STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 30, 2010
Wayne Circuit Court
LC No. 09-003700-FC
Before: SERVITTO, P.J., and ZAHRA and DONOFRIO, JJ.
A jury convicted defendant of armed robbery, MCL 750.529, and larceny from a person,
MCL 750.357. He was sentenced as a fourth habitual offender, MCL 769.12, to concurrent 25 to
50 years’ imprisonment for the robbery conviction, and five to ten years’ imprisonment for the
larceny conviction. He appeals as of right. We affirm.
I. BASIC FACTS
Defendant’s convictions arise from two separate thefts at a 7-Eleven store in Taylor
within a two-hour period on January 19, 2009. Beer was stolen during the first offense and cash
was stolen during the second offense. Both offenses were captured by the store’s security
camera, and a video recording of the offenses was played for the jury. The same store clerk was
working during both offenses and identified defendant as the perpetrator. Defendant was
convicted of larceny for the offense involving the theft of the beer, and armed robbery for the
offense involving the theft of the cash. The defense theory at trial was that even if the jury
believed that defendant was the perpetrator, he was not armed during either offense.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that there was no credible evidence that he was armed with a
weapon and, therefore, the evidence was insufficient to support his conviction for armed robbery
in the offense involving the theft of the cash. We disagree.
When ascertaining whether sufficient evidence was presented at trial to support a
conviction, this Court must view the evidence in a light most favorable to the prosecution and
determine whether a rational trier of fact could find that the essential elements of the crime were
proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992),
amended 441 Mich 1201 (1992). Circumstantial evidence and reasonable inferences arising
from the evidence can constitute satisfactory proof of the elements of the crime. People v
Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996).
The elements of armed robbery are (1) an assault, and (2) a felonious taking of property
from the victim’s presence or person, (3) while the defendant is armed with a dangerous weapon
or with an article used or fashioned in such a way as to lead a reasonable person to believe that it
is a dangerous weapon. People v Ford, 262 Mich App 443, 458; 687 NW2d 119 (2004); MCL
750.529. Here, defendant only challenges the third element, arguing that there was insufficient
evidence that he was armed with a dangerous weapon. To establish the armed element, there
must be “some objective evidence of the existence of a weapon or article.” People v Jolly, 442
Mich 458, 468; 502 NW2d 177 (1993). “The existence of some object, whether actually seen or
obscured by clothing or something such as a paper bag, is objective evidence that a defendant
possesses a dangerous weapon or an article used or fashioned to look like one. Related threats,
whether verbal or gesticulatory, further support the existence of a weapon or article.” Id. at 469470.
In this case, the victim testified that defendant approached her at the store counter, put his
hand in his jacket pocket, and pointed a concealed article at her while demanding that she give
him “the green” from the cash register. The victim believed that the concealed article was a gun
and followed defendant’s instructions because she believed that defendant would shoot her.
Defendant’s hand remained in his pocket pointing the concealed article at the victim during the
entire episode. Viewed in a light most favorable to the prosecution, this evidence was sufficient
to enable a rational jury to find beyond a reasonable doubt that defendant was armed with a gun
or an article used or fashioned in such a way as to lead a reasonable person to believe that it was
a gun to support his conviction of armed robbery. Although defendant argues that the victim’s
testimony was not credible, this Court will not interfere with the jury’s role of determining issues
of weight of the evidence and the credibility of the witnesses. Wolfe, 440 Mich at 514. Rather,
this Court must draw all reasonable inferences and make credibility choices in support of the
jury’s verdict. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Further, the jury
had the benefit of viewing the store’s security video recording of the incident from which it
could draw its own conclusions about defendant’s actions. There was sufficient evidence to
sustain defendant’s conviction of armed robbery.
III. CRUEL AND UNUSUAL PUNISHMENT
Defendant next argues that he is entitled to resentencing because his 25-year minimum
sentence for armed robbery, despite being within the sentencing guidelines range, constitutes
cruel and/or unusual punishment, contrary to US Const, Am VIII, and Const 1963, art 1, § 16.
