PEOPLE OF MI V ROBERT HENRY VARTANIAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 24, 2010
Plaintiff-Appellee,
v
No. 291112
Wayne Circuit Court
LC No. 07-013087-FC
ROBERT HENRY VARTANIAN,
Defendant-Appellant.
Before: SAWYER, P.J., and BANDSTRA and WHITBECK, JJ.
PER CURIAM.
Defendant, Robert Vartanian, appeals as of right his jury conviction of one count of
possession of firearm during the commission of a felony (felony-firearm).1 The trial court
sentenced Vartanian to two years’ imprisonment for the felony-firearm conviction. We affirm.
We decide this appeal without oral argument.2
I. BASIC FACTS AND PROCEDURAL HISTORY
On June 29, 2007, Aaron Zimnicki, Jeffrey Miller, Adam Arm, Eric Arm, Nicholas
Budka, and Martin Kline all gathered at the home of Zimnicki’s cousin. Zimnicki and the other
men were told that Zimnicki’s niece had been involved in an altercation earlier that day with a
few girls from the neighborhood. They were also told that some people related to the altercation
were driving by the house in a white sports car and harassing the people in the house.
About 15 minutes after the men gathered at the house, they saw Vartanian’s white
Corvette sports car driving in front of the house. They were intent on confronting the driver of
any white sports car. Consequently, when they saw Vartanian in his white Corvette sports car,
they threw their hands in the air and began shouting at Vartanian from the porch of the house.
Vartanian returned the profane language.
1
MCL 750.227b.
2
MCR 7.214(E).
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As Vartanian’s car continued past the house, the men from the house left the porch and
moved to the street. After passing the house, Vartanian put his car in reverse and drove
backwards quickly towards the group of men. The men had to scatter to avoid being hit by the
car. Then Vartanian shot at Zimnicki, who was standing by the passenger window. The
passenger window was up when Vartanian started shooting. Consequently, the window was
shattered by the gunfire. After Vartanian shot Zimnicki six times, he got out of his car, aimed
his gun at Miller, and threatened to shoot again.
An off-duty police officer was in the vicinity of the shooting. He arrived at the scene first
and ordered Vartanian to put his gun down. Then another officer arrived and arrested Vartanian.
As Vartanian was being arrested and led to the back of the police car, Vartanian told the arresting
officer that he shot Zimnicki because six men approached his car with baseball bats and were
beating his car. He also said that the group of men broke the window and tried to pull him out of
his car. Vartanian said he shot Zimnicki when they were pulling him from the car. However, all
of the men who testified denied having a baseball bat or any other weapon in hand when the
shooting occurred. Likewise, the police did not find a baseball bat when they searched the scene.
The police inspected the car. Although the inspection revealed that there was a footprint
on the back of the car, the police were unable to determine how long the footprint had been there.
The car’s antenna was bent, as well.
Vartanian was charged with one count of assault with intent to murder,3 regarding Aaron
Zimnicki; one count of assault with a dangerous weapon,4 regarding Aaron Zimnicki; one count
of assault with a dangerous weapon,5 regarding Jeffrey Miller; and one count of possession of
firearm during the commission of a felony (felony-firearm).6
The jury acquitted Vartanian on all of the assault charges. However, the jury convicted
Vartanian of one count of felony-firearm. The trial court sentenced Vartanian to two years’
imprisonment for the felony-firearm conviction. Vartanian now appeals.
II. DENIAL OF MOTION FOR NEW TRIAL
A. STANDARD OF REVIEW
Vartanian argues that the trial court erred in failing to grant his motion for a new trial,
asserting that his conviction was against the great weight of the evidence. Because Vartanian’s
challenge was preserved, the Court reviews for an abuse of discretion the trial court’s denial of
the motion for a new trial on the ground that the verdict was against the great weight of the
evidence.7 A new trial may be granted when “the evidence preponderates so heavily against the
3
MCL 750.83.
4
MCL 750.82.
5
Id.
6
MCL 750.227b.
7
People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001).
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verdict that it would be a miscarriage of justice to allow the verdict to stand.”8 Conflicting
testimony, even when impeached to some extent, is an insufficient ground for granting a new
trial.9 The trial court must defer to the jury’s determination unless the contradictory evidence
was so deprived of probative value, or so defied physical facts or realities, that the jury could not
believe the evidence.10
B. AGAINST THE GREAT WEIGHT OF THE EVIDENCE
The jury convicted Vartanian of felony-firearm. To prove felony-firearm, the prosecutor
must prove that the defendant possessed a firearm during the commission of, or the attempt to
commit, a felony.11 Vartanian argued that he was defending himself. Once evidence of selfdefense is introduced, the prosecutor must disprove the elements of self-defense beyond a
reasonable doubt.12 MCL 780.972 provides:
(1) An individual who has not or is not engaged in the commission of a crime at
the time he or she uses deadly force may use deadly force against another
individual anywhere he or she has the legal right to be with no duty to retreat
if . . . :
(a)
The individual honestly and reasonably believes that the use of deadly
force is necessary to prevent the imminent death of or imminent great bodily harm
to himself or herself or to another individual.
