PEOPLE OF MI V BRIAN KEITH WHITE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 18, 2005
Plaintiff-Appellee,
v
No. 253607
Midland Circuit Court
LC No. 01-009859-FH
BRIAN KEITH WHITE,
Defendant-Appellant.
Before: Cooper, P.J., and Bandstra and Kelly, JJ.
PER CURIAM.
This case is before this Court following an order of remand from our Supreme Court to
the trial court. See People v White, 469 Mich 944; 670 NW2d 672 (2003). On remand, a
judgment of conviction for malicious destruction of property greater than $200 but less than
$1,000 (“misdemeanor-MDOP”) was entered against defendant, MCL 750.377a(1)(c)(i).
Defendant was sentenced to one year in jail for his conviction, to be served concurrently with a
two-year prison term for possession of a firearm during the commission of a felony, MCL
750.227b. Defendant asserts that the trial court misinterpreted our Supreme Court’s order of
reversal and remand. We agree and reverse the trial court’s entry of judgment of conviction and
remand for further proceedings.
This case is before us a second time. Defendant was originally charged with two counts
of assault with a dangerous weapon, MCL 750.82; malicious destruction of property over $1,000
but less than $20,000 (“felony-MDOP”), MCL 750.377a(1)(b)(i); and felony-firearm, MCL
750.227b. Defendant was convicted of the felony-MDOP and felony-firearm charges, but was
acquitted of the assault charges. Defendant appealed his convictions to this Court, asserting that
the trial court improperly denied his request for a jury instruction on misdemeanor-MDOP.
People v White, unpublished opinion per curiam of the Court of Appeals, issued February 28,
2003 (Docket No. 238735), slip op p 1. Defendant asserted that because the remedy for the
instructional error was vacating his felony-MDOP conviction, his felony-firearm conviction also
had to be vacated. Id. In a divided opinion, this Court affirmed defendant’s convictions. Id.
Thereafter, defendant sought leave to appeal to our Supreme Court. In lieu of granting
leave to appeal, our Supreme Court reversed the judgments of this Court and the trial court and
remanded this case “for entry of a judgment of conviction of malicious destruction of property
over $200, but less than $1,000, and for resentencing.” White, supra at 944. The Court further
stated:
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If, however, the prosecuting attorney is persuaded that the ends of justice would
be better served, on notification to the Midland Circuit Court before resentencing,
the Midland Circuit Court must vacate the judgment of conviction and grant a
new trial on the charge that the defendant committed the crime of malicious
destruction of property over $1,000, but less than $20,000, and felony-firearm.
[Id.]
On remand, the prosecution elected to allow entry of the judgment of conviction of
misdemeanor-MDOP. The trial court proceeded to sentence defendant to one year in jail for the
misdemeanor-MDOP conviction and ordered that that sentence be served concurrent to the
felony-firearm conviction, which the trial court failed to vacate despite defendant’s personal
inquiry and request to do so. The trial court explained that this was in keeping with its reading of
our Supreme Court’s directive. Defense counsel concurred. The trial court granted defendant
credit for time served.
On appeal, defendant asserts that the trial court was required to vacate his felony-firearm
conviction under the Supreme Court’s order. We agree. Although defense counsel agreed with
the trial court’s interpretation of the Supreme Court’s order, we conclude that defendant’s
contrary protestations sufficiently preserved this issue for review in light of the manifest injustice
that would result were we to fail to review this issue. See Steward v Panek, 251 Mich App 546,
554; 652 NW2d 232 (2002). The proper interpretation of a court order is a question of law that
we review de novo. See Cardinal Mooney High School v Michigan High School Athletic Ass’n,
437 Mich 75, 80; 467 NW2d 21 (1991).
The Supreme Court’s order of remand specifically states that “the judgments of the Court
of Appeals and of the Midland Circuit Court are reversed.” White, supra at 944. The order does
not indicate that any portion of the trial court judgment was exempt from the order of reversal.
Accordingly, we conclude that the language of the Supreme Court’s order indicates that it
intended to reverse defendant’s convictions for both felony-MDOP and felony-firearm. This
conclusion is supported by People v Burgess, 419 Mich 305, 311-312; 353 NW2d 444 (1984), in
which our Supreme Court held that appellate courts may not reach inconsistent results by
reversing a judgment of conviction for a felony supporting a felony-firearm conviction while
affirming the felony-firearm conviction, because the reversal of the underlying felony conviction
undermines the jury’s factual finding that the underlying felony was committed. “Absent such a
finding, the felony-firearm conviction must also be reversed.” Id. at 312. In this case, the jury’s
factual finding that defendant committed a felony may not be relied on because of the trial
court’s instructional error.
Plaintiff attempts to differentiate this case from Burgess by noting that in Burgess it was
the identified predicate felony for the felony-firearm conviction that had been reversed on
appeal, Burgess, supra at 308, while in this case the jury was presented alternative theories
supporting the felony-firearm conviction, i.e., felonious assault and felony-MDOP. Plaintiff
asserts that in this case the jury might have found that defendant committed the felonious assault
crimes with which he was also charged, and, as such, the inconsistent verdict would have been
permissibly rendered by the jury rather than the appellate courts.
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Plaintiff’s reasoning is flawed, however, in that it discounts this Court’s responsibility to
find a logical interpretation for the verdicts rendered where possible. On this point, People v
Tombs, 472 Mich 446, 462-463; 697 NW2d 494 (2005), is instructive:
[A]lthough inconsistent jury verdicts may be legally permissible, it does not
follow that [appellate courts] should find verdicts inconsistent when it is possible
to find them consistent. See Lagalo v Allied Corp, 457 Mich 278, 282; 577
NW2d 462 (1998) (“‘[i]f there is an interpretation of the evidence that provides a
logical explanation for the findings of the jury, the verdict is not inconsistent.’”)
(Citation omitted.)
There is no disagreement that, here, the jury specifically acquitted defendant of
using a computer to distribute child sexually abusive material, and it convicted
him of distributing such material. It could have found him guilty of distributing
the material in one of two ways: (a) finding that he shared the material with
others on the Internet, or (b) finding that he distributed it by returning the
computer to Comcast. The former would be inconsistent with the jury’s verdict
concerning the “use of a computer to distribute child sexually abusive material”
charge; the latter would not be. Because we presume that the verdicts are
consistent, we conclude that the jury convicted defendant of distributing the
material by returning the computer to Comcast.
Here, the jury could have found defendant guilty of felony-firearm in one of two ways:
(1) finding that he committed assault even though it did not convict him of the crime, and tying
the felony-firearm conviction to this crime; or (2) finding that he had committed and should be
convicted of felony-MDOP, and tying the felony-firearm conviction to that crime. Because this
Court must presume consistent verdicts, this Court must presume the jury followed the latter
reasoning. This interpretation of the jury verdict is the most logical explanation and avoids
finding that the jury acted inconsistently. Thus, with the factual finding supporting the
commission of the underlying felony gone, defendant’s felony-firearm conviction must be
reversed.
Defendant asserts in the alternative that he was denied effective assistance of counsel.
Having found defendant’s primary assertion of error was sufficiently preserved for review, we
decline to address this issue.
We reverse and remand for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Jessica R. Cooper
/s/ Richard A. Bandstra
/s/ Kirsten Frank Kelly
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