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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 13, 2016

v No. 327461 Macomb Circuit Court JALAN M. MOORE, LC No. 2014-002623-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 327821 Macomb Circuit Court JUWANE OMAR GARRELL, LC No. 2014-002622-FC

Defendant-Appellant.

Before: C AVANAGH , P.J., and S AAD and F ORT H OOD , JJ.

P ER C URIAM

. In these consolidated appeals 1 following a consolidated jury trial, defendants appeal as of right their convictions of assault with intent to rob while arm ed, MCL 750.89, under aiding and abetting theories. We affirm.

On April 29, 2014, at about 10:30 p.m., the victim was walking home after work when a man approached her from behind, turned her around by the should ers, and demanded her purse. The man pulled at her purse, but the victim held onto it. He t hen lifted up his shirt and showed the victim a gun, which she described as a black handgun. The victim eventually fell to the

1 See People v Moore ; People v Garrell , unpublished order of the Court of Appeals, entered April 20, 2016 (Docket Nos. 327461, 327821).-2- ground and was then dragged by the assailant, causing her jeans to be ripped. During the assault, the victim noticed a vehicle with its lights on, parked on the same side of the street about a block or 35 feet away, and waved her arms, screaming for help. Howev er, the vehicle drove rapidly past her, stopping at a nearby stop sign. The assailant ran to the vehicle, got in the front passenger side, and the vehicle sped away. The victim ran to a nearby store and the police were called.

Soon after, the vehicle described by the victim was stopped by police. Defendant Garrell was driving, defendant Moore was in the backseat, and Markuz Al more—who fit the description of the assailant and was eventual ly identified by the victim—wa s the front seat passenger. All three are cousins. A handgun case and a black handgun, which w as registered to defendant Garrell’s girlfriend, were found in the trunk. There was a pan el in the backseat that folded down, allowing access to the trunk from the backseat. A magazine for the handgun was found in the glove box, bullets were found in a cigarette box located in a p ocket behind the front passenger seat, and a small handgun holder was found in the backseat wher e defendant Moore had been sitting. Defendant Garrell’s gir lfriend, who also owned the ca r, testified that she had left the gun and related items in the car as they were found.

Docket No. 327461

On appeal, defendant Moore argue s that the evidence presented at trial was insufficient to convict him of assault with intent to rob while armed under an aiding and abetting theory. We disagree.

“Due process requires that, to sustain a conviction, the evide nce must show guilt beyond a reasonable doubt.” People v Harverson , 291 Mich App 171, 175; 804 NW2d 757 (2010). This Court reviews de novo a challenge to the sufficiency of the evi dence. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). We consider the eviden ce in the light most favorable to the prosecutor to determine whether a rational tri er of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Hoffman , 225 Mich App 103, 111; 570 NW2d 146 (1997). Direct and circumstant ial evidence, as well as all reasonable inferences that may be drawn, are considered to dete rmine whether the evidence was sufficient to sustain the defendant’s conviction. People v Hardiman , 466 Mich 417, 429; 646 NW2d 158 (2002).

An accomplice to a crime may be convicted as if he actually co mmitted the crime under the theory that he aided and abetted the crime. People v Robinson , 475 Mich 1, 5-6; 715 NW2d 44 (2006), quoting MCL 767.39. A conviction under an aiding an d abetting theory requires that “(1) the crime charged was committed by the defendant or some o ther person; (2) the defendant performed acts or gave encouragement that assisted the commissi on of the crime; and (3) the defendant intended the commissi on of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encour agement.” Id . at 6 (internal quotations and citations omitted).

Here, defendant Moore argues that the evidence only showed tha t he was sitting in the backseat of a vehicle that allege dly drove an atte mpted armed r obber from the crime scene which was insufficient to support his conviction. It is true that a defendant’s mere presence is-3- insufficient to establish that he aided and abetted the commiss ion of the crime, even if he had knowledge that an offense was about to be, or is being, committ ed. People v Norris , 236 Mich App 411, 419-420; 600 NW2d 658 (1999). However, reasonable inf erences from the evidence supported the jury’s conclusion that defendant Moore “performed acts or gave encouragement” to assist Almore in attempting to steal the victim’s purse at g unpoint, and that he “intended” the attempted robbery or “had knowledge” that Almore intended the a ttempted robbery at the time he would have helped Almore.

“Aiding and abetting” includes any actions “that may support, encourage, or incite the commission of a crime.” People v Wilson , 196 Mich App 604, 614; 493 NW2d 471 (1992). “An aider and abettor’s state of mi nd may be inferred from all the facts and circumstances.” People v Carines , 460 Mich 750, 758; 597 NW2d 130 (1999), quoting People v Turner , 213 Mich App 558, 568; 540 NW2d 728 (1995). Some factors that may be consid ered include the “close association between the defendant and the principal, the defend ant’s participation in the planning or execution of the crime, and evidence of flight after the cri me.” Id . at 569. Defendants who “were merely the ‘lookout’” can be convicted of aiding and abet ting. People v Davenport , 122 Mich App 159, 162; 332 NW2d 443 (1982) (citation omitted).

Here, the circumstantial evidence supported a conclusion that defendants Garrell and Moore planned the crime with their cousin Almore, acted as look outs during the commission of the crime, and then were situated so that Almore could be quick ly and safely transported away from the crime scene. Defendant Garrell was clearly the getawa y driver of the lookout vehicle which, according to the victim, was parked close enough for its occupants to watch the crime being committed and to hear her screams for help. Defendant Mo ore was seated in the backseat of the lookout vehicle, which also gives rise to the inference that he was involved in the planning of the crime. The front passenger seat of the lookout vehicle was unoccupied so that their cousin Almore—a very large man—could quickly jump into the front passe nger seat of the vehicle after the crime was committed, allowing for a quick getaway. And onc e Almore returned to their vehicle, the gun could be passed to defendant Moore, who had ac cess to the truck from the folded down panel in the backseat—which is where the police loc ated the handgun that fit the victim’s description. That is, a reasonable inference arises f rom the evidence that defendant Moore further assisted Almore by attempting to disassociate Alm ore from the gun used in the crime by separating the gun from its ammunition and its holster and/or case. Thus, the evidence reasonably indicated defendant Moore’s involvement as a lookout and as an assistant to escape and conceal the crime. “The amount of advice, aid or encourage ment is not material if it had the effect of inducing the commission of the crime.” People v White , 147 Mich App 31, 38; 383 NW2d 597 (1985) (citation omitted).

In summary, considering the ev idence in a light most favorable to the prosecution, the jury could properly convict defendant Moore of assault with int ent to rob while armed under an aiding and abetting theory. Accord ingly, defendant’s argument is without merit.

Docket No. 327821

On appeal, defendant Garrell argues that the trial court erred in instructing the jury regarding his flight from the crime scene. We disagree.-4- This Court reviews de novo a claim of ins tructional error. People v Perez , 469 Mich 415, 418; 670 NW2d 655 (2003). Jury inst ructions are reviewed “in t heir entirety to determine if there is error requiring reversal.” People v McFall , 224 Mich App 403, 412; 569 NW2d 828 (1997). There is no error where the instructions “fairly prese nted the issues to be tried and sufficiently protected the defendant’s rights.” Id . at 412-413 (citation omitted).

“A criminal defendant has the right to have a properly instruc ted jury consider the evidence against him.” People v Mills , 450 Mich 61, 80-81; 537 NW2d 909, modified 450 Mich 1212 (1995). “[T]he trial court is required to instruct the ju ry concerning the law applicable to the case and fully and fairly present the case to the jury in a n understandable manner.” Id . at 80. “Accordingly, jury instructions must include all the elements o f the charged offenses and any material issues, defenses, and theories that are supported by t he evidence.” People v McKinney
, 258 Mich App 157, 162-163; 670 NW2d 254 (2003).

Here, the trial court instructed the jury regarding flight acc ording to the standard jury instruction, CJI2d 4.4:

There has been some evidence that the defendant tried to flee from the alleged crime. This evidence does not prove guilt. A person may flee for innocent reasons, such as panic, mistake, or fear, however, a person may also flee because of a consciousness of guilt. You must decide whether the evidence is true and, if true, whether it shows that the defendant had a guilty state of mind.

