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People v. Oros

Court of Appeals of Michigan

June 8, 2017

CHRISTOPHER ALLAN OROS, Defendant-Appellant.

         Kalamazoo Circuit Court LC No. 2014-001711-FC

          Before: Stephens, P.J., and Shapiro and Gadola, JJ.

          PER CURIAM.

         Defendant appeals from his jury convictions of first-degree premeditated murder, MCL 750.316(1)(a); first-degree felony murder, MCL 750.316(1)(b); first-degree arson, MCL 750.72; second-degree home invasion, MCL 750.110a(3); and escape while awaiting trial, MCL 750.197(2). He asserts that there was insufficient evidence to support the conviction of premeditated murder and felony murder and that those convictions should be reduced to second degree murder. He also seeks reversal on grounds of evidentiary and procedural error as well as a resentencing.

         For the reasons set forth in this opinion, we reduce defendant's conviction of first degree premeditated murder to second-degree murder and remand for sentencing for that offense. We also vacate his conviction of felony murder and remand for a new trial on that charge. We reject his other claims of error and do not address the sentencing issue as it is moot.

         I. FACTS

         On November 22, 2014, emergency personnel responded to a fire at the apartment complex of the victim, Marie McMillan, in Kalamazoo, Michigan. The responders extinguished the fire and discovered the victim's body on a bed in her bedroom. Testimony from first responders showed that someone had piled items over her body and set it on fire. An autopsy determined that the victim had died before the fire was set as a result of multiple stab wounds.

         Police officers learned that a man had been knocking on the doors of the apartments of the victim's neighbors throughout the day of the fire and using a fake story to solicit money. He would tell the residents that his girlfriend had left with his car, debit card, and cell phone. He would then ask to use the person's phone, and, if allowed to do so, he would make a call to a number where no one was available to answer it. After the "unsuccessful" call, he would directly or indirectly solicit money from the resident.

         Officers determined that the number this man would call from the residents' phones was associated with defendant. They also learned that a call had been made to that number from the victim's phone. The officers tracked defendant down at his apartment in Battle Creek, Michigan, which he shared with his girlfriend, Robin Wiley.[1] When officers arrived, defendant unsuccessfully attempted to flee. After the arrest, defendant was interrogated.[2] During the interrogation, defendant admitted that he had gotten the victim to let him into her apartment and used her phone. He claimed that she then attacked him without provocation by hitting him on the head with a coffee mug and sat on top of him with a "huge knife in her hand." He said that he and the victim struggled for control of the knife, and, when he gained control of the knife, he began stabbing the victim first in the stomach and then, after getting on the victim's back, in the neck and other parts of her body. There were 29 stab wounds in all.

         Defendant was charged with both first degree premeditated murder and first-degree felony murder. At trial, defendant argued that he was not guilty of murder because he killed the victim in self-defense. In the alternative, he argued that there were mitigating circumstances that reduced his culpability for her death. The jury rejected his defense and found him guilty as described.


         Defendant first challenges the sufficiency of the evidence for his first-degree premeditated murder conviction.[3] "The sufficient evidence requirement is a part of every criminal defendant's due process rights." People v. Wolfe, 440 Mich. 508, 514; 489 N.W.2d 748 (1992), amended on other grounds 441 Mich. 1201 (1992). "[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." Id. at 515-516, citing People v. Hampton, 407 Mich. 354, 368; 285 N.W.2d 284 (1979) cert den 449 U.S. 885; 101 S.Ct. 239; 66 L.Ed.2d 239 (1980). "The fact that some evidence is introduced does not necessarily mean that the evidence is sufficient to raise a jury issue." Hampton, 407 Mich. at 368. "[C]ircumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." People v. Lee, 243 Mich.App. 163, 167-168; 622 N.W.2d 71 (2000). Defendant does not argue that there was insufficient evidence from which a reasonable jury could have found that he killed McMillan and did so with malice and so he concedes that there was sufficient evidence to support a verdict of second-degree murder. People v. Roper, 286 Mich.App. 77, 84; 777 N.W.2d 483 (2009) (stating that the elements of second-degree murder are (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse). Instead, he argues that the prosecution failed to present any evidence from which the jury could reasonably find that he deliberated or premeditated thereby elevating the crime to first degree murder.

         First degree murder is a statutory offense. Therefore, we must "interpret the statute by examining its plain language and by employing applicable rules of statutory construction." People v. Anstey, 476 Mich. 436, 445 n 7; 719 N.W.2d 579 (2006) (emphasis in original). The Legislature defined first-degree murder as, in relevant part, "[m]urder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing, " (emphasis added) or as murder "committed in the perpetration of, or attempt to perpetrate" certain enumerated offenses. MCL 750.316(1). Significantly, the Legislature used the conjunctive word "and" in the phrase "other willful, deliberate and premeditated killing." We must, therefore, presume that the Legislature intended different meaning for the words, and there must be evidence of all three to sustain a conviction on this basis. See Liberty Hill Housing Corp v. Livonia, 480 Mich. 44, 57; 746 N.W.2d 282 (2008) (stating that when the conjunctive is used the Legislature presumes different meanings) and People v. Gardner, 402 Mich. 460, 473-474; 265 N.W.2d 1 (1978) (stating that because the "assault with intent to rob unarmed statute is conjunctive; there must be an assault with force and violence").

         To "premeditate" means "to think beforehand." People v. Morrin, 31 Mich.App. 301, 329187 N.W.2d 434 (1971). Merriam-Webster's Collegiate Dictionary (11th ed) defines "premeditate" as "to think about and revolve in the mind beforehand." Black's Law Dictionary (10th ed) defines "premeditation" as "[c]onscious consideration and planning that precedes an act (such as committing a crime); the pondering of an action before carrying it out."[4]Premeditation can be proved through circumstantial evidence, however, inferences may "not be arrived at by mere speculation." People v. O'Brien, 89 Mich.App. 704, 710; 282 N.W.2d 190 (1979). The prosecution may establish premeditation and deliberation through (1) evidence of the parties' prior relationship, (2) the defendant's actions before the killing, (3) the circumstances surrounding the killing itself, and (4) the defendant's conduct after the killing. People v. Schollaert, 194 Mich.App. 158, 170; 486 N.W.2d 312 (1992).

         As to the first factor, no evidence was presented that defendant and the victim had a prior relationship. Nor was there any evidence that defendant had previously threatened the victim or that she ever expressed fear of defendant. Thus, consideration of the parties' prior relationship yields no evidence to support a finding of premeditation.

         The second factor, i.e. defendant's actions before the murder, similarly yields no support for a finding of premeditation. Defendant had a well-evidenced pattern of trying to trick people into giving him money by using a false story of being locked out of his apartment and needing to get to his place of work. Residents of four other apartments in the same complex that the victim lived in testified that defendant attempted the same scam with them that afternoon, and, though some described him as intimidating, none testified that he acted violently. There was no evidence to suggest that defendant acted with a different plan when he knocked on the victim's door.

         The fourth factor concerns the defendant's actions after the murder. In this case, defendant did attempt to cover up the murder, but his actions do not suggest that these attempts were part of a pre-offense plan. He washed the knife, which was an ordinary steak knife, in the victim's kitchen sink and left it there. Nearly two hours later, [5] ample time after the crime to think about the extensive evidence at the victim's apartment, he returned to the apartment, removed bloodied items and set the fire. While evidence an assailant attempted to cover up a murder in its immediate aftermath can support a reasonable inference that the series of events was part of a preconceived plan, see People v. Gonzalez, 468 Mich. 636, 638-639, 642; 664 N.W.2d 159 (2003), the evidence of defendant's actions after the murder in this case do not evidence a preconceived plan. To the contrary, the fact that defendant initially left the victim's apartment after doing very little, if any, clean up suggests that even after the murder defendant's thought process was still unsettled and that he had not preplanned any means of covering ...

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