Opinion
No. 333546
08-10-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHRISTOPHER NICHOLSON, Defendant-Appellant.
UNPUBLISHED Washtenaw Circuit Court
LC No. 15-000716-FC Before: CAVANAGH, P.J., and METER and M. J. KELLY, JJ. PER CURIAM.
Defendant appeals his convictions, following a jury trial, of armed robbery, MCL 750.529, and conspiracy to commit armed robbery, MCL 750.529; MCL 750.157a. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve concurrent sentences of 18 to 30 years. Defendant appeals as of right and we affirm, but remand for correction of the Presentence Investigation Report (PSIR).
Defendant's convictions are the result of a robbery by two men, one with a gun, of a gas station attended by Stephen Herrod. Evidence indicated that the robbers were wearing bandanas and that one was wearing a black hat. The day after the robbery, a jogger discovered two bandanas, a hat or ski mask, and a gun that looked like it had been broken. The discovery was made on a road a little over a mile from the robbery. The items were tested and DNA from one of the bandanas matched defendant's DNA profile that was in a database. Thereafter, defendant's apartment was searched. A distinctive shirt or jersey was discovered that matched the shirt of one of the robbers.
Defendant first argues that the trial court erred in denying his motion to suppress evidence collected at his apartment. He asserts that he signed a consent to search form only after the police violated his right to counsel. With regard to a motion to suppress, we review de novo the trial court's rulings regarding the law and constitutional standards and review for clear error the trial court's factual findings. People v Elliott, 494 Mich 292, 300-301; 833 NW2d 284 (2013). A factual finding is clearly erroneous if it leaves the Court with a firm and definite conviction that a mistake was made. People v Steele, 292 Mich App 308, 313; 806 NW2d 753 (2011).
"No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law." Const 1963, art 1, § 17. Michigan's constitutional provision against self-incrimination is applied consistently with and "no more liberally than the Fifth Amendment of the United States Constitution." People v Geno, 261 Mich App 624, 628; 683 NW2d 687 (2004). The protections provided in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), are intended to protect defendants against self-incrimination in an environment of governmental coercion, the custodial interview. People v Cheatham, 453 Mich 1, 10-11; 551 NW2d 355 (1996). Here, the parties agreed that defendant was in custody at the time he was questioned. A statement obtained from a defendant during a custodial interrogation is admissible only if the defendant "voluntarily, knowingly, and intelligently" waived his Fifth Amendment rights. Miranda, 384 US at 444; see also People v Daoud, 462 Mich 621, 632-639; 614 NW2d 152 (2000).
In People v Walker (On Rehearing), 374 Mich 331, 337-338; 132 NW2d 87 (1965), the Supreme Court held that when a defendant contends that statements made were involuntary, the trial court must conduct a hearing outside the presence of the jury to determine the issue of voluntariness. Here, at a Walker hearing, Detective David Monroe, who interviewed defendant, said that defendant was clearly in custody at the time he questioned him and that defendant was advised of his Miranda rights but nonetheless, they spoke for 30 to 45 minutes, at which point defendant said that he did not want to talk any further without an attorney present. After breaking for several minutes to speak with the prosecutor, Monroe told defendant that he wanted to be thorough in his investigation in light of the surveillance video and DNA match, and asked defendant for a buccal swab and consent to search his apartment. Monroe recalled that he acknowledged defendant's request for an attorney when he re-engaged defendant, and that defendant signed a consent to search form for the apartment but told Monroe that he would have to go through his procedures to obtain a buccal swab.
Defendant argues Monroe could no longer question him after he invoked his right to counsel and that the consent to search was therefore obtained in violation of his rights. "[T]he Fifth Amendment right to counsel is a corollary to the amendment's stated right against self-incrimination and to due process." People v Marsack, 231 Mich App 364, 372-373; 586 NW2d 234 (1998). When an individual in a custodial interrogation invokes the right to have counsel present, "the accused is not subject to further interrogation by the police until counsel has been made available, unless the accused initiates further communication, exchanges, or conversations with the police." People v Adams, 245 Mich App 226, 237; 627 NW2d 623 (2001). Here, defendant clearly and unequivocally invoked his Fifth Amendment right to an attorney. Thus, it is necessary to determine whether Monroe's approaching defendant to ask for consent was "interrogation" initiated by Monroe. Whether a request by an officer to a defendant for consent to a search is an interrogation was decided in Marsack, 231 Mich App at 376, where the Court held "that defendant's Fifth Amendment rights were not violated by the police request that he sign consent to search forms after defendant asked for an attorney." The Court concluded that a "[d]efendant's consent, in and of itself, is not evidence that tends to incriminate him." Id. at 375. The Court noted that an officer's asking for "consent to search is not likely to elicit an incriminating statement," and that a search pursuant to consent does not disclose incriminating testimonial evidence, even though it may produce physical evidence. Id. Thus, defendant's Fifth Amendment right to counsel was not violated by Monroe's asking him for consent.
