PEOPLE OF MI V TREVOR STEVEN PASSAGE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 13, 2007
9:00 a.m.
Plaintiff-Appellee,
v
No. 271655
Kalamazoo Circuit Court
LC No. 05-002119-FH
TREVOR STEVEN PASSAGE,
Defendant-Appellant.
Advance Sheets Version
Before: Murphy, P.J., and Smolenski and Meter, JJ.
MURPHY, P.J.
Defendant was convicted by a jury of robbery, MCL 750.530, and sentenced as an
habitual offender, fourth offense, MCL 769.12, to a prison term of 50 months to 20 years.
Defendant appeals as of right. We affirm.
This case arises out of a theft of a car stereo from a Meijer's store and defendant's
physical altercation and struggle with the store's loss-prevention officer and other employees
outside the store after defendant was confronted about the unpaid merchandise.
Defendant first argues that the trial court erred in denying his motion for a directed
verdict, alleging there was insufficient evidence to show that defendant used force and violence
during the robbery as contemplated by MCL 750.530.
This Court reviews a trial court's decision on a motion for a directed verdict de novo.
People v Mayhew, 236 Mich App 112, 124-125; 600 NW2d 370 (1999). 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, 515-516; 489 NW2d 748 (1992), amended 441 Mich 1201
(1992). This Court will not interfere with the trier of fact's role of determining the weight of the
evidence or the credibility of witnesses. Id. at 514-515. Circumstantial evidence and reasonable
inferences that arise from such evidence can constitute satisfactory proof of the elements of the
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crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). All conflicts in the
evidence must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452;
569 NW2d 641 (1997).1
MCL 750.530 provides:
(1) A person who, in the course of committing a larceny of any money or
other property that may be the subject of larceny, uses force or violence against
any person who is present, or who assaults or puts the person in fear, is guilty of a
felony punishable by imprisonment for not more than 15 years.
(2) As used in this section, "in the course of committing a larceny"
includes acts that occur in an attempt to commit the larceny, or during
commission of the larceny, or in flight or attempted flight after the commission of
the larceny, or in an attempt to retain possession of the property.
Defendant contends that the evidence presented showed that he was merely trying to
evade capture by wrestling himself free, and not that he was directing any force or violence at
any person outside of that context. This argument lacks merit. The statute's clear and
unambiguous language punishes a defendant for using force or violence, committing an assault,
or placing a person in fear during flight or attempted flight after the larceny was committed.2
The statute makes no distinction between using force to evade capture as part of a physical
struggle against pursuers in an effort to break free from their grasp or attempts at restraint and
force used affirmatively and not within that context. Rather, the use of any force against a
person during the course of committing a larceny, which includes the period of flight, is
sufficient under the statute. "Force" is nothing more than the exertion of strength and physical
power. Random House Webster's College Dictionary (2001). Exerting strength and physical
power to free oneself from another's grasp constitutes "force" under MCL 750.530. There was
evidence that defendant engaged in the use of force during flight, or attempted flight, by
1
These principles are equally applicable in the context of an argument that the court erred in
denying a motion for a directed verdict. People v Aldrich, 246 Mich App 101, 122-123; 631
NW2d 67 (2001).
2
Issues of statutory interpretation are reviewed de novo on appeal. Feyz v Mercy Mem Hosp,
475 Mich 663, 672; 719 NW2d 1 (2006). Our primary task in construing a statute is to discern
and give effect to the intent of the Legislature. People v Tombs, 472 Mich 446, 451; 697 NW2d
494 (2005); Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275 (2004). The
words contained in a statute provide us with the most reliable evidence of the Legislature's
intent. Id. at 549. In ascertaining legislative intent, this Court gives effect to every word, phrase,
and clause in the statute. Id. If the wording or language of a statute is unambiguous, the
Legislature is deemed to have intended the meaning clearly expressed, and we must enforce the
statute as written. Tombs, supra at 451; Shinholster, supra at 549. "A necessary corollary of
these principles is that a court may read nothing into an unambiguous statute that is not within
the manifest intent of the Legislature as derived from the words of the statute itself." Roberts v
Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002).
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physically struggling with Meijer's personnel and attempting to kick them. Therefore, there was
sufficient evidence to support the robbery conviction, given that there is no dispute that
defendant committed a larceny.
