PEOPLE OF MI V ISAAC SHEARDELL ABBY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 5, 2001
Plaintiff-Appellee,
v
No. 220267
Saginaw Circuit Court
LC No. 87-016109-FC
ISAAC SHEARDELL ABBY,
Defendant-Appellant.
Before: Holbrook, P.J., and McDonald and Saad, JJ.
PER CURIAM.
The jury convicted defendant of assault with intent to do great bodily harm, MCL 750.84;
MSA 28.279, possession of firearm by a felon, MCL 750.224f; MSA 28.421(6), and felonyfirearm, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to two years’
imprisonment for the felony-arm conviction, five to fifteen years for the assault with intent to
commit great bodily harm conviction, and forty to ninety months for the felon in possession of a
firearm conviction. Defendant appeals as of right, and we affirm.
I.
Defendant argues that the trial court erred in denying his motion for directed verdict
because significant discrepancies between witness’ testimony prevented a reasonable jury from
finding he formed a specific intent to kill.
This Court reviews a decision on a motion for directed verdict to determine if the
evidence, viewed in the light most favorable to the prosecutor, is sufficient to allow a rational
trier of fact to find that the essential elements of the crime charged were proven beyond a
reasonable doubt. People v Mayhew, 236 Mich App 112, 114; 600 NW2d 370 (1999).
Here, the prosecutor charged defendant with assault with the intent to commit murder,
which requires proof of (1) an assault (2) with an actual intent to kill (3) which, if successful,
would make the killing murder. People v McRunels, 237 Mich App 168, 181; 603 NW2d 95
(1999). In attempting to prove guilt, circumstantial evidence and the reasonable inferences
derived from that evidence can constitute satisfactory proof of the elements of the crime. Id.
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Defendant argues that the discrepancies between the police officer’s and the
complainant’s testimony were sufficient to negate elements of the crime charged and preclude a
reasonable factfinder from concluding that all the elements charged were proven beyond a
reasonable doubt. However, beyond this cursory statement, defendant failed to expand on the
argument. Instead, defendant supports his theory by incorporating arguments made to the court
at the time of the motion and during closing arguments. Id. In essence, defendant has announced
his position and now impermissibly leaves it to this Court to research and rationalize the basis of
his claims. People v Leonard, 224 Mich App 569, 588; 569 NW2d 663 (1997).
Notwithstanding, we conclude that, although there were inconsistencies in the witness’
testimony, when all conflicts are resolved in favor of the prosecution, there is sufficient evidence
from which to infer an intent to kill.
Defendant also contends that the trial court’s failure to instruct on the requested lesser
included misdemeanors was an abuse of discretion because the request was supported by the
evidence and defendant’s theory of the case. We disagree.
The decision whether to give a requested jury instruction is reviewed for an abuse of
discretion. People v Malach, 202 Mich App 266, 276; 507 NW2d 834 (1994). Similarly,
whether jury instructions are applicable to the facts of the case is within the discretion of the trial
court. People v Ho, 231 Mich App 178, 189; 585 NW2d 357 (1998).
Generally, where an adequate request for an appropriate misdemeanor instruction is
supported by a rational view of the evidence adduced at trial, the trial judge must give the
requested instructions unless to do so would result in undue confusion, violation of due process,
or some other injustice. People v Stephens, 416 Mich 252, 255; 330 NW2d 675 (1982). There
are five conditions to this test. People v Steele, 429 Mich 13, 19; 412 NW2d 206 (1987). First a
proper request must be made. Id. Second, there must be an appropriate relationship between the
charged offense and the requested misdemeanor. People v Hendricks, 446 Mich 435, 444-445;
521 NW2d 546 (1994). Third, the requested misdemeanor instruction must be supported by a
rational view of the evidence. Steele, supra at 20. Fourth, not relevant here, if the prosecutor
requests the instruction, the defendant must have adequate notice of the misdemeanor charge as
one against which he might have to defend. Id. at 21. Finally, the requested misdemeanor
instruction cannot result in injustice or undue confusion. Id. at 21-22. The trial court is vested
with substantial discretion in deciding whether the cause of justice would be served by the giving
a misdemeanor instruction and cannot be reversed on appeal absent an abuse of discretion. Id.
The failure to give an appropriate instruction is an abuse of discretion if a reasonable person
would find no justification or excuse for the ruling made. Malach, supra at 276.
Defendant says that he properly requested the misdemeanor instruction because, although
defendant adopted a theory of mistaken identity as his principal defense, he also raised an
alternative defense of lack of intent due to extreme intoxication that was preserved when the
court agreed to the intoxication instruction. Although defendant made a proper request and there
was an appropriate relationship between the charged offense and the lesser misdemeanors, the
request was not supported by a rational view of the evidence at trial. Steele, supra. Moreover,
notwithstanding that the prosecutor’s and defendant’s theories conflict, neither theory supports
the requested instruction because no evidence showed that defendant was simply reckless in
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discharging a gun. The parties disputed defendant’s level of intent when he fired the gun –
whether he intended to kill or merely cause great bodily harm. However, this dispute was not
sufficient to allow the jury to “rationally reject the existence of the greater offense and accept the
existence of the lesser misdemeanor offense.” Id. at 21.
Additionally, the final prerequisite that the instructions not cause undue confusion or
injustice is not established. The court intended to instruct the jury on the principal charge and
three lesser included felonies. Any additional instructions would have confused the jury, could
have caused a compromise verdict, and would be inconsistent with the policy goal of permitting
an instruction on lesser included misdemeanors. Steele, supra at 18-19. Our Supreme Court in
Steele said that it vested “substantial discretion in the trial judge in determining whether the
cause of justice would be served by giving the lesser included misdemeanor instruction on the
facts of any given case. ” Id. at 22. We hold that the trial court did not abuse its discretion and
moreover was correct in denying defendant’s request for misdemeanor instructions.
Finally, defendant claims his sentence was disproportionate, though it is within the
sentencing guidelines’ recommended range.
The trial court sentenced defendant to a minimum of sixty months’ imprisonment for his
conviction of assault with the intent to do great bodily harm, MCL 750.84; MSA 28.279, and
now argues that the sentence, although within the guidelines, is disproportionate because the
sentencing court ignored circumstances peculiar to the offense and the offender. This position is
not supported by the record. Additionally, a defendant who claims that a sentence falling within
the guidelines is disproportionate must articulate those unusual circumstances either at
sentencing or on appeal. People v Sharp, 192 Mich App 501, 505-506; 481 NW2d 773 (1992).
Defendant presented no unusual circumstances, and a defendant’s employment, lack of criminal
history, and minimum culpability are not unusual circumstances that would overcome this
presumption. People v Daniels, 207 Mich App 47, 54; 523 NW2d 830 (1994).
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Gary R. McDonald
/s/ Henry William Saad
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