PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
David Lynn GREEN, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Rodney J. BAKER, Defendant-Appellant.
Docket Nos. 194995, 195607.
Court of Appeals of Michigan.
Submitted December 10, 1997, at Detroit. Decided March 20, 1998, at 9:00 a.m. Released for Publication June 29, 1998.*446 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appeals, Research, and Training, for People.
State Appellate Defender by Ralph C. Simpson, Detroit, for David L. Green.
Laurence R. Imerman, Bingham Farms, for Rodney J. Baker.
*447 Before SAWYER, P.J., and WAHLS and REILLY, JJ.
*445 PER CURIAM.
Following a joint trial before a single jury, defendants David L. Green and Rodney J. Baker were both convicted of three counts of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, three counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, carjacking, M.C.L. § 750.529a; M.S.A. § 28.797(a), carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424, being a felon in possession of a firearm, M.C.L. § 750.224f; M.S.A. § 28.421(6), and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). In addition, Green was convicted of one count of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), assault with intent to commit great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, and two counts of retaining a financial transaction device without consent, M.C.L. § 750.157n; M.S.A. § 28.354(14). Baker was also convicted of two counts of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2).
The trial court sentenced Green to forty to seventy years' imprisonment for each of his kidnapping convictions; forty to seventy years' imprisonment for each of the armed robbery convictions; forty to seventy years' imprisonment for the first-degree criminal sexual assault conviction; ten to fifteen years' imprisonment for the assault conviction; 4 to 7 1/2; years' imprisonment for the carrying a concealed weapon conviction; 4 to 7 1/2; years' imprisonment for the felon in possession of a firearm conviction; four to six years' imprisonment for each of the retaining a financial transaction device without consent convictions; two years' imprisonment for the felony-firearm conviction, to be served before all other terms; and forty to seventy years' imprisonment for the carjacking conviction to be served consecutively to all other sentences. Green was sentenced as a second-offense habitual offender, under M.C.L. § 769.10; M.S.A. § 28.1082. Green appeals as of right.
The trial court sentenced Baker to twenty-five to forty-five years' imprisonment for each of his kidnapping convictions; twenty-five to fifty years' imprisonment for each of the armed robbery convictions; forty to seventy years' imprisonment for each of the first-degree criminal sexual conduct convictions; 5 to 7 1/2; years' imprisonment for the carrying a concealed weapon conviction; 5 to 7 1/2; years' imprisonment for the felon in possession of a firearm conviction; two years' imprisonment for the felony-firearm conviction, to be served before all other terms; and forty to seventy years' imprisonment for the carjacking conviction to be served consecutively to all other sentences. Baker was also sentenced as a second-offense habitual offender, under M.C.L. § 769.10; M.S.A. § 28.1082. Baker appeals as of right. The appeals were consolidated. We affirm with regard to both defendants.
In the early morning hours of July 21, 1995, three female friends left a bar in the city of Flint, intending to drive to a friend's house. The women rode in a convertible with the top down. When they arrived at a red traffic signal next to another automobile, defendant Green got out of the other automobile and jumped into the back seat of their convertible. Startled, the women told Green to leave the convertible, but he refused. Instead, he told them to drive through the intersection, turn at the next street, and stop the car. As they passed through the intersection, Green removed a gun from his shorts. When they pulled over, Green demanded money from the women, who had only $7. Green told them it was not enough and struck the driver in the mouth with the barrel of his gun, knocking out three of her teeth. Then, pursuant to Green's instructions, the women stepped out of the convertible and the driver handed her car keys to Green. Defendant Baker appeared as the women got out of the convertible. Green told the women to strip and Baker said, "Don't make them do that, not here." Green then urinated on the face of the woman who had been driving the convertible. When he finished, he announced that they needed more money and told the women to get back into the convertible. The women rode in the back seat while Green drove with the convertible's *448 top up. Baker sat in the front passenger seat holding the gun. Green stopped the car at a bank machine and, using ATM cards and PIN numbers taken from the women, he withdrew a total of $200 from two accounts.
