People v. Harverson.

• Decision Date: 28 December 2010
• Docket Number: Docket No. 293014.
• Citation: 291 Mich.App. 171,804 N.W.2d 757
• Parties: PEOPLEv.HARVERSON.
• Court: Court of Appeal of Michigan — District of US

291 Mich.App. 171

804 N.W.2d 757

PEOPLE

v.HARVERSON.

Docket No. 293014.

Court of Appeals of Michigan.

Submitted Dec. 7, 2010, at Grand Rapids.Decided Dec. 28, 2010, at 9:00 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.Joseph L. Stewart, Oak Park, for defendant.Before: MURRAY, P.J., and HOEKSTRA and SERVITTO, JJ.MURRAY, P.J.

Defendant appeals as of right his jury trial conviction of unarmed robbery, MCL 750.530. For this conviction, defendant was sentenced to 3 to 15 years' imprisonment. We affirm.

I. BACKGROUND

The events in this case were set in motion on March 14, 2008, when Kenneth Conliffe accepted a United Parcel Service (UPS) shipment of a cell phone for Kiara Anderson, his sister's roommate and defendant's girlfriend, at the girls' apartment. Under the impression that Anderson was involved in stealing the phone of his sister's boyfriend, Conliffe explained that after accepting the phone, he threw it in a stream as a means of retaliation. Shortly thereafter, Conliffe received a ride home from his mother and stepfather.

Upon Conliffe's arrival home, he was accosted in his driveway by defendant, Anderson, and Jovanta Jackson. According to Conliffe's mother and stepfather, defendant accused Conliffe of stealing a cell phone and then removed Conliffe's sunglasses at gunpoint before fleeing the scene with his compatriots. Both Conliffe and his mother added that before the assailants left, Jackson told Conliffe to “run his pockets.”

Offering a variation on this version of events, Anderson claimed that after learning from UPS that Conliffe had accepted the cell-phone shipment, she, defendant, and Jackson went to Conliffe's house to scare Conliffe into returning her cell phone. Anderson elaborated that although Jackson pulled a gun during the altercation and later “passed it” to defendant, she did not recall either man pointing a gun at Conliffe. Similar to Anderson's assertions, defendant testified that he accompanied Anderson and Jackson in order to retrieve Anderson's phone and that it was Jackson who pulled the gun during the altercation. Notably, defendant admitted “snatching [Conliffe's] glasses,” but claimed that he told Conliffe, “you get these back when we get the phone back.” Defendant denied, however, that he had possession of the gun and instead explained that he refused Jackson's demand to “run [Conliffe's] pockets” when Jackson threatened Conliffe with the gun after defendant had taken the glasses.

Following their altercation with Conliffe, the assailants drove off, but were pulled over and arrested when police identified their car and license plate number from a dispatch call regarding an armed robbery. During the course of the arrest, police found Conliffe's glasses and ammunition inside the car. The gun was found the next day in the neighborhood where the assailants were pulled over. Defendant was subsequently tried on a charge of armed robbery, but convicted of the lesser offense previously stated. This appeal ensued.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

1. STANDARD OF REVIEW

Defendant first's assignment of error is that the evidence was insufficient to support his unarmed robbery conviction. Due process requires that, to sustain a conviction, the evidence must show guilt beyond a reasonable doubt. People v. Johnson, 460 Mich. 720, 723, 597 N.W.2d 73 (1999). In determining the sufficiency of the evidence, this Court reviews the evidence in the light most favorable to the prosecution. People v. Tombs, 472 Mich. 446, 459, 697 N.W.2d 494 (2005) (opinion by Kelly, J.). We do not consider whether any evidence existed that could support a conviction, but rather, we must determine whether a rational trier of fact could find that the evidence proved the essential elements of the crime beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 513–514, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1990), citing People v. Hampton, 407 Mich. 354, 366, 285 N.W.2d 284 (1979). “[C]ircumstantial evidence and reasonable inferences arising from th[e] evidence can constitute satisfactory proof of the elements of a crime.” People v. Lee, 243 Mich.App. 163, 167–168, 622 N.W.2d 71 (2000) (citation omitted).

The prosecution does not challenge the foregoing, but nonetheless points out that this Court has cited our Supreme Court for the proposition that sufficiency of the evidence issues are subject to de novo review despite the fact that no Michigan Supreme Court case expressly cites that standard. See People v. Hawkins, 245 Mich.App. 439, 457, 628 N.W.2d 105 (2001). In making this argument, the prosecution seems to imply that traditional de novo review would require this Court to overturn a verdict simply because its view of the facts conflicts with the jury's determination. This, however, misapprehends our duty in these cases.

When our Court reviews an issue “de novo,” it means that we are addressing a legal issue anew, without any deference to the trial court's conclusion. See, e.g., Mich. Ed. Ass'n v. Secretary of State, 280 Mich.App. 477, 511, 761 N.W.2d 234 (2008) (Whitbeck, J., dissenting); Heindlmeyer v. Ottawa Co. Concealed Weapons Licensing Bd., 268 Mich.App. 202, 218–219, 707 N.W.2d 353 (2005). Hence, when reviewing an argument that there was legally insufficient evidence to support a conviction, we do not defer to any decision made by the trial court, but instead employ our independent judicial views while employing the well-settled standards for deciding sufficiency issues. People v. Sherman–Huffman, 241 Mich.App. 264, 265, 615 N.W.2d 776 (2000), aff'd 466 Mich. 39, 642 N.W.2d 339 (2002) (employing de novo review of sufficiency argument from a bench trial conviction). More than two decades ago the United States Court of Appeals for the District of Columbia Circuit accurately and succinctly stated this proposition:

We have concluded that we do not defer to the district court, because we must make our own independent judgment regarding the sufficiency of evidence. In so doing, of course, we may consider and be influenced by the opinion of the expert trial judge who has lived with the case—just as we give weight to one another's views. This will be particularly so where the trial judge has set forth his reasons with specificity. Moreover, it is the burden of the Government, as it is always the appellant's burden, to show that the judgment appealed from was wrong. But ultimately, the decision whether or not the evidence was sufficient is a question of law and therefore entirely our own. [ United States v. Singleton, 226 U.S.App.D.C. 445, 446, 702 F.2d 1182 (1983) (en banc).]

See, also, United States v. Kelley, 461 F.3d 817, 825 (C.A.6, 2006). ¹

In light of this explanation, it is easy to see that in articulating the de novo standard of review our prior cases cited Supreme Court decisions that were reviewing the evidence in a de novo fashion, even though not specifically saying so. See, e.g., Tombs, 472 Mich. at 459–461, 697 N.W.2d 494 (opinion by Kelly, J.); Johnson, 460 Mich. at 732–733, 597 N.W.2d 73; Wolfe, 440 Mich. at 516–528, 489 N.W.2d 748. Consequently, we hold that although not expressly articulated by our Supreme Court, the de novo standard of review is proper in reviewing defendants' challenges that the evidence was insufficient to support their convictions.

2. UNARMED ROBBERY

To be guilty of unarmed robbery, a defendant must (1) feloniously take the property of another, (2) by force or violence or assault or putting in fear, and (3) be unarmed. People v. Johnson, 206 Mich.App. 122, 125–126, 520 N.W.2d 672 (1994); MCL 750.530. Unarmed robbery is a specific intent crime for which the prosecution must establish that the defendant intended to permanently deprive the owner of property. People v. Dupie, 395 Mich. 483, 487, 236 N.W.2d 494 (1975); People v. King, 210 Mich.App. 425, 428, 534 N.W.2d 534 (1995).² Because intent may be difficult to prove, only minimal circumstantial evidence is necessary to show a defendant entertained the requisite intent. People v. Strong, 143 Mich.App. 442, 452, 372 N.W.2d 335 (1985).

In raising this issue, defendant challenges only the intent element of this offense, in essence arguing that because he walked away after taking the glasses and refused to steal any other items from Conliffe, the prosecution failed to establish that defendant intended to permanently deprive Conliffe of his property.³ However, to permanently deprive in the context of unarmed robbery “does not require, in a literal sense, that a thief have an intent to permanently deprive the owner of the property.” People v. Jones, 98 Mich.App. 421, 425–426, 296 N.W.2d 268 (1980). Rather, the intent to permanently deprive includes the retention of property without the purpose to return it within a reasonable time or the retention of property with the intent to return the property on the condition that the owner pay some compensation for its return. Id.

It is clear from defendant's own rendition of events that he possessed the requisite intent. On this score, defendant explained that he accompanied Anderson and Jackson for the express purpose of retrieving Anderson's cell phone. When Conliffe subsequently denied having knowledge of Anderson's phone, defendant “snatched” Conliffe's glasses and told him, “you get these back when we get the phone back.” In other words, defendant intended to retain Conliffe's glasses and only return them on the condition that Conliffe pay compensation in the form of returning Anderson's phone. Such testimony easily satisfies the intent element of unarmed robbery.

Defendant argues that the testimony of Anderson and Conliffe's mother contained inconsistencies. However, it is for the jury to determine witness credibility and resolve inconsistencies of testimony. People v. Fletcher, 260 Mich.App. 531, 561, 679...