Opinion
No. 348650
08-20-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TOMMY CHRISTOPHER JULIAN, 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 UNPUBLISHED Macomb Circuit Court
LC No. 2018-003656-FH Before: MARKEY, P.J., and K. F. KELLY and TUKEL, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to commit great bodily harm less than murder, MCL 750.84, and prisoner in possession of a weapon, MCL 800.283(4). He was sentenced as a fourth-offense habitual offender, MCL 769.12, to 15 to 30 years' imprisonment for the assault conviction and 76 months to 30 years' imprisonment for the prisoner-in-possession conviction. Defendant appeals by right. We affirm defendant's convictions and sentences but remand for the ministerial task of amending the presentence investigation report (PSIR).
On June 29, 2017, defendant was serving time at the Macomb Regional Correctional Facility. During a one-hour recreation period, defendant, who was housed in a 23-hour-lockdown unit, was seen by corrections officers running into a kitchenette. The officers had observed inmate Austin Rodriguez enter the kitchenette just moments before defendant ran into the area. One officer noticed that defendant had a "closed hand with an item inside his hand." The officer saw defendant push Rodriguez onto a platform where a microwave was kept and then thrust the item in his hand against Rodriguez's back. Another officer also witnessed defendant push Rodriguez, and this officer next observed an injured Rodriguez running away from the kitchenette. Corrections officers confronted defendant, threatening him with pepper spray and ordering him to drop a knife that was in his hand. Defendant surrendered, dropping the knife. Rodriguez suffered three knife puncture wounds, two of which were about a half-inch deep and the third superficial. Prison surveillance video, which was played for the jury, showed defendant in the kitchenette lunging at Rodriguez with the weapon. In sum, the evidence of defendant's guilt was overwhelming.
By the time of defendant's trial, Rodriguez had been released from prison. Rodriguez was an endorsed witness for the prosecution, but he could not be located to testify at trial. Defendant first argues on appeal that the trial court abused its discretion when it found that the prosecution had exercised due diligence in attempting to locate Rodriguez. Therefore, according to defendant, the court erred by refusing defendant's request to instruct the jury pursuant to M Crim JI 5.12, which allows a jury to infer that a missing witness's testimony would have been unfavorable to the prosecution's case.
At trial, Michigan State Police Trooper Anthony Hallett, the officer in charge of this case, explained to the court the efforts that he made to find Rodriguez. Trooper Hallett made numerous phone calls, ran Rodriguez's name through the state database, and checked with the Secretary of State. He did locate an address for Rodriguez in Jackson. Trooper Hallett then sent a police officer to that address. The police officer communicated with a woman who stated that Rodriguez did not live there and that she had no contact information. Trooper Hallett also checked Rodriguez's name with the Michigan Department of Corrections (MDOC). He determined that Rodriguez was not incarcerated, on parole or probation. Rodriguez's whereabouts had been unknown since he was released from prison. Trooper Hallett stated that he had exhausted all of the investigative avenues. He acknowledged that he did not check Facebook, Instagram, or other social media, and he did not make a query with the United States Postal Service.
In People v Eccles, 260 Mich App 379, 388-389; 677 NW2d 76 (2004), this Court observed:
A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to exercise due diligence to produce that witness at trial. A prosecutor who fails to produce an endorsed witness may show that the witness could not be produced despite the exercise of due diligence. If the trial court finds a lack of due diligence, the jury should be instructed that it may infer that the missing witness's testimony would have been unfavorable to the prosecution's case. We review a trial court's determination of due diligence and the appropriateness of a "missing witness" instruction for an abuse of discretion. [Citations omitted.]Due diligence involves an attempt to do everything reasonable to procure the presence of a witness, not everything possible. Id. at 391.
Given all of the above-described efforts made by Trooper Hallett, we cannot conclude that the trial court abused its discretion by finding that due diligence had been exercised in attempting to locate Rodriguez. The court's ruling did not fall outside the range of reasonable and principled outcomes. People v Johnson, 502 Mich 541, 564; 918 NW2d 676 (2018). Trooper Hallett took reasonable measures to find Rodriguez. Although defendant complains about Trooper Hallett's failure to search social media sources in the effort to locate Rodriguez, defendant makes no assertion whatsoever that Rodriguez would have been found on social media.
Moreover, considering the mountain of evidence showing that defendant committed the offenses, we conclude that even assuming an abuse of discretion by the court in finding due diligence and in failing to instruct the jury on M Crim JI 5.12, we conclude the error was not outcome determinative and did not result in a miscarriage of justice. MCL 769.26; People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). We are confident that had the jury been instructed on the inference set forth in M Crim JI 5.12, the verdicts would have been the same. We note that M Crim JI 5.12 does not provide for a mandatory inference, only that a juror "may" draw an inference unfavorable to the prosecution.
