PEOPLE OF MI V DAVID RALPH BUCKINGHAM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 23, 2004
Plaintiff-Appellee,
v
No. 247430
Oakland Circuit Court
LC No. 2002-186450-FH
DAVID RALPH BUCKINGHAM,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Neff and Markey, JJ.
PER CURIAM.
Defendant appeals by right from his bench trial conviction of assault with a dangerous
weapon (felonious assault), MCL 750.82. The trial court sentenced defendant to probation. This
case stems from an incident where defendant was accused of threatening his mother’s neighbor
with an ax. We affirm.
Defendant first argues that the trial court misapprehended the elements of the crime
charged. We disagree. “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).
Defendant argues that the trial court incorrectly focused on how the victim felt during the
incident in determining whether defendant had the specific intent necessary for felonious assault.
Having reviewed the record, we conclude that the court did not error with respect to the intent
element of the crime. While the court did inquire and comment on how the victim felt when he
was approached by defendant carrying an ax, it did so because it was necessary not to the intent
element, but to the assault element of the crime. An assault is “‘either an attempt to commit a
battery or an unlawful act that places another in reasonable apprehension of receiving an
immediate battery.’” People v Grant, 211 Mich App 200, 202; 535 NW2d 581 (1995), quoting
People v Johnson, 407 Mich 196; 210; 284 NW2d 718 (1979). It is this second form of assault
that was in issue at trial. In addition, although the trial court stated several times that a finding
on intent is not based on what was in the mind of defendant, the trial court was merely stating
that intent is not based only on what defendant claims his intent was. Convictions would be rare
if the criminal had to confess his intent. People v Lawton, 196 Mich App 341, 349-350; 492
NW2d 810 (1992), quoting People v Johnson, 54 Mich App 303, 304; 220 NW2d 705 (1974).
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Defendant’s credibility was for the trial court as trier of fact, and we will “not resolve it anew”
on appeal. People v Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988).
Defendant also argues that the trial court erred by determining that the ax was a
dangerous weapon. See People v Brown, 406 Mich 215, 222-223; 277 NW2d 155 (1979) (“The
fact that a pointed instrument, such as a machete, has great potential as a dangerous weapon does
not render it a dangerous weapon per se.”).1 Here, the ax was a dangerous weapon because the
evidence clearly establishes that it was adapted to accomplish “the assault and [is] capable of
inflicting serious injury.” People v Goolsby, 284 Mich 375, 378; 279 NW2d 867 (1938).
Defendant further argues that the trial court did not understand that it must find that
defendant committed an unlawful act that caused the victim to fear an immediate battery.
However, the trial court specifically acknowledged that it needed to find that defendant “either
attempted to commit a battery or did an illegal act that caused the complainant in this case to
reasonably fear an immediate battery.” Accordingly, we see no error on the part of the trial court
with respect to its understanding of the elements of felonious assault.
Next, defendant argues that the trial court improperly handled his motion to correct a
mistake brought under MCR 6.435(B).2 Defendant’s motion was based on the assertion that the
trial court had erred in its understanding of the testimony of defendant’s mother. Specifically,
defendant argues that he was denied due process when the trial court refused to delay sentencing
to review defendant’s motion. However, the trial court allowed defendant to present his motion
orally before the court during sentencing. The court then addressed each of the arguments,
denying them and giving its reasons for the denial. The court found it had not made a
substantive mistake regarding defendant’s mother’s testimony. Further, even if it misunderstood
defendant’s mother’s testimony, the trial court stated that it convicted defendant on the basis of
the victim’s testimony, not the testimony of defendant’s mother.
Next, defendant argues that the trial court improperly questioned the witnesses, thereby
depriving defendant of his right to a fair trial. We disagree. This Court reviews unpreserved
claims for plain error affecting a defendant’s substantial rights. People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999). “The court may interrogate witnesses, whether called by itself
or by a party.” MRE 614(b). “While a trial court may question witnesses to clarify testimony or
elicit additional relevant information, the trial court must exercise caution and restraint to ensure
that it’s questions are not intimidating, argumentative, prejudicial, unfair, or partial.” People v
Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996). A judge has more discretion to
question witnesses in a bench trial than during a jury trial. People v Meatte, 98 Mich App 74,
78; 296 NW2d 190 (1980).
1
Brown involved a conviction of carrying a dangerous weapon in a motor vehicle, MCL
750.227. Brown, supra at 217.
2
MCR 6.435(B) provides: “After giving the parties an opportunity to be heard, and provided it
has not yet entered judgment in the case, the court may reconsider and modify, correct, or
rescind any order it concludes was erroneous.”
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Defendant notes that the judge asked leading questions and elicited testimony from
several witnesses. But this questioning does not demonstrate bias because it was not
intimidating, argumentative, prejudicial, unfair or partial. Cheeks, supra at 480. Therefore,
defendant has failed to show plain error affecting his substantial rights. Carines, supra at 763.
Finally, defendant argues that there was insufficient evidence adduced to convict him of
felonious assault. We disagree. This Court reviews claims of insufficient evidence de novo.
People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of
the evidence, this Court must view the evidence in the light most favorable to the prosecutor and
determine whether a rational trier of fact could 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). Eyewitness testimony is sufficient to prove the commission of a crime beyond a
reasonable doubt. Daniels, supra at 378.
Preliminarily, defendant claims that witnesses' use of non-verbal gestures and responses
makes it is impossible to determine how defendant held the ax. We find the record sufficiently
recounts how each witness described the positioning of the ax.
As for the strength of the testimonial evidence, the victim testified that defendant
approached him swearing, with an ax pointed toward him, saying that he, defendant, wanted to
split the victim down the middle. The victim also testified that he was scared because of
defendant’s conduct. Additionally, the victim’s wife and son testified that they saw defendant
raise the ax and threaten to strike the victim. While defendant stated that he did not raise the ax
or threaten to strike the victim, this Court defers to the trial court on questions of credibility.
Daniels, supra at 378. Viewed in a light most favorable to the prosecution, we conclude there
was sufficient evidence to convict defendant of felonious assault beyond a reasonable doubt.
We affirm.
/s/ E. Thomas Fitzgerald
/s/ Janet T. Neff
/s/ Jane E. Markey
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