PEOPLE OF MI V TYWAN LEANELL IVERSONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 27, 1998
Genesee Circuit Court
LC No. 96-054223 FC
TYWAN LENNELL IVERSON,
Before: Bandstra, P.J., and Griffin and Young, Jr., JJ.
Following a jury trial, defendant was convicted of assault with intent to commit murder, MCL
750.83; MSA 28.278, assault with intent to do great bodily harm less than murder, MCL 750.84;
MSA 28.279, and possession of a firearm during the commission of a felony, MCL 750.227b(1); MSA
28.424(2)(1). Defendant was sentenced to twenty-five to forty years’ imprisonment for the conviction
of assault with intent to commit murder, six to ten years’ imprisonment for the conviction of assault with
intent to do great bodily harm less than murder, and two years’ imprisonment for the felony-firearm
conviction. Defendant appeals as of right. We affirm.
First, defendant argues that the trial court’s instructions on intoxication misled the jury.
Defendant takes issue with the following paragraph of the intoxication instructions, which immediately
followed the instructions given on intoxication as it related to specific intent:
But you should know that voluntarily [sic] intoxication, in itself, is not a defense
in itself. It doesn’t excuse the Defendant if he commits the crime. But the reason that
we talk about the use of alcohol only relates to specific intent. And it’s not proper to
say well, I’m going to go on and drink as much as I can and then I won’t be responsible
for anything I do. The law doesn’t allow that.1
Defendant contends that the inclusion of the instruction regarding intoxication and general intent crimes
negated the instructions concerning intoxication and specific intent crimes because the trial court failed to
limit the general intent instruction to the crime of felony-firearm.
Defendant failed to preserve this issue by objecting to the jury instructions. Therefore, the issue
is not preserved for appeal, and this Court may review the issue only if defendant was caused manifest
injustice. People v Haywood, 209 Mich App 217, 230; 530 NW2d 497 (1995). This Court reviews
jury instructions in their entirety to determine whether there is an error requiring reversal. People v
Daniel, 207 Mich App 47, 53; 523 NW2d 830 (1994). “The instructions must include all elements of
the charged offense and must not exclude material issues, defenses, and theories, if there is evidence to
support them.” Id. If the instructions presented the issues fairly and sufficiently protected defendant’s
rights, there is no error even if the instructions are imperfect. Id.
We conclude that when the instructions are considered in their entirety, defendant was not
caused manifest injustice by the instruction. The trial court instructed the jury on the crimes of assault
with intent to commit murder, assault with intent to do great bodily harm less than murder, assault with a
dangerous weapon, and intentionally pointing a firearm without malice. The instructions for each crime
included an explanation of the requisite intent. The trial court also instructed the jury on specific intent.
The instruction with which defendant takes issue explains that intoxication relates only to specific intent.
Therefore, the instruction did not negate the preceding instructions that were given on intoxication as a
defense to the specific intent crimes.
Defendant also argues that he was caused manifest injustice by the trial court’s instruction
regarding his testimony. After instructing the jury on witness and police credibility, the trial court stated:
Now, let’s talk about the position of the Defendant. The Defendant has testified
in this case, as you do know. He had [sic] an absolute right to testify if he wants to.
Now, when he takes the stand, he takes the stand under the same rules as does
anybody else. He’s sworn to tell the truth. You subject his testimony to the same
review as you would that of any other witness, including the fact that he does, obviously,
have a direct interest in the outcome of this litigation or this lawsuit.
And that’s a factor you may want to take into consideration in determining his
testimony. You have an absolute right to do that.
Defendant argues that giving this instruction constitutes error requiring reversal because it led the jury to
consider defendant’s testimony differently from that of other witnesses. Defendant failed to object to
In People v Nash, 61 Mich App 708, 715; 233 NW2d 153 (1975), the trial court instructed
the jury in part:
Where, as in this case, the defendant takes the witness stand, it is your duty to
treat his testimony fairly and weigh it carefully just as you do the testimony of other
witnesses in the case, remembering, however, that he is the defendant in the case and
that he has an interest in the outcome of the case.
This Court concluded that the instruction was proper. Id. However, in People v Beck, 96 Mich App
633, 637; 293 NW2d 657 (1980), this Court criticized the Nash decision and disapproved of the
following instruction, noting that it did not fairly instruct the jury to weigh the defendant’s testimony in
light of all other facts and circumstances:
The defendant took the stand and testified. The defendant has a right to take
the stand and become a witness in his own behalf and it is your duty to consider his
testimony by the same standards as you would that of any other witness who has
appeared on the stand; however, you must take into account the fact that he is the
defendant and has an interest in the outcome of the case.
The Court in Beck concluded that this instruction could lead the jury to consider the defendant’s
testimony differently from that of any other witnesses. Id.
