People of Michigan v. Keishawn Ivory Dismuke ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 21, 2016
Plaintiff-Appellee,
v No. 323678
Wayne Circuit Court
KEISHAWN IVORY DISMUKE, LC No. 14-002021-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and JANSEN and FORT HOOD, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of assault with intent to do great
bodily harm less than murder (AWIGBH), MCL 750.84, malicious destruction of personal
property with a value of $1,000 or more but less than $20,000 (MDPP), MCL 750.377a(1)(b)(i),
and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was sentenced to 3 to 10 years’ imprisonment for the AWIGBH conviction, two to
five years’ imprisonment for the MDPP conviction, and two years’ imprisonment for the felony-
firearm conviction. We affirm.
This case arises out of an incident that occurred on July 20, 2012, between 5:00 p.m. and
6:00 p.m. Nathaniel Eley was working at Cold Creation, a barber shop and salon. When Eley
arrived at the salon, he parked his car in a public parking space on the street in front of Toriana’s,
another salon that was located two storefronts down. Defendant and his wife, Toriana Dismuke
(Toriana), ran Toriana’s. According to Eley, defendant was angry that Eley parked his car in
front of Toriana’s. Defendant began walking back and forth from Toriana’s and Cold Creation
holding an assault rifle. He repeatedly demanded that Eley “move [his] f****** car.”
Defendant came to the doorway of Cold Creation. Eley told defendant that he was not moving
his car and that he had parked in a public parking space. Defendant went into a nearby store, and
Eley went outside. At some point, defendant came out of the store. Defendant continued to tell
Eley to move his car. Defendant told Eley, “If you don’t move yo’ car, I’m, I’ma light it up.
Shoot, shoot your car up.” Eley walked to his car to get cigarettes. He went toward the rear
passenger side of the car. Defendant continued to demand that Eley move his car and threatened
to shoot it. Toriana, who was also at the scene of the incident, yelled, “[S]hoot his young a**.”
Eley did not think defendant would shoot, and he did not intend to move his car. However, he
also testified that he was afraid for his life when he saw defendant with a rifle. While Eley was
standing next to the car, defendant fired five gunshots. According to Eley, he was standing near
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the rear passenger side of the car or in between the passenger side of the car and the rear of the
car when defendant started shooting. He also testified that he was walking back and forth
between the rear passenger door and the back of the car when defendant fired the gunshots. The
shots all struck the rear passenger side quarter panel of the car. Eley ran inside his shop and
called the police. Then he flagged down a Michigan State Police (MSP) vehicle that happened
by. Defendant immediately threw his rifle into a blue Dodge Durango, got into the vehicle, and
drove away. He was gone by the time the MSP vehicle arrived. Eley was not armed at any point
during these events.
Defendant testified at trial that on the day of the shooting, Eley was angry and threatened
defendant and his family. Defendant went into Toriana’s to avoid Eley. He then decided to
leave. Defendant gathered his things, including the rifle he carried for security, left the store, and
began to lock the door. Eley then approached and had something in his hand which he pointed at
defendant. At this time, Eley was “about 39, 40 feet” away from defendant. Defendant testified
that he pointed his rifle at Eley. Defendant “got a little annoyed,” and fired at Eley’s car.
Alternately, defendant testified that he “got a little scared,” partly because Eley threatened
defendant’s family, so he “g[ave] out some warning shots for [Eley] to back up.” He explained
that he fired the shots because he “was nervous and it was a new gun.”
Defendant was convicted and sentenced as stated above. Following his convictions,
defendant filed a motion for a new trial with the trial court, arguing that the evidence of his intent
to harm Eley was insufficient to support the conviction for AWIGBH. Defendant also requested
resentencing and argued that defense counsel was ineffective at sentencing for failing to submit
various letters from various people documenting defendant’s good deeds and for not mentioning
that defendant suffered from mental health conditions. The trial judge denied this motion.
Defendant first argues that there was insufficient evidence to support his AWIGBH
conviction. We disagree.
We review de novo a claim that there was insufficient evidence to support a defendant’s
conviction. People v Lane, 308 Mich App 38, 57; 862 NW2d 446 (2014). “We review the
evidence in a light most favorable to the prosecution to determine whether a rational trier of fact
could find that the prosecution had proved the crime’s elements beyond a reasonable doubt.” Id.“The elements of AWIGBH are ‘(1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.’
” People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014) (citation omitted). Assault is
defined as “ ‘an attempt or offer with force and violence to do a corporal hurt to another.’ ”
People v Dillard, 303 Mich App 372, 378; 845 NW2d 518 (2013) (citation omitted). Actual
injury does not need to occur. Id. AWIGBH is a specific intent crime. People v Brown, 267
Mich App 141, 147; 703 NW2d 230 (2005). “The intent to do great bodily harm less than
murder is ‘an intent to do serious injury of an aggravated nature.’ ” Stevens, 306 Mich App at
628 (citation omitted). “Because of the difficulty in proving an actor’s intent, only minimal
circumstantial evidence is necessary to show that a defendant had the requisite intent.” Id. at
629. “Intent to cause serious harm can be inferred from the defendant’s actions, including the
use of a dangerous weapon or the making of threats.” Id. Additionally, “ ‘[e]vidence of flight is
admissible to support an inference of “consciousness of guilt” and the term “flight” includes such
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actions as fleeing the scene of the crime.’ ” People v Unger, 278 Mich App 210, 226; 749
NW2d 272 (2008) (citation omitted).
Defendant argues that there was insufficient evidence that he attempted or threatened to
injure Eley and that he intended to injure Eley because the evidence shows he only intended to
shoot Eley’s car. However, there was sufficient evidence that defendant attempted to injure Eley
and intended to cause great bodily harm. Eley testified that defendant shot at him five times, and
the bullet holes in the car were near where Eley was standing when defendant began to shoot.
Defendant also fled the scene of the incident when the MSP officer arrived. This evidence was
sufficient to show that defendant attempted to injure Eley and intended to cause great bodily
harm. See Stevens, 306 Mich App at 628-629; Unger, 278 Mich App at 226.
Defendant correctly points out that other evidence supports the inference that he only
intended to shoot Eley’s car, rather than Eley. For example, there was conflicting testimony
regarding whether Eley was standing near where the bullets entered the car, and defendant
threatened to shoot Eley’s car, not Eley. However, “[t]his Court will not interfere with the trier
of fact’s determinations regarding the weight of the evidence or the credibility of witnesses.”
Stevens, 306 Mich App at 628. Taken in the light most favorable to the prosecution, there was
sufficient evidence to support the trial court’s determination that defendant committed
AWIGBH. See Stevens, 306 Mich App at 628.
Defendant also argues that Eley did not think defendant was shooting at him, but rather,
at his car. Although Eley testified that he was not hit with any bullets because defendant “just
probably wanted to play with [him],” and was “[j]ust shooting around [him],” Eley also testified
that defendant was firing the bullets at him. Regardless, defendant does not explain how Eley’s
understanding of defendant’s intent is legally relevant to the issue of defendant’s actual intent.
Instead, for the reasons discussed above, there was sufficient evidence to establish defendant’s
intent. See Stevens, 306 Mich App at 628.
Defendant also points out that the judge said, while giving his verdict, “I cannot rule out a
specific intent to do great bodily harm given the kind of weapon used and the fact that there were
five rounds fired off.” This, defendant argues, means the judge used the wrong legal standard
and did not find defendant guilty of the intent element beyond a reasonable doubt. However, the
trial court also stated, “[F]rom all the facts and circumstances surrounding the shooting I can
readily infer and am convinced beyond a reasonable doubt that the defendant had an intent to
cause great bodily harm to [Eley].” Considering this, it is clear that the trial judge did use the
correct legal standard in deciding whether defendant intended to cause great bodily harm. See
Lane, 308 Mich App at 57.1
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Defendant also argues that the trial court articulated an improper legal standard during the
hearing on defendant’s motion for a new trial. However, the trial judge stated while rendering
the verdict in this case that he was convinced beyond a reasonable doubt that defendant had the
specific intent to do great bodily harm. Thus, regardless of whether the trial court articulated an
improper legal standard when it decided the motion for a new trial, the trial court articulated the
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Defendant next argues that his AWIBGH conviction was against the great weight of the
evidence. We disagree.
A new trial may be granted when a verdict is against the great weight of the evidence.
MCR 2.611(A)(1)(e). Because this was a bench trial, the findings of fact that support the verdict
are reviewed for clear error, and “regard shall be given to the special opportunity of the trial
court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). A
challenge to the great weight of the evidence is reviewed for whether “the evidence
preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand.” Unger, 278 Mich App at 232. “Generally, a verdict may be vacated only when
the evidence does not reasonably support it and it was more likely the result of causes outside the
record, such as passion, prejudice, sympathy, or some other extraneous influence.” People v
Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009). This Court has expressly stated
that, under this standard, “[c]onflicting testimony and questions of witness credibility are
generally insufficient grounds for granting a new trial.” Unger, 278 Mich App at 232. In
general, the trier of fact determines issues of witness credibility. Id.
