PEOPLE OF MI V LEANDER PHILLIP TAYLOR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 23, 2008
Plaintiff-Appellee,
V
No. 274171
Wayne Circuit Court
LC No. 06-004417-01
LEANDER PHILLIP TAYLOR,
Defendant-Appellant.
Before: Servitto, P.J., and Donofrio and Fort Hood, JJ.
PER CURIAM.
Defendant was convicted, following a bench trial, of assault with intent to murder, MCL
750.83, and possession of a firearm during the commission of a felony, MCL 750.227b. The
trial court sentenced defendant to serve a term of imprisonment of two years for the felonyfirearm conviction, to be served consecutively to a term of 240 to 400 months for the assault
conviction, habitual offender second, MCL 769.10. Defendant appeals as of right. We affirm.
I. Facts
This case arises from a shooting that took place in Detroit on the evening of March 22,
2006. Four young men, who had been playing basketball, were walking toward a gas station
when an individual left a parked car and demanded money from one of them. A struggle ensued,
and the individual produced a firearm and shot the person he accosted, first in the arm and then
twice in the chest or abdomen.
Defendant presented an alibi defense, and also an eyewitness who testified that he had
observed the confrontation as a bystander, and that the assailant was lighter skinned than
defendant.
On appeal, defendant, through appellate counsel, argues that he was denied a fair trial by
perjured identification testimony, that the evidence was not sufficient to support the verdict, and
that the trial court erred in allowing certain bad-acts evidence. Defendant, in his Standard 4
brief, challenges the trial court’s scoring of an offense variable under the sentencing guidelines.
II. Perjury
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Of the witnesses who identified defendant as the assailant, only one knew defendant from
events preceding the incident in question. That witness testified that defendant was a friend of
her boyfriend. She further testified that she lived near where the incident in question took place,
and that on the afternoon of the day in question, she had gone outside to pay a cab driver and
noticed several boys playing basketball, and also saw defendant in a parked car. The witness
stated that after going inside for approximately ten minutes, she heard several gunshots.
This witness, however, later offered a statement recanting her testimony, asserting that
she had been coerced by the police to so testify. This Court remanded this case to the trial court
for an evidentiary hearing on the matter. At that hearing, the witness confirmed that she lived
near where the shooting took place, and had heard gunshots, but that she never saw any of the
persons involved. The witness added that drug sales were taking place in her house, and that the
police made clear that they were aware of that, and threatened her with imprisonment if she did
not say what they wanted her to say in connection with the incident in question.
The trial court concluded as follows:
I tried to do an analysis without [the recanting witness’s] testimony. Just struck it.
And saw if there was anything about striking it that would make it more likely
that a different conclusion would be more reasonable, a different conclusion
would be reached; and then I used it with the changes that she had testified to, and
I went back and looked at the reasoning behind my identification for my belief of
the identifying people and the analysis that I went through and . . . redid it. . . .
. . . I’m of the conclusion that [the recanting witness’s] testimony, as it
stood during the hearing, and even without it, it was just another reason that
supported the identification. It didn’t form the basis, in my mind, of proof beyond
a reasonable doubt; but just was another thing I thought that, in my mind at the
time, that I believed that the finding—I should not be disturbed it provide [sic]
beyond a reasonable doubt that it was [defendant] who was the one who
committed the crime.
The court thus clearly indicated that it would have arrived at the guilty verdict in the first
instance without the identification testimony of that witness.
Because the verdict was reaffirmed without recourse to the challenged testimony, any
error in the use of perjured such testimony was cured. No appellate relief is warranted.
III. Sufficiency of the Evidence
Appellate counsel styles the question presented as a challenge to the sufficiency to the
evidence, and presents the standard of review that applies to such challenges, but in fact argues
the issue in part by pointing to evidence favorable to defendant, and disparaging the credibility of
certain prosecution witnesses. Because appellate counsel is calling for review of all the evidence
including credibility determinations, not just review of the evidence in the light most favorable to
the prosecution, what appellate counsel is really asserting is that the verdict was contrary to the
great weight of the evidence. See generally People v Lemmon, 456 Mich 625; 576 NW2d 129
(1998). In fact, a trial court’s findings of fact in a bench trial are reviewed for clear error. See
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MCR 2.613(C); People v Gistover, 189 Mich App 44, 46; 472 NW2d 27 (1991). “A finding is
clearly erroneous if, after a review of the entire record, the appellate court is left with a definite
and firm conviction that a mistake has been made.” Id.
Because defendant has plausibly challenged the testimony of the witness who later
recanted, inducing this Court to grant a motion to remand, and the trial court to re-evaluate its
findings without that testimony, for purposes of this appeal we will likewise evaluate the
evidentiary basis for the verdict without reference to that witness’s trial testimony.
