People v. Ericksen

• Decision Date: 15 April 2010
• Docket Number: Docket No. 288496.
• Parties: PEOPLE v. ERICKSEN.
• Court: Court of Appeal of Michigan — District of US

288 Mich.App. 192

793 N.W.2d 120

PEOPLE

v.ERICKSEN.

Docket No. 288496.

Court of Appeals of Michigan.

Submitted April 6, 2010, at Lansing.

Decided April 15, 2010, at 9:00 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Ed Black, Prosecuting Attorney, and Andrea Christensen, Assistant Attorney General, for the people.

Smith & Brooker, P.C. (by George B. Mullison), and Chad J. Ericksen, in propria persona, for defendant.

Before: DAVIS, P.J., and DONOFRIO and STEPHENS, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of assault with intent to commit murder, MCL 750.83. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve a life sentence. Because the prosecution presented sufficient evidence from which a jury could convict defendant beyond a reasonable doubt and defendant's claims of prosecutorial misconduct, ineffective assistance of counsel, and sentencing error are without merit, we affirm defendant's conviction and life sentence. We remand only for ministerial correction of defendant's judgment of sentence to include 282 days of jail credit.

I

Before being attacked, the victim, Ervin Ritthaler, Jr., had been involved in an altercation with the sister of one of defendant's friends. Defendant and two other men confronted the victim about the earlier incident. The confrontation soon became violent, and defendant stabbed Ritthaler several times in the back with a knife he had secreted on his person. The wounds resulted in a cascade of severe medical complications for Ritthaler, including multiple organ failures, cardiac arrest, brain injury, and, ultimately, amputation of both of his legs below the knee.

II

Defendant first argues on appeal that his conviction cannot stand because the prosecution failed to present sufficient evidence at trial. We review de novo a challenge on appeal to the sufficiency of the evidence. People v. Hawkins, 245 Mich.App. 439, 457, 628 N.W.2d 105 (2001). The elements of assault with intent to commit murder are "(1) an assault, (2) with an actual intent tokill, (3) which, if successful, would make the killing murder." People v. Brown, 267 Mich.App. 141, 147-148, 703 N.W.2d 230 (2005) (quotation marks and citations omitted). We examine the evidence in a light most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond reasonable doubt. Hawkins, 245 Mich.App. at 457, 628 N.W.2d 105; People v. Terry, 224 Mich.App. 447, 452, 569 N.W.2d 641 (1997).

Defendant specifically asserts that because the prosecution's case rested extensively on circumstantial evidence, he could have been convicted only if that evidence proved the prosecution's theory of guilt with "impelling certainty." This is a misstatement of the law. Circumstantial evidence and the reasonable inferences it permits are sufficient to support a conviction, provided the prosecution meets its constitutionally based burden of proof beyond a reasonable doubt. People v. Nowack, 462 Mich. 392, 400, 614 N.W.2d 78 (2000).

Defendant also argues that the prosecution presented insufficient evidence to establish that he had the requisite specific intent. The evidence at trial established that defendant secreted a knife before leaving with his companions to confront Ritthaler. In addition, defendant told his companions that he had "stuck [Ritthaler] five times." A trier of fact could reasonably have interpreted this statement as an admission that he knowingly stabbed the victim many times. The medical evidence showed that Ritthaler's right back had four knife wounds. Defendant's intent could be inferred from any facts in evidence, including the nature, extent, and location of these wounds. People v. Mills, 450 Mich. 61, 71, 537 N.W.2d 909 (1995); People v. Unger, 278 Mich.App. 210, 223, 231, 749 N.W.2d 272 (2008). This Courthas consistently observed that "[b]ecause of the difficulty of proving an actor's state of mind, minimal circumstantial evidence is sufficient." People v. McRunels, 237 Mich.App. 168, 181, 603 N.W.2d 95 (1999). Here, the evidence was more than minimal and clearly demonstrated that defendant acted with the requisite intent.

Defendant also challenges the credibility of the testimony of his companions and codefendants, arguing that they were not credible because each man received a favorable plea deal in exchange for his testimony. Both men, however, acknowledged their respective plea agreements during their testimony. Not only does this Court scrupulously leave questions of credibilityto the trier of fact to resolve, People v. Williams, 268 Mich.App. 416, 419, 707 N.W.2d 624 (2005), but the jury was also specifically instructed to "examine an accomplice's testimony closely and be very careful about accepting it" and to consider it "more cautiously than you would that of an ordinary witness." "It is well established that jurors are presumed to follow their instructions." People v. Graves, 458 Mich. 476, 486, 581 N.W.2d 229 (1998).

