PEOPLE OF MI V DEANGELO WRIGHT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 16, 2008
Plaintiff-Appellee,
V
No. 279239
Wayne Circuit Court
LC No. 07-003342-01
DEANGELO WRIGHT,
Defendant-Appellant.
Before: Whitbeck, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of armed robbery, MCL 750.529, being
a felon in possession of a firearm, MCL 750.224f, receiving or concealing stolen property worth
$20,000 or more, MCL 750.535(2)(a), and possession of a firearm during the commission of a
felony, MCL 750.227b. The trial court sentenced defendant as a second habitual offender, MCL
769.10, to serve a term of imprisonment of two years for the felony-firearm conviction,
consecutive to and followed by concurrent terms of imprisonment of 107 months to 25 years for
armed robbery, one to five years for felon in possession, and one to ten years for receiving or
concealing stolen property. Defendant appeals as of right. We vacate defendant’s conviction of,
and sentence for, receiving or concealing, but affirm the remaining convictions and sentences.
I. Facts
The victim testified that at approximately 11:45 on the night of December 7, 2006, he and
a recent acquaintance were parked in his Corvette in front of the acquaintance’s home in Detroit,
when a man with a rifle and mask approached and demanded that he open the door and then lie
down outside the car. The victim complied, upon which the car began to roll away because the
victim had left it in drive. Another man, also masked and armed with a rifle, appeared and
chased after the car to stop it, then took the victim’s money, coat, and boots. The second,
“skinnier,” assailant then left the scene in the victim’s car, and the first one departed in a van
which the victim described as “probably an ‘88 Caravan.”
The victim additionally testified that he recognized the voice of the “skinnier guy” as that
of a person he had known for about three years “[f]rom a barber shop” as “Dre.” Defendant’s
girlfriend and mother of his child testified that defendant had a cousin named Dre, who had died
on December 17, 2006, and that the two had spent much time together and were very close.
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A Detroit Police officer testified that he was on duty, driving a police car, early in the
morning on the night in question when he noticed a Corvette proceeding slowly with its lights
out. The officer identified defendant as the driver, and noted that he had spoken with defendant
on a previous occasion. The officer continued that when he executed a U-turn to make a traffic
stop, defendant sped off. The officer pursued, and then found the Corvette in front of a church,
with its right front fender against the wall and the driver’s door open. A routine check of the
vehicle license plate turned up that the victim of the instant crime was the registered owner. The
officer continued that among the other vehicles parked nearby was an “early ‘90s model”
Caravan, which he investigated and left for the abandoned vehicle officer.
Defendant was charged with carjacking, MCL 750.529a, along with armed robbery, felon
in possession, and felony-firearm. In closing argument, the prosecuting attorney suggested that
the trial court, if it did not find defendant guilty of carjacking, find defendant guilty instead of
receiving or concealing stolen property. As noted above, the court did just that.
On appeal, defendant argues that the prosecution failed to present sufficient evidence to
support his convictions, and that the trial court erred in considering receiving or concealing
stolen property as an alternative to carjacking. We disagree with the former argument, but agree
with the latter.
II. Sufficiency of the Evidence
A valid criminal conviction requires proof beyond a reasonable doubt of the essential
elements of every crime. In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970);
People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). This Court reviews a challenge to
the sufficiency of the evidence de novo, to determine whether the evidence presented, considered
in the light most favorable to the prosecution, was sufficient to permit a reasonable trier of fact to
conclude that the essential elements of the crime were proved beyond a reasonable doubt.
People v Sherman-Huffman, 241 Mich App 264, 265; 615 NW2d 776 (2000), aff’d 466 Mich 39
(2002).
Defendant’s presence behind the wheel of the victim’s car shortly after it was stolen is
good circumstantial evidence that he was involved in its theft, as was the discovery of a van
fairly matching the description of the one driven by the other assailant near the location of the
stolen vehicle. “Circumstantial evidence and reasonable inferences drawn therefrom may be
sufficient to prove the elements of a crime.” People v Jolly, 442 Mich 458, 466; 502 NW2d 177
(1993). That defendant had been driving slowly and then sped off when the police showed an
intention to pursue him also constitutes circumstantial evidence that defendant was involved in
the theft. “It is well established that evidence of flight is admissible to show consciousness of
guilt. People v Compeau, 244 Mich App 595, 598; 625 NW2d 120 (2001).
