People v. Ackah-Essien

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

June 4, 2015

Plaintiff-Appellee, 9:05 a.m.

v No. 317411

Cass Circuit Court

DYLIN ACKAH-ESSIEN, LC No. 12-010170-FC

Defendant-Appellant.

Before: RIORDAN, P.J., and MARKEY and WILDER, JJ.

MARKEY, J.

Defendant appeals by right his convictions following a jury trial of conspiracy to commit

armed robbery, MCL 750.529, armed robbery, MCL 750.529, unlawful imprisonment, MCL

750.349b, larceny from a motor vehicle, MCL 750.356a(1), carrying a weapon with unlawful

intent, MCL 750.226, unlawfully driving away an automobile, MCL 750.413, larceny in a

building, MCL 750.360; and receiving and concealing stolen property $200 or more but less than

$1,000, MCL 750.535(4)(a). The trial court sentenced defendant to concurrent prison terms of 8

to 20 years for the conspiracy and armed robbery convictions, 4 to 15 years for the unlawful

imprisonment conviction, and time already served for the remaining convictions. We affirm but

vacate defendant’s conviction and sentence for carrying a dangerous weapon with unlawful

intent. The evidence established that defendant used a BB gun; however, a BB gun does not

come within the meaning of “any other dangerous or deadly weapon or instrument” under MCL

750.226.

I. FACTUAL SUMMARY

Defendant’s convictions arise out of the robbery of a 21-year-old delivering pizza to four

young men who had conspired to commit the crime by having a female friend place an order for

food to be delivered to an abandoned house. The trial resulting in defendant’s convictions was

the second; defendant’s first trial resulted in the trial court declaring a mistrial when the jury was

unable to reach a verdict.

The testimony at trial showed Michael Smith and Anteyon Russell were identified from

their clothing as two of three or four black males that a citizen had observed near the scene of the

crime. Russell pleaded guilty to conspiracy to commit armed robbery and several other crimes

as part of an agreement for his truthful testimony against defendant in the instant case. Detective

Dan Wiggins obtained the fingerprints of Smith and Martrell Jones from pizza boxes he located

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during the criminal investigation. Jones entered into a guilty plea on multiple charges for the

armed robbery of the victim as part of a plea agreement for the dismissal of certain charged

offenses in exchange for his truthful testimony against defendant in the instant case.

Martrell Jones testified that he lived in Chicago where he met Michael Smith and

defendant through his high school football team. In early April 2012, Jones was on spring break

and decided to go to Michigan for a basketball tournament at Smith’s invitation. Defendant

came with Jones and Smith on a train from Chicago to South Bend; all three are friends.

Defendant paid Smith’s travel expenses. Smith asked his uncle, Paul Williams, to pick him up at

the South Bend Airport, where a train from Chicago also deposits passengers. When Williams

arrived, Jones and defendant were also there, and Williams took the three of them to his home

near Walter Ward Park in Dowagiac.

Anteyon Russell testified that after defendant, Smith, and Jones got to Dowagiac,

defendant, an acquaintance of Anteyon, but not a friend, suggested the idea of committing an

armed robbery. According to Anteyon, defendant said he had done “home delivery robberies” of

pizza delivery men in Wisconsin. Rolandis Russell is the older brother of Anteyon. Anteyon

had been in the company of Smith, Jones and defendant a few days before the robbery. Rolandis

heard defendant suggest a robbery, but Rolandis declined to participate.

Jones testified that defendant, Anteyon, and Smith smoked marijuana and played

basketball the morning of the robbery. Defendant suggested they commit an armed robbery, as

he had done the day before. Jones first declined, but defendant said that he needed money to get

back to Chicago. Defendant specifically suggested robbing a delivery person. Smith testified for

defendant, and claimed that sometime later, while he and the codefendants were playing inside

Williams’ house with a rifle-type BB or pellet gun, they shot out the glass on a stove with it.

Williams asked them to leave his home as a consequence.

Anteyon testified that the four men met at Anteyon’s grandmother’s house before leaving

to play basketball and again shoot a BB gun recreationally. Defendant again brought up the

topic of a robbery, saying he knew who to call and “set it up.” The codefendants found an empty

house and determined it would be a suitable location for the planned crime. Anteyon suggested

he had a gun that might work and went home to obtain a black BB gun pistol that was later used

in the robbery of the victim. Anteyon gave the black BB gun to defendant. Anteyon also

testified that once he was back at the unoccupied house, which had no electricity, defendant

called a female friend to place an order with Pizza Hut. While the group waited inside the house

for the pizza to arrive, they drank a pint of whiskey and planned “who was gonna do what.”

