People of Michigan v. Raymond Donald Blanchong ( 2021 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 12, 2021
Plaintiff-Appellee,
v No. 352578
Monroe Circuit Court
RAYMOND DONALD BLANCHONG, LC No. 19-245175-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions for first-degree felony murder,
armed robbery, and unlawful imprisonment. On appeal, defendant argues that he was denied a
fair trial because of the admission of identification and narration testimony that invaded the
province of the jury. Alternatively, defendant argues that his trial counsel was ineffective for
failing to object to the admission of identification and narration testimony that invaded the
province of the jury, and that there was insufficient evidence to support defendant’s convictions
for first-degree felony murder and armed robbery. We affirm.
I. BACKGROUND
This case arises from the death of James Wappner, whose body was found just north of the
Michigan-Ohio border on December 3, 2018. At trial, the prosecutor presented evidence that
Wappner was killed on December 2, 2018, while attempting to sell drugs to defendant and his
girlfriend, Jessica Lynn Morris,1 inside a vehicle in the parking lot of the Bedford Inn in Monroe
County, Michigan. During trial, witness testimony and physical evidence linked both defendant
and Morris to the crime.
1
Morris appealed her conviction and sentence in a separate appeal before this same panel. People
v Morris, Docket No. 351875.
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At trial, Matthew Richey testified that he discovered a body near a road just north of the
Michigan-Ohio border, and he called 911. Paramedic Matthew Dunbar arrived at the scene, and
determined that the body had no cardiac activity. Michigan State Police Trooper Eric Pearson
arrived at the scene after Dunbar, and he secured the area. Trooper Lance Tedora, who arrived at
the scene shortly after Trooper Pearson, noticed that the deceased individual’s pant pockets had
been pulled inside out. Trooper Jack Taeff brought a police canine to the scene to conduct an
article search, but he did not find any narcotics or other evidence related to a potential crime.
Trooper Taeff identified the deceased individual as Wappner by using a mobile fingerprint
scanner. Detective Sergeant Eric Darling collected the clothing found on Wappner’s body and
hung the clothing in an “evidence dryer” in order to preserve any trace evidence that may have
been on the clothing. Sergeant Darling did not find any drugs or money in Wappner’s clothes.
The Lenawee County medical examiner, Dr. Bader Cassin, performed the autopsy on
Wappner’s body. Dr. Cassin concluded that Wappner had received approximately 20 stab wounds.
Dr. Cassin opined that the stab wounds came from multiple angles but he was unable to determine
the length of the instrument that caused the wounds or whether more than one instrument was used.
Dr. Cassin also opined that Wappner would have been able to remain conscious for approximately
5 to 10 minutes after the wounds were inflicted.
Michigan State Police Detective Sergeant Michael Peterson testified that he investigated
Wappner’s death. After the discovery of Wappner’s body, he visited Wappner’s last known
residence and spoke with Wappner’s girlfriend, Shayla Wright. Upon interviewing Wright,
Sergeant Peterson learned that Wappner had two cell phones, one of which he used for the sale of
illegal drugs. Sergeant Peterson was able to track the location of Wappner’s cell phones, which
led him to Brian Walker, who was in possession of the cell phones and Wappner’s vehicle.
Walker’s statements led Sergeant Peterson to obtain surveillance video footage from the
Bedford Inn, taken on the night of Wappner’s death. The video was played for the jury and
Sergeant Peterson narrated portions of the footage. According to Sergeant Peterson, the
surveillance video showed that an individual driving a Chevy Avalanche arrived at the Bedford
Inn at approximately 11:30 p.m. on December 2, 2018. Sergeant Peterson later determined that
defendant owned a Chevy Avalanche.
While Sergeant Peterson was narrating the surveillance video, the prosecutor asked him,
“Now this particular moment in time right here, does this later prove to be important in identifying
defendant?” Sergeant Peterson responded, “Yes, sir, because you can see if you were to stop that,
that it’s a larger white male with a beard driving that vehicle and when we identified the –
[defendant], [he] fit that description.” The prosecutor later showed Detective Sergeant Peterson a
still photograph of the individual driving the vehicle taken from the surveillance video footage.
