PEOPLE OF MI V MICKI MARCEL FOWLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 21, 2010
Plaintiff-Appellee,
v
No. 292074
Kent Circuit Court
LC No. 08-011587-FH
MICKI MARCEL FOWLER,
Defendant-Appellant.
Before: MURPHY, C.J., and SAWYER and MURRAY, JJ.
PER CURIAM.
Defendant appeals as of right following his jury trial convictions of carrying a concealed
weapon (CCW), MCL 750.227, and felon in possession of a firearm, MCL 750.224f. Defendant
was sentenced as a habitual offender, second offense, MCL 769.10, to two to seven years and six
months’ imprisonment for each conviction. We affirm.
Defendant argues that there was insufficient evidence to support his convictions. We
review a challenge to the sufficiency of the evidence de novo. People v Lueth, 253 Mich App
670, 680; 660 NW2d 322 (2002). In determining whether the prosecution has presented
sufficient evidence to sustain a conviction, we construe the evidence in a light most favorable to
the prosecution and consider whether there was sufficient evidence to justify a rational trier of
fact in finding all of the elements of the crime beyond a reasonable doubt. People v Johnson,
460 Mich 720, 722-723; 597 NW2d 73 (1999). “Circumstantial evidence and reasonable
inferences arising therefrom can constitute satisfactory proof of the elements of a crime.” People
v Reddick, 187 Mich App 547, 551; 468 NW2d 278 (1991).
Defendant was convicted of felon in possession pursuant to MCL 750.224f, which
provides in relevant part: “[a] person convicted of a specified felony shall not possess … a
firearm in this state ….” MCL 750.224f(2). At trial, the parties stipulated to defendant’s prior
felony conviction. On appeal, defendant argues that there was insufficient evidence to show that
he possessed a firearm. We disagree. In this case, Sergeant James Wojczynski testified that
when he drove his police cruiser near the scene of a reported fight at a nightclub he observed
defendant standing and clenching the right side of his body near his waist. When defendant saw
Wojczynski, he fled on foot and as he ran, he removed a large black object from his waistband.
Two other officers testified that defendant attempted to elude police. Defendant discarded his
white polo shirt as he attempted to escape, and police later found him hiding in some bushes.
Both of these actions were relevant to show defendant’s consciousness of guilt. People v
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Cutchall, 200 Mich App 396, 398-401, 404-405; 504 NW2d 666 (1993) (defendant’s attempts to
conceal involvement in a crime are probative of his consciousness of guilt and are thus relevant).
Additionally, police discovered a large revolver hidden under a wooden staircase behind a tavern
where defendant ran away from police, and after defendant was detained in a police cruiser, he
made comments on his cellular telephone that implied that he possessed the gun that was found.
On this record, we conclude that a rational trier of fact could convict defendant of felon in
possession beyond a reasonable doubt.
Defendant was convicted of CCW pursuant to MCL 750.227, which provides in relevant
part, “A person shall not carry a pistol concealed on or about his or her person … without a
license to carry the pistol as provided by law….” MCL 750.227(2). For purposes of the statute,
“concealment” does not require proof that the weapon was invisible. People v Jones, 12 Mich
App 293, 295; 162 NW2d 847 (1968). Instead, a weapon is “concealed” when it is “not
discernible by the ordinary observation of persons coming into contact with the person carrying
it, casually observing him, as people do in the ordinary and usual associations of life.” Id. at
296. We find that there was sufficient evidence to show that defendant carried a handgun on his
person in a concealed manner in that it was carried in such a way that a person, upon casual
observation, could not discern the weapon. Jones, 12 Mich App at 296. Wojczynski testified
that when he first saw defendant, defendant pressed his right forearm against his body.
Wojczynski testified that he saw defendant “holding his waistband with his forearm” and stated
that defendant’s right arm was in a “bent” position. Wojczynski subsequently saw defendant
remove a large black object as he was running. Although neither Wojczynski nor another police
witness could positively identify what the object was, the reasonable inferences on the record
before us are that the object was a gun. On this record, we conclude that a rational trier of fact
could convict defendant of CCW beyond a reasonable doubt.
