-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 16, 2015

v No. 319015 Wayne Circuit Court DALSHONE MARCUS JOHNSON, LC No. 13-005854-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 319060 Wayne Circuit Court MARCUS LANNELL RELERFORD, LC No. 13-004693-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 319063 Wayne Circuit Court DALSHONE MARCUS JOHNSON, LC No. 13-004693-FC

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and W ILDER and K. F. K ELLY , JJ.

P ER C URIAM

. Defendants Dalshone Johnson and Marcus Relerford appeal by rig ht their convictions after a joint trial before a jury with charges from two separat e cases that were consolidated for trial. In LC No. 13-005854-FC, th e jury convict ed Johnson of f irst-degree murder, MCL-2- 750.316(1)(b), armed robbery, MC L 750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. In LC No. 13-00469 3-FC, the jury convicted Johnson of two counts of armed robbery, carrying a concealed we apon, MCL 750.227, and felony-firearm. The jury acquitt ed Relerford of all charges in LC No. 13-005854-FC, but convicted him of two counts of armed robbery in LC No. 13-00469 3-FC. In the first case, the trial court sentenced Johnson to serve concurrent terms of life imprisonment without parole for the murder conviction and 285 months to 48 years in prison for the robbery conviction. The court sentenced him to serve a consecutive two-year prison term for the felony-firearm conviction. In the second case, t he trial court sentenced John son to serve 180 to 360 months in prison for each robbery conviction, to serve 24 to 60 months in prison for the carrying a concealed weapon conviction, and to serve a consecutive two-yea r term of imprisonment for the felony-firearm conviction. The c ourt sentenced Relerford to co ncurrent prison terms of 18 years and 6 months to 40 years for eac h robbery conviction. Because we conclude there were no errors warranting relief, we affirm in each docket.

I. BASIC FACTS

The charges at issue arose from two separate criminal episodes that occurred within an hour of each other in the same Detroit neighborhood in May 2013

. The prosecutor presented evidence that at approximately 1:00 a .m., Johnson and Relerford robbed Chantell Stevenso n and Danikia Harper outside a liquor store. After Relerford pulled his white SUV alongside Stevenson’s car, Johnson left th e SUV, got into Stevenson’s backseat, threatened the sis ters with a .45 caliber handgun, an d stole their bel ongings. Johnson then got back into the SUV and Relerford drove off.

Approximately 45 minutes later, while Johnson was standing out side his residence, a witness saw him staring at Da llas Allen, who was walking down t he street listening to music on a cell phone. Johnson ran into his house, emerged with a handgun , and headed directly toward Allen. After hearing two gunshots, another witness saw Johnson fleeing the area where Allen had been shot. Allen’s two cell phones were missing, and two . 45 caliber shell casings were found near his body. Later that day, Stevenson recognized John son and Relerford in the neighborhood, called the police department, and police officers later arrested them at Johnson’s residence. Allen’s two missing cell phones were found in the b ackyard and the white SUV was parked in the driveway.

Johnson and Relerford now appeal in this Court.

II. JOHNSON’S APPEAL I N DOCKET NOS. 308101 & 309063

A. SUFFICIENCY O F THE EVIDENCE

Johnson first argues that this Court must vacate his convictio ns for first-degree felony murder, armed robbery, and felony firearm arising from Allen’s death because the prosecution failed to present sufficient evidence to establish that Allen w as killed as part of a robbery. In reviewing a challenge to the sufficiency of the evidence, this Court views the evidence in a light most favorable to the prosecution to determine whether a ration al trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Wolfe , 440-3- Mich 508, 515; 489 NW2d 748 (1992). “[A] reviewing court is re quired to draw all reasonable inferences and make credibility choices in support of the jury verdict.” People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000).

In order to establish that Johnson committed felony murder, in relevant part, the prosecutor had to prove that Johnson killed Allen while committ ing or attempting to commit robbery. MCL 750.316(1)(b); People v Gayheart , 285 Mich App 202, 210; 776 NW2d 330 (2009). As relevant here, the elements of armed robbery includ e that Johnson used force or violence against Allen and posse ssed a dangerous weapon in the course of committing a larceny. People v Chambers , 277 Mich App 1, 7; 742 NW2d 610 (2007). “ [T]he specific inte nt necessary to commit larceny is the intent to steal another person’s prope rty.” People v Cain , 238 Mich App 95, 120; 605 NW2d 28 (1999). The felony-murder doctrine do es not apply if the intent to steal the victim’s property was not formed until after the homi cide. People v Brannon , 194 Mich App 121, 125; 486 NW2d 83 (1992). However, “a murder committed during the unbroken chain of events surrounding the predicate felony is committed ‘in the perpetration of’ that felony[.]” People v Gillis , 474 Mich 105, 121; 712 NW2d 419 (2006) (citation omitted). T he murder and the felony need not be contemporaneous; rather, the defendant n eed only have intended to commit the underlying felony when the homicide occurred. Brannon , 194 Mich App at 125. Because of the difficulty inherent in proving an actor’s state of mind, “minimal circumstantial evidence will suffice to establish the defendant’s state of min d.” People v Kanaan , 278 Mich App 594, 622; 751 NW2d 57 (2008).

Viewing the evidence in a light most favorable to the prosecut ion, a rational trier of fact could find beyond a reasonable doubt that Johnson killed Allen with a firearm during the course of an armed robbery. There was evidence that less than an hour before Allen was shot, Johnson robbed Stevenson and Harper; duri ng that robbery, he told them that he did “this,” meaning robbery, for a living. Shortly the reafter, a witness saw Johns on staring at Allen as he walked down the street while using a cell phone to listen to music. T here was evidence that Allen carried multiple phones with him, two of which were government- issued cell phones with prepaid-minutes. The testimony established that Johnson retrie ved a gun and then approached Allen. Johnson was then seen fleeing from the scene approximat ely 10 seconds after the gunshots were fired, and Allen’s two cell phones (with the prep aid minutes) were missing. Allen’s cells phones were later found in the backyard of a hous e where Johnson was present. From this evidence, a jury could reasonably conclude that Johns on targeted Allen for a robbery after he saw Allen’s exposed cell phone and retrieved his handg un and approached Allen for that purpose. Consequently, there was sufficient evidence to suppor t the jury’s verdict that Johnson killed Allen during the commi ssion of an armed robbery and that he had the requisite intent.

B. JOINDER

Johnson next argues the trial court erred in granting the pros ecution’s motion to join his two cases for one trial under MCR 6.120(B)(1)(c). Whether join der is appropriate is a mixed question of fact and law. People v Williams , 483 Mich 226, 231; 769 NW2d 605 (2009). “To determine whether joinder is permissible, a trial court must fi rst find the relevant facts and then must decide whether those facts constitute ‘related’ offenses f or which joinder is appropriate.” Id. This Court reviews the trial co urt’s factual findings for cle ar error and its int erpretation of the court rule, which is a question of law, de novo. Id. However, the trial court’s ultimate decision-4- on permissive joinder of related c harges lies “firmly within th e discretion of trial courts.” People v Breidenbach , 489 Mich 1, 14; 798 NW2d 738 (2011).

A trial court may join “offenses charged in two or more inform ations or indictments against a single defendant . . . when appropriate to promote fa irness to the parties and a fair determination of the defendant’s guilt or innocence of each off ense.” MCR 6.120(B). Joinder is appropriate when the “offenses are related,” which, in relevant part, means “a series of acts constituting parts of a single scheme or plan.” MCR 6.120(B)(1 ). When considering a motion for joinder, courts should cons ider other factors including “th e timeliness of the motion, the drain on the parties’ resources, the potential for confusion or preju dice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial. ” MCR 6.120(B)(2).

Our Supreme Court has stated that offenses are “related” for p urposes of joinder under MCR 6.120(B)(1)(c) when the evidence indicates that the “defend ant engaged in ongoing acts constituting parts of his overall scheme or plan.” Williams , 483 Mich at 235. Here, the evidence indicated that Johnson engaged in ongoing acts related to an ov erall scheme of robbing persons with a handgun on the same night and in the same geographic are a. The separate robberies occurred within a half mile of each other, within a one-hour ti me span, and shared a similar motive, i.e., to commit larceny. In addition, evidence relevan t to Johnson’s identity and intent in the robbery and murder of Allen was intertwined with the eviden ce from the prior robberies. There was also little potential for confusion because the two c ases were presented distinctively, and the facts were not complex. Because the evidence shows tha t Johnson used a common scheme or plan, the same evidence would have been admissible in separate trials. Id. at 237 (“The admissibility of evidence in other trials is an important consideration because ‘[j]oinder of . . . other crimes cannot prejudice the defendant more than he would have been by the admissibility of the other evidence in a separate trial.’ ”). Thus, even if it were error to join the cases, Johnson has not estab lished prejudice.

The trial court did not abuse its discretion in joining the of fenses for trial and, even if it were error to join the trials, t hat error would not warrant rel ief.