This statute gives a defendant the right to stand his ground and not retreat before using deadly
force.13 But the defendant must have had an honest and reasonable belief that he was in danger
of death or of great bodily harm.14
The jury’s verdict was not against the great weight of the evidence. The testimony
offered by the prosecution’s eyewitnesses was largely consistent. They testified that when the
group of men first encountered Vartanian, Vartanian was in a car, whereas the men were on the
porch and unarmed. By the time they left the porch and entered the street, Vartanian had already
driven past the house, put his car in reverse, and drove back toward the house so as to be in the
physical proximity of the men. A window was shattered on Vartanian’s car; however, the
witnesses testified that it was shattered not because the men broke the window, but because
Vartanian shot Zimnicki through the window. Likewise, the police failed to discover a baseball
8
People v Musser, 259 Mich App 215, 218-219; 673 NW2d 800 (2003).
9
Id. at 219.
10
Id.
11
People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).
12
People v Roper, 286 Mich App 77, 86; 777 NW2d 483 (2009).
13
People v Conyer, 281 Mich App 526, 530; 762 NW2d 198 (2008).
14
Roper, 286 Mich App at 86.
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bat or any other weapon when they conducted a search of the crime scene. Because this
testimonial evidence was largely consistent, it was not so deprived of probative value that the
trial court should have granted a new trial. Instead, this evidence, if the jury found it credible,
showed that Vartanian used a firearm to shoot an unarmed man. Moreover, Vartanian’s claim of
self-defense fails because he could not have honestly and reasonably believed that he was in fear
of his life or of great bodily harm as he was in a car, and the men were unarmed. Consequently,
the trial court did not abuse its discretion in deferring to the jury’s verdict.
Vartanian also argues that his felony-firearm conviction was against the great weight of
the evidence because the jury agreed with his theory of self-defense by acquitting him of one
count of assault with intent to murder and two counts of assault with a dangerous weapon.
Vartanian’s argument is flawed. In a case with multiple counts, Michigan law allows a jury to
reach different conclusions regarding the same elements in separate counts.15 Thus, a defendant
may be acquitted of an underlying felony, yet still be convicted of felony-firearm.16 There are
many possible explanations for inconsistent verdicts; for instance, the jury may have decided to
be lenient.17 Consequently, inconsistent jury verdicts are not grounds for a new trial. Therefore,
Vartanian’s conviction was not against the great weight of the evidence and there were not
grounds for a new trial.
III. DENIAL OF MOTION FOR DIRECTED VERDICT
A. STANDARD OF REVIEW
Vartanian argues that the trial court erred in denying his motion for a directed verdict.
When reviewing a preserved challenge to the trial court’s decision to deny a motion for directed
verdict, the Court reviews the record de novo to determine whether the evidence produced by the
prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of
fact that the essential elements of the crime were proved beyond a reasonable doubt.18
B. SUFFICIENCY OF THE EVIDENCE
As stated, in order to convict a defendant of felony-firearm, the prosecution must prove
that the defendant possessed a firearm during the commission of, or the attempt to commit, a
felony.19 Once evidence of self-defense is introduced, the prosecutor must disprove the elements
of self-defense beyond a reasonable doubt.20 Michigan’s self-defense statute21 essentially
15
People v Goss, 446 Mich 587, 597; 521 NW2d 312 (1994).
16
People v Lewis, 415 Mich 443, 452; 330 NW2d 16 (1982).
17
Id. at 450-451.
18
People v Aldrich, 246 Mich App 101, 122-123; 631 NW2d 67 (2001).
19
Avant, 235 Mich App at 505.
20
Roper, 286 Mich App at 86.
21
MCL 780.972.
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provides that a defendant may use deadly force if the defendant honestly and reasonably believes
that he is in fear of his life or of great bodily harm.22
There is no dispute that Vartanian shot Zimnicki. Thus, the only real question is whether
the prosecutor submitted sufficient evidence to prove beyond a reasonable doubt that Vartanian
did not act in self-defense. The prosecution’s eyewitnesses were unanimous in their testimony
that the men were unarmed. The police corroborated this testimony. Although Vartanian was
outnumbered, the prosecution’s eyewitnesses were unanimous in their testimony that Vartanian’s
car had moved past the house and that Vartanian had to stop and then put the car in reverse to be
in close physical proximity to the men. They also testified that Vartanian broke his own car
window by shooting at Zimnicki. In light of this testimony, the prosecutor presented sufficient
evidence to allow a rational trier of fact to conclude that Vartanian was not acting in self-defense
when he shot Zimnicki because Vartanian was in no danger of being harmed until he put his car
in reverse and drove back towards the men. Therefore, since the prosecutor submitted sufficient
evidence, the trial court did not err in failing to grant Vartanian’s motion for a new trial.
We affirm.
/s/ David H. Sawyer
/s/ Richard A. Bandstra
/s/ William C. Whitbeck
22
Roper, 286 Mich App at 87.
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