Defendant did not advance a claim below that a sentence within the sentencing guidelines range
would nonetheless be constitutionally cruel or unusual. Therefore, this constitutional claim is
not preserved. We review an unpreserved claim of constitutional error for plain error affecting a
defendant’s substantial rights. People v Carines, 460 Mich 750, 752-753, 763-764; 597 NW2d
Defendant’s sentence for his robbery conviction is within the sentencing guidelines range
of 108 to 360 months. Although MCL 769.34(10) provides that a sentence within the guidelines
range must be affirmed on appeal absent an error in the scoring of the guidelines or reliance on
inaccurate information in determining the sentence, neither of which is alleged to have occurred
here, this limitation on review is not applicable to claims of constitutional error. People v
Conley, 270 Mich App 301, 316; 715 NW2d 377 (2006). But a sentence within the guidelines
range is presumptively proportionate, People v Broden, 428 Mich 343, 354-355; 408 NW2d 789
(1987), and a sentence that is proportionate is not cruel or unusual punishment, People v Terry,
224 Mich App 447, 456; 569 NW2d 641 (1997 . Here, defendant contends that his sentence is
cruel or unusual because of his age (53 years at the time of sentencing). This factor is
insufficient to overcome the presumptive proportionality of defendant’s sentence, especially
considering the substantial criminal record he has accumulated during his lifetime. Because
defendant’s sentence is proportionate, it is not cruel or unusual.
IV. DEFENDANT’S STANDARD 4 BRIEF
Defendant raises several issues in a pro se supplemental brief, filed pursuant to Supreme
Court Administrative Order No. 2004-6, Standard 4, none of which have merit.
Defendant argues that the trial court erred by denying his request to represent himself at
trial. We disagree. This Court reviews a trial court’s factual findings regarding a defendant’s
request for self-representation for clear error, People v Williams, 470 Mich 634, 642; 683 NW2d
597 (2004), and reviews the ultimate decision regarding a defendant’s request for selfrepresentation for an abuse of discretion, People v Hicks, 259 Mich App 518, 521; 675 NW2d
The right of self-representation is guaranteed by the Michigan Constitution and by
statute, but is not absolute. People v Anderson, 398 Mich 361, 366-368; 247 NW2d 857 (1976);
Williams, 470 Mich at 642. Before a defendant may represent himself, the court must determine
that: (1) the defendant’s request is unequivocal; (2) the defendant is asserting his right
knowingly, intelligently, and voluntarily; and (3) the defendant’s self-representation will not
disrupt, unduly inconvenience, and burden the court. People v Russell, 471 Mich 182, 190; 684
NW2d 745 (2004). In addition, pursuant to MCR 6.005, the trial court has a duty to inform the
defendant of the charge and penalty he faces, advise him of the risks of self-representation, and
offer him the opportunity to consult with retained or appointed counsel. MCR 6.005(D)(1). The
trial court need only substantially comply with these requirements, and if the court is uncertain
regarding whether any of the waiver procedures are met, it “should deny the defendant’s request
to proceed in propria persona, noting the reasons for the denial on the record.” Russell, 471
Mich at 191 (citation omitted).
In this case, the trial court denied defendant’s request for self-representation because it
concluded that defendant would unduly disrupt the trial. The record discloses that defendant’s
request for self-representation was made at a pretrial hearing at which defendant continuously
sought to challenge the accuracy of his prior criminal record. The trial court advised defendant
that he would have an opportunity to challenge his prior convictions at an appropriate time, and
directed the prosecutor to take necessary steps to address defendant’s concerns. Despite the trial
court’s assurances that defendant’s prior convictions would not be admitted at trial, defendant
continued to revisit the issue and divert discussions to his prior record instead of focusing on the
immediate issues of trial. Defendant’s insistence on focusing on matters that were not relevant
for trial supports the trial court’s finding that defendant would disrupt and unduly inconvenience
the court if he represented himself at trial. Under these circumstances, the trial court did not err
in denying defendant’s request for self-representation.
Defendant also argues that the trial court erred when it denied his motion to sever the two
offenses for trial. We disagree. A trial court’s determination whether offenses are related and
whether joinder of the offenses for trial is permissible under MCR 6.120(B) is reviewed de novo.
