597 N.W.2d 864 (Mich.App. 1999), 206321, People v. Avant

Docket Nº:Docket No. 206321.
Citation:597 N.W.2d 864, 235 Mich.App. 499
Opinion Judge:MARK J. CAVANAGH, J.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Earl AVANT, Defendant-Appellant.
Attorney:[235 Mich.App. 500] Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Angela Pasula, Prosecuting Attorney, and Elizabeth A. Wild, Assistant Prosecuting Attorney, for the people. David M. Hartsook, Brighton, for the defendant on appeal.
Judge Panel:Before: WHITBECK, P.J., and MARK J. CAVANAGH and RICHARD ALLEN GRIFFIN, JJ.
Case Date:August 09, 1999
Court:Court of Appeals of Michigan
 
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Page 864

597 N.W.2d 864 (Mich.App. 1999)

235 Mich.App. 499

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Timothy Earl AVANT, Defendant-Appellant.

Docket No. 206321.

Court of Appeals of Michigan.

August 9, 1999

Page 865

May 14, 1999

Submitted Feb. 10, 1999, at Grand Rapids.

Released for Publication Aug. 9, 1999.

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[235 Mich.App. 500] Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Angela Pasula, Prosecuting Attorney, and Elizabeth A. Wild, Assistant Prosecuting Attorney, for the people.

David M. Hartsook, Brighton, for the defendant on appeal.

Before: WHITBECK, P.J., and MARK J. CAVANAGH and RICHARD ALLEN GRIFFIN, JJ.

MARK J. CAVANAGH, J.

Defendant Timothy Avant appeals as of right his jury trial convictions of felonious assault, M.C.L. § 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). The trial court sentenced defendant as an habitual offender, second offense, M.C.L. § 769.10; MSA 28.1082, to a term of one to six years' imprisonment

Page 867

for the felonious assault conviction and to the mandatory consecutive term of two years' imprisonment for the felony-firearm conviction. We affirm but remand for the correction of the judgment of sentence.

The prosecution's theory of the case was that the complainant, Binh Doan, became lost and stopped to ask for directions from defendant, Jimmy Hornes, and Jewon Cannon, who then robbed him at gunpoint. The defense claimed that Doan had sought drugs from defendant and his companions, who traded soap chips (fake drugs) for Doan's leather jacket and cellular phone. After realizing that he had been conned, Doan had called the police and concocted the story about a robbery.

Doan testified that on the evening of December 22, 1996, he and a friend, Nam Vo, went to Le Chic nightclub in Benton Harbor. Doan was wearing a leather jacket and carrying sixty dollars and a cellular phone. The pair headed home around 1:00 a.m., but were in an unfamiliar area and became lost. Doan and Vo saw three men standing on the sidewalk, so Vo stopped the car and Doan went up to the men and asked for directions. Doan apparently conversed with the men for a few moments, then told them that he had to urinate and moved a short distance away. When Doan was finished, he turned around and saw that one of the men, whom he identified as defendant, was pointing a long gun at his face. While defendant continued to point the weapon at Doan, the other two men took his jacket, his cellular phone, and his cash. Doan then walked back to the car, got in, and told Vo to drive away. When Doan saw a restaurant, Vo stopped the car, and Doan went inside and called the police. Doan and Vo then drove back to the scene of the alleged robbery and spotted the three men sitting in a burgundy car. They memorized the car's license plate number and returned to the restaurant to wait for the police. Doan denied attempting to purchase drugs from defendant and his companions.

Officer Steve Bobo of the Benton Harbor Police Department testified that he met Doan and Vo at a restaurant on Main Street. They told him that Doan was robbed by three black men who had a weapon that appeared to be an AK-47 rifle. Doan and Vo took Officer Bobo to the scene of the alleged robbery and gave him the license plate number of the car in which they had seen the men. Officer Bobo forwarded the information to other units. After about ten or fifteen minutes, Officer David Neal radioed that he had spotted a car matching the description at a gas station. Officer Bobo brought Doan and Vo to the gas station, where they identified three men already in custody as the ones who had robbed Doan. Doan further identified a cellular phone found in the suspects' car as his.

Officer Neal testified that while on patrol, he spotted an unoccupied vehicle fitting the description of a car related to an armed robbery. Officer Neal drove through the parking lot of the gas station where the car was parked, and his partner noted that the license plate number matched the information they had received. Officer Neal requested assistance. As additional units arrived, three black males got into the car and began to back out of the parking space. The police then blocked the car in and ordered the occupants to get out. The men in the car were identified as defendant, Hornes, and Cannon. Cannon was carrying $168.