Defendant next argues that the trial court erred in assessing points for offense variable
(OV) 19, MCL 777.49, which concerns interference with the administration of justice, because
the Meijer's employees were private citizens trying to prevent shoplifting, not police officials
attempting to administer justice.
OV 19 specifically addresses threats "to the security of a penal institution or court or
interference with the administration of justice or the rendering of emergency services." MCL
777.49. In this case, the trial court assessed 15 points against defendant. MCL 777.49(b)
provides that 15 points should be scored where "[t]he offender used force or the threat of force
against another person or the property of another person to interfere with, attempt to interfere
with, or that results in the interference with the administration of justice or the rendering of
emergency services."
Defendant does not argue that his actions in resisting detention did not interfere with the
efforts of store personnel to prevent him from leaving the premises with unpaid store property.
Rather, defendant argues that interference with store employees does not constitute interference
with the administration of justice.
Because "interference" is conceded by defendant, and because "force" was used by
defendant as part of the interference, the question that we are left with is whether the activities of
Meijer's personnel can be deemed participation in the "administration of justice."
Our Supreme Court has determined that the phrase "interfered with or attempted to
interfere with the administration of justice" is broader than the concept of obstruction of justice
and that conduct subject to scoring under OV 19 "does not have to necessarily rise to the level of
a chargeable offense . . . ." People v Barbee, 470 Mich 283, 287; 681 NW2d 348 (2004). The
Court additionally declared that "[l]aw enforcement officers are an integral component in the
administration of justice, regardless of whether they are operating directly pursuant to a court
order." Id. at 288. The Court added that because "[t]he investigation of crime is critical to the
administration of justice[,] . . . [p]roviding a false name to the police constitutes interference
with the administration of justice, and OV 19 may be scored, when applicable, for this conduct."
Id.
For present purposes, the major significance of Barbee is that it makes clear that
interfering with a police officer's attempt to investigate a crime constitutes interference with the
administration of justice. Defendant protests that unlike the law enforcement officers considered
in Barbee, the store employees are not an integral component in the administration of justice.
One of the individuals who chased, physically scuffled with, and apprehended defendant
was the store's loss-prevention officer, and the others involved were all store personnel who held
various positions. MCL 764.16(d) provides that a private person may make an arrest
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[i]f the private person is a merchant, an agent of a merchant, an employee of a
merchant, or an independent contractor providing security for a merchant of a
store and has reasonable cause to believe that the person to be arrested has
[committed first- or second-degree retail larceny] in that store, regardless of
whether the [crime] was committed in the presence of the private person.
Here, Meijer's loss-prevention officer and his colleagues were statutorily authorized to
make an arrest, considering that they were employees of a merchant and had reasonable cause to
believe that defendant had committed retail larceny. Therefore, Meijer's personnel were clearly
engaged in the administration of justice for purposes of MCL 777.49. Defendant vigorously
resisted and threatened store employees who were acting under explicit statutory authority to
place defendant under arrest. Defendant thus interfered, or tried to interfere, with the
administration of justice.
We further note that MCL 777.49(b) speaks of using force or threatening force against
another "person," without limiting the direction of the force or threat to acts against police
officers. Indeed, in People v Endres, 269 Mich App 414, 420-422; 711 NW2d 398 (2006), this
Court found that a score of 15 points for OV 19 was proper where the defendant threatened to
kill the victim, knowing that the victim would be the primary witness against the defendant
should criminal charges be filed. The Endres panel stated, "There was sufficient evidence to
conclude that because of defendant's threats, his victim might have been dissuaded from coming
forward with accusations and testimony, thus preventing the discovery and prosecution of
defendant's crimes." Id. at 421.
Here, defendant, as he was being taken to the loss-prevention office, threatened the lossprevention officer, stating, "I better not see you outside of this f*****g place." Implicit in this
threat is the use of subsequent physical force against the loss-prevention officer, which could
have dissuaded the officer from testifying against defendant. This is comparable to the situation
in Endres.
In sum, for the reasons stated above, the trial court properly scored OV 19 at 15 points.
Affirmed.
/s/ William B. Murphy
/s/ Michael R. Smolenski
/s/ Patrick M. Meter
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