PEOPLE OF MI V DARNELL ANTHONY GETER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 20, 2009
Plaintiff-Appellee,
v
No. 280425
Wayne Circuit Court
LC No. 07-004470-01
DARNELL ANTHONY GETER,
Defendant-Appellant.
Before: Murphy, P.J., and K. F. Kelly and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial conviction of aggravated assault, MCL
750.81a. Defendant was sentenced to eight months in jail. We affirm, but remand for correction
of the presentence investigation report (PSIR).
Defendant argues on appeal that there was insufficient evidence to support his conviction.
We disagree. In People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005), this Court
stated:
“Generally, we review a challenge to the sufficiency of the evidence in a
bench trial de novo and in a light most favorable to the prosecution to determine
whether the trial court could have found that the essential elements of the crime
were proved beyond a reasonable doubt.” All conflicts with regard to the evidence
must be resolved in favor of the prosecution. Circumstantial evidence and
reasonable inferences drawn from it may be sufficient to prove the elements of the
crime. [Citations omitted.]
MCL 750.81a(1) provides:
Except as otherwise provided in this section, a person who assaults an
individual without a weapon and inflicts serious or aggravated injury upon that
individual without intending to commit murder or to inflict great bodily harm less
than murder is guilty of a misdemeanor . . . .
Defendant argues that his claim of insufficient evidence is substantiated by the fact that
dislocating the victim’s shoulder was not a serious or aggravated injury because it was restored
to its socket at the scene. Defendant asserts that, at most, the crime committed was simple
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assault and battery. Secondly, defendant argues that his codefendant, Dominique Williams, is
responsible for the victim’s broken nose. Defendant contends that there was no evidence to
indicate that he acted in concert with Williams. Instead, he argues that their actions were
separate and distinct. We disagree.
CJI2d 17.6, the pertinent instruction on aggravated assault, provides:
(1) [Y]ou may also consider the lesser charge of assault and infliction of
serious injury. To prove this charge, the prosecutor must prove each of the
following elements beyond a reasonable doubt:
(2) First, that the defendant tried to physically injure another person.
(3) Second, that the defendant intended to injure [the victim] or intended to
make [the victim] reasonably fear an immediate battery.
(4) Third, that the assault caused a serious or aggravated injury. A serious or
aggravated injury is a physical injury that requires immediate medical treatment or
that causes disfigurement, impairment of health, or impairment of a part of the
body. [Footnotes omitted; see also People v Brown, 97 Mich App 606, 610-611;
296 NW2d 121 (1980).]
Viewing the evidence in the light most favorable to the prosecution, it established that
defendant verbally threatened the victim and then attacked her, causing her to fall over the railing
of the staircase in the restaurant. Defendant’s assault of the victim caused her to sustain a shoulder
injury that EMS personnel had to treat at the scene. As the victim crawled to the restroom, she
could not remove her backpack without assistance because she could not move her arm as a result
of defendant’s assault and the shoulder injury. Officer Raymond Whitehill noticed in the
ambulance that the victim’s shoulder bone was pressing out against the skin, and he observed the
bone go back into place after treatment by EMS personnel. Additionally, the victim testified that
x-rays of her shoulder were taken at the hospital in order to see if the shoulder had been properly
set. This evidence was sufficient to establish that the victim’s shoulder injury was a serious or
aggravated injury as it required medical treatment and impaired the use of the victim’s shoulder
and arm.
Moreover, while the victim’s shoulder injury was serious enough to satisfy the elements of
aggravated assault, there was also sufficient evidence to support defendant’s conviction on the
theory that he aided and abetted Williams’s assault of the victim. The common law distinction
between a principal and an aider and abettor was abolished by statute. People v Smielewski, 235
Mich App 196, 202-203; 596 NW2d 636 (1999). MCL 767.39 provides:
Every person concerned in the commission of an offense, whether he
directly commits the act constituting the offense or procures, counsels, aids, or
abets in its commission may hereafter be prosecuted, indicted, tried and on
conviction shall be punished as if he had directly committed such offense.
To establish aiding and abetting, a prosecutor must show that: (1) the charged crime was
committed by the defendant or some other person, (2) the defendant performed acts or gave
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encouragement which assisted the commission of the crime, and (3) the defendant intended the
commission of the crime or had knowledge that the principal intended its commission at the time
that the defendant gave the aid and encouragement. People v Robinson, 475 Mich 1, 6; 715
NW2d 44 (2006). The state of mind of an aider and abettor may be inferred from all the facts
and circumstances. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). Factors to
consider include a close association between the defendant and the principal, the defendant’s
participation in the planning or execution of the crime, and evidence of flight after the crime. Id.
at 757-758.
Viewing the evidence in the light most favorable to the prosecution, it showed that
defendant and Williams entered the restaurant together and began ridiculing the victim. When
the encounter escalated, the victim sustained a broken nose because Williams punched her in the
face. Officer Whitehill testified that her nose appeared crooked and that she was having trouble
breathing. The victim testified that EMS personnel gave her a small ice pack and gauze to stop
her nose from bleeding and that the doctor treated her for a broken nose at the hospital. While
defendant did not actually punch the victim in the face, he is still responsible under a theory of
aiding and abetting.
First, Williams clearly committed an aggravated assault by breaking the victim’s nose.
Secondly, the evidence shows that defendant encouraged his companion, Williams, by engaging
in verbal assaults, taunting, and threatening physical harm to the victim. According to the
victim, defendant told her that “your . . . friend ain’t going to be able to help you now,” and the
victim, as well as other witnesses, all testified that defendant invited the victim outside so he
could harm her physically. Defendant also blocked the victim from exiting the restaurant while
Williams yelled at her. Lastly, the requisite state of mind can be inferred from defendant’s
companionship with Williams, his participation in the assault by joining Williams in physically
threatening the victim, blocking the victim from exiting, his own personal assault on the victim,
and his fleeing with Williams after the assault. Therefore, sufficient evidence existed to also
support defendant’s conviction of aggravated assault under an aiding and abetting theory.
Finally, defendant argues that his (PSIR) should be corrected to show that his attorney
was retained and not appointed, the provision recommending attorney fees should be stricken,
and a corrected report should be forwarded to the Department of Corrections. We agree with
defendant.
“This Court reviews a trial court’s response to a defendant’s challenge to the accuracy of
a PSIR for an abuse of discretion.” People v Uphaus, 278 Mich App 174, 181; 748 NW2d 899
(2008). Whenever a sentencing court either disregards the allegations of inaccurate information
or determines that the information was in fact inaccurate, it must strike the disputed or incorrect
information before sending the PSIR to the Department of Corrections. MCL 771.14(6); People
v Spanke, 254 Mich App 642, 649; 658 NW2d 504 (2003).
During the sentencing hearing, counsel for defendant pointed out to the court that one of
the sentencing recommendations asking for attorney fees was incorrect because he was retained.
The judge responded, “I knew that.” The prosecution also agrees with defendant that the PSIR
should be corrected. Because the information recommending attorney fees was in fact
inaccurate, the case is remanded for the ministerial task of striking the incorrect information and
forwarding a corrected PSIR to the Department of Corrections.
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Defendant’s conviction and sentence are affirmed, but we remand to the trial court for
correction of the PSIR. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Kirsten Frank Kelly
/s/ Pat M. Donofrio
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