People v. Thomas, No. 270679 (Mich. App. 12/13/2007)
| Decision Date | 13 December 2007 |
| Docket Number | No. 270679.,270679. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMAL DION THOMAS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Wayne Circuit Court, LC No. 05-011901-01.
Before: Wilder, P.J., and Borrello and Beckering, JJ.
Defendant appeals as of right his jury trial convictions for assault with intent to murder, MCL 750.83, first-degree home invasion, MCL 750.110a(2), felonious assault, MCL 750.82, possession of a firearm by a felon, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b ("felony-firearm"). Defendant was sentenced to 50 to 100 years' imprisonment for the assault with intent to murder conviction, 26 to 50 years' imprisonment for the first-degree home invasion conviction, 28 to 48 months imprisonment for the felonious assault conviction, 40 months to 60 years' imprisonment for the possession of a firearm by a felon conviction and two years' imprisonment for the felony-firearm conviction. We affirm.
In April 2005, Rodney Harrison was held hostage in his own home. Harrison was tricked into allowing a stranger, Larry Davidson, along with a little boy, into his back yard, on the pretense of looking for a baseball. After not finding the nonexistent baseball, Davidson asked Harrison if he could give Harrison his cellular telephone number in case the baseball was found. When Harrison refused, Davidson insisted on calling Harrison's home phone from his cell phone so that Davidson's number would be on Harrison's caller identification. Davidson then asked Harrison to check his caller ID. Harrison went inside the house to do so. When Harrison turned around to walk back upstairs, Davidson had a handgun pointed at his head. Davidson had entered Harrison's home without Harrison's invitation or permission.
Davidson made a call on his cell phone and gave instructions, and soon after, defendant came into Harrison's house with a pistol. Davidson told defendant to keep his eyes on Harrison and to shoot Harrison if he made a sound, after which defendant told Harrison to sit on the sofa with his hands underneath his thighs, and threatened to kill Harrison if he moved or made a sound.
While defendant held Harrison at gunpoint, Davidson went upstairs to search the house. Davidson ransacked the house for 2 ½ hours, apparently looking for a large sum of money. Eventually, Harrison was handcuffed, blindfolded, his feet and legs tied together, and he was placed on his stomach. Harrison was beaten when he would not answer where the sought-after money was.
Later Harrison's wife Theresa came home; saw defendant with a gun in his hand, and fled to a neighbor's house from where she subsequently called the police. The police arrived to find Harrison lying handcuffed on the basement floor. Davidson and defendant had fled. Defendant was charged, convicted and sentenced as noted above.
Defendant argues that the prosecution presented insufficient evidence to sustain his assault with intent to murder conviction. We disagree. We review an insufficiency of the evidence claim in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v McKinney, 258 Mich App 157, 165; 670 NW2d 254 (2003).
To prove assault with intent to murder, the prosecution must show: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder. People v Brown, 267 Mich App 141, 147-148; 703 NW2d 230 (2005). An assault may be established by showing either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery. People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005). For assault with intent to commit murder, "the requisite intent may be gleaned from the nature of the defendant's acts constituting the assault, the temper or disposition of mind with which they were apparently performed, whether the instrument and means used were naturally adapted to produce death, [the defendant's] conduct and declarations prior to, at the time, and after the assault, and all other circumstances calculated to throw light upon the intention with which the assault was made." Brown, supra, p 149 n 5, citing People v Taylor, 422 Mich 554, 568; 375 NW2d 1 (1985).
The prosecution presented sufficient evidence to support defendant's assault with intent to murder conviction. Evidence was presented showing that Rodney Harrison was held hostage in his home. Defendant pointed a .38 revolver at Harrison and told Harrison that he would kill him if he made a sound. While Larry Davidson ransacked the house for two and a half hours, defendant remained downstairs with Harrison, continuously pointing a gun directly at Harrison's head. Although no evidence was presented which showed that defendant actually harmed Harrison, the evidence showed that defendant pointed a gun at Harrison's head for several hours and threatened to kill him. "No actual physical injury is required for the elements of the crime to be established." People v Harrington, 194 Mich App 424,430; 487 NW2d 479 (1992). For the reasons stated, the prosecution presented sufficient evidence to show that defendant committed the offense of assault with intent to murder.
The prosecution also presented sufficient evidence to prove that defendant committed the offense of assault with intent to murder as an aider and abettor. To support a finding that a defendant aided and abetted a crime, the prosecutor must show that: (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 he gave aid and encouragement. People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006). To support a finding that a defendant aided and abetted a crime, the prosecutor must show "beyond a reasonable doubt that the defendant aided or abetted the commission of an offense and that the defendant intended to aid the charged offense, knew the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commission of the intended offense." Robinson, supra, p 15. A criminal defendant "must possess the criminal intent to aid, abet, procure, or counsel the commission of an offense." Robinson, supra, p 15.
The evidence was sufficient to show that Davidson committed an assault with intent to murder and that defendant aided and abetted him in this offense. The evidence showed that Davidson tricked his way into Harrison's home for the purpose of stealing money from him and/or his stepson. Once Davidson was situated inside of Harrison's home, Davidson made a call informing someone that he was "in." Davidson then instructed that person to "park the car around the corner" and "come to the side door." Moments later, defendant entered the home with a .38 caliber gun. Defendant obeyed Davidson's orders to keep an eye on Harrison and to shoot Harrison if Harrison made a sound. Throughout the entire incident, Davidson and defendant threatened to kill Harrison several times, and Davidson kicked Harrison in the kidney and hit him with the butt of the gun.
The evidence sufficiently showed that Davidson assaulted Harrison with an actual intent to kill, which, if successful, would make the killing murder. Brown, supra, pp 147-148. The evidence further showed that defendant aided and abetted Davidson in this offense, i.e., defendant had the criminal intent to aid, abet, procure, or counsel the commission of this offense. Robinson, supra, p 15.
Defendant further argues that the prosecution presented insufficient evidence to support his felonious assault conviction. The elements of felonious assault require the prosecution show that defendant committed: (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery. People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). An assault may be established by showing either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery. Starks, supra, p 234.
The evidence showed that when Theresa Harrison entered her home on the night in question, her home was in disarray. Theresa looked up, saw defendant and stepped back out of the home. Defendant noticed that Theresa had entered the home, he looked up at her and stated, "she's getting away." During this time, defendant was armed with a weapon and he raised his gun up from his from side. Theresa ran away.
The evidence was sufficient to sustain defendant's felonious assault conviction. Although defendant never physically harmed Theresa, when defendant raised his gun up from his side, defendant placed Theresa in reasonable apprehension of receiving an immediate battery. Starks, supra, p 234. This Court has found that displaying a weapon implies a threat of violence and causes a reasonable apprehension of an imminent battery. People v Pace, 102 Mich App 522, 534; 302 NW2d 216 (1980). In light of the evidence presented, defendant's words, "damn she's here," and his actions of raising his gun up from his side while looking at Theresa, were sufficient to prove the elements of felonious assault, i.e., an assault, with a dangerous weapon and with the intent to injure or place the victim in reasonable apprehension of an immediate battery. Avant, supra, p 505. For the reasons stated, defendant's insufficiency of the evidence claims lacks merit.
Defendant also argues that the trial court improperly instructed the jury on the theory of aiding and abetting. We disagree. We review...
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