Opinion
No. 348096
04-02-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TOMMY LEE CRUMPLER, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 18-006797-01-FC Before: M. J. KELLY, P.J., and FORT HOOD and BORRELLO, JJ. PER CURIAM.
Defendant appeals as of right his bench trial convictions of two counts of assault with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84, one count of possession of a firearm by a felon (felon-in-possession), MCL 750.224f, and three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced, as a second-offense habitual offender, MCL 769.10, to 19 months to 15 years' imprisonment for each of his AWIGBH convictions, one year to seven years and six months' imprisonment for his felon-in-possession conviction, and two years' imprisonment for each of his felony-firearm convictions. For the reasons set forth in this opinion, we affirm the convictions and sentences of defendant.
I. BACKGROUND
This appeal arises out of defendant shooting Fernando Toney at defendant's home, located in the City of Detroit. At the time of the incident, Toney and Cassandra Davis, Toney's girlfriend, were temporarily residing at defendant's home and had keys to defendant's home. On the day of the incident, Toney, Davis, defendant, and other guests were at defendant's home socializing throughout the day. At some point, defendant argued with Davis and told her to leave his home. Davis was upset and told Toney to leave with her.
After Davis and Toney exited defendant's home, Davis knocked on defendant's front door to retrieve her cellular telephone and charger. Davis's daughter cracked the front door open and handed Davis her belongings. Toney then knocked on defendant's door for approximately one or two minutes to retrieve his backpack. The front door was closed when defendant, who was inside of his house, fired his rifle once through the door, with a bullet striking Toney in his upper chest. Davis believed defendant intended to shoot her.
The trial court found that at the time defendant fired his gun, defendant did not have a valid self-defense claim because at the time defendant fired his weapon he did not and could not honestly and reasonably believe that he needed to use deadly force to prevent imminent death or great bodily harm to himself. See MCL 780.972(1)(a). The trial court based this legal conclusion on its findings that defendant was not in danger when the shooting occurred because Toney and Davis were not trying to enter defendant's home and no evidence existed for the trial court to conclude that Toney and Davis planned to attack Davis.
The trial court found that while the prosecution failed to prove defendant attempted to murder anyone, the prosecution did prove that when defendant fired his rifle, he knew Toney and Davis were standing behind his front door thus, the trial court convicted defendant of two counts of the lesser-included charges of AWIGBH. As stated above, defendant was also convicted of felon-in-possession, and three counts of felony-firearm.
II. ANALYSIS
On appeal, defendant argues that while there may have been sufficient evidence to convict him of assault relative to Toney and Davis, the element of intent was not established for one of defendant's AWIGBH convictions. Defendant asks this Court to conclude that because only one shot was fired, and Toney was the only person struck and injured by defendant's shot, the prosecution failed to prove that defendant intended to severely injure Davis. Further, defendant argues, the prosecution failed to disprove defendant's self-defense claim. Defendant argues that he reasonably believed he had to use force to defend himself against an imminent attack by Toney and Davis.
The prosecution rebuts defendant's arguments, contending there was sufficient evidence to show that defendant acted with the requisite intent to be convicted of two counts of AWIGBH because, in part, defendant admitted that he knew Toney and Davis were outside his front door when he intentionally fired his gun. The prosecution also argues that defendant failed to provide any evidence to prove that he acted in self-defense.
The parties dispute the application of the doctrine of transferred intent in this case; defendant arguing that prior precedent is erroneous, whereas the prosecution argues the doctrine applicable.
This Court reviews de novo a challenge to the sufficiency of the evidence in a bench trial. People v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). "A claim that the evidence was insufficient to convict a defendant invokes that defendant's constitutional right to due process of law," People v Lane, 308 Mich App 38, 57; 862 NW2d 446 (2014) (citations omitted), and "[c]onstitutional questions are reviewed de novo[.]" People v Hieu Van Hoang, 328 Mich App 45, 63; 935 NW2d 396 (2019) (citation omitted). "Due process requires that, to sustain a conviction, the evidence must show guilt beyond a reasonable doubt." People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010) (citation omitted).
