People v. Collins

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ELONZO LARAY COLLINS, Defendant-Appellant.

Nos. 348591, 353692

Court of Appeals of Michigan

August 5, 2021

UNPUBLISHED

Wayne Circuit Court LC No. 18-009312-01-FC

Before: Tukel, P.J., and Sawyer and Cameron, JJ.

PER CURIAM

In these consolidated cases, defendant appeals as of right, in Docket No. 348591, his jury trial convictions for assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.529, and felonious assault, MCL 750.82. In Docket No. 353692, defendant appeals as of right his resentencing, asserting his sentences are disproportionate and unreasonable. Defendant was resentenced as a third-offense habitual offender, MCL 769.11, to 25 months to 20 years' imprisonment for his AWIGBH conviction, and 25 months to 8 years' imprisonment for the felonious assault conviction.^[1] For the reasons discussed herein, we affirm defendant's convictions and sentences.^[2]

I. UNDERLYING FACTS

This case arises from defendant's alleged armed robbery of a tire shop. According to defendant, he visited the victim's tire shop to return a defective tire he had bought a couple days earlier. As to how events transpired the version of events provided by the victim and defendant diverge.

The victim testified that, as he was leading defendant to where the tires were stored, defendant stuck his hand into the victim's right pocket and put a gun to the victim's head. The victim swatted the gun out of defendant's hand and reached for a revolver in the victim's left pocket. The victim and defendant struggled for control of the revolver. Eventually, they ended up near a table that held gym weights. Picking up a 4.4 pound cement weight, defendant struck the victim three or four times on the head. Defendant hit the victim hard enough that the weight broke. According to the victim, defendant then hit the victim with another metal object. The victim claimed that he lost consciousness and, while he was unconscious, defendant stole his revolver car keys, and $17 or $18. After police arrived, they discovered the gun defendant had first pointed at the victim was a BB gun, with a makeshift silencer attached to its barrel.

Defendant denied reaching into the victim's pocket or otherwise instigating an altercation. According to defendant, he asked the victim for a refund for the defective tire, but the victim refused. Defendant would not take no for an answer, and eventually the victim became "irate" and yelled at defendant to leave his shop. When defendant refused, the victim pulled out a handgun and demanded defendant leave the tire shop. Defendant grabbed the victim's hand in an attempt to disarm him. As the two struggled for control of the gun, the victim told defendant that defendant would never get the gun from him. Defendant picked up a gym weight and hit the victim three or four times on the head with it. Defendant realized that he could potentially kill the victim by doing this, but it was a risk he was willing to take, because he felt he was in a life or death situation. After defendant hit the victim with the weight, the victim released the handgun. Examining the handgun, defendant realized it was not real and threw it toward the back of the store. Defendant denied hitting the victim with a metal object; stealing the victim's keys, revolver, or money; defendant also denied that the victim had been knocked unconscious. Defendant fled the store.

Shortly thereafter, police arrived. A police officer testified that the victim had a "deep laceration" and a large amount of blood coming from his head. The victim was taken to the hospital where he received stitches in three places on his head.

Defendant was charged as a third-offense habitual offender, MCL 769.11, with eight counts: (1) armed robbery, MCL 750.529; (2) AWIGBH; (3) larceny of a firearm, MCL 750.357b; (4) felon in possession of a firearm (felon-in-possession), MCL 750.224f; (5) felonious assault for using a facsimile gun to threaten the victim; (6) felonious assault for hitting the victim with a "metal bar"; (7) possession of a firearm in commission of a felony (felony-firearm), MCL 750.227b, for the larceny of a firearm charge; and (8) felony-firearm for the felon-in-possession charge. The jury convicted defendant of AWIGBH and felonious assault for using a facsimile gun to threaten the victim, but acquitted him of the six other charges.

II. JURY INSTRUCTIONS

Defendant first argues, in Docket No. 348591, that the trial court violated his Sixth Amendment^[3] right to trial by jury and due-process right to present a defense by instructing the jury regarding the use of deadly force in self-defense rather than nondeadly force. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

"To preserve an instructional error for review, a defendant must object to the instruction before the jury deliberates." People v Gonzalez, 256 Mich.App. 212, 225; 663 N.W.2d 499 (2003). Defendant objected to the trial court's refusal to instruct the jury regarding nondeadly use of force in self-defense, arguing that the weight defendant hit the victim with did not amount to deadly force. He raises the same argument on appeal. Thus, the issue is preserved.

