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STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

February 14, 2013

9:05 a.m.

v No. 306124

Genesee Circuit Court

PHILLIP CHARLES GIBBS, LC No. 11-028140-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 306127

Genesee Circuit Court

TYRELL HENDERSON, LC No. 11-028141-FC

Defendant-Appellant. Advance Sheets Version

Before: K. F. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

In Docket No. 306124, defendant, Phillip Charles Gibbs, was convicted by a jury of two 

counts of armed robbery, MCL 750.529, one count of unarmed robbery, MCL 750.530, and one 

count of conspiracy to commit armed robbery, MCL 750.157a and 750.529. Gibbs was 

sentenced to 171⁄2 to 30 years’ imprisonment for each count of armed robbery, 100 months to 15 

years’ imprisonment for the unarmed robbery conviction, and 171⁄2 to 30 years’ imprisonment for 

the conviction of conspiracy to commit armed robbery. 

In Docket No. 306127, defendant, Tyrell Henderson, was convicted by a jury of three 

counts of armed robbery, MCL 750.529, one count of conspiracy to commit armed robbery, 

MCL 750.157a and 750.529, one count of assault with intent to rob while armed, MCL 750.89, 

one count of carrying a concealed weapon, MCL 750.227, and possession of a firearm during the 

commission of a felony (felony-firearm), MCL 750.227b. Henderson was sentenced to 225 

months to 40 years’ imprisonment for each count of armed robbery, 225 months to 40 years’

imprisonment for the conviction of conspiracy to commit armed robbery, 225 months to 40 

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years’ imprisonment for the conviction of assault with intent to rob while armed, 24 to 60 

months’ imprisonment for the conviction of carrying a concealed weapon, and 2 years’

imprisonment for the felony-firearm conviction. 

Defendants were tried together in front of separate juries. They both appeal as of right.1

 

We vacate Henderson’s conviction for assault with intent to rob while armed, but otherwise 

affirm both defendants’ convictions and sentences.

I. BASIC FACTS AND PROCEDURAL HISTORY

A. TRIAL

This case arises from an armed robbery that occurred at a store called Wholesale 4 U in

Flint, Michigan, on October 26, 2010. Nancy Anagnostopoulos and her husband, Costas 

Anagnostopoulos, owned the store and were present at the time of the robbery. Also present was 

employee Jeremy Kassing. Defendants had been to the store together numerous times that day. 

Originally, they had hoped to pawn some jewelry. After finding out that the jewelry had no 

value, Henderson purchased a video game. He later decided to return it. Defendants entered the 

store and told Costas that the game did not work. As Costas attempted to help determine what 

was wrong with the game, Henderson struck him in the head with a gun. Gibbs, who was not 

personally armed during the incident, approached Nancy and removed her necklaces and ring. 

He took her identification and purse. Gibbs also took an iPod from the store, as well as a number 

of laptop computers. In the meantime, Henderson took Costas’s jewelry, wallet, and money. He 

ordered Costas to open the store’s register and then took Costas to a back room where a safe was 

kept. Part of Costas’s ear was cut off as a result of the blow he received, and he received stitches 

for the injury. Kassing’s wallet was also taken. A subsequent search of the home Gibbs shared 

with his mother uncovered a sandwich bag containing jewelry, a sandwich bag containing papers 

and the identifications of the three victims, and several watches identified as those taken from the 

store.

In separate police interviews, both defendants admitted their involvement. However, 

Gibbs told the officer that his involvement was involuntary. Gibbs believed that they were going 

to the store to return the video game and had no idea that Henderson was planning a robbery. 

Gibbs stated that Henderson ordered him to take the victims’ belongings and other store items. 

Gibbs testified at trial that he complied only because he did not want anything to happen to him. 

The juries convicted defendants and they were sentenced as outlined previously. 

 1 On September 14, 2011, Henderson filed a claim of appeal, and on September 16, 2011, Gibbs 

filed his claim of appeal. On December 7, 2011, this Court entered an order consolidating the 

appeals. People v Gibbs, unpublished order of the Court of Appeals, entered December 7, 2011 

(Docket Nos. 306124 and 306127).

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B. GIBBS’S MOTION FOR REMAND

On May 23, 2012, Gibbs filed a motion to remand with this Court in order to make two 

objections to his sentencing, develop his argument that he was denied the right to a public trial, 

and, alternatively, argue that his counsel was ineffective. We granted Gibbs’s motion to remand 

and remanded for Gibbs to file a motion for resentencing regarding prior record variable (PRV) 5 

and PRV 6 and to file a motion for a new trial. People v Gibbs, unpublished order of the Court 

of Appeals, entered June 20, 2012 (Docket No. 306124). We ordered the trial court to hold an 

evidentiary hearing concerning the closure of the courtroom during voir dire. Id.

On remand, Gibbs argued that his right to a public trial was violated by the closing of the 

courtroom and the exclusion of his family from jury selection. Gibbs also argued that he was 

entitled to resentencing on the basis of the incorrect scoring on PRV 5 and PRV 6. The trial 

court declined to conduct a full hearing on the court-closure issue. The trial court admitted that 

its procedure is that, after jury selection begins, it does not allow people to enter or leave the 

courtroom. The trial court stated that if individuals came after jury selection started, then they 

would not have been allowed in the courtroom. The trial court denied the motion for a new trial. 

The trial court also found that Gibbs had a relationship to the criminal justice system on the date 

of the offenses for purposes of scoring PRV 5 and PRV 6 and denied the motion for 

resentencing.

II. GIBBS’S APPEAL

A. RIGHT TO A PUBLIC TRIAL

Gibbs argues that the trial court violated his right to a public trial and that he is entitled to 

automatic reversal. We disagree.

Gibbs did not object to the closure at trial. The Michigan Supreme Court recently held 

that the plain-error standard applies to a defendant’s forfeited claim that the trial court violated 

the defendant’s Sixth Amendment right to a public trial. People v Vaughn, 491 Mich 642, 664, 

674-675; 821 NW2d 288 (2012).

[I]n order to receive relief on [a] forfeited claim of constitutional error, [a] 

defendant must establish (1) that the error occurred, (2) that the error was “plain,”

(3) that the error affected substantial rights, and (4) that the error either resulted in 

the conviction of an actually innocent defendant or seriously affected the fairness, 

integrity, or public reputation of judicial proceedings. [Id. at 664-665.]

The Vaughn Court concluded that the first two prongs of the analysis were satisfied because the 

trial court ordered the courtroom closed before voir dire without advancing “an overriding 

interest that is likely to be prejudiced” and the error was “clear or obvious” because it was 

“readily apparent” that the trial court closed the courtroom and it is “well settled” that the right to 

a public trial extends to voir dire. Id. at 665 (citations and quotation marks omitted). The Court 

also concluded that the third prong was satisfied because the closure of the courtroom was “a 

plain structural error.” Id. at 666. However, the Court held that the fourth prong was not 

satisfied because “both parties engaged in a vigorous voir dire process,” “there were no 

objections to either party’s peremptory challenges of potential jurors,” and “each party expressed 

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satisfaction with the ultimate jury chosen.” Id. at 668-669. Additionally, the Court noted that 

the presence of the venire—members of the public—lessened the extent to which the closure 

implicated the defendant’s right and guaranteed that the proceedings were subject to a substantial 

degree of public review. Id. at 668. The Court concluded that the defendant was not entitled to a 

new trial. Id. at 669.

In People v Russell, 297 Mich App 707, 720; 825 NW2d 263 (2012), this Court stated 

that “the effect of a partial closure of trial does not reach the level of a total closure and only a 

substantial, rather than a compelling, reason for the closure is required.” The Court concluded

that the voir dire proceedings were partially closed because of the limited capacity in the 

courtroom and that the limited capacity was a substantial reason for the closure. Id. 

Accordingly, the partial closure did not deny the defendant his right to a public trial. Id.

Gibbs contends that his family and members of the public were prevented from entering 

the courtroom during jury selection. The record reveals that before jury selection began, the trial 

court stated, “And if any spectators would like to come in they’re welcome but they do have to 

sit over here by the law clerk, not in the middle of the pool.” Gibbs submitted affidavits 

indicating that individuals were not allowed to enter the courtroom during jury selection. Even 

accepting Gibbs’s contention as true, we find no error given the trial court’s statement. It 

appears that the courtroom was opened to the public initially, but then closed once jury selection 

began. On remand, the trial court did not conduct a full hearing and acknowledged that once 

jury selection had begun, the courtroom was closed and suggested that it was “too confusing” to 

allow individuals to come and go during jury selection. Even if we were to find error on the 

basis of the trial court’s admitted refusal to allow individuals to enter once jury selection began, 

Gibbs is not entitled to a new trial or evidentiary hearing. As in Vaughn, both parties engaged in 

vigorous voir dire, there were no objections to either party’s peremptory challenges, and each 

side expressed satisfaction with the jury. Further, the venire itself was present. Accordingly, 

Gibbs fails to satisfy the fourth prong as set forth in Vaughn and is not entitled to a new trial.

B. PREARREST SILENCE

Gibbs argues that the prosecutor violated his Fifth Amendment right to remain silent by 

using his prearrest silence to impeach his testimony and by referring to his prearrest silence 

during closing argument. We disagree.

Gibbs failed to object to the prosecutor’s questions during his cross-examination; 

therefore, the issue is unpreserved. People v Metamora Water Serv, Inc, 276 Mich App 376, 

382; 741 NW2d 61 (2007). To the extent that Gibbs’s argument alleges prosecutorial 

misconduct, because Gibbs did not object to the prosecutor’s statements, the issue is also 

unpreserved. People v Cain, 299 Mich App 27, 35; 829 NW2d 37 (2012). “This Court reviews 

unpreserved constitutional errors for plain error affecting substantial rights.” Id. at 40. This 

Court also reviews unpreserved claims of prosecutorial misconduct for plain error. Id. at 35.

During Gibbs’s testimony, the prosecutor asked Gibbs when he told his mother what had 

happened and when he told the police that Henderson made him rob the store. The prosecutor 

asked Gibbs if he went to the police station on October 26, 2010, or after he talked to his brother 

the next day. In her closing argument, the prosecutor stated:

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Because remember despite what Phillip Gibbs testified to here in the 

courtroom about what his knowledge was, what his role or lack thereof was, he 

doesn’t take an opportunity to run out of the store. He doesn’t call 911 from 

inside the store. He doesn’t run away separate from Mr. Henderson after this 

robbery occurred. He doesn’t tell his mother. He doesn’t go to the police.

The prosecutor again referred during her rebuttal to Gibbs’s failure to turn himself in.

Contrary to Gibbs’s assertion, the prosecutor did not violate his constitutional right to 

remain silent by questioning Gibbs about his failure to alert his mother or law enforcement 

concerning the robbery.

A defendant’s constitutional right to remain silent is not violated by the 

prosecutor’s comment on his silence before custodial interrogation and before 

Miranda[2] warnings have been given. A prosecutor may not comment on a 

defendant’s silence in the face of accusation, but may comment on silence that 

occurred before any police contact. 

“[A] prosecutor may comment on a defendant’s failure to report a crime 

when reporting the crime would have been natural if the defendant’s version of 

the events were true.” [People v McGhee, 268 Mich App 600, 634-635; 709 

NW2d 595 (2005) (citations omitted).]

However, “[w]here it would not have been natural for the defendant to contact the police—where 

doing so may have resulted in the defendant incriminating himself—the prosecution cannot 

properly comment on the defendant’s failure to contact the police.” People v Dye, 431 Mich 58, 

80; 427 NW2d 501 (1988).

The prosecutor’s comments referred to Gibbs’s prearrest silence and, therefore, did not 

violate his right to remain silent. McGhee, 268 Mich App at 634. The prosecutor’s comments 

on Gibbs’s failure to report the crime suggested that if Gibbs’s testimony were true—that his 

participation in the robbery was coerced—he would have called 911 or gone to the police 

immediately. Gibbs, however, claims that it would not have been natural for him to contact the 

police because he would have believed that Henderson might harm him. We conclude that if 

Gibbs’s version of the events were true—that he did not know Henderson was going to rob the 

store and he was acting under duress by Henderson—then it would have been natural for him to 

contact the police. Therefore, the prosecutor’s comments were proper and there was no plain 

error. 

C. SENTENCING ERRORS

Finally, Gibbs contends that he is entitled to resentencing because of the erroneous 

scoring of PRV 5, PRV 6, and offense variable (OV) 13. 

 2 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

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Under MCL 769.34(10), if a minimum sentence is within the appropriate 

guidelines sentence range, we must affirm the sentence and may not remand for 

resentencing absent an error in scoring the sentencing guidelines or reliance on 

inaccurate information in determining the sentence. A sentencing court has 

discretion in determining the number of points to be scored, provided that 

evidence of record adequately supports a particular score. Scoring decisions for 

which there is any evidence in support will be upheld. Additionally, we review de 

novo as a question of law the interpretation of the statutory sentencing guidelines. 

[People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006) (citations 

omitted).]

1. PRV 5

“Prior record variable 5 is prior misdemeanor convictions or prior misdemeanor juvenile 

adjudications.” MCL 777.55(1). The sentencing court must assess 2 points if “[t]he offender has 

1 prior misdemeanor conviction or prior misdemeanor juvenile adjudication[.]” MCL 

777.55(1)(e). The sentencing court must assess zero points if “[t]he offender has no prior 

misdemeanor convictions or prior misdemeanor juvenile adjudications[.]” MCL 777.55(1)(f). 

“‘Prior misdemeanor juvenile adjudication’ means a juvenile adjudication for conduct that if 

committed by an adult would be a misdemeanor under a law of this state, a political subdivision 

of this state, another state, a political subdivision of another state, or the United States if the 

order of disposition was entered before the sentencing offense was committed.” MCL 

777.55(3)(b) (emphasis added).

Gibbs’s presentence investigation report (PSIR) indicates that he pleaded guilty of illegal 

entry without the owner’s permission, a misdemeanor, on August 3, 2010, and was sentenced to 

probation for the offense on November 9, 2010. This was a juvenile adjudication. The PSIR 

indicates that the “Disposition Date” was November 9, 2010. The sentencing offense was 

committed on October 26, 2010. Accordingly, the order of disposition was not entered before 

the sentencing offense was committed and Gibbs’s juvenile adjudication does not constitute a 

prior misdemeanor juvenile adjudication for purposes of assessing points under PRV 5. MCL 

777.55(3)(b). Therefore, the trial court erred by assessing 2 points under PRV 5. However, 

because a reduction by 2 points from Gibbs’s prior record variable score would not change his 

PRV level, MCL 777.62, resentencing is not required.

2. PRV 6

“Prior record variable 6 is relationship to the criminal justice system.” MCL 777.56(1). 

The sentencing court must assess 5 points if “[t]he offender is on probation or delayed sentence 

status or on bond awaiting adjudication or sentencing for a misdemeanor[.]” MCL 777.56(1)(d). 

The sentencing court must assess zero points if “[t]he offender has no relationship to the criminal 

justice system[.]” MCL 777.56(1)(e).

As mentioned earlier, Gibbs entered a guilty plea to illegal entry without the owner’s 

permission, a misdemeanor, on August 3, 2010, and was sentenced to probation for the offense 

on November 9, 2010. This was a juvenile adjudication. This Court has held that a defendant’s 

prior juvenile adjudications supported the scoring of PRV 6. People v Anderson, 298 Mich App 

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178, 182; 825 NW2d 678 (2012) (“The phrase ‘criminal justice system’ is not limited to 

adversarial criminal proceedings.”). Thus, contrary to Gibbs’s assertion, points could be 

assessed under PRV 6 for his relationship with the juvenile justice system.

There is no evidence that Gibbs was on probation, delayed-sentence status, or bond at the 

time of the sentencing offense. His PSIR indicates only that he was placed on probation at 

sentencing or disposition, which took place on November 9, 2010. It appears that Gibbs was, 

however, awaiting adjudication or sentencing at the time he committed the sentencing offense, 

given that he had already entered a plea. This Court has stated:

Endres suggests that a five-point score for PRV 6 is not improper when 

the defendant committed the sentencing offense while awaiting adjudication or 

sentencing for a misdemeanor, regardless of his or her bond status. The case 

illustrates this Court’s refusal to categorize a defendant as having no relationship 

with the criminal justice system when it is obvious that such a relationship exists. 

[People v Johnson, 293 Mich App 79, 88; 808 NW2d 815 (2011).]

Therefore, the trial court properly assessed 5 points under PRV 6, even if Gibbs was not on bond 

at the time he committed the sentencing offense.

3. OV 13

“Offense variable 13 is continuing pattern of criminal behavior.” MCL 777.43(1). The 

sentencing court must assess 25 points if “[t]he offense was part of a pattern of felonious 

criminal activity involving 3 or more crimes against a person[.]” MCL 777.43(1)(c). “For 

determining the appropriate points under this variable, all crimes within a 5-year period, 

including the sentencing offense, shall be counted regardless of whether the offense resulted in a 

conviction.” MCL 777.43(2)(a). The sentencing court must assess zero points if “[n]o pattern of 

felonious criminal activity existed[.]” MCL 777.43(1)(g).

Gibbs was convicted of two counts of armed robbery and one count of unarmed robbery, 

which are all classified under the sentencing guidelines as crimes against a person. MCL 

777.16y. Gibbs argues that his convictions arose out of one incident and that he could not have

25 points assessed. However, there is nothing in the language of MCL 777.43(1)(c) to support 

Gibbs’s argument that multiple convictions arising from the same incident cannot be considered 

for scoring OV 13. In People v Harmon, 248 Mich App 522; 640 NW2d 314 (2001), the 

defendant was convicted of four counts of making child sexually abusive material. He

photographed two 15-year-old girls. There were four photos in all—two of each girl, taken on a 

single date. Id. at 524-526. We held that 25 points were properly assessed under OV 13 because 

of the “defendant’s four concurrent convictions . . . .” Id. at 532. Similarly, in this case, while 

the robberies arose out of a single criminal episode, Gibbs committed three separate acts against 

each of the three victims and these three distinct crimes constituted a pattern of criminal activity. 

Additionally, although some subsections of MCL 777.43 contain limitations on a trial court’s 

ability to score for more than one instance arising out of the same criminal episode, subsection 

(1)(c) contains no such limitation. Accordingly, because multiple concurrent offenses arising 

from the same incident are properly used in scoring OV 13, the trial court did not err by 

assessing 25 points for that variable.

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III. HENDERSON’S APPEAL

A. DOUBLE JEOPARDY

Henderson contends that his convictions for both assault with intent to rob while armed 

and armed robbery violate double jeopardy protections. The prosecution concedes error and 

writes: “Plaintiff agrees that [Henderson’s] conviction for assault with intent to rob while armed 

must be vacated because he is also convicted for [sic] armed robbery involving the same victim 

during the same criminal episode.” We agree that for purposes of the “multiple punishment” 

analysis under double jeopardy, assault with intent to rob while armed is the “same offense” as

armed robbery and that Henderson’s conviction for the lesser crime must be vacated. 

This Court reviews de novo questions of law, such as a double jeopardy challenge. 

People v Garland, 286 Mich App 1, 4; 777 NW2d 732 (2009). 

The prohibition against double jeopardy in both the federal and state constitutions 

protects against (1) a second prosecution for the same offense after acquittal, (2) a second 

prosecution for the same offense after conviction, and (3) multiple punishments for the same 

offense. US Const, Am V; Const 1963, art 1, § 15; People v Nutt, 469 Mich 565, 574; 677 

NW2d 1 (2004). The third of these protections exists to “protect the defendant from being 

sentenced to more punishment than the Legislature intended.” People v Meshell, 265 Mich App 

616, 628; 696 NW2d 754 (2005). In this case, Henderson claims that he has been punished twice 

for the same offense. 

We have previously held that assault with intent to rob while armed is a lesser included 

offense of armed robbery. People v Akins, 259 Mich App 545, 552; 675 NW2d 863 (2003); 

People v Johnson, 90 Mich App 415, 421; 282 NW2d 340 (1979). A lesser included offense is

“a crime for which it is impossible to commit the greater offense without first having committed 

the lesser.” People v Walls, 265 Mich App 642, 645; 697 NW2d 535 (2005). Stated differently, 

for an offense “[t]o be a lesser included offense, the elements necessary for commission of the 

greater offense must subsume the elements necessary for commission of the lesser offense.” 

People v Heft, 299 Mich App 69, 74-75; 829 NW2d 266 (2012). However, 

[i]n People v Smith, 478 Mich 292, 315; 733 NW2d 351 (2007), our Supreme 

Court held that the “same elements” test set forth in Blockburger v United States,

284 US 299, 304; 52 SCt 180; 76 L Ed 306 (1932), is “the appropriate test to 

determine whether multiple punishments are barred by Const 1963, art 1, 

§ 15.” . . . The Blockburger test focuses on the statutory elements of the offense, 

without considering whether a substantial overlap exists in the proofs offered to 

establish the offense. If each offense requires proof of elements that the other 

does not, the Blockburger test is satisfied and no double jeopardy violation is 

involved. [People v Baker, 288 Mich App 378, 381-382; 792 NW2d 420 (2010)

(citations omitted).]

Accordingly, it is necessary to consider the elements of each offense. 

MCL 750.89 is the statute prohibiting assault with intent to rob while armed and 

provides:

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Any person, being armed with a dangerous weapon, or any article used or 

fashioned in a manner to lead a person so assaulted reasonably to believe it to be a 

dangerous weapon, who shall assault another with intent to rob and steal shall be 

guilty of a felony, punishable by imprisonment in the state prison for life, or for 

any term of years.

Therefore, in order to obtain a conviction for assault with intent to rob while armed, a prosecutor 

must demonstrate “(1) an assault with force and violence; (2) an intent to rob or steal; and (3) the 

defendant’s being armed.” Akins, 259 Mich App at 554 (citation and quotation marks omitted). 

The revised armed robbery statute,3 MCL 750.529, now provides:

A person who engages in conduct proscribed under [MCL 750.530 

(robbery)] and who in the course of engaging in that conduct, possesses a 

dangerous weapon or an article used or fashioned in a manner to lead any person 

present to reasonably believe the article is a dangerous weapon, or who represents 

orally or otherwise that he or she is in possession of a dangerous weapon, is guilty 

of a felony punishable by imprisonment for life or for any term of years. If an 

aggravated assault or serious injury is inflicted by any person while violating this 

section, the person shall be sentenced to a minimum term of imprisonment of not 

less than 2 years.

Therefore, in order to obtain a conviction for armed robbery, a prosecutor must prove that

(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 Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007).]

We discern no substantive difference between the elements of the two crimes. Because assault 

with intent to rob while armed is a lesser included offense of armed robbery and neither crime 

contains an element the other does not, Henderson could not have been convicted of both. Under 

the same-elements test that is now applicable to the multiple-punishments strand of double 

jeopardy under Smith, his assault conviction must be vacated. Meshell, 265 Mich App at 633-

634 (“The remedy for conviction of multiple offenses in violation of double jeopardy is to affirm 

the conviction on the greater charge and to vacate the conviction on the lesser charge.”). 

 3 As amended by 2004 PA 128, effective July 1, 2004.

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B. SENTENCING ERRORS

Henderson also contends that he is entitled to resentencing, in his case because of the 

erroneous scoring of OV 3, OV 4, OV 13, and OV 14. We disagree.

Henderson preserved his objection to the scoring of OV 13 by objecting at sentencing. 

Cf. Endres, 269 Mich App at 417. Henderson did not preserve his objections to the scoring of 

OV 3, OV 4, or OV 14. Cf. id. at 422. As noted earlier:

Under MCL 769.34(10), if a minimum sentence is within the appropriate 

guidelines sentence range, we must affirm the sentence and may not remand for 

resentencing absent an error in scoring the sentencing guidelines or reliance on 

inaccurate information in determining the sentence. A sentencing court has 

discretion in determining the number of points to be scored, provided that 

evidence of record adequately supports a particular score. Scoring decisions for 

which there is any evidence in support will be upheld. Additionally, we review de 

novo as a question of law the interpretation of the statutory sentencing guidelines. 

[Id. at 417 (citations omitted).]

This Court reviews unpreserved claims for plain error affecting a defendant’s substantial rights. 

Id. at 422.

1. OV 3

“Offense variable 3 is physical injury to a victim.” MCL 777.33(1). The sentencing 

court must assess 10 points if “[b]odily injury requiring medical treatment occurred to a 

victim[.]” MCL 777.33(1)(d). “As used in this section, ‘requiring medical treatment’ refers to 

the necessity for treatment and not the victim’s success in obtaining treatment.” MCL 777.33(3). 

This Court has stated that “‘bodily injury’ encompasses anything that the victim would, under 

the circumstances, perceive as some unwanted physically damaging consequence.” People v 

McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011).

Costas testified that Henderson hit him between his neck and head and on the side of the 

face. According to Nancy, Costas had blood dripping down his face and neck. Part of Costas’s 

ear was cut off, and he received four stitches at Hurley Medical Hospital. He also sees his 

physician for frequent headaches. Nancy suffered whiplash and completed seven weeks of 

physical therapy. Therefore, the trial court properly assessed 10 points for OV 3.

2. OV 4

“Offense variable 4 is psychological injury to a victim.” MCL 777.34(1). The 

sentencing court must assess 10 points if “[s]erious psychological injury requiring professional 

treatment occurred to a victim[.]” MCL 777.34(1)(a). The sentencing court must also “[s]core 

10 points if the serious psychological injury may require professional treatment. In making this 

determination, the fact that treatment has not been sought is not conclusive.” MCL 777.34(2).

This Court has determined that depression and personality changes are sufficient to 

uphold the scoring of OV 4. People v Ericksen, 288 Mich App 192, 203; 793 NW2d 120 (2010). 

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This Court has also held that a victim’s “statements about feeling angry, hurt, violated, and 

frightened support [the] score under our caselaw.” People v Williams, 298 Mich App 121, 124; 

825 NW2d 671 (2012).

Kassing testified that the experience was traumatic and he had bad dreams about it. At 

sentencing, Nancy stated, “Not to mention what you took from us psychologically.” In Costas’s 

victim impact statement, he indicated that he did not feel safe in his store. These statements 

support a score of 10 points for OV 4.

3. OV 13

As mentioned in part II(C)(3) of this opinion, because multiple concurrent offenses 

arising from the same incident are properly used in scoring OV 13, the trial court did not err by 

assessing 25 points for that variable.

4. OV 14

“Offense variable 14 is the offender’s role.” MCL 777.44(1). The sentencing court must 

assess 10 points if “[t]he offender was a leader in a multiple offender situation.” MCL 

777.44(1)(a). In scoring this variable, “[t]he entire criminal transaction should be 

considered . . . .” MCL 777.44(2)(a); see also People v Apgar, 264 Mich App 321, 330; 690 

NW2d 312 (2004) (opinion by GAGE, J.).

There was evidence that Henderson was the only perpetrator with a gun, did most of the 

talking, gave orders to Gibbs, and checked to make sure Gibbs took everything of value. 

Kassing specifically testified that he believed Henderson was the leader. Further, Gibbs’s

testimony supports the finding that Henderson was the leader. While neither Nancy nor Costas 

believed that either defendant was “the leader,” “[s]coring decisions for which there is any 

evidence in support will be upheld.” Endres, 269 Mich App at 417. Accordingly, the trial court 

did not err by assessing 10 points for OV 14.

Henderson’s conviction of assault with intent to rob while armed vacated. Affirmed in 

all other respects. 

/s/ Kirsten Frank Kelly 

/s/ Jane E. Markey 

/s/ Karen M. Fort Hood 

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1243 Filed 04/22/15 Page 11 of 222
I 

• STATE OF MICHIGAN CASE NO. AND SUFFIX 

7th JUDICIAL CIRCUIT CLAIM OF APPEAL AND 11-28140 Fe 

GENESEE COUNTY ORDER APPQI�TlfiG CPUNSEL FULLER/ON 

,',�� t i1 t�.., -· 

Court Address Court Telephone No 

COURTHOUSE, ROOM 408 FLINT, MI 48502 (810) 257-3272 

'rp �:: - C] 

People of THE STATE OF MICHIGAN ZSii �e qtJil�� ,�ress, and Inmate number (If known) 

CHARLES EGELER RECEPTION & GUIDANCE CEI 11-27-1993 

v 

Defendent Name, Last First Middle 

GIBBS CHARLES PHILLIP 

.. ": �. : i:

" 

.' 

. , --_ .. __ . 

3855 COOPER STREET 

lJA'CKS0r1J; t': 

-

810512 

MI 49201-7518 

:: �� 1;- Y {-:! ,. !\ f\ Terms of Incarceration Intermediate Sanctions 

Offense Information Minimum Maximum Probation 

Date Description PACC Code H C A S Y M D Y M D K P J Y M D R F 0 

10-26-201C ROBBERY/ARMED 750.529 1 E 3C X 

10-26-201C ROBBERY/UNARMED 750.530 1Q(; 1e X 

1 0-26-201 C ROBBERY/ARMED 750.529 1 E 3C X 

10-26-201C ROBBERY/ARMED 750.529 X 17 E 3C X 

H=Habitual C=Conspiracy A=Attempt S=Solicitation Y=Year M=Month D=Day K=Consecutive P=Prison J=Jaii R=Restitution F=Fine O=Other 

The defendant claims an appeal from a final judgment or order entered on 08-15-2011 in the 7th Circuit Court, GENESEE County, 

Michigan by Judge JUDITH FULLERTON 20455. Copies of the final judgment or order being appealed and docket entries are attached 

for the Court of Appeals, appointed counsel, and Michigan Appellate Assigned Counsel System, 

On 09-06-2011 the defendant filed a request for appointment of counsel and a declaration of indigency. 

IT IS ORDERED: 

STATE APPELLATE DEFENDER OFFICE 645 GRISWOLD, PENOBSCOT BLDG. SUITE 3300 

Name of Appellate Counsel Address 

DETROIT, MI 48226 313-256-9833 

City, State, Zip Telephone No, Bar No. 

is appointed counsel for the defendant in post-conviction proceedings, If appointed counsel cannot or will not accept this appointment, counsel 

shall notify the court immediately, � 

The court reporter(s)lrecorder(s) shall file with the trial court clerk the transcripts indicated below and any other transcripts requested by�unsel 

in this case not previously transcribed. Transcripts shall be filed within 28 days for pleas or 91 days for trials from the date ,ord ert<\ or re�steq:C 

[MCR 7.210(B)], Reporter(s)lrecorder(s) shall be paid as provided by law. v: .,r;,:;, � ��� ,. TRANSCRIPTS ORDERED REPORTERIRECORDER NAME OTHER DESCRIPTION NUMaIiI!CJ::

, PROCEEDING f!AiE 

SENTENCE JACKIE SWINTON ::

.. o;.,�,: 08-1�011'\ " 

OTHER JACKIE SWINTON --ntfl .-, 02-25-2011 "lIt""-

OTHER JACKIE SWINTON n..

-;, _,03-0�11 ",'f, 

OTHER JACKIE SWINTON I.: .o;.

� -04-01�1 .� 

OTHER JACKIE SWINTON :.,.- cJ);": '0#1-29-26: 1 

OTHER JACKIE SWINTON ?'- '-:;!: 05-20-2 ): j 

JURY TRIAL JACKIE SWINTON � G6:28-2 :r14 

JURY TRIAL JACKIE SWINTON 06-29-2 )'1 

JURY TRIAL JACKIE SWINTON 06-30-2011 

JURY TRIAL JACKIE SWINTON 07-06-2011 

JURY TRIAL JACKIE SWINTON 07-07-2011 

ARRAIGNMENT JACKIE SWINTON 01-18-2011 

The clerk shall immediately send to counsel a copy of the transcripts ordered above or requested by counsel as they become available, The clerk 

shall also forward documents upon request by counsel. [MCR 6.433] 

Date 

JUDITHPULLERTON 

Judge 

CERTIFICATE OF MAILING 

20455 

Bar No. 

I certify that on this date i mailed a. COPY', of this claim of appeal to appointed counsel, defendant, court reporter(s)/recorder(s), prosecutor, 

Court of Appeals, and Michigan:Appellate Assigned Counsel System (MAACS). I also mailed a copy of the final judgment or order being ,-. 

appealed and docket entries� to' apPointed

, 

coun

,

s

, 

el. the Court of Appeals, and MAACS. I also mailed a copy of the defendant's request ..

 (i '\ for appointment of counsel to appointed :

�U

���

I

.'., the prosecutor, and MAACS. 

� � " 

Dat

--

'J� / ( �� -

'" , 

,j- 'to .:�) , : '" � 0 ,:,'(V' 

CC403 (12/96) 

-::= "'\�� \ \:,

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� ne\v' 

Page 1 of 1 �\'G�V 

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1244 Filed 04/22/15 Page 12 of 222
' CLOt>ED FOJ CASE REGISTER OF ACTIONS 09/06/11 PAGE 1 

11-028140-FC JUDGE FULLERTON FILE 01/11/11 ADJ DT 07/07/11 CLOSE 08/15/11 

GENESEE COUNTY COD SCAO:SEC B LINE 01 

D 001 GIBBS, PHILLIP, CHARLES 

2112 BARKLEY 

DOB: 11/27/93 SEX: M RACE: B 

CTN:251000405901 TCN: 

Num 

01 

02 

03 

04 

05 

06 

FLINT, MI 48504 SID: 

PIN:25FPD50984 

PROSECUTOR: LEYTON,DAVID S., 

APPOINTED P-35086 

ATY: SKINNER,JEFFREY R., 

P-31379 810-232-3044 

LOWER DISTRICT: 68TH CTY# 

INCARCERATION DATE: 

25 CASE# 10-1667FYC PRELIM: HELD 01/07/11 

DISTRICT ARRAIGNMENT: 

Num 

1 

Type 

ORG 

ORG 

LES 

ORG 

ORG 

ORG 

ORG 

Bond History 

Amount Type Posted Date Status 

$.00 Held Without Bond 

Charges 

Charge (Pacc) Asc/Trf Charge Description Offense Dt 

------------------- ------- ---------------------- ----------

750.529 ROBBERY ARMED 10/26/10 

750.529 ROBBERY ARMED 10/26/10 

750.530 ROBBERY UNARMED 

750.529 ROBBERY ARMED 10/26/10 

750.529 C ROBBERY ARMED 10/26/10 

750.89 ASSAULT TO ROB ARMED 10/26/10 

750.227B-A FELONY FIREARMS 10/26/10 

Assessments 

Account Ordered Paid Balance 

Dsp 

GTY 

GTY 

GTY 

GTY 

FNG 

FNG 

CRIME VICTIM FEE 

STATE MINIMUM COSTS 

COURT COSTS 

$130.00 $.00 $�O.OO 

$ 272 . 0 0 . $. 0 0 

,. (J $ 2:

2 . �.g. $ 5 0 0 . 0 0 $ . 0 0 \" c;; $ sm> . 0-(1', 

TOTAL: 

PAYMENT DUE: 8/15/11 

- - - - - - - - - - - - - - - - - - - - - - - - ..

 ..,'� .:.

:�� - --=0. - -,� 

$902.00 $. 00 ��S. .$9'tf.. O \ 

LATE FEE DATE: 10/11/11 �\¥> C' ::

 

('") :;? -/: ,0..,- .". �\ 

. . ' ::;It n 

Actions, Judgments, Case Notes �:j)�.. -.

.:: 

Evt 

JTW 

JTW 

JTW 

JTW 

JTW 

JTW 

1f<.o--\. .. .. --------------------------------------------------------------�-��------------

Num Date Judge Chg/Pty Event Description/Comments ;;:J '- g 

1 01/07/11 FULLERTON 

2 

3 01/13/11 

RETURN TO CIRCUIT COURT 

SET NEXT DATE FOR: 01/18/11 8:15 AM 

ARRAIGNMENT 

COLLIER-NIX 

BINDOVER RECEIVED ON 1/11/11 

ARRESTING AGENCY: CITY OF 

FLINT 

CODEFENDANT/CONSOLIDATION 

// 

. 

TYRELL HENDERSON 

PROS'S DEMAND FOR MANDATORY 

DISCLOSURE BY THE DEFENSE 

FILED 

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1245 Filed 04/22/15 Page 13 of 222
, cLoEED FOJ CASE REGISTER OF ACTIONS 09/06/11 PAGE 2 

11-028140-FC JUDGE FULLERTON FILE 01/11/11 ADJ DT 07/07/11 CLOSE 08/15/11 

4 . 

5 

6 01/14/11 

7 01/18/11 

8 

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10 01/19/11 

11 

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13 01/26/11 

14 02/04/11 

15 

16 02/25/11 

17 03/09/11 

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21 

22 

23 04/29/11 

00099 

INFORMATION 

NOTICE OF INTENT TO AMEND 

WITNESS LIST AND RE-OPEN 

PROOFS FILED 

WRITTEN DEMAND FOR TRANSCRIPT IN 

DISTRICT COURT FILED 

DUE 2/10/11 

ARRAI GNMENT 

PROCEEDING DIGITALLY RECORDED 

PLED NOT GUILTY 

I.R. DEFT PLED NOT GUILTY. 

COURT SET PRETRIAL AND TRIAL 

DATES. DEFT REMANDED WITHOUT 

BOND. 

SET NEXT DATE FOR: 02/18/11 8:15 AM 

PRE-TRIAL HEARING 

CLK 

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SET NEXT DATE FOR: 03/09/11 8:15 AM 

JURY TRIAL 

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SET NEXT DATE FOR: 02/25/11 8:15 AM CLK DMC 

PRE-TRIAL HEARING 

ADJ FROM 2-18-11 AT THE REQUES 

T OF ATTY TAFT IN CO-DEF TYREL 

HENDERSON'S CASE 

REMOVE NEXT EVENT: .02/18/11 8:15 AM 

CLK 

CLK 

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CLK 

PRE-TRIAL HEARING 

CODEFENDANT/CONSOLIDATION 

ORDER FOR CONSOLIDATION 

(11-28141-FC & 11-28140-FC) 

FILED 

AMENDED INFORMATION FILED 

PRELIMINARY EXAM FILED , n 1', c VOL I --::t.,. c: (/) 

PRELIMINARY EXAM FILED :;:.;;?: � ;:;

 -< c: "... VOL I I ..

 (J')-•. ;:: 0"'1 

PRE-TRIAL HEARING n:,.

S:: .. 10-· . 

PROCEEDING DIGITALLY REC��� � 

PRETRIAL HELD. CASE TO A::

n: '" 

REMAIN ON TRIAL DOCKET. £.j�' - -

o MISCELLANEOUS HEARING 0 

PROCEEDING DIGITALLY RECORDED 

MOTION BY APA, R. RIGGS, TO 

ADJOURN TRIAL DATE.' MOTION 

GRANTED. COURT SET NEW 

PRETRIAL AND TRIAL DATES. 

CLK 

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::::; CLK 

"-; CLK 

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SET NEXT DATE FOR: 04/01/11 8:15 AM 

PRE-TRIAL HEARING 

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SET NEXT DATE FOR: 04/05/11 8:15 AM CLK TAW 

JURY TRIAL 

PRE-TRIAL HEARING 

PROCEEDING DIGITALLY RECORDED 

PRETRIAL HELD. COURT SET 

ADDITIONAL PRETRIAL DATE. 

SET NEXT DATE FOR: 04/29/11 8:15 AM 

PRE-TRIAL HEARING 

REMOVE NEXT EVENT: 04/05/11 8:15 AM 

JURY TRIAL 

PRE-TRIAL HEARING 

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1246 Filed 04/22/15 Page 14 of 222
, CLOSED FOJ CASE REGISTER OF ACTIONS 09/06/11 PAGE 3 

11-028140-FC JUDGE FULLERTON FILE 01/11/11 ADJ DT 07/07/11 CLOSE 08/ 15 / 11 

24 

25 05/ 05/11 

26 

27 05/ 12/11 

28 

29 05/ 16/11 

30 OS / 20/11 

31 

33 06/ 24/11 

34 06/ 28/11 

35 

36 06/ 29/11 

37 06/ 30/11 

38 

39 

41 

40 07/ 05/11 

PROCEEDING DIGITALLY RECORDED 

PRETRIAL HELD. COURT SET 

ADDITIONAL PRETRIAL DATE. 

SET NEXT DATE FOR: 05/06/11 8:15 AM 

PRE-TRIAL HEARING 

CRT 

CRT 

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CLK TAW 

REMOVE NEXT EVENT: 05/06/11 8: 15 AM CLK DMC 

PRE-TRIAL HEARING 

SET NEXT DATE FOR: 05/13/11 8:15 AM .CLK DMC 

PRE-TRIAL HEARING 

ADJ FROM 5-6-11 CLK 

REMOVE NEXT EVENT: 05/13/11 8:15 AM CLK DMC 

PRE-TRIAL HEARING 

SET NEXT DATE FOR: 05/16/ 11 9:00 AM CLK DMC 

PRE -TRIAL HEARING' 

SET NEXT DATE FOR: OS / 20/11 8:15 AM CLK TAW 

PRE-TRIAL HEARING 

ADJ FROM 5/16 

PRE-TRIAL HEARING 

PROCEEDING DIGITALLY RECORDED 

PRETRIAL HELD. COURT SET 

TRIAL DATE. 

SET NEXT DATE FOR: 06/ 28/11 8:15 AM 

JURY TRIAL 

CODEFENDANT/CONSOLIDATION 

ORDER FOR CONSOLIDATION FOR 

CASE #11-28141-FC 

SET NEXT DATE FOR: 06/ 29/11 8:15 AM 

JURY TRIAL 

JURY TRIAL HALF DAY 

PROCEEDING DIGITALLY RECORDED 

THE JURY OF 14 WAS DRAWN AND 

SWORN. THE JURY WAS' EXCUSED 

UNTIL TOMORROW MORNING AT 

8:15 AM. 

JURY TRIAL WHOLE DAY 

PROCEEDING DIGITALLY RECORDED 

THE JURY RETURNED. OPENING 

STATEMENTS OF COUNSEL. PROOFS 

AND ALLEGATIONS HEARD IN 

PART. THE JURY WAS EXCUSED 

UNTIL TOMORROW MORNING AT 

8:15 AM. 

SET NEXT DATE FOR: 06/30/11 8:15 AM 

JURY TRIAL 

TRIAL CONTINUED 

JURY INSTRUCTIONS FILED 

DEFT'S PROPOSED JURY 

INSTRUCTIONS FILED 

JURY TRIAL WHOLE DAX 

PROCEEDING DIGITALLY RECORDED 

THE JURY OF 14 RETURNED AND 

HEARD FURTHER PROOFS AND 

ALLEGATIONS IN PART. THE JURY 

WAS EXCUSED UNTIL TUESDAY 

7/6/11 

SET NEXT DATE FOR: 07/06/ 11 8:15 AM 

JURY TRIAL 

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1247 Filed 04/22/15 Page 15 of 222
,CLO'SED FOJ CASE REGISTER O,c" AC'l'.lUNb V'.:J/ VO/.L.L r.M.\;I'£J ":I: 

11-028140-FC JUDGE FULLERTON FILE 01/11/11 ADJ DT 07/07/11 CLOSE 08/15/11 

42 07/06/11 

43 

44 07/07/11 

45 

46 

47 

48 

49 

50 

51 

52 

59 08/12/11 

53 08/15/11 

SENTENCE PRISON: 

TRIAL CONTINUED 

JURy TRIAL WHOLE DAY 

PROCEEDING DIGITALLY RECORDED 

THE JURY OF 14 RETURNED. THE 

COURT EXCUSED JUROR #11. 

THE JURY OF 13 HEARD FURTHER 

PROOFS AND ALLEGATIONS IN FULL 

MEMORANDUM SUPPORTING MOTION 

FOR DIRECTED VERDICT REGARDING 

COUNT 6 FELONY FIREARM FILED 

SET NEXT DATE FOR: 07/07/11 8:15 AM 

JURY TRIAL 

TRIAL CONTINUED 

00001 JURY TRIAL WHOLE DAY 

PROCEEDING DIGITALLY RECORDED 

FOUND GUILTY 

THE JURY OF 13 RETURNED AND 

HEARD ARGUMENTS OF COUNSEL 

AND CHARGES OF THE COURT. 

JUROR # B-69 WAS EXCUSED FROM 

FURTHER DELIBERATION. VERDIT 

OF THE JURY: CT 1 GUILTY ARMED 

ROBBERY; CT 2 GUILTY UNARMED 

ROBBERY; CT 3 GUILTY ARMED 

ROBBERY; CT 4 GUILTY OF 

CONSPIRACY TO COMMIT ROBBERY 

ARMED; CT 5 NOT GUILTY; CT 6 

NOT GUILTY. COURT SET 

SENTENCING DATE. DEFT REMANDED 

00002 JURY TRIAL WHOLE DAY 

FOUND GUILTY 

00003 JURY TRIAL WHOLE DAY 

FOUND GUILTY 

00004 JURY TRIAL WHOLE DAY 

FOUND GUILTY 

00005 JURY TRIAL WHOLE DAY 

FOUND NOT GUILTY 

00006 JURY TRIAL WHOLE DAY 

FOUND NOT GUILTY 

SET NEXT DATE FOR: 08/15/11 9:00 AM 

SENTENCING 

DNA ORDER FAXED 7-11-11 TO 

CITY OF FLINT POLICE DEPT. 

VERDICT FORM FILED 

CERTIFICATION AND RETURN OF ORDER 

FOR DNA SAMPLE FILED 

00001 SENTENCING 

PROCEEDING DIGITALLY RECORDED 

JACKSON. ALL COUNTS TO RUN 

CONCURRENT WITH EACH OTHER. 

DEFT TO PARTICIPATE IN 

EDUCATIONAL AND VOCATIONAL 

PROGRAMMING. DEFT TO PAY $500 

COURT COSTS; $130 CRIME 

VICTIMS FEE; $272 STATE 

MINIMUM COSTS. 

MINIMUM MAXIMUM CREDIT 

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1248 Filed 04/22/15 Page 16 of 222
. CLOSED FOJ CASE REGISTJ:!:H. ot" AC'l'.lU1\I::; U::1/ UOI .L.L r.M.\;I'£J :J 

11-028140-FC JUDGE FULLERTON FILE 01/11/11 ADJ DT 07/07/11 CLOSE 08/15/11 

. 17- 6-DDD 30-MM

-DDD YYY-MMM-287 

BEGIN 08/15/11 

$130. 00 CRIME VICTIM FEE 

$500.00 COURT COSTS 

00002 

272. 00 STATE MINIMUM COSTS 

54 

SENTENCE PRISON: 

BEGIN 08/15/11 

55 

SENTENCE PRISON: 

BEGIN 08/15/11 

56 

SENTENCE PRISON: 

BEGIN 08/15/11 

57 

58 

60 

61 08/18/11 

62 

63 

64 

65 08/23/11 

SENTENCING 

PROCEEDING DIGITALLY 

MAXIMUM 

RECORDED 

MINIMUM CREDIT 

YYY-100-DDD 15-MM

-DDD YYY-MM

-287 

00003 SENTENCING 

PROCEEDING DIGITALLY 

MINIMUM MAXIMUM 

RECORDED 

CREDIT 

17- 6-DDD 30-MM

-DDD YYY-MM

-287 

00004 SENTENCING 

PROCEEDING DIGITALLY 

MINIMUM MAXIMUM 

RECORDED 

CREDIT 

17- 6-DDD 30-MM

-DDD YYY-MM

-287 

DEFENDANTS RECEIPT OF REQUEST FOR 

APPOINTMENT OF ATTORNEY FORM FILED 

FINAL ORDER OR JUDGMENT FILED 

JUDGMENT OF SENTENCE FILED 

ORDER TO REMIT PRISONER FUNDS 

SENTENCING INFORMATION REPORT 

SENTENCING INFORMATION REPORT 

SENTENCING INFORMATION REPORT 

SENTENCING INFORMATION REPORT 

COLLECT Status - PRISON 

CRT 

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END OF SUMY .............. ...... ......... . 

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1249 Filed 04/22/15 Page 17 of 222
Approved, SCAO 

S�ATE OF MICHIGAN 

VJ-..&.!:.,l..LlCl..&. 

1st cop" 

2nd cop, 

. 7TH ·JUDICIAL CIRCUIT 

GENESEE COUNTY 

- \".ULL

 L. 

Corrections 

Corrections (for return) 

�ra copy - M1cn1gan State Police CJIC 

4th cor' Defendant 

5th cOl Prosecutor PAGE 

JUDGMENT OF SENTENCE 

COMMITMENT TO 

DEPARTMENT OF CORRECTIONS 

CASE NO. 

11-028140-FC-J 

1 

ORI 

MI-250015J 

Court Address COUNTY CLERK Court Telephone no. 

810-257-3220 

Police Report No. 25FPD50984 

THE PEOPLE OF 

Prosecuting attorney's 

LEYTON DAVID S. 

900 S. SAGINAW 

FLINT, MI 48502 

Defendant name, address, and telephone no. 

v PHILLIP CHARLES GIBBS 

2112 BARKLEY 

FLINT, MI 48504 

CTN/TCN 

251000405901 

Defendant attorney's name 

SKINNER JEFFREY R. 

I

DOB 

11/27/93 

Bar no. 

31379 

1. The defendant was found guilty on of the crime(s) stated below. 

Date 

CONVICTED BY DISMISSED CHARGl:!: CUDE(S) 

Count Plea* Court Jury BY* CRIME MCL citation/PACC code 

1 X ROBBERY ARMED 750.529 

2 X ROBBERY UNARMED 750.530 

3 X ROBBERY ARMED 750.529 

4 X ROBBERY ARMED 750.529 CONSPIRE 

5 D ASSAULT TO ROB ARMED 750.89 

6 D FELONY FIREARMS 750.227B-A 

*For plea: insert "G" for guilty plea, "NC " for nolo contendere, or "MI" for gul.lty but mentally ill. For dl.sml.ssal: 

insert "D" for dismissed by court or "NP" for dismissed by prosecutor/plaintiff. 

[J 2. The conviction is reportable to the Secretary of State under MCL 257.625(21) (b). 

Defendant's driver's license number 

[J 3. HIV testing and sex offender registration is completed. 

[J 4. The defendant has been fingerprinted according to MCL 28.243. 

\ - c-;. 

IT IS ORDERED: 

[J 5. Probation is revoked. 

6. Participating in a special 

7. The defendant is sentenced 

sentence shall be executed 

SENTENCE MINIMUM 

\.-' <2 en -', 

c-:,?-' ' .. :i" r"

 ,�v 

::;::;.u;: __ -u i - 1 

alternative incarceration unit is [J prohii�g-, � pe@itted. 

to custody of the Michigan Department of ���ions. T� 

immediately 10""T1-- ;:r:J8 •• - rn -:;. �_' 

MAXIMUM 

,-.-. 

DATE SENTENCE I-;:rAIL CREDIT 

Count DATE Years Mos. Days Years Mos. BEGINS Mos. Days 

. � - .lNFORMA.'l r-J 

-, -' "'" �--' M t" ' -

-;,:.; t, .' 0 

1 8/15/11 17 6 30 8/15/11 287 0 

2 8/15/11 100 15 8/15/11 287 

3 8/15/11 17 6 30 8/15/11 287 

4 8/15/11 17 6 30 8/15/11 287 

[J 8. Sentence (s) to be served consecutively to (If this item is not checked, the sentence is concurrent.) 

[J each other. [J case numbers 

SEE NEXT PAGE 

CC 219b (3/10) JUDGMENT OF SENTENCE, COMMITMENT TO DEPARTMENT OF CORRECTIONS 

MeL 765.15(2), MeL 769.1k, MeL 769.16a, MeL 775.22, MeL 780,766, MeR 6.427 

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1250 Filed 04/22/15 Page 18 of 222
3rd copy - Michigan State Police CJIC 

1st cop' Corrections 4th cor '. Defendant 

Approved, SCAO 2nd coP. Corrections (for return) 5th cOl Prosecutor 

�S���A�TE �F� MICHIG ----��------------------------� PAGE 

CASE NO. 

7TH JUDICIAL CIRCUIT 

GENESEE COUNTY 

JUDGMENT OF SENTENCE 

COMMITMENT TO 

DEPARTMENT OF CORRECTIONS 

11-028.140 -FC-J 

2 

9. The defendant shall pay: $130.00 CRIME VICTIM FEE $272.00 STATE MINIMUM COSTS 

$500.00 COURT COSTS $902.00 TOTAL $902.00 BALANCE 

The due date for payment is 8/15/11. Fine, costs, and fees not paid within 56 days 

of the due date are subject to a 20% late penalty on the amount owed. 

o 10. The concealed weapon board shall 0 suspend for __ days 0 permanently revoke the 

concealed weapon license, permit number , issued by _____________ ____ _ 

County. 

o 11. The defendant is subject to lifetime monitoring under MCL 750.520n. 

12. Court recommendation: 

--. 

' . � 

JACKSON. ALL COUNTS TO RUN CONCURRENT WITH EACH OTHER. 

DEFT TO PARTICIPATE IN EDUCATIONAL AND VOCATIONAL 

PROGRAMING. DEFT TO PAY $500 COURT COSTS; $130 CRIME 

VICTIMS FEE; $272 STATE MINIMUM COSTS. 

0 

0 

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20455 

Date Jud� e��� H�AN�� Nn-nFULE TT

TL� ER�T�O�Nr------------------� Bar no. 

I certify that this is a correct and complete abstract from the original court records. 

The sheriff shall, without needless delay, deliver the defenda�, to the Michigan Department 

of Corrections at a place designated b� the.e:r1imen�. 

. ..

 

(SEAL) 

De 

CC 219b (3/10) JUDGMENT OF 

LAST PAGE 

OF CORRECTIONS 

MeL 765.15(2), MeL 769.1k, MeL 769.16a, MeL 775.22, MeL 780.766, MCR 6.427 

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1251 Filed 04/22/15 Page 19 of 222
IN THE MICHIGAN COURT OF APPEALS 

ORDER 

Re: People of MI v Phillip Charles Gibbs; People of MI v Tyrell Henderson 

Docket No. 306124; 306127 

L.C. No. 1l-028140-FC; 1l-028141-FC 

Deborah A. Servitto, Judge, acting under MCR 7.211 (E)(2), orders: 

These appeals are CONSOLIDATED to advance the efficient administration of the 

appellate process. 

A true copy entered and certified by Larry S. Royster, Chief Clerk, on 

DEC 07 2011 

Date 

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1252 Filed 04/22/15 Page 20 of 222
 RECEIVED by Michigan Court of Appeals 5/23/2012 11:05:59 PM

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Cover Sheet

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Filing Party

Filing Party Last Name or Business/Entity/Agency Name

GIBBS CHARLES PHILLIP

Filing Party First Name M.I.

Address (Street 1, Street 2, City, State, and ZIP Code)

Attorney Last Name

Robinson

Attorney First Name M.I. P Number

Brandy Y 66895

Address(Street 1, Street 2, City, State, and ZIP Code)

645 Griswold Street

Suite 3300

Detroit MI 48226

Attorney Telephone Number

(313)256-9833

Summary of Items Filed

 Filing Doc Total

Type Filename/Description Fee Fee This Filing

 Brief Brief on Appeal $5.00 ---- $5.00

 3% Service Fee: 

Total All Filings: 

$0.15

Fee Substitute/Alternate Payment $5.15

Reason:

X Appointed Counsel

Motion To Waive Fee

Fees Waived in this Case

MI InterAgency Transfer

No Fee per MCR 7.203(F)(2)

Filer Office Use Only: 25680

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

306124 - 263564

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1253 Filed 04/22/15 Page 21 of 222
 RECEIVED by Michigan Court of Appeals 5/23/2012 11:05:59 PM

Case Name: PEOPLE OF MI V PHILLIP CHARLES GIBBS

On , one copy of the following documents: 5/23/2012

Brief Brief on Appeal

was delivered to the persons listed below:

Date Signature

5/23/2012 /s/Brandy Y. Robinson

 Bar Delivery 

 Number Name Method Service Address

P- AO, SADO E-Serve ao@sado.org

P- AO Support,

Genesee County

E-Serve vhaley@co.genesee.mi.us

P- 66895 Robinson, Brandy Y E-Serve brobinson@sado.org

P- lamarre, lisa E-Serve llamorre@sado.org

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Proof of Service

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1254 Filed 04/22/15 Page 22 of 222
Approved, Michigan Court of Appeals 

 

LOWER COURT 

Genesee County Circuit Court 

Electronically Filed 

BRIEF COVER PAGE

CASE NO. 

Lower Court 11-28140FC

Court of Appeals 306124

 

 (Short title of case) 

Case Name: People v. Phillip Charles Gibbs

 

1. Brief Type (select one): APPELLANT(S)

CROSS-APPELLANT(S)

APPELLEE(S)

CROSS-APPELLEE(S)

 REPLY

AMICUS

 OTHER [identify]: 

2. This brief is filed by or on behalf of [insert party name(s)]: Phillip Charles Gibbs

3. This brief is in response to a brief filed on by . 

4. ORAL ARGUMENT: REQUESTED NOT REQUESTED

5. THE APPEAL INVOLVES A RULING THAT A PROVISION OF THE CONSTITUTION, A STATUTE, 

RULE OR REGULATION, OR OTHER STATE GOVERNMENTAL ACTION IS INVALID. [See MCR 7.212(C)(12) to determine if this applies.] 

6. As required by MCR 7.212(C), this brief contains, in the following order: [check applicable boxes to verify] 

 Table of Contents [MCR 7.212(C)(2)] 

 Index of Authorities [MCR 7.212(C)(3)] 

 Jurisdictional Statement [MCR 7.212(C)(4)] 

 Statement of Questions [MCR 7.212(C)(5)] 

 Statement of Facts (with citation to the record) [MCR 7.212(C)(6)] 

 Arguments (with applicable standard of review) [MCR 7.212(C)(7)] 

 Relief Requested [MCR 7.212(C)(9)] 

 Signature [MCR 7.212(C)(9)] 

7. This brief is signed by [type name]: Brandy Y. Robinson 

 Signing Attorney’s Bar No. [if any]: (P66895 )

(10/06) E-File Brief Cover Page MCR 7.212(C)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.....................................................................................................i 

STATEMENT OF JURISDICTION ......................................................................................iv 

STATEMENT OF QUESTIONS PRESENTED ...................................................................v 

STATEMENT OF FACTS ....................................................................................................... 1 

ARGUMENTS 

I. THE TRIAL COURT VIOLATED MR. GIBBS’ SIXTH AMENDMENT RIGHT TO 

A PUBLIC TRIAL BY CLOSING THE COURTROOM AND EXCLUDING 

MEMBERS OF HIS FAMILY FROM JURY SELECTION. ..........................................8 

II. MR. GIBBS’ FIFTH AMENDMENT RIGHT TO REMAIN SILENT WAS 

VIOLATED WHEN THE PROSECUTOR USED HIS PRE-ARREST SILENCE TO 

IMPEACH HIS EXCULPATORY TESTIMONY AT TRIAL, AND THE 

PROSECUTOR THEN REFERRED TO THE SILENCE DURING CLOSING 

ARGUMENT................................................................................................................... 12 

III. BECAUSE THE COURT BELOW MADE THREE GUIDELINES-SCORING 

MISTAKES, AND CORRECTING THE MISTAKES WOULD SUBSTANTIALLY 

REDUCE THE GUIDELINES RANGE, MR. GIBBS MUST BE RESENTENCED.15 

SUMMARY AND RELIEF AND REQUEST FOR ORAL ARGUMENT ..........................25 

BYR*BOA with Trim.doc*25680 May 23, 2012 

Phillip Charles Gibbs 

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TABLE OF AUTHORITIES 

CASES 

Combs v Coyle, 205 F3d 269 (6th Cir 2000) ...................................................................................................12 

People v Dendel, 481 Mich 114 (2008)...............................................................................................................8 

Feld v Robert & Charles Beauty Salon, 435 Mich 352 (1990) .........................................................................20 

Gannet Co v DePasquale, 443 US 368 (1979)....................................................................................................9 

Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66 (2006) ........................................................................20 

In re MKK, 286 Mich App 546 (2009) ...........................................................................................................18 

Miller v Allstate Ins. Co., 481 Mich 601 (2008) ..............................................................................................20 

Neder v United States, 527 US 1 (1999)...........................................................................................................11 

In Re Oliver, 333 US 257 (1948) ........................................................................................................................8 

People v Anderson, 446 Mich 392 (1994).........................................................................................................11 

People v Cannon, 481 Mich 152 (2008)............................................................................................................23 

People v Cannon, 481 Mich 152 (2008)............................................................................................................22 

People v Carines, 460 Mich 750 (1999)........................................................................................................8, 11 

People v Collier, 426 Mich 23 (1986)..................................................................... 12; 13 

People v Dye, 431 Mich 58 (1988)....................................................................................................................12 

People v Endres, 269 Mich 414 (2006).............................................................................................................18 

People v Francisco, 474 Mich 82........................................................................................................................15 

People v Harmon, 248 Mich App 522 (2001)..................................................................................................22 

People v Hegwood, 465 Mich 432 (2001)..........................................................................................................21 

People v Johnson, 293 Mich App 79 (2011) .....................................................................................................18

People v Koonce, 466 Mich 515 (2002) .............................................................................................................18 

People v Lee, 391 Mich 618 (1974) ..................................................................................................................15 

i

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People v Malkowski, 385 Mich 244 (1971)......................................................................................................15 

People v McPherson, 263 Mich App 124 (2004)..............................................................................................12 

People v Morson, 471 Mich 248 (2004) ............................................................................................................15 

People v Stone, 195 Mich App 600 (1992).......................................................................................................20 

Presley v Georgia, 558 US _, 130 S Ct 721 (2010) ................................................................................. 8, 9, 10 

Press-Enterprise Co v Superior Court, 478 US 1 (1980)......................................................................................9 

Salem v Jenkins, 414 F Supp 2d 687 (ED Mich 2006)..................................................................................10 

In re TD, __ Mich App __ (May 26; 2011) (Docket No. 294716) ............................................................19 

Taylor v Michigan Public Utilities Comm., 217 Mich 400 (1922).....................................................................20 

Tellin ex rel Hinga v Forsyth Tp., 291 Mich App 692 (2011).........................................................................18 

Townsend v Burke, 334 US 736 (1948) ............................................................................................................15 

US Fidelity Insurance & Guaranty Co v Michigan Catastrophic Claims Ass'n, 482 Mich 414 (2008) ............18 

United States v Marcus, 130 S Ct 2159 (2010) ................................................................................................11 

Waller v Georgia, 467 US 39 (1984)........................................................................................................ 8, 9, 11 

Washington v Recuenco, 548 US 212 (2006) .....................................................................................................11 

CONSTITUTIONS, STATUTES, COURT RULES 

MCL 712A.1(2) ..............................................................................................................................................19 

MCL 712A.1 et seq............................................................................................................................................19 

MCL 712A.2(a)(1)............................................................................................................................................21 

MCL 750.529 .................................................................................................................................................1 

MCL 750.530 .................................................................................................................................................1 

MCL 777.40 ................................................................................................................................................23 

MCL 777.43(1) ..................................................................... 22; 23; 24 

MCL 777.51; 777.52 ........................................................................................................................................19 

ii

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MCL 777.53 ................................................................................................................................................22 

MCL 777.53; 777.54 ........................................................................................................................................19 

MCL 777.55(1) ...................................................................................... 16; 19 

MCL 777.55(3) .................................................................................................................................................20 

MCL 777.56(1) ................................................................................ 17; 18; 20 

MCL 777.57 ................................................................................................................................................23 

MCR 2.613(A) ..................................................................................................................................................15 

US Const; amend VI .........................................................................................................................................8 

iii

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STATEMENT OF JURISDICTION

 Defendant-Appellant was convicted in the Genesee County Circuit Court by jury trial, and a 

Judgment of Sentence was entered on August 15, 2011. A Claim of Appeal was filed on September 

16, 2011 by the trial court pursuant to the indigent defendant's request for the appointment of 

appellate counsel dated September 6, 2011, as authorized by MCR 6.425(F)(3). This Court has 

jurisdiction in this appeal as of right provided for by Mich Const 1963, art 1, §20, pursuant to MCL 

600.308(1); MCL 770.3; MCR 7.203(A), MCR 7.204(A)(2). 

iv

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v

STATEMENT OF QUESTIONS PRESENTED

I. DID THE TRIAL COURT VIOLATE MR. GIBBS’ SIXTH AMENDMENT RIGHT TO A 

PUBLIC TRIAL BY CLOSING THE COURTROOM AND EXCLUDING MEMBERS OF 

HIS FAMILY FROM JURY SELECTION? 

Trial Court made no answer. 

Defendant-Appellant answers, "Yes". 

II. WAS MR. GIBBS’ FIFTH AMENDMENT RIGHT TO REMAIN SILENT VIOLATED 

WHEN THE PROSECUTOR USED HIS PRE-ARREST SILENCE TO IMPEACH HIS 

EXCULPATORY TESTIMONY AT TRIAL, AND WHEN THE PROSECUTOR THEN 

REFERRED TO THE SILENCE DURING CLOSING ARGUMENT? 

Trial Court made no answer. 

Defendant-Appellant answers, "Yes". 

III. BECAUSE THE COURT BELOW MADE THREE GUIDELINES-SCORING 

MISTAKES, AND CORRECTING THE MISTAKES WOULD SUBSTANTIALLY 

REDUCE THE GUIDELINES RANGE, MUST MR. GIBBS MUST RESENTENCED? 

Trial Court answers, "No". 

Defendant-Appellant answers, "Yes". 

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STATEMENT OF FACTS

On October 26, 2011, the lives of Defendant-Appellant Phillip Charles Gibbs, two Flint 

pawn-shop owners, and one of the shop’s employees were changed forever when Mr. Gibbs – a 

mere sixteen years old at the time – entered the pawn shop with co-defendant Tyrell Henderson and 

participated in a robbery. Gibbs was unarmed during the crime and insisted he knew nothing of 

Henderson’s plans. Instead, he acted under the very-real stress of knowing that his out-of-control 

co-defendant might turn the gun on him for failing to assist. 

* * * * * 

 It was undisputed that Mr. Gibbs was the more passive actor during the robbery, which was 

recorded on the store’s surveillance system. Costas Anagnostopoulos, the owner of Flint-based 

Wholesale 4 U,1

 testified that around 4:00 p.m. on October 26th, Mr. Henderson entered the store 

alone and purchased a video game. [Trial 6/29/11, p 252-253]. Henderson later returned, this time 

with Mr. Gibbs, and claimed the game was not working properly. Mr. Anagnostopoulos directed his 

employee, Jeremy Kassing, to troubleshoot the problem on the store’s Xbox game system. In the 

meantime, Mr. Anagnostopoulos brought over a power supply to aid with the assessment. It was 

then that Mr. Henderson hit Mr. Anagnostopoulos suddenly with a gun on the back of his neck, 

causing him to nearly fall to the ground. Mr. Henderson was pointing the gun at Mr. 

Anagnostopoulos and ordered him to sit on the floor. Mr. Henderson then demanded and took Mr. 

Anagnostopoulos’ rings, neck jewelry, wallet, and money at gunpoint. [Trial 6/29/11, p 258-263]. 

He also ordered Mr. Anagnostopoulos to open the cash register. [Trial 6/29/11, p 263]. In reciting 

what happened next, Mr. Anagnostopoulos began to testify not based on his knowledge or memory, 

 

1

 The witness testified that the shop was also known as Wholesale 2 U. Despite having a reputation 

otherwise, Mr. Anagnostopoulos was adamant that his store was not at all functioning as a pawn 

shop. [Trial 6/29/11 245]. 

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but by narrating the contents of the surveillance video in response to questions asked by the 

prosecutor. [Trial 6/30/11, p 5-8]. 

 Mr. Anagnostopoulos noted that Mr. Henderson took him to an office inside the store and 

ordered him to open up the safe. Mr. Henderson was calling Mr. Anagnostopoulos racial slurs and 

threatening to shoot and kill him, and then hit him with the gun again on the side of his face.2 [Trial 

6/30/11, p 9, 14-15]. Mr. Henderson directed Mr. Anagnostopoulos to hand him everything from 

inside the safe, including a gun he kept there. [Trial 6/30/11, p 23]. Some of the other stolen goods 

included paper money, gold coins, silver dollars, silver certificates, foreign currency, three Rolex 

watches, and a gold Fossil watch. [6/30/11 Trial, p 39-44]. 

Mr. Henderson and Mr. Gibbs ultimately left the store and Mr. Anagnostopoulos, his wife, 

and Mr. Kassing followed to determine where the two men went. [Trial 6/30/11, p 27-29]. The 

police called and eventually arrived on the scene in response to receiving a silent panic alert from 

inside the store from Mr. Kassing. [Trial 6/30/11, p 29-31]. 

Mr. Anagnostopoulos was able to pick out Mr. Gibbs in a subsequent corporeal line-up, but 

could not identify Mr. Henderson.3

 [Trial 6/30/11, p 32-35]. According to him, his watches and 

Visa debit card was recovered, but several items taken during the robbery were never returned to 

him. [Trial 6/30/11, p 34-37]. 

 Nancy Anagnostopoulos was a joint owner of the Wholesale 4 U business with her 

husband Costas. [Trial 6/29/11, p 8-9]. She arrived at the store around 5:25pm on the day of the 

robbery, thirty minutes before closing. Her husband and Jeremy Kassing were present, and she sat 

down and down began reading a book [Trial 6/29/11, p 41-42]. Like her husband, Mrs. 

 

2

 Part of Mr. Anagnostopoulos’ ear was cut from being hit with the gun, requiring four stitches. He 

also claimed to have more frequent headaches as a result. [Trial 6/30/11, p 45-46]. 3

 Mr. Anagnostopoulos was able to identify both men at trial. [Trial 6/29/11, p 251-252]. 

2

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Anagnostopoulos recounted what happened next by walking the prosecutor and jury through the 

contents of the video, rather than testifying from her memory. 

As her husband and Mr. Kassing worked to troubleshoot the video game, Mrs. 

Anagnostopoulos heard a loud crack. She stood up and saw her husband going down on the floor, 

and Mr. Gibbs approached her. He jerked the necklaces from her neck and tried to remove Mrs. 

Anagnostopoulos’ ring from her finger.4 When he could not remove the ring himself, he directed 

Mrs. Anagnostopoulos to either do so, or risk him cutting it off. Mr. Gibbs reached into all of Mrs. 

Anagnostopoulos’ pockets and took her identification, ATM card, concealed pistol license, and 

money. [Trial 6/29/11, p 62-65, 94]. Mr. Henderson later double checked Mr. Gibbs’ work in this 

regard. [Trial l6/29/11, p 117]. Mr. Gibbs never had possession of a gun, knife, or any other 

weapon and never threatened to beat, stab, shoot, or otherwise injure her, her husband, or Mr. 

Kassing. [Trial 6/29/11, p 106-110]. 

Mrs. Anagnostopoulos could see the gun in Mr. Henderson’s hand, and heard him yelling 

racial slurs and threats at her husband. [Trial 6/29/11, p 66-67, 121-124]. When Henderson led Mr. 

Anagnostopoulos into the back room, Mr. Gibbs began removing money from the cash register. He 

also took an iPod, and according to Mrs. Anagnostopoulos, Mr. Gibbs retrieved several laptops 

from the showcase because Mr. Henderson had instructed him to do so. Mr. Gibbs was hesitant to 

go behind the showcase to obtain more merchandise, so Mrs. Anagnostopoulos volunteered to do 

so for him. [Trial 6/29/11, p 67-70]. Mr. Gibbs did not say much else to her, but he yelled to Mr. 

Henderson to “come on” and that they had three minutes. [Trial 6/29/11, p 71-72]. At that point 

(but only after double-checking whether Mr. Gibbs properly emptied the register), Mr. Henderson 

picked up a duffle bag, threw it at Mr. Gibbs, and yelled at him to put the laptops inside. [Trial 

6/29/11, p 67, 73-74]. Mr. Gibbs “just did it,” according to Mrs. Anagnostopoulos. Mr. 

3

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Henderson then directed Mr. Gibbs to wait before leaving, as they couldn’t exit with the items so 

conspicuously.5 Mr. Henderson then emptied Mrs. Anagnostopoulos’ purse. [Trial 6/29/11, p 74]. 

The two men left and Mrs. Anagnostopoulos, her husband and Mr. Kassing conveyed information 

about the event to the police. [Trial 6/29/11, p 85, 89-93]. In separate live-lineups conducted later, 

Mrs. Anagnostopoulos selected Mr. Gibbs and Mr. Henderson as her assailants. [Trial 6/29/11, p 

99-104]. She also identified the men in court. 

Jeremy Kassing added that the store had a hand-held silent panic alarm system, and he 

pressed the device nine times during the robbery to alert the police. [Trial 6/30/11, p 78-79]. Mr. 

Kassing identified Mr. Gibbs as one of his assailants both during a lineup and at trial. [Trial 

6/30/11, p 79-80, 101-103]. Like the other two witnesses, Mr. Kassing confirmed that only Mr. 

Henderson had a gun during the incident. Additionally, it was only Mr. Henderson who demanded 

that Mr. Kassing empty his pockets. [Trial 6/30/11, p 81-82, 97]. Mr. Kassing perceived Mr. 

Henderson as the leader of the robbery, inasmuch as he was telling Mr. Gibbs what to do. [Trial 

6/30/11, p 115-116]. 

Officer Michael Ross of the Flint Police Department responded to the radio dispatch 

regarding the incident. [Trial 6/29/11, p 149, 151]. He took descriptions of the suspects, watched a 

portion of the surveillance video, and looked for potential fingerprints that could be lifted from the 

scene. [Trial 6/26/11, p 154-155, 157-159]. 

After speaking with Officer Ross and watching the surveillance video, Michele Champion 

(then an identification technician for the Flint Police Department), processed a video game, a 

countertop, the safe, and a glass display cases inside the shop in an effort to locate fingerprints 

 4

 Mrs. Anagnostopoulos claimed to suffer whiplash from the snatching incident. [Trial 6/29/11, p 

94]. 

5

 Jeremy Kassing recalled this sequence of events similarly, noting that Mr. Henderson told Mr. 

Gibbs he couldn’t look so suspicious, and then went back and found another bag. [Trial 6/30/11, p 

93]. 

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[Trial 6/29/11, p 183, 187-190, 206-207]. She then submitted the prints for further identification 

through the Automated Fingerprint Identification System (AFIS), a national database. [Trial 

6/29/11, p 197-198]. Mary Martin, an AFIS employee and sworn expert in fingerprint 

identification and comparison, then testified that one of the prints recovered matched Mr. Gibbs’ 

left ring finger, while another matched Mr. Henderson’s left ring finger. She also determined that 

one of the prints belonged to Costas Anagnostopoulos. [Trial 6/29/11, p 230-233]. Phillip Thick, 

another AFIS employee and fingerprint expert, added that a separate print recovered from the scene 

matched Mr. Gibbs’ left thumb. [Trial 7/6/11, p 8, 16, 23-24]. 

Sergeant Shawn Ellis testified as the officer in charge of the investigation. [Trial 6/30/11, 

p 143]. After receiving the AFIS report, Sergeant Ellis followed-up with Mr. Gibbs, who turned 

himself in. He obtained consent from Mr. Gibbs’ mother to search her house, and there the officer 

recovered, inter alia, (1) a Ziploc bag with miscellaneous jewelry, (2) a Sam’s Club card bearing Nancy 

Anagnostopoulos’ name and picture, (3) three Rolexes and a Fossil watch, and (4) coins and foreign 

currency. [Trial 6/30/11, p 152-153, 156-161]. 

Sergeant Ellis obtained a statement from Mr. Gibbs after he voluntarily surrendered. He 

claimed that Mr. Gibbs waived his Miranda rights and that the statement was recorded, although he 

was unable to produce the recording at the time of trial. [Trial 6/30/11, p 203, 211-212]. According 

to Sergeant Ellis, Mr. Gibbs said he and Mr. Henderson went to the pawn shop to try and sell some 

jewelry. They were trying to raise money to buy marijuana, but were told the jewelry was fake. [Trial 

6/30/11, p 212]. Mr. Henderson then bought a video game for them to play and the two men left 

the store. [Trial 7/6/11, p 34]. Henderson changed his mind and decided to return the game, and 

Mr. Gibbs accompanied him back to the pawn shop. Mr. Gibbs did not know that Henderson was 

going to rob the place, but once inside, Henderson pulled out the handgun, hit the store owner with 

it, and ordered Mr. Gibbs to take Mrs. Anagnostopoulos’ cell phone and jewelry along with laptops 

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and other items. [Trial 7/6/11, p 34-35]. Mr. Gibbs noted that Mrs. Anagnostopoulos offered to 

help him and ultimately did so. He acknowledged carrying away items from the store and said they 

drove around for thirty minutes and eventually ended up at Mr. Gibbs’ house. Mr. Henderson said 

he would pay Mr. Gibbs $100 to keep the items, but Mr. Gibbs was never paid and Mr. Henderson 

never came back to pick up anything he had left. Amongst the items police recovered from Mr. 

Gibbs was a Pittsburgh Pirates hat that he said belonged to Mr. Henderson. [Trial 7/6/11, p 36-37]. 

Lastly, Phillip Gibbs testified in his own defense. He was sixteen years old on the day of 

the robbery. [Trial 7/6/11, p 87-88]. He acknowledged being in the store earlier in the day in an 

effort to sell Mr. Henderson’s jewelry in exchange for money for marijuana. [Trial 7/6/11, p 90-91]. 

After learning that the jewelry had no value, he informed Mr. Henderson of that and the two men 

returned to the store to buy a video game instead. Mr. Gibbs went back to the store a third time 

with Henderson, who intended to seek a refund. As Mr. Anagnostopoulos and Mr. Kassing plugged 

up the video game for testing, Mr. Gibbs heard a smacking / clapping noise and saw Mr. 

Anagnostopoulos falling to the floor. [Trial 7/6/11, p 91-94]. Mr. Gibbs then saw Mr. Henderson 

with a large gun in his hand, and was startled when he realized Henderson had hit Mr. 

Anagnostopoulos with the gun. [Trial 7/6/11, p 95]. Mr. Gibbs knew what Mr. Henderson was 

doing was wrong, but he complied with his orders to retrieve items from Nancy. This was because 

he was hoping not to be injured himself, as he was afraid of Mr. Henderson’s gun. [Trial 7/6/11, p 

96]. Accordingly, he took the money from the cash register and complied with the order to take the 

laptops from the showcase even though he really wanted no part of the robbery. Although Mr. 

Gibbs did not run when Mr. Henderson was out of sight, he was thinking to himself that he hoped 

Mr. Henderson would not hurt anybody. [Trial 7/6/11, p 97-101]. Mr. Henderson emerged from 

the back and checked the cash register again, then threw a duffle bag on the floor with directions for 

Mr. Gibbs to fill it with laptops. Moreover, he called Mr. Gibbs dumb or stupid for leaving the 

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store with the items exposed, and retrieved Mrs. Anagnostopoulos’ purse to carry the gun and some 

of the laptops. [Trial 7/6/11, p 101-103]. Consistent with his police statement, Mr. Gibbs indicated 

that he was taken home and agreed to hide the goods at his house after being pressured by Mr. 

Henderson. [Trial 7/6/11, p 106-107]. 

Ultimately, a Genesee County jury refused to hold Mr. Gibbs accountable for the weapon 

Mr. Henderson used to effectuate the crime. Nevertheless, Mr. Gibbs was still convicted of two 

counts of armed robbery,6 one count of unarmed robbery,7 and one count of conspiracy to commit 

armed robbery8 on July 2, 2011 following a five-day trial before the Honorable Judith A. Fullerton. 

[Trial 7/7/11, p 59-60]. 

At sentencing, trial counsel agreed to the scoring of the prior record variables, but 

challenged the points assessed against Mr. Gibbs for OV 4 and OV 13. [Sentence 8/15/11, p 9-18]. 

Notwithstanding his relatively lesser culpability, minimal past, and youthful status, Judge Fullerton 

ordered Mr. Gibbs to serve concurrent sentences at the very top of his guidelines of (1) 17.5 years to 

30 years imprisonment for the armed robbery and conspiracy charges, and (2) 100 months to 15 

years imprisonment for unarmed robbery charge. [Sentence 8/15/11, p 25-26]. Presently 

incarcerated, this is Mr. Gibbs’ appeal of right. 

 

6

 MCL 750.529. 

7

 MCL 750.530. 

8

 750.157a. 

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ARGUMENT

I. THE TRIAL COURT VIOLATED MR. GIBBS’ SIXTH 

AMENDMENT RIGHT TO A PUBLIC TRIAL BY CLOSING THE 

COURTROOM AND EXCLUDING MEMBERS OF HIS FAMILY 

FROM JURY SELECTION. 

Issue Preservation and Standard of Review. Trial counsel did not object to the closing of the 

courtroom during voir dire. Accordingly, the plain error standard of review applies. See People v 

Carines, 460 Mich 750, 763 (1999). Since this issue implicates Mr. Gibbs’s Sixth Amendment right to 

a public trial, this Court reviews the claim de novo. People v Dendel, 481 Mich 114 (2008). 

Argument. The Sixth Amendment directs that “[i]n all criminal prosecutions, the accused 

shall enjoy the right to a speedy and public trial. . . .” US Const; Am VI (emphasis added). This right 

applies to state prosecutions under the Fourteenth Amendment. In Re Oliver, 333 US 257, 273 

(1948). The policy considerations underlying the right to a public trial are compelling: “The 

requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt 

with and not unjustly condemned, and that the presence of interested spectators may keep his triers 

keenly alive to a sense of their responsibility and to the importance of their functions. . . .” Waller v 

Georgia, 467 US 39, 46 (1984) (quoting In re Oliver, supra at 270, n 25). 

In a recent per curiam decision, the United States Supreme Court noted unequivocally that the 

right to an open courtroom applies to the jury selection phase of the trial and, in particular, the 

examination of prospective jurors. Presley v Georgia, 558 US _; 130 S Ct 721, 725 (2010). This 

holding does not create a new right; it simply re-affirms what the Court recognized 28 years ago in 

Waller v Georgia, supra.9 The beneficiary of the right to a public trial is both the accused and the 

 

9 Among the values furthered by the public trial guarantee are: (1) to ensure a fair trial; (2) to remind the 

prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to 

encourage witnesses to come forward; and (4) to discourage perjury. Waller, supra at 46-47. 

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public-at-large. The right is grounded in the Sixth Amendment, Gannet Co v DePasquale, 443 US 368, 

380 (1979), as well as the First Amendment. See Press-Enterprise Co v Superior Court, 478 US 1 (1980). 

Presley reminds us that the selection of a jury is itself a matter of importance, “not simply to 

the adversaries, but to the criminal justice system.” Presley, supra at 724-25 (quoting Press-Enterprise 

Co, supra at 505.) The Presley majority used strong language, declaring that under the Court’s “clear 

precedents,” it was “so well settled that the Sixth Amendment right extends to jury voir dire that this 

Court may proceed by summary disposition.” Id. at 722–24. The tenor of the opinion demonstrates 

the Court’s frustration with repeated failures to abide by its holdings. 

Presley reemphasized that “[t]rial courts are obligated to take every reasonable measure to 

accommodate public attendance at criminal trials,” including at jury selection. Id. at 724. What is 

obvious from the Court’s discussion is that the first and foremost “obligation” is the duty to ensure 

the courtroom is open and not unduly restricted by staff or court officers. Furthermore, given the 

purposes of the public trial right articulated in Waller, it follows that the “integrity and public 

reputation of the judicial proceedings” is damaged when jury selection is closed to the public. 

 Here, the record is unclear as to whether Judge Fullerton knew her staff closed off the 

courtroom during voir dire. The Judge mentions at the very beginning that “if any spectators would 

like to come in they’re welcome,”10 yet affidavits submitted by several members of DefendantAppellant’s family suggest that court personnel told them exactly the opposite. Mr. Gibbs’ mother, 

sister, and brother-in-law have all attested that they, members of the co-Defendant’s family, and 

other members of the public were prevented from entering the courtroom during jury selection. 

