Opinion
No. 351331
12-22-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MAALIK JAYVON FIELDS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 19-004292-01-FH Before: CAVANAGH, P.J., and JANSEN and SHAPIRO, JJ. PER CURIAM.
Defendant appeals as of right his jury trial conviction for unarmed robbery, MCL 750.530. The trial court sentenced defendant to 2 to 15 years' imprisonment. Because we hold that defendant's claims of insufficient evidence, prosecutorial misconduct, and sentencing error are all meritless, we affirm.
I. BACKGROUND
In April 2019, defendant and the victim met for the first time at a bar. The victim went to the bar with his friend Rebecca Weiland. Defendant was with his friend "Chicago" and Chicago's friend "Freaky," whom defendant had only known for a few weeks. According to the victim and Weiland, the whole group was friendly, interacting repeatedly throughout the evening and into the early morning hours of the next day. When the bar was closing, the victim decided to walk to another bar nearby, and defendant and Freaky joined him. Chicago had already left, and Weiland remained at the bar with other friends. The victim, defendant, and Freaky conversed as they walked, but at some point, the victim heard rustling in the grass behind him. When he turned to investigate the rustling, the victim saw defendant's fist coming towards his face, so he turned back around. Defendant's fist hit the victim in the back of the neck, and he fell to the ground. Before he fell, the victim had been on his cell phone. While on the ground, the victim heard defendant and Freaky speaking to each other for a few seconds before they ran away, but the victim could not make out what they were saying. After about 10 seconds on the ground, the victim got up, saw defendant and Freaky running away together, and noticed his phone was missing. His phone was never located. Defendant was arrested and charged with unarmed robbery.
At trial, defendant testified and admitted to punching the victim. However, much of his testimony diverged from that of the victim. Defendant testified that the victim appeared jealous whenever defendant spoke with Weiland at the bar. The victim confronted defendant as they walked away from the bar, making comments to the effect that defendant should not be talking to Weiland because of defendant's race. According to defendant, the victim also threatened defendant's mother. Because of this, defendant freely admitted that he punched the victim. Defendant also testified that neither he nor Freaky took the victim's phone.
The jury was instructed on unarmed robbery, both on a principal and an aiding and abetting theory of liability, and the lesser-included offense of assault and battery. The jury found defendant guilty of unarmed robbery, and the trial court sentenced defendant as described above. Defendant now appeals.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues there was insufficient evidence to support his conviction for unarmed robbery. Specifically, he argues there was insufficient evidence for the jury to find that he or Freaky feloniously took property from the victim. If there was sufficient evidence for the jury to so find, defendant argues there was insufficient evidence to find he assaulted the victim with the intent to take the victim's property or to aid and abet Freaky taking the victim's property. We disagree.
We review a challenge to the sufficiency of the evidence de novo. People v Savage, 327 Mich App 604, 613; 935 NW2d 69 (2019). The evidence is reviewed "in the light most favorable to the prosecution [to] determine whether the jury could have found each element of the charged crime proved beyond a reasonable doubt." Id. "Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of the crime." People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). "In determining whether sufficient evidence was presented to support a conviction, the reviewing court will not interfere with the fact-finder's role of deciding the credibility of the witnesses." People v Solloway, 316 Mich App 174, 180; 891 NW2d 255 (2016). "All conflicts in the evidence must be resolved in favor of the prosecution . . . ." Id. at 180-181. "Because of the difficulty of proving an actor's state of mind, minimal circumstantial evidence is sufficient." People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999).
"To be guilty of unarmed robbery, a defendant must (1) feloniously take the property of another, (2) by force or violence or assault or putting in fear, and (3) be unarmed." People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). "[I]dentity is an element of every offense." People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Further, "[e]very person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense." MCL 767.39. Thus, "aiding and abetting is not a separate substantive offense. Rather, being an aider and abettor is simply a theory of prosecution that permits the imposition of vicarious liability for accomplices." People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006) (quotation marks and citation omitted). To convict a defendant under an aider and abettor theory, three elements are necessary:
The Legislature amended the robbery statute in 2004, making it unnecessary for the taking to actually occur; an attempted taking is sufficient. People v Williams, 491 Mich 164, 182-183; 814 NW2d 270 (2012). Nevertheless, this Court has continued to describe the elements of unarmed robbery as provided, People v Rodriguez, 327 Mich App 573, 579; 935 NW2d 51 (2019), and the change in the law is irrelevant to the issue raised. Indeed, defendant uses the same elements in his brief on appeal and the prosecution does not dispute the issue.
(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encouragement. [Id. (quotation marks and citation omitted; alteration in original).]"[A] defendant is liable for the crime the defendant intends to aid or abet as well as the natural and probable consequences of that crime." Id. at 14-15 (footnote omitted).
