PEOPLE OF MI V RALPH ANDREWS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 22, 2004
Plaintiff-Appellee,
v
No. 245259
Oakland Circuit Court
LC No. 01-180983-FH
RALPH ANDREWS,
Defendant-Appellant.
Before: Cooper, P.J., and Griffin and Borrello, JJ.
PER CURIAM.
Defendant Ralph Andrews appeals as of right his jury trial conviction and sentence for
felonious assault.1 Defendant’s conviction arose from a police stand-off in which defendant took
his six-year-old son, Brandon Wilks, hostage using a steak knife. Defendant was sentenced as a
fourth habitual offender2 to fifty-eight months to fifteen years’ imprisonment. We affirm.
I. Facts
On the morning of October 14, 2001, defendant and his girlfriend, Beverly Wilks, began
arguing in a second-story bedroom of their home. Ms. Wilks went into a second upstairs
bedroom and received a telephone call from her friend, Kim Terry. Defendant descended to the
first floor alone, but continued to rant and rave that he was frustrated and under pressure. In his
rage, defendant literally threatened to cut his son, Brandon, into pieces and bury him in the
backyard. Ms. Wilks told Ms. Terry of defendant’s aberrant behavior, but asked her not to call
the police. Hearing defendant’s threats, Ms. Wilks ran downstairs to check on Brandon and her
twelve-year-old son Bernard, leaving the phone lying on the bed with the line open. In the
meantime, Ms. Terry used three-way calling to contact 911. The following events were captured
on tape by the 911 operator and were played for the jury at defendant’s trial.
Ms. Wilks sat with Brandon and Bernard in their first-floor bedroom. Defendant grabbed
a steak knife from the kitchen and entered the boys’ bedroom. Defendant grabbed Brandon, who
1
MCL 750.82.
2
MCL 769.12.
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was in the top bunk of the boys’ bunk beds, and pulled him over the side causing Brandon to cry.
Defendant again threatened to cut Brandon into pieces. Defendant then released Brandon and
returned the knife to the kitchen.
At that time, there was a knock on the front door. Ms. Wilks answered the door and
informed defendant that the police had arrived. Defendant again grabbed Brandon and the steak
knife and ran upstairs. Bernard and Ms. Wilks ran out of the home, both crying out that
defendant had taken Brandon. The police entered, but were unable to reach Brandon. Defendant
swore that if he anyone came within his sight he would cut off Brandon’s head and roll it down
the stairs. Brandon was sobbing. After ten to fifteen minutes, defendant released Brandon and
allowed the police officers to arrest him. At defendant’s trial, Brandon testified that defendant
kept him in the upstairs hallway with the knife to his throat. Brandon also testified that he was
terrified and believed that defendant was going to kill him.
Defendant testified in his own behalf at trial. He admitted that he threatened to cut
Brandon into pieces and that he held a steak knife in his hand while holding onto Brandon. He
also admitted that he told the police to stay out of sight or he would cut off Brandon’s head and
roll it down the stairs. Defendant denied ever pointing the knife at Brandon or placing the knife
near his throat. Defendant testified that he did not intend to harm his child. He stated that he just
did not want to be arrested.
II. Ineffective Assistance of Counsel
Defendant claims that he received ineffective assistance of counsel as defense counsel
conceded to facts supporting the elements of felonious assault in his opening statement and
closing argument. We disagree. Absent a Ginther3 hearing, our review is limited to plain error
on the existing record affecting defendant’s substantial rights.4
Effective assistance of counsel is presumed and defendant bears a heavy burden to prove
otherwise.5 To establish ineffective assistance of counsel, defendant must prove that counsel’s
deficient performance denied him the Sixth Amendment right to counsel and that, but for
counsel’s errors, the proceedings would have resulted differently.6 Defendant must overcome
the strong presumption that counsel’s performance was sound trial strategy.7
In light of the overwhelming evidence against defendant, including defendant’s own
admissions on the stand, defense counsel chose to concede those facts that tended to prove
defendant’s guilt and put forth the argument that defendant overreacted under pressure. Only a
3
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
4
People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
5
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
6
People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001).
7
Id. at 600.
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complete concession of guilt constitutes ineffective assistance of counsel.8 It is reasonable to
conclude that defendant’s counsel made a tactical decision to focus his argument on defendant’s
intent at the time of the crime. This court will not substitute its judgment for that of trial counsel
regarding matters of strategy or assess trial counsel’s competence with the benefit of hindsight.9
Therefore, we conclude that defense counsel was not constitutionally ineffective.
