PEOPLE OF MI V ANTOINE DESHAWN COTTO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 15, 2005
Plaintiff-Appellee,
v
No. 254891
Wayne Circuit Court
LC No. 03-012021-01
ANTOINE DESHAWN COTTO,
Defendant-Appellant.
Before: Gage, P.J., and Hoekstra and Murray, JJ.
PER CURIAM.
Defendant appeals as of right his convictions of carjacking, MCL 750.529a, and thirddegree fleeing and eluding, MCL 257.602a(3), entered after a bench trial. We affirm. This
appeal is being decided without oral argument pursuant to MCR 7.214(E).
I.
Facts
Complainant testified that at approximately 3:30 a.m. or 4:00 a.m. on October 12, 2003,
he parked his green 1997 Chevrolet Tahoe in the parking lot of a motel and entered the lobby to
register for a room. His friend, Vicki, remained in the vehicle. As complainant approached his
vehicle after registering, defendant appeared, displayed a gun, and then entered the Tahoe and
drove it out of the parking lot. Vicki was in the Tahoe when defendant drove it out of the lot.
Complainant viewed a line-up and identified defendant as the perpetrator of the incident.
Detroit police officers View and Crisp pursued the Tahoe, activated the patrol car’s lights
and siren, and eventually gave the vehicle a verbal order to stop. The Tahoe stopped
momentarily, but then drove away at a high rate of speed. View identified defendant as the
driver of the Tahoe.
Lieutenant Ennis interviewed defendant and advised him of his rights. Defendant waived
his rights and agreed to make a statement. Defendant stated that he drove the Tahoe from an
intersection at a friend’s request. He acknowledged that he knew the vehicle had been stolen.
Defendant testified that he approached the Tahoe, waited for the female passenger to
leave the vehicle, and then drove the Tahoe out of the parking lot. Defendant denied that he
displayed a gun during the incident. He acknowledged that he fled when the police stopped the
Tahoe, and admitted that he lied when he made his statement.
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The trial court found defendant guilty of carjacking and third-degree fleeing and eluding.
The trial court found complainant’s testimony to be credible, and rejected that given by
defendant. The trial court sentenced defendant to concurrent terms of eighty-one months to
twenty years for carjacking and three to five years for fleeing and eluding. Defendant’s
minimum term of eighty-one months was within the statutory sentencing guidelines.
II.
Analysis
When reviewing a challenge to the sufficiency of the evidence in a bench trial, we view
the evidence presented in a light most favorable to the prosecution, and determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt. The trier of fact may make reasonable inferences from evidence in the record,
but may not make inferences completely unsupported by any direct or circumstantial evidence.
People v Petrella, 424 Mich 221, 268-270, 275; 380 NW2d 11 (1985); People v Vaughn, 186
Mich App 376, 379-380; 465 NW2d 365 (1990).
In a bench trial, the trial court must make findings of fact and state separately its
conclusions of law. MCR 6.403. Findings are sufficient if it appears that the trial court was
aware of the issues in the case and correctly applied the law. People v Smith, 211 Mich App 233,
235; 535 NW2d 248 (1995). A trial court’s findings of fact are reviewed for clear error. MCR
2.613(C). A finding is considered to be clearly erroneous if, after a review of the entire record,
we are left with the firm and definite conviction that a mistake was made. People v Gistover,
189 Mich App 44, 46; 472 NW2d 27 (1991).
To establish the offense of carjacking, the prosecutor must prove: (1) that the defendant
took a motor vehicle from another person; (2) that the defendant did so in the presence of that
person, a passenger, or any other person in lawful possession of the motor vehicle; and (3) that
the defendant did so either by force or violence, by threat of force or violence, or by putting the
other person in fear. MCL 750.529a; People v Davis, 250 Mich App 589, 592; 649 NW2d 118
(2002), rev’d in part on other grounds 468 Mich 77 (2003).
The elements of third-degree fleeing and eluding are: (1) that the law enforcement
officer was in uniform and performing his lawful duties and his vehicle was adequately identified
as a law enforcement vehicle; (2) that the defendant was driving a motor vehicle; (3) that the
officer ordered the defendant to stop with his hand, voice, siren, or emergency light; (4) that the
defendant was aware that he had been ordered to stop; (5) that the defendant refused to obey the
order by trying to flee from the officer or avoid being caught, which conduct could be evidenced
by increasing the speed of the vehicle or turning off the lights; and (6) that some portion of the
violation occurred in an area with a speed limit of thirty-five miles per hour or less, or that
defendant’s conduct resulted in an accident. People v Grayer, 235 Mich App 737, 741; 599
NW2d 527 (1999).
Defendant argues that the trial court’s findings of fact that formed the basis of its decision
to convict him were clearly erroneous. We disagree. The trial court was entitled to find the
testimony given by complainant to be credible, notwithstanding the fact that some portions of
complainant’s testimony were inconsistent with other portions. People v Marji, 180 Mich App
525, 542; 447 NW2d 835 (1989). Complainant’s testimony established the elements of
carjacking. Davis, supra. Similarly, the trial court was entitled to accept as credible Officer
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View’s testimony that defendant stopped momentarily in response to commands, but then drove
away from the scene at a high rate of speed. This testimony established the elements of thirddegree fleeing and eluding. Grayer, supra. Evidence in the record, both direct and
circumstantial, supported the trial court’s findings. Those findings were not clearly erroneous.
Gistover, supra.
In calculating the sentencing guidelines the trial court has discretion to determine the
number of points to be scored, provided that evidence in the record supports a particular score.
A scoring decision for which there is any evidence in the record will be upheld. People v
Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
Under the sentencing guidelines act, if a minimum sentence is within the appropriate
sentencing guidelines range, we must affirm the sentence and may not remand for resentencing
absent an error in the scoring of the guidelines or inaccurate information relied upon in
determining the sentence. MCL 769.34(10); People v Kimble, 470 Mich 305, 309; 684 NW2d
669 (2004). A sentence within the appropriate guidelines range is subject to review only if
challenged at sentencing, in a motion for resentencing, or in a motion to remand, but a sentence
outside the range may be challenged on appeal even if the issue is not so raised. Id. at 309, 310311.
Defendant argues that the trial court erred by scoring Offense Variable (OV) 9, MCL
777.39, number of victims, at ten points on the ground that two victims were involved in the
incident. He asserts that no evidence showed that he pointed a weapon at or otherwise
threatened Vicki, complainant’s passenger, and that the trial court did not so find beyond a
reasonable doubt as required by Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d
403 (2004).
We disagree. Defendant did not challenge the scoring of OV 9 at sentencing, in a motion
for resentencing, or in a motion to remand. Thus, this issue is not preserved for appellate review.
Kimble, supra at 309. Complainant’s testimony that Vicki was in the Tahoe when defendant
drove the vehicle out of the parking lot after displaying a gun supported the trial court’s scoring
of OV 9 at ten points. Hornsby, supra.
Blakely, supra, does not apply to Michigan’s system of indeterminate sentencing because
under that system the maximum term is not set by the sentencing court, but rather is determined
by statute. MCL 769.8(1); People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004).
We are bound by Claypool, supra. People v Drohan, 264 Mich App 77, 89 n 4; 689 NW2d 750
(2004), lv gtd 472 Mich 881 (2005).
Affirmed.
/s/ Hilda R. Gage
/s/ Joel P. Hoekstra
/s/ Christopher M. Murray
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