Affidavits, Appendix A. Although these statements are not a part of the existing record, a remand is 

being requested so that Mr. Gibbs has an opportunity to further develop the issue for appeal. If it 

turns out to be true that access was restricted based solely on the need to conduct voir dire, Presley 

 

10 [Trial 6/28/11, p 4].

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indicates that reasonable alternatives had to be considered even if not advanced by the parties. 

Presley, supra at 725. Acceptable options could have included “reserving one or more rows for the 

public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective 

jurors not to engage or interact with audience members.” Id. at 725. 

 Although there was no specific objection to the courtroom closure, the Supreme Court has 

noted that the lack of a complete objection has no bearing on the issue of whether the public trial 

right has been violated: “The public has a right to be present whether or not any party has asserted the 

right.” Presley, supra at 724-25 (emphasis added). This language places the responsibility for ensuring 

the right to a public trial firmly at the feet of the trial judge, not the defendant. For example, in 

Salem v Jenkins, 414 F Supp 2d 687, 696 (ED Mich 2006) the district court held that “the Michigan 

Court of Appeals’ decision that counsel failed to preserve this issue was based on the incorrect belief 

that Waller required Petitioner’s attorney to advance specific objections.” To the contrary, it is not 

necessarily incumbent upon the defendant to contest a closed courtroom; rather, it is the onus of the 

trial court to ensure the public is granted access to a trial, thus preserving not only the defendant’s 

right, but also the rights of the public-at-large. Presley, supra at 721. Furthermore, the public has a 

right of access to criminal trials that may not be waived. Presley was decided as a Sixth Amendment 

case, but the Supreme Court reiterated that the right to a public trial is also guaranteed by the First 

Amendment: “The Court has further held that the public trial right extends beyond the accused and 

can be invoked under the First Amendment. This requirement, too, is binding on the States.” 

Presley, supra at 723. 

By contrast, this Court has held that “the failure to timely assert the right to a public trial 

forecloses the later grant of relief.” People v Vaughn, –– Mich App –– (Docket No. 292385, 

December 28, 2010), slip op 7. Yet, this reasoning cannot stand in the face of compelling U.S. 

Supreme Court statements to the contrary. 

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 The attached affidavits provide strong support to Mr. Gibbs’ claim that his right to a public 

trial was violated. It is equally clear that this violation, if allowed to become a matter of record, 

amounts to “structural” error, Waller supra, at 50 n. 9, since it “‘affect[s] the ‘framework within which 

the trial proceeds.’” United States v Marcus, 130 S Ct 2159, 2164 (2010) (quoting omitted). Automatic 

reversal is thus required. Washington v Recuenco, 548 US 212, 218-19 (2006). 

Even under plain error review, reversal is warranted. Carines, supra at 763. Since a violation 

of the public trial right is among the limited class of cases that involve structural error, prejudice is 

presumed, a violation of substantial rights has occurred, and a new trial is required. Neder v United 

States, 527 US 1, 8-9 (1999); People v Anderson, 446 Mich 392, 40 (1994). 

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II. MR. GIBBS’ FIFTH AMENDMENT RIGHT TO 

REMAIN SILENT WAS VIOLATED WHEN THE 

PROSECUTOR USED HIS PRE-ARREST SILENCE TO 

IMPEACH HIS EXCULPATORY TESTIMONY AT 

TRIAL, AND THE PROSECUTOR THEN REFERRED 

TO THE SILENCE DURING CLOSING ARGUMENT. 

Issue Preservation and Standard of Review. The de novo standard of review applies to claims of 

constitutional error. People v McPherson, 263 Mich App 124, 131 (2004). Trial counsel did not object, 

so a plain error analysis must be applied. 

Argument. The Fifth Amendment to the US Constitution provides, in pertinent part: “No 

person ... shall be compelled in any criminal case to be a witness against himself.” See also, Const 

1963, art 1, § 17. This provision, as applied to state prosecutions through the Due Process Clause of 

the Fourteenth Amendment, forbids a prosecutor from impeaching a defendant with the defendant's 

pre-arrest silence. People v Dye, 431 Mich 58, 79-80 (1988). As the Dye Court noted, “allowing 

impeachment with pre-arrest silence suggests that a defendant has a duty to incriminate himself and 

burdens his right to testify on his own behalf.” Id (citing People v Collier, 426 Mich 23, 34 (1986). Such 

tactics are inappropriate given the conventional wisdom that “one does not have to say anything to 

the police and that what one does say may be used against him.’ ” Dye at 80; See also, Combs v Coyle, 

205 F3d 269, 283 (6th Cir 2000) (“We agree with the reasoning expressed in the opinions of the 

Seventh, First, and Tenth Circuits, and today we join those circuits in holding that the use of a 

defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment's 

privilege against self-incrimination. Like those circuits, we believe ‘that application of the privilege is 

not limited to persons in custody or charged with a crime. . . .’”).

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Notwithstanding these principles, the prosecutor here shifted the burden of proof to Mr. 

Gibbs and asked him to account for his conduct immediately after the crime: 

 PROSECUTOR: So, when did you tell your Mom about what happened at the shop? 

 MR. GIBBS: I didn’t – I didn’t tell her. 

PROSECUTOR: When do you tell – when do you go to the police to tell them that 

Tyrell Henderson made you rob the Wholesale 4 U pawnshop on 

Davidson Road in the city of Flint? 

 MR. GIBBS: What you mean by when? Like what day? 

PROSECUTOR: When? When do you go to the police and say, police, [a] friend of 

mine just made me help him rob a store? 

 MR. GIBBS: November 1st

. 

PROSECUTOR: And, you go on November 1st ‘cause you know the police are looking 

for you; right? 

MR. GIBBS: [T]hat’s not the only reason why I went. ‘Cause I had – 

PROSECUTOR: So, October – October 26 at 6:00, just after this robbery is 

completed, if we watched the clock on the videotape? When do you 

call nine-one-one to tell ‘em what happened? 

MR. GIBBS: I didn’t call nine-one-one. 

PROSECUTOR: When do you go to the police station to tell ‘em what happened? 

[Trial 7/6/11, p 128-129]. Although the Collier court found no impropriety with similar 

impeachment by the prosecutor under the circumstances presented there, this was largely because 

that defendant claimed self-defense. The Collier court opined that it would have been “natural” for 

Collier to contact the police given the nature of his theory, inasmuch as “one who has been robbed 

under the circumstances related by the defendant would report the crime to the police. Defendant 

knew the identity of the robber and the location of the robbery. It would have been natural for him 

to report the crime to the police, to have the assailant arrested, and to retrieve his property.” Collier 

at 34–36. Here however, it would not at all have been natural for Mr. Gibbs to contact the police or 

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disclose the crime to his mother or anyone else afterwards, given his claim that he committed the 

crime under duress: The same threat of harm that caused him to remain on the scene would have 

endured, if not grown, once the crime was complete; at that point, Mr. Gibbs was the only other 

person who could implicate Mr. Henderson fully in the robbery. Because approaching the police 

may have resulted in Mr. Gibbs incriminating, or worse, harming himself, it was improper for the 

prosecution to comment on Mr. Gibbs’ failure to come forward sooner than he did. 

Nevertheless, the prosecutor chose to revisit this theme during closing argument: 

Because remember despite what Phillip Gibbs testified to here in the 

courtroom about what his knowledge was, what his role or lack thereof 

was, he doesn’t take an opportunity to run out of the store. He doesn’t 

call 911 from inside the store. He doesn’t run away separate from Mr. 

Henderson after this robbery occurred. He doesn’t tell his mother. He 

doesn’t go to the police. Think of that when you evaluate his 

testimony. 

[Trial 7/6/11, p 182]. The prosecutor’s argument was highly prejudicial and impermissibly 

undermined his constitutional right to remain silent. The prosecutor attempted to use Mr. Gibbs’s 

silence to cast suspicion on his exculpatory testimony by eliciting the inference that if Mr. Gibbs had 

truly been innocent of armed robbery, he would have offered his exculpatory explanation the night 

he was arrested. The prosecutor’s argument ignored the fact that Mr. Gibbs had the right to remain 

silent and had a valid reason to exercise that right. 

 Allowing the use of Mr. Gibbs’s silence for impeachment turned his constitutional 

protections against him by punishing him for not immediately waiving his Fifth Amendment rights 

by incriminating himself in order to escape liability for the robbery allegations. By highlighting Mr. 

Gibbs’s reliance on the right to remain silent, the prosecutor planted a prejudicial inference in the 

mind of the jury while obscuring the legitimate reasons for not speaking to the police. Because this 

flies in the face of his right to silence, this Court should grant Mr. Gibbs a new trial. 

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III. BECAUSE THE COURT BELOW MADE THREE 

GUIDELINES-SCORING MISTAKES, AND 

CORRECTING THE MISTAKES WOULD 

SUBSTANTIALLY REDUCE THE GUIDELINES 

RANGE, MR. GIBBS MUST BE RESENTENCED. 

Issue Preservation and Standard of Review. Trial counsel objected at sentencing to some, but not 

all, of the erroneous scoring of the guidelines. Specifically, he did not contest the scoring of any of 

the Prior Record Variables, but he did challenge the points assessed against Mr. Gibbs under OV 13. 

The latter issue is thus preserved for appellate review. Mr. Gibbs is requesting a remand for a 

resentencing and/or so that he can first present these issues to the trial court for consideration. 

 The proper interpretation and application of the statutory sentencing guidelines are legal 

questions that Michigan appellate courts review de novo. People v Morson, 471 Mich 248, 255 (2004). 

Argument. Under the Michigan and United States Constitutions, defendants have a due 

process right to be sentenced on the basis of accurate information and in accordance with the law. 

Townsend v Burke, 334 US 736 (1948); People v Lee, 391 Mich 618, 636-637 (1974); People v Malkowski,

385 Mich 244 (1971). Further, MCR 2.613(A) provides that a sentence must be consistent with 

“substantial justice.” Our Supreme Court has found that “it is difficult to imagine something ‘more 

inconsistent with substantial justice’ than requiring a defendant to serve a sentence that is based 

upon inaccurate information.” People v Francisco, 474 Mich 82, 91, n6 (2006). Thus, a defendant is 

entitled to resentencing when his sentence is predicated upon mis-scored and inflated guidelines. Id. 

at 91-92. 

PRV-5

Resentencing is required because Mr. Gibbs was improperly assessed two points under Prior 

Record Variable (PRV) 5, where the order of disposition was entered after the commission date of 

the sentencing offense. 

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 Points may be attributed to a defendant under PRV-5 based on an offender’s prior 

misdemeanor convictions and prior misdemeanor juvenile adjudications. A score of two points is 

appropriate under this guideline if a person has “1 prior misdemeanor conviction or prior 

misdemeanor juvenile adjudication”: 

1) Prior record variable 5 is prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications. Score prior record variable 5 by 

determining which of the following apply and by assigning the number 

of points attributable to the one that has the highest number of points: 

(a) The offender has 7 or more prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications............................. 20 points 

(b) The offender has 5 or 6 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 15 points 

(c) The offender has 3 or 4 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 10 points 

(d) The offender has 2 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 5 points 

(e) The offender has 1 prior misdemeanor conviction or prior 

misdemeanor juvenile adjudication. ..................... 2 points 

MCL 777.55(1)(a) (emphasis added). If a defendant has no prior misdemeanor convictions 

or prior misdemeanor juvenile adjudications, the appropriate score to be assessed is zero 

points. The statute defines “prior misdemeanor juvenile adjudications” to mean “a juvenile 

adjudication for conduct that if committed by an adult would be a misdemeanor under a law 

of this state . . . if the order of disposition was entered before the sentencing offense 

was committed.” MCL 777.55(3)(b). 

 A review of the record here reveals, however, that the only juvenile adjudication 

eligible for scoring under PRV-5 was for an August 3, 2010 entering without permission 

case, the disposition of which took place November 9, 2010. Pre-Sentence Investigation 

Report (PSR) at 3. Because the current crimes occurred on October 26, 2010 (before the 

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juvenile disposition), it was improper to use this conviction as a basis for penalizing Mr. 

Gibbs with two points under PRV-5. This error, combined with the error in scoring PRV-6,

infra, affects Mr. Gibbs’ guidelines range and entitles him to a resentencing before the trial 

court. 

PRV-6

Additionally, Mr. Gibbs received a 5-point score under PRV-6 for being “on probation or 

delayed sentence status or on bond awaiting adjudication or sentencing for a misdemeanor.” MCL 

777.56(1)(d). Yet, this score was both factually and legally inappropriate. Factually speaking, as the 

attached affidavit of the undersigned counsel indicates, the Genesee County Juvenile Court has no 

record of Mr. Gibbs ever being placed on bond when he acquired the entering without permission 

charge as a juvenile. Affidavit of Counsel, Appendix B. Additional substantiation of this fact is 

forthcoming. Even if he had been on bond, however, the plain language of the legislative 

sentencing guidelines under PRV-6 make it apparent that points cannot be assessed for a 

defendant’s relationship with the juvenile justice system. Resentencing is thus warranted. 

A five-point score under PRV-6 is reserved for offenders who already have a “relationship 

to the criminal justice system” when the crime is committed. MCL 777.56(1). A few months before 

committing the sentencing offense, the then-sixteen-year-old defendant was adjudicated responsible 

(by virtue of a plea) for entering without permission in the Genesee County Probate Court (PSR 3). 

He did not receive a juvenile disposition for this offense until after the current crimes had been 

committed. When that disposition took effect, however, he was placed on a probationary term that 

was ultimately suspended in light of the charges in the current case. As noted, there is no evidence 

that Mr. Gibbs was on bond during the interim between his adjudication and disposition. 

Unlike the judicial guidelines, the Legislature’s version of PRV-6 does not assign points 

based on a defendant’s status within the juvenile justice system. See Part A, infra. Further, contrary 

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to what the trial court believed, this Court’s decision in People v Endres, 269 Mich 414 (2006), did not 

address the applicability of PRV-6 to offenders who commit crimes while awaiting juvenile 

disposition. See Part B, infra. Simply put, there is no authority for scoring PRV-6 in this case. 

Resentencing is warranted. 

 A. The Plain Language of PRV-6

 Whether a relationship to the juvenile justice system may be used to score PRV-6 is a 

question of statutory construction. When interpreting statutes, this Court must give effect to the 

intent of the Legislature by applying the provision’s plain language. People v Koonce, 466 Mich 515, 

518 (2002). This Court considers both the plain meaning of the critical word or phrase as well as its 

placement and purpose in the statutory scheme. US Fidelity Insurance & Guaranty Co. v Michigan 

Catastrophic Claims Ass’n, 482 Mich 414, 423 (2008). Whenever possible, the Court should give effect 

to every phrase, clause and word in a statute. Id. Omitted phrases may also be significant, as “[t]he 

Legislature is presumed to be familiar with the rules of statutory construction and, when 

promulgating new laws, to be aware of the consequences of its use or omission of statutory 

language[.]” Tellin ex rel Hinga v Forsyth Tp., 291 Mich App 692 (2011) (quoting In re MKK, 286 Mich 

App 546, 556 (2009)). 

 Critically, the Legislature made no reference to juvenile delinquency proceedings when it 

enacted MCL 777.56, the statute which created the current version of PRV-6. The variable 

examines whether the offender had a “relationship to the criminal justice system” at the time of 

the sentencing offense. MCL 777.56(1) (emphasis added). Such a score is appropriate only if the 

“[o]ffender is on probation or delayed sentence status or on bond awaiting adjudication or 

sentencing for a misdemeanor.” MCL 777.56(1)(d). As noted, zero points must be assessed if the 

“[o]ffender has no relationship to the criminal justice system.” MCL 777.56(1)(e) (emphasis 

added). See also People v Johnson, 293 Mich App 79 (2011). 

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 The Legislature’s repeated use of the phrase “criminal justice system” makes clear it did not 

intend PRV-6 to encompass juvenile matters. Through various enactments, the Legislature has 

established a clear distinction between criminal cases and delinquency proceedings. The procedures 

governing the latter are codified not in the Penal Code, but instead in the Probate Code at MCL 

712A.1 et seq. See also Const 1963, Art 6, § 15 (providing that the probate court “shall have original 

jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by 

law.”). By statute, “proceedings under this chapter are not criminal proceedings” unless 

otherwise provided. MCL 712A.1(2) (emphasis added). Thus, as this Court has noted, “proceedings 

against juveniles are not even considered criminal proceedings.” In re T.D., __ Mich App __ (May 

26, 2011) (Docket No. 294716). 

This distinction is found elsewhere in the guidelines as well. PRV-1 and PRV-2, for 

example, weigh “convictions” for certain “crimes.” MCL 777.51, 777.52. In contrast, PRV-3 and 

PRV-4 consider only “a juvenile adjudication for conduct that would be . . . [a crime] if committed 

by an adult[.]” MCL 777.53, 777.54. Similarly, PRV-5 refers to “a juvenile adjudication for conduct 

that if committed by an adult would be a misdemeanor.” MCL 777.55(3)(b). As these provisions 

recognize, a juvenile is not adjudicated guilty of a “crime”; rather, a juvenile can only be adjudicated 

guilty of what “would be” a crime if committed by someone older. The guidelines therefore 

acknowledge what the Probate Code already confirms: “proceedings under this chapter are not

criminal proceedings” unless otherwise provided. MCL 712A.1(2) (emphasis added). 

 Certainly, if the Legislature had intended for PRV-6 to apply to a defendant’s relationship 

with the juvenile justice system, it could have said so. After all, PRV-3, PRV-4, and PRV-5 all 

expressly provide for the consideration of delinquency adjudications. In contrast, while the word 

“adjudication” does appear in the text of PRV-6, it is not used in the context of delinquency 

proceedings. Nor is it used to refer to juvenile bond status. Rather, it appears within the phrase “on 

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bond awaiting adjudication or sentencing for a misdemeanor.” MCL 777.56(1)(d). In this context, 

“adjudication” means simply: “The legal process of resolving a dispute; the process of judicially 

deciding a case.” Black’s Law Dictionary (9th ed), p. 42. It follows, therefore, that this clause of 

PRV-6 is only concerned with sentencing offenses that occur before the final resolution of an adult 

misdemeanor charge. After all, as discussed above, PRV-6 refers to defendants charged with a 

“misdemeanor,” not defendants charged with “conduct that if committed by an adult would be a 

misdemeanor.” Compare MCL 777.55(3)(b) with MCL 777.56(3)(b). 

Language referencing juvenile matters could have been added to PRV-6 with little difficulty. 

Given what is expressed in PRV-3, PRV-4, and PRV-5, it must be presumed that the Legislature 

intentionally omitted such language when it drafted PRV-6. This is consistent with the wellestablished legal doctrine expressio unius est exclusio alterius (“the expression of one thing is the 

exclusion of another”). Miller v Allstate Ins. Co., 481 Mich 601, 611 (2008). The maxim is a rule of 

construction that is a product of “logic and common sense.” Feld v Robert & Charles Beauty Salon,

435 Mich 352, 362 (1990) (quoting 2A Sands, Sutherland Statutory Construction (4th ed), § 47.24, at 

203). Our Supreme Court has long held that “no maxim is more uniformly used to properly 

construe statutes.” Hoerstman Gen. Contracting, Inc. v Hahn, 474 Mich 66, 74–75 (2006) (citing Taylor v 

Michigan Public Utilities Comm., 217 Mich 400, 403 (1922)). 

Further evidence of the Legislature’s intent can be found by comparing PRV-6 to its 

predecessor under the judicial guidelines. The instructions to the predecessor variable expressly 

provided that “a ‘relationship to the criminal justice system’ applies to relationships determined 

by juvenile convictions or charges.” Id. People v Stone, 195 Mich App 600, 607-608 (1992) 

(emphasis added) (quoting the version of PRV-6 which appeared in the judicial sentencing 

guidelines). Thus, it must be presumed: (1) that the Legislature was aware of the prior version of 

PRV-6 when it enacted the current version; and (2) that the differences between the two variables 

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were intended. See People v Hegwood, 465 Mich 432, 438-439 (2001) (“At the time it enacted these 

guidelines, the Legislature opted for a system with many features that were easily recognizable by 

courts familiar with the format previously employed in Michigan. . . . Yet it is apparent that the 

Legislature has provided new ground rules.”). 

For all of these reasons, PRV-6 was not intended to be scored in this case. 

B. Inapplicability of Endres Decision

It is worth noting that this Court’s ruling in Endres does not support the trial court’s scoring 

decision. Since the defendant in that case completed his juvenile probationary term before 

committing the sentencing offense, this Court did not analyze whether PRV-6 could have been 

scored if the timing of the juvenile sentence had been different. Endres, 269 Mich App at 422. 

Rather, the Endres Court scored PRV-6 because the sentencing offense arose a few weeks after the 

defendant was charged with possessing alcohol as a minor (“MIP”). Id. The MIP charge was filed 

on May 12, 2001, seven months after the defendant turned seventeen years old. Id. Given his age, 

the defendant in Endres was necessarily charged as an adult, since the family court lacked jurisdiction 

over any crime occurring after his seventeenth birthday. MCL 712A.2(a)(1). 

Other panels of this Court have misread Endres. An unpublished opinion of one panel, for 

example, notes that “in People v Endres, this Court affirmed the trial court’s scoring of PRV-6 based 

on the defendant’s juvenile conviction.” People v Kelly, unpublished opinion per curiam of the Court 

of Appeals, issued April 13, 2010 (Docket No. 289689) (footnote and citation omitted) (included in 

Appendix C). Again, this is not what that case held; Endres actually involved a pending adult charge. 

The unpublished Kelly opinion proceeds to turn the rules of statutory construction on their 

head, stating that “if the Legislature had intended to limit application of PRV-6 to adult prisoners 

only, it was capable of specifying such a limitation.” Id. Again, as discussed above, the opposite is 

true. Other variables make it very clear when juvenile adjudications may be counted and when they 

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may not. See MCL 777.53 through 777.56. If the Legislature had intended PRV-6 to include 

contacts with the juvenile justice system, it could have said so. Indeed, all it had to do was copy 

from the judicial guidelines. 

OV 13

OV 13 should have been scored at zero points, not 25. Multiple convictions arising from a 

single incident do not establish a “continuing pattern of criminal behavior.” OV 13 was scored 25 

points on the theory that the sentencing offense was “part of a pattern of felonious criminal activity 

involving 3 or more crimes against a person.” MCL 777.43(1)(b); Sentencing Information Report 

(SIR), Appendix D.

The three crimes against a person of which Mr. Gibbs was convicted here were his first 

felony convictions. He had no other felony record, adult or juvenile. PSR at 3.11 Because the three 

felony convictions in the case on appeal all arose from a single incident, they do not show a “pattern 

of felonious criminal behavior” and thus cannot support the 25-point OV 13 score. See People v 

Shane Joseph Smith, unpublished opinion per curiam of the Court of Appeals, issued February 25, 

2003 (Docket No. 229137) (Appendix E) at p 6 (concurrent convictions stemming from “one 

incident” not scoreable under OV 13; “it is repeated felonious conduct that should be considered in 

scoring this offense variable”) (distinguishing People v Harmon, 248 Mich App 522, 532 (2001), as case 

in which concurrent convictions arose not from single incident but from “separate acts”). As in 

Smith, the three concurrent convictions here all arose from one incident—a single robbery of three 

different individuals at the same time. 

 Moreover, the Supreme Court’s decision in People v Cannon, 481 Mich 152 (2008), reveals 

Harmon to be bad law. In Harmon, the defendant argued that one of the prior crimes said to 

 

11 Because the presentence report is confidential, it is not intended for inclusion in the Court’s public 

file. 

22

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substantiate the OV 13 score should not have been counted because it was of the wrong crime class. 

Harmon, 248 Mich App at 532. This Court did not reach the issue because, it held, other convictions 

of the proper class—defendant’s concurrent convictions—provided sufficient support for the score 

on their own. Id. Harman thus appears to suggest that concurrent convictions (at least if not 

stemming from the same incident as the sentencing offense) might routinely be scored under OV 13 

as well as under Prior Record Variable 7, the variable that explicitly counts “subsequent or 

concurrent felony convictions,” MCL 777.57. 

 However, in Cannon, our Supreme Court made clear that interpreting the guidelines-variables 

statutes requires a different approach than the one take in Harmon. Reviewing courts must keep in 

mind the “Legislature’s focus” expressed by the title and first subsection. People v Cannon, 481 Mich 

152, 157 (2008). Those words—the statute’s “central subject”—condition what follows. Id. 

Particular provisions of the statute must be read in the context of that central subject. Thus, OV 10 

(whose central subject, as expressed in the title and first subsection, is “exploitation of a vulnerable 

victim”12) requires proof of vulnerable-victim exploitation even when considering a provision of the 

statute (“predatory conduct was involved”) that makes no mention of vulnerable victims. Id. at 156-

59. 

 OV 13 has a central subject that was likewise ignored, improperly, in Harman. The particular 

statutory subsection at issue both here and in Harman requires proof only of “a pattern of felonious 

criminal activity involving 3 or more crimes against a person”13—language that could arguably refer 

to crimes committed at the same, or nearly the same, time. However, the statute’s title and first 

subsection make clear that the legislative focus is different: identifying, and providing greater 

punishment for, those whose conduct reflects a “continuing pattern of criminal behavior.” MCL 

 

12 MCL 777.40. 

13 MCL 777.43(1)(b) (emphasis added). 

23

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777.43(1) (emphasis added). As this Court recognized in Smith, supra, the modifier “continuing” 

means that to be scored under OV 13, a “pattern” of criminal acts must be one that reflects “repeated

felonious conduct.” Smith, supra (emphasis added). OV 13 should have been scored 0 points, for 

“no pattern of felonious criminal acts were committed.” MCL 777.43(1)(g). 

Remedy

The erroneous scoring of PRV-5, PRV-6, and OV 13 increased Mr. Gibbs’ total guidelines 

range from the correct cell of C-III, to the resulting range of D-IV. The error inflated the guidelines 

range from 81-135 months to 126-210 months. The trial court then sentenced Mr. Gibbs at the very 

top of this incorrect range, to a minimum prison term of 17.5 years. Because the error in scoring the 

guidelines violated Mr. Gibbs’ state and federal due process rights to be sentenced accurately and 

consistently with the law, he is entitled to be resentenced within the correct range. Francisco, 474 

Mich at 89-92. 

 

24

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25

SUMMARY AND RELIEF AND REQUEST FOR ORAL ARGUMENT

 WHEREFORE, for the foregoing reasons, Defendant-Appellant asks that this 

Honorable Court reverse his conviction and/or remand this matter for an evidentiary hearing and to 

allow him to seek resentencing. 

 Respectfully submitted, 

 STATE APPELLATE DEFENDER OFFICE

 /s/ Brandy Y. Robinson 

 BY:________________________________________ 

 BRANDY Y. ROBINSON (P66895)

 Assistant Defender 

 3300 Penobscot Building 

 645 Griswold 

 Detroit, Michigan 48226 

 (313) 256-9833 

Dated: May 23, 2012 

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APPENDIX A 

AFFIDAVITS OF GIBBS’ FAMILY MEMBERS 

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APPENDIX B 

AFFIDAVIT OF COUNSEL 

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STATE OF MICHIGAN 

IN THE COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN

 Court of Appeals No. 306124 

 Plaintiff-Appellee, 

Lower Court No. 10-231624FC 

-vsPHILLIP CHARLES GIBBS

 Defendant-Appellant. 

________________________________/ 

AFFIDAVIT OF COUNSEL / OFFER OF PROOF

BRANDY Y. ROBINSON hereby states as follows: 

1. I represent Mr. Gibbs on appeal from the above-referenced conviction. 

2. In researching Mr. Gibbs’ sentence for appeal, I discovered an inaccuracy in the 

Presentence Investigation Report regarding Mr. Gibbs’ relationship to the criminal justice 

system at the time he committed the current offenses. 

3. I recently contacted the Juvenile Records Department of the Family Court Division of the 

Genesee County Probate Court. I spoke by telephone with a clerk who informed me that 

her review of Mr. Gibbs’ juvenile file showed no indication whatsoever that Mr. Gibbs had 

been placed on bond between adjudication and sentencing for entering without permission. 

4. Assuming this information is correct, there was no basis for scoring points against Mr. 

Gibbs under Prior Record Variable 5. 

5. Counsel is undertaking steps to obtain an official certification of Mr. Gibbs’ no-bond status 

as a juvenile. 

6. Once that certification is obtained, counsel will promptly file evidence thereof with the 

Court. 

7. Additionally, if granted a hearing on Mr. Gibbs’ claim that he was denied the right to a 

public trial, the undersigned counsel will proffer the testimony of, inter alia, Mr. Gibbs’ 

mother, Elverta Gibbs, his Sister Seandra Davidson-Coleman, and his soon-to-be brother 

in law Courtney Jones. The substance of their proposed testimony appears in the attached 

Affidavits. Counsel will also seek evidence from court staff connected with Judge 

Fullerton’s chambers to as to her policy on this subject as of the time of trial. Trial counsel 

will also have to be examined. 

8. The foregoing statements are true to the best of my knowledge. 

 /s/Brandy Y. Robinson 

 ______________________________ 

 BRANDY Y. ROBINSON (P66895)

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APPENDIX C 

PEOPLE V KELLY

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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

 UNPUBLISHED 

 April 13, 2010 

v No. 289689 

Wayne Circuit Court 

DeJUAN KELLY, LC No. 08-004999-03 

 Defendant-Appellant. 

Before: WHITBECK, P.J., and METER and FORT HOOD, JJ. 

PER CURIAM. 

 Defendant DeJuan Kelly appeals as of right his jury conviction of unlawful 

imprisonment.1 Following his arrest for failure to appear for sentencing, the trial court sentenced 

Kelly to a term of 86 months to 15 years’ imprisonment. We affirm. 

I. BASIC FACTS AND PROCEDURAL HISTORY 

 Kelly and three codefendants were initially charged with multiple counts of armed 

robbery2

 and unlawful imprisonment. Kelly and two of the three codefendants were also charged 

with felony firearm.3

 Evidence at the June 2008 trial on those charges established that the men 

entered an apartment, bound the occupants, and then robbed them of their personal possessions at 

gunpoint. The three codefendants pleaded guilty to various offenses. At trial, the jury acquitted 

Kelly on the armed robbery and felony firearm charges but failed to reach a verdict on the 

unlawful imprisonment charge. Therefore, the trial court declared a mistrial regarding the 

unlawful imprisonment charge. 

 In August 2008, a new jury trial was held on the unlawful imprisonment charge. The jury 

ultimately convicted Kelly. Kelly now appeals various issues that occurred during trial and 

sentencing. 

 

1

 MCL 750.349b. 

2

 MCL 750.529. 

3

 MCL 750.227b. 

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II. EVIDENTIARY ISSUES 

A. STANDARD OF REVIEW 

 The decision whether to admit evidence is within the trial court’s discretion, and we will 

not disturb that decision absent an abuse of that discretion.4

B. PRELIMINARY EXAMINATION TRANSCRIPT 

 During the August 2008 trial, the trial court considered the prosecution’s request to 

declare one of the victims unavailable and admit his testimony from the preliminary 

examination. Demond Bryant was in federal custody in Kentucky and the federal authorities 

would not permit him to be conveyed to Michigan for at least another 30 days. Defense counsel 

objected, arguing that the examining magistrate had not permitted wide-ranging crossexamination during the preliminary examination. Defense counsel also argued that Bryant was a 

key witness because he was the only one at the preliminary examination who testified that Kelly 

tied him up. The trial court reviewed Bryant’s preliminary examination testimony, ordered some 

changes and redactions for the jury, and then ruled that it would be admitted. 

 The next morning, defense counsel again objected to the admission of Bryant’s 

testimony. Defense counsel first argued that because the prosecution knew where to find Bryant, 

they should retrieve him from federal custody; but counsel then stated, “I will leave it to the 

Court’s discretion.” The trial court affirmed its earlier ruling that the witness was unavailable 

and noted that it had encountered difficulty when attempting to obtain witnesses from federal 

custody. 

 Kelly now argues that the trial court abused its discretion in allowing into evidence the 

transcript of Bryant’s preliminary examination testimony where there was no diligent, good-faith 

effort to procure Bryant’s actual presence at trial. 

 The prosecution may present evidence at trial through a preliminary examination 

transcript when a witness is “unavailable.” A witness is unavailable where the prosecution “has 

been unable to procure the declarant’s attendance . . . by process or other reasonable means, and 

in a criminal case, due diligence is shown.”5

 With respect to due diligence, “[t]he test is one of 

reasonableness and depends on the facts and circumstances of each case, i.e., whether diligent 

good-faith efforts were made to procure the testimony, not whether more stringent efforts would 

have produced it.”6

 Due diligence requires attempts to do everything reasonable, not everything 

possible, to obtain the presence of a witness.7 

 

4 People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). 

5

 MRE 804(a)(5). 

6 People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998). 

7 People v Cummings, 171 Mich App 577, 585; 430 NW2d 790 (1988). 

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 Kelly argues that the prosecution “made little, if any attempt to secure” Bryant’s 

presence. However, as Kelly also acknowledges, Bryant was in custody at an out-of-state federal 

prison at the time of trial. The prosecution explained that she had contacted the federal officials 

but they would “not release him for at least another 30 days because of the extradition laws.” 

And in accepting the preliminary examination transcript, the trial court explained that even an 

order from the trial court would have done little to secure Bryant’s presence because “they [the 

federal officials] can choose to ignore [the court’s] request.” 

 Therefore, we conclude that the trial court did not abuse its discretion in allowing into 

evidence the transcript of Bryant’s preliminary examination testimony. 

C. PRIOR TRIAL TESTIMONY REGARDING ROBBERIES 

 At Kelly’s August 2008 trial, Kelly asserted that the witnesses should not be permitted to 

testify about having their property taken because Kelly had been acquitted of armed robbery in 

the June 2008 trial. Instead, according to Kelly, the witnesses should only testify about the 

unlawful imprisonment. The prosecution maintained that the jury must hear the context of the 

events regardless of the acquittals in the previous trial. The trial court denied Kelly’s request and 

ruled that having the witnesses attempt to omit facts from the sequence of events would make the 

remaining testimony seem improbable. But the trial court stated that the jury would be instructed 

to consider only the charge of unlawful imprisonment. 

 Kelly now argues that the trial court abused its discretion by allowing into evidence the 

witness testimony from the June 2008 trial regarding the armed robberies. More specifically, 

Kelly argues that allowance of the testimony violated MRE 404(b), which prohibits admission of 

evidence regarding prior bad acts if the prosecution offers it solely to show the criminal 

propensity of an individual to establish that he acted in conformity therewith.8

 “[T]here are substantial limits on the admissibility of evidence concerning other bad 

acts.”9

 However, it is essential that a jury receive an “intelligible presentation” of the complete 

story to fully understand the context in which the underlying events took place.10

 “It is the nature of things that an event often does not occur singly and 

independently, isolated from all others, but, instead, is connected with some 

antecedent event from which the fact or event in question follows as an effect 

from a cause. When such is the case and the antecedent event incidentally 

involves the commission of another crime, the principle that the jury is entitled to 

hear the ‘complete story’ ordinarily supports the admission of such evidence.”[11] 

 

8 People v Vandervliet, 444 Mich 52, 65; 508 NW2d 114 (1993). 

9 People v Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996); see MRE 404(b). 

10 Sholl, 453 Mich at 741. 

11 Id. at 742, quoting People v Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978). 

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In other words, “‘Evidence of other criminal acts is admissible when so blended or connected 

with the crime of which defendant is accused that proof of one incidentally involves the other or 

explains the circumstances of the crime.’”12 Therefore, a jury is entitled to hear the full res 

gestae regardless whether those facts may also establish criminal acts other than the charged 

offense.13

 Thus, the question here is whether the armed robberies were necessary to be revealed 

during the presentation of the res gestae of the unlawful imprisonment.14 The record shows that 

the armed robberies were part of the continuous transaction and the facts surrounding the 

unlawful imprisonment could not be presented without discussing the armed robberies.15 The 

trial court did not abuse its discretion in reasoning that the witnesses’ accounts would appear 

improbable without being placed in the proper context. Thus, the evidence was admissible. 

 Moreover, this Court has held that the fact that the defendant was acquitted on the prior 

charge is not relevant to its admission.16 “For it is its occurrence which would bear on the 

motive and intent of the defendant, not whether or not the defendant was acquitted on the charge. 

The res gestae constitutes substantive evidence and may properly be considered by the jury in 

determining guilt or innocence.”17

 Therefore, we conclude that the trial court did not abuse its discretion in allowing into 

evidence the witness testimony from the June 2008 trial regarding the armed robberies. 

D. PRIOR ACQUITTAL VERDICT 

 At Kelly’s August 2008 trial, asserting lack of relevance and unfair prejudice, the 

prosecution objected to the defense request to advise the new jury of the June 2008 jury’s 

acquittal verdicts. The trial court agreed that the new jury should not be advised of the prior 

verdicts. Kelly now argues that the trial court abused its discretion by denying him the 

opportunity to admit into evidence the acquittal verdicts from the first trial. 

 

12 Id., quoting Arizona v Villavicencio, 388 P2d 245, 246 (Ariz, 1964). 

13 People v Kowatch, 258 Mich 630, 633; 242 NW 791 (1932); People v McClure, 29 Mich App 

361, 366; 185 NW2d 426 (1971). 

14 See McClure, 29 Mich App at 366. 

15 See id.

16 Id.; see also People v Oliphant, 399 Mich 472, 495-500; 250 NW2d 443 (1976) (stating that 

the fact of a defendant’s acquittal on charges arising out of prior incidents does not act to bar its 

admission.) 

17 McClure, 29 Mich App at 366 (internal citation omitted). 

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 In support of his argument, Kelly cites People v Nabers,

18 in which this Court 

“express[ed] [its] support” for Judge ALLEN’s partial concurrence and dissent in People v 

Bolden.

19 Specifically, in Nabers, this Court, stated: 

 Defendant was tried for the Swank Men’s Shop robbery; this trial ended in 

a hung jury. Nonetheless, this fact does not automatically bar the admission of 

such evidence.3

 [People v] Oliphant, [399 Mich 472, 499-500; 250 NW2d 443 

(1976)], People v Bolden, 92 Mich App 421, 424; 285 NW2d 210 (1979).20 

However, we take this opportunity to express our support for Judge Allen’s partial 

concurrence and partial dissent in People v Bolden, 98 Mich App 452, 464; 296 

NW2d 613 (1980), wherein he writes: 

“To the extent that a prior acquittal of the alleged similar act of the 

defendant reflects on the accuracy of the charge that defendant

committed that act, then the defendant should be entitled to show 

that another jury determined that he did not commit the similar 

act.” 

We think the same rationale holds true where defendant was not convicted due to 

a hung jury.[21]

 However, the Nabers Court’s “support” of Judge ALLEN’s statement was merely dicta.22 

Moreover, we find persuasive the conclusion from numerous federal circuits,23 including the 

Sixth Circuit, that “evidence of prior acquittals is generally inadmissible.”24 Judgments of 

acquittal are “inadmissible in large part because they may not present a determination of 

 

18 People v Nabers, 103 Mich App 354, 364; 303 NW2d 205, rev’d on other grounds, 411 Mich 

1046 (1981). 

19 People v Bolden, 98 Mich App 452, 464; 296 NW2d 613 (1980). 

20 Citing Oliphant, 399 Mich at 499-500. 

21 Nabers, 103 Mich App at 364. 

22 See People v Wellborn, unpublished opinion per curiam of the Court of Appeal, issued Dec. 

16, 2003 (Docket No. 242229), at 4 n 1. We acknowledge that, pursuant to Michigan Court 

Rule, an unpublished opinion has no precedential value. MCR 7.215(C)(1); Charles Reinhart Co 

v Winiemko, 444 Mich 579, 588; 513 NW2d 773 (1994). However, we exercise our prerogative 

to view this opinion as persuasive. Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 

522 (2003); People v McCullum, 172 Mich App 30, 33; 431 NW2d 451 (1988). 

23 Although “federal court decisions are not precedentially binding on questions of Michigan 

law[,]” a court may choose to agree with the analysis of a federal court decision. American Axle 

& Mfg, Inc v City of Hamtramck, 461 Mich 352, 364; 604 NW2d 330 (2000). 

24 Wellborn, unpub op at 4 n 1, quoting United States v Gricco, 277 F3d 339, 352-353 (CA 3, 

2002). 

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innocence, but rather only a decision that the prosecution has not met its burden of proof beyond 

a reasonable doubt.”25

 Therefore, we conclude that the trial court did not abuse its discretion by denying Kelly 

the opportunity to admit into evidence the acquittal verdicts from the first trial. 

III. JURY INSTRUCTIONS 

A. STANDARD OF REVIEW 

 Kelly points out that, in ruling that the August 2008 jury was not to be told about the 

acquittals in Kelly’s first trial, the trial court stated that it would instruct the jury to disregard the 

fact of the prior trial. However, Kelly argues that the trial court committed reversible error 

because, according to Kelly, the trial court ultimately failed to give that instruction to the jury. 

 This Court reviews jury instructions in their entirety to determine if error requiring 

reversal occurred.26

B. ANALYSIS 

 After the trial court agreed that the August 2008 jury would not be advised of the prior 

acquittal verdicts, it stated that it would instruct the jurors that they should disregard the fact that 

there was an earlier trial and base their verdict solely on the evidence presented in this trial. In 

Kelly’s brief on appeal, his counsel asserts that “nowhere in the transcript supplied to appellate 

counsel does the court give that instruction to the jury.” However, on page 116 of the August 19, 

2008 trial transcript, the trial court did clearly instruct the impaneled jurors to disregard the fact 

that there was an earlier trial. Specifically, the trial court instructed the jury, 

 This case has been tried before and during this trial you may hear some 

references to the first trial. Sometimes a case must be retried before a new jury, 

and you should not pay any attention to the fact that this is the second trial. Your 

verdict must be based only on the evidence in this trial. You must decide the facts 

only from what you hear and see. 

Moreover, when asked, counsel for both parties stated that they had no objections to the trial 

court’s instructions. 

 Therefore, we conclude that Kelly’s claim of instructional error is without merit. 

 

25 Gricco, 277 F3d at 353. 

26 People v Brown, 239 Mich App 735, 746; 610 NW2d 234 (2000). 

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IV. SENTENCING 

A. STANDARD OF REVIEW 

 Kelly argues that the trial court abused it discretion in sentencing him when it 

erroneously scored prior record variable (PRV) 6 and offense variable (OV) 4. 

 The interpretation and application of the statutory sentencing guidelines are legal 

questions subject to our de novo review.27 However, this Court reviews the scoring to determine 

whether the sentencing court properly exercised its discretion and whether the evidence 

adequately supported a particular score.28

B. ANALYSIS 

1. PRV 6 

 Before imposition of the sentence, the prosecution objected to the scoring of PRV 6. The 

prosecution objected to the scoring of 10 points for that variable, arguing that the proper scoring 

was 20 points. According to the prosecution, while under the jurisdiction of the juvenile court 

following a 2007 adjudication for carrying a concealed weapon, Kelly escaped from his courtordered community placement. Therefore, at the time Kelly committed the instant offense, he 

was listed as an escapee in the LEIN system. The trial court granted the prosecution’s request 

and scored PRV 6 at 20 points. Kelly now argues that the trial court erred in scoring PRV 6 at 

20 points because he was a juvenile escapee, not an adult prisoner. 

 Under MCL 777.56(1)(a), 20 points are appropriate where “[t]he offender is a prisoner of 

the department of corrections or serving a sentence in jail.” According to MCL 777.56(3)(b), 

“‘Prisoner of the department of corrections or serving a sentence in jail’ includes an individual 

who is an escapee.” Nothing in PRV 6 indicates that it was not meant to apply to an escapee 

from juvenile confinement. Indeed, in MCL 777.50(1), in which the Legislature specifically 

limited the use of juvenile adjudications when scoring PRVs 1 to 5, supports that a trial court is 

permitted to take juvenile adjudications into account when scoring PRV 6. In other words, if the 

Legislature had intended to limit application of PRV 6 to adult prisoners only, it was capable of 

specifying such a limitation. Moreover, in People v Endres,

29 this Court affirmed the trial 

court’s scoring of PRV 6 based on the defendant’s juvenile conviction. 

 Therefore, we conclude that the trial court did not abuse its discretion in scoring PRV 6 at 

20 points. 

 

27 People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008). 

28 People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009). 

29 People v Endres, 269 Mich App 414, 422-423; 711 NW2d 398 (2006). 

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2. OV 4 

 The prosecution also objected to the scoring of OV 4. The prosecution objected to the 

scoring of 0 points for that variable, arguing that the proper scoring was 10 points. The trial 

court agreed with the prosecution and scored OV 4 at 10 points. Kelly now argues that the trial 

court erred in scoring OV 4 at 10 points because there was no showing of any psychological or 

other injury, specifically noting that none of the victims submitted a victim impact statement. 

 Under MCL 777.34(1)(a), 10 points are appropriate if “[s]erious psychological injury 

requiring professional treatment occurred to a victim.” Here, in ruling on the prosecution’s 

request, the trial court explained that the victims had testified that 

they were scared to death. They thought he [sic] were gonna die. And one 

woman was struck in the face. And I think that that’s—and being tied up. And I 

do remember the testimony about the pillow. 

On this latter point about the pillow, the trial court was apparently referring to the testimony that, 

while the victims were tied up, Kelly said that he was not leaving any witnesses and 

demonstrated to his codefendants how to use a pillow as a “silencer.” The trial court opined, “I 

think that would cause some serious psychological injury that may require professional treatment 

. . . .” 

 Because the evidence adequately supported the score,30 we conclude that the trial court 

did not abuse its discretion in scoring OV 4 at 10 points. 

 We affirm. 

/s/ William C. Whitbeck 

/s/ Patrick M. Meter 

/s/ Karen M. Fort Hood 

 

30 People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009). 

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APPENDIX D 

SENTENCE INFORMATION REPORT (SIR) 

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SE~ ICING INFORMATION REPORT

Offender: Gibbs, Phiflin Charles SSN: 000-00-0000 Workload: 2519 Docket Number: 1 i28140-FC

Judge: The Honorable Judith A. Fullerton Bar No.: P20455 Circuit No.: 0 County: 25

Conviction information

Conviction PACC: 750.529 Offense Title: Robbery Armed (Conspiracy)

Crime Group: Public Safety (Person) Offense Date: 10/26/2010

Crime Class: Class A Conviction Count: 4 of 4 Scored as of: 10/26/2010

Statutory Max: Life Habitual: No Attempted: No

Prior Record Variable Score

PRVI: U PRV2: U PRV3: 0 PRV4: 0 PRV5: 2 PRV6: 5 PRV7: 20

Total PRV: 27

PRV Level: 0

Offense Variable

OVl: 15 0V2: 5 OV3: IC 0V4: 10 OVE: 0 OW: C 0V7: U

OV8: U OW: 1C OVIC: C OVIl: C 0V12: U 0V13: 25 0V14: U

OVI6: 0 0V17: 0 0V18: U OVI9: C OV2O: C

Total OV: 75

- OV Level: IV

Sentencing Guideline Range

Guideline Minimum Range : 126 to 210

Minimum Sentence

Months Life Sentence Date: I:9~~7~ 77 — Guideline Departure: Consecutive Sentence:

Probation:

.iait: Concurrent Sentence: Yes

Prison: / ~, -~ yl~ —~

Sentencing Juoge ___________________________________________ Date: ___________

Prepared By: JACKSON WEND! IV,

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APPENDIX E 

PEOPLE V SMITH 

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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED 

February 25, 2003 

 Plaintiff-Appellee, 

v No. 229137 

Monroe Circuit Court 

SHANE JOSEPH SMITH, LC No. 99-030211-FH

 Defendant-Appellant. 

Before: Markey, P.J., and Smolenski and Meter, JJ. 

PER CURIAM. 

Following a jury trial, defendant was convicted of operating a vehicle while his license 

was revoked, causing death, MCL 257.904(4) (count I), operating a motor vehicle while under 

the influence of intoxicating liquor (OUIL), causing death, MCL 257.625(4) (count II), 

manslaughter, MCL 750.321 (count III), and failure to stop at the scene of a serious personal 

injury accident, MCL 257.617 (count IV). Defendant was sentenced to concurrent terms of 

seven to fifteen years’ imprisonment each for counts I-III, and thirty-six to sixty months’ 

imprisonment for count IV. Defendant appeals as of right. We affirm defendant’s convictions, 

but remand for resentencing. 

I. Facts 

On October 4, 1999, at approximately 6:50 p.m., defendant was driving his pickup truck 

on US-23 in Dundee Township. Three witnesses testified that defendant was driving at a high 

rate of speed, at least 85 miles per hour, when defendant lost control of his vehicle and hit a 

pedestrian, Ronald Keeton, Jr., who had been walking on the side of the roadway. Mr. Keeton 

died as a result of injuries sustained in the accident. Defendant did not stop at the scene of the 

accident. 

Officer Steven Pascoe was on duty four miles south of the accident when he heard central 

dispatch alert officers to be on the lookout for a red pickup truck that had left the scene of the 

accident. After receiving word that a vehicle matching this description had exited the freeway at 

US-223 and headed west, Pascoe eventually located defendant’s truck at a gas station which was 

still under construction. Defendant’s vehicle was parked next to a five-foot pile of dirt and 

behind a port-a-potty. Pascoe inspected defendant’s truck; no one was inside, but there was a 

beer can on the driver’s side floor. 

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Shortly thereafter, Pascoe saw defendant running to a Sunoco gas station, about 200 

yards away. Officer Marvin Carlson responded to the call for help and found defendant using 

the phone at the Sunoco gas station. Carlson handcuffed defendant and, at that point, defendant 

said something about being hijacked. Carlson arrested defendant and read him his rights. 

Defendant volunteered that he had been traveling south on US-23 when he picked up a 

hitchhiker. Defendant claimed that the hitchhiker pulled a gun on him, forced him into the 

passenger’s seat, and began to drive his truck. Defendant said the hitchhiker was driving at a 

high rate of speed, driving stupid, and that he swerved and struck another car. Defendant 

claimed that he was able to escape and run away, and the hitchhiker continued on in his truck. 

Carlson believed that defendant was visibly impaired due to alcohol consumption. He 

smelled alcohol on defendant’s breath, defendant’s speech was rapid and somewhat slurred, and 

defendant’s eyes were bloodshot and glossy. Defendant admitted that he had two beers. 

Defendant was then taken to the hospital for a blood test, the results of which showed that 

defendant’s blood alcohol level (“BAC”) was .063 two and one-half hours after the accident. 

Forensic toxicologist Julia Pearson testified that defendant’s BAC was between .09 and .11 

during the accident, assuming he did not have a beer when he was driving; or between .07 and 

.09 had he consumed a beer during his drive. Carlson later determined that defendant’s driving 

privileges had been revoked by the State of Michigan, and that notice of this revocation had been 

issued to defendant. 

Van Buren Township Police Officer Lawrence Temple was permitted to testify about 

defendant’s involvement in a hit and run accident which occurred on September 5, 1999. 

Temple stated that he was flagged down by a driver who told him that he had just been struck by 

a white F-150 pickup truck, and that the driver of that vehicle did not stop. Temple located the 

white F-150 pickup truck at a nearby gas station, where defendant and a woman were standing 

outside the driver’s side door looking at the damaged mirror. Defendant initially said that the 

woman had been driving the truck. At first the woman agreed, but then she started crying, said 

she wasn’t driving, and told defendant, “I’m not taking the rap for you this time.” Defendant 

then admitted he had been driving. Temple testified that he noted a strong odor of intoxicants on 

defendant’s breath. Temple also testified that he gave defendant a “driving permit,” which 

informed defendant that his driving privileges were denied, revoked and expired as of that day. 

Defendant testified that he had risen for work at 3:00 a.m., worked until 3:30 p.m., and 

then made several stops, finally leaving a friend’s house sometime after 6:00 p.m. Defendant 

stated that from 4:00 p.m. to 6:00 p.m. he drank about four beers and ate some fried vegetables. 

On defendant’s behalf, several witnesses testified that defendant had consumed fried vegetables 

and a total of four beers. None of the witnesses felt that defendant was intoxicated, but rather 

that he was tired. Defendant’s expert witness testified that given defendant’s food consumption, 

his BAC would have been at or below .06 at the time of the accident. 

Defendant further testified that he had his cruise control set at seventy-eight miles per 

hour as he traveled southbound on US-23. He stated that he came up behind a car, which put on 

its turn signal to get over. He then looked down at some paperwork on his seat, and when he 

looked back up he saw that the car had not moved over. Defendant applied his brakes, but did 

not think he was going to be able to stop quickly enough; so he jerked the wheel to the right to 

go around the car. Defendant testified that he jerked too hard, and when he brought the wheel 

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back the other way the back end started to slide and spin. Defendant stated he heard a smash, 

and subsequently managed to straighten out his vehicle and pull off at an exit. 

Defendant denied ever seeing a pedestrian and had no idea that he had hit anyone. 

Instead, he thought he hit a mile marker or a pole. Defendant stated that his ability to drive was 

not affected by the alcohol he drank and denied driving at an excessive speed. He also denied 

knowing that his driving privileges had been suspended by the State of Michigan. He did admit 

that he lied to the police when they found him after the accident, explaining that he “lost 

control,” was not in his right frame of mind, and that he had no idea of what he was saying. 

Defendant’s accident reconstructionist testified that the markings on the road indicated 

defendant had made a hard right steer, and then a corrective left steer. The markings also 

indicated that defendant was traveling between 73 and 76 miles per hour at the time. 

Defendant’s expert also testified that defendant’s vision would not have been focused on the 

shoulder area, but rather on the roadway and on his own vehicle, and that defendant would have 

had less than three seconds to observe anyone on the shoulder. 

Defendant was convicted and sentenced in the manner described above, and now appeals 

asserting numerous claims of error. 

II. Admissibility of Evidence 

Defendant alleges that the trial court erroneously admitted several pieces of evidence. 

The decision whether evidence is admissible is within the trial court’s discretion and should only 

be reversed where there is a clear abuse of discretion. People v Starr, 457 Mich 490, 494; 577 

NW2d 673 (1998). An abuse of discretion exists only when an unprejudiced person, considering 

the facts on which the trial court acted, would say there was no justification or excuse for the 

ruling made. People v Rice (On remand), 235 Mich App 429, 439; 597 NW2d 843 (1999). 

A. Lay Opinions 

Defendant argues that the trial court erred in allowing the testimony of three lay 

witnesses regarding the speed of his vehicle. We disagree. 

Lay witness testimony in the form of an opinion is permitted where it is rationally based 

on the witness’ perception and is helpful to a clear understanding of the witness’ testimony or the 

determination of a fact in issue. MRE 701; Richardson v Ryder Truck Rental, Inc, 213 Mich 

App 447, 455; 540 NW2d 696 (1995). Opinion testimony of lay witnesses with regard to speed 

has repeatedly been held to be admissible, even where the qualifications of the witnesses to judge 

speed are based on little more than their own assertion of their ability to do so, or the testimony 

borders on the incredible. People v Zimmerman, 385 Mich 417, 439; 189 NW2d 259 (1971) 

(Adams, J., separate opinion).1 

1

 See also Hammock v Sims, 313 Mich 248, 21 NW2d 118 (1946); Zylstra v Graham, 244 Mich 

319, 326; 221 NW 318 (1928); People v Schwartz, 215 Mich 197, 183 NW 723 (1921); Mitchell 

v Steward Oldford & Sons, Inc, 163 Mich App 622, 629; 415 NW2d 224 (1987); Kuhnee v 

(continued...) 

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In this case, all of the witnesses gave some basis for their speed estimates rooted in their 

personal experiences, and their testimony regarding the speed of defendant’s vehicle was 

certainly material to the case. Accordingly, we find that the trial court did not abuse its 

discretion in allowing their opinion testimony. 

B. 404(b) Evidence 

Although defendant objected below, he failed to provide this Court with the transcript of 

the hearing at which the trial court considered and ruled on this issue. Therefore, because we 

were not provided with a record to review, defendant has waived review of this issue. Thomas v 

McGinnis, 239 Mich App 636, 649; 609 NW2d 222 (2000); People v Anderson, 209 Mich App 

527, 535; 531 NW2d 780 (1995). 

Defendant also raises a hearsay issue as it relates to the 404(b) evidence. Defendant did 

object below, but failed to frame this issue in his statement of questions presented on appeal; 

therefore, this issue is unpreserved. People v Brown, 239 Mich App 735, 748; 610 W2d 234 

(2000). We review unpreserved, non-constitutional issues for plain error only. People v 

Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). 

At trial, the prosecutor asked Officer Temple what information he obtained from the 

driver whose vehicle had been hit in the September 1999 hit-and-run incident. Over defendant’s 

hearsay objection, Temple testified that the driver told him that he had just been struck by a 

white pickup, which was driven by a white male with a white female passenger headed 

westbound. Temple further testified that the driver said that his friend was following the white 

pickup truck and that the driver of the white pickup truck did not stop. 

Hearsay is an out of court statement offered for the truth of the matter asserted, and is 

generally inadmissible. MRE 801(c); MRE 802. The prosecutor argued that the information was 

not being offered for the truth of the matter, but rather to show why the officer located 

defendant’s vehicle, and the trial court agreed. However, while the driver’s statements regarding 

the occupants and the color of the pickup truck could be construed as foundational, we believe 

that the driver’s statement indicating that the pickup truck did not stop is clearly hearsay. 

The reason the prosecutor presented Temple’s testimony was to show that defendant did 

not leave the scene of this accident by mistake. Therefore, the evidence was offered for the truth 

of the matter asserted, i.e., to show that defendant did not stop at the scene of the September 

1999 hit-and-run accident. Therefore, we find that the court abused its discretion in allowing this 

testimony. However, we find the error did not affect defendant’s substantial rights, given the 

other evidence presented at trial. Carines, supra at 763. 

 (...continued) 

Miller, 37 Mich App 649, 653-655; 195 NW2d 299 (1972); People v Ray, 2 Mich App 623, 635; 

141 NW2d 320 (1966). 

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III. Pre-trial Publicity 

Defendant argues that he was denied the right to a fair and impartial jury, given the 

amount of pre-trial publicity in this case and the fact that nearly all the jurors admitted they had 

heard about the case from the media before trial. Because defendant failed to object at trial, we 

review this issue for plain error only. Carines, supra at 763. 

The right to a jury trial guarantees to the criminally accused a fair trial by a panel of 

impartial, indifferent jurors. People v Jendrzejewski, 455 Mich 495, 501; 566 NW2d 530 (1997). 

Juror exposure to newspaper accounts of a defendant’s crime does not in itself establish a 

presumption that the defendant has been deprived of a fair trial by virtue of pretrial publicity. Id. 

at 502. Whether or not prejudice warranting a new trial results from the reading of news articles 

or seeing or hearing broadcasts must turn on the special facts of each case, and the question is 

left largely to the determination and discretion of the trial court. People v Grove, 455 Mich 439, 

472; 566 NW2d 547 (1997). 

In this case, during the jury selection process, the court explored the issue of bias against 

defendant. None of the jurors indicated that they were biased against defendant or had already 

formed an opinion about defendant’s guilt. In fact, only two potential jurors recalled hearing 

about the case through the media, one of whom defendant exercised a peremptory challenge to 

remove. Ultimately, defense counsel said that he was satisfied with the jury as seated and may 

not now harbor any alleged error as an appellate parachute. People v Carter, 462 Mich 206, 214-

215; 612 NW2d 144 (2001). Thus, we find no error that affected defendant’s substantial rights. 

IV. Constitutionality of MCL 257.904(4) 

Defendant asserts that the statute which imposes criminal liability for operating a vehicle 

under a revoked license, causing death, MCL 257.904(4), is unconstitutional because it imposes 

strict liability. The constitutionality of a statute is a question of law that this Court reviews de 

novo. People v Jensen (On Remand), 231 Mich App 439, 444; 586 NW2d 748 (1998). A statute 

is accorded a strong presumption of validity and this Court has a duty to construe it as valid 

absent a clear showing of unconstitutionality. Id. 

MCL 257.904(4) provides, 

(4) A person who operates a motor vehicle in violation of subsection (1) 

and who, by operation of that motor vehicle, causes the death of another person is 

guilty of a felony punishable by imprisonment for not more than 15 years or a fine 

of not less then $2,500.00 or more than $10,000.00, or both. This subsection does 

not apply to a person whose operator’s or chauffeur’s license was suspended 

because that person failed to answer a citation or comply with an order or 

judgment pursuant to section 321a. 

Subsection (1), referred to above, provides, 

(1) A person whose operator’s or chauffeur’s license or registration 

certificate has been suspended or revoked and who has been notified as provided 

in section 212 of that suspension or revocation, whose application for license has 

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been denied, or who has never applied for a license, shall not operate a motor 

vehicle upon a highway or other place open to the general public or generally 

accessible to motor vehicles, including an area designated for the parking of 

motor vehicles, within this state. [MCL 257.904(1).] 

A strict liability crime is one for which the prosecutor need to prove that the defendant 

performed the wrongful act, regardless of whether he intended to perform it. People v Lardie, 

452 Mich 231, 241; 551 NW2d 656 (1996). Here, it is clear from the wording of subsection (1) 

that the Legislature intended to hold a person liable under the above provision only if the person 

had knowledge that they were driving without a valid license. Where a statute requires a 

criminal mind for some but not all of its elements, it is not one of strict liability. People v Quinn, 

440 Mich 178, 187; 487 NW2d 194 (1992). Therefore, MCL 257.904(4) is not a strict liability 

statute just because there is no intent requirement for the “causing death” element. 

Defendant also contends that subsection (4) of the statute is unconstitutional because 

driving while one’s license is suspended has no bearing on the person’s ability to operate a motor 

vehicle; there is no casual relation between a person’s decision to drive and the death of an 

individual, and thus, the provision violates his due process rights. We disagree. 

MCL 257.904(4) is a general intent crime. The prosecutor needed to prove that 

defendant voluntarily drove a motor vehicle despite knowing that he was not entitled to do so. 

See Lardie, supra at 241. The statute is designed to discourage persons, who have been 

determine to be unfit drivers, from driving without being entitled to the privilege. 1998 PA 341. 

We find that MCL 257.904(4) is rationally related to a legitimate state purpose, and, therefore, is 

constitutional. Mahaffey v Attorney General, 222 Mich App 325, 344; 564 NW2d 104 (1997); 

see also Quinn, supra at 187. “A statute is not unconstitutional merely because it is undesirable, 

unfair, or unjust.” Phillips v Mirac, Inc, 251 Mich App 586, 589; 651 NW2d 437 (2002). 

V. Sufficiency of the Evidence 

We review de novo challenges to the sufficiency of the evidence at trial. People v 

Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). In determining whether sufficient 

evidence has been presented to sustain a conviction, an appellate court is required to view the 

evidence in a light most favorable to the prosecution and determine whether a rational trier of 

fact could have found that the essential elements of the crime were proven beyond a reasonable 

doubt. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). 

Defendant asserts that there was insufficient evidence to support his convictions for 

operating a motor vehicle while impaired, causing death, MCL 257.625(4), manslaughter with a 

motor vehicle, MCL 750.321, and operating a motor vehicle with a revoked license causing 

death, MCL 257.904(4). Again, we disagree. 

MCL 257.625(4) provides that “[a] person, whether licensed or not, who operates a motor 

vehicle in violation of subsection (1) or (3) and by the operation of that motor vehicle causes the 

death of another person” is guilty of a crime. MCL 257.625(1) and (3) provide, 

(1) A person, whether licensed or not, shall not operate a vehicle upon a 

highway or other place open to the general public or generally accessible to motor 

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vehicles, including an area designated for the parking of vehicles, within this state 

if either of the following applies: 

(a) The person is under the influence of intoxicating liquor, a controlled 

substance or a combination of intoxicating liquor and a controlled substance. 

(b) The person has an alcohol content of 0.10 grams or more per 100 

milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. 

* * * 

(3) A person, whether licensed or not, shall not operate a vehicle upon a 

highway or other place open to the general public or generally accessible to motor 

vehicles, including an area designated for the parking of vehicles, within this state 

when, due to the consumption of intoxicating liquor, a controlled substance, or a 

combination of intoxication liquor and a controlled substance, the person's ability 

to operate the vehicle is visibly impaired .... 

Defendant’s involuntary manslaughter conviction required that the prosecution prove that 

defendant operated his vehicle in a grossly negligent manner, Lardie, supra at 247-248, and 

caused the death of another, People v Tims, 449 Mich 83, 94; 534 NW2d 675 (1995). 

The prosecution’s forensic toxicologist testified that defendant’s blood alcohol level was 

between .09 and .11 during the accident, assuming he did not have a beer when he was driving. 

Moreover, the arresting officer testified that he believed that defendant was visibly impaired due 

to alcohol consumption. Also, there was testimony that defendant was driving at a high rate of 

speed in an erratic fashion. This evidence, viewed most favorably to the prosecution, was 

sufficient to enable the jury to find that defendant was guilty of OUIL causing death and 

manslaughter with a motor vehicle. 

Defendant contends that his conviction under MCL 257.904(4) should be reversed 

because there was insufficient evidence to show a causal connection between his driving with a 

revoked license and the victim’s death. As support for his contention, defendant cites Lardie, 

supra. 

In Lardie, the Court held that MCL 257.625(4), operation of a motor vehicle while 

intoxicated causing death, required proof of causation, i.e., the prosecutor must establish that the 

particular defendant's decision to drive while intoxicated produced a change in that driver's 

operation of the vehicle that caused the death. Id. at 234; 257-258. In reaching its conclusion, 

the Court considered the Legislature’s intent, which was to reduce fatalities by deterring drunken 

driving. Id. at 257. Therefore, the statute must have been designed to punish drivers only when 

their drunken driving caused another’s death. Id. at 257-258. 

In this case, the statute was enacted to address the problem of individuals who engage in 

drunk driving and have their license suspended or revoked, yet continue to drive on these invalid 

licenses. 1998 PA 341. The statute was obviously designed to punish drivers who cause a fatal 

accident because they disregarded their revoked or suspended status. The prosecution presented 

evidence that the state issued notice to defendant that his license was revoked, and additionally, 

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18. 

2 

that defendant had been drinking. Therefore, we find that, viewing the evidence in a light most 

favorable to the prosecution, the evidence was sufficient to support the conviction. 

VI. Sentencing Issues 

Defendant argues that the trial court erred in scoring offense variables (“OV”) 9, 13, and 

A sentencing court has discretion in determining the number of points to be scored, 

provided that evidence of record adequately supports a particular score. People v Hornsby, 251 

Mich App 462, 468; 650 NW2d 700 (2002). Scoring decisions for which there is any evidence 

in support will be upheld. Id. 

A. OV 9 

Defendant contends that OV 9 was improperly scored at ten points. Ten points is 

properly scored if there are between two and nine victims. Each person who is placed in danger 

of injury or loss of life is considered a victim. MCL 777.39. The evidence indicated that there 

were four victims, Beth Ann Lay and her two children who were in the car that defendant passed 

and the decedent, Mr. Keeton. Ms. Lay testified that defendant pulled up behind her out of 

nowhere, driving at a high rate of speed, swerved to her right, hit Mr. Keeton, then cut back in 

front of her. The court properly assessed ten points. 

B. OV 13 

Defendant also disputes the twenty-five points which were scored for OV 13. Twentyfive points are properly scored for OV 13 if “[t]he offense was part of a pattern of felonious 

criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(b).3

 MCL 

777.43(2)(a) states that “[f]or determining the appropriate points under this variable, all crimes 

within a 5-year period, including the sentencing offense, shall be counted regardless of whether 

the offense resulted in a conviction.” Zero points should be scored if there is no pattern of 

felonious criminal activity. MCL 777.43(1)(f). 

At sentencing, the prosecutor argued that OV 13 was properly scored at twenty-five 

points because there were four felony convictions, but conceded that there was no pattern of 

felonious criminal activity over the past five years outside the instant offenses. The court 

concluded that, while there was no pattern in the sense that defendant had prior felony 

convictions, the twenty-five point score was supported based on defendant’s multiple 

convictions. 

The proper application of the statutory sentencing guidelines is a legal question reviewed 

by this Court de novo. People v Libbett, 251 Mich App 353, 365; 650 NW2d 407 (2002). In 

2 The offenses here were committed in October 1999; therefore, this matter is controlled by the 

legislative sentencing guidelines. MCL 769.34(2); See People v Reynolds, 240 Mich App 250,

253, 611 NW2d 316 (2000). 

3

 MCL 777.43 was amended by 1999 PA 279, effective October 1, 2000. 

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construing OV 13, we must assign the words their plain and ordinary meaning. Id. The use of 

the term “pattern” and the fact that the Legislature permitted consideration of all crimes within a 

five-year period evinces an intention that it is repeated felonious conduct that should be 

considered in scoring this offense variable. 

In People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001), the Court held that 

twenty-five points were properly scored because of “defendant’s four concurrent convictions” in 

that case. The defendant was convicted of four counts of making child sexually abusive 

material, which were based on defendant’s activities in photographing two fifteen-year-old girls. 

Four photos, two of each girl, taken on a single date, supported defendant’s four convictions. Id. 

at 525. We believe that this case is distinguishable from Harmon because defendant’s 

convictions stemmed from one incident, not four individual acts. Therefore, we conclude that 

the trial court improperly scored OV 13 at twenty-five points; rather, no points should have been 

scored. 

C. OV 18 

Defendant also contends that the five point score for OV 18 is erroneous. Five points are 

to be scored for OV 18 if the offender operated a vehicle when his bodily alcohol content was 

0.07 or more but less than 0.10 grams per 100 milliliters of blood, or while the offender was 

visibly impaired by the use of intoxicating liquor. MCL 777.48. The evidence indicated that 

defendant’s blood alcohol level was between .09 and .10 during the accident, assuming he did 

not have a beer when he was driving. His blood alcohol level would have been between .07 and 

.09 had he consumed a beer during his drive. Moreover, the arresting officer testified that 

defendant was visibly impaired due to alcohol consumption. Thus, the score of five points was 

warranted. 

D. Resentencing 

Because the reduction in score for OV 13 places defendant’s sentences for counts I-III 

above the sentencing guidelines4

 and there is no indication on the record that the trial court 

would have found a substantial and compelling reason to depart, we must remand this case for 

resentencing. Cf People v Mutchie, 251 Mich App 273, 275; 650 NW2d 733 (2002). 

Accordingly, we need not decide whether these sentences are proportional. 

However, we affirm defendant’s sentence for failure to stop at the scene of a serious 

personal injury accident (count IV). Even with the OV 13 scoring error, his sentence is within 

the range recommended by the statutory sentencing guidelines. A sentence within the guideline 

range is presumed proportional and defendant has not presented any circumstances for us to find 

otherwise. People v Hogan, 225 Mich App 431, 437; 571 NW2d 737 (1997). 

Defendant also contends that resentencing should take place before a different judge. In 

determining whether resentencing should occur before a different judge, this Court considers (1) 

whether the original judge would reasonably be expected upon remand to have substantial 

4 Defendant’s new sentencing guideline’s range is 36 to 71 months’ imprisonment, MCL 777.64; 

thus, his minimum sentence of 84 months’ imprisonment for counts I-III is above this range. 

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difficulty in putting out of his or her mind previously-expressed views or findings determined to 

be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to 

preserve the appearance of justice, and (3) whether reassignment would entail waste and 

duplication out of proportion to any gain in preserving the appearance of fairness. People v Hill, 

221 Mich App 391, 398; 561 NW2d 862 (1997). 

Here, defendant cites nothing other than the court’s misscoring of the three offense 

variables at issue in support of his claim. However, the court correctly scored two of these 

offense variables, and the third involved a question of law. Given these circumstances, we find 

that defendant has not shown he is entitled to resentencing before a different judge. 

Affirmed, but remanded for resentencing. We do not retain jurisdiction. 

/s/ Jane E. Markey 

/s/ Michael R. Smolenski 

/s/ Patrick M. Meter 

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STATE OF MICHIGAN

IN THE COURT OF APPEALS

Cover Sheet

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Filing Party

Filing Party Last Name or Business/Entity/Agency Name

GIBBS CHARLES PHILLIP

Filing Party First Name M.I.

Address (Street 1, Street 2, City, State, and ZIP Code)

Attorney Last Name

Robinson

Attorney First Name M.I. P Number

Brandy Y 66895

Address(Street 1, Street 2, City, State, and ZIP Code)

645 Griswold Street

Suite 3300

Detroit MI 48226

Attorney Telephone Number

(313)256-9833

Summary of Items Filed

 Filing Doc Total

Type Filename/Description Fee Fee This Filing

 Motion - Regular Motion to Remand, Offer of Proof, Supporting Brief, and Appendic

es $5.00 ---- $5.00

 3% Service Fee: 

Total All Filings: 

$0.15

Fee Substitute/Alternate Payment $5.15

Reason:

X Appointed Counsel

Motion To Waive Fee

Fees Waived in this Case

MI InterAgency Transfer

No Fee per MCR 7.203(F)(2)

Filer Office Use Only: 25680

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

306124 - 263567

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 RECEIVED by Michigan Court of Appeals 5/23/2012 11:07:40 PM

Case Name: PEOPLE OF MI V PHILLIP CHARLES GIBBS

On , one copy of the following documents: 5/23/2012

Motion - Regular Motion to Remand, Offer of Proof, Supporting Brief, and Appendic

es

was delivered to the persons listed below:

Date Signature

5/23/2012 /s/Brandy Y. Robinson

 Bar Delivery 

 Number Name Method Service Address

P- AO, SADO E-Serve ao@sado.org

P- AO Support,

Genesee County

E-Serve vhaley@co.genesee.mi.us

P- 66895 Robinson, Brandy Y E-Serve brobinson@sado.org

P- lamarre, lisa E-Serve llamorre@sado.org

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Proof of Service

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

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STATE OF MICHIGAN 

IN THE COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN

 Court of Appeals No. 306124 

 Plaintiff-Appellee, 

Lower Court No. 11-28140FC 

-vsPHILLIP CHARLES GIBBS

 Defendant-Appellant. 

________________________________/ 

GENESEE COUNTY PROSECUTOR 

Attorney for Plaintiff-Appellee 

________________________________ 

BRANDY Y. ROBINSON (P66895)

Attorney for Defendant-Appellant 

________________________________ 

MOTION TO REMAND 

OFFER OF PROOF 

BRIEF IN SUPPORT OF APPELLANT’S MOTION TO REMAND 

STATE APPELLATE DEFENDER OFFICE 

BY: BRANDY Y. ROBINSON (P66895) 

 Assistant Defender

 3300 Penobscot Building 

 645 Griswold 

 Detroit, Michigan 48226 

 (313) 256-9833 

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STATE OF MICHIGAN 

IN THE COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN

 Court of Appeals No. 305939 

 Plaintiff-Appellee, 

Lower Court No. 11-28140FC 

-vsPHILLIP CHARLES GIBBS

 Defendant-Appellant. 

________________________________/ 

 MOTION TO REMAND

 Defendant-Appellant PHILLIPS CHARLES GIBBS, through his attorneys, the STATE 

APPELLATE DEFENDER OFFICE, by BRANDY Y. ROBINSON, respectfully moves for 

remand to the trial court, pursuant to MCR 7.211(C)(1)(a), stating: 

 1. Mr. Gibbs seeks remand to make two additional objections to his sentence and to 

develop his claim that he was denied his right to a public trial. Trial counsel did not raise these issues at 

trial or sentencing, but guidelines objections may be made for the first time in a motion to remand. 

MCL 769.34(10); MCR 6.429(C). Alternatively, Mr. Gibbs argues that his trial counsel was ineffective 

for acquiescing to the trial errors, and for failing to challenge the illegal sentence. See Brief in Support of 

Motion to Remand. 

 2. As to the scoring errors, Mr. Gibbs challenges PRV-5 and PRV-6, based in part upon 

the attached affidavit of counsel. Trial counsel interposed a timely objection to the scoring of OV-13. 

 3. As to the public trial claim, Mr. Gibbs relies on the attached affidavits of members of 

his family to challenge (1) the Court’s de facto policy of excluding members from the public during voir 

dire and (2) counsel’s ineffectiveness for failing to ensure that Mr. Gibbs’ family and other members of 

the public were not improperly pushed out of the courtroom.

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 4. A remand is appropriate because these matters must be first resolved by the trial court 

and/or require the development of an additional factual record to enable full appellate review by this 

Court. 

 WHEREFORE, Defendant-Appellant respectfully requests that this Honorable Court grant 

his Motion to Remand and afford him an opportunity to (1) develop the record by taking testimony and 

evidence regarding the closure of the courtroom, (2) examine trial counsel’s reasons for failing to object 

to this error, and (3) ask the trial court for resentencing on the basis of his improperly scored guidelines 

under PRV-5 and PRV-6. 

 Respectfully submitted, 

 STATE APPELLATE DEFENDER OFFICE

 /s/ Brandy Y. Robinson 

 BY: _______________________________ 

 BRANDY Y. ROBINSON (P66895) 

 Assistant Defender

 3300 Penobscot Building 

 645 Griswold 

 Detroit, Michigan 48226 

 (313) 256-9833 

Date: May 23, 2012 

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STATE OF MICHIGAN 

IN THE COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN

 Court of Appeals No. 306124 

 Plaintiff-Appellee, 

Lower Court No. 11-28140FC 

-vsPHILLIP CHARLES GIBBS

 Defendant-Appellant. 

________________________________/ 

AFFIDAVIT OF COUNSEL / OFFER OF PROOF

BRANDY Y. ROBINSON hereby states as follows: 

1. I represent Mr. Gibbs on appeal from the above-referenced conviction. 

2. In researching Mr. Gibbs’ sentence for appeal, I discovered an inaccuracy in the 

Presentence Investigation Report regarding Mr. Gibbs’ relationship to the criminal justice 

system at the time he committed the current offenses. 

3. I recently contacted the Juvenile Records Department of the Family Court Division of the 

Genesee County Probate Court. I spoke by telephone with a clerk who informed me that 

her review of Mr. Gibbs’ juvenile file showed no indication whatsoever that Mr. Gibbs had 

been placed on bond between adjudication and sentencing for entering without permission. 

4. Assuming this information is correct, there was no basis for scoring points against Mr. 

Gibbs under Prior Record Variable 5. 

5. Counsel is undertaking steps to obtain an official certification of Mr. Gibbs’ no-bond status 

as a juvenile. 

6. Once that certification is obtained, counsel will promptly file evidence thereof with the 

Court. 

7. Additionally, if granted a hearing on Mr. Gibbs’ claim that he was denied the right to a 

public trial, the undersigned counsel will proffer the testimony of, inter alia, Mr. Gibbs’ 

mother, Elverta Gibbs, his Sister Seandra Davidson-Coleman, and his soon-to-be brother 

in law Courtney Jones. The substance of their proposed testimony appears in the attached 

Affidavits. Counsel will also seek evidence from court staff connected with Judge 

Fullerton’s chambers to as to her policy on this subject as of the time of trial. Trial counsel 

will also have to be examined. 

8. The foregoing statements are true to the best of my knowledge. 

 /s/Brandy Y. Robinson 

 ______________________________ 

 BRANDY Y. ROBINSON (P66895)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.....................................................................................................i 

STATEMENT OF JURISDICTION ......................................................................................iv 

STATEMENT OF QUESTIONS PRESENTED ...................................................................v 

STATEMENT OF FACTS ....................................................................................................... 1 

ARGUMENTS 

I. THE TRIAL COURT VIOLATED MR. GIBBS’ SIXTH AMENDMENT RIGHT TO 

A PUBLIC TRIAL BY CLOSING THE COURTROOM AND EXCLUDING 

MEMBERS OF HIS FAMILY FROM JURY SELECTION. ..........................................8 

II. BECAUSE THE COURT BELOW MADE THREE GUIDELINES-SCORING 

MISTAKES, AND CORRECTING THE MISTAKES WOULD SUBSTANTIALLY 

REDUCE THE GUIDELINES RANGE, MR. GIBBS MUST BE RESENTENCED.12 

SUMMARY AND RELIEF AND REQUEST FOR ORAL ARGUMENT .......................... 21 

BYR*BOA with Trim.doc*25680 May 23, 2012 

Phillip Charles Gibbs 

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i

TABLE OF AUTHORITIES 

CASES 

Combs v Coyle, 205 F3d 269 (6th Cir 2000) ...................................................................................................12 

People v Dendel, 481 Mich 114 (2008)...............................................................................................................8 

Feld v Robert & Charles Beauty Salon, 435 Mich 352 (1990) .........................................................................20 

Gannet Co v DePasquale, 443 US 368 (1979)....................................................................................................9 

Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66 (2006) ........................................................................20 

In re MKK, 286 Mich App 546 (2009) ...........................................................................................................18 

Miller v Allstate Ins. Co., 481 Mich 601 (2008) ..............................................................................................20 

Neder v United States, 527 US 1 (1999)...........................................................................................................11 

In Re Oliver, 333 US 257 (1948) ........................................................................................................................8 

People v Anderson, 446 Mich 392 (1994).........................................................................................................11 

People v Cannon, 481 Mich 152 (2008)............................................................................................................23 

People v Cannon, 481 Mich 152 (2008)............................................................................................................22 

People v Carines, 460 Mich 750 (1999)........................................................................................................8, 11 

People v Collier, 426 Mich 23 (1986)..................................................................... 12; 13 

People v Dye, 431 Mich 58 (1988)....................................................................................................................12 

People v Endres, 269 Mich 414 (2006).............................................................................................................18 

People v Francisco, 474 Mich 82........................................................................................................................15 

People v Harmon, 248 Mich App 522 (2001)..................................................................................................22 

People v Hegwood, 465 Mich 432 (2001)..........................................................................................................21 

People v Johnson, 293 Mich App 79 (2011) .....................................................................................................18

People v Koonce, 466 Mich 515 (2002) .............................................................................................................18 

People v Lee, 391 Mich 618 (1974) ..................................................................................................................15 

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ii

People v Malkowski, 385 Mich 244 (1971)......................................................................................................15 

People v McPherson, 263 Mich App 124 (2004)..............................................................................................12 

People v Morson, 471 Mich 248 (2004) ............................................................................................................15 

People v Stone, 195 Mich App 600 (1992).......................................................................................................20 

Presley v Georgia, 558 US _, 130 S Ct 721 (2010) ................................................................................. 8, 9, 10 

Press-Enterprise Co v Superior Court, 478 US 1 (1980)......................................................................................9 

Salem v Jenkins, 414 F Supp 2d 687 (ED Mich 2006)..................................................................................10 

In re TD, __ Mich App __ (May 26; 2011) (Docket No. 294716) ............................................................19 

Taylor v Michigan Public Utilities Comm., 217 Mich 400 (1922).....................................................................20 

Tellin ex rel Hinga v Forsyth Tp., 291 Mich App 692 (2011).........................................................................18 

Townsend v Burke, 334 US 736 (1948) ............................................................................................................15 

US Fidelity Insurance & Guaranty Co v Michigan Catastrophic Claims Ass'n, 482 Mich 414 (2008) ............18 

United States v Marcus, 130 S Ct 2159 (2010) ................................................................................................11 

Waller v Georgia, 467 US 39 (1984)........................................................................................................ 8, 9, 11 

Washington v Recuenco, 548 US 212 (2006) .....................................................................................................11 

CONSTITUTIONS, STATUTES, COURT RULES 

MCL 712A.1(2) ..............................................................................................................................................19 

MCL 712A.1 et seq............................................................................................................................................19 

MCL 712A.2(a)(1)............................................................................................................................................21 

MCL 750.529 .................................................................................................................................................1 

MCL 750.530 .................................................................................................................................................1 

MCL 777.40 ................................................................................................................................................23 

MCL 777.43(1) ..................................................................... 22; 23; 24 

MCL 777.51; 777.52 ........................................................................................................................................19 

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iii

MCL 777.53 ................................................................................................................................................22 

MCL 777.53; 777.54 ........................................................................................................................................19 

MCL 777.55(1) ...................................................................................... 16; 19 

MCL 777.55(3) .................................................................................................................................................20 

MCL 777.56(1) ................................................................................ 17; 18; 20 

MCL 777.57 ................................................................................................................................................23 

MCR 2.613(A) ..................................................................................................................................................15 

US Const; amend VI .........................................................................................................................................8 

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iv

STATEMENT OF JURISDICTION

 Defendant-Appellant was convicted in the Genesee County Circuit Court by jury trial, and a 

Judgment of Sentence was entered on August 15, 2011. A Claim of Appeal was filed on September 

16, 2011 by the trial court pursuant to the indigent defendant's request for the appointment of 

appellate counsel dated September 6, 2011, as authorized by MCR 6.425(F)(3). This Court has 

jurisdiction in this appeal as of right provided for by Mich Const 1963, art 1, §20, pursuant to MCL 

600.308(1); MCL 770.3; MCR 7.203(A), MCR 7.204(A)(2). 

