People of Michigan v. Randall Lemont Beamon ( 2018 )


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  •                            STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
    June 26, 2018
    Plaintiff-Appellee,
    v                                                                  No. 336229
    Wayne Circuit Court
    RANDALL LEMONT BEAMON,                                             LC No. 15-010482-01-FC
    Defendant-Appellant.
    Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.
    PER CURIAM.
    Defendant appeals as of right his jury trial convictions of assault with intent to commit
    murder (AWIM) (three counts), MCL 750.83, assaulting, resisting, or obstructing a police officer
    causing serious impairment of a body function, MCL 750.81d(3), third-degree fleeing and
    eluding, MCL 257.602a(3), carrying a concealed weapon (CCW), MCL 750.227, assaulting,
    resisting, or obstructing a police officer (two counts), MCL 750.81d(1), felon in possession of a
    firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-
    firearm) – second offense, MCL 750.227b. He was sentenced as a third habitual offender, MCL
    769.11, to 30 to 60 years’ imprisonment for each AWIM conviction, 15 to 30 years’
    imprisonment for the conviction of assaulting a police officer causing serious impairment, 5 to
    10 years’ imprisonment for the fleeing and eluding conviction, 5 to 10 years’ imprisonment for
    the CCW conviction, 5 to 10 years’ imprisonment for the felon-in-possession conviction, 2 to 4
    years’ imprisonment for each conviction of assaulting, resisting or obstructing a police officer,
    and 5 years’ consecutive imprisonment for his conviction of felony-firearm. We affirm all of
    defendant’s convictions and sentences, with the exception of the felon-in-possession conviction
    and sentence, which are vacated and the prosecution concedes error.
    The prosecution presented overwhelming evidence that established that defendant and a
    female companion were in a suspicious parked van when police officers approached the vehicle
    to investigate, that defendant refused to cooperate with the officers, that defendant was observed
    handling a gun inside the van, that defendant locked the doors and drove away at a high rate of
    speed, spinning his tires and heading toward the expressway,1 that police officers and neighbors
    1
    The female companion jumped out of the van before defendant drove away.
    -1-
    heard multiple gunshots while defendant was fleeing, that defendant then drove the wrong way
    on the expressway, causing other vehicles to veer to avoid being hit, that numerous officers
    pursued defendant in their police cruisers, and that defendant stopped at a residence (his sister’s
    home), abandoning the still-running van and taking off on foot. Further, the prosecution elicited
    testimony that officers arriving at the house came under gunfire from defendant, with the officers
    returning fire, that defendant was observed firing directly at officers, striking one in the leg and
    grazing the forehead of another officer, that when the gunfire ended, police converged on
    defendant’s location, finding him bleeding from gunshot injuries, that a nine-millimeter gun was
    located in a window well near defendant,2 that nine-millimeter casings were retrieved from the
    scene, that photographs on defendant’s cell phone showed a gun that appeared similar to the
    nine-millimeter weapon found in the window well, and that in a telephone call made by
    defendant from jail, he stated, “I turned around and shot at them.” Defendant was convicted of
    the charged crimes as indicated above.
    On appeal, defendant first contends that there was insufficient evidence to support the
    jury’s verdicts. This Court reviews de novo the issue regarding whether there was sufficient
    evidence to support a conviction. People v Lueth, 
    253 Mich. App. 670
    , 680; 660 NW2d 322
    (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence –
    whether direct or circumstantial – in a light most favorable to the prosecutor and determine
    whether a rational trier of fact could find that the essential elements of the crime were proven
    beyond a reasonable doubt. People v Reese, 
    491 Mich. 127
    , 139; 815 NW2d 85 (2012); People v
    Hardiman, 
    466 Mich. 417
    , 428; 646 NW2d 158 (2002). A jury, and not an appellate court,
    observes the witnesses and listens to their testimony; therefore, an appellate court must not
    interfere with the jury’s role in assessing the weight of the evidence and the credibility of the
    witnesses. People v Wolfe, 
    440 Mich. 508
    , 514-515; 489 NW2d 748 (1992). Circumstantial
    evidence and the reasonable inferences that arise from such evidence can constitute satisfactory
    proof of the elements of a crime. People v Carines, 
    460 Mich. 750
    , 757; 597 NW2d 130 (1999).
    The prosecution need not negate every reasonable theory of innocence, but need only prove the
    elements of the crime in the face of whatever contradictory evidence is provided by the
    defendant. People v Nowack, 
    462 Mich. 392
    , 400; 614 NW2d 78 (2000). We resolve all
    conflicts in the evidence in favor of the prosecution. People v Kanaan, 
    278 Mich. App. 594
    , 619;
    751 NW2d 57 (2008).
    On close examination of defendant’s argument, he does not maintain that there was an
    absence of or inadequate testimony on the elements of the various crimes. Rather, his
    arguments, for the most part, can be distilled down to claims challenging the reliability, weight,
    and credibility of the evidence. In People v Palmer, 
    392 Mich. 370
    , 375-376; 220 NW2d 393
    (1974), the Michigan Supreme Court explained:
    In a criminal trial the burden is on the prosecution to prove the defendant's
    guilt beyond a reasonable doubt on every element of the crime charged. On appeal
    2
    There was testimony that defendant was seen crawling to the window well and dropping his
    weapon inside the well before rolling over.
    -2-
    from a conviction a defendant may request the appellate court to determine if the
    prosecution fulfilled this burden. In conducting this review the appellate court
    must remember that the jury is the sole judge of the facts. It is the function of the
    jury alone to listen to testimony, weigh