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People v. Savage

Court of Appeals of Michigan

April 23, 2019


          Livingston Circuit Court LC No. 16-023638-FC

          Before: Swartzle, P.J., and Markey and Ronayne Krause, JJ.

          SWARTZLE, P.J.

         On the one hand, pepper spray causes extreme burning, blinding of the eyes, and paralysis of the larynx, just to name a few of its intended, debilitating effects. Each of these would qualify as an injury to a person, as that term is commonly understood. On the other hand, pepper spray's debilitating effects are almost always temporary, typically passing within 20 minutes to a few hours, with almost all effects wearing off after a day or so. Does the temporary nature of these debilitating effects mean that they are not "injuries," but rather just "irritant effects"? If injuries, then the trial court properly scored defendant's sentencing guidelines for offense variables 1 and 2; if irritant effects, then the trial court erred.

         We conclude that our Legislature intended to include temporary injuries as well as permanent ones for purposes of offense variables 1 and 2, and therefore the trial court did not err. Finding no other basis to reverse, we affirm.

         I. BACKGROUND

         A jury convicted defendant of armed robbery, MCL 750.529; unlawfully driving away a motor vehicle, MCL 750.413; felonious assault, MCL 750.82; carjacking, MCL 750.529a; and four counts of possession of a pneumatic gun during the commission of a felony (felony-firearm), MCL 750.227b(2). Defendant's convictions followed from an early morning robbery of a hotel in Hartland, Michigan. At the time, the only hotel employee working was a newly hired 19-year-old female clerk. The hotel door was locked, but a masked man knocked on the door, seeking entry. Although she saw that the man was masked, the hotel clerk was afraid of what would happen to her if she ignored him, so she let him inside.

         Once inside, the masked man demanded money from the hotel's cash drawers, the hotel clerk complied, and the man took the money. The masked man also demanded the hotel clerk's purse, she again complied, and the man took her wallet and car keys. The man had what appeared to be a black semiautomatic handgun, and the hotel clerk feared for her life. After taking the money, wallet, and keys, the man told the hotel clerk to get on the ground, and she did. The man then sprayed her in the face with pepper spray and fled. The hotel clerk watched as her car drove away from the hotel, but she admitted that she could not tell if the same person who robbed the hotel took the vehicle.

         The police were called to the hotel. The hotel clerk initially told officers that the robber was "not Black" because she thought that his wrist, visible between the clothing and the gloves that he wore to conceal his identity, looked "tan" in color. She noted that the robber was a few inches taller than her (she is 5'3"). With regard to the chemical used on the hotel clerk, police officers confirmed that it was regular, over-the-counter oleoresin-capsicum-based pepper spray. The officer who arrived at the hotel testified that, based on his experience and training, the effects of the pepper spray could last "an hour, depending on if you reactivate it, it [sic] if you sweat, if you open up any glands, but typically, for vision and for respiratory, it's, I'd say, a minimum of 20 minutes." The officer confirmed that the victim did not suffer from any life-threatening injuries, but she was in considerable pain. The officer used water to flush the chemical off the victim's face. The victim testified that it took a while for the effects of the pepper spray to subside, she was in pain for about 24 hours, but she suffered no "lasting effects."

         Approximately six hours after the hotel robbery, police arrested defendant in Flat Rock, Michigan, while in possession of the hotel clerk's car. Officers observed defendant wearing a mask, and the hotel clerk later identified it as the same mask worn by her assailant. Officers also saw defendant place something under the driver's seat, where they later found a pneumatic handgun painted to appear like an ordinary handgun. The hotel clerk's wallet and keys were in the car, as well as items of clothing and a backpack that matched those worn by the robber as shown in the hotel surveillance video. The police further found a container of pepper spray on defendant, along with $376 in cash. Although the police arrested defendant in Flat Rock, over an hour's drive from the location of the robbery in Hartland, cell-phone records indicated that defendant's cell phone was used near Hartland around the time of the robbery. The police did not conduct forensic testing, such as finger-print analysis or DNA testing. Defendant did not testify on his own behalf.

         After the close of proofs, the prosecutor and defense counsel gave closing arguments. In his initial closing argument, the prosecutor discussed defendant's interactions with Flat Rock Police, including a video recording of the encounter that was presented at trial. The prosecutor noted that the video showed defendant providing answers to most of the officer's questions, including why defendant was wearing a mask. The prosecutor then pointed out that defendant remained silent when the officer asked defendant, "Whose car is that?" The prosecutor used this interaction to argue that defendant was not honest in his responses to the officer.

         During his closing argument, defense counsel argued extensively that, apart from perhaps unlawfully driving away, defendant was innocent of all charges because another person could have stolen the hotel clerk's car and other belongings and given them to defendant. In rebuttal, the prosecutor argued that this defense theory was not believable, returned to defendant's interaction with the officer, and again played the video for the jury, highlighting defendant's lack of response to the police officer's question about where defendant obtained the car. The prosecutor then asked rhetorically:

I want you to look at the evidence and instead of assuming what Mr. Savage might have said, or assuming what might have happened, go to what he didn't say, admitted he was asked the one question that could have answered all of this. Where did you get the car from?

         After hearing the testimony and other evidence, the lawyers' arguments, and the trial court's instructions, the jury convicted defendant of armed robbery and the other charges noted earlier.

