People v. Martinez

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAVID MOSES MARTINEZ, Defendant-Appellant.

Nos. 364166, 364168

Court of Appeals of Michigan

April 18, 2024

UNPUBLISHED

Ottawa Circuit Court LC Nos. 22-045305-FH; 22-045306-FH

Before: BOONSTRA, PJ., and FEENEY and YOUNG, JJ.

PER CURIAM.

In these consolidated appeals,^[1] defendant appeals as of right his jury trial convictions of assault with intent to do great bodily harm less than murder, MCL 750.84; third-offense domestic violence, MCL 750.81(4); carrying a dangerous weapon with unlawful intent, MCL 750.226; possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b; and assaulting, resisting, or obstructing a police officer, MCL 750.81d(1). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve 300 to 900 months' imprisonment for the assault with intent to do great bodily harm less than murder conviction 152 to 900 months' imprisonment for the third-offense domestic violence conviction, 152 to 900 months' imprisonment for the carrying a dangerous weapon with unlawful intent conviction, and a consecutive term of 24 months' imprisonment for the felony-firearm conviction and 46 to 180 months' imprisonment for the assaulting resisting, or obstructing a police officer conviction. We affirm.

I. FACTS

This case arises out of defendant's shooting of the victim as she was entering her workplace in Holland on March 28, 2022. As the victim was walking toward the entrance at 6:45 a.m., to begin her shift at 7:00 a.m., she heard someone running behind her. She turned around and recognized defendant, who was approaching her with something in his hand. She had recently broken up with defendant and he had sent her threatening emails in response. The victim was able to get inside the first unlocked door of the building, but she did not reach the second door before defendant confronted her in the vestibule and pressed the barrel of a pneumatic pistol into her forehead. Defendant pulled the trigger as the victim tried to push the gun away while also trying to shield her face and head. The victim sustained a wound to her hand, and defendant ran from the scene. Defendant was later seen throwing clothes into a dumpster in an apartment complex where his sisters lived. Police located defendant in his sisters' apartment unit and ordered him to come out. Despite numerous requests over a period of several hours as well as the use of tear gas cannisters, a police robot, and a canine officer, defendant refused to leave the apartment. Officers eventually entered the apartment, but had to use a Taser to stop defendant from reaching into his waistband and running toward the bedrooms of the apartment. After his arrest and trial, defendant was convicted and sentenced, as stated earlier. Defendant now appeals.

II. ANALYSIS

A. FELONY-FIREARM AMENDMENT

Defendant argues that the trial court abused its discretion by granting the prosecutor's motion to amend the information to add a felony-firearm charge related to the charge of third-offense domestic violence. We disagree.

"A trial court's decision to grant or deny a motion to amend an information is reviewed for an abuse of discretion." People v McGee, 258 Mich.App. 683, 686-687; 672 N.W.2d 191 (2003). MCR 6.112(H) provides:

The court before, during, or after trial may permit the prosecutor to amend the information or the notice of intent to seek enhanced sentence unless the proposed amendment would unfairly surprise or prejudice the defendant. On motion, the court must strike unnecessary allegations from the information.

On the first day of trial, the prosecutor moved to amend the information to add a felonyfirearm charge against defendant because he was in possession of a firearm while committing third-offense domestic violence. According to the prosecutor, defendant and his counsel were aware of the potential felony-firearm charge because it was part of the plea negotiations that took place over several weeks before trial. The prosecutor further emphasized that the charge would be supported by the same facts, witnesses, and evidence underlying the assault and domesticviolence charges.

Defense counsel objected on the first day of trial, claiming that the amendment was unfair, but he later stated that he was aware of the felony-firearm charge related to the charge of third-offense domestic violence in the weeks leading up to the prosecutor's motion to amend. Accordingly, his own comments show that the amendment did not constitute a surprise, much less an "unfair" surprise under MCR 6.112(H).

