-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 29, 2016

v No. 327418 Wayne Circuit Court MARY ELAINE WHITE, LC No. 14-008075-01-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 327419 Wayne Circuit Court ROBERT EARL WHITE, LC No. 14-008075-02-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and M URPHY and R IORDAN , JJ.

P ER C URIAM

. In Docket No. 327418, defendant Mary Elaine White (MEW) appeal s as of right her jury trial convictions of assault wi th intent to do great bodily har m less than murder (AWIGBH), MCL 750.84, and possession of a firearm during the commission o f a felony (felony-firearm), second offense, MCL 750.227b. The trial court sentenced MEW to 23 months to 10 years’ imprisonment for the AWIGBH conviction, to be served consecutiv ely to five years’ imprisonment for the felony-fire arm conviction. We affirm MEW’ s convictions, but remand for

a Crosby 1 proceeding under People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), relative to her sentences and for the min isterial task of correcting err ors in the judgment of sentence.

In Docket No. 327419, defendant Robert Earl White (REW) appeal s as of right his jury trial convictions of assault with intent to commit murder (AWIM ), MCL 750.83, felony-firearm,

1 This is a reference to United States v Crosby , 397 F3d 103 (CA 2, 2005).-2- and felon in possession of a firearm, MCL 750.224f. The trial court sentenced REW as a second habitual offender, MCL 769.10, to concurrent sentences of 15 to 25 years’ imprisonment for the AWIM conviction and two to five years’ imprisonment for the fel on-in-possession conviction, to be served consecutively to a two- year term of imprisonment for the felony-firearm conviction. We affirm.

The charges and convictions in this case stem from the shootin g of MEW’s boyfriend. There was evidence that MEW’s boyfriend hit MEW in the face aft er an argument outside their house, that MEW then left the scene, that MEW returned to the h ouse within about five to ten minutes, that REW, who is MEW’s brother, also arrived at the ho use, that the boyfriend locked himself inside the house and stood by the door as both defendan ts stood outside the door verbalizing their intent to harm the boyfriend, that the boyfri end started to call 911, and that, with MEW’s boisterous approval, REW then fired numerous gunshot s through the door, striking the boyfriend.

In Docket No. 327418, MEW first argues that there was insuffic ient evidence to support her felony-firearm conviction, wh ich was based on an aiding and abetting theory. We disagree. We review de novo the issue regarding whether there was suffici ent evidence to sustain a conviction. People v Lueth , 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial – in a light most favorable to the prosecutor and determine whe ther a rational trier of fact could find that the essential elements of the crime were proved beyon d a reasonable doubt. People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellat e court must not interfere wit h the jury’s role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe , 440 Mich 508, 514- 515; 489 NW2d 748 (1992). Circumstantial evidence and the reas onable inferences that arise from such evidence can constitute satisfactory proof of the ele ments of a crime. People v Carines , 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable theory of innocence, but need only prove the element s of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evide nce in favor of the prosecution. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

A defendant may be convicted of felony-firearm under an aiding and abetting theory. People v Moore , 470 Mich 56; 679 NW2d 41 (2004). In Moore , our Supreme Court held that “the proper standard for estab lishing felony-firearm under an a iding and abetting theory is whether the defendant’s words o r deeds ‘procure[d], counsel[ed] , aid[ed], or abet [ted]’ another to carry or have in his possession a firearm during the commission or attempted commission of a felony-firearm offense.” Id . at 58-59 (alterations in orig inal). “All that is required to prove aiding and abetting felony-firear m is that the defendant aided and abetted anothe r in carrying or having in his possession a firearm while that other commits or attempts to commit a felony.” Id

. at 68. In Moore , this Court explained:

The prosecutors must do more than demonstrate that defendants aided the commission or attempted commissi on of the underlying crimes (he re murder and robbery). Rather, the prosecutors must demonstrate that defenda nts specifically aided the commission of felony-fi rearm. Establishing that a def endant has aided-3- and abetted a felony-firearm offense requires proof that a viol ation of the felonyfirearm statute was committed by the defendant or some other pe rson, that the defendant performed acts or gave encouragement that assisted in the commission of the felony-firearm violation, and that the defendant intende d the commission of the felony-firearm violation or had knowledge that the principa l intended its commission at the time that the defendant gave aid and encourag ement. In determining whether a defendant assisted in the commission of t he crime, the amount of advice, aid, or encouragement is not material if it h ad the effect of inducing the commission of the crime. It must be determined on a case-by-case basis whether the defendant performed acts or gave encouragemen t that assisted in the carrying or possession of a firearm during the commissio n of a felony. [ Id

. at 70-71 (citations and quotation marks omitted).]

The Moore Court held:

The defendant in each case aided or abetted felony-firearm by actively urging, inciting, encouraging, or motivating the principal to u se the weapon that was in the principal’s possession. Implicit in the use of a firearm is the possession of that firearm. Thus, when a defendant specifically encourages another possessing a gun during the commission of a felony to use that gun, he aids and abets the carrying or possessing of that gun just as surely as if he aided or abetted the principal in obtaini ng or retaining the gun. [ Id . at 71.]

Here, REW arrived at the house with a gun, and MEW arrived sho rtly thereafter in her own vehicle. There was evidence that both defendants yelled fo r the boyfriend to come outside. An eyewitness testified that he saw a woman “hyping it up,” and the boyfriend testified that MEW yelled, “F--- that. Get him. Kill him,” or “Get that mother ------. Kill him.” A police officer who responded to the scene testified that MEW’s boyfrie nd asserted that MEW had said, “Shoot this mother------.” And then several shots were fired t hrough the door, hitting the boyfriend. Viewing this evidence in a light most favorable to the prosecution, the j ury could find that MEW encouraged REW’s use of the weapon by directing him to shoot or kill the boyfriend. Moore , 470 Mich at 71. Thus, MEW aided and abetted REW’s possession of the firearm by specifically encouraging him to use the gun in his possession. Id . MEW’s arguments to the contrary are unavailing, a nd reversal is unwarranted.

Next, MEW argues that defense counsel was ineffective for fail ing to object to an allegedly defective verdict fo rm and accompanying jury instruct ions. We disagree. Whether counsel was ineffective presents a mixed question of fact and c onstitutional law, which we review, respectively, for cl ear error and de novo. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). In People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), our Supreme Court, addressing the ba sic principles governing a clai m of ineffective assistance of counsel, observed:

To justify reversal under either the federal or state constitu tions, a convicted defendant must satisfy t he two-part test articulated by the United States Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). “First, the defendant must show that counsel’s performa nce was deficient.-4- This requires showing that counsel made errors so serious that counsel was not performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland,
supra at 687. In so doing, the defendant must overcome a strong presu mption that counsel’s performance constituted sound trial strategy. Id. at 690. “Second, the defendant must show that the deficient performance prejudiced t he defense.” Id. at 687. To demonstrate prejudice, the defendant must show the e xistence of a reasonable probability that, but for counsel’s error, the resul t of the proceeding would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Because the defendant bears the burden of demonstrating both deficient performance an d prejudice, the defendant necessarily bears the burden of establishing the fact ual predicate for his claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

An attorney’s performance is deficient if the representation fa lls below an objective standard of reasonableness. People v Toma , 462 Mich 281, 302; 613 NW2d 694 (2000).

