People of Michigan v. George Wayne Dunbar ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision
until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 9, 2019
Plaintiff-Appellee,
v No. 342640
Wayne Circuit Court
GEORGE WAYNE DUNBAR, LC No. 17-007949-01-FC
Defendant-Appellant.
Before: TUKEL, P.J., and K. F. KELLY and M. J. KELLY, JJ.
PER CURIAM.
Defendant, appeals as of right his bench trial conviction for armed robbery, MCL 750.529.
Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 7½ to 25 years imprisonment
for the armed robbery conviction. We affirm.
I. BASIC FACTS
On August 18, 2017, defendant entered a 7 Eleven, high on drugs and alcohol, and off of his
medication. The clerk testified that defendant demanded money from the cash register and when the
clerk refused to give him the money, defendant slammed a knife on the counter and demanded the
money again. After the clerk informed defendant that he had triggered a silent alarm, defendant threw
the knife at the clerk and ran away. The knife did not hit the clerk but, at trial, the clerk testified that the
knife placed him in a state of fear. In contrast, defendant testified that he had no intention of committing
an armed robbery. When he entered the 7 Eleven he intended “to steal alcohol or buy it.” In his
intoxicated state, defendant engaged in an argument with the clerk, but denied that he ever demanded
money from the cash register. The trial court found the clerk’s testimony, coupled with surveillance
footage, to be more credible.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that there was insufficient evidence to convict him of armed robbery. We
disagree.
Challenges to the sufficiency of the evidence are reviewed de novo to determine if any rational
trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.
People v Lockett, 295 Mich. App. 165, 180; 814 NW2d 295 (2012). All conflicts in the evidence are
resolved in favor of the prosecution. Id. “Circumstantial evidence and reasonable inferences drawn
from it may be sufficient to prove the elements of the crime.” People v Wilkens, 267 Mich. App. 728,
738; 705 NW2d 728 (2005). On appeal, “[t]his Court will 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, 618-619; 751 NW2d 57 (2008).
In People v Chambers, 277 Mich. App. 1, 7; 742 NW2d 610 (2007), this Court examined the
armed robbery statute, MCL 750.529, and held that it has two elements:
(1) the defendant, in the course of committing a larceny of any money or other property
that may be the subject of a larceny, used force or violence against any person who was
present or assaulted or put the person in fear, and (2) the defendant, in the course of
committing the larceny, either possessed a dangerous weapon, possessed an article used
or fashioned in a manner to lead any person present to reasonably believe that the article
was a dangerous weapon, or represented orally or otherwise that he or she was in
possession of a dangerous weapon. [Footnote omitted.]
The record supports defendant’s conviction for armed robbery. Credibility determinations are
for the finder of fact and the trial judge found the clerk’s testimony more credible than defendant’s. See
Kanaan, 278 Mich. App. at 618-619. Furthermore, defendant testified that he intended “to steal alcohol
or buy it” when he entered the 7 Eleven on August 18, 2017. The clerk testified that defendant
demanded money from the cash register and that, after the clerk refused, defendant threw a knife at him.
While defendant argues that this was not what actually happened, the trial judge found that the clerk was
the more credible witness and, notwithstanding the trial judge’s statement, all conflicts in the evidence
must be resolved in favor of the prosecution. Defendant’s demand for money and use of a knife while
doing so fulfill the elements of armed robbery even though he did not successfully steal anything from
the 7 Eleven. Thus, there was sufficient evidence for a rational trier or fact to determine beyond a
reasonable doubt that defendant committed armed robbery at the 7 Eleven on August 18, 2017.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
In a Standard 4 brief, defendant argues that his trial counsel was ineffective for failing to provide
defendant with discovery and for failing to inform him about the plea agreement before the day of his
trial. We disagree.
Because there was no Ginther1 hearing, “our review is limited to the facts on the record.”
People v Wilson, 242 Mich. App. 350, 352; 619 NW2d 413 (2000).
Our Court has explained:
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
-2-
Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise. To establish an ineffective assistance of counsel claim, a
defendant must show that (1) counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms and (2) there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been
different. [People v Lockett, 295 Mich. App. 165, 187; 814 NW2d 295 (2012) (citations
omitted).]
Defendant first argues that his trial counsel was ineffective for failing to provide him with
sufficient information about the case that would be brought against him or to provide him with requested
discovery. Defendant argues that without this information he could not make an informed decision
about whether to accept a plea agreement. However, nothing in the record supports defendant’s
argument that his trial counsel failed to provide discovery to him upon request. Furthermore, defendant
referenced the surveillance video when rejecting the plea agreement. If defendant had seen the
surveillance video before trial then it appears that he was at least provided with some discovery before
trial.
Defendant next argues that he was not told about the plea agreement until the day of his trial and
that, if he had more information and time to think about it, he would have entered a guilty plea instead
of going to trial.
On the day of trial, defendant was offered a plea agreement by the prosecution, and defendant
appeared aware of the terms of the plea agreement before the proceedings started. At the start of
proceedings on that day, the trial judge asked defendant if he wanted to enter a guilty plea. Defendant
responded, stating that he was innocent of robbery and attempted robbery and that the surveillance video
from the 7 Eleven showed that he was only arguing with the clerk “over buying alcohol.” Defendant
then stated, “I’ll plea out to 2½,” but argued that he was not guilty of robbery, the crime listed in the
plea agreement, or of armed robbery, the original crime charged. The trial judge then informed
defendant that he could “only plead guilty if [he was] guilty” and that he could not plead guilty while
simultaneously asserting his innocence. In response, defendant stated that he “[did not] know what’s
going on here really” and his trial attorney stated, “[y]eah you do” because they had “talked about it.”
Defendant then responded to his trial attorney, stating, “[y]eah. We’ve talked about it. We were gonna
take it to trial.” Finally, after cutting off his trial attorney’s attempt to reply, defendant stated, “I’ll take
it to trial. I’m not, I’m not pleading out to the 2½.” At this point, the prosecution revoked the plea offer
and the case proceeded to trial.
Even if defendant did learn of the plea agreement immediately before proceedings began, it does
not change the fact that he also continually stated that he was innocent. In fact, defendant’s
protestations of his innocence are what led him to reject the plea agreement because he was unwilling to
say that he was guilty of either robbery or armed robbery when asked by the trial court.
Affirmed.
/s/ Jonathan Tukel
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly
-3-