PEOPLE OF MI V THOMAS CARGIL WALLSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
April 7, 2005
Oakland Circuit Court
LC No. 2002-184922-FC
THOMAS CARGILL WALLS,
Official Reported Version
Before: Fort Hood, P.J. and Griffin and Donofrio, JJ.
DONOFRIO, J. (concurring in the result).
While I agree that defendant's convictions in this case should be affirmed, I write
separately because I respectfully disagree with the majority's conclusion that felonious assault,
MCL 750.82, is at all times and under all circumstances a cognate offense of assault with intent
to rob while armed, MCL 750.89.
This Court has stated that felonious assault is a necessarily included lesser offense of
assault with intent to rob while armed. People v Stubbs, 110 Mich App 287, 291; 312 NW2d
232 (1981).1 Felonious assault requires the defendant to be armed, while an unarmed defendant
could be convicted of assault with intent to rob while armed, provided that the defendant
fashioned an article that was not actually a weapon "in a manner to lead a person so assaulted
reasonably to believe it to be a dangerous weapon . . . ." MCL 750.89. In effect, I believe MCL
750.89 provides two separate avenues to conviction. The first avenue requires the actual use of a
weapon and the second avenue requires only the impression of a dangerous weapon. I can
readily envision a scenario in which an assailant could commit assault with intent to rob while
armed by holding his empty hand in his jacket pocket to look like a gun and demanding money.
Such an assailant would not be guilty of felonious assault because, according to the plain
language of MCL 750.82, the felonious assault statute requires the assailant to be armed with a
weapon. See People v Stevens, 409 Mich 564, 566-567; 297 NW2d 120 (1980). Therefore, it is
I recognize, as the majority points out, that Stubbs predates our Supreme Court's recent
holdings in People v Cornell, 466 Mich 335; 646 NW2d 127 (2002), and People v Mendoza, 468
Mich 527; 664 NW2d 685 (2003), but I do not find its holding to be contrary to either case.
Further, I do not believe the analyses required by either Cornell or Mendoza renders Stubbs
obsolete or in any way requires the result the majority suggests in the instant case.
my conclusion that it is possible to commit the greater offense without actually committing the
lesser offense under the second avenue for conviction of assault with intent to rob while armed
pursuant to MCL 750.89.
Accordingly, my view is that, depending on the theory advanced by the prosecution,
felonious assault could be characterized as either a necessarily included lesser offense of assault
with intent to rob while armed or a cognate offense of assault with intent to rob while armed.
Since here, the prosecution's theory was that defendant did possess an actual firearm during the
commission of the crime, defendant cannot be found guilty of the greater offense without
committing the lesser offense. Cornell establishes that a requested instruction on a necessarily
included lesser offense cannot be given unless conviction for the greater offense would require
the jury to "find a disputed factual element that is not part of the lesser included offense," and a
rational view of the evidence would support the instruction. Cornell, 466 Mich at 357. As such,
felonious assault would be considered a necessarily included lesser offense of assault with intent
to rob while armed, and defendant has established the first requirement in the analysis required
Since I concluded that, in this particular case, felonious assault is a necessarily included
lesser offense of the crime charged, the issue then becomes whether the fact-finder would have
needed "to find a disputed factual element that is not part of the lesser included offense" in order
to convict for the greater offense and whether a rational view of the evidence would support a
conviction of the lesser offense. Cornell, 466 Mich at 357. The actual use of a firearm is the
similar element in both assault with intent to rob while armed and felonious assault. The
disparate element in the crime of assault with intent to rob while armed is the intent to rob. MCL
750.89. An intent to rob is not required for a felonious assault conviction. MCL 750.82. Intent
to rob was disputed; therefore, a rational view of the evidence would support the felonious
assault instruction. Cornell, 466 Mich at 357, 361.
At trial, Mr. Rodrico Grimes testified that defendant put the gun into his ribs and
demanded money. Evidence contesting Mr. Grimes's testimony is defendant's out-of-court
statement to the police. In his statement, which was read into evidence, defendant denied
drawing his pistol or pointing it at Mr. Grimes and denied asking Mr. Grimes for money.
Defendant additionally claims that the jury could have convicted him of felonious assault
because Mr. Grimes testified that defendant never orally "threatened to do any harm to him, did
not hurt him or did not order him to exit the vehicle," and because "[a]ll parties agree that
Defendant did not take [or] receive anything from Mr. Grimes." It is my conclusion after
reviewing the record that because there was contradictory evidence regarding the issue of intent,
the trial court erred in refusing the requested instruction on felonious assault.
However, as a result of instructional error, this Court is required to engage in a harmless
error analysis. "[H]armless error analysis is applicable to instructional errors involving
necessarily included lesser offenses . . . ." Cornell, 466 Mich at 361. Preserved nonconstitutional
error in failing to give a lesser offense instruction in a criminal case does not warrant reversal
unless it is more probable than not that it undermined the reliability of the verdict. Id. at 363364. Additionally, the reliability of the verdict would be undermined only if "there is substantial
evidence to support the requested instruction . . . ." Id. at 365. To have convicted defendant of
assault with intent to rob while armed, the jury must have believed Mr. Grimes's testimony that
defendant demanded money while armed because the prosecution offered no other evidence to
prove the element of an intent to rob. In order to convict defendant of felonious assault, the jury
would have needed to believe defendant's statement that he never demanded money, while not
believing defendant's statement that he never drew his pistol. It would be irrational for the jury
to arbitrarily credit only the former portion of defendant's statement in such a manner.
Mr. Grimes's testimony that defendant did not orally threaten to harm him cannot be
considered substantial evidence that defendant lacked an intent to rob him in light of Mr. Grimes'
testimony that defendant put a gun to his ribs and demanded money. Furthermore, defendant's
self-serving statements to the police that he never pointed a gun at Mr. Grimes, threatened him,
or asked for money, do not support a finding of felonious assault because the statements do not
indicate that defendant assaulted Mr. Grimes without an intent to rob, but, instead, would support
the claim that no assault ever occurred.
/s/ Pat M. Donofrio