The group then resumed driving. Baker and Green repeatedly told the women that they were going to kill them. At one point, Green angrily ordered the woman he had urinated on to climb up to the front seat. When she came forward, Baker made her sit in front of him on the floor of the convertible and perform oral sex on him. Green then stopped the convertible and ordered one of the other women to get out. After she stepped out of the car, Green asked her to perform oral sex on him. When she refused, Green hit her face five or six times and pushed her back into the car. Green then drove the group to a narrow fenced alley behind a school and parked. Baker took the woman who had performed oral sex on him to an area in front of the car, ordered her to lie on the ground, and raped her. At the same time, Green took the second woman he had hit to an area in back of the car, forced her to undress, and then raped her on the trunk of the convertible. The third woman was told to lie in the back seat.
Eventually, all parties entered the car and Green drove to a house near a field. On the way, Baker and Green told the women that they wanted the car radio. They also asked the women if they could have their telephone numbers and be friends. When they arrived at the house, Baker left the car and returned a short time later with a screwdriver. After driving around some more, Baker and Green removed the radio. The defendants then argued about splitting up the money and about who would get the radio. Baker left with the radio and Green wiped down the car with a towel. When he was done, Green told the women they could leave. The women then drove the convertible to a restaurant and called the police. At trial, Green testified on his own behalf. He denied having a gun and urinating on one of the women, and he described the rest of the night's events as being consensual.
Docket No. 194995
Defendant Green first argues that he was denied a fair trial as a result of the trial court's failure to sever the charge of being a felon in possession of a firearm from the other charges against him. We disagree. Because Green did not move to sever the prosecutions or make any sort of objection below, he has failed to preserve this issue for appeal. See People v. Mayfield, 221 Mich. App. 656, 660, 562 N.W.2d 272 (1997). Therefore, we will review this issue only if necessary to avoid manifest injustice. Id. at 661, 562 N.W.2d 272.
Before the selection of the jury, the trial court informed the prospective jury panel that defendant Green had been charged with possessing a firearm when ineligible to do so because of a prior conviction of larceny from a person. During trial, the parties and the trial court addressed the possibility of prejudice stemming from the existence of the felon-in-possession charge. Defense counsel expressed concern that Green might be prejudiced by any mention of the nature of his prior conviction. Accordingly, the parties agreed to stipulate that Green had been convicted of an unspecified prior felony. The jury was so instructed and Green did not object to the instruction. Because the issue was resolved to the apparent satisfaction of all parties at trial, we are hesitant to upset the result of that consensus on appeal. A defendant should not be allowed to assign error on appeal to something his own counsel deemed proper at trial. People v. Roberson, 167 Mich.App. 501, 517, 423 N.W.2d 245 (1988). To do so would allow a defendant to harbor error as an appellate parachute. Id.
This Court has explained that "adequate safeguards" can be erected to ensure that a defendant charged with both felon-inpossession and other charges arising from the same incident suffers no unfair prejudice if a single trial is conducted for all the charges. See Mayfield, supra at 659-660, 562 N.W.2d 272. Specifically, these "safeguards" are (1) the introduction by stipulation of the fact of the defendant's prior conviction, (2) a limiting instruction emphasizing that the jury must give separate consideration to each count of the indictment, and (3) *449 a specific instruction to consider the prior conviction only as it relates to the felon-inpossession charge. See id. at 660, 562 N.W.2d 272, citing United States v. Mebust, 857 F. Supp. 609, 613 (N.D.Ill., 1994). In this case, the fact of Green's prior felony conviction was introduced by stipulation, the specific nature of Green's prior conviction was not mentioned apart from the initial remark to the prospective jury panel, and the trial court instructed the jury that defendants were entitled to a separate determination regarding each of the charges against them. Although the trial court did not give a specific instruction that the stipulation was to be considered only as it related to Green's felon-in-possession charge, Green never requested such an instruction. Because adequate safeguards were in place at trial, manifest injustice will not result from our failure to review this issue. Mayfield, supra at 661, 562 N.W.2d 272.
