Opinion
No. 346637
04-30-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CORNELIUS TARVER, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2017-261827-FC Before: RIORDAN, P.J., and FORT HOOD and SWARTZLE, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of one count of assault with a dangerous weapon (felonious assault), MCL 750.82, one count of intentional discharge of a firearm from a motor vehicle (IDFMV), MCL 750.234a, and two counts of carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to one to four years of imprisonment for felonious assault, 1 to 10 years of imprisonment for IDFMV, and two years of imprisonment for each felony-firearm conviction. Finding no error requiring reversal, we affirm.
I. BACKGROUND
This case arises out of an altercation that occurred at a party store when defendant crossed paths with the victim, defendant's former business partner, several months after the business relationship terminated. Defendant followed the victim out of the party store into the parking lot. The victim felt threatened, even though defendant was much smaller in size, and he punched defendant, purportedly to force defendant away from him. Defendant staggered back, unholstered a handgun, and fired several shots toward the victim. The victim fled into the party store, and took cover behind the bullet-proof glass partition in which the store's attendants worked. Defendant, still armed, followed the victim inside the store, and goaded him to come out from behind the counter. Defendant eventually left the store and went into the front, passenger seat of a sport utility vehicle (SUV). As the SUV pulled away from the store, defendant fired several shots at the victim's car. The store's surveillance cameras recorded the incident.
Defendant testified that he believed the victim would have beaten him further or killed him if he had not fired his gun. Defendant admitted shooting at the victim the first time, but stated that another occupant of the SUV, a man he knew only as "Dray," took his gun from the center console and fired it at the victim's car as they drove away in the SUV. The jury acquitted defendant of assault with intent to murder (AWIM), MCL 750.83, but found him guilty of the alternative charge of felonious assault, as well as IDFMV and two counts of felony-firearm.
Defendant also was acquitted of an additional felony-firearm count associated with the AWIM charge.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that there was insufficient evidence to support his convictions. We disagree.
"This Court reviews de novo a defendant's challenge to the sufficiency of the evidence supporting his or her conviction." People v Miller, 326 Mich App 719, 735; 929 NW2d 821 (2019). We consider the evidence presented at trial in the light most favorable to the prosecution "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 NW2d 44 (2006). All conflicts in the evidence must be resolved in favor of the prosecution, and we do not interfere with the trier of fact's role of determining the weight of the evidence or the credibility of witnesses. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). Circumstantial evidence, together with reasonable inferences arising therefrom, can be sufficient to support a conviction. People v Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011).
A. FELONIOUS ASSAULT
Defendant argues that the element of intent was not established because the evidence demonstrated only that he acted in lawful self-defense. We disagree.
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." MCL 750.82(1); People v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007). Minimal circumstantial evidence suffices to establish the defendant's state of mind, which can be inferred from all the evidence presented. Kanaan, 278 Mich App at 622. "A trier of fact can infer a defendant's intent from his words, acts, means, or the manner used to commit the offense." People v Harrison, 283 Mich App 374, 382; 768 NW2d 98 (2009).
An individual who is not engaged in the commission of a crime may use deadly force defensively if he or she "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." MCL 780.972(1)(b); see also People v Guajardo, 300 Mich App 26, 35-36; 832 NW2d 409 (2013). However, "a defendant does not act in justifiable self-defense when he or she uses excessive force . . . ." Guajardo, 300 Mich App at 35. A defendant who claims self-defense must first produce some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exists. People v Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014). The burden then shifts to the prosecution to exclude the possibility of self-defense beyond a reasonable doubt. Id.
Defendant testified that he fired his gun toward the victim after the victim punched him. The victim's initial aggression toward defendant did not automatically give defendant an unfettered right to respond with deadly force. People v Roper, 286 Mich App 77, 88; 777 NW2d 483 (2009). This is true even in light of the size differential between the two men. Id. Moreover, defendant pursued the victim into the party store instead of taking advantage of the opportunity to leave the scene. Defendant explained that he was no longer in mortal fear at that point—immediately after he shot at the victim. Viewing this evidence in the light most favorable to the prosecution, the jury reasonably found defendant's explanation incredible and determined that defendant did not have an honest belief that the use of deadly force was necessary. See id. (pursuit of the victim belied the defendant's subjective claim of fear). Additionally, defendant acknowledged that the victim was unarmed, a fact that undermined the objective reasonableness of defendant's belief that deadly force was necessary. See Guajardo, 300 Mich App at 35 (excessive force is not justifiable use of self-defense). Under these circumstances, there was sufficient evidence for a rational jury to reject defendant's theory of self-defense, and sustain his conviction of felonious assault.
