People of Michigan v. Veronica Marie Maldonado ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 15, 2016
Plaintiff-Appellee,
v No. 326803
Wayne Circuit Court
ISMAEL FIGUEROA, LC No. 14-009812-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 326888
Wayne Circuit Court
JAVIER ISMAEL FIGUEROA, LC No. 14-010428-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 326933
Wayne Circuit Court
MONICA MARIE MALDONADO, LC No. 14-009812-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 327202
Wayne Circuit Court
VERONICA MARIE MALDONADO, LC No. 14-009812-FH
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Defendant-Appellant.
Before: GADOLA, P.J., and WILDER and METER, JJ.
PER CURIAM.
In these consolidated appeals, defendants appeal as of right from their convictions of one
count each of first-degree home invasion, MCL 750.110a(2), and two counts each of
misdemeanor assault and battery, MCL 750.81, which followed a five-day, consolidated jury
trial. Each defendant was sentenced to time served for the misdemeanor assault and battery
convictions. On the other hand, regarding the first-degree home invasion convictions, the trial
court sentenced defendant Ismael Figueroa (Ismael) to 2 to 20 years, defendant Javier Ismael
Figueroa (Javier) to 3 to 20 years, defendant Monica Marie Maldonado (Monica) to 1½ to 20
years, and defendant Veronica Marie Maldonado (Veronica) to 1½ to 20 years. We affirm
defendants’ convictions but, in Dockets No. 326933 and 327202, remand to the trial court for
further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
This case arises out of a familial dispute between Blanca Maldonado (Blanca), her son
Antonio Medina (Antonio), and his live-in girlfriend, Diana Fernandez (Diana), which eventually
escalated to involve defendants (all of whom are related to Blanca and Antonio). On October 9,
2014, Diana confronted Blanca, alleging that Blanca owed Diana rent money. Blanca indicated
that she would no longer pay rent. The confrontation was evidently heated but, according to
Diana and Antonio (who witnessed the confrontation), Diana never physically assaulted Blanca.
After flagging down a passing police car, however, Blanca reported that Diana had “grabbed
[her] by the hair and thrown [her] to the ground.”
According to Antonio, two days later, around 10:00 p.m., his brothers (defendants Javier
and Ismael) showed up unexpectedly at Antonio and Diana’s apartment, along with Antonio’s
cousins (defendants Monica and Veronica, who are sisters), Angel Ortiz-Diaz,1 a man named
Alegio, and a woman who remains unidentified. Antonio went to the door and opened it.
Standing in the doorway—and thereby physically blocking the entrance—Antonio spoke with
Javier, Ismael, and Veronica. The group aggressively questioned Antonio about the October 9,
2014 confrontation between Diana and Blanca. Disliking Antonio’s responses, Javier punched
Antonio in the mouth. Antonio stumbled back a few steps into the house. He cocked his own
fist back to throw a counter-punch, but “[t]hey all charged towards” him, with Javier and Ismael
in the lead. Antonio was “bombarded” by Javier, Ismael, Monica, Veronica, Angel, and Alegio.
The door was forced open so violently that the “door stopper” broke and the doorknob left a dent
in the wall. Antonio was pushed back approximately 19 feet into his living room, where Ismael,
Javier, Angel, and Alegio pinned him face-down over the armrest of a couch with his face
1
Angel was a codefendant in the trial court but was acquitted of all charges.
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pushed into the couch cushions. Helpless to resist, Antonio was punched in the back of the head
repeatedly and “[t]ased on the back of [his] leg.” His eyeglasses were broken, and he felt “a
sharp object hit [his] rib,” which he later discovered to be a crowbar that the assailants left
behind. Because of his position, he was unable to see who tased him and could not say whether
either Monica or Veronica struck him while he was pinned on the couch. The assault abruptly
ended when Diana released the couple’s pitbull, which had been locked in the kitchen, and the
assailants fled in fear.
The police were called and arrived roughly 30 minutes later. Antonio “refused EMS,”
but he received treatment at Detroit Receiving Hospital later that evening, where he was
diagnosed with a bruised rib, a “chest wall contusion,” and was provided pain medication. No
“Taser prongs” were found “in” him, nor were any puncture wounds discovered. About “a day
or two” later, he “went to the VA” and received further treatment, including more pain
medication.
Diana witnessed the incident from inside the home. Her trial testimony regarding the
incident was mostly consistent with that of Antonio but added details about what Antonio was
unable to see while pinned on the living room couch. Diana confirmed that it was Ismael, Javier,
Angel, and Alegio who physically pinned Antonio on the couch and punched him. One of them
also hit Antonio with the crowbar, although Diana could not specify which one. Diana retrieved
a cordless telephone from the bedroom and dialed 911, but Monica ran up, called Diana “bitch,”
slapped the phone out of her hand while she was talking with the 911 dispatcher, and then
punched her in the eye. Veronica also punched Diana, then Monica and Veronica proceeded to
strike Diana repeatedly in the head and stomach. Diana was left with a black eye, a broken blood
vessel within her eye, and a split lip. After assaulting Diana, Monica and Veronica went over to
the couch and punched the prone Antonio, as well. Eventually, Diana was able to release her
pitbull. During the ensuing chaos she escaped through a back door, fled to a neighbor’s house,
and called the police. Defendants were subsequently arrested and convicted as described supra.
Their instant appeals ensued.
II. ANALYSIS
A. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant Ismael argues that his trial counsel performed ineffectively by failing to
request a jury instruction on misdemeanor breaking and entering, MCL 750.115, which is a
lesser included offense of first-degree home invasion. On that basis, Ismael argues that his first-
degree home invasion conviction must be reversed. We disagree.
Because Ismael failed to move for either a new trial or a Ginther2 hearing in the trial
court, this issue is not properly preserved, see People v Sabin (On Second Remand), 242 Mich
App 656, 658-659; 620 NW2d 19 (2000), and our review is consequently for any error apparent
on the record, see People v Lockett, 295 Mich. App. 165, 186; 814 NW2d 295 (2012). “Whether
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews
for clear error the trial court’s findings of fact and reviews de novo questions of constitutional
law.” People v Trakhtenberg, 493 Mich. 38, 47; 826 NW2d 136 (2012).
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. A defendant must also show that the
result that did occur was fundamentally unfair or unreliable. [Lockett, 295 Mich
App at 187 (citations omitted).]
The “reviewing court must not evaluate counsel’s decisions with the benefit of hindsight,” but
should “ensure that counsel’s actions provided the defendant with the modicum of
representation” constitutionally required. People v Grant, 470 Mich. 477, 485; 684 NW2d 686
(2004), citing Strickland v Washington, 466 U.S. 668, 689; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984).
Whether to request a jury instruction regarding a lesser included offense is a matter of
trial strategy. People v Sardy, 216 Mich. App. 111, 116; 549 NW2d 23 (1996). “Defense counsel
is given wide discretion in matters of trial strategy because many calculated risks may be
necessary in order to win difficult cases.” People v Unger, 278 Mich. App. 210, 242; 749 NW2d
272 (2008). Thus, there is a “strong presumption that trial counsel’s performance was strategic,”
and “[w]e will not substitute our judgment for that of counsel on matters of trial strategy[.]” Id.
at 242-243.
Although he is correct that misdemeanor breaking and entering is a necessarily included
lesser offense of first-degree home invasion, People v Silver, 466 Mich. 386, 392; 646 NW2d 150
(2002), Ismael fails to recognize that “[t]he decision to proceed with an all or nothing defense is
a legitimate trial strategy,” People v Nickson, 120 Mich. App. 681, 687; 327 NW2d 333 (1982).
