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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 18, 2015

v No. 320377 Eaton Circuit Court CURTIS COLEMAN GLASPIE, a/k/a, CURTIS ALLEN GLASPIE, LC No. 13-020063-FC

Defendant-Appellant.

Before: R IORDAN , P.J., and D ONOFRIO and B ECKERING , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of ar med robbery, MCL 750.529, possession of a firearm during the commission of a felony (felo ny-firearm), MCL 750.227b, and resisting and obstructing a pol ice officer, MCL 750.81d(1). De fendant was sentenced to concurrent prison terms of 25 to 40 years for armed robbery, 2 to 4 years for resisting and obstructing, and a consecutive se ntence of 2 years for felony-f irearm. We affirm.

I. FACTUAL BACKGROUND

Defendant and two other men robbed a gas station in Delta Town ship on November 20, 2012. Defendant forced the gas station clerk, at gunpoint, to open the register. Although the robbers took the money and lottery tickets, the clerk was able to press the emergency button to alert the police.

Defendant and his companions fled the scene and eventually got into a taxicab. A police chase ensued, and the cab pulled over to the side of the road. The three men exited the cab and fled on foot. Officer Michael Sc hulte pursued defendant. Afte r a brief altercation, Schulte tasered defendant twice and took him into custody. Lottery tic kets matching those taken from the gas station were found in the cab. Surveillance video of t he robbery was admitted at trial.

During the unrecorded portion of defendant’s police interview, he confessed that he was one of the men who robbed the gas station. At trial, however, defendant denied that such a conversation took place. A recorded jail phone conversation al so was admitted, wherein defendant confessed that he robbe d a gas station but also state d that it was not really him. Defendant was convicted of armed robbery, felony-firearm, and r esisting and obstructing. He now appeals on several grounds.-2- II. CONFESSION

A. STANDARD OF REVIEW

Defendant first contends that the trial court erred in admittin g his confession at trial. He posits that he did not waive his right to remain silent and tha t his confession was not the result of a voluntary, knowing, and intelligent waiver. We review de novo the entire record to determine whether an accused has waived his Fifth Amendment rights. People v Cheatham , 453 Mich 1, 30; 551 NW2d 355 (1996). “Credibility is crucial in determinin g a defendant’s level of comprehension, and the trial judge is in the best position to m ake this assessment.” Id. We will not disturb the trial court’s factual findings unless they are clearly erroneous. Id. “A finding is clearly erroneous if it leaves this Court with a definite and f irm conviction that a mistake was made.” People v Shipley , 256 Mich App 367, 373; 662 NW2d 856 (2003).

B. PROCEEDINGS BELOW

After defendant was arrested, he was informed of his Miranda 1 rights before the police interview began. The follo wing conversation ensued:

Detective : All right. All right, I want to go over this with you okay. Ah, you have the right to remain s ilent. You understand that?

Defendant : Mmm, hmm.

Detective : Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him pr esent with while [sic] you’re being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you at county expense before any questio ning if you wish. If you give up your right to remain silent and later wish to st op answering questions, no further questi ons will be asked. Do you understa nd all of those?

Defendant : Mmm, hmm.

Detective : Okay, you will to waive those rights and talk with us?

Defendant : What you mean [sic] waive those rights?

Detective : Are you willing to waive your Miranda Rights that I just read to ya, and, and talk with us?

Defendant : About what, man?

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-3- Detective : Well, that’s what we’re gonna get into and that’s one of the things with your rights is, you know, you can stop talking, you know, we can kinda over [sic] some things . . .

Defendant : All I wanna is, I wanna k now what’s really going on man.

Detective : Okay. But first we need to hear from you. Are you willing to talk with us? You want to know what’s going on, so are you wil ling to talk with us?

Defendant : If I can help, I will.

Detective : All right. All right, I just need you to sign here on this form that says signature. That’s just that I read these. That you understand them, and you said you are willing to talk with us.

Defendant : I don’t know what to talk a bout, but I guess. I don’t know what we talking about.

Detective : Okay.

Defendant : I don’t wanna waive my rights though.

Detective : You willing to talk with us? Are you willing to talk with u s? It says right there one of the rights is if, if you give up you r right to remain silent and later wish to stop answeri ng questions, no further question s will be asked. So if you wanna, you say you wanna t alk to us, you wanna talk to u s . . .
Defendant : I wanna see, I wanna see if I can help you man

C. WAIVER

“Statements of an accused made during a custodial interrogatio n are inadmissible unless the accused voluntarily, knowingly, and intelligently waives th at Fifth Amendment right.” People v Tierney , 266 Mich App 687, 707; 703 NW2d 204 (2005). The waiver must “ ‘have been voluntary in the sense that it was the product of a free a nd deliberate choice rather than intimidation, coercion, or deception.’ ” People v Daoud , 462 Mich 621, 633; 614 NW2d 152 (2000), quoting Moran v Burbine , 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986). See also People v Gipson , 287 Mich App 261, 264-265; 787 NW2d 126 (2010). Further, “ ‘ the waiver must have been made with a full awareness of both the na ture of the right being abandoned and the consequences of the decision to abandon it.’ ” Daoud , 462 Mich at 633, quoting Moran , 475 US at 421. See also Gipson , 287 Mich App at 264-265. Thus, “[w]hether a statement was voluntary is determined by examining police condu ct, but the determination whether it was made knowingly and intelligently depends, in part, on the defendant’s capacity.” Tierney , 266 Mich App at 707.-4- Here, the detective read defendant his Miranda rights and defendant verbally acknowledged that he understood th em. He signed a written waiv er. However, defendant then commented that he did not know what to talk about, and stated, “I don’t wanna waive my rights though.” On appeal, defendant cont ends that this was a clear e xpression that he was not waiving his rights, and that by continuing to talk with the police he m erely thought he was helping. Defendant asserts that he unequi vocally asserted his right to r emain silent.

As defendant recognizes, the assertion of the right to remain s ilent “must be unequivocal.” People v Henry (After Remand) , 305 Mich App 127, 145; 854 NW2d 114 (2014). Defendant’s statements in this case were not unequivocal, as th ey were not without ambiguity. See, e.g. Henry (After Remand) , 305 Mich App at 147-148 (when a d efendant replies, “No, sir” when asked if he wanted to waive his rights, that was an unambi guous assertion of the right to remain silent). Here, defendant’s specific statement was that he did not “wanna waive [his] rights though .” Defendant’s use of the word “though” qualifies the assertio n of the right, rendering it equivocal. “Though” is defined as “however” or “n evertheless.” MerriamWebster’s Collegiate Dictionary (2014).

After defendant stated that he did not want to waive his rights “though,” the detective sought clarification by asking if defendant wished to speak wit h them and reminding him that he could stop the questioning. See People v Catey , 135 Mich App 714, 726; 356 NW2d 241 (1984) (“Once a defendant chooses to remain silent, the police are per mitted to seek a clarification of an equivocal exercise of that right. ”). Defendant then replied, “ I wanna see, I wanna see if I can help you man.” This is an expr ession of his willingness to spe ak with the police. In other words, it is the opposite of an unequivo cal assertion of the right to remain silent. See People v McKinney , 488 Mich 1054; 794 NW2d 614 (2011) (a defendant’s statement t hat he would “just as soon wait” until he had an atto rney before talking to the po lice, then the officer’s response, and the defendant’s immediate st atement that he “was willing to discuss the ‘circumstances,’ was not an unequivocal assertion of t he right to counsel or a state ment declaring an intention to remain silent.”).

Defendant also contends that hi s waiver was not knowing, volunt ary, or intelligent. He highlights facts such as he only completed the eighth grade, hi s prior experience with the criminal justice system was primarily with misdemeanors, he was institutionalized for five years “in what he believed was a mental health facility,” and he had been physically injured prior to giving his statement and r equired hospitalization.

