IN RE TIMNELL MONTGOMERYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
In Re TIMNELL MONTGOMERY, a Minor.
PEOPLE OF THE STATE OF MICHIGAN,
June 19, 1998
Wayne Probate Court
LC No. 94-313827
Before: Fitzgerald, P.J., and Holbrook, Jr., and Cavanagh, JJ.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA
28.797, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2),
unlawfully driving away an automobile, MCL 750.413; MSA 28.645, malicious destruction of personal
property over $100, MCL 750.377a; MSA 28.609(1), carrying a concealed weapon, MCL 750.227;
MSA 28.424, and assault with intent to murder, MCL 750.83; MSA 28.278. As a juvenile offender,
defendant was committed to the Department of Social Services. Defendant’s commitment is scheduled
to be reviewed on January 7, 1999. We affirm.
Defendant raises a two pronged attack on the sufficiency of the evidence underlying his
convictions. “In determining whether sufficient evidence has been presented to sustain a conviction, an
appellate court is required to view the evidence in a light most favorable to the prosecution [to] . . .
determine whether a rational trier of fact could have found that the essential elements of the crime were
proven beyond a reasonable doubt.” People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994).
“Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the
elements of a crime.” People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993). Any questions
regarding credibility of witnesses are properly left to the trier of fact. People v Velasquez, 189 Mich
App 14, 16; 472 NW2d 289 (1991).
First, defendant argues that with regard to each crime for which he was convicted, there was
insufficient evidence to support the finding that it was defendant who committed those crimes. We
disagree. At trial, the complaining witness identified defendant as the perpetrator of these crimes. He
also testified that he had previously identified defendant at the preliminary examination as being the
perpetrator. Further, one of the arresting officers identified defendant as the man he saw standing next
to the complaining witness, and later saw running away from the scene on the night in question. We
believe this evidence is more than sufficient to establish that defendant was indeed the perpetrator of
Defendant also argues that the evidence was insufficient to support his conviction for assault
with intent to murder. We again disagree. “The elements of assault with the intent to commit murder
are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing
murder. Circumstantial evidence and reasonable inferences arising from the evidence may constitute
satisfactory proof of the elements of the offense.” People v Lawton, 196 Mich App 341, 350; 492
NW2d 810 (1992) (citation omitted). The complaining witness testified that as he approached his
stalled car, he saw an individual exit from the passenger side and run into an area that separated two
nearby homes. After reaching his car a few moments later, he testified that he observed the silhouette of
an individual in that area. As he stood beside his stalled car, the complaining witness heard a gunshot.
Turning in the direction of the sound, he “saw the flash from a gun or something” emanating from the
passage between these same two nearby homes.
We believe -- when viewed in a light most favorable to the prosecution -- this evidence is
sufficient to sustain defendant’s conviction of assault with intent to commit murder. There was evidence
adduced at trial to support the presumption that it was defendant who had exited the car and run
between the two homes. We believe, therefore, that a reasonable jury could infer that it was
defendant’s silhouette that the complaining witness observed moments later in the darkened area
between the two homes. Because the complaining witness heard a gunshot and saw a flash of light
originate in the darkened area where he had just observed defendant’s silhouette, we also believe a
reasonable jury could infer that defendant had discharged a firearm, and thus had committed an assault.
Further, given that defendant had aimed and fired a deadly weapon at the complaining witness from a
relatively close distance, we believe that a jury could justifiably conclude from this evidence that
defendant had acted with the requisite specific intent. See Lawton, supra at 350 (observing that
“‘“[t]he intent to kill may be proved ‘[by] inference from any facts in evidence,’”’” quoting People v
Drayton, 168 Mich App 174, 177; 423 NW2d 606 , quoting Roberts v People, 19 Mich 401,
416 , quoting People v Scott, 6 Mich 287, 295 ); People v Strong, 143 Mich App 442,
452; 372 NW2d 335 (1985) (observing that “minimal circumstantial evidence is sufficient to sustain a
conclusion that a defendant entertained the requisite intent”). Finally, we believe a reasonable jury could
conclude that had the complaining witness been shot and killed, the intent with which defendant acted
would make the killing murder.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh