PEOPLE OF MI V BRIAN DEPUTY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 23, 2008
Plaintiff-Appellee,
v
No. 280258
Ottawa Circuit Court
LC No. 07-031203-FC
BRIAN DEPUTY,
Defendant-Appellant.
Before: Servitto, P.J., and Donofrio and Fort Hood, JJ.
PER CURIAM.
Defendant was convicted by a jury of armed robbery, MCL 750.529, and sentenced to 10
to 30 years’ imprisonment. He appeals as of right. We affirm.
Defendant’s conviction arises from the robbery of an Admiral Tobacco Station in
Holland, Michigan during the morning hours of March 3, 2007. The clerk testified that a person
who appeared to be a customer mumbled something to her and then demanded that she open the
cash register drawer. The clerk further testified that as she was fumbling with the drawer the
person told her to hurry, pulled back his jacket, and pointed a small black object that was in his
jacket at her. The clerk testified that she thought the object was a gun and finished opening the
drawer, whereby the person reached over the counter with his left hand and took approximately
$88 from the drawer. A surveillance camera recorded the incident and was submitted at trial as
evidence.
Defendant was later arrested for the robbery and a black cellular telephone was found in
his apartment at the time of the arrest and later admitted as evidence at trial. Defendant admitted
to the police and later during testimony that he was responsible for the robbery and that he had
the cellular telephone in his possession during the robbery. The arresting officers testified that
defendant told them he “used” a cellular telephone during the robbery; however, defendant
testified that he never threatened the clerk or represented the telephone to be a weapon.
Defendant admitted at trial that he wrote a letter to the judge seeking leniency in which he stated
“[c]an you imagine a man so ignorant that he robs a store with a cell phone!”
The only issue on appeal is whether there was sufficient evidence to prove defendant was
armed with a dangerous weapon when he robbed the Admiral station. Defendant contends that
the clerk’s belief that he possessed a dangerous weapon was unreasonable because he made no
threats that he had a weapon and did not portray the cellular telephone as a weapon.
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We review a sufficiency of the evidence claim de novo. People v Lueth, 253 Mich App
670, 680; 660 NW2d 322 (2002). All facts are construed in a light most favorable to the
prosecution and we must determine whether any rational trier of fact could have concluded that
the prosecution proved the essential elements of the crime beyond a reasonable doubt. People v
Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). “Circumstantial evidence and reasonable
inferences arising therefrom can sufficiently establish the elements of a crime.” People v
Schultz, 246 Mich App 695, 702; 635 NW2d 491 (2001).
MCL 750.529 provides that a person is guilty of armed robbery if during the commission
of an unarmed robbery that person “possess a dangerous weapon or an article used or fashioned
in a manner to lead any person present to reasonably believe the article is a dangerous weapon,
or who represents orally or otherwise that he or she is in the possession of a dangerous weapon.”
To submit proof that a defendant used an article to induce the victim to reasonably believe it to
be a dangerous weapon, or used to feign a weapon, actual possession of an article is required.
See People v Taylor, 245 Mich App 293, 297; 628 NW2d 55 (2001). To show actual possession
there must be some objective evidence that the defendant possessed a weapon or article before a
jury is permitted to assess the merits of an armed robbery charge. People v Jolly, 442 Mich 458,
468; 502 NW2d 177 (1993). Subjective belief alone is insufficient to submit the question of
guilt to the jury. Id. In Jolly, supra at 469, the Michigan Supreme Court stated that “the
existence of some object, whether actually seen or obscured by clothing or something such as a
paper bag, is objective evidence that a defendant possesses a dangerous weapon or an article
used or fashioned to look like one.” The Court went on to hold that there was sufficient evidence
to submit the armed robbery question to the jury when the clerk was orally threatened and
testified that he observed a bulge in the assailant’s midsection. Id. at 461, 463. Although the
clerk never actually saw the gun, the Court held that the bulge in combination with the threat
objectively supported the clerk’s belief that the assailant was armed. Id. at 470-471.
The factual basis in Jolly “constitutes the absolute minimum level of evidence sufficient
to support an armed robbery conviction.” People v Banks, 454 Mich 469, 475; 563 NW2d 200
(1997). However, a defendant need not verbally threaten the victim with some specific bodily
harm in order to obtain a conviction of armed robbery. Taylor, supra at 302-303. In the instant
case, the victim testified that she observed something small and black after defendant pulled
back his coat, and the object was pointed at her while defendant demanded she open the cash
drawer. She believed the object defendant was holding was a gun. Furthermore, the clerk’s
father who spoke with her immediately after the incident testified his daughter indicated the store
had been robbed and the robber had used a gun. In addition, defendant admitted that he had the
black cellular telephone that was recovered during his arrest with him at the time of the robbery,
and the arresting police officers testified the defendant made statements indicating he “used” a
cellular telephone during the robbery as opposed to a gun. This testimonial evidence, coupled
with the defendant’s letter to the judge suggests the clerk’s beliefs where based on objective facts
in existence at the time of the incident. While the strength of this evidence may be questioned,
the role of this Court is not to interfere with the factfinder’s role of determining the weight of the
evidence or credibility of witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748,
amended 441 Mich 1201 (1992). Reviewing the evidence in the light most favorable to the
prosecution, we find that there was sufficient evidence to prove that the defendant was “armed”
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during the commission of the robbery according to MCL 750.529.
Affirmed.
/s/ Deborah A. Servitto
/s/ Pat M. Donofrio
/s/ Karen M. Fort Hood
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