In a Standard 4 brief, defendant also argues that he was coerced into signing the consent in violation of his Fifth Amendment rights. However, he identifies no coercive behavior.
Defendant also argues that his Sixth Amendment right to counsel was violated when he was asked to sign the consent to search form. The right to counsel guaranteed by the Fifth Amendment is "distinct and not necessarily coextensive" with the right guaranteed by the Sixth Amendment. Marsack, 231 Mich App at 372. A defendant's Sixth Amendment right to counsel arises "only after adversarial legal proceedings have been initiated against a defendant by way of indictment, information, formal charge, preliminary hearing, or arraignment. Id. at 377-378. Here, defendant had not been formally charged at the time of his questioning; thus, the Sixth Amendment right to counsel had not yet come into play. Moreover, in Marsack, id. at 377, the Court noted that the Sixth Amendment right to counsel did not attach to requests for a search because such a request is not a critical stage in the proceedings, and "a search does not generate evidence, but merely reveals evidence already in existence and certain to become available to the government in due course."
In his Standard-4 Brief, defendant also argues that a buccal swab collected pursuant to a search warrant should have been excluded because the warrant was based on a distinctive shirt found in his apartment after he gave consent to search; the shirt matched one worn by a perpetrator of the robbery in the surveillance video. Evidence obtained subsequent to but as the result of an unlawful warrant is to be excluded from evidence as "fruit of the poisonous tree." See People v Reese, 281 Mich App 290, 295-296; 761 NW2d 405 (2008). However, the seizure of the shirt resulted from a legally obtained consent to search.
Defendant also states in his Standard-4 Brief that his trial counsel provided ineffective assistance by failing to object to admission of the buccal swab based on a "fruit of the poisonous tree" argument. Counsel's performance is deficient if "it fell below an objective standard of professional reasonableness . . . ." People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). Counsel was not unreasonable for failing to make a futile objection. In re Archer, 277 Mich App 71, 84; 744 NW2d 1 (2007).
Next, defendant argues that the trial court erred in denying his motion to exclude evidence of other criminal acts by defendant. Whether bad-acts evidence was properly admitted is reviewed for an abuse of discretion. People v McGhee, 268 Mich App 600, 636; 709 NW2d 595(2005). The trial court does not abuse its discretion when it chooses an outcome within the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Evidence of prior bad acts by a defendant is excluded, except as allowed by MRE 404(b), to avoid the danger of conviction based on a defendant's history of misconduct. People v Starr, 457 Mich 490, 495; 577 NW2d 673 (1998).
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case." MRE 404(b)(1).
Defendant argues that evidence that he had previously been convicted of a similar armed robbery in 2003 was wrongly admitted. At the motion hearing regarding the issue, the prosecutor argued that the robberies were similar because they both occurred late at night, by two people with pellet guns wearing bandanas, and the previous robbery was relevant to demonstrate defendant's intent, motive, and common scheme. The trial court found, among other things, that the previous robbery was admissible because it showed defendant's common scheme, plan, or system in doing the act, and was of great probative value in comparison to the danger of unfair prejudice. At trial, Monroe testified that he was a detective in 2003, assigned to a similar case where a local business was robbed late at night by two people with guns and wearing bandanas. He further testified that defendant pleaded guilty to this crime.
As discussed infra, there was differing evidence about the nature of the gun in the instant case.
Generally, to be admissible under MRE 404(b), bad-acts evidence (1) must be offered for a proper purpose, (2) must be relevant, and (3) must not have a probative value substantially outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). A proper purpose is one other than establishing the defendant's character to show his propensity to commit the offense. People v Johnigan, 265 Mich App 463, 465; 696 NW2d 725 (2005).
The second robbery was quite similar to the previous robbery in that it was performed in the same city at a time of few possible customers, with a partner, using a gun, and while the perpetrators were wearing bandanas. The evidence was proof of a common system in robbing stores. "[E]vidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system." People v Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000).