However, the trial court’s fi ndings weigh heavily against thes e arguments. The trial court found that, despite defendant’s claim that he had an eighth gr ade education and suffered from mental disorders, his understanding of the legal system and Miranda warnings was “sophisticated” and he had demons trated “full awareness of the legal system and his rights.” The trial court noted that defendant had sent the court two letters , which “showed a great deal of-5- sophistication regarding the law.” 2 The court also observed that defendant had been arrested previously, and his claim that he had not been read his Miranda rights for those crimes was unfathomable.

As the trial court found, defenda nt was 25 years old when ques tioned, and the length of the interview was not unreasonable. 3 Nor did the trial court find any evidence that defendant was injured, drugged, or intoxicat ed when he gave his statement , or that he was deprived of food, sleep, or water. The trial court also found that there was no evidence or allegations of threats or physical abuse.

We discern no clear error in t he trial court’s findings or its overall conclusion that defendant’s waiver was voluntary, knowing, and intelligent.

D. HARMLESS ERROR

Moreover, even if the admission of defendant’s statement was im proper, “given the untainted evidence in this particular case, admission of the st atements was harmless beyond a reasonable doubt.” Henry (After Remand) , 305 Mich App at 148. This is not a case with little evidence, nor one that was a credibility contest between two wi tnesses. Instead, the jury had significant, untainted evidence of defendant’s guilt. First, t he surveillance vi deo of the robbery was admitted at trial. Therefore, the jury was able to judge f or itself whether defendant was one of the perpetrators. Several police officers also detailed the frenzied chase that ensued, which included following the suspects in a cab and pursuing them when they fled. A police officer continued to chase defendant until he had to be tasered twice t o be subdued before he was arrested. The stolen lottery tickets were recovered from the c ab. Additionally, evidence was admitted that defendant made a phone call from jail to a woman, where he said, “I f***** up. I f***** up really bad.” When the woman asked him what he did, h e replied “I robbed a gas station.” She then repeated, “You robbed a gas station?” Defe ndant replied, “Yeah.” When she asked him why he did it, he explai ned that he was not really th e one who robbed the gas station.

In light of the overwhelming evidence of defendant’s guilt, “it is clear beyond a reasonable doubt that a rational jury would have found the defe ndant guilty absent the error.” Henry (After Remand) , 305 Mich App at 151 (quotation m arks and citation omitted).

III. JURY

Defendant next contends that there was a possible improper, out side influence on the jury, which warrants a remand. We disagree.

2 The trial court also found that d efendant, after realizing the level of sophistication his letters revealed, provided testimony that someone else wrote them, whic h the court found was not credible.

3 Although the trial court did not account for the period of the interview that was unrecorded, the overall length of the detention remained reasonable.-6- During trial, the prosecutor informed the court that when leavi ng the courtroom one day, a colleague inquired about a particular witness’s testimony. T he prosecutor stated that she did not respond, although she might have made a gesture indicating that she could not discuss it. One of the jurors passed by during this conversation. When the issue was brought to defense counsel’s attention, he agreed wit h the prosecution and the tri al court that the incident did not create a problem for defendant.

In light of the foregoing, we find that this issue is waived. Because of defendant’s affirmative agreement with the prosecution, and his express app roval of the trial court’s course of action, “defenda nt has waived this issue on appeal.” People v Carter , 462 Mich 206, 215; 612 NW2d 144 (2000). Moreover, even if we were to review this issu e, defendant has not demonstrated an entitlement t o relief or a hearing on remand.

A jury only may consider the evidence presented to it in open court. People v Budzyn
, 456 Mich 77, 88; 566 NW2d 229 (1997). In order to establish th at an extrinsic influence was error requiring reversal, the defendant must prove the followin g: (1) the jury was exposed to the extraneous influence; and (2) the extraneous influence created a real and substantial possibility that it could have affected the jury’s verdict. Id. at 88-89. To prove the second prong, the defendant generally must “demons trate that the extraneous influ ence is substantially related to a material aspect of the case and t hat there is a direct connecti on between the extrinsic material and the adverse verdict.” Id. at 89. If the defendant can prove these two prongs, the burde n shifts to the prosecution to demonstrate t hat the error was harmless beyo nd a reasonable doubt. Id. The prosecution may prove this if the extraneous influence was dupl icative of evidence at trial, or if the evidence of guilt was overwhelming. Id. at 89-90.

Defendant has not demonstrated that the jury was exposed to an extrinsic influence or that anything in the prosecuti on’s conduct would give rise to a n improper inference. Even assuming, arguendo , that a juror heard the disputed exchange, and communicated it to his or her fellow jurors, defendant fails t o explain how this incident cou ld have created a “real and substantial possibility” that it affected the verdict. Budzyn , 456 Mich at 88-89. Furthermore, given the overwhelming evidence of defendant’s guilt, not the l east of which is his confession, any error was harmless beyond a reasonable doubt. Id. at 89-90

IV. OFFENSE VARIABLE (OV) 9

A. STANDARD OF REVIEW

Lastly, defendant contends that the trial court improperly sco red OV 9 at 10 points. “Under the sentencing guidelines, the circuit court’s factual d eterminations are reviewed for clear error and must be supporte d by a preponderance of the evi dence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made.” People v Johnson , 466 Mich 491, 497-498; 647 NW2d 480 (2002). “Whether the facts, as found, ar e adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpr etation, which an appe llate court reviews d e novo.” Hardy , 494 Mich at 438.

B. ANALYSIS-7- Defendant contends that neither the cab driver nor the police o fficer who pursued and captured him were victims for purposes of OV 9. Pursuant to MC L 777.39(1)(c), a trial court may score OV 9 at 10 points if “[t]here were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims who were placed in danger of property loss.” The trial court is to count each person who was placed in danger of physical injury or loss of life or property as a victim. MCL 777.39(2)(a). “OV 9 is scored only on the basis of the defendant’s conduct during the sentencing offense.” People v Carrigan , 297 Mich App 513, 515; 824 NW2d 283 (2012). “[T]he course of an armed robbery includes the rob ber’s conduct in fleeing the scene of the crime.” People v Mann , 287 Mich App 283, 287; 786 NW2d 876 (2010).

Neither party disputes that de fendant placed at least one vict im in danger, namely, the gas station clerk. Defendant and his coperpetrators then fled the scene, and Officer Schulte gave chase. According to Schulte, de fendant resisted arrest and had to be tasered two times. Schulte testified that after defendant “squared off” with him, defendan t resisted and “rolled into” him when he attempted to handcuff defendant. Thus, Schulte was a v ictim because this physical altercation placed him in danger of physical injury. MCL 777.3 9(2)(a). Furthermore, because this conduct comprised part of the armed robbery, Mann , 287 Mich App at 287, the trial court properly counted Schulte as another victim. 4

Because defendant placed at least two victims in danger of phy sical injury or loss of life, MCL 777.39(2)(a), the trial cour t properly scored OV 9 at 10 po ints. 5

V. CONCLUSION

There is no error warranting reversal regarding the admission of defendant’s confession. Nor do we find that a remand is warranted based on a potential extraneous influence on the jury. Lastly, resentencing is not requ ired because the trial court pr operly scored OV 9. We affirm.

/s/ Michael J. Riordan /s/ Pat M. Donofrio /s/ Jane M. Beckering

4 Although this conduct also comprised the resisting and obstruc ting charge, that does not warrant a different result. See, e.g., Mann , 287 Mich App at 287 (“the carjacking incident constituted not only the commi ssion of separate offenses, but w as also a continuation of the armed robbery.”).

5 Since this accounts for at least two victims, it is unnecessar y to address defendant’s arguments regarding the taxicab driver.