PEOPLE OF MI V DEWAYNE JEROME MCELRATH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 30, 2010
Plaintiff-Appellee,
V
No. 291900
Wayne Circuit Court
LC No. 08-001694-FJ
DEWAYNE JEROME MCELRATH,
Defendant-Appellant.
Before: FITZGERALD, P.J., and MARKEY and BECKERING, JJ.
PER CURIAM.
Defendant was convicted of assault with intent to commit murder, MCL 750.83, armed
robbery, MCL 750.529, first degree-home invasion, MCL 750.110a(2), and possession of a
firearm when committing a felony (felony-firearm), MCL 750.227b. The trial court sentenced
defendant to concurrent terms of imprisonment of 18 to 40 years for the assault with intent to
commit murder and armed robbery convictions and 9 to 20 years for the home invasion
conviction to be served consecutively to two years’ imprisonment for the felony-firearm
conviction. Defendant filed a delayed application for leave appeal, and this Court granted the
application. We affirm in part, vacate in part, and remand for further proceedings consistent with
this opinion.
First, defendant claims that the trial court erred in refusing to instruct the jury regarding
two lesser offenses. This Court reviews de novo issues of law arising from jury instructions, but
a trial court’s determination whether an instruction is applicable to the facts of the case is
reviewed for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
An abuse of discretion occurs when the trial court’s decision falls outside the range of principled
outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Harmless error
analysis is applicable to instructional errors involving necessarily included lesser offenses.
People v Cornell, 466 Mich 335, 361; 646 NW2d 127 (2002). The defendant bears the burden of
establishing that the claimed instructional error resulted in a miscarriage of justice. People v
Dupree, ___ Mich ___; ___ NW2d ___ (2010), slip op at 8. Reversal is only warranted if it is
more likely than not that the error was outcome determinative. People v Lukity, 460 Mich 484,
495-496; 596 NW2d 607 (1999). In other words, to warrant reversal, refusal to instruct on the
included lesser offense must undermine the reliability of the verdict. People v Hawthorne, 474
Mich 174, 176, 181-182, 185; 713 NW2d 724 (2006).
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A requested instruction on a necessarily included lesser offense should be given if the
charged greater offense requires the jury to find a disputed factual element that is not part of the
included lesser offense, and a rational view of the evidence would support it. Cornell, 466 Mich
at 357. A rational view of the evidence supporting instructing on a necessarily included lesser
offense requires not only that there be some evidence that would support a conviction on the
lesser offense, but also that the evidence regarding the element or elements that differentiate the
two offenses be sufficiently disputed so that the jury could consistently find the defendant
innocent of the greater and guilty of the lesser offense. Id. at 352, 357 n 11; see also People v
Steele, 429 Mich 13, 20-21; 412 NW2d 206 (1987), overruled in part on other grounds Cornell,
466 Mich 335. The reliability of a verdict is undermined when, after reviewing the entire case,
the evidence “clearly” supports instructing on the necessarily included lesser offense, but the
instruction is not given. Cornell, 466 Mich at 365. Thus, reversal is required only when there is
“substantial evidence” to support the lesser offense considered in light of the entire cause,
including evidence supporting the greater offense. Id.
The crime of assault with intent to do great bodily harm less than murder, MCL 750.84,
is a necessarily included lesser offense of assault with intent to commit murder, MCL 750.83.
People v Brown, 267 Mich App 141, 150; 703 NW2d 230 (2005). Similarly, our Supreme Court
has held that entering without permission, MCL 750.115, is a necessarily included lesser offense
of first-degree home invasion, MCL 750.110a. People v Silver, 466 Mich 386, 392, 398; 646
NW2d 150 (2002). The prosecution concedes these points of law on appeal but argues that the
trial court did not err by declining to instruct on these necessarily included lesser offenses
because a rational view of the evidence did not support doing so. We agree with respect to the
home invasion charge but disagree regarding the assault charge.
The offense of first-degree home invasion differs from the lesser offense of entering
without permission in that the more serious offense requires “intent to commit ‘a felony, larceny,
or assault,’ once in the dwelling.” Silver, 466 Mich at 392. The evidence presented at trial
offered conflicting reasons about why defendant entered the home. The victim testified that
defendant entered his home and held him at gunpoint in order to obtain more money after having
robbed the victim of what money he had outside the home. Defendant admitted he entered the
victim’s home without permission but asserted that he entered only to confront the victim
regarding the victim’s having assaulted defendant. Defendant testified that he entered the home
in order to “talk to” the victim and “ask him why he hit me in the face.” On cross-examination,
however, defendant admitted he told the police that he entered the home to get his “licks in.”
