People v. Lange

• Court: Court of Appeal of Michigan
• Writing for the Court: WILDER, P.J.
• Citation: People v. Lange, 650 N.W.2d 691, 251 Mich. App. 247 (Mich. App. 2002)
• Decision Date: 23 August 2002
• Docket Number: Docket No. 226599.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles Arthur LANGE, Defendant-Appellee.

650 N.W.2d 691

251 Mich. App. 247

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charles Arthur LANGE, Defendant-Appellee.

Docket No. 226599.

Court of Appeals of Michigan.

Submitted December 5, 2001, at Grand Rapids.

Decided May 10, 2002, at 9:05 a.m.

Released for Publication August 23, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Vicki L. Seidl, Assistant Prosecuting Attorney, for the people.

Patrick K. Ehlmann, East Lansing, for the defendant on appeal.

Before: WILDER, P.J., and RICHARD ALLEN GRIFFIN and SMOLENSKI, JJ.

WILDER, P.J.

Following a jury trial, defendant was convicted of second-degree murder, M.C.L. § 750.317, and sentenced to twelve to thirty years' imprisonment. Defendant appeals as of right both his conviction and his sentence. We affirm.

I. Facts and Proceedings

Defendant's conviction arose from the events of August 20, 1999, when defendant repeatedly struck his wife over the head with a glass mug after allegedly being informed that she was seeing another man. After the attack, defendant called 911 and asked one of his neighbors to come check on his wife because he had just beaten her up. Another individual also called 911, and within minutes police and medical personnel arrived at the scene, and the victim was transported to Spectrum Hospital. As a result of severe head injuries, the victim slipped in and out of consciousness, lapsed into a coma, and died on September 3, 1999.¹ Dr. Stephen Cohle, a forensic pathologist who conducted an autopsy of the victim, testified that the victim had suffered extensive bruising on the underside of the scalp and had suffered "two blows to the top of the head," which "not only caused the skull [to be] driven inward," but also resulted in fractures from the depressed portion of the skull all the way "down to the floor of the skull." According to Cohle, "in order to cause a depressed fracture ... it would take a very severe blow by a heavy object" and the amount of force required would be equal to "an adult person striking the victim... with ... all of his or her might." In addition, the pathologist established that the victim suffered a comminuted nasal fracture, a fracture of the right orbit, two lacerations of the inner lip, one laceration on her chin, and that her upper denture was cracked and missing a tooth.

Defendant, who chose not to testify, did not dispute that he had caused his wife's injuries, and eventual death, by hitting her in the head with a glass mug. Indeed, defendant's only defense was to allege that he was not guilty of second-degree murder and argue that because he attacked his wife as a result of adequate provocation brought on in the heat of passion (i.e., being informed by his wife that she was having an affair), he should only be found guilty of voluntary manslaughter, M.C.L. § 750.321. To this end, defense counsel elicited testimony from witnesses tending to show that defendant's wife was involved in an affair at the time of the attack, and during closing arguments informed the jury of the elements of voluntary manslaughter and stated that "[t]he facts of this case dictate that you have to find Mr. Lange guilty of manslaughter. And I'm going to ask you to make the difficult decision, but the one that is dictated by the law, and find Charles Lange guilty of manslaughter."

Following deliberations, the jury convicted defendant of second-degree murder and the trial court originally sentenced defendant to fourteen to thirty years' imprisonment; however, after correction of a sentencing guidelines scoring error, the trial court resentenced defendant to twelve to thirty years' imprisonment.

II. Sufficiency of the Evidence

On appeal, defendant first argues that there was insufficient evidence to support his conviction of second-degree murder. We disagree.

A. Standard of Review

When a defendant claims the evidence is insufficient to support a conviction, we review the evidence presented at trial in the light most favorable to the prosecution in order to determine whether a rational trier of fact could find that all the elements of the crime were proved beyond a reasonable doubt. People v. Johnson, 460 Mich. 720, 723, 597 N.W.2d 73 (1999); People v. Taylor, 245 Mich.App. 293, 296, 628 N.W.2d 55 (2001).

B. Analysis

Defendant first contends that because the forensic pathologist testified that it was possible the victim's death could have been caused by asphyxiation from accumulated secretions in the victim's airway, which would only have occurred because of gross medical negligence, the prosecution failed to establish that defendant caused the victim's death.² We disagree.

