People of Michigan v. Duane Ross St Clair ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 27, 2017
Plaintiff-Appellee,
v No. 331183
Wayne Circuit Court
DUANE ROSS ST. CLAIR, LC No. 15-007055-01-FH
Defendant-Appellant.
Before: JANSEN, P.J., and MURPHY and BORRELLO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of assault with a dangerous
weapon (felonious assault), MCL 750.82, possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b, and brandishing a firearm in public, MCL 750.234e.
He was sentenced to two years’ imprisonment for the felony-firearm conviction and two years’
probation for each of the convictions for felonious assault and brandishing a firearm. The trial
court ordered that defendant serve his terms of probation concurrently with each other but
consecutively to the two-year prison term on the felony-firearm conviction. We affirm the
convictions but remand for the ministerial task of correcting the judgment of sentence so as to
reflect that the probation terms are to run concurrently with the prison sentence.
This case arises out of a road rage incident in which, after words and gestures had been
exchanged, defendant brandished a handgun in view of the female victim, as defendant and the
victim sat in their respective vehicles, which were temporarily stopped next to each other on the
roadway. Defendant, who, indisputably, was armed and had a concealed pistol license, informed
the responding police officer that he had not removed the gun from its holster during the episode
with the victim. However, at trial, defendant testified that he may have pulled his gun out during
the incident, but he questioned whether he even raised it high enough for the victim to see. On
appeal, defendant argues that there was insufficient evidence to support the felonious assault and
felony-firearm convictions,1 where the prosecution only proved beyond a reasonable doubt that
defendant had merely brandished a firearm. Defendant’s argument is based entirely on the
1
The predicate felony for the felony-firearm charge was felonious assault; brandishing a firearm
is a misdemeanor, MCL 750.234e(3).
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assertion that the prosecution did not prove beyond a reasonable doubt that he actually pointed
the gun at the victim. Implicit in defendant’s argument is acceptance of a conclusion that
felonious assault would be established if there were adequate proof that the gun was indeed
pointed at the victim.
Felonious assault requires proof of an assault with a dangerous weapon with the intent to
injure or to place the victim in reasonable apprehension of an immediate battery. People v
Bosca, 310 Mich App 1, 20; 871 NW2d 307 (2015); People v Avant, 235 Mich App 499, 505;
597 NW2d 864 (1999). First, defendant fails to cite any authority in support of the proposition
that felonious assault involving a firearm requires proof that the firearm was actually pointed at a
victim. We can imagine numerous scenarios where, under the totality of the circumstances, the
crime of felonious assault could be accomplished absent an offender directly pointing a weapon
at a victim. Regardless, the victim in this case testified, “He pointed it [the gun] at me and said
some things.” (Emphasis added.) She then reiterated that defendant “just pointed” the firearm at
her. This Court has observed that it is “reasonable to conclude that one who is confronted with a
pointed gun would suffer a ‘reasonable apprehension’ notwithstanding the fleeting duration of
the gunman’s aim.” People v McConnell, 124 Mich App 672, 679; 335 NW2d 226 (1983). To
the extent that defendant’s argument suggests that the victim’s testimony had to be corroborated
in order for the evidence to reach the level of proof beyond a reasonable doubt, there is no legal
authority supporting such a claim and none has been cited. Viewing the direct and circumstantial
evidence in a light most favorable to the prosecution, People v Reese, 491 Mich 127, 139; 815
NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002), taking into
consideration all reasonable inferences arising from the evidence, People v Carines, 460 Mich
750, 757; 597 NW2d 130 (1999), resolving all conflicts in the evidence in favor of the
prosecution, People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008), and deferring to
the jury’s assessment of the weight of the evidence and the credibility of the witnesses, People v
Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), a rational juror could have found beyond
a reasonable doubt that defendant pointed the gun at the victim and committed a felonious
assault, thereby also committing the crime of felony-firearm. Reversal is unwarranted.
With respect to sentencing, the trial court ordered that defendant has to first complete the
two-year prison sentence for the felony-firearm conviction before the two-year terms of
probation, which are concurrent to each other, commence. Stated otherwise, the concurrent
terms of probation run consecutively to the two-year prison stint. In People v Brown, 220 Mich
App 680, 681; 560 NW2d 80 (1996), the defendant “was sentenced to a term of two years'
imprisonment for the felony-firearm conviction and a consecutive term of five years' probation
for the felonious assault conviction.” After examining and construing the language in the felony-
firearm statute, MCL 750.227b, and the statutes concerning probation, the Brown panel held that
“the sentencing court erred in sentencing defendant to a consecutive sentence of probation in this
case.” Id. at 685. The Court focused and relied on the language in MCL 750.227b which
indicates that a felony-firearm sentence is to be served consecutively with and before a sentence
“of imprisonment” for the predicate felony. Id. at 683. The panel remanded the case for the
“ministerial task of correcting the judgment of sentence to reflect that defendant's sentences of
two years' imprisonment for the felony-firearm conviction and five years' probation for the
felonious assault are to run concurrently.” Id. at 685. Accordingly, we likewise remand our case
for the ministerial task of correcting the judgment of sentence so as to reflect that all of
defendant’s sentences – probation and incarceration – are to run concurrently.
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Affirmed with respect to defendant’s convictions, but remanded for the ministerial task of
correcting the judgment of sentence consistent with this opinion. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Stephen L. Borrello
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