The jury heard two versions of what happened in this case. The victim testified that he was walking away from the bar with defendant and Freaky behind him. The victim was using his cell phone as they walked, and the three were engaging in friendly conversation until the victim heard a rustling in the grass behind him. When the victim turned around to investigate the rustling, he saw defendant's fist coming towards him. After the victim was hit in the back of the neck, he fell to the ground. Defendant and Freaky remained nearby for several seconds as the victim collected himself, and then the two ran away together. When the victim got back up, he realized his phone was missing. The victim testified that his interactions with defendant and Freaky throughout the night had been friendly. Defendant also testified at trial. While he admitted to assaulting and battering the victim, he denied that either he or Freaky took the victim's phone. Instead, defendant testified that he punched the victim in the jaw because the victim made racist remarks toward defendant and threatened defendant's mother. Defendant also testified that while Freaky ran away after the assault, defendant walked away. In addition, according to defendant, the victim appeared jealous whenever defendant talked to Weiland in the bar.
There were essentially two factual scenarios upon which the jury could have found defendant guilty of unarmed robbery. The first scenario is the simplest: defendant punched the victim with the intent to take the victim's phone. The second scenario is an aider and abettor theory, where defendant punched the victim with the intent that Freaky take the victim's phone and Freaky did take the victim's phone. Because the evidence is reviewed in the light most favorable to the prosecution to determine if a reasonable jury could have found each element proved beyond a reasonable doubt, Savage, 327 Mich App at 613, if the evidence supported either of these scenarios, we must affirm defendant's conviction.
We conclude that there was sufficient evidence for the jury to find that either of these scenarios occurred. Defendant admitted to punching the victim, knocking him to the ground. When the victim stood back up, defendant, Freaky, and the victim's phone were gone. The jury could have reasonably found from this evidence that either Freaky or defendant took the victim's phone since it disappeared at the same time as them. See Bennett, 290 Mich App at 472 (noting that all reasonable inferences should be drawn in favor of the verdict). In addition, since defendant punched the victim seconds before either defendant or Freaky took the victim's phone, the jury could reasonably infer that defendant did so to facilitate the taking of the victim's phone. Of course, defendant's testimony could have supported the conclusion that defendant assaulted and battered the victim without the intent to take his phone. Indeed, defendant offered a seemingly reasonable alternative justification for his punching the victim: the victim made racist comments toward defendant and threatened defendant's mother. However, according to defendant, he punched the victim on the jaw. The first officer on the scene saw no signs that the victim had been punched on the jaw, which the jury could have relied upon to conclude the victim's version of events was more reliable. Thus, the jury could reasonably conclude defendant battered the victim for the sole purpose of taking his phone. Further, "[a]ll conflicts in the evidence must be resolved in favor of the prosecution, and circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory proof of the crime[.]" Solloway, 316 Mich App at 180-181 (citations omitted). For these reasons, there was sufficient evidence to support defendant's conviction for unarmed robbery.
III. PROSECUTORIAL MISCONDUCT
Next, defendant argues the prosecution impermissibly bolstered the victim's credibility in its opening and closing statements. We disagree.
Defendant did not preserve this claim of error by objecting before the trial court and requesting a curative instruction. See Bennett, 290 Mich App at 475. "Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting substantial rights." People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). The plain-error test has been explained as follows:
To avoid forfeiture of review of this issue under the plain error rule, the defendant must demonstrate that: (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected the defendant's substantial rights. The third factor requires a showing of prejudice, meaning that the error must have affected the outcome of the lower court proceedings. If the defendant satisfies these three requirements, this Court must then exercise discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant, or when an error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. [People v McLaughlin, 258 Mich App 635, 645; 672 NW2d 860 (2003) (citations omitted).]
"The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial." Brown, 294 Mich App at 382. Prosecutorial misconduct is evaluated on a case-by-case basis, by considering the prosecution's remarks in the context of the entire record. Id. at 382-383. The prosecution is "generally free to argue the evidence and all reasonable inferences from the evidence as it relates to [its] theory of the case." People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). However, the prosecution may not bolster the credibility of a witness by implying that it has "special knowledge that the witness[] [was] testifying truthfully" or "make a factual statement to the jury that is not supported by the evidence." People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007).
During its opening statement, the prosecution stated, in relevant part:
The [victim] is going to be the first witness to take the stand. He's going to be open, forthright and honest with you. He's going to tell you that, yeah, he was drinking that day. He went out to brunch in the afternoon and he closes the bar down. He's going to tell you that he had been drinking on and off. He's also going to tell you what he does clearly remember about that night.In its closing statement, the prosecution stated:
And as you're watching these witnesses, I want you to think about what makes sense, what's reasonable here, and I want you to judge the witnesses. Are they being credible? Do they appear to be honest? Are they telling you the truth?
Further[,] I would submit to you that it actually goes to [the victim's] credibility that he didn't lie, he didn't tell you that he saw somebody specifically take his phone. It goes to the credibility that he is telling you only what he remembers and that he couldn't tell you specifically who took the phone, only that there is two individuals there, that he is hit, that he drops, that they flee and that he no longer has his phone.The prosecution also noted that the victim and defendant did not know each other, so the victim had no motive to lie about what happened.
