PEOPLE OF MI V LOUIS JOHNSON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 22, 1999
Plaintiff-Appellee,
v
No. 206339
Recorder’s Court
LC No. 96-008691
LOUIS JOHNSON,
Defendant-Appellant.
Before: Whitbeck, P.J., and Saad and Hoekstra, JJ.
PER CURIAM.
Plaintiff charged defendant with assault with intent to commit murder, MCL 750.83; MSA
28.278, assault with a dangerous weapon (felonious assault), MCL 750.82; MSA 28.277, intentional
discharge of a firearm at a dwelling or occupied structure, MCL 750.234b; MSA 28.431(2), and
possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
Following a bench trial, the court convicted defendant of two counts of felonious assault, MCL 750.82;
MSA 28.277, intentional discharge of a firearm at a dwelling, MCL 750.234b; MSA 28.431(2), and
felony-firearm, MCL 750.227b; MSA 28.424(2). The court sentenced defendant to two years’
imprisonment for the felony-firearm conviction, six to forty-eight months’ imprisonment for each
felonious assault conviction and six to forty-eight months’ imprisonment for the intentional discharge of a
firearm at a dwelling conviction. The felonious assault sentences and intentional discharge of a firearm at
a dwelling sentence were to be served concurrently, but consecutive to the felony-firearm sentence.
Defendant appeals as of right, and we affirm.
Defendant says that there was insufficient evidence to support his convictions for felonious
assault and intentional discharge of a firearm at a dwelling. We disagree. “In reviewing the sufficiency
of the evidence presented at trial in a criminal case, we view the evidence in a light most favorable to the
prosecution and determine whether a rational factfinder could conclude that the essential elements of the
crime were proved beyond a reasonable doubt.” People v Terry, 224 Mich App 447, 452; 569
NW2d 641 (1997).
“The elements of felonious assault are ‘(1) an assault, (2) with a dangerous weapon, and (3)
with the intent to injure or place the victim in reasonable apprehension of an immediate battery.’ ”
-1
People v Davis, 216 Mich App 47, 53; 549 NW2d 1 (1996). Review of the testimony of Frederick
McKinney and Delmarchia Cammon reveals that defendant exchanged words with McKinney, pointed
an AK-47 at both McKinney and Cammon, and threatened to kill McKinney and Cammon.
Accordingly, there was sufficient evidence to support defendant’s convictions for the felonious assault of
McKinney and Cammon.
Defendant argues that he did not intend to injure anyone, but rather, intended to deter
McKinney and Cammon from breaking into his home again. Defendant’s argument is merely an
exercise in semantics. Arguably, defendant did act to deter McKinney and Cammon from breaking into
his home, but he deterred them by placing them in fear of an immediate battery. Accordingly,
defendant’s contention that there was insufficient evidence to support the felonious assault convictions is
without merit.
Defendant also alleges that there was insufficient evidence to support his conviction for
intentional discharge of a firearm at a dwelling. To prove this crime, the prosecutor must show that the
defendant intentionally discharged a firearm, the discharge was at a dwelling or occupied structure and
the defendant knew or had reason to believe that the facility was a dwelling or occupied structure.
CJI2d 11.26a. Here, McKinney and Cammon testified that defendant intentionally fired the weapon at
Cammon’s residence, and defendant knew they resided in the home because they were neighbors for
years. McKinney’s testimony established that defendant intentionally fired the AK-47 at a residence he
knew to be a dwelling. Defendant testified that he did not intend to fire a second shot at Cammon’s
dwelling; he said that the second shot was accidental. Where the resolution of an issue involves the
credibility of two diametrically opposed versions of events, the test of credibility rests in the trier of fact.
People v Lemmon, 456 Mich 625, 646-647; 576 NW2d 129 (1998). The trial court held that
defendant’s version of events was not credible, and defendant intentionally fired at the home, knowing it
to be a dwelling. Accordingly, there was sufficient evidence to sustain the conviction for intentional
discharge of a firearm at a dwelling.
Defendant further erroneously contends that his acquittal of the assault with intent to commit
murder charge and conviction for intentional discharge of a firearm at a dwelling resulted in an
inconsistent verdict. “Questions of law and questions of the application of the law to the facts receive
de novo review.” People v Barrera, 451 Mich 261, 269 n 7; 547 NW2d 280 (1996). There is no
factual inconsistency warranting reversal of defendant’s convictions. The trial court found that defendant
did not have an intent to kill. However, the trial court expressly found that defendant intended to shoot
at a dwelling which defendant knew was occupied. In reaching this conclusion, the trial court found that
defendant’s testimony, that the second shot which hit the residence was accidental, was not credible.
Accordingly, defendant’s contention that the verdict was inconsistent warranting reversal is without
merit. People v Smith, 231 Mich App 50, 52-53; 585 NW2d 755 (1998).
