PEOPLE OF MI V WILLIE WRIGHT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 22, 1999
Plaintiff-Appellee,
v
No. 203761
Recorder’s Court
LC No. 96-502450
WILLIE WRIGHT,
Defendant-Appellant.
Before: Hoekstra, P.J., and Doctoroff and O’Connell, JJ.
PER CURIAM.
Defendant was convicted by a jury of assault with intent to do great bodily harm less than
murder, MCL 750.84; MSA 28.279. The trial court sentenced defendant, as a second habitual
offender, MCL 769.10; MSA 28.1082, to a term of imprisonment of seven and one-half to fifteen
years. Defendant appeals as of right. We affirm.
Defendant argues that the trial court committed error requiring reversal when it refused
defendant’s request for jury instructions on intoxication and the use of non-deadly force in self-defense.
We disagree. This Court reviews jury instructions in their entirety to determine if there is error requiring
reversal. People v Daniel, 207 Mich App 47; 53; 523 NW2d 830 (1994). Instructions must cover
each element of each offense charged, along with all material issues, defenses, and theories that have
evidentiary support. Id. Conversely, an instruction should not be given that is without evidentiary
support. People v Johnson, 171 Mich App 801, 804; 430 NW2d 828 (1988). In any event,
imperfect instructions do not require reversal if they fairly presented the issues to be tried and
adequately protected the rights of the accused. People v Perez-DeLeon, 224 Mich App 43, 53; 568
NW2d 324 (1997).
In the instant case, defendant requested CJI2d 7.22, covering the use of non-deadly force in
self-defense. That instruction explains that the elements of that defense are (1) that the defendant
honestly and reasonably believed that force was necessary for protection of self, (2) that the defendant
used only the amount of force that reasonably seemed necessary to repel the apprehended harm, (3)
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that the defendant confined the use of force to the duration of the apprehended threat, and (4) that the
defendant did not trigger the apprehended assault through his or her own misconduct.
According to defendant’s own testimony, he and the victim struggled with a knife inside a house,
the victim was wounded, the victim left the house, and then defendant followed her outside. Under
defendant’s version of the events, then, his actions after having voluntarily left the house in pursuit of the
victim took place after any threat posed by the victim had passed. Thus, defendant could not have
honestly and reasonably believed at that time that he had some need to protect himself that compelled
him to strike the victim in the face with a bottle until the bottle broke and then kick her while she was on
the ground. Further, defendant stated that he kicked the victim because he was “upset,” not to repel
any assault. Additionally, once the victim was on the ground, even if defendant had reasonably feared
an assault, his kicking her was a resort to force that was excessive as well as occurring after the
apprehended threat had subsided. Accordingly, defendant’s self-defense theory lacked evidentiary
support and the trial court properly declined to provide CJI2d 7.22.
On the issue of intoxication, “[a]n instruction regarding the defense of intoxication is proper only
if the facts of the case would allow the jury to conclude that the defendant’s intoxication was so great as
to render him incapable of forming the requisite intent.” People v Gomez, 229 Mich App 329, 332;
581 NW2d 289 (1998).
Defendant and the victim both testified that they had been drinking and smoking crack cocaine.
However, defendant testified that he was able to struggle with the victim for the knife, landing multiple
blows in the process, and that he deliberately kicked the victim, stating, “after I hit her you know I was
just upset.” Finally, when defendant was asked on direct examination if he was drunk on the night of
the incident he stated, “I wasn’t feeling too much pain if that’s what you mean.” When defense counsel
repeated the question, defendant replied, “More or less, yes, I was drunk.”
Defendant’s equivocation regarding the severity of his intoxication on the occasion in question,
and his account of engaging in aggressive physical and mental activity at that time, defeat his claim that
he was denied a fair trial for want of an intoxication instruction. Because defendant failed to offer any
evidence to show that he was intoxicated to the point of being incapable of forming the intent to commit
assault with intent to do great bodily harm less than murder, the trial court properly declined to instruct
the jury on the intoxication defense. In sum, we conclude that the jury instructions that the trial court
provided fairly presented the issues to be tried and sufficiently protected defendant’s rights.
Defendant’s final argument on appeal is that his sentence is disproportionate. However,
defendant failed to provide this Court with a copy of his presentence investigation report as required by
MCR 7.212(C)(7). Thus, defendant has waived review of this issue. See People v Rodriguez, 212
Mich App 351, 355; 537 NW2d 42 (1995). Further, even considering the question on its merits we
find no error. Because defendant’s sentence is within the range -- albeit at the high end -
recommended by the guidelines, it is presumed proportionate and thus valid. See People v Hurst, 205
Mich App 634, 639; 517 NW2d 858 (1994). Because we find no merit in any of defendant’s
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protestations that unusual circumstances should result in a more lenient sentence, we conclude that
defendant has failed to meet his heavy burden in overcoming the presumption that his sentence within the
range of the guidelines is proportional and thus valid. Id.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Martin M. Doctoroff
/s/ Peter D. O’Connell
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