                                                         Acts 60th Legislature,
                                                         1967, Regular Session,
                                                         Ch. 784, p. 2175, trav-
                                                         eling expenses and the
                                                         purchasing of furniture
                                                         and necessary office
                                                         equipment and supplies
Dear Colonel Green:                                      for its investigator.
          You have requested the opinion of this office concerning
the authority of the Texas State Board of Registration for Pro-
fessional Engineers, hereinafter called 'Board" to pay from Line
Item No. 7 of the departmental appropriation to the Board, Senate
Bill 15, Acts 60th Legislature, 1967, Regular Session, Chapter 784,
page 2175, the General Appropriations Bill, the traveling expenses
of Its investigator as well as the purchase price of furniture and
necessary office equipment and supplies for its Investigator.
          Line Item No. 7 of the department appropriation to the
Board provides:

                 “7.  Investigation Program: Expenses
            of witness fees, court transcripts, docu-
            mentary evidence, processing complaints,
            court costs, and other necessary expenses
            in gathering evidence for the enforcement

                                   -   1035   -
                                                        .   .

Hon. Thomas C. Green, page 2 (M-216)

          In Attorney General's Opinion No. M-179   (1968),
                                                          this
office held that:
           "The Texas State Board of Registration
    for Professional Engineers has authority to
    employ an investigator to assist the Board
    in the enforcement of Article 3271a, Vernon's
    Civil Statutes, and such Investigator may be
    compensated from the departmental appropria-
    tion to the Texas State Board of Registration
    for Professional Engineers in Line Item No. 7
    of Senate Bill 15, Acts 60th LegIslatureA 1967,
    Regular   Session, Chapter 784, page 2175.
          The authority to employ an investigator by the Board
and compensate him from the funds appropriated by Line Item 7 of
the departmental appropriation to the Board as being a necessary
expense In gathering evidence for the enforcement of Article 3271a,
Vernon's Civil Statutes, the Engineering Practice Act, carries
with it the further authority to make such expenditures as are
necessary to enable such investigator to carry out his duties of
gathering evidence for the enforcement of Article 3271a. Certainly,
the payment of the investigator’s traveling expenses, while per-
forming his official duties, would be a necessary expense in the
gathering of evidence to enforce Article 3271a; and if the Board
Is of the opinion that such investigator needs certain office
equipment and supplies to enable him to efficiently carry out
his investigative functions, then such expenditure could properly
be paid from the funds appropriated to the Board In Line Item No. 7.
                    SUMMARY
           The Texas State Board of Registration for
    Professional Engineers may properly pay from
    Line Item No. 7 of Senate Bill 15, Acts 60th
    Legislature,   1967, Regular Session, Chapter
    784,page 2175, the traveling expenses of Its
    investigator and the cost of furniture and
    office equipment and supplies for its investigator.
                             V   truly yours,

                                 ney General of Texas
Prepared by Pat Bailey
Assistant Attorney General
                             -1036-
.   .

Hon. Thomas C. Green, page   3   (M-216)

APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Arthur Sandlln
John Banks
Wardlow Lane
A. J. CARUBBI, JR.
Executive Assistant

                             -1037-