PEOPLE OF MI V DEREK BURKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 19, 2002
Plaintiff-Appellee,
v
No. 229700
Wayne Circuit Court
LC No. 00-001218
DEREK BURKS,
Defendant-Appellant.
Before: Zahra, P.J., and Neff and Saad, JJ.
PER CURIAM.
Defendant appeals by right his jury trial convictions for three counts of second-degree
home invasion, MCL 750.110a(3), two counts of felonious assault, MCL 750.82, and one count
of possession of a firearm during the commission of a felony, MCL 750.227b. Defendant was
sentenced to six to fifteen years in prison for his second-degree home invasion convictions, two
to four years in prison for his felonious assault convictions, and two years in prison for his
felony-firearm conviction, to be served consecutively to the home invasion and the felonious
assault convictions. We affirm.
On appeal, defendant argues that there was insufficient evidence for the jury to convict
him of two counts of felonious assault. Due process requires that the prosecution introduce
sufficient evidence that could justify a trier of fact in concluding that the defendant is guilty
beyond a reasonable doubt. People v Fisher, 193 Mich App 284, 287; 483 NW2d 452 (1992).
Therefore, by arguing that the evidence was insufficient to sustain his conviction for felonious
assault, defendant invokes his constitutional right to due process of law. People v Hawkins, 245
Mich App 439, 457; 628 NW2d 105 (2001). Review of this constitutional issue is de novo. Id.
When reviewing a claim of insufficient evidence, this Court must view the evidence in a
light most favorable to the prosecution and determine whether a rational trier of fact could have
found that the essential elements of the crime were proven beyond a reasonable doubt. People v
Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000); People v Wolfe, 440 Mich 508, 513514; 489 NW2d 478, amended 441 Mich 1201 (1992). The prosecution need not negate every
reasonable theory consistent with innocence, but need only convince the jury of the defendant’s
guilt in the face of whatever contradictory evidence the defendant may provide. Nowack, supra
at 400. All conflicts in the evidence must be resolved in favor of the prosecution. People v
Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
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The Michigan felonious assault statute provides:
[A] person who assaults another person with a gun, revolver, pistol, knife, iron
bar, club, brass knuckles, or other dangerous weapon without intending to commit
murder or to inflict great bodily harm less than murder is guilty of a felony … .
[MCL 750.82(1).]
“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.”
People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). An automobile may be used as
a “dangerous weapon” for purposes of the felonious assault statute. People v Sheets, 138 Mich
App 794, 799; 360 NW2d 301 (1984).
Defendant was convicted of one count of felonious assault for driving his car at Officer
Dailey. Defendant argues that the evidence showed that he did not intentionally drive the car at
Officer Dailey because Officer Solomon was holding on to his arm while he was driving. We
disagree. Evidence showed that, as defendant got into the car, Officer Solomon grabbed him and
tried to pull him out of the car. Officer Solomon was holding on to defendant’s shirt or jacket
and pulling on his arm as defendant was driving away. Officer Dailey testified that defendant
pressed the accelerator all the way down, and defendant turned the wheel of the car, driving at
him. Officer Dailey testified that, even after Officer Solomon let go of defendant and fell off the
car, defendant continued to drive the car at him. A rational trier of fact could conclude that
defendant intended to drive the car at Officer Dailey. Therefore, there was sufficient evidence
for the jury to convict defendant of the first count of felonious assault.
Defendant was convicted of a second count of felonious assault for pointing his gun at
Officer Solomon. Defendant argues that there was insufficient evidence to support a conviction
of this count because Officer Solomon’s testimony, that defendant pointed a gun at him, was
incredible. Again, we disagree. Officer Solomon testified that he saw defendant attempting to
climb through the side window of the house to get out. He testified that defendant had a gun and
was pointing it at him. Defendant argues that this testimony was incredible because defendant
would have been looking at the ground if he was climbing out a window, and there was no
showing of the required intent. We disagree. On these facts, whether defendant pointed a gun at
Officer Soloman was a matter for the jury. This Court should not interfere with the jury’s role of
determining the weight of the evidence or deciding the credibility of the witnesses. Wolf, supra
at 514-515. The evidence was sufficient for the jury to convict defendant of the second count of
felonious assault.
Next, defendant argues that the trial court erred by failing to instruct the jury that
felonious assault is a specific intent crime. We find no error.
Defendant stated that he had no objection to the jury instructions. After the trial court
gave a supplemental jury instruction on felonious assault, including further instruction on the
required intent, defendant again stated that he had no objection. A defense attorney’s express
approval of jury instructions, as opposed to his mere failure to object, constitutes a waiver that
extinguishes any error. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). When
the trial court asks a party if it has an objection for the record after it has read the jury
instructions and the party responds in the negative, that party has waived the jury instruction
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issue. People v Tate, 244 Mich App 553, 559; 624 NW2d 524 (2001).1 We find that defendant
waived this instructional issue for appeal.
Even were we to conclude that defendant did not waive this issue, we would find no
error. The trial court properly instructed the jury concerning the required intent. When giving
the supplemental instruction, the trial court stated that specific intent is required for a felonious
assault conviction.
Finally, defendant argues that the prosecutor made comments during her closing
argument that were unsupported by the evidence, and therefore, denied him a fair trial.
Defendant failed to object to the prosecutor’s comments. Appellate review of an unpreserved
claim of prosecutorial misconduct is reviewed for plain error affecting defendant’s substantial
rights. People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 162 (2001).
The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).
Prosecutorial misconduct issues are decided case by case and the
reviewing court must examine the pertinent portion of the record and evaluate a
prosecutor’s remarks in context. Prosecutors may not make a statement of fact to
the jury that is unsupported by the evidence, but they are free to argue the
evidence and all reasonable inferences arising from it as they relate to the theory
of the case. Prosecutorial comments must be read as a whole and evaluated in
light of defense arguments and the relationship they bear to the evidence admitted
at trial. [People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000)
(citations omitted).]
“No error requiring reversal will be found if the prejudicial effect of the prosecutor’s comments
could have been cured by a timely instruction.” Id. The trial court’s instruction to the jury that it
is to decide the case on the evidence alone and that the arguments of attorneys are not evidence
may dispel any prejudice from the mischaracterization of testimony by the prosecutor. People v
Green, 228 Mich App 684, 692-693; 580 NW2d 444 (1998).
The allegedly improper comments made by the prosecutor all concerned facts that were
not essential to the prosecution’s case against defendant or were reasonable inferences that arose
from the evidence submitted at trial. Defendant has failed to show that he was prejudiced by
these comments. Even if the prosecutor’s comments were improper, we find that any prejudice
that may have occurred was eliminated by the trial court’s instruction that the attorneys’ closing
arguments were not evidence. See id. Therefore, defendant has not established that the
prosecutor’s comments during closing argument were outcome-determinative plain error.
Watson, supra.
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In Tate, supra at 559, this Court stated: “Pursuant to Carter, supra, we conclude that any error
in [] the instruction … was extinguished by counsel’s repeated waiver, either in the form of
express approval or (which amounts to the same thing) by responding ‘No’ when specifically
queried by the court whether there was anything further for the record.”
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Affirmed.
/s/ Brian K. Zahra
/s/ Janet T. Neff
/s/ Henry William Saad
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