PEOPLE OF MI V JOSHUA LEWIS FORD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 20, 2007
Plaintiff-Appellee,
v
No. 270542
Kalamazoo Circuit Court
LC No. 05-001955-FC
JOSHUA LEWIS FORD,
Defendant-Appellant.
Before: Murphy, P.J., and Smolenski and Meter, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529,
first-degree home invasion, MCL 750.110a(2), and possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced defendant as an habitual
offender, third offense, MCL 769.11, to 25 to 40 years’ imprisonment for the armed robbery
conviction, 15 to 40 years’ imprisonment for the first-degree home invasion conviction, and two
years’ imprisonment for the felony-firearm conviction. We affirm.
Testimony established that defendant, who wore a red “hoodie” sweatshirt, walked with
Tyocal Webster and one other person to an apartment occupied by Andrea Rogers and
Christopher Pollington. Defendant and Tyocal knocked on the door and defendant then forced
his way in. Defendant brandished a gun and demanded money. Defendant saw some cash in a
small box on top of a table. When defendant went for the cash, Pollington hit defendant on the
back of the head. Defendant and Pollington struggled briefly before defendant fled with the
money. Pollington stated that he saw defendant go to another apartment that was located across
the parking lot. One of the occupants of the apartment testified that defendant, who was wearing
a red “hoodie” and had some cash, stopped by the apartment and asked to borrow a jacket. After
some discussion, defendant borrowed a jacket and wore it when he left. The police apprehended
defendant the following day.
On appeal, defendant first argues that there was insufficient evidence to support his
felony-firearm conviction. We disagree. This Court reviews sufficiency of the evidence claims
de novo, viewing the evidence in the light most favorable to the prosecution to determine if the
evidence was sufficient for a rational jury to find the defendant guilty beyond a reasonable doubt.
People v McGhee, 268 Mich App 600, 622; 709 NW2d 595 (2005).
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MCL 750.227b(1) provides in pertinent part that “[a] person who carries or has in his or
her possession a firearm when he or she commits or attempts to commit a felony . . . is guilty of a
felony, and shall be imprisoned for 2 years.” This Court has ruled that “[t]he elements of felonyfirearm are that the defendant possessed a firearm during the commission of, or the attempt to
commit, a felony.” People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). MCL
750.222(d) defines “firearm” as “a weapon from which a dangerous projectile may be propelled
by an explosive, or by gas or air.”
On appeal, defendant focuses on the fact that the police never located the gun used in the
crime. Defendant reasons, therefore, that “[t]he evidence is not sufficient for guilt as a matter of
law because the record does not support a finding that the defendant at any time possessed a
firearm.” However, both Rogers and Pollington testified that defendant forced his way into their
apartment, pointed a gun at them and demanded money. Pollington did testify that he assumed
that the gun was not loaded because, even after Pollington hit defendant, defendant never fired
the gun. But Pollington also testified that it was a “real gun.” Defendant’s gun did not have to
be loaded or even operable to support a conviction of felony-firearm. See People v Peals, 476
Mich 636, 656; 720 NW2d 196 (2006). Further, although Tyocal claimed that she did not see
defendant with a gun, two police witnesses testified that she told them that defendant had a gun
and that he threatened to shoot Pollington and Rogers. Viewing this evidence in a light most
favorable to the prosecution, we conclude that a rational trier of fact could find that defendant
possessed a firearm during the commission of a felony. Avant, supra at 505.
Next, defendant asserts that the trial court erred in excluding defendant’s alibi defense.
This Court reviews a trial court’s decision to exclude a defendant’s alibi evidence on the grounds
that the defendant failed to give notice of alibi for an abuse of discretion. People v Travis, 443
Mich 668, 679-680; 505 NW2d 563 (1993).
This Court has previously explained that “alibi testimony” is “testimony offered for the
sole purpose of placing the defendant elsewhere than at the scene of the crime.” People v
Watkins, 54 Mich App 576, 580; 221 NW2d 437 (1974). In order to prevent the surprise
introduction of an alibi defense, a defendant wishing to present an alibi defense must provide
notice of the defense. Travis, supra at 675-676. The purpose of the notice is to safeguard
against the wrongful use of an alibi defense and to give the prosecution time and information to
investigate the merits of the defense. People v Merritt, 396 Mich 67, 77; 238 NW2d 31 (1976).
