PEOPLE OF MI V VICTOR WALKER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 16, 2001
Plaintiff-Appellant
v
No. 219575
Wayne Circuit Court
LC No. 98-009689
VICTOR WALKER,
Defendant-Appellee.
Before: Neff, P.J., and Holbrook, Jr., and Jansen, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of two counts of felonious assault, MCL
750.82; MSA 28.277, and one count of possession of a firearm during the commission of a
felony, MCL 750.227b; MSA 28.424(2). Defendant was subsequently sentenced to concurrent
terms of one to four years in prison for the convictions of felonious assault, to be served
consecutively and following a two-year sentence for felony-firearm. Defendant appeals as of
right and we affirm.
Defendant raises two issues on appeal. He contends that there was insufficient evidence
to support his convictions of felonious assault and that his sentences violate the principle of
proportionality.
I
Defendant first argues that the evidence at trial was insufficient to support a guilty verdict
of felonious assault because a rational trier of fact could not have found the essential elements of
the offenses beyond a reasonable doubt. When determining whether sufficient evidence has been
presented to sustain a conviction, a court must view the evidence in a light most favorable to the
prosecution to determine whether any rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508,
515; 489 NW2d 748 (1992).
Defendant argues that the prosecution failed to demonstrate that he did not act in selfdefense. The killing of another in self-defense is justifiable homicide if the defendant honestly
and reasonably believed that his life was in imminent danger or that there was a threat of serious
bodily harm. People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990). Once evidence of self-1-
defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable
doubt. People v Truong, 218 Mich App 325, 337; 553 NW2d 692 (1996).
In the present case, although defendant had been attacked by some other men after an
outdoor party, he was able to get away from those men and went to his house. The other men
also left for another house nearby, and defendant later shot his handgun into the air a few times.
Defendant then reentered his house and a few minutes later, a bottle was thrown into defendant’s
window. Police officers arrived at the scene, and as the police officers were walking near
defendant’s house, defendant again shot his gun several times. Under these circumstances,
defendant was not in imminent danger either at the time when he first fired his gun into the air
because he had retreated to his own house and the other men were at another house or at the time
he shot in the direction of the police officers. The most recent threat to defendant had occurred
several minutes before he shot outside the house. Furthermore, although defendant stated that he
recognized the voice of one of his attackers at the time he shot, the group of men from the party
were not approaching the house. Consequently, there was sufficient evidence presented by the
prosecution for the jury to conclude that defendant did not honestly or reasonably believe that his
life was in imminent danger or that there was a threat of serious bodily harm at the times that he
shot his gun.
Defendant also contends that the evidence was insufficient to show that he was trying to
harm anyone when he fired his gun. The elements of felonious assault are (1) an assault, (2) with
a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable
apprehension of an immediate battery. People v Avant, 235 Mich App 499, 505; 597 NW2d 864
(1999). Even if defendant was not actually trying to harm anyone, the intent element requires
that there be an intent to injure or to place the victim in reasonable apprehension of an immediate
battery.
In the present case, taken in a light most favorable to the prosecution, the two police
officers who initially responded to the scene testified. Officer Bray testified that defendant
opened the door of his house and shot his gun two or three times straight ahead, not up in the air.
He and his partner, Officer Montgomery, took cover and returned fire and yelled “Police” several
times. Officer Montgomery saw the barrel of a gun pointed at him when they arrived at
defendant’s house and immediately took cover. Officer Montgomery believed defendant shot his
gun twice and the officer believed that he was going to be hit because the barrel of the gun was
pointed at his face. Under these circumstances, the jury could reasonably conclude that
defendant intended to place the victims in reasonable apprehension of an immediate battery even
if there was no intent to injure. Accordingly, there was sufficient evidence presented by the
prosecution to prove the elements of felonious assault beyond a reasonable doubt.
II
Next, defendant argues that the trial court abused its discretion by sentencing him to one
to four years in prison for each count of felonious assault, in violation of the principle of
proportionality.
Defendant’s minimum sentence of one year for the assault convictions is at the lowest
end of the guidelines range of twelve to forty-eight months. Sentences falling within the
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recommended range are presumptively neither excessively severe nor unfairly disparate. People
v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). However, “even a sentence within
the sentencing guidelines could be an abuse of discretion in unusual circumstances.” People v
Milbourn, 435 Mich 630, 661; 461 NW2d 1 (1990). Defendant contends that his lack of a
criminal history and the nature of the offense make the sentence disproportionate. Lack of a
criminal history, however, is not an unusual circumstance that overcomes the principle of
proportionality as it is accounted for in the guidelines. People v Daniel, 207 Mich App 47, 54;
523 NW2d 830 (1994). Further, defendant does not explain how the nature of the offense creates
an unusual circumstance such that the one-year minimum term is disproportionate. We find no
unusual circumstances of this case to conclude that the sentence is disproportionate.
Consequently, the trial court did not abuse its discretion because defendant’s sentence
does not violate the principle of proportionality.
Affirmed.
/s/ Janet T. Neff
/s/ Donald E. Holbrook, Jr.
/s/ Kathleen Jansen
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