PEOPLE OF MI V TARALE SHANTE DUNCAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 13, 2004
Plaintiff-Appellee,
v
No. 247617
Ingham Circuit Court
LC No. 02-001190-FC
TARALE SHANTE DUNCAN,
Defendant-Appellant.
Before: Murray, P.J., and Neff and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right following his jury trial convictions of armed robbery, MCL
750.529, and felonious assault, MCL 750.82. Defendant was sentenced to concurrent sentences
of twelve to eighteen years’ imprisonment for the armed robbery conviction and two to four
years’ imprisonment for the felonious assault conviction. We affirm.
I
This case stems from an armed robbery in November 2002 in which defendant allegedly
approached a female as she left a Lansing Township convenience store and took her purse at
gunpoint. Another male customer heard the commotion and heard the victim scream that she had
been robbed. He chased after defendant, who turned around, made a threatening remark, and
pointed a pistol at the pursuer. A female who was in the store parking lot also witnessed the
robbery, saw the male customer pursue defendant, and then return to the parking lot. She drove
on the nearby streets in her car, encountered defendant, who ran in front of her car, and then
asked her whether she had reported him to the police. The female witness also saw a gun in
defendant’s hand. Defendant was later tracked to a vacant house where he was hiding in the attic
and was apprehended.
Police officers recovered the robbery victim’s social security card and a telephone calling
card from her purse in the attic where they found defendant. Articles of clothing found in the
house included a hat identified by witnesses as matching the hat defendant wore the day of the
robbery. After defendant was apprehended, the police found a car loaned to defendant by his
girlfriend, parked in the convenience store lot.
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II
Defendant argues that the trial court committed error requiring reversal when, during jury
deliberations, the court responded to a jury question by rereading the instruction for felonious
assault rather than answering the jury’s question.1 Defendant affirmatively agreed to a rereading
of the jury instruction in response to the jury’s question and therefore waived any claim of error
on this issue. People v Carter, 462 Mich 206, 215-216, 219; 612 NW2d 144 (2000); People v
Hall (On Remand), 256 Mich App 674, 679; 671 NW2d 545 (2003). Because defendant waived
this issue, there is no error to review. Id.
Defendant is incorrect that the plain error standard of review, generally applied to
forfeited issues, applies in this circumstance. Defendant did not merely fail to object to the
instruction. Defendant initially requested that the instruction be reread in response to the jury’s
question. The trial court considered whether the question should be answered directly, but
subsequently decided merely to reread the instruction. Defendant agreed with the court’s
decision. The issue is therefore one of waiver, rather than forfeiture. Carter, supra at 215-216;
Hall, supra at 678 n 1.
III
Defendant argues that he is entitled to resentencing because the court improperly factored
the use of a gun into the scoring, contrary to the jury’s determination that defendant did not have
a gun, in that the jury acquitted defendant of the felony-firearm2 charge. Specifically, defendant
argues that the court improperly scored OV 1, “aggravated use of a weapon,” and OV 2, “lethal
potential of weapon possessed,” which resulted in a substantial increase in the sentencing
guidelines range and likely increased defendant’s sentence.
The sentencing court has discretion in determining the number of points to be scored
under the guidelines provided that there is evidence on the record that adequately supports a
particular score. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). This Court
reviews the scoring to determine whether the sentencing court properly exercised its discretion
and whether the evidence adequately supported a particular score. People v McLaughlin, 258
Mich App 635, 671; 672 NW2d 860 (2003). A scoring decision will be upheld if there is any
evidence to support it. Hornsby, supra at 468.
We find no error to warrant resentencing. The record supports the court’s consideration
of the use of a gun. The armed robbery victim testified that she was familiar with guns, that
defendant had a black handgun, that she saw only approximately two inches of the barrel because
the gun was covered with a white cloth, and that the inside of the barrel appeared to be round.
An eyewitness testified that she saw the robbery, that defendant ran in front of her car and talked
with her, and that he had a gun covered with a white cloth, which exposed three to four inches of
1
The jury asked whether an item resembling a gun meets the definition of handgun under the
felonious assault instruction, if perceived as real by the victim.
2
Possession of a firearm during commission of a felony, MCL 750.227b.
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a black barrel. The felonious assault victim testified that defendant pointed a pistol at his chest
and that he saw only the black barrel because the pistol was covered with a white cloth.
The evidence supported the court’s scoring decision. Contrary to defendant’s argument,
the court did not make an independent finding of guilt on the felony-firearm charge and sentence
defendant on the basis of that finding. People v Shavers, 448 Mich 389, 393; 531 NW2d 165
(1995); People v Dixon, 217 Mich App 400, 410; 552 NW2d 663 (1996). The scoring of the
guidelines need not be consistent with the jury verdict. People v Perez, 255 Mich App 703, 712;
662 NW2d 446 (2003), vacated in part on other grds 469 Mich 415; 670 NW2d 655 (2003). The
court properly considered evidence of the gun presented at trial. Shavers, supra at 393-394;
Perez, supra at 712.
Affirmed.
/s/ Christopher M. Murray
/s/ Janet T. Neff
/s/ Pat M. Donofrio
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