20231130_C363443_48_363443.Opn.Pdf ( 2023 )

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
UNPUBLISHED
In re CW, Minor. November 30, 2023
No. 363443
Wayne Circuit Court
Family Division
LC No. 2022-000478-DL
In re DJ, Minor.
No. 363533
Wayne Circuit Court
Family Division
LC No. 2022-000476-DL
Before: BOONSTRA, P.J., and GADOLA and MALDONADO, JJ.
PER CURIAM.
In these consolidated appeals arising from delinquency proceedings, the trial court
adjudicated respondents responsible for unarmed robbery, MCL 750.530; larceny from the person,
MCL 750.357; and assault and battery, MCL 750.81, adopting the recommendation of the trial
court referee after a bench trial. Respondents appeal as of right the trial court’s orders of
adjudication. We affirm.
I. FACTS
On November 6, 2021, eighth-grade student JM was walking alone when he was attacked
by respondents and a third unidentified person wearing a ski mask. JM recognized respondents as
classmates from school; JM testified that he had known respondent CW for about one year and
had known respondent DJ since third or fifth grade. JM testified that on the day of the attack, he
was turning a corner when respondents and the masked person “jumped” him, punching him in the
head, face, legs, and torso. JM testified that CW began to shout “give me the money, give me the
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bread.” One of the three attackers then grabbed a $20 bill that had fallen from JM’s jacket pocket,
and the three attackers ran away. JM sustained injuries to his hearing implant as a result of the
attack. JM reported the attack to the police. Detroit Police Officer Valerie Fraiser responded and
observed JM’s swollen face and dried blood on the area around his hearing implant. Officer Fraiser
testified that JM told her that the perpetrators took a $20 bill from his pocket during the attack.
The money was not returned to JM.
Respondents were charged with unarmed robbery, larceny from the person, and assault and
battery. In the course of delinquency proceedings, a bench trial was held before the trial court
referee. At the bench trial, JM identified DJ and CW, who were present at the proceeding, as two
of the attackers. CW testified that he was not one of the attackers, but that while walking home
that day, he saw JM being attacked by three unknown people wearing ski masks. DJ similarly
testified that while walking home from basketball practice that day, he saw three masked people
follow JM and punch him. At the conclusion of the bench trial, the referee found each respondent
responsible for unarmed robbery, larceny from the person, and assault and battery. Respondents
requested a review of the referee’s recommendation, arguing that the evidence was insufficient to
support the findings. The trial court affirmed the referee’s ruling in each case. Respondents now
appeal.
II. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Respondents contend that the trial court improperly found them responsible for unarmed
robbery, larceny from the person, and assault and battery because there was insufficient evidence
to support the adjudications. We disagree.
Juvenile delinquency proceedings are not criminal prosecutions, but are closely analogous.
In re Kerr, 323 Mich App 407, 412; 917 NW2d 408 (2018). In juvenile delinquency proceedings,
the standard of proof at the adjudicative stage, as in adult criminal proceedings, is proof beyond a
reasonable doubt. MCR 3.942(C); In re Whittaker, 239 Mich App 26, 28; 607 NW2d 387 (1999).
We review de novo a challenge to the sufficiency of the evidence presented at trial. People v
Wang, 505 Mich App 239, 251; 952 NW2d 334 (2020). In reviewing the sufficiency of the
evidence, we view the evidence in the light most favorable to the prosecution, and determine
whether a rational trier of fact could find that the essential elements of the crime were proven
beyond a reasonable doubt. People v Smith, 336 Mich App 297, 303; 970 NW2d 450 (2021).
Circumstantial evidence and the reasonable inferences drawn from the evidence can provide
sufficient evidence to prove the elements of an offense. People v Lymon, 342 Mich App 46, 56;
993 NW2d 24 (2022). We do not disturb a trier of fact’s determination regarding the weight of
the evidence or witness credibility. People v Stevens, 306 Mich App 620, 628; 858 NW2d 98(2014).
1. IDENTITY AND CREDIBILITY
Respondents contend that the prosecution presented insufficient evidence to demonstrate
that they were among the attackers. Due process requires that the prosecution prove each element
of an offense beyond a reasonable doubt, Smith, 336 Mich App at 308, and identity is an element
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of every crime. People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). In this case, JM
consistently identified DJ and CW as two of the attackers. JM was acquainted with respondents
because they were school classmates; he had known CW for approximately one year and had
known DJ since third or fifth grade. By contrast, respondents testified that they were not the
attackers, challenging JM’s credibility. DJ and CW each testified that while walking home
separately on that day, each of them saw JM being attacked by three unknown people.
Respondents argue that JM’s testimony is insufficient to prove that they were the attackers
because they refuted JM’s testimony. The determination of witness credibility is for the trier of
fact, People v Anderson, 341 Mich App 272, 277; 989 NW2d 832 (2022), and we defer to the trial
court regarding the weight of the evidence and credibility of witnesses, SP v BEK, 339 Mich App
171, 187; 981 NW2d 500 (2021). Moreover, conflicting testimony and questions of witness
credibility generally are an insufficient basis to grant a new trial. Anderson, 341 Mich App at 277.
Here, the trial court found JM’s testimony credible, and respondents’ testimony lacking in
credibility. JM reported the attack to police soon after it occurred and identified respondents as
two of the attackers. The responding officer observed that JM showed signs of injury consistent
with the described attack. At trial, JM testified consistently with his earlier report that respondents
were two of the attackers; JM was well-acquainted with respondents and identified them at trial.
We conclude that the record provides ample support for the trial court’s finding that respondents
were among JM’s attackers.
2. UNARMED ROBBERY
The elements of unarmed robbery, MCL 750.530, are (1) felonious taking of the property
of another, (2) by force or violence or assault or putting in fear, (3) while unarmed. People v
Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). Unarmed robbery is a specific intent
crime which requires the prosecution to establish that the defendant intended to permanently
deprive the owner of property. Id. However, because intent may be difficult to prove, only
minimal circumstantial evidence is necessary to show a defendant entertained the requisite intent.
Id. at 177-178. Every person involved in the commission of an offense, whether directly or by
aiding and abetting, may be prosecuted as if he directly committed the offense. MCL 767.39. To
convict a defendant under an aiding and abetting theory, the prosecution must demonstrate that
“(1) the crime charged was committed by the defendant or some other person; (2) the defendant
performed acts or gave encouragement that assisted the commission of the crime; and (3) the
defendant intended the commission of the crime or knew that the principal intended its commission
at the time the defendant gave aid and encouragement.” People v Robinson, 475 Mich 1, 6; 715
NW2d 44 (2006).
The evidence in this case demonstrates that respondents and a third person took JM’s
money by force while assaulting him and apparently while unarmed. One of the assailants took
JM’s money, and all the assailants used violence against JM during the commission of the larceny.
During the assault, CW shouted “give me the money, give me the bread,” demonstrating the intent
to take JM’s money. Construing this evidence in the light most favorable to the prosecution, a
reasonable trier of fact could find beyond a reasonable doubt that respondents were responsible for
unarmed robbery.
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3. LARCENY FROM THE PERSON
A person is guilty of larceny from the person when he or she steals from the person of
another. MCL 750.357. To prove larceny from the person, the prosecution must demonstrate the
trespassory taking and carrying away of the personal property of another with the intent to steal
that property, and that the property was taken away from the victim’s physical possession or
immediate proximity. People v Smith-Anthony, 494 Mich 669, 672; 837 NW2d 415 (2013).
Again, every person “concerned in the commission of an offense, whether he directly commits the
act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter
be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed
such offense.” MCL 767.39.
In this case, JM testified that respondents and a third, unidentified person in a ski mask
attacked him. JM testified that during the attack, CW shouted “give me the money, give me the
bread.” JM testified that one of the attackers grabbed a $20 bill that had been in JM’s jacket
pocket. Officer Fraiser testified that JM reported that the perpetrators reached into his pocket and
stole a $20 bill during the attack. Regardless of whether the attackers took the $20 from JM’s
pocket or from the ground where they were assaulting JM, JM’s property was taken from his
physical person or his immediate proximity and was never recovered. Although JM was unable
to identify which of his attackers took his money, the evidence shows: (1) one of the three attackers
took JM’s money; (2) respondents took part in the assault that facilitated the larceny; (3) CW had
the intent to take JM’s money because he yelled “give me the money, give me the bread”; and (4)
DJ knew, based on CW’s statement, that CW intended to take JM’s money. Because the evidence
supports a finding that respondents committed larceny from the person, the trial court did not err
by finding respondents responsible.
4. ASSAULT AND BATTERY
Assault is defined as “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) (quotation marks and citations omitted). Battery is defined as “an
intentional, unconsented and harmful or offensive touching of the person of another, or of
something closely connected with the person.” Id. (citation omitted). Every battery necessarily
includes an assault because “[a] battery is the consummation of the assault.” People v Terry, 217
Mich App 660, 662; 553 NW2d 23 (1996). In this case, JM testified that respondents and a third
person punched him in his head, face, legs, and torso. As a result of the attack, JM sustained
injuries to his head and face, including his hearing implant. This constitutes an assault and battery,
as it was an unconsented and harmful touching. See Starks, 473 Mich at 234.
CW argues that the prosecution presented insufficient evidence to find him responsible for
assault and battery because (1) JM admitted he was uninjured, (2) JM’s glasses were not knocked
off or damaged, and (3) JM never called for help or told the individuals to stop the attack. The
record indicates, however, that JM did not admit he was uninjured as a result of the attack; rather,
JM denied that he was still injured at the time of trial. Regardless, because it does not matter
whether the battery caused injury, Terry, 217 Mich App at 663, CW’s claim lacks merit.
Additionally, that JM’s glasses were not knocked off or damaged during the assault does not negate
or disprove JM’s testimony that CW hit JM. JM testified that respondents attacked him, and
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Officer Fraiser testified that JM sustained injuries consistent with the attack described by JM.
Finally, that JM did not call for help or tell the individuals to stop does not indicate JM’s consent;
JM’s testimony demonstrates that the assault was unconsented. Because the evidence supports the
trial court’s finding that respondents were responsible for assault and battery, respondents are not
entitled to relief.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
/s/ Allie Greenleaf Maldonado
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