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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 12, 2015

v No. 319320
Kent Circuit Court TEVIN JAMARIOND NERO, LC No. 13-000488-FC

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URPHY and H OEKSTRA , JJ.

P ER C URIAM

.

Following a jury trial, defendant appeals as of right his conv iction for armed robbery, MCL 750.529. Because the prosecutor presented sufficient evide nce to support defendant’s
conviction and defendant was not ent itled to a mistrial, we aff irm.

On December 10, 2012, defendant, Robert Calloway, and Terrance Ashford robbed Christopher Tymczyn. Specifica lly, according to Tymczyn’s test imony, at about 10:00 p.m., three men began to follow him when he got off a bus, so he step ped off the sidewalk, onto the grass, to allow them to pass. Instead one of the men, later id entified as defendant, asked Tymczyn: “Are you scared?” and “Do you want to scrap?” While t hey were talking, Tymczyn noticed that one of the men had a gun, though according to test imony from Ashford and Calloway it was actually a BB gun. Tymczyn told the men he did not want to “scrap” and he continued walking. One of the men continued to harass Tymczyn by asking for his telephone. Tymczyn then started to run, and the three men ran after him. When Tymczyn slowed down, Calloway came up to Tymczyn, punc hed him in the head, and took Tymczyn’s headphones. Ashford also came from behind and “pistol whipped” Tymczyn with a BB gun. Defendant, Ashford, and Calloway then ran away. Tymczyn called 911. Defe ndant and Ashford were soon stopped by the police. Tymczyn identified defendant and Ashfor d as two of the men involved in
the attack.

On appeal, defendant argues insufficient evidence was presente d at trial to convict him of armed robbery. In particular, defendant does not dispute wheth er an armed robbery was committed, nor does he deny that he was with Ashford and Callow ay at the time of the robbery. Instead, defendant’s contention on appeal is that he did not as sist or encourage the commission of the crime. He maintains he was merely present for the robbe ry and that, even under an aiding and abetting theory, his mere presence cannot support an armed robbery conviction.-2- We review a challenge to the sufficiency of the evidence in a criminal case de novo. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). The test for det ermining the sufficiency of the evidence is “whether the evidence, viewed in a light most favorable to the [prosecution], would warrant a reasonable juror in finding guil t beyond a reasonable doubt.” People v Nowack , 462 Mich 392, 399; 614 NW2d 78 (2000). “Circumstantial evide nce and the
reasonable inferences that arise from that evidence can constit ute satisfactory proof of the
elements of the crime.” People v Henderson , 306 Mich App 1, 9; 854 NW2d 234 (2014). Further, this Court defers to the trier of fact’s determination s regarding the weight of the evidence or the credibility of witnesses, and we resolve any co nflicts in the evidence in favor of the prosecution. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

“The elements of armed robbery are: (1) an assault and (2) a felonious taking of property from the victim’s presence or person (3) while the defendant is armed with a weapon.” People v
Smith , 478 Mich 292, 319; 733 NW2d 351 (2007). A person may be held liable for armed robbery under an aiding and abetting theory. See MCL 767.39. Specifically, “[o]ne who procures, counsels, aids, or abets in the commission of an offe nse may be convicted and punished as if he committed the offense directly.” People v Norris , 236 Mich App 411, 419; 600 NW2d 658 (1999), citing MCL 767.39.

The elements of aiding and abetting are (1) the crime charged w as committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3 ) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave a id and encouragement. [ People v Bennett , 290 Mich App 465, 472; 802 NW2d 627 (2010) (citation omitted) (alteration in original)].

Aiding and abetting encompasses “any type of assistance given t o the perpetrator of a crime by words or deeds that are intended to encourage, support, or inci te the commission of that crime.” People v Moore , 470 Mich 56, 63; 679 NW2d 41 (2004). In contrast, “[m]ere pr esence, even with knowledge that an offense is about to be committed or is b eing committed, is insufficient to
establish that a defendant aided or assisted in the commission of the crime.” Norris , 236 Mich App at 419-420. An aider and abettor’s state of mind may be in ferred from all the facts and
circumstances. People v Carines , 460 Mich 750, 758; 597 NW2d 130 (1999). “Factors that may
be considered include a close a ssociation between the defendant and the principal, the defendant's participation in the planning or execution of the c rime, and evidence of flight after
the crime.” Id. (citation omitted).

In this case, although defendant d id not personally take Tymcz yn’s property or conduct the assault, there is nonetheless sufficient evidence to suppor t the conclusion that he was not merely present but rather an active participant in events, and he is thus guilty of aiding and abetting the armed robbery. That is, before the robbery, defen dant was well aware of Ashford’s intent because Ashford suggested to defendant and Calloway that they “do something stupid” and rob someone. Knowing Ashfor d’s intent, defendant participa ted in following Tymczyn and he confronted Tymczyn, asking him whether he was “scared” and i f he wanted to “scrap.” Indeed, following Ashford’s suggestion to rob someone, it was d efendant who first made contact with Tymczyn. Having initiated contact, defendant remained whi le Ashford and Calloway-3- assaulted Tymczyn, and defendant then fled with them while they were in possession of Tymczyn’s property. Further, while in their testimony Ashford and Calloway tried to downplay defendant’s involvement in the crime, Ashford testified at tria l that when he pleaded guilty to unarmed robbery in connection with these events, he told the pr esiding judge that defendant helped him in the robbery. Viewing the evidence in a light mos t favorable to the prosecution, and drawing all reasonable infer ences in support of the verdict , a reasonable juror would be warranted in finding beyond a reasonable doubt that defendant p erformed acts or gave encouragement that assisted in the commission of the crime and that, at the time of assistance, he intended the commission of the crime or had knowledge the princ ipal intended its commission.

