PEOPLE OF MI V DEANGELO GREEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 28, 2002
Plaintiff-Appellee,
v
No. 230902
Wayne Circuit Court
LC No. 00-003008
DEANGELO GREEN,
Defendant-Appellant.
Before: Zahra, P.J., and Cavanagh and White, JJ.
PER CURIAM.
Defendant was charged with armed robbery, MCL 750.529, carjacking, MCL 750.529a,
extortion, MCL 750.213, and possession of a firearm during the commission of a felony, MCL
750.227b. After a bench trial, defendant was convicted only of armed robbery. Defendant was
sentenced to a prison term of six to twenty years. Defendant appeals as of right. We affirm
defendant’s conviction, but remand for resentencing.
This case originates from allegations by Russell Bondon that he was robbed at gunpoint
of his wallet, which contained credit cards, cash and an ATM card. Bondon also claimed that the
robbers took a 1994 Cadillac from his possession and that they later attempted to extort money
from him in exchange for the car.
I
On appeal, defendant first argues that the prosecution failed to present sufficient evidence
to support his conviction. When reviewing a sufficiency of the evidence challenge, this Court
reviews the evidence in the light most favorable to the prosecution to determine whether a
rational trier of fact could have found that the elements of the crime were proven beyond a
reasonable doubt. People v Harmon 248 Mich App 522, 524; 640 NW2d 314 (2001); People v
Legg, 197 Mich App 131, 132; 494 NW2d 797 (1992).
The elements of armed robbery are: (1) an assault, and (2) a felonious taking of property
from the victim's presence or person, while (3) the defendant is armed with a weapon described
in the statute. People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). Giving the
required deference to the trial court’s determinations of credibility, People v Cress, __ Mich App
__; __ NW2d __ (Docket no. 225855, issued 2/26/02) slip op p 21; see MCR 2.613(C)(3), the
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evidence in this case was sufficient to allow the judge to conclude beyond a reasonable doubt
that defendant committed the charged crime. Bondon testified at trial that defendant robbed him
of his wallet, cash, ATM card, credit cards and keys, and that defendant left the scene in the
Cadillac Bondon possessed. Bondon testified that someone held a metal object to his head,
which he believed was a gun, and that he determined defendant possessed a revolver. Based on
this evidence, a rational trier of fact could find, beyond a reasonable doubt, that while in the
victim’s presence and armed with a gun, or with an article used or fashioned in such a way as to
lead a reasonable person to believe that it was a dangerous weapon, defendant assaulted Bondon
and took his property. MCL 750.529; Allen, supra.
II
Defendant also argues that the trial court abused its discretion by denying his motion for
a new trial or judgment of acquittal because the verdict was against the great weight of the
evidence. Such motions are not favored and should be granted only when the evidence
preponderates heavily against the verdict and a serious miscarriage of justice would otherwise
result. People v Lemmon, 456 Mich 625, 639-642; 576 NW2d 129 (1998). A trial court’s
decision on a motion for new trial will not be reversed absent an abuse of discretion. People v
Jones, 236 Mich App 396, 404; 600 NW2d 652 (1999).
Defendant asserts that his conviction was based entirely on Bondon’s uncorroborated
testimony, which was inherently unreliable because Bondon had suffered a closed head injury
that affected his memory, and because his version of the events was inconsistent. “[W]hen
reviewing a trial court's decision regarding a motion for a new trial based on the great weight of
the evidence, this Court will not attempt to resolve credibility issues anew.” People v Daoust,
228 Mich App 1, 17; 577 NW2d 179 (1998).
Significantly, many of the inconsistencies focused on by defendant relate to the
circumstances surrounding the alleged taking of the Cadillac.1 Given Bondon’s unequivocal
testimony that defendant assaulted him with a handgun and took his wallet and its contents,
defendant’s conviction for armed robbery based on that taking was not against the great of the
evidence.2 Therefore, the trial court acted within its discretion in determining that a new trial
was not warranted on this basis.
III
1
Some evidence introduced at trial supported the finding that the car was not actually taken with
force, but instead was merely used as collateral for a loan given to Bondon by defendant.
2
Insofar as discrepancies related to the taking of the Cadillac and the number of perpetrators
Bondon told police were involved in the robbery call into question Bondon’s trial testimony
regarding the events, such discrepancies do not result in the evidence preponderating heavily
against the verdict. Lemmon, supra. As noted, the trial court is granted significant deference
with respect to credibility determinations. Daoust, supra; see MCR 2.613(C). Moreover, several
aspects of Bondon’s trial testimony were corroborated by the police reports and the testimony of
Lori Dodsworth.