The notice must be given at least 10 days before trial and must include “as particularly as is
known to the defendant or the defendant’s attorney, the names of witnesses to be called in behalf
of the defendant” and “specific information as to the place at which the accused claims to have
been at the time of the alleged offense.” MCL 768.20(1).
A trial court should consider the following factors in exercising its discretion to exclude
an alibi witness:
“(1) the amount of prejudice that resulted from the failure to disclose, (2) the
reason for nondisclosure, (3) the extent to which the harm caused by
nondisclosure was mitigated by subsequent events, (4) the weight of the properly
admitted evidence supporting the defendant’s guilt, and (5) other relevant factors
arising out of the circumstances of the case.” [Travis, supra at 682, quoting
United States v Myers, 550 F2d 1036, 1043 (CA 5, 1977).]
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Defendant sought to introduce Edwards and Coates as alibi witnesses at trial. Their
testimony would be offered “for the sole purpose of placing the defendant elsewhere than at the
scene of the crime.” Watkins, supra at 580. As such, defendant had to satisfy the requirements
of MCL 768.20(1). Defendant’s alibi notice was timely and contained the names of witnesses to
be called. However, the notice did not provide “specific information as to the place at which the
accused claims to have been at the time of the alleged offense.” MCL 768.20(1).
The trial court excluded the alibi witnesses, apparently basing its decision on the fact that
defendant failed to provide the required specificity, as well as defendant’s lack of cooperation in
locating the alibi witnesses. In this case, the alibi witnesses were not automatically excluded by
operation of MCL 768.21, which provides that the court shall exclude alibi evidence if the
written notice is not filed and served as required or does not name the witnesses to be called to
establish the defense. Nevertheless, the trial court still had discretion to exclude the alibi
witnesses. See Travis, supra at 679-680.
After reviewing the Travis factors, we conclude that the trial court did not abuse its
discretion in excluding the alibi witnesses. Id. at 682. First, there is no prejudice resulting to
either side by excluding the alibi witnesses’ testimony. A review of the offer of proof testimony
demonstrates that the testimony of Edwards and Coates was, at best, dubious.1 Second, there
was no apparent reason for the failure to disclose the alibi witnesses earlier or the failure to
disclose the substance of their testimony. Defendant filed his alibi notice more than four months
after his arrest. There was no explanation as to why Edwards or Coates could not be located
sooner. Defense counsel indicated that “in 17 years [she has never] had such difficulty trying to
find people.” When defense counsel finally obtained Coates’ telephone number, she requested,
and received, an adjournment. Defense counsel learned of Edwards only after talking to Coates.
Third, there was overwhelming evidence that supported defendant’s guilt. Pollington and Rogers
positively identified defendant as the individual who forced his way into their apartment, pointed
a gun at them and demanded money. Further, Henry and Danntoinett Webster corroborated the
victims’ identification testimony.
Finally, another significant factor in this case is the lack of cooperation on the part of
defendant and his witnesses in providing the necessary information to defendant’s own trial
counsel. The trial court explained:
And it goes right to the heart of why an alibi notice is required. So that the truth
can be uncovered by . . . the prosecutor who has all of these resources to send
those resources out and to uncover what is going on. And this really under cuts
that, it is right at the heart of what alibi defenses are all about and the [truth]
1
Defendant’s alibi was that he was at Edwards’ residence when the offenses were committed.
At the offer of proof, Edwards testified that defendant and Coates spent approximately six hours
at her residence during the day in question. In contrast, Coates indicated that they spent 30 to 60
minutes at Edwards’ residence. Further, the prosecution impeached Coates with her statement to
the police on the day following the incident. She told the police that defendant dropped her off
for classes at 10:45 a.m. on the day in question, and she attended classes from 11:00 a.m. until
7:00 p.m. She did not know defendant’s whereabouts during those times.
