Docket No. 94140.
Decided April 19, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Mary McCarthy Quarles, Assistant Prosecuting Attorney, for the people.
Stuart L. Young, for defendant on appeal.
Following a bench trial, defendant was found guilty of assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to eighteen to thirty-six years imprisonment on the assault conviction and the mandatory two-year sentence for the felony-firearm conviction and appeals as of right.
Trial testimony revealed that on the afternoon of October 29, 1985, the victim, Robert Gardner, and three friends, Arnette Vaughn, Bernard Bland, and Dwayne Berry, were driving south on I-75 returning from a movie in Madison Heights. Vaughn was driving and Gardner was sitting in the front passenger seat. A blue Cougar pulled along with co-defendant Epson at the wheel, a female in the front passenger seat, and two males, including defendant, in the back seat. Defendant pointed a .38 caliber pistol out of the window and fired directly at Gardner, striking him in the face. Apparently, defendant was angry because Gardner had blown a kiss to defendant's girlfriend, the female in the front seat.
After the prosecutor's proofs were completed, defendant moved for a directed verdict, arguing that there was insufficient evidence that defendant intended to murder Gardner. The trial court denied the motion, and defendant appeals from this ruling.
In reviewing a motion for a directed verdict of acquittal, the trial court must view the evidence in a light most favorable to the prosecution and determine if a rational trier of fact could have found that all of the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354, 368; 285 N.W.2d 284 (1978), cert den 449 U.S. 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). This standard applies to bench trials as well as jury trials. People v Petrella, 424 Mich. 221, 269; 380 N.W.2d 11 (1985). The elements of the crime of assault with intent to commit murder are (1) an assault, (2) with specific intent to murder, (3) which, if successful, would make the killing murder. People v Branner, 53 Mich. App. 541, 544; 220 N.W.2d 183 (1974).
Generally, "[c]ircumstantial evidence and reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense." People v Richardson, 139 Mich. App. 622, 625; 362 N.W.2d 853 (1984). In Roberts v People, 19 Mich. 401 (1870), in determining whether the defendant had the intent to kill, the Supreme Court stated:
By saying however, that the specific intent to murder or . . . the intent to kill must be proved, we do not intend to say it must be proved by direct, positive, or independent evidence; but as very properly remarked by my brother Campbell in People v Scott, 6 Mich. [287 (1859)], the jury "may draw the inference, as they draw all other inferences, from any facts in evidence which to their minds fairly prove its existence." And in considering the question they may, and should take into consideration the nature of the defendant's acts constituting the assault; the temper or disposition of mind with which they were apparently performed, whether the instrument and means used were naturally adapted to produce death, his conduct and declarations prior to, at the time, and after the assault, and all other circumstances calculated to throw light upon the intention with which the assault was made. [ Roberts, supra, p 415.]
In People v Harris, 110 Mich. App. 636, 644-45; 313 N.W.2d 354 (1981), this Court found the necessary intent to kill where the defendant pointed a shotgun at the victim's face and discharged the weapon. In People v Ritsema, 105 Mich. App. 602, 608-609; 307 N.W.2d 380 (1981), lv den 413 Mich. 934 (1982), this Court found intent to kill where the defendant drove up alongside the vehicle in which the victim was sitting and shot at the victim.
In the instant case, evidence indicated that defendant's vehicle was in the lane next to Gardner's vehicle, thus being only a few feet away. Defendant leaned across the back seat to point a .38 caliber pistol out of the window. Defendant pointed the gun directly at Gardner. Defendant did not aim the gun in the general direction of the other car in a random manner; rather, defendant aimed the gun at Gardner's head from only a short distance away and fired. Gardner was struck by a bullet in the right side of this face. There was no evidence to indicate a mitigating or justifying reason for the shooting. Viewing this evidence and all reasonable inferences therefrom in a light most favorable to the prosecution, a reasonable trier of fact could have concluded that defendant intended to kill or inflict great bodily harm or that the natural tendency of his behavior was to cause death or great bodily harm. Thus, the court did not err in denying defendant's motion for a directed verdict.
Defendant also claims that he is entitled to resentencing because the trial court considered the fact that defendant maintained his innocence and showed no remorse. Defendant was sentenced to eighteen to thirty-six years imprisonment. This was within the sentencing guidelines, which recommended a minimum of ten to twenty years. We do not feel that resentencing is required in this case. The Supreme Court recently addressed this issue in People v Wesley, 428 Mich. 708; 411 N.W.2d 159 (1987). In Wesley, the Court held that a sentencing court may consider the defendant's lack of remorse as it bears upon the defendant's likely rehabilitative potential. 428 Mich. 714-715, 718-719. However, resentencing is required if it is apparent that the court erroneously considered the defendant's failure to admit guilt, as indicated by such action as asking defendant to admit his guilt or offering him a lesser sentence if he did. 428 Mich. 716.
In the instant case, although the court mentioned that defendant refused to acknowledge that he fired the gun, there was no indication by the court that an admission of guilt would reduce defendant's sentence. The court at no time asked defendant to admit his guilt. The court's comments are directed more to defendant's lack of remorse than to a failure to admit guilt, which is proper under Wesley. The court explained its reasons for the sentence, and the sentence was within the sentencing guidelines. Resentencing is not required.