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v

STATEMENT OF QUESTIONS PRESENTED

I. DID THE TRIAL COURT VIOLATE MR. GIBBS’ SIXTH AMENDMENT RIGHT TO A 

PUBLIC TRIAL BY CLOSING THE COURTROOM AND EXCLUDING MEMBERS OF 

HIS FAMILY FROM JURY SELECTION? 

Trial Court made no answer. 

Defendant-Appellant answers, "Yes". 

II. BECAUSE THE COURT BELOW MADE THREE GUIDELINES-SCORING 

MISTAKES, AND CORRECTING THE MISTAKES WOULD SUBSTANTIALLY 

REDUCE THE GUIDELINES RANGE, MUST MR. GIBBS MUST RESENTENCED? 

Trial Court answers, "No". 

Defendant-Appellant answers, "Yes". 

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1

STATEMENT OF FACTS

On October 26, 2011, the lives of Defendant-Appellant Phillip Charles Gibbs, two Flint 

pawn-shop owners, and one of the shop’s employees were changed forever when Mr. Gibbs – a 

mere sixteen years old at the time – entered the pawn shop with co-defendant Tyrell Henderson and 

participated in a robbery. Gibbs was unarmed during the crime and insisted he knew nothing of 

Henderson’s plans. Instead, he acted under the very-real stress of knowing that his out-of-control 

co-defendant might turn the gun on him for failing to assist. 

* * * * * 

 It was undisputed that Mr. Gibbs was the more passive actor during the robbery, which was 

recorded on the store’s surveillance system. Costas Anagnostopoulos, the owner of Flint-based 

Wholesale 4 U,1

 testified that around 4:00 p.m. on October 26th, Mr. Henderson entered the store 

alone and purchased a video game. [Trial 6/29/11, p 252-253]. Henderson later returned, this time 

with Mr. Gibbs, and claimed the game was not working properly. Mr. Anagnostopoulos directed his 

employee, Jeremy Kassing, to troubleshoot the problem on the store’s Xbox game system. In the 

meantime, Mr. Anagnostopoulos brought over a power supply to aid with the assessment. It was 

then that Mr. Henderson hit Mr. Anagnostopoulos suddenly with a gun on the back of his neck, 

causing him to nearly fall to the ground. Mr. Henderson was pointing the gun at Mr. 

Anagnostopoulos and ordered him to sit on the floor. Mr. Henderson then demanded and took Mr. 

Anagnostopoulos’ rings, neck jewelry, wallet, and money at gunpoint. [Trial 6/29/11, p 258-263]. 

He also ordered Mr. Anagnostopoulos to open the cash register. [Trial 6/29/11, p 263]. In reciting 

what happened next, Mr. Anagnostopoulos began to testify not based on his knowledge or memory, 

 

1

 The witness testified that the shop was also known as Wholesale 2 U. Despite having a 

reputation otherwise, Mr. Anagnostopoulos was adamant that his store was not at all functioning 

as a pawn shop. [Trial 6/29/11 245]. 

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but by narrating the contents of the surveillance video in response to questions asked by the 

prosecutor. [Trial 6/30/11, p 5-8]. 

 Mr. Anagnostopoulos noted that Mr. Henderson took him to an office inside the store and 

ordered him to open up the safe. Mr. Henderson was calling Mr. Anagnostopoulos racial slurs and 

threatening to shoot and kill him, and then hit him with the gun again on the side of his face.2

 [Trial 

6/30/11, p 9, 14-15]. Mr. Henderson directed Mr. Anagnostopoulos to hand him everything from 

inside the safe, including a gun he kept there. [Trial 6/30/11, p 23]. Some of the other stolen goods 

included paper money, gold coins, silver dollars, silver certificates, foreign currency, three Rolex 

watches, and a gold Fossil watch. [6/30/11 Trial, p 39-44]. 

Mr. Henderson and Mr. Gibbs ultimately left the store and Mr. Anagnostopoulos, his wife, 

and Mr. Kassing followed to determine where the two men went. [Trial 6/30/11, p 27-29]. The 

police called and eventually arrived on the scene in response to receiving a silent panic alert from 

inside the store from Mr. Kassing. [Trial 6/30/11, p 29-31]. 

Mr. Anagnostopoulos was able to pick out Mr. Gibbs in a subsequent corporeal line-up, but 

could not identify Mr. Henderson.3

 [Trial 6/30/11, p 32-35]. According to him, his watches and 

Visa debit card was recovered, but several items taken during the robbery were never returned to 

him. [Trial 6/30/11, p 34-37]. 

 Nancy Anagnostopoulos was a joint owner of the Wholesale 4 U business with her 

husband Costas. [Trial 6/29/11, p 8-9]. She arrived at the store around 5:25pm on the day of the 

robbery, thirty minutes before closing. Her husband and Jeremy Kassing were present, and she sat 

down and down began reading a book [Trial 6/29/11, p 41-42]. Like her husband, Mrs. 

 

2

 Part of Mr. Anagnostopoulos’ ear was cut from being hit with the gun, requiring four stitches. 

He also claimed to have more frequent headaches as a result. [Trial 6/30/11, p 45-46]. 3

 Mr. Anagnostopoulos was able to identify both men at trial. [Trial 6/29/11, p 251-252]. 

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Anagnostopoulos recounted what happened next by walking the prosecutor and jury through the 

contents of the video, rather than testifying from her memory. 

As her husband and Mr. Kassing worked to troubleshoot the video game, Mrs. 

Anagnostopoulos heard a loud crack. She stood up and saw her husband going down on the floor, 

and Mr. Gibbs approached her. He jerked the necklaces from her neck and tried to remove Mrs. 

Anagnostopoulos’ ring from her finger.4

 When he could not remove the ring himself, he directed 

Mrs. Anagnostopoulos to either do so, or risk him cutting it off. Mr. Gibbs reached into all of Mrs. 

Anagnostopoulos’ pockets and took her identification, ATM card, concealed pistol license, and 

money. [Trial 6/29/11, p 62-65, 94]. Mr. Henderson later double checked Mr. Gibbs’ work in this 

regard. [Trial l6/29/11, p 117]. Mr. Gibbs never had possession of a gun, knife, or any other 

weapon and never threatened to beat, stab, shoot, or otherwise injure her, her husband, or Mr. 

Kassing. [Trial 6/29/11, p 106-110]. 

Mrs. Anagnostopoulos could see the gun in Mr. Henderson’s hand, and heard him yelling 

racial slurs and threats at her husband. [Trial 6/29/11, p 66-67, 121-124]. When Henderson led Mr. 

Anagnostopoulos into the back room, Mr. Gibbs began removing money from the cash register. He 

also took an iPod, and according to Mrs. Anagnostopoulos, Mr. Gibbs retrieved several laptops 

from the showcase because Mr. Henderson had instructed him to do so. Mr. Gibbs was hesitant to 

go behind the showcase to obtain more merchandise, so Mrs. Anagnostopoulos volunteered to do 

so for him. [Trial 6/29/11, p 67-70]. Mr. Gibbs did not say much else to her, but he yelled to Mr. 

Henderson to “come on” and that they had three minutes. [Trial 6/29/11, p 71-72]. At that point 

(but only after double-checking whether Mr. Gibbs properly emptied the register), Mr. Henderson 

picked up a duffle bag, threw it at Mr. Gibbs, and yelled at him to put the laptops inside. [Trial 

6/29/11, p 67, 73-74]. Mr. Gibbs “just did it,” according to Mrs. Anagnostopoulos. Mr. 

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Henderson then directed Mr. Gibbs to wait before leaving, as they couldn’t exit with the items so 

conspicuously.5

 Mr. Henderson then emptied Mrs. Anagnostopoulos’ purse. [Trial 6/29/11, p 74]. 

The two men left and Mrs. Anagnostopoulos, her husband and Mr. Kassing conveyed information 

about the event to the police. [Trial 6/29/11, p 85, 89-93]. In separate live-lineups conducted later, 

Mrs. Anagnostopoulos selected Mr. Gibbs and Mr. Henderson as her assailants. [Trial 6/29/11, p 

99-104]. She also identified the men in court. 

Jeremy Kassing added that the store had a hand-held silent panic alarm system, and he 

pressed the device nine times during the robbery to alert the police. [Trial 6/30/11, p 78-79]. Mr. 

Kassing identified Mr. Gibbs as one of his assailants both during a lineup and at trial. [Trial 

6/30/11, p 79-80, 101-103]. Like the other two witnesses, Mr. Kassing confirmed that only Mr. 

Henderson had a gun during the incident. Additionally, it was only Mr. Henderson who demanded 

that Mr. Kassing empty his pockets. [Trial 6/30/11, p 81-82, 97]. Mr. Kassing perceived Mr. 

Henderson as the leader of the robbery, inasmuch as he was telling Mr. Gibbs what to do. [Trial 

6/30/11, p 115-116]. 

Officer Michael Ross of the Flint Police Department responded to the radio dispatch 

regarding the incident. [Trial 6/29/11, p 149, 151]. He took descriptions of the suspects, watched a 

portion of the surveillance video, and looked for potential fingerprints that could be lifted from the 

scene. [Trial 6/26/11, p 154-155, 157-159]. 

After speaking with Officer Ross and watching the surveillance video, Michele Champion 

(then an identification technician for the Flint Police Department), processed a video game, a 

countertop, the safe, and a glass display cases inside the shop in an effort to locate fingerprints 

 4

 Mrs. Anagnostopoulos claimed to suffer whiplash from the snatching incident. [Trial 6/29/11, 

p 94]. 

5

 Jeremy Kassing recalled this sequence of events similarly, noting that Mr. Henderson told Mr. 

Gibbs he couldn’t look so suspicious, and then went back and found another bag. [Trial 6/30/11, 

p 93]. 

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[Trial 6/29/11, p 183, 187-190, 206-207]. She then submitted the prints for further identification 

through the Automated Fingerprint Identification System (AFIS), a national database. [Trial 

6/29/11, p 197-198]. Mary Martin, an AFIS employee and sworn expert in fingerprint 

identification and comparison, then testified that one of the prints recovered matched Mr. Gibbs’ 

left ring finger, while another matched Mr. Henderson’s left ring finger. She also determined that 

one of the prints belonged to Costas Anagnostopoulos. [Trial 6/29/11, p 230-233]. Phillip Thick, 

another AFIS employee and fingerprint expert, added that a separate print recovered from the scene 

matched Mr. Gibbs’ left thumb. [Trial 7/6/11, p 8, 16, 23-24]. 

Sergeant Shawn Ellis testified as the officer in charge of the investigation. [Trial 6/30/11, 

p 143]. After receiving the AFIS report, Sergeant Ellis followed-up with Mr. Gibbs, who turned 

himself in. He obtained consent from Mr. Gibbs’ mother to search her house, and there the officer 

recovered, inter alia, (1) a Ziploc bag with miscellaneous jewelry, (2) a Sam’s Club card bearing Nancy 

Anagnostopoulos’ name and picture, (3) three Rolexes and a Fossil watch, and (4) coins and foreign 

currency. [Trial 6/30/11, p 152-153, 156-161]. 

Sergeant Ellis obtained a statement from Mr. Gibbs after he voluntarily surrendered. He 

claimed that Mr. Gibbs waived his Miranda rights and that the statement was recorded, although he 

was unable to produce the recording at the time of trial. [Trial 6/30/11, p 203, 211-212]. According 

to Sergeant Ellis, Mr. Gibbs said he and Mr. Henderson went to the pawn shop to try and sell some 

jewelry. They were trying to raise money to buy marijuana, but were told the jewelry was fake. [Trial 

6/30/11, p 212]. Mr. Henderson then bought a video game for them to play and the two men left 

the store. [Trial 7/6/11, p 34]. Henderson changed his mind and decided to return the game, and 

Mr. Gibbs accompanied him back to the pawn shop. Mr. Gibbs did not know that Henderson was 

going to rob the place, but once inside, Henderson pulled out the handgun, hit the store owner with 

it, and ordered Mr. Gibbs to take Mrs. Anagnostopoulos’ cell phone and jewelry along with laptops 

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and other items. [Trial 7/6/11, p 34-35]. Mr. Gibbs noted that Mrs. Anagnostopoulos offered to 

help him and ultimately did so. He acknowledged carrying away items from the store and said they 

drove around for thirty minutes and eventually ended up at Mr. Gibbs’ house. Mr. Henderson said 

he would pay Mr. Gibbs $100 to keep the items, but Mr. Gibbs was never paid and Mr. Henderson 

never came back to pick up anything he had left. Amongst the items police recovered from Mr. 

Gibbs was a Pittsburgh Pirates hat that he said belonged to Mr. Henderson. [Trial 7/6/11, p 36-37]. 

Lastly, Phillip Gibbs testified in his own defense. He was sixteen years old on the day of 

the robbery. [Trial 7/6/11, p 87-88]. He acknowledged being in the store earlier in the day in an 

effort to sell Mr. Henderson’s jewelry in exchange for money for marijuana. [Trial 7/6/11, p 90-91]. 

After learning that the jewelry had no value, he informed Mr. Henderson of that and the two men 

returned to the store to buy a video game instead. Mr. Gibbs went back to the store a third time 

with Henderson, who intended to seek a refund. As Mr. Anagnostopoulos and Mr. Kassing plugged 

up the video game for testing, Mr. Gibbs heard a smacking / clapping noise and saw Mr. 

Anagnostopoulos falling to the floor. [Trial 7/6/11, p 91-94]. Mr. Gibbs then saw Mr. Henderson 

with a large gun in his hand, and was startled when he realized Henderson had hit Mr. 

Anagnostopoulos with the gun. [Trial 7/6/11, p 95]. Mr. Gibbs knew what Mr. Henderson was 

doing was wrong, but he complied with his orders to retrieve items from Nancy. This was because 

he was hoping not to be injured himself, as he was afraid of Mr. Henderson’s gun. [Trial 7/6/11, p 

96]. Accordingly, he took the money from the cash register and complied with the order to take the 

laptops from the showcase even though he really wanted no part of the robbery. Although Mr. 

Gibbs did not run when Mr. Henderson was out of sight, he was thinking to himself that he hoped 

Mr. Henderson would not hurt anybody. [Trial 7/6/11, p 97-101]. Mr. Henderson emerged from 

the back and checked the cash register again, then threw a duffle bag on the floor with directions for 

Mr. Gibbs to fill it with laptops. Moreover, he called Mr. Gibbs dumb or stupid for leaving the 

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store with the items exposed, and retrieved Mrs. Anagnostopoulos’ purse to carry the gun and some 

of the laptops. [Trial 7/6/11, p 101-103]. Consistent with his police statement, Mr. Gibbs indicated 

that he was taken home and agreed to hide the goods at his house after being pressured by Mr. 

Henderson. [Trial 7/6/11, p 106-107]. 

Ultimately, a Genesee County jury refused to hold Mr. Gibbs accountable for the weapon 

Mr. Henderson used to effectuate the crime. Nevertheless, Mr. Gibbs was still convicted of two 

counts of armed robbery,6

 one count of unarmed robbery,7 and one count of conspiracy to commit 

armed robbery8 on July 2, 2011 following a five-day trial before the Honorable Judith A. Fullerton. 

[Trial 7/7/11, p 59-60]. 

At sentencing, trial counsel agreed to the scoring of the prior record variables, but 

challenged the points assessed against Mr. Gibbs for OV 4 and OV 13. [Sentence 8/15/11, p 9-18]. 

Notwithstanding his relatively lesser culpability, minimal past, and youthful status, Judge Fullerton 

ordered Mr. Gibbs to serve concurrent sentences at the very top of his guidelines of (1) 17.5 years to 

30 years imprisonment for the armed robbery and conspiracy charges, and (2) 100 months to 15 

years imprisonment for unarmed robbery charge. [Sentence 8/15/11, p 25-26]. Presently 

incarcerated, this is Mr. Gibbs’ appeal of right. 

 

6

 MCL 750.529. 

7

 MCL 750.530. 

8

 750.157a. 

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ARGUMENT

I. THE TRIAL COURT VIOLATED MR. GIBBS’ SIXTH 

AMENDMENT RIGHT TO A PUBLIC TRIAL BY CLOSING THE 

COURTROOM AND EXCLUDING MEMBERS OF HIS FAMILY 

FROM JURY SELECTION. 

Issue Preservation and Standard of Review. Trial counsel did not object to the closing of the 

courtroom during voir dire. Accordingly, the plain error standard of review applies. See People v 

Carines, 460 Mich 750, 763 (1999). Since this issue implicates Mr. Gibbs’s Sixth Amendment right to 

a public trial, this Court reviews the claim de novo. People v Dendel, 481 Mich 114 (2008). 

Argument. The Sixth Amendment directs that “[i]n all criminal prosecutions, the accused 

shall enjoy the right to a speedy and public trial. . . .” US Const; Am VI (emphasis added). This right 

applies to state prosecutions under the Fourteenth Amendment. In Re Oliver, 333 US 257, 273 

(1948). The policy considerations underlying the right to a public trial are compelling: “The 

requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt 

with and not unjustly condemned, and that the presence of interested spectators may keep his triers 

keenly alive to a sense of their responsibility and to the importance of their functions. . . .” Waller v 

Georgia, 467 US 39, 46 (1984) (quoting In re Oliver, supra at 270, n 25). 

In a recent per curiam decision, the United States Supreme Court noted unequivocally that the 

right to an open courtroom applies to the jury selection phase of the trial and, in particular, the 

examination of prospective jurors. Presley v Georgia, 558 US _; 130 S Ct 721, 725 (2010). This 

holding does not create a new right; it simply re-affirms what the Court recognized 28 years ago in 

Waller v Georgia, supra.9 The beneficiary of the right to a public trial is both the accused and the 

 

9 Among the values furthered by the public trial guarantee are: (1) to ensure a fair trial; (2) to remind the 

prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to 

encourage witnesses to come forward; and (4) to discourage perjury. Waller, supra at 46-47. 

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public-at-large. The right is grounded in the Sixth Amendment, Gannet Co v DePasquale, 443 US 368, 

380 (1979), as well as the First Amendment. See Press-Enterprise Co v Superior Court, 478 US 1 (1980). 

Presley reminds us that the selection of a jury is itself a matter of importance, “not simply to 

the adversaries, but to the criminal justice system.” Presley, supra at 724-25 (quoting Press-Enterprise 

Co, supra at 505.) The Presley majority used strong language, declaring that under the Court’s “clear 

precedents,” it was “so well settled that the Sixth Amendment right extends to jury voir dire that this 

Court may proceed by summary disposition.” Id. at 722–24. The tenor of the opinion demonstrates 

the Court’s frustration with repeated failures to abide by its holdings. 

Presley reemphasized that “[t]rial courts are obligated to take every reasonable measure to 

accommodate public attendance at criminal trials,” including at jury selection. Id. at 724. What is 

obvious from the Court’s discussion is that the first and foremost “obligation” is the duty to ensure 

the courtroom is open and not unduly restricted by staff or court officers. Furthermore, given the 

purposes of the public trial right articulated in Waller, it follows that the “integrity and public 

reputation of the judicial proceedings” is damaged when jury selection is closed to the public. 

 Here, the record is unclear as to whether Judge Fullerton knew her staff closed off the 

courtroom during voir dire. The Judge mentions at the very beginning that “if any spectators would 

like to come in they’re welcome,”10 yet affidavits submitted by several members of DefendantAppellant’s family suggest that court personnel told them exactly the opposite. Mr. Gibbs’ mother, 

sister, and brother-in-law have all attested that they, members of the co-Defendant’s family, and 

other members of the public were prevented from entering the courtroom during jury selection. 

Affidavits, Appendix A. Although these statements are not a part of the existing record, a remand is 

being requested so that Mr. Gibbs has an opportunity to further develop the issue for appeal. If it 

turns out to be true that access was restricted based solely on the need to conduct voir dire, Presley 

 

10 [Trial 6/28/11, p 4].

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indicates that reasonable alternatives had to be considered even if not advanced by the parties. 

Presley, supra at 725. Acceptable options could have included “reserving one or more rows for the 

public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective 

jurors not to engage or interact with audience members.” Id. at 725. 

 Although there was no specific objection to the courtroom closure, the Supreme Court has 

noted that the lack of a complete objection has no bearing on the issue of whether the public trial 

right has been violated: “The public has a right to be present whether or not any party has asserted the 

right.” Presley, supra at 724-25 (emphasis added). This language places the responsibility for ensuring 

the right to a public trial firmly at the feet of the trial judge, not the defendant. For example, in 

Salem v Jenkins, 414 F Supp 2d 687, 696 (ED Mich 2006) the district court held that “the Michigan 

Court of Appeals’ decision that counsel failed to preserve this issue was based on the incorrect belief 

that Waller required Petitioner’s attorney to advance specific objections.” To the contrary, it is not 

necessarily incumbent upon the defendant to contest a closed courtroom; rather, it is the onus of the 

trial court to ensure the public is granted access to a trial, thus preserving not only the defendant’s 

right, but also the rights of the public-at-large. Presley, supra at 721. Furthermore, the public has a 

right of access to criminal trials that may not be waived. Presley was decided as a Sixth Amendment 

case, but the Supreme Court reiterated that the right to a public trial is also guaranteed by the First 

Amendment: “The Court has further held that the public trial right extends beyond the accused and 

can be invoked under the First Amendment. This requirement, too, is binding on the States.” 

Presley, supra at 723. 

By contrast, this Court has held that “the failure to timely assert the right to a public trial 

forecloses the later grant of relief.” People v Vaughn, –– Mich App –– (Docket No. 292385, 

December 28, 2010), slip op 7. Yet, this reasoning cannot stand in the face of compelling U.S. 

Supreme Court statements to the contrary. 

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 The attached affidavits provide strong support to Mr. Gibbs’ claim that his right to a public 

trial was violated. It is equally clear that this violation, if allowed to become a matter of record, 

amounts to “structural” error, Waller supra, at 50 n. 9, since it “‘affect[s] the ‘framework within which 

the trial proceeds.’” United States v Marcus, 130 S Ct 2159, 2164 (2010) (quoting omitted). Automatic 

reversal is thus required. Washington v Recuenco, 548 US 212, 218-19 (2006). 

Even under plain error review, reversal is warranted. Carines, supra at 763. Since a violation 

of the public trial right is among the limited class of cases that involve structural error, prejudice is 

presumed, a violation of substantial rights has occurred, and a new trial is required. Neder v United 

States, 527 US 1, 8-9 (1999); People v Anderson, 446 Mich 392, 40 (1994). 

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II. BECAUSE THE COURT BELOW MADE THREE 

GUIDELINES-SCORING MISTAKES, AND 

CORRECTING THE MISTAKES WOULD 

SUBSTANTIALLY REDUCE THE GUIDELINES 

RANGE, MR. GIBBS MUST BE RESENTENCED. 

Issue Preservation and Standard of Review. Trial counsel objected at sentencing to some, but not 

all, of the erroneous scoring of the guidelines. Specifically, he did not contest the scoring of any of 

the Prior Record Variables, but he did challenge the points assessed against Mr. Gibbs under OV 13. 

The latter issue is thus preserved for appellate review. Mr. Gibbs is requesting a remand for a 

resentencing and/or so that he can first present these issues to the trial court for consideration. 

 The proper interpretation and application of the statutory sentencing guidelines are legal 

questions that Michigan appellate courts review de novo. People v Morson, 471 Mich 248, 255 (2004). 

Argument. Under the Michigan and United States Constitutions, defendants have a due 

process right to be sentenced on the basis of accurate information and in accordance with the law. 

Townsend v Burke, 334 US 736 (1948); People v Lee, 391 Mich 618, 636-637 (1974); People v Malkowski,

385 Mich 244 (1971). Further, MCR 2.613(A) provides that a sentence must be consistent with 

“substantial justice.” Our Supreme Court has found that “it is difficult to imagine something ‘more 

inconsistent with substantial justice’ than requiring a defendant to serve a sentence that is based 

upon inaccurate information.” People v Francisco, 474 Mich 82, 91, n6 (2006). Thus, a defendant is 

entitled to resentencing when his sentence is predicated upon mis-scored and inflated guidelines. Id. 

at 91-92. 

PRV-5

Resentencing is required because Mr. Gibbs was improperly assessed two points under Prior 

Record Variable (PRV) 5, where the order of disposition was entered after the commission date of 

the sentencing offense. 

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 Points may be attributed to a defendant under PRV-5 based on an offender’s prior 

misdemeanor convictions and prior misdemeanor juvenile adjudications. A score of two points is 

appropriate under this guideline if a person has “1 prior misdemeanor conviction or prior 

misdemeanor juvenile adjudication”: 

1) Prior record variable 5 is prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications. Score prior record variable 5 by 

determining which of the following apply and by assigning the number 

of points attributable to the one that has the highest number of points: 

(a) The offender has 7 or more prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications............................. 20 points 

(b) The offender has 5 or 6 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 15 points 

(c) The offender has 3 or 4 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 10 points 

(d) The offender has 2 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 5 points 

(e) The offender has 1 prior misdemeanor conviction or prior 

misdemeanor juvenile adjudication. ..................... 2 points 

MCL 777.55(1)(a) (emphasis added). If a defendant has no prior misdemeanor convictions 

or prior misdemeanor juvenile adjudications, the appropriate score to be assessed is zero 

points. The statute defines “prior misdemeanor juvenile adjudications” to mean “a juvenile 

adjudication for conduct that if committed by an adult would be a misdemeanor under a law 

of this state . . . if the order of disposition was entered before the sentencing offense 

was committed.” MCL 777.55(3)(b). 

 A review of the record here reveals, however, that the only juvenile adjudication 

eligible for scoring under PRV-5 was for an August 3, 2010 entering without permission 

case, the disposition of which took place November 9, 2010. Pre-Sentence Investigation 

Report (PSR) at 3. Because the current crimes occurred on October 26, 2010 (before the 

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juvenile disposition), it was improper to use this conviction as a basis for penalizing Mr. 

Gibbs with two points under PRV-5. This error, combined with the error in scoring PRV-6,

infra, affects Mr. Gibbs’ guidelines range and entitles him to a resentencing before the trial 

court. 

PRV-6

Additionally, Mr. Gibbs received a 5-point score under PRV-6 for being “on probation or 

delayed sentence status or on bond awaiting adjudication or sentencing for a misdemeanor.” MCL 

777.56(1)(d). Yet, this score was both factually and legally inappropriate. Factually speaking, as the 

attached affidavit of the undersigned counsel indicates, the Genesee County Juvenile Court has no 

record of Mr. Gibbs ever being placed on bond when he acquired the entering without permission 

charge as a juvenile. Affidavit of Counsel, Appendix B. Additional substantiation of this fact is 

forthcoming. Even if he had been on bond, however, the plain language of the legislative 

sentencing guidelines under PRV-6 make it apparent that points cannot be assessed for a 

defendant’s relationship with the juvenile justice system. Resentencing is thus warranted. 

A five-point score under PRV-6 is reserved for offenders who already have a “relationship 

to the criminal justice system” when the crime is committed. MCL 777.56(1). A few months before 

committing the sentencing offense, the then-sixteen-year-old defendant was adjudicated responsible 

(by virtue of a plea) for entering without permission in the Genesee County Probate Court (PSR 3). 

He did not receive a juvenile disposition for this offense until after the current crimes had been 

committed. When that disposition took effect, however, he was placed on a probationary term that 

was ultimately suspended in light of the charges in the current case. As noted, there is no evidence 

that Mr. Gibbs was on bond during the interim between his adjudication and disposition. 

Unlike the judicial guidelines, the Legislature’s version of PRV-6 does not assign points 

based on a defendant’s status within the juvenile justice system. See Part A, infra. Further, contrary 

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to what the trial court believed, this Court’s decision in People v Endres, 269 Mich 414 (2006), did not 

address the applicability of PRV-6 to offenders who commit crimes while awaiting juvenile 

disposition. See Part B, infra. Simply put, there is no authority for scoring PRV-6 in this case. 

Resentencing is warranted. 

 A. The Plain Language of PRV-6

 Whether a relationship to the juvenile justice system may be used to score PRV-6 is a 

question of statutory construction. When interpreting statutes, this Court must give effect to the 

intent of the Legislature by applying the provision’s plain language. People v Koonce, 466 Mich 515, 

518 (2002). This Court considers both the plain meaning of the critical word or phrase as well as its 

placement and purpose in the statutory scheme. US Fidelity Insurance & Guaranty Co. v Michigan 

Catastrophic Claims Ass’n, 482 Mich 414, 423 (2008). Whenever possible, the Court should give effect 

to every phrase, clause and word in a statute. Id. Omitted phrases may also be significant, as “[t]he 

Legislature is presumed to be familiar with the rules of statutory construction and, when 

promulgating new laws, to be aware of the consequences of its use or omission of statutory 

language[.]” Tellin ex rel Hinga v Forsyth Tp., 291 Mich App 692 (2011) (quoting In re MKK, 286 Mich 

App 546, 556 (2009)). 

 Critically, the Legislature made no reference to juvenile delinquency proceedings when it 

enacted MCL 777.56, the statute which created the current version of PRV-6. The variable 

examines whether the offender had a “relationship to the criminal justice system” at the time of 

the sentencing offense. MCL 777.56(1) (emphasis added). Such a score is appropriate only if the 

“[o]ffender is on probation or delayed sentence status or on bond awaiting adjudication or 

sentencing for a misdemeanor.” MCL 777.56(1)(d). As noted, zero points must be assessed if the 

“[o]ffender has no relationship to the criminal justice system.” MCL 777.56(1)(e) (emphasis 

added). See also People v Johnson, 293 Mich App 79 (2011). 

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 The Legislature’s repeated use of the phrase “criminal justice system” makes clear it did not 

intend PRV-6 to encompass juvenile matters. Through various enactments, the Legislature has 

established a clear distinction between criminal cases and delinquency proceedings. The procedures 

governing the latter are codified not in the Penal Code, but instead in the Probate Code at MCL 

712A.1 et seq. See also Const 1963, Art 6, § 15 (providing that the probate court “shall have original 

jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by 

law.”). By statute, “proceedings under this chapter are not criminal proceedings” unless 

otherwise provided. MCL 712A.1(2) (emphasis added). Thus, as this Court has noted, “proceedings 

against juveniles are not even considered criminal proceedings.” In re T.D., __ Mich App __ (May 

26, 2011) (Docket No. 294716). 

This distinction is found elsewhere in the guidelines as well. PRV-1 and PRV-2, for 

example, weigh “convictions” for certain “crimes.” MCL 777.51, 777.52. In contrast, PRV-3 and 

PRV-4 consider only “a juvenile adjudication for conduct that would be . . . [a crime] if committed 

by an adult[.]” MCL 777.53, 777.54. Similarly, PRV-5 refers to “a juvenile adjudication for conduct 

that if committed by an adult would be a misdemeanor.” MCL 777.55(3)(b). As these provisions 

recognize, a juvenile is not adjudicated guilty of a “crime”; rather, a juvenile can only be adjudicated 

guilty of what “would be” a crime if committed by someone older. The guidelines therefore 

acknowledge what the Probate Code already confirms: “proceedings under this chapter are not

criminal proceedings” unless otherwise provided. MCL 712A.1(2) (emphasis added). 

 Certainly, if the Legislature had intended for PRV-6 to apply to a defendant’s relationship 

with the juvenile justice system, it could have said so. After all, PRV-3, PRV-4, and PRV-5 all 

expressly provide for the consideration of delinquency adjudications. In contrast, while the word 

“adjudication” does appear in the text of PRV-6, it is not used in the context of delinquency 

proceedings. Nor is it used to refer to juvenile bond status. Rather, it appears within the phrase “on 

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bond awaiting adjudication or sentencing for a misdemeanor.” MCL 777.56(1)(d). In this context, 

“adjudication” means simply: “The legal process of resolving a dispute; the process of judicially 

deciding a case.” Black’s Law Dictionary (9th ed), p. 42. It follows, therefore, that this clause of 

PRV-6 is only concerned with sentencing offenses that occur before the final resolution of an adult 

misdemeanor charge. After all, as discussed above, PRV-6 refers to defendants charged with a 

“misdemeanor,” not defendants charged with “conduct that if committed by an adult would be a 

misdemeanor.” Compare MCL 777.55(3)(b) with MCL 777.56(3)(b). 

Language referencing juvenile matters could have been added to PRV-6 with little difficulty. 

Given what is expressed in PRV-3, PRV-4, and PRV-5, it must be presumed that the Legislature 

intentionally omitted such language when it drafted PRV-6. This is consistent with the wellestablished legal doctrine expressio unius est exclusio alterius (“the expression of one thing is the 

exclusion of another”). Miller v Allstate Ins. Co., 481 Mich 601, 611 (2008). The maxim is a rule of 

construction that is a product of “logic and common sense.” Feld v Robert & Charles Beauty Salon,

435 Mich 352, 362 (1990) (quoting 2A Sands, Sutherland Statutory Construction (4th ed), § 47.24, at 

203). Our Supreme Court has long held that “no maxim is more uniformly used to properly 

construe statutes.” Hoerstman Gen. Contracting, Inc. v Hahn, 474 Mich 66, 74–75 (2006) (citing Taylor v 

Michigan Public Utilities Comm., 217 Mich 400, 403 (1922)). 

Further evidence of the Legislature’s intent can be found by comparing PRV-6 to its 

predecessor under the judicial guidelines. The instructions to the predecessor variable expressly 

provided that “a ‘relationship to the criminal justice system’ applies to relationships determined 

by juvenile convictions or charges.” Id. People v Stone, 195 Mich App 600, 607-608 (1992) 

(emphasis added) (quoting the version of PRV-6 which appeared in the judicial sentencing 

guidelines). Thus, it must be presumed: (1) that the Legislature was aware of the prior version of 

PRV-6 when it enacted the current version; and (2) that the differences between the two variables 

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were intended. See People v Hegwood, 465 Mich 432, 438-439 (2001) (“At the time it enacted these 

guidelines, the Legislature opted for a system with many features that were easily recognizable by 

courts familiar with the format previously employed in Michigan. . . . Yet it is apparent that the 

Legislature has provided new ground rules.”). 

For all of these reasons, PRV-6 was not intended to be scored in this case. 

B. Inapplicability of Endres Decision

It is worth noting that this Court’s ruling in Endres does not support the trial court’s scoring 

decision. Since the defendant in that case completed his juvenile probationary term before 

committing the sentencing offense, this Court did not analyze whether PRV-6 could have been 

scored if the timing of the juvenile sentence had been different. Endres, 269 Mich App at 422. 

Rather, the Endres Court scored PRV-6 because the sentencing offense arose a few weeks after the 

defendant was charged with possessing alcohol as a minor (“MIP”). Id. The MIP charge was filed 

on May 12, 2001, seven months after the defendant turned seventeen years old. Id. Given his age, 

the defendant in Endres was necessarily charged as an adult, since the family court lacked jurisdiction 

over any crime occurring after his seventeenth birthday. MCL 712A.2(a)(1). 

Other panels of this Court have misread Endres. An unpublished opinion of one panel, for 

example, notes that “in People v Endres, this Court affirmed the trial court’s scoring of PRV-6 based 

on the defendant’s juvenile conviction.” People v Kelly, unpublished opinion per curiam of the Court 

of Appeals, issued April 13, 2010 (Docket No. 289689) (footnote and citation omitted) (included in 

Appendix C). Again, this is not what that case held; Endres actually involved a pending adult charge. 

The unpublished Kelly opinion proceeds to turn the rules of statutory construction on their 

head, stating that “if the Legislature had intended to limit application of PRV-6 to adult prisoners 

only, it was capable of specifying such a limitation.” Id. Again, as discussed above, the opposite is 

true. Other variables make it very clear when juvenile adjudications may be counted and when they 

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may not. See MCL 777.53 through 777.56. If the Legislature had intended PRV-6 to include 

contacts with the juvenile justice system, it could have said so. Indeed, all it had to do was copy 

from the judicial guidelines. 

OV 13

OV 13 should have been scored at zero points, not 25. Multiple convictions arising from a 

single incident do not establish a “continuing pattern of criminal behavior.” OV 13 was scored 25 

points on the theory that the sentencing offense was “part of a pattern of felonious criminal activity 

involving 3 or more crimes against a person.” MCL 777.43(1)(b); Sentencing Information Report 

(SIR), Appendix D.

The three crimes against a person of which Mr. Gibbs was convicted here were his first 

felony convictions. He had no other felony record, adult or juvenile. PSR at 3.11 Because the three 

felony convictions in the case on appeal all arose from a single incident, they do not show a “pattern 

of felonious criminal behavior” and thus cannot support the 25-point OV 13 score. See People v 

Shane Joseph Smith, unpublished opinion per curiam of the Court of Appeals, issued February 25, 

2003 (Docket No. 229137) (Appendix E) at p 6 (concurrent convictions stemming from “one 

incident” not scoreable under OV 13; “it is repeated felonious conduct that should be considered in 

scoring this offense variable”) (distinguishing People v Harmon, 248 Mich App 522, 532 (2001), as case 

in which concurrent convictions arose not from single incident but from “separate acts”). As in 

Smith, the three concurrent convictions here all arose from one incident—a single robbery of three 

different individuals at the same time. 

 Moreover, the Supreme Court’s decision in People v Cannon, 481 Mich 152 (2008), reveals 

Harmon to be bad law. In Harmon, the defendant argued that one of the prior crimes said to 

 

11 Because the presentence report is confidential, it is not intended for inclusion in the Court’s 

public file. 

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substantiate the OV 13 score should not have been counted because it was of the wrong crime class. 

Harmon, 248 Mich App at 532. This Court did not reach the issue because, it held, other convictions 

of the proper class—defendant’s concurrent convictions—provided sufficient support for the score 

on their own. Id. Harman thus appears to suggest that concurrent convictions (at least if not 

stemming from the same incident as the sentencing offense) might routinely be scored under OV 13 

as well as under Prior Record Variable 7, the variable that explicitly counts “subsequent or 

concurrent felony convictions,” MCL 777.57. 

 However, in Cannon, our Supreme Court made clear that interpreting the guidelines-variables 

statutes requires a different approach than the one take in Harmon. Reviewing courts must keep in 

mind the “Legislature’s focus” expressed by the title and first subsection. People v Cannon, 481 Mich 

152, 157 (2008). Those words—the statute’s “central subject”—condition what follows. Id. 

Particular provisions of the statute must be read in the context of that central subject. Thus, OV 10 

(whose central subject, as expressed in the title and first subsection, is “exploitation of a vulnerable 

victim”12) requires proof of vulnerable-victim exploitation even when considering a provision of the 

statute (“predatory conduct was involved”) that makes no mention of vulnerable victims. Id. at 156-

59. 

 OV 13 has a central subject that was likewise ignored, improperly, in Harman. The particular 

statutory subsection at issue both here and in Harman requires proof only of “a pattern of felonious 

criminal activity involving 3 or more crimes against a person”13—language that could arguably refer 

to crimes committed at the same, or nearly the same, time. However, the statute’s title and first 

subsection make clear that the legislative focus is different: identifying, and providing greater 

punishment for, those whose conduct reflects a “continuing pattern of criminal behavior.” MCL 

 

12 MCL 777.40. 

13 MCL 777.43(1)(b) (emphasis added). 

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777.43(1) (emphasis added). As this Court recognized in Smith, supra, the modifier “continuing” 

means that to be scored under OV 13, a “pattern” of criminal acts must be one that reflects “repeated

felonious conduct.” Smith, supra (emphasis added). OV 13 should have been scored 0 points, for 

“no pattern of felonious criminal acts were committed.” MCL 777.43(1)(g). 

Remedy

The erroneous scoring of PRV-5, PRV-6, and OV 13 increased Mr. Gibbs’ total guidelines 

range from the correct cell of C-III, to the resulting range of D-IV. The error inflated the guidelines 

range from 81-135 months to 126-210 months. The trial court then sentenced Mr. Gibbs at the very 

top of this incorrect range, to a minimum prison term of 17.5 years. Because the error in scoring the 

guidelines violated Mr. Gibbs’ state and federal due process rights to be sentenced accurately and 

consistently with the law, he is entitled to be resentenced within the correct range. Francisco, 474 

Mich at 89-92. 

 

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APPENDIX A 

AFFIDAVITS OF GIBBS’ FAMILY MEMBERS 

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APPENDIX B 

AFFIDAVIT OF COUNSEL 

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STATE OF MICHIGAN 

IN THE COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN

 Court of Appeals No. 306124 

 Plaintiff-Appellee, 

Lower Court No. 10-231624FC 

-vsPHILLIP CHARLES GIBBS

 Defendant-Appellant. 

________________________________/ 

AFFIDAVIT OF COUNSEL / OFFER OF PROOF

BRANDY Y. ROBINSON hereby states as follows: 

1. I represent Mr. Gibbs on appeal from the above-referenced conviction. 

2. In researching Mr. Gibbs’ sentence for appeal, I discovered an inaccuracy in the 

Presentence Investigation Report regarding Mr. Gibbs’ relationship to the criminal justice 

system at the time he committed the current offenses. 

3. I recently contacted the Juvenile Records Department of the Family Court Division of the 

Genesee County Probate Court. I spoke by telephone with a clerk who informed me that 

her review of Mr. Gibbs’ juvenile file showed no indication whatsoever that Mr. Gibbs had 

been placed on bond between adjudication and sentencing for entering without permission. 