Defendant argues that the evidence of the previous robbery could not have been part of a common scheme or plan involving the instant robbery because committing a robbery at night with a gun while wearing a face covering is common to many robberies. To demonstrate that a past crime constitutes evidence of a common plan, scheme, or system, the crimes must have more than just a shared result; there must be common features that show the "acts are naturally to be explained as caused by a general plan . . . ." Id. at 64 (quotation marks and citations omitted). Here, the robberies shared several similarities; they occurred in the same area, were done by two men wearing bandanas who used a gun, and money was taken at a time that the business would not be expected to have other customers. Some of these factors would not be unusual in a robbery, making this a close question, but the various factors all combined in both of these specific robberies. Additionally, there was no evidence of an act by the perpetrators that was dissimilar. Thus, the evidence of similarity was sufficient to link them as a part of a common plan, scheme, or system. We note that a trial court's decision on a close evidentiary does not typically constitute an abuse of discretion. Id. at 67.
Even if the prior robbery was relevant, it was subject to exclusion if its probative value was substantially outweighed by the danger of unfair prejudice. MRE 403; Waknin v Chamberlain, 467 Mich 329, 334; 653 NW2d 176 (2002). Unfair prejudice exists when there is a tendency that the evidence will be given undue or preemptive weight by the jury, or when it would be inequitable to allow use of the evidence. Taylor v Mobley, 279 Mich App 309, 315; 760 NW2d 234 (2008). Evidence that is unfairly prejudicial goes beyond the merits of the case to inject issues broader than the defendant's guilt or innocence, such as anger or shock. McGhee, 268 Mich App at 614. Here, as the trial court found, the evidence was highly probative to demonstrate that defendant had a characteristic pattern that he employed in robbing stores.
When evidence of other bad acts is admitted, the defendant is entitled to a limiting instruction advising the jurors that they are to consider the other-acts evidence only for the reasons for which the evidence was offered, to cushion any prejudicial effect flowing from the evidence. People v Martzke, 251 Mich App 282, 295; 651 NW2d 490 (2002). The court gave a limiting instruction in the present case and advised the jurors that they could not use the evidence to decide that defendant was a bad person.
We find no basis for reversal.
Next, defendant argues that the evidence was insufficient to convict him of armed robbery and conspiracy to commit armed robbery because he was not identified as a participant in the armed robbery. This Court reviews de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). Due process requires that every element of a crime be proved beyond a reasonable doubt in order to sustain a criminal conviction. People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979). To determine if the prosecutor produced evidence sufficient to support a conviction, this Court considers "the evidence in the light most favorable to the prosecutor" to ascertain " 'whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' " People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010), quoting People v Hardiman, 466 Mich 417, 421; 646 NW2d 158 (2002). Direct and circumstantial evidence, as well as all reasonable inferences that may be drawn, are considered to determine whether the evidence was sufficient to sustain the defendant's conviction. Hardiman, 466 Mich at 429.
US Const, Am XIV.
Defendant notes that neither the gas station clerk nor anyone else identified him as a person who robbed the gas station. However, there was direct and circumstantial evidence, when viewed in the light most favorable to the prosecutor, that gave rise to a reasonable inference that defendant was a perpetrator. Herrod identified the perpetrators as two African-American men wearing black clothing, one of whom had a handgun and was wearing a black hat, black and white bandana, black clothes, and white gloves, with the second man wearing a black hooded sweatshirt. Herrod said that the robbers left and went behind the store. A police officer stated that witnesses told him that the robbers ran towards a residential area on Nixon Road behind the gas station. A jogger running on Nixon Road after the robbery and 1.2 miles away found a black and white bandana, pieces of a crushed gun, a black hat or ski mask, and a black bandana with white pictures. He had not seen the items during his run on the same path the previous day. Defendant's DNA was found on one of the bandanas. Moreover, Monroe found a dark-colored shirt with a distinctive black and white wave pattern on the shoulder and a blue emblem on the front and sleeve in defendant's drawer; it matched the shirt of one of the robbers in the surveillance video. From the evidence, a juror could make a reasonable inference that defendant was one of the robbers. Moreover, this robbery was consistent with the robbery scheme defendant had employed in the past, further implicating him. Thus, the evidence was sufficient to support defendant's conviction beyond a reasonable doubt.
