-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 21, 2015

v No. 319569 Wayne Circuit Court DEMETRIUS AL HUDSON, LC No. 13-007211-FC

Defendant-Appellant.

Before: B ECKERING , P.J., and C AVANAGH and S AAD , JJ.

P ER C URIAM

. Defendant appeals as of right his bench trial convictions of a rmed robbery, MCL 750.529, two counts of assault with intent to do great bodily h arm less than murder, MCL 750.84, and felony-firearm, M CL 750.227b. We affirm.

A woman was using a drive-thru automated teller machine (ATM) at 11:30 a.m., with two small children in her vehicle, when she was targeted by def endant and a juvenile. She first noticed the juvenile walking toward their vehicle. He was wear ing a black hoodie and his hand was in the front pocket, but it was a hot sunny day. After she made eye contact with him, the juvenile stopped and looked back toward some bushes. She looke d too, and saw defendant standing there. Her view was unob structed. Defendant nodded a t the juvenile, and the juvenile quickened his approach toward her vehicle. As she began to pul l away from the ATM, the juvenile pulled out a gun and fired a shot toward her vehicle. As she was driving to a nearby police station, she saw defendant and the juvenile run out of a n alley in front of her vehicle. She then saw them run into a house on Eastwood Street. Subsequentl y, she was able to flag down a police officer. As she was driv en past the house on Eastwood b y a police officer, she saw defendant and the juvenile, as well as a third person, coming o ut of that house. The police officer testified that the victim immediately identified defend ant and the juvenile as the perpetrators. Defendant and the juvenile were arrested. A bla ck hoodie and several weapons were found in the Eastwood house.

On appeal, defendant argues that the evidence was insufficient to establish that he was the person standing by the bushes near the ATM and that he aide d and abetted the juvenile in the commission of the cri mes. We disagree.

“This Court reviews de novo a challenge to the sufficiency of the evidence in a bench trial.” People v Lanzo Constr Co , 272 Mich App 470, 473; 726 NW2d 746 (2006). Considering-2- the evidence in a light most favorable to the prosecution, we d etermine whether the trial court could have found the essential elements of each crime were prov en beyond a reasonable doubt. Id . at 474.

Identity is an essential element of every offense. People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008). “The credibility of identification testim ony is a question for the trier of fact that [this Court] do[es] not resolve anew. Moreover, this Court has stated that positive identification by witnesses may be sufficient to support a conv iction of a crime.” People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000) (internal citation omitted).

Defendant argues that “the evidence failed to show that [he] w as at the scene.” Apparently, defendant is arguing that the victim’s testimony wa s not credible and her identification of him should not have been accepted by the tria l court. But this Court may not interfere with the trier of fact ’s role of determining the cred ibility of identification testimony. See id . In any case, defendant is wrong. The victim testified that she had a clear view of defendant when she was at the ATM, particularly when she looked through her open window directly at him. She saw defenda nt again when he ran out of an alley in front of her vehicle. Then she saw defendant run into the house on Eastwood. When sh e was riding past that house with a police officer, she immediately identified defendant. S he also identified defendant in photographs the police took after they went to investigate the house on Eastwood. And the victim unequivocally testified at trial that defendant was the person she saw standing by the bushes. This evidence, viewed in a light most favorable to the prosecution, was sufficient to establish that defendant was t he person standing near the bushe s by the ATM.

Defendant also argues that the evidence was insufficient to es tablish he acted as an aider and abettor to the juvenile. We disagree. To prove an aiding and abetting theory, the prosecution had to show the following:

“(1) the crime charged was committed by the defendant or some o ther person; (2) the defendant performed acts or gave encouragement that assiste d the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal inte nded its commission at the tim e [the defendant] gave aid and encouragement.” [ People v Robinson , 475 Mich 1, 6; 715 NW2d 44 (2006) (citations omitted).]

“An aider and abettor’s state of mind may be inferred from all the facts and circumstances.” People v Carines , 460 Mich 750, 757; 597 NW2d 130 (1999), quoting People v Turner , 213 Mich App 558, 568; 540 NW2d 728 (1995), overruled in part on ot her grounds People v Mass
, 464 Mich 615 (2001). These can include “a close association be tween the defendant and the principal, the defendant’s par ticipation in the planning or exe cution of the crime, and evidence of flight after the crime.” Turner , 213 Mich App at 569.

Defendant appears to argue that the “nod” given to the juvenil e did not rise to aiding and abetting the commission of the charged crimes. Under the circu mstances of this case, we cannot agree. The victim testified that the juvenile was walking towa rd her vehicle with his hand in the front pocket of his black hoodie. He was wearing a hoodie alth ough it “was scorching hot” and sunny. When she made eye contact with him, the juvenile stoppe d. He only proceeded toward-3- the victim’s vehicle after he l ooked at defendant, who was stan ding near the bushes, and defendant nodded his head at the juvenile. The victim testifie d that defendant “nodded his head okay. Like yes.” Then, she testified, the juvenile “proceeded to come towards us a little faster than he was.” As the victim began to pull away from the ATM, the juvenile fired a gunshot at her vehicle. Defendant and the juvenile then fled the scene to gether and ran to a house on Eastwood.

The evidence, considered in the light most favorable to the pr osecution, shows that defendant partnered up with this juvenile who, because of his a ge, would not appear threatening. They had a plan to rob someone who was using the ATM. The juve nile would use a concealed gun and defendant would act as a lookout for him. But, when th e victim saw the juvenile and looked him in the eyes, the juvenile stopped—apparently reconsi dering. The juvenile looked to defendant who was standing nearby. Defendant directed or encou raged the juvenile to continue with their plan to rob the victim at gunpoint. Inspired, the j uvenile returned his focus to the victim at the ATM, and began walking faster toward her vehicle. When the victim fled, in a show of bravado for defendant’s benefit, the juvenile fired at her vehicle. He then ran away with defendant. They were eventuall y found together at the Eastwood house, with the black hoodie and several guns, and were arres ted. The record evidence suppo rted defendant’s convictions under an aiding and abetting theory.