Jones testified that Anteyon went to his grandmother’s house to change his clothes and

get a BB gun, which looked like a “handgun.” Someone suggested they call Pizza Hut, and

defendant called his girlfriend to have her do so, instructing her to “get a lot of pizzas,” and

giving her an address for the delivery. The group then walked to the vacant house they had

earlier selected to wait and planned “who would do what.” Defendant, who asked to be called

“Pistol,” elected to hold the gun to the victim’s face, while Smith held the victim and Anteyon

went through his pockets. Jones agreed to take the victim’s car and be the driver.

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Anteyon further testified that when car lights appeared from down the street, Jones went

out the back sliding door; defendant and Smith went outside to the front, and Anteyon waited

inside the house. Defendant was to initiate the robbery by signaling with the words, “Dad, the

pizza man here [sic].” Anteyon heard the signal from defendant and once the crime was

underway, went though the victim’s pockets as planned. Anteyon took money, a cellular

telephone and a Nintendo DS game system from the victim. Jones testified that when the group

saw the victim’s car approaching, Jones went out the side door to position himself out front to

steal the victim’s car. After Smith “lured” the victim into the house, Jones jumped in the car and

confirmed the keys were in it. Anteyon came out of the house with the victim’s wallet but went

back for the pizzas. Smith and defendant then came out, and the four drove off.

Anteyon testified that after the robbery, the four men got into the victim’s car and drove

off in it, with Jones driving as planned. They drove through a cornfield and stopped along the

way near a railroad viaduct so Anteyon could throw the victim’s cellular telephone out the car

window, fearing its GPS tracking device. He also disposed of a Nintendo DS game. Defendant

never gave Anteyon his gun back, which Anteyon last saw when defendant was brandishing it

during the crime. According to Anteyon, defendant tried to remove the license plate from the

victim’s car because he wanted to take the car back to Chicago.

Jones testified that defendant originally wanted to drive back to Chicago, but Jones did

not know how to drive. As they were making their escape, Jones slowed, and Anteyon threw the

victim’s cellular telephone out the window. They proceeded through a field before taking a

laptop computer from the back seat and abandoning the car. Defendant and the group divided

the money, ate pizza and recapped the crime. Anteyon testified that the four men split the

victim’s cash equally, ate pizza, boasted about their roles in the crime and “getting away with it.”

Later, Rolandis picked up Smith and Anteyon and took them back to Anteyon’s grandmother’s

house. Smith then asked Anteyon to walk him home, and as they did so, the police stopped them

and inquired about the robbery. Smith and Anteyon lied to the police, denying any knowledge of

the crime. Jones testified that Smith left with Anteyon but returned some time later, saying that

“the cops was on to us.” Jones, Smith and defendant called another uncle of Smith’s who drove

them to the South Bend Airport, where they took a train back to Chicago.

Smith, a childhood friend of Anteyon’s from Dowagiac who had moved to Chicago,

testified for the defense that he had contacted Anteyon in advance to make arrangements to get

together while Smith was in town. Smith also testified that he, Jones and Anteyon planned the

robbery of the victim. Smith testified that he had pleaded guilty to his involvement in the

robbery and that defendant was not involved in either the planning or commission of the robbery.

During cross-examination, Smith admitted that during the course of the investigation, he told the

police on two separate occasions that defendant was involved in the robbery and told them that

defendant pointed the gun at the victim. While Smith denied that a gun was used in the crime, he

testified when he entered his guilty plea that “[a] pellet gun, BB gun,” was used in the crime.

Defendant testified that contrary to the rendition of events by Anteyon and Jones, after

the basketball activity, he left by himself and went to Louis Thomas’s apartment. When he

arrived there at 7:00 p.m., no one was home. He watched movies and a basketball game alone,

until Jones, Smith and Anteyon arrived about 10:00 p.m. Defendant was surprised to see they

had pizza boxes, a laptop computer and $50 to $75 in cash, since neither Smith nor Jones had

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any money when they left Chicago. Defendant testified that none of the three told him anything

about a robbery that night or anytime while they were in Dowagiac, and defendant never saw a

BB pistol the entire time he was in Dowagiac. Defendant was surprised to learn about the

robbery when Smith told him the following Monday.

The jury convicted defendant for the crimes listed above, and the trial court sentenced

defendant as noted. Defendant now appeals by right his convictions and sentences.

II. MCL 750.226—BB GUN

Defendant first argues that his conviction for carrying a weapon with unlawful intent,

MCL 750.226, cannot stand because the evidence only established the use of a BB gun.

Defendant argues a BB gun does not qualify as a “pistol or other firearm . . . or any other

dangerous or deadly weapon” under the statute and that the trial court’s instruction regarding this

offense was erroneous. Because as we discuss later, we agree that the evidence was insufficient

to sustain defendant’s conviction of this offense and because defendant waived any claim of

instructional error, we need not specifically further address this aspect of defendant’s argument.

A. STANDARD OF REVIEW

Issues of statutory interpretation present questions of law that are reviewed de novo.

