People of Michigan v. Darrell Antoin Winters

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

August 11, 2015

Plaintiff-Appellee,

v No. 320739

Wayne Circuit Court

DARRELL ANTOIN WINTERS, LC No. 13-009956-FC

Defendant-Appellant.

Before: SAAD, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

Defendant Darrell Antoin Winters appeals by right his jury conviction of armed robbery.

MCL 750.529. The jury acquitted Winters of possessing a firearm during the commission of a

felony (felony-firearm), MCL 750.227b, and of being a felon in possession of a firearm, MCL

750.224f. The trial court sentenced Winters as a third habitual offender to serve 14 to 21 years in

prison. Because we conclude there were no errors warranting a new trial, we affirm Winters’

conviction. However, for the reasons more fully explained below, we remand for resentencing.

I. SENTENCING

Winters first argues that the trial court erred when it scored his offense variables (OVs).

Specifically, he maintains the trial court should not have scored 10 points under OV 1 and 10

points under OV 9. This Court reviews for clear error the trial court’s findings underlying its

decision to score offense variables. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

A finding is clearly erroneous if this Court is “definitely and firmly convinced that [the

sentencing court] made a mistake.” People v Armstrong, 305 Mich App 230, 242; 851 NW2d

856 (2014). However, this Court reviews de novo “[w]hether the facts, as found, are adequate to

satisfy the scoring conditions prescribed by statute . . . .” Hardy, 494 Mich at 438. This Court

also reviews de novo the proper interpretation of the sentencing guidelines. People v Gullett,

277 Mich App 214, 217; 744 NW2d 200 (2007). When scoring the offense variables during

sentencing, the trial court may consider all of the evidence in the record, and the trial court’s

determination of an offense variable must be supported by a preponderance of evidence.

Armstrong, 305 Mich App at 245.

-1-

The trial court had to score points under OV 1 on the basis of Winters’ aggravated use of

a weapon. MCL 777.31(1). The trial court had to score fifteen points under OV 1 if “[a] firearm

was pointed at or toward a victim . . . .” MCL 777.31(1)(c). Ten points had to be assessed if

“[t]he victim was touched by any other type of weapon.” MCL 777.31(1)(d). Five points shall

be assessed if “[a] weapon was displayed or implied.” MCL 777.31(1)(e). Likewise, five points

shall be assessed “if an offender used an object to suggest the presence of a weapon.” MCL

777.31(2)(c). However, a trial court may not assess five points if the conviction offense was for

felonious assault or armed robbery. See MCL 777.31(2)(e). The trial court had to score zero

points if “[n]o aggravated use of a weapon occurred.” MCL 777.31(1)(f).

At sentencing, the trial court stated that it would score OV 1 consistent with the jury’s

decision to acquit Winters on the firearm charges. Accordingly, it refused to score fifteen points

under OV 1, notwithstanding the evidence that Winters used a firearm. Instead, the trial court

assessed 10 points for OV 1: “I do believe the People have shown by a preponderance of the

evidence that the victim was touched by any other type of weapon, whether it be a pipe -- but

they just weren’t convinced beyond a reasonable doubt that it was a firearm.”

On appeal, Winters argues that the trial court was not permitted to assess 5, 10, or 15

points for OV 1 because the jury rejected Renard Culp’s testimony that the object used during

the robbery was a firearm, there was no evidence of another “actual weapon,” and the trial court

was not permitted to assess five points for OV 1 under MCL 777.31(1)(d). Contrary to Winters’

argument, this Court has held that an object that is not an “actual” weapon per se, but, instead, is

an “instrument or device used for attack,” may qualify as “any other type of weapon” and justify

an assessment of 10 points for OV 1. See People v Lange, 251 Mich App 247, 255-257; 650

NW2d 691 (2002).

Nonetheless, we agree that the trial court erred when it scored OV 1. The trial court had

an obligation to score the required offense variables and to score them correctly. People v

Bemer, 286 Mich App 26, 32, 35; 777 NW2d 464 (2009). Moreover, because the burden of

proof for findings at sentencing is a preponderance of the evidence, and the burden to convict is

beyond a reasonable doubt, a trial court may make findings that are inconsistent with the jury’s

findings. See People v Ratkov, 201 Mich App 123, 126; 505 NW2d 886 (1993), remanded by

447 Mich 984 (1994). By deferring to the jury’s decision to acquit, the trial court essentially

abrogated its duty to make findings on the whole record and properly apply the sentencing

guidelines to those facts, which it could not do. Bemer, 286 Mich App at 32, 35 (recognizing

that trial courts have a duty to properly score every variable).

