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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UNPUBLISHED

November 27, 2018

v No. 338648

Wayne Circuit Court

JUSTIN THOMAS, LC No. 16-008415-01-FC

Defendant-Appellant.

Before: JANSEN, P.J., and K. F. KELLY and BORRELLO, JJ.

PER CURIAM.

Defendant appeals as of right his convictions, following a jury trial, of armed robbery, 

MCL 750.529, felon in possession of a firearm (felon-in-possession), MCL 750.224f, carrying a 

concealed weapon (CCW), MCL 750.227, felon in possession of ammunition, MCL 750.224f, 

resisting or obstructing a police officer, MCL 750.81d, and possession of a firearm during the 

commission of a felony, second offense, MCL 750.227b (felony-firearm). The trial court 

sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison 

terms of 25 to 50 years for the armed robbery conviction, 5 to 15 years each for the felon-inpossession and CCW convictions, and 2 to 15 years for the resisting or obstructing conviction, to 

be served consecutive to a five-year prison term for the felony-firearm conviction. Defendant 

appeals as of right, and we affirm. 

Defendant was convicted of robbing Angelo Hudson at gunpoint in September 2016. 

Angelo testified that he was staying at the house of his sister, Angela Hudson, who had given 

him $150 to pay for cable service. According to Angelo, after Angela had left the house with her 

son to run an errand, defendant, whom Angelo knew from the neighborhood, stopped by the 

house and Angelo let him into the enclosed front porch area of the home. They sat down on the 

porch and talked. Eventually, defendant pulled out a nine millimeter handgun from underneath a 

red vest and told Angelo to give him all of his money and to empty his pockets. Initially, Angelo 

thought defendant was joking, but defendant assured him that he was serious. Angelo said he 

gave defendant the $150 his sister had given him, plus another $10 he had, in addition to a bottle 

of liquor, his cell phone, his keys, and a silver cross on a chain. At Angelo’s request, defendant 

agreed to return the cell phone to Angelo, but told him not to call anyone or defendant would kill 

him. 
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Within a few minutes after defendant left, Angelo contacted his sister who returned 

home. When she arrived home, Angela called the police to report the robbery. She initially told 

the dispatcher that she had been the robbery victim. She explained at trial that she made the call 

and said that she was the victim because Angelo was scared and did not want to call the police. 

But because the crime occurred at her house and it was her money that was taken, she made the 

call to protect her family. She knew what defendant was wearing that day because she had seen 

him earlier in the day. She told the dispatcher that defendant was wearing a red vest. 

Two patrol officers who heard the report of the robbery saw defendant within a few 

blocks of Angelo’s house. He was wearing a red vest and he matched the description of the 

robbery suspect. When the police tried to talk to him, he ran into a house. The police chased 

defendant into the house and apprehended him. One officer saw defendant throw a nine 

millimeter handgun underneath a car seat in the house. After defendant was arrested, the police

found $138 in cash in his possession, in denominations similar to the money Angelo described as 

having been taken from him during the robbery. Defendant also possessed Angelo’s silver chain, 

and a magazine clip for the handgun. 

I. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence at trial was insufficient to support his convictions for 

any of the charged offenses. We review a challenge to the sufficiency of the evidence de novo. 

People v Hammons, 210 Mich App 554, 556; 534 NW2d 183 (1995). An appellate court’s 

review of the sufficiency of the evidence to sustain a conviction should not turn on whether there 

“was any evidence to support the conviction but whether there was sufficient evidence to justify 

a rational trier of fact in finding guilt beyond a reasonable doubt.” People v Wolfe, 440 Mich

508, 513-514; 489 NW2d 748, amended 441 Mich 1201 (1992). This Court must view the 

evidence in a light most favorable to the prosecution. Wolfe, 440 Mich at 515. 

Although defendant challenges the sufficiency of the evidence in support of his 

convictions, he does not argue that the prosecution failed to present evidence in support of the 

individual elements for each of the charged offenses. Instead, he argues that the evidence was 

insufficient to prove that any offense was committed by him, and he argues that conflicts or 

inconsistencies in the evidence should have prevented the jury from finding him guilty. 

