Opinion
No. 334171
10-10-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RYAN ANTHONY LORENZ, Defendant-Appellant.
UNPUBLISHED Kent Circuit Court
LC No. 15-006312-FC Before: MURRAY, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; assault with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84; carrying a concealed weapon (CCW), MCL 750.227; felon in possession of a firearm (felon-in-possession), MCL 750.224f; assault with a dangerous weapon (felonious assault), MCL 750.82; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent sentences of 50 to 75 years for the armed robbery and AWIGBH convictions, 20 to 30 years for the CCW and felon-in-possession convictions, and 5 to 15 years for the felonious assault conviction, all of which, except for the CCW sentence, are to be served consecutively to the two-year sentence for the felony-firearm conviction. Defendant appeals by right. We affirm.
Defendant was charged with assault with intent to commit murder, MCL 750.83, but the jury convicted him of the lesser included offense of AWIGBH.
This case arises from an arranged drug transaction between Angel Aquino-Gordon (the victim) and defendant on May 26, 2015, in Grand Rapids, Michigan. The victim testified that, while on the porch of his house with defendant and another man, whom he did not know, he asked defendant for the marijuana. Defendant then pulled out a gun and told the victim to give him everything. After the victim said no, and as he walked to the front door, defendant shot him in the back. The bullet severed the victim's spinal cord, rendering him a paraplegic. Defendant's testimony was consistent with much of the testimony given by both the victim and his mother, Jasmin Gordon, regarding the events that preceded the shooting. Defendant, however, denied that he pointed a gun at and shot the victim. Defendant testified that the victim was shot when a friend of the victim, who had come from the side of the house, pulled a gun on him and he tussled with the friend.
We recognize that defendant's mother was the victim of the felonious assault, but for ease of reference, we will refer to Aquino-Gordon as the victim.
I. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the evidence presented at trial was insufficient to support his convictions. We disagree.
We review de novo challenges to the sufficiency of the evidence. People v Bailey, 310 Mich App 703, 713; 873 NW2d 855 (2015). "To determine whether the prosecutor has presented sufficient evidence to sustain a conviction, we review the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013) (quotation marks and citation omitted). "The standard of review is deferential: 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 NW2d 78 (2000). This is because "[j]uries, not appellate courts, see and hear witnesses and are in a much better position to decide the weight and credibility to be given to their testimony." People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992) (quotation marks and citation omitted). "Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999) (quotation marks and citation omitted).
Defendant argues that his conviction for armed robbery was not supported by sufficient evidence because the evidence failed to establish that he took any items from the victim. The elements of armed robbery, MCL 750.529, are the following:
(1) the defendant, in the course of committing a larceny of any money or other property that may be the subject of a larceny, used force or violence against any person who was present or assaulted or put the person in fear, and (2) the defendant, in the course of committing the larceny . . . possessed a dangerous weapon . . . . [People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007).]A larceny requires a trespassory taking and carrying away of the personal property of another with intent to steal the property. People v March, 499 Mich 389, 401; 886 NW2d 396 (2016).
The phrase "in the course of committing a larceny" includes "acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property." MCL 750.530(2). In People v Williams, 491 Mich 164, 172; 814 NW2d 270 (2012), our Supreme Court held that based on the inclusion of the phrase "in the course of committing a larceny" in the armed robbery statute, evidence of an attempted armed robbery is sufficient to sustain a conviction under the armed robbery statute.
The victim testified that he had $300 and a cell phone in his left front pocket. When he asked defendant for the marijuana, defendant pulled a gun and instructed the victim to give him everything. According to the victim, after he was shot, the $300 and his cell phone were missing. Gordon testified that when she opened the front door, defendant was bending down over the victim, "kind of like taking something from him." Defendant immediately stood up and pointed a gun in her face. Gordon and Detective Mark Worch testified that no cell phone or money was found on the victim after he was shot. Viewing this evidence in the light most favorable to the prosecutor, a rational trier of fact could find beyond a reasonable doubt that defendant took and carried away the victim's money and cell phone with the intent to steal them. Smith-Anthony, 494 Mich at 676.
Even if the evidence were insufficient for a rational trier of fact to find that defendant took the victim's money and cell phone, defendant's conviction for armed robbery is still supported by sufficient evidence. As noted above, armed robbery does not require a completed larceny. Williams, 491 Mich at 172. As already stated, the victim testified that when he asked defendant for the marijuana, defendant pulled out a gun and instructed the victim to give him everything. Viewing the evidence in a light most favorable to the prosecutor, a rational trier of fact could find beyond a reasonable doubt that defendant, in attempting to commit a larceny, used force or violence against the victim. Smith-Anthony, 494 Mich at 676. Defendant's conviction for armed robbery is supported by sufficient evidence.
Defendant also argues that his conviction for felonious assault was not supported by sufficient evidence because the victim and Gordon provided conflicting testimony regarding whether Gordon came out to the front porch before defendant ran away. "The elements of felonious assault are (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).
Gordon testified that when she opened the front door, defendant, who was bending over the victim, immediately stood up and pointed a gun in her face. Scared, Gordon covered her face with her hands and pleaded with defendant not to shoot her. But the victim testified that Gordon came outside "[p]robably [a] couple minutes" after defendant and the other man ran off. The victim, however, also testified that he "blacked out or something" after he was shot. He explained that while he could still see, he was disoriented and did not "really know" what was happening. Considering the victim's physical and mental conditions after the shooting, the jury was certainly free to reasonably conclude that Gordon's testimony was more accurate and credible. Drawing all reasonable inferences and making credibility choices in support of the jury verdict, Nowack, 462 Mich at 400, a rational trier of fact could find beyond a reasonable doubt that defendant assaulted Gordon with a dangerous weapon with the intent to injure or place her in reasonable apprehension of an immediate battery, Smith-Anthony, 494 Mich at 676. Defendant's conviction for felonious assault is supported by sufficient evidence.
Regarding his conviction for AWIGBH, defendant argues that because the jury convicted him of AWIGBH, a lesser included offense of the charged offense of assault with intent to commit murder (AWIM), MCL 750.83, the jury must have believed some of his testimony. The elements of AWIM are "(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder." People v Lawton, 196 Mich App 341, 350; 492 NW2d 810 (1992). The elements of AWIGBH are "(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 Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997). The only distinguishing factor between the two crimes is the level of intent. See People v Brown, 267 Mich App 141, 150-151; 703 NW2d 230 (2005). A defendant's intent may be inferred from his words, or from the act, means, or manner used to commit the offense. People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001).
We disagree that the jury, by convicting defendant of AWIGBH, must have believed some of defendant's testimony. In her opening statement, defense counsel stated that this case "is one over intent to kill" and that a person, if the person had the intent to kill someone standing one to three feet away, would have killed the person. Defense counsel asked for "GBH." Defense counsel also questioned the emergency physician who treated the victim about the potential fatality of a gunshot wound to the back compared to a gunshot wound to other parts of the body, such as the head. In her closing argument, defense counsel argued that defendant lacked the intent to kill because he did not shoot the victim in the head: "If you are less than a foot away, if you want to shoot to kill someone, a head shot is a sure shot." Based on defense counsel's argument, the jury could have chosen to convict defendant of AWIGBH rather than AWIM because it did not believe that defendant intended to kill the victim. Furthermore, because the victim testified that defendant pulled out a gun and shot him in the back, a rational trier of fact could find beyond a reasonable doubt that defendant assaulted the victim with the intent to do great bodily harm. Smith-Anthony, 494 Mich at 676. Defendant's conviction for AWIGBH is supported by sufficient evidence.
Defendant, without presenting any specific argument, also claims that his convictions for CCW, felon-in-possession, and felony-firearm were not supported by sufficient evidence. The elements of CCW are (1) defendant carried a weapon, and (2) the weapon was concealed on or about defendant's person. People v Davenport, 89 Mich App 678, 682; 282 NW2d 179 (1979). "Concealment occurs when the [weapon] is not discernible by the ordinary observation of persons casually observing the person carrying it." People v Kincade, 61 Mich App 498, 504; 233 NW2d 54 (1975). The elements of the offense of felon-in-possession are "(1) the defendant is a felon who possessed a firearm (2) before his right to do so was formally restored[.]" People v Bass, 317 Mich App 241, 268; 893 NW2d 140 (2016). The elements of felony-firearm are (1) possession of a firearm (2) during the commission or attempted commission of another felony. People v Burgenmeyer, 461 Mich 431, 438; 606 NW2d 645 (2000).
The victim testified that defendant pulled a gun after he asked for the marijuana. Before defendant pulled the gun and shot the victim in the back, the victim had not seen a gun on defendant. Gordon testified that after she opened the front door, defendant pointed a gun at her head. Gordon had not seen a gun on defendant when he was inside the house to use the bathroom. Defendant stipulated that he was ineligible to possess a firearm. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find that defendant committed the offenses of CCW, felon-in-possession, felony-firearm. Smith-Anthony, 494 Mich at 676. The convictions are supported by sufficient evidence.
II. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor committed misconduct in closing argument when the prosecutor called him a "liar" and called his defense "absurd." We disagree.
Because defendant did not object to the alleged improper remarks and request curative instructions, the claim of prosecutorial misconduct is not preserved for appellate review. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). Unpreserved claims of prosecutorial misconduct are reviewed for outcome-determinative, plain error. People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008).
The test for prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). "Issues of prosecutorial misconduct are reviewed on a case-by-case basis by examining the record and evaluating the remarks in context[.]" People v Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010) (quotation marks and citation omitted). The propriety of a prosecutor's remarks depends on all the facts of the case. People v Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002). "Prosecutorial comments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evidence admitted at trial." Id.
In his closing argument, the prosecutor stated that defendant was "a liar" and that defendant had given "lies" because defendant told the police that he was in Georgia on the day of the shooting. Prosecutors are typically afforded great latitude regarding their arguments and conduct at trial. Unger, 278 Mich App at 236. A prosecutor is free to argue the evidence and all reasonable inferences arising from it as they relate to his theory of the case. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). A prosecutor need not use the blandest possible terms. People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). When interviewed by Detective Worch, defendant was adamant that he was in Atlanta on the day of the shooting. At trial, defendant admitted that he lied when he told Detective Worch that he was in Atlanta. Because defendant admitted that he had lied, and because a prosecutor may argue the evidence and all reasonable inferences arising from it, Bahoda, 448 Mich at 282, the prosecutor did not commit misconduct when he called defendant a "liar" and said that defendant had given "lies."
The prosecutor also called the defense asserted by defendant "the theory of the absurd." According to the prosecutor, it was "absurd" that defendant had not told anyone before trial that the victim was shot when defendant tussled with the victim's friend who had come from the side of the house. Defendant acknowledged that he did not tell anyone about the tussle he had with the friend until he testified at trial. Based on defendant's testimony and because a prosecutor is free to argue the evidence and all reasonable inferences arising from it, id., and need not use the blandest possible terms, Dobek, 274 Mich App at 66, the prosecutor did not commit misconduct when he referred to defendant's defense as "the theory of the absurd."
Additionally, defendant argues that defense counsel was ineffective for failing to object to the prosecutor's alleged improper remarks. But because the prosecutor's remarks were proper, defense counsel was not ineffective for failing to object. See People v Riley (After Remand), 468 Mich 135, 142; 659 NW2d 611 (2003) ("Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or meritless motion.").
III. SENTENCING
Finally, defendant argues that he is entitled to resentencing because his sentences for AWIGBH, CCW, felon-in-possession, and felonious assault are unreasonable and disproportionate departures from the applicable guidelines ranges. We disagree.
The trial court sentenced defendant to concurrent sentences for his convictions of armed robbery, AWIGBH, CCW, felon-in-possession, and felonious assault. When a trial court sentences a defendant to concurrent sentences, the trial court need only score the sentencing guidelines for the conviction of the highest crime class. People v Lopez, 305 Mich App 686, 690; 854 NW2d 205 (2014); People v Mack, 265 Mich App 122, 127-128; 695 NW2d 342 (2005). The sentencing guidelines need not be scored for the lower-crime-class convictions. Lopez, 305 Mich App at 691. Defendant was convicted of one class A crime—armed robbery, MCL 777.16y, and he does not dispute that his sentence for armed robbery fell within the minimum sentence range. Consequently, this Court must affirm the sentence. MCL 769.34(10); People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). Additionally, because the sentencing guidelines did not apply to defendant's convictions for AWIGBH, CCW, felon-in-possession, and felonious assault, which were lower-crime-class convictions, defendant's argument that his sentences for those convictions constitute upward departures is without merit. See Lopez, 305 Mich App at 692. Defendant is not entitled to be resentenced.
AWIGBH is a class D crime. MCL 777.16d. CCW and felon-in-possession are class E crimes. MCL 777.16m. Felonious assault is a class F crime. MCL 777.16d. --------
We affirm.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Jane E. Markey