Opinion
No. 338204
06-19-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL LEE WATTS, Defendant-Appellant.
UNPUBLISHED Wayne Circuit Court
LC No. 16-007030-01-FC Before: SAWYER, P.J., and CAVANAGH and FORT HOOD, JJ. PER CURIAM.
Defendant was convicted by a jury of assault with intent to do great bodily harm (AWIGBH), MCL 750.84, a felon in possession of a firearm (felon-in-possession), MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 25 to 40 years' imprisonment for the AWIGBH conviction, 3 to 10 years' imprisonment for the felon-in-possession conviction, and two years' imprisonment for the felony-firearm conviction. On appeal, defendant contends that there was insufficient evidence to support the AWIGBH conviction, specifically arguing that the evidence compelled the jury to find that defendant acted in self-defense. Defendant also contends that the trial court abused its discretion by imposing excessive court costs without a factual basis to do the same. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
"A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, viewing the evidence in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014). "All 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." People v Solloway, 316 Mich App 174, 180-181; 891 NW2d 255 (2016) (citation omitted). "This Court will not interfere with the trier of fact's determinations regarding the weight of the evidence or the credibility of witnesses." People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014), citing People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
"The elements of AWIGBH are '(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) and intent to do great bodily harm less than murder.'" Stevens, 306 Mich App at 628, quoting People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997). "AWIGBH is a specific intent crime," and "[t]he intent to do great bodily harm less than murder is 'an intent to do serious injury of an aggravated nature.' " Stevens, 306 Mich App at 628, citing Parcha, 227 Mich App at 239, and quoting People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005).
Because of the difficulty in proving an actor's intent, only minimal circumstantial evidence is necessary to show that a defendant had the requisite intent. People v. Harverson, 291 Mich. App. 171, 178; 804 N.W.2d 757 (2010). Intent to cause serious harm can be inferred from the defendant's actions, including the use of a dangerous weapon or the making of threats. See Parcha, 227 Mich. App. at 239, 575 N.W.2d 316; People v. Cunningham, 21 Mich. App. 381, 384; 175 N.W.2d 781 (1970). [Stevens, 306 Mich App at 629.]
Here, the victim testified that defendant—unprovoked—opened fire while the victim's back was turned to defendant. Defendant fired at least three bullets, hitting the victim in his leg, hand, and back. Viewed in a light most favorable to the prosecution, that defendant admits to the underlying conduct is alone sufficient for a reasonable jury to find that defendant assaulted the victim with intent to do great bodily harm. See Stevens, 306 Mich App at 628-629. That having been said, defendant raised self-defense as an affirmative defense at trial in order to negate the intent element of the crime. Defendant contends on appeal that, despite having shot the victim three times, the evidence was insufficient for a reasonable jury to conclude that defendant acted with intent to harm rather than defend himself. We disagree.
Self-defense is an affirmative defense. People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010). " 'A defendant asserting an affirmative defense must produce some evidence on all elements of the defense before the trial court is required to instruct the jury regarding the affirmative defense.' " People v Guajardo, 300 Mich App 26, 35-36; 832 NW2d 409 (2013), quoting People v Crawford, 232 Mich App 608, 619; 591 NW2d 669 (1998). "Once a defendant raises the issue of self-defense and 'satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist,' the prosecution must 'exclude the possibility' of self-defense beyond a reasonable doubt." Stevens, 306 Mich App at 630, quoting Dupree, 486 Mich at 709-710.
The elements of self-defense have been codified in the Self-Defense Act (SDA), MCL 780.971 et seq. See Dupree, 486 Mich at 708. The act provides, in pertinent part:
(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following appears:Pursuant to the statute, the elements include: (1) defendant had not or was not engaged in the commission of a crime at the time he used deadly force, (2) defendant was somewhere he had the legal right to be, and (3) defendant honestly and reasonably believed that the use of deadly force was necessary to prevent death or great bodily harm. See Guajardo, 300 Mich App at 35-36, citing MCL 780.972(1). At trial, defendant bore an initial burden to establish a prima facie self-defense case, and after doing so, shifted the burden to the prosecution to disprove at least one of the elements beyond a reasonable doubt.
