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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

June 26, 2018

v No. 335387

Oakland Circuit Court

DAVID EMMANUEL WILLIAMS, LC No. 2015-256304-FC

Defendant-Appellant.

Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

PER CURIAM.

Defendant was convicted by a jury of conspiracy to commit armed robbery, MCL 

750.157a and MCL 750.529. The jury acquitted defendant of three counts of armed robbery, 

MCL 750.529. The trial court sentenced defendant to 70 months to 25 years’ imprisonment. He 

appeals as of right, and we affirm. 

Defendant’s conviction arises from the robbery of a restaurant. The robbery was 

committed after the restaurant had closed for the evening, while three employees were still 

present. Defendant, who was previously employed at the restaurant, and two codefendants, 

Deahje Robinson and William Griffin, were each charged with three counts of armed robbery 

and one count of conspiracy to commit armed robbery. The prosecution theorized that defendant 

and Robinson had robbed the restaurant while wearing masks and wielding BB guns and a 

machete, and that Griffin had driven the vehicle to and from the robbery. Video footage from 

the restaurant’s surveillance cameras, as well as surveillance video from the store where 

defendant and his codefendants purchased the masks and guns before the robbery, was presented 

at trial. Blood found on an envelope at the scene matched Robinson’s DNA profile. Robinson 

and Griffin both entered into plea agreements, and Griffin testified for the prosecution, asserting 

that he drove the vehicle to and from the restaurant and that defendant and Robinson entered the 

restaurant and committed the robbery. Defendant testified on his own behalf, admitting that he 

was involved in purchasing the masks and BB guns, but denying that he had conspired to rob the 

restaurant or that he was directly involved in committing the robbery. Although defendant failed 

to provide a notice of alibi defense, MCL 768.20, he was able to present alibi testimony from his 

fiancée and his mother, which indicated that defendant was home with them during the time of 

the robbery. However, because defendant had not filed and served a notice of alibi defense, the 

trial court refused to give the jury the requested instruction on that subject, M Crim JI 7.4 –

“Lack of Presence (Alibi).” But defendant was permitted to fully argue alibi in his closing 
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argument, and the trial court did not indicate to the jurors that they could not consider 

defendant’s alibi defense. Indeed, although the jury convicted defendant of conspiracy to 

commit armed robbery, it acquitted him of the three counts of armed robbery, suggesting perhaps 

that the jurors may have believed the alibi claim.

On appeal, defendant contends that he was denied a fair trial because the trial court 

refused to give the jurors the alibi instruction and that trial counsel was ineffective for failing to 

file a pretrial notice of alibi defense. These arguments fail, considering that defendant simply 

cannot show the requisite prejudice, even assuming that the trial court erred in not instructing the 

jury on alibi.1 

The three counts of armed robbery were charged on the basis of defendant’s participation 

in the robbery at the restaurant; therefore, alibi testimony placing defendant elsewhere at the time 

of the robbery was a key part of the defense to those counts. The jury, however, which heard the 

alibi testimony and defendant’s alibi argument, found defendant not guilty of the three armed 

robbery charges, so no prejudice was incurred with respect to those offenses. In regard to 

conspiracy to commit armed robbery, none of the elements of the crime required defendant’s 

presence at the restaurant during the robbery. See People v Atley, 392 Mich 298, 310-311; 220 

NW2d 465 (1974), overruled in part on other grounds by People v Hardiman, 466 Mich 417; 646 

NW2d 158 (2002); People v Ayoub, 150 Mich App 150, 153; 387 NW2d 848 (1985); M Crim JI 

10.1 (elements of conspiracy charge). In People v Carter, 415 Mich 558, 568-569; 330 NW2d 

314 (1982), overruled in part on other grounds by People v Robideau, 419 Mich 458; 355 NW2d 

592 (1984),2 the Michigan Supreme Court explained:

The gist of the offense of conspiracy lies in the unlawful agreement. The 

crime is complete upon formation of the agreement; in Michigan, it is not 

necessary to establish any overt act in furtherance of the conspiracy as a 

component of the crime. However, a twofold specific intent is required for 

conviction: intent to combine with others, and intent to accomplish the illegal 

objective. 

* * *

It is a settled principle of black-letter law that conspiracy is a crime that is

separate and distinct from the substantive crime that is its object. The guilt or 

innocence of a conspirator does not depend upon the accomplishment of the goals 

of the conspiracy. [Citations and quotation marks omitted.]