Specifically, defendant emphasizes that Angela told the police dispatcher that she was the victim 

of the robbery. Defendant also notes that Angelo testified that the offense occurred inside an 

enclosed porch, but the officer who took the initial report wrote that the offense occurred in the 

front yard of the house. Defendant argued at trial that Angelo lied about the robbery to cover up 

that he lost his sister’s money to defendant gambling or playing dice games. Angelo denied that 

he gambled or played dice games with defendant.

Defendant’s attacks on the credibility of Angelo’s and Angela’s testimony are not a valid 

basis for challenging the sufficiency of the evidence in support of his convictions. Angelo 

expressly identified defendant as the person who robbed him at gunpoint. To the extent that 

defendant attacks Angelo’s credibility, “[t]his Court will not interfere with the trier of fact’s role 

of determining the weight of the evidence or the credibility of witnesses.” People v Williams,

268 Mich App 416, 419; 707 NW2d 624 (2005). In reviewing a challenge to the sufficiency of 

the evidence, “[a]ny conflict[s] in the evidence must be resolved in the prosecutor’s favor.” 
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People v Jackson, 292 Mich App 583, 587-588; 808 NW2d 541 (2011). The jury apparently 

found that Angelo’s account was credible. Indeed, when the police arrested defendant shortly 

after the offense, he was wearing a red vest that matched Angelo’s description, and a silver chain 

that Angelo identified as having been taken during the offense was found in defendant’s 

possession. Defendant also possessed a large amount of cash in denominations similar to the 

money that Angelo claimed defendant took during the robbery. 

As the prosecution points out, defendant is substantively arguing that the jury’s verdict 

was against the great weight of the evidence. However, because defendant did not raise that 

argument in a motion for a new trial in the trial court, any review by this Court is limited to plain 

error affecting defendant’s substantial rights. People v Cameron, 291 Mich App 599, 617-618; 

806 NW2d 371 (2011); People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). 

In People v Lacalamita, 286 Mich App 467, 469-470; 780 NW2d 311 (2009), this Court 

summarized the standards for determining whether a jury’s verdict is against the great weight of 

the evidence: 

The test to determine whether a verdict is against the great weight of the 

evidence is whether the evidence preponderates so heavily against the verdict that 

it would be a miscarriage of justice to allow the verdict to stand. Generally, a 

verdict may be vacated only when the evidence does not reasonably support it and 

it was more likely the result of causes outside the record, such as passion, 

prejudice, sympathy, or some other extraneous influence. Conflicting testimony, 

even when impeached to some extent, is an insufficient ground for granting a new 

trial. Further, the resolution of credibility questions is within the exclusive 

province of the jury. [Citations and quotation marks omitted.]

In People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998), the Michigan Supreme 

Court adopted the rule that, absent extraordinary circumstances, issues of witness credibility are 

for the jury to resolve, and a reviewing court may not substitute its view of the credibility of 

witnesses for the jury’s determination thereof. The Court explained that there are some narrow 

exceptions to this rule, observing: 

We reiterate the observation in Anderson v Conterio, 303 Mich 75, 79; 5 

NW2d 572 (1942), that, when testimony is in direct conflict and testimony 

supporting the verdict has been impeached, if “it cannot be said as a matter of law 

that the testimony thus impeached was deprived of all probative value or that the 

jury could not believe it,” the credibility of witnesses is for the jury.

Adding flesh to what is a more refined articulation of the formula that “ 

‘[i]n general, conflicting testimony or a question as to the credibility of a witness 

are not sufficient grounds for granting a new trial,’ ” United States v Garcia, 978 

F2d 746, 748 (CA 1, 1992), quoting with approval United States v Kuzniar, 881 

F2d 466, 470 (CA 7, 1989), federal circuit courts have carved out a very narrow 

exception to the rule that the trial court may not take the testimony away from the 

jury. Id. at 470-471. Defining the exception, the federal courts have developed 

several tests that would allow application of the exception; for example, if the 
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“testimony contradicts indisputable physical facts or laws,” id., “[w]here 

testimony is patently incredible or defies physical realities,” United States v 

Sanchez, 969 F2d 1409, 1414 (CA 2, 1992), “[w]here a witness’s testimony is 

material and is so inherently implausible that it could not be believed by a 

reasonable juror,” Garcia, supra at 748, or where the witness’ testimony has been 

seriously “impeached” and the case marked by “uncertainties and discrepancies.” 

