People of Michigan v. Anton Dequnta Brooks

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 24, 2018
Plaintiff-Appellee,
v No. 336036
Oakland Circuit Court
ANTON DEQUNTA BROOKS, LC No. 2016-258196-FC
Defendant-Appellant.
Before: CAVANAGH, P.J., and STEPHENS and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions of assault with intent to do great bodily
harm, MCL 750.84, armed robbery, MCL 750.529, felon in possession of a firearm, MCL
750.224f, and three counts of possession of a firearm in the commission of a felony, MCL
750.227b. We affirm.
In February 2016, Sara Gatzmeier went with her friend and neighbor, Ronald Day, to find
a used vehicle for her to purchase. Day drove to a house where defendant was located and
defendant got into the vehicle, sitting in the rear passenger seat behind Gatzmeier. Gatzmeier
had seen defendant with Day on five or more previous occasions. After Day began driving,
defendant immediately attacked Gatzmeier with a handgun and yelled at her to give him her
money. Gatzmeier gave defendant her purse and tried to open the passenger door to escape the
vehicle at which time defendant fired two or three shots. One bullet struck an area near
Gatzmeier’s head and damaged the neck and collar area of her coat. The second bullet struck her
left elbow. Gatzmeier was able to jump from the moving vehicle and ran. Gatzmeier received
help from a stranger and the police were called. She was taken to the hospital for treatment of
the gunshot wound and later required surgery. Day was arrested on the same day and defendant
was arrested the following day, after Gatzmeier identified him in a photographic lineup as her
attacker.
I. PROBABLE CAUSE FOR ARREST AND SUPPRESSION OF EVIDENCE
Defendant argues that his arrest was illegal because police lacked a warrant or probable
cause at the time of the arrest; consequently, evidence obtained as the result of his arrest should
have been suppressed. We disagree.
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To preserve an issue of an illegal arrest, it must be raised before the trial court. People v
Van Sickle, 116 Mich. App. 632, 637; 323 NW2d 314 (1982). A motion to suppress must also be
raised before the trial court. People v Gentner, Inc, 262 Mich. App. 363, 368; 686 NW2d 752
(2004) (citation omitted). Because these issues are raised for the first time on appeal, our review
is for plain error affecting defendant’s substantial rights. See People v Borgne, 483 Mich. 178,
196-197; 768 NW2d 290, reh gtd in part on other grounds 485 Mich. 868 (2009).
The United States Constitution and Michigan Constitution guarantee the right against
unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. The Michigan
Constitution is generally construed to provide protection commensurate with the federal
constitution in this regard. People v Chowdhury, 285 Mich. App. 509, 516; 775 NW2d 845
(2009). Whether a search or seizure is reasonable depends on the circumstances of each case.
People v Brzezinski, 243 Mich. App. 431, 433; 622 NW2d 528 (2000). “To lawfully arrest a
person without a warrant, a police officer must possess information demonstrating probable
cause to believe that an offense has occurred and that the defendant committed it.” People v
Reese, 281 Mich. App. 290, 294-295; 761 NW2d 405 (2008). If a police officer has received
information, from “an authoritative source,” that a warrant exists for a person’s arrest, the officer
may arrest that person without that warrant in his possession. MCL 764.15(1)(e); MCL 764.18.
In addition, a police officer may arrest a person without a warrant if “[t]he person has committed
a felony although not in the [police officer’s] presence” or “[a] felony in fact has been committed
and the [police] officer has reasonable cause to believe the person committed it.” MCL
764.15(1)(b), (c). “Probable cause is found when the facts and circumstances within an officer’s
knowledge are sufficient to warrant a reasonable person to believe that an offense had been or is
being committed.” People v Chapo, 283 Mich. App. 360, 367; 770 NW2d 68 (2009) (citation
omitted). As a general rule, evidence that is seized or procured in violation of the Fourth
Amendment is inadmissible as evidence against a defendant. People v Lyon, 227 Mich. App. 599,
611; 577 NW2d 124 (1998).
Initially, defendant’s allegations fail to support his contention of an illegal arrest.
Defendant states, in his standard 4 brief: “[W]hen Officer [Eric] Hicks arrested [defendant] he
did not have a warrant and did not have any facts upon which to believe that [defendant]
committed, was committing, or about to commit an offense. He was simply told over the phone
by Sgt. Armstrong that the Detective Bureau wanted [defendant] and he was asked to make an
arrest.” Based on defendant’s assertions, the actions of Hicks in effectuating defendant’s arrest
were legitimate in accordance with MCL 764.15(1)(b), (c) and (e). Having received instructions
from the detective bureau regarding the need to effectuate defendant’s arrest and the existence of
information pertaining to the assault involving Gatzmeier and the arrest of Day that occurred the
previous day, Hicks had probable cause to make the arrest. See Chapo, 283 Mich. App. at 367.
