PEOPLE OF MI V KEVIN CRUMBIE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 11, 2000
Plaintiff-Appellee,
v
No. 207460
Recorder’s Court
LC No. 96-009609
KEVIN CRUMBIE,
Defendant-Appellant.
Before: Smolenski, P.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Defendant was convicted of assault with intent to do great bodily harm, MCL 750.84; MSA
28.279, malicious destruction of property, MCL 750.377b; MSA 28.609(2), and possession of a
firearm during the commission of a felony, MCL 750.277b; MSA 28.424(2). Defendant was
sentenced to five to ten years in prison for the assault with intent to do great bodily harm conviction, two
to four years in prison for the malicious destruction of property conviction and two years in prison for
the felony-firearm conviction. Defendant appeals as of right. We affirm.
Defendant’s first issue on appeal is that the trial court committed reversible error when it
deviated from the standard jury instructions. We disagree. “The determination whether a jury
instruction is accurate and applicable in view of all the factors present in a particular case lies within the
sound discretion of the trial court.” People v Perry, 218 Mich App 520, 526; 554 NW2d 362
(1996).
Jury instructions are to be read as a whole rather than extracted piecemeal to establish error.
People v Bell, 209 Mich App 273, 276; 530 NW2d 167 (1995). The reviewing court must balance
the general tenor of the instructions in their entirety against the potentially misleading effect of a single
isolated sentence. People v Freedland, 178 Mich App 761, 766; 444 NW2d 250 (1989). Even if
somewhat imperfect, instructions do not create error if they fairly presented the issues to be tried and
sufficiently protected the defendant's rights. People v Davis, 216 Mich App 47, 54; 549 NW2d 1
(1996). No error results from the omission of an instruction if the instructions as a whole cover the
substance of the omitted instruction. People v Messenger, 221 Mich App 171, 177-178; 561 NW2d
463 (1997).
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Defendant argues that the trial court improperly strayed from the standard jury instructions. He
does not contend that the instructions the court actually gave omitted any elements of the offenses
charged, material issues, or defenses. People v Daniel, 207 Mich App 47, 53; 523 NW2d 830
(1994); People v Moore, 189 Mich App 315, 319; 472 NW2d 1 (1991). Rather, he implies that the
trial court did not instruct the jury in an understandable manner, ultimately denying him a fair trial. See
generally Karas v White, 101 Mich App 208, 211; 300 NW2d 320 (1980) (sufficiently confusing jury
instructions may warrant a new trial). In People v Federico, 146 Mich App 776, 784; 381 NW2d
819 (1985), this Court found the following principles instructive in resolving the issue:
Where additional language contains ‘no pressure, threats, embarrassing assertions, or
other wording that would cause this Court to feel that it constituted coercion,’ that
additional language rarely would constitute a substantial departure. (citations omitted).
In the instant case, defendant takes issue with the court telling the jury that the complainant was
functioning as a police officer at the time of the alleged assault. However, taken as a whole, the
instructions were not inappropriate. Here, when viewed in the context in which it was made, we do not
find the trial court’s comment regarding the complainant coercive in any way. Although it certainly was
not required, it was not threatening, and we do not find it to be error requiring reversal of defendant’s
convictions.
Second, defendant argues that the trial court unnecessarily included in the instructions the
definitions of manslaughter and other types of homicides and also deviated from the instructions for
specific intent. Again, when viewed as a whole, the jury instructions were properly presented.
Although the inclusion of the manslaughter definition could have been confusing, when read within the
context of the entire instruction, it is obvious that the court was attempting to distinguish assault with
intent to murder from manslaughter. Furthermore, while the trial court mentioned intent during the
manslaughter instruction, there was no complete instruction given. When balanced against the entire set
of instructions, the general tenor of the instructions was proper.
Similarly, we do not find error requiring reversal arising from the trial court’s statement that
identification was an important aspect of the case. The majority of the testimony in the case concerned
the identity of defendant as the shooter. We therefore find that this statement was neither misleading nor
coercive, and was consistent with the evidence presented at trial.
Next defendant argues that the prosecution failed to present sufficient evidence to convict
defendant of assault with intent to do great bodily harm less than murder. We disagree. In reviewing
the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the
prosecution 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 Hutner, 209 Mich App 280, 282; 530
NW2d 174 (1995), citing People v Petrella, 424 Mich 221, 268-270; 380 NW2d 11 (1985). This
Court should not interfere with the trier of fact’s role of determining the weight of evidence or the
credibility of witnesses. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
Circumstantial evidence and the reasonable inferences which arise from the evidence can constitute
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satisfactory proof of the elements of the crime. People v Truong (After Remand), 218 Mich App
325, 337; 553 NW2d 692 (1996).