Next, defendant raises ten separate claims of prosecutorial misconduct. Defendant failed
to preserve any of these claims for review because he did not make a contemporaneous objection
or request for a curative instruction on the same basis at trial. People v Brown, 279 Mich App
116, 134; 755 NW2d 664 (2008). We review unpreserved claims of prosecutorial misconduct
for plain error affecting defendant’s substantial rights. People v Callon, 256 Mich App 312, 329;
662 NW2d 501 (2003). “Reversal is warranted only when plain error resulted in the conviction
of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” Id. “The test for prosecutorial misconduct is, viewing the alleged
misconduct in context, whether the defendant was denied a fair and impartial trial.” People v
Goodin, 257 Mich App 425, 432; 668 NW2d 392 (2003).
Defendant first argues that the prosecutor acted improperly when he informed the jury
that the gun police found under the stairway was stolen and that bullets found at another crime
scene matched the gun. We agree that the prosecutor’s introduction of evidence that the gun was
stolen was improper because the danger of unfair prejudice substantially outweighed its
probative value. See MRE 403. Nevertheless, the impropriety did not deny defendant a fair trial
where there was a significant amount of other evidence to support the jury’s verdict in this case
and where the jury was already informed that defendant had a prior felony conviction. Callon,
256 Mich App at 329. With respect to the police witness’ testimony concerning other crime
scenes, there was no error where, contrary to defendant’s claim on appeal, the witness did not
testify that the gun was linked to other crimes.
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Second, defendant claims that the prosecutor committed misconduct by introducing
statements made by the individual who called 9-1-1 as relayed to police by radio dispatch.
Defendant contends that this evidence amounted to hearsay and a violation of his constitutional
right of confrontation. Evidence of the radio dispatch was admissible to show Wojczynski’s
motive to pursue a specific course of action. People v Lewis, 168 Mich App 255, 267; 423
NW2d 637 (1988). The prosecutor’s use of the evidence to prove defendant’s guilt, however,
was improper hearsay within hearsay. MRE 801(c); MRE 805. See People v Eady, 409 Mich
356, 360-361; 294 NW2d 202 (1980). However, we find that this did not amount to plain error
affecting defendant’s substantial rights. Callon, 256 Mich App at 329. Therefore, defendant’s
claim that the hearsay evidence violated his constitutional right of confrontation also fails. See
People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
Third, defendant argues that the prosecutor acted improperly when he introduced
evidence that a police officer thought defendant was holding a gun. Defendant’s argument fails
because defense counsel introduced this evidence.
Fourth, defendant claims that the prosecutor committed misconduct when he questioned
two police witnesses concerning whether there were any other complaints reported to police that
involved men with guns at the nightclub. The prosecutor did not commit misconduct in this
context where the challenged evidence was relevant and did not amount to hearsay.
Fifth, defendant contends that the prosecutor committed misconduct when a police
witness testified that defendant did not want to talk with him after defendant was taken into
custody and when the officer testified that he obtained a warrant. Any impropriety on the part of
the prosecutor amounted to no more than harmless error where the testimony was brief and the
trial court instructed the jury that a criminal defendant was presumed innocent, had the right not
to testify, and that the jury was not to consider the fact that defendant was charged with several
crimes as evidence of his guilt. See People v Unger, 278 Mich App 210, 226; 749 NW2d 272
(2008) (“[c]urative instructions are sufficient to cure the prejudicial effect of most inappropriate
prosecutorial statements … and jurors are presumed to follow their instructions” id. at 235).
