People v. Dukes

• Decision Date: 07 May 1991
• Docket Number: Docket No. 118053
• Citation: 471 N.W.2d 651,189 Mich.App. 262
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee-Cross-Appellant, v. Keith Mark DUKES, Defendant-Appellant-Cross-Appellee. 189 Mich.App. 262, 471 N.W.2d 651
• Court: Court of Appeal of Michigan — District of US

Page 651

471 N.W.2d 651

PEOPLE of the State of Michigan Plaintiff-Appellee-Cross-Appellant, v. Keith Mark DUKES, Defendant-Appellant-Cross-Appellee.

Docket No. 118053.

189 Mich.App. 262, 471 N.W.2d 651

Court of Appeals of Michigan.

Submitted Feb. 14, 1991, at Detroit.

Decided May 7, 1991, at 10:15 a.m.

Released for Publication July 29, 1991.

[189 MICHAPP 263] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and G.L. Ghristopherson, Asst. Pros. Atty., for the People.

[189 MICHAPP 264] Keith M. Dukes, in pro. per.

Lawrence R. Greene, Detroit, for defendant on appeal.

Before MacKENZIE, P.J., and GRIBBS and GRIFFIN, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of uttering and publishing a forged instrument, M.C.L. Sec. 750.249; M.S.A. Sec. 28.446, and conspiracy to utter and publish a forged instrument, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). He subsequently pleaded guilty of being an habitual offender, third offense, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. Defendant was sentenced to seven to twenty-eight years' imprisonment for the convictions. He appeals his convictions and sentence as of right. The people cross appeal the sentence by delayed leave granted. We affirm in part and remand in part.

Defendant first contends that the trial court erred in allowing the prosecutor to impeach defendant with evidence of a prior unarmed robbery conviction. The record indicates that the court's ruling on the admissibility of the conviction was made on April 6, 1989. Because defendant has not provided a transcript of the April 6 proceedings, we deem the issue abandoned. People v. Dwight Johnson, 173 Mich.App. 706, 707, 434 N.W.2d 218 (1988).

Defendant's next claim, that the jury's verdict was against the great weight of the evidence, is likewise not preserved for appellate review because defendant did not move for a new trial. People v. Richard Johnson, 168 Mich.App. 581, 585, 425 N.W.2d 187 (1988).

Defendant also claims that the trial court erred in denying his motion for a directed verdict because the evidence was insufficient to support his convictions. When reviewing a challenge to the [189 MICHAPP 265] sufficiency of the evidence, this Court views the evidence in a light most favorable to the prosecution to determine if a rational trier of fact could have found that the elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980).

Viewed in a light most favorable to the prosecution, the evidence in this case indicated that Cherie Skeens obtained the complainant's checkbook without his consent and gave it to Jimmy Williams. Williams, in turn, approached defendant about a stolen check. Defendant agreed to cash the check offered by Williams, and the two went to a bank. There, defendant presented to a teller a $200 check payable to defendant and drawn on the complainant's account, and the teller cashed it. Defendant and Williams each kept $100.

The elements of uttering and publishing require that the defendant knew the instrument was false, that he had an intent to defraud, and that he presented the forged instrument for payment. People v. Hammond, 161 Mich.App. 719, 722, 411 N.W.2d 837 (1987). A rational trier of fact reasonably could have found that the evidence satisfied each of these elements. Moreover, a rational trier of fact reasonably could have concluded that defendant and Williams had a mutual understanding or agreement to commit the offense of uttering and publishing, and thus were engaged in a conspiracy. See People v. Bettistea, 173 Mich.App. 106, 117-118, 434 N.W.2d 138 (1988). The trial court did not err in denying defendant's motion for a directed verdict.

Defendant's remaining arguments concern his sentence of 7 to 28 years or 84 to 336 months. Defendant's claim, that this sentence was an abuse of discretion under People v. Milbourn, 435 Mich. [189 MICHAPP 266] 630, 461 N.W.2d 1 (1990), is without merit. In imposing sentence, the trial judge stated that he would sentence defendant within the sentencing guidelines' recommended minimum sentence range of 24 to 84 months despite defendant's status as an habitual offender. Milbourn left intact the Court's prior observation, inPeople v. Broden, 428 Mich. 343, 354, 408 N.W.2d 789 (1987), that sentences falling within the recommended guidelines range are presumptively not excessively severe or unfairly disparate. Defendant has not presented mitigating factors related to his criminal history or the circumstances of these offenses which are of sufficient significance to overcome this presumption of proportionality. We find no abuse of discretion in the sentence imposed.

Defendant further claims that the court's articulation of the reasons for the sentence was insufficient. In light of the court's expressed reliance on the guidelines' recommendation, we reject this claim. Id.

The people contend that the trial court erred in ruling that defendant's sentence could not run consecutively to an existing sentence defendant was serving for possession of a...