People
v.
Gordon

STATE OF MICHIGAN COURT OF APPEALSJun 19, 2018
No. 339785 (Mich. Ct. App. Jun. 19, 2018)

No. 339785

06-19-2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MATTHEW JEFFREY GORDON, Defendant-Appellant.


UNPUBLISHED Wayne Circuit Court
LC No. 16-005986-01-FH Before: BECKERING, P.J., and M. J. KELLY and O'BRIEN, JJ. PER CURIAM.

Defendant appeals as of right his bench trial convictions of two counts of intimidating a witness through threats to kill or injure, MCL 750.122(7)(c), two counts of conspiracy to intimidate a witness through threats to kill or injure, MCL 750.157a(a); MCL 750.122(7)(c), and conspiracy to commit witness bribing, MCL 750.157a(a); MCL 750.122(7)(b). Defendant was sentenced to 6 to 15 years' imprisonment for each count of intimidating a witness through threats to kill or injure, 6 to 15 years' imprisonment for each count of conspiracy to intimidate a witness through threats to kill or injure, and 4 to 10 years' imprisonment for conspiracy to commit witness bribing. We affirm but remand for the ministerial task of correcting the judgment of sentence to reflect counts III and IV as crimes of conspiracy.

This case arises from events that occurred between March 15, 2016 and March 22, 2016 while defendant was in jail awaiting a preliminary examination on charges related to an armed robbery and assault with intent to commit murder. During that time, defendant made a series of phone calls from jail discussing the victims of the armed robbery and assault: Malik Marshall and Carmen Sims. Specifically, defendant called his girlfriend, Precious Davis, several times to discuss preventing Sims's appearance at his preliminary examination. During one conversation, Davis three-way called James Steeples, who is a close friend of defendant. Defendant urged Steeples to prevent Sims from testifying. Steeples then texted Marshall about Sims's appearance at the preliminary examination. Marshall provided the following text messages verbatim to the police:

Steeples: Aye so that girl made a statement on my brotha... So from this point on if you affiliate yo self with that bitch, we don't have shit to be bro's or friends no more dawg, can't do music with you, nothing[.]
Marshall
: What she say?

Marshall
: Ukw, don't even matter.
Steeples
: It don't fuckin matter we live by the code, you never say shit to the police you handle it yourself & she stay tough talking so if you fuck with her We don't fuck with you.
Steeples
: Matt should come home next & for a fact I seen her statement & I don't want that bitch around me & none of us no more. She poison & she using you
Steeples
: *next week
Marshall
: Bet, Brother...
Steeples
: I'm serious bro. Fr, cause nigga you was telling her shit, you confirmed something with her dawg, but we not gon hold that against you but nigga if you really got love & you really care about your brothers you gotta cancel that bitch
Steeples
: Call me. I know where you stay blood[.]

Marshall gave the police the text messages because he interpreted them as threatening. Despite the threats, Sims appeared at the preliminary examination on March 21, 2016. After the preliminary examination, defendant called Davis upset because Sims appeared to testify. The next day, Marshall and Sims were in Marshall's bedroom when Alam Muhaddath—a friend of defendant and Steeples—walked into the room unexpectedly and continued to threaten the couple. Following these events, defendant was charged as described above. This appeal followed.

Defendant first argues that the prosecution presented insufficient evidence to support his convictions of conspiracy to intimidate the prosecution's witnesses through threats to kill or injure because there was no evidence that defendant made direct threats to either witness. We disagree.

When reviewing a challenge to the sufficiency of the evidence, this Court reviews the record de novo. People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999). Where a claim of insufficient evidence follows a bench trial, this Court must review the evidence in a light most favorable to the prosecution, and ask whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Hunter, 209 Mich App 280, 282; 530 NW2d 174 (1995). It is the role of the fact-finder, rather than this Court, to determine the weight of the evidence and the credibility of witnesses. People v Lee, 243 Mich App 163, 167; 622 NW2d 71 (2000). "Circumstantial evidence and the reasonable inferences that arise from that evidence can constitute satisfactory proof of the elements of the crime." People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014). This Court resolves any evidentiary conflicts in favor of the prosecution. Id.

"Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy." MCL 750.157a. "A conspiracy is [a] mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means." People v Cotton, 191 Mich App 377, 392; 478 NW2d 681 (1991). Conspiracy is a specific-intent crime, and requires the prosecution to prove the defendant's specific "intent to combine with others and the intent to accomplish the illegal objective." People v Mass, 464 Mich 615, 629; 628 NW2d 540 (2001). The crime of conspiracy is complete once the agreement is formed. People v Jackson, 292 Mich App 583, 587; 808 NW2d 541 (2011).