         At sentencing, the trial court calculated defendant's advisory-guidelines range for the armed-robbery conviction, a class A offense. MCL 777.16y. With respect to the offense variables (OVs), the trial court scored OV 1 (aggravated use of a weapon) at 20 points and OV 2 (lethal potential of the weapon) at 15 points because the pepper spray used on the hotel clerk qualified as a "harmful chemical substance." The trial court assigned 10 points for OV 10 (exploitation of a vulnerable victim) and five points for OV 12 (contemporaneous felonious criminal act). Together with the other applicable variables, the trial court assigned defendant a total OV score of 100 points, placing defendant in OV Level VI (100 points) on the applicable sentencing grid. MCL 777.62. The trial court assigned a prior record variable (PRV) score of 35 points, placing defendant in PRV Level D (25-49 points). Id.

         These scores put defendant in the D-VI cell, resulting in a sentencing-guidelines range of 171 to 285 months of prison. MCL 777.62. Because defendant was sentenced as a third-offense habitual offender, the upper limit of defendant's guidelines range was increased by 50%, MCL 777.21(3)(b), resulting in an enhanced sentencing-guidelines range of 171 to 427 months of prison. The trial court sentenced defendant, as a third-offense habitual offender, MCL 769.11, to prison terms of 20 to 40 years each for the armed robbery and carjacking convictions, 5 to 10 years for the unlawfully driving away conviction, and four to eight years for the felonious assault conviction, to be served concurrently to each other, but consecutive to four concurrent prison terms of two years each for the felony-firearm convictions.

         This appeal followed.

         II. ANALYSIS


         Defendant first challenges the sufficiency of the evidence to support his convictions. We review de novo a challenge to the sufficiency of the evidence. People v Harverson, 291 Mich.App. 171, 175-176; 804 N.W.2d 757 (2010). We review the evidence in the light most favorable to the prosecution and determine whether the jury could have found each element of the charged crime proved beyond a reasonable doubt. People v Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012). "Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of [a] crime." People v Bennett, 290 Mich.App. 465, 472; 802 N.W.2d 627 (2010). We are also "required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000).

         Defendant does not challenge any of the individual elements of the offenses of which he was convicted, but argues only that the evidence was insufficient to prove that he was the person who robbed the hotel and committed the other charged offenses. It is well settled that "identity is an element of every offense." People v Yost, 278 Mich.App. 341, 356; 749 N.W.2d 753 (2008). In challenging the evidence of his identity, defendant focuses on inconsistencies between his physical appearance and the description that the hotel clerk initially gave police of the robber's height and skin color. Defendant also argues that the money recovered from him when he was arrested could not be tied to the money taken from the hotel.

         Defendant's arguments ignore substantial evidence that supported the jury's conclusion that he committed the charged offenses. Police found defendant in possession of the hotel clerk's car, while he was wearing the mask used by the armed robber, and while he was in possession of both pepper spray and the pneumatic handgun used in the robbery. Multiple other items of evidence tied to the robbery were found in defendant's possession, and cell-phone records placed defendant near the scene of the robbery around the time of the robbery. To the extent that there were conflicts between the hotel clerk's initial description of her assailant and defendant's actual appearance, it was up to the jury to consider those conflicts together with the remaining evidence relevant to the identity of the robber. We "must defer to the fact-finder's role in determining the weight of the evidence and the credibility of the witnesses" and must resolve conflicts in the evidence in favor of the prosecution. Bennett, 290 Mich.App. at 472. Viewing the record in the light most favorable to the prosecution, the jury could have concluded beyond a reasonable doubt that defendant was the person who robbed the hotel and committed the other charged offenses.

         Additionally, although defendant complains that police conducted no forensic testing of the evidence found in the victim's car or at the hotel, "[a]bsent a showing of suppression of evidence, intentional misconduct, or bad faith, the prosecutor and the police are not required to test evidence to accord a defendant due process." People v Coy, 258 Mich.App. 1, 21; 669 N.W.2d 831 (2003). Defendant does not argue that the police intentionally suppressed inculpatory evidence or acted in bad faith. His complaint that police conducted no forensic testing of the evidence was a matter for the jury to consider in its evaluation of the weight and strength of the evidence, but it does not render the evidence presented insufficient to support his convictions.


         Defendant next argues that he was denied a fair trial because the prosecutor engaged in misconduct during closing argument. He argues that the prosecutor's remarks during rebuttal closing about what defendant "might have said" but "didn't say," namely, answering the officer's question, "Where did you get the car from?" amounted to an improper comment on defendant's failure to testify. Because defendant did not object to the prosecutor's remarks at trial, we review this unpreserved claim for plain error affecting substantial rights. People v Thomas, 260 Mich.App. 450, 453-454; 678 N.W.2d 631 (2004).

         Initially, we note that under this Court's jurisprudence, this is not a claim of "prosecutorial misconduct" (i.e., extreme or illegal conduct), but rather one of "prosecutorial error." See People v Cooper, 309 Mich.App. 74, 87-88; 867 N.W.2d 452 (2015). The test for prosecutorial error is whether the prosecutor committed error that "deprived defendant of a fair and impartial trial." Id. at 88. "A prosecutor may not imply in closing argument that the defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof." People v Fyda, 288 Mich.App. 446, 463-464; 793 N.W.2d 712 (2010).

         Viewed in context, the prosecutor's comments were not an improper reference to defendant's decision not to testify at trial, nor were they an improper reference to defendant declining to answer a police officer's question. See People v Hackett, 460 Mich. 202, 213-215; 596 N.W.2d 107 (1999). During his closing, defense counsel argued that his client was innocent of all charges because another person could have stolen the victim's car and other belongings and given them to defendant. To rebut this, the prosecutor replayed the officer's video for the jury, highlighting the fact that defendant actually answered almost all of the officer's questions except for the question about who owned the car, and urging the jury to disregard the unsupported hypotheticals defense counsel had posed. Thus, the prosecutor's argument was directly responsive to defense counsel's argument; and it was a commentary on the pattern of defendant's ...

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