PEOPLE OF MI V EDWARDO JOIEL HINTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 25, 2010
Plaintiff-Appellee,
v
No. 287477
Wayne Circuit Court
LC No. 08-005022-FC
EDWARDO JOIEL HINTON,
Defendant-Appellant.
Before: METER, P.J., and BORRELLO and SHAPIRO, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of two counts of armed robbery, MCL
750.529; two counts of assault with intent to murder, MCL 750.83; assault with intent to maim,
MCL 750.86; first-degree home invasion, MCL 750.110a(2); two counts of assault with a
dangerous weapon (felonious assault), MCL 750.82; felon in possession of a firearm, MCL
750.224f; and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. He was sentenced to concurrent prison terms of 15 to 25 years’ imprisonment for the
armed robbery convictions, 15 to 25 years’ imprisonment for the assault with intent to murder
convictions, five to ten years’ imprisonment for assault with intent to maim, 5 to 20 years’
imprisonment for first-degree home invasion, two to four years’ imprisonment for the felonious
assault convictions, and two to five years’ imprisonment for felon in possession of a firearm. All
nine sentences are to run consecutively to two years’ imprisonment for the felony-firearm
conviction. Defendant appeals as of right. We affirm.
Defendant first argues that the prosecutor presented insufficient evidence to support the
trial court’s verdict. We review a challenge to the sufficiency of the evidence in a bench trial de
novo. People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). The evidence is
viewed in the light most favorable to the prosecution to determine whether the trial court could
have found that the essential elements of the crime were proven beyond a reasonable doubt. Id.
“Circumstantial evidence and reasonable inferences drawn from it may be sufficient to establish
the elements of a crime.” People v Fennell, 260 Mich App 261, 270-271; 677 NW2d 66 (2004).
Defendant initially contends that there was insufficient evidence to identify him as a
perpetrator of the crime. Identity is always an essential element of any crime. People v
Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976). We find that there was sufficient evidence
to identify defendant as one of the perpetrators. Most of the evidence came from the victims’
testimony; however, the testimony of a victim alone is sufficient evidence to establish a
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defendant’s guilt beyond a reasonable doubt. People v Taylor, 185 Mich App 1, 8; 460 NW2d
582 (1990). All of the victims identified defendant as one of the two armed men who entered the
residence of Mozelle and Clarence Jones. Mozelle, Diana Joslin, Carol Joslin, and Corliss
Tolbert all testified that defendant entered the house and demanded money from Mozelle, and
that he began to hit her in the face with a gun. Moreover, defendant was arrested shortly after
the incident in a nearby vacant house. At the time of his arrest, defendant was in possession of a
handgun and was wearing body armor. The evidence was sufficient to identify defendant as one
of the perpetrators.1
Defendant next argues that there was insufficient evidence of intent to support his
convictions for two counts of assault with intent to murder and a count of assault with intent to
maim. To secure a conviction of assault with intent to murder, the prosecutor must prove the
following three elements: “(1) an assault, (2) with an actual intent to kill, (3) which, if successful,
would make the killing murder.” People v Hoffman, 225 Mich App 103, 111; 570 NW2d 146
(1997). Assault with intent to maim requires that the defendant (1) assaulted another person, (2)
“with intent to maim or disfigure his person by cutting out or maiming the tongue, putting out or
destroying an eye, cutting or tearing off an ear, cutting or slitting or mutilating the nose or lips or
cutting off or disabling a limb, organ or member.” MCL 750.86; People v Ward, 211 Mich App
489, 490-491; 536 NW2d 270 (1995).
Regarding the assault with intent to murder, there was sufficient evidence that defendant
aided and abetted his unnamed codefendant in assaulting Clarence with the intent to murder and
that he himself assaulted Mozelle with the intent to murder.
To support a finding that a defendant aided and abetted a crime, the prosecutor must
show that:
(1) the crime charged was committed by the defendant or some other person; (2)
the defendant performed acts or gave encouragement that 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 aid and encouragement. [People v Robinson, 475 Mich 1, 6; 715
NW2d 44 (2006) (internal citations and quotation marks omitted).]
