People v. Roberts

• Decision Date: 24 March 2020
• Docket Number: No. 339424,339424
• Citation: 954 N.W.2d 221,331 Mich.App. 680
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terrell Marcus ROBERTS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

331 Mich.App. 680

954 N.W.2d 221

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Terrell Marcus ROBERTS, Defendant-Appellant.

No. 339424

Court of Appeals of Michigan.

Submitted November 22, 2019, at Lansing.

Decided March 24, 2020, 9:05 a.m.

ON REMAND

Ronayne Krause, J. Defendant was convicted by a jury of being a felon in possession of a firearm (felon-in-possession), MCL 750.224f, and of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The jury found defendant not guilty of assault with intent to commit murder (AWIM), MCL 750.83, on an aiding-and-abetting theory, MCL 767.39. The trial court sentenced defendant for felon-in-possession as a second-offense habitual offender, MCL 769.10, to 48 to 90 months’ imprisonment, an upward departure from his minimum sentencing guidelines range of 14 to 36 months, consecutive to a mandatory two years’ imprisonment for felony-firearm. Defendant previously appealed his convictions and sentences, and we affirmed.¹ Our Supreme Court vacated those parts of our opinion addressing defendant's departure sentence and the trial court's assessment of 25 points for Offense Variable 9, MCL 777.39, and remanded for reconsideration in light of People v. Beck , 504 Mich. 605, 939 N.W.2d 213 (2019). People v. Roberts , 504 Mich. 995, 934 N.W.2d 237 (2019). We again affirm.

I. BACKGROUND

In our previous opinion, we provided the following summary of the facts:

This case arises out of a shooting that occurred at Secrets Nightclub (Secrets) in downtown Lansing in the early morning hours of May 24, 2015. At approximately 12:30 a.m., a Secrets patron was shot while inside of the nightclub. Defendant was inside Secrets when the shooting occurred, and he, along with other patrons, fled the club. Sergeant Brian Curtis of the Lansing Police Department and several other officers were parked in their patrol vehicles monitoring the club. Sergeant Curtis observed several patrons leave the club "in a panic." Shortly after, dispatch informed Sergeant Curtis of the shooting, and he activated the mobile vehicle recording device ("MVR") on the front of his patrol car.

Sergeant Curtis heard gunshots and simultaneously observed two individuals, later identified as defendant and LaDon Jackson, advancing towards a group of people outside the club. Sergeant Curtis later reviewed the MVR video and observed that it was Jackson who fired these shots. The MVR video, which was admitted into evidence and played for the jury at trial, also showed defendant and Jackson make contact with each other. Sergeant Curtis testified at trial that he believed that, during this contact, defendant passed a gun to Jackson, who then fired the shots and returned the gun to defendant.

After Jackson fired the shots, Sergeant Curtis observed both defendant and Jackson run south, and another officer informed Sergeant Curtis that these individuals might be in possession of a firearm. Sergeant Curtis pursued defendant and Jackson in his patrol vehicle and commanded them to stop, but they refused to comply. Jackson executed a "button hook" maneuver to evade police, but defendant continued running south alone. Sergeant Curtis pursued defendant and observed him pass by a red Impala and make certain movements that, in Sergeant Curtis's training and experience, led him to believe that defendant had discarded a firearm in that area. After passing the red Impala, defendant continued along the sidewalk, and he was arrested shortly thereafter. Police found no firearm in either Jackson's or defendant's possession. However, a canine unit trained to detect firearms located a firearm next to the red Impala that defendant had passed.

* * *

... As the jury was shown the MVR video, Sergeant Curtis testified:

[Y]ou're going to see a transaction what I believed [sic] where LaDon Jackson receives the firearm from the Defendant. LaDon Jackson advances at the crowd, does the shooting, comes back and exchanges the firearm back to the Defendant.

* * *

It is my belief that they're exchanging a firearm right there.

* * *

And here is LaDon Jackson advancing, firing his gun.

* * *

Here [defendant's] reaching into his upper torso.

* * *

And now here he goes right here to the passenger side. I believe he discretely tossed the gun right there.

