People v. Micsak, 308317

• Decision Date: 24 January 2013
• Docket Number: No. 308317,308317
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANDREA ROSE MICSAK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ANDREA ROSE MICSAK, Defendant-Appellant.

No. 308317

STATE OF MICHIGAN COURT OF APPEALS

January 24, 2013

UNPUBLISHED
Saginaw Circuit Court LC No. 11-035523-FC

Before: WHITBECK, P.J., and SAAD and SHAPIRO, JJ.

PER CURIAM.

Defendant was found guilty by a jury of unarmed robbery, MCL 750.530, as a lesser included offense of armed robbery, MCL 750.529. The trial court sentenced defendant as a habitual offender, third offense, MCL 769.11, to a prison term of 46 months to 30 years. Defendant appeals as of right. We affirm because the jury instructions were correct, trial counsel's performance was adequate, and defendant's prior convictions were admissible under the circumstances of the case.

This appeal involves a shoplifting incident that occurred at a Kohl's department store in Kochville Township. Misty Ann Wilson, a loss prevention officer at the store, testified to witnessing defendant leaving the store wearing a pair of "jeggings" (leggings made of stretchy denim material) that she had not paid for. Wilson said that defendant was wearing them underneath the dress she wore into the store. Defendant testified that she entered the store wearing her own pair of jeggings under the dress.

When defendant exited the building, Wilson followed her into the parking lot. Wilson testified that she confronted defendant as she was getting into her parked car. According to Wilson, she identified herself as a loss prevention officer, showed identification, and told defendant she wanted her "pants back." She testified that she positioned herself between defendant and the driver's side door of defendant's vehicle and told defendant that she would call the police if defendant did not return the pants, to which defendant replied "call the fucking police." Defendant then slammed the car door on Wilson's arm twice, leaving a bruise. As a result, Wilson radioed the store manager, who called the police. Wilson then walked to the back of defendant's car to record its license plate number. Wilson stated that as she was standing behind defendant's vehicle, defendant started the car and revved the engine. Wilson jumped out of the way just before defendant backed out of the parking space and sped out of the parking lot.

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Defendant testified that she never realized that she struck Wilson in the arm. She also testified that she did not see Wilson standing behind her vehicle, and never intended to back her car into Wilson.

Defendant was tried for armed robbery, but the lower court also instructed the jury on charges of unarmed robbery and felonious assault, MCL 750.82. The jury acquitted defendant of armed robbery but convicted her of unarmed robbery.

Defendant challenges the lower court's decision to instruct on the lesser included offense of felonious assault. Defendant objected to the lower court's jury instructions over the advice of counsel. The lower court overruled that objection. Accordingly, the issue is preserved for appeal. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). Whether the trial court erroneously instructed on a lesser included offense is a question of law which this Court reviews de novo. People v Wilder, 485 Mich 35, 40; 780 NW2d 265 (2010).

The lower court must clearly present the case and the applicable law to the jury. People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005). Under MCL 768.32(1), the lower court can instruct on a lesser offense, but only if it is necessarily included in the greater offense. People v Nickens, 470 Mich 622, 626; 685 NW2d 657 (2004). "Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense." Id. "Not all possible statutory alternative elements of the lesser offense need to be subsumed within the elements of the greater offense in order to conclude that the lesser offense is a necessarily included lesser offense." People v Wilder, 485 Mich 35, 44-45; 780 NW2d 265 (2010). Accordingly, the lower court must examine the elements of the greater offense, as charged, to determine whether the alternative elements of the lesser crime are subsumed within the charged offense. Id. at 44.

To prove that this defendant committed an armed robbery, the prosecution must have established beyond a reasonable doubt that:

First, the defendant . . . used force or violence against . . . [Wilson].
Second, the defendant did so while . . . she . . . was in the course of committing a larceny. A "larceny" is the taking and movement of someone else's property or money with the intent to take it away from that person permanently.
"In the course of committing a larceny" includes acts that occur in an attempt to commit the larceny, or during the commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property or money.
Third, [Wilson] was present while defendant was in the course of committing the larceny.
Fourth, that while in the course of committing the larceny, the defendant:
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possessed a weapon designed to be dangerous and capable of causing death or serious injury; [ or]
possessed any other object capable of causing death or serious injury that the defendant used as a weapon . . . . [CJI2d 18.1 (ordinals omitted).]

To prove that defendant committed felonious assault, the prosecution must have established beyond a reasonable doubt that:

First, that the defendant either attempted to commit a battery on [Wilson] or did an act that would cause a reasonable person to fear or apprehend an

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