Next, defendant argues that he was denied due process because the prosecution suppressed material evidence consisting of a videotape showing the victim at the ATM. We disagree.

A determination regarding whether a party was afforded due pro cess is a question of law reviewed de novo. People v Odom , 276 Mich App 407, 421; 740 NW2d 557 (2007). This Court reviews for an abuse of discretion a trial court’s decision whe ther to grant a motion for a new trial. People v Miller , 482 Mich 540, 544; 759 NW2d 850 (2008).

Under Brady v Maryland , 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), the prosecutor must turn over all evidence within its possession th at is favorable to the accused and material to guilt or punishment. In People v Chenault , 495 Mich 142, 150; 845 NW2d 731 (2014), our Supreme Court identifie d the essential components o f a Brady violation as follows:

The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. [ Chenault , 495 Mich at 149-150, quoting Strickler v Greene , 527 US 263, 281-282; 119 S Ct 1936; 144 L Ed 2d 286 (1999).]

“Stated differently, the components of a ‘true Brady violation,’ are that: (1) the prosecution has suppressed evidence; (2) that i s favorable to the accused; and (3) that is material.” Chenault , 495 Mich at 150. To establish the materiality prong, a defendant m ust show prejudice, i.e., a reasonable probability exists that, if the evidence had been di sclosed to the defense, the result of the trial would have been different. Id . (citation omitted).-4- The videotape at issue here was not available prior to the sta rt of trial. The prosecutor explained that he attempted to obtain the videotape from the ba nk, but the bank indicated that it was destroyed and unavailable. The trial proceeded. After the verdict was rendered, the prosecutor informed the trial cou rt that the bank recovered the videotape and it would be provided to the court and to def ense counsel. At sentencing, t he trial court noted that the videotape was provided and, after watching it, the court conclu ded that it contained nothing beneficial to defendant. In fact , the videotape bolstered the victim’s testimony. Specifically, the trial court stated:

It only showed the victim putting her card in the machine and then leaving quickly. So we can’t use it to show that the defendant was either, either participated or did not participate in the crime because [ ] of the nature of the allegations here. That shot wouldn’t have exonerated him or, o r proven him guilty.

But what’s important is that it shows the victim kind of turni ng around and looking to her back which is circ umstantial evidence that there was indeed another offender standing in the bushes participating in or gui ding the commission of the crime. And, and then that sort of goes hand- in-hand with the other evidence that they left together. And then they went int o the same house together after the crime was committed and then were observed c oming out of the house at the same time.

So the - - this video that the defendant and his family are so excited about is of no consequence. It doesn’t help him at all. It doesn’t help him at all.

And, and there certainly was no fault attributable to [the pro secutor] for why that video didn’t come into, to evidence during the trial b ecause it wasn’t available at that moment. But then when it did become availabl e, it became apparent that it wasn’t helpf ul anyway. So it’s a nonargument.

Defendant’s Brady claim fails. The prosecution di d not suppress the videotape, either willfully or inadvertently; it was provided as soon as it becam e available. The videotape was not favorable to defendant; it was neither exculpatory nor impeachi ng. And the videotape was not material to defendant’s guilt or punishment; therefore, he was not prejudiced. Consequently, defendant was not denied due process because of a Brady violation. It follows that defendant’s ineffective assistance of counsel claim premised on his counsel ’s failure to acquire the videotape before trial is also without merit. See Chenault , 495 Mich at 159.

Finally, defendant argues that the trial court improperly scor ed offense variables (OV) 9 and 14. We disagree.

Because defendant objected to the scoring of OV 14 at sentenci ng, this issue is preserved. See MCL 769.34(10). The interpreta tion and application of the sentencing guidelines is reviewed de novo. People v McDonald , 293 Mich App 292, 298; 811 NW2d 507 (2011). Factual determinations must be supported by a preponderance of the evidence and are reviewed for clear error. People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). However,-5- defendant agreed at sentencing that the scoring of OV 9 at 10 p oints was accurate because there were three individuals in the targ eted vehicle; thus, this issu e was waived and any such error extinguished. See People v Carter , 462 Mich 206, 215; 612 NW2d 144 (2000). In any case, neither challenge has merit.

Under OV 14, a trial court must assess 10 points when the defe ndant “was a leader in a multiple offender situation.” MCL 777.44(1)(a). Defendant arg ues that no evidence suggested that he was the leader; rather, it showed that the juvenile was the leader. We disagree. As the trial court noted, the evidence showed that the juvenile looked to defendant for direction or encouragement after he stopped walking toward the victim and, w hen it was given, the juvenile moved forward with their plan. The trial court did not clearly err in scoring OV 14 at 10 points. See Hardy , 494 Mich at 438.

Under OV 9, 10 points must be assessed if there were “2 to 9 v ictims who were placed in danger of physical injury or death.” MCL 777.39(1)(c). At sen tencing, it was agreed by the prosecutor, defense counsel, and the trial court that the evide nce established there were three victims in the vehicle that the juvenile fired a gunshot at—the woman, her son, and her nephew. Further, in rendering its guilty verdict, the court clearly ref erred to these three victims and noted that defendant could have been c harged with three counts of ass ault with intent to do great bodily harm. Thus, defendant’s challeng e to the scoring of OV 9 is wi thout merit. In summary, defendant is not entitled to resentencing.

Affirmed.

/s/ Jane M. Beckering /s/ Mark J. Cavanagh /s/ Henry William Saad