MEW’s verdict form appeared as follows:

MEW maintains that this verdict form was confusing, appearing to foreclose the jury’s ability to acquit MEW of both AWIM and AWIGBH. Although a bit more clarity would have been helpful, we find that the v erdict form was not defective, as it gave the jury the opportunity to return a general verdict of not guilty with respect to the a ssault against MEW’s boyfriend,-5- encompassing a prospective acquittal on both AWIM and AWIGBH. See and compare People v Wade , 283 Mich App 462, 464-468; 771 NW2d 447 (2009). We cannot en vision that the jury was of the belief that it was not permitted to render a general not-guilty verdict relative to the assault. Indeed, to accept MEW’s argument, we would have to fi nd that the jury, after determining that MEW was not guilty of AWIM, was under the impr ession that it was absolutely compelled to render a guilty verdict on AWIGBH, which is simply not logical. In its instructions, the trial court directed the jurors that they cou ld find defendant not guilty, guilty of AWIM, or guilty of AWIGBH. Assuming for the sake of argument t hat the issue is a closer call and that perhaps Wade dictates a different conclusion, we cannot find that defense co unsel’s failure to challenge the verdict form and instructions fell bel ow an objective standard of reasonableness. And given the strong evidence of MEW’s partici pation in the crime and her guilt, the requisite prejudice has not been shown.

MEW next argues that she is entitled to a Crosby remand under Lockridge because her sentencing guidelines were calcu lated on the basis of judiciall y-found facts, which were used to mandatorily increase the floor of the guidelines minimum senten ce range in violation of her right to a jury trial. We agree. MEW did not raise this issue below ; therefore, “our review is for plain error affecting substantial rights.” Lockridge , 498 Mich at 392. In Lockridge , our Supreme Court held:

Because Michigan's sentencing guidelines scheme allows judges to find by a preponderance of the evidence fa cts that are then used to com pel an increase in the mandatory minimum punishment a defendant receives, it viola tes the Sixth Amendment to the United States Constitution . . . . We therefore reverse the judgment . . . . To remedy the constitutional flaw in the guide lines, we hold that they are advisory only.

To make a threshold showing of plain error that could require resentencing, a defendant must demonstrate that his or her [off ense variable] OV level was calculated using fact s beyond those found by the jury or admitted by the defendant and that a corresponding reduction in the defendant's OV score to account for the error would change the applicable guidelines mi nimum sentence range. If a defendant makes that threshold showing and was not sentenced to an upward departure sentence, he or she is entitled to a remand [t o] the trial court for that court to determine whether plain error occurred, i.e., whe ther the court would have imposed the same sentence absent the unconstitutional cons traint on its discretion.[ 2 ] If the trial court determines that it would not have imposed the same sentence but for the constraint, it must resentence the defenda nt. [ Lockridge , 498 Mich at 399.]

2 The Court referred to such remands as “ Crosby remands” after the procedures outlined in Crosby , 397 F3d 103. Lockridge , 498 Mich at 395-399. “ Crosby remands are warranted only in cases involving sentences imposed on or before July 29, 2015 . . . .” Id. at 397. MEW was sentenced in April 2015. The specific procedures applicable up on a Crosby remand are set forth in Lockridge

. Id. at 398.-6- Here, 25 points were assessed by the trial court for OV 3, whi ch is the appropriate score when a “[l]ife threatening or permanent incapacitating injury o ccurred to a victim.” MCL 777.33(1)(c). This was not a fact necessarily found by the jur y in rendering its verdict, as AWIGBH does not require actual proof of an injury, nor was it a fact admitted by MEW. It is unnecessary for us to examine any other OVs, given that the red uction of 25 points for OV 3 alone lowers the minimum guidelines range, MCL 777.65, thereby mandating a Crosby remand under Lockridge.

Finally, MEW argues that the judgment of sentence inaccurately states that she was found guilty of AWIM instead of AWIGBH. While the judgment of senten ce provides the citation for AWIGBH, MCL 750.84, it describes the offense as being AWIM, and this error is to be corrected on remand. We further note that the judgment of sent ence indicates that MEW was sentenced as a second-habitual offender under MCL 769.10. This is also incorrect. She was convicted of and sentenced for felony-firearm, second offense, MCL 750.227b(1). We direct that this error also be corrected on remand.