And despite the fact that he bears the burden of proving the factual predicate for his claim of
ineffective assistance, see People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999), Ismael cites no
record evidence to rebut the strong presumption that his trial counsel’s decisions in this regard
were both strategic and effective. Thus, his instant claim of error necessarily fails.
B. OFFENSE VARIABLES (OVs)
As explained in People v Steanhouse, 313 Mich. App. 1, 38; 880 NW2d 297 (2015), lv
granted 499 Mich. 934 (2016), notwithstanding Lockridge3 this Court continues to apply the
standard of review enunciated by People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013),
when reviewing a trial court’s scoring of OVs. “Under the sentencing guidelines, the circuit
court’s factual determinations are reviewed for clear error and must be supported by a
preponderance of the evidence.” Hardy, 494 Mich. at 438. “Whether the facts, as found, are
3
People v Lockridge, 498 Mich. 358; 870 NW2d 502 (2015).
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adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to
the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Id.
1. OV 3
Defendants Ismael, Javier, and Veronica argue that the trial court erred by assessing them
10 points, rather than 5, under OV 3. They further argue that the resulting error entitles them to
resentencing. We disagree.
We need not consider the substance of defendants’ arguments regarding OV 3 because
the purported five-point error could not have altered the applicable guidelines range. See People
v Francisco, 474 Mich. 82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring error does not alter
the appropriate guidelines range, resentencing is not required.”). Pursuant to MCL 777.16f, first-
degree home invasion (i.e., defendants’ sentencing offense) qualifies as a crime against a person
and a class “B” felony. Given their respective total OV scores, Ismael (total OV score of 31
points), Javier (total OV score of 41 points), and Veronica (total OV score of 31 points) each
required a reduction of at least seven points to lower their applicable guidelines ranges. See
MCL 777.63. Thus, their claims of error regarding OV 3 merit no relief. Even assuming,
arguendo, that the trial court erred by assessing Ismael, Javier, and Veronica 10 points for OV 3
rather than 5 points,4 they would nevertheless be unentitled to resentencing on that ground
because the resultant error could not have altered the applicable guidelines range.
2. OV 4
Conversely, to the extent that defendants Ismael, Javier, and Veronica allege that the trial
court erred by assessing them 10 points each for OV 4, those claims of error would, if
established, alter the applicable guidelines range and therefore warrant resentencing. See id. at
89-91. Defendants argue that a preponderance of the evidence does not support the trial court’s
finding in support of OV 4. We disagree.
OV 4 is set forth by MCL 777.34, which provides,
4
In any event, the trial court did not so err. Although 10 points are properly assessed under OV
3 for bodily injury “requiring” treatment only where there is evidence that medical treatment was
“necessary,” People v Armstrong, 305 Mich. App. 230, 246; 851 NW2d 856 (2014), here there
was sufficient evidence from which the trial court could reasonably infer that treatment was, in
fact, necessary. As this Court recently explained in People v Maben, ___ Mich App ___, ___;
___ NW2d ___ (2015); slip op at 3, because “[t]he phrase ‘requiring medical treatment’ for
purposes of OV 3 “refers to the necessity for treatment and not the victim’s success in obtaining
treatment,” it is unnecessary to establish that a victim “actually went to the hospital” when
assessing 10 points under OV 3. If nothing else, there is ample evidence that it was “necessary”
for Antonio to take pain medication for his injuries. We conclude that Antonio’s act of ingesting
pain medication, whether it was prescribed or not, in order to treat the pain from his bodily
injuries, falls within the plain meaning of “medical treatment” under MCL 777.33. Thus, the
trial court did not err by assessing defendants 10 points under OV 3.
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(1) [OV] 4 is psychological injury to a victim. Score [OV] 4 by determining
which of the following apply and by assigning the number of points attributable to
the one that has the highest number of points:
(a) Serious psychological injury requiring professional treatment occurred
to a victim . . . 10 points
(b) No serious psychological injury requiring professional treatment
occurred to a victim . . . 0 points
(2) Score 10 points if the serious psychological injury may require professional
treatment. In making this determination, the fact that treatment has not been
sought is not conclusive.