Defendant also highlights a statement the trial court made at sentencing to the effect that it did not appear that defendant intended the extent of the injury sustained by Ritthaler. The record reveals that the trial court actually stated that it was "guessing" that the injuries sustained were "more serious than [defendant] ever intended...." The court's conjecture regarding defendant's motivation is, by its very nature, pure speculation, as opposed to the jury's determination of guilt beyond a reasonable doubt.

In sum, taken as a whole and viewed in a light most favorable to the prosecution, the evidence presentedbelow, together with the reasonable inferences that may be drawn from that evidence, was sufficient to support defendant's convictions. Hawkins, 245 Mich.App. at 457, 628 N.W.2d 105.

III

Defendant next argues that he was denied a fair trial when the prosecutor engaged in numerous instances of misconduct. See People v. Dobek, 274 Mich.App. 58, 63, 732 N.W.2d 546 (2007). However, because a timely objection could have cured any of the alleged errors, we review defendant's allegations of prosecutorial misconduct for plain error affecting substantial rights. People v. Thomas, 260 Mich.App. 450, 453-454, 678 N.W.2d 631 (2004).

Defendant first asserts that the prosecutor engaged in misconduct when he stated during his opening statement that Ritthaler had many health problems stemming from the attack, and then stated during closing argument that Ritthaler was confined to a wheelchair. Defendant contends that these comments were improper because they were irrelevant, unduly prejudicial, intended to elicit the jury's sympathy for the victim, and, in relation to the second statement, constituted facts not in evidence.

The record reveals that the prosecutor actually stated during his opening statement that although Ritthaler had no memory of the night he was attacked, "he can tell you about his state of health today, and he can testify to a number of other aspects of information which will be useful." When read in context with the rest of the prosecutor's opening statement, it is apparent that the prosecutor was attempting to describe Ritthaler's anticipated testimony. While Ritthaler ultimately did not testify, his treating physicians did testify and described Ritthaler's condition on being broughtinto the emergency room and the multiple surgeries he required before he was transported to another hospital for further treatment. This evidence was relevant to all elements of the crime and was congruent with the prosecutor's opening statement.

The prosecutor's statement during closing argument that Ritthaler was now in a wheelchair was conclusory given the record evidence. "[A] prosecutor may not make a statement of fact to the jury that is unsupported by the evidence...." People v. Schumacher, 276 Mich.App. 165, 178, 740 N.W.2d 534 (2007). While the prosecutor did assert during opening statement that Ritthaler's lower legs were eventually amputated because of the damagecaused by the attack, there was no sworn testimony from a witness during trial that Ritthaler was wheelchair-bound. There is also no indication from the record before us that Ritthaler was in the courtroom or that any documentary evidence was admitted that disclosed that Ritthaler was confined to a wheelchair. However, to the extent that the statement might be considered improper, it constituted only a brief portion of the closing argument, which included a lengthy and detailed discussion of the evidence. Moreover, there was testimony that the victim had to have his lower legs amputated, and without lower legs, it is not a stretch to describe the victim as wheelchair-bound. When viewed as part of the closing argument as a whole, the statement does not appear so inflammatory as to have prejudiced defendant. Additionally, the trial court instructed the jury to consider only the evidence and clarified that the attorneys' statements were not evidence. Further, the trial court instructed the jury that it must not let sympathy influence its decision. "Jurors are presumed to follow their instructions, andinstructions are presumed to cure most errors." People v. Abraham, 256 Mich.App. 265, 279, 662 N.W.2d 836 (2003).¹

Defendant also argues that the prosecutor interjected his personal beliefs into the case when he stated during his opening statement that defendant's companions went to see Ritthaler in order to talk to him but defendant had a different intent. Rather than offering his personal beliefs about defendant's guilt, the prosecutor was simply summarizing the anticipated testimony of defendant's companions, as well as providing a fair view of what the evidence would show. Opening statement is the appropriate time to state the facts that will be proved at trial. People v. Moss, 70 Mich.App. 18, 32, 245 N.W.2d...