PEOPLE OF MI V BARTOLO FITCHETT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 16, 2008
Plaintiff-Appellee,
v
No. 277063
Saginaw Circuit Court
LC No. 06-028169-FH
BARTOLO FITCHETT,
Defendant-Appellant.
Before: Schuette, P.J., and Zahra and Owens, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to do great bodily
harm, MCL 750.84, felon in possession of a firearm, MCL 750.224f, carrying a firearm with
unlawful intent, MCL 750.226, and two counts of possession of a firearm during the commission
of a felony, MCL 750.227b. He was sentenced as an habitual offender, fourth offense, MCL
769.12, to concurrent prison terms of 150 months to 20 years for the assault conviction, and four
to ten years each for the felon in possession and carrying a firearm with unlawful intent
convictions, to be served consecutive to two concurrent two-year prison terms for the felonyfirearm convictions. He appeals as of right. We affirm defendant’s convictions, but remand for
resentencing. We decide this appeal without oral argument under MCR 7.214(E).
I. FACTS
At trial, Edward Esparza and Jacob Gorsuch both testified that defendant shot at Esparza.
Esparza testified that the gunshot grazed his back, in the shoulder area, and he produced a jacket
that contained several holes in the hood area that he attributed to the bullet. Esparza testified that
a t-shirt he was wearing was not damaged. A .25 caliber shell casing was found in the area.
Defendant admitted being involved in a confrontation with Esparza in which he struck Esparza in
the shoulder with a cane, but he denied shooting Esparza and claimed that Esparza fabricated
“the whole incident about a gun.”
II. WEIGHT OF THE EVIDENCE
Defendant first argues that the jury’s verdict is against the great weight of the evidence
because Esparza’s account is “preposterous.” Defendant asserts that Esparza’s shoulder injury
could not have been caused by a gunshot, but was consistent with him having been struck by a
cane. Defendant additionally asserts that Esparza’s testimony that a single bullet caused multiple
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holes in the jacket and none in Esparza’s t-shirt defies logic. Thus, defendant contends that
Esparza, who was evasive in his testimony, was not credible, whereas defendant’s testimony was
credible. We disagree.
We review a trial court’s decision to grant or deny a motion for a new trial for an abuse
of discretion. People v Lemmon, 456 Mich 625, 648 n 27; 576 NW2d 129 (1998). A new trial
may be granted on some or all of the issues if a verdict is against the great weight of the
evidence. MCR 2.611(A)(1)(e). Absent exceptional circumstances, the issue of credibility
should be left for the trier of fact. Lemmon, supra at 642-643. Exceptional circumstances that
may justify a new trial include testimony that is patently incredible or so inherently implausible
that it could not be believed by a reasonable juror, testimony in defiance of physical realities, or
witness testimony that is seriously impeached and the case marked by uncertainties and
discrepancies. Id. at 643-644.
The jacket and the photographs of Esparza’s injury are not inconsistent with Esparza’s
and Gorsuch’s accounts of the shooting. Contrary to what defendant argues, the photograph of
the injury does not refute the testimony that the injury was caused by a bullet, or clearly
demonstrate that the injury could only have been caused by a cane. Further, an examination of
the jacket does not show that the witness accounts were implausible. The jacket consists of a
water-resistant, nylon-type exterior with a cotton-type lining, and it has a hood. It contains three
holes in close proximity in the back right shoulder area of the exterior jacket near the top
shoulder seam. It also has another hole in the interior lining underneath, which appears to
correspond to one of the holes in the shoulder area. Approximately five inches from the cluster
of holes on the shoulder, toward the center of the jacket, is another larger hole in the exterior of
the jacket. The lining underneath contains a hole in approximately the same area. The exterior
part of the hood has two large holes on the right half; the lining of the hood has no visible
damage. The holes in the jacket essentially form a linear pattern. The gap between the cluster of
three holes in the shoulder area, which corresponds to one hole in the lining, and the hole near
the back center, which corresponds to the second hole in the lining, is consistent with the area of
Esparza’s grazing injury depicted in the photographs. The holes in the hood appear to line up on
top of the holes in the center back. The absence of holes in the lining of the hood and the
presence of only one hole in the lining underneath the cluster of three holes in the shoulder may
be attributable to the manner in which the hood was configured at the time of the damage. The
pattern and its consistency with the injury corroborate Esparza’s and Gorsuch’s account.
Esparza’s testimony that the bullet that produced the grazing wound depicted in the
photographs did not damage the t-shirt he was wearing is more difficult to reconcile with the
damage to the jacket and the injury depicted in the photographs. But this discrepancy is not so
significant that it wholly undermines the credibility of Esparza and Gorsuch. Under the
circumstances, the trial court did not abuse its discretion in denying defendant’s motion for new
trial.
III. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that trial counsel was ineffective for failing to impeach Gorsuch
with evidence that he had been convicted of a theft offense and had been charged with filing a
false police report. We disagree.
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Defendant relies on documentation showing that Gorsuch was convicted of misdemeanor
larceny from a vacant building, MCL 750.359, which is punishable by imprisonment for not
more than a year. Under MRE 609(2), however, a prior conviction for a crime containing an
element of theft is admissible for impeachment only if the crime is punishable by imprisonment
in excess of one year. Thus, the misdemeanor conviction was not admissible for impeachment.
Evidence that Gorsuch was charged with filing a false report of a felony also was not
admissible under MRE 609. Evidence of charges against a witness that did not lead to
conviction is inadmissible, except to show bias. People v Layher, 464 Mich 756, 766-769; 631
NW2d 281 (2001). Defendant asserts that the circumstances of the incident involving Gorsuch
were “nearly identical . . . [He] had engaged in some type of criminal behavior. Rather than
wait for the victim to report him, Gorsuch made a false report claiming that he was the victim,
not the perpetrator.” However, defendant did not provide any factual support for these
assertions. He had the burden of establishing the factual predicate of his claim of ineffective
assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Under the
circumstances, defendant has not shown that he was denied the effective assistance of counsel or
that an evidentiary hearing on this issue is warranted.
IV. SENTENCING
Finally, defendant argues that the trial court improperly departed from the sentencing
guidelines range without providing substantial and compelling reasons for a departure. We
agree.
At sentencing, the sentencing information report was corrected to rescore one of the
offense variables, resulting in a sentencing guidelines range of 29 to 114 months for defendant’s
assault with intent to do great bodily harm conviction. The trial court sentenced defendant to 121/2 to 20 years’ imprisonment for that conviction without providing any reasons for a departure.
A trial court must sentence a defendant within the appropriate guidelines range unless it
states substantial and compelling reasons for a departure from that range. MCL 769.34(3). In
this case, it appears that the trial court erroneously believed that it was imposing a sentence
within the appropriate guidelines range. Regardless, the court failed to provide substantial and
compelling reasons to justify a departure from the guidelines. Accordingly, we remand for
resentencing. On remand, the trial court shall sentence defendant within the appropriate
guidelines range or state on the record a substantial and compelling reason for a departure from
that range in accordance with MCL 769.34(3) and People v Babcock, 469 Mich 247, 258-261;
666 NW2d 231 (2003).
We affirm defendant’s convictions, but remand for resentencing. We do not retain
jurisdiction.
/s/ Bill Schuette
/s/ Brian K. Zahra
/s/ Donald S. Owens
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