That evidence includes the repeated and unequivocal in-court identifications of defendant
as the assailant from three of the young men involved in the brawl. One witness recounted
picking defendant out of a photographic lineup with a degree of certainty he described at the time
as eight out of ten, but then added that he was more certain of his identification of defendant at
trial because he remembered his ears.
This testimony formed a solid basis for the trial court’s conclusion that defendant was the
assailant. Although the witnesses were not entirely consistent in all the particulars throughout
the investigation, even where the witnesses’ identification of a defendant is less than positive, the
question remains one for the factfinder. See People v Abernathy, 39 Mich App 5, 7; 197 NW2d
106 (1972).
The trial court noted the apparent lack of any incentive for any witness to misidentify
defendant. The court further noted that the witnesses identifying defendant had a better look at
him at the time in question than did the bystander who opined that defendant was not the
assailant.
For these reasons, we are not left with a definite and firm conviction that the trial court
erred in concluding that defendant was the assailant in question. See Gistover, supra.
IV. Bad Acts
A witness testified that, late in the day of the shooting in question, he had gone to the
home of the mother of some of defendant’s children to work on her sink, then was watching a
basketball game on television when defendant appeared and started arguing with the woman, and
then “hauled off and shot” the witness. Appellate counsel argues that, because this testimony
bore but little on the facts at issue while presenting defendant in a bad light, it denied him a fair
trial. We disagree.
Evidence of bad acts apart from those charged is admissible if it is offered for a proper
purpose, if it is relevant, and if its probative value is not substantially outweighed by unfair
prejudice. People v Crawford, 458 Mich 376, 385; 582 NW2d 785 (1998), citing People v
VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993). See also MRE 404(b)(1). A proper
purpose is one other than establishing the defendant’s character to show his or her propensity to
commit the offense. VanderVliet, supra at 74.
In this case, the prosecution had hoped to show that the same gun was used in both
shooting incidents, but eventually conceded that the investigation proved otherwise. The
prosecution served notice of the intent to introduce bad acts evidence, see MRE 404(b)(2), but
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the record does not indicate whether the matter was ever argued or ruled upon. In any event, if
this evidence had the potential to prejudice defendant by showing him to be quick to resort to
gun violence, the evidence also tended to disassociate the two events by showing that different
guns were used. Because the evidence thus provided some ammunition for the defense,
defendant did not suffer unfair prejudice from its admission.
We have little concern that the trial court, sitting as trier of fact, made the legal error of
using the challenged evidence as evidence proving defendant’s mere propensity to shoot people.
Indeed, the court’s comments in rendering its verdict make clear that it did not:
[W]hat you all want to do with [the later shooting victim’s] testimony is fine with
me, but it’s just out there. I can’t fit him into this equation in any way, shape, or
form; . . . I can see it if the caliber of the bullet matched the other caliber bullets
and was fired from the same gun that the markings to say, “Yes. [Defendant] was
here, and then he was there, and the did both of these.” But it’s just too hard to do
it. So we [still] have that issue of identification.
For these reasons, we reject this claim of error.
V. Offense Variable 9
Under the sentencing guidelines, offense variable 9 concerns numbers of victims. MCL
777.39. In this case, the trial court assessed ten points for that variable, which is the amount
prescribed by subsection (1)(c) where “2 to 9 victims . . . were placed in danger of physical
injury or death.” Defendant, in his Standard 4 brief, argues that this variable should not have
been scored at all, because there was only one victim. We disagree.
“This Court reviews a sentencing court’s scoring decision to determine whether the trial
court properly exercised its discretion and whether the record evidence adequately supports a
particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003).
The evidence indicated that the assailant shot one of the victim’s companions, striking
him in his side, once the scuffle broke out. Defendant was in fact charged with two counts of
assault with intent to murder in the matter. However, the trial court acquitted defendant of the
charge in connection with that other victim, on the ground that the intent element was not
satisfied.
Defendant argues that his acquittal of the charge in connection with that second shooting
victim precluded the court from regarding that victim as a second victim connected with the
instant crime. Defendant misapprehends the law.
“A sentencing court is allowed to consider the facts underlying uncharged offenses,
pending charges, and acquittals.” People v Coulter, 205 Mich App 453, 456; 517 NW2d 827
(1994) (emphasis added). Further, the scoring of the guidelines need not be consistent with the
verdict. See People v Williams, 191 Mich App 269, 276; 477 NW2d 877 (1991). Accordingly, a
scoring decision should not be reversed if any evidence exists to support the score. People v
Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). Because there was evidence of a
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second shooting victim in this case, the trial court correctly assessed ten points for offense
variable 9.
Affirmed.
/s/ Deborah A. Servitto
/s/ Pat M. Donofrio
/s/ Karen M. Fort Hood
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