Sixth, defendant argues that the prosecutor committed misconduct when he referenced
statements defendant made on a recorded telephone call that was admitted at trial and when he
argued that defendant did not deny guilt during the conversation. Here, defendant’s silence, i.e.
failure to deny guilt, was not constitutionally protected where he waived his Fifth Amendment
right of silence and agreed to answer police questions after he was arrested, and where the
telephone conversation did not involve custodial interrogation. People v Schollaert, 194 Mich
App 158, 166; 486 NW2d 312 (1992); People v Solmonson, 261 Mich App 657, 664-665; 683
NW2d 761 (2004). The comment was relevant and admissible as conduct evincing a
consciousness of guilt. See Solmonson, 261 Mich App at 665-667 (a prosecutor may comment
on what a defendant said in combination with what a defendant did not say). Similarly, the
prosecutor did not act improperly when he referenced certain statements defendant made during
the telephone conversation. See People v Fisher, 220 Mich App 133, 156; 559 NW2d 318
(1996) (“A prosecutor is free to argue the evidence and all reasonable inferences from the
evidence ….”)
Seventh, defendant argues that the prosecutor committed misconduct and attempted to
shift the burden of proof when he argued that defendant did not offer an explanation to police as
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to why he ran. The prosecutor did not act improperly in referencing defendant’s flight. People v
McGhee, 268 Mich App 600, 634-635; 709 NW2d 595 (2005) (“a prosecutor may comment on
the inferences that may be drawn from a defendant’s flight”). In addition, the comment served to
rebut the defense theory that defendant ran merely because of his previous encounters with
police and it did not improperly shift the burden of proof. Id.
Eighth, defendant argues that the prosecutor committed misconduct when he stated
during closing argument that a security guard at the nightclub could have identified defendant
but was apprehensive that night because of the large crowd at the scene. The prosecutor appears
to have improperly attributed the security guards’ testimony to one of the officers, but the
testimony referenced was accurate, and it was proper comment concerning that testimony. The
security guard stated that he declined an officer’s invitation to identify a suspect at the scene
because there were a number of other bystanders present at the time. The security guard agreed
that he “very well could have” had a conversation with a police officer on the date of the incident
wherein he stated that he “witnessed a subject with a firearm.” The inference that the security
guard was apprehensive and did not want to identify a suspect in the presence of numerous
nightclub patrons was a reasonable comment concerning the security guards’ testimony. See
Fisher, 220 Mich App at 156 (“A prosecutor is free to argue the evidence and all reasonable
inferences from the evidence as it relates to the prosecution’s theory of the case”). The
prosecutor did not commit misconduct in making this inference, even though mistakenly
attributed to a different witness, during his closing argument.
Ninth, defendant asserts that the prosecutor argued facts not in evidence on several
separate occasions. The prosecutor improperly argued that two police officers testified that they
thought defendant held a gun while he ran from police. The record indicates that only one
officer offered this testimony. Thus, there was a plain error where the prosecutor argued a fact
not in evidence. Unger, 278 Mich App at 241. Nevertheless, any error in this respect did not
deny defendant a fair trial because it did not affect his substantial rights. Callon, 256 Mich App
at 329. We have reviewed the record and conclude that the remaining challenged statements
were reasonable inferences arising from the evidence at trial. Fisher, 220 Mich App at 156.
Tenth and finally, defendant contends that the prosecutor denigrated defendant when he
referenced defendant’s flight and argued that defense counsel wanted the jury to focus on red
herrings. As discussed above, the prosecutor did not act improperly in referencing defendant’s
flight. McGhee, 268 Mich App at 634-635. Similarly, the prosecutor did not commit
misconduct when he used the phrase “red herrings.” See People v Fields, 450 Mich 94, 112-113;
538 NW2d 356 (1995) (a prosecutor may comment on the weakness of the defendant’s theory);
People v Aldrich, 246 Mich App 101, 112; 631 NW2d 67 (2001) (a prosecutor need not limit his
argument to the “blandest of all possible terms”).
Defendant additionally argues that all of the instances of prosecutorial misconduct in the
aggregate served to deny him a fair trial in this case and amounted to error requiring reversal.