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual. [MCL 780.972(1).]
Defendant contends that no reasonable jury could have found that defendant acted with anything other than an honest and reasonable belief that the use of deadly force was necessary to prevent death or great bodily harm, but in making his argument, largely ignores the other two elements of self-defense. Contrarily, the prosecution focuses on the first element, contending that the evidence established that defendant was engaged in the commission of a crime at the time he used deadly force, thus barring defendant from claiming self-defense. Defendant's argument is incomplete, and we agree with the prosecution.
"[A] felon possessing a firearm is not precluded from raising self-defense under the SDA when there is evidence that would allow a jury to conclude that criminal possession of a firearm was justified because the accused had an honest and reasonable belief that the use of deadly force was necessary to prevent imminent death, great bodily harm, or sexual assault to himself or herself or to another." Guajardo, 300 Mich App at 40, citing Dupree, 486 Mich at 708-709 and MCL 780.972(1). That is, although felon-in-possession is a crime in and of itself, a defendant is not automatically precluded from raising self-defense if that defendant can show that his possession of the firearm was related to his reasonable fear of imminent death or great bodily harm. "[R]elevant to determining whether the accused had an honest and reasonable belief that possession of a firearm was justified to prevent imminent death, great bodily harm, or sexual assault" is "the temporal relationship between the time the accused came into possession of the firearm and the time he or she deployed deadly force." Guajardo, 300 Mich App at 40 n 4, citing Dupree, 486 Mich at 708-709.
In this case, there was no evidence suggesting that defendant came to possess a firearm based upon a reasonable fear of death or great bodily harm. In fact, the evidence suggests the opposite. Defendant himself testified that he was seated in his vehicle when he was approached by the victim, and fearful that the victim was going to shoot defendant, defendant exited his vehicle and shot the victim first. With no other testimony concerning how the firearm came into defendant's possession, it is implicit in defendant's testimony that he possessed the gun in violation of the law prior to any possible fear of imminent death or great bodily harm that could have necessitated the possession. In other words, while defendant could have momentarily grabbed and used a gun in order to protect himself, defendant clearly possessed the gun prior to there being any threat. Accordingly, the evidence was sufficient for a reasonable jury to conclude that the elements of self-defense were disproved beyond a reasonable doubt.
Moreover, even assuming arguendo that defendant had lawfully possessed the firearm, a reasonable jury also could have found that defendant lacked an honest and reasonable belief that the use of deadly force was necessary. The victim testified that defendant pulled up behind the victim's parked vehicle and, unprovoked, shot the victim three times. Defendant shot the victim not once or twice, but three times, and according to the victim, defendant did so while the victim had his back turned and was walking away from defendant. That the victim was shot in the back only further substantiates that fact. Defendant may have testified to a different set of circumstances, but it is not the role of this Court to interfere with a jury's "determinations regarding the weight of the evidence or the credibility of witnesses." Stevens, 306 Mich App at 628 citing Kanaan, 278 Mich App at 619. Accordingly, there was also sufficient evidence at trial for a reasonable jury to conclude that, not only did defendant unlawfully possess the firearm prior to having a reasonable fear of imminent death or great bodily harm that could necessitate the same, but defendant never had a reasonable fear of imminent death or great bodily harm to justify the use of deadly force.
II. IMPOSITION OF COSTS
Defendant next contends that the trial court abused its discretion by imposing excessive court costs without articulating a factual basis for the costs on the record. A defendant preserves a challenge to the trial court's imposition of court costs by objecting to the costs at the time that they are ordered. People v Johnson, 315 Mich App 163, 197; 889 NW2d 513 (2016), citing People v Konopka (On Remand), 309 Mich App 345, 356; 869 NW2d 651 (2015). Because defendant failed to object to the costs at the time they were ordered, the issue is unpreserved and this Court reviews for plain error affecting defendant's substantial rights. Johnson, 315 Mich App at 197, citing Konopka, 309 Mich App at 356.