To prove the elements of second-degree murder beyond a reasonable doubt, the prosecutor must present evidence of "`"(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse."'" People v. Aldrich, 246 Mich.App. 101, 123, 631 N.W.2d 67 (2001), quoting People v. Mayhew, 236 Mich.App. 112, 125, 600 N.W.2d 370 (1999), quoting People v. Goecke, 457 Mich. 442, 464, 579 N.W.2d 868 (1998). There is sufficient evidence in the record to establish each of the required elements.

Here, there was no dispute that defendant hit the victim over the head with a glass mug. In addition, the pathologist testified during direct- and cross-examination that the victim's death was the result of severe head injuries. Viewing this evidence in the light most favorable to the prosecution, Johnson, supra; Taylor, supra, there is no question that the jury could have found beyond a reasonable doubt that the victim's death was caused by defendant when he intentionally hit the victim in the head with a glass mug. Aldrich, supra at 123, 631 N.W.2d 67. Further, because of the degree of force needed to cause the victim's injuries, the jury could have reasonably inferred that defendant acted with malice. Id., citing People v. Djordjevic, 230 Mich.App. 459, 462, 584 N.W.2d 610 (1998). Finally, there is no evidence that defendant's actions were authorized by law (i.e., self-defense), see People v. Kemp, 202 Mich.App. 318, 322-323, 508 N.W.2d 184 (1993), and defense counsel conceded during the opening statement that the attack was not an accident, see People v. Hess, 214 Mich.App. 33, 37-38, 543 N.W.2d 332 (1995); People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971). Because the question whether defendant had adequate provocation so as to mitigate the homicide from murder to voluntary manslaughter is left to the factfinder, People v. Sullivan, 231 Mich.App. 510, 518, 586 N.W.2d 578 (1998), the jury was free to reject this defense and to conclude that the prosecution had proved the elements of second-degree murder beyond a reasonable doubt.

III. Scoring of Offense Variable 1

Defendant also argues that the trial court sentenced him on the basis of an inaccurate scoring of offense variable 1, M.C.L. § 777.31, and that he is therefore entitled to be resentenced. Specifically, defendant contends that a glass mug is an object not designed to be used as a weapon and therefore he should not have been assessed ten points under offense variable 1. See M.C.L. § 777.31(1)(c). We disagree. We have found no case that defines the term "weapon" as used in M.C.L. § 777.31(1)(c). Thus, this issue appears to be one of first impression.

A. Standard of Review

The question whether a glass mug can be considered a weapon for purposes of M.C.L. § 777.31(1)(c) is a matter of statutory interpretation and is therefore a question of law that we review de novo. Etefia v. Credit Technologies, Inc., 245 Mich.App. 466, 469, 628 N.W.2d 577 (2001), citing Oakland Co. Bd. of Co. Rd. Comm'rs. v. Michigan Property & Casualty Guaranty Ass'n., 456 Mich. 590, 610, 575 N.W.2d 751 (1998); In re S.R., 229 Mich.App. 310, 314, 581 N.W.2d 291 (1998). As our Supreme Court stated in Macomb Co. Prosecutor v. Murphy, 464 Mich. 149, 158, 627 N.W.2d 247 (2001):

In considering a question of statutory construction, this Court begins by examining the language of the statute. We read the statutory language in context to determine whether ambiguity exists. If the language is unambiguous, judicial construction is precluded. We enforce an unambiguous statute as written. Where ambiguity exists, however, this Court seeks to effectuate the Legislature's intent through a reasonable construction, considering the purpose of the statute and the object sought to be accomplished. [Citations omitted.]

Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used, Phillips v. Jordan, 241 Mich.App. 17, 22, n. 1, 614 N.W.2d 183 (2000), citing Western Michigan Univ. Bd. of Control v. Michigan, 455 Mich. 531, 539, 565 N.W.2d 828 (1997), and if a term is not expressly defined in the statute, it is permissible for this Court to consult dictionary definitions in order to aid in construing the term "in accordance with [its] ordinary and generally accepted meaning[ ]." People v. Morey, 461 Mich. 325, 330, 603 N.W.2d 250 (1999), citing Oakland Co., supra at 604, 575 N.W.2d 751. Further, the language must be applied as written, Camden v. Kaufman, 240 Mich.App. 389, 394, 613 N.W.2d 335 (2000); Ahearn v. Bloomfield Charter Twp., 235 Mich.App. 486, 498, 597 N.W.2d 858 (1999), and nothing should be read into a statute that is not within the manifest intent of the Legislature as indicated by the act itself. In re S.R., supra at 314, 581 N.W.2d 291.

B. Analysis

MCL 777.31, which codified offense variable 1, provides, in part:

(1) Offense variable 1 is aggravated use of a weapon. Score offense variable 1 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

(a) A firearm was

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