Proof that the victim sought professional treatment for the psychological trauma suffered is
unnecessary to support the assessment of points for OV 4, but “[t]here must be some evidence of
psychological injury on the record to justify a 10-point score.” Lockett, 295 Mich. App. at 183.
Evidence of a victim’s fear during the commission of the charged offense, or of lingering
feelings of anger, fear, violation, or hurt afterwards, are sufficient to support the assessment of
10 points for OV 4. People v Williams, 298 Mich. App. 121, 124; 825 NW2d 671 (2012).
Here, Diana testified that, at the time of trial, she was “still upset even at home” and “still
crying.” She “cried on every occasion when [an investigating detective] talked to her.”
Additionally, at sentencing Diana testified as follows:
Q. I want to ask you about the impact of this situation on your emotional
health. Could you describe that to the judge?
A. It’s not very good. I can’t sleep at night. I’ve been staying up ever
since this happened. I’m traumatized and scared somebody else is going to come
into my house and do something else to me.
* * *
Q. Have you sought any counseling behind this situation?
A. I’ve been seeing my [medical] doctor.
* * *
Q. And you’ve been complaining to him of this inability of you to sleep?
A. Yes, I’ve been put on sleeping pills.
Similarly, at sentencing, Antonio read a prepared statement indicating that he remained “angry
and hurt,” “fearful in [his] own home,” and had lost his job “due to mental stress[.]” Thus, there
was sufficient evidence to support the trial court’s assessment of 10 points for OV 4 as to
defendants Ismael, Javier, and Veronica. See Williams, 298 Mich. App. at 124.
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3. OV 14
Defendant Javier argues that the trial court erred by assessing him 10 points under OV
14. We disagree.
OV 14 is set forth as follows by MCL 777.44:
(1) [OV] 14 is the offender’s role. Score [OV] 14 by determining which of the
following apply and by assigning the number of points attributable to the one that
has the highest number of points:
(a) The offender was a leader in a multiple offender situation . . . 10 points
(b) The offender was not a leader in a multiple offender situation . . . 0
points
(2) All of the following apply to scoring [OV] 14:
(a) The entire criminal transaction should be considered when scoring this
variable.
(b) If 3 or more offenders were involved, more than 1 offender may be
determined to have been a leader.
“A ‘multiple offender situation’ is one in which more than one person—up to several or many
persons—participates in a violation of the law.” People v Ackah-Essien, 311 Mich. App. 13, 38;
874 NW2d 172 (2015). The term “leader” is not statutorily defined, but it was construed in
People v Rhodes (On Remand), 305 Mich. App. 85, 90; 849 NW2d 417 (2014), by its dictionary
definition:
According to Random House Webster’s College Dictionary (2001), a “leader” is
defined in relevant part as “a person or thing that leads” or “a guiding or directing
head, as of an army or political group.” To “lead” is defined in relevant part as, in
general, guiding, preceding, showing the way, directing, or conducting.
The trial court’s findings need only be supported by a preponderance of the evidence, Hardy,
494 Mich. at 438, and reasonable inferences from record evidence may be relied upon, People v
Earl, 297 Mich. App. 104, 109; 822 NW2d 271 (2012).
Given the fact that Javier was the first person to strike one of the victims, that he was one
of the two people who led the rush into the victims’ home, and that he was among those who
pinned Antonio down on the couch while he was assaulted, it was reasonable for the trial judge
to infer that Javier was—if not the leader—at least a leader in a multiple offender situation. See
MCL 777.44(2)(b) (“If 3 or more offenders were involved, more than 1 offender may be
determined to have been a leader.”). Therefore, the trial court did not err by assessing Javier 10
points under OV 14.