"In order for a defendant to establish plain error, he must show that (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." Johnson, 315 Mich App at 197, citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "The defendant has the burden of establishing each of these three elements." People v Smith, 498 Mich 466; 870 NW2d 299 (2015), citing Carines, 460 Mich at 763. Generally, an error affects a defendant's substantial rights when it prejudices him, or when it "affect[s] the outcome of the lower court proceedings." Carines, 460 Mich at 763, citing United States v Olano, 507 US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993). Finally, "[s]tatutory interpretation presents a question of law that we review de novo." Konopka, 309 Mich App at 356 (citation omitted).
As a preliminary matter, defendant contends that the trial court abused its discretion by ordering $1,300 in court costs without establishing a factual basis to impose the costs, but fails to cite to the record to show where or at what point such costs were imposed. The prosecution concedes the amount of costs imposed, but also fails to cite the record, instead citing to defendant's brief on appeal for the amount. In actuality, while it appears that MDOC recommended the imposition of $1,300 in court costs in defendant's presentence investigation report, the trial court did not actually impose the costs. "A court speaks through its written orders and judgments," and in this case, the box corresponding to court costs on defendant's amended judgment of sentence was left blank. People v Mysliwiec, 315 Mich App 414, 418 n 2; 890 NW2d 691 (2016) (quotation marks and citation omitted). The trial court assessed defendant $68 in state minimum costs for each of his three felony convictions pursuant to MCL 769.1k(1)(a) and MCL 769.1j(1)(a), and a crime victim fee of $130 pursuant to MCL 780.905(1)(a), for a total of $334. Based upon the actual fees imposed, the law relied upon by both defendant and the prosecution to argue that the trial court was required to develop a factual basis is inapplicable.
First, the state minimum costs and the crime victim fee imposed by the trial court were mandatory. MCL 769.1k(1)(a) provides:
(1) If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred by statute or sentencing is delayed by statute:Section 1j in turn provides:
(a) The court shall impose the minimum state costs as set forth in section 1j of this chapter. [Emphasis added.]
(1) Beginning October 1, 2003, if the court orders a person convicted of an offense to pay any combination of a fine, costs, or applicable assessments, the court shall order that the person pay costs of not less than the following amount, as applicable:Subsection 1k(1)(a) plainly requires trial courts to impose minimum state costs as set forth in subsection 1j(1)(a), which then prescribes $68 for felony convictions. Defendant was convicted of three felonies, and thus, appropriately assessed $204 ($68 per felony) pursuant to the statutes. Defendant's final fee of $130, the crime victim fee, was prescribed by MCL 780.905(1)(a):
(a) $68.00, if the defendant is convicted of a felony. [MCL 769.1j(1)(a).]
(1) The court shall order each person charged with an offense that is a felony, misdemeanor, or ordinance violation that is resolved by conviction . . . to pay an assessment as follows:
(a) If the offense is a felony, $130.00.
Second, perhaps due to the erroneous belief that the trial court ordered $1,300 in court costs, in arguing that the trial court was required to develop a factual basis for the fees imposed, both defendant and the prosecution rely on case law that applies to nonmandatory fees. Defendant relies upon People v Sanders (After Remand), 298 Mich App 105; 825 NW2d 376 (2012), and Konopka for the proposition that the trial court was required to develop a factual basis in order to afford defendant an opportunity to challenge the reasonableness of the costs assessed. The prosecution relies upon Konopka for the same proposition. However, both Sanders and Konopka primarily deal with the application of MCL 769.1k(1)(b), which prescribes trial courts authority to assess costs and fees other than those mandated by statute. See Sanders, 298 Mich App at 108 (referring to court costs imposed pursuant to MCL 769.1k(1)(b)(ii), which refers to costs authorized by statute); Konopka, 309 Mich App at 357-358 (interpreting MCL 769.1k(1)(b)(iii) as authorizing nonstatutory costs "reasonably related to the actual costs incurred by the trial court").
In summation, the statutes mandating state minimum costs and crime victim fees are clear, and the trial court properly assessed defendant a total of $334 pursuant to the same. The trial court was not required to develop a factual basis for those fees because they were mandatory and automatic, and both defendant and the prosecution erroneously rely on case law that requires trial courts to establish a factual basis for fees that are not mandatory and not automatic.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood