People v. Earl

• Decision Date: 19 June 2012
• Docket Number: Docket No. 302945.
• Citation: 822 N.W.2d 271,297 Mich.App. 104
• Parties: PEOPLE v. EARL.
• Court: Court of Appeal of Michigan — District of US

297 Mich.App. 104

822 N.W.2d 271

PEOPLE

v.EARL.

Docket No. 302945.

Court of Appeals of Michigan.

Submitted June 12, 2012, at Detroit.

Decided June 19, 2012, at 9:10 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Louis F. Meizlish, for the people.

State Appellate Defender (by Christopher M. Smith), for defendant.

Before: KIRSTEN FRANK KELLY, P.J., and SAWYER and RONAYNE KRAUSE, JJ.

PER CURIAM.

Defendant appeals as of right following his jury trial convictions for bank robbery, MCL 750.531, and two counts of possession of less than 25 grams of a controlled substance, MCL 333.7403(1) and MCL 333.7403(2) (a)(v). He was sentenced as an habitual offender, fourth offense, MCL 769.12, to concurrent prison terms of 10 to 40 years for the robbery conviction and 2 to 15 years for each drug conviction. We affirm.

I. BASIC FACTS

Defendant was convicted of robbing a Southfield branch of Bank of America on March 18, 2010, while dressed as a woman. He was identified as the perpetrator by both the confronted bank teller and a bank manager, and a bystander identified defendant as the person the bystander had observed fleeing from the area. The prosecution also presented three witnesses who each testified that defendant had approached them about being a getaway driver for a planned bank robbery. When defendant was arrested on March 24, 2010, the police found crack cocaine and heroin on his person. At trial, defendant conceded that he was guilty of the narcotics offenses, but denied committing the bank robbery. He presented an alibi defense through his fiancée, and the defense argued that the identification testimony was not credible, and that the witnesses who claimed that they were solicited to be a getaway driver were unreliable drug users.

II. MOTION TO SUPPRESS EVIDENCE

Defendant first argues that the trial court erred by denying his motion to suppress a pair of women's reading glasses that were seized during a search of defendant's fiancée's vehicle. Defendant had been a passenger in the vehicle when he was arrested. When reviewing a motion to suppress evidence, we review for clear error the trial court's findings of fact and we review de novo its ultimate decision whether to suppress the evidence. People v. Hyde, 285 Mich.App. 428, 438, 775 N.W.2d 833 (2009).

The United States and the Michigan Constitutions both prohibit unreasonable searches and seizures. U.S. Const., Am. IV; Const. 1963, art. 1, § 11. The basic rule is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (citation and quotation marks omitted). In other words, warrantless searches and seizures are presumptively unreasonable unless an exception to the warrant requirement applies. However, to attack the propriety of a search and seizure, the defendant must first establish that he or she has standing to challenge the search. People v. Powell, 235 Mich.App. 557, 561, 599 N.W.2d 499 (1999). Standing exists if, considering the totality of the circumstances, the defendant had a legitimate expectation of privacy in the object of the search and seizure and that expectationis one that society is prepared to recognize as reasonable. People v. Parker, 230 Mich.App. 337, 340, 584 N.W.2d 336 (1998). Regarding vehicles, when the stop of a vehicle is legal, a passenger with no property or possessory interest in the vehicle does not have standing to contest the search of the vehicle.¹ See People v. Labelle, 478 Mich. 891, 892, 732 N.W.2d 114 (2007), People v. Armendarez, 188 Mich.App. 61, 71, 468 N.W.2d 893 (1991), People v. Carey, 110 Mich.App. 187, 194–195, 312 N.W.2d 205 (1981), and People v. Smith, 106 Mich.App. 203, 208–209, 307 N.W.2d 441 (1981).

In this case, defendant did not assert a property or possessory interest in the vehicle or the women's eyeglasses that were seized. The vehicle searched belongedto defendant's fiancée, who was also the driver. The mere fact that defendant was engaged to the owner of the vehicle did not endow him with an ownership interest in the vehicle or a reasonable expectation of privacy in it. Although defendant claims that his fiancée allowed him to use the vehicle, he did not show a continuous use of and right of access to the vehicle. Thus, defendant failed to carry his burden of demonstrating that he had a legitimate possessory or privacy interest in the vehicle. Accordingly, he lacks standing to contest the search of it and the seizure of the women's eyeglasses from it. Therefore, the trial court did not err by denying defendant's motion to suppress.

III. THE SCORING OF OFFENSE VARIABLES 4 AND 13

Defendant argues that he is entitled to resentencing because the trial court erroneously assessed 10 points for offense variables (OVs) 4 and 13 of the sentencing guidelines. Again, we disagree. Defendant did not object to the scoring of OV 4 or OV 13 at sentencing. However, he filed a motion to remand with this Court in order to raise this issue in a motion for resentencing. Therefore, this issue is preserved. MCR 6.429(C) and MCL 769. 34(10).²

A trial court's scoring of the sentencing guidelines is reviewed to determine whether the court properly exercised its discretion and whether the record evidence adequately supports a particular score. People v. Lechleitner, 291 Mich.App. 56, 62, 804 N.W.2d 345 (2010). When challenged, a sentencing factor need only be proved by a preponderance of the evidence. People v. Wiggins, 289 Mich.App. 126, 128, 795 N.W.2d 232 (2010). The trial court may rely on reasonable inferences arising from the record evidence to sustain the scoring of an offense variable. People v. Haacke, 217 Mich.App. 434, 436, 553 N.W.2d 15 (1996).

A. OFFENSE VARIABLE 4

Ten points must be scored for OV 4 when “[s]erious psychological injury requiring professional treatment occurred to a victim[.]” MCL 777.34(1)(a). “[T]he victim's expression of fearfulness is enough to satisfy the statute[.]” People v. Davenport (After Remand), 286 Mich.App. 191, 200, 779 N.W.2d 257 (2009); see also People v. Apgar, 264 Mich.App. 321, 329, 690 N.W.2d 312 (2004). In this case, the confronted bank teller testified at trial that she was nervous and scared during the robbery. She was concerned that defendant would harm her because there were no protective barriers between her and defendant and she did not know if he was going to “jump the window” or if he had a gun. According to a victim impact statement prepared for sentencing, the teller suffered from sleeplessness for weeks as a result of defendant's actions, “relived” the events of the robbery every time she closed her eyes, and now fears being robbed by her bank customers. The teller also submitted a letter to the court in which she recounted her constant fear of being robbed by her customers and her sleepless nights as a result of defendant's actions. This evidence adequately supports the trial court's assessment of 10 points for OV 4.

B. OFFENSE VARIABLE 13

OV 13 considers the “continuing pattern of criminal behavior.” MCL 777.43. A score of 10 points is appropriate when “[t]he offense was part of a pattern of felonious criminal activity involving a combination of 3 or more crimes against a person or property or a violation of [MCL 333.7401(2)(a)( i ) to ( iii ) or MCL 333.7403(2)(a)( i ) to ( iii ) ] of the public health code[.]” MCL 777.43(1)(d). Defendant argues that the trial court improperly considered a 2008 charge of bank robbery, which was dismissed, as the third offense to support the 10–point score for OV 13.

In determining the appropriate points for OV 13, “all crimes within a 5–year period ... shall be counted regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a) (emphasis added). In this case, the presentence report indicates that, in the 2008 case, defendant was identified as the perpetrator by his parole agent and was arrested. At sentencing, the prosecutor presented the surveillance photographs from the 2008 robbery, which occurred at the same bank involved in this case. Although the 2008 case was dismissed in the district court, there was no indication at sentencing that the 2008 allegation was dismissed for want of probable cause. In light of the unchallenged evidence presented at sentencing regarding the 2008 bank robbery, there was enough evidence for the trial court to assess 10 points for OV 13.

IV. CRIME VICTIM'S ASSESSMENT FEE

Finally, defendant argues that that imposition of an enhanced $130 crime victim's assessment fee violates the bar on ex post facto laws under the federal and state constitutions because the crimes were committed before the Legislature increased the fee from $60 to $130. We disagree. Because defendant failed to raise this issue below, it is unpreserved and our review is limited to plain error affecting defendant's substantial rights. People v. Carines, 460 Mich. 750, 752–753, 763–764, 597 N.W.2d 130 (1999).

The ex post facto clauses of both the state and federal constitutions prohibit inflicting a greater punishment for a crime than that provided for when the crime was committed. People v. Callon, 256 Mich.App. 312, 316–317, 662 N.W.2d 501 (2003). A statute violates ex post facto principles if it “ ‘(1) makes punishable that which was not, (2) makes an act a more serious criminal offense, (3) increases the punishment, or (4) allows the prosecution to convict on less evidence.’ ” People v. McRunels, 237 Mich.App. 168, 175, 603 N.W.2d 95 (1999), quoting Riley v. Parole Bd., 216 Mich.App. 242, 244, 548 N.W.2d 686 (1996) (emphasis omitted). At issue here is whether the fee increase from $60 to $130 increased defendant's punishment. We find that it did...