People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012). But where, as here, a claim of error

is not preserved, we consider whether plain error affected defendant’s substantial rights. People

v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Plain error affects a defendant’s

substantial rights when it affects the outcome of the proceedings. Id.; People v Vaughn, 491

Mich 642, 665; 821 NW2d 288 (2012).

B. ANALYSIS

The information alleged that on or about April 4, 2012, defendant “did, with intent to use

the same against the person of another, go armed with a pellet gun; contrary to MCL 750.226.”

The cited statute provides, in pertinent part:

Any person who, with intent to use the same unlawfully against the person of

another, goes armed with a pistol or other firearm or dagger, dirk, razor, stiletto,

or knife having a blade over 3 inches in length, or any other dangerous or deadly

weapon or instrument, shall be guilty of a felony. . . . [Emphasis added.]

This Court recently reviewed the elements necessary to sustain a conviction of carrying

dangerous weapon with unlawful intent under MCL 750.226. People v Mitchell, 301 Mich App

282, 292-293; 835 NW2d 615 (2013) (holding that although the word “carrying” is used in the

catch line of the statute, it is not an element of the offense). To establish this charge, the

prosecution must prove beyond a reasonable doubt that the accused (1) “goes armed”—while

possessing a firearm or dangerous weapon, moves from one location to another location—and

(2) at the time of “going armed,” had the intent to use the weapon unlawfully against another

person. Id. at 293.

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The evidence at trial established that the weapon defendant used in the instant case was a

handgun-style BB gun that appeared to the victim to be a “real” gun. Under the clear language

of the statute, the BB gun described as being used in the instant case does not come within the

list of weapons or instruments specifically enumerated in MCL 750.226, i.e., “a pistol or other

firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length.” The

weapons or instruments specifically named in MCL 750.226’s list are dangerous per se. People

v Parker, 288 Mich App 500, 507; 795 NW2d 596 (2010). The prosecution argues to the

contrary, that the BB gun that defendant used was a dangerous weapon per se, based on evidence

that the gun “broke the window to Williams’ stove.” We conclude this argument is not

supported by the evidence. We assume the prosecution is referring to the testimony of Anteyon,

who described some horseplay before the crime where he, defendant and the other conspirators

were playing with “long BB guns” inside Williams’ house and that one of them had shot out the

stove glass with it. But Jones also testified that the BB gun used in the crime looked like a

handgun; the victim said he reflexively swatted it away when it was pointed in his face, and that

the man with the gun was called “Pistol” by his compatriots. Therefore, the evidence shows that

the BB gun that shot out the stove glass was different from the BB gun used to rob the victim.

Since a BB gun is not among the weapons or instruments listed in MCL 750.226, it is not a

dangerous weapon per se. Parker, 288 Mich App at 507. Therefore, the BB gun must be

construed as falling within the catchall language of “any other dangerous or deadly weapon or

instrument,” MCL 750.226, in order to sustain defendant’s conviction.

MCL 750.226 does not define what comprises “or any other dangerous or deadly weapon

or instruments,” or whether a BB gun is included, the statute’s prohibition against “going armed

with a firearm [1] or dangerous weapon, with the intent to unlawfully use the weapon against

another person.” Because the Legislature has not expressly defined the general language “or any

other dangerous or deadly weapon or instrument” as used in MCL 750.226, it is open to more

than one reasonable meaning. A statutory provision is ambiguous only if it irreconcilably

conflicts with another provision, or it is equally susceptible to more than a single meaning.

People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008). Consequently, statutory

construction is required. See People v Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010) (“When

a statute is ambiguous, judicial construction is appropriate to determine the statute’s meaning.”).

The primary goal when construing a statute is to give effect to the Legislature’s intent.

Id.; Mitchell, 301 Mich App at 291. The most reliable source regarding the Legislature’s intent

is the language used in the statute. People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012);

Mitchell, 301 Mich App at 291. When the statutory language is plain and unambiguous, the

Legislature’s intent is clearly expressed, and judicial construction is neither permitted nor

required. Id. In construing statutes, this Court applies a reasonable construction of the statute,

1

The prosecution concedes that “certain BB guns are not considered firearms under the penal

code,” citing MCL 750.222(d). That subsection defines “firearm” to mean “a weapon from

which a dangerous projectile may be propelled by an explosive, or by gas or air[,]” but excludes

from the definition “a smooth bore rifle or handgun designed and manufactured exclusively for

propelling by a spring, or by gas or air, BBs not exceeding .177 caliber.”

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enforces clear statutory language as written, and reconciles any apparent inconsistencies if

possible. Feezel, 486 Mich at 205. “Unless they are otherwise defined in the statute or are terms

of art or technical words, we assign the words of a statute their plain and ordinary meaning.”

People v Haynes, 281 Mich App 27, 29; 760 NW2d 283 (2008). If a statute specifically defines

a term, the statutory definition is controlling. People v Williams, 298 Mich App 121, 126; 825

NW2d 671 (2012). A court may consult dictionary definitions regarding the plain and ordinary

meaning of undefined terms. Mitchell, 301 Mich App at 291. Technical words and phrases that

have acquired a peculiar and appropriate meaning in law shall be construed and interpreted in

accordance with that meaning. See MCL 8.3a. Moreover, it is presumed that the Legislature is

aware of and must have considered the effect on all existing statutes when enacting new laws.

Feezel, 486 Mich at 211.

We first review the plain and ordinary meaning of the words used in the phrase “or any

other dangerous or deadly weapon or instruments.” We consult Merriam-Webster’s Collegiate

Dictionary (11th ed, 2014) to determine the plain meaning of “dangerous,” “deadly,” “weapon,”

and “instrument.” “Dangerous” is defined as “exposing to or involving danger.” Id., p 315.

“Danger,” in turn, is defined as “exposure or liability to injury, pain, harm, or loss.” Id.

“Deadly” is defined as “likely to cause or capable of producing death.” Id., p 319. And

“weapon” is defined as “something (as a club, knife, or gun) used to injure, defeat, or destroy.”

Id., p 1417. Finally, the word “instrument,” in this instance clearly not used in its musical or

written context, is defined as “a means by which something is achieved, performed, or

furthered.” Id., p 649. “It is well known that a term can be defined in a number of different

ways; therefore, when interpreting a statute, this Court is to ‘determine the most pertinent

definition of a word in light of its context.’ ” People v Hershey, 303 Mich App 330, 339; 844

NW2d 127 (2013) (citation omitted). In light of purpose of the statute, the context in which the

words are used, and prior judicial interpretations of the statute, we conclude that for criminal

liability to attach under MCL 750.226 for “going armed” with a non-specified “weapon” or

“instrument,” the potential for physical injury or death must exist with respect to the use of the

“weapon” or “instrument.”

Our primary goal in reading the statute is to effectuate the intent of Legislature and

enforce its clear statutory language in light of the purpose of the statute. Feezel, 486 Mich at

205; Mitchell, 301 Mich App at 291. In construing the related MCL 750.227 that prohibits the

carrying of a concealed weapon, our Supreme Court employed the rule of construction known as

“ejusdem generis” as an aid to ascertain and give effect to the Legislature’s intent. People v

Smith, 393 Mich 432, 436; 225 NW2d 165 (1975). The statutory language at issue in Smith was

the meaning of “a dagger, dirk, stiletto, or other dangerous weapon except hunting knives

adapted and carried as such.” Smith, 393 Mich at 435, quoting MCL 750.227. The Smith Court

explained that according to the rule of ejusdem generis, “a statute in which general words follow

a designation of particular subjects, the meaning of the general words will ordinarily be

presumed to be and construed as restricted by the particular designation and as including only

things of the same kind, class, character or nature as those specifically enumerated.” Smith, 393

Mich at 436. The Court held that although an M-1 rifle is a dangerous weapon, it did not come

within the meaning of “other dangerous weapon” that was delineated by examples of and thereby

limited to stabbing weapons. Id. In this case, when the rule of ejusdem generis is applied to

MCL 750.226’s inclusion of these general words, “other dangerous or deadly weapon or

instrument,” the meaning of the general words must be limited to the same general kind or class

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as those specifically mentioned. Smith, 393 Mich at 436. Thus, the general phrase “any other

dangerous or deadly weapon or instrument” must be construed to include “weapons” or

“instruments” that are dangerous per se, i.e., are of the same kind as “a pistol or other firearm or

dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length,” that are specifically

enumerated in MCL 750.226. See Parker, 288 Mich App at 506-508.

Another “general rule of statutory construction is that the Legislature is ‘presumed to

know of and legislate in harmony with existing laws.’” People v Cash, 419 Mich 230, 241; 351

NW2d 822 (1984)(citation omitted). Since at least 1992 PA 217, pertinent to the firearms

chapter of the Michigan Penal Code containing MCL 750.226, the Legislature has defined

“firearm” to exclude “a smooth bore rifle or handgun designed and manufactured exclusively for

propelling by a spring, or by gas or air, BBs not exceeding .177 caliber.” MCL 750.222(d).

Indeed, the Legislature has excluded smooth-bore, .177 caliber BB guns from the definition of

“firearm” as used in other statutes:

The word “firearm”, except as otherwise specifically defined in the

statutes, shall be construed to include any weapon from which a dangerous

projectile may be propelled by using explosives, gas or air as a means of

propulsion, except any smooth bore rifle or handgun designed and manufactured

exclusively for propelling BB’s not exceeding .177 calibre by means of spring,

gas or air. [MCL 8.3t (1959 PA 189).]

Because the Legislature has excluded through both MCL 750.222(d) and MCL 8.3t smooth-bore

BB guns that propel BBs not exceeding .177 caliber from the meaning of “firearm” as used MCL

750.226, it is reasonable to infer that the Legislature did not intend to include BB guns of this

type within the catchall phrase “or any other dangerous or deadly weapon or instrument” under

MCL 750.226. Stated otherwise, by excluding smooth-bore BB guns that propel BBs not

exceeding .177 caliber from the meaning of “firearm,” the Legislature must have determined that

such a BB gun was not a “dangerous or deadly weapon or instrument.” See, e.g., Parker, 288

Mich App at 507-508 (including knives with blades more than three inches in length as

dangerous weapons per se indicates that knives with shorter blades are not dangerous per se and

thus not included within the phrase “any other dangerous or deadly weapon or instrument”). We

therefore hold that a BB gun as defined in MCL 750.222(d) is excluded from the meaning of

“any other dangerous or deadly weapon or instrument” in MCL 750.226.

We next consider whether there was sufficient evidence to sustain defendant’s conviction

under MCL 750.226. In reviewing sufficiency of the evidence claims, all conflicts in the

evidence must be resolved in favor of the prosecution, and an appellate court may not interfere

with the jury’s determinations regarding the weight of the evidence and the credibility of the

witnesses. People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). Although, “the

prosecutor need not negate every reasonable theory consistent with innocence,” it must produce

evidence from which all elements of an offense may be determined beyond a reasonable doubt.

People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). We must “draw all reasonable

inferences and make credibility choices in support of the jury verdict” when determining whether

the prosecution has sustained its burden. Id.

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In applying this deferential review standard, we conclude the evidence shows that

defendant went from one place to another while possessing a handgun-style BB gun with the

intent to use the weapon unlawfully against another person. Mitchell, 301 Mich App at 293. The

prosecution argues that the BB gun defendant used was a dangerous weapon per se because

before the robbery it was used to shoot out the glass of a stove. But as discussed already, that

reading of the record is not accurate; the testimony showed it was a long, rifle-type BB or pellet

gun that shot out the glass of Williams’ stove. In this case, as in Parker, the prosecution

presented no evidence that the BB gun in question was a dangerous weapon per se. Instead, the

record shows that the weapon defendant used was a handgun-style BB gun. There was no

evidence presented at trial that the handgun-style BB gun defendant used in the robbery was

anything other than “a smooth bore . . . handgun designed and manufactured exclusively for

propelling by a spring, or by gas or air, BBs not exceeding .177 caliber.” MCL 750.222(2). For

the reasons previously discussed, such a BB gun does not come within meaning of “any other

dangerous or deadly weapon or instrument” under MCL 750.226. Consequently, the evidence

was insufficient to prove all the elements of MCL 750.226, and defendant’s conviction of that

offense cannot be sustained. Mitchell, 301 Mich App at 294; Parker, 288 Mich App at 509.

III. DOUBLE JEOPARDY

Defendant next argues that because his first trial ended without his consent and manifest

necessity did not support a mistrial, his second trial violated the Double Jeopardy Clause of the

United States Constitution. The prosecution asserts the requisite manifest necessity supported

the trial court’s decision to declare a mistrial because the jury in defendant’s first trial remained

deadlocked after several hours of deliberation and after receiving the deadlocked jury instruction.

We conclude that defendant’s retrial, following the trial court’s declaration of a mistrial in his

first trial, did not violate the successive prosecutions protections of the Double Jeopardy Clause.

A. PRESERVATION

To preserve appellate review of a double-jeopardy violation, a defendant must object at

the trial court level. People v Meshell, 265 Mich App 616, 628; 696 NW2d 754 (2005).

Defendant did not object to the trial court’s decision to declare a mistrial at the time that it did so,

or during defendant’s second trial; consequently, his double-jeopardy claim is unpreserved. Id.;

People v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008).

B. STANDARD OF REVIEW

A constitutional double jeopardy challenge presents a question of law reviewed de novo

on appeal. People v Ream, 481 Mich 223, 226; 750 NW2d 536 (2008). In this case, the

unpreserved double-jeopardy claim is reviewed for plain error affecting the defendant’s

substantial rights. Meshell, 265 Mich App at 628. Reversal is warranted only if the error

resulted in a conviction despite the defendant’s actual innocence, or if the error seriously affected

the fairness, integrity, or public reputation of judicial proceedings, independent of the

defendant’s innocence. Meshell, 265 Mich App at 628, citing Carines, 460 Mich at 763.

The decision to declare a mistrial after a finding of manifest necessity because of a

deadlocked jury is entrusted to the “sound discretion” of the trial court. People v Lett, 466 Mich

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206, 216-217; 644 NW2d 743 (2002), quoting United States v Perez, 22 US (9 Wheat) 579, 580;

6 L Ed 165 (1824). On appeal, the trial court’s decision to declare a mistrial because of a

deadlocked jury must be accorded great deference. Id. at 213, 219-220, citing Arizona v

Washington, 434 US 497, 510; 98 S Ct 824; 54 L Ed 2d 717 (1978). “The issue is not whether

this Court would have found manifest necessity, but whether the trial court abused its discretion

in finding manifest necessity.” Id. at 220. A reviewing court will generally defer to the trial

court’s determination that the jury is deadlocked because that court is in the best position to

assess all factors that might affect whether the jury would be able to reach a verdict on further

deliberation. Renico v Lett, 559 US 766, 772, 774; 130 S Ct 1855; 176 L Ed 2d 678 (2010).

C. ANALYSIS

The United States and Michigan Constitutions prohibit placing a defendant twice in

jeopardy for a single offense. US Const, Am V; Const 1963, art 1, § 15; Ream, 481 Mich at 227.

The state and federal constitutional guarantees are substantially identical and should be similarly

construed. People v Davis, 472 Mich 156, 161; 695 NW2d 45 (2005). The Double Jeopardy

Clause precludes the prosecution from making repeated attempts to convict a defendant for the

same offense. Lett, 466 Mich at 214. Once jeopardy has attached, the accused has a valuable

right in having his or her trial concluded by the jury sworn to hear the case. Id. at 214-215.

Generally, jeopardy attaches in a jury trial once the jury is impaneled and sworn. People

v Mehall, 454 Mich 1, 4; 557 NW2d 110 (1997). Once jeopardy attaches, the defendant has a

constitutional right to have his case completed and decided by that tribunal. People v Henry, 248

Mich App 313, 318; 639 NW2d 285 (2001). “If the trial is concluded prematurely, a retrial for

that offense is prohibited unless the defendant consented to the interruption or a mistrial was

declared because of a manifest necessity.” Mehall, 454 Mich at 4. A jury’s inability to reach a

unanimous verdict is one circumstance that constitutes a manifest necessity permitting retrial.

Id. Indeed, a “hung jury” is the “prototypical example” of a situation when the “manifest

necessity” standard is satisfied with respect to granting a mistrial and permitting retrial. Lett,

466 Mich at 217, citing Oregon v Kennedy, 456 US 667, 672; 102 S Ct 2083; 72 L Ed 2d 416

(1982). “Necessarily intertwined with the constitutional [double jeopardy] issue . . . is the

threshold issue whether the trial court properly declared a mistrial.” Id. at 213.

Defendant’s first jury trial began with jury selection on December 11, 2012, and

continued for the next three days with the attorney’s opening statements, the testimony of

witnesses, the attorney’s closing arguments, and the trial court’s instructions to the jury. The

jury began their deliberations on December 13, 2012, at approximately 3:48 p.m. After

deliberating that afternoon without having reached a verdict, the trial court excused the jury for

the day at approximately 5:37 p.m. It ordered them to return the next morning at 9:00 a.m. to

continue their deliberations. The record reflects that the jury continued to deliberate on

December 14, 2012. The jury returned to the courtroom at 11:58 a.m. for the trial court to

respond to two communications it had received from the jurors. The record shows that the jury

was, as of that moment, unable to reach a verdict. The trial court addressed the jury and

responded to a request for certain testimony to be read back. The court then stated it had

received a note within the last fifteen minutes that read, “Can’t agree, no one willing to change

their verdict . . . .” After cautioning the jury against revealing “how your voting stands,” the trial

court read a detailed “deadlocked jury” instruction and asked the jury to continue deliberating

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after they had lunch. Neither the prosecution nor defense counsel expressed an objection to the

deadlocked jury instruction in response to the trial court’s invitation to do so.

After their lunch break and further deliberations, the trial court received another

communication from the jury. The jury returned to the courtroom at approximately 2:59 p.m.,

and the trial court again addressed them:

Members of the jury, the Court has received your most recent

communication and it reads as follows: “We are unable to reach a verdict.” In

light of that and considering the length of time you have spent in deliberations,

and the earlier instruction that the Court gave to you after you initially reported

that you were unable to reach a verdict, I do hereby declare a mistrial in this case.

I thank you, very much, for your jury service. This jury is discharged.

The jury was discharged without any further remark appearing on the record. Defense counsel

did not object or further comment in response to the trial court’s decision to declare a mistrial

due to the jury’s inability to reach a unanimous verdict.