Subsequently, in People v Seabrooks, 135 Mich App 442, 453; 354 NW2d 374 (1984), this
Court distinguished Beck and held that it was not improper to instruct the jury “that they could consider
defendant’s interest in the outcome of the case and the reasonableness of his testimony in light of all
the evidence” (emphasis added). This Court noted that the trial court had instructed the jury that it was
to consider all the evidence and the testimony from all witnesses, that the jury should consider the
defendant’s testimony in the same manner that it considered the testimony of other witnesses, and that it
could consider factors that could affect the witnesses’ observations. Id. Thus, this Court concluded
that when viewed in their entirety, the instructions, “did not create a danger that the jury would view
defendant’s testimony differently from the testimony of the police.” Id.2
We conclude that the present case is analogous to Seabrooks and that defendant was not
caused manifest injustice by the complained-of instruction because, when the instructions are viewed in
their entirety, the instruction did not create a danger that the jury would view defendant’s testimony
differently from the testimony of other witnesses. First, we note that unlike the trial court in Beck, the
trial court in the present case did not instruct the jury that it must consider defendant’s interest in the
case, but that it may consider defendant’s interest in evaluating his testimony. Further, similar to
Seabrooks, the instructions given by the trial court in the present case included instructions that the jury
was to evaluate testimony in light of all the evidence. The court instructed the jury that it was the jury’s
job to decide the facts by analyzing and weighing all the evidence or testimony and that reasonable
doubt was “a doubt that is reasonable after a fair and a careful and a considered examination of all the
facts in the case.” Moreover, in giving the witness credibility instruction, the trial court informed the jury
that it “should think about all the other evidence when you review the testimony of witnesses.”
Therefore, we conclude that the instructions sufficiently protected defendant’s rights, and he was not
caused manifest injustice.
Next, defendant argues that the trial court abused its discretion by admitting evidence that he
had “whooped” his girlfriend with a belt. Defendant contends that the evidence was irrelevant, and trial
counsel objected to the prosecutor’s question regarding earlier disputes between defendant and his
girlfriend on this ground. The trial court’s decision to admit or exclude evidence is reviewed for an
abuse of discretion. People v Lugo, 214 Mich App 699, 709; 542 NW2d 921 (1995). The trial
court abuses its discretion only “when an unprejudiced person, considering the facts on which the trial
court acted, would say there was no justification or excuse for the ruling made.” Id.
We conclude that the trial court did not abuse its discretion by admitting the evidence because
the evidence was relevant. As defined by MRE 401, relevant evidence is evidence “having any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Stated another way, the
evidence must be material and probative. People v Mills, 450 Mich 61, 66-67; 537 NW2d 909,
modified 450 Mich 1212 (1995). According to Atkinson, defendant “whooped” Trice with a belt
earlier in the day when she tried to go to the grocery store with Atkinson and Keaton, the two victims in
this case. Thus, the evidence was relevant to defendant’s motive, intent, and state of mind at the time of
the shooting because it helped to explain the events leading to the shooting. Therefore, the trial court
did not abuse its discretion by admitting the evidence.
Finally, defendant contends that his sentence is disproportionate and that the trial court abused
its discretion by exceeding the guidelines because it primarily relied on the injury to defendant’s brother
as a reason for enhancing the sentence for the crime committed against Keaton, 3 thus circumventing the
ten-year maximum punishment set by the Legislature for defendant’s conviction of assault with intent to
do great bodily harm.
This Court reviews a sentence imposed by the trial court for an abuse of discretion. The
sentence must be proportionate to the seriousness of the crime and defendant’s background. People v
Phillips (On Rehearing), 203 Mich App 287, 290; 512 NW2d 62 (1994). The sentencing court may
depart from the sentencing guidelines where the guidelines are not proportionate to the seriousness of
the crime or the defendant’s criminal background. People v Milbourn, 435 Mich 630, 656-657; 461
NW2d 1 (1990). Departures may be appropriate if the guidelines do not adequately reflect important
facts that may legitimately be considered. Phillips, supra at 291.
In the present case, the guidelines’ range for defendant’s minimum sentence for his conviction of
assault with intent to commit murder was eight to fifteen years. Pursuant to statute, the maximum
sentence for defendant’s conviction of assault with intent to do great bodily harm less than murder was
ten years. MCL 750.84; MSA 28.279. Defendant received sentences of twenty-five to forty years’
imprisonment and six to ten years’ imprisonment for his respective convictions. The sentencing court
stated that it departed from the guidelines because defendant senselessly shot his brother in the back,
resulting in lifetime paralysis, and because defendant attempted to shoot Keaton in the head and
continued to shoot at her after she entered the bathroom.
Assuming without deciding that the trial court improperly emphasized the injury to defendant’s
brother when it sentenced defendant on the assault with intent to commit murder conviction, we
nevertheless conclude that the sentencing court did not abuse its discretion by imposing a twenty-five to
forty-year sentence for this conviction. The trial court had sufficient reasons to sentence outside of the
guidelines’ range based on the nature and the severity of the crime against Keaton. See People v
Hunter, 176 Mich App 319, 321; 439 NW2d 334 (1989). As stated by the sentencing court,
defendant aimed and shot Keaton in the head and continued to fire shots at her through the door after
she fled to the bathroom. After hearing no shots or noise for several minutes, Keaton opened the door
in an attempt to seek help for herself and, upon seeing her, defendant again fired another shot at
Keaton’s head, striking her again in the head. The court did not abuse its discretion in exceeding the
guidelines because the standard scoring failed to appropriately weigh the severity of defendant’s actions.
See People v Granderson, 212 Mich App 673, 680-681; 538 NW2d 471 (1995).
/s/ Richard A. Bandstra
/s/ Richard Allen Griffin
/s/ Robert A. Young, Jr.
Defendant acknowledges that this instruction was based on CJI2d 6.1, General Intent—Intoxication Is
Not a Defense, which states:
There has been some evidence that the defendant was voluntarily intoxicated
with alcohol or drugs when the alleged crime was committed. Voluntary intoxication is
not a defense to [the crime charged here / the crime of ______]. So it does not excuse
the defendant if [he/she] committed this crime.
The defendant in Seabrooks was contesting the omission of a requested instruction on the credibility of
The jury convicted defendant of assault with intent to murder Keaton and of assault with intent to do
great bodily harm to Atkinson.