 1 We do note that our Supreme Court’s decision in People v McGinnis, 402 Mich 343; 262 

NW2d 669 (1978), would suggest that the trial court erred in the present case, but we have no 

need to reach that particular question.

2 Robideau was subsequently overruled by People v Smith, 478 Mich 292; 733 NW2d 351 

(2007), with respect to the proper double jeopardy analysis as to multiple punishments.
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The Use Note to M Crim JI 7.4 (alibi instruction) provides that “[t]his instruction is not to 

be used when the defendant is charged under circumstances where his presence is not required at 

the time and place of the commission of the crime.” 

Although the prosecution relied in part on the asserted coordination of the perpetrators 

during the robbery as evidencing a conspiracy, the jurors evidently concluded that the prosecutor 

had not proven beyond a reasonable doubt that defendant aided and abetted or directly 

participated as a principal in the robbery. Thus, we surmise that the jury convicted defendant of 

the conspiracy charge on the basis of his statements to police about his codefendants’ plans, 

along with defendant’s admitted conduct prior to the robbery in assisting in the purchase of the 

masks and BB guns. Accordingly, an alibi instruction would not have been of benefit to 

defendant with respect to the conspiracy charge. We also reiterate that defendant was permitted 

to present alibi testimony and to argue alibi in his closing argument. Under these circumstances, 

defendant has failed to show that after examination of the entire record, it affirmatively appears 

that it is more probable than not that the assumed error in not instructing the jury on alibi was 

outcome determinative; there was no miscarriage of justice. People v Lukity, 460 Mich 484, 

495-496; 596 NW2d 607 (1999), citing MCL 769.26 (requiring a miscarriage of justice to 

reverse on instructional error); see also People v Matthews, 163 Mich App 244, 249-250; 413 

NW2d 755 (1987) (finding failure to give alibi instruction harmless because, in part, jury was 

fully apprised of alibi defense). Further, in the context of defendant’s associated claim of 

ineffective assistance of counsel, assuming that trial counsel’s performance was deficient in 

failing to provide a notice of alibi defense, defendant has failed to demonstrate the existence of a 

reasonable probability that, but for counsel’s presumed error, the result of the proceeding would 

have been different. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). In sum, 

reversal is unwarranted.

Finally, defendant argues that the trial court erred by scoring offense variable (OV) 1, 

MCL 777.31, at 15 points. We disagree. With respect to our review of the trial court’s scoring 

of the sentencing variables, our Supreme Court in People v Calloway, 500 Mich 180, 184; 895 

NW2d 165 (2017), observed:

A trial court’s factual determinations must be supported by a 

preponderance of the evidence and are reviewed for clear error. Whether the facts, 

as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., 

the application of the facts to the law, is a question of statutory interpretation, 

which an appellate court reviews de novo. [Citations and quotation marks 

omitted.]

OV 1 concerns the “aggravated use of a weapon,” and 15 points are to be assessed when

“[a] firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an 

immediate battery when threatened with a knife or other cutting or stabbing weapon.” MCL 

777.31(1)(c). “In multiple offender cases, if 1 offender is assessed points for the presence or use 

of a weapon, all offenders shall be assessed the same number of points.” MCL 777.31(2)(b). At 

sentencing, the prosecution argued that the assessment of 15 points was appropriate because one 

of defendant’s codefendants had been assessed 15 points and there was a sufficient evidentiary 

basis for scoring 15 points, given the employment of a gun and a knife or stabbing weapon, the 
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machete. The trial court, finding the trial testimony to be clear, agreed with the prosecution and 

assigned 15 points.

Defendant contends that, while a machete was used during the robbery, there was no 

testimony by any of the employee victims about having a reasonable apprehension of an 

immediate battery when threatened by the machete. However, one employee testified that 

toward the end of the robbery, he got underneath a desk and put a chair between himself and the 

robber with the green mask in order to protect himself from the machete. This testimony 

supported a finding that the employee had a reasonable apprehension of an immediate battery. 

Moreover, as defendant acknowledges, another employee testified that he was poked in the back 

with the machete. When asked whether the gun or machete was used in any way to put him in 

any type of fear, said employee testified that “[t]he machete was poked to my back when they 

were hurrying us inside.” This testimony similarly established a reasonable apprehension of an 

immediate battery. Accordingly, the trial court did not err by assessing 15 points for OV 1. 

Affirmed. 

/s/ William B. Murphy 

/s/ Amy Ronayne Krause