Defendant further admitted at trial that when he entered the home he “just wanted to get some
licks in.” Thus, although defendant denied he possessed a gun and denied that he assaulted or
robbed the victim, he admitted during cross-examination that he entered the victim’s home
intending to get “some licks in,” or commit an assault.
Because defendant admitted intent necessary for the charged offense, a rational view of
the evidence would not permit the jury to consistently find that the defendant was innocent of it
and guilty of only the lesser offense. Cornell, 466 Mich at 352, 357 n 11; Steele, 429 Mich at
20-21. Moreover, even if defendant’s testimony that he entered the house just to “talk to” the
victim were sufficient to create an evidentiary dispute requiring instructing on the lesser offense,
reversal is not warranted. More than an evidentiary dispute regarding the element that
differentiates the lesser from the greater offense is required to reverse a conviction because the
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“entire cause” must be reviewed to determine if failing to give the instruction undermined the
reliability of the verdict. Here, in addition to hearing defendant claim he just wanted to talk, they
also heard defendant admit that he had told police that he entered the house “to get some licks
in.” Defendant further acknowledged during cross-examination that when he entered the home,
he “just wanted to get some licks in.” Even defense counsel in closing argument, while not
evidence, acknowledged that defendant’s “intention of going in the house was to make things
right, get them straight, to get in a fuel [sic] licks.” Accordingly, although there was some
evidence to suggest that defendant entered the house without intending to commit a “felony,
larceny or assault,” that evidence was not “substantial.” Any error in failing to properly instruct
the jury on the necessarily included lesser offense of entering without permission was harmless.
MCL 769.26; Cornell, 466 Mich at 365-365.
The offense of assault with intent to murder differs from the offense of assault with intent
to commit great bodily harm less than murder only in the mens rea: assault with intent to murder
requires a specific intent to kill. Brown, 267 Mich App at 150. In this case, the prosecution’s
evidence demonstrated that defendant shot the victim in the abdomen once and then fired two
more times while the victim struggled with defendant for the gun. This was substantial evidence
that would support finding that defendant intended to kill the victim or at least do great bodily
harm.
The prosecution argues that instructing on the lesser offense was not required because
defendant testified he did not commit an assault: It was the victim who assaulted him with a gun,
and the victim was shot while defendant was attempting to take the gun from the victim. Thus,
although defendant disputed he intended to kill, he did so not by contending his intent was only
to do great bodily harm but rather that he did not commit an assault; he only acted in self-defense
to disarm the victim. There is some support for the prosecution’s position in Cornell, 466 Mich
at 357 n 11. The Court discussed Justice Ryan’s dissent in People v Cargill, a companion case to
People v Kamin, 405 Mich 482; 275 NW2d 777 (1979). In Cargill, the defendant was charged
with armed robbery, and defense counsel requested that the jury be instructed on unarmed
robbery, among other lesser offenses. But the defendant testified in his own defense that he did
not commit the offense and presented other evidence of alibi. Therefore, the factual issue for the
jury to decide was whether the defendant committed the offense, not whether it was committed
with a gun, which was undisputed. Thus, instructing on unarmed robbery was not warranted
because “the factual issue was the same with respect to both the lesser and greater offenses, and
there was ‘no evidence which would justify the jury in concluding that the greater offense was
not committed and the lesser included offenses were committed.’” Cornell, 466 Mich at 357 n
11, quoting Kamin, 405 Mich at 516 (RYAN, J., dissenting).
As in Cargill, defendant here contended he did not commit the crime. Nevertheless,
defendant disputed he possessed the intent to kill necessary to commit the greater offense, and
that factual issue was before the jury. The same evidence that would support finding that
defendant intended to kill the victim would also support finding that defendant only intended
great bodily harm to the victim. Consequently, we conclude the trial court erred not instructing
on assault with intent to do great bodily harm. By contending he did not commit the offense,
defendant sufficiently disputed the intent element necessary for the charged offense, and the
evidence would permit the jury to consistently find that the defendant was innocent of the
charged offense and guilty of the lesser offense. Id. at 352, 357 n 11.
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The prosecution further argues that any error could not have been outcome determinative
because the jury did not believe defendant’s claim that it was the victim that produced a gun.