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seeking process. It would be grossly unfair and contrary to the purpose of the
statute to allow—to allow it to go forward.
Based on consideration of these factors, we conclude that the trial court’s decision to
exclude the alibi witnesses fell within the range of reasonable and principled outcomes. See
Travis, supra at 678-680, 682. Therefore, there was no error warranting relief.
Defendant next contends that the trial court violated the United States and Michigan
constitutions by sentencing defendant to 25 to 40 years for his armed robbery conviction and to
15 to 40 years for his first-degree home invasion conviction. Specifically, defendant contends
that the trial court should have stated with specificity how the sentences were calculated and
proportionate to the offense and offender, should have considered defendant’s strong family
support, should have departed downward based on defendant’s mental health and substance
abuse issues and should have conducted an assessment of defendant under MCR 6.425(A)(5).
Defendant also argues that the trial court relied on inaccurate and incomplete information when
sentencing him, that his sentences were not proportionate and amounted to cruel and unusual
punishment and that his sentences violate the rule stated in Blakely v Washington, 542 US 296;
124 S Ct 2531; 159 L Ed 2d 403 (2004). We find these claims to be without merit.
This Court reviews unpreserved allegations of sentencing errors for plain error affecting
defendant’s substantial rights. People v Sexton, 250 Mich App 211, 227-228; 646 NW2d 875
(2002).
At sentencing, the trial court clearly relied on the sentencing guidelines and the
sentencing recommendation of the department of corrections. This reliance satisfied the trial
court’s articulation requirement. People v Conley, 270 Mich App 301, 313; 715 NW2d 377
(2006).
Defendant also specifically mentioned his seizure problem and his strong family support.
Nevertheless, the trial court stated that it was particularly concerned with defendant’s criminal
history and his inability to benefit from community supervision in the past. For that reason it
determined that it would sentence defendant within the sentencing guidelines. Hence,
notwithstanding defendant’s family and health history, the trial court clearly determined that the
offense and offender warranted a sentence within the recommended range. This Court must
affirm a sentence within the recommended minimum sentence range unless the trial court erred
in scoring the guidelines or relied on inaccurate information. People v Kimble, 470 Mich 305,
310-311; 684 NW2d 669 (2004). Further, although defendant alleges that the trial court relied
on inaccurate information in deriving his sentence, defendant failed to identify any inaccuracy
except to note that the presentence investigation report might more accurately reflect defendant’s
rehabilitative potential if it included an assessment under MCR 6.425(A)(5). Therefore, we
conclude that defendant abandoned any claim that the trial court relied on inaccurate or
incomplete information. People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).
Further, because defendant’s sentences are within the applicable guidelines range, they are
presumed proportionate. People v Bennett, 241 Mich App 511, 515-516; 616 NW2d 703 (2000).
Finally, because Michigan’s sentencing scheme does not increase the applicable statutory
maximum sentence, it does not violate the rule stated in Blakely. See People v McCuller, 479
Mich 672, 689-690; ___ NW2d ___ (2007).
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There were no plain sentencing errors warranting relief.
On appeal, defendant also submitted what appears to be a standard 4 brief. However, the
brief was entirely deficient. Significantly, defendant failed to include a statement of the
questions involved. See MCR 7.212(C)(5). The standard 4 brief also does not include (1) a table
of contents, MCR 7.212(C)(2), (2) an index of authorities, MCR 7.212(C)(3), (3) a jurisdictional
statement, MCR 7.212(C)(4), (4) “a clear concise, and chronological narrative,” MCR
7.212(C)(6), (5) “arguments . . . prefaced by the principal point[s] stated in capital letters or
boldface type,” MCR 7.212(C)(7), (6) the applicable standard of review, Id., (7) and a request for
relief “in a distinct concluding section,” MCR 7.212(C)(8). Because of these deficiencies, this
Court is not obligated to review the additional claims. See People v Miller, 238 Mich App 168,
172; 604 NW2d 781 (1999). Nevertheless, we have reviewed the content of defendant’s brief
and find the claims of error to be without merit.
Affirmed.
/s/ William B. Murphy
/s/ Michael R. Smolenski
/s/ Patrick M. Meter
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