People of Michigan v. Julio Enrique Mercado ( 2014 )


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  •                          STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
    October 28, 2014
    Plaintiff-Appellee,
    v                                                                 No. 316152
    Kent Circuit Court
    JULIO ENRIQUE MERCADO,                                            LC No. 12-008826-FC
    Defendant-Appellant.
    Before: METER, P.J., and WHITBECK and RIORDAN, JJ.
    PER CURIAM.
    Defendant appeals as of right from his convictions by a jury of two counts of armed
    robbery, MCL 750.529; conspiracy to commit armed robbery, MCL 750.157a; MCL 750.529;
    assault with intent to rob while armed, MCL 750.89; and possession of a firearm during the
    commission of a felony, MCL 750.227b. The trial court, applying a third-offense habitual
    offender enhancement under MCL 769.11, sentenced him to two years’ imprisonment for the
    felony-firearm conviction and to 25 to 50 years’ imprisonment for each of the remaining
    convictions. We affirm.
    Defendant and three males approached Wilmar Lima-Pelaez and Xavier Pagan while they
    were walking down Division Street in Grand Rapids. Defendant pointed a gun at Lima-Pelaez
    and demanded that he hand over money. Lima-Pelaez removed $100 from his wallet, and
    defendant took the money. While defendant was taking Lima-Pelaez’s money, the other three
    males were attacking Pagan. Miguel Aguilar-Jimenez, a friend of Lima-Pelaez and Pagan,
    walked up to the scene and saw defendant and the other males demanding money from Pagan.
    Defendant threatened to kill Lima-Pelaez if Aguilar-Jimenez and Pagan refused to give him more
    money. Defendant pointed his gun at Aguilar-Jimenez, and Aguilar-Jimenez handed his wallet
    to defendant, who took $20. Defendant dropped his gun, and the three other males ran after the
    gun. Defendant recovered the gun and pistol-whipped Aguilar-Jimenez. Defendant and the
    other males thereafter ran away from the scene.
    Defendant first argues that the prosecutor presented insufficient evidence to support his
    conviction of conspiracy to commit armed robbery. In examining this issue, we review the
    evidence in the light most favorable to the prosecutor and determine whether a rational trier of
    fact could have found that the essential elements of the crime were proven beyond a reasonable
    doubt. People v Roper, 
    286 Mich. App. 77
    , 83; 777 NW2d 483 (2009). “‘Any person who
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    conspires together with 1 or more persons to commit an offense prohibited by law, or to commit
    a legal act in an illegal manner is guilty of the crime of conspiracy . . . .’” People v Mass, 
    464 Mich. 615
    , 629; 628 NW2d 540 (2001), quoting MCL 750.157a. The prosecutor must prove that
    the conspirators’ intended future conduct included “all the elements of the substantive crime.”
    Mass, 
    464 Mich. 629
    n 19 (internal quotation marks and citation omitted). In order to establish
    the elements of armed robbery, a prosecutor must prove that
    (1) the defendant, in the course of committing a larceny of any money or other
    property that may be the subject of a larceny, used force or violence against any
    person who was present or assaulted or put the person in fear, and (2) the
    defendant, in the course of committing the larceny, either possessed a dangerous
    weapon, possessed an article used or fashioned in a manner to lead any person
    present to reasonably believe that the article was a dangerous weapon, or
    represented orally or otherwise that he or she was in possession of a dangerous
    weapon. [People v Chambers, 
    277 Mich. App. 1
    , 7; 742 NW2d 610 (2007).]
    Viewing the evidence in the light most favorable to the prosecution, a reasonable jury
    could have concluded beyond a reasonable doubt that defendant and the other three males
    conspired to commit armed robbery. The evidence established that defendant and the three
    males approached Lima-Pelaez and Pagan together. Defendant demanded money from Lima-
    Pelaez, and when Lima-Pelaez refused, defendant pulled out a gun. While defendant took
    money at gunpoint from Lima-Pelaez, the other codefendants occupied Pagan by beating him.
    When Aguilar-Jimenez arrived, he saw defendant and the other three males demanding money
    from Pagan. Aguilar-Jimenez was robbed at gunpoint. After defendant dropped his gun into the
    street, his codefendants all went after it. After the attack, defendant and the three males all fled
    the scene. The circumstances, acts, and conduct of defendant and his codefendants establish that
    they agreed to commit an armed robbery. Circumstantial evidence together with reasonable
    inferences, People v Jolly, 
    442 Mich. 458
    , 466; 502 NW2d 177 (1993), lead to conclusions that
    defendant and his codefendants agreed to target the victims, approach the victims together in an
    intimidating manner, and employ force, violence, and threats of injury by a dangerous weapon to
    accomplish their criminal objective, armed robbery. Thus, viewing the evidence in the light
    most favorable to the prosecution, a reasonable jury could have concluded beyond a reasonable
    doubt that defendant conspired to commit armed robbery. 
    Chambers, 277 Mich. App. at 7
    .
    Defendant next argues that hearsay evidence was improperly admitted at trial and that
    this denied him a fair trial and violated his rights under the Confrontation Clause. Defendant’s
    hearsay argument is properly preserved because defendant objected, on hearsay grounds, to
    admission of the evidence at trial. MRE 103. Defendant’s Confrontation Clause argument is not
    properly preserved because it was not raised in the trial court. People v Carines, 
    460 Mich. 750
    ,
    763; 597 NW2d 130 (1999). We review unpreserved issues for plain error affecting substantial
    rights. 
    Id. Hearsay “is
    a statement, other than the one made by the declarant while testifying at
    the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
    “The Confrontation Clause of the Sixth Amendment bars the admission of ‘testimonial’
    statements of a witness who did not appear at trial, unless the witness was unavailable to testify
    and the defendant had a prior opportunity to cross-examine the witness.” People v Walker, 
    273 Mich. App. 56
    , 60-61; 728 NW2d 902 (2006). Even if Pagan’s out-of-court statement identifying
    defendant was hearsay and improperly admitted at trial, defendant cannot show “that it is more
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    probable than not that the [evidentiary] error was outcome determinative.” People v Lukity, 
    460 Mich. 484
    , 496; 596 NW2d 607 (1999). Defendant also cannot show that any Confrontation
    Clause violation affected his substantial rights. 
    Carines, 460 Mich. at 763
    . Independent of
    Pagan’s statement identifying defendant, there was overwhelming evidence that defendant was
    the one who committed the robbery. Both Lima-Pelaez and Aguilar-Jimenez testified that
    defendant was the robber and a police officer testified that they identified defendant as the
    robber. Also, one of defendant’s codefendants testified that defendant robbed Lima-Pelaez,
    Aguilar-Jimenez, and Pagan at gunpoint. The alleged hearsay statement related to Pagan’s
    identification was cumulative. People v Gursky, 
    486 Mich. 596
    , 623; 786 NW2d 579 (2010).
    The officer in question testified that “they” identified defendant. To the extent the “they”
    encompassed bystander Rumaldo Pablo Reynoso, who failed to identify defendant at trial, no
    error occurred because Reynoso testified at trial and was subject to cross-examination. See MRE
    801(d)(1)(C); see also People v Malone, 
    445 Mich. 369
    , 377; 518 NW2d 418 (1994) (allowance
    of “statements of identification are not limited by whether the out-of-court declaration is denied
    or affirmed at trial”).
    Defendant next argues that the trial court erred in scoring offense variable (OV) 13 at 25
    points. “‘Offense variable 13 is continuing pattern of criminal behavior.’” People v Gibbs, 
    299 Mich. App. 473
    , 487; 830 NW2d 821 (2013), quoting MCL 777.43(1). “The sentencing court
    must assess 25 points if ‘[t]he offense was part of a pattern of felonious criminal activity
    involving 3 or more crimes against a person[.]’” 