While the prosecution's assertions during opening and closing statements were no doubt intended to draw the jury's attention to the victim's credibility as a witness, they did not do so impermissibly. At no point did the prosecution imply it had "special knowledge that the witness[] [was] testifying truthfully" or "make a factual statement to the jury that [was] not supported by the evidence." Dobek, 274 Mich App at 66. In its opening statement, the prosecution merely informed the jury of what testimony it expected the victim to give and why the jury should believe that testimony. And instead of implying the prosecution knew something about the victim's credibility that the jury did not, the prosecution encouraged the jury to determine for itself whether all the witnesses appeared credible. In addition, the factual assertions the prosecution made in its opening were eventually borne out by the victim's testimony. See id. The prosecution's closing statement was similarly permissible. Instead of suggesting the jury should believe the victim for reasons unknown to the jury, the prosecution pointed out what other evidence corroborated the victim's testimony—such as video evidence and Weiland's testimony—and argued why it made sense for the jury to believe the victim. Thus, when the prosecution's statements are considered in the context of the entire record, Brown, 294 Mich App at 382-383, the prosecution did no more than "argue the evidence and all reasonable inferences from the evidence as it relates to [its] theory of the case[,]" Unger, 278 Mich App at 236. For these reasons, defendant was not deprived of a fair trial, and the prosecution did not commit misconduct.
Even if we were persuaded that the prosecution committed misconduct with its statements, defendant cannot prove prejudice under the plain-error test. The trial court instructed the jury that it could only base its verdict on evidence and that the arguments of both lawyers were not evidence. In fact, the trial court gave this instruction before opening statements and after closing statements. Because the jury is presumed to follow its instructions, defendant cannot establish prejudice. See People v Mullins, 322 Mich App 151, 173; 911 NW2d 201 (2017) ("Jurors are presumed to follow the court's instructions, and instructions are presumed to cure most errors."). --------
IV. OFFENSE VARIABLE 10
Lastly, defendant argues the trial court erred by assessing five points for offense variable (OV) 10 because there was no evidence the victim was intoxicated to the point of being vulnerable or that defendant manipulated the victim. Defendant also argues there was no evidence the victim was more intoxicated than defendant. We disagree.
To preserve a challenge to the scoring of a defendant's sentencing guidelines range, the defendant must raise the issue before the trial court "at sentencing, in a motion for resentencing, or in a motion to remand." People v Sours, 315 Mich App 346, 348; 890 NW2d 401 (2016) (quotation marks and citation omitted). Further, to be sufficient for preservation purposes, an objection must state the same ground upon which a defendant seeks review on appeal. People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004). While defendant objected to the trial court's scoring of OV 10, he did not provide a basis for his objection. Thus, this issue is not preserved for appellate review. "Unpreserved sentencing errors are reviewed for plain error affecting substantial rights." People v Meshell, 265 Mich App 616, 638; 696 NW2d 754 (2005). As noted above, to avoid forfeiture of an unpreserved claim of error, a defendant must show, among other things, that an error occurred and that the error affected the outcome of the proceedings. McLaughlin, 258 Mich App at 645.
OV 10 addresses exploitation of a vulnerable victim, and the trial court must assess five points if "[t]he offender . . . exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious." MCL 777.40(1)(c). " 'Exploit' means to manipulate a victim for selfish or unethical purposes." MCL 777.40(3)(b). " 'Vulnerability' means the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation." MCL 777.40(3)(c). "The mere existence of 1 or more factors described in subsection (1) does not automatically equate with victim vulnerability." MCL 777.40(2).
Defendant's arguments are unpersuasive. The victim and Weiland both testified that the victim was intoxicated when he left the bar. The victim had been drinking, on and off, for several hours. The first officer on the scene testified that the victim was clearly intoxicated, to the point of slurring his speech and repeating himself. Given this evidence, there is little doubt that the victim was intoxicated at the time of the robbery. See MCL 777.40(1)(c). Further, being intoxicated likely made the victim vulnerable because he was more susceptible "to injury[] [or] physical restraint" since alcohol tends to impair a person's judgment and motor skills. See MCL 777.40(3)(c); see also People v Cannon, 481 Mich 152, 158; 749 NW2d 257 (2008) (noting that the victim's state of intoxication should be considered when deciding whether he or she was vulnerable). In light of the responding officer's testimony, the victim's susceptibility was also "readily apparent." MCL 777.40(3)(c). Finally, by taking advantage of the victim's vulnerability by attacking him from behind to steal his phone, defendant exploited the victim's vulnerability "for selfish or unethical purposes." MCL 777.40(3)(b).
While defendant argues that he may have been more intoxicated than the victim, defendant does not explain what relevance that has to OV 10. That defendant may have himself been vulnerable does not negate the victim's vulnerability. Further, nothing in the language of the sentencing guidelines suggests the victim has be more vulnerable than the defendant; only that the victim be vulnerable and that the defendant exploit that vulnerability. MCL 777.40(1)(c). Even if we found defendant's argument to be logical in light of the statutory language, it would not have been clearly erroneous for the trial court to find the victim was more intoxicated than defendant, since there was no evidence admitted at trial that defendant was slurring his speech or repeating himself like the victim was. See People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (noting that factual determinations at sentencing need only be supported by a preponderance of the evidence). Accordingly, the trial court did not err by assessing five points for OV 10.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Douglas B. Shapiro