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Defendant next argues that the trial court made insufficient findings of fact to support his
convictions. Factual findings in a bench trial are sufficient “so long as it appears that the trial
court was aware of the issues in the case and correctly applied the law.” People v Armstrong,
175 Mich App 181, 185, 437 NW2d 343 (1989).
Defendant contends that the trial court’s findings indicate a failure by the court to
recognize inconsistencies in Bondon’s testimony. As discussed, much of the inconsistencies
noted by defendant involved the circumstances surrounding the taking of the Cadillac. Bondon
clearly testified that defendant took his wallet while threatening him with a handgun. The trial
court resolved any discrepancies in Bondon’s testimony, determining that the testimony
supported a finding of armed robbery. Again, the trial court is vested with the duty to assess the
credibility of the witnesses. Cress, supra; see MCR 2.613(C)(3). Overall, the court’s findings
were supported by the evidence and it is apparent that the court correctly applied the law in its
resolution of the issues. Armstrong, supra.
IV
Defendant further argues that the trial court erred in denying his motion for a new trial
based on newly discovered evidence. To justify a new trial on the basis of newly discovered
evidence, the moving party must show that: (1) the evidence itself, and not merely its materiality,
is newly discovered; (2) the evidence is not cumulative; (3) including the new evidence on retrial
would probably cause a different result; and (4) the party could not with reasonable diligence
have discovered and produced the evidence at trial. Cress, supra, slip op at 10.
Defendant sought to admit the testimony of an alleged coconspirator, who had exercised
his right not to testify at trial. At the time of defendant’s motion for new trial, the witness had
recently been acquitted of all charges related to the incident. Defendant claimed the witness
could offer exculpatory evidence, in the form of corroborating testimony regarding the use of the
Cadillac as collateral for a loan defendant made to Bondon.
We conclude that the trial court properly denied defendant’s motion based on the alleged
newly discovered evidence. Defendant failed to offer any showing as to the actual existence of
new evidence. Specifically, defendant offered no proof that the proposed witness had, in fact,
agreed to testify or proof of the subject of the testimony. Defendant simply made vague
assertions in regard to the existence of new and exculpatory evidence without making any
showing in support by affidavit, testimony or otherwise. Moreover, defendant failed to show
that the proposed witness’ testimony would have probably rendered a different result if admitted
on retrial. Bondon clearly testified that defendant assaulted him with a gun and took his wallet.
Testimony surrounding the taking of the Cadillac would have no bearing on defendant’s taking
of the wallet. See Cress, supra.
V
Finally, defendant argues that the trial court erred in sentencing him based on improperly
scored sentencing guidelines.3 The statutory sentencing guidelines apply to this case because the
3
This issue was preserved below given that defendant objected at the sentencing hearing to the
(continued…)
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crime was committed after January 1, 1999. MCL 769.34(1) and (2). Under those guidelines,
we must affirm a sentence within the guidelines range absent an error in scoring the sentencing
guidelines or inaccurate information relied on in determining defendant’s sentence. MCL
769.34(10); see People v Thenghkam, 240 Mich App 29, 70; 610 NW2d 571 (2000).
Here, the trial court utilized a guidelines range of 81 to 135 months. At sentencing, the
court stated: “I’ve had an opportunity to take a look at least what was prepared for the court and
the rage [sic] is 81 to 135.” The court obtained that range from the probation agent’s
recommendation within the presentence investigation report. Significantly, our review of the
record establishes that the guidelines range suggested by the agent and used by the court was
based on inaccurate information.
The lower court file contains three different sentencing information reports. One report
bears defendant’s name and includes a guideline range of 51 to 85 months. That report is dated
March 24, 2000, but does not appear to have been signed by the trial judge. A second sentencing
information report contained in the lower court file is signed by the trial judge, but is otherwise
illegible. The third sentencing information report bears a different docket number and the name
of a different defendant. This report is dated March 24, 2000 and does not appear to have been
signed by the trial judge. This third report is the only report in defendant’s lower court file that
includes a guidelines range of 81 to 135 months, which, as noted, is the range ultimately used by
the trial court when sentencing defendant. The probation agent’s presentence investigation
report does not reference any other basis for its determination of the recommended 81-to 135month range. Under these circumstances, it is evident that defendant was sentenced based on a
guidelines range calculated in connection with a different defendant. Thus, the information on
which defendant was sentenced was inaccurate and defendant’s sentence must be vacated. MCL
769.34(10); see Thenghkam, supra.4 We remand this case for resentencing in accordance with a
properly scored guidelines range for this defendant.5
(…continued)
scoring of the offense variables, which produced the guidelines range used by the trial court.
MCR 6.429(C); see People v McGuffey, __ Mich App __; __ NW2d _ (Docket No. 227957,
issued 4/30/02), slip op p 5.
4
That conclusion is not altered by the fact that defendant was sentenced to a six-year minimum
sentence, which is below the 81-month minimum specified by the guidelines range used by the
trial court and within the 51-to 85-month range included on the report that actually bears
defendant’s name. By all indications, the court sentenced defendant while relying on a
guidelines range that was calculated for a different defendant, a result that we cannot let stand.
See Thenghkam, supra.
5
If the trial court finds substantial and compelling reasons for departing from the calculated
guidelines range, the court must express such reasons in accordance with MCL 769.34(3).
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We affirm defendant’s conviction, but remand for resentencing.
jurisdiction.
We do not retain
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Helene N. White
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