Defendant Green next argues that the felon-in-possession charge violated his right to bear arms under the Michigan Constitution. We disagree. A person's right to bear arms under Const. 1963, art. 1, § 6 is not absolute and is subject to the reasonable limitations set forth in M.C.L. § 750.224f, M.S.A. § 28.421(6) as part of the state's police power. People v. Swint, 225 Mich.App. 353, 375, 572 N.W.2d 666 (1997). Accordingly, Green's right to bear arms under the Michigan Constitution was not violated by the felon-in-possession charge.
Next, defendant Green argues that he was denied a fair trial by the prosecutor's alleged mischaracterization of testimony during closing argument. We disagree. When reviewing instances of alleged prosecutorial misconduct, this Court must examine the pertinent portion of the record and evaluate the prosecutor's remarks in context. People v. McElhaney, 215 Mich.App. 269, 283, 545 N.W.2d 18 (1996). The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. Id. In this case, Green did not object to any of the prosecutor's allegedly improper arguments. Appellate review of improper prosecutorial remarks is generally precluded absent an objection because it deprives the trial court of an opportunity to cure the error. People v. Ullah, 216 Mich.App. 669, 679, 550 N.W.2d 568 (1996). Because a well-tried, vigorously argued case should not be overturned on the basis of a few isolated improper remarks that could have been corrected had an objection been lodged, we will reverse in such instances only if a curative instruction could not have eliminated the prejudicial effect of the improper remarks or where our failure to review the issue would result in a miscarriage of justice. Id. After reviewing the alleged instances of prosecutorial misconduct in this case, we conclude that each was either proper argument or proper response to defendant's argument. Moreover, any unfair prejudice produced by the challenged comments would have been cured by the trial court's careful and explicit instructions to the jury that it was required to decide the case on the evidence alone and that the lawyer's statements were not evidence. See People v. Mack, 190 Mich.App. 7, 19, 475 N.W.2d 830 (1991). For these reasons, defendant Green is not entitled to relief with respect to this issue.
Defendant Green next argues that the evidence was insufficient to sustain his conviction of carjacking. We disagree. When reviewing the sufficiency of the evidence in a criminal case, this Court must view the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201, 489 N.W.2d 748 (1992).
The crime of carjacking is statutorily defined as follows:
A person who by force or violence, or by threat of force or violence, or by putting in fear robs, steals, or takes a motor vehicle as defined in section 412 from another person, in the presence of that person or the presence of a passenger or in the presence of any other person in lawful possession of the motor vehicle, is guilty of carjacking, a felony punishable by imprisonment for life or for any term of years. *450 [M.C.L. § 750.529a(1); M.S.A § 28.797(a)(1).]
In order to prove carjacking, the prosecution must prove (1) that the defendant took a motor vehicle from another person, (2) that the defendant did so in the presence of that person, a passenger, or any other person in lawful possession of the motor vehicle, and (3) that the defendant did so either by force or violence, by threat of force or violence, or by putting another in fear. Here, Green argues that he could not have taken the motor vehicle from another person, because the evidence showed that the persons in the vehicle when Green arrived remained with the vehicle for the entire time he was present and left with the vehicle after Green departed. Whether a person may "take" a motor vehicle "from" another person, for purposes of carjacking, by driving it while the other person remains with the vehicle is a question of first impression in Michigan.
When called on to interpret the "presence" requirement of the carjacking statute, this Court adopted the definition of "presence" applied in armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798. See People v. Raper, 222 Mich.App. 475, 482, 563 N.W.2d 709 (1997). Under this definition, a thing is in the presence of a person if it is so within the person's "` "reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it."'" See Raper, supra at 482, 563 N.W.2d 709, quoting People v. Beebe, 70 Mich.App. 154, 159, 245 N.W.2d 547 (1976), quoting Commonwealth v. Homer, 235 Mass. 526, 533, 127 N.E. 517 (1920). In other words, whether the taking of a motor vehicle occurs within the presence of a person, depends on the effect of violence or fear on that person's ability to control his possession of the motor vehicle at the time of its taking. See Raper, supra at 482-483, 563 N.W.2d 709. Consistent with this definition of "presence" is the notion that a thing is taken from a person at the time the person loses possession of the thing because of the effect of violence or fear. Moreover, in larceny cases,[1] a taking occurs when the wrongdoer acquires dominion and control (i.e., possession) over the subject property. See 3 Wharton's Criminal Law (15th ed.), § 357, pp. 412-413 (citing cases); Black's Law Dictionary (6th ed.), p. 1453 (defining "take"). Accordingly, for purposes of the crime of carjacking, we conclude that a defendant "takes" a motor vehicle "from" another when he acquires possession of the motor vehicle through force or violence, threat of force or violence, or by putting another in fear. This definition is consistent with our interpretation of the "presence" requirement and with the other crimes in the robbery section of the Michigan Penal Code. See Raper, supra at 482, 563 N.W.2d 709.