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4. OV 16
Although the issue is not contained in Javier’s statement of questions presented, and he
offers neither argument in support of it nor citation to authority, Javier’s brief on appeal offers
the conclusory assertion that OV 16 was improperly scored. By failing to offer any supporting
argument or authority, Javier has abandoned this issue. See People v Kelly, 231 Mich. App. 627,
640-641; 588 NW2d 480 (1998). Furthermore, by failing to include it in his statement of
questions presented, he has waived our consideration of the issue. See People v Bennett, 290
Mich. App. 465, 484 n 4; 802 NW2d 627 (2010). Waiver extinguishes any error, “thereby
foreclosing appellate review.” People v McKinley, 496 Mich. 410, 418; 852 NW2d 770 (2014).
C. SUFFICIENCY OF THE EVIDENCE
Defendant Monica argues that, even viewing the record evidence in the light most
favorable to the prosecution, there was insufficient evidence to permit a rational trier of fact to
conclude that Monica assaulted and battered Antonio. We disagree.
“A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo[.]”
People v Gaines, 306 Mich. App. 289, 296; 856 NW2d 222 (2014). The evidence is viewed in the
“light most favorable to the prosecutor 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).
The standard of review is deferential: a reviewing court is required to draw all
reasonable inferences and make credibility choices in support of the jury verdict.
The scope of review is the same whether the evidence is direct or circumstantial.
Circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime. [People v Nowack, 462
Mich. 392, 400; 614 NW2d 78 (2000) (quotation marks and citation omitted).]
This Court will not replace its judgment for that of the fact-finder regarding what inferences can
be fairly drawn from the evidence. People v Kosik, 303 Mich. App. 146, 150-151; 841 NW2d 906
(2013).
“An assault may be established by showing either an attempt to commit a battery or an
unlawful act that places another in reasonable apprehension of receiving an immediate battery.”
People v Starks, 473 Mich. 227, 234; 701 NW2d 136 (2005). “Battery has been defined as an
intentional, unconsented and harmful or offensive touching of the person of another, or of
something closely connected with the person.” Id. (quotation marks and citation omitted).
When asked whether she saw any of the female assailants “strike” Antonio, Diana
responded, “Yes, I did,” explaining that Monica and Veronica both struck Antonio. When asked
“how” they struck him, Diana responded, “They were just like behind the guys punching him.”
Contrary to Monica’s argument on appeal, the above testimony was sufficient to permit a
rational trier of fact to conclude that she was guilty of misdemeanor assault and battery.
According to Diana, Monica struck Antonio. It is reasonable to infer from the record evidence
that the contact was intentional, unconsented, and harmful or offensive, and thus that it
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constituted a battery. Moreover, “every battery necessarily includes an assault because a battery
is the very consummation of the assault.” People v Cameron, 291 Mich. App. 599, 614; 806
NW2d 371 (2011) (quotation marks and citation omitted). Hence, there was sufficient evidence
to support the jury’s verdict.5
D. ALLEYNE6 ERROR
Next, defendants Monica and Veronica contend that they are entitled to a Crosby7 remand
because the floor of their respective guidelines ranges were raised by the trial court’s reliance on
judicially found facts, i.e., that Alleyne error occurred. We agree.
Neither Monica nor Veronica raised an Alleyne-related objection in the trial court. As
such, this issue is unpreserved and is reviewed for plain error. See People v Terrell, 312 Mich
App 450, 464; 879 NW2d 294 (2015). As summarized in Steanhouse, 313 Mich. App. at 321, the
Lockridge Court
held that the rule from Apprendi v New Jersey, 530 U.S. 466; 120 S. Ct. 2348, 147 L
Ed 2d 435 (2000), as extended by Alleyne[], applies to Michigan’s sentencing
guidelines and renders them constitutionally deficient. The Court explained that
to the extent that OVs scored on the basis of facts not admitted by the defendant
or necessarily found by the jury verdict increase the floor of the guidelines range,
i.e., the defendant’s “mandatory minimum” sentence, that procedure violates the
Sixth Amendment. Accordingly, to remedy the constitutional violation, the Court
severed MCL 769.34(2) to the extent that it makes the sentencing guidelines
range as scored on the basis of facts beyond those admitted by the defendant or
found by the jury beyond a reasonable doubt mandatory. The Court also struck
down the requirement in MCL 769.34(3) that a sentencing court that departs from
the applicable guidelines range must articulate a substantial and compelling
reason for that departure. [Quotation marks, citations, and brackets omitted.]
