People v. Henry, 325144.

Decision Date19 April 2016
Docket NumberNo. 325144.,325144.
Citation315 Mich.App. 130,889 N.W.2d 1
Parties PEOPLE v. HENRY.
CourtCourt of Appeal of Michigan — District of US

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, David S. Leyton, Prosecuting Attorney, and Michael A. Tesner and Joseph F. Sawka, Assistant Prosecuting Attorneys, for the people.

Michael A. Faraone, PC (by Michael A. Faraone ), for defendant.

Before: BECKERING, P.J., and OWENS and K.F. Kelly, JJ.

PER CURIAM.

Defendant appeals as of right from his jury trial conviction of armed robbery, MCL 750.529, for which he was sentenced as a fourth-offense habitual offender, MCL 769.12, to 240 to 480 months' imprisonment. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS

On Sunday, March 17, 2013, defendant entered a Halo Burger in Genesee County where Jennifer Thomas was working as a shift manager and Elizabeth Murphy was working as a crew member. At approximately 11:10 a.m., defendant approached Thomas at the counter and demanded all the money that was in the till. Thomas asked defendant whether he was "f* * *ing serious" and defendant said, "Yes, I am, don't move, don't push a button, give me all the money in your till." Thomas observed that defendant had strawberry blond/reddish facial hair. He was wearing a dark-blue zip-up hooded sweatshirt (hoodie) that had an insignia on the left side. Defendant's hands were in his pockets, but the pockets, as she described them, "bulged forward." Thomas demonstrated for the jury how defendant held his hands in his pockets. She was not sure whether defendant actually had a weapon, but did not take any chances. Thomas turned over the contents of the register: three $10 bills, six $5 bills, and thirty-five $1 bills.

Murphy also indicated that she observed defendant. He had strawberry-blond facial hair and had his hands in the pockets of his hoodie "bulging forward." Like Thomas, Murphy testified that she assumed defendant had a weapon. She activated the alarm button after defendant left.

The prosecutor presented a witness who placed defendant in the area of the Halo Burger near the time of the robbery. Kuldip Singh testified that he worked at the Shell gas station in Burton and that an individual matching defendant's description was in his store at approximately 10:45 a.m. that day. The Shell station maintained surveillance cameras and Singh cooperated in finding an image of the individual, which was later shown to Thomas and Murphy at the Halo Burger. Both Thomas and Murphy separately identified the man in the surveillance photo as the robber. They both also separately (and immediately) chose defendant's image from a photo array shown to them several days later.

An officer on patrol heard about the robbery from dispatch. The alert was accompanied by a description of the robber. The officer proceeded to a common drug location because in his experience, robbers tended to use the proceeds of their crimes for drugs. The officer pulled up near a maroon Grand Prix and noted that the driver's appearance matched the description of the robber. He pulled defendant over and while defendant was looking for his license, insurance, and registration, the officer observed "quite a bit of money on the front floorboard under the driver's feet ... up towards the center console." There was also a blue hooded sweatshirt in the back seat. Defendant was arrested. Defendant told officers that he lived in Fenton and that he was coming from his girlfriend's house in Burton and going to his friend's house around the corner. Officers found $75 under the front driver's seat. There was one $10 bill, six $5 bills, and thirty-five $1 bills. There was a screwdriver under the hooded sweatshirt in the middle of the backseat. An officer returned to Halo Burger where Thomas confirmed that the hoodie taken from the vehicle defendant was driving was the same hoodie the robber was wearing.

The jury was instructed on armed robbery, unarmed robbery and larceny from a person. It convicted defendant of armed robbery. Defendant was sentenced as a fourth-offense habitual offender to 240 to 480 months' imprisonment. He appeals as of right.

II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to support his conviction of armed robbery because there was no evidence that defendant possessed a weapon or verbally indicated that he had a weapon. Defendant argues that the armed-robbery statute requires that a person have a reasonable belief that the defendant was armed with a dangerous weapon. We disagree with defendant's interpretation.