For a valid conviction, an “aiding and abetting” criminal defendant “must possess the criminal
intent to aid, abet, procure, or counsel the commission of an offense.” Id. at 15. The record
establishes that the unnamed codefendant took four dollars from Clarence, and then the unnamed
codefendant stepped back and shot four times at Clarence, hitting him in the right foot and left
arm. The usual purpose of intentionally discharging a firearm at someone within close range is
to cause a death. People v Johnson, 54 Mich App 303, 304; 220 NW2d 705 (1974). It is also
1
Defendant argues against the reliability of the photographic lineup that was conducted.
However, he does not raise the issue of the lineup in his statement of questions presented for
appeal and has therefore waived the issue. People v Miller, 238 Mich App 168, 172; 604 NW2d
781 (1999). Moreover, we note that defense counsel affirmatively allowed the photographic
array to be admitted into evidence.
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clear from the record that defendant and the unnamed codefendant had a close association during
the criminal transaction, and from that evidence it is reasonable to infer that they were assisting
each other in the commission of the crime. Both men arrived at the Jones’s residence at the same
time, they split up, and each confronted one of the owners and demanded “the money” and
threatened those who were present with handguns. After they found the money, the men left the
house and fled together. Additionally, there was evidence from which one could infer that
defendant was aware of the unnamed codefendant’s intent to kill Clarence because he had the
same intent; he acted at the same time in a similar, planned manner. While the unnamed
codefendant was assaulting Clarence, defendant pointed his handgun at Mozelle’s head and said,
“If you don’t give me the money, I’ll blow your damn brains out.” After Mozelle refused to give
defendant any money, defendant attempted to fire the gun, but it only “clicked.” The
codefendant similarly demanded money from Clarence and shot at him. Moreover, after the
shooting, both men remained in the house until they found the money and fled together. From
this evidence, a rational trier of fact could draw the reasonable inference that defendant had
knowledge of the unnamed codefendant’s intent at the time he gave aid and encouragement, and
that he himself had the intent to kill. Thus, we find that there was sufficient evidence to support
defendant’s conviction for aiding and abetting the assault with intent to murder Clarence.
The evidence was also sufficient to support a finding that defendant assaulted Mozelle
with the intent to murder because he entered the house, demanded money, and unsuccessfully
attempted to fire a gun at Mozelle’s head. Although the gun did not fire, defendant’s actions
were sufficient to find that he assaulted Mozelle with the intent to murder. See People v Davis,
216 Mich App 47, 53; 549 NW2d 1 (1996).
Regarding the conviction of assault with intent to maim, the facts support that after
defendant pulled the trigger on the gun, Mozelle tried to push defendant away, and defendant
then began to hit her repeatedly in the eye and the head with the handgun. The injury to
Mozelle’s eye caused a loss of eyesight. Intent to maim includes “putting out or destroying an
eye.” MCL 750.86. Here, the fact that defendant repeatedly stuck Mozelle’s eye with a handgun
permits the inference that he assaulted her with the intent to maim after he unsuccessfully
assaulted her with the gun.
Defendant also argues that there was insufficient evidence connecting defendant to the
gun. To sustain a conviction for felon in possession of a firearm, the prosecutor must prove: (1)
the defendant possessed a firearm, (2) the defendant was previously convicted of a felony, and
(3) less than five years elapsed since the defendant completed probation and satisfied certain
other requirements. MCL 750.224f; People v Perkins, 262 Mich App 267, 270-271; 686 NW2d
237 (2004). “The elements of felony-firearm are that the defendant possessed a firearm during
the commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich App 499,
505; 597 NW2d 864 (1999); see also MCL 750.227b. In this case, the only element in dispute is
possession. We find that there was sufficient evidence to support defendant’s convictions for
felon in possession of a firearm and felony-firearm. As discussed above, there was eyewitness
testimony that defendant was in possession of a handgun when he entered the Jones’s house and
used the handgun to commit a robbery.
Defendant next argues that his convictions for both assault with intent to murder and
assault with intent to maim violated his constitutional right to be free from double jeopardy. As
we recently explained in People v McGee, 280 Mich App 680, 682-683; 761 NW2d 743 (2008):
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Both the United States and the Michigan constitutions protect a defendant
from being placed twice in jeopardy, or subject to multiple punishments, for the
same offense. Judicial examination of the scope of double jeopardy protection
under both constitutions is confined to a determination of legislative intent. And
the validity of multiple punishments under the Michigan Constitution is
determined under the federal Blockburger[2] “same elements” standard. If the
Legislature clearly intended to impose multiple punishments, the imposition of
multiple sentences is permissible regardless of whether the offenses have the
same elements, but if the Legislature has not clearly expressed its intent, multiple
offenses may be punished if each offense has an element that the other does not.