5
To the extent that Monica argues that it was “impossible” for her to strike the prone Antonio
while four men were in the way pinning him to the couch, her argument is entirely unconvincing.
We see no reason why such a battery would be factually impossible. On the contrary, life
experience and common sense indicate that, during a physical altercation involving several
people, it is altogether possible for one person to make physical contact with another despite the
presence of others standing in the way. In any event, we will not replace our judgment for that
of the jury regarding what inferences can be fairly drawn from the evidence. See Kosik, 303
Mich. App. at 150-151.
6
Alleyne v United States, 133 S. Ct. 2151; 186 L. Ed. 2d 314 (2013).
7
United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005), abrogated in part as recognized by
People v Stokes, 312 Mich. App. 181, 199-200; 877 NW2d 752 (2015).
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Hence, this Court must analyze whether, in scoring OVs that increased the floor of the guidelines
range, the trial court relied on facts neither “necessarily found by the jury” nor “formally
admitted by the defendant to the court, in a plea or in testimony or by stipulation or by some
similar or analogous route.” People v Garnes, ___ Mich App ___, ___; ___ NW2d ___ (2016)
(Docket No. 324035); slip op at 3. If a defendant can demonstrate (1) “that [his or her]
guidelines minimum sentence range was actually constrained by the violation of the Sixth
Amendment,” and (2) that the resulting sentence was not an upward departure, the defendant
“establish[es] a threshold showing of the potential for plain error sufficient to warrant a [Crosby]
remand[.]” People v Lockridge, 498 Mich. 358, 395; 870 NW2d 502 (2015).
As in Garnes, here Monica and Veronica’s scores of 10 points for OV 4 were supported
by judicially found facts. Serious psychological injury to a victim that may require professional
treatment is not an element of first-degree home invasion, People v Wilder, 485 Mich. 35, 43; 780
NW2d 265 (2010), nor is it an element of misdemeanor assault and battery, see People v
Meissner, 294 Mich. App. 438, 453-454; 812 NW2d 37 (2011). Therefore, the existence of such
psychological injury is not a fact that was necessarily found by the jury. See Garnes, ___ Mich
App at ___; slip op at 3. Likewise, neither Monica nor Veronica made a formal in-court
admission to having caused a victim serious psychological injury. Thus, the trial court’s finding
that such an injury occurred was judicially made.
With OV 4 scored at 10 points, Monica and Veronica each had a total OV score of 31,
which, coupled with their PRV scores of zero, provided a guideline range of 15 to 25 months
under MCL 777.63. Their respective minimum sentences of 18 months fell within that guideline
range; thus, neither Monica nor Veronica received an upward departure sentence. Without the
10 points they were assessed for OV 4, Monica and Veronica’s total OV scores would have been
21 and yielded lowered guideline ranges of 12 to 20 months. Consequently, Monica and
Veronica have each established a threshold showing of potential plain error sufficient to warrant
a Crosby remand. See Lockridge, 498 Mich. at 395.
Accordingly, in Dockets No. 326933 and 327202, we remand to the trial court under the
Crosby procedure. “Given the possibility that defendant[s] could receive a more severe
sentence, [they] should be provided the opportunity to avoid resentencing if that is [their]
desire.” See Steanhouse, 313 Mich. App. at 327. Either “[d]efendant may elect to forgo
resentencing by providing the trial court with prompt notice of h[er] intention to do so. If
notification is not received in a timely manner, the trial court shall continue with the Crosby
remand procedure as explained in Lockridge.” See id. (quotation marks and citations omitted).
