This post examines a recent decision from the Court of Appeals of Michigan: People v. Washington,
2017 WL 3397494 (2017) (per curiam).
The court begins the opinion, as courts usually do, by explaining how and why
the prosecution arose:
Defendant, Martell Washington,
was convicted by a
jury of armed robbery, Michigan Compiled Laws 750.529, assault with intent
to do great bodily harm less than murder, Michigan Compiled Laws 750.84,
assault by strangulation, Michigan Compiled Laws 750.84(1)(b), using a computer to commit a crime,
Michigan Compiled Laws 752l796, unauthorized use of a financial transaction
device, Michigan Compiled Laws 750.157n(1), felon in possession of a
firearm, Michigan Compiled Laws 750.224f, and second-offense possession of a
firearm during the commission of a felony, Michigan Compiled Laws 750.227b
and was sentenced as a fourth-offense habitual offender, Michigan Compiled Laws
769.12, to concurrent prison terms of 37 to 70 years for the robbery,
assault, and using-a-computer-to-commit-a-crime
convictions and 10 to 15 years for the unauthorized-use-of-a-financial-device
and felon-in-possessions convictions as well as a consecutive prison term of 5
years for the felony-firearm conviction. We affirm.
People v. Washington,
supra.
The court goes on to explain that
[o]n appeal, defendant first argues
that there was insufficient evidence to support the felon-in-possession, Michigan
Compiled Laws 750.224f, and felony-firearm, Michigan Compiled Laws
750.227b, convictions. We disagree. This Court reviews a defendant's challenge
to the sufficiency of the evidence de novo. People v. Bailey, 310
Mich. App. 703, 713; 873 N.W.2d 855 (2015). When determining whether the
prosecution presented sufficient evidence to support a conviction, we view the
evidence in a light most favorable to the prosecution to decide whether a
rational trier of fact could have found that the essential elements of the
crime or crimes at issue were proved beyond a reasonable doubt. People
v. Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012). Circumstantial evidence, as well as any reasonable inferences that may be drawn therefrom, can
constitute sufficient proof of the essential elements of a crime. People
v. Brantley, 296 Mich. App. 546, 550; 823 N.W.2d 290 (2012). When reviewing
a defendant's challenge to the sufficiency of the evidence, we are required to
draw all reasonable inferences and make all credibility determinations in
support of the jury's verdict. People v. Nowack, 462 Mich. 392,
400; 614 N.W.2d 78 (2000).
People v. Washington,
supra.
The Court of Appeals then explains that in
order to find a defendant guilty of
felon-in-possession, a jury must find that he or she possessed a firearm and
had been previously convicted of a felony. Michigan Compiled Laws
750.224f; see also People v. Perkins, 262 Mich. App. 267, 270–271;
686 N.W.2d 237 (2004), abrogated in part on other grounds by People v.
Smith–Anthony, 494 Mich. 669; 837 N.W.2d 415 (2013). In order to find a
defendant guilty of felony-firearm, a jury must find that he or she possessed a
firearm during the commission or attempted commission of a felony. Michigan
Compiled Laws 750.227b; see also People v. Avant, 235 Mich. App.
499, 505; 597 N.W.2d 864 (1999).
People v. Washington,
supra.
The court goes on to explain that
[o]n appeal, defendant does not argue
that the prosecution presented legally insufficient evidence to support a
conclusion that he had been previously been convicted of a felony or that he
participated in the commission of a felony at the relevant time in this case.
Instead, he only argues that the prosecution presented legally insufficient
evidence to support a conclusion that he possessed a firearm during the
commission of the crimes at issue in this case. The term `firearm’ is statutorily
defined as follows: `”Firearm” means any weapon which will, is designed to, or
may readily be converted to expel a projectile by action of an explosive. Michigan
Compiled Laws 750.222(e).
In this case, the prosecution's case
relied largely on the testimony of the victim. The victim testified, in
relevant part, that defendant threatened him with `[a] silver gun.’ When
subsequently asked whether the gun was `a handgun,’ the victim answered
affirmatively. This testimony, when viewed in a light most favorable to the
prosecution, Reese, 491 Mich. at 139, drawing all reasonable
inferences and making all credibility determinations in support of the jury's
verdicts, Nowack, 462 Mich. at 400, constitutes legally sufficient
evidence to support the jury's guilty verdicts on the felon-in-possession and
felony-firearm charges.
Defendant claims on appeal that `there
was no evidence from which a jury could reasonably infer that [defendant]
possessed a firearm[,]’ but, in our view, the victim's testimony is precisely
that. Defendant also claims on appeal that reversal is required because the
prosecution did not disprove that the `silver gun’ was not a `handgun designed
or manufactured exclusively for propelling by a spring, or by gas or air, BB's
not exceeding .117 caliber.’ See People v. Peals, 476 Mich. 636,
640; 720 N.W.2d 196 (2006). However, his position in this regard relies on a
previous version of the statutory definition of the term `firearm.’ The current
version, which is quoted above, was effective as of July 1, 2015, see 2015 PA
26, and the crimes at issue in this case were committed on July 3, 2015.
Accordingly, we conclude that the
prosecution presented sufficient evidence to support the felon-in-possession
and felony-firearm convictions.
People v. Washington,
supra.
The Court of Appeals then took up an issue relating to the
using a computer to commit a crime offense with which Washington was charged
and of which the jury found him guilty. People
v. Washington, supra. It began by
explaining that
[o]n appeal, defendant also argues that
the trial court's 37–to–70-year prison sentence for his
using-a-computer-to-commit-a-crime conviction, Michigan Compiled Laws
752.796, must be vacated because Michigan Compiled Laws 752.797(3)(d) only
allows for a prison term of not more than 7 years under the facts and
circumstances of this case. We disagree.
