People v. Ventour

• Docket Number: 363922
• Decision Date: 28 December 2023
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RECONDO GLENN VENTOUR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
RECONDO GLENN VENTOUR, Defendant-Appellant.

No. 363922

Court of Appeals of Michigan

December 28, 2023

Wayne Circuit Court LC No. 20-002844-01-FC

Before: LETICA, P.J., and O'BRIEN and CAMERON, JJ.

CAMERON, J.

Under an aiding and abetting theory, defendant was convicted of second-degree murder,^[1]MCL 750.317, but was acquitted of possession of a firearm during the commission of a felony ("felony-firearm"), MCL 750.227b. Defendant was sentenced to a prison term of 22 to 40 years. On appeal, he challenges his conviction and disputes the trial court's sentencing calculation. In terms of sentencing, he claims the trial court incorrectly assessed him points for offense variable (OV) 1 (aggravated use of a weapon) and OV 2 (lethal potential of weapon possessed or used). He believes that the trial court's calculation of these OVs is contrary to our Supreme Court's opinion in People v Beck, 504 Mich. 605; 939 N.W.2d 213 (2019).

As a matter of first impression, we consider whether a trial court may increase a defendant's sentence on the basis of a codefendant's conduct where the defendant would have been assessed the same number of points had the defendant been convicted of a charged offense. We hold that under these circumstances, an increase is permissible so long as the calculation is solely based on a codefendant's conduct and not charges for which a defendant was acquitted. We therefore affirm defendant's conviction and sentence.

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I. BACKGROUND FACTS AND PROCEDURAL HISTORY

This case arises from the shooting death of the victim outside a Detroit gas station in July of 2019. Defendant and the victim were involved in a confrontation earlier in the day. Defendant was at the gas station when the victim pulled up to a gas pump. Defendant then phoned codefendants Dekarie Kennedy and Kayjuan Glover-Smith and laid in wait until they arrived. Minutes later, his codefendants arrived with handguns. Defendant was not armed. Defendant hit the victim while his codefendants, holding handguns, surrounded the altercation. As the victim began running away, Kennedy and Glover-Smith shot and killed the victim in the street. Defendant fled to West Virginia, where he and Kennedy were arrested in November 2019.

During trial, the prosecution played for the jury surveillance footage showing the encounters between defendant and the victim. Defendant was convicted as noted. In fashioning defendant's sentence, the trial court reasoned:

I do appreciate . . . your accepting responsibility for what happened, and your sympathy for [the victim's] family

* * *

I do appreciate those words, and I hope that [the victim's sister] and her family can, at some point in time . . . reconcile your apology with the fact that they have forever lost their brother

* * *

Mr. Ventour, I have reviewed the presentence report.

* * *

I'm aware of the guidelines.

And obviously, I had the benefit of presiding over your trial.

And what I saw, in terms of evidence, and what I saw, in terms of the video that was played, on many angles . . . on many occasions, was shocking to me.

It was, it was a murder, certainly not in broad day light, in the evening hours.

But you participated in the murder of a young man . . . that was witnessed by a large number of people.

And we're here today about your sentence, and we're here about justice for the [victim's] family.

* * *

[M]any people witnessed this.

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And it had to have shocked them as much as it shocks the Court.

And it is so sad, because we see the news, and we read in the newspaper [sic], sadly, on almost a daily basis, of people getting shot and killed in the City of Detroit, which just tarnishes the City, and it tarnishes the good work of so many people that are trying to make our City better.

But what can you say about people that conspire to kill a young man, uh, in such a way that it, it's just seen by everybody.

It's shocking.

And it's disgusting.

And it is crystal clear that you were the precipitator . . . and the word master mind, and the conductor, of everything that happened that day.

You were beat up, and offended.

And that lead [sic] you to contact two friends, your brother, the person you called your brother, and the person you called your cousin, to come and murder [the victim].

You were walking, and strutting around that gas station, with the telephone to your ear, clearly orchestrating those people to come, to settle a score, on your behalf.

Shocking.

Absolutely shocking.

And when you say you didn't want this to happen, I don't believe for a minute, and I don't think the jury would believe for a minute, that you didn't know those two guys were coming with guns.

And, when they drew their weapons, and were standing there, imposingly, holding their guns, you could have done something about it.

You.

You could have said, put your guns away.

I'm gonna fight this person, or let's all three fight this person, this person, but you just let them brandish their weapons.

And Mr. Kennedy, uh, extinguished [the victim] in the middle of the street.

You could have stopped it.

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And you should have stopped it.

And when you say, you didn't want it to happen, your actions, on that day, are totally at odds with what you're telling the Court, today.

And then you fled.

You ran away to . . . West Virginia.

Because you knew what you had done.

I'm somewhat surprised . . . that you were not convicted of first[-]degree murder.

But I . . . appreciate the jury's . . . finding you guilty of second[-]degree murder.

And you probably know that, if they had convicted you of first[-]degree murder, you'd be going to prison, and you would never come out.

You're twenty-four.

You would, you would die there.

But . . . I respect the finding of the jury.

Uh, Mr. Ventour, I've received some letters from your loving Aunt Phyllis.

I've received a letter from Richard Corona, and reviewed the letter.

I've received a letter, on your behalf, from . . . Albert Ventour.

These are people that know you, and love you.

And you've damaged their lives.

You've ruined your life, and you've ruined [the victim's] life, and that of his family.

And it is such a tragedy, that's so needless.

So needless.

Mr. Ventour, with respect to your conviction for second[-]degree murder, it is the sentence of this Court that you are to serve no less than twenty-two years, and . . . no more than forty years in the Michigan Department of Corrections.

Your sentence will reflect your jail credit of seven hundred and fifty-six days.

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Uh, frankly, I will tell you, that had I been able to sentence you to twenty-three years, which is the number of years that Mr. Kennedy is going to serve in prison, I would have sentenced you to twenty-three years.

But . . . twenty-three years is in excess of the . . . the guidelines.

Your sentence will also require you to pay four thousand eight hundred and twenty-five dollars to [the victim's sister], as restitution for the funeral and burial expenses for her brother.

Your sentence will require you to pay sixty- eight dollars in State costs; a crime[-victims'] assessment of a hundred and thirty dollars; and four hundred dollars for an attorney fee.

This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

Defendant first argues that the prosecution failed to present sufficient evidence to establish that he aided or abetted the codefendants to sustain his conviction of second-degree murder. We disagree.

A. STANDARD OF REVIEW

We review de novo a challenge to the sufficiency of the evidence. People v Speed, 331 Mich.App. 328, 331; 952 N.W.2d 550 (2020). When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the elements of the crime were proven beyond a reasonable doubt. People v Miller, 326 Mich.App. 719, 735; 929 N.W.2d 821 (2019). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000).

B. LAW AND ANALYSIS

The elements of second-degree murder are "(1) a death, (2) the death was caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful justification or excuse for causing the death." People v Smith, 478 Mich. 64, 70; 731 N.W.2d 411 (2007). At trial, the prosecutor argued that defendant was guilty of second-degree murder under an aiding and abetting theory. A person who aids or abets the commission of a crime may be convicted and punished as if he directly committed the offense. MCL 767.39. "To support a finding that a defendant aided and abetted a crime, the prosecution 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 [either] 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 Izarraras-Placante, 246 Mich.App. 490, 495-496; 633 N.W.2d 18 (2001) (citation omitted), "or, alternatively, that the charged offense was

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a natural and probable consequence of the commission of the intended offense," People v Robinson, 475 Mich. 1, 15; 715 N.W.2d 44 (2006).

" 'Aiding and abetting' describes all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that...