III. Prosecutorial Misconduct
Defendant next claims that he was denied a fair trial due to an instance of prosecutorial
misconduct. We disagree. Prosecutorial misconduct claims are reviewed on a case by case
basis, examining any remarks in context, to determine if the defendant received a fair and
impartial trial.10 Because defendant failed to object to the alleged instance of prosecutorial
misconduct, our review is limited to plain error affecting substantial rights.11 “No error requiring
reversal will be found if the prejudicial effect of the prosecutor’s comments could have been
cured by a timely instruction.”12 We further note that the trial court instructed the jury to decide
the case solely on the evidence, and that the remarks of counsel were not evidence. Jurors are
presumed to follow their instructions.13
Defendant asserts that the prosecutor improperly commented in closing argument that
“Brandon’s memory is pretty darn good for a six year old.” A prosecutor enjoys wide latitude in
fashioning arguments and may argue the evidence and all reasonable inferences arising from it.14
A prosecutor may not vouch for the credibility of a witness, however, by conveying that he has
some special knowledge that the witness is testifying truthfully.15 Examining this comment in
context, it is not apparent that the prosecutor engaged in improper vouching.16 The prosecutor
was merely noting that Brandon’s testimony was corroborated by other evidence presented at
trial. This was a permissible argument based on the evidence.17 Therefore, we find that the
prosecutor’s comment does not warrant reversal.
8
People v Emerson (After Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994).
9
People v Williams, 240 Mich App 316, 331-332; 614 NW2d 647 (2000).
10
People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001).
11
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
12
People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000).
13
People v Graves, 458 Mich 476, 486-487; 581 NW2d 229 (1998).
14
Id. at 721.
15
People v Knapp, 244 Mich App 361, 382; 624 NW2d 227 (2001).
16
See People v Reed, 449 Mich 375, 398-399; 535 NW2d 496 (1995).
17
See People v Avant, 235 Mich App 499, 511-512; 597 NW2d 864 (1999) (finding that a
prosecutor may argue from the evidence that a witness was not credible).
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IV. Sentencing
Defendant asserts that the trial court improperly scored sentencing guidelines variables
OV 12, contemporaneous felonies, and OV 19, interference with the administration of justice or
the rendering of an emergency service. We disagree. The sentencing court has discretion in
determining the number of points to be scored provided that there is evidence on the record that
adequately supports a particular score.18
MCL 777.42(1) provides that OV 12 is to be scored five points if “[o]ne
contemporaneous felonious criminal act involving a crime against a person was committed” or if
“[t]wo contemporaneous felonious criminal acts involving other crimes were committed.”19 The
contemporaneous act must have occurred within twenty-four hours of the charged offense and
must not have resulted in a separate conviction.20 The evidence supports a finding that defendant
actually committed two counts of felonious assault as defendant twice held a knife while
threatening Brandon. Therefore, the trial court did not abuse its discretion in scoring five points
for OV 12.
OV 19 is scored fifteen points when:
The offender used force or the threat of force against another person or the
property of another person to interfere with, attempt to interfere with, or that
results in the interference with the administration of justice or the rendering of
emergency services.[21]
Interference with the administration of justice is equivalent to obstruction of justice and has been
interpreted to involve “an effort to undermine or prohibit the judicial process by which a civil
claim or criminal charge is resolved.”22 A defendant does not engage in “conduct aimed at
undermining the judicial process” where he tries to evade charges altogether.23
In this case, the trial court assigned fifteen points to OV 19. This score is valid, based on
defendant’s conduct in using Brandon as a hostage in his stand-off with the police and on
numerous letters defendant sent to Ms. Wilks from jail instructing her not to attend his trial or
bring Brandon and Bernard to his trial. Although the trial court improperly considered
defendant’s attempt to evade arrest in scoring OV 19, defendant did obstruct justice by
attempting to prevent the attendance of the witnesses against him. Therefore, the trial court did
not abuse its discretion in scoring fifteen points for OV 19.
18
People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
19
MCL 777.42(1)(d)-(e).
20
MCL 777.42(2)(a).
21
MCL 777.49(b).
22
People v Deline, 254 Mich App 595, 597; 658 NW2d 164 (2002), lv denied 468 Mich 943
(2003), lv held in abeyance upon reconsideration 469 Mich 969 (2003).
23
Id.
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Defendant was assigned seventy-two points for his PRV score and seventy-five points for
his OV score. Accordingly, defendant was placed at PRV level E and OV level IV, which set his
minimum guidelines range at fourteen to fifty-eight months. As we find that the trial court
correctly calculated defendant’s OV score and defendant’s minimum sentence is within the
statutory minimum sentencing guidelines range, we must affirm defendant’s sentence.24
Affirmed.
/s/ Jessica R. Cooper
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
24
MCL 769.34(10); People v Babcock, 469 Mich 247, 261; 666 NW2d 231 (2003).
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