Sergeant Curtis explained that, in his experience and training, weapons often "change hands" on the streets. He further explained "that people do not hold onto firearms. They trade them off with one another, especially during an event like this." Sergeant Curtis testified that after he heard the gunshots, he observed defendant and Jackson both "run back in a south direction after they advanced on a group to the north." Sergeant Curtis stated that he observed defendant reach "into his upper torso." ... Additionally, Sergeant Curtis commanded defendant to stop, but he refused to comply, "continued to evade," and passed "directly near the passenger side of this red Impala," which is where the gun was eventually found. In contrast, Sergeant Curtis testified that Jackson was never in the vicinity of the red Impala. [ People v. Roberts , unpublished per curiam opinion of the Court of Appeals, issued December 4, 2018 (Docket No. 339424), pp. 1-4, 2018 WL 6331644 (alterations in original).]

Additionally, we now set forth in full the trial court's stated reasons for imposing its departure sentence:

Well, Mr. Roberts, your attorney said something about your [sic] very capable of being a highly functioning member of the community and I 100% agree with that. I think you are very capable of that. Your actions have definitely not demonstrated that. Not only for this offense that you've been convicted of, these offenses, but you were on probation out of Eaton County for 2nd Degree Home Invasion, another very serious offense, at the time that you committed this offense. So, you are taking whatever potential that you have to be a highly functioning and contributing member of society and you're making decisions consciously and intentionally that are destroying that. And when it comes to gun violence, I agree that this is the scourge of this community. It is something that tears families apart, no matter what side of this they are on. It tears families apart. It destroys lives. And that's speaking again from both sides, it destroys lives. It has to be stopped and I don't know how to stop it other than to send a strong message that running around the streets of Lansing with a gun is not tolerated, not acceptable and will be significantly punished. And I do consider this to be different than the person who possesses a firearm while convicted of a felony under different circumstances.

I see people convicted of that when they've possessed a gun in their own home but, they've been convicted of a felony and they may not have a possession of a gun.

That's one thing. This is much higher up on the scale as far as I'm concerned than that. And I hold you not one bit accountable for what happened in the night club, not part of the charge, not part of the conviction. But what I hold you accountable for is possessing a firearm on the streets of Lansing under these circumstances where a shooting had just taken place by someone else. And I consider that to be at the highest end of the scale as far as seriousness of the offense goes for possession of a firearm by a felon.

So, I have considered the guidelines of 14 to 36 months and they are presumptively reasonable in my mind but, I also consider then [sic] somewhat inadequate for the circumstances of this particular case.

II. STANDARDS OF REVIEW

Sentencing courts are required to properly score the statutory sentencing guidelines and take the resulting minimum sentence range into account when crafting a particular sentence. People v. Lockridge , 498 Mich. 358, 391-392, 870 N.W.2d 502 (2015) ; People v. Steanhouse , 500 Mich. 453, 474-475, 902 N.W.2d 327 (2017). However, sentencing courts are not otherwise bound by the sentencing guidelines. Lockridge , 498 Mich. at 392, 870 N.W.2d 502 ; Steanhouse , 500 Mich. at 467-470, 902 N.W.2d 327. The sentencing court may, in its discretion, depart from the guidelines range if it explains how that departure is reasonable and proportionate. Lockridge , 498 Mich. at 392, 870 N.W.2d 502 ; Steanhouse , 500 Mich. at 473-475, 902 N.W.2d 327. We review the trial court's ultimate sentence for reasonableness under an abuse-of-discretion standard to determine whether it is proportionate to the offender and the circumstances of the offense. Steanhouse , 500 Mich. at 459-460, 473-474, 902 N.W.2d 327. A minimum sentence that falls within the properly calculated guidelines range is presumptively reasonable and proportionate. See People v. Carpenter , 322 Mich. App. 523, 532, 912 N.W.2d 579 (2018).

"Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id. The sentencing court may consider "facts not admitted by the defendant or found beyond a reasonable doubt by the jury." Lockridge , 498 Mich. at 392, 870 N.W.2d 502. "Offense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute specifically provides otherwise." People v. McGraw , 484 Mich. 120, 135, 771 N.W.2d 655 (2009).

III. BECK

It has long been understood that failure to persuade a jury beyond a reasonable doubt is not conclusive as to proofs under the less-stringent preponderance-of-the-evidence standard. Stone v. United States , 167 U.S. 178, 188-189, 17 S. Ct. 778, 42 L.Ed. 127 (1897); Martucci v. Detroit Comm'r of Police ...