Defendant asserts that the trial court concluded that the Dre of whom the victim spoke
was the robber who left in the victim’s car, and emphasizes that the evidence did not suggest that
Dre and defendant were one and the same. We disagree.
The trial court did not declare that defendant was Dre. Instead, it simply noted that
defendant had been close to a cousin with that name, and concluded that that relationship was
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“circumstantial evidence that sports [sic, supports] the People’s case in that regard.” Considered
in the light most favorable to the prosecution, as the test for sufficiency of the evidence requires,
the witness implicated defendant by associating his voice with that witness’s experiences with a
cousin to whom defendant was very close. The close familial and personal relationship between
defendant and Dre would make it unremarkable if the two had similar voices or speaking
patterns. Further, the victim could have simply confused those two close relatives and friends
when thinking he recognized the voice of one of them. The trial court thus did not err in
regarding the identification of defendant’s voice as that of Dre as further evidence linking
defendant to the crime. For these reasons, we conclude that the trial court had a sufficient
evidentiary basis for finding defendant guilty of the robbery and weapons offenses of which he
was convicted.
III. Receiving or Concealing
Defendant protests that the trial court erred in considering, and convicting him of,
receiving or concealing stolen goods as an alternative to carjacking. Plaintiff confesses error in
this regard, but argues that it was harmless in this instance.
There was no defense objection when the prosecuting attorney encouraged the trial court
to consider receiving or concealing as an alternative to carjacking, or when the court delivered its
verdict including that alternative conviction. This issue thus comes to this Court unpreserved. A
defendant pressing an unpreserved claim of error must show a plain error that affected
substantial rights. The reviewing court should reverse only when the defendant is actually
innocent or the error seriously affected the fairness, integrity, or public reputation of judicial
proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Upon request, a trial court must instruct a jury on a necessarily included lesser offense as
an alternative to the greater offence, if such an instruction comports with a rational view of the
evidence. People v Cornell, 466 Mich 335, 357-359; 646 NW2d 127 (2002). However, an
instruction on a cognate lesser included offense is not permitted. Id. at 359. In this case, as
plaintiff admits, receiving or concealing is not even a cognate lesser offense of carjacking, as the
two crimes have no elements in common.
That plain error occurred in this instance is beyond dispute. However, plaintiff argues
that it was harmless, on the ground that the trial court’s decisions in this regard may be
characterized as a decision to add receiving or concealing to the charges against defendant.
A court may allow amendment of a criminal information or indictment to conform to the
evidence, see MCL 767.76; MCR 6.112(H). However, such an amendment may not change the
offense of which defendant stands charged, or charge defendant with a new offense. People v
Unger, 278 Mich App 210, 221; 749 NW2d 272 (2008); People v Higuera, 244 Mich App 429,
444; 625 NW2d 444 (2001). Further, we think it would work a continuing harm to the fairness,
integrity, or public reputation of our judicial proceedings if erroneous instructions on, or
consideration of, uncharged and virtually unrelated offenses as alternative lesser included
offenses were approved simply through the device of characterizing each such irregularity as a
de facto amendment of the information or indictment.
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In this case, the trial court clearly treated receiving or concealing as an alternative, lesser
offense of carjacking:
As to count two, the carjacking, I find him not guilty of the carjacking; however, I
think receiving and concealing stolen property, those elements are met. So I find
him not guilty of the carjacking, but guilty of the lesser, receiving and concealing
stolen property.
Because receiving or concealing is not a lesser included offense of carjacking, the court violated
defendant’s substantial rights by treating it as if it were and convicting him of, and sentencing
him for, that offense.
This is particularly so considering that the conviction in question requires that the stolen
property be worth at least $20,000, while in this case there was no evidence concerning the
subject car’s value.1 Accordingly, even if we were to excuse the consideration of that offense as
a permissible fictional amendment of the information, we would nonetheless be obliged to vacate
the conviction for want of sufficient evidence.
For these reasons, we vacate defendant’s conviction of and sentence for receiving or
concealing, only, and remand this case to the trial court with instructions to issue an amended
judgment of sentence so reflecting. We affirm defendant’s remaining convictions and sentences.
We affirm in part, vacate in part, and remand. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
1
Plaintiff argues that the description of the Corvette in question as a 2005 vehicle with some
expensive options constituted good evidence that the car met the statutory value threshold. We
disagree. There was no evidence concerning the mileage or the condition of the engine,
transmission, brakes, etc.
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