4. Assuming this information is correct, there was no basis for scoring points against Mr. 

Gibbs under Prior Record Variable 5. 

5. Counsel is undertaking steps to obtain an official certification of Mr. Gibbs’ no-bond status 

as a juvenile. 

6. Once that certification is obtained, counsel will promptly file evidence thereof with the 

Court. 

7. Additionally, if granted a hearing on Mr. Gibbs’ claim that he was denied the right to a 

public trial, the undersigned counsel will proffer the testimony of, inter alia, Mr. Gibbs’ 

mother, Elverta Gibbs, his Sister Seandra Davidson-Coleman, and his soon-to-be brother 

in law Courtney Jones. The substance of their proposed testimony appears in the attached 

Affidavits. Counsel will also seek evidence from court staff connected with Judge 

Fullerton’s chambers to as to her policy on this subject as of the time of trial. Trial counsel 

will also have to be examined. 

8. The foregoing statements are true to the best of my knowledge. 

 /s/Brandy Y. Robinson 

 ______________________________ 

 BRANDY Y. ROBINSON (P66895)

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APPENDIX C 

PEOPLE V KELLY

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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

 UNPUBLISHED 

 April 13, 2010 

v No. 289689 

Wayne Circuit Court 

DeJUAN KELLY, LC No. 08-004999-03 

 Defendant-Appellant. 

Before: WHITBECK, P.J., and METER and FORT HOOD, JJ. 

PER CURIAM. 

 Defendant DeJuan Kelly appeals as of right his jury conviction of unlawful 

imprisonment.1 Following his arrest for failure to appear for sentencing, the trial court sentenced 

Kelly to a term of 86 months to 15 years’ imprisonment. We affirm. 

I. BASIC FACTS AND PROCEDURAL HISTORY 

 Kelly and three codefendants were initially charged with multiple counts of armed 

robbery2

 and unlawful imprisonment. Kelly and two of the three codefendants were also charged 

with felony firearm.3

 Evidence at the June 2008 trial on those charges established that the men 

entered an apartment, bound the occupants, and then robbed them of their personal possessions at 

gunpoint. The three codefendants pleaded guilty to various offenses. At trial, the jury acquitted 

Kelly on the armed robbery and felony firearm charges but failed to reach a verdict on the 

unlawful imprisonment charge. Therefore, the trial court declared a mistrial regarding the 

unlawful imprisonment charge. 

 In August 2008, a new jury trial was held on the unlawful imprisonment charge. The jury 

ultimately convicted Kelly. Kelly now appeals various issues that occurred during trial and 

sentencing. 

 

1

 MCL 750.349b. 

2

 MCL 750.529. 

3

 MCL 750.227b. 

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II. EVIDENTIARY ISSUES 

A. STANDARD OF REVIEW 

 The decision whether to admit evidence is within the trial court’s discretion, and we will 

not disturb that decision absent an abuse of that discretion.4

B. PRELIMINARY EXAMINATION TRANSCRIPT 

 During the August 2008 trial, the trial court considered the prosecution’s request to 

declare one of the victims unavailable and admit his testimony from the preliminary 

examination. Demond Bryant was in federal custody in Kentucky and the federal authorities 

would not permit him to be conveyed to Michigan for at least another 30 days. Defense counsel 

objected, arguing that the examining magistrate had not permitted wide-ranging crossexamination during the preliminary examination. Defense counsel also argued that Bryant was a 

key witness because he was the only one at the preliminary examination who testified that Kelly 

tied him up. The trial court reviewed Bryant’s preliminary examination testimony, ordered some 

changes and redactions for the jury, and then ruled that it would be admitted. 

 The next morning, defense counsel again objected to the admission of Bryant’s 

testimony. Defense counsel first argued that because the prosecution knew where to find Bryant, 

they should retrieve him from federal custody; but counsel then stated, “I will leave it to the 

Court’s discretion.” The trial court affirmed its earlier ruling that the witness was unavailable 

and noted that it had encountered difficulty when attempting to obtain witnesses from federal 

custody. 

 Kelly now argues that the trial court abused its discretion in allowing into evidence the 

transcript of Bryant’s preliminary examination testimony where there was no diligent, good-faith 

effort to procure Bryant’s actual presence at trial. 

 The prosecution may present evidence at trial through a preliminary examination 

transcript when a witness is “unavailable.” A witness is unavailable where the prosecution “has 

been unable to procure the declarant’s attendance . . . by process or other reasonable means, and 

in a criminal case, due diligence is shown.”5

 With respect to due diligence, “[t]he test is one of 

reasonableness and depends on the facts and circumstances of each case, i.e., whether diligent 

good-faith efforts were made to procure the testimony, not whether more stringent efforts would 

have produced it.”6

 Due diligence requires attempts to do everything reasonable, not everything 

possible, to obtain the presence of a witness.7 

 

4 People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). 

5

 MRE 804(a)(5). 

6 People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998). 

7 People v Cummings, 171 Mich App 577, 585; 430 NW2d 790 (1988). 

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 Kelly argues that the prosecution “made little, if any attempt to secure” Bryant’s 

presence. However, as Kelly also acknowledges, Bryant was in custody at an out-of-state federal 

prison at the time of trial. The prosecution explained that she had contacted the federal officials 

but they would “not release him for at least another 30 days because of the extradition laws.” 

And in accepting the preliminary examination transcript, the trial court explained that even an 

order from the trial court would have done little to secure Bryant’s presence because “they [the 

federal officials] can choose to ignore [the court’s] request.” 

 Therefore, we conclude that the trial court did not abuse its discretion in allowing into 

evidence the transcript of Bryant’s preliminary examination testimony. 

C. PRIOR TRIAL TESTIMONY REGARDING ROBBERIES 

 At Kelly’s August 2008 trial, Kelly asserted that the witnesses should not be permitted to 

testify about having their property taken because Kelly had been acquitted of armed robbery in 

the June 2008 trial. Instead, according to Kelly, the witnesses should only testify about the 

unlawful imprisonment. The prosecution maintained that the jury must hear the context of the 

events regardless of the acquittals in the previous trial. The trial court denied Kelly’s request and 

ruled that having the witnesses attempt to omit facts from the sequence of events would make the 

remaining testimony seem improbable. But the trial court stated that the jury would be instructed 

to consider only the charge of unlawful imprisonment. 

 Kelly now argues that the trial court abused its discretion by allowing into evidence the 

witness testimony from the June 2008 trial regarding the armed robberies. More specifically, 

Kelly argues that allowance of the testimony violated MRE 404(b), which prohibits admission of 

evidence regarding prior bad acts if the prosecution offers it solely to show the criminal 

propensity of an individual to establish that he acted in conformity therewith.8

 “[T]here are substantial limits on the admissibility of evidence concerning other bad 

acts.”9

 However, it is essential that a jury receive an “intelligible presentation” of the complete 

story to fully understand the context in which the underlying events took place.10

 “It is the nature of things that an event often does not occur singly and 

independently, isolated from all others, but, instead, is connected with some 

antecedent event from which the fact or event in question follows as an effect 

from a cause. When such is the case and the antecedent event incidentally 

involves the commission of another crime, the principle that the jury is entitled to 

hear the ‘complete story’ ordinarily supports the admission of such evidence.”[11] 

 

8 People v Vandervliet, 444 Mich 52, 65; 508 NW2d 114 (1993). 

9 People v Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996); see MRE 404(b). 

10 Sholl, 453 Mich at 741. 

11 Id. at 742, quoting People v Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978). 

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In other words, “‘Evidence of other criminal acts is admissible when so blended or connected 

with the crime of which defendant is accused that proof of one incidentally involves the other or 

explains the circumstances of the crime.’”12 Therefore, a jury is entitled to hear the full res 

gestae regardless whether those facts may also establish criminal acts other than the charged 

offense.13

 Thus, the question here is whether the armed robberies were necessary to be revealed 

during the presentation of the res gestae of the unlawful imprisonment.14 The record shows that 

the armed robberies were part of the continuous transaction and the facts surrounding the 

unlawful imprisonment could not be presented without discussing the armed robberies.15 The 

trial court did not abuse its discretion in reasoning that the witnesses’ accounts would appear 

improbable without being placed in the proper context. Thus, the evidence was admissible. 

 Moreover, this Court has held that the fact that the defendant was acquitted on the prior 

charge is not relevant to its admission.16 “For it is its occurrence which would bear on the 

motive and intent of the defendant, not whether or not the defendant was acquitted on the charge. 

The res gestae constitutes substantive evidence and may properly be considered by the jury in 

determining guilt or innocence.”17

 Therefore, we conclude that the trial court did not abuse its discretion in allowing into 

evidence the witness testimony from the June 2008 trial regarding the armed robberies. 

D. PRIOR ACQUITTAL VERDICT 

 At Kelly’s August 2008 trial, asserting lack of relevance and unfair prejudice, the 

prosecution objected to the defense request to advise the new jury of the June 2008 jury’s 

acquittal verdicts. The trial court agreed that the new jury should not be advised of the prior 

verdicts. Kelly now argues that the trial court abused its discretion by denying him the 

opportunity to admit into evidence the acquittal verdicts from the first trial. 

 

12 Id., quoting Arizona v Villavicencio, 388 P2d 245, 246 (Ariz, 1964). 

13 People v Kowatch, 258 Mich 630, 633; 242 NW 791 (1932); People v McClure, 29 Mich App 

361, 366; 185 NW2d 426 (1971). 

14 See McClure, 29 Mich App at 366. 

15 See id.

16 Id.; see also People v Oliphant, 399 Mich 472, 495-500; 250 NW2d 443 (1976) (stating that 

the fact of a defendant’s acquittal on charges arising out of prior incidents does not act to bar its 

admission.) 

17 McClure, 29 Mich App at 366 (internal citation omitted). 

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 In support of his argument, Kelly cites People v Nabers,

18 in which this Court 

“express[ed] [its] support” for Judge ALLEN’s partial concurrence and dissent in People v 

Bolden.

19 Specifically, in Nabers, this Court, stated: 

 Defendant was tried for the Swank Men’s Shop robbery; this trial ended in 

a hung jury. Nonetheless, this fact does not automatically bar the admission of 

such evidence.3

 [People v] Oliphant, [399 Mich 472, 499-500; 250 NW2d 443 

(1976)], People v Bolden, 92 Mich App 421, 424; 285 NW2d 210 (1979).20 

However, we take this opportunity to express our support for Judge Allen’s partial 

concurrence and partial dissent in People v Bolden, 98 Mich App 452, 464; 296 

NW2d 613 (1980), wherein he writes: 

“To the extent that a prior acquittal of the alleged similar act of the 

defendant reflects on the accuracy of the charge that defendant

committed that act, then the defendant should be entitled to show 

that another jury determined that he did not commit the similar 

act.” 

We think the same rationale holds true where defendant was not convicted due to 

a hung jury.[21]

 However, the Nabers Court’s “support” of Judge ALLEN’s statement was merely dicta.22 

Moreover, we find persuasive the conclusion from numerous federal circuits,23 including the 

Sixth Circuit, that “evidence of prior acquittals is generally inadmissible.”24 Judgments of 

acquittal are “inadmissible in large part because they may not present a determination of 

 

18 People v Nabers, 103 Mich App 354, 364; 303 NW2d 205, rev’d on other grounds, 411 Mich 

1046 (1981). 

19 People v Bolden, 98 Mich App 452, 464; 296 NW2d 613 (1980). 

20 Citing Oliphant, 399 Mich at 499-500. 

21 Nabers, 103 Mich App at 364. 

22 See People v Wellborn, unpublished opinion per curiam of the Court of Appeal, issued Dec. 

16, 2003 (Docket No. 242229), at 4 n 1. We acknowledge that, pursuant to Michigan Court 

Rule, an unpublished opinion has no precedential value. MCR 7.215(C)(1); Charles Reinhart Co 

v Winiemko, 444 Mich 579, 588; 513 NW2d 773 (1994). However, we exercise our prerogative 

to view this opinion as persuasive. Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 

522 (2003); People v McCullum, 172 Mich App 30, 33; 431 NW2d 451 (1988). 

23 Although “federal court decisions are not precedentially binding on questions of Michigan 

law[,]” a court may choose to agree with the analysis of a federal court decision. American Axle 

& Mfg, Inc v City of Hamtramck, 461 Mich 352, 364; 604 NW2d 330 (2000). 

24 Wellborn, unpub op at 4 n 1, quoting United States v Gricco, 277 F3d 339, 352-353 (CA 3, 

2002). 

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innocence, but rather only a decision that the prosecution has not met its burden of proof beyond 

a reasonable doubt.”25

 Therefore, we conclude that the trial court did not abuse its discretion by denying Kelly 

the opportunity to admit into evidence the acquittal verdicts from the first trial. 

III. JURY INSTRUCTIONS 

A. STANDARD OF REVIEW 

 Kelly points out that, in ruling that the August 2008 jury was not to be told about the 

acquittals in Kelly’s first trial, the trial court stated that it would instruct the jury to disregard the 

fact of the prior trial. However, Kelly argues that the trial court committed reversible error 

because, according to Kelly, the trial court ultimately failed to give that instruction to the jury. 

 This Court reviews jury instructions in their entirety to determine if error requiring 

reversal occurred.26

B. ANALYSIS 

 After the trial court agreed that the August 2008 jury would not be advised of the prior 

acquittal verdicts, it stated that it would instruct the jurors that they should disregard the fact that 

there was an earlier trial and base their verdict solely on the evidence presented in this trial. In 

Kelly’s brief on appeal, his counsel asserts that “nowhere in the transcript supplied to appellate 

counsel does the court give that instruction to the jury.” However, on page 116 of the August 19, 

2008 trial transcript, the trial court did clearly instruct the impaneled jurors to disregard the fact 

that there was an earlier trial. Specifically, the trial court instructed the jury, 

 This case has been tried before and during this trial you may hear some 

references to the first trial. Sometimes a case must be retried before a new jury, 

and you should not pay any attention to the fact that this is the second trial. Your 

verdict must be based only on the evidence in this trial. You must decide the facts 

only from what you hear and see. 

Moreover, when asked, counsel for both parties stated that they had no objections to the trial 

court’s instructions. 

 Therefore, we conclude that Kelly’s claim of instructional error is without merit. 

 

25 Gricco, 277 F3d at 353. 

26 People v Brown, 239 Mich App 735, 746; 610 NW2d 234 (2000). 

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IV. SENTENCING 

A. STANDARD OF REVIEW 

 Kelly argues that the trial court abused it discretion in sentencing him when it 

erroneously scored prior record variable (PRV) 6 and offense variable (OV) 4. 

 The interpretation and application of the statutory sentencing guidelines are legal 

questions subject to our de novo review.27 However, this Court reviews the scoring to determine 

whether the sentencing court properly exercised its discretion and whether the evidence 

adequately supported a particular score.28

B. ANALYSIS 

1. PRV 6 

 Before imposition of the sentence, the prosecution objected to the scoring of PRV 6. The 

prosecution objected to the scoring of 10 points for that variable, arguing that the proper scoring 

was 20 points. According to the prosecution, while under the jurisdiction of the juvenile court 

following a 2007 adjudication for carrying a concealed weapon, Kelly escaped from his courtordered community placement. Therefore, at the time Kelly committed the instant offense, he 

was listed as an escapee in the LEIN system. The trial court granted the prosecution’s request 

and scored PRV 6 at 20 points. Kelly now argues that the trial court erred in scoring PRV 6 at 

20 points because he was a juvenile escapee, not an adult prisoner. 

 Under MCL 777.56(1)(a), 20 points are appropriate where “[t]he offender is a prisoner of 

the department of corrections or serving a sentence in jail.” According to MCL 777.56(3)(b), 

“‘Prisoner of the department of corrections or serving a sentence in jail’ includes an individual 

who is an escapee.” Nothing in PRV 6 indicates that it was not meant to apply to an escapee 

from juvenile confinement. Indeed, in MCL 777.50(1), in which the Legislature specifically 

limited the use of juvenile adjudications when scoring PRVs 1 to 5, supports that a trial court is 

permitted to take juvenile adjudications into account when scoring PRV 6. In other words, if the 

Legislature had intended to limit application of PRV 6 to adult prisoners only, it was capable of 

specifying such a limitation. Moreover, in People v Endres,

29 this Court affirmed the trial 

court’s scoring of PRV 6 based on the defendant’s juvenile conviction. 

 Therefore, we conclude that the trial court did not abuse its discretion in scoring PRV 6 at 

20 points. 

 

27 People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008). 

28 People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009). 

29 People v Endres, 269 Mich App 414, 422-423; 711 NW2d 398 (2006). 

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2. OV 4 

 The prosecution also objected to the scoring of OV 4. The prosecution objected to the 

scoring of 0 points for that variable, arguing that the proper scoring was 10 points. The trial 

court agreed with the prosecution and scored OV 4 at 10 points. Kelly now argues that the trial 

court erred in scoring OV 4 at 10 points because there was no showing of any psychological or 

other injury, specifically noting that none of the victims submitted a victim impact statement. 

 Under MCL 777.34(1)(a), 10 points are appropriate if “[s]erious psychological injury 

requiring professional treatment occurred to a victim.” Here, in ruling on the prosecution’s 

request, the trial court explained that the victims had testified that 

they were scared to death. They thought he [sic] were gonna die. And one 

woman was struck in the face. And I think that that’s—and being tied up. And I 

do remember the testimony about the pillow. 

On this latter point about the pillow, the trial court was apparently referring to the testimony that, 

while the victims were tied up, Kelly said that he was not leaving any witnesses and 

demonstrated to his codefendants how to use a pillow as a “silencer.” The trial court opined, “I 

think that would cause some serious psychological injury that may require professional treatment 

. . . .” 

 Because the evidence adequately supported the score,30 we conclude that the trial court 

did not abuse its discretion in scoring OV 4 at 10 points. 

 We affirm. 

/s/ William C. Whitbeck 

/s/ Patrick M. Meter 

/s/ Karen M. Fort Hood 

 

30 People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009). 

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APPENDIX D 

SENTENCE INFORMATION REPORT (SIR) 

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SE~ ICING INFORMATION REPORT

Offender: Gibbs, Phiflin Charles SSN: 000-00-0000 Workload: 2519 Docket Number: 1 i28140-FC

Judge: The Honorable Judith A. Fullerton Bar No.: P20455 Circuit No.: 0 County: 25

Conviction information

Conviction PACC: 750.529 Offense Title: Robbery Armed (Conspiracy)

Crime Group: Public Safety (Person) Offense Date: 10/26/2010

Crime Class: Class A Conviction Count: 4 of 4 Scored as of: 10/26/2010

Statutory Max: Life Habitual: No Attempted: No

Prior Record Variable Score

PRVI: U PRV2: U PRV3: 0 PRV4: 0 PRV5: 2 PRV6: 5 PRV7: 20

Total PRV: 27

PRV Level: 0

Offense Variable

OVl: 15 0V2: 5 OV3: IC 0V4: 10 OVE: 0 OW: C 0V7: U

OV8: U OW: 1C OVIC: C OVIl: C 0V12: U 0V13: 25 0V14: U

OVI6: 0 0V17: 0 0V18: U OVI9: C OV2O: C

Total OV: 75

- OV Level: IV

Sentencing Guideline Range

Guideline Minimum Range : 126 to 210

Minimum Sentence

Months Life Sentence Date: I:9~~7~ 77 — Guideline Departure: Consecutive Sentence:

Probation:

.iait: Concurrent Sentence: Yes

Prison: / ~, -~ yl~ —~

Sentencing Juoge ___________________________________________ Date: ___________

Prepared By: JACKSON WEND! IV,

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APPENDIX E 

PEOPLE V SMITH 

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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED 

February 25, 2003 

 Plaintiff-Appellee, 

v No. 229137 

Monroe Circuit Court 

SHANE JOSEPH SMITH, LC No. 99-030211-FH

 Defendant-Appellant. 

Before: Markey, P.J., and Smolenski and Meter, JJ. 

PER CURIAM. 

Following a jury trial, defendant was convicted of operating a vehicle while his license 

was revoked, causing death, MCL 257.904(4) (count I), operating a motor vehicle while under 

the influence of intoxicating liquor (OUIL), causing death, MCL 257.625(4) (count II), 

manslaughter, MCL 750.321 (count III), and failure to stop at the scene of a serious personal 

injury accident, MCL 257.617 (count IV). Defendant was sentenced to concurrent terms of 

seven to fifteen years’ imprisonment each for counts I-III, and thirty-six to sixty months’ 

imprisonment for count IV. Defendant appeals as of right. We affirm defendant’s convictions, 

but remand for resentencing. 

I. Facts 

On October 4, 1999, at approximately 6:50 p.m., defendant was driving his pickup truck 

on US-23 in Dundee Township. Three witnesses testified that defendant was driving at a high 

rate of speed, at least 85 miles per hour, when defendant lost control of his vehicle and hit a 

pedestrian, Ronald Keeton, Jr., who had been walking on the side of the roadway. Mr. Keeton 

died as a result of injuries sustained in the accident. Defendant did not stop at the scene of the 

accident. 

Officer Steven Pascoe was on duty four miles south of the accident when he heard central 

dispatch alert officers to be on the lookout for a red pickup truck that had left the scene of the 

accident. After receiving word that a vehicle matching this description had exited the freeway at 

US-223 and headed west, Pascoe eventually located defendant’s truck at a gas station which was 

still under construction. Defendant’s vehicle was parked next to a five-foot pile of dirt and 

behind a port-a-potty. Pascoe inspected defendant’s truck; no one was inside, but there was a 

beer can on the driver’s side floor. 

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Shortly thereafter, Pascoe saw defendant running to a Sunoco gas station, about 200 

yards away. Officer Marvin Carlson responded to the call for help and found defendant using 

the phone at the Sunoco gas station. Carlson handcuffed defendant and, at that point, defendant 

said something about being hijacked. Carlson arrested defendant and read him his rights. 

Defendant volunteered that he had been traveling south on US-23 when he picked up a 

hitchhiker. Defendant claimed that the hitchhiker pulled a gun on him, forced him into the 

passenger’s seat, and began to drive his truck. Defendant said the hitchhiker was driving at a 

high rate of speed, driving stupid, and that he swerved and struck another car. Defendant 

claimed that he was able to escape and run away, and the hitchhiker continued on in his truck. 

Carlson believed that defendant was visibly impaired due to alcohol consumption. He 

smelled alcohol on defendant’s breath, defendant’s speech was rapid and somewhat slurred, and 

defendant’s eyes were bloodshot and glossy. Defendant admitted that he had two beers. 

Defendant was then taken to the hospital for a blood test, the results of which showed that 

defendant’s blood alcohol level (“BAC”) was .063 two and one-half hours after the accident. 

Forensic toxicologist Julia Pearson testified that defendant’s BAC was between .09 and .11 

during the accident, assuming he did not have a beer when he was driving; or between .07 and 

.09 had he consumed a beer during his drive. Carlson later determined that defendant’s driving 

privileges had been revoked by the State of Michigan, and that notice of this revocation had been 

issued to defendant. 

Van Buren Township Police Officer Lawrence Temple was permitted to testify about 

defendant’s involvement in a hit and run accident which occurred on September 5, 1999. 

Temple stated that he was flagged down by a driver who told him that he had just been struck by 

a white F-150 pickup truck, and that the driver of that vehicle did not stop. Temple located the 

white F-150 pickup truck at a nearby gas station, where defendant and a woman were standing 

outside the driver’s side door looking at the damaged mirror. Defendant initially said that the 

woman had been driving the truck. At first the woman agreed, but then she started crying, said 

she wasn’t driving, and told defendant, “I’m not taking the rap for you this time.” Defendant 

then admitted he had been driving. Temple testified that he noted a strong odor of intoxicants on 

defendant’s breath. Temple also testified that he gave defendant a “driving permit,” which 

informed defendant that his driving privileges were denied, revoked and expired as of that day. 

Defendant testified that he had risen for work at 3:00 a.m., worked until 3:30 p.m., and 

then made several stops, finally leaving a friend’s house sometime after 6:00 p.m. Defendant 

stated that from 4:00 p.m. to 6:00 p.m. he drank about four beers and ate some fried vegetables. 

On defendant’s behalf, several witnesses testified that defendant had consumed fried vegetables 

and a total of four beers. None of the witnesses felt that defendant was intoxicated, but rather 

that he was tired. Defendant’s expert witness testified that given defendant’s food consumption, 

his BAC would have been at or below .06 at the time of the accident. 

Defendant further testified that he had his cruise control set at seventy-eight miles per 

hour as he traveled southbound on US-23. He stated that he came up behind a car, which put on 

its turn signal to get over. He then looked down at some paperwork on his seat, and when he 

looked back up he saw that the car had not moved over. Defendant applied his brakes, but did 

not think he was going to be able to stop quickly enough; so he jerked the wheel to the right to 

go around the car. Defendant testified that he jerked too hard, and when he brought the wheel 

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back the other way the back end started to slide and spin. Defendant stated he heard a smash, 

and subsequently managed to straighten out his vehicle and pull off at an exit. 

Defendant denied ever seeing a pedestrian and had no idea that he had hit anyone. 

Instead, he thought he hit a mile marker or a pole. Defendant stated that his ability to drive was 

not affected by the alcohol he drank and denied driving at an excessive speed. He also denied 

knowing that his driving privileges had been suspended by the State of Michigan. He did admit 

that he lied to the police when they found him after the accident, explaining that he “lost 

control,” was not in his right frame of mind, and that he had no idea of what he was saying. 

Defendant’s accident reconstructionist testified that the markings on the road indicated 

defendant had made a hard right steer, and then a corrective left steer. The markings also 

indicated that defendant was traveling between 73 and 76 miles per hour at the time. 

Defendant’s expert also testified that defendant’s vision would not have been focused on the 

shoulder area, but rather on the roadway and on his own vehicle, and that defendant would have 

had less than three seconds to observe anyone on the shoulder. 

Defendant was convicted and sentenced in the manner described above, and now appeals 

asserting numerous claims of error. 

II. Admissibility of Evidence 

Defendant alleges that the trial court erroneously admitted several pieces of evidence. 

The decision whether evidence is admissible is within the trial court’s discretion and should only 

be reversed where there is a clear abuse of discretion. People v Starr, 457 Mich 490, 494; 577 

NW2d 673 (1998). An abuse of discretion exists only when an unprejudiced person, considering 

the facts on which the trial court acted, would say there was no justification or excuse for the 

ruling made. People v Rice (On remand), 235 Mich App 429, 439; 597 NW2d 843 (1999). 

A. Lay Opinions 

Defendant argues that the trial court erred in allowing the testimony of three lay 

witnesses regarding the speed of his vehicle. We disagree. 

Lay witness testimony in the form of an opinion is permitted where it is rationally based 

on the witness’ perception and is helpful to a clear understanding of the witness’ testimony or the 

determination of a fact in issue. MRE 701; Richardson v Ryder Truck Rental, Inc, 213 Mich 

App 447, 455; 540 NW2d 696 (1995). Opinion testimony of lay witnesses with regard to speed 

has repeatedly been held to be admissible, even where the qualifications of the witnesses to judge 

speed are based on little more than their own assertion of their ability to do so, or the testimony 

borders on the incredible. People v Zimmerman, 385 Mich 417, 439; 189 NW2d 259 (1971) 

(Adams, J., separate opinion).1 

1

 See also Hammock v Sims, 313 Mich 248, 21 NW2d 118 (1946); Zylstra v Graham, 244 Mich 

319, 326; 221 NW 318 (1928); People v Schwartz, 215 Mich 197, 183 NW 723 (1921); Mitchell 

v Steward Oldford & Sons, Inc, 163 Mich App 622, 629; 415 NW2d 224 (1987); Kuhnee v 

(continued...) 

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In this case, all of the witnesses gave some basis for their speed estimates rooted in their 

personal experiences, and their testimony regarding the speed of defendant’s vehicle was 

certainly material to the case. Accordingly, we find that the trial court did not abuse its 

discretion in allowing their opinion testimony. 

B. 404(b) Evidence 

Although defendant objected below, he failed to provide this Court with the transcript of 

the hearing at which the trial court considered and ruled on this issue. Therefore, because we 

were not provided with a record to review, defendant has waived review of this issue. Thomas v 

McGinnis, 239 Mich App 636, 649; 609 NW2d 222 (2000); People v Anderson, 209 Mich App 

527, 535; 531 NW2d 780 (1995). 

Defendant also raises a hearsay issue as it relates to the 404(b) evidence. Defendant did 

object below, but failed to frame this issue in his statement of questions presented on appeal; 

therefore, this issue is unpreserved. People v Brown, 239 Mich App 735, 748; 610 W2d 234 

(2000). We review unpreserved, non-constitutional issues for plain error only. People v 

Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). 

At trial, the prosecutor asked Officer Temple what information he obtained from the 

driver whose vehicle had been hit in the September 1999 hit-and-run incident. Over defendant’s 

hearsay objection, Temple testified that the driver told him that he had just been struck by a 

white pickup, which was driven by a white male with a white female passenger headed 

westbound. Temple further testified that the driver said that his friend was following the white 

pickup truck and that the driver of the white pickup truck did not stop. 

Hearsay is an out of court statement offered for the truth of the matter asserted, and is 

generally inadmissible. MRE 801(c); MRE 802. The prosecutor argued that the information was 

not being offered for the truth of the matter, but rather to show why the officer located 

defendant’s vehicle, and the trial court agreed. However, while the driver’s statements regarding 

the occupants and the color of the pickup truck could be construed as foundational, we believe 

that the driver’s statement indicating that the pickup truck did not stop is clearly hearsay. 

The reason the prosecutor presented Temple’s testimony was to show that defendant did 

not leave the scene of this accident by mistake. Therefore, the evidence was offered for the truth 

of the matter asserted, i.e., to show that defendant did not stop at the scene of the September 

1999 hit-and-run accident. Therefore, we find that the court abused its discretion in allowing this 

testimony. However, we find the error did not affect defendant’s substantial rights, given the 

other evidence presented at trial. Carines, supra at 763. 

 (...continued) 

Miller, 37 Mich App 649, 653-655; 195 NW2d 299 (1972); People v Ray, 2 Mich App 623, 635; 

141 NW2d 320 (1966). 

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III. Pre-trial Publicity 

Defendant argues that he was denied the right to a fair and impartial jury, given the 

amount of pre-trial publicity in this case and the fact that nearly all the jurors admitted they had 

heard about the case from the media before trial. Because defendant failed to object at trial, we 

review this issue for plain error only. Carines, supra at 763. 

The right to a jury trial guarantees to the criminally accused a fair trial by a panel of 

impartial, indifferent jurors. People v Jendrzejewski, 455 Mich 495, 501; 566 NW2d 530 (1997). 

Juror exposure to newspaper accounts of a defendant’s crime does not in itself establish a 

presumption that the defendant has been deprived of a fair trial by virtue of pretrial publicity. Id. 

at 502. Whether or not prejudice warranting a new trial results from the reading of news articles 

or seeing or hearing broadcasts must turn on the special facts of each case, and the question is 

left largely to the determination and discretion of the trial court. People v Grove, 455 Mich 439, 

472; 566 NW2d 547 (1997). 

In this case, during the jury selection process, the court explored the issue of bias against 

defendant. None of the jurors indicated that they were biased against defendant or had already 

formed an opinion about defendant’s guilt. In fact, only two potential jurors recalled hearing 

about the case through the media, one of whom defendant exercised a peremptory challenge to 

remove. Ultimately, defense counsel said that he was satisfied with the jury as seated and may 

not now harbor any alleged error as an appellate parachute. People v Carter, 462 Mich 206, 214-

215; 612 NW2d 144 (2001). Thus, we find no error that affected defendant’s substantial rights. 

IV. Constitutionality of MCL 257.904(4) 

Defendant asserts that the statute which imposes criminal liability for operating a vehicle 

under a revoked license, causing death, MCL 257.904(4), is unconstitutional because it imposes 

strict liability. The constitutionality of a statute is a question of law that this Court reviews de 

novo. People v Jensen (On Remand), 231 Mich App 439, 444; 586 NW2d 748 (1998). A statute 

is accorded a strong presumption of validity and this Court has a duty to construe it as valid 

absent a clear showing of unconstitutionality. Id. 

MCL 257.904(4) provides, 

(4) A person who operates a motor vehicle in violation of subsection (1) 

and who, by operation of that motor vehicle, causes the death of another person is 

guilty of a felony punishable by imprisonment for not more than 15 years or a fine 

of not less then $2,500.00 or more than $10,000.00, or both. This subsection does 

not apply to a person whose operator’s or chauffeur’s license was suspended 

because that person failed to answer a citation or comply with an order or 

judgment pursuant to section 321a. 

Subsection (1), referred to above, provides, 

(1) A person whose operator’s or chauffeur’s license or registration 

certificate has been suspended or revoked and who has been notified as provided 

in section 212 of that suspension or revocation, whose application for license has 

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been denied, or who has never applied for a license, shall not operate a motor 

vehicle upon a highway or other place open to the general public or generally 

accessible to motor vehicles, including an area designated for the parking of 

motor vehicles, within this state. [MCL 257.904(1).] 

A strict liability crime is one for which the prosecutor need to prove that the defendant 

performed the wrongful act, regardless of whether he intended to perform it. People v Lardie, 

452 Mich 231, 241; 551 NW2d 656 (1996). Here, it is clear from the wording of subsection (1) 

that the Legislature intended to hold a person liable under the above provision only if the person 

had knowledge that they were driving without a valid license. Where a statute requires a 

criminal mind for some but not all of its elements, it is not one of strict liability. People v Quinn, 

440 Mich 178, 187; 487 NW2d 194 (1992). Therefore, MCL 257.904(4) is not a strict liability 

statute just because there is no intent requirement for the “causing death” element. 

Defendant also contends that subsection (4) of the statute is unconstitutional because 

driving while one’s license is suspended has no bearing on the person’s ability to operate a motor 

vehicle; there is no casual relation between a person’s decision to drive and the death of an 

individual, and thus, the provision violates his due process rights. We disagree. 

MCL 257.904(4) is a general intent crime. The prosecutor needed to prove that 

defendant voluntarily drove a motor vehicle despite knowing that he was not entitled to do so. 

See Lardie, supra at 241. The statute is designed to discourage persons, who have been 

determine to be unfit drivers, from driving without being entitled to the privilege. 1998 PA 341. 

We find that MCL 257.904(4) is rationally related to a legitimate state purpose, and, therefore, is 

constitutional. Mahaffey v Attorney General, 222 Mich App 325, 344; 564 NW2d 104 (1997); 

see also Quinn, supra at 187. “A statute is not unconstitutional merely because it is undesirable, 

unfair, or unjust.” Phillips v Mirac, Inc, 251 Mich App 586, 589; 651 NW2d 437 (2002). 

V. Sufficiency of the Evidence 

We review de novo challenges to the sufficiency of the evidence at trial. People v 

Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). In determining whether sufficient 

evidence has been presented to sustain a conviction, an appellate court is required to view the 

evidence in a light most favorable to the prosecution and determine whether a rational trier of 

fact could have found that the essential elements of the crime were proven beyond a reasonable 

doubt. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). 

Defendant asserts that there was insufficient evidence to support his convictions for 

operating a motor vehicle while impaired, causing death, MCL 257.625(4), manslaughter with a 

motor vehicle, MCL 750.321, and operating a motor vehicle with a revoked license causing 

death, MCL 257.904(4). Again, we disagree. 

MCL 257.625(4) provides that “[a] person, whether licensed or not, who operates a motor 

vehicle in violation of subsection (1) or (3) and by the operation of that motor vehicle causes the 

death of another person” is guilty of a crime. MCL 257.625(1) and (3) provide, 

(1) A person, whether licensed or not, shall not operate a vehicle upon a 

highway or other place open to the general public or generally accessible to motor 

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vehicles, including an area designated for the parking of vehicles, within this state 

if either of the following applies: 

(a) The person is under the influence of intoxicating liquor, a controlled 

substance or a combination of intoxicating liquor and a controlled substance. 

(b) The person has an alcohol content of 0.10 grams or more per 100 

milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. 

* * * 

(3) A person, whether licensed or not, shall not operate a vehicle upon a 

highway or other place open to the general public or generally accessible to motor 

vehicles, including an area designated for the parking of vehicles, within this state 

when, due to the consumption of intoxicating liquor, a controlled substance, or a 

combination of intoxication liquor and a controlled substance, the person's ability 

to operate the vehicle is visibly impaired .... 

Defendant’s involuntary manslaughter conviction required that the prosecution prove that 

defendant operated his vehicle in a grossly negligent manner, Lardie, supra at 247-248, and 

caused the death of another, People v Tims, 449 Mich 83, 94; 534 NW2d 675 (1995). 

The prosecution’s forensic toxicologist testified that defendant’s blood alcohol level was 

between .09 and .11 during the accident, assuming he did not have a beer when he was driving. 

Moreover, the arresting officer testified that he believed that defendant was visibly impaired due 

to alcohol consumption. Also, there was testimony that defendant was driving at a high rate of 

speed in an erratic fashion. This evidence, viewed most favorably to the prosecution, was 

sufficient to enable the jury to find that defendant was guilty of OUIL causing death and 

manslaughter with a motor vehicle. 

Defendant contends that his conviction under MCL 257.904(4) should be reversed 

because there was insufficient evidence to show a causal connection between his driving with a 

revoked license and the victim’s death. As support for his contention, defendant cites Lardie, 

supra. 

In Lardie, the Court held that MCL 257.625(4), operation of a motor vehicle while 

intoxicated causing death, required proof of causation, i.e., the prosecutor must establish that the 

particular defendant's decision to drive while intoxicated produced a change in that driver's 

operation of the vehicle that caused the death. Id. at 234; 257-258. In reaching its conclusion, 

the Court considered the Legislature’s intent, which was to reduce fatalities by deterring drunken 

driving. Id. at 257. Therefore, the statute must have been designed to punish drivers only when 

their drunken driving caused another’s death. Id. at 257-258. 

In this case, the statute was enacted to address the problem of individuals who engage in 

drunk driving and have their license suspended or revoked, yet continue to drive on these invalid 

licenses. 1998 PA 341. The statute was obviously designed to punish drivers who cause a fatal 

accident because they disregarded their revoked or suspended status. The prosecution presented 

evidence that the state issued notice to defendant that his license was revoked, and additionally, 

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18. 

2 

that defendant had been drinking. Therefore, we find that, viewing the evidence in a light most 

favorable to the prosecution, the evidence was sufficient to support the conviction. 

VI. Sentencing Issues 

Defendant argues that the trial court erred in scoring offense variables (“OV”) 9, 13, and 

A sentencing court has discretion in determining the number of points to be scored, 

provided that evidence of record adequately supports a particular score. People v Hornsby, 251 

Mich App 462, 468; 650 NW2d 700 (2002). Scoring decisions for which there is any evidence 

in support will be upheld. Id. 

A. OV 9 

Defendant contends that OV 9 was improperly scored at ten points. Ten points is 

properly scored if there are between two and nine victims. Each person who is placed in danger 

of injury or loss of life is considered a victim. MCL 777.39. The evidence indicated that there 

were four victims, Beth Ann Lay and her two children who were in the car that defendant passed 

and the decedent, Mr. Keeton. Ms. Lay testified that defendant pulled up behind her out of 

nowhere, driving at a high rate of speed, swerved to her right, hit Mr. Keeton, then cut back in 

front of her. The court properly assessed ten points. 

B. OV 13 

Defendant also disputes the twenty-five points which were scored for OV 13. Twentyfive points are properly scored for OV 13 if “[t]he offense was part of a pattern of felonious 

criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(b).3

 MCL 

777.43(2)(a) states that “[f]or determining the appropriate points under this variable, all crimes 

within a 5-year period, including the sentencing offense, shall be counted regardless of whether 

the offense resulted in a conviction.” Zero points should be scored if there is no pattern of 

felonious criminal activity. MCL 777.43(1)(f). 

At sentencing, the prosecutor argued that OV 13 was properly scored at twenty-five 

points because there were four felony convictions, but conceded that there was no pattern of 

felonious criminal activity over the past five years outside the instant offenses. The court 

concluded that, while there was no pattern in the sense that defendant had prior felony 

convictions, the twenty-five point score was supported based on defendant’s multiple 

convictions. 

The proper application of the statutory sentencing guidelines is a legal question reviewed 

by this Court de novo. People v Libbett, 251 Mich App 353, 365; 650 NW2d 407 (2002). In 

2 The offenses here were committed in October 1999; therefore, this matter is controlled by the 

legislative sentencing guidelines. MCL 769.34(2); See People v Reynolds, 240 Mich App 250,

253, 611 NW2d 316 (2000). 

3

 MCL 777.43 was amended by 1999 PA 279, effective October 1, 2000. 

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construing OV 13, we must assign the words their plain and ordinary meaning. Id. The use of 

the term “pattern” and the fact that the Legislature permitted consideration of all crimes within a 

five-year period evinces an intention that it is repeated felonious conduct that should be 

considered in scoring this offense variable. 

In People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001), the Court held that 

twenty-five points were properly scored because of “defendant’s four concurrent convictions” in 

that case. The defendant was convicted of four counts of making child sexually abusive 

material, which were based on defendant’s activities in photographing two fifteen-year-old girls. 

Four photos, two of each girl, taken on a single date, supported defendant’s four convictions. Id. 

at 525. We believe that this case is distinguishable from Harmon because defendant’s 

convictions stemmed from one incident, not four individual acts. Therefore, we conclude that 

the trial court improperly scored OV 13 at twenty-five points; rather, no points should have been 

scored. 

C. OV 18 

Defendant also contends that the five point score for OV 18 is erroneous. Five points are 

to be scored for OV 18 if the offender operated a vehicle when his bodily alcohol content was 

0.07 or more but less than 0.10 grams per 100 milliliters of blood, or while the offender was 

visibly impaired by the use of intoxicating liquor. MCL 777.48. The evidence indicated that 

defendant’s blood alcohol level was between .09 and .10 during the accident, assuming he did 

not have a beer when he was driving. His blood alcohol level would have been between .07 and 

.09 had he consumed a beer during his drive. Moreover, the arresting officer testified that 

defendant was visibly impaired due to alcohol consumption. Thus, the score of five points was 

warranted. 