United States v Martinez, 763 F2d 1297, 1313 (CA 11, 1985).

This does not mean that “[a] judge’s disagreement with the jury’s verdict,” 

United States v Arrington, 757 F2d 1484, 1486 (CA 4, 1985), or a “trial judge’s 

rejection of all or part of the testimony of a witness or witnesses,” entitles a 

defendant to a new trial. Sanchez, supra at 1414. Rather, a trial judge must 

determine if one of the tests applies so that it would seriously undermine the 

credibility of a witness’ testimony and, if so, is there “a real concern that an 

innocent person may have been convicted” or that “it would be a manifest 

injustice” to allow the guilty verdict to stand. Id. If the “evidence is nearly 

balanced, or is such that different minds would naturally and fairly come to 

different conclusions,” the judge may not disturb the jury findings although his 

judgment might incline him the other way. Kringstad, supra at 307.[1] Any “real 

concern” that an innocent person has been convicted would arise “only if the 

credible trial evidence weighs more heavily in [the defendant’s] favor than against 

it.” Polin, supra at 551.[2] [Lemmon, 456 Mich at 642-645 (footnotes omitted).] 

In this case, Angelo testified that defendant robbed him of money, liquor, and a silver 

chain at gunpoint. Defendant argues that Angelo’s account was not credible because a 

responding police officer who took an initial report wrote that the offense occurred in the front 

yard of the house, whereas Angelo testified that it occurred in the enclosed area of a front porch. 

Defendant also made a point of challenging both Angelo’s and Angela’s credibility because 

Angela told the dispatcher that she was the actual victim of the armed robbery. These 

discrepancies were elicited and addressed at trial. Angelo denied that the offense occurred in the 

front yard as indicated in the initial police report, and an officer testified that initial police reports 

are not always accurate. In addition, Angela explained to the jury why she initially told the 

dispatcher that she was the robbery victim, even though it was Angelo who was robbed. 

Although the defense invited the jury to consider these inconsistencies and conflicts when 

weighing all of the evidence, the jury could have reasonably determined that they did not render 

Angelo’s account so inherently implausible or deprive it of all probative value that it could not 

be believed. 

Notwithstanding some inconsistencies and conflicts in the testimony, evidence was 

presented that defendant was arrested shortly after the offense in the same vicinity of the crime, 

and he attempted to flee when the police encountered him. At the time of defendant’s arrest, he 

 1 State v Kringstad, 353 NW2d 302 (ND, 1984). 

2 United States v Polin, 824 F Supp 542 (ED Pa, 1993). 
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was wearing a red vest as described by Angelo, he possessed the silver chain that Angelo 

claimed was taken during the robbery, he possessed a large amount of cash in denominations 

similar to the money that Angelo claimed was taken during the robbery, and he also possessed a 

nine millimeter firearm, which was the same type of weapon Angelo claimed defendant used 

during the robbery. Although the defense suggested that Angelo lost the money from gambling 

or playing dice games with defendant, there was no evidence offered to support this theory. 

Defendant simply offers speculation and conjecture to impugn Angelo’s credibility. The great 

weight of the evidence did not preponderate so heavily against the jury’s verdict that it would be 

a miscarriage of justice to allow the verdict to stand.

II. SENTENCING

Defendant challenges the reasonableness of his sentence for armed robbery. The 

sentencing guidelines range for defendant’s armed robbery conviction recommended a minimum 

sentence range of 126 to 420 months. The trial court sentenced defendant within this range, to a 

term of 25 to 50 years’ imprisonment, providing the following reasons in support of its 

sentencing decision: 

Okay. Mr. Thomas, it is clear from your record and from the facts in this 

case that you have very little regard for law enforcement and for your fellow [ ] 

man, including someone that considered you a relative, almost a brother. 

You have a past history of theft and assaultive crimes. And it’s very 

disturbing to me where your life has led so far, and you’re only at the age of 29

years old. 