Nonetheless, it is quite possible that the jury could have concluded from the evidence that
defendant had the gun and shot the victim, but only intended to inflict great bodily harm. Indeed,
the same evidence that supports finding that defendant acted with intent to kill also supports
finding that defendant only intended to inflict great bodily harm. Thus, the reliability of the
verdict is undermined because, after reviewing the entire cause, the evidence clearly supports the
lesser offense, but the instruction was not given. Under the circumstances, it is more probable
than not that the trial court’s error in not instructing the jury on assault with intent to commit
great bodily harm less than murder was outcome determinative. Cornell, 466 Mich at 364-365.
Because the trial court erroneously refused to instruct the jury on the lesser included
offense of assault with intent to commit great bodily harm less than murder, MCL 750.84, and
because that error was more likely than not outcome determinative, defendant is entitled to a new
trial before a properly instructed jury on that charge.
Defendant next argues that the evidence presented at trial was insufficient to justify the
verdicts of guilty beyond a reasonable doubt of assault with intent to murder, armed robbery,
first-degree home invasion and felony-firearm. We disagree.
In reviewing the sufficiency of the evidence in a criminal case, this Court must review the
record de novo, and, viewing both direct and circumstantial evidence in a light most favorable to
the prosecution, determine whether a rational trier of fact could find that the essential elements of
the crime were proved beyond a reasonable doubt. People v Terry, 224 Mich App 447, 452; 569
NW2d 641 (1997). Circumstantial evidence and reasonable inferences drawn from the evidence
are sufficient to prove the elements of a crime. People v Nowack, 462 Mich 392, 400; 614
NW2d 78 (2000). Any conflicts in the evidence must be resolved in favor of the prosecution.
Terry, 221 Mich App at 452. The trier of fact determines what inferences may be fairly drawn
from the evidence and determines the weight to be accorded those inferences. People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
“The elements of assault with intent to commit murder are (1) an assault, (2) with an
actual intent to kill, (3) which, if successful, would make the killing murder.” People v
McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999). An assault is either an attempt to
commit a battery or an unlawful act that places another in a reasonable apprehension of receiving
an immediate battery. People v Grant, 211 Mich App 200, 202; 535 NW2d 581 (1995).
The elements of armed robbery are: (1) the use of force or violence, an assault, or other
conduct that places another in fear; (2) to take property from the victim’s person or presence; and
(3) while the defendant is armed with a dangerous weapon, or an article a reasonable person
would believe is a dangerous weapon, or represents orally or otherwise he possesses a dangerous
weapon. MCL 750.529; People v Ford, 262 Mich App 443, 458; 687 NW2d 119 (2004).
The elements of first-degree home invasion are: (1) the defendant broke and entered a
dwelling or entered the dwelling without permission; (2) when the defendant did so, he intended
to commit a felony, larceny, or assault, or he actually committed a felony, larceny, or assault
while entering, being present in, or exiting the dwelling; and (3) another person was lawfully
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present in the dwelling or the defendant was armed with a dangerous weapon.
750.110a(2); People v Sands, 261 Mich App 158, 162; 680 NW2d 500 (2004).
MCL
The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or an attempt to commit, a felony. MCL 750.227b; People v Avant, 235 Mich
App 499, 505; 597 NW2d 864 (1999).
In this case, the victim testified that defendant ran up to him on the street in front of his
home, pointed a handgun at his head, and demanded money. Defendant took the victim’s wallet,
then demanded more money and forced him back into his home at gunpoint. Once inside,
defendant shot the victim in the abdomen. During the ensuing struggle over the weapon, more
shots were fired. This evidence was sufficient to establish the elements of armed robbery, firstdegree home invasion, and felony-firearm.
This evidence was also sufficient to allow a rational trier of fact to conclude beyond a
reasonable doubt that defendant committed assault with intent to murder. Intent to kill may be
proved by inference from any facts in evidence. McRunels, 237 Mich App at 181. Because of
the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient.
Id. The firing of a lethal weapon multiple times, and the infliction of serious injury will support
the inference of intent to kill. People v Mills, 450 Mich 61, 71; 537 NW2d 909 (1995); People v
Turner, 62 Mich App 467, 470; 233 NW2d 617 (1975). Here, the jury could easily infer that
defendant intended to kill the victim from evidence that he shot the victim more than once at
close range causing serious injury. Indeed, the jury could have inferred that but for the victim’s,
and his family’s, wrestling the gun away from defendant, he would have succeeded.