Sergeant Peterson stated that the photograph depicted “a larger white male with a beard driving
that vehicle.” The photograph was admitted as an exhibit. Sergeant Peterson went on to state that
the surveillance video showed Wappner exit the Bedford Inn and enter the Chevy Avalanche on
two occasions. On the second occasion, the Chevy Avalanche began to shake back and forth while
Wappner was inside. Shortly after this occurred, the driver quickly left the parking lot with
Wappner still inside the Chevy Avalanche.
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Shayla Wright testified that she was dating Wappner before his death, and she admitted
that Wappner made money by selling illegal drugs. According to Wright, when Wappner left
home about one day before his death, he had between $400 and $500 in cash on his person, as well
as powder cocaine, crack cocaine, marijuana, and ecstasy. Wright also testified that she recognized
defendant because she had witnessed Wappner sell drugs to defendant and Morris on three prior
occasions. According to Wright, on two of those occasions, defendant and Morris did not have
enough money to complete the purchase from Wappner. On cross-examination, Wright testified
that Wappner generally carried the drugs he was selling in his front pockets.
Walker also testified on behalf of the prosecutor. Walker stated that he arrived at the
Bedford Inn with Wappner at about 11:30 p.m. on the night in question. After arriving at the
Bedford Inn, Wappner went outside to sell cocaine to two individuals. Wappner returned shortly
after doing so and told Walker that the individuals needed to retrieve money from a nearby ATM.
At that time, Walker noticed that Wappner had about $200 cash in his pocket, along with a bag of
cocaine approximately the size of a sandwich bag. Wappner left the room again but did not return.
Walker waited for him until about 2:30 a.m., and then left the motel in Wappner’s vehicle.
Sergeant Peterson testified further regarding his investigation into Wappner’s death, and
determined that defendant checked in to a Red Roof Inn at 1:23 a.m. on December 3, 2018.
Sergeant Peterson obtained surveillance video footage from the Red Roof Inn which he described
as showing defendant and another individual, who was later identified as Jessica Morris, leaving
the Red Roof Inn on the morning of December 3, 2018, at 11:10 a.m. Sergeant Peterson
determined that defendant and Morris then went to a nearby car wash. According to Sergeant
Peterson, surveillance video footage from the car wash showed defendant spraying the inside of
the Chevy Avalanche with water and washing the inside and outside of the vehicle for
approximately one hour.
Sergeant Peterson testified that defendant and Morris also stayed at a Quality Inn in
Findlay, Ohio between December 3, 2018 and December 5, 2018. Because the audio quality was
poor, Detective Sergeant Peterson narrated surveillance video footage from the Quality Inn and
stated that defendant can be heard arguing with an employee because the employee found a “burn
hole” in a blanket in defendant’s room.
After leaving the Quality Inn, defendant and Morris drove to Topeka, Kansas, where they
sold Morris’s cell phone. While driving through Logan County, Kansas, defendant and Morris
were pulled over for a traffic stop. Sergeant Peterson obtained the body-camera footage from the
officer who performed the traffic stop. According to Sergeant Peterson, defendant told the officer
that he was driving to Denver, Colorado, to attend his aunt’s funeral. Ultimately, the officer who
performed the traffic stop gave defendant a warning for the alleged traffic violation.
On December 21, 2018, defendant and Morris were arrested in Aurora, Colorado, pursuant
to arrest warrants that had been issued in relation to the investigation of Wappner’s death. A police
report from the Aurora Police Department stated that on December 22, 2018, defendant “wished
to have photographs taken of some injuries he had.” Defendant stated that he was attacked and
bitten by a person on his right arm, back, and neck, and the injuries were related to “his case.”
When defendant was asked whether any other injuries needed to be photographed, defendant
“spontaneously uttered[,] no, they were all on my right side. It all happened inside the car.”
