PEOPLE OF MI V JERMAINE SPENCER PERRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 10, 2011
Plaintiff-Appellee,
v
No. 293706
Wayne Circuit Court
LC No. 08-003734-FH
JERMAINE SPENCER PERRY,
Defendant-Appellant.
Before: MURPHY, C.J., and METER and SHAPIRO, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction following a bench trial of felonious
assault, MCL 750.82. The trial judge sentenced defendant to one year in jail. We reverse and
remand for entry of a conviction of simple assault.
Defendant argues that the trial court rendered a verdict requiring reversal when it
convicted him of felonious assault yet acquitted him of felony-firearm, finding that the evidence
did not prove beyond a reasonable doubt that defendant possessed a gun.
For cases tried without a jury, we review the trial court’s findings of fact for clear error
and its conclusions of law de novo. MCR 2.613(C); People v Lanzo Constr Co, 272 Mich App
470, 473; 726 NW2d 746 (2006). We find that the trial court’s factual findings did not support
the felonious-assault conviction and that the conviction must be reversed.
“The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich App 499, 505;
597 NW2d 864 (1999). “The elements of felonious assault are (1) an assault, (2) with a
dangerous weapon, and (3) with the intent to injure or place the victim in reasonable
apprehension of an immediate battery.” People v Davis, 216 Mich App 47, 53; 549 NW2d 1
(1996) (internal citation and quotation marks omitted). An individual assaults another when he
attempts a battery against the person or commits an unlawful act that places the person in
reasonable apprehension of an immediate battery. People v Starks, 473 Mich 227, 240; 701
NW2d 136 (2005). “Felonious assault is defined as a simple assault aggravated by the use of a
weapon.” People v Jones, 443 Mich 88, 100; 504 NW2d 158 (1993).
Only the victim purported to have seen a gun. An eyewitness testified that she did not
see a gun, and defendant denied that he was carrying a gun. The trial court noted that there was
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no evidence that defendant used any words to imply that he had a gun. Finally, no gun was
recovered or introduced into evidence. The court stated the following:
When you have some testimony that supports an allegation, other
testimony that doesn’t support an allegation, and then no physical evidence to
corroborate either one or the other, it becomes a definite hard thing for this Court
to say that it was proof beyond a reasonable doubt that it was a gun as it relates to
being a weapon capable of firing.
But as it relates to an article used or fashioned in a way to make one feel
an immediate battery, I think it’s sufficient for that purpose. And for that reason
the Court is going to find [d]efendant guilty of [felonious assault].
The trial court found that the existence of a gun had not been established beyond a reasonable
doubt. Because no other weapon was ever discussed to support the felonious-assault charge,
finding defendant guilty of felonious assault was not supportable.1
The prosecutor agrees that defendant’s conviction of felonious assault must be reversed.
However, she argues that the case should be remanded for entry of a conviction of simple
assault. We agree. The trial court clearly found that defendant committed an “apprehensiontype assault” in this case, see Starks, 473 Mich at 240, even though it erroneously elevated the
offense to felonious assault based on a “feigned weapon.” Accordingly, an appropriate remedy
is to remand for entry of the lesser offense whose elements were found by the trial court and
supported by the evidence. This remedy has been used multiple times in cases involving armed
versus unarmed robbery. See, e.g., People v Saenz, 411 Mich 454, 458; 307 NW2d 675 (1981),
and People v Chandler, 201 Mich App 611, 616; 506 NW2d 882 (1993); see also People v
Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001), and People v Randolph, 466 Mich 532, 553;
648 NW2d 164 (2002) (when vacating a verdict, an appellate court may, in appropriate
circumstances, remand for entry of a judgment of guilt on a necessarily included lesser offense
that was subsumed in the verdict).
1
As noted in People v Walker, 461 Mich 908; 603 NW2d 784 (1999), “[w]hile juries are not
held to rules of logic, or required to explain their decisions, a judge sitting without a jury is not
afforded the same lenience.” It seems likely that the trial court, in rendering the verdict,
mistakenly conflated the elements of felonious assault with those of armed robbery. Indeed, for
an armed robbery offense, a “feigned weapon” may be used as the basis for a conviction. See
People v Jolly, 442 Mich 458, 468-470; 502 NW2d 177 (1993); see also MCL 750.529. For a
conviction of felonious assault, however, an actual weapon must have been employed. MCL
750.82.
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Reversed and remanded for entry of a conviction of simple assault and for resentencing.
We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Douglas B. Shapiro
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