People v Abraham, 256 Mich App 265, 271; 662 NW2d 836 (2003). The trial court’s ultimate
decision is reviewed for an abuse of discretion. People v Duranseau, 221 Mich App 204, 208;
561 NW2d 111 (1997).
MCR 6.120(B) provides:
[T]he court may . . . sever offenses charged in a single information or
indictment against a single defendant, when appropriate to promote fairness to the
parties and a fair determination of the defendant’s guilt or innocence of each
(1) Joinder is appropriate if the offenses are related. For purposes of this
rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain
on the parties’ resources, the potential for confusion or prejudice stemming from
either the number of charges or the complexity or nature of the evidence, the
potential for harassment, the convenience of witnesses, and the parties’ readiness
MCR 6.120(C) provides:
On the defendant’s motion, the court must sever for separate trials
offenses that are not related as defined in subrule (B)(1).
In this case, the evidence showed that both offenses occurred at the same location, were
committed against the same store employee, and occurred on the same date, within a two-hour
time period. The trial court did not err in finding that the offenses were “part of a single scheme
or plan” to steal from the 7-Eleven store, and thus were related under MCR 6.120(B)(1)(c).
Further, severance was not necessary to promote fairness to the parties and a fair determination
of defendant’s guilt or innocence. For each offense, defendant’s primary defense was that he
was not armed and that the victim was not credible. The two offenses were presented
distinctively, and the facts were not complex. Accordingly, the trial court did not abuse its
discretion in joining the offenses for trial.
C. 911 RECORDING
Defendant argues that he was denied his right to due process because the prosecutor
failed to provide an audio recording of the 911 call that was made after the first offense, contrary
to Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). The record discloses
that the trial court directed the prosecutor before trial to obtain the 911 recording if it still
existed. The prosecutor later advised the trial court that he had contacted the police department,
which indicated that it would attempt to provide the recording by the next week. No further
mention of this matter was made before or at trial. Because there is no record that defendant
raised this issue after the prosecutor was initially directed to provide the recording, we consider
this issue unpreserved. Accordingly, our review is limited to plain error affecting defendant’s
substantial rights. Carines, 460 Mich at 752-753, 763-764.
A criminal defendant has a due process right of access to certain information possessed
by the prosecution if that evidence might lead a jury to entertain a reasonable doubt about a
defendant’s guilt. People v Lester, 232 Mich App 262, 280; 591 NW2d 267 (1998), citing
Brady, 373 US 83. “Impeachment evidence as well as exculpatory evidence falls within the
Brady rule because, if disclosed and used effectively, such evidence ‘may make the difference
between conviction and acquittal.”’ Lester, 232 Mich App at 281 (citation omitted). To
establish a Brady violation, a defendant must prove: (1) that the state possessed evidence
favorable to the defendant; (2) that the defendant did not possess the evidence and could not have
obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the
favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the proceedings would have been different. Id. at 281-282.
In this case, there is no indication that the prosecutor either possessed or suppressed the
recording of the 911 call of the first incident. More compelling, however, is that the lack of the
911 recording did not affect the outcome of the case. Defendant sought the recording for the
purpose of showing that the victim did not state that he possessed a weapon during the first
incident, thereby proving that he was not armed. The prosecutor conceded in closing argument
that defendant was not armed during the first incident, and the jury convicted defendant of
larceny from a person. To the extent that defendant sought to attack the victim’s credibility in
this regard, the responding police officer testified that he did not recall the victim mentioning
that defendant was armed or that defendant had his hand in his pocket during the first offense.
Consequently, defendant has failed to show a plain error affecting his substantial rights.
D. OPENING STATEMENT
Next, defendant argues that the trial court erred by allowing the prosecutor to play the
recording of the 911 call made by the victim after the second offense during the prosecutor’s
opening statement. Defendant argues that this was improper because the recording had not yet
been authenticated or admitted as evidence. We disagree.