"We review de novo a challenge on appeal to the sufficiency of the evidence." People v. Ericksen, 288 Mich.App. 192, 195, 793 N.W.2d 120 (2010). "Taking the evidence in the light most favorable to the prosecution, the question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v. Hardiman, 466 Mich. 417, 421, 646 N.W.2d 158 (2002). "It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences." Id. at 428, 646 N.W.2d 158.

"Statutory interpretation is a question of law that we review de novo." People v. Phillips, 469 Mich. 390, 394, 666 N.W.2d 657 (2003). "[The Court's] goal in interpreting a statute is to ascertain and give effect to the intent of the Legislature. The touchstone of legislative intent is the statute's language. If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written." People v. Hardy, 494 Mich. 430, 439, 835 N.W.2d 340 (2013) (quotation marks omitted).

MCL 750.529 provides, in pertinent part:

A person who engages in conduct proscribed under section 530 [1 ]and who in the course of engaging in that conduct, possesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon, or who represents orally or otherwise that he or she is in possession of a dangerous weapon, is guilty of a felony punishable by imprisonment for life or for any term of years.

Therefore, a prosecutor must prove the following to obtain an armed robbery conviction:

[I]n order to obtain a conviction for armed robbery, a prosecutor must prove that
(1) the defendant, in the course of committing a larceny of any money or other property that may be the subject of a larceny, used force or violence against any person who was present or assaulted or put the person in fear, and (2) the defendant, in the course of committing the larceny, either possessed a dangerous weapon, possessed an article used or fashioned in a manner to lead any person present to reasonably believe that the article was a dangerous weapon, or represented orally or otherwise that he or she was in possession of a dangerous weapon. [People v. Gibbs, 299 Mich.App. 473, 490–491, 830 N.W.2d 821 (2013), quoting People v. Chambers, 277 Mich.App. 1, 7, 742 N.W.2d 610 (2007).]

Defendant argues that MCL 750.529 requires that the victim have a reasonable belief that a defendant was armed with a dangerous weapon. In so doing, defendant ignores the statute's plain language. The clause "possesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon," requires that the defendant either (1) actually possess a dangerous weapon, or (2) possess some article that would lead a person to reasonably believe the article is a dangerous weapon. But the following clause in the statute"or who represents orally or otherwise that he or she is in possession of a dangerous weapon"—does not contain the same "reasonable belief" requirement. "The word ‘or’ is a disjunctive term [and] indicates a choice between two alternatives." Michigan v. McQueen, 293 Mich.App. 644, 671, 811 N.W.2d 513 (2011) (citation omitted). The second clause provides that a defendant may be guilty of armed robbery if he either (1) orally represents that he has a dangerous weapon, or (2) "otherwise represents" that he possesses a dangerous weapon. For these two alternatives, the victim's fear or belief is irrelevant. Thus, a defendant is guilty of armed robbery if he engages in conduct under MCL 750.530 and (1) he actually possesses a dangerous weapon, or (2) he possesses some article that would lead a person to reasonably believe that the article is a dangerous weapon, or (3) he orally represents that he possesses a dangerous weapon, or (4) he otherwise represents that he possesses a dangerous weapon.

Defendant cites People v. Saenz, 411 Mich. 454, 455, 307 N.W.2d 675 (1981), People v. Jolly, 442 Mich. 458, 502 N.W.2d 177 (1993), and People v. Johnson, 206 Mich.App. 122, 520 N.W.2d 672 (1994), but these cases all involved the old armed-robbery statute, which provided in part:

Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony....

The 2004 amendment changed the statute significantly. The old statute required that the robber be either armed with a dangerous weapon or possess some article that would lead the person assaulted to reasonably believe it to be a dangerous weapon. The newer version provides the four alternatives previously discussed. The fourth scenario under the amended statute is at play in this case because neither Thomas nor Murphy saw defendant with a weapon and defendant made no oral representation that he possessed a weapon. Defendant's analysis on this issue is flawed to the extent that he focuses on...

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