PEOPLE OF MI V MICHAEL BLANCH JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 2008
Plaintiff-Appellant,
v
No. 277356
Wayne Circuit Court
LC No. 06-013795-01
MICHAEL BLANCH, JR.,
Defendant-Appellee.
Before: Zahra, P.J., and Cavanagh and Jansen, JJ.
PER CURIAM.
The prosecution appeals as of right the trial court’s order of acquittal, entered following
the trial court’s grant of defendant’s motion for directed verdict. Defendant was charged with
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and
two counts of felonious assault, MCL 750.82. We reverse and remand for retrial.
The prosecution contends that retrial is not barred by the prohibition against double
jeopardy as no judicial acquittal has been entered. We agree. This court reviews a trial court’s
grant of a motion for directed verdict de novo, asking whether the evidence that has been
presented prior to the motion, when viewed in the light most favorable to the prosecution, could
persuade a rational trier of fact that the elements of the charged offense were proven beyond a
reasonable doubt. People v Mayhew, 236 Mich App 112, 124-125; 600 NW2d 370 (1999).
Defendant was charged with two counts of felonious assault and one count of felonyfirearm after an altercation with Chet Pitts. At trial, Pitts testified that he was arguing with
defendant about money when defendant punched him in the face, produced a firearm and
proceeded to hit him with the weapon. Defendant and his brother, Mariano Blanch, each
testified that while a physical confrontation did occur, no weapon was ever used.
After the defense rested it moved for a directed verdict. The trial court recited the proper
standard to be applied to a directed verdict motion. The trial court then began to recite the
various pieces of testimony from the course of the three-day trial. The court emphasized that the
only evidence of a firearm was from Pitts, defendant and Mariano each denied a gun was used
and the police failed to recover a gun. The court stated that it had to look at the sufficiency of
the evidence and the “credibility of the evidence as it relates to that weapon.” The court then
appeared to engage in an analysis of Pitts’s credibility, particularly stressing Pitts’ testimony that
he was not Geneva Blanch’s boyfriend while acknowledging that the two were sexually intimate.
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The court stated that his testimony about his relationship was “very muddy.” Next, the court
began to analyze Pitts’ testimony regarding the contested $7,000. The court concluded that,
based on the testimony, defendant could not have owed Pitts any money. According to the court,
defendant used the funds to purchase supplies for a house that he agreed to improve for Pitts.
The court then stated, “I think even in the light most favorable to the People, a rational trier of
fact could not be persuaded beyond a reasonable doubt that there was a weapon used here. And
therefore, the Court directs a verdict of acquittal on all counts.”
In People v Mehall, 454 Mich 1; 557 NW2d 110 (1997), the Michigan Supreme Court
iterated that while a directed verdict of acquittal cannot be appealed, a trial court’s
characterization of its order as an acquittal is not dispositive. Mehall, supra at 5. Rather, the
proper inquiry is whether the trial court determined that the evidence was “legally insufficient to
sustain a conviction.” Id. at 6. The Court stated, “it is not permissible for a trial court to
determine the credibility of witnesses in deciding a motion for a directed verdict of acquittal, no
matter how inconsistent or vague that testimony might be.” Id. The Court concluded, “by
concentrating on the complainant, and disregarding her testimony as unbelievable, the visiting
judge failed altogether to rule on the sufficiency of the prosecution’s proofs. Thus, there was no
acquittal, regardless of how the trial court characterized its decision, and a retrial is not precluded
under the Double Jeopardy Clauses of the federal and state constitutions.” Id. at 6-7.
In order to maintain a conviction for felonious assault, the prosecution must establish that
the accused committed an assault with a dangerous weapon. People v Walls, 265 Mich App 642,
645-646; 697 NW2d 535 (2005). To secure a conviction for felony-firearm, the prosecution
must prove that the defendant possessed a firearm during the commission, or attempted
commission, of a felony. People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). The
trial court, after both sides presented evidence, determined that a rational trier of fact could not
conclude that a weapon was used during the alleged assault and subsequently granted
defendant’s motion. However, to reach this conclusion the trial court discounted Pitts’
testimony. While Pitts’s testimony was somewhat incredible, particularly when he testified that
he was able to leap a six-foot tall picket fence moments after a severe beating, he did testify that
defendant assaulted him while brandishing a handgun. Viewed in the light most favorable to the
prosecution, sufficient evidence was presented to support convictions of felonious assault and
felony-firearm. Here, the trial court, perceiving inconsistencies in Pitts’ testimony regarding his
relationship with Geneva and the money defendant allegedly owed him, determined Pitts was not
credible. In making such a determination, the trial court departed from its role. If the jury
concluded that Pitts was not credible, it had the option of entering a verdict in favor of defendant.
The trial court, however, did not have a similar option. Defendant was not judicially acquitted
and can, as a result, be retried.
Reversed and remanded for retrial. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
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