People v. Brooks

• Decision Date: 18 February 2014
• Docket Number: Docket No. 312639.
• Citation: 304 Mich.App. 318,848 N.W.2d 161
• Parties: PEOPLE v. BROOKS.
• Court: Court of Appeal of Michigan — District of US

304 Mich.App. 318

848 N.W.2d 161

PEOPLE

v.BROOKS.

Docket No. 312639.

Court of Appeals of Michigan.

Submitted Feb. 5, 2014, at Detroit.

Decided Feb. 18, 2014, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, William P. Nichols, Prosecuting Attorney, and Michael C. Brown, Assistant Prosecuting Attorney, for the people.

Wendy Barnwell, Detroit, for defendant.

Before: MURPHY, C.J., and M.J. KELLY and RONAYNE KRAUSE, JJ.

PER CURIAM.

Defendant pleaded no contest to unarmed robbery, MCL 750.530, and was sentenced to 8 to 40 years' imprisonment. He appeals by leave granted, arguing that his sentencing guidelines score should be reduced. Specifically, he argues that he should have been assessed 5 points for Offense Variable (OV) 1 rather than 15 points, on the theory that he never threatened anyone with a knife, but rather merely displayed or implied the knife. We disagree and affirm.

“Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013). “Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made.” People v. McDade, 301 Mich.App. 343, 356, 836 N.W.2d 266 (2013). This Court reviews de novo whether the facts, as found by the sentencing court, are adequate to satisfy the scoring conditions prescribed by statute. Hardy, 494 Mich. at 438, 835 N.W.2d 340. Accordingly, the lower court's factual finding that defendant attempted to pull a knife out of his sock is reviewed for clear error. The application of the statutory scoring conditions to that finding is reviewed de novo.

“Offense variable 1 is aggravated use of a weapon.” MCL 777.31(1). See also People v. Morson, 471 Mich. 248, 256, 685 N.W.2d 203 (2004). Pursuant to OV 1, 15 points must be assessed when “[a] firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an immediate battery when threatened with a knife or other cutting or stabbing weapon.” MCL 777.31(1)(c). Alternatively, pursuant to OV 1, 5 points must be assessed if “[a] weapon was displayed or implied.” MCL 777.31(1)(e). Defendant does not contend that “[n]o aggravated use of a weapon occurred.” MCL 777.31(1)(f). Indeed, there is no dispute that the victim—the cashier at the gas station where the robbery took place—had a reasonable apprehension of an immediate battery. Therefore, the issue before this Court is whether a knife was used to threaten the victim, or if the knife was merely displayed or implied without a threat.

Michigan Courts have not previously considered what actions constitute a threat under MCL 777.31(1)(c), versus a mere display of a weapon under MCL 777.31(1)(e). Consequently, this is an issue of first impression. Words not defined by statute are given their plain and ordinary meanings, and consulting a dictionary to ascertain those meanings is proper. Koontz v. Ameritech Servs., Inc., 466 Mich. 304, 312, 645 N.W.2d 34 (2002). Random House Webster's College Dictionary (1997) defines “threaten” as “to be a menace or source of danger to” or “to indicate impending evil, mischief, or difficulty.” “Display” is defined as “to show or exhibit; make visible.” Id.

Clearly, whether displaying something would constitute a threat must be highly context specific. For example, a box cutter displayed while opening one's mail would not likely suggest a source of danger to an observer, because in that context it is unambiguously being used as a tool. Or a sales clerk in a store that sells knives showing a knife to a customer would not likely suggest a source of danger to a customer, because in that context it is merely an item of commerce. How the knife was used to threaten or how it was displayed must also be put in context here, a case involving a crime that by definition entails the defendant “us[ing] force or violence against any person who is present, or ... assault[ing] or put[ting] the person in fear....” MCL 750.530(1). The situational context in this case would suggest that the presence of the knife was not benign.

Significantly, MCL 777.31(1) explicitly distinguishes “threaten [ing]” from “display[ing].” Furthermore, MCL 777.31(1)(c) indicates that the threat is associated with, if not the proximate cause of, the victim reasonably apprehending an immediate battery. Finally, it is instructive that although MCL 777.31(1)(c) and (e) are both phrased in the passive voice, the former necessitates the victim's involvement in some way, whereas the latter does not. We conclude that the minimum distinction between the two circumstances is whether the defendant in any way suggests, by act or circumstance, that the weapon might actually be used against the victim.

In other words, the fact that some kind of weapon is apparently present, by sight or by implication, in the abstract warrants the assessment of 5 points under MCL 777.31(1)(e). To warrant the assessment of 15 points under MCL 777.31(1)(c), there must be some reason, however slight, for the victim to reasonably perceive that the weapon will actually be used, and moreover, will actually be used against the victim. A threat exists when a knife is used for the purpose of suggesting to the victim a “menace or source of danger....” Random House Webster's College...