Defining "take" in terms of possession does not require that the victim be physically separated from the motor vehicle. The hallmark of possession is dominion and control. People v. Lavine, 95 Mich.App. 200, 201, 290 N.W.2d 413 (1980); see also People v. Hill, 433 Mich. 464, 470-471, 446 N.W.2d 140 (1989). Here, the victims testified that defendant Green entered their convertible without being invited to do so, refused to leave when asked, struck the driver in the mouth with a gun, ordered her to hand over the car keys, and threatened to kill them. After obtaining the car keys, Green drove the car to various locations against the will of the women, who were ordered to remain in the convertible. Green took possession of the convertible by exercising his dominion and control over it. The presence of the victims did not diminish Green's exercise of possession. Accordingly, we hold that a rational trier of fact could have found the elements of carjacking proved beyond a reasonable doubt. Wolfe, supra, 440 Mich. at 515, 489 N.W.2d 748.
Finally, Green argues that there was insufficient evidence of the element of asportation to support his kidnapping convictions. We disagree. Although not mentioned in the statute, asportation of the victim is a judicially required element of the *451 crime of kidnapping by forcible confinement or imprisonment. People v. Jaffray, 445 Mich. 287, 298, 519 N.W.2d 108 (1994). To establish the element of asportation, there must be some movement of the victim taken in furtherance of the kidnapping that is not merely incidental to the commission of another underlying lesser or coequal crime (unless the underlying crime involves murder, extortion, or taking a hostage). See People v. Barker, 411 Mich. 291, 299-302, 307 N.W.2d 61 (1981); People v. Murph, 185 Mich.App. 476, 479-480, 463 N.W.2d 156 (1990), (On Rehearing), aff'd and remanded in part on other grounds, 190 Mich.App. 707, 476 N.W.2d 500 (1991). Here, the victims testified that Green drove them against their will to several different unfamiliar locations for a period of about two hours. Their testimony further showed that, during this period of confinement, Green and Baker robbed the women, sexually assaulted two of them in an alley behind a school, and took their car radio. On this evidence, a rational trier of fact could have found that the movement of the victims was in furtherance of the kidnappings and that the other crimes merely occurred during the course of the kidnappings. Cf. People v. Sawyer, 222 Mich.App. 1, 5-6, 564 N.W.2d 62 (1997); Murph, supra, 185 Mich.App at 478-480, 463 N.W.2d 156; People v. Gwinn, 111 Mich.App. 223, 243-244, 314 N.W.2d 562 (1981); People v. Hardesty, 67 Mich.App. 376, 378-379, 241 N.W.2d 214 (1976). Accordingly, we hold that the evidence was sufficient to support Green's kidnapping convictions. Wolfe, supra, 440 Mich. at 515, 489 N.W.2d 748.
Docket No. 195607
Defendant Baker first contends that the court erred in denying his motion for a directed verdict regarding the charge of carjacking. We disagree. At the conclusion of the testimony, defendant Baker moved for a directed verdict regarding the charge of carjacking, arguing that the evidence did not support a finding that Baker intended to permanently deprive the victims of their motor vehicle. Baker repeats this argument on appeal. However, because an intent to permanently deprive is not an element of the crime of carjacking, People v. Terry, 224 Mich.App. 447, 455, 569 N.W.2d 641 (1997), Baker's argument is without merit.
