PEOPLE OF MI V EDWARD MCFERRIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 15, 2009
Plaintiff-Appellee,
v
No. 286968
St. Clair Circuit Court
LC No. 08-000805-FC
EDWARD MCFERRIN,
Defendant-Appellant.
Before: Gleicher, P.J., and Fitzgerald and Wilder, JJ.
PER CURIAM.
Defendant appeals as of right from his jury convictions of armed robbery, MCL 750.529,
carjacking, MCL 750.529a, and assault with intent to do great bodily harm less than murder,
MCL 750.84. Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 25 to 50
years for armed robbery and carjacking, and 10 to 20 years for assault. We affirm. This appeal
is being decided without oral argument pursuant to MCR 7.214(E).
Defendant first argues that the trial court improperly allowed MRE 404(b) evidence
regarding the robbery of a different cab driver. The evidence was admitted to show defendant’s
intent to take property and his intent to commit great bodily harm. The trial court listed the
similarities in the crimes as being that both victims were cab drivers held down by defendant;
defendant had both drive to a number of locations; both were attacked from behind and were
grabbed around the neck; both stopped the vehicles in response to force and violence; and both
vehicles were taken. This determination is reviewed for an abuse of discretion. People v
McGhee, 268 Mich App 600, 609; 709 NW2d 595 (2005).
For evidence of other crimes, wrongs, or acts to be admissible under MRE 404(b)(1), the
proponent of the evidence must show: (1) that the other acts evidence is for a proper purpose
(other than to show character or propensity), (2) that the evidence is relevant to an issue of fact
that is of consequence at trial, and (3) that, under MRE 403, the danger of unfair prejudice does
not substantially outweigh the probative value of the evidence. People v Sabin (After Remand),
463 Mich 43, 55-56; 614 NW2d 888 (2000). Intent is identified as a proper purpose in MRE
404(b). Intent was at issue in this case. A plea of not guilty puts the prosecution to its proofs
regarding all elements of the crime charged. People v VanderVliet, 444 Mich 52, 78; 508 NW2d
114 (1993), mod 445 Mich 1205 (1994). Thus, the prosecutor had to prove intent and
accordingly, the evidence was relevant to an issue of fact that was of consequence. The evidence
was therefore admissible unless substantially more prejudicial than probative. Sabin, supra.
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Here, that defendant intended to rob and harm the victim was made more probable by his
admission to having a similar intent in a markedly similar crime. On balance, it cannot be said
that the trial court abused its discretion in determining that the evidence was not substantially
more prejudicial than probative.
Defendant next argues that the victim’s in-court identification arose from an encounter
with defendant at the court proceeding involving the other robbery. Defendant maintains that the
identification did not have “a basis independent of the suggestive procedure.” Defendant
analogizes to United States v Emanuele, 51 F3d 1123 (CA 3, 1995), in arguing that the
identification was unduly suggestive. There, a bank teller was unable to identify the defendant in
a line up but then claimed she could identify him after seeing him being led from a courtroom in
manacles. Here, the victim was never shown a photo or corporeal lineup and thus, did not fail to
previously identify defendant.
In People v Gray, 457 Mich 107, 116; 577 NW2d 92 (1998), citing People v Kachar, 400
Mich 78; 252 NW2d 807 (1977), our Supreme Court recited eight factors to be evaluated in
determining if a procedure was unduly suggestive. They are analyzed as follows:
1. Prior relationship with or knowledge of the defendant; here there was no prior
relationship or knowledge.
2. The opportunity to observe the offense. The victim observed not only the
offense, but also the offender. He testified that he was suspicious of defendant,
that defendant walked in front of his car while the headlights were on, and that he
turned and observed defendant while the dome lights were on.
3. Length of time between the offense and the disputed identification.
Defendant’s in-court identification was approximately two years after the crime.
4. Accuracy or discrepancies in the pre-lineup or showup description and
defendant’s actual description. There was no lineup or showup, but the trial court
indicated that the description given at the time of the crime was accurate.
5. Any previous proper identification or failure to identify the defendant. As
previously mentioned, there was no inconsistent identification of defendant.
6. Any identification prior to lineup or showup of another person as defendant.
There was none.
7. The nature of the alleged offense and the physical and psychological state of
the victim. Although the victim may have been shaken by the crime, his
observations took place before the crime.
8. Any idiosyncratic or special features of defendant. Apparently, there was
nothing of particular note.
Application of these factors to the instant case does not call into question defendant’s in-court
identification based on the prior identification. Although some factors might weigh in favor of
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such a finding, defendant had ample opportunity to observe defendant, his description of
defendant was accurate and consistent, and there had been no previous misidentifications.
Defendant next takes issue with the trial court’s comment at sentencing that he believed
defendant was a threat to society and “will kill” if released from prison in the near future.
Defendant asserts that this was speculative, not factual, and that he could not be sentenced based
on unsupported opinion. A minimum sentence within the sentencing guidelines range must be
affirmed absent an error in the scoring of the guidelines or inaccurate information relied upon in
determining the sentence. MCL 769.34(10); People v Kimble, 470 Mich 305, 309; 684 NW2d
669 (2004). Here, the information underlying the opinion was not inaccurate. This opinion
followed a recap of the violent nature of this particular crime; the observation that defendant had
struck out at another cab driver; and the observation that defendant had ten prior felonies, five
prior prison terms, two adult felony probation terms, and a history of substance abuse which had
driven this particular crime. In context, it appears that the court was sentencing defendant to a
long prison term based on his history. Regardless, the minimum sentence of 25 years was well
within the guidelines range of 171 to 570 months. A party may not raise on appeal an issue
challenging the accuracy of information relied upon in determining a sentence that is within the
appropriate guidelines range unless the party has raised the issue at sentencing, in a proper
motion for resentencing, or in a proper motion to remand. MCL 769.34(10); Kimble, supra at
309; see also MCR 6.429(C). Defendant did not do so. Thus, to the extent defendant is
characterizing the court’s prediction as inaccurate information, relief is foreclosed.
Finally, defendant argues that the trial court impermissibly ordered him to pay $3,154.92
in attorney fees without considering his ability to pay. He relies on People v Dunbar, 264 Mich
App 240, 251-252; 690 NW2d 476 (2004), which was overruled in relevant part in People v
Jackson, 483 Mich 271; 769 NW2d 630 (2009). The Jackson Court held that an investigation of
a defendant’s ability to pay is not required at the time it is imposed, but is required when
enforcement of the order is sought. Id. at 275. Thus, defendant’s challenge is premature.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ E. Thomas Fitzgerald
/s/ Kurtis T. Wilder
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