Specifically, at the time of defendant’s arrest, Gatzmeier had been interviewed by police
regarding the events and Day had been arrested. While Day initially misidentified his
accomplice, police quickly eliminated as a suspect the false lead provided by Day and verified
their determination by Gatzmeier’s failure to identify that individual in a photographic lineup.
Day identified defendant as being involved in the events within 24 hours of Day’s arrest.
Gatzmeier confirmed defendant’s identity as the perpetrator by selecting defendant’s photograph
from an array presented by police. Contrary to defendant’s rendition of events, defendant’s
arrest was effectuated on February 26, 2016, at about 2:40 p.m. Gatzmeier’s photographic
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identification of defendant occurred on February 26, 2016, at about 1:00 p.m. Based on the facts
and information available to Hicks at the time of defendant’s arrest, defendant’s claim regarding
the illegality of his arrest lacks merit.
Because defendant’s arrest was proper, his claim that evidence obtained as the result of
his arrest should have been suppressed is equally without merit or a legal basis. See People v
Hawkins, 468 Mich. 488, 498-499; 668 NW2d 602 (2003). More particularly, there was no basis
to suppress the money taken from defendant incident to his lawful arrest. “A search of a person
incident to an arrest requires no additional justification.” People v Champion, 452 Mich. 92, 115;
549 NW2d 849 (1996). And, here, during the armed robbery, cash was taken from Gatzmeier
and identified as being of certain denominations. Thus, confiscation of the money in defendant’s
possession was justified and relevant to the reason for his arrest.
Defendant also offers a relatively convoluted and inexplicable rationale to suggest that
Day’s testimony should have been suppressed. Defendant asserts that Day’s identification of
defendant occurred after defendant’s arrest and that based on the police interrogation of
defendant, further information was obtained from Day implicating defendant in the armed
robbery and assault. Defendant further asserts that all of Day’s testimony was tainted as a result
and should have been suppressed at trial. There is no record evidence to support defendant’s
version of the events or how they transpired, and defendant fails to provide any indication or
citation to the record for the support of his allegations. See MCR 7.212(6). Defendant suggests
that his information was obtained from police reports, but they were not admitted into evidence
and, thus, constitute an improper expansion of the lower court record. See People v Powell, 235
Mich. App. 557, 561 n 4; 599 NW2d 499 (1999); see also MCR 7.210(1). In any case, because
defendant’s arrest was not improper, there exists no basis to suppress any evidence obtained as a
result of that arrest.
II. PROSECUTORIAL MISCONDUCT
Defendant contends the prosecutor engaged in misconduct when questioning Day and
eliciting testimony about Day’s sentencing agreement which implied that his testimony was
“truthful,” and served to improperly bolster Day’s credibility. We disagree.
“In order to preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich. App.
465, 475; 802 NW2d 627 (2010). Because defendant neither objected nor requested a curative
instruction, our review is for plain error. See id. at 475-476.
As explained by our Supreme Court in People v Bahoda, 448 Mich. 261, 276; 531 NW2d
659 (1995):
Included in the list of improper prosecutorial commentary or questioning
is the maxim that the prosecutor cannot vouch for the credibility of his witnesses
to the effect that he has some special knowledge concerning a witness’
truthfulness. While this is generally improper, the simple
reference to a plea agreement containing a promise of truthfulness
is in itself [not] grounds for reversal. A more accurate statement of
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the law appears to be that, although such agreements should be
admitted with great caution, admissibility of such an agreement is
not necessarily error unless it is used by the prosecution to suggest
that the government had some special knowledge, not known to the
jury, that the witness was testifying truthfully.
Generally, “[b]y calling a witness who testifies pursuant to an agreement
requiring him to testify truthfully, the Government does not insinuate possession
of information not heard by the jury and the prosecutor cannot be taken as having
expressed his personal opinion on a witness’ veracity.” [Citations and footnotes
omitted.]
Defendant misrepresents the content of the exchange between Day and the prosecutor.
The prosecutor elicited testimony from Day verifying that Day had entered into a sentencing
agreement with the trial court in exchange for his “truthful” testimony at defendant’s trial. The
prosecutor never implied that Day’s testimony in defendant’s trial was truthful and specifically
stated that a determination regarding the veracity of Day’s testimony, for purposes of the
sentencing agreement, was solely in the purview of the trial judge. At the time of Day’s
testimony, he had not yet even received the sentencing agreement from the trial court. The
prosecutor never suggested any special knowledge regarding Day’s veracity. Thus, the premise
underlying defendant’s allegations on this issue are not consistent with the actual facts. Further,
the trial court instructed the jury that a determination of witness credibility was their
responsibility, thereby alleviating any potential error because it is presumed that jurors follow
their instructions. People v Stevens, 498 Mich. 162, 177; 869 NW2d 233 (2015).
III. JURY ACCESS TO EVIDENCE
Defendant asserts that the trial court committed reversible error by permitting the jury to
have access to the monies confiscated from Day and defendant in the jury room for their
deliberations when the monies were not actually admitted into evidence. We disagree. Because
defendant did not make this objection in the trial court, our review is for plain error affecting
substantial rights, i.e., error that affected the outcome of the proceeding. See People v Watkins,
247 Mich. App. 14, 28; 634 NW2d 370 (2001), aff’d 468 Mich. 233 (2003).
It is typically construed as error for a trial court to permit a deliberating jury to bring into
the jury room any material that was not admitted into evidence. People v Benberry, 24 Mich
App 188, 191; 180 NW2d 391 (1970). “A trial court is not to provide the jury with unadmitted
evidence.” People v Davis, 216 Mich. App. 47, 57; 549 NW2d 1 (1996).
At trial, Gatzmeier testified regarding the various denominations of cash that were taken
from her during the armed robbery. Sergeant Eric Hicks of the Oakland County Sheriff’s
Department verified that monies were confiscated from Day at the time of his arrest, with Day
confirming that defendant had given Day some of the monies obtained from the robbery.
Detective Maurice Martin of the Oakland County Sheriff’s Department testified to the specific
denominations confiscated from Day and defendant following their arrests. In addition, Robert
Koteles, Jr., a latent print analyst with the Oakland County Sheriff’s Department, tested the
confiscated monies but testified that he was unable to procure any prints of a comparable value.
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While marked as exhibits 14 and 15 at trial, the monies were not formally admitted into
evidence.
It appears that the failure to formally admit the monies into evidence was a procedural
oversight, particularly given the absence of any objections to the designation of the monies as
prosecution exhibits and the testimony elicited regarding this evidence. The testimony elicited
from various witnesses and the information available to the jury regarding the amounts of the
confiscated monies serves to render the presentation and availability of the monies to the jury
merely cumulative or duplicative of the evidence available.
But even if this amounted to plain error, such error was not outcome-determination. See
Watkins, 247 Mich. App. at 28. Martin acknowledged that the confiscated monies could not be
specifically traced or asserted to be the actual denominations taken by defendant from
Gatzmeier. Forensic examination of the monies did not reveal any latent prints to verify that the
confiscated monies had been in the possession of Gatzmeier. Thus, the relative importance of
the confiscated money is presumed to be minimal in the jury’s determination of a verdict
considering the strength of the other evidence against defendant.
IV. INSTRUCTIONAL ERROR
Defendant contends the trial court erred in failing to provide the jury with specific
instructions pertaining to accomplice testimony. He also challenges as error the trial court’s
provision of a flight instruction to the jury. However, these challenges to the jury instructions
are deemed waived because defense counsel expressly indicated satisfaction with the jury
instructions. See People v Matuszak, 263 Mich. App. 42, 57; 687 NW2d 342 (2004).
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant asserts a multitude of failures by his trial counsel in support of his ineffective
assistance claim, none of which have merit. Specifically, defendant contends that his trial
counsel was ineffective for failing: (a) to object to testimony elicited suggesting defendant’s
involvement in the intimidation of various trial witnesses, (b) to request a jury instruction on
accomplice testimony, (c) to object to testimony elicited from Day by the prosecutor pertaining
to the sentence Day was to receive in exchange for his trial testimony, (d) to object to the
provision of an unjustified flight instruction to the jury, (e) to object to defendant’s illegal arrest
and to request the suppression of evidence incident to that arrest, and (f) to object to or prevent
the jury from having access to the confiscated monies, which were not admitted into evidence, in
the jury room during the deliberations.
“[A] defendant must move in the trial court for a new trial or an evidentiary hearing to
preserve the defendant’s claim that his or her counsel was ineffective.” People v Heft, 299 Mich
App 69, 80; 829 NW2d 266 (2012). Defendant has twice submitted motions to this Court
seeking a remand for an evidentiary hearing to address his various claims of ineffective
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assistance of counsel and both motions were denied.1 Thus, the issue is unpreserved and our
review is for errors apparent on the record. Id.
To establish a claim of ineffective assistance of counsel, a defendant must show both that
his counsel’s performance was objectively unreasonable in light of prevailing professional
norms, and that defendant was prejudiced as a result of his counsel’s inadequate performance.
People v Walker, 497 Mich. 894, 895; 855 NW2d 744 (2014). A defendant is prejudiced if there
is a reasonable probability that, but for his counsel’s performance, the proceedings would have
rendered a different result. People v Gaines, 306 Mich. App. 289, 300; 856 NW2d 222 (2014).
The defendant bears a heavy burden to show that the assistance afforded him was
ineffective. People v Eisen, 296 Mich. App. 326, 329; 820 NW2d 229 (2012). Part of this burden
is establishing a factual predicate for the claim. People v Hoag, 460 Mich. 1, 6; 594 NW2d 57
(1999). There is a strong presumption that counsel’s performance was effective and the result of
trial strategy. People v Payne, 285 Mich. App. 181, 190; 774 NW2d 714 (2009). We “will not
substitute our judgment for that of counsel on matters of trial strategy, nor will we use the benefit
of hindsight when assessing counsel’s competence.” People v Unger, 278 Mich. App. 210, 242-
243; 749 NW2d 272 (2008).
Defendant first contends defense counsel was ineffective for failing to object to
references pertaining to attempts at witness intimidation at trial. Initially, we note that several
discussions or references to the attempted witness intimidation occurred before trial or while the
jury was not present. At each occurrence, defense counsel asserted that defendant denied any
involvement in these incidents. Twice during trial, in abbreviated exchanges, Gatzmeier and
Day’s fiancée, Donella Donahue, asserted they had been contacted by telephone or through
social media by individuals associated with defendant in an attempt to dissuade them from
testifying at defendant’s trial. Donahue did not accuse or infer that the contacts she received
were initiated by defendant or anyone associated with him. Gatzmeier briefly indicated that the
calls she received were from individuals known to be associated with defendant. There was
nothing improper in the elicitation of this brief testimony by the prosecutor as the information
was relevant to witness credibility. See People v Mills, 450 Mich. 61, 72; 537 NW2d 909, mod
450 Mich. 1212 (1995). Evidence of threats against a witness could be useful to a jury in their
evaluation of the credibility of that witness. M Crim JI 3.6 (witness credibility). Further, given
the brief nature of the references and the failure of the witnesses to directly implicate defendant
in the intimidation incidents, defense counsel’s decision not to object and call further attention to
the testimony constituted sound trial strategy. See Payne, 285 Mich. App. at 190.
With regard to the failure of defense counsel to request jury instructions pertaining to
accomplice testimony, this also was a matter of trial strategy. The evidence against defendant
was overwhelming given the admissions of Day and the definitive identification of defendant by
Gatzmeier. At trial, defense counsel elected as trial strategy to discredit the witnesses through
1
People v Brooks, unpublished order of the Court of Appeals, entered July 25, 2017 (Docket No.
336036); People v Brooks, unpublished order of the Court of Appeals, entered May 10, 2017
(Docket No. 336036).
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cross-examination and assert defendant’s denial of involvement in the criminal acts. As such, a
request by defense counsel to provide an accomplice instruction would have been contrary to
defendant’s theory at trial and could have been interpreted or viewed by the jury as an implicit
admission that defendant engaged in the criminal acts with Day as his accomplice. Under the
circumstances, defense counsel’s trial strategy was not objectively unreasonable. See Walker,
497 Mich. at 895. “That the strategy [defense counsel] chose ultimately failed does not constitute
ineffective assistance of counsel.” People v Kevorkian, 248 Mich. App. 373, 414-415; 639 NW2d
291 (2001).
Defendant also argues that trial counsel was ineffective for failing to object to the
confiscated monies which were not admitted as evidence but allowed to be taken into the jury
room during deliberations. As discussed above, the failure to technically follow correct
procedure to admit the evidence, which received exhibit labels from the prosecutor and was the
subject of elicited testimony from more than one witness did not constitute ineffective assistance
of counsel or result in any prejudice to defendant. Testimony regarding the confiscated monies
was detailed regarding the denominations and amounts, rendering the physical evidence merely
duplicative. Further, defense counsel clarified through cross-examination that the confiscated
monies could not be definitively tied to the monies taken from Gatzmeier. Once again, defense
counsel may have elected, as a matter of trial strategy, not to object to the evidence in order to
minimize its importance or significance. Further, there is no reasonable probability that
permitting the jury to have this physical evidence in the jury room during deliberations affected
the outcome of defendant’s trial given the significant and definitive testimony identifying
defendant as the perpetrator. See Gaines, 306 Mich. App. at 300.
Defendant also asserts that trial counsel was ineffective for failing to object to testimony
elicited by the prosecutor regarding Day’s sentencing agreement and for not objecting to the
provision of a flight instruction to the jury. As noted, the prosecutor did not engage in
misconduct by questioning Day regarding his sentencing agreement with the trial court. See
Bahoda, 448 Mich. at 276. Provision of the flight instruction to the jury was also permissible
because there was evidence that defendant fled the crime scene and later exchanged vehicles
because of his involvement in the shooting. See People v Coleman, 210 Mich. App. 1, 4; 532
NW2d 885 (1995). Because admission of the challenged testimony and the provision of the
instruction did not constitute error, defendant’s contention that trial counsel was ineffective with
regard to these matters lacks merit.
Defendant also contends that his trial counsel was ineffective because he failed to
challenge defendant’s alleged illegal arrest and to seek suppression of the evidence obtained
from this arrest. But, as discussed above, defendant’s arrest was proper and there was no basis to
seek suppression of the evidence obtained as a result of his arrest. Counsel is not deemed
ineffective for failing to raise a meritless or futile objection. People v Putman, 309 Mich. App.
240, 245; 870 NW2d 593 (2015).
VI. OFFENSE VARIABLES 3, 14, AND 19
At sentencing, defendant challenged the assessment of points for offense variables (OVs)
3, 8, 14, and 19. On appeal, however, defendant challenges only the points assigned on OVs 3,
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14 and 19, asserting that the requisite reduction of the points assigned to these offense variables
necessitates his resentencing.2 We disagree.
“ ‘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.’ However, we review
de novo whether the facts found by the trial court are adequate to satisfy the trial court’s scoring
decision.” People v Rhodes, 305 Mich. App. 85, 88; 849 NW2d 417 (2014), quoting People v
Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013).
Offense variable 3 addresses “physical injury to a victim,” and provides that 25 points are
assigned for a “[l]life threatening or permanent incapacitating injury” to a victim and 10 points
are assigned for “bodily injury requiring medical treatment” to a victim. MCL 777.33(1)(c). It
is undisputed that Gatzmeier was shot during this armed robbery and received immediate
treatment at a local hospital. The treating physician indicated a risk of infection from the injury
and Gatzmeier testified that she subsequently required surgery but continued to experience
problems. Because MCL 777.33(1) required the trial court to assign “the highest number of
points,” the assessment of 25 points for this variable was not in error.
Defendant also challenges the assessment of 10 points for OV 14, asserting that no points
should be attributed. MCL 777.44(1) governs the offender’s role, directing that 10 points are to
be assigned when “[t]he offender was a leader in a multiple offender situation.” “The entire
criminal transaction should be considered when scoring this variable.” MCL 777.44(2)(a).
In support of his position, defendant relies on Day’s admission that he conceived the plan
to rob Gatzmeier and enlisted defendant’s help, thereby rendering Day to be the leader in the
criminal enterprise. In rejecting defendant’s position and assigning 10 points to this offense
variable, the trial court explained that defendant’s election “to bring a firearm” and “use it”
rendered him to be the leader in the criminal enterprise by escalating the danger and asserting
control. Exclusive possession of a gun is some evidence of leadership. See Rhodes, 305 Mich
App at 90. And, as the trial court held, there were other indicia of leadership. Day testified that
the intention was to rob Gatzmeier, but that he was surprised when defendant used a weapon to
physically assault Gatzmeier. Defendant engaged in the intimidation of Gatzmeier by yelling at
her, striking her in the head with his gun, and demanding that she hand over her money. And at
his rendezvous with Day after the robbery, defendant retained control of the majority of the
monies stolen and dispensed monies to Day. While Day may have precipitated the initiation of
the events, it was defendant who controlled what occurred and escalated the incident, thus
justifying the trial court’s assessment of 10 points for leadership for OV 14.
Finally, defendant challenges the assessment of 10 points for OV 19, which pertains to
the offender’s interference or attempted interference with the administration of justice. See MCL
777.49(c). “[T]he plain and ordinary meaning of ‘interfere with the administration of justice’ for
2
Defendant asserts error in the assessment of points for OV 8 in his statement of issues
presented, but fails to identify or elaborate on any such error in the body of his brief. Thus, any
allegation of error in this regard has been abandoned. See Payne, 285 Mich. App. at 195.
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purposes of OV 19 is to oppose so as to hamper, hinder, or obstruct the act or process of
administering judgment of individuals or causes by judicial process.” People v Hershey, 303
Mich. App. 330, 343; 844 NW2d 127 (2013). “OV 19 is generally scored for conduct that
constitutes an attempt to avoid being caught and held accountable for the sentencing offense.”
People v Sours, 315 Mich. App. 346, 349; 890 NW2d 401 (2016).
“In assessing points under OV 19, a court may consider the offender’s conduct after the
completion of the sentencing offense.” People v Smith, 318 Mich. App. 281, 285; 897 NW2d 743
(2016). As the prosecutor argued, defendant returned Lee Pondexter’s vehicle, parking it behind
another vehicle in the driveway of Pondexter’s residence. Defendant then picked Pondexter up
from school in defendant’s vehicle, which Pondexter did not expect. The weapon used in the
robbery and assault was never recovered. Issues pertaining to witness intimidation arose before
and during trial. At pretrial, the prosecutor noted that Gatzmeier had received threats to dissuade
her from testifying at trial. During trial, Gatzmeier testified that she had been contacted by
people, definitively associated with defendant, in an effort to influence her not to testify. During
trial, the prosecutor again identified and reported to the trial court efforts at witness intimidation.
Donahue testified that she also received telephone calls and was contacted on social media by
individuals referring to her as a “snitch,” in an effort to affect her willingness to testify at trial.
As recognized by this Court:
Decisions of both this Court and our Supreme Court have held the following
conduct to constitute an interference or attempted interference with the
administration of justice: providing a false name to the police, threatening or
intimidating a victim or witness, telling a victim or witness not to disclose the
defendant’s conduct, fleeing from police contrary to an order to freeze, attempting
to deceive the police during an investigation, interfering with the efforts of store
personnel to prevent a thief from leaving the premises without paying for store
property, and committing perjury in a court proceeding. Each of these acts
hampers, hinders, or obstructs the process of administering judgment of
individuals or causes by judicial process. For instance, the acts of witness
intimidation and deceiving police investigators seek to prevent incriminating
evidence from being used throughout the process of administering judgment of
individuals by judicial process, including during the pretrial and, potentially, trial
stages. [Hershey, 303 Mich. App. at 343-344 (citations omitted).]
The manner by which defendant returned the vehicle used in the robbery to Pondexter
was consistent with an effort to avoid detection of how the vehicle was used and the damage
resulting from defendant firing his gun inside the vehicle. Defendant also disposed of the gun he
used so he could not be linked to the crime. Before and throughout trial, issues arose regarding
witness intimidation undertaken by individuals identified as being associated with defendant.
While defendant was not accused of personally engaging in the intimidation of witnesses, it is
logical that the acts engaged in were performed at defendant’s behest or with his implicit
concurrence. No one, other than defendant, would benefit if the efforts at intimidating various
witnesses were successful. In addition, in the presentence investigation report (PSIR), it was
noted that defendant gave police alternative explanations for having “nearly the same amount
and denominations on his person as the victim claimed she had stolen, he gave two different
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stories.” A defendant’s “fabrications” have been construed as “self-serving attempts at deception
obviously aimed at leading police investigators astray or even diverting suspicion onto others
and away from him.” People v Ericksen, 288 Mich. App. 192, 204; 793 NW2d 120 (2010).
“When calculating the sentencing guidelines, a court may consider all record evidence, including
the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination.”
People v McChester, 310 Mich. App. 354, 358; 873 NW2d 646 (2015). “The trial court may rely
on reasonable inferences arising from the record evidence to sustain the scoring of an offense
variable.” People v Earl, 297 Mich. App. 104, 109; 822 NW2d 271 (2012), aff’d 495 Mich. 33
(2014). As such, sufficient record evidence existed to support the assessment of 10 points for
OV 19.
Because errors did not occur in the scoring of the challenged OVs, the minimum sentence
guidelines range is unchanged and defendant is not entitled to resentencing. See People v
Francisco, 474 Mich. 82, 92; 711 NW2d 44 (2006).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Brock A. Swartzle
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