D. Resentencing 

Because the reduction in score for OV 13 places defendant’s sentences for counts I-III 

above the sentencing guidelines4

 and there is no indication on the record that the trial court 

would have found a substantial and compelling reason to depart, we must remand this case for 

resentencing. Cf People v Mutchie, 251 Mich App 273, 275; 650 NW2d 733 (2002). 

Accordingly, we need not decide whether these sentences are proportional. 

However, we affirm defendant’s sentence for failure to stop at the scene of a serious 

personal injury accident (count IV). Even with the OV 13 scoring error, his sentence is within 

the range recommended by the statutory sentencing guidelines. A sentence within the guideline 

range is presumed proportional and defendant has not presented any circumstances for us to find 

otherwise. People v Hogan, 225 Mich App 431, 437; 571 NW2d 737 (1997). 

Defendant also contends that resentencing should take place before a different judge. In 

determining whether resentencing should occur before a different judge, this Court considers (1) 

whether the original judge would reasonably be expected upon remand to have substantial 

4 Defendant’s new sentencing guideline’s range is 36 to 71 months’ imprisonment, MCL 777.64; 

thus, his minimum sentence of 84 months’ imprisonment for counts I-III is above this range. 

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difficulty in putting out of his or her mind previously-expressed views or findings determined to 

be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to 

preserve the appearance of justice, and (3) whether reassignment would entail waste and 

duplication out of proportion to any gain in preserving the appearance of fairness. People v Hill, 

221 Mich App 391, 398; 561 NW2d 862 (1997). 

Here, defendant cites nothing other than the court’s misscoring of the three offense 

variables at issue in support of his claim. However, the court correctly scored two of these 

offense variables, and the third involved a question of law. Given these circumstances, we find 

that defendant has not shown he is entitled to resentencing before a different judge. 

Affirmed, but remanded for resentencing. We do not retain jurisdiction. 

/s/ Jane E. Markey 

/s/ Michael R. Smolenski 

/s/ Patrick M. Meter 

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Court of Appeals, State of Michigan 

ORDER 

People of MI v Phillip Charles Gibbs 

Pat M. Donofrio 

Presiding Judge 

Docket No. 306124 

LCNo. 1l-028140-FC 

E. Thomas Fitzgerald 

Elizabeth L. Gleicher 

Judges 

The Court orders that the motion to remand pursuant to MCR 7.211(C)(1) is GRANTED and 

the matter is remanded to the trial court so that defendant-appellant may file a motion for resentencing 

regarding Prior Record Variables 5 and 6. Defendant-appellant may also move for a new trial and the trial 

court shall conduct an evidentiary hearing based on the closure of the courtroom during voir dire. 

Proceedings on remand are limited to the issues as raised in the motion to remand. 

Defendant-appellant is to file with this Court a copy of any motion and any supporting brief 

filed in the trial court within 14 days of the Clerk's certification of this order. The trial court is to hear and 

decide the matter within 56 days of the Clerk's certification of this order. Defendant-appellant must also file 

with the Clerk of this Court copies of all orders entered on remand within 14 days after entry. 

The trial court is to make findings of fact and a determination on the record. The trial court is 

to cause a transcript of any hearing on remand to be prepared and filed within 21 days after completion of the 

proceedings. 

Defendant-appellant may file a supplemental brief pertaining to the issues raised on remand 

within 21 days after entry of the trial court's order deciding the matter or 21 days after the transcript of the 

hearing on remand is filed, whichever is later. Plaintiff-appellee may file a supplemental brief in response. 

This Court retains jurisdiction in the cause, and the time for proceeding with the appeal in this 

Court begins upon issuance of an order in the trial court that fmally disposes of the remand proceedings. 

Nevertheless, the time for proceeding with the appeal begins 14 days from the date of certification of this 

order if remand pleadings are not filed in the trial court within the 14-day period . .-. A 

A true copy entered and certified by Larry S. Royster, Chief Clerk, on 

JUN 20 2012 

Date 

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1376 Filed 04/22/15 Page 144 of 222
 RECEIVED by Michigan Court of Appeals 7/3/2012 3:54:02 PM

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Cover Sheet

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Filing Party

Filing Party Last Name or Business/Entity/Agency Name

GIBBS CHARLES PHILLIP

Filing Party First Name M.I.

Address (Street 1, Street 2, City, State, and ZIP Code)

Attorney Last Name

Robinson

Attorney First Name M.I. P Number

Brandy Y 66895

Address(Street 1, Street 2, City, State, and ZIP Code)

645 Griswold Street

Suite 3300

Detroit MI 48226

Attorney Telephone Number

(313)256-9833

Summary of Items Filed

 Filing Doc Total

Type Filename/Description Fee Fee This Filing

 Motion - Regular Motion for New Trial $5.00 ---- $5.00

 3% Service Fee: 

Total All Filings: 

$0.15

Fee Substitute/Alternate Payment $5.15

Reason:

X Appointed Counsel

Motion To Waive Fee

Fees Waived in this Case

MI InterAgency Transfer

No Fee per MCR 7.203(F)(2)

Filer Office Use Only: 25680

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

306124 - 271089

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1377 Filed 04/22/15 Page 145 of 222
 RECEIVED by Michigan Court of Appeals 7/3/2012 3:54:02 PM

Case Name: PEOPLE OF MI V PHILLIP CHARLES GIBBS

On , one copy of the following documents: 7/3/2012

Motion - Regular Motion for New Trial

was delivered to the persons listed below:

Date Signature

7/3/2012 /s/Lisa Ann Lamarre

 Bar Delivery 

 Number Name Method Service Address

P- AO, SADO E-Serve ao@sado.org

P- Prosecutor,

Genesee County

E-Serve vhaley@co.genesee.mi.us

P- 66895 Robinson, Brandy Y E-Serve brobinson@sado.org

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Proof of Service

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1378 Filed 04/22/15 Page 146 of 222
STATE APPELLATE DEFENDER OFFICE 

Detroit 

DAWN VAN HOEK 

DIRECTOR 

JONATHAN SACKS 

DEPUTY DIRECTOR 

www.sado.org 

Client calls: 313.256.9822 

MAIN OFFICE: 

PENOBSCOT BLDG., STE 3300 

645 GRISWOLD 

DETROIT, MI 48226-4281 

Phone: 313.256.9833 • Fax: 313.965.0372 

LANSING OFFICE: 

101 N. WASHINGTON, 14TH FLOOR 

LANSING, MI 48913-0001 

Phone: 517.334.6069 • Fax: 517.334.6987 

July 3, 2012 

Clerk of the Court 

Michigan Court of Appeals 

Suite 800 

201 West Big Beaver 

Troy, MI 48084 

 Re: People v Phillip Charles Gibbs

 Court of Appeals No. 306124 

 Lower Court No. 11-28140FC 

Dear Clerk: 

 Enclosed for the court’s review is a copy of the Motion for New Trial, Resentencing and to 

Initiate Remand Proceedings that was filed with the Genesee County Circuit Court. A hearing for 

this matter has been scheduled for Monday July 16, 2012 at 9:00a.m. 

 Thank you for your cooperation. 

 Sincerely, 

 

 Lisa Ann Lamarre 

 Paralegal 

Enclosures 

cc: Genesee County Prosecutor 

 File ·25680 

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STATE OF MICHIGAN 

IN THE GENESEE COUNTY CIRCUIT COURT 

PEOPLE OF THE STATE OF MICHIGAN

 Court of Appeals No. 306124 

 Plaintiff-Appellee, 

Lower Court No. 11-28140FC 

-vsPHILLIP CHARLES GIBBS

 Defendant-Appellant. 

________________________________/ 

GENESEE COUNTY PROSECUTOR 

Attorney for Plaintiff-Appellee 

________________________________ 

BRANDY Y. ROBINSON (P66895)

Attorney for Defendant-Appellant 

________________________________ 

MOTION FOR NEW TRIAL, RESENTINCING, AND TO INITIATE REMAND 

PROCEEDINGS 

STATE APPELLATE DEFENDER OFFICE 

BY: BRANDY Y. ROBINSON (P66895) 

 Assistant Defender

 3300 Penobscot Building 

 645 Griswold 

 Detroit, Michigan 48226 

 (313) 256-9833 

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STATE OF MICHIGAN 

IN THE GENESEE COUNTY CIRCUIT COURT 

PEOPLE OF THE STATE OF MICHIGAN

 Court of Appeals No. 305939 

 Plaintiff-Appellee, 

Lower Court No. 11-28140FC 

-vsPHILLIP CHARLES GIBBS

 Defendant-Appellant. 

________________________________/ 

MOTION FOR NEW TRIAL, RESENTENCING AND TO INITIATE REMAND 

PROCEEDINGS

 Defendant-Appellant PHILLIPS CHARLES GIBBS, through his attorneys, the STATE 

APPELLATE DEFENDER OFFICE, by BRANDY Y. ROBINSON, respectfully moves for a 

new trial, resentencing, and to initiate remand proceedings and says in support: 

 1. Mr. Gibbs makes two additional objections to his sentence and seeks to develop his 

claim that he was denied his right to a public trial. Trial counsel did not raise these issues at trial or 

sentencing, but guidelines objections may be made for the first time in a motion for resentencing. 

Alternatively, Mr. Gibbs argues that his trial counsel was ineffective for acquiescing to the trial errors, 

and for failing to challenge the illegal sentence. See Brief in Support of Motion to Remand. 

 2. As to the scoring errors, Mr. Gibbs challenges PRV-5 and PRV-6, based in part upon 

the attached affidavit of counsel. Trial counsel interposed a timely objection to the scoring of OV-13. 

 3. As to the public trial claim, Mr. Gibbs relies on the attached affidavits of members of 

his family to challenge (1) the Court’s de facto policy of excluding members from the public during voir 

dire and (2) counsel’s ineffectiveness for failing to ensure that Mr. Gibbs’ family and other members of 

the public were not improperly pushed out of the courtroom.

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 STATE OF MICHIGAN 

 IN THE GENESEE COUNTY CIRCUIT COURT 

PEOPLE OF THE STATE OF MICHIGAN Lower Court No. 11-28140FC 

 

 Plaintiff-Appellee, 

 Hon. Judith A. Fullerton

-vsPHILLIP CHARLES GIBBS

 Defendant-Appellant. 

________________________________/ 

GENESEE COUNTY PROSECUTOR 

Attorney for Plaintiff-Appellee 

________________________________ 

BRANDY Y. ROBINSON (P66895)

Attorney for Defendant-Appellant 

________________________________ 

 BRIEF IN SUPPORT OF 

MOTION FOR A NEW TRIAL, RESENTENCING, AND TO INITIATE REMAND 

PROCEEDINGS 

 CERTIFICATE OF SERVICE 

STATE APPELLATE DEFENDER OFFICE 

BY: BRANDY Y. ROBINSON (P66895) 

 Assistant Defender

 3300 Penobscot Building 

 645 Griswold 

 Detroit, MI 48226 

 (313) 256-9833 

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.....................................................................................................i

STATEMENT OF JURISDICTION ......................................................................................iv

STATEMENT OF QUESTIONS PRESENTED ...................................................................v

STATEMENT OF FACTS ....................................................................................................... 1

I. MR. GIBBS’ SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL WAS 

VIOLATED BY THE CLOSING OF THE COURTROOM AND THE EXCLUSION 

OF MEMBERS OF HIS FAMILY FROM JURY SELECTION.....................................8

II. BECAUSE THERE ARE THREE OUTCOME-DETERMINATIVE SCORING 

ERRORS IN THE SENTENCING GUIDELINES, MR. GIBBS IS ENTITLED TO 

A RESENTENCING. ..................................................................................................... 12

SUMMARY AND RELIEF AND REQUEST FOR ORAL ARGUMENT ..........................20

BYR*Brief in Support of TCMOT for Resentencing and New Trial.doc*25680 

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TABLE OF AUTHORITIES 

CASES 

Combs v Coyle, 205 F3d 269 (6th Cir 2000) ...................................................................................................12 

People v Dendel, 481 Mich 114 (2008)...............................................................................................................8 

Feld v Robert & Charles Beauty Salon, 435 Mich 352 (1990) .........................................................................20 

Gannet Co v DePasquale, 443 US 368 (1979)....................................................................................................9 

Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66 (2006) ........................................................................20 

In re MKK, 286 Mich App 546 (2009) ...........................................................................................................18 

Miller v Allstate Ins. Co., 481 Mich 601 (2008) ..............................................................................................20 

Neder v United States, 527 US 1 (1999)...........................................................................................................11 

In Re Oliver, 333 US 257 (1948) ........................................................................................................................8 

People v Anderson, 446 Mich 392 (1994).........................................................................................................11 

People v Cannon, 481 Mich 152 (2008)............................................................................................................23 

People v Cannon, 481 Mich 152 (2008)............................................................................................................22 

People v Carines, 460 Mich 750 (1999)........................................................................................................8, 11 

People v Collier, 426 Mich 23 (1986)..................................................................... 12; 13 

People v Dye, 431 Mich 58 (1988)....................................................................................................................12 

People v Endres, 269 Mich 414 (2006).............................................................................................................18 

People v Francisco, 474 Mich 82........................................................................................................................15 

People v Harmon, 248 Mich App 522 (2001)..................................................................................................22 

People v Hegwood, 465 Mich 432 (2001)..........................................................................................................21 

People v Johnson, 293 Mich App 79 (2011) .....................................................................................................18

People v Koonce, 466 Mich 515 (2002) .............................................................................................................18 

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People v Lee, 391 Mich 618 (1974) ..................................................................................................................15 

People v Malkowski, 385 Mich 244 (1971)......................................................................................................15 

People v McPherson, 263 Mich App 124 (2004)..............................................................................................12 

People v Morson, 471 Mich 248 (2004) ............................................................................................................15 

People v Stone, 195 Mich App 600 (1992).......................................................................................................20 

Presley v Georgia, 558 US _, 130 S Ct 721 (2010) ................................................................................. 8, 9, 10 

Press-Enterprise Co v Superior Court, 478 US 1 (1980)......................................................................................9 

Salem v Jenkins, 414 F Supp 2d 687 (ED Mich 2006)..................................................................................10 

In re TD, __ Mich App __ (May 26; 2011) (Docket No. 294716) ............................................................19 

Taylor v Michigan Public Utilities Comm., 217 Mich 400 (1922).....................................................................20 

Tellin ex rel Hinga v Forsyth Tp., 291 Mich App 692 (2011).........................................................................18 

Townsend v Burke, 334 US 736 (1948) ............................................................................................................15 

US Fidelity Insurance & Guaranty Co v Michigan Catastrophic Claims Ass'n, 482 Mich 414 (2008) ............18 

United States v Marcus, 130 S Ct 2159 (2010) ................................................................................................11 

Waller v Georgia, 467 US 39 (1984)........................................................................................................ 8, 9, 11 

Washington v Recuenco, 548 US 212 (2006) .....................................................................................................11 

CONSTITUTIONS, STATUTES, COURT RULES 

MCL 712A.1(2) ..............................................................................................................................................19 

MCL 712A.1 et seq............................................................................................................................................19 

MCL 712A.2(a)(1)............................................................................................................................................21 

MCL 750.529 .................................................................................................................................................1 

MCL 750.530 .................................................................................................................................................1 

MCL 777.40 ................................................................................................................................................23 

MCL 777.43(1) ..................................................................... 22; 23; 24 

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MCL 777.51; 777.52 ........................................................................................................................................19 

MCL 777.53 ................................................................................................................................................22 

MCL 777.53; 777.54 ........................................................................................................................................19 

MCL 777.55(1) ...................................................................................... 16; 19 

MCL 777.55(3) .................................................................................................................................................20 

MCL 777.56(1) ................................................................................ 17; 18; 20 

MCL 777.57 ................................................................................................................................................23 

MCR 2.613(A) ..................................................................................................................................................15 

US Const; amend VI .........................................................................................................................................8 

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STATEMENT OF JURISDICTION

 Defendant-Appellant was convicted in the Genesee County Circuit Court by jury trial, and a 

Judgment of Sentence was entered on August 15, 2011. A Claim of Appeal was filed on September 

16, 2011 by this Court pursuant to the indigent defendant's request for the appointment of appellate 

counsel dated September 6, 2011, as authorized by MCR 6.425(F)(3). Defendant-Appellant filed an 

appeal as of right as provided for by Mich Const 1963, art 1, §20, pursuant to MCL 600.308(1); 

MCL 770.3; MCR 7.203(A), MCR 7.204(A)(2). 

 On June 20, 2012, the Court of Appeals remanded the matter to this Court for an 

evidentiary hearing and for the Defendant to move for a new trial and for resentencing. 

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STATEMENT OF QUESTIONS PRESENTED

I. WAS MR. GIBBS’ SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL VIOLATED 

BY THE CLOSING OF THE COURTROOM AND THE EXCLUSION OF MEMBERS 

OF HIS FAMILY FROM JURY SELECTION?

Defendant-Appellant answers, "Yes". 

II. BECAUSE THERE ARE THREE OUTCOME-DETERMINATIVE SCORING ERRORS 

IN THE SENTENCING GUIDELINES, IS MR. GIBBS ENTITLED TO A 

RESENTENCING?

Defendant-Appellant answers, "Yes". 

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STATEMENT OF FACTS

On October 26, 2011, the lives of Defendant-Appellant Phillip Charles Gibbs, two Flint 

pawn-shop owners, and one of the shop’s employees were changed forever when Mr. Gibbs – a 

mere sixteen years old at the time – entered the pawn shop with co-defendant Tyrell Henderson and 

participated in a robbery. Gibbs was unarmed during the crime and insisted he knew nothing of 

Henderson’s plans. Instead, he acted under the very-real stress of knowing that his out-of-control 

co-defendant might turn the gun on him for failing to assist. 

* * * * * 

 It was undisputed that Mr. Gibbs was the more passive actor during the robbery, which was 

recorded on the store’s surveillance system. Costas Anagnostopoulos, the owner of Flint-based 

Wholesale 4 U,1

 testified that around 4:00 p.m. on October 26th, Mr. Henderson entered the store 

alone and purchased a video game. [Trial 6/29/11, p 252-253]. Henderson later returned, this time 

with Mr. Gibbs, and claimed the game was not working properly. Mr. Anagnostopoulos directed his 

employee, Jeremy Kassing, to troubleshoot the problem on the store’s Xbox game system. In the 

meantime, Mr. Anagnostopoulos brought over a power supply to aid with the assessment. It was 

then that Mr. Henderson hit Mr. Anagnostopoulos suddenly with a gun on the back of his neck, 

causing him to nearly fall to the ground. Mr. Henderson was pointing the gun at Mr. 

Anagnostopoulos and ordered him to sit on the floor. Mr. Henderson then demanded and took Mr. 

Anagnostopoulos’ rings, neck jewelry, wallet, and money at gunpoint. [Trial 6/29/11, p 258-263]. 

He also ordered Mr. Anagnostopoulos to open the cash register. [Trial 6/29/11, p 263]. In reciting 

what happened next, Mr. Anagnostopoulos began to testify not based on his knowledge or memory, 

 

1

 The witness testified that the shop was also known as Wholesale 2 U. Despite having a reputation 

otherwise, Mr. Anagnostopoulos was adamant that his store was not at all functioning as a pawn 

shop. [Trial 6/29/11 245]. 

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but by narrating the contents of the surveillance video in response to questions asked by the 

prosecutor. [Trial 6/30/11, p 5-8]. 

 Mr. Anagnostopoulos noted that Mr. Henderson took him to an office inside the store and 

ordered him to open up the safe. Mr. Henderson was calling Mr. Anagnostopoulos racial slurs and 

threatening to shoot and kill him, and then hit him with the gun again on the side of his face.2 [Trial 

6/30/11, p 9, 14-15]. Mr. Henderson directed Mr. Anagnostopoulos to hand him everything from 

inside the safe, including a gun he kept there. [Trial 6/30/11, p 23]. Some of the other stolen goods 

included paper money, gold coins, silver dollars, silver certificates, foreign currency, three Rolex 

watches, and a gold Fossil watch. [6/30/11 Trial, p 39-44]. 

Mr. Henderson and Mr. Gibbs ultimately left the store and Mr. Anagnostopoulos, his wife, 

and Mr. Kassing followed to determine where the two men went. [Trial 6/30/11, p 27-29]. The 

police called and eventually arrived on the scene in response to receiving a silent panic alert from 

inside the store from Mr. Kassing. [Trial 6/30/11, p 29-31]. 

Mr. Anagnostopoulos was able to pick out Mr. Gibbs in a subsequent corporeal line-up, but 

could not identify Mr. Henderson.3

 [Trial 6/30/11, p 32-35]. According to him, his watches and 

Visa debit card was recovered, but several items taken during the robbery were never returned to 

him. [Trial 6/30/11, p 34-37]. 

 Nancy Anagnostopoulos was a joint owner of the Wholesale 4 U business with her 

husband Costas. [Trial 6/29/11, p 8-9]. She arrived at the store around 5:25pm on the day of the 

robbery, thirty minutes before closing. Her husband and Jeremy Kassing were present, and she sat 

down and down began reading a book [Trial 6/29/11, p 41-42]. Like her husband, Mrs. 

 

2

 Part of Mr. Anagnostopoulos’ ear was cut from being hit with the gun, requiring four stitches. He 

also claimed to have more frequent headaches as a result. [Trial 6/30/11, p 45-46]. 3

 Mr. Anagnostopoulos was able to identify both men at trial. [Trial 6/29/11, p 251-252]. 

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Anagnostopoulos recounted what happened next by walking the prosecutor and jury through the 

contents of the video, rather than testifying from her memory. 

As her husband and Mr. Kassing worked to troubleshoot the video game, Mrs. 

Anagnostopoulos heard a loud crack. She stood up and saw her husband going down on the floor, 

and Mr. Gibbs approached her. He jerked the necklaces from her neck and tried to remove Mrs. 

Anagnostopoulos’ ring from her finger.4 When he could not remove the ring himself, he directed 

Mrs. Anagnostopoulos to either do so, or risk him cutting it off. Mr. Gibbs reached into all of Mrs. 

Anagnostopoulos’ pockets and took her identification, ATM card, concealed pistol license, and 

money. [Trial 6/29/11, p 62-65, 94]. Mr. Henderson later double checked Mr. Gibbs’ work in this 

regard. [Trial l6/29/11, p 117]. Mr. Gibbs never had possession of a gun, knife, or any other 

weapon and never threatened to beat, stab, shoot, or otherwise injure her, her husband, or Mr. 

Kassing. [Trial 6/29/11, p 106-110]. 

Mrs. Anagnostopoulos could see the gun in Mr. Henderson’s hand, and heard him yelling 

racial slurs and threats at her husband. [Trial 6/29/11, p 66-67, 121-124]. When Henderson led Mr. 

Anagnostopoulos into the back room, Mr. Gibbs began removing money from the cash register. He 

also took an iPod, and according to Mrs. Anagnostopoulos, Mr. Gibbs retrieved several laptops 

from the showcase because Mr. Henderson had instructed him to do so. Mr. Gibbs was hesitant to 

go behind the showcase to obtain more merchandise, so Mrs. Anagnostopoulos volunteered to do 

so for him. [Trial 6/29/11, p 67-70]. Mr. Gibbs did not say much else to her, but he yelled to Mr. 

Henderson to “come on” and that they had three minutes. [Trial 6/29/11, p 71-72]. At that point 

(but only after double-checking whether Mr. Gibbs properly emptied the register), Mr. Henderson 

picked up a duffle bag, threw it at Mr. Gibbs, and yelled at him to put the laptops inside. [Trial 

6/29/11, p 67, 73-74]. Mr. Gibbs “just did it,” according to Mrs. Anagnostopoulos. Mr. 

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Henderson then directed Mr. Gibbs to wait before leaving, as they couldn’t exit with the items so 

conspicuously.5 Mr. Henderson then emptied Mrs. Anagnostopoulos’ purse. [Trial 6/29/11, p 74]. 

The two men left and Mrs. Anagnostopoulos, her husband and Mr. Kassing conveyed information 

about the event to the police. [Trial 6/29/11, p 85, 89-93]. In separate live-lineups conducted later, 

Mrs. Anagnostopoulos selected Mr. Gibbs and Mr. Henderson as her assailants. [Trial 6/29/11, p 

99-104]. She also identified the men in court. 

Jeremy Kassing added that the store had a hand-held silent panic alarm system, and he 

pressed the device nine times during the robbery to alert the police. [Trial 6/30/11, p 78-79]. Mr. 

Kassing identified Mr. Gibbs as one of his assailants both during a lineup and at trial. [Trial 

6/30/11, p 79-80, 101-103]. Like the other two witnesses, Mr. Kassing confirmed that only Mr. 

Henderson had a gun during the incident. Additionally, it was only Mr. Henderson who demanded 

that Mr. Kassing empty his pockets. [Trial 6/30/11, p 81-82, 97]. Mr. Kassing perceived Mr. 

Henderson as the leader of the robbery, inasmuch as he was telling Mr. Gibbs what to do. [Trial 

6/30/11, p 115-116]. 

Officer Michael Ross of the Flint Police Department responded to the radio dispatch 

regarding the incident. [Trial 6/29/11, p 149, 151]. He took descriptions of the suspects, watched a 

portion of the surveillance video, and looked for potential fingerprints that could be lifted from the 

scene. [Trial 6/26/11, p 154-155, 157-159]. 

After speaking with Officer Ross and watching the surveillance video, Michele Champion 

(then an identification technician for the Flint Police Department), processed a video game, a 

countertop, the safe, and a glass display cases inside the shop in an effort to locate fingerprints 

 4

 Mrs. Anagnostopoulos claimed to suffer whiplash from the snatching incident. [Trial 6/29/11, p 

94]. 

5

 Jeremy Kassing recalled this sequence of events similarly, noting that Mr. Henderson told Mr. 

Gibbs he couldn’t look so suspicious, and then went back and found another bag. [Trial 6/30/11, p 

93]. 

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[Trial 6/29/11, p 183, 187-190, 206-207]. She then submitted the prints for further identification 

through the Automated Fingerprint Identification System (AFIS), a national database. [Trial 

6/29/11, p 197-198]. Mary Martin, an AFIS employee and sworn expert in fingerprint 

identification and comparison, then testified that one of the prints recovered matched Mr. Gibbs’ 

left ring finger, while another matched Mr. Henderson’s left ring finger. She also determined that 

one of the prints belonged to Costas Anagnostopoulos. [Trial 6/29/11, p 230-233]. Phillip Thick, 

another AFIS employee and fingerprint expert, added that a separate print recovered from the scene 

matched Mr. Gibbs’ left thumb. [Trial 7/6/11, p 8, 16, 23-24]. 

Sergeant Shawn Ellis testified as the officer in charge of the investigation. [Trial 6/30/11, 

p 143]. After receiving the AFIS report, Sergeant Ellis followed-up with Mr. Gibbs, who turned 

himself in. He obtained consent from Mr. Gibbs’ mother to search her house, and there the officer 

recovered, inter alia, (1) a Ziploc bag with miscellaneous jewelry, (2) a Sam’s Club card bearing Nancy 

Anagnostopoulos’ name and picture, (3) three Rolexes and a Fossil watch, and (4) coins and foreign 

currency. [Trial 6/30/11, p 152-153, 156-161]. 

Sergeant Ellis obtained a statement from Mr. Gibbs after he voluntarily surrendered. He 

claimed that Mr. Gibbs waived his Miranda rights and that the statement was recorded, although he 

was unable to produce the recording at the time of trial. [Trial 6/30/11, p 203, 211-212]. According 

to Sergeant Ellis, Mr. Gibbs said he and Mr. Henderson went to the pawn shop to try and sell some 

jewelry. They were trying to raise money to buy marijuana, but were told the jewelry was fake. [Trial 

6/30/11, p 212]. Mr. Henderson then bought a video game for them to play and the two men left 

the store. [Trial 7/6/11, p 34]. Henderson changed his mind and decided to return the game, and 

Mr. Gibbs accompanied him back to the pawn shop. Mr. Gibbs did not know that Henderson was 

going to rob the place, but once inside, Henderson pulled out the handgun, hit the store owner with 

it, and ordered Mr. Gibbs to take Mrs. Anagnostopoulos’ cell phone and jewelry along with laptops 

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and other items. [Trial 7/6/11, p 34-35]. Mr. Gibbs noted that Mrs. Anagnostopoulos offered to 

help him and ultimately did so. He acknowledged carrying away items from the store and said they 

drove around for thirty minutes and eventually ended up at Mr. Gibbs’ house. Mr. Henderson said 

he would pay Mr. Gibbs $100 to keep the items, but Mr. Gibbs was never paid and Mr. Henderson 

never came back to pick up anything he had left. Amongst the items police recovered from Mr. 

Gibbs was a Pittsburgh Pirates hat that he said belonged to Mr. Henderson. [Trial 7/6/11, p 36-37]. 

Lastly, Phillip Gibbs testified in his own defense. He was sixteen years old on the day of 

the robbery. [Trial 7/6/11, p 87-88]. He acknowledged being in the store earlier in the day in an 

effort to sell Mr. Henderson’s jewelry in exchange for money for marijuana. [Trial 7/6/11, p 90-91]. 

After learning that the jewelry had no value, he informed Mr. Henderson of that and the two men 

returned to the store to buy a video game instead. Mr. Gibbs went back to the store a third time 

with Henderson, who intended to seek a refund. As Mr. Anagnostopoulos and Mr. Kassing plugged 

up the video game for testing, Mr. Gibbs heard a smacking / clapping noise and saw Mr. 

Anagnostopoulos falling to the floor. [Trial 7/6/11, p 91-94]. Mr. Gibbs then saw Mr. Henderson 

with a large gun in his hand, and was startled when he realized Henderson had hit Mr. 

Anagnostopoulos with the gun. [Trial 7/6/11, p 95]. Mr. Gibbs knew what Mr. Henderson was 

doing was wrong, but he complied with his orders to retrieve items from Nancy. This was because 

he was hoping not to be injured himself, as he was afraid of Mr. Henderson’s gun. [Trial 7/6/11, p 

96]. Accordingly, he took the money from the cash register and complied with the order to take the 

laptops from the showcase even though he really wanted no part of the robbery. Although Mr. 

Gibbs did not run when Mr. Henderson was out of sight, he was thinking to himself that he hoped 

Mr. Henderson would not hurt anybody. [Trial 7/6/11, p 97-101]. Mr. Henderson emerged from 

the back and checked the cash register again, then threw a duffle bag on the floor with directions for 

Mr. Gibbs to fill it with laptops. Moreover, he called Mr. Gibbs dumb or stupid for leaving the 

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store with the items exposed, and retrieved Mrs. Anagnostopoulos’ purse to carry the gun and some 

of the laptops. [Trial 7/6/11, p 101-103]. Consistent with his police statement, Mr. Gibbs indicated 

that he was taken home and agreed to hide the goods at his house after being pressured by Mr. 

Henderson. [Trial 7/6/11, p 106-107]. 

Ultimately, a Genesee County jury refused to hold Mr. Gibbs accountable for the weapon 

Mr. Henderson used to effectuate the crime. Nevertheless, Mr. Gibbs was still convicted of two 

counts of armed robbery,6 one count of unarmed robbery,7 and one count of conspiracy to commit 

armed robbery8 on July 2, 2011 following a five-day trial before the Honorable Judith A. Fullerton. 

[Trial 7/7/11, p 59-60]. 

At sentencing, trial counsel agreed to the scoring of the prior record variables, but 

challenged the points assessed against Mr. Gibbs for OV 4 and OV 13. [Sentence 8/15/11, p 9-18]. 

Notwithstanding his relatively lesser culpability, minimal past, and youthful status, Judge Fullerton 

ordered Mr. Gibbs to serve concurrent sentences at the very top of his guidelines of (1) 17.5 years to 

30 years imprisonment for the armed robbery and conspiracy charges, and (2) 100 months to 15 

years imprisonment for unarmed robbery charge. [Sentence 8/15/11, p 25-26]. The Court of 

Appeals remanded this case to allow Mr. Gibbs to file a motion for a new trial and for resentencing, 

and for an evidentiary hearing on June 20, 2012. Court of Appeals Order, Appendix D. Presently 

incarcerated, this is Mr. Gibbs’ motion to initiate remand proceedings in accordance with the Court 

of Appeals’ order. 

 

6

 MCL 750.529. 

7

 MCL 750.530. 

8

 750.157a. 

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8

ARGUMENT

I. MR. GIBBS’ SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL 

WAS VIOLATED BY THE CLOSING OF THE COURTROOM 

AND THE EXCLUSION OF MEMBERS OF HIS FAMILY FROM 

JURY SELECTION. 

The Sixth Amendment directs that “[i]n all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial. . . .” US Const; Am VI (emphasis added). This right applies to state 

prosecutions under the Fourteenth Amendment. In Re Oliver, 333 US 257, 273 (1948). The policy 

considerations underlying the right to a public trial are compelling: “The requirement of a public trial 

is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly 

condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense 

of their responsibility and to the importance of their functions. . . .” Waller v Georgia, 467 US 39, 46 

(1984) (quoting In re Oliver, supra at 270, n 25). 

In a recent per curiam decision, the United States Supreme Court noted unequivocally that the 

right to an open courtroom applies to the jury selection phase of the trial and, in particular, the 

examination of prospective jurors. Presley v Georgia, 558 US _; 130 S Ct 721, 725 (2010). This 

holding does not create a new right; it simply re-affirms what the Court recognized 28 years ago in 

Waller v Georgia, supra.9 The beneficiary of the right to a public trial is both the accused and the 

public-at-large. The right is grounded in the Sixth Amendment, Gannet Co v DePasquale, 443 US 368, 

380 (1979), as well as the First Amendment. See Press-Enterprise Co v Superior Court, 478 US 1 (1980). 

Presley reminds us that the selection of a jury is itself a matter of importance, “not simply to 

the adversaries, but to the criminal justice system.” Presley, supra at 724-25 (quoting Press-Enterprise 

Co, supra at 505.) The Presley majority used strong language, declaring that under the Court’s “clear 

 

9 Among the values furthered by the public trial guarantee are: (1) to ensure a fair trial; (2) to remind the 

prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to 

encourage witnesses to come forward; and (4) to discourage perjury. Waller, supra at 46-47. 

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precedents,” it was “so well settled that the Sixth Amendment right extends to jury voir dire that this 

Court may proceed by summary disposition.” Id. at 722–24. The tenor of the opinion demonstrates 

the Court’s frustration with repeated failures to abide by its holdings. 

Presley reemphasized that “[t]rial courts are obligated to take every reasonable measure to 

accommodate public attendance at criminal trials,” including at jury selection. Id. at 724. It is 

apparent from the Court’s discussion that the first and foremost “obligation” is the duty to ensure 

the courtroom is open and not unduly restricted by staff or court officers. Furthermore, given the 

purposes of the public trial right articulated in Waller, it follows that the “integrity and public 

reputation of the judicial proceedings” is damaged when jury selection is closed to the public. 

 Here, the record is unclear as to whether the Court knew its staff closed off the courtroom 

during voir dire. The Court mentions at the very beginning that “if any spectators would like to come 

in they’re welcome,”10 yet affidavits submitted by several members of Defendant-Appellant’s family 

suggest that court personnel told them exactly the opposite. Mr. Gibbs’ mother, sister, and brotherin-law have all attested that they, members of the co-Defendant’s family, and other members of the 

public were prevented from entering the courtroom during jury selection. Affidavits, Appendix A. 

Although these statements are not a part of the existing record, one of the purposes of the remand 

hearings is to afford Mr. Gibbs an opportunity to further develop the issue by taking testimony. If it 

turns out to be true that access was restricted based solely on the need to conduct voir dire, Presley 

indicates that reasonable alternatives had to be considered even if not advanced by the parties. 

Presley, supra at 725. Acceptable options could have included “reserving one or more rows for the 

public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective 

jurors not to engage or interact with audience members.” Id. at 725. 

 

10 [Trial 6/28/11, p 4].

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 Although there was no specific objection to the courtroom closure, the US Supreme Court 

has noted that the lack of a complete objection has no bearing on the issue of whether the public 

trial right has been violated: “The public has a right to be present whether or not any party has asserted 

the right.” Presley, supra at 724-25 (emphasis added). This language places the responsibility for 

ensuring the right to a public trial firmly at the feet of the trial judge, not the defendant. For 

example, in Salem v Jenkins, 414 F Supp 2d 687, 696 (ED Mich 2006) the district court held that “the 

Michigan Court of Appeals’ decision that counsel failed to preserve this issue was based on the 

incorrect belief that Waller required Petitioner’s attorney to advance specific objections.” To the 

contrary, it is not necessarily incumbent upon the defendant to contest a closed courtroom; rather, it 

is the onus of the trial court to ensure the public is granted access to a trial, thus preserving not only 

the defendant’s right, but also the rights of the public-at-large. Presley, supra at 721. Furthermore, 

the public has a right of access to criminal trials that may not be waived. Presley was decided as a 

Sixth Amendment case, but the Supreme Court reiterated that the right to a public trial is also 

guaranteed by the First Amendment: “The Court has further held that the public trial right extends 

beyond the accused and can be invoked under the First Amendment. This requirement, too, is 

binding on the States.” Presley, supra at 723. 

Although the Court of Appeals has held that “the failure to timely assert the right to a public 

trial forecloses the later grant of relief,” People v Vaughn, 291 Mich App 183 (2010), that assessment is 

not binding inasmuch as review of the issue is pending before the Michigan Supreme Court. People v 

Vaughn, 490 Mich 887 (2011). Moreover, this reasoning cannot stand in the face of compelling U.S. 

Supreme Court statements to the contrary. 

 The attached affidavits provide strong support to Mr. Gibbs’ claim that his right to a public 

trial was violated. It is equally clear that this violation, if allowed to become a matter of record, 

amounts to “structural” error, Waller supra, at 50 n9, since it “‘affect[s] the ‘framework within which 

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11

the trial proceeds.’” United States v Marcus, 130 S Ct 2159, 2164 (2010) (quoting omitted). Automatic 

reversal is thus required. Washington v Recuenco, 548 US 212, 218-19 (2006). 

Even under plain error review, reversal is warranted. Carines, supra at 763. Since a violation 

of the public trial right is among the limited class of cases that involve structural error, prejudice is 

presumed, a violation of substantial rights has occurred, and a new trial is required. Neder v United 

States, 527 US 1, 8-9 (1999); People v Anderson, 446 Mich 392, 40 (1994). 

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II. BECAUSE THERE ARE THREE OUTCOMEDETERMINATIVE SCORING ERRORS IN THE 

SENTENCING GUIDELINES, MR. GIBBS IS ENTITLED 

TO A RESENTENCING. 

Trial counsel objected at sentencing to some, but not all, of the guidelines that Mr. Gibbs 

now submits were in error. Counsel did not contest the scoring of any of the Prior Record 

Variables, but he did challenge the points assessed against Mr. Gibbs under OV 13. The latter issue 

is thus preserved for appellate review, and will not be re-litigated as part of the current motion. 

Argument. Under the Michigan and United States Constitutions, defendants have a due 

process right to be sentenced on the basis of accurate information and in accordance with the law. 

Townsend v Burke, 334 US 736 (1948); People v Lee, 391 Mich 618, 636-637 (1974); People v Malkowski,

385 Mich 244 (1971). Further, MCR 2.613(A) provides that a sentence must be consistent with 

“substantial justice.” Our Supreme Court has found that “it is difficult to imagine something ‘more 

inconsistent with substantial justice’ than requiring a defendant to serve a sentence that is based 

upon inaccurate information.” People v Francisco, 474 Mich 82, 91, n6 (2006). Thus, a defendant is 

entitled to resentencing when his sentence is predicated upon mis-scored and/or inflated guidelines.

Id. at 91-92. 

PRV-5

Resentencing is required because Mr. Gibbs was improperly assessed two points under Prior 

Record Variable (PRV) 5. Points may be attributed to a defendant under PRV-5 based on an 

offender’s prior misdemeanor convictions and prior misdemeanor juvenile adjudications. A score of 

two points is appropriate under this guideline if a person has “1 prior misdemeanor conviction or 

prior misdemeanor juvenile adjudication”: 

1) Prior record variable 5 is prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications. Score prior record variable 5 by 

determining which of the following apply and by assigning the number 

of points attributable to the one that has the highest number of points: 

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(a) The offender has 7 or more prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications............................. 20 points 

(b) The offender has 5 or 6 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 15 points 

(c) The offender has 3 or 4 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 10 points 

(d) The offender has 2 prior misdemeanor convictions or prior 

misdemeanor juvenile adjudications.............................. 5 points 

(e) The offender has 1 prior misdemeanor conviction or prior 

misdemeanor juvenile adjudication. ..................... 2 points 

MCL 777.55(1)(a) (emphasis added). If a defendant has no prior misdemeanor conviction or prior 

misdemeanor juvenile adjudications, the appropriate score to be assessed is zero points. The statute 

defines “prior misdemeanor juvenile adjudications” to mean “a juvenile adjudication for conduct 

that if committed by an adult would be a misdemeanor under a law of this state . . . if the order of 

disposition was entered before the sentencing offense was committed.” MCL 777.55(3)(b) 

(emphasis added).

 Here, a close review of the record reveals that the only juvenile adjudication in Mr. Gibbs’ 

background that was eligible for scoring under PRV-5 was for an August 3, 2010 entering without 

permission case. Pre-Sentence Investigation Report (PSR) at 3. According to the PSR, the order of 

disposition for that offense was entered on November 9, 2010. This was a full two weeks after the 

October 26, 2010 commission date of the sentencing offense(s). Thus, under the plain language of 

MCL 777.55(3)(b), it was improper to use this conviction as a basis for penalizing Mr. Gibbs with 

two points under PRV-5, inasmuch as that guideline only contemplates orders of disposition entered 

before the date of the sentencing offense. See, MCL 777.53(3)(b). This error, combined with the 

error in scoring PRV-6, infra, renders Mr. Gibbs’ current sentence an upward departure from the 

correct guidelines range. Resentencing is therefore required. 