“The elements of assault with intent to do great bodily harm less than murder are: (1) an
attempt or offer with force or violence to do corporal hurt to another, (2) coupled with an intent to do
great bodily harm less than murder.” People v Pena, 224 Mich App 650, 659; 569 NW2d 871
(1997), mod and remanded on other grounds 457 Mich 885 (1998). Defendant claims that there was
insufficient evidence that defendant intended to cause great bodily harm less than murder because there
was no evidence that defendant pointed the gun at a vital spot of the complainant police officer.
Here, there is overwhelming evidence that defendant intended to cause great bodily harm less
than murder. Defendant flagged down two police officers in a patrol car. Defendant told the officers
that someone needed help on the highway. When the police officer returned after looking at the
highway, defendant said, “Get up off me,” reached for his gun, pointed and fired it at the officer. Based
upon this evidence, a rational trier of fact could find that defendant intended to cause great bodily harm
less than murder.
Defendant also argues on appeal that the trial court erred when it made improper rulings on
evidentiary issues. We disagree. The decision whether evidence is admissible is within the trial court’s
discretion and should only be reversed where there is a clear abuse of discretion. People v Starr, 457
Mich 490, 494; 577 NW2d 673 (1998). An abuse of discretion is found only if an unprejudiced
person, considering the facts on which the trial court acted, would say there was no justification or
excuse for the ruling made. People v Rice, 235 Mich App 429, 439; 597 NW2d 843 (1999).
Furthermore, in the absence of an objection, this Court may not review this issue unless there was a
“plain error that affected substantial rights” and the defendant is actually innocent or the error seriously
affected the fairness, integrity, or public reputation of [the] judicial proceedings. People v Carines, 460
Mich 750, 774; 597 NW2d 130 (1999).
Defendant first claims that the trial court improperly allowed Officer Prude to testify to what
Tina Turner and Shameka Turner told him when they came into the police station. However, Officer
Prude only testified that the Turner sisters told him something concerning the complainant. He did not
testify to what they actually said. Accordingly, defendant’s argument is meritless.
Second, defendant claims that the trial court erred when it permitted expert testimony from
chemist William Steiner without first qualifying him as an expert witness. Here, the prosecutor
questioned Steiner regarding his background and qualifications and then proceeded to solicit opinion
testimony from Steiner. Significantly, defendant never objected or asked to voir dire Steiner. Further,
defendant did not cross-examine Steiner. Thus, defendant has waived this issue for appeal.
Defendant’s claim that the trial court erred when it failed to give the jury instructions on expert testimony
is also without merit because defendant never requested such an instruction. The trial court’s admission
of the above discussed evidence was neither singularly or cumulatively an abuse of discretion.
Defendant’s final issue on appeal is that his sentence for assault with intent to do great bodily
harm was disproportionate. We disagree. This Court reviews the legality of a trial court’s imposition of
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sentence for an abuse of discretion. People v Houston, 448 Mich 312, 319; 532 NW2d 508 (1995).
A trial court abuses its discretion when it imposes a sentence that is not proportionate to the seriousness
of the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich 630,
635-636; 461 NW2d 1 (1990).
Defendant’s five-year minimum assault sentence is within the guidelines range of thirty-six to
eighty months. A sentence imposed within an applicable sentencing guidelines range is presumptively
neither excessively severe nor unfairly disparate. People v Broden, 428 Mich 343, 354-355; 408
NW2d 789 (1987); People v Kennebrew, 220 Mich App 601, 609; 560 NW2d 354 (1996).
According to Milbourn, supra at 661, sentences within the guidelines range can be an abuse of
discretion in unusual circumstances, which are defined as “[u]ncommon,” “not usual, rare.” People v
Sharp, 192 Mich App 501, 505; 481 NW2d 773 (1992), citing Black’s Law Dictionary.
However, defendant did not point out any unusual circumstances that would warrant a sentence
outside the guidelines range. Furthermore, the nature of defendant’s crime was particularly violent and
serious, and he has a history of disregarding the law as his prior convictions for breaking and entering a
house trailer and armed bank robbery demonstrate. Accordingly, we find that defendant’s sentence
does not violate the principle of proportionality.
Affirmed.
/s/ Michael R. Smolenski
/s/ William C. Whitbeck
/s/ Brian K. Zahra
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