The facts from the record defendant cites to support his argument in this issue are
identical to the facts he cites for his prior issue: defendant fired the shots with a rifle at close
range, which suggests that if defendant wanted to hit Eley he would have; Eley said defendant
only meant to scare Eley, not shoot him; defendant threatened to shoot Eley’s car, not Eley; Eley
said he was standing by the rear passenger’s side door when defendant began shooting, and the
shots all struck the rear passenger’s side of the car, indicating defendant was not shooting at Eley
but at Eley’s car. However, despite these facts, the trial court found that defendant had the intent
necessary to convict him of AWIGBH. This finding does not “preponderate[] so heavily against
the verdict that it would be a miscarriage of justice to allow the verdict to stand” because Eley
also testified that when defendant started shooting, defendant pointed the gun at Eley, and Eley
was standing in the same place where he later discovered the bullet holes. See Unger, 278 Mich
App at 232. While there is conflicting testimony regarding where Eley was when defendant
fired, conflicting testimony does not justify granting a new trial. See MCR 2.613(C); Unger, 278
Mich App at 232. Thus, it was not clear error for the trial court, as trier of fact, to find defendant
guilty of AWIGBH. See MCR 2.613(C).
Finally, defendant argues that his sentence is invalid and that defense counsel performed
ineffectively at sentencing by failing to submit letters from members of the community
documenting defendant’s good deeds and advocating a light sentence, and by failing to present
evidence that defendant suffered from mental health issues. We disagree.
A party may file a motion to correct an invalid sentence in the trial court. MCR
6.429(A). “The court may correct an invalid sentence, but the court may not modify a valid
sentence after it has been imposed except as provided by law.” Id. “A sentence is invalid when
it is beyond statutory limits, when it is based upon constitutionally impermissible grounds,
improper assumptions of guilt, a misconception of law, or when it conforms to local sentencing
proper legal standard when it rendered the verdict in this case. See Lane, 308 Mich App at 57;
Stevens, 306 Mich App at 628.
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policy rather than individualized facts.” People v Miles, 454 Mich 90, 96; 559 NW2d 299
(1997). A sentence is also invalid if it is based on inaccurate information. Id.Defendant argues that his sentence for AWIGBH is invalid since the trial court
improperly convicted him of AWIGBH. However, as discussed above, there was sufficient
evidence to support his AWIGBH conviction, and his conviction was not against the great
weight of the evidence. Therefore, the sentence was valid. See MCR 6.429(A); Miles, 454 Mich
at 96.
Defendant also argues that his trial attorney rendered ineffective assistance at sentencing.
“A claim of ineffective assistance of counsel presents a mixed question of fact and constitutional
law. We review factual findings for clear error, but we review de novo questions of
constitutional law.” Unger, 278 Mich App at 242. “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).
Defendant cites no authority to support his argument that, because of defense counsel’s
failure to present evidence of defendant’s mental illness and letters regarding defendant’s good
deeds, counsel’s conduct fell below an objective standard of reasonableness. Trakhtenberg, 493
Mich at 51. Defendant “may not merely announce his position and leave it to this Court to
discover and rationalize the basis for his claims, nor may he give only cursory treatment with
little or no citation of supporting authority.” People v Payne, 285 Mich App 181, 195; 774
NW2d 714 (2009).
Further, even if defendant could establish that his defense counsel performed
unreasonably, he could not show that his sentence would have been different. Regarding
defendant’s claim that he suffered from mental illness, the presentence investigation report noted
defendant’s mental health problems, which means the trial court was aware of these problems
when defendant was sentenced. In addition, at the hearing on defendant’s motion for a new trial,
the trial judge expressly stated that he could not remember the last time a letter affected one of
his sentencing decisions. More generally, after considering defendant’s argument, the trial judge
indicated that nothing defendant argued in his motion would have affected the sentence imposed
by the trial court. Thus, defendant fails to show a reasonable probability that any of defense
counsel’s alleged failings would have resulted in a different outcome. See Trakhtenberg, 493
Mich at 51.2
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Defendant also notes in his brief on appeal that the trial court held the time defendant was on
“bench warrant status” against him. However, defendant does not raise any argument with
regard to his assertion or explain how the court erred. Thus, the issue is abandoned. See Payne,
285 Mich App at 195 (“ ‘An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment
with little or no citation of supporting authority.’ ”) (citation omitted).
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Affirmed.
/s/ Michael J. Riordan
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
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