Defendant was convicted under MCL 750.122(7)(c), which concerns intimidating a witness through threats to kill or injure. MCL 750.122, the witness intimidation statute, criminalizes the different ways that individuals can prevent or attempt to prevent a witness from appearing at, and providing truthful information in, an official proceeding. People v Greene, 255 Mich App 426, 438; 661 NW2d 616 (2003). Therefore, the prosecution must proffer sufficient evidence to prove that defendant intended to combine with others and intended to intimidate Marshall and Sims by threats to kill or injure. Contrary to defendant's arguments, the prosecution is not required to proffer direct evidence of an unlawful agreement. Cotton, 191 Mich App at 393. Due to "the clandestine nature of criminal conspiracies," it is often difficult to identify the objectives and even the participants of an unlawful agreement. People v Justice (After Remand), 454 Mich 334, 346; 562 NW2d 652 (1997). Therefore, proof of a conspiracy "may be derived from the circumstances, acts, and conduct of the parties" because such evidence can shed light on the coconspirators' intentions. Id. at 347.

The evidence established that defendant conspired with Steeples, Davis, and Muhaddath to prevent Sims and Marshall from appearing at the March 21, 2016 preliminary examination. It is clear from the recordings of defendant's telephone conversations with Steeples and Davis that he intended to prevent anyone from testifying against him at the preliminary examination. On multiple occasions, defendant expressed his desire to prevent Sims from testifying to Steeples and Davis. On March 16, 2016, defendant instructed Steeples to speak with Sims because if she did not appear at the preliminary examination, "[he] could go home." On March 17, 2016, defendant instructed Davis to tell Steeples to speak with Sims again. On March 21, 2017, after Sims testified at the preliminary examination, defendant called Davis angry because he believed that Davis and Steeples "had everything in the bag." Based on these phone calls, it was clear that all three understood defendant's intent to prevent Sims from testifying, and agreed to take action in furtherance of that objective. In addition to the recorded conversations, the prosecution also presented evidence that on March 22, 2016, Muhaddath threatened Sims and Marshall in Marshall's home. Notably, the evidence produced at trial established Muhaddath went to Marshall's home at Steeples's instruction.

The prosecution also presented ample circumstantial evidence to establish that defendant conspired to intimidate Sims through threats to kill or injure. After reading his discovery packet, defendant knew that Sims's testimony was critical to the prosecution's case because she identified defendant to the police. Without Sims's testimony, defendant believed that he could go home. Since defendant was in the Wayne County Jail, he needed help from Davis, Muhaddath, and Steeples to contact Sims. It is difficult to believe that Steeples and Muhaddath would threaten Sims and Marshall of their own volition, without any connection to defendant's present situation. Accordingly, these circumstances established that defendant, Davis, Steeples, and Muhaddath all specifically intended to prevent Sims from testifying, and took steps in furtherance of that illegal objective.

There was also sufficient evidence that defendant, Steeples, Davis, and Muhaddath conspired to intimidate Marshall through threats to kill or injure. There is no requirement "that each of the coconspirators have full knowledge of the extent of the conspiracy." People v Hunter, 466 Mich 1, 7; 643 NW2d 218 (2002). Further, it is not necessary that each coconspirator have knowledge of all of a conspiracy's ramifications. Id. (quotation marks and citations omitted). Nor is it necessary that one coconspirator knows all of the conspirators involved, or that the coconspirator participate in all aspects of the conspiracy. Id. (quotation marks and citations omitted).

Applying these principles to this case, there is sufficient evidence that defendant conspired to intimidate Marshall through threats to kill or injure. Although there is no direct evidence that defendant instructed Steeples, Muhaddath, or Davis to intimidate Marshall through threats to kill or injure, there is ample indirect and circumstantial evidence. Again, "direct proof of the conspiracy is not essential." Justice, 454 Mich at 347. Like Sims, Marshall was threatened by Muhaddath while in the privacy of his own bedroom. In the days leading up to the preliminary examination, Steeples threatened Marshall via text messages. On the day of the preliminary examination, Steeples threatened Marshall that he knew where he lived.

The circumstances surrounding Sims and Marshall are nearly identical in that defendant intended to prevent anyone from testifying against him so that he would be released from jail. "What the conspirators actually did in furtherance of the conspiracy is evidence of what they had agreed to do." Hunter, 466 Mich at 9. A rational trier of fact could reasonably infer from Marshall's and Sims's testimonies, the recorded calls from jail, Muhaddath's in-person threats, and Steeples's text messages that defendant conspired to prevent anyone from testifying against him at the preliminary examination. Based on these facts, there was sufficient evidence for the trial court, as trier of fact, to find that the essential elements of conspiracy to intimidate witnesses through threats to kill or injure were proven beyond a reasonable doubt.

Defendant next argues that the trial court should have granted his objection to the admission of Marshall's testimony that Steeples was referring to Sims in the text messages Steeples sent to Marshall, which was admitted under the state-of-mind exception to the hearsay rule, MRE 803(3). We disagree.