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On cross-examination, Sergeant Peterson acknowledged that he was not able to identify
defendant solely based upon the still photograph taken from the surveillance video footage at the
Bedford Inn. Sergeant Peterson explained, however, that he identified defendant based on the
totality of the circumstances as well as defendant’s general characteristics and clothing.
After Sergeant Peterson’s testimony concluded, Moises Paniagua testified on behalf of the
prosecutor. Paniagua testified that he was employed as a maintenance worker at the Quality Inn
in Findlay, Ohio in December 2018. At some point around December 5, 2018, Paniagua was asked
to fix a clogged toilet in room 401 of the Quality Inn. Paniagua was able to fix the toilet and
retrieved a cell phone from the inside of the toilet. Paniagua kept the cell phone for several days
but ultimately gave it to Sergeant Peterson. When Paniagua’s testimony concluded, the prosecutor
called Sergeant Peterson as a witness for a second time. Sergeant Peterson testified that he
retrieved the cell phone from Paniagua, and determined that it belonged to defendant.
Joni Johnson, a forensic scientist at the Michigan State Police forensic laboratory, testified
as an expert in crime-scene processing and DNA analysis. Johnson searched the Chevy
Avalanche, and photographed what appeared to be bloodstains on the driver’s seat, behind the
driver’s seat, behind the front passenger seat, on the back seat, and on the ceiling of the vehicle.
Johnson determined that the stains in the vehicle were likely caused by blood, and she sent the
samples to the laboratory for DNA analysis.
Amber Smith, another forensic scientist for the Michigan State Police, also testified as an
expert in crime-scene processing and DNA analysis. Smith collected and analyzed evidence found
in the rooms where defendant and Morris were believed to have stayed in the Quality Inn and the
Red Roof Inn. Smith collected samples of what appeared to be bloodstains that were found in
those rooms. She testified that DNA from defendant and Morris was present in the samples taken
from the Quality Inn. Smith also analyzed the blood samples that Johnson obtained from the
Chevy Avalanche. Smith concluded that Wappner’s DNA was present in three locations
throughout the vehicle, and that DNA traces from defendant and Morris were present in a sample
taken from the rear floor mat of the vehicle.
Rachael Starr, an intelligence analyst at the Michigan Intelligence Operations Center, was
qualified as an expert witness in the analysis and mapping of cellular records, and she testified
regarding defendant’s cell phone records. Starr testified that, as part of the investigation into
Wappner’s death, she mapped the locations of defendant’s cell phone and Morris’s cell phone.
She stated that, between 11:16 p.m. and 11:59 p.m. on the night of Wappner’s death, the cell
phones of both defendant and Morris connected to cellular towers near the Bedford Inn. Between
12:00 a.m. and 12:29 a.m. on December 3, 2018, the location of defendant’s cell phone mimicked
the location of Morris’s cell phone. During this period, Morris’s cell phone connected to a cellular
tower near the location where Wappner’s body was found. Starr stated that defendant’s cell phone
likely lost battery or was turned off after 12:30 a.m., because the cell phone did not connect to
cellular towers between 12:30 a.m. and 3:29 a.m. Between 3:30 a.m. and 1:45 p.m., Morris’s cell
phone connected to a cellular tower near the Red Roof Inn. Between 1:46 p.m. and 2:59 p.m.,
Morris’s cell phone connected to a cellular tower near the carwash where defendant washed his
vehicle. At 5:25 p.m., defendant’s cell phone connected to a cellular tower in Findlay, Ohio near
the Quality Inn. Defendant’s cell phone never connected to any additional cellular towers.
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Michigan State Police Detective Sergeant Larry Rothman also testified on behalf of the
prosecutor. On December 3, 2018, Sergeant Rothman searched the area surrounding the location
where Wappner’s body was found. Sergeant Rothman did not find any drugs, money, or weapons
in the area. Sergeant Rothman searched the area surrounding the location where Wappner’s body
was found for a second time on December 4, 2018, and did not find any drugs, money, or weapons.
Sergeant Rothman also searched defendant’s vehicle in Aurora, Colorado. With the exception of
some coins, Sergeant Rothman did not find any money in the vehicle.
The jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b),2 armed
robbery, MCL 750.529, and unlawful imprisonment, MCL 750.349b. The trial court sentenced
defendant, as a second-offense habitual offender, MCL 769.10, to life imprisonment without
parole for first-degree felony murder, 300 to 600 months in prison for armed robbery, and 120 to
270 months in prison for unlawful imprisonment. This appeal followed.
II. ANALYSIS
On appeal, defendant argues that he was denied a fair trial because Sergeant Peterson’s
testimony invaded the province of the jury, defense counsel was ineffective for failing to object to
Sergeant Peterson’s testimony that invaded the province of the jury, and there was insufficient
evidence to support defendant’s convictions for first-degree felony murder and armed robbery.
We disagree with each of defendant’s arguments.
A. INVASION OF PROVINCE OF THE JURY
Defendant first argues that Sergeant Peterson improperly invaded the province of the jury
when he offered his opinion that defendant was the person depicted in surveillance video footage
taken at the Bedford Inn, the Red Roof Inn, and the car wash. Defendant also argues that Sergeant
Peterson improperly invaded the province of the jury when he narrated surveillance video footage
taken at the Quality Inn.
“To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). During trial, defendant’s counsel did not
object to Sergeant Peterson’s testimony concerning the surveillance video footage on the basis that
the testimony invaded the province of the jury. Thus, this issue is unpreserved, and we review it
for plain error affecting the defendant’s substantial rights. See People v Benton, 294 Mich App
191, 202; 817 NW2d 599 (2011). “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious,
2
Defendant was charged with open murder under MCL 750.316, which includes first-degree
felony murder. Although the felony information did not specifically list the predicate offenses,
the trial court instructed the jury that the sole predicate offense for first-degree felony murder was
armed robbery. Neither party raised any objection to the jury instruction regarding first-degree
felony murder. Jurors are presumed to follow their instructions. People v Unger, 278 Mich App
210, 235; 749 NW2d 272 (2008). Thus, contrary to the prosecutor’s assertion otherwise, the sole
predicate offense for first-degree felony murder was armed robbery.
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3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). “The third requirement generally requires a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Id.MRE 701 permits a lay witness to provide testimony in the form of an opinion if the opinion
is “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of
the witness’ testimony or the determination of a fact in issue.” MRE 701. A witness cannot,
however, “express an opinion on the defendant’s guilt or innocence of the charged offense.”
People v Fomby, 300 Mich App 46, 53; 831 NW2d 887 (2013) (cleaned up). For this reason, if a
witness is in no better position than the jury to identify a defendant in a video or still photograph,
the witness’s opinion testimony identifying the person is generally inadmissible as an invasion of
the province of the jury. Id. at 52-53. Conversely, if a witness is in a better position than the jury
to identify a defendant in a video or still photograph, the witness’s opinion testimony does not
invade the province of the jury. Id. at 52.
1. THE BEDFORD INN
Defendant first challenges Sergeant Peterson’s testimony concerning the surveillance
video footage taken at the Bedford Inn.
While Sergeant Peterson was narrating the surveillance video footage taken at the Bedford
Inn, the prosecutor asked, “Now this particular moment in time right here, does this later prove to
be important in identifying defendant?” Sergeant Peterson responded, “Yes, sir, because you can
see if you were to stop that, that it’s a larger white male with a beard driving that vehicle and when
we identified the – [defendant], [he] fit that description.” The prosecutor later showed Sergeant
Peterson a still photograph of the individual driving the vehicle taken from the surveillance video
footage at the Bedford Inn, and Sergeant Peterson stated that the photograph depicted “a larger
white male with a beard driving that vehicle.” During this exchange, Sergeant Peterson did not
definitively state that defendant was the individual depicted in the surveillance video footage.
Instead, Sergeant Peterson stated that when defendant was later identified as a suspect, his
characteristics matched those of the individual in the video. This testimony was properly admitted
as lay witness testimony because it was rationally based on Sergeant Peterson’s perception and
was helpful to a clear understanding of how investigators ultimately identified defendant.