In other words, the test emphasizes the elements of the two crimes. If each
requires proof of a fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the
crimes[.] [Internal citations and quotation marks omitted.]
Assault with intent to murder and assault with intent to maim each require proof of a fact that the
other does not. A reading of the plain text of the statute reveals that to prove assault with intent
to murder, the prosecution was required to prove that defendant assaulted the victim with the
intent to commit the crime of murder. MCL 750.83. This element is not required to prove
assault with intent to maim. Additionally, to prove assault with intent to maim, the prosecution
must prove that defendant assaulted the victim with the intent to maim one of the enumerated
body parts. MCL 750.86. This element is not required to prove assault with intent to murder.
“While there may indeed be substantial overlap between the proofs offered by the prosecution to
establish the crimes, the prosecution must nevertheless prove different elements under these
statutory provisions.” McGee, supra at 685. Moreover, the assaults for which defendant was
convicted were two distinct acts. Where the defendant commits two distinct acts during the same
episode of criminal behavior, the Double Jeopardy Clause does not prohibit multiple
punishments for the separate acts. People v Lugo, 214 Mich App 699, 708-709; 542 NW2d 921
(1995). The assault with intent to murder was completed when defendant committed the distinct
act of pulling the trigger on the handgun. Subsequently, after a brief struggle, defendant began
to strike Mozelle in the eye with the handgun, committing the separate act of assault with intent
to maim. We find that there was no double jeopardy violation resulting from the two convictions
related to defendant’s attack on Mozelle.
Defendant next argues that the trial court erred in failing to grant a new trial because the
verdict was against the great weight of the evidence and there was newly discovered evidence.
To determine whether a verdict is against the great weight of the evidence, we must determine
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 642-644; 576 NW2d
129 (1998). Where a challenge to the great weight of the evidence follows a bench trial, we
examine the trial court’s findings for clear error, giving regard to the court’s special opportunity
to judge the credibility of witnesses. MCR 2.613(C). Thus, absent exceptional circumstances,
2
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 2d 306 (1932).
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the issue of credibility should be left for the trier of fact. Lemmon, supra at 642-643. For a new
trial to be granted on the basis of newly discovered evidence, a defendant must show that:
(1) the evidence itself, not merely its materiality, was newly discovered; (2) the
newly discovered evidence was not cumulative; (3) the party could not, using
reasonable diligence, have discovered and produced the evidence at trial; and (4)
the new evidence makes a different result probable on retrial. [People v Cress,
468 Mich 678, 692; 664 NW2d 174 (2003) (internal citation and quotation marks
omitted).]
Defendant has failed to show that the evidence preponderates heavily against the verdict
or that the prosecution witnesses’ testimony was impeached to the extent that it was deprived of
all probative value and the trial could not believe it. Lemmon, supra at 642-644. Defendant
raises several concerns regarding the photographic array from which the witnesses initially
identified defendant; however, even assuming that this issue had been properly presented for
appeal,3 we find that defendant has failed to establish that the lineup was unduly suggestive or
otherwise improper and rendered the eyewitnesses’ identifications devoid of all probative value.
We find, after reviewing the record, including the witnesses’ identifications of defendant, that the
evidence does not preponderate so heavily against the verdict that it would be a miscarriage of
justice to allow the verdict to stand.
In addition, the new evidence presented by defendant consists of his own affidavit
concerning an alleged statement made by Kevin Pettway telling defendant that he was at the
victims’ house before the incident occurred and overheard someone in a financial dispute with
the victims. This person threatened to have someone “get their money back.” This statement
constitutes hearsay because it is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
MRE 801(c). As hearsay, this new evidence is an inappropriate ground for a new trial. See
People v Miller, 141 Mich App 637, 642-643; 367 NW2d 892 (1985). Thus, the trial court did
not abuse its discretion in denying defendant’s motion for a new trial.
Affirmed.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
3
See footnote 1, supra.
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