Defendant also says that his acquittal on the assault with intent to commit murder charge, but
convictions for felonious assault resulted in an inconsistent verdict. We disagree. Felonious assault is a
cognate offense of assault with intent to commit murder. People v Vinson, 93 Mich App 483, 485
496; 287 NW2d 274 (1970). Here, the trial court found that defendant did not possess the egregious
intent required for assault with intent to commit murder, an intent to kill. People v Plummer, 229 Mich
-2
App 293, 305; 581 NW2d 753 (1998). However, the trial court expressly found that defendant
possessed the intent to injure, despite defendant’s assertion to the contrary. Specifically, the trial court
held that defendant committed an illegal act toward Cammon causing her to be fearful of an immediate
battery, defendant “intended to injure her” and defendant had the ability to commit the battery because
he had an AK-47, which he fired. Regarding the felonious assault upon McKinney, the trial court held
that defendant had the specific intent to assault McKinney with the AK-47, which caused McKinney to
fear injury and a battery. The trial court’s finding that defendant lacked the requisite intent to kill did not
result in an inconsistent verdict because the intent required to satisfy the offense of felonious assault is a
less egregious intent.
Defendant also contends that his convictions for felonious assault, intentional discharge of a
firearm at a dwelling and felony-firearm violate the Double Jeopardy Clauses of the Federal and
Michigan Constitutions. We disagree. Defendant did not preserve this issue below. However, the
question of double jeopardy involves a constitutional claim and will nevertheless be addressed on
appeal. People v Artman, 218 Mich App 236, 244; 553 NW2d 673 (1996). “A double jeopardy
issue constitutes a question of law that is reviewed de novo on appeal.” People v Lugo, 214 Mich
App 699, 705; 542 NW2d 921 (1995).
In Lugo, supra at 705-706, this Court set forth the criteria to determine whether a defendant’s
double jeopardy rights had been violated:
In the multiple punishment context, both the federal and state Double Jeopardy
Clauses [US Const, Am V; Const 1963, art 1, §15] seek to ensure that the total
punishment does not exceed that authorized by the Legislature. Because the power to
define crime and fix punishment is wholly legislative, the Double Jeopardy Clauses are
not a limitation on the Legislature, and the Legislature may specifically authorize
penalties for what would otherwise be the “same offense.” Cumulative punishment of
the same conduct does not necessarily violate the prohibition against double jeopardy
under either the federal system or the state system. The determinative inquiry is whether
the Legislature intended to impose cumulative punishment for similar crimes.
Determination of legislative intent involves traditional considerations of the
subject, language, and history of the statutes. The court should consider whether each
statute prohibits conduct violative of a social norm distinct from the norm protected by
the other, the amount of punishment authorized by each statute, whether the statutes are
hierarchical or cumulative, and any other factors indicative of legislative intent.
[Citations omitted.]
In People v Guiles, 199 Mich App 54, 59-60; 500 NW2d 757 (1993), this Court held that the
Legislature intended that the felony-firearm statute applied to individuals who committed the offense of
intentional discharge of a firearm at a dwelling or occupied structure. While this Court recognized that
some of the elements of intentional discharge of a firearm at a dwelling necessarily included the elements
of felony-firearm, it was bound by the clear intent of the Legislature. Moreover, in United States v
Dixon, 509 US 688; 113 S Ct 2849; 125 L Ed 2d 556 (1993), the United States Supreme Court held
-3
that the Double Jeopardy clause is not violated where one charge requires proof of an element not
required in the other charge. Because the intentional discharge at dwelling charge requires elements not
required in the felony-firearm charge, there is no double jeopardy violation. Accordingly, it was not a
violation of the Double Jeopardy Clauses of the Michigan and United States Constitutions against
multiple punishments for the same offense to be convicted of felony-firearm and intentional discharge of
a firearm at a dwelling. Therefore, the trial court in Guiles erred in dismissing the felony-firearm charge.
Id. Additionally, convictions of both felonious assault and felony-firearm do not violate the Double
Jeopardy Clauses because the felony-firearm statute reflected a clear legislative intent to impose multiple
punishment for a single wrongful act. People v Sturgis, 427 Mich 392, 406-407; 397 NW2d 783
(1986); People v Parker, 133 Mich App 358, 364; 349 NW2d 514 (1984).
Defendant contends that the crimes of felonious assault and intentional discharge of a firearm at
a dwelling violate double jeopardy because, factually, the felonious assault conviction is inclusive of the
elements of the intentional discharge of a firearm at a dwelling offense. That is, during the chain of
events which transpired, defendant fired two shots without the intention of hurting anyone, although one
bullet allegedly hit the upper level of Cammon’s residence.
The purpose of the assault statutes is to punish crimes against persons. Lugo, supra at 708.
However, the Legislature intended to punish reckless conduct in firing at or toward and even above the
direction of a dwelling or occupied structure. People v Wilson, 230 Mich App 590, 592-594; 585
NW2d 24 (1998). Accordingly, defendant’s contention that the offenses punish the same behavior is
without merit. Additionally, in Lugo, supra, this Court held there is no violation of double jeopardy
protections if one crime is complete before the other takes place, even where the offenses share
common elements or one constitutes a lesser offense of the other. The acts of felonious assault were
complete when defendant committed the offense of intentional discharge of a firearm at a dwelling.
Furthermore, the felonious assault charge requires that the defendant assault a person, while the
intentional discharge statute does not require that a person be present in the dwelling. MCL
750.234b(5); MSA 28.431(2)(5). Dixon, supra. There was no double jeopardy violation as a result
of defendant’s convictions.
Affirmed.
/s/ William C. Whitbeck
/s/ Henry William Saad
/s/ Joel P. Hoekstra
-4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
