PEOPLE OF MI V ROBERT D BENTON
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 24, 1997
Plaintiff-Appellee,
v
No. 181127
Oakland Circuit Court
LC No. 94-131816
ROBERT D. BENTON,
Defendant-Appellant.
Before: Markman, P.J., and McDonald and M. J. Matuzak*, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to rob while armed, MCL
750.89; MSA 28.284, armed robbery, MCL 750.529; MSA 28.797, possession of a short-barreled
shotgun, MCL 750.224b; MSA 28.421(2), two counts of possession of a firearm during the
commission of a felony, second offense, MCL 750.227b; MSA 28.424(2), and habitual offender,
fourth offense, MCL 769.12; MSA 28.1084. Each of defendant’s sentences were vacated except for
the habitual offender conviction for which he received life imprisonment. Defendant now appeals as of
right. We affirm.
On the afternoon of February 9, 1994, Dorothy Desmond was approached in a parking lot by a
man she later identified as defendant. Defendant pointed a gun at Desmond, demanded her money and
told her not to make any noise. Desmond fell when defendant grabbed her. Defendant began dragging
her away from her car, when a witness leaving a nearby building approached the scene and began
shouting. Thereafter, defendant fled to the parking lot of another building.
Shortly thereafter defendant approached Analya Callendar, who was in her car in the second
parking lot. He showed Callendar a gun and told her to “[p]ut the keys in the ignition and move over.”
Callendar refused to comply with defendant’s demands. She began to scream and took money from
her wallet to give to defendant. He hit her on her face and head with the gun and tried to take her
* Circuit judge, sitting on the Court of Appeals by assignment.
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wedding band. Defendant got out of Callendar’s car and ran. Defendant's gun was found near
Callendar’s car.
On appeal defendant first claims his convictions should be reversed because the on-the-scene
lineup conducted by the police shortly after he was apprehended was deficient. However, defendant’s
failure to object to the on-the-scene identification testimony at trial, limits our review to whether the
testimony was decisive of the outcome of the trial or otherwise prejudicial to defendant. People v
Grant, 445 Mich 535; 520 NW2d 123 (1994). We find the testimony was properly admitted because
there was not very strong evidence defendant was the culprit before the lineup, People v Turner, 120
Mich App 23; 328 NW2d 5 (1982). However we also conclude, even if improperly admitted, any
testimony regarding the on-the-scene identification was not decisive of the outcome of the trial or
prejudicial to defendant in light of the later identification of defendant at the formal lineup by a witness
who was not present at the on-the-scene lineup.
Next, defendant contends the trial court erred in failing to grant his motion for severance of the
charges relating to the two assaults. We review the trial court’s denial of a defendant’s motion for
severance for an abuse of discretion. People v McCray, 210 Mich App 9; 533 NW2d 359 (1995).
MCR 6.120(B) provides counts may be joined if they share a series of connected acts or constitute part
of a single scheme or plan. See People v Tobey, 401 Mich 141; 257 NW2d 537 (1977); People v
Terry Miller, 165 Mich App 32; 418 NW2d 668 (1987). We find defendant’s acts were sufficiently
connected to classify them as a series of acts constituting a single scheme or plan. Defendant waited for
his first victim to complete her dental appointment then assaulted her with a sawed-off shotgun. After
fleeing the scene he proceeded to rob and assault his second victim apparently with hopes of fleeing in
her vehicle rather than on foot. The trial court did not abuse its discretion in denying defendant’s motion
for severance.
Defendant next claims the prosecution’s failure to call certain endorsed and res gestae witnesses
denied him a fair trial. Defendant has not properly preserved this issue for our review because he did
not object or move for a new trial on this basis. People v Simpson, 207 Mich App 560; 526 NW2d
33 (1994). We decline to address the issue because we find no manifest injustice occurred. People v
Cheatam, 135 Mich App 620; 354 NW2d 282 (1984).
Defendant also contends his sentence is disproportionate. We disagree. This Court reviews a
trial court’s imposition of the defendant’s sentence for an abuse of discretion. People v Merriweather,
447 Mich 799; 527 NW2d 460 (1994). A sentence must be proportionate to the seriousness of the
offense and the background of the offender. People v Milbourn, 435 Mich 635; 461 NW2d 1
(1990).
Defendant was sentenced as an habitual offender. Although the defendant was sentenced within
the guidelines recommended sentence, the guidelines do not apply to habitual offenders, People v
Cervantes, 448 Mich 620; 532 NW2d 831 (1995). Defendant has not provided any unusual
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circumstances that show the sentence to be disproportionate in light of his habitual offender status and
the violent nature of the instant offenses. People v Piotrowski, 211 Mich App 527; 536 NW2d 293
(1995). The court did not abuse its discretion in sentencing him to life imprisonment.
Finally we reject the claims raised by defendant is his supplemental brief. Defendant has failed
to overcome the presumption he was afforded effective assistance of counsel. People v Armendarez,
188 Mich App 61; 468 NW2d 893 (1991). Moreover, even assuming defendant’s counsel’s
performance was deficient in any of the areas suggested by defendant, defendant failed to show
prejudice resulting from the allegedly deficient conduct. People v Pickens, 446 Mich 298; 521 NW2d
797 (1994). We also reject defendant’s claim he was denied his right to a fair trial because he was
“forced” to wear a red wrist band during trial. No objection was made below, nor does defendant
assert he ever requested the band be removed.
Affirmed.
/s/ Stephen J. Markman
/s/ Gary R. McDonald
/s/ Michael J. Matuzak
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