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PRV-6

Additionally, Mr. Gibbs received a 5-point score under PRV-6 for being “on probation or 

delayed sentence status or on bond awaiting adjudication or sentencing for a misdemeanor.” MCL 

777.56(1)(d). Yet, this score was both factually and legally inappropriate. Factually speaking, as the 

attached affidavit of the undersigned counsel indicates, the Genesee County Juvenile Court has no 

record of Mr. Gibbs ever being placed on bond when he acquired the entering without permission 

charge as a juvenile. Affidavit of Counsel, Appendix B. Even if he had been on bond, however, the 

plain language of the legislative sentencing guidelines under PRV-6 make it apparent that points 

cannot be assessed for a defendant’s relationship with the juvenile justice system. Resentencing is 

thus warranted. 

A. The Scoring of Five Points Under PRV-6 Was Inaccurate Based on the 

Facts of this Case 

A five-point score under PRV-6 is reserved for offenders who already have a “relationship 

to the criminal justice system” at the time crime is committed. MCL 777.56(1): 

(1) Prior record variable 6 is relationship to the criminal justice system. Score 

prior record variable 6 by determining which of the following apply and by 

assigning the number of points attributable to the one that has the highest 

number of points: 

(a) The offender is a prisoner of the department of corrections or serving a 

sentence in jail ........................................................................................... 20 points 

(b) The offender is incarcerated in jail awaiting adjudication or sentencing on a 

conviction or probation violation .......................................................... 15 points 

(c) The offender is on parole, probation, or delayed sentence status or on bond 

awaiting adjudication or sentencing for a felony ................................ 10 points 

(d) The offender is on probation or delayed sentence status or on bond 

awaiting adjudication or sentencing for a misdemeanor .......... 5 points 

(e) The offender has no relationship to the criminal justice system ..... .. 0 points 

MCL 777.56(1) (emphasis added). 

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 Here, a few months before committing the sentencing offense, the then-sixteen-year-old 

defendant was adjudicated responsible (by virtue of a plea) for entering without permission in the 

Genesee County Probate Court (PSR 3). Adjudication Order, Appendix C. He was not placed on bond 

or probation at that time. To the contrary, Mr. Gibbs was released to the care and custody of his 

mother, and remained in her custody at the time of the sentencing offense (October 26, 2010). Id at 

page 1. He did not receive a juvenile disposition for this offense until on November 9, 2010, two 

weeks after the current crimes had been committed. 

When the disposition order finally took effect, Mr. Gibbs received a sentence of probation 

that was ultimately suspended in light of the charges in the current case. Such a penalty does not fall 

within the plain language of PRV-6, however. See MCL 777.56(1). And as noted, there is no 

evidence that Mr. Gibbs was on bond during the interim between his adjudication and disposition. 

Therefore, under the facts of this case, a five-point PRV-6 score was inappropriate. 

B. Even If the Facts Here Supported the Scoring of PRV-6, this Variable 

Could Not Be Scored Inasmuch as it Does Not Apply to Juvenile 

Offenses. 

 Whether a relationship to the juvenile justice system may be used to score PRV-6 is a 

question of statutory construction. When interpreting statutes, courts must give effect to the intent 

of the Legislature by applying the provision’s plain language. People v Koonce, 466 Mich 515, 518 

(2002). Courts consider both the plain meaning of the critical word or phrase as well as its 

placement and purpose in the statutory scheme. US Fidelity Insurance & Guaranty Co. v Michigan 

Catastrophic Claims Ass’n, 482 Mich 414, 423 (2008). Whenever possible, the Court should give effect 

to every phrase, clause and word in a statute. Id. Omitted phrases may also be significant, as “[t]he 

Legislature is presumed to be familiar with the rules of statutory construction and, when 

promulgating new laws, to be aware of the consequences of its use or omission of statutory 

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language[.]” Tellin ex rel Hinga v Forsyth Tp., 291 Mich App 692 (2011) (quoting In re MKK, 286 Mich 

App 546, 556 (2009)). 

 Critically, the Legislature made no reference to juvenile delinquency proceedings when it 

enacted MCL 777.56, the statute which created the current version of PRV-6. The variable 

examines whether the offender had a “relationship to the criminal justice system” at the time of 

the sentencing offense. MCL 777.56(1) (emphasis added). Such a score is appropriate only if the 

“[o]ffender is on probation or delayed sentence status or on bond awaiting adjudication or 

sentencing for a misdemeanor.” MCL 777.56(1)(d). As noted, zero points must be assessed if the 

“[o]ffender has no relationship to the criminal justice system.” MCL 777.56(1)(e) (emphasis 

added). See also People v Johnson, 293 Mich App 79 (2011). 

 The Legislature’s repeated use of the phrase “criminal justice system” makes clear it did not 

intend PRV-6 to encompass juvenile matters. Through various enactments, the Legislature has 

established a clear distinction between criminal cases and delinquency proceedings. The procedures 

governing the latter are codified not in the Penal Code, but instead in the Probate Code at MCL 

712A.1 et seq. See also Const 1963, Art 6, § 15 (providing that the probate court “shall have original 

jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by 

law.”). By statute, “proceedings under this chapter are not criminal proceedings” unless 

otherwise provided. MCL 712A.1(2) (emphasis added). Thus, as the Court of Appeals has noted, 

“proceedings against juveniles are not even considered criminal proceedings.” In re TD, 292 Mich 

App 678 (2011). 

This distinction is found elsewhere in the guidelines as well. PRV-1 and PRV-2, for 

example, weigh “convictions” for certain “crimes.” MCL 777.51, 777.52. In contrast, PRV-3 and 

PRV-4 consider only “a juvenile adjudication for conduct that would be . . . [a crime] if committed 

by an adult[.]” MCL 777.53, 777.54. Similarly, PRV-5 refers to “a juvenile adjudication for conduct 

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that if committed by an adult would be a misdemeanor.” MCL 777.55(3)(b). As these provisions 

recognize, a juvenile is not adjudicated guilty of a “crime”; rather, a juvenile can only be adjudicated 

guilty of what “would be” a crime if committed by someone older. The guidelines therefore 

acknowledge what the Probate Code already confirms: “proceedings under this chapter are not

criminal proceedings” unless otherwise provided. MCL 712A.1(2) (emphasis added). 

 Certainly, if the Legislature had intended for PRV-6 to apply to a defendant’s relationship 

with the juvenile justice system, it could have said so. After all, PRV-3, PRV-4, and PRV-5 all 

expressly provide for the consideration of delinquency adjudications. In contrast, while the word 

“adjudication” does appear in the text of PRV-6, it is not used in the context of delinquency 

proceedings. Nor is it used to refer to juvenile bond status. Rather, it appears within the phrase “on 

bond awaiting adjudication or sentencing for a misdemeanor.” MCL 777.56(1)(d). In this context, 

“adjudication” means simply: “The legal process of resolving a dispute; the process of judicially 

deciding a case.” Black’s Law Dictionary (9th ed), p. 42. It follows, therefore, that this clause of 

PRV-6 is only concerned with sentencing offenses that occur before the final resolution of an adult 

misdemeanor charge. After all, as discussed above, PRV-6 refers to defendants charged with a 

“misdemeanor,” not defendants charged with “conduct that if committed by an adult would be a 

misdemeanor.” Compare MCL 777.55(3)(b) with MCL 777.56(3)(b). 

Language referencing juvenile matters could have been added to PRV-6 with little difficulty. 

Given what is expressed in PRV-3, PRV-4, and PRV-5, it must be presumed that the Legislature 

intentionally omitted such language when it drafted PRV-6. This is consistent with the wellestablished legal doctrine expressio unius est exclusio alterius (“the expression of one thing is the 

exclusion of another”). Miller v Allstate Ins. Co., 481 Mich 601, 611 (2008). The maxim is a rule of 

construction that is a product of “logic and common sense.” Feld v Robert & Charles Beauty Salon,

435 Mich 352, 362 (1990) (quoting 2A Sands, Sutherland Statutory Construction (4th ed), § 47.24, at 

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203). Our Supreme Court has long held that “no maxim is more uniformly used to properly 

construe statutes.” Hoerstman Gen. Contracting, Inc. v Hahn, 474 Mich 66, 74–75 (2006) (citing Taylor v 

Michigan Public Utilities Comm., 217 Mich 400, 403 (1922)). 

Further evidence of the Legislature’s intent can be found by comparing PRV-6 to its 

predecessor under the judicial guidelines. The instructions to the predecessor variable expressly 

provided that “a ‘relationship to the criminal justice system’ applies to relationships determined 

by juvenile convictions or charges.” People v Stone, 195 Mich App 600, 607-608 (1992) (emphasis 

added) (quoting the version of PRV-6 which appeared in the judicial sentencing guidelines). Thus, it 

must be presumed: (1) that the Legislature was aware of the prior version of PRV-6 when it enacted 

the current version; and (2) that the differences between the two variables were intended. See People v 

Hegwood, 465 Mich 432, 438-439 (2001) (“At the time it enacted these guidelines, the Legislature 

opted for a system with many features that were easily recognizable by courts familiar with the 

format previously employed in Michigan. . . . Yet it is apparent that the Legislature has provided 

new ground rules.”). 

For all of these reasons, PRV-6 was not intended to be scored in this case. 

Remedy

The erroneous scoring of PRV-5 and PRV-6, and OV 13 increased Mr. Gibbs’ total 

guidelines range from the correct cell of C-III, to the resulting range of D-IV. The error inflated the 

guidelines range from 81-135 months to 126-210 months.11 The Court then sentenced Mr. Gibbs at 

the very top of this incorrect range, to a minimum prison term of 17.5 years. Because the error in 

scoring the guidelines violated Mr. Gibbs’ state and federal due process rights to be sentenced 

 

11 Assuming that the Court is not willing not take into account the error in scoring related to OV 13, 

the correct guidelines range would be 108-180 months. Mr. Gibbs’ current 210 month sentence still 

represents an upward departure of 2.5 years from the correct range. 

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19

accurately and consistently with the law, he is entitled to be resentenced within the correct range. 

Francisco, 474 Mich at 89-92. 

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STATE OF MICHIGAN

IN THE COURT OF APPEALS

Cover Sheet

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Filing Party

Filing Party Last Name or Business/Entity/Agency Name

GIBBS CHARLES PHILLIP

Filing Party First Name M.I.

Address (Street 1, Street 2, City, State, and ZIP Code)

Attorney Last Name

Robinson

Attorney First Name M.I. P Number

Brandy Y 66895

Address(Street 1, Street 2, City, State, and ZIP Code)

645 Griswold Street

Suite 3300

Detroit MI 48226

Attorney Telephone Number

(313)256-9833

Summary of Items Filed

 Filing Doc Total

Type Filename/Description Fee Fee This Filing

 Correspondence Status Update (With Attachments) $5.00 ---- $5.00

 3% Service Fee: 

Total All Filings: 

$0.15

Fee Substitute/Alternate Payment $5.15

Reason:

X Appointed Counsel

Motion To Waive Fee

Fees Waived in this Case

MI InterAgency Transfer

No Fee per MCR 7.203(F)(2)

Filer Office Use Only: 25680

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

306124 - 275021

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1424 Filed 04/22/15 Page 192 of 222
 RECEIVED by Michigan Court of Appeals 7/25/2012 5:28:26 PM

Case Name: PEOPLE OF MI V PHILLIP CHARLES GIBBS

On , one copy of the following documents: 7/25/2012

Correspondence Status Update (With Attachments)

was delivered to the persons listed below:

Date Signature

7/25/2012 /s/Brandy Y. Robinson

 Bar Delivery 

 Number Name Method Service Address

P- AO, SADO E-Serve ao@sado.org

P- Prosecutor,

Genesee County

E-Serve vhaley@co.genesee.mi.us

P- 66895 Robinson, Brandy Y E-Serve brobinson@sado.org

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Proof of Service

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1425 Filed 04/22/15 Page 193 of 222
STATE APPELLATE DEFENDER OFFICE 

Detroit 

DAWN VAN HOEK 

DIRECTOR 

JONATHAN SACKS 

DEPUTY DIRECTOR 

www.sado.org 

Client calls: 313.256.9822 

MAIN OFFICE: 

PENOBSCOT BLDG., STE 3300 

645 GRISWOLD 

DETROIT, MI 48226-4281 

Phone: 313.256.9833 • Fax: 313.965.0372 

LANSING OFFICE: 

101 N. WASHINGTON, 14TH FLOOR 

LANSING, MI 48913-0001 

Phone: 517.334.6069 • Fax: 517.334.6987 

July 25, 2012 

Clerk of the Court 

Michigan Court of Appeals 

Suite 800 

201 West Big Beaver 

Troy, MI 48084 

 Re: People v Phillip Charles Gibbs

 Court of Appeals No. 306124 

 Lower Court No. 11-28140FC 

Dear Clerk: 

 This case was remanded to the Genesee County Circuit Court on June 20, 2012. In accordance 

with this Court’s directive, a trial court motion was timely filed in order to initiate the remand 

proceedings. During the motion hearing on July 16, 2012, the trial judge denied Mr. Gibbs’ motion for 

new trial and his motion for resentencing. An order was not immediately issued by the court. 

 Counsel only received a copy of the signed order yesterday [July 24, 2012]. As requested in the 

Court’s recent letter, a copy of that order is enclosed, along with a faxed copy of the July 24, 2012 

stenographer’s certificate filed by the court reporter. Mr. Gibbs intends to file a post-remand brief once 

the transcript of the hearing is filed. 

 Please feel free to contact me with additional questions. 

 Sincerely, 

 

 /s/ Brandy Y. Robinson 

 Brandy Y. Robinson 

 Assistant Defender 

BYR/LAL 

Enclosures 

cc: Genesee County Prosecutor 

 File ·25680 

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 RECEIVED by Michigan Court of Appeals 8/22/2012 1:10:23 PM

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Cover Sheet

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Filing Party

Filing Party Last Name or Business/Entity/Agency Name

GIBBS CHARLES PHILLIP

Filing Party First Name M.I.

Address (Street 1, Street 2, City, State, and ZIP Code)

Attorney Last Name

Robinson

Attorney First Name M.I. P Number

Brandy Y 66895

Address(Street 1, Street 2, City, State, and ZIP Code)

645 Griswold Street

Suite 3300

Detroit MI 48226

Attorney Telephone Number

(313)256-9833

Summary of Items Filed

 Filing Doc Total

Type Filename/Description Fee Fee This Filing

 Brief Supplemental Brief After Remand $5.00 ---- $5.00

 3% Service Fee: 

Total All Filings: 

$0.15

Fee Substitute/Alternate Payment $5.15

Reason:

X Appointed Counsel

Motion To Waive Fee

Fees Waived in this Case

MI InterAgency Transfer

No Fee per MCR 7.203(F)(2)

Filer Office Use Only: 25680

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

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to register as a user of the electronic filing system.

306124 - 279684

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1428 Filed 04/22/15 Page 196 of 222
 RECEIVED by Michigan Court of Appeals 8/22/2012 1:10:23 PM

Case Name: PEOPLE OF MI V PHILLIP CHARLES GIBBS

On , one copy of the following documents: 8/22/2012

Brief Supplemental Brief After Remand

was delivered to the persons listed below:

Date Signature

8/22/2012 /s/Lisa Ann Lamarre

 Bar Delivery 

 Number Name Method Service Address

P- AO, SADO E-Serve ao@sado.org

P- Prosecutor,

Genesee County

E-Serve vhaley@co.genesee.mi.us

P- 66895 Robinson, Brandy Y E-Serve brobinson@sado.org

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Proof of Service

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1429 Filed 04/22/15 Page 197 of 222
Approved, Michigan Court of Appeals 

LOWER COURT 

Genesee County Circuit Court 

Electronically Filed

BRIEF COVER PAGE

CASE NO. 

Lower Court 11-28140FC

Court of Appeals 306124

 

 (Short title of case) 

Case Name: People v. Phillip Charles Gibbs

 

1. Brief Type (select one): ☒ APPELLANT(S)

☐ CROSS-APPELLANT(S)

☐ APPELLEE(S)

☐ CROSS-APPELLEE(S)

☐ REPLY

☐ AMICUS

☐ OTHER [identify]: 

2. This brief is filed by or on behalf of [insert party name(s)]: Phillip Charles Gibbs

3. ☐ This brief is in response to a brief filed on by . 

4. ORAL ARGUMENT: ☒ REQUESTED ☐ NOT REQUESTED

5. ☐ THE APPEAL INVOLVES A RULING THAT A PROVISION OF THE CONSTITUTION, A STATUTE, 

RULE OR REGULATION, OR OTHER STATE GOVERNMENTAL ACTION IS INVALID. [See MCR 7.212(C)(12) to determine if this applies.] 

6. As required by MCR 7.212(C), this brief contains, in the following order: [check applicable boxes to verify] 

☒ Table of Contents [MCR 7.212(C)(2)] 

☒ Index of Authorities [MCR 7.212(C)(3)] 

☒ Jurisdictional Statement [MCR 7.212(C)(4)] 

☒ Statement of Questions [MCR 7.212(C)(5)] 

☒ Statement of Facts (with citation to the record) [MCR 7.212(C)(6)] 

☒ Arguments (with applicable standard of review) [MCR 7.212(C)(7)] 

☒ Relief Requested [MCR 7.212(C)(9)] 

☒ Signature [MCR 7.212(C)(9)] 

7. This brief is signed by [type name]: Brandy Y. Robinson 

 Signing Attorney’s Bar No. [if any]: (P66895)

(10/06) E-File Brief Cover Page MCR 7.212(C)

 

 RECEIVED by Michigan Court of Appeals 8/22/2012 1:10:23 PM

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1430 Filed 04/22/15 Page 198 of 222
STATE OF MICHIGAN 

 IN THE GENESEE COUNTY CIRCUIT COURT

PEOPLE OF THE STATE OF MICHIGAN

 Court of Appeals No. 306124 

 Plaintiff-Appellee 

 Lower Court No. 11-28140FC 

-vs- 

 Honorable Judith A. Fullerton

PHILLIP CHARLES GIBBS

 Defendant-Appellant. 

______________________________________/ 

GENESEE COUNTY PROSECUTOR

Attorney for Plaintiff-Appellee 

______________________________________ 

BRANDY Y. ROBINSON (P66895) 

Attorney for Defendant-Appellant 

______________________________________ 

DEFENDANT-APPELLANT’S

 SUPPLEMENTAL BRIEF AFTER REMAND

 

STATE APPELLATE DEFENDER OFFICE 

BY: BRANDY Y. ROBINSON (P66895) 

 Assistant Defender 

 3300 Penobscot Building 

 645 Griswold 

 Detroit, Michigan 48226 

 (313) 256-9833 

 RECEIVED by Michigan Court of Appeals 8/22/2012 1:10:23 PM

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1431 Filed 04/22/15 Page 199 of 222
TABLE OF CONTENTS 

TABLE OF AUTHORITIES ....................................................................................................i 

STATEMENT OF JURISDICTION ...................................................................................... ii

STATEMENT OF QUESTIONS PRESENTED ................................................................. iii

STATEMENT OF FACTS ....................................................................................................... 1

I. THE TRIAL COURT VIOLATED MR. GIBBS’ SIXTH AMENDMENT RIGHT TO 

A PUBLIC TRIAL BY CLOSING THE COURTROOM AND EXCLUDING 

MEMBERS OF HIS FAMILY FROM JURY SELECTION. .......................................... 3

II. BECAUSE THE COURT BELOW MADE THREE GUIDELINES-SCORING 

MISTAKES, AND CORRECTING THE MISTAKES WOULD SUBSTANTIALLY 

REDUCE THE GUIDELINES RANGE, MR. GIBBS MUST BE RESENTENCED.. 7

SUMMARY AND RELIEF ....................................................................................................... 9

BYR*Brief After Remand - TRIM.docx*25680 August 22, 2012 

Phillip Charles Gibbs 

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1432 Filed 04/22/15 Page 200 of 222
i

TABLE OF AUTHORITIES 

CASES 

Gannet Co v DePasquale, 443 US 368; 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979) .......................................... 4 

Gibbons v Savage, 555 F3d 112 (CA 2, 2009) .............................................................................................. 5, 6 

People v Carines, 460 Mich 750; 597 N.W.2d 130 (1999) ................................................................................ 4 

People v Vaughn, 491 Mich 642 (2012) ......................................................................................................... 5, 6 

Presley v Georgia, US 209; 130 S Ct 721; 175 L. Ed. 2d 675 (2010). .................................................. 3, 4, 5 

Press-Enter Co v Superior Court of California, Riverside County, 464 US 501 (1984) ......................................... 4 

Press-Enterprise Co v Superior Court, 478 US 1; 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1980) .............................. 4 

Waller v Georgia, 467 US 39; 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) .................................................... 3, 4 

 CONSTITUTIONS, STATUTES, COURT RULES

MCL 750.529 ...................................................................................................................................................... 1 

MCL 750.530 ...................................................................................................................................................... 1 

MCL 777.56(1) ................................................................................................................................................... 8 

MCL 777.56(1)(d) .............................................................................................................................................. 7 

 

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ii

STATEMENT OF JURISDICTION 

 Defendant-Appellant was convicted in the Genesee County Circuit Court by jury trial and a 

Judgment of Sentence was entered on August 15, 2011. A Claim of Appeal was filed on September 

16, 2011 by the trial court pursuant to the indigent defendant's request for the appointment of 

appellate counsel dated September 6, 2011, as authorized by MCR 6.425(F)(3). This Court has 

jurisdiction in this appeal as of right provided for by Mich Const 1963, art 1, §20, pursuant to MCL 

600.308(1); MCL 770.3; MCR 7.203(A), MCR 7.204(A)(2). 

 

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iii

STATEMENT OF QUESTIONS PRESENTED 

I. DID THE TRIAL COURT VIOLATE MR. GIBBS’ SIXTH AMENDMENT RIGHT TO A 

PUBLIC TRIAL BY CLOSING THE COURTROOM AND EXCLUDING MEMBERS OF 

HIS FAMILY FROM JURY SELECTION?

Trial Court answers, "No". 

Defendant-Appellant answers, "Yes". 

II. BECAUSE THE COURT BELOW MADE THREE GUIDELINES-SCORING 

MISTAKES, AND CORRECTING THE MISTAKES WOULD SUBSTANTIALLY 

REDUCE THE GUIDELINES RANGE, MUST MR. GIBBS BE RESENTENCED?

Trial Court answers, "No". 

Defendant-Appellant answers, "Yes". 

 RECEIVED by Michigan Court of Appeals 8/22/2012 1:10:23 PM

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1

STATEMENT OF FACTS 

On July 7, 2011, following a five-day trial before the Honorable Judith A. Fullerton of the 

Genesee County Circuit Court, a jury convicted Defendant-Appellant Phillip Charles Gibbs of two 

counts of armed robbery,1 one count of unarmed robbery,2 and one count of conspiracy to commit 

armed robbery3 arising out of the hold-up of three people at a Flint pawn shop. [Trial 7/7/11, p 59-

60]. At sentencing, Mr. Gibbs was ordered to serve concurrent sentences at the very top of his 

guidelines of (1) 17.5 years to 30 years imprisonment for the armed robbery and conspiracy charges, 

and (2) 100 months to 15 years imprisonment for unarmed robbery. [Sentence 8/15/11, p 25-26]. 

As part of his appeal of right, Mr. Gibbs timely filed a brief on appeal with this Court, along 

with a motion to remand on May 23, 2012. The Court granted the remand request in an order dated 

June 20, 2012. 6/20/12 Order of the Court of Appeals, Appendix A. The order authorized Mr. Gibbs to 

move for a new trial and for resentencing before the trial court. In non-permissive language, it also 

indicated that the trial court “shall conduct an evidentiary hearing based on the closure of the 

courtroom during voir dire.” Id. Mr. Gibbs timely filed the above-referenced motions with the trial 

court and scheduled the matter for hearing. 

On July 16, 2012, the undersigned counsel appeared on Mr. Gibbs’ behalf at the motion 

hearing. There, the trial court acknowledged that indeed, once jury selection begins, it is her policy 

to not allow any persons to enter or leave the courtroom. [Hearing 7/16/12, p 6]. She disclaimed 

any duty on her part to “troll in the halls for spectators,” or go out “and lasso [people] with a rope” 

to bring them in, but reaffirmed that “if someone comes after we’ve started selecting the jury, they 

will not be allowed in, that’s absolutely right.” [Hearing 7/16/12, p 7, 9]. In her judgment, “If that’s 

 

1

 MCL 750.529. 

2

 MCL 750.530. 

3

 750.157a. 

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2

a violation, then [she] violated.” [Hearing 7/16/12, p 8]. With that, Judge Fullerton declined to hold 

the evidentiary hearing or grant Mr. Phillips a new trial on that basis. [Hearing 7/16/12, p 14-15]. 

As to the request for resentencing, the government tendered no evidence to substantiate its 

claim that Mr. Gibbs was on bond for a juvenile misdemeanor when he committed the sentencing 

offenses. It instead rested on its legal arguments and noted that resentencing would not be required 

if the court were inclined to give the same sentence. [Hearing 7/16/12, p 17]. Nevertheless, the 

Court found that as to PRV 6, Mr. Phillips was “obviously related” to the criminal justice system 

between the date of his guilty plea and the acquisition of new charges. [Hearing 7/16/12, p 18]. 

She also concluded that, in her judgment, PRV-5 was correctly scored for the prior misdemeanor 

conviction, though she did not articulate a reason underlying this conclusion. 

Presently incarcerated, this is Mr. Gibbs’ supplemental brief after remand. 

 

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3

ARGUMENT 

I. THE TRIAL COURT VIOLATED MR. GIBBS’ SIXTH 

AMENDMENT RIGHT TO A PUBLIC TRIAL BY CLOSING 

THE COURTROOM AND EXCLUDING MEMBERS OF 

HIS FAMILY FROM JURY SELECTION. 

Mr. Gibbs relies primarily upon the previously-filed brief to articulate his position on this 

issue. He adds, however, that the trial court seemed to acknowledge that closing the courtroom was 

improper, though it seemed far less concerned with the consequences of taking such a position. 

Notwithstanding the court’s view on the wisdom of the policy, Mr. Gibbs reiterates that “the 

requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt 

with and not unjustly condemned, and that the presence of interested spectators may keep his triers 

keenly alive to a sense of their responsibility and to the importance of their functions. . . .” Waller v 

Georgia, 467 US 39, 46 (1984) (quoting In re Oliver, supra at 270, n 25). The point is particularly welltaken where, as here, it was members of Mr. Gibbs’ immediately family that were excluded from the 

courtroom. 

Moreover, Mr. Gibbs continues to emphasize the US Supreme Court’s admonishment to 

lower tribunals on this point in Presley v Georgia, US 209; 130 S Ct 721, 725 (2010). Of course, in that 

decision, the United States Supreme Court noted unequivocally that the right to an open courtroom 

applies to the examination of prospective jurors. Id (characterizing the right to a public trial during 

voir dire as well-settled). This holding does not create a new right; it simply re-affirms what the Court 

recognized 28 years ago in Waller v Georgia, supra.4 The beneficiary of the right to a public trial is both 

the accused and the public-at-large. The right is grounded in the Sixth Amendment, Gannet Co v 

 

4

 Among the values furthered by the public trial guarantee are: (1) to ensure a fair trial; (2) to remind the prosecutor 

and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to 

come forward; and (4) to discourage perjury. Waller, supra at 46-47. 

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4

DePasquale, 443 US 368, 380 (1979), as well as the First Amendment. See Press-Enterprise Co v Superior 

Court, 478 US 1 (1980). 

Presley reminds us that the selection of a jury is itself a matter of importance, “not simply to 

the adversaries, but to the criminal justice system.” Presley, supra at 724-25 (quoting Press-Enterprise 

Co, supra at 505.) The Presley majority used strong language, declaring that under the Court’s “clear 

precedents,” it was “so well settled that the Sixth Amendment right extends to jury voir dire that this 

Court may proceed by summary disposition.” Id. at 722–24. The tenor of the opinion demonstrates 

the Court’s frustration with repeated failures to abide by its holdings. 

Presley reemphasized that “[t]rial courts are obligated to take every reasonable measure to 

accommodate public attendance at criminal trials,” including at jury selection. Id. at 724. What is 

obvious from the Court’s discussion is that the first and foremost “obligation” is the duty to ensure 

the courtroom is open and not unduly restricted by staff or court officers. Furthermore, given the 

purposes of the public trial right articulated in Waller, it follows that the “integrity and public 

reputation of the judicial proceedings” is damaged when jury selection is closed to the public. People v 

Carines, 460 Mich 750 (1999). 

While it is true that the right to a public trial is not absolute and may yield to competing 

interests, the Supreme Court has warned that the justifications for any closure must be compelling: 

[T]he party seeking to close the hearing must advance an overriding interest that is 

likely to be prejudiced, the closure must be no broader than necessary to protect that 

interest, the trial court must consider reasonable alternatives to closing the 

proceeding, and it must make findings adequate to support the closure. 

Waller, supra at 48. It is also axiomatic that the court’s reasons for closing the courtroom must be 

placed on the official record. Press-Enter Co v Superior Court of California, Riverside County, 464 US 501, 

510 (1984) (“The presumption of openness may be overcome only by an overriding interest based 

on findings that closure is essential to preserve higher values and is narrowly tailored to serve that 

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1439 Filed 04/22/15 Page 207 of 222
5

interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine 

whether the closure order was properly entered.”) (emphasis added). 

Even the recent proclamation by the Michigan Supreme Court in People Vaughn recognizes 

that, whereas here, a trial court closes the courtroom without advancing an overriding interest that is 

likely to be prejudiced, the first three prongs of the plain error test are satisfied, given the structural 

nature of such an error. Vaughn, 491 Mich 642 (2012). The Vaughn court ultimately concluded that 

no plain error occurred, however, by basically importing a “triviality” exception developed by the 

Second Circuit into the analysis. Under that exception, the court opined that not every temporary 

instance of unjustified exclusion of the public—no matter how brief or trivial, and no matter how 

inconsequential the proceedings that occurred during an unjustified closure—will require that a 

conviction be overturned. See Vaughn, supra (citing Gibbons v Savage, 555 F3d 112, 120 (CA 2, 2009). 

Further, the Court concluded that, since it is drawn from the public, the very presence of the jury 

venire itself “ lessens the extent to which [the court’s] closure implicates the defendant's public trial 

right because the venire . . . guarantees that the voir dire proceedings will be subject to a substantial 

degree of continued public review.” Respectfully, however, Mr. Gibbs submits that this reasoning is 

flawed, because the prospective jurors are participants in the criminal process itself, and the right to 

a public trial protects the right of those members of the public who are external to that process to 

witness a defendant’s trial. See generally Vaughn, supra Cavanagh J, dissenting (“Although the 

veniremembers are members of the public, if that fact is relevant to the plain-error analysis of the 

structural error at issue in this case, the right to public voir dire guaranteed by Presley loses all 

meaning. Specifically, veniremembers will always be present during voir dire; therefore, under the 

majority’s approach, the prosecution will always be able to argue that the error did not seriously 

affect the fairness, integrity, or public reputation of judicial proceedings independent of the 

defendant’s innocence.”); See also Gibbons, supra at 876 (Parker, J., dissenting). 

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1440 Filed 04/22/15 Page 208 of 222
6

Mr. Gibbs asserts that the evidentiary hearing ordered by this Court is still warranted, and 

asks for the Court to remand the matter for the purpose of making an official record of the reasons 

for the courtroom closure, and to examine the impact thereof on Mr. Gibbs’ family. 

Mr. Gibbs recognizes that this Court is bound by the ruling in Vaughn, but he raises the 

arguments herein in order to preserve the issue for further appellate review. 

 RECEIVED by Michigan Court of Appeals 8/22/2012 1:10:23 PM

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7

II. BECAUSE THE COURT BELOW MADE THREE 

GUIDELINES-SCORING MISTAKES, AND CORRECTING 

THE MISTAKES WOULD SUBSTANTIALLY REDUCE 

THE GUIDELINES RANGE, MR. GIBBS MUST BE 

RESENTENCED. 

Again, given the trial court’s relatively perfunctory treatment of the sentencing issues on 

remand, Mr. Gibbs relies primarily upon his previously-submitted brief in requesting resentencing. 

The trial judge did not examine the plain language and dictates of either PRV-5 or PRV-6 in denying 

the motion for resentencing. Nor did it require the prosecution, as it must, to produce sufficient 

evidence by a preponderance standard to prove that, factually, Mr. Gibbs was “on probation or 

delayed sentence status or on bond awaiting adjudication or sentencing for a misdemeanor,” and 

thus deserving of a 5-point score under PRV-6.5 MCL 777.56(1)(d). To support his argument on 

this point, Mr. Gibbs had presented documentation to the court indicating that a few months before 

committing the sentencing offense, the then-sixteen-year-old defendant was adjudicated responsible 

(by virtue of a plea) for entering without permission in the Genesee County Probate Court (PSR 3). 

Adjudication Order, Appendix B. He was not placed on bond or probation at that time. To the 

 5 A five-point score under PRV-6 is reserved for offenders who already have a “relationship to the criminal 

justice system” at the time crime is committed. MCL 777.56(1): 

(1) Prior record variable 6 is relationship to the criminal justice system. Score prior record 

variable 6 by determining which of the following apply and by assigning the number of 

points attributable to the one that has the highest number of points: 

(a) The offender is a prisoner of the department of corrections or serving a sentence in 

jail .......................................................................................................................... 20 points 

(b) The offender is incarcerated in jail awaiting adjudication or sentencing on a conviction or 

probation violation ................................................................................................ 15 points 

 (c) The offender is on parole, probation, or delayed sentence status or on bond awaiting 

adjudication or sentencing for a felony ................................................................ 10 points 

(d) The offender is on probation or delayed sentence status or on bond awaiting 

adjudication or sentencing for a misdemeanor .................................................. 5 points 

(e) The offender has no relationship to the criminal justice system .......................... .. 0 points 

MCL 777.56(1) (emphasis added). 

 RECEIVED by Michigan Court of Appeals 8/22/2012 1:10:23 PM

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8

contrary, Mr. Gibbs was released to the care and custody of his mother, and remained in her custody 

at the time of the sentencing offense (October 26, 2010). Id at page 1. He did not receive a juvenile 

disposition for this offense until on November 9, 2010, two weeks after the current crimes had been 

committed. 

When the disposition order finally took effect, Mr. Gibbs received a sentence of probation 

that was ultimately suspended in light of the charges in the current case. Such a penalty does not fall 

within the plain language of PRV-6, however. See MCL 777.56(1). And as noted, there is no 

evidence that Mr. Gibbs was on bond during the interim between his adjudication and disposition. 

Therefore, under the facts of this case, a five-point PRV-6 score was factually inappropriate. Mr. 

Gibbs also continues to maintain that, as previously briefed and argued, PRV-6 does not apply to 

juvenile offenders at all. He therefore asks the Court to consider this argument as an alternate 

ground for granting sentencing relief. 

 

 RECEIVED by Michigan Court of Appeals 8/22/2012 1:10:23 PM

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1443 Filed 04/22/15 Page 211 of 222
9

SUMMARY AND RELIEF REQUESTED 

 WHEREFORE, for the foregoing reasons, Defendant-Appellant asks that this 

Honorable Court to vacate his conviction and or grant resentencing. 

 Respectfully submitted, 

 STATE APPELLATE DEFENDER OFFICE

 /s/ Brandy Y. Robinson 

 BY:________________________________________ 

 BRANDY Y. ROBINSON (P66895)

 Assistant Defender 

 3300 Penobscot Building 

 645 Griswold 

 Detroit, Michigan 48226 

 (313) 256-9833 

Dated: August 22, 2012 

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 RECEIVED by Michigan Court of Appeals 2/4/2013 5:56:32 PM

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Cover Sheet

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Filing Party

Filing Party Last Name or Business/Entity/Agency Name

GIBBS CHARLES PHILLIP

Filing Party First Name M.I.

Address (Street 1, Street 2, City, State, and ZIP Code)

Attorney Last Name

Davidson

Attorney First Name M.I. P Number

Randy E 30207

Address(Street 1, Street 2, City, State, and ZIP Code)

645 Griswold Street

Suite 3300

Detroit MI 48226

Attorney Telephone Number

(313)256-9833

Summary of Items Filed

 Filing Doc Total

Type Filename/Description Fee Fee This Filing

 Brief Defendant-Appellant's Supplemental Authority -- MCR 7.212(F) $5.00 ---- $5.00

 3% Service Fee: 

Total All Filings: 

$0.15

Fee Substitute/Alternate Payment $5.15

Reason:

X Appointed Counsel

Motion To Waive Fee

Fees Waived in this Case

MI InterAgency Transfer

No Fee per MCR 7.203(F)(2)

Filer Office Use Only: 25680T-J

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

306124 - 305691

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1451 Filed 04/22/15 Page 219 of 222
 RECEIVED by Michigan Court of Appeals 2/4/2013 5:56:32 PM

Case Name: PEOPLE OF MI V PHILLIP CHARLES GIBBS

On , one copy of the following documents: 2/4/2013

Brief Defendant-Appellant's Supplemental Authority -- MCR 7.212(F)

was delivered to the persons listed below:

Date Signature

2/4/2013 /s/Randy E Davidson

 Bar Delivery 

 Number Name Method Service Address

P- AO, SADO E-Serve ao@sado.org

P- 30207 Davidson, Randy E E-Serve rdavidson@sado.org

P- Prosecutor,

Genesee County

E-Serve vhaley@co.genesee.mi.us

The documents listed above were electronically filed with the Michigan Court of Appeals at the date/time stated in the

left margin. As a recipient of service of these documents, you may wish to go to https://wiznet.wiznet.com/appealsmi

to register as a user of the electronic filing system.

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Proof of Service

Lower Court or Tribunal

GENESEE CIRCUIT COURT

CASE NO.

Year Number Case Type

CIRCUIT: 11 FC

COURT OF APPEALS:

028140

306124

Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1452 Filed 04/22/15 Page 220 of 222
Approved, Michigan Court of Appeals 

LOWER COURT

Genesee County Circuit Court

Electronically Filed

BRIEF COVER PAGE

CASE NO. 

Lower Court 11-28140FC

Court of Appeals 306124

(Short title of case)

Case Name: People v. Phillip Charles Gibbs

1. Brief Type (select 

one): ☒ APPELLANT(S)

☐ CROSS-APPELLANT(S)

☐ APPELLEE(S)

☐ CROSS-APPELLEE(S)

☐ REPLY

☐ AMICUS

☒ OTHER [identify]: Supplemental Authority—MCR 7.212(F)

2. This brief is filed by or on behalf of [insert party name(s)]: Phillip Charles Gibbs

3. ☐ This brief is in response to a brief filed on by . 

4. ORAL ARGUMENT: ☐ REQUESTED ☐ NOT REQUESTED

5. ☐ THE APPEAL INVOLVES A RULING THAT A PROVISION OF THE CONSTITUTION, A 

STATUTE, RULE OR REGULATION, OR OTHER STATE GOVERNMENTAL ACTION IS 

INVALID. 

[See MCR 7.212(C)(12) to determine if this applies.]

6. As required by MCR 7.212(C), this brief contains, in the following order: [check applicable boxes to 

verify]

☐ Table of Contents [MCR 7.212(C)(2)]

☐ Index of Authorities [MCR 7.212(C)(3)]

☐ Jurisdictional Statement [MCR 7.212(C)(4)]

☐ Statement of Questions [MCR 7.212(C)(5)]

☐ Statement of Facts (with citation to the record) [MCR 7.212(C)(6)]

☐ Arguments (with applicable standard of review) [MCR 7.212(C)(7)]

☐ Relief Requested [MCR 7.212(C)(9)]

☐ Signature [MCR 7.212(C)(9)]

7. This brief is signed by [type name]: Randy E. Davidson 

Signing Attorney’s Bar No. [if any]: (P30207)

(10/06) E-File Brief Cover Page MCR 

7.212(C)

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1453 Filed 04/22/15 Page 221 of 222
STATE OF MICHIGAN

IN THE COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN

Court of Appeals No. 306124

Plaintiff-Appellee,

Lower Court No. 11-28140FC

-vsPHILLIP CHARLES GIBBS

Defendant-Appellant.

______________________________________/

DEFENDANT-APPELLANT'S SUPPLEMENTAL AUTHORITY

On Issue I., in United States v Gupta, 699 F3d 682 (CA 2, 11/8/2012), the Second Circuit 

held that the defendant did not forfeit his courtroom closure claim where it did not appear defense 

trial counsel was aware of the closure at the time it happened, and the record was “at best 

undeveloped.” Id, p 689-690. In the present case, the trial court merely stated “if any spectators 

would like to come in they’re welcome but they do have to sit over here by the law clerk, not in the 

middle of the pool” (T I 4). Nothing in the present record shows that defense trial counsel was 

aware that court personnel prevented Mr. Gibbs’ family members from entering the courtroom 

during voir dire.

On Issue II., the United States Supreme Court has agreed to decide whether the Fifth 

Amendment protects a defendant from introduction of pre-arrest, pre-Miranda refusal to answer law 

enforcement questions. Salinas v State, 369 SW3d 176 (Tex Crim App, 2012), cert gtd ___ US ___; 

___ S Ct ___; ___ L Ed 2d ___ (No. 12-246, 1/11/2013).

On Issue III., In re TD, 292 Mich App 678 (2011) was vacated as moot in 493 Mich 873; 

821 NW2d 569 (10/24/2012). Also, in People v Anderson, ___ Mich App ___; ___ NW2d ___ 

(Docket No. 301701, issued 10/23/2012), this Court held that juvenile probation scores under PRV6. Even assuming a defendant’s status as being on bond in a juvenile case would score, the record 

does not show that Mr. Gibbs was on juvenile bond at the time of commission of the sentencing 

offenses.

Respectfully submitted,

STATE APPELLATE DEFENDER OFFICE

/s/ Randy E. Davidson

BY: __________________________________

RANDY DAVIDSON (P30207)

Assistant Defender

Date: February 4, 2013

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Case 2:14-cv-14028-MFL-PJK ECF No. 8-18, PageID.1454 Filed 04/22/15 Page 222 of 222