Accordingly, plain error did not occur when Sergeant Peterson’s testimony concerning the
surveillance video footage taken at the Bedford Inn was presented at trial.
2. THE QUALITY INN
Next, defendant challenges Sergeant Peterson’s testimony concerning the surveillance
video footage taken at the Quality Inn on the basis that Sergeant Peterson invaded the province of
the jury by narrating the video.
While Sergeant Peterson was narrating the surveillance video footage taken at the Quality
Inn, he stated that there were angry discussions between defendant and an employee because of a
burn hole found in a blanket in defendant’s room. Defendant asserts that this testimony invaded
the province of the jury because the jury was capable of viewing the video and gauging whether
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any angry discussions occurred.3 Sergeant Peterson’s testimony was rationally based on his
perception of the video and was helpful to provide a clear understanding of the events that
transpired at the Quality Inn. Indeed, the prosecutor stated that the conversation was difficult to
discern due to poor audio, and Sergeant Peterson’s testimony provided context for the apparent
disagreement. Accordingly, a clear or obvious error did not occur when Sergeant Peterson’s
testimony concerning the surveillance video footage taken at the Quality Inn was presented at trial.
3. THE RED ROOF INN AND THE CAR WASH
Further, defendant challenges Sergeant Peterson’s testimony concerning the surveillance
video footage taken at the Red Roof Inn and the car wash on the basis that Sergeant Peterson
invaded the province of the jury by identifying defendant. Although this testimony was improper,
we conclude that the error did not affect the outcome of the proceedings.
While Sergeant Peterson was narrating the surveillance video footage taken at the Red
Roof Inn, he specifically identified defendant as the individual checking in at the front desk.
Similarly, while the sergeant was narrating the surveillance video footage taken at the car wash,
he specifically identified defendant as the individual washing the interior and exterior of a Chevy
Avalanche for approximately one hour. In contrast to his testimony concerning the surveillance
video footage taken at the Bedford Inn, the sergeant definitively stated that defendant was the
individual depicted in the surveillance video footage. Considering that the videos were played for
the jury at trial, the sergeant was in no better position than the jury to identify a person in the
videos. Thus, Sergeant Peterson’s testimony invaded the province of the jury.
Nevertheless, the portions of Sergeant Peterson’s testimony that invaded the province of
the jury did not affect the outcome of the proceedings. At trial, the prosecutor presented other
evidence concerning defendant’s whereabouts following Wappner’s death that linked defendant
to the crime. Notably, the jury could have determined that defendant checked in at the Red Roof
Inn and subsequently washed the interior and exterior of his vehicle based upon intelligence
analyst Rachel Starr’s testimony regarding the location of defendant’s cell phone following
Wappner’s death and the surveillance video footage that depicted an individual matching
defendant’s description washing the same vehicle model that defendant owned and was found
driving when he was arrested. Moreover, the prosecutor presented evidence that defendant’s and
Morris’s cell phones both connected to cellular towers near the Bedford Inn at the time Wappner
was last seen alive. Morris made several phone calls to Wappner during this period, and the
surveillance video footage at the Bedford Inn depicted Wappner entering the same vehicle model
that defendant owned and was found driving when he was arrested. The video appeared to show
the inside of the vehicle, and the prosecutor presented evidence that Wappner’s DNA was later
found in samples taken from what appeared to be blood stains in defendant’s vehicle. Further,
Wappner’s girlfriend testified that Wappner sold defendant and Morris drugs on three prior
occasions. On two of the occasions, defendant and Morris did not have enough money to purchase
the drugs. Lastly, bite marks on the right side of defendant’s body were photographed by police
3
Notably, defendant does not argue that Sergeant Peterson’s identification of the individual in the
surveillance video footage at the Quality Inn as defendant invaded the province of the jury.
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after defendant’s arrest, thereby indicating that defendant had been involved in a struggle. This
evidence, coupled with defendant’s apparent attempt to flee with Morris after Wappner’s death,
strongly supported the jury’s verdict. Accordingly, the portions of Sergeant Peterson’s testimony
that invaded the province of the jury did not affect the outcome of the proceedings, and defendant
has failed to establish plain error affecting his substantial rights.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that his trial counsel was ineffective for failing to object to the
admission of Sergeant Peterson’s testimony concerning the surveillance video footage.
Defendant’s argument is unpersuasive.
To preserve a claim for ineffective assistance of counsel for appellate review, a defendant
must move in the trial court for a new trial or an evidentiary hearing, People v Head, 323 Mich
App 526, 539; 917 NW2d 752 (2018), or file in this Court a motion for remand to the trial court
for a Ginther hearing, People v Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d ___ (2020)
(Docket No. 347369); slip op at 6. Defendant did not move in the trial court for a new trial or an
evidentiary hearing and did not file in this Court a motion to remand for a Ginther hearing. Thus,
this issue is unpreserved.
This Court reviews unpreserved claims of ineffective assistance of counsel for mistakes
that are apparent from the record. Head, 323 Mich App at 539. “Whether a defendant has been
deprived of the effective assistance of counsel presents a mixed question of fact and constitutional
law.” People v Johnson, 315 Mich App 163, 174; 889 NW2d 513 (2016). A trial court’s findings
of fact, if any, are reviewed for clear error, while questions of constitutional law are reviewed de
novo. Id. A trial court’s finding is clearly erroneous if the reviewing court is left with a definite
and firm conviction that a mistake has been made. People v Lopez, 305 Mich App 686, 693; 854
NW2d 205 (2014).
A defendant seeking relief based upon a claim of ineffective assistance of counsel bears
the burden of showing “(1) that trial counsel’s performance was objectively deficient, and (2) that
the deficiencies prejudiced the defendant.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249
(2018). “A counsel’s performance was deficient if it fell below an objective standard of
professional reasonableness. The performance prejudiced the defense if it is reasonably probable
that, but for counsel’s error, the result of the proceeding would have been different.” People v
Fyda, 288 Mich App 446, 450; 793 NW2d 712 (2010). There is a strong presumption that
counsel’s conduct fell within a wide range of professional assistance. People v LeBlanc, 465 Mich
575, 578; 640 NW2d 246 (2002). Thus, defendant must overcome the strong presumption that the
challenged action might be considered sound trial strategy. Id.Initially, we conclude that defense counsel was not ineffective for failing to object to
Sergeant Peterson’s testimony concerning the surveillance video footage taken at the Bedford Inn
and the Quality Inn. As explained earlier, this testimony did not invade the province of the jury
and was admissible as lay witness testimony under MRE 701. Accordingly, any objection to its
admission would have been meritless. “Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App
192, 201; 793 NW2d 120 (2010).
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Further, defendant’s trial counsel was not ineffective for failing to object to Sergeant
Peterson’s testimony concerning the surveillance video footage taken at the Red Roof Inn and the
car wash. Although trial counsel’s performance was objectively deficient in this regard, it is not
reasonably probable that, but for trial counsel’s error, the result of the proceeding would have been
different.
According to the prosecutor’s theory of the case, defendant stabbed Wappner multiple
times in defendant’s vehicle and subsequently fled to the Red Roof Inn, after which he washed the
interior and exterior of his vehicle at the nearby car wash. Sergeant Peterson’s identification of
defendant as the individual in the surveillance video footage may have made it more likely for the
jury to identify defendant as the individual in the surveillance video footage and to accept the
prosecutor’s theory of the case. Thus, trial counsel’s failure to object to the sergeant’s
identification of defendant as the individual in the surveillance video footage did not constitute
sound trial strategy, and counsel’s performance fell below an objective standard of professional
reasonableness.
Nevertheless, it is not reasonably probable that, but for trial counsel’s error, the result of
the proceeding would have been different. The jury could have determined that defendant checked
in at the Red Roof Inn and subsequently washed the interior and exterior of his vehicle based upon
Starr’s testimony regarding the location of defendant’s cell phone, the surveillance video footage
depicting the actions of an individual matching defendant’s description, and the fact that defendant
was found driving the same vehicle when he was arrested. Moreover, the prosecutor presented
evidence that Wappner’s DNA was later found in samples taken from what appeared to be blood
stains in defendant’s vehicle, and the bite marks on defendant’s body indicated that defendant had
been involved in a struggle. This evidence, coupled with defendant’s apparent attempt to flee with
Morris after Wappner’s death, strongly supported the jury’s verdict. Thus, it is not reasonably
probable that, but for trial counsel’s error, the result of the proceeding would have been different.
For this reason, defendant’s trial counsel was not ineffective for failing to object to Sergeant
Peterson’s testimony concerning the surveillance video footage taken at the Red Roof Inn and the
car wash.
C. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that there was insufficient evidence to support defendant’s
convictions for armed robbery and first-degree felony murder. This argument is without merit.
“This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence”
supporting his conviction, reviewing the evidence “in a light most favorable to the prosecution to
determine whether a rational trier of fact could find that the prosecution proved the crime’s
elements beyond a reasonable doubt.” People v Miller, 326 Mich App 719, 735; 929 NW2d 821
(2019).
1. ARMED ROBBERY
Defendant argues that the prosecutor presented insufficient evidence to support his
conviction for armed robbery because the prosecutor failed to establish that defendant committed
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a larceny. To convict a defendant of armed robbery under MCL 750.529, it is necessary to
establish the following:
(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. [People v
Gibbs, 299 Mich App 473, 490-491; 830 NW2d 821 (2013) (cleaned up).]
The phrase “in the course of committing a larceny” includes “acts that occur in an attempt to
commit the larceny, or during commission of the larceny, or in flight or attempted flight after the
commission of the larceny, or in an attempt to retain possession of the property.” MCL 750.530(2).
Although the armed-robbery statute does not define the term “dangerous weapon,” MCL 750.529,
knives are generally considered to be dangerous weapons. See People v Banks, 454 Mich 469,
473; 563 NW2d 200 (1997).
On appeal, defendant argues that the evidence presented at trial was too speculative to
establish that a larceny occurred. Although the prosecutor presented little direct evidence
establishing that defendant committed a larceny, he presented circumstantial evidence that
defendant did so. When Wappner was last seen alive, he was in possession of drugs and at least
$200 in cash. When Wappner’s body was found the following day, his pockets were turned inside
out, there were no drugs or cash found on his person, and his body was riddled with 20 stab
wounds. This evidence, coupled with the evidence linking defendant to the crime, indicates that
defendant took the money and drugs from Wappner by force while using a knife. “Circumstantial
evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of
the elements of a crime.” Carines, 460 Mich App at 757 (cleaned up). The prosecutor presented
sufficient evidence to support defendant’s conviction for armed robbery.
2. FELONY MURDER
Lastly, defendant argues that there was insufficient evidence to support his conviction for
first-degree felony murder because there was insufficient evidence to support his conviction for
the predicate offense of armed robbery.
At the outset, defendant only challenges the sufficiency of the evidence supporting the third
element of first-degree felony murder. Thus, our analysis will be limited to the scope of
defendant’s argument. The elements of first-degree felony murder are (1) the killing of a human
being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or
great bodily harm with knowledge that death or great bodily harm was the probable result, and (3)
while committing, attempting to commit, or assisting in the commission of any of the felonies
specifically enumerated in MCL 750.316(1)(b). People v Smith, 478 Mich 292, 318-319; 733
NW2d 351 (2007). Larceny is a felony specifically enumerated in the statute. MCL 750.316(1)(b).
Defendant has failed to show that there was insufficient evidence to support his conviction for
first-degree felony murder. As previously stated, the prosecutor presented sufficient evidence to
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support defendant’s conviction for armed robbery, which requires a finding that a larceny occurred.
For this reason, there was sufficient evidence to support defendant’s conviction for first-degree
felony murder.
Affirmed.
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ Brock A. Swartzle
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