Opinion
No. 321958
07-16-2015
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. SCOTT ALLEN SHUMAN, Defendant-Appellant.
UNPUBLISHED Wayne Circuit Court
LC No. 13-008337-FH
Before: FORT HOOD, P.J., and SAAD and RIORDAN, JJ. PER CURIAM.
Defendant appeals as of right his jury trial conviction of assault with a dangerous weapon (felonious assault), MCL 750.82. Defendant was sentenced, as a second-offense habitual offender, MCL 769.10, to 90 days in jail and two years' probation. We affirm.
I. FACTUAL BACKGROUND
The victim, Mark Cavaruso, and his 15-year-old son, Alec, were driving on Stark Road in Livonia. While driving, Mark observed that defendant was riding a bicycle toward them and approaching the passenger side of the truck. While passing by, defendant dumped hot liquid on the passenger side of the truck.
After Alec informed his father what defendant had done, Mark turned his truck around and followed him. Mark eventually located defendant hiding in a parking lot behind some bushes. He parked about 30 yards away, rolled down his window, and asked defendant why he spilled coffee all over his truck. Rather than answer, defendant came cycling out of the bushes toward the driver's side of the truck. With a knife pointed toward the victims, defendant began yelling, "I'm going to stab you. I'm going to kill you. I'm going to stab you in the heart."
Before defendant reached the vehicle, Mark rolled up the window and drove away. Defendant continued to shout and hurl insults at Mark during his retreat. Mark dropped off his son at home and then went to the police department to report defendant's actions.
The following day, Mark and his son again were traveling in the same area when they spotted defendant cycling down the road. As they passed by, defendant hid in the trees and waved the knife at them. Mark called the police and kept track of defendant's location until the police arrived. Subsequently, Mark identified defendant in a photograph line-up.
Defendant was convicted of felonious assault. He now appeals on several grounds.
II. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
We review de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). "In determining whether the prosecutor has presented sufficient evidence to sustain a conviction, an appellate court is required to take 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) (quotation marks and citations omitted). We resolve conflicts of the evidence in favor of the prosecution, "and we will not interfere with the jury's determinations regarding the weight of the evidence and the credibility of the witnesses." People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). We also note that circumstantial evidence and reasonable inferences arising therefrom can constitute sufficient proof of the elements of a crime. People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993).
B. ANALYSIS
The elements of felonious assault are: (1) an assault; (2) with a dangerous weapon; and (3) the intent to injure or place the victim in reasonable apprehension of an immediate battery. People v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007). "An assault is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery." People v Nickens, 470 Mich 622, 628; 685 NW2d 657 (2004) (quotation marks and citation omitted). For purposes of establishing felonious assault, a knife constitutes a dangerous weapon. MCL 750.82. "Circumstantial evidence and reasonable inferences arising therefrom may be sufficient to prove the elements of a crime." People v Nelson, 234 Mich App 454, 459; 594 NW2d 114 (1999). "Indeed, because it can be difficult to prove a defendant's state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant's state of mind." People v Henderson, 306 Mich App 1, 11; 854 NW2d 234 (2014) (quotation marks and citation omitted).
Defendant contends that the assault element was not satisfied because victim Mark Calvaruso did not have a reasonable apprehension of an immediate battery. However, Mark was in his truck with the driver's side window rolled down with his son in the passenger's seat. Defendant, who was on his bicycle, pulled out a knife and started cycling toward them with the knife raised. Moreover, "[f]or the apprehension-type assault . . . a lack of actual ability to inflict the threatened harm is largely irrelevant and unnecessary, as long as the victim reasonably apprehends an imminent battery. Thus, the inquiry turns on what the victim perceived, and whether the apprehension of imminent injury was reasonable." People v Reeves, 458 Mich 236, 244; 580 NW2d 433 (1998) (citation and emphasis omitted). In other words, the assault element is satisfied when the circumstances indicate that defendant, through overt conduct, caused the victim to reasonably believe that defendant will do what is threatened. Id.
Here, both Mark and his son testified that they heard defendant shouting as he rode closer, "I'm going to kill you," and "I'm going to stab you in the heart." The jury could reasonably conclude that defendant intended to injure Mark, and that Mark reasonably apprehended an immediate battery. Mark testified that defendant only was 20 or 30 yards away, and still approaching, when they left the scene. Indeed, had Mark not reacted by immediately rolling up his window and driving away, defendant very well may have carried out the actions he explicitly threatened to perform.
Mark also testified that while defendant was cycling towards him with the raised knife, he was afraid for his safety and that of his son. Alec testified that he was "scared" after he heard defendant threaten to stab and kill his father.
It was for the jury to determine the credibility of witnesses and judge whether Mark could have reasonably believed that he faced an imminent battery. Unger, 278 Mich App at 222. Viewed in the light most favorable to the prosecution, the evidence was sufficient to sustain defendant's felonious assault conviction. Tennyson, 487 Mich at 735.
III. SENTENCING
A. STANDARD OF REVIEW
Defendant next contends that the trial court improperly scored 10 points under Offense Variable (OV) 9.
Pursuant to MCL 777.39(1)(c), a trial court may score OV 9 at 10 points if "[t]here were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims who were placed in danger of property loss." "Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002). "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." Hardy, 494 Mich at 438.
B. ANALYSIS
The trial court is to count each person who was placed in danger of physical injury or loss of life or property as a victim. MCL 777.39(2)(a). "OV 9 is scored only on the basis of the defendant's conduct during the sentencing offense." People v Carrigan, 297 Mich App 513, 515; 824 NW2d 283 (2012).
Defendant asserts that, because he was convicted only of one count of felonious assault, there only could be one victim. Yet, MCL 777.39(2) explicitly defines "victim" as "each person who was placed in danger of physical injury or loss of life[.]" "A person may be a victim under OV 9 even if he or she did not suffer actual harm; a close proximity to a physically threatening situation may suffice to count the person as a victim." People v Gratsch, 299 Mich App 604, 624; 831 NW2d 462 (2013), vacated in part on other grounds 495 Mich 876 (2013). For example, we have held that a shooting victim's fiancé and son were "victims" under OV 9 because they were seated next to the victim in the car when the defendant shot the victim through the windshield. People v Kimble, 252 Mich App 269, 274; 651 NW2d 798 (2002).
Here, the victim's son was seated in the passenger seat of the truck during the crime. He was in danger, with no means of escape, and faced the possibility of physical injury when defendant approached the vehicle with a raised knife and delivered several threats of a life-threatening nature. The trial court reasonably concluded that Alec was a victim because he was in close proximity to a physically threatening situation. Gratsch, 299 Mich App at 624. The trial court properly assessed 10 points for OV 9, and defendant is not entitled to resentencing.
IV. CONCLUSION
Defendant's conviction was supported with sufficient evidence. Nor is defendant entitled to resentencing based on the trial court's scoring of OV 9. We affirm.
/s/ Karen M. Fort Hood
/s/ Henry William Saad
/s/ Michael J. Riordan