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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UNPUBLISHED

January 9, 2018

v No. 335112

Saginaw Circuit Court

DEMETRIUS ALEXANDER MITCHELL, LC No. 15-041609-FC

Defendant-Appellant.

Before: O’CONNELL, P.J., and HOEKSTRA and SWARTZLE, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; firstdegree home invasion, MCL 750.110a(2); carrying a dangerous weapon with unlawful intent, 

MCL 750.226; and three counts of possession of a firearm during the commission of a felony 

(“felony-firearm”), MCL 750.227b. The jury found defendant not guilty of unlawful 

imprisonment, MCL 750.349b, and a felony-firearm charge related to unlawful imprisonment. 

The trial court sentenced defendant to serve concurrent terms of imprisonment of 9 to 20 years 

for the armed robbery and first-degree home invasion convictions and three to five years for the

carrying a dangerous weapon with unlawful intent conviction, and to terms of imprisonment of 

two years for each count of felony-firearm to be served consecutively to his other sentences. On 

appeal, defendant challenges the trial court’s decision to admit the in-court identification of an 

eyewitness and the scoring of the sentencing variables. We affirm.

In July 2015, Shyanne Edwards lived at the home of her mother, Tammy Meyer, with her 

fiancée, Serina Witherell, and Witherell’s two young children. On July 23, 2015, around 11:30 

p.m., Edwards, Witherell, and the children went to sleep in Edwards’s bedroom. Meyer was 

away from the home at the time. An air conditioning unit was running in the window of the 

bedroom, and Edwards had hung a blanket over the doorway to trap the cold air inside the room. 

At some point, Edwards was awakened by the sound of her dog barking; she then noticed lights 

flickering on and off in the space beneath the blanket, and a man she did not know poked his 

head around the blanket.

Edwards immediately called 911, and, while she was on the phone, a second man entered 

the room wearing a gray hooded sweatshirt and carrying a gun. Edwards hid the phone beneath 

the blanket on her bed, and when the man asked her if she had called the police she told him that 

she had not. The man, whom Edwards later identified as defendant, also asked her if she had any 
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jewelry or other valuables in the room; he left when she told him that she did not. Edwards 

testified that the police arrived not long after the men left her room and arrested two men who 

were in the house, Robert Thomas and Edward Williams. The police arrested a third man that 

evening, Evee Cooper, while Cooper was hiding in a parked vehicle in the neighborhood of 

Meyer’s house. A fourth individual was seen running from Meyer’s home on foot. The police 

pursued this fourth individual but were not able to apprehend him. During the course of their 

interviews with Thomas and Williams, however, police uncovered evidence that defendant was 

the fourth individual. Additionally, the vehicle in which Cooper was found was registered to 

defendant’s grandmother, and police officers also located defendant’s driver’s license inside of a 

wallet found in the vehicle. 

I. EDWARDS’S IDENTIFICATION OF DEFENDANT

At the preliminary examination, Edwards identified defendant as the gunman who had 

entered her room during the home invasion. Edwards testified that she had seen a photograph of 

defendant in an online news article about the incident, but stated that she recognized him based 

on his appearance in her room that night and had not relied on the article to identify him. 

Defendant filed a motion to suppress Edwards’s in-court identification, which the trial court 

denied. On appeal, defendant argues that Edwards lacked an independent basis to make the incourt identification and that the trial court erred by denying his motion. Additionally, defendant 

argues that the court erred by failing to weigh the factors set forth in People v Gray, 457 Mich 

107; 577 NW2d 92 (1998), when determining whether Edwards’s identification of defendant was 

reliable or tainted by illegal identification procedures. We find Gray inapplicable to this case 

and agree with the trial court’s decision to deny defendant’s motion. 

In Gray, 457 Mich at 111, the Supreme Court held that “[a] photographic identification 

procedure violates a defendant’s right to due process of law when it is so impermissibly 

suggestive that it gives rise to a substantial likelihood of misidentification.” The defendant in 

Gray argued that an officer “impermissibly suggested to the victim that defendant was her 

assailant when he showed her a single photograph of defendant and told her that he was the man 

they had arrested in connection with her assault.” Id. at 110. The Supreme Court concluded that 

“[t]he display of the single photograph, combined with the statement that this was the man the 

police had arrested for the assault, was highly suggestive.” Id. Yet the inquiry did “not end once 

we have found an invalid identification procedure. The second step in our analysis is to 

determine whether the victim had an independent basis to identify the defendant in court.” Id. at 

114-115. The Supreme Court then identified several factors for trial court’s to consider on the 

second step. Id. at 115-116.