Next, defendant argues that the trial court erred in instructing the jury when responding to a question during deliberations about an aiding and abetting theory. A defendant has the right to "a properly instructed jury . . . ." People v Mills, 450 Mich 61, 80; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). "[T]he trial court is required to instruct the jury with the law applicable to the case and fully and fairly present the case to the jury in an understandable manner." Id. "[J]ury instructions must not exclude consideration of material issues, defenses, and theories for which there is supporting evidence." People v Kurr, 253 Mich App 317, 328; 654 NW2d 651 (2002).
During deliberations, the jury asked the trial court, "Does defendant need to be the person possessing the weapon to be found guilty of armed robbery; this is [sic], holding the weapon?" The trial court instructed the jury, "Anyone who intentionally assists someone else in committing a crime is as guilty as the person who directly commits it and can be convicted of that crime."
Defendant suggests that the aiding and abetting instruction denied him a fair trial because the evidence did not support the instruction. According to defendant, the prosecutor argued that defendant was the robber with the gun, and the jury may have convicted defendant based on a belief that he only helped in the planning of the robbery. Defendant states that Monroe responded affirmatively when asked if he believed that defendant had the gun, and that the prosecutor argued that defendant was the armed person. Monroe believed that defendant had the gun based on defendant's shirt matching the apparent gunman in the surveillance video, and the prosecutor noted in closing that it appeared that the gunman was wearing the shirt found by Monroe at defendant's apartment, and that the evidence did not indicate that defendant was not the gunman. However, the prosecutor did not solely rest his argument on defendant's having had the gun. The prosecutor reviewed the evidence, noting that two men were recorded robbing the gas station and that a witness described two men, one with a gun, robbing the store. The prosecutor stated in closing that the two robbers were "acting together in concert," that "defendant specifically intended to commit or help commit the crime," and that defendant was "the man responsible for committing this armed robbery . . . and . . . conspiring with another person to do it." (Emphasis added.) The evidence throughout the case indicated that two men robbed the store. As a result, the evidence supported the aiding and abetting instruction.
Accomplices to crimes may be prosecuted as if they committed the crime under the theory that they aided and abetted the crimes. People v Robinson, 475 Mich 1, 5-6; 715 NW2d 44 (2006). A conviction under the aiding and abetting theory requires that "(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 citations omitted).
Defendant also states that he was deprived of the opportunity to present a defense to aiding and abetting. It is not clear whether defendant is referring to a defense based on the assertion that he was the unarmed assailant, or a defense based on the assertion that he did not have a role in planning the robbery. The United States Constitution provides criminal defendants with the right to present a complete defense. US Const, Ams VI, XIV; People v King, 297 Mich App 465, 473; 824 NW2d 258 (2012). "Instructional errors that directly affect a defendant's theory of defense can infringe a defendant's due process right to present a defense." Kurr, 253 Mich App at 326-327. However, there was no evidence presented or argument made that defendant assisted the robbery other than by his actions as one of the two participants. Additionally, defendant did present a defense that the evidence did not demonstrate that he had any connection to the robbery. Thus, defendant did present a defense to a theory that he aided and abetted the crime and was not deprived of this defense by the instruction.
Next, defendant argues that the trial court erred in denying his request to correct his PSIR. "We review a trial court's response to a claim of inaccuracy in the PSIR for an abuse of discretion." People v Lucey, 287 Mich App 267, 275; 787 NW2d 133 (2010). The "Department of Corrections makes critical decisions concerning a defendant's status on the basis of information contained in the PSIR" and thus, "the PSIR should accurately reflect any determination the sentencing judge has made regarding the accuracy or relevance of its information." People v Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2009). Here, defendant challenged a statement in his PSIR that quoted Herrod as stating that defendant had pointed a gun at him and demanded the money from the safe. At trial, Herrod testified that he had stated during the preliminary examination that he did not think that defendant was the robber with the gun. During his trial testimony, the only information from Herrod regarding defendant's specific identity was his confirmation that he had stated at the preliminary examination that he did not think defendant had the gun. Therefore, defendant is correct in arguing that the PSIR erroneously reported what Herrod had said, and the trial court abused its discretion in denying defendant's challenge to the accuracy of the PSIR. However, because "the trial court did not rely on the challenged information in the PSIR in sentencing defendant, resentencing is not required; rather, the remedy is to remand for the limited purpose of correcting the PSIR." People v Spanke, 254 Mich App 642, 650; 658 NW2d 504 (2003), overruled on other grounds by People v Barrera, 500 Mich 14; 892 NW2d 789 (2017).
