People v. Horn
| Decision Date | 02 December 2014 |
| Docket Number | No. 319816,No. 317352,No. 316757,316757,317352,319816 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES LEE HORN, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MATTHEW ALLEN RISELAY, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. NANCY EDNA JOHNSON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Genesee Circuit Court
Genesee Circuit Court
Genesee Circuit Court
Before: O'CONNELL, P.J., and CAVANAGH and FORT HOOD, JJ.
In Docket No. 316757, defendant, James Lee Horn, appeals as of right his jury trial convictions of two counts of second-degree murder, MCL 750.317, carjacking, MCL 750.529a, carrying a concealed weapon (CCW), MCL 750.227, and possession of a firearm during thecommission of a felony (felony-firearm), MCL 750.227b. Horn was sentenced to life in prison for his second-degree murder conviction, 20 years to 40 years' imprisonment for the carjacking conviction, 24 months to 60 months' imprisonment for carrying a concealed weapon, and 2 years' imprisonment for felony-firearm. We affirm.
In Docket No. 317352, defendant, Matthew Allen Riselay, appeals as of right his jury trial convictions of first-degree murder, MCL 750.316, carjacking, MCL 750.529a, CCW, MCL 750.227, and felony-firearm, MCL 750.227b. Riselay was sentenced to life in prison without parole for the first-degree murder conviction, 18 years to 40 years' imprisonment for carjacking, 24 months to 60 months' imprisonment for the CCW conviction, and 2 years' imprisonment for the felony-firearm conviction. We affirm.
In Docket No. 319816, defendant, Nancy Edna Johnson, appeals by leave granted her jury trial convictions of first-degree murder, MCL 750.316, carjacking, MCL 750.529a, CCW, MCL 750.227, and felony-firearm, MCL 750.227b. People v Johnson, unpublished order of the Court of Appeals, entered May 30, 2014 (Docket No. 319816). Johnson was sentenced to life in prison without parole on the first-degree murder conviction, life in prison for the carjacking conviction, 24 months to 60 months' imprisonment for CCW, and 2 years' imprisonment for felony-firearm. We affirm in part and remand in part.
Horn contends that insufficient evidence was adduced at trial to support his convictions for second-degree murder and carjacking of the victim, Leslie Mills, on March 4, 2012. Specifically, Horn argues the absence of any proof or evidence of his intent to satisfy the respective elements for these crimes.
This Court reviews a challenge to the sufficiency of the evidence de novo, People v Malone, 287 Mich App 648, 654; 792 NW2d 7 (2010), and is required to view the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013). People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). An appellate court will not interfere with a jury's assessment of the weight of the evidence or the credibility of witnesses. Dunigan, 299 Mich App at 582. The Court's review is to be deferential because the trier of fact, and not the appellate court, properly determines what inferences can be fairly drawn from the evidence and the weight to be accorded those inferences. Malone, 287 Mich App at 654.
The elements comprising second-degree murder were articulated by this Court in People v Portellos, 298 Mich App 431, 443; 827 NW2d 725 (2012):
The elements of second-degree murder are (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse. Malice includes the intent to kill, the intent to cause great bodily harm, or the intent to take an action whose natural tendency is to cause death or great bodilyharm, wantonly and willfully disregarding that risk. [Quotation marks and citations omitted.]
Carjacking is addressed by MCL 750.529a. The elements of carjacking have been defined as: (1) the taking of a motor vehicle from another person, (2) in the presence of that person, a passenger, or anyone in lawful possession of the motor vehicle, (3) through the use of either force or violence, the threat of force or violence, or by placing the victim in fear. People v Davenport, 230 Mich App 577, 579; 583 NW2d 919 (1998).
A defendant may be vicariously liable on a theory of aiding and abetting. People v Usher, 196 Mich App 228, 232-233; 492 NW2d 786 (1992), overruled in part on other grounds by People v Perry, 460 Mich 55, 64-65 (1999). The elements of aiding and abetting include:
(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encouragement. [People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006) (quotation marks and citations omitted).]
In accordance with MCL 767.39:
Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.
"An aider and abettor's state of mind may be inferred from all the facts and circumstances." People v Carines, 460 Mich 750, 758; 597 NW2d 130 (1999). "Factors that may be considered include a close association between the defendant and the principal, the defendant's participation in the planning or execution of the crime, and evidence of flight after the crime." Id.
Sufficient evidence existed to support Horn's convictions under an aiding and abetting theory. Horn was present in the motel room with Johnson and Riselay when he indicated the need to obtain a ride and Riselay asserted that he could steal a vehicle. The weapon used in the crimes belonged to Horn and he permitted Johnson and Riselay to leave the motel room, in the possession of his weapon, with knowledge they intended to steal a vehicle. Phillip Eason's testimony suggested that Horn provided the weapon to Riselay in lieu of being able to locate a screw driver to use in stealing the vehicle. Eason implied that Johnson owed Horn money for drugs and that procurement of the vehicle would be in exchange either to secure additional drugs or pay off part of her debt. Horn's written statement to the police acknowledged Horn agreeing with Eason's verbal directive to Riselay to steal a vehicle along with responding, "What okay" in response to Riselay's verbal statement he would use the gun to scare the potential victim. Evidence was provided showing that Horn attempted to wipe his fingerprints off the stolen vehicle and was attempting to leave the motel when police arrived and he and the others were taken into custody.
The proofs adduced at trial demonstrated the guilt of Johnson and Riselay in the commission of first-degree murder and carjacking. Horn's convictions were for the lesser included offense of second-degree murder and carjacking under an aiding and abetting theory. Horn does not dispute the establishment of any of the elements for these crimes other than the intent element, which he asserts is lacking. To be convicted under an aiding and abetting theory it need only be shown that "defendant performed acts or gave encouragement that assisted the commission of the crime" and that "the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encouragement." Robinson, 475 Mich at 6. Horn admitted knowledge that Riselay and Johnson intended to steal a vehicle in response to Horn's verbal assertion that he needed a ride. When Riselay suggested that he could steal a vehicle, Horn did not actively discourage Riselay but rather verbally implied that he should proceed. Horn provided the weapon used by Riselay and Johnson with knowledge of their intent to steal a vehicle and Riselay's specific admission that he would use the weapon to frighten and intimidate a potential victim. The provision of the weapon, with knowledge of its intended use, is sufficient to support Horn's convictions in accordance with MCL 767.39. These acts, coupled with Horn's familiarity with Johnson and Riselay and his attempt, after the crime, to eliminate evidence of his ties to the crime and to flee the motel room were sufficient for the jury to infer Horn's state of mind as an aider and abettor. Carines, 460 Mich at 758. "To place the issue of aiding and abetting before the trier of fact, the evidence need only tend to establish that more than one person committed the crime, and that the role of a defendant charged as an aider and abettor amounts to something less than the direct commission of the offense." People v Wilson, 196 Mich App 604, 611; 493 NW2d 471 (1992) (citation omitted).
Horn next asserts that insufficient evidence existed to support the trial court's scoring of OVs 5, 6, 7 and 8. Purportedly, the correct scoring of these variables would result in a lower guidelines range necessitating resentencing. He further contends that his trial counsel's failure to object to the scoring of OVs 5 and 6 resulted in his not being afforded the effective assistance of counsel.
To preserve an issue challenging the scoring of the guidelines or challenging the accuracy of information relied on in determining a sentence that is within the appropriate guidelines range, the challenging party is required to raise the...
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