In this case, the trial court noted that no state actor was involved in the pretrial publicity, 

nor did any state actor expose the online news article and accompanying photograph of 

defendant to Edwards. Rather, Edwards independently viewed the article. Therefore, because 

there was no state action, there was no evidence to support a finding that there was an invalid 

identification procedure. Without satisfying the first part of the inquiry under Gray, the court 

was not required to reach the second part of the analysis. Thus, we conclude that the trial court 

did not err by failing to consider the independent-basis factors. 
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Moreover, even if we were to find that Edwards’s viewing of the photo was somehow 

improperly suggestive, defendant has not shown that his right to a fair trial was violated on this 

basis. As the trial court noted, defendant was not prevented from arguing that Edwards’s

identification was invalid; he raised this issue during his cross-examination of Edwards so that 

the jury was aware that it had occurred. In addition, defendant challenged the identification on 

other grounds by pointing out that it was dark in Edwards’s bedroom when the gunman entered 

and that the gunman was wearing a bandana over his face, obscuring his features. Edwards did 

acknowledge at trial that she could not be totally certain that defendant was the gunman who had 

entered her room, but it does not follow that Edwards’s identification should have been 

suppressed. Rather, “[t]he credibility of identification testimony is a question for the trier of fact 

that we do not resolve anew.” People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). 

Whether Edwards’s identification was unreliable was a question of fact that the jury was able to 

determine.

Additionally, Edwards’s in-court identification was merely cumulative to other evidence 

that linked defendant to the offense: an officer, as well as Thomas and Cooper, testified that they 

saw defendant at the crime scene; defendant had possession of his grandmother’s vehicle, which

was located near the scene; defendant fit the description of the suspect who fled from police; and 

defendant’s driver’s license was found in the vehicle. Because substantial evidence linked 

defendant to the crime, even if we were to find error with respect to the in-court identification, 

that error would be harmless. MCL 769.26. Defendant is not entitled to a new trial based on the 

in-court identification.

II. OFFENSE-VARIABLE SCORING

Defendant also challenges the trial court’s scoring of Offense Variables (OVs) 1 and 2.

On appeal, defendant’s objections to the trial court’s scoring is unclear, but defendant does note 

that his trial counsel challenged the trial court’s scores for OVs 1 and 2 at sentencing, and argues 

that based on his acquittal of unlawful imprisonment he is entitled to resentencing. Therefore, 

we will treat defendant’s argument as a challenge to the trial court’s scoring of OVs 1 and 2. 

Defendant was scored 15 points for OV 1, aggravated use of a weapon, MCL 777.31, and 

five points for OV 2, lethal potential of weapon used, MCL 777.32. OV 1 is properly scored at 

15 points where “[a] firearm was pointed at or toward a victim.” MCL 777.31(c). OV 2 is 

properly scored at five points where the defendant “possessed or used a pistol, rifle, shotgun, or 

knife.” MCL 777.32(d). 

Defendant was charged with unlawful imprisonment based on Edwards’s testimony that 

one of the intruders had stood in the doorway of her bedroom watching guard with a gun pointed 

at her face. Defendant argues that OV 1 should not have been scored at 15 points because 

defendant was acquitted of unlawful imprisonment. Defendant’s argument, however, is not 

persuasive because there is no requirement in the statute that a defendant must be convicted of 

unlawful imprisonment in order for the court to score 15 points for this variable. Because the 

evidence was sufficient to demonstrate that defendant appeared in Edwards’s room and pointed a

gun at her, the trial court’s score of 15 points for OV 1 was appropriate. 
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Similarly, defendant’s argument that OV 2 should have been scored at zero points based 

on his acquittal of unlawful imprisonment is not persuasive. There is no requirement in the 

statute that a defendant be convicted of unlawful imprisonment in order to assess five points for 

OV 2. Additionally, we note that the jury found defendant guilty of several weapons charges, 

including three counts of felony firearm and carrying a dangerous weapon with unlawful intent. 

Defendant’s convictions were sufficient to support the trial court’s finding that defendant 

possessed a firearm during the offense; thus, the trial court properly scored OV 2 at five points.

Affirmed.

/s/ Peter D. O'Connell

/s/ Joel P. Hoekstra

/s/ Brock A. Swartzle