In arguing that the amendment would prejudice defendant, defense counsel argued that the focus of his defense was to challenge the charge of assault with intent to do great bodily harm less than murder. That charge was also accompanied by a charge of felony-firearm and, according to defense counsel, his plan was to defeat both by establishing reasonable doubt about the assault charge. Because the evidence involved the same transaction, this strategy would also defeat the third-offense domestic violence charge pursuant to MCL 750.81(4), which prohibits a person from assaulting someone with whom he was in a dating relationship or lived in the same household. No one disagreed that defendant and the victim dated and also lived together. Accordingly, defense counsel's strategy to defend the assault, if successful, would have necessarily defeated the domestic-violence charge as well as any felony-firearm charges. Defendant does not explain how he would have altered his strategy if he had more time to prepare for the added felony-firearm charge.

Moreover, at sentencing, the prosecutor dismissed the count about which defendant now complains. Defendant was sentenced for only one conviction of felony-firearm, which the parties agreed was based on defendant's conviction of assault with intent to do great bodily harm less than murder. For that reason, defendant cannot show that he was prejudiced by the trial court's decision to permit the amendment. Regardless whether he was convicted of the charge, he suffered no additional punishment as a result, and, therefore, no unfair prejudice occurred pursuant to MCR 6.112(H).

B. MOTION FOR DIRECTED VERDICT

Defendant next contends that the trial court abused its discretion when it denied his motion for directed verdict because insufficient evidence showed that he intended to cause the victim great bodily harm less than murder.

When reviewing a trial court's decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence presented by the prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt. [People v Aldrich, 246 Mich.App. 101, 122; 631 N.W.2d 67 (2001). See also Jackson v Virginia, 443 U.S. 307, 324; 99 S.Ct. 2781; 61 L.Ed.2d 560 (1979).]

We also review de novo a defendant's claim that the evidence was insufficient to establish the elements of a charged offense. People v Smith, 336 Mich.App. 297, 302-303; 970 N.W.2d 450 (2021).

MCL 750.84(1)(a) prohibits the assault of "another person with intent to do great bodily harm, less than the crime of murder." As this Court stated in People v Parcha, 227 Mich.App. 236, 239; 575 N.W.2d 316 (1997) (quotation marks and citation omitted), the elements of assault with intent to do great bodily harm less than murder are "(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder." Assault with intent to do great bodily harm is a specific intent crime. Id. As this Court also explained in People v Stevens, 306 Mich.App. 620, 629; 858 N.W.2d 98 (2014) (citations omitted):

Intent to cause serious harm can be inferred from the defendant's actions, including the use of a dangerous weapon or the making of threats. Although actual injury to the victim is not an element of the crime, injuries suffered by the victim may also be indicative of a defendant's intent.

Viewing the evidence in a light most favorable to the prosecution, Aldrich, 246 Mich.App. at 122, the prosecutor presented sufficient evidence to establish that defendant intended to do great bodily harm to the victim. Evidence showed that, before the shooting, defendant sent threatening text messages to the victim. Among other statements, defendant texted the victim that he knew where to find her and that she could not hide from him. The victim testified that the text messages caused her to believe that defendant was watching her and that he was ready to do something to her. Because she did not have a Michigan driver's license, the victim had one of her daughters drive her to work each day. Because the victim worried that defendant might be following her to work, she would sometimes have her daughter drop her close to the work entrance of the plant, in fear that defendant might attack her.

Defendant argues that defendant texted the victim early on the morning of the shooting that she should, "Have a blessed day," and that this shows that he did not have any intent to harm her. A reasonable juror could have the opposite view of defendant's text, however, in light of defendant's other text messages that were explicitly threatening, this message, sent shortly before he attacked the victim, could be read as a menacing or sarcastic precursor to his plan to assault her a short time later. Further, evidence showed that defendant sat in wait for the victim, plus he attacked with no notice and in an enclosed space between the entrance doors of her workplace. As soon as...