In Docket No. 327419, REW contends that his convictions must b e reversed because there was insufficient evidence of his identity as the perpetra tor and of an intent to kill. We disagree. “[I]dentity is an element of every offense,” People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008), and an inten t to kill is an essential elem ent of AWIM, People v Henderson , 306 Mich App 1, 9; 854 NW2d 234 (2014). REW maintains that M EW’s boyfriend was the only person who provided identification testimony and t hat his testimony was not credible. REW claims that the boyfriend could not have known w ho the shooter was because he was standing behind the door of the home when the shots rang ou t. The boyfriend, however, testified that he saw REW exit hi s vehicle with a gun in his ha nd and that he observed REW shoot out the top window. REW is also incorrect that the boyfr iend was the only witness who provided identification testimony. There was an eyewitness who described the shooter’s vehicle as a red truck with a white door, and REW was arrested in a red Suburban with a white door. Another eyewitness saw the shooter get into an SUV or van. Mor eover, contrary to REW’s assertion, this witness did not describe the shooter as being s hort. Rather, she testified that she referred to the shooter as the “s hort guy” and the other man on the porch as the “tall guy” because “one was basically shorter than the other one.” Thus, her testimony did not actually describe the height of the shooter. And the other eyewitness d escribed the shooter as tall and slender, fitting REW’s descrip tion. Finally, although REW clai ms that there were inconsistencies between the boyf riend’s testimony and his earli er statements and testimony, “[t]he credibility of witnesses and the weight accorded to evid ence are questions for the jury, and any conflict in the evidence must be resolved in the prosecutor ’s favor.” People v Jackson , 292 Mich App 583, 587-588; 808 NW2d 541 (2011) (citation and quotat ion marks omitted). Thus, there was sufficient evidence identifying REW as the shooter.

We also reject REW’s argument that there was insufficient evid ence showing an intent to kill. REW makes this claim on the basis that there was a lack of evidence indicating that he knew that the boyfriend was directly behind the door when he fi red his weapon. The boyfriend testified that MEW was trying to unlock the door and the boyfri end relocked it, and he also told defendants that he was calling the police. Given his relocking of the door and his statement to defendants, the jury could reasonably have found that defendant s were aware that the boyfriend was within close proximity to the door. And REW’s intent to ki ll can be inferred by his use of a deadly weapon, Henderson , 306 Mich App at 11, which he fired multiple times into an occ upied-7- home. REW argues that because there was no evidence of “bad bl ood” between himself and the boyfriend, there was no evidence of motive that might supply a basis to infer an intent to kill. “Minimal circumstantial evidence is sufficient to show an inten t to kill, and that evidence can include a motive to kill, along with flight and lying, which ma y reflect a consciousness of guilt.” Id . While we note that motive is not an element of the crime tha t needed to be established, the boyfriend’s earlier assault of REW’s sibling, MEW, provided mot ivation for him to kill the boyfriend. REW’s flight after the shooting also reflected a co nsciousness of guilt. Accordingly, there was sufficient evidence of REW’s intent to kill.

Finally, REW presents a Lockridge argument and requests a Crosby remand. REW filed a motion in the trial court for resentencing under Lockridge after its release, and the court conducted a hearing on the motion, entertaining the parties’ br iefs and arguments. Although the trial court did not articulate its decision in the precise term s set forth in Lockridge , the court made absolutely clear that the s entences imposed on REW would n ot have been any different under the principles announced in Lockridge. Therefore, REW was effectively afforded a Crosby remand, and we see no reason to return the matter back to the t rial court for further review.

In Docket No. 327418, we affirm MEW’s convictions, but remand for a Crosby proceeding under Lockridge and for the ministerial task of correcting errors in the judgm ent of sentence, as identified above. In Docket No. 327419, we affirm REW’s convictions and sentences. We do not ret ain jurisdiction.

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Michael J. Riordan