A trial court’s decision regarding what constitutes a fair and proper opening statement is
reviewed for an abuse of discretion. See People v Buck, 197 Mich App 404, 413; 496 NW2d
321 (1992), rev’d in part on other grounds in People v Holcomb, 444 Mich 853; 508 NW2d 502
(1993). A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes. People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008). “The
purpose of an opening statement is to tell the jury what the advocate proposes to show.” People
v Moss, 70 Mich App 18, 32; 245 NW2d 389 (1976). Here, the prosecutor’s use of the 911 call
during opening statement was designed to show that he intended to prove that the victim stated
that defendant was armed during the second incident. The trial court allowed the prosecutor to
use the recording only after first addressing its admissibility and determining on the basis of the
attorneys’ representations that it would be properly authenticated at trial. Indeed, the 911
recording was later admitted into evidence and played for the jury during the prosecutor’s
presentation of proofs, without objection. The victim identified her voice and testified that the
recording accurately depicted what she told the police. Under the circumstances, the trial court’s
decision to allow the prosecutor to use the recording during opening statement, after first
evaluating its admissibility, was a principled decision and, therefore, not an abuse of discretion.
E. ATTORNEY FEES
We disagree with defendant’s claim that the trial court erroneously ordered him to pay
$400 in attorney fees without inquiring into his ability to pay. Because defendant failed to
challenge the imposition of attorney fees below, we review this unpreserved claim for plain error
affecting his substantial rights. Carines, 460 Mich at 752-753, 763-764.
Previously, the rule in this context was that, before ordering an indigent defendant to
reimburse the county for the cost of his or her court appointed attorney, the trial court was
required to “provide some indication of consideration, such as . . . a statement that it considered
the defendant’s ability to pay.” People v Dunbar, 264 Mich App 240, 254-255; 690 NW2d 476
(2004). However, this rule from Dunbar was overruled in People v Jackson, 483 Mich 271, 275,
290; 769 NW2d 630 (2009), in which our Supreme Court held that “Dunbar was incorrect to the
extent that it required a court to conduct an ability-to-pay analysis before imposing a fee for a
court appointed attorney,” and that “Dunbar’s presentence ability-to-pay rule must yield to the
Legislature’s contrary intent that no such analysis is required at sentencing.” The ability to pay
assessment is only necessary when the “imposition is enforced and the defendant contests his
ability to pay.” Id. at 298. Consequently, because an ability to pay analysis was not required
before imposing attorney fees at sentencing and the imposition of the fees has yet to be enforced,
defendant’s claim necessarily fails.
F. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was denied the effective assistance of counsel at trial. We
disagree. Because defendant did not raise an ineffective assistance of counsel claim in the trial
court, our review is limited to mistakes apparent on the record. People v Ginther, 390 Mich 436,
443; 212 NW2d 922 (1973); People v Sabin (On Second Remand), 242 Mich App 656, 658-659;
620 NW2d 19 (2000). Effective assistance of counsel is presumed and defendant bears a heavy
burden of proving otherwise. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994);
People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective
assistance of counsel, defendant must show that counsel’s performance fell below an objective
standard of reasonableness, and that there is a reasonable probability that the result of the
proceeding would have been different but for counsel’s error. People v Frazier, 478 Mich 231,
243; 733 NW2d 713 (2007).
Defendant argues that defense counsel was ineffective for failing to object to the joinder
of the two armed robbery offenses. Contrary to what defendant argues, the record discloses that
defense counsel did object to the joinder of the two offenses, but the trial court overruled
counsel’s objection. Further, as discussed in section III(B), supra, joinder of the offenses was
appropriate under MCR 6.120(B)(1)(c). Thus, this ineffective assistance of counsel claim cannot
We also find no merit to defendant’s claim that defense counsel was ineffective for
failing to object to the imposition of attorney fees with no analysis of his ability to pay. As
discussed in section III(E), supra, defendant relies on the former rule in Dunbar, 264 Mich App
240, which required an ability to pay analysis before the imposition of attorney fees. Under the
current rule, however, any challenge to the imposition of attorney fees at sentencing based on an
ability to pay would have been premature. Jackson, 483 Mich at 275, 290-292. Counsel was not
required to make a futile request. See People v Snider, 239 Mich App 393, 425; 608 NW2d 502
G. SCORING OF OFFENSE VARIABLE 19
Defendant next argues that he is entitled to resentencing because the trial court
erroneously scored ten points for offense variable (OV) 19 of the sentencing guidelines. We
disagree. We review de novo “[t]he proper interpretation and application of the legislative
sentencing guidelines.” People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008). We
review a trial court’s discretionary determination concerning the calculation of a sentencing
guidelines variable score for an abuse of discretion. People v Hornsby, 251 Mich App 462, 468;
