PEOPLE OF MI V DAVID MICHAEL PIERCE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 11, 2002
Plaintiff-Appellee,
v
No. 225889
Muskegon Circuit Court
LC No. 99-043928-FH
DAVID MICHAEL PIERCE,
Defendant-Appellant.
Before: Griffin, P.J., and Gage and Meter, JJ.
PER CURIAM.
Defendant appeals by right from his conviction by a jury of assaulting a prison employee,
MCL 750.197c. The trial court sentenced him as a fourth-offense habitual offender, MCL
769.12, to six to fifteen years’ imprisonment. We affirm.
Defendant first argues that the trial court erred by denying his motion for a continuance to
secure the presence of a witness. We review a trial court’s decision to grant or deny a
continuance for an abuse of discretion. People v Pena, 224 Mich App 650, 660; 569 NW2d 871
(1997), modified on other grounds 457 Mich 885 (1998). We discern no abuse of discretion
here, because defendant failed to demonstrate that the witness’ testimony would be favorable to
him. See People v Lawton, 196 Mich App 341, 348-349; 492 NW2d 810 (1992);1 see also
People v Paquette, 214 Mich App 336, 344; 543 NW2d 342 (1995). As stated by the trial court:
. . . ultimately, the [c]ourt needs to balance the interest of the jurors, interest of
judicial economy, remainder of the [c]ourt’s docket as well as the fact that these
folks may in all likelihood not come back until Tuesday. There’s going to be
diminished recollection and everything else.
As I balance these factors, and I consider the fact that we really don’t even
know for sure what [the witness] will say, that’s really the primary basis for the
[c]ourt’s decision, as well as those already described.
1
We note that Lawton constitutes binding authority on this Court under MCR 7.215(I)(1).
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We do not consider this ruling to be without justification or grossly violative of fact and logic.
See People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996) (setting forth the “abuse of
discretion” standard of review). Reversal is unwarranted.
Next, defendant argues that the trial court erred by admitting evidence of defendant’s
prior convictions because their prejudicial effect outweighed their probative value.2 “The
decision whether evidence is admissible is within the trial court’s discretion and should only be
reversed where there is a clear abuse of discretion.” People v Starr, 457 Mich 490, 494; 577
NW2d 673 (1998).
Once again, we discern no abuse of discretion. The 1997 conviction for breaking and
entering was admissible for impeachment purposes,3 and the trial court did not err in determining
that its probative value outweighed its potential for prejudice, especially given the dissimilarity
between breaking and entering and the instant offense. See People v Allen, 429 Mich 558, 606;
420 NW2d 499 (1988), and MRE 609. The jail escape and first-degree home invasion
convictions were allowable as substantive evidence to demonstrate the elements of the charged
crime,4 and given their usefulness in this regard, the trial court did not abuse its discretion in
admitting the evidence. At best, whether the evidence was admissible was a close question, and
“[t]he decision upon a close evidentiary question by definition ordinarily cannot be an abuse of
discretion.” People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995), quoting People v
Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982). We find no error requiring reversal.5
Finally, defendant contends that the trial court erred by sentencing him to a minimum of
seventy-two months’ imprisonment, when the statutory guidelines produced a range of fourteen
to fifty-eight months. Specifically, defendant contends that there were no “substantial and
compelling” reasons for departure as required by MCL 769.34(3). We review for an abuse of
discretion a trial court’s determination that there was a substantial and compelling reason for
departure from the guidelines. People v Babcock, 244 Mich App 64, 75-76; 624 NW2d 479
(2000). An abuse of discretion exists if the result was so palpably and grossly violative of fact
and logic that it evidences a perversity of will, a defiance of judgment, and the exercise of
passion or bias. Id. at 76.
2
Defendant concedes in his brief that evidence of the convictions was otherwise allowable, if not
for the prejudicial effect-probative value balancing test. Defendant states, “Mr. Pierce’s prior
convictions, while allowed for admissible impeachment and substantive purposes, constitute
highly prejudicial propensity evidence.”