Baker next argues that his sentences as an habitual offender violate the principle of proportionality because the trial court failed to account for the likelihood of rehabilitation. We disagree. Sentencing decisions are subject to review by this Court under an abuse of discretion standard. People v. Milbourn, 435 Mich. 630, 635-636, 461 N.W.2d 1 (1990). A sentence constitutes an abuse of the trial court's discretion if it violates the principle of proportionality. The principle of proportionality requires sentences to be "proportionate to the seriousness of the circumstances surrounding the offense and the offender." Id. at 636, 461 N.W.2d 1. When a defendant is sentenced as an habitual offender, the sentencing guidelines have no bearing with regard to whether an abuse of discretion has occurred. People v. Edgett, 220 Mich.App. 686, 694, 560 N.W.2d 360 (1996). Moreover, the consecutive nature of a defendant's sentences is irrelevant to the determination whether his sentences are excessive. People v. Warner, 190 Mich.App. 734, 736, 476 N.W.2d 660 (1991). In this case, contrary to Baker's assertion, the sentencing transcript indicates that the trial court addressed Baker's possibility for rehabilitation and concluded that rehabilitation was not possible. Considering the extreme circumstances of the offenses, we hold that the trial court did not abuse its discretion in sentencing defendant Baker.
Next, Baker argues that the trial court erred in failing to vacate the underlying convictions before sentencing Baker as an habitual offender. We disagree. Under a former version of M.C.L. § 769.13; M.S.A. § 28.1085,[2] a trial court was required to vacate a defendant's underlying sentence before sentencing him as an habitual offender if the defendant's habitual offender status was determined after the imposition of his sentence *452 for the underlying conviction. People v. Hardin, 173 Mich.App. 774, 777-778, 434 N.W.2d 243 (1988); People v. Hambrick, 169 Mich.App. 554, 556-557, 426 N.W.2d 702 (1988). In this case, Baker was sentenced as an habitual offender pursuant to the current version of M.C.L. § 769.13; M.S.A. § 28.1085, which does not specifically provide for the vacation of a defendant's underlying convictions or sentences in any circumstance.[3] Therefore, his reliance on the former version of the statute is misplaced. In any event, because Baker's habitual offender status was determined at the sentencing hearing following his trial for the underlying convictions, there would have been no reason to undertake the requested procedure. See Hardin, supra at 778, 434 N.W.2d 243.
Baker also argues that the trial court failed to afford either him or his counsel the right of allocution. However, a review of his sentencing transcript reveals that the court did afford both Baker and his counsel the right of allocution in accordance with MCR 6.425(D)(2)(c). Accordingly, Baker's argument lacks merit.
Finally, Baker argues that he was never convicted of or declared to be an habitual offender before sentencing. Under M.C.L. § 769.13(5); M.S.A. § 28.1085(5), the existence of the defendant's prior conviction or convictions must be determined by the trial court at sentencing, or at a separate hearing for that purpose before sentencing. People v. Zinn,217 Mich.App. 340, 345, 551 N.W.2d 704 (1996). The existence of a prior conviction may be established by any evidence that is relevant for that purpose, including information contained in the presentence report. M.C.L. § 769.13(5)(c); M.S.A. § 28.1085(5)(c). In this case, the presentence report listed Baker as a second-offense habitual offender and included details of Baker's prior felony conviction. Moreover, at the beginning of Baker's sentencing hearing, the trial court explicitly recognized Baker as an habitual offender. Therefore, we hold that the trial court met the requirements of M.C.L. § 769.13(5)(c); M.S.A. § 28.1085(5)(c) in sentencing Baker.
Affirmed.
NOTES
[1] Larceny is a lesser included offense of robbery. See People v. Beach, 429 Mich. 450, 484, n. 17, 418 N.W.2d 861 (1988).
[2] M.C.L. § 769.13; M.S.A. § 28.1085 was amended by 1994 P.A. 110, which became effective on May 1, 1994.
[3] Under the amended version of the statute, a defendant's habitual offender status must be determined at or before the sentencing hearing following trial for the underlying convictions. M.C.L. § 769.13(5); M.S.A. § 28.1085(5). Consequently, the situation requiring the vacation of a defendant's underlying sentences under the former version of the statute could not arise under the amended version of the statute.