Next, defendant argues that his trial counsel provided ineffective assistance. Defendant did not raise this issue in the trial court. Claims of ineffective assistance of counsel that are unpreserved are limited to review for errors apparent on the record. People v Unger (On Remand), 278 Mich App 210, 253; 749 NW2d 272 (2008). The constitutional question of whether an attorney's ineffective assistance deprived a defendant of his Sixth Amendment right to counsel is reviewed de novo. Id. at 242. A defendant's right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963 art 1, § 20. This right to counsel encompasses the right to the effective assistance of counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). In order to succeed on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the defense. People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007). "[E]ffective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001).
US Const, Am VI.
Defendant first argues that his trial counsel failed to communicate a plea offer involving a plea to conspiracy to commit armed robbery, with a 10-to-20-year sentence, that he would have agreed to conditionally accept.
A defendant's right to the effective assistance of counsel includes the plea-bargaining process. People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). "Defense counsel must explain to the defendant the range and consequences of available choices in sufficient detail to enable the defendant to make an intelligent and informed choice." People v Jackson, 203 Mich App 607, 614; 513 NW2d 206. In the context of a plea offer, mistaken advice from trial counsel regarding the sentence a defendant could receive at trial may constitute deficient performance. Douglas, 496 Mich at 593.
Here, there was no evidence of record that defendant discussed a conditional plea deal with the prosecutor. "A conditional plea requires the agreement of the defendant, the prosecutor, and the judge." People v Andrews, 192 Mich App 706, 707; 481 NW2d 831 (1992). However, the prosecutor did state that defendant was offered a deal by which he would plead guilty to armed robbery and receive a sentence of 10 to 20 years, with the conspiracy charge and fourth-offense habitual offender enhancement being dismissed. Defendant's trial counsel stated that she discussed the offer with defendant, and defendant stated on the record that he was declining the offer. Defendant argues that he did so because his trial counsel advised that he could not appeal if he accepted the offer. However, there is no record support for this assertion. Defendant has failed to demonstrate that his trial counsel did not accurately explain to him his range of choices and the consequences.
Defendant also argues that his counsel provided ineffective assistance by failing to adequately prepare for trial. Defendant argues that counsel should have interviewed the victim of the robbery and sought funds for an investigator to determine the actual robber. Failure to make a reasonable investigation can constitute ineffective assistance of counsel. McGhee, 268 Mich App at 626. In order to overcome the presumption of sound trial strategy, the defendant must show that trial counsel's failure to prepare for trial or interview witnesses resulted in counsel's ignorance of valuable evidence that would have substantially benefited the accused. People v Bass (On Rehearing), 223 Mich App 241, 252-253; 581 NW2d 1 (1997).
Defendant has simply not identified any relevant evidence or defense of which his counsel was unaware or that counsel did not present. Defendant states that his trial counsel should have demonstrated that he was not the perpetrator of the crime. However, his trial counsel was responsible for eliciting evidence that the only witness to the crime did not believe that defendant was the gunman, and also suggested that the evidence was not sufficient to identify defendant as a part of the crime, pointing to an apparent discrepancy in the physical characteristics given by Herrod and defendant's actual appearance. Thus, defendant has not demonstrated that his trial counsel failed to properly prepare for trial.
Defendant also argues that counsel should have attempted to show the jury his lack of tattoos because the surveillance video showed tattoos on one of the robbers. Counsel elicited from Monroe that he thought defendant had tattoos on his arms but he also said that he did not see any tattoos on the surveillance video. Moreover, Herrod testified that he did not see tattoos on the robbers' arms. Thus, if defendant did not have tattoos it would have been consistent with the testimony. To the extent the video or photos suggested that there were tattoos, defendant's trial counsel attempted to display defendant's arms for the jury, but the trial court did not allow it. That trial counsel was unsuccessful in his attempt does not mean that he was ineffective.
Defendant also argues that his trial counsel should have objected to Monroe's testimony that he thought the orange piece recovered as a part of the firearm was likely an internal part of the gun. Defendant argues that Monroe was an expert on firearms but not pellet guns like the one at issue. However, it was not clear whether the gun involved in the crime was a pellet gun, and Monroe referred to it as a "firearm." Thus, he was not giving an expert opinion on a pellet gun. Moreover, Monroe was testifying based on his knowledge of firearms that he had acquired during his 29 years as a police officer and six years as a firearms instructor for his department, rather than as an expert, although defendant concedes that he was an expert on real firearms.