Defendant contends that there was insufficient evidence to support his first felony-firearm conviction because the predicate offense, felonious assault, was not established beyond a reasonable doubt. Because defendant's primary claim of error lacks merit, his related felony-firearm argument also fails. People v Muhammad, 326 Mich App 40, 61; 931 NW2d 20 (2018) (the elements of felony-firearm are that the defendant possessed a firearm during the commission of, or the attempt to commit, a felony); MCL 750.82(1) (felonious assault is a felony).
B. INTENTIONAL DISCHARGE OF A FIREARM FROM A MOTOR VEHICLE
Defendant next argues that there was insufficient evidence to sustain his IDFMV conviction because there is no direct evidence establishing his identity as the person who shot the gun from the SUV. We disagree.
The identity of the perpetrator is an essential element of every criminal offense. People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Circumstantial evidence and reasonable inferences are sufficient evidence. Williams, 294 Mich App at 471.
Defendant admitted that he shot his handgun. The video surveillance showed that after the altercation ended, defendant, wearing a dark-sleeved jacket, got into the front, passenger seat of the SUV. As the SUV backed out of its parking space, somebody wearing dark sleeves extended an arm out of the front, passenger window and fired a gun at the victim's car. At trial, defendant testified that that the shots were fired by Dray. The driver of the SUV testified that Dray was sitting behind him in the backseat and reached over defendant to fire the gun out the window. However, the jury reasonably determined that the video surveillance rendered their assertions incredible. Furthermore, the victim had punched defendant, which gave defendant a motive to retaliate, and made defendant's identity as the shooter more probable. See People v Sabin (After Remand), 463 Mich 43, 68; 614 NW2d 888 (2000) (stating that motive is logically relevant to identity). Viewing the evidence in the light most favorable to the prosecution, the jury reasonably determined that defendant was the person who shot the gun from the SUV.
III. REINSTATEMENT OF DISMISSED CHARGES
Defendant next argues that the trial court erred when it reinstated four charges—AWIM, felonious assault, and two counts of felony-firearm—that the district court had dismissed after the preliminary examination. We disagree.
When a defendant challenges the trial court's review of a bindover decision, we review the issue de novo "to determine whether the district court abused its discretion, giving no deference to the circuit court's decision." People v Norwood, 303 Mich App 466, 468; 843 NW2d 775 (2013). "[R]eview of the bindover decision involves examination of the entire preliminary examination record, and [the reviewing court] may not substitute its judgment for that of the lower court." Id. We also review a trial court's decision regarding a motion to amend for an abuse of discretion. People v McGee, 258 Mich App 683, 686-687; 672 NW2d 191 (2003). An abuse of discretion occurs when a decision falls outside the range of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
The district court's function at a preliminary examination is to determine whether a crime has been committed and whether there is probable cause for charging the defendant with that crime. People v Drake, 246 Mich App 637, 640; 633 NW2d 469 (2001). Although the prosecution's proofs need not rise to the level of establishing guilt beyond a reasonable doubt, there must be evidence of each element of the crime or evidence from which the elements can be inferred. Id. When the evidence conflicts or raises a reasonable doubt concerning guilt, there are questions for the trier of fact, and the defendant should be bound over. Id.
The district court dismissed the charges of AWIM, felonious assault, and the related felony-firearm counts after concluding that there was no evidence regarding defendant's intent to do anything other than "confront" the victim. But, proof of a defendant's intent requires only "minimal circumstantial evidence." Kanaan, 278 Mich App at 622. Thus, for the AWIM and felony-firearm charges, the prosecution had to present at least minimal circumstantial evidence that defendant intended to kill the victim, and for the felonious assault and felony-firearm charges, evidence that defendant intended to injure the victim or place the victim in reasonable apprehension of an immediate battery. People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014); Chambers, 277 Mich App at 8.