    Gibbs, 299 Mich. App. at 487
    , quoting MCL
    777.43(1)(c). Defendant was convicted of two counts of armed robbery, MCL 750.529, and one
    count of assault with intent to rob while armed, MCL 750.89. Armed robbery and assault with
    intent to rob while armed are classified as crimes against a person. MCL 777.16d; MCL
    777.16y. Thus, defendant committed three crimes against a person. Moreover, like in Gibbs,
    “while the robberies [and assault with intent to rob while armed] arose out of a single criminal
    episode, [defendant] committed three separate acts against each of the three victims and these
    three distinct crimes constituted a pattern of criminal activity.” 
    Gibbs, 299 Mich. App. at 487
    .
    Thus, defendant’s three convictions were “part of a pattern of felonious criminal activity
    involving 3 or more crimes against a person[.]” MCL 777.43(1)(c). The trial court did not err in
    scoring OV 13.
    In a standard 4 brief, defendant argues that he was denied effective assistance of counsel.
    With regard to ineffective assistance of counsel, a defendant bears a “heavy burden” to justify
    reversal. People v Carbin, 
    463 Mich. 590
    , 599; 623 NW2d 884 (2001). First, the defendant must
    show that “counsel’s performance fell below an objective standard of reasonableness . . . .”
    People v Pickens, 
    446 Mich. 298
    , 338; 521 NW2d 797 (1994). Second, “the defendant must
    show that the deficient performance prejudiced the defense,” and “[t]o demonstrate prejudice, the
    defendant must show the existence of a reasonable probability that, but for counsel’s error, the
    result of the proceeding would have been different.” 
    Carbin, 463 Mich. at 600
    (internal quotation
    marks and citation omitted).
    Defendant first argues that defense counsel was ineffective for failing to move to
    suppress or object to any in-court identification of defendant that resulted from the on-scene
    show-up, which defendant claims was impermissibly suggestive. After considering the totality
    of the circumstances, we find that defendant’s on-scene identification was not “so impermissibly
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    suggestive as to have led to a substantial likelihood of misidentification.” People v Colon, 
    233 Mich. App. 295
    , 304; 591 NW2d 692 (1998). Defendant approached both Lima-Pelaez and
    Aguilar-Jimenez when it was still light out and defendant pointed his gun at Lima-Pelaez and
    Aguilar-Jimenez, giving them sufficient opportunity to view defendant at the time of the crime.
    A police officer testified that the witnesses were “adamant” in identifying defendant, and the
    show-up occurred the same day as the incident. In addition, Lima-Pelaez recognized defendant
    from previously seeing him hanging out at the 31 Andre Street address, aiding his identification
    of defendant as the man with the gun. Both Lima-Pelaez and Aguilar-Jimenez also noticed that
    defendant had changed his shirt after entering the house at 31 Andre Street following the crime;
    this detail enhanced the fact that their identification was based on something other than clothing.
    Because the on-scene show up was not impermissibly suggestive, defense counsel was not
    objectively unreasonable. People v Ericksen, 
    288 Mich. App. 192
    , 201; 793 NW2d 120 (2010).
    Defendant next argues that defense counsel was ineffective for failing to present an
    expert regarding eyewitness identification. We find that defense counsel’s failure to introduce an
    expert witness regarding identification was not objectively unreasonable because counsel
    sufficiently raised the issue of identification at trial. People v Cooper, 
    236 Mich. App. 643
    , 658;
    601 NW2d 409 (1999). Defendant has not overcome the presumption of sound trial strategy. 
    Id. Defendant finally
    argues that defense counsel was ineffective for failing to call two alibi
    witnesses. Defendant, however, has failed to establish a reasonable probability that “but for
    counsel’s error, the result of the proceeding would have been different,” 
    Carbin, 463 Mich. at 600
    , because nothing in the record supports defendant’s assertion that the witnesses would have
    testified favorably at trial. We also deny defendant’s request for an evidentiary hearing because
    defendant’s request was not made in a timely motion, MCR 7.211(A) and (C)(1), and because
    defendant does not support his request “by affidavit or offer of proof regarding the facts to be
    established at a hearing,” MCR 7.211(C)(1).
    Affirmed.
    /s/ Patrick M. Meter
    /s/ William C. Whitbeck
    /s/ Michael J. Riordan
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