It is the sentence of the Court, sir — your guidelines range is between 10 

1⁄2 years to 35 years — and on the charge of armed robbery, it is the sentence of 

this Court that you be sentenced to a period of incarceration of 25 to 50 years. 

Although defendant argues that his sentence of 25 to 50 years for armed robbery is 

unreasonable and disproportionate, because his sentence is within the guidelines range, this 

Court’s review is limited by MCL 769.34(10), which provides that “[i]f a minimum sentence is 

within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence 

and shall not remand for resentencing absent an error in scoring the sentencing guidelines or 

inaccurate information relied upon in determining the defendant’s sentence.” 

In People v Lockridge, 498 Mich 358, 364; 870 NW2d 502 (2015), our Supreme Court 

held that Michigan’s sentencing guidelines are constitutionally deficient, in violation of the Sixth 

Amendment, to the extent that they “require judicial fact-finding beyond facts admitted by the 

defendant or found by the jury to score offense variables (OVs) that mandatorily increase the 

floor of the guidelines minimum sentence range . . .” To remedy this deficiency, the Court held 

that the guidelines are advisory only. Id. at 399. However, in People v Schrauben, 314 Mich 

App 181, 196 n 1; 886 NW2d 173 (2016), this Court held that “Lockridge did not alter or 

diminish MCL 769.34(10).” Thus, “[w]hen a trial court does not depart from the recommended 

minimum sentence range, the minimum sentence must be affirmed unless there was an error in 

scoring or the trial court relied on inaccurate information.” Schrauben, 314 Mich App at 196; 
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see also People v Anderson, 322 Mich App 622, 636-637; 912 NW2d 607 (2018) (recognizing 

that absent a scoring error or an allegation of inaccurate information, a sentence within the 

guidelines range will not be reviewed for reasonableness). Because defendant’s sentence for 

armed robbery is within the guidelines range, and he does not allege a scoring error or reliance 

on inaccurate information, MCL 769.34(10) requires this Court to affirm his sentence. 

Defendant further argues that his sentence for armed robbery amounts to cruel and/or 

unusual punishment under the federal and state constitutions. US Const, Am VIII; Const 1963, 

art 1, §16. Although MCL 769.34(10) does not preclude defendant’s constitutional challenge to 

his sentence, a sentence within the guidelines range is presumptively proportionate, People v 

Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011); People v Powell, 278 Mich App 318, 

323; 750 NW2d 607 (2008), and a proportionate sentence is neither cruel nor unusual 

punishment. Id.; see also People v Bowling, 299 Mich App 552, 558; 830 NW2d 800 (2013). 

To overcome the presumption of proportionality, defendant must present unusual circumstances 

that would render his presumptively proportionate sentence disproportionate. Id. 

Defendant argues that his sentence is disproportionate because he is facing a minimum of 

30 years when his 25-year sentence for armed robbery is combined with the five-year 

consecutive sentence he must first serve for felony-firearm. Defendant argues that the combined 

amount of time is disproportionate, given that he is presently about 30 years old, meaning he will 

be about 60 years old when he is eligible for parole. These circumstances do not qualify as 

unusual considering that defendant is already a fourth-time habitual offender and that this 

offense was his second felony offense committed with a firearm. According to defendant’s 

presentence report, he has a criminal history as both a juvenile and an adult, dating back to 2002. 

As an adult, defendant was convicted of possession with intent to deliver marijuana in 2007, and 

receiving or concealing a stolen motor vehicle in 2008. Thereafter, in 2009, he was convicted of 

two counts of assault with intent to do great bodily harm less than murder, felon in possession of 

a firearm, and felony-firearm, and he was sentenced to 4 to 20 years in prison for the assault 

convictions. Defendant was paroled from prison in October 2015, and was on parole when he 

committed the instant offenses in 2016. In light of defendant’s lengthy, continuous, and 

escalating criminal history, there are no unusual circumstances to overcome the presumptive 

proportionality of his sentences. Thus, defendant’s sentences do not qualify as unconstitutionally 

cruel or unusual. 

Affirmed. 

/s/ Kathleen Jansen 

/s/ Kirsten Frank Kelly 

/s/ Stephen L. Borrello