Defendant argues that the trial court abused its discretion by not considering reasonable

alternatives before sua sponte declaring a mistrial and that the court should have made findings

on the record showing that no reasonable alternative to declaring a mistrial existed. This

argument is without merit as neither our Supreme Court nor the United States Supreme Court has

ever required that a trial court follow a particular procedure, consider alternatives to a mistrial, or

make record findings before declaring a mistrial on the basis that a jury is unable to reach a

unanimous verdict. See Lett, 466 Mich at 221 (footnote omitted) (“[T]his Court has never

required an examination of alternatives before a trial judge declares a mistrial on the basis of jury

deadlock; nor have we ever required that the judge conduct a “manifest necessity” hearing or

make findings on the record.”). And, the United States Supreme Court has opined:

We have expressly declined to require the “mechanical application” of any

“rigid formula” when trial judges decide whether jury deadlock warrants a

mistrial. We have also explicitly held that a trial judge declaring a mistrial is not

required to make explicit findings of “ ‘manifest necessity’ ” nor to “articulate on

the record all the factors which informed the deliberate exercise of his discretion.”

And we have never required a trial judge, before declaring a mistrial based on

jury deadlock, to force the jury to deliberate for a minimum period of time, to

question the jurors individually, to consult with (or obtain the consent of) either

the prosecutor or defense counsel, to issue a supplemental jury instruction, or to

consider any other means of breaking the impasse. [Renico, 559 US at 775

(citations omitted).]

There is nothing in this record to suggest that the trial court abused its broad discretion in

determining that manifest necessity required the declaration of a mistrial because the jury was

unable to reach a unanimous verdict in the case. The jury deliberated for almost two hours the

first afternoon after receiving the trial court’s final instructions. The next morning, the jury

continued deliberating for approximately another three hours, from approximately 9:00 a.m. to

11:58 a.m., before advising the trial court that it was having difficulty reaching a verdict because

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the members of the jury “[c]an’t agree, no one willing to change their verdict.” The trial court

then specifically encouraged the jury to attempt to reach a unanimous verdict by reading them

the “deadlocked jury” instruction and requiring the jury to continue deliberations. After further

deliberations, the jury again indicated that it was “unable to reach a verdict.” The trial court is in

the best position to assess all factors that might affect whether the jury would be able to reach a

verdict on further deliberation. Renico, 559 US at 774. Under these circumstances, with no

objection by either party, the trial court’s declaration of a mistrial in defendant’s first trial was a

proper exercise of judicial discretion. As in Lett, 466 Mich at 223, “manifest necessity for the

jury’s discharge existed, and defendant’s retrial did not constitute a constitutionally

impermissible successive prosecution.”

IV. SENTENCING ISSUES

Defendant next argues that the trial court erred by scoring offense variable (OV) 10 at 15

points because “predatory conduct” was not involved and also erred by scoring OV 14 at 10

points because defendant was not a leader in a multiple offender situation. Because defendant

timely objected to the scoring of OV 10 and OV 14 and the trial court heard and decided the

objections against him, he has preserved this issue for appeal. MCL 769.34(10); MCR 6.429(C);

People v Jones, 297 Mich App 80, 83; 823 NW2d 312 (2012).

A. STANDARD OF REVIEW

Our review of a sentence imposed under the statutory guidelines is limited to determining

whether the sentence was imposed within the appropriate guidelines range and, if not, whether

the trial court based its departure from the recommended range upon an articulated substantial

and compelling reason. MCL 769.34(2), (3), (10); People v Babcock, 469 Mich 247, 272-273;

666 NW2d 231 (2003); People v Malinowski, 301 Mich App 182, 185; 835 NW2d 468 (2013).

With respect to any factual findings necessary, we review the trial court’s determinations for

clear error and for whether they are supported by a preponderance of the evidence. People v

Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to

satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is

a question of statutory interpretation, which an appellate court reviews de novo.” Id.

B. ANALYSIS

The preponderance of the evidence in the record supports the trial court’s scoring of 15

points under OV 10 for predatory conduct in the exploitation of a vulnerable victim, MCL

777.40(1)(a), as well as the trial court’s determination that defendant was a leader in a multiple-

offender situation, MCL 777.44(1)(a). Thus, the trial court did not clearly err when it assessed

10 points for OV 14 and 15 points for OV 10. Hardy, 494 Mich at 438. Because defendant’s

sentences were within the recommended range of appropriately scored sentencing guidelines, we

must affirm those sentences. MCL 769.34(10); Babcock, 469 Mich at 261, 272.

OV 10 of the sentencing guidelines addresses the exploitation of a vulnerable victim.

MCL 777.40(1). Points are assessed under this OV when exploitive conduct was directed

against a vulnerable victim and the vulnerability was readily apparent, in that the victim was

susceptible to injury, physical restraint, persuasion or temptation. MCL 777.40(3)(c); People v

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Cannon, 481 Mich 152, 157-158; 749 NW2d 257 (2008). Under OV 10, a court must assess 15

points if predatory conduct was involved. MCL 777.40(1)(a). “Predatory conduct” is defined as

“preoffense conduct directed at a victim . . . for the primary purpose of victimization.” MCL

777.40(3)(a). To victimize is to make a victim of someone, and a victim is a person who suffers

from a destructive or injurious action. Cannon, 481 Mich at 161. Predatory conduct under OV

10 must be preoffense conduct that is predatory rather than purely opportunistic criminal

conduct. People v Huston, 489 Mich 451, 462; 802 NW2d 261 (2011). Predatory conduct need

not be directed at one particular or specific victim, but it must be directed at a victim. Id at 459.

The timing and location of an offense—waiting until a victim is alone and isolated—is evidence

of predatory conduct. People v Kosik, 303 Mich App 146, 160; 841 NW2d 906 (2013); People v

Witherspoon, 257 Mich App 329, 336; 670 NW2d 434 (2003). Lying in wait while armed to rob

a delivery person at an isolated location is predatory conduct. Huston, 489 Mich at 463.

The record contains more than ample evidence to support the trial court’s scoring OV 10

at 15 points on the basis of defendant’s predatory planning and participation in the exploitation

of a vulnerable victim. See Huston, 489 Mich at 459-468. Both Anteyon and Jones testified that

defendant helped select a suitable location for the planned crime: the empty house with no

electricity on a dead-end street. Other testimony confirmed that there was no power at the house

and that it was dark. Once the victim arrived with the large, cumbersome pizza order, defendant

and his cohorts surrounded the victim while armed with what appeared to be a real gun. Thus,

the record shows that defendant engaged in predatory conduct by planning and implementing the

crime at the abandoned house and by lying in wait at the isolated, dark location to victimize the

pizza delivery person. This evidence supported the trial court’s finding that “the conduct,

involved by the defendants in this case constituted predatory conduct; that is, it was pre-offense

conduct designed to lure the victim to this location of the abandoned home where they then, on

the pretext of paying him, lured him in to a dark and abandoned home where he was jumped and

robbed.” The trial court properly scored 15 points for OV 10 on the basis of exploitation of a

vulnerable victim involving predatory conduct. MCL 777.40(1)(a).

Offense variable 14 of the sentencing guidelines addresses the offender’s role in the

offense. MCL 777.44(1); People v Gibbs, 299 Mich App 473, 493; 830 NW2d 821 (2013).

“The entire criminal transaction should be considered when scoring this variable.” MCL

777.44(2)(a); People v Lockett, 295 Mich App 165, 184; 814 NW2d 295 (2012). A court must

assess 10 points where “the offender was a leader in a multiple offender situation.” MCL

777.44(1)(a).

A “multiple offender situation” is one where more than one person-- up to several or

many persons-- participates in a violation of the law. People v Jones, 299 Mich App 284, 287;

829 NW2d 350 (2013), vacated in part on other grounds 494 Mich 880 (2013). A “leader” is a

person who acts as a “‘guiding or directing head’ of a group.” Id., quoting Random House

Webster’s College Dictionary (1997).

While defendant argues that the trial court erred by assessing 10 points for OV 14, we

find that a preponderance of evidence in the record supports the trial court’s scoring. Hardy, 494

Mich at 438. There was testimony that defendant paid Smith’s travel expenses from Chicago to

Dowagiac. Both Anteyon and Jones testified that it was defendant who first expressed the idea

of committing an armed robbery when defendant told them he had done “home delivery

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robberies” of pizza delivery men in Wisconsin. When Jones protested that he “didn’t come out

here for that,” defendant refused to take no for an answer and insisted that “we need to get this

money” for them to return to Chicago. Rolandis also testified he heard defendant suggest a

robbery, but that he declined to participate. Testimony showed it was defendant who selected

Pizza Hut and directed a female friend to place the false order for him, giving her the address to

the abandoned house where the crime was to take place. Defendant initiated the robbery by

signaling with the words, “Dad, the pizza man here [sic].” Defendant also directed the group to

call him “Pistol,” and it was he who held the BB gun to the victim’s face during the robbery. On

this evidence, the trial court did not clearly err by assessing 10 points for OV 14. MCL

777.44(1)(a).

In summary, the preponderance of the evidence in the record supports the trial court’s

scoring of 15 points for OV 10 and 10 points for OV 14.2 Hardy, 494 Mich at 438. Because

defendant’s sentences were within the recommended range of appropriately scored sentencing

guidelines, we must affirm those sentences. MCL 769.34(10); Babcock, 469 Mich at 261, 272.

We affirm all defendant’s convictions and sentences except that for carrying a dangerous

weapon with unlawful intent, MCL 750.226, which we vacate. We remand for entry of an

amended judgment of sentence consistent with this opinion; we do not retain jurisdiction.

/s/ Jane E. Markey

/s/ Michael J. Riordan

/s/ Kurtis T. Wilder

2

In a footnote, defendant asserts as an “aside” that OV 2, MCL 777.22, was erroneously scored.

Defendant has abandoned this claim by merely announcing his position without citation to

authority and by expecting this Court to discover and rationalize the basis for his claim. People v

Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001). Defendant’s failure to properly

address the merits of his assertion of error constitutes abandonment of this claim. People v

Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).

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