See Nowack , 462 Mich at 399-400. Defendant’s conviction is supported by sufficient evidence.

Next, defendant claims he was denied a fair trial because the trial court failed to declare a mistrial after a juror revealed an extraneous influence. In pa rticular, defendant maintains that the trial court should have declared a mistrial after a juror revea led that that she had been “frightened” when she and the other jurors were approached near the elevator by three men who commented in the jurors’ heari ng on the racial composition of t he jury. Alternatively, defendant asserts that, at a minimum, the juror in question should have b een excused or the other jurors questioned.

At trial, although defendant did not specifically move for a m istrial, he objected to “going with this jury panel.” Assuming this objection can be seen as a request for a mistrial, we review a trial court’s decision to grant or deny a mistrial for an abu se of discretion. People v Alter , 255 Mich App 194, 205; 659 NW2d 667 (2003). Likewise, we review fo r an abuse of discretion a trial court’s decision regarding whether to remove jurors. People v Unger , 278 Mich App 210, 259; 749 NW2d 272 (2008). “An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outco mes.” Id.

“A mistrial is warranted only wh en an error or irregularity in the proceedings prejudices the defendant and impairs his ab ility to get a fair trial.” People v Waclawski , 286 Mich App 634, 708; 780 NW2d 321 (2009) (citation omitted). A defendant’s rig ht to a fair trial includes a right to a jury that is “fair and impartial.” People v Budzyn , 456 Mich 77, 88; 566 NW2d 229 (1997). “Where the jury considers extraneous facts not introduced in ev idence, this deprives a defendant of his rights of conf rontation, cross-examination, and assistan ce of counsel embodied in the Sixth
Amendment.” Id . Consequently, “[t]he trial c ourt must take appropriate steps to ensure that jurors will not be exposed to information or influences that co uld affect their ability to render an impartial verdict based on the evidence admitted in court.” People v Jackson , 292 Mich App 583, 592; 808 NW2d 541 (2011).

However, a new trial is not required every time a juror has be en placed in a compromising situation. Id. at 592-593. Rather, a defendant requesting reversal based on extraneous influences on the jury must establish two points. “ First, the defendant must prove that the jury was exposed to extraneous influences. Second, th e defendant must establish that these extraneous influences created a real and substantial poss ibility that they could have affected the jury’s verdict.” Budzyn , 456 Mich at 88-89 (internal citations omitted). “Generally, in proving this second point, the defendant will demonstrate th at the extraneous influence is substantially related to a material aspect of the case and that there is a direct connection between
the extrinsic material an d the adverse verdict.” Id. at 89.-4- In this case, the record shows th at, after the first day of tr ial, while the jury was waiting for the elevator, a group of thr ee African-American men approac hed them. One of the men asked, “What is this, the eighteen hundreds? There’s only one black person on the jury.” Juror #14 felt intimidated by this statement and brought it to the co urt’s attention. The juror was questioned by the prosecution and defendant. The juror became emotional when recounting the incident, but she told the trial court that she could continue to be a juror in this case and she
indicated that none of the other jurors appeared to have been i ntimidated by the incident. After speaking with Juror #14, the trial court asked all the jurors w hether they had any additional concerns that would affect them from being fair and impartial a nd none of the jurors raised their hands or otherwise expressed any concerns.

On these facts, the trial court did not abuse its discretion b y failing to grant a mistrial, or to take other action, based on Ju ror #14’s disclosure to the co urt. Specifically, the jury was exposed to an extraneous influence insofar as the encounter occ urred outside the trial court proceedings, but the statement was not related to a material as pect of the case and, viewed objectively, this isolated incident did not create a real and s ubstantial possibility of affecting the jury’s verdict. See Budzyn , 456 Mich at 89 & n 10. The men who approached the jury made no comment on the evidence or fact s relating to defendant’s guilt, and there was no indication that the armed robbery was motivated by race or that race otherwise played a role during trial. Most importantly, the questioning of J uror #14 and the jury did not reveal any information or circumstances to suggest that the jury’s ability to render a fa ir and impartial verdict had been compromised. Although Juror #14 appeared to be emotional when she recounted the statement to the trial court, she was composed at the end of the question ing and indicated to the trial court that she could continue as a juror. She told the trial court t hat no other juror appeared intimidated by the statement after it was made, and no juror ra ised a hand in response to the trial court’s question. Under these circumstances, the trial court d id not abuse its discretion when it
failed to declare a mistrial.

Affirmed.

/s/ Michael J. Kelly /s/ William B. Murphy
/s/ Joel P. Hoekstra