Defendant Garrell argues that the evidence indicated only that the vehicle he was driving left the scene of the crime, not that it fled the scene as the prosecuto r argued. “[M]ere departure from the scene is insufficient . . . to support the giving of the fl ight instruction.” People v Hall , 174 Mich App 686, 691; 436 NW2d 446 (1989).

However, the victim testified that after she waved to the park ed car for help, it sped past her to pick up her assailant, Almore. The victim stated twice that the car then sped away down another street, and clarified: “ They sped off fast. They were getting out of there.” The term “flight” includes “fleeing the scene of the crime.” People v Smelley , 485 Mich 1023, 1024; 776 NW2d 310 (2010) (C ORRIGAN , J., concurring), citing People v Coleman , 210 Mich App 1, 4; 532 NW2d 885 (1995). And CJI2d 4.4 clearly indicates that flight f rom the “alleged crime” supports the instruction. Further, consid ering the manner in which defe ndant departed from the crime scene—speeding off fast, it appears that he did so because of t he fear of apprehension. See Hall
, 174 Mich App at 691. Accordingly, t he evidence supported givin g a flight instruction.

Defendant Garrell also argues that he was denied a fair trial because the prosecutor argued during his rebuttal argumen t that the jury should convic t based on sympathy for the victim. We disagree.

“Generally, a claim of prosecutorial misconduct is a constitut ional issue reviewed de novo.” People v Abraham , 256 Mich App 265, 272; 662 NW2d 836 (2003). “[T]he test for prosecutorial misconduct is whether a defendant was denied a fa ir and impartial trial.” People v Dobek , 274 Mich App 58, 63; 732 NW2d 546 (2007). A fair trial for a defendant “can be-5- jeopardized when the prosecutor i nterjects issues broader than the defendant’s guilt or innocence.” Id. at 63-64.

Here, the prosecutor remarked, as follows:

[The victim] will never, never be able to walk down the street again at night without looking over her shoulder. Now, will you, juror in seat number nine, be able to give her that sense of security back? Will you, juror in seat number four, be able to --

Garrell interjected that this argument was improper and the tri al court asked the prosecutor to

move on.
Defendant argues that “the prosecutor overstepped the bounds b y improperly questioning individual jurors, appealing to t heir sympathy, which is improp er.” It is true that improper comments by the prosecutor unfai rly introduce an issue that “en courages jurors not to make reasoned judgments.” Abraham , 256 Mich App at 273. And a pro secutor may not appeal to the jury to sympathize with the victim, People v Wise , 134 Mich App 82, 104; 351 NW2d 255 (1984), or ask the jurors to convi ct based on their civic duty. Abraham , 256 Mich App at 273.

But, in this case, even if we agreed that these brief conteste d remarks were improper because they tended to invoke sympathy for the victim, prosecut orial comments must be read as a whole and evaluated in context. People v Thomas , 260 Mich App 450, 454; 678 NW2d 631 (2004). Here, the prosecutor con tinued his comments, as follow s:
Will anybody be able to give her her sense of security back? No. I’m not asking you to find the Defendants guilty based on assumptions. I’m asking you to find them guilty based upon the circumstantial evidence that was presented you here today. And although you can’t give her her sense of security back, you can give her a just verdict that holds these two Defendants accountable.

Thus, the prosecutor actually argued that defendants should not be convicted based on the jury’s feelings toward the victim; rather, defendants should be found “guilty based upon the circumstantial evidence” that was presented. Further these wer e the concluding remarks of the prosecutor, after a lengthy discus sion of the law and facts tha t highlighted the evidence with which the prosecutor called upon the jury to convict defendants

. Moreover, the trial court instructed the jury “to return a true and just verdict based only on the evidence and my instructions on the law. You must not let sympathy or prejudice influence your decision.” These instructions from the trial co urt were sufficient to eliminate any prejudice that might have resulted from the very brief remarks by the prosecutor. See Thomas
, 260 Mich App at 454. “[J]urors are presumed to follow their in structions.” People v Graves
, 458 Mich 476, 486; 581 NW2d 229 (1998). In summary, defendant Garrell was not denied a fair-6- and impartial trial as a result of the prosecutor’s brief rebut tal remarks about the victim’s sense of security. See Dobek , 274 Mich App at 63.

Affirmed.

/s/ Mark J. Cavanagh /s/ Henry William Saad /s/ Karen M. Fort Hood