650 NW2d 700 (2002).
Ten points may be scored for OV 19 where “[t]he offender otherwise interfered with or
attempted to interfere with the administration of justice.” Here, the trial court scored ten points
for OV 19 because defendant was untruthful about his prior record at sentencing. Even if it was
improper to score OV 19 on the basis of defendant’s conduct at sentencing, see People v
McGraw, 484 Mich 120, 133, 135; 771 NW2d 655 (2009), resentencing is not required. If zero
points were scored for OV 19, defendant’s total OV score would decrease from 15 to 5 points.
The scoring adjustment would not affect defendant’s placement in OV level I (0 to 19 points),
and his guidelines range would not change. MCL 777.62. Because any scoring error does not
affect the appropriate guidelines range, defendant is not entitled to resentencing. People v
Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).
H. ACCURACY OF THE PRESENTENCE REPORT
Defendant argues that his prior convictions were inaccurately listed in the presentence
report and, as a result, he was not sentenced on the basis of accurate information. We disagree.
We review a trial court’s response to a claim of inaccuracies in the presentence report for an
abuse of discretion. People v Uphaus (On Remand), 278 Mich App 174, 181; 748 NW2d 899
At sentencing, either party may challenge the accuracy or relevancy of any information
contained in the presentence report. MCL 771.14(6); MCR 6.425(E)(1)(b); People v Lloyd, 284
Mich App 703, 705-706; 774 NW2d 347 (2009). If presented with a challenge to the factual
accuracy of information, a court has a duty to resolve the challenge. Uphaus (On Remand), 278
Mich App at 182. The information in the report is presumed to be accurate, and the defendant
has the burden of going forward with an effective challenge. Lloyd, 284 Mich App at 705. Once
a defendant effectively challenges a factual assertion, the prosecutor has the burden of proving
the fact by a preponderance of the evidence. Id. The court may adjourn sentencing to permit the
parties to prepare for or respond to a challenge. Id. The court must allow the parties to be heard
and must make a finding as to the challenge, or determine that a finding is unnecessary because
the court will not consider it during sentencing. MCR 6.425(E)(2).
At sentencing, defendant challenged the accuracy of several of his prior convictions in
the presentence report. The trial court questioned defendant at length to make a record of his
challenges. The court then ordered the prosecutor to take the necessary steps to address
defendant’s claims of inaccuracy and to resolve the matter. When the proceedings resumed, the
prosecutor submitted exhibits and reported his findings regarding the accuracy of the challenged
convictions. Defendant was clearly afforded the opportunity to challenge the accuracy of the
information in the presentence report. The trial court did not abuse its discretion in the manner
in which it resolved defendant’s challenges, nor did it err in concluding that the presentence
report was accurate in light of the supporting evidence produced by the prosecutor.
Within this issue, defendant also argues that PRV 5 (prior misdemeanor convictions) was
improperly scored at 20 points. Because defendant did not challenge the scoring of PRV 5 at
sentencing or in an appropriate post-sentencing motion, this issue is not preserved and our
review is limited to plain error affecting his substantial rights. People v Kimble, 470 Mich 305,
309-310; 684 NW2d 669 (2004). MCL 777.55(1)(a) states that 20 points are to be scored for
PRV 5 if the offender has “7 or more prior misdemeanor convictions or prior misdemeanor
juvenile adjudications.” A conviction or adjudication is counted “only if it is an offense against
a person or property, a controlled substance offense, or a weapon offense.” MCL 777.55(2)(a).
Defendant contends that although there are 21 prior misdemeanor convictions listed in his
presentence report, nine of those convictions “do not fit the criteria set forth in MCL
777.55(2)(a).” Even accepting defendant’s argument as correct, that still leaves more than seven
misdemeanor convictions available to score PRV 5. Consequently, there was no plain error.
/s/ Deborah A. Servitto
/s/ Brian K. Zahra
/s/ Pat M. Donofrio