Next, defendant challenges the sufficiency of the evidence with respect to the assault conviction. Defendant argues that the officers who testified about the incident did not sufficiently observe the incident and that Rodriguez's testimony was necessary to explain what happened and why it happened. Defendant's argument contains much of what he stated in relation to the argument on due diligence. The testimony and the video footage demonstrated what happened—defendant stabbed Rodriguez multiple times with a knife—and the prosecution had no obligation to prove why it happened. Rodriguez's testimony was not necessary to prove that defendant assaulted Rodriguez and that he did so with the intent to do great bodily harm less than murder, i.e., an intent to inflict serious injury of an aggravated nature. See People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005). The testimony of the corrections officers, the video footage from the surveillance cameras, and the medical testimony concerning the nature of Rodriguez's injuries amounted to more than sufficient evidence to prove beyond a reasonable doubt that defendant assaulted Rodriguez with the intent to do great bodily harm less than murder.
This Court reviews de novo the issue regarding whether there was sufficient evidence to support a conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence—whether direct or circumstantial—in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellate court must not interfere with the jury's role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). Circumstantial evidence and any reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of a crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable theory of innocence, but need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). "All conflicts in the evidence must be resolved in favor of the prosecution." People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
Next, defendant contends that the trial court abused its discretion by denying his motion to instruct the jury on aggravated assault as a lesser included offense of assault with intent to commit great bodily harm less than murder. MCL 750.81a(1), which concerns the offense known as "aggravated assault," provides:
Except as otherwise provided in this section, a person who assaults an individual without a weapon and inflicts serious or aggravated injury upon that individual without intending to commit murder or to inflict great bodily harm less
than murder is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both. [Emphasis added.]
An instruction on cognate lesser offenses is not permissible. MCL 768.32(1); People v Jones, 497 Mich 155, 165; 860 NW2d 112 (2014); People v Cornell, 466 Mich 335, 353-359; 646 NW2d 127 (2002). "Cognate offenses share several elements, and are of the same class or category as the greater offense, but the cognate lesser offense has some elements not found in the greater offense." People v Mendoza, 468 Mich 527, 532 n 4; 664 NW2d 685 (2003). Unlike assault with intent to commit great bodily harm less than murder, aggravated assault requires a showing of an injury and requires the assault be committed without a weapon. Therefore, aggravated assault is a cognate lesser offense to assault with intent to commit great bodily harm less than murder. People v Brown, 87 Mich App 612, 615; 274 NW2d 854 (1978). Accordingly, defendant was not entitled to an instruction on aggravated assault. Furthermore, in light of the indisputable evidence that defendant used a weapon in committing the charged offense, the evidence did not support an instruction on aggravated assault even were it deemed a necessarily-included lesser offense. People v Armstrong, 305 Mich App 230, 240; 851 NW2d 856 (2014) (an instruction must be supported by a rational view of the evidence).
Next, defendant contends that the trial court erred by requiring him to pay the cost of his court-appointed attorney, which totaled $1,975 in fees, without first assessing defendant's ability to pay. MCL 769.1k(1)(b)(iv) provides that at sentencing, the court may impose, among other costs, "[t]he expenses of providing legal assistance to the defendant." In People v Jackson, 483 Mich 271, 275; 769 NW2d 630 (2009), our Supreme Court held that a court need not conduct an ability-to-pay analysis before imposing a fee for a court-appointed attorney; rather, such an analysis is only required once the imposition of the fee is enforced. Accordingly, defendant's argument is premature and is thus rejected. Defendant may petition the trial court to reduce or eliminate the cost to cover attorney fees on the basis of indigency at the time a remittance order requires him to pay. Id. at 296.
Finally, under MCL 771.14(6), defendant argues that this matter must be remanded to the trial court for the ministerial task of correcting the PSIR. At sentencing, defendant requested a correction of the PSIR, which indicated that defendant had a substance abuse problem. The trial court agreed to remove the language referring to substance abuse. The record reveals that the PSIR was sent to the MDOC with a line drawn through the offending language. The PSIR "should accurately reflect any determination the sentencing judge has made concerning the accuracy or relevancy of the information contained in the report." People v Norman, 148 Mich App 273, 274; 384 NW2d 147 (1986). The prosecution expressly indicates that it has no objection to defendant's request for correction of the PSIR. We note that the words "substance abuse" remain clearly legible in the PSIR and that the short curvy line drawn through the words by the court could possibly be mistaken for an inadvertent or accidental marking with a pen. In light of the prosecution's concession and the characteristics of the strike-through, we remand to the trial court so that a corrected PSIR can be prepared and sent to the MDOC.
We affirm defendant's convictions and sentences but remand to the trial court for the ministerial task of amending the PSIR in compliance with MCL 771.14(6). We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel