Opinion
363640
02-01-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ASHLEY ANN PIERCE, Defendant-Appellant.
UNPUBLISHED
Allegan Circuit Court LC No. 2022-024955-FH
Before: LETICA, P.J., and BORRELLO and RICK, JJ.
PER CURIAM
Following a jury trial, defendant appeals as of right her convictions for assault with a dangerous weapon (felonious assault), MCL 750.82, and domestic violence, MCL 750.81(2). The trial court sentenced defendant to two years' probation with 20 days in jail for the felonious assault conviction and three days in jail for the domestic-violence conviction. On appeal, defendant challenges the sufficiency of the evidence. We affirm.
This was defendant's second jury trial because the first jury was unable to reach a verdict.
Ten days would be suspended if defendant turned herself in by a specified date.
I. FACTUAL BACKGROUND
This case stems from a domestic incident between defendant and her ex-husband, Sean Pierce, during which defendant backed her vehicle down her driveway resulting in Sean being injured after being knocked to the ground. The former couple share a son, BP, and, on a weekend in November 2019, BP was in defendant's care for the first time in seven months. On Sunday, defendant took BP and her three other children to her sister's house to visit their cousins. Defendant and Sean disputed whether there was an agreed-upon time that Sean would pick up BP that night.
BP was 15 years old when the incident occurred.
Sometime before midnight, defendant left her sister's house and began driving the children home. BP texted Sean that he was on his way back to defendant's home. When defendant arrived, Sean and his wife Tina were parked in defendant's driveway.
Sean made his way to the front passenger window of defendant's car to speak to BP. An argument ensued between Sean and defendant about where BP would stay that night. Defendant wanted him to stay with her while Sean wanted BP to return to his house. BP became upset and yelled that he did not want to be in the middle of his parents' argument. At some point during this argument, BP opened the front passenger door to get out of defendant's minivan. Sean moved to stand between the interior of the minivan and the open door as the former couple's argument continued. Thereafter, defendant put her minivan in reverse and began to back down her driveway as Sean yelled at her to stop because BP was trying to get out of her minivan. Tina overheard "stop" being yelled repeatedly. According to Sean, defendant responded negatively to his request to stop and she continued to back up her minivan. In order to avoid being struck by the van's open door, Sean was moving backward. Eventually, Sean was unable to keep pace and fell after he was "hit by the door[.]" Sean injured his knees and asked Tina to call 911.
After Sean fell, BP jumped from the moving minivan, hit his head, and suffered a concussion. Both Sean and BP sought follow up care.
At trial, BP and Tina testified. They corroborated Sean's version of the incident. BP also testified that, after defendant stopped the van, she got out and pursued him as he ran for Sean's vehicle.
A portion of Tina's 911 call was played for the jury. Therein, Tina reported that BP was supposed to be dropped off at their home at 8 p.m. But defendant "wouldn't show up, wouldn't show up." Finally, at 12:30 a.m., defendant informed them that she was just taking BP home. They said no, explain[ed] that BP had school, and said that they would come to pick him up. Tina also described defendant "attacking" BP. Tina repeatedly told defendant to stop, explaining that defendant was preventing BP from entering their vehicle. Moreover, Sean is overheard saying that defendant is "going crazy" and that "someone needs to get here."
BP testified that that he was supposed to be returned to Sean's home at 8 p.m. that Sunday. After talking to defendant while at his aunt's home, defendant told him that they should stay there and spend some more time. BP texted Sean to let him know they were going to be "a little later," about "a couple hours later." BP did not remember telling defendant that he wanted to stay a little bit longer because he was using his aunt's wi-fi. According to BP, they did not leave his aunt's house until about 11 p.m. and would arrive at defendant's home at midnight. When they were almost back to defendant's home, BP texted Sean, telling him that they were almost there. Sean said he was going to come and pick up BP. Defendant knew that BP was texting Sean to tell him that they were heading back. But, when defendant testified, she denied being aware that BP was texting Sean that night. And when asked whether BP's contrary testimony was a lie, defendant responded: "I wasn't aware that - I don't know. I don't want to say that, but I mean, no, I wasn't aware that they were talking, and I wasn't aware that Sean was going to be there." The jury later inquired about defendant's testimony that she did not speak to Sean "at all" that night. Specifically, the jury asked: "[H]ow would Sean know not to pick [BP] up until morning?" Defendant answered: "I don't know."
Michigan State Police Trooper Eric Desch responded to Tina's 911 call. Sean told the trooper that "it was the vehicle that knocked him over[;] the door specifically is what knocked him over. [Sean] didn't say anything . . . about tripping and then being struck." Rather, Sean conveyed that "[i]t was the car door that forced him onto the ground." Defendant told a different story. She said that "she believed the [van] door was closed as she began to back up." The van door opened thereafter, and she believed that Sean "ripped [BP] out of the vehicle." The next day, defendant informed Trooper Desch that Sean had assaulted her by pushing her and said that she wanted him charged.
After the prosecution rested, defendant moved for a directed verdict, arguing that the evidence failed to show that she had any intent to assault or batter Sean. The trial court denied defendant's motion because there was circumstantial evidence of her intent to injure Sean. More specifically, the court determined that: (1) there was evidence of an on-going argument about where BP would spend that night; (2) defendant was upset and did not want BP to leave; (3) the minivan's "door was open for some period of time before" defendant put it in reverse; and (4) there was testimony that defendant continued to back down the driveway despite being "told to stop[.]"
At trial, defendant testified in her own defense. She agreed that there was an argument between herself and Sean. According to defendant, Sean was screaming at her through the cracked window of the van and striking the side of the van. After BP was screaming and yelling that he did not want to be in the middle of his parents' dispute, she backed up. At that time, the van door was closed. As she was backing up, the minivan's interior light went on and the passenger-side door was opened. Defendant testified that she did not really see what had happened, but instantly threw the minivan into park once she realized BP was no longer inside. It all occurred so quickly, and she did not intend to harm or threaten Sean with her minivan. Defendant was unaware of exactly how Sean was injured because she did not see it. She said that she did not know how he fell or whether the door hit him when BP opened it.
Defendant's son CD and daughter AD also testified for defendant. CD described Sean as yelling and chasing the minivan before the door flung open, and BP jumped out at Sean's direction. AD testified that after she woke up, she saw Sean getting up off the ground by the minivan's passenger-side front tire. Thereafter, Sean approached BP and defendant, grabbed their arms, pushed them in opposite directions, and dragged BP into his vehicle.
The jury convicted defendant as charged.
II. STANDARD OF REVIEW
"[T]his Court reviews de novo a defendant's challenge to the sufficiency of the evidence to support his or her conviction." People v Speed, 331 Mich.App. 328, 331; 952 N.W.2d 550 (2020). When examining the sufficiency of the evidence, the appellate court "reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." People v Robinson, 475 Mich. 1, 5; 715 N.W.2d 44 (2006).
Due process requires that, before a defendant can be convicted of a criminal offense, the prosecution provides sufficient evidence that "could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt[.]" People v Hampton, 407 Mich. 354, 368; 285 N.W.2d 284 (1979), citing Jackson v Virginia, 443 U.S. 307, 317; 99 S.Ct. 2781; 61 L.Ed.2d 560 (1979). "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 N.W.2d 78 (2000). Whether the evidence is direct or circumstantial, the scope of review is the same. Id. "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 N.W.2d 130 (1999) (quotation marks and citation omitted).
III. ANALYSIS
The elements of felonious assault, MCL 750.82, 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 Chambers, 277 Mich.App. 1, 8; 742 N.W.2d 610 (2007) (quotation marks and citation omitted). A simple assault is established by showing "either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery." People v Gardner, 402 Mich. 460, 479; 265 N.W.2d 1 (1978) (quotation marks and citation omitted). A battery is defined as "an intentional, unconsented and harmful or offensive touching of the person of another ...." People v Nickens, 470 Mich. 622, 628; 685 N.W.2d 657 (2004) (quotation marks and citations omitted).
The elements of domestic violence are that an individual "assaults or assaults and batters [(1)] his or her spouse or former spouse, [(2)] an individual with whom he or she has or has had a dating relationship, [(3)] an individual with whom he or she has had a child in common, or [(4)] a resident or former resident of his or her household." MCL 750.81(2).
Felonious assault and domestic violence are crimes that necessitate proof of a specific intent. See People v Johnson, 407 Mich. 196, 210; 284 N.W.2d 718 (1979); People v Corbiere, 220 Mich.App. 260, 266; 559 N.W.2d 666 (1996) ("Domestic assault is a specific intent crime[.]"). To establish that a felonious assault occurred, the prosecution must prove that the defendant intended either to (1) injure the victim or (2) "put the victim in reasonable fear or apprehension of an immediate battery." Johnson, 407 Mich. at 210. Similarly, to prove that domestic violence occurred, the prosecution must show "that the defendant either intended to batter the victim or that the defendant's unlawful act placed the victim in reasonable apprehension of being battered." Corbiere, 220 Mich.App. at 266.
"Intent is a mental attitude made known by acts." People v Strong, 143 Mich.App. 442, 452; 372 N.W.2d 335 (1985). Although "[i]ntent is a secret of the defendant's mind," id. (quotation marks and citation omitted), it "may be inferred from all the facts and circumstances." People v Cameron, 291 Mich.App. 599, 615; 806 N.W.2d 371 (2011). And, "because it can be difficult to prove a defendant's state of mind on issues such as . . . intent, minimal circumstantial evidence will suffice to establish the defendant's state of mind[.]" People v Kanaan, 278 Mich.App. 594, 622; 751 N.W.2d 57 (2008).
Defendant only contests the intent element of each conviction. Specifically, defendant argues that there was insufficient evidence to prove that she knew where Sean stood in relation to the door of the car, and, without sufficient evidence of her knowledge of this, a jury could not conclude that she intended to harm Sean.
The intent element for both convictions hinged primarily on a factual dispute-whether defendant was aware that Sean was in between the passenger door and the interior of her minivan before she began to back down the driveway. The prosecution presented evidence that defendant and Sean were arguing over where BP would spend the night. Defendant wanted BP to remain with her for various reasons, including so that he could say goodbye to his sisters. The prosecution witnesses testified that the minivan's door was open and that Sean was standing in the area between the minivan and the opened passenger-side door before defendant put her car in reverse. Sean even asked defendant to stop, but she responded negatively. Although the defense presented contrary evidence from defendant and CD that the passenger-side door was opened only after defendant began backing down the driveway, the jury did not credit their testimony.
Similarly, the jury was not required to accept that defendant was unaware of Sean's location because it was very dark outside. To the contrary, defendant confirmed that opening the passenger-side door activated the interior dome light. Therefore, even if defendant's driveway area was very dark, Sean's presence in between the passenger door and interior of the minivan would have been illuminated after the passenger-side door was opened. Based on this evidence, a reasonable trier of fact could conclude that defendant was aware of where Sean stood before she reversed her minivan. Likewise, given Sean's position in relation to the minivan, defendant was aware that the open passenger-side door would strike him after she reversed her minivan. Despite defendant's recognition, she put her minivan in reverse and backed down the driveway, forcing Sean to trot backward until he could not keep up. A rational trier of fact could conclude that defendant reversed her minivan purposefully and intentionally because she wanted BP to stay with her rather than to leave with Sean. This conclusion is further supported by defendant's testimony and her statement to the trooper that she began backing down the driveway as a means of escaping the situation and removing the children from her argument with Sean. Therefore, the jury could reasonably conclude that defendant actively contemplated her options before executing them.
Sean testified that he believed that there was a light on in front of the garage or that there may have been a porch light in front of the door. The trooper also testified that he recalled some ambient light, perhaps a light or two outside of the house or perhaps a light inside "the house coming through the bay window."
Indeed, the undisputed evidence showed that Sean and defendant were involved in an ongoing custody dispute over BP on the night of the incident. Viewing the evidence in the light most favorable to the prosecution, this was the first night in seven months that BP was with defendant. Defendant admittedly did not want BP to go home with Sean; instead, she wanted him to remain at her home. Defendant and Sean engaged in a heated verbal exchange, leading BP to caution them about putting him into the middle of their dispute. This evidence could reasonably be inferred as showing defendant's animosity toward Sean due to their ongoing custody dispute. And a reasonable jury could reject defendant's testimony that she did not intend to harm or threaten Sean with her minivan, that she did not even realize Sean was in a position to be harmed by her minivan when she backed up, and that she did not know how Sean was injured or how BP got out of her minivan. More specifically, defendant previously informed the responding trooper that she believed that Sean had "ripped [BP] out of the car once the door was open[ed]." Yet, Sean, BP, and even CD, all testified that BP jumped out of the minivan. And, although defendant testified that she backed up after BP started screaming or yelling that he did not want to be in the middle of their argument, her initial statement to the trooper detailed her mental contemplation of her available options to escape the argument with Sean before she reversed her minivan. These discrepancies and BP's actions, jumping from defendant's minivan and running to Sean's car to evade defendant, could lead a rational trier of fact to find that her testimony was not as credible as that of the prosecution's witnesses.
CD, the only other witness who testified that the minivan door was closed when defendant began reversing down her driveway, also testified that he had just woken up at the time the incident occurred and that he would probably not lie for defendant. A rational trier of fact could also conclude that CD's testimony was less credible than that of the prosecution's witnesses because CD had just woken up and because of his potential bias in favor of defendant, his mother.
Defendant cautions that an appellate court must not "allow the jury's discrediting of the defendant's testimony to make up for a shortfall in the sufficiency of the government's evidence." United States v Toms, 329 U.S. App DC 33, 39; 136 F.3d 176 (1998). But, in this case, the jury's decision to reject defendant's testimony as less credible than the testimony from the prosecution's witnesses did not make up for a shortfall in the sufficiency of the prosecution's evidence. Ultimately, whether defendant intended to injure Sean or put him in reasonable fear of a battery were factual questions best decided by the trier of fact. The jury had the advantage of not only hearing the witnesses' testimony, but also of judging their demeanor as they testified. Because the standard of review requires us "to draw all reasonable inferences and make credibility choices in support of the jury verdict," Nowack, 462 Mich. at 400, we reject defendant's contention that the evidence was insufficient to support her convictions.
"[D]ecisions of intermediate federal courts are not binding on" an appellate court. People v Lucynski, 509 Mich. 618, 638 n 10; 983 N.W.2d 827 (2022).
Affirmed.
MICHELLE M. RICK, J. (DISSENTING).
I respectfully dissent from the majority's decision to affirm. While I agree with the majority's recitation of most of the facts and the standard of review, it is my opinion that the prosecutor failed to present sufficient evidence of specific intent to justify convicting defendant of felonious assault, MCL 750.82, or domestic violence, MCL 750.81(2). I would reverse defendant's convictions and sentences.
I disagree with my colleagues' conclusion that defendant had knowledge that BP was texting his father throughout the evening leading up to the misfortunate event. In my opinion, the record does not support this conclusion. Defendant consistently testified she was unaware this was taking place. It appears the majority bases its conclusion exclusively on the testimony of BP, defendant and Sean's minor child. It is axiomatic that a witness may only testify based on personal knowledge. MRE 602. Without the requisite foundational testimony, BP could not and should not have testified about what his mother may have known.
Felonious assault and domestic violence are both specific-intent crimes. Specifically, to sustain a conviction of felonious assault, the prosecutor must show that the defendant had" 'the intent to injure or place the victim in reasonable apprehension of an immediate battery.'" People v Nix, 301 Mich.App. 195, 205; 836 N.W.2d 224 (2013), quoting People v Avant, 235 Mich.App. 499, 505; 597 N.W.2d 864 (1999). Similarly, to sustain a conviction of domestic violence, the prosecutor must show that "the defendant either intended to batter the victim or that the defendant's unlawful act placed the victim in reasonable apprehension of being battered." People v Corbiere, 220 Mich.App. 260, 266; 559 N.W.2d 666 (1996).
On de novo review, this Court must "determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v Haynes, 338 Mich.App. 392, 417; 980 N.W.2d 66 (2021) (citation omitted). Additionally, "[t]his Court must resolve all conflicts in the evidence in favor of the prosecution." Id. (citation omitted). "[B]ecause it can be difficult to prove a defendant's state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant's state of mind, which can be inferred from all the evidence presented." People v Kanaan, 278 Mich.App. 594, 622; 751 N.W.2d 57 (2008). Even so, such inferences "must have adequate basis in record evidence." People v Hoffmeister, 349 Mich. 155, 159; 229 N.W.2d 305 (1975).
The majority states that a reasonable trier of fact could infer from the evidence presented that defendant harbored ill will toward Sean because of an ongoing custody dispute over their children, and that she reversed her minivan with the intent to strike Sean with the passenger side door. Further consideration of that first fact is key. These parties were previously married. They have one child in common. The record reveals that their post-judgment relationship had devolved to the point that defendant's parenting time with their child, BP, had been suspended for several months. BP had been living exclusively with Sean since April 2019. The date of this incident, November 11, 2019, was the first time that defendant had seen BP in several months. The record reveals that during defendant's parenting time, Sean was in telephone contact with BP for hours, rather than with defendant. The record also reveals that Sean had previously obtained a PPO against defendant. Despite this very fractured and highly contentious situation, Sean had his current spouse drive him to defendant's home to confront defendant about returning BP to him. What could possibly go wrong?
Defendant was oblivious to the fact that Sean had contacted BP until the parties' confrontation in defendant's driveway. Tempers flared and all sense of reason was suspended as defendant and Sean both yelled at the other in front of their child, as well as defendant's other children, who were seated in the defendant's van. The record indicates that just before defendant put the van in reverse, she and Sean were engaged in a shouting match. Witness testimony varied as to whether the front passenger door was open the entire time they were arguing, or whether BP opened the door while trying to step out of the minivan. Suffice it to say that the door was open at some point, and that it struck Sean and knocked him over when defendant put the car in reverse. Defendant testified that Sean was punching the passenger door and yelling at her when she suggested that BP stay with her for the night. Defendant further testified:
These children were not shared in common with Sean.
Q. Okay. And at some point, did you decide that you needed to leave? Or what were you thinking of?
A. Yeah. Then, it just-it kept escalating. Like, it wasn't gonna [sic] get any better. And then, [BP], he was, like, putting his hands on his head and just
rocking back and forth, I think, just as a way to avoid it. And he didn't want to be in the middle of it. And then, that's when I started backing up.
Q. Okay.
A. And we were just gonna [sic] head back to my sister's. Q. Okay. A. I mean, I didn't really have a plan. * * *
Q. Put it-so, you pulled it from park, put it in reverse. Were you looking to the right or the left or do you recall?
A. I was looking to the left, because I-I live on a busy-it's not a busy street, but people go fast. And so, I don't like usually backing up on it. But [Sean and Tina] were parked where I usually back up. But, so I was just really, like, looking left, making sure where they were and stuff. And so, I didn't see [BP] get out. I didn't really see it.
Q. Okay. All right. So, at some point, you became aware that the door opened?
A. Yeah. I didn't get very far. I mean, like, just, I put it in reverse, was looking back away. And then, all of a sudden, then the lights popped on. I look over, and [BP]'s gone. I mean, within seconds, so.
Q. Okay. Okay. Then, what did you do?
A. Then I immediately threw it in park and jumped out to see if he was okay.
At no point does the record give any indication that the custody dispute or the argument caused defendant to intentionally injure or batter Sean within the meaning of MCL 750.82 or MCL 750.81(2). At most, the evidence indicates that defendant panicked in a moment of extreme stress while in the middle of an argument with her ex-husband and attempted to get away from him by driving back to her sister's house.
The majority posits that the jury could have reasonably concluded that defendant's testimony, as well as an earlier statement given to a police trooper that she put the van in reverse in an attempt to escape the situation, are evidence that defendant contemplated her actions before executing them. The implication here, especially when paired with the supposition that defendant was angry at Sean over their custody dispute, is that defendant knew she would hit Sean if she put the car in reverse and did it anyway. But that defendant had a moment to think about how best to escape a bad situation does not indicate that she had the specific intent to harm Sean in the process. There is no evidence, for example, that defendant asked Sean to step away from the car and hit him when he refused, or that she was contemplating his proximity to the car at all while trying to get away. Instead, it is apparent from the record that defendant struck Sean by accident during a high-conflict interaction, initiated by Sean. That this happened is no surprise, given the parties' tumultuous history. Even viewed in a light most favorable to the prosecution, this record does not support that defendant manifested the requisite specific intent necessary to commit felonious assault or domestic violence.
Finally, the majority opines that the jury must have simply found that defendant's testimony lacked credibility and was thus discounted by the jury in favor of the theory that she intended to strike Sean with the car door. Generally, "[t]his Court will not interfere with the trier of fact's determinations regarding the weight of the evidence or the credibility of witnesses." Kanaan, 278 Mich.App. at 619. But "doubt about credibility is not a substitute for evidence of guilt[.]" People v Wolfe, 440 Mich. 508, 519; 489 N.W.2d 748 (1992). There must still be adequate evidence from which the jury may make such inferences. Hoffmeister, 394 Mich.App. at 159. On the basis of my review of the record, that evidence is lacking here. The prosecution failed to meet its burden to show that defendant possessed the requisite intent necessary to prove her guilty of felonious assault and domestic violence. Accordingly, I would reverse defendant's convictions and sentences.