Michigan Compiled Laws 752.prohibits a
person from using a `computer program, computer, computer system, or computer
network to commit, attempt to commit, conspire to commit, or solicit another
person to commit a crime.’ The penalty for violating Michigan Compiled
Laws 752.796 is determined based on the maximum sentence for the crime
that was committed using the computer, which, in this case, was the
unauthorized use of a financial transaction device, Michigan Compiled Laws
750.157n(1). Because Michigan Compiled Laws 750.157n(1) does not set
forth a penalty for a violation of its provisions, the applicable prison term
is required to be not more than 4 years. See Michigan Compiled Laws
750.503. Consequently, because a 4–year prison term falls between 4 and 10
years, Michigan Compiled Laws 752.797(3)(d) provides that the maximum
sentence for a violation of Michigan Compiled Laws 752.796 premised
on a violation of Michigan Compiled Laws 750.157n(1) would,
ordinarily, be 7 years.
People v. Washington,
supra.
The Court of Appeals goes on to explain that
[h]owever, that is not the case here.
On appeal, defendant fails to acknowledge that he was sentenced as a
fourth-offense habitual offender. See Michigan Compiled Laws 769.12.
Consequently, pursuant to Michigan Compiled Laws 769.12(1)(b), the trial
court was permitted to sentence defendant, a fourth-offense habitual offender,
to a prison term of up to life. While Michigan Compiled Laws
769.12(3) limits a court's authority to impose a sentence such as this in
some circumstances, it does not appear that any of those circumstances are present
here. Indeed, as indicated above, defendant does not even acknowledge his
status as a fourth-offense habitual offender when making this argument on
appeal. Furthermore, had the Legislature intended to prohibit the
application of the habitual-offender enhancements to circumstances
involving Michigan Compiled Laws 750.157n, Michigan Compiled Laws
752.796, or Michigan Compiled Laws 752.797, it certainly could have
expressed such an intent. But, it did not. See People v. Allen, 499
Mich. 307, 317–318; 884 N.W.2d 548 (2016). Accordingly, we conclude that
defendant is not entitled to resentencing with respect to his
using-a-computer-to-commit-a-crime conviction.
People v. Washington,
supra.
The Court of Appeals then took up an issue that is,
honestly, new to me. The court explains that
Defendant's last argument on appeal
challenges the trial court's scoring of offense variable (OV) 1, OV 2, and OV
10. He claims that all three OVs were scored erroneously and that resentencing
is required. We disagree.
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. Whether the facts, as found, are
adequate to satisfy the scoring conditions prescribed by the statute, i.e., the
application of the facts to the law, is a question of statutory interpretation,
which an appellate court reviews de novo. [People v. Hardy, 494 Mich.
430, 438; 835 N.W.2d 340 (2013) ]
With respect to OVs 1 and 2, defendant
argues that each OV was improperly scored because there was insufficient
evidence to support a conclusion that he possessed a firearm during the crimes
at issue. OV 1 is to be scored at 15 points if a firearm was pointed at or
toward a victim, Michigan Compiled Laws 777.31(1)(c), and OV 2 is to be
scored at 5 points if the offender possessed or used a firearm (subject to some
exceptions not applicable here), Michigan Compiled Laws 777.32(1)(d).
Here, as discussed above, the victim expressly testified that defendant
possessed a firearm during the crimes at issue. This testimony was sufficient
to support the trial court's scoring of OVs 1 and 2, and we reject defendant's
argument that `[t]he fact that no shots were fired preponderates in favor of a
finding that [defendant] did not possess a pistol within the meaning of OV–1
and OV–2.’
A simple review of the language
in Michigan Compiled Laws 777.31(1)(c) and Michigan Compiled
Laws 777.32(1)(d) demonstrates that the Legislature did not include a
requirement that `shots [be] fired’ in order to score OV 1 at 15 points and OV
2 at 5 points. Accordingly, we conclude that the trial court correctly scored
OV 1 and OV 2.
People v. Washington,
supra.
The court then took up the issue of the remaining OV,
explaining that
[w]ith respect to OV 10, defendant
argues that `[t]he evidence show[s] that this was a purely opportunistic
crime.’ OV 10 is to be scored at 15 points if `[p]redatory conduct was involved.’
Michigan Compiled Laws 777.40(1)(a), in the commission of the crimes at issue.
Defendant claimed at sentencing and again argues on appeal that OV 10 should
have been scored at 10, not 15 points. Even if we assume that defendant is
correct, however, resentencing is not required.
Defendant, a fourth-offense habitual
offender, was sentenced based on an applicable minimum sentence range of 135 to
450 months, which was premised on his placement in OV Level III with a total OV
score of 45 points. See Michigan Compiled Laws 777.62. Even if we were to
reduce that total OV score by 5 points as requested by defendant, he would
remain placed in OV Level III and would, therefore, be subject to the same
applicable minimum sentence range. When an alleged scoring error would not
impact the appropriate minimum sentence range, resentencing is not required.
See People v. Fransisco, 474 Mich. 82, 89 n 8; 711 N.W.2d 44 (2006);
see also People v. Biddles, 316 Mich. App. 148, 156; ––– N.W.2d
–––– (2016). Accordingly, even if we assume that the trial court erroneously
scored OV 10 at 15 points, resentencing is not required.
Affirmed.
People v. Washington,
supra.
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