"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). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Mahone, 294 Mich.App. 208, 212; 816 N.W.2d 436 (2011). "A trial court also necessarily abuses its discretion when it makes an error of law." People v Al-Shara, 311 Mich.App. 560, 566; 876 N.W.2d 826 (2015). Furthermore, this Court will not reverse a defendant's conviction on the basis of instructional error unless "it is more probable than not that the error was outcome determinative." People v Riddle, 467 Mich. 116, 124-125; 649 N.W.2d 30 (2002). Finally, we review constitutional issues de novo. Al-Shara, 311 Mich.App. at 566-567.

B. ANALYSIS

A defendant is entitled to a properly instructed jury. People v Mills, 450 Mich. 61, 80; 537 N.W.2d 909 (1999), mod on other grounds 450 Mich. 1212 (1995). "[T]he trial court is required to instruct the jury concerning the law applicable to the case and fully and fairly present the case to the jury in an understandable manner." Id. Accordingly, jury instructions "must include all the elements of the offenses charged against the defendant and any material issues, defenses, and theories that are supported by the evidence." Dobek, 274 Mich.App. at 82 (citation omitted). Indeed, "[w]hen a defendant requests a jury instruction on a theory or defense that is supported by the evidence, the trial court must give the instruction." Riddle, 467 Mich. at 124. Imperfect instructions are not erroneous if they fairly present the issues and sufficiently protect the defendant's rights. People v Clark, 274 Mich.App. 248, 255-256; 732 N.W.2d 605 (2007). Additionally, an instructional error does not warrant reversal "unless refusal to take this action appears to the court inconsistent with substantial justice." MCR 2.613(A); see also People v Muhammad, 498 Mich. 909; 870 N.W.2d 729 (2015). It is the defendant's burden to prove that an error resulted in a miscarriage of justice. People v Dupree, 486 Mich. 693, 702; 788 N.W.2d 399 (2010).

Self-defense is an affirmative defense that, if established, will justify otherwise punishable criminal conduct. Dupree, 486 Mich. at 707. The Self-Defense Act (SDA), MCL 780.971, et seq., codified the circumstances in which a person will be justified in using self-defense. People v Guajardo, 300 Mich.App. 26, 35-36; 832 N.W.2d 409 (2013). Under the SDA, an individual who is not engaged in a crime may use deadly force anywhere he has the legal right to be, with no duty to retreat, if he honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death, great bodily harm, or sexual assault of himself or another. MCL 780.972(1); People v Conyer, 281 Mich.App. 526, 529-530; 762 N.W.2d 198 (2008). Furthermore, an individual who is not engaged in a crime may use less than deadly force anywhere he has the legal right to be with no duty to retreat if he honestly and reasonably believes that the use of that force is necessary to defend himself or another from the imminent unlawful use of force. MCL 780.972(2); People v Goree, 296 Mich.App. 293, 304; 819 N.W.2d 82 (2012).

The SDA does not define "deadly force" or "nondeadly force." Consequently, we must look elsewhere for those definitions. This Court has defined deadly force as "an act for which 'the natural, probable, and foreseeable consequence . . . is death.'" People v Anderson, 322 Mich.App. 622, 629; 912 N.W.2d 607 (2018) (alteration in original), quoting People v Pace, 102 Mich.App. 522, 534; 302 N.W.2d 216 (1980). Additionally, Black's Law Dictionary defines nondeadly force as "[f]orce that is neither intended nor likely to cause death or serious bodily harm; force intended to cause only minor bodily harm." Black's Law Dictionary (11th ed).^[4]

Considering these definitions, no reasonable juror could have found that defendant used nondeadly force when he hit the victim in the head three or four times with a concrete weight. Defendant hit the victim in the head with enough force and enough times to break the weight and to cause the victim to bleed so much that he could not see. The victim was 72 or 73 years old at the time of this incident. Common sense informs one that the natural, probable, and foreseeable consequence of striking...