At the preliminary examination, the victim described his tense relationship with defendant and testified that when defendant followed him out of the store, the victim believed that defendant "was going to do something to me," so the victim preemptively "swung and hit [defendant] to get him off of me." Defendant fell down, pulled out a gun, and "started firing." The victim ran into the store and took cover behind the bullet-proof glass enclosure by the register, and defendant pursued him into the store saying, "Bring your ***** *** out." From this evidence, a jury could infer that defendant intended to kill the victim or cause the victim to fear an immediate battery. The district court's dismissal of the AWIM, felonious assault, and felony-firearm charges improperly took that factual question from the province of the jury and, therefore, fell outside the range of reasonable outcomes. Accordingly, the trial court did not err by reinstating the previously dismissed charges. Drake, 246 Mich App at 640. Moreover, any error would be harmless because defendant was not convicted of AWIM and there was sufficient evidence adduced at trial to support his convictions of felonious assault and felony-firearm. See People v Libbett, 251 Mich App 353, 357; 650 NW2d 407 (2002).
Defendant also argues that the trial court erred by allowing the prosecution to amend the information to reinstate the charges because the amendment was unduly prejudicial. However, the previously dismissed charges were before the district court at the preliminary examination, and therefore, defendant's assertion lacks merit. People v Goecke, 457 Mich 442, 462; 579 NW2d 868 (1998) (when "a preliminary examination is held on the very charge that the prosecution seeks to have reinstated, the defendant is not unfairly surprised or deprived of adequate notice or a sufficient opportunity to defend at trial").
IV. COMPOSITION OF JURY VENIRE
Defendant next argues that he was deprived of the right to a fair jury comprised of a representative cross section of the community because the trial court systematically excludes African-Americans from its jury pools. We disagree.
Defendant did not raise this issue timely before the trial court, leaving it unpreserved for appellate review. People v McKinney, 258 Mich App 157, 161; 670 NW2d 254 (2003) (to properly preserve a challenge to the jury array, a party must raise the issue before the jury is empaneled and sworn). We review unpreserved claims of constitutional error for plain error affecting the defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Under the plain error rule, a defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights, i.e., the error affected the outcome of the lower-court proceedings. People v Wiley, 324 Mich App 130, 150-151; 919 NW2d 802 (2018). Reversal is warranted "only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." People v Thorpe, 504 Mich 230, 253; 934 NW2d 693 (2019).
A defendant's right to be tried by an impartial jury drawn from a fair cross section of the community is guaranteed by the federal and state Constitutions. People v Jackson (On Reconsideration), 313 Mich App 409, 428; 884 NW2d 297 (2015), citing US Const, Am VI, and Const 1963, art 1, § 20. In Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979), the United States Supreme Court articulated a three-part test for evaluating whether a defendant has established a prima facie violation of the fair-cross-section requirement. People v Bryant, 491 Mich 575, 581-582; 822 NW2d 124 (2012). Under the Duren test, the defendant must demonstrate:
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. [Duren, 439 US at 364.]
Defendant recognizes that this test governs his claim, but makes no attempt to apply this framework to the trial court's jury selection process in any meaningful way. He asserts that the circuit court systemically compiles jury venires in which African-Americans are underrepresented and conducts voir dire in a manner that exacerbates the underrepresentation, but the record contains no statistical data or other evidence from which we could analyze the second and third prongs of the Duren test, and therefore he has abandoned this issue. People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004) (an appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue).
Defendant also makes the perfunctory argument that the manner in which the trial court allowed voir dire violates the dictates of Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986) (concerning allegations of discriminatory use of peremptory challenges by the prosecution), which is inapposite to the claim he raises here. See People v Bryant, 491 Mich 575, 611 n 94; 822 NW2d 124 (2012) (distinguishing analysis of fair-cross-section issues from questions involving equal-protection rights under Batson).
V. RIGHT TO BEAR ARMS
Defendant also advances an unpreserved argument that his felony-firearm convictions are unconstitutional because they violate his Second Amendment right to carry a gun for self-defense. Both the United States Constitution and the Michigan Constitution grant individuals a right to keep and bear arms for self-defense, but that right is not unlimited and does not encompass the possession of a firearm during the commission of a felony. People v Deroche, 299 Mich App 301, 305; 829 NW2d 891 (2013); People v Powell, 303 Mich App 271, 273; 842 NW2d 538 (2013). Accordingly, defendant has not established plain error affecting his substantial rights. Wiley, 324 Mich App at 150-151.
