PEOPLE OF MI V TERRANCE NATHANIEL HAYNES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 21, 2006
Plaintiff-Appellee,
v
No. 264230
Wayne Circuit Court
LC No. 05-001961-01
TERRANCE NATHANIEL HAYNES,
Defendant-Appellant.
Before: Servitto, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
A jury convicted defendant of one count of armed robbery with respect to William
Dickey, Sr., MCL 750.529; carjacking, MCL 750.529a; one count of felonious assault with
respect to William Dickey, Jr., MCL 750.82; one count of assault with intent to do great bodily
harm less than murder with respect to William Dickey, Sr., MCL 750.84; first-degree home
invasion, MCL 750.110a(2); felon in possession of a firearm, MCL 750.224f; and possession of
a firearm during the commission of a felony, MCL 750.227b. The court sentenced defendant as
an habitual offender, third offense, MCL 769.11, to prison term of 35 to 60 for the armed
robbery conviction, 30 to 60 years for the carjacking conviction, one to four years for the
felonious assault conviction, five to ten years for the assault with intent to do great bodily harm
conviction, 12 to 20 years the first-degree home invasion conviction, two to five years for the
felon in possession of a firearm conviction, and two years for the felony-firearm conviction.
Defendant appeals as of right. We affirm.
Defendant first argues that the prosecutor failed to present sufficient evidence to support
the carjacking conviction because the evidence showed that the Dickeys were not in or near the
vehicle when defendant took it. This Court reviews the evidence de novo in the light most
favorable to the prosecution to determine whether a rational fact finder could find the elements
of the crime proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d
748 (1992); People v McGhee, 268 Mich App 600, 612; 709 NW2d 595 (2005); People v
Hardiman, 466 Mich 417, 429; 646 NW2d 158 (2002). “It is for the trier of fact, not the
appellate court, to determine what inferences may be fairly drawn from the evidence and to
determine the weight to be accorded those inferences.” Id.
The offense of carjacking has three elements: (1) the use of force or violence, or threat of
force or violence, or putting in fear; (2) the robbing, stealing, or taking of a motor vehicle from
another person; and (3) in the presence of that person, of a passenger, or of any other person in
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lawful possession of the motor vehicle. People v Davenport, 230 Mich App 577, 579; 583
NW2d 919 (1998); People v Parker, 230 Mich App 337, 343; 584 NW2d 336 (1998). The
taking of a motor vehicle is considered to be “in the presence of the person” when it is “within
his reach, inspection, observation or control, that he could, if not overcome by violence or
prevented by fear, retain his possession of it.” People v Raper, 222 Mich App 475, 482; 563
NW2d 709 (1997). A motor vehicle is taken from a person once that person loses possession of
it due to the violence or fear. People v Green, 228 Mich App 684, 695; 580 NW2d 444 (1998).
The prosecution presented sufficient evidence to support the carjacking conviction.
Defendant put the Dickeys in fear by sporting a silver revolver and asking Dickey, Sr., how
much he valued his life. Defendant then asked the men for their wallets. Defendant pulled out
Dickey, Sr.’s license, studied it, and threw the wallet on the floor. Defendant told the men that
he knew where they lived, and if they called the police, he would kill them. Defendant then
asked for the keys to the van that was parked in the driveway. Dickey, Sr., had a blue Ford van
with $15,000 to $18,000 worth of tools inside.
Until this point, Dickey, Sr., had possession and control of the keys, and was therefore, in
control of the van. Raper, supra at 483. Dickey, Sr. lost possession and control of the van when
he gave defendant the keys and defendant made him point out the ignition key. Defendant went
out the door and the Dickeys heard the van start up. Dickey, Jr. picked up a hammer, and ran out
the door. Dickey, Sr., followed and saw defendant backing out of the driveway. Dickey, Jr. hit
the driver’s side window with a hammer, and the window shattered. Both Dickeys struggled
with defendant while defendant was still in the van trying to leave. During this struggle, the van
was within the reach, observation, and inspection of Dickey, Sr., and he could have retained
possession of it but for the violence. Raper, supra at 482. Defendant took Dickey, Sr.’s van, at
gunpoint, and in his presence. The evidence was sufficient to support the carjacking conviction.
Defendant next claims that the prosecutor improperly vouched for the victims' credibility.
In raising this issue, defendant points to the prosecutor's suggestion that the jury to look at the
demeanor of the witnesses and use it as a factor to place each witness on the scale of credibility.
The prosecutor then stated that the Dickeys should place high on that scale because they sought
to answer both the prosecutor's and defense counsel’s questions, whereas defendant avoided
questions, argued with the prosecutor, and would not answer questions. Neither of these
comments was improper. While it is improper for a prosecutor to "vouch for the credibility of
his witnesses to the effect that he has some special knowledge concerning a witness'
truthfulness," People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995), a prosecutor may
argue from the facts issues of witness credibility. People v Thomas, 260 Mich App 450, 455;
678 NW2d 631 (2004). Taken in context, the prosecutor did not attempt to sway the jury
through some special knowledge of credibility, but rather argued that the evidence created the
reasonable inference that the victims had no motive to be untruthful and were, therefore,
believable.
Lastly, defendant argues that his sentence was unconstitutionally enhanced on the basis
of unproven allegations in violation of Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L
Ed 2d 403 (2004), causing his minimum sentence to exceed the sentencing guidelines. Blakely is
inapplicable to Michigan’s indeterminate sentencing scheme. People v Claypool, 470 Mich 715,
730 n 14; 684 NW2d 278 (2004). Nonetheless, defense counsel expressly agreed at sentencing
that the offense variables in question were properly scored at 100 points. “A defendant may not
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waive objection to an issue before the trial court and then raise it as an error before this Court.”
People v Fetterley, 229 Mich App 511, 520; 583 NW2d 199 (1998). Waiver extinguishes any
error. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
Affirmed.
/s/ Deborah A. Servitto
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
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