Finally, defendant argues on appeal that the sentences imposed in this case constitute
cruel and unusual punishment, US Const, Am VIII, or cruel or unusual punishment, Const 1963,
art 1, § 16. Again, we disagree. Defendant failed to preserve this issue for appeal by properly
first raising it in the trial court. People v Sexton, 250 Mich App 211, 227; 646 NW2d 875
(2002). In general, a trial court’s sentencing decisions are reviewed for an abuse of discretion,
but a defendant asserting an unpreserved claim of error must show that plain error affected his
substantial rights. People v Conley, 270 Mich App 301, 312; 715 NW2d 377 (2006). This same
standard applies to unpreserved claims of constitutional error. People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999). Reversal is warranted only when plain error results in the
conviction of an actually innocent defendant, or the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. Id. at 763.
Although MCL 769.34(10) provides that a sentence within the guidelines range must be
affirmed on appeal unless the trial court erred in scoring the guidelines or relied on inaccurate
information, this limitation on review does not apply to claims of constitutional error. Conley,
270 Mich App at 316. Questions of constitutional law are reviewed de novo. People v Drohan,
475 Mich 140, 146; 715 NW2d 778 (2006).
Defendant admits that although the trial judge imposed sentences within properly
calculated guidelines ranges, his youth, lack of criminal history, and exemplary record as a
detainee at a juvenile home render his sentences disproportionate, and, therefore, cruel and
unusual under the Eighth Amendment to the United States Constitution and cruel or unusual
under Const 1963, art 1, § 16.
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The Legislature incorporated the principle of proportionality into the statutory sentencing
guidelines. Babcock, 469 Mich at 263. Proportionality requires that the sentence be proportional
to the seriousness of the circumstances surrounding the offense and the offender. Id. at 262;
People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). The guidelines arrive at a
proportionate sentence recommendation range by accounting for the seriousness of the offense
through offense variables and accounting for the circumstances surrounding the offender through
prior record variables. Babcock, 469 Mich at 263-264. A sentence is presumed proportionate
when it falls within the guidelines range. People v Powell, 278 Mich App 318, 323; 750 NW2d
607 (2008). A sentence that is proportionate is not cruel or unusual punishment. Id.; People v
Drohan, 264 Mich App 77, 92; 689 NW2d 750 (2004).
In order to overcome the presumption that a sentence that falls within the guidelines
recommended range is proportionate, “a defendant must present unusual circumstances that
would render the presumptively proportionate sentence disproportionate.” People v Lee, 243
Mich App 163, 187; 622 NW2d 71 (2000). Here, the only circumstances defendant presents are
his young age, his lack of previous criminal history, and his exemplary behavior in the juvenile
detention facility. But our Supreme Court in People v Lemons, 454 Mich 234, 258-259; 562
NW2d 447 (1997), rejected an argument that an offender’s young age, by itself, renders a
particular sentence disproportionate. Similarly, defendant’s lack of criminal history does not
make his sentences disproportionate because the principle of proportionality is incorporated into
the sentencing guidelines system. Babcock, 469 Mich at 263-264.
Also, in choosing a sentence at the upper range of the guidelines, the sentencing judge
considered defendant’s behavior while in juvenile detention. Although the sentencing judge
acknowledged that defendant had done well in the structured setting of a juvenile facility, that
fact was clearly insufficient to overcome the judge’s concern regarding the level of violence
defendant demonstrated while committing the crimes for which he was being sentenced.
We also note that MCL 750.110a(8) provides that a court “may order a term of
imprisonment imposed for home invasion in the first degree to be served consecutively to any
term of imprisonment imposed for any other criminal offense arising from the same transaction.”
Accordingly, the judge had the option of imposing defendant’s sentence for first-degree home
invasion consecutively to his sentences for assault with intent to murder and armed robbery, but
declined to do so. This fact further discredits the claim that the sentences were unusually harsh.
In sum, defendant has failed to overcome the presumption that his sentences, which fell
within guidelines recommended ranges, were proportionate. Accordingly, his sentences do not
violate the constitutional prohibitions against imposing cruel and/or unusual punishment.
Powell, 278 Mich App at 323; Drohan, 264 Mich App at 92.
We affirm defendant’s convictions and sentences for armed robbery, first-degree home
invasion, and felony-firearm. We vacate defendant’s conviction and sentence for assault with
intent to murder and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ E.Thomas Fitzgerald
/s/ Jane E.Markey
/s/ Jane M. Beckering
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