Opinion
No. 348611
07-23-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. JOSEPH IRVING PHILLIPSON, Defendant-Appellee.
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 UNPUBLISHED Wayne Circuit Court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. 18-008666-01-AR Before: MARKEY, P.J., and M. J. KELLY and BOONSTRA, JJ. PER CURIAM.
This appeal arises following the district court's denial of the prosecution's motion to bind defendant, Joseph Phillipson, over for trial on the charges of 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 circuit court affirmed the district court's decision. The prosecution now appeals by leave granted. For the reasons stated in this opinion, we reverse the circuit court's order affirming the district court, vacate the district court's order dismissing the charges, and remand to the district court for entry of an order binding Phillipson over for trial.
People v Phillipson, unpublished order of the Court of Appeals, entered September 3, 2019 (Docket No. 348611).
I. BASIC FACTS
In April 2018, Michael Kelly and Tatianna Hughes were in a dating relationship. Kelly thought their relationship was "fine," and he did not know that Hughes had decided to break up with him. Hughes was friends with Phillipson, and she told him that Kelly had previously pulled a gun on her during an argument and that he had threatened to shoot the tires on her vehicle. On April 5, 2018, Hughes told Kelly that she was going to her mother's house, but she went to a bar. Phillipson was also at the bar.
Around 2:00 a.m. on April 6, 2018, Hughes decided to move her vehicle to a better parking spot. She testified that as she started to walk back to the bar, Kelly drove up fast, pulled his vehicle in front of her, and got out. Hughes recounted that he looked angry and had his fists "balled up." Believing that she was about to have a physical altercation with Kelly, Hughes called to Phillipson, saying "that's him." She said that Phillipson then "defended [her] in a way."
Surveillance video of the incident depicts Phillipson drawing his firearm and hiding it behind the front of his jacket while still holding it. As Kelly exited his vehicle, Phillipson placed himself between Kelly and Hughes. Phillipson touched Kelly with his left hand, and Kelly pushed Phillipson's hand off of him. Phillipson then pulled his gun and pointed it at Kelly. The video shows that Kelly put his hands up, backed away, and got into his vehicle. Phillipson continued to point his gun at Kelly until Kelly started pulling out of the parking lot. At the preliminary examination, Kelly testified that he had a firearm, but it was holstered on his hip and not visible. He stated that he did not threaten anyone with the weapon.
Phillipson was charged with felonious assault and felony-firearm. At his preliminary examination, he argued that he acted in self-defense and defense of Hughes. The district court agreed and dismissed the charges. The circuit court affirmed the dismissal. This appeal follows.
II. BINDOVER
A. STANDARD OF REVIEW
The prosecution argues that the district court abused its discretion when it did not bind Phillipson over for trial. We review for an abuse of discretion "a district court's decision to bind a defendant over for trial." People v Waterstone, 296 Mich App 121, 131; 818 NW2d 432 (2012) (quotation marks and citation omitted). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." Id. at 131-132.
B. ANALYSIS
The purpose of the preliminary examination is for the district court to "determine whether a felony was committed and whether there is probable cause to believe the defendant committed it." People v Yost, 468 Mich 122, 125-126; 659 NW2d 604 (2003). "[P]robable cause requires a quantum of evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt." People v Plunkett, 485 Mich 50, 57; 780 NW2d 280 (2010) (quotation marks and citation omitted). If there is probable cause, the district court must bind the defendant over to the circuit court. Id.
"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). "Because intent may be difficult to prove, only minimal circumstantial evidence is necessary to show a defendant entertained the requisite intent." People v Harverson, 291 Mich App 171, 178; 804 NW2d 757 (2010). Phillipson pointed a firearm at Kelly until Kelly left the bar's parking lot. Given this evidence, a person of ordinary prudence and caution would conscientiously entertain a reasonable belief that Phillipson committed an assault, with a dangerous weapon, with the intent to place Kelly in reasonable apprehension of an immediate battery. See Plunkett, 485 Mich at 57. Therefore, there was probable cause to believe Phillipson committed felonious assault. Likewise, there was probable cause to believe Phillipson committed felony-firearm since he possessed a firearm during the commission of, or the attempt to commit, a felonious assault. See People v Muhammad, 326 Mich App 40, 61; 931 NW2d 20 (2018) (listing the elements of felony-firearm).
However, if a defendant injects the issue of self-defense or defense of others and satisfies the initial burden of producing some supporting evidence, the prosecution must exclude the possibility that the use of force was done in self-defense or defense of others. See People v Dupree, 486 Mich 693, 709-710; 788 NW2d 399 (2010). Generally, "affirmative defenses in criminal cases should typically be presented and considered at trial," but they may also be relevant to a district court's bindover decision. People v Redden, 290 Mich App 65, 84; 799 NW2d 184 (2010) (quotation marks and citation omitted). However, although the district court "may consider evidence in defense," it "cannot discharge a defendant if the evidence conflicts or raises reasonable doubt concerning a defendant's guilt because this presents an issue for the trier of fact." Id.
The Self-Defense Act (SDA), MCL 780.971 et seq., provides:
(1) 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] defendant does not act in justifiable self-defense when he or she uses excessive force or when the defendant is the initial aggressor." People v Guajardo, 300 Mich App 26, 35; 832 NW2d 409 (2013). Force in defense of others may be used "under similar circumstances." Id. at 35 n 2.
(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.
* * *
(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual. [MCL 780.972.]
We note that Guajardo, 300 Mich App at 35, spoke of these limitations on self-defense in the context of common law, without addressing whether they remain valid under the SDA. However, we presume the Legislature does not abrogate or modify common law affirmative defenses "[a]bsent some clear indication" to the contrary. See Dupree, 486 Mich at 705-706. Further, this Court has continued to apply the initial aggressor doctrine when a defendant uses deadly force. People v Bailey, ___ Mich ___, ___; ___ NW2d ___ (2019) (Docket No. 342175); slip op at 2, lv pending. --------
In this case, according to Hughes, she thought Kelly was going to start a physical altercation with her, he drove up fast, his fists were balled, and he pushed Phillipson before Phillipson drew his firearm. Hughes also testified that she had, on a previous occasion, told Phillipson that Kelly had pointed a firearm at her. She testified that Kelly "always" kept a firearm in his van. In contrast, Kelly testified that although he drove up to the bar quickly, he was not angry. Further, he stated that Phillipson pushed him before he pushed Phillipson. The surveillance video corroborates Kelly's testimony. Yet, despite the video showing Phillipson pushing Kelly before Kelly pushed Phillipson, the district court found that Phillipson "was pushed first." In addition, the district court disbelieved Kelly's testimony because his description of where Phillipson was standing relative to Kelly was inconsistent with the video. Instead, the court believed Hughes's testimony that Kelly was angry and that Phillipson stepped between Kelly and Hughes. As a result, the court concluded Phillipson was defending himself and Hughes.
The district court was correct to consider the credibility of the witnesses, but it abused its discretion when it resolved a question of fact that should be resolved by a trier of fact at trial. While Hughes's testimony—that she thought Kelly was going to start an altercation with her, he was driving fast, and his fists were balled—may support a self-defense or defense of others theory, Kelly's version of events and the video do not. According to Kelly and the video, Phillipson pushed Kelly before Kelly showed any sign of assaulting Phillipson or Hughes. Based on this, a jury could conclude that Phillipson was the initial aggressor and that he did not have an honest and reasonable belief that he or Hughes were in immediate danger of bodily harm. Guajardo, 300 Mich App at 35. Further, a jury could conclude that pointing a firearm at Kelly in response to Kelly pushing Phillipson constituted excessive force. Id. Therefore, there was probable cause to believe Phillipson did not act in self-defense or defense of others. And, because the prosecution presented sufficient evidence to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of Phillipson's guilt, the court was required to bind him over for trial. See Plunkett, 485 Mich at 57.
We reverse the circuit court's order affirming the district court's dismissal of the charges, vacate the district court's order dismissing the charges, and remand to the district court for entry of an order binding Phillipson over for trial. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Mark T. Boonstra