PEOPLE OF MI V BRANDON MICHAEL PITTAO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 3, 2009
Plaintiff-Appellee,
v
No. 283022
Macomb Circuit Court
LC No. 2007-003535-FH
BRANDON MICHAEL PITTAO,
Defendant-Appellant.
Before: Whitbeck, P.J., and O’Connell and Owens, JJ.
PER CURIAM.
Defendant Brandon Pittao appeals by right his jury convictions of two counts of assault
with a dangerous weapon (felonious assault),1 and carrying a dangerous weapon with unlawful
intent.2 We affirm.
I. Basic Facts And Procedural History
Dawn O’Berry was sitting outside her apartment complex with, among others, 12-yearold Skyler Harms. Pittao and two other men walked past at about 8:30 p.m. O’Berry’s neighbor
commented that Pittao was wearing a tether. As Pittao passed O’Berry’s apartment again, he
faced O’Berry and the others, gestured rudely, and then walked away.
Pittao returned at approximately 11:00 p.m. O’Berry was sitting next to Harms on the
porch. Pittao was carrying a large stick that he struck on the sidewalk as he approached. Pittao
shouted at O’Berry for speaking about him and his friends, and threatened to kill her. Pittao
continued to approach until he stopped between six and ten feet from O’Berry and Harms. Pittao
continued to threaten to kill O’Berry. O’Berry stood as Pittao approached, told Pittao to leave,
and stepped off the porch. Pittao began to back away. Around that time, Pittao’s companions
returned, each carrying weapons. The three continued to make threats. Harms testified that one
man, who held two swords, began grinding the two swords together, approached him closely,
and threatened to “slice us up.” O’Berry yelled for her husband, who came out onto the porch
1
MCL 750.82.
2
MCL 750.226.
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carrying a baseball bat. Other individuals also came out of the building. Harm’s mother shouted
that she was calling the police. Pittao left, and his friends followed shortly thereafter.
II. Sufficiency Of the Evidence
A. Standard Of Review
Pittao argues that the prosecution presented insufficient evidence to support his
conviction for assault with a dangerous weapon as to Harms. We review a defendant’s
allegations regarding insufficiency of the evidence de novo.3 We view the evidence in the light
most favorable to the prosecution to determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt.4 We do not interfere
with the jury’s role of determining the weight of the evidence or the credibility of the witnesses.5
Satisfactory proof of the elements of the crime can be shown by circumstantial evidence and the
reasonable inferences arising therefrom.6 It is for the trier of fact to determine what inferences
fairly can be drawn from the evidence and the weight to be accorded to those inferences.7
B. Elements Of The Offense
“The elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and
(3) with the intent to injure or place the victim in reasonable apprehension of an immediate
battery.”8 Here, Pittao essentially argues that he did not intend to harm Harms and that his
assault was entirely focused on O’Berry. However, because of the difficulty of proving an
actor’s state of mind, minimal circumstantial evidence is sufficient to establish the element of
intent.9 The testimony at trial supported a finding that Pittao intended to place Harms in
reasonable apprehension of an immediate battery. Harms testified that Pittao’s threats were
directed at him as well as at O’Berry. Harms was afraid that Pittao planned to come onto the
porch and “do something” to the pair. He also testified that Pittao was close enough to him that
Pittao could have struck him with the pole and that Pittao’s friend approached him close enough
to stab him with a sword. O’Berry testified that she was concerned that Pittao and the others
were going to injure Harms. O’Berry’s husband testified that Harms appeared afraid of Pittao
and the other men. The prosecutor was not required to disprove Pittao’s assertion on appeal that
3
People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001).
4
People v Fennell, 260 Mich App 261, 270; 677 NW2d 66 (2004).
5
People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748, amended 441 Mich 1202 (1992).
6
People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).
7
People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
8
People v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007), quoting People v Avant, 235
Mich App 499, 505; 597 NW2d 864 (1999).
9
People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999).
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he intended to harm or scare only O’Berry.10 We conclude that the prosecution presented
sufficient evidence to support Pittao’s conviction for felonious assault as to Harms.
III. Double Jeopardy
A. Standard Of Review
Pittao argues that his convictions for both felonious assault and carrying a weapon with
unlawful intent violate his double jeopardy protections against multiple punishments for the
same offense. Double jeopardy issues present questions of constitutional law that we review de
novo.11
The double jeopardy provisions of the United States and Michigan Constitutions protect
citizens from multiple punishments for the same offense.12 The validity of multiple punishments
is determined by considering “whether each provision requires proof of a fact which the other
does not.”13 If the Legislature clearly intended to impose multiple punishments, the imposition
of multiple sentences is permissible regardless whether the offenses have the same elements.14
But if the Legislature did not clearly express its intent, multiple offenses may be punished if each
offense has an element that the other does not.15
B. Elements Of The Offenses
As stated, felonious assault requires the use of a dangerous weapon and the intent to
injure or place the victim in reasonable apprehension of an immediate battery.16 The elements of
carrying a weapon with unlawful intent require that the defendant: (1) “goes armed with” a
firearm or dangerous weapon, (2) with the intent to unlawfully use the weapon against another
person.17 The elements of felonious assault require proof of an element not required to establish
carrying a dangerous weapon with intent, i.e., the actual use of a dangerous weapon, either to
harm or scare the victim. In the case of carrying a weapon with felonious intent, the crime is
complete when the individual arms himself with the weapon and intends to use it. He need not
ever approach the victim, nor does the victim have to become aware of this intent. Likewise,
carrying a weapon with unlawful intent requires proof of an element not required to establish a
felonious assault, that is, the specific intent to “go armed” with a weapon with the intent to use it.
10
See People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
11
People v Smith, 478 Mich 292, 298; 733 NW2d 351 (2007).
12
Id. at 299.
13
Smith, supra at 305, 315-316 (citation omitted).
14
Id. at 316.
15
Id.
16
Chambers, supra at 8.
17
MCL 750.226; People v Harrington, 194 Mich App 424; 487 NW2d 479 (1992).
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A person could commit a felonious assault without this element by, for example, fortuitously
picking up a weapon and using it on another, or by striking someone with a car.
Because each offense has an element that the other does not, Pittao’s convictions of both
carrying a weapon with unlawful intent and felonious assault do not violate the double jeopardy
protection against multiple punishments.
Affirmed.
/s/ William C. Whitbeck
/s/ Peter D. O’Connell
/s/ Donald S. Owens
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