When ascertaining whether sufficient evidence was presented in a bench 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 essential elements of the crime were proven beyond a reasonable doubt. This Court will not interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses. Circumstantial evidence and reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of the crime. All conflicts in the evidence must be resolved in favor of the prosecution. [People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008) (citations omitted).]
"Due process requires the prosecution in a criminal case to introduce sufficient evidence to justify a trier of fact in its conclusion that the defendant is guilty beyond a reasonable doubt." People v Breck, 230 Mich App 450, 456; 584 NW2d 602 (1998). Proof of AWIGBH, MCL 750.84, requires the establishment of two elements: "(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder." People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014) (citation omitted, footnote added). MCL 750.84 governs AWIGBH, and states in relevant part:
An assault is " 'an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery.' " People v Cameron, 291 Mich App 599, 614; 806 NW2d 371 (2011), quoting People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005) (citation omitted). A battery is "an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." Cameron, 291 Mich App at 614, quoting Starks, 473 Mich at 234 (quotation marks and citation omitted).
(1) A person who does either of the following is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $5,000.00, or both:
(a) Assaults another person with intent to do great bodily harm, less than the crime of murder.
"AWIGBH is a specific intent crime." Stevens, 306 Mich App at 628 (citation omitted) "The intent to do great bodily harm less than murder is 'an intent to do serious injury of an aggravated nature.' " Id. (citation omitted). "If a defendant has such intent, the fact that he was provoked or that he acted in the heat of passion is irrelevant to a conviction." Id. at 628-629 (citation omitted). "Because of the difficulty in proving an actor's intent, only minimal circumstantial evidence is necessary to show that a defendant had the requisite intent." Id. at 629 (citation omitted). "Intent to cause serious harm can be inferred from the defendant's actions, including the use of a dangerous weapon or the making of threats." Id. at 629 (citations omitted). "A gun is a deadly weapon and firing a deadly weapon at another person—once or several times—undoubtedly involves the use of deadly force, because it is an act for which the natural, probable, and foreseeable consequence is death." People v Anderson, 322 Mich App 622, 629; 912 NW2d 607 (2018) (citations and quotations omitted). The trier of fact may reasonably infer intent from all the facts and circumstances in a case. People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001).
We first consider defendant's argument that his actions lacked the requisite intent to find him guilty on two counts of AWIGBH because he only fired one shot.
It was uncontested that defendant told Davis to leave his home. Next, he told Toney to leave. They complied. Shortly after Toney and Davis exited defendant's home, they knocked on defendant's front door in an effort to retrieve some of their personal belongings. After Davis retrieved her cellular telephone and charger, Toney knocked on defendant's door for approximately one or two minutes, while Davis stood beside him, so that he could retrieve his backpack. Defendant was angry and ordered Toney and Davis to stop knocking on his door.
Although the front door was closed, defendant, who was inside of his house, fired his rifle once at the door, and the bullet struck Toney in his upper chest. Davis testified she believed defendant intended to shoot her. The trial court found that at the time defendant fired his gun, defendant was upset, had not had an opportunity to calm down from the argument with Davis, and was agitated because Toney and Davis were at his door and causing a disturbance. These facts show that defendant's anger and agitation with Toney and Davis constituted circumstantial evidence sufficient to show defendant intended to commit AWIGBH against both Toney and Davis. Stevens, 306 Mich App at 629.
"[W]here two persons are assaulted, there are two separate offenses." People v Lovett, 90 Mich App 169, 174; 283 NW2d 357 (1979). Defendant concedes that he assaulted Toney and Davis. Thus, the element of assault is not in issue. His argument then becomes centered around the fact that because he only fired one shot he cannot be convicted of two counts of AWIGBH. Such a conclusion is contrary to prior decisions of this Court. As this Court alluded to in Anderson, one shot of defendant's rifle was all it took to naturally, probably, and foreseeably do great bodily harm to either Toney or Davis. Anderson, 322 Mich App at 629. Defendant's use of a rifle, while aware that he was in close proximity to Toney and Davis, also shows defendant's intent to cause serious injury to Toney and Davis. Stevens, 306 Mich App at 629.
An off-shoot of this argument is made by defendant when he asserts that because he only fired one shot and it struck Toney, there was insufficient evidence to prove that he intended to shoot Davis. However, such argument belies the direct testimony of Davis who testified that she believed defendant intended to shoot her. All conflicts in the evidence presented at trial must be resolved in favor of the prosecution. See Kanaan, 278 Mich App at 618. ("When ascertaining whether sufficient evidence was presented in a bench 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 essential elements of the crime were proven beyond a reasonable doubt.") (citation omitted). The record reveals that defendant was well aware that Davis and Toney were on the other side of the very door which he directly fired a rifle. Indeed, the trial court made such a finding following a careful recitation of the evidence. Accordingly, and contrary to defendant's assertions on appeal, there was evidence, that if believed, proved that defendant intended to harm Davis and Toney. It was for the trier of fact to decide this issue and once the trial court did so: "[t]his Court will not interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses," Kanaan, 278 Mich App at 619, because there is no "definite and firm conviction that a mistake has been made." People v Brown, 205 Mich App 503, 505; 517 NW2d 806 (1994), lv den 445 Mich 944 (1994).
Defendant also asserts Davis had to be severely injured before the trial court could find that he intended to cause Davis great bodily harm, and convict him of AWIGBH. This argument is without merit. In People v Harrington, 194 Mich App 424, 430; 487 NW2d 479 (1992), this Court opined that "the fact that the bullet missed the victim does not negate the intent element. No actual physical injury is required for the elements of the crime to be established." Accordingly, defendant is not entitled to relief on this issue.
Defendant next asserts that the doctrine of transferred intent is inapplicable to this case.
Under the doctrine of transferred intent, if a defendant shoots at one person intending to hurt but not kill the person, and the bullet strikes a second person, the defendant may be convicted of two separate counts of AWIGBH. See Lovett, 90 Mich App at 171, 174-175. Thus, "intent may be transferred." People v Lawton, 196 Mich App 341, 350; 492 NW2d 810 (1992). Still,
[b]efore defendant can be convicted it must first be shown that he had the intention to cause great bodily harm to someone. Merely because he shot the wrong person makes his crime no less heinous. It is only necessary that the state of mind exist, not that it be directed at a particular person. [Id. at 350-351, quoting Lovett, 90 Mich App at 172.]
The crux of defendant's argument is similar to his prior arguments; there was no evidence he intended to commit AWIGBH against both Davis and Toney. Again, defendant's argument belies the trial testimony. Defendant knew both Toney and Davis were on the other side of the door when he fired his weapon. Defendant testified that he was angry with Toney and Davis at the time he fired his rifle directly at the other side of the door where he knew Toney and Davis were standing. Defendant essentially concedes he intended to harm Toney, hence defendant's intent toward Toney could be transferred to satisfy the intent element for his AWIGBH conviction against Davis. Lawton, 196 Mich App at 350-351.
Defendant also asserts that this Court in Lovett inappropriately expanded the doctrine of transferred intent by applying the doctrine to AWIGBH, and thus claims that the doctrine of transferred intent should not be applied in this case.
In Lovett, 90 Mich App at 175, this Court, quoting from People v Carlson, 37 Cal App 3d 349, 357; 112 Cal Rptr 321 (1974), stated:
"Under the rationale of the cases cited there can be no doubt that the doctrine of 'transferred intent' applies even though the original object of the assault is killed as well as the person whose death was the accidental or the unintended result of the intent to kill the former. * * * [E]ach victim of the attack is to be viewed individually and without regard to which in fact died.