We note that defendant filed an in propria persona postsentencing motion for a new trial or judgment notwithstanding the verdict, arguing the same issues he raises in his Standard 4 Brief. However, we find defendant's postsentencing motion insufficient to preserve the majority of his claims of error because it did not present these issues to the trial court at a time when the court could have taken steps to correct the potential error in the first instance. See People v Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006). Furthermore, an issue must generally be raised, addressed, and decided in the trial court to be preserved for review. People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). Defendant's motion was never decided by the trial court, nor was it pursued further by defendant or his appellate counsel.
VI. EVIDENTIARY ERROR
Defendant next makes the unpreserved argument that he was denied the right to present a defense when the trial court erroneously excluded evidence related to his concealed pistol license (CPL). Defendant fails to cite any instance in which the trial court precluded testimony or other evidence concerning his CPL, and by failing to provide a factual basis for his argument, defendant has abandoned appellate review of this issue. People v Petri, 279 Mich App 407, 413; 760 NW2d 882 (2008). Defendant did not present an offer of proof to the trial court concerning the substance of any additional evidence as required by MRE 103(a)(2), nor has he attempted to expand the record on appeal for that purpose. Consequently, there simply is nothing for us to review as a basis for finding plain error. Furthermore, defendant's own testimony left the jury fully aware that he was licensed to carry the gun involved in the shooting, and any additional evidence concerning his CPL would be cumulative and unlikely to affect the outcome of the proceedings. Thorpe, 504 Mich at 253. Accordingly, defendant has not established plain error affecting his substantial rights. Wiley, 324 Mich App at 150-151.
Furthermore, defendant's position is contradicted by the record. He actually testified that he held a CPL for approximately two years, that he was lawfully carrying his gun at the time of the shooting, and that he returned to the store after firing at the victim to "flash" his CPL and ensure that everyone understood he was a "licensed carrier" who had been attacked. The surveillance video corroborated defendant's testimony in this regard.
VII. DOUBLE JEOPARDY
Next, defendant makes the unpreserved argument that his right to be free from double jeopardy was violated because he was charged with AWIM, felonious assault, and multiple counts of felony-firearm as a result of the same transaction. However, defendant was acquitted of AWIM and the related felony-firearm charge, and received no punishment for those offenses. Thus, his claim fails factually and as a matter of law. See People v Williams, 265 Mich App 68, 72; 692 NW2d 722 (2005) (double-jeopardy principles do not prohibit the prosecution from pursuing alternative theories of liability, as long as only a single conviction and sentence are entered on the basis of the same offense). Although defendant was convicted of, and sentenced for, both felonious assault and felony-firearm, his dual convictions do not constitute a violation of double jeopardy. People v Mitchell, 456 Mich 693, 695; 575 NW2d 283 (1998) (the felony-firearm statute conveyed a clear legislative intent "to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the felony-firearm statute"). Defendant's position is, therefore, without merit.
Defendant does not refer to the IDFMV charge or third count of felony-firearm in the context of this argument.
VIII. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the effective assistance of counsel when his attorney failed to call a particular witness who would have testified that "[s]ome other dude" was the person who shot the gun from the SUV. We disagree.
Although defendant moved for a new trial and requested a Ginther hearing, the trial court did not rule on the motion or held an evidentiary hearing, and our review is limited to errors apparent on the record. People v Chapo, 283 Mich App 360, 368-369; 770 NW2d 68 (2009). A defendant who claims he was denied the effective assistance of counsel bears a heavy burden to overcome the presumption of effective assistance. People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). "In order to obtain a new trial, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
Defendant does not cite any record evidence or offer other support regarding the substance of the proposed testimony, and thus, he has failed to establish the factual basis for a claim. People v Hoag, 460 Mich 1, 8 n 5; 594 NW2d 57 (1999). Moreover, trial counsel's decision is presumed to be a matter of sound trial strategy, and defendant has not demonstrated otherwise. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (an attorney's decision regarding whether to call or question a witness is presumed to be a matter of trial strategy that we will not second guess on appeal). Nor has defendant demonstrated that he was deprived of a substantial defense. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (an attorney's failure to call a witness will generally not amount to ineffective assistance unless it deprives the defendant of a substantial defense, i.e., a defense that might have made a difference in the outcome of the trial); Chapo, 283 Mich App at 371. Nor is there a reasonable probability that the jury would have reached a different verdict if the witness had testified. Trakhtenberg, 493 Mich at 51. Thus, defendant's claim of ineffective assistance of trial is without merit.
IX. CONCLUSION
We find no error requiring reversal. Accordingly, we affirm defendant's convictions and sentences.
/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle