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People v. Haynie

Court of Appeals of Michigan

April 16, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
BRAD STEPHEN HAYNIE, Defendant-Appellant.

          Macomb Circuit Court LC No. 2016-000712-FC

          Before: Jansen, P.J., and Meter and Gleicher, JJ.

          JANSEN, P.J.

         Defendant appeals as of right his jury trial conviction of guilty but mentally ill of assault with intent to do great bodily harm less than murder ("AWIGBH"), MCL 750.84. Defendant was sentenced to 67 to 120 months' imprisonment. We affirm.

         I. RELEVANT FACTUAL BACKGROUND

         This case arises out of defendant's assault of his mother, Patricia Haynie, in his condominium. Patricia sat on the couch while defendant cooked dinner. The two joked and teased each other while defendant cooked. A short time later, defendant walked to the kitchen counter and put down the knife that he had been using. Defendant looked at Patricia with a terrified look on his face and said, "[M]om, I've got to save you, Lucifer has you, your eyes are big black coals." Defendant rushed toward Patricia and snatched the cane out of her hands that she used to try to keep defendant away. Defendant told Patricia that he "was going to have to twist [her] arms into knots and lift [her] up and shake [her] until he got Lucifer to let go of [her] and [her] eyes came back to normal," and he did just that. Defendant let go of Patricia, who called 911 before defendant grabbed her again. Patricia bit defendant, who then punched her.

         Defendant was arrested and charged with assault with intent to murder, MCL 750.83. At trial, defendant argued that the trial court should give jury instructions for the lesser included offenses of AWIGBH, aggravated assault, and assault and battery. The prosecution agreed that an instruction for AWIGBH was proper, but argued that the trial court should not give instructions for aggravated assault or assault and battery. The trial court agreed with the prosecution. As stated above, the jury found defendant guilty but mentally ill of the lesser included offense of AWIGBH.

         II. JURY INSTRUCTIONS

         Defendant first argues that the trial court erred by refusing to give a jury instruction for the lesser included offense of assault and battery. We disagree.

         "Claims of instructional error are generally reviewed de novo by this Court, but the trial court's determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion." People v Dobek, 274 Mich.App. 58, 82; 732 N.W.2d 546 (2007).

         "A defendant has the right to have a properly instructed jury consider the evidence against him or her, and it is the trial court's role to clearly present the case to the jury and to instruct it on the applicable law." People v Henderson, 306 Mich.App. 1, 4; 854 N.W.2d 234 (2014) (quotation marks and citation omitted). "The instructions must include all elements of the charged offenses and any material issues, defenses, and theories if supported by the evidence." People v McGhee, 268 Mich.App. 600, 606; 709 N.W.2d 595 (2005). "[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." People v Cornell, 466 Mich. 335, 357; 646 N.W.2d 127 (2002), overruled in part on other grounds by People v Mendoza, 468 Mich. 527 (2003). "Necessarily included lesser offenses are offenses in which the elements of the lesser offenses are completely subsumed in the greater offense." People v Nickens, 470 Mich. 622, 626; 685 N.W.2d 657 (2007), quoting Mendoza, 468 Mich. at 532 n 3. See also People v Nyx, 479 Mich. 112, 121; 734 N.W.2d 548 (2007) ("[A]n offense is only inferior when all the elements of the lesser offense are included within the greater offense.") Comparatively, "MCL 768.32(1) does not permit cognate lesser instructions." Cornell, 466 Mich. at 357.

         Moreover, "[a]n inferior-offense instruction is appropriate only when a rational view of the evidence supports a conviction for the lesser offense." Cornell, 466 at 545. A trial court's failure to give a lesser included offense instruction is harmless error if "the evidence did not clearly support a conviction for the lesser included [offense]." Id. at 365-366. There must be "more than a modicum" of evidence to show that defendant could have been convicted of the lesser-included offense. People v Cheeks, 216 Mich.App. 470, 479-480; 549 N.W.2d 584 (1996).

         This Court has previously determined that assault and battery is not a necessarily included lesser offense of assault with intent to murder. People v Ross, 73 Mich.App. 588, 592; 252 N.W.2d 526 (1977). Because Ross was decided by this Court prior to November 1, 1990, it is not binding authority. MCR 7.215(J)(1). We now reaffirm Ross to the extent that it concludes assault and battery is not a necessarily included lesser offense of assault with intent to murder. Rather, we conclude that misdemeanor assault and battery is a cognate lesser offense of assault with intent to commit murder because all of the elements of misdemeanor assault and battery are not included within the greater offense of assault with intent to murder.[1] Indeed, "[t]he elements of assault with intent to commit murder are: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder." People v Brown, 267 Mich.App. 141, 147-148; 703 N.W.2d 230 (2005) (quotation marks and citation omitted). Comparatively, assault is "either an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery." People v Starks, 473 Mich. 227, 234; 701 N.W.2d 136 (2005). Battery is "an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." Id. (quotation marks and citation omitted). In short, assault and battery contains an element that assault with intent to murder does not, i.e., a harmful or offensive touching. Therefore, the trial court's determination to not give a lesser offense instruction for assault and battery was proper.

         Moreover, even if we were to conclude that assault and battery was a lesser-included offense, we disagree with the dissent that the facts of this case would support such an instruction. As noted supra, a rational view of the evidence must support an instruction on a necessarily included lesser offense. The evidence must be "more than a modicum" to show that defendant could have been convicted of assault and battery. Cheeks, 216 Mich.App. at 479-480. Our review of the evidence in this case simply does not reflect the commission of a misdemeanor assault and battery occurred. As noted by the dissent, defendant's intent is central to this determination. Defendant's intent can be inferred from "the act, means, or the manner employed to commit the offense." People v Hawkins, 245 Mich.App. 439, 458; 628 N.W.2d 105 (2001) (citation omitted). The victim's injuries are also relevant. People v Dillard, 303 Mich.App. 372, 378; 845 N.W.2d 518 (2003), reversed on other grounds 500 Mich. 14 (2017).

         At trial, Patricia testified that defendant told her that he was "going to have to twist [her] arms into knots and lift [her] up and shake [her] until he got Lucifer to let go of [her] and [her] eyes came back to normal." Defendant then did take her hands, lift her off the couch, and shake her twice. After the second shake, defendant punched Patricia and knocked her unconscious. When Deputy Brandon Cleland arrived at defendant's condominium, he saw that Patricia's face was covered in blood, and he believed that she dragged herself to the door. Patricia's head wound required 16 or 17 staples to close. Detective Anthony Stone, an evidence technician, took pictures of the scene of the assault after defendant was arrested. Detective Stone photographed a metal bar that had wood on it, with horseshoes on either end of the bar, by the couch where Patricia was assaulted. The wood on the bar was cracked, and there was a blood stain on the cracked portion of the bar. There were also bloodstains on the couch. Because of the brutality of the assault, no rational view of the evidence could support a finding of a simple assault and battery.[2]

         Based on the foregoing, we conclude that the trial court did not err by refusing to give an ...


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