At trial, the evidence—if believed—showed that Winters used a firearm and touched a

victim with it. Because the trial court must score each of the required variables and must score

them properly, the trial court had to consider the evidence and make its own independent

findings on the basis of the evidence; it could not abrogate its duty out of deference to the jury.

Bemer, 286 Mich App 32, 35. The use of the phrase “any other type” indicates that the type of

weapon that qualifies for an assessment of 10 points must be a weapon that is not previously

enumerated in the statute. See MCL 777.31(1). As such, the trial court clearly erred when it

found by a preponderance of evidence that Culp was touched “by any other type of weapon”

because there was no evidence in the lower court record indicating that Winters touched Culp

with anything other than a firearm. Hardy, 494 Mich at 438. Instead, to the extent that the trial

-2-

court believed Culp’s testimony, it should have found that “[a] firearm was pointed at or toward

a victim” and assessed 15 points for OV 1. To the extent that the trial court did not believe

Culp’s testimony, it should have scored OV 1 at zero.

Winters also argues that the trial court clearly erred when it found that Edward Alexander

was a victim and assessed 10 points under OV 9. The evidence showed that Alexander was

persuaded to leave the scene and did not even realize that Winters was robbing Culp.

Nevertheless, the trial court found that Alexander was a victim because he was in danger of

injury or death if Culp had not been able to get him to leave the area.

The trial court had to score ten points under OV 9 if “[t]here were 2 to 9 victims who

were placed in danger of physical injury or death . . . .” MCL 777.39(1)(c). Zero points shall be

assessed if “[t]here were fewer than 2 victims who were placed in danger of physical injury or

death . . . .” MCL 777.39(1)(d). The trial court should “[c]ount each person who was placed in

danger of physical injury or loss of life or property as a victim.” MCL 777.39(2)(a). The term

“victim” is plainly not limited to the defendant’s intended victim, but includes individuals placed

in danger during the commission of the offense. People v Morson, 471 Mich 248, 262; 685

NW2d 203 (2004). Likewise, “[a] person may be a victim under OV 9 even if he or she did not

suffer actual harm; a close proximity to a physically threatening situation may suffice to count

the person as a victim.” People v Gratsch, 299 Mich App 604, 624; 831 NW2d 462 (2013),

vacated in part on other grounds 495 Mich 876 (2013).

The trial court did not clearly err when it found that Alexander was in danger of physical

injury or death at the time of the robbery. There was testimony that Winters intended to hurt

Alexander if Culp were unable to get him to leave the office. According to Culp, Winters

“started making little threats,” including “[D]on’t make me pull this scrap[1] out on [Alexander],

too, like we got to get [Alexander] up out that office[;] like[,] I need them hundreds,” before

moving into the office area where Alexander was working. This was sufficient to support the

trial court’s finding. Hardy, 494 Mich at 438. There is nothing in the statutory scheme that

requires that the victim be aware of his or her danger before the trial court may count him or her

as a victim. Gratsch, 299 Mich App at 624.

The trial court properly assessed 10 points under OV 9.

Because the trial court erred when it scored OV 1 and the proper scoring of OV 1 might

alter the applicable sentencing range, we conclude that resentencing is required. Jackson, 487

Mich at 793-794. Accordingly, we remand this case to the trial court for resentencing consistent

with this opinion.

II. SUFFICIENCY OF THE EVIDENCE

In a brief submitted on his own behalf, Winters argues that the prosecution presented

insufficient evidence for a reasonable jury to find him guilty beyond a reasonable doubt of armed

1

According to Culp, “scrap” is a term “on the streets” for the word “gun.”

-3-

robbery. In reviewing a challenge to the sufficiency of the evidence, this Court reviews the

record de novo to determine whether a reasonable jury could have found that the prosecution

proved the essential elements of the crime beyond a reasonable doubt. People v Meissner, 294

Mich App 438, 452; 812 NW2d 37 (2011). This “standard of review is deferential: a reviewing

court is required to draw all reasonable inferences and make credibility choices in support of the

jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

In order to prove the elements of armed robbery, the prosecution must demonstrate that:

(1) the defendant, in the course of committing a larceny of any money or other

property that may be the subject of a larceny, used force or violence against any

person who was present or assaulted or put the person in fear, and (2) the

defendant, in the course of committing the larceny, either possessed a dangerous

weapon, possessed an article used or fashioned in a manner to lead any person

present to reasonably believe that the article was a dangerous weapon, or

represented orally or otherwise that he or she was in possession of a dangerous

weapon. [People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007).]

On appeal, Winters argues that the prosecution presented insufficient evidence to

establish that he was “armed” during the robbery. In support of his argument, he asserts that the

jury must have disbelieved Culp’s testimony that he had a gun because he was acquitted on the

felony-firearm and felon in possession charges, and that “[t]he prosecution did not charge

defendant under the statutory alternative[s] . . . .” Winters’ argument is unavailing; a jury may

render inconsistent verdicts:

Juries are not held to any rules of logic nor are they required to explain

their decisions. The ability to convict or acquit another individual of a crime is a

grave responsibility and an awesome power. An element of this power is the

jury’s capacity for leniency. Since we are unable to know just how the jury

reached their conclusion, whether the result of compassion or compromise, it is

unrealistic to believe that a jury would intend that an acquittal on one count and

conviction on another would serve as the reason for defendant’s release. These

considerations change when a case is tried by a judge sitting without a jury. But

we feel that the mercy-dispensing power of the jury may serve to release a

defendant from some of the consequences of his act without absolving him of all

responsibility. [People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980).]

Further, the jury’s verdicts in this case were not necessarily inconsistent, as the jury may

have concluded that the evidence demonstrated beyond a reasonable doubt that Winters

possessed a dangerous weapon or represented that he had a weapon, but did not demonstrate

beyond a reasonable doubt that defendant possessed a gun. See id. at 467. Therefore, the mere

fact that the jury acquitted Winters of felony-firearm and felon in possession of a firearm does

not demonstrate that the prosecution presented insufficient evidence at trial for a reasonable jury

to find him guilty of armed robbery. Meissner, 294 Mich App at 452.

-4-

In addition, it is immaterial to the sufficiency of the evidence claim that the armed

robbery charge in the felony information only alleged that Winters “possessed a gun, a

dangerous weapon,” during the offense and did not allege that he possessed another object that

was utilized or presented in a manner that led Culp to believe that it was a dangerous weapon or

that he represented that he had a weapon; the evidence presented at trial was sufficient for a

reasonable jury to conclude beyond a reasonable doubt that Winters committed a larceny by

using force and putting Culp in fear and did so while possessing a gun. Chambers, 277 Mich

App at 7. Culp’s testimony that Winters held a gun to his back, grabbed Culp’s body, spun Culp

around, demanded money, threatened him, and took money that was in Culp’s pocket and in the

office—and Culp’s testimony that he was afraid that Winters would injure Alexander or him if

he did not comply—demonstrated that Winters committed a larceny through the use of force and

by putting Culp in fear. Id. A rational jury could conclude beyond a reasonable doubt that

Winters possessed a gun when he committed the robbery based on Culp’s testimony that he

carried a .380 caliber semi-automatic firearm during the offense and that Winters referred to the

weapon as a “scrap,” which is a term used on the streets for a gun. Id.2

There was sufficient evidence to support Winters’ conviction.

III. JURY INSTRUCTION

Finally, Winters argues that the trial court’s instruction of the jury regarding the elements

of armed robbery constituted a constructive amendment of the felony information that violated

his right to have notice of the charges against him. At trial, Winters’ lawyer stated on the record

that he had no objection to the trial court’s jury instructions. Therefore, Winters’ lawyer waived

review of this issue. People v Kowalski, 489 Mich 488, 503-505; 803 NW2d 200 (2011).

Even if it were not waived, the claim is without merit. The trial court instructed the jury,

in relevant part, that it had to find beyond a reasonable doubt that Culp was present while

Winters committed the underlying larceny and that he possessed a dangerous weapon or

“possessed any other object used or fashioned in a manner to lead the person who was present to

reasonably believe that it was a dangerous weapon[,] or represented orally or otherwise that he

was in possession of a weapon.”

“Grounded in a defendant’s constitutional right of due process of law is the principle that

[a]n accused shall not be called upon to defend himself against a charge of which he was not

sufficiently apprised.” People v Higuera, 244 Mich App 429, 442; 625 NW2d 444 (2001)

(quotation marks and citations omitted). Likewise, an indictment or information must inform the

defendant of the “nature of the offense stated in language which will fairly apprise the accused

2

Even if the jury concluded that Culp erroneously believed that the object was a gun, Culp’s

testimony provided sufficient evidence for a rational jury to conclude beyond a reasonable doubt

that Winters either possessed a dangerous weapon other than a gun, utilized or fashioned an

object in a manner that led Culp to reasonably believe that he possessed a dangerous weapon, or

represented orally that the object was a gun during the commission of the larceny, which would

also fulfill the second element of armed robbery. Chambers, 277 Mich App at 7.

-5-

and the court of the offense charged.” MCL 767.45(1)(a). Nevertheless, the trial court may

amend the information before, during, or after the trial unless the amendment would unfairly

mislead, surprise, or prejudice the defendant. MCL 767.76; People v Jones, 252 Mich App 1, 4-

5; 650 NW2d 717 (2002). “A defendant is not prejudiced by an amendment to the information to

cure a defect in the offense charged where the original information was sufficient to inform the

defendant and the court of the nature of the charge.” People v Covington, 132 Mich App 79, 86;

346 NW2d 903 (1984).

The description of the charge in the felony information provided notice of the elements of

the charge by including a citation to MCL 750.529, which expressly indicates that a person may

be guilty of a felony under that section if the person “possesses a dangerous weapon or an article

used or fashioned in a manner to lead any person present to reasonably believe the article is a

dangerous weapon, or who represents orally or otherwise that he or she is in possession of a

dangerous weapon.” Likewise, the district court order binding Winters over to the circuit court

for trial on the armed robbery charge also cited MCL 750.529 as the statutory basis of his charge.

Additionally, Winters was tried for the exact charges on which he was bound over to the circuit

court following the preliminary examination, and the trial court’s jury instructions did not add

any charges that were not included in the amended felony information. Stated differently, the

constructive amendment did not relate to a new or different act or offense, but only related to the

manner in which Winters was “armed” during the robbery. Thus, at most, the trial court’s

instruction provided an alternative theory upon which Winters could be convicted of armed

robbery. As such, the armed robbery charge in the information provided sufficient notice of the

nature of the charge against Winters.

Further, Winters has not explained how the purported amendment prejudiced his defense

strategy or otherwise affected the outcome of the proceeding. Winters’ lawyer acknowledged at

trial that the defense theory was that the robbery never occurred, and this defense strategy was

evident during defense counsel’s cross-examination of the prosecution’s witnesses and his

closing argument. Because this defense was applicable regardless of the means by which

Winters was “armed” during the offense, there is no indication that he would have offered a

different defense if the armed robbery charge had been framed differently in the felony

information or if the trial court had not provided the jury instruction at issue. Furthermore, the

trial court provided the same instruction regarding the elements of armed robbery at the

beginning of the trial, which demonstrates that Winters had notice of the instruction and ample

opportunity to adjust his defense accordingly. Accordingly, there is no indication that the trial

court’s jury instructions violated Winters’ statutory and constitutional right to reasonable notice

of the charges against him, People v McGee, 258 Mich App 683, 699; 672 NW2d 191 (2003), or

that he was prejudiced or unfairly surprised by the change, Jones, 252 Mich App at 4-5.

There was no instructional error warranting a new trial.

-6-

V. CONCLUSION

There were no errors warranting a new trial. However, the trial court clearly erred when

it found that Winters possessed a dangerous weapon other than a firearm and erred when it

scored OV 1 on the basis of that finding. Therefore, we vacate Winters’ sentence and remand

this case to the trial court for resentencing. On remand, the trial court shall reevaluate the

evidence concerning Winters’ use of a weapon and make the findings necessary to properly score

OV 1. After scoring OV 1, the trial court shall resentence Winters.

Affirmed in part, vacated in part, and remanded for resentencing consistent with this

opinion. We do not retain jurisdiction.

/s/ Henry William Saad

/s/ Michael J. Kelly

/s/ Douglas B. Shapiro

-7-