To properly "preserve an evidentiary issue for review, a party opposing the admission of evidence must object and specify the same ground for objection that it asserts on appeal." MRE 103(a)(1); People v Aldrich, 246 Mich App 101; 631 NW2d 67 (2001). At trial, defense counsel objected to Marshall's testimony because it was "an assumption" that Steeples referred to Sims. However, defense counsel did not specifically object to the trial court's admission of Marshall's testimony on hearsay grounds. Therefore, the issue is not preserved for appellate review. See People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004) ("[a]n objection based on one ground is usually considered insufficient to preserve an appellate attack based on a different ground.")

This Court reviews an unpreserved evidentiary issue for plain error affecting a defendant's substantial rights. People v Moorer, 262 Mich App 64, 67-68; 683 NW2d 736 (2004). To avoid forfeiture, the defendant must demonstrate: "1) error must have occurred, 2) the error was plain, i.e., clear or obvious, and 3) the plain error affected substantial rights." People v Carines, 460 Mich 750, 765; 597 NW2d 130 (1999). To demonstrate that a defendant's substantial rights were affected, there must be "a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. Even if all three requirements are met, reversal is only warranted when the plain error resulted in an innocent defendant's conviction, or it "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." Moorer, 262 Mich App at 68.

Generally, all relevant evidence is admissible at trial. MRE 402. However, even if relevant, "hearsay [evidence] is not admissible except as provided by" the rules of evidence. MRE 802; People v McLaughlin, 258 Mich App 635, 651; 672 NW2d 860 (2003). Hearsay is defined as "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c); McLaughlin, 258 Mich App at 651.

The challenged testimony came in response to the prosecution's questioning regarding the text messages that Steeples sent to Marshall. Specifically, the prosecutor asked Marshall, "based on the context [of the text messages], who is the 'she' that was being referred to?" Marshall responded, "Carmen [Sims]." Defendant contends that this response constituted inadmissible hearsay that did not satisfy the state-of-mind exception under MRE 803(3). The prosecution concedes that Marshall's testimony did not satisfy the state-of-mind exception because the declarant's state of mind was not in question. See People v White, 401 Mich 482, 502-503; 257 NW2d 912 (1997) ("The general rule in Michigan is that statements indicative of the declarant's state of mind are admissible when that state is in issue in the case."). However, the prosecution argues that although the trial court erroneously admitted Marshall's testimony under MRE 803(3), the testimony was still admissible under MRE 701, which governs opinion testimony by a lay witness.

MRE 803(3) provides an exception to the hearsay rule if the statement "[a] statement of the declarant's then existing state of mind, emotion, sensation or physical condition . . . but not including a statement of memory of belief to prove the fact remembered or believed unless it related to the execution, revocation, identification, or terms of declarant's will."

MRE 701 provides, "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." --------

While we agree that Marshall's testimony did not satisfy the state-of-mind hearsay exception under MRE 803(3), we find that, contrary to defendant's argument, the testimony at issue did not constitute hearsay and was admissible under MRE 701. Marshall's statement that Sims was the person Steeples was referring to in the text messages was not hearsay because the statement was made by Marshall while testifying at trial. Indeed, it is clear that such statement does not fit within the definition of hearsay. See MRE 801(c) (" 'Hearsay' is a statement, other than the one made by the declarant while testifying at trial[.]") (Emphasis added). Thus, Marshall's statement is not inadmissible hearsay. Rather, Marshall's statement referring to Sims was Marshall's inference based on own his perception of the context of the text messages. See MRE 701.

Even if Marshall's statement was hearsay, such that the admission of the statement constituted plain error, defendant cannot establish that the admission of the evidence affected his substantial rights. The prosecution presented ample additional evidence that the "she" in Steeples's text messages could have only been Sims. Sims was the only other witness that was expected to appear at the preliminary examination, and she previously made a statement to the police regarding defendant's participation in the alleged armed robbery and assault. All of defendant's phone calls focused on preventing Sims from appearing at defendant's preliminary examination. Further, Steeples's text messages referred to a woman who spoke to the police about defendant's involvement in the armed robbery and assault. Sims is a woman, dating Marshall, and the only other witness involved in defendant's case. When read in context, it is obvious that Steeples could have only referred to Sims. In light of this cumulative evidence in the record, we conclude that any possible error in the admission of Marshall's testimony did not affect defendant's substantial rights because defendant has not shown that the admission of the evidence affected the outcome of the proceedings.

Affirmed but remanded for the ministerial task of correcting the judgment of sentence to reflect counts III and IV as crimes of conspiracy. We do not retain jurisdiction.

/s/ Jane M. Beckering


/s/ Michael J. Kelly


/s/ Colleen A. O'Brien