PEOPLE OF MI V ELMORE JAMES HAIRE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 21, 2006
Plaintiff-Appellee,
v
No. 262958
Wayne Circuit Court
LC No. 04-012496-01
ELMORE JAMES HAIRE,
Defendant-Appellant.
Before: White, P.J. and Zahra and Kelly, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of assault with the intent to murder
(“AWIM”), MCL 750.83, malicious destruction of a building greater than $200 but less than
$1,000 (“malicious destruction of property”), MCL 750.380(4)(a), felonious assault, MCL
750.82, and possession of a firearm during the commission of a felony (“felony-firearm”), MCL
750.227b. Defendant was sentenced to 108 to 216 months’ imprisonment for the AWIM
conviction and two years’ imprisonment for the felony-firearm conviction. The felonious assault
and misdemeanor malicious destruction of property sentences were suspended. He appeals as of
right and we affirm. This case is being decided without oral argument pursuant to MCR
7.214(E).
Defendant argues on appeal that the evidence presented at trial was insufficient to prove
that he intended to kill Pauline Gonzalez (“Gonzalez”) to satisfy a conviction of AWIM. We
disagree.
An appeal claiming insufficient evidence is reviewed de novo. People v Nowack, 462
Mich 392, 399-400; 614 NW2d 78 (2000); People v McGhee, 268 Mich App 600, 622; 709
NW2d 595 (2005). All evidence is viewed in a light most favorable to the prosecution to
determine whether the trial court could have determined that the elements of the crime were
proven beyond a reasonable doubt. People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728
(2005).
AWIM is a specific intent crime that requires “(1) an assault, (2) with an actual intent to
kill, (3) which, if successful, would make the killing murder.” People v Brown, 267 Mich App
141, 147; 703 NW2d 230 (2005). “An assault may be established by showing either an attempt
to commit a battery or an unlawful act that places another in reasonable apprehension of
receiving an immediate battery.” People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005).
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The intent to kill can be reasonably inferred from any facts in the evidence – including
circumstantial evidence. People v Warren (After Remand), 200 Mich App 586, 588; 504 NW2d
907 (1993).
The evidence shows that defendant assaulted Gonzalez. Defendant attempted to commit
a battery, and Gonzalez reasonably apprehended an immediate battery. Defendant drove his van
into the apartment building requiring Gonzalez to jump aside to avoid being struck by the van.
Defendant also attempted to shoot Gonzalez but was unable to do so because she struggled with
him for control of the rifle. Defendant does not argue that an assault did not occur, but rather,
only argues that he did not have the intent to kill.
Defendant argues that he did not have the requisite intent to kill because he never injured
Gonzalez, never successfully aimed his rifle at Gonzalez, and never discharged his rifle.
However, no injury is required to satisfy the elements of AWIM, nor for the inferior crime of
assault with the intent to commit great bodily harm less than murder. Brown, supra, p 147;
People v Harrington, 194 Mich App 424, 430; 487 NW2d 479 (1992). Rather, only minimal
circumstantial evidence is required to prove defendant’s intent. People v McRunels, 237 Mich
App 168, 180; 603 NW2d 95 (1999). The Michigan Supreme Court, in People v Taylor, 422
Mich 554, 567-68; 375 NW2d (1985), stated that an intent to kill can be inferred from:
the nature of the defendant’s acts constituting the assault; the temper or
disposition of mind with which they were apparently performed, whether the
instrument and means used were naturally adapted to produce death, his conduct
and declarations prior to, at the time, and after the assault, and all other
circumstances calculated to throw light upon the intention with which the assault
was made.
Here, the evidence shows that defendant was angry at Gonzalez before the assault for asking him
to leave the apartment, attempted to use two deadly instruments during the assault, the van and
the rifle, expressed an intent to kill Gonzalez, attempted to gain control of the rifle from
Gonzalez using force, and abandoned his assault only after he was threatened himself – all of
which lead to the reasonable inference that defendant intended to kill Gonzalez. Although
defendant claims that he never successfully aimed his rifle at Gonzalez or discharged his rifle,
this was only because Gonzalez struggled with defendant for control of the gun and prevented
him from carrying out his intentions.
The only evidence that shows there was not an intent to kill are defendant’s own
statements that he never intended to harm Gonzalez and did not intentionally drive his vehicle
into the apartment building. All determinations of witness credibility, however, should be left to
the trier of fact to determine. Nowack, supra, pp 399-400. The trial court determined that
defendant’s testimony was not credible because defendant stated he could not remember the
assault, but rather, could only remember the events directly prior to and after the assault. The
trial court found that defendant’s own assertions of his intent were not credible, and therefore,
his intent can be inferred from circumstantial evidence. The evidence is sufficient to maintain a
conviction for AWIM.
Defendant next claims that the evidence shows he was intoxicated at the time of the
assault so he could not form the requisite intent to kill. Voluntary intoxication is a proper
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defense only when the evidence shows that the actor is so intoxicated that he was incapable of
forming the requisite intent of the charged crime. People v Mills, 450 Mich 61, 82; 537 NW2d
909 (1995), mod 450 Mich 1212 (1995); People v Gomez, 229 Mich App 329, 333-34; 581
NW2d 289 (1998).
In the current case, defendant asserted that he drank “quite a bit . . . all day” and that he
only remembered pulling into the apartment building’s parking lot to look for his girlfriend and
the next thing he could remember after that was that he was inside the apartment building.
According to witnesses, however, defendant appeared to be conscious of the fact that he was
struggling with Gonzalez because he was hitting Gonzalez to gain control of his rifle and yelling
at Gonzalez to let go of the rifle. Defendant was also responsive when another apartment
resident pointed his gun at defendant and told him to drop the rifle, was able to back his van out
of the apartment building and drive down the street, and attempted to elude police on foot. The
trial court was free to reject the voluntary intoxication defense based on its conclusion that
defendant’s testimony was not credible, he was aware of his environment and actions at the time
of the assault, and he had not shown the requisite level of intoxication. The evidence is
sufficient to show that defendant had the requisite intent to kill and was not intoxicated to the
level necessary to excuse his culpability.
Affirmed.
/s/ Helene N. White
/s/ Brian K. Zahra
/s/ Kirsten Frank Kelly
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