C. PRELIMINARY INSTRUCTION

Johnson’s last argument is that the trial court erred when it gave the jury a preliminary jury instruction, which preemptively foreclosed the jury’s oppo rtunity to later rehear any testimony or review any transcripts. Because he did not object to the instruction, our review is for plain error affecting substantial rights. People v Carines , 460 Mich 750, 752-753, 763-764; 597 NW2d 130 (1999).

As a preliminary instruction, the trial court warned the jury to pay close attention to the witnesses’ testimony because trans cripts would not be available for months:

[S]ometimes people think that at the end of the day we have wri tten transcripts that can be reviewed. But that isn’t true. Those written tran scripts won’t be available for months after this trial is over. So, because we don’t have those-5- written transcripts, it’s even more important that you pay atte ntion and that you listen carefully to the evidence that will be presented.

Although the trial court mitigated the instruction by indicati ng that it would provide the jury with alternatives should the jurors have difficulty recoll ecting the testimony later, the trial court’s instruction that the transcripts would not be available for months may have gone too far by giving the jury the impression that there was no possible wa y to review the transcripts during deliberations. People v Carter , 462 Mich 206, 213 n 10; 612 NW2d 144 (2000); see also MCR 2.513(P) (providing trial court’s with discretion to allow the jury to review testimony, but prohibiting the trial court from foreclosing the possibility of having testimony or evidence reviewed at a later time). Nevertheless, because the trial cou rt did not entirely foreclose the possibility that the jury might review testimony in some manner other than through transcripts, we cannot conclude that the tria l court’s instruction amounted to plain error; similarly, given the overwhelming evidence against J ohnson, even if it were plain er ror, that error would not warrant relief. Carines , 460 Mich at 763. We would, howev er, caution the trial court from giving a similar instruction in the futur e because it invites a claim of error.

III. RELERFORD’S APPEAL IN DOCKET NO. 319060

A. PRELIMINARY INSTRUCTION

Relerford also challenges the trial court’s preliminary instru ction as impermissibly foreclosing the jury from requesting transcripts. Because he t oo failed to object before the trial court, our review is limited to plain error affecting his subst antial rights. Carines , 460 Mich at 752-753. And for the same reasons we stated above, we conclude that the trial court did not plainly err and, even if it did, t hat error would not warrant r elief. Id.

B. SUFFICIENCY OF THE EVIDENCE

Relerford also argues that there was insufficient evidence to support his convictions of armed robbery; specifically, he m aintains that the prosecution failed to present any evidence that he shared or knew of Johnson’s cr iminal intent to commit armed robbery.

At trial, the prosecutor advan ced the theory that Relerford ai ded or abetted Johnson’s armed robbery of Stevenson and Harper. A person who aids or ab ets the commission of a crime may be convicted and punished as if he directly committed the o ffense. MCL 767.39. In order to prevail on this theory, in relevant part, the prosecutor had to present evidence that Johnson robbed Stevenson and Harper, Relerford assisted in the robberie s, and Relerford either intended to commit the robberies or knew that Johnson intended to commit the robberies at the time. People v Izarraras-Placante , 246 Mich App 490, 495-496; 633 NW2d 18 (2001). Aiding and abetting includes all forms of assistance rendered to the perpe trator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of a crime. Carines
, 460 Mich at 757; People v Rockwell , 188 Mich App 405, 411-412; 470 NW2d 673 (1991). An aider or abettor’s state of mind may be inferred from all the f acts and circumstances, including a close association between the de fendant and the principal, the defendant’s participation in the planning or execution of the crime, and evidence of flight afte r the crime. Carines
, 460 Mich at 757; People v Bennett , 290 Mich App 465, 474; 802 NW2d 627 (2010).-6- Viewed in a light most favorable to the prosecution, there was evidence that Johnson committed an armed robbery as to both victims. There was also evidence that Relerford assisted in the commission of the robberies by driving Johnson to the st ore, pulling up next to the victims’ car to allow Johnson to quickly enter and exit, follow ing Johnson’s instructions concerning how to reposition the SUV after Johnson completed th e robberies, and then serving as the getaway driver. Finally, the evidence was sufficient to show that Relerford provided the aid with the intent or knowledge that Johnson would commit the robberies. Relerford’s conduct during the robberies, his later possession of items that were s tolen from the victims, and the evidence of Relerford and Johnson’ s close and continued associa tion 45 minutes after fleeing the robbery scene, and again 12 hours later, supports an inference that they were acting in concert to commit the crimes. Accordingly, the evidence was sufficient to support Relerford’s convictions for armed robbery under an aid ing and abetting theory.

There were no errors warranting relief.

Affirmed.

/s/ Michael J. Kelly /s/ Kurtis T. Wilder /s/ Kirsten Frank Kelly