People v. Davis
| Decision Date | 29 January 2008 |
| Docket Number | Docket No. 272547.,Docket No. 272548. |
| Citation | 747 N.W.2d 555,277 Mich.App. 676 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee v. Keith Burnell DAVIS, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Gilberto Estrada Perez, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Bennett Law Office (by P.E. Bennett), Ann Arbor, for Keith Davis.
Neil J. Leithauser, Troy, for Gilberto Perez.
Before: KIRSTEN FRANK KELLY, P.J., and MARK J. CAVANAGH and O'CONNELL, JJ.
Defendants Keith B. Davis and Gilberto E. Perez appeal as of right their convictions for assault with intent to rob while armed, MCL 750.89. The trial court sentenced Davis to 5 to 20 years' imprisonment and sentenced Perez as an habitual offender, fourth offense, MCL 769.12, to 10 to 30 years' imprisonment. We affirm.
The defendants' convictions stem from an incident in which Davis and Perez were foiled in their efforts to rob a liquor store. The store's owner testified that at about 12:45 a.m. on a night in mid-January 2006 she saw Davis enter her store through the back door and suspiciously mill around before approaching the front of the store and asking about the price of a small bottle of rum. Davis's mannerisms tipped off the 30-year liquor-store veteran that something was amiss. The owner spotted Perez lurking outside the rear entrance and watching her, but when Perez saw that he had caught the owner's attention, he stepped away from the building and retreated down the back stairs. Soon afterward, Davis left without buying anything. Having experienced several robberies before, the storeowner picked up the phone and placed it near her.
Within a few minutes, Perez came through the back door, wearing sunglasses and a hat. The storeowner immediately dialed 911, and Perez approached the front of the store with his hand in his coat pocket and put a note on the counter. Remaining on the phone, the owner did not read the note, and instead asked Perez why he was wearing sunglasses. At this, Perez, whose behavior insinuated the threat of a concealed handgun, demanded, "Give me the money, or I'll kill you." In return, the owner demanded to see Perez's firearm or leave, and a standoff ensued until the storeowner's fiancé providently arrived. Perez pointed his pocket at the fiancé and again demanded compliance with his orders, but when Perez groped for a beer bottle and then the cash register with his free hand, the recalcitrant storeowner snatched up a nearby flashlight and smacked his hand with it. During the argument that ensued, the storeowner's fiancé slipped away, only to return soon afterward with a large shovel. He hit Perez in the back and then tackled Perez. Another man arrived at the store and helped restrain Perez. The storeowner immediately went looking for Davis, and when she found him she identified him to a police officer, who promptly arrested him.
Davis told the police that he had known Perez for about a year, and that they went to the store together to purchase alcohol. Davis explained that he did not have any identification, so he gave Perez four dollars to purchase the alcohol. Davis claimed that he did not know Perez planned on robbing the store. Davis also denied going inside the store. Perez had only 20 cents on him at the time of his arrest, and he was unarmed. However, the note that he had handed the storeowner reiterated his earlier threat, "Give me the money, or I'll kill you." At trial, the surveillance videotape from the store was admitted into evidence, and it showed Perez entering the store, placing the note on the counter, keeping his hand in his pocket, and demanding money.
Davis argues that he should be resentenced because his trial counsel did not appear at sentencing. Davis did not waive trial counsel's representation on the record, and he did not openly consent to being represented by substitute counsel. However, nothing in the record suggests that the attorney who represented him at sentencing was specially appointed for the purpose by the trial court, as in People v. Evans, 156 Mich.App. 68, 401 N.W.2d 312 (1986). Instead, the record suggests that "substitute" counsel fully represented defendant as an attorney who was associated with his trial counsel and who came from his trial counsel's law office. A criminal defendant does not have "an absolute right to be represented at sentencing by the lawyer who represented him at trial." Id. at 70, 401 N.W.2d 312. At Davis's sentencing, the "substitute" counsel was introduced as Davis's attorney without any objection from him, and the attorney elaborated that she was standing in on the trial attorney's behalf. She demonstrated a familiarity with Davis, his file, and the sentencing issues he faced, and when Davis was provided with an opportunity to speak, he only expressed a desire to apologize to the victim. Without any indication that Davis opposed the representation at the time of sentencing and absent any other facts that would suggest that manifest injustice arose from the substitution of counsel, adopting defendant's argument would be tantamount to recognizing an absolute right to representation by trial counsel at sentencing. We have already rejected this proposition. Id. Therefore, Davis fails to persuade us that we should vacate his sentence merely because he was represented at sentencing by an attorney who did not represent him at trial.