We find that the combined effect of the errors discussed above did not amount to serious
prejudice warranting reversal. People v Knapp, 244 Mich App 361, 388; 624 NW2d 227 (2001).
Defendant next argues that his sentences are invalid pursuant to Blakely v Washington,
542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). Defendant’s argument lacks legal merit.
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See People v Drohan, 475 Mich 140, 143, 145-146, 159, 164; 715 NW2d 778 (2006) (rejecting
identical argument).
Next, defendant argues that the trial court improperly scored the legislative sentencing
guidelines offense variable (OV) 1, aggravated use of a weapon, and OV 19, interference with
administration of justice or emergency services. “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). “Scoring decisions for which there is any evidence
in support will be upheld.” People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006).
.
The trial court assessed five points for OV 1 and defendant argues that the variable
should not have been assessed any points. MCL 777.31 governs the scoring of OV 1 and
provides in relevant part that the trial court assess five points if “[a] weapon was displayed or
implied.” MCL 777.31(1)(e). In this case, evidence showed that defendant was clenching the
right side of his body near his waist when Wojczynski pulled up in his police cruiser. Defendant
then immediately fled on foot and Wojczynski saw defendant remove a large black item from his
waistband and hold it in his right hand. Another police officer testified that she saw defendant
running with an object in his right hand. Shortly thereafter, police discovered a large revolver
hidden underneath a stairway near where defendant tried to elude police. This evidence supports
the trial court’s scoring of OV 1. Endres, 269 Mich App at 417.
MCL 777.49 governs the scoring of OV 19, interference with administration of justice or
emergency services, and provides in relevant part that the trial court assess 15 points when,
“[t]he offender used force or the threat of force against another person or the property of another
person to interfere with, attempt to interfere with, or that results in the interference with the
administration of justice or the rendering of emergency services.” MCL 777.49(b).1 Defendant
argues that the trial court erred in scoring OV 19 at 15 points. For purposes of OV 19,
“interfering with a police officer’s attempt to investigate a crime constitutes interference with the
administration of justice.” People v Passage, 277 Mich App 175, 180; 743 NW2d 746 (2007).
Here, defendant interfered with police attempts to investigate the complaint when he ran from
police, hid in some bushes, and refused to comply with an officer’s commands. Additionally,
evidence showed that defendant’s use of the threat of force interfered with police attempts to
investigate the complaint. Wojczynski saw defendant holding the right side of his body near his
waist and he saw defendant remove a large black object from his waistband after he started
running. The officer had to slow his pursuit of defendant and proceed with caution because
defendant was armed with a deadly weapon. This evidence supports the trial court’s scoring of
OV 19 at 15 points. Endres, 269 Mich App at 417.
1
We reject defendant’s argument that OV 19 is void for vagueness. The wording of the statute
does not require heightened intelligence to understand what conduct is prohibited and does not
require a reasonable person to speculate about its meaning. See People v Sands, 261 Mich App
158, 161; 680 NW2d 500 (2004).
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Defendant also argues that his sentences violate the principal of proportionality. The
sentencing guidelines recommended minimum sentencing range for the sentencing offense in
this case (felon in possession) is 10 to 28 months. See MCL 750.224f; MCL 777.66; MCL
777.21. The trial court did not depart from this recommended minimum range when it sentenced
defendant to two to seven years and six months’ imprisonment for the sentencing offense.
Therefore, defendant’s sentence did not violate the principal of proportionality. People v Powell,
278 Mich App 318, 323; 750 NW2d 607 (2008) (“[A] sentence within the guidelines range is
presumptively proportionate”).
Finally, defendant raises an ineffective assistance of counsel claim but his failure to cite
to the record and failure to discuss or explain his argument constitutes abandonment of this issue.
People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“[a]n appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims, nor may he give only cursory treatment with little or no citation of supporting
authority”).
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Christopher M. Murray
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