PEOPLE OF MI V JERMAL DEONDRAI MADISON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 25, 2001
Plaintiff-Appellee,
v
No. 220074
Macomb Circuit Court
LC No. 98-001806-FH
JERMAL DEONDRAI MADISON,
Defendant-Appellant.
Before: Hood, P.J., and Doctoroff and K.F. Kelly, JJ.
PER CURIAM.
Defendant appeals as of right after his conviction by a jury of one count of extortion,
MCL 750.213; MSA 28.410. Defendant was sentenced to three years’ probation with the first
six months to be served in the Macomb County jail. We affirm.
This case arises out events that occurred after the theft of a 1997 Chevy Tahoe in April
1998. Approximately one week later, someone calling himself Drake left a message on the
vehicle owners’ answering machine, stating that he had something important to discuss, and
leaving a cellular telephone number. The following day the owner called the cellular telephone
number and was told that he could get his vehicle back if he paid $600. The owner called the
police and, with advice from a detective, contacted Drake again. Drake told the owner that if he
did not get the money, the truck would be “long gone.”
The owner negotiated with Drake to make the exchange that afternoon in a parking lot in
Eastpointe at Eight Mile and Gratiot. The police set up surveillance at the parking lot with an
officer assuming the owner’s identity and waited for Drake to arrive. When Drake did not arrive
at the appointed time, the owner contacted Drake on one telephone line with the police on
another line. The police observed a vehicle similar to the stolen automobile that was driven by a
person who was talking on a cell telephone and who was later identified as defendant. After he
parked the vehicle, an officer took defendant into custody.
Defendant first argues that there was insufficient evidence to sustain a conviction of
extortion because there was no threat of injury to the owner or his vehicle if he refused to pay the
$600. We disagree.
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In reviewing a claim of insufficient evidence, we view the evidence in the light most
favorable to the prosecutor and determine whether there was sufficient evidence for a rational
trier of fact to find that the essential elements of the crime were proven beyond a reasonable
doubt. People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999). This Court must not
interfere with the jury’s role of determining the weight of the evidence or the credibility of
witnesses. People v Stiller, 242 Mich App 38, 42; 617 NW2d 697 (2000).
The extortion statute provides that
[a]ny person who . . . shall orally or by any written or printed communication
maliciously threaten any injury to the person or property . . . of another with intent
thereby to extort money or any pecuniary advantage whatever, or with intent to
compel the person so threatened to do or refrain from doing any act against his
will, shall be guilty of a felony . . . [MCL 750.213; MSA 28.410.]
The threat to a victim of extortion cannot be minor and must involve serious consequences either
to the victim’s detriment or the extortionist’s advantage. People v Fobb, 145 Mich App 786, 791792; 378 NW2d 600 (1985).
In this case, the evidence showed that defendant told the vehicle owner “if you want to
see your car, call me back when you get the money,” and “make sure I get the f-ing money or me
and your truck will be long gone.” In addition, defendant told a police officer that he told the
owner he wanted $600 for the safe return of the vehicle. Taken in the light most favorable to the
prosecution, we conclude that a reasonable person could find that defendant made a threat of
injury to the vehicle owner’s property with serious consequences to the owner’s detriment,
namely, the loss of $600 or the loss of his vehicle.
Defendant’s second argument is that evidence regarding the telephone message received
by the owner and other telephone conversations should not have been admitted because they
were hearsay and lacked adequate foundation. Generally, to preserve an issue regarding the
admission of evidence on appeal, the party must have objected to the evidence at trial. People v
Hannold, 217 Mich App 382, 391; 551 NW2d 710 (1996). In this case, defendant objected to the
owner’s testimony regarding the initial telephone message, but did not object to testimony
regarding other telephone calls that occurred throughout the day of the attempted vehicle
exchange. Further, defendant specifically stated that he had no objection to the admission of the
owner’s written account of the events on that day. Accordingly, the only evidentiary issue
properly preserved for appeal was the admission of evidence relating to the initial telephone
message.
The decision whether to admit evidence is within the sound discretion of the trial court
and will not be disturbed on appeal absent an abuse of discretion. People v Lugo, 214 Mich App
699, 709; 542 NW2d 921 (1995). An abuse of discretion occurs where a court’s action is so
violative of fact and logic as to constitute perversity of will or defiance of judgment. People v
Laws, 218 Mich App 447, 456; 554 NW2d 586 (1996).
MRE 801(d)(2) provides that “[a] statement is not hearsay if . . . [t]he statement is offered
against a party and is (A) the party’s own statement . . .” A sufficient foundation must be laid to
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establish that the party actually made the statement. Merrow v Bofferding, 458 Mich 617, 633;
581 NW2d 696 (1998). In this case, the prosecution used circumstantial evidence to establish
that defendant was the person who had the telephone conversations with the owner. That
evidence included testimony that the owner was talking on one telephone line with the person
requesting money, and on the other line with a police detective. During those conversations, the
detective saw defendant drive to the appointed place in the stolen vehicle while talking on a
cellular telephone. At the same time, the owner was told by the person wanting money that he
was “right here” at the appointed place. Based on that foundation evidence, we conclude that the
trial court did not abuse its discretion when it admitted the testimony about the initial telephone
message.
Regarding defendant’s unpreserved claims of improperly admitted evidence, to avoid
forfeiture, defendant must show that 1) an error occurred, 2) the error was plain, i.e., clear or
obvious, and 3) the plain error affected his substantial rights. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). This test applies to unpreserved allegations of both constitutional
and nonconstitutional error. Id. at 764.
Here, defendant claims that admission of the other telephone conversations was error
because the owner was not familiar with defendant’s voice and could not identify defendant as
the caller. Defendant also argues that the caller’s self-identification as “Drake” is insufficient to
lay a proper foundation. However, identification of defendant’s voice was not an issue in this
case. No where in the record was the owner asked to identify the caller’s voice as that of
defendant. In addition, evidence that the caller referred to himself as Drake was not used to
identify defendant as the caller. Rather, the prosecution utilized the previously discussed
circumstantial evidence to establish that defendant was the caller. Based on the apparent
irrelevance of the other telephone conversations to identification of defendant as the caller, we
conclude that defendant has failed to show that the admission of the conversations was plain
error.
Affirmed.
/s/ Harold Hood
/s/ Martin M. Doctoroff
/s/ Kirsten Frank Kelly
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