[235 Mich.App. 503] The police subsequently went to Hornes' mother's house, where Hornes was known to reside on occasion, and received permission to search from Hornes' mother. In the basement, where Hornes stayed, Officer Neal found in a dresser drawer two thirty-round magazines for an assault rifle. Under the drawer, Officer Neal discovered an assault rifle that contained one live round; Neal stated that if the weapon had been fired, the bullet would have gone through a refrigerator. Officer Bobo testified that he found a black leather jacket on a couch in the basement.

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The prosecutor's final witness was Hornes. Hornes testified that he had pleaded guilty of unarmed robbery, M.C.L. § 750.530; MSA 28.798, the previous Friday and had agreed to testify truthfully as part of his plea agreement. Hornes stated that he and defendant are cousins. On December 22, 1996, Doan and Vo had asked Hornes and his companions if they had any crack cocaine. While Vo waited in the car, Doan went into Hornes' mother's house with the three men. Hornes and Cannon went into the bathroom, chopped up some soap, and put it in a plastic bag. They then joined defendant and Doan in the basement, and Doan traded his jacket and cellular phone for the fake drugs. Afterward, the four left the house, and Hornes and his companions ended up at the gas station, where they were arrested. As far as Hornes knew, defendant had not possessed a gun.

In response to the prosecutor's questions, Hornes admitted that he had told a different story at his plea hearing. Hornes conceded that he had previously testified that he and his companions had robbed Doan after they tried to sell Doan some fake drugs, and that [235 Mich.App. 504] defendant had possessed an assault rifle. Hornes explained that he had testified as he had at the plea proceeding because his lawyer had told him that it was necessary in order to get the plea agreement. 1

At this point, defense counsel objected. After a bench conference, and with the jury apparently still present, the trial court advised Hornes at length of his Fifth Amendment rights. U.S. Const, Am V. At the request of Hornes' counsel, the trial court informed Hornes that his contradictory testimony could result in perjury charges. The trial court then recessed court so that Hornes could consult with his attorney. When court reconvened, Hornes' counsel informed the court that Hornes had chosen to continue to testify. Upon retaking the stand, Hornes persisted in asserting that he had testified as he had previously in order to get a plea agreement, and he was "here today to tell a true statement."

Defendant testified Doan came to the house with Cannon and Hornes. Defendant took Doan into the basement. Defendant saw an assault rifle partially under the couch and assumed that it had been left in the basement by a recent visitor from Chicago. Defendant offered to sell the weapon to Doan. Doan apparently declined, so defendant put the gun under the dresser drawer. Doan told defendant that he did not have any money. When Cannon and Hornes came downstairs, they accepted Doan's jacket and cellular phone in exchange for some soap chips (fake drugs). Defendant denied pointing the gun at Doan or taking sixty dollars from him.

[235 Mich.App. 505] Defendant was charged with armed robbery, M.C.L. § 750.529; MSA 28.797, and felony-firearm. The jury convicted defendant of the lesser offense of felonious assault and felony-firearm. The trial court sentenced defendant as an habitual offender, second offense, to a term of one to six years' imprisonment for the felonious assault conviction and to the mandatory consecutive term of two years' imprisonment for the felony-firearm conviction.

I

Defendant first argues that the evidence presented at trial was insufficient to support his convictions. When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992). Circumstantial evidence and reasonable inferences

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arising therefrom may be sufficient to prove the elements of a crime. People v. Nelson, 234 Mich.App. 454, 459, 594 N.W.2d 114 (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 N.W.2d 1 (1996). The elements of felony-firearm are that the defendant possessed a firearm during the commission of, or the attempt to commit, a felony. Id. Doan testified that defendant pointed an assault weapon at his face while defendant's companions took his jacket, cellular [235 Mich.App. 506] phone, and cash. This testimony was sufficient for a reasonable factfinder to find that the elements of felonious assault and felony-firearm were established beyond a reasonable doubt.

Defendant contends that Doan was not credible because of the inconsistencies between his trial testimony, his preliminary examination testimony, and the testimony of other witnesses. From our review of Doan's testimony, at least some of the inconsistencies appear to result from his lack of proficiency in English. In any case, defense counsel ensured that...

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