3
Defendant does not contend otherwise; see footnote 2, supra.
4
Defendant does not contend otherwise; see footnote 2, supra.
5
Moreover, in his appellate brief defendant cites cases solely relating to impeachment evidence,
when some of the convictions were admitted not for impeachment but as substantive evidence.
Accordingly, defendant has essentially waived the issue of the “substantive evidence”
convictions. See People v Watson, 245 Mich App 572, 587; 629 NW2d 421 (2001).
Defendant’s argument is also inconsistent in that at one point in his brief, he contends that the
home invasion charge was properly admitted and then later suggests that it was not. As noted in
Watson, an appellant may not leave it up to this Court to discover and rationalize his claims. Id.
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The Legislature has placed the following restrictions on a court’s basis for departure:
The court shall not base a departure on an offense characteristic or
offender characteristic already taken into account in determining the appropriate
sentence range unless the court finds from the facts contained in the court record,
including the presentence investigation report, that the characteristic has been
given inadequate or disproportionate weight. [MCL 769.34(3)(b); emphasis
added.]
Moreover, this Court has explained that the terms “substantial and compelling” “‘constitute
strong language’” and evidence the Legislature’s intent that substantial and compelling reasons
would exist in only “‘exceptional cases.’” Babcock, supra at 75, quoting People v Fields, 448
Mich 58, 67-68; 528 NW2d 176 (1995). This Court noted, “‘[t]he reasons justifying departure
should “keenly” or “irresistibly” grab our attention, and we should recognize them as being “of
considerable worth” in deciding the length of a sentence.’” Babcock, supra at 75, quoting Fields,
supra at 67.
Here, the trial court gave the following reasons for departing from the guidelines:
1. Mr. Pierce has prior crimes of the same nature, and it is important for the
security of the penal institution, that violations of the rules be considered
important.
2. Mr. Pierce’s prior record variable is 114 points. The top cell, “F”, has an
increment for “75+”. Mr. Pierce’s prior record variable, obviously, exceeds
the bottom cell increment by almost 40 points. This merits additional sanction
than that imposed strictly for falling into the “F” category.
Defendant argues that these reasons were insufficient to justify a departure. Defendant
contends that the trial court’s first reason is not substantial and compelling because defendant’s
prior crimes were already taken into account. Specifically, defendant states that the nature of the
crime itself, assaulting a prison employee, naturally took into account the effect of the crime on
the security of penal institutions. Defendant also points out that Offense Variable (OV) 19
(dealing with threat to the security of a penal institution or interference with the administration of
justice) was scored at twenty-five points. The court can score twenty-five points if the offender
by his or her conduct threatened the security of a penal institution or court.
As noted above, the court can rely on a characteristic already taken into consideration by
the guidelines if “the court finds from the facts contained in the court record, including the
presentence investigation report, that the characteristic has been given inadequate or
disproportionate weight.” MCL 769.34(3)(b). The trial court made such a finding in this case,
and we discern no abuse of discretion with respect to that finding. The presentence investigation
report demonstrated that defendant, who was twenty-three years old at the time of sentencing for
the instant offense, had several similar convictions. In 1994, defendant was convicted of
attempted resisting and obstructing an officer. In 1998, defendant was convicted of two counts
of assaulting a prison employee. In 1999, defendant was convicted of escape while awaiting trial
for a felony. Thus, although OV 19 took into account the nature of defendant’s present
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conviction, it did not take into account the fact that he had several similar convictions; thus, the
trial court did not err in concluding that the characteristic had been given inadequate weight.
Defendant contends that the trial court’s second reason for departure was also insufficient
because the characteristic was already taken into account. We conclude that we need not even
reach this claim, because the trial court’s first stated reason justified its fourteen-month departure
from the guidelines. Because we conclude that a substantial and compelling reason for departure
existed, a review for proportionality is unnecessary under Babcock, supra at 77-78. In any event,
we find the sentence proportionate to the circumstances surrounding the offense and the offender.
Affirmed.
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
/s/ Patrick M. Meter
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