Defendant argues that his trial counsel provided ineffective assistance by not objecting to testimony about a ski mask. Defendant states that a hat was identified during the robbery, that a ski mask was found by the jogger, and that it was improper for other witnesses to refer to the item as a hat. However, it is not clear from the record what the best characterization of the item would have been. Herrod said that the gunman who robbed him was wearing a black hat, and the jogger said that he found a "black hat or black ski mask" among the items he located on the side of the road. One officer referred to the item as a black ski mask, whereas a forensic scientist stated that he tested a hat, and Monroe said it was a knit cap. In addition, and significantly, the item was admitted into evidence, giving the jury the opportunity to determine whether it was a hat or ski mask and which witness described it most accurately. Under the circumstances, defendant did not demonstrate that his trial counsel provided ineffective assistance.
We decline defendant's request for a remand for an evidentiary hearing regarding ineffective assistance of counsel. --------
Lastly, defendant argues that the trial court erred in scoring Offense Variable (OV) 1 and OV 2. The Court reviews the trial court's factual determinations at sentencing for clear error, and the findings must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id.
Defendant argues that OV 1 was incorrectly scored at 15 points because a real gun was not used during the robbery. The trial court scored OV 1 at 15 points based on Monroe's testimony that defendant used a firearm. MCL 777.31(1) provides for the scoring of OV 1, the aggravated use of a weapon, in pertinent part as follows:
(c) A firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an immediate battery when threatened with a knife or other cutting or stabbing weapon, 15 points;MCL 777.31(2)(e) provides, "Do not score 5 points if the conviction offense is a violation of section 82 or 529 of the Michigan penal code, 1931 PA 328, MCL 750.82 and 750.529." Thus, the trial court could not have scored OV 1 at five points because defendant was convicted of armed robbery, MCL 750.529.
(d) The victim was touched by any other type of weapon, 10 points;
(e) A weapon was displayed or implied, 5 points;
(f) No aggravated use of a weapon occurred, 0 points.
The determination of whether OV 1 should have been scored at 15 points or zero points depends on whether the evidence supported the conclusion that defendant used a firearm. The statute does not define "firearm," but MCL 8.3t defines "firearm" as follows: "except as otherwise specifically defined in statute, ["firearm"] includes any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive." Thus, a toy gun would not qualify as a firearm for purposes of OV 1.
Here, Herrod said that the robbers pointed a gun at his chest, and referred to the gun as a handgun. Herrod stated on cross-examination that he could not tell if the gun was real. The jogger said she found a "handgun" but was not sure whether the gun pieces were from a "firearm" or a "pellet pistol." A police officer testified that she collected parts of what "[police officers] would recognize" as a "gun," a "black plastic gun," and what her police report called a "black plastic pellet gun," including a grip, orange piece, and trigger-pull area. Monroe referred to the "gun," and "firearm," and thought that the orange piece was an internal part. Testimony from the jogger, the officer, and Herrod identified the item as a gun, although they provided some ambiguity regarding the item's nature, while Monroe explicitly identified the item as a gun and firearm. Thus, the trial court's determination that OV 1 should be scored at 15 points was supported by a preponderance of the evidence.
Likewise, defendant argues that OV 2 should have been scored at one point instead of five points because the assailants did not use a real gun. The trial court scored OV 2 at five points, referencing that Herrod had stated that a gun was pointed at his chest. OV 2 concerns the lethal potential of the weapon possessed or used, and is scored at five points where "[t]he offender possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon." MCL 777.32(1)(d). OV 2 is scored at one point where "[t]he offender possessed or used any other potentially lethal weapon." MCL 777.32(1)(e). The statute states:
"Pistol", "rifle", or " shotgun" includes a revolver, semi-automatic pistol, rifle, shotgun, combination rifle and shotgun, or other firearm manufactured in or after 1898 that fires fixed ammunition, but does not include a fully automatic weapon or short-barreled shotgun or short-barreled rifle. [MCL 777.32(3)(c).]Here, the testimony as discussed above provided support for the determination that defendant pointed a pistol at Herrod during the robbery and for the trial court's scoring of OV 2.
Affirmed and remanded for correction of the PSIR. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
/s/ Michael J. Kelly