* * *
"Accordingly, in the present case in the application of the doctrine of transferred intent, the law would transfer defendant's felonious intent to kill his wife to the fetus and the criminality of defendant's act toward the fetus would be the same as that directed to his wife. Therefore, under the doctrine of transferred intent if defendant was guilty of the killing of his wife without malice, i.e., voluntary manslaughter * * *, he would normally be guilty of the voluntary manslaughter of the fetus." [Alteration and omissions in original.]
Applying the rationale of Carlson, this Court concluded that defendant, who had fired at one person but missed and hit another, could be convicted of two counts of AWIGBH. Putting aside the precedential value of Lovett, defendant provides no palpable rationale on appeal that would lead this Court to reverse, or ignore our holding in Lovett regarding the applicability of the doctrine of transferred intent to AWIGBH cases. We thus decline defendant's invitation to do so.
We recognize that we are not bound by Lovett under MCR 7.215(J)(1), because it was decided by this Court before November 1, 1990. "However, while we are not 'strictly required to follow uncontradicted opinions from this Court decided before November 1, 1990,' those opinions are nonetheless 'considered to be precedent and entitled to significantly greater deference than are unpublished cases.' " People v Bensch, 328 Mich App 1, 7 n 6; 935 NW2d 382 (2019), quoting Woodring v Phoenix Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018).
Defendant also contends on appeal that he was entitled to use a firearm in self-defense, and that the prosecution failed to disprove his claim of self-defense. "Once a defendant raises the issue of self-defense and satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist, the prosecution must exclude the possibility of self-defense beyond a reasonable doubt." Stevens, 306 Mich App at 630. The elements for the use of deadly force in self-defense are provided in MCL 780.972 of the Self-Defense Act (SDA), MCL 780.971 et seq.:
An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual. [MCL 780.972(1)(a).]
"[A] person is never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat from an attacker who he reasonably believes is about to use a deadly weapon." People v Riddle, 467 Mich 116, 119; 649 NW2d 30 (2002) (citations omitted). "[I]nstead, he may stand his ground and meet force with force." Id. (citations omitted). "[O]ne who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense." Id. at 120. "[A] defendant may show his state of mind by circumstantial evidence to establish that he acted in self-defense." People v Hoskins, 403 Mich 95, 100; 267 NW2d 417 (1978). Likewise, in "the absence of direct evidence, the prosecutor [may] . . . use circumstantial evidence" to exclude the possibility that defendant acted in self-defense. Id.
Here, the issue is whether defendant honestly and reasonably believed that he needed to use deadly force to prevent imminent death or great bodily harm to himself. See MCL 780.972(1)(a). Defendant contends that he was entitled to use a firearm in self-defense because: (1) he was in his home and had a legal right to be there; (2) he was 65 years old, in a wheelchair, and thus in a vulnerable position; (3) Davis started the argument and had been arguing for hours before defendant fired his gun; (4) Toney and Davis had been drinking alcohol all day, and when defendant put Toney and David out of his home, they were angry; (5) Toney and Davis indicated they wanted to reenter defendant's home by unnecessarily banging on defendant's door; and (6) defendant was being accosted by Toney and Davis.
Defendant does not explain how Toney and Davis accosted him, and the record does not support defendant's assertion. As previously stated, the record reveals that after defendant told Davis to leave his home, Davis and Toney complied. When Toney and Davis wanted to retrieve some of their personal belongings, they knocked on the door, rather than use their keys to enter defendant's home. In fact, after Toney and Davis exited defendant's home, Toney and Davis never attempted to reenter. Thus, defendant's assertion of being accosted by Toney and Davis is not supported by the record. We conclude that the record does not support any of defendant's assertions supporting his claim of self-defense. Accordingly, defendant has failed to produce any evidence from the record that could lead this Court to conclude that defendant established a prima facie defense of self-defense. Stevens, 306 Mich App at 630. Accordingly, the burden never shifted to the prosecution to exclude the possibility of self-defense beyond a reasonable doubt. Id. Accordingly defendant is not entitled to relief.
Affirmed.
/s/ Michael J. Kelly
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello