People of Michigan v. Johnny Lee Cox

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 12, 2018
Plaintiff-Appellee,
v No. 336864
Oakland Circuit Court
JOHNNY LEE COX, LC No. 2016-259537-FH
Defendant-Appellant.
Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.
PER CURIAM.
Defendant appeals by right his jury trial convictions of breaking and entering a vehicle
causing damage, MCL 750.356(a)(3), and larceny from a motor vehicle, MCL 750.356a(1).
Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 2 to 15 years’
imprisonment for his breaking and entering a vehicle causing damage and larceny from a motor
vehicle convictions. We affirm.
Defendant argues that the evidence presented at trial, that he possessed a screwdriver and
wire cutters, as well as his presence in the vehicle in which the navigation system was found,
was insufficient to identify him as the perpetrator. We disagree.
Challenges to the sufficiency of the evidence are reviewed de novo. People v Ericksen,
288 Mich. App. 192, 195; 793 NW2d 120 (2010). The reviewing court must determine if viewing
the evidence in the light most favorable to the prosecution, a rational trier of fact could find that
the prosecution proved each essential element of the crime beyond a reasonable doubt. Id. at
196. A trier of fact may consider circumstantial evidence and all reasonable inferences that
evidence creates. Id. “It is for the trier of fact, not the appellate court, to determine what
inferences may be fairly drawn from the evidence and to determine the weight to be accorded
those inferences.” People v Hardiman, 466 Mich. 417, 428; 646 NW2d 158 (2002).
Identity is an essential element in any crime. People v Bass, 317 Mich. App. 241, 263;
893 NW2d 140 (2016). Yet, just as with the other elements of a crime, reasonable inferences
arising from the evidence or circumstantial evidence can be sufficient to prove identity. Id. at
264; see also People v Sullivan, 290 Mich. 414, 418; 287 N.W. 567 (1939) (“Identity . . . may be
established by circumstantial evidence alone[.]”).
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In this case, defendant was found guilty of breaking and entering a motor vehicle causing
damage and larceny from a motor vehicle. Defendant does not contest any element other than
identity. Defendant argues that the modified screwdriver and the wire cutters that were found on
his person, and his presence in the vehicle that contained the stolen navigation system, do not
together provide sufficient evidence to warrant his convictions. Defendant’s argument fails
because it mischaracterizes some, and neglects to mention, other key pieces of evidence.
Even without direct evidence identifying defendant as the perpetrator who appeared on
the surveillance tape, there is more than sufficient circumstantial evidence to create a reasonable
inference of guilt. It is true that the poor quality of the video security footage would render it
difficult to use to identify the perpetrator. But on appeal, defendant fails to mention the short
time span between the robbery and his arrest. Southfield Police Officer Michael Raby located
the vehicle matching the description of the vehicle that was involved in the theft only a minute
after the robbery, making it unlikely that Raby identified the wrong vehicle. Robert Garcia, the
security officer on duty, had seen the vehicle on the surveillance tape moving toward the service
drive. From Raby’s in-car camera, jurors could see that the service drive was fairly empty. The
vehicle in which defendant and Christopher McKay, the driver and codefendant, were found
appears to be the only one on the service drive meeting Garcia’s description.1 It was only a
matter of a few minutes from the time of the theft to the time the vehicle crashed. A reasonable
trier of fact could conclude that because of the short time frame and the suspect vehicle’s solitary
place on the service drive, it is unlikely that Raby pursued the wrong vehicle.
This relative certainty that Raby pursued the correct vehicle is supplemented by the fact
that defendant unmistakably was the man who fled from the passenger seat of the suspect
vehicle. Ruger, Raby’s police dog, located defendant after sniffing the passenger seat of the
vehicle. Raby also provided a courtroom identification of defendant as the man who fled the
dark vehicle. Thus, based on the timing and defendant’s location alone, a reasonable trier of fact
could conclude that defendant is guilty beyond a reasonable doubt.
Additionally, although the surveillance tape is not high quality, Garcia did gain some
identifying information from it. For example, Garcia saw the perpetrator standing next to the
white truck and subsequently entering the passenger side of the dark vehicle, which was the same
side that defendant exited when he fled Raby. This suggests that defendant, rather than the
driver, was the perpetrator. Garcia also saw the dark vehicle exit to the service drive, where
Raby identified the vehicle that defendant occupied. Though these details are not extraordinarily
particular, in combination with the other evidence, they do create convincing circumstantial
evidence that defendant committed the charged crimes.
Furthermore, the tools found in defendant’s possession were not “generic tools,” as he
would prefer to characterize them. Instead the screwdriver had been broken, such that it
perfectly fit the nuts on the face of the device. According to Kenneth Rochon, an evidence
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The jury viewed the police video from the pursuit. The video shows clearly that the service
drive was fairly deserted, making it unlikely that there was another vehicle meeting the
description in the same area.
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technician for the Southfield Police Department, this type of modified screwdriver and wire
cutters are commonly used tools to remove navigation systems. When considered in
combination, the above evidence, in addition to finding the stolen Dodge navigation system in
the vehicle in which defendant fled, provides enough circumstantial evidence to give rise to the
reasonable inference that defendant is the perpetrator. See Bass, 317 Mich. App. at 263-265.
The trier of fact was also free to consider defendant’s flight as evidence of consciousness
of guilt. People v Coleman, 210 Mich. App. 1, 4; 532 NW2d 885 (1995). According to Raby,
even when confronted, defendant resisted arrest. Because defendant refused to surrender
himself, Raby was forced to command Ruger to drag him out from under the bush. Defendant’s
flight and willingness to undergo physical harm, i.e., a dog bite, rather than converse with Raby,
could reasonably suggest to the jury that defendant was guilty. While flight alone is not
sufficient to prove a defendant’s guilt beyond a reasonable doubt, id., in this circumstance,
defendant’s flight is one factor among many others showing his guilt.
While defendant is correct in pointing to the lack of direct eyewitness or forensic
evidence identifying him as the perpetrator on the surveillance tape, we also note there is ample
circumstantial evidence to create a reasonable inference that defendant is guilty beyond on a
reasonable doubt of the charged crimes. Because of the short time span between the crime and
Raby’s response, as well as the lack of other vehicles on the road, a reasonable trier of fact could
conclude that Raby pursued the correct vehicle. The vehicle also fled the police, and defendant
later fled the vehicle, which jurors could take as evidence of consciousness of guilt. In support
of this finding, police found modified tools used to remove navigation systems on defendant’s
person and a Dodge navigation system in the vehicle he occupied, which was the same
navigation system that was removed from Kama’s truck. These facts, taken together, are
sufficient to prove that defendant committed the charged crimes.
We affirm.
/s/ Deborah A. Servitto
/s/ Jane E. Markey
/s/ Peter D. O'Connell
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