Davis next challenges the trial court's scoring of offense variable (OV) 10 at 15 points, arguing that the trial court committed clear error by entering the score because no evidence supported it. We disagree. According to MCL 777.40(1), a score of 15 points for OV 10 is appropriate if the offense involves predatory conduct, which is defined in MCL 777.40(3)(a) as "preoffense conduct directed at a victim for the primary purpose of victimization." Unlike the other categories in OV 10, a 15-point score applies when a defendant takes measures to determine the suitability and vulnerability of a particular victim before executing the crime. See People v. Witherspoon, 257 Mich.App. 329, 335-336, 670 N.W.2d 434 (2003). In this case, the evidence suggested that Davis "cased" the store, and found that the storeowner, a lone woman, made a suitable victim for the robbery scheme hatched by him and Perez. Davis's gross miscalculation of his adversary's capabilities in thwarting Perez does not dilute the egregiousness of Davis's actions or lower his score. See MCL 777.40(1). In short, there was no clear error because the record adequately supported the trial court's score. See People v. Elliott, 215 Mich. App. 259, 260, 544 N.W.2d 748 (1996).
Davis also argues that resentencing is in order because the trial court failed to consider whether he could afford to reimburse the county for his attorney fees before ordering reimbursement. See People v. Dunbar, 264 Mich.App. 240, 251, 690 N.W.2d 476 (2004). We disagree. However, the trial court specifically addressed, without objection, defendant's ability to pay these and other costs, so defendant's arguments regarding defects in the trial court's reimbursement order are groundless. Id. at 255, 690 N.W.2d 476. Furthermore, we reject Davis's arguments that his counsel acted ineffectively by failing to raise these sentencing issues, or that the trial court abused its discretion by denying his request for an evidentiary hearing to explore them more fully. The record simply does not reflect any error attributable to Davis's counsel or the trial court, and we agree with the trial court that Davis failed to demonstrate how further factual inquiry would have materially affected the issues.
Turning to Perez's arguments, the crux of his appeal is that the evidence clearly demonstrated that the storeowner never believed that he was actually armed with a firearm and did not fear that he could carry out his death threats. From this basic proposition, defendant extrapolates several errors in the trial proceedings, including the prosecutor's failure to present sufficient evidence that he assaulted the storeowner, the trial court's instruction to the jury that the storeowner's subjective belief was largely irrelevant, and the trial court's failure to provide an instruction about the alternative crime of attempted assault. Because we disagree with the premise of defendant's arguments, we reject each of these claims of error. The issue presented is a legal question regarding the elements of assault with intent to commit armed robbery, so we review it de novo. People v. Keller, 479 Mich. 467, 473-474, 739 N.W.2d 505 (2007).
During cross-examination of the storeowner, Perez's counsel advanced a theory that the owner knew Perez was not armed, so she never actually feared him or felt threatened by him. During closing argument, Perez's counsel asserted that the evidence did not support a finding that the owner ever believed she was in danger, so if the jury found defendant guilty of anything, it should be an attempt to assault the storeowner. Perez's counsel essentially argued, in accordance with statements extracted from Supreme Court precedent that the storeowner had to believe, reasonably, that defendant was armed before the jury could find that defendant assaulted her. See People v. Reeves, 458 Mich. 236, 240, 580 N.W.2d 433 (1998).
Perez first argues that the prosecutor presented insufficient evidence that he assaulted the storeowner, which requires us to vacate his conviction. We disagree. "[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748, amended 441 Mich. 1201, 489 N.W.2d 748 (...
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...harm short of homicide. Mich. Comp. Laws § 750.84. An assault can even be intended to merely scare the victim. See People v. Davis , 277 Mich.App. 676, 747 N.W.2d 555, 561, vacated in part on other grounds , 482 Mich. 978, 755 N.W.2d 186 (2008) (mem.) ("[A]n assault simply means to engage i......