E. DIRECTED VERDICT
Premised on the assertion that she made such a motion, defendant Veronica argues that
the trial court erred by denying her motion for a directed verdict regarding the charge of first-
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degree home invasion. Because Veronica never made such a motion,8 her instant argument is
fatally flawed. The trial court could not have committed error requiring reversal by refusing to
grant a motion that Veronica never made. See People v Gonzalez, 256 Mich. App. 212, 224; 663
NW2d 499 (2003), disapproval on other grounds 469 Mich. 967 (2003) (“[E]rror requiring
reversal cannot be error to which the aggrieved party contributed by plan or negligence[.]”).
F. GREAT WEIGHT OF THE EVIDENCE
Defendant Veronica next argues that she is entitled to a new trial because the jury verdict
was against the great weight of the credible record evidence. In support, Veronica argues that
Diana’s testimony was “inherently unbelievable,” fraught with inconsistencies, and “cut out of
whole cloth for the purpose of using the government to punish family members [Diana] did not
like.” Thus, Veronica contends, we should discount Diana’s testimony entirely, vacate
Veronica’s convictions of first-degree home invasion and misdemeanor assault and battery as
against the great weight of the evidence, and remand this matter to the trial court for a new trial.
We disagree.
Because Veronica did not request a new trial based on the great weight of the evidence in
the trial court, this issue is unpreserved, People v Williams, 294 Mich. App. 461, 471; 811 NW2d
88 (2011), and our review is for plain error affecting Veronica’s substantial rights, People v Reid
(On Remand), 292 Mich. App. 508, 513; 810 NW2d 391 (2011). “A verdict is against the great
weight of the evidence if the evidence preponderates so heavily against the verdict that it would
be a miscarriage of justice to allow it to stand.” Id. “[A]bsent exceptional circumstances, issues
of witness credibility are for the jury, and the trial court may not substitute its view of the
credibility ‘for the constitutionally guaranteed jury determination thereof.’ ” People v Lemmon,
456 Mich. 625, 642; 576 NW2d 129 (1998), quoting Sloan v Kramer-Orloff Co, 371 Mich. 403,
411; 124 NW2d 255 (1963) (opinion of O’HARA, J.). Such “exceptional circumstances” are
situations where the testimony (1) “contradicts indisputable physical facts or laws,” (2) “is
patently incredible or defies physical realities,” (3) “is material and is so inherently implausible
that it could not be believed by a reasonable juror,” or (4) “has been seriously impeached”
leaving the remainder of the prosecution’s case “marked by uncertainties and discrepancies.”
Lemmon, 456 Mich. at 643-644 (quotation marks and citations omitted). “If the evidence is
nearly balanced, or is such that different minds would naturally and fairly come to different
conclusions, the judge may not disturb the jury findings although his judgment might incline him
the other way.” Id. at 644 (quotation marks and citation omitted). Hence, as a general rule,
“when testimony is in direct conflict and testimony supporting the verdict has been impeached, if
‘it cannot be said as a matter of law that the testimony thus impeached was deprived of all
probative value or that the jury could not believe it,’ the credibility of witnesses is for the jury.”
Id. at 643, quoting Anderson v Conterio, 303 Mich. 75, 79; 5 NW2d 572 (1942).
8
Veronica was charged with several counts, the first of which was first-degree home invasion.
Following the close of the prosecution’s proofs, Veronica’s attorney moved for “a directed
verdict on Counts 2, 3, 4, 5, 6,” and “on 9 and 10,” but never on the first count.
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In support of her instant claim of error, Veronica points out several discrepancies
between Diana’s testimony and her previous statements to law enforcement. Given such prior
inconsistent statements by Diana, Veronica argues that Diana’s testimony should be entirely
discounted by this Court. Veronica further argues that, absent Diana’s testimony, there is no
evidence that Veronica physically struck Diana or Antonio.
We do not find that the inconsistencies between Diana’s former statements and her trial
testimony render that testimony “patently incredible,” “so inherently implausible that it could not
be believed by a reasonable juror,” or so “seriously impeached” as to leave the remainder of the
prosecution’s case “marked by uncertainties and discrepancies.” In any event, Veronica’s
argument fails to recognize that the material portions of Diana’s testimony are entirely
uncontroverted. In other words, there is no record evidence that contradicts Diana’s testimony
that, on the night of the home invasion incident, Veronica entered the home without permission,
then battered both Diana and Antonio. There is, therefore, no evidence that preponderates
heavily against the jury’s verdict, and that verdict must be permitted to stand.
G. ASSESSMENT OF COURT COSTS
Finally, based on our Supreme Court’s decision in People v Cunningham, 496 Mich. 145;
852 NW2d 118 (2014), superseded by statute as recognized by Terrell, 312 Mich. App. at 461,
Veronica argues that the trial court lacked statutory authority to impose the $600 in court costs
that were assessed against Veronica as part of her sentence. We disagree.
Veronica’s reliance on Cunningham is misplaced because she fails to recognize that,
since Cunningham was decided, the Legislature curatively amended the pertinent statute, MCL
769.1k, with such amendment effective October 17, 2014. People v Konopka (On Remand), 309
Mich. App. 345, 354-355; 869 NW2d 651 (2015). As amended, MCL 769.1k(1)(b) provides, in
pertinent part:
(b) The court may impose any or all of the following:
* * *
(ii) Any cost authorized by the statute for a violation of which the
defendant entered a plea of guilty or nolo contendere or the court determined that
the defendant was guilty.
(iii) Until 36 months after the date the amendatory act that added
subsection (7)2 is enacted into law, any cost reasonably related to the actual costs
incurred by the trial court without separately calculating those costs involved in
the particular case, including, but not limited to, the following:
(A) Salaries and benefits for relevant court personnel.
(B) Goods and services necessary for the operation of the court.
(C) Necessary expenses for the operation and maintenance of court
buildings and facilities. [Emphasis added.]
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The amended language above “applies to all fines, costs, and assessments ordered under MCL
769.1k . . . after October 17, 2014, the effective date of the amendatory act.” Konopka (On
Remand), 309 Mich. App. at 357. Thus, at the time Veronica was sentenced, on March 12, 2015,
the trial court had statutory authority to assess her $600 in court costs under MCL
769.1k(1)(b)(iii) so long as those costs were reasonably related to the actual costs incurred by the
trial court. See id. at 357-358.
Here, unlike the defendant in Konopka, see id. at 360, Veronica does not “specifically”
dispute the reasonableness of the costs imposed; she merely argues that the trial court lacked
statutory authority to impose such costs. “Because defendant failed to object when the trial court
ordered her to pay costs and attorney fees, we review her challenge to the trial court’s imposition
of court costs for plain error.” Konopka (On Remand), 309 Mich. App. at 356. As such, for
Veronica to avoid forfeiture of this issue, she bears the burden of demonstrating (1) that error
occurred, (2) that such error was plain, and (3) that the plain error affected her substantial rights.
See People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999). Not only has Veronica
failed to argue that the trial court’s assessment of costs was unreasonable in relation to the actual
costs incurred, she has also failed to proffer any evidence that the court costs were unreasonable
in that regard. Thus, she has failed to carry her burden of demonstrating plain error that would
entitle her to relief.
III. CONCLUSION
In sum, in Dockets No. 326803 and 326888, regarding defendants Ismael and Javier
respectively, we affirm defendants’ convictions and sentences. In Dockets No. 326933 and
327202, we affirm defendants Monica and Veronica’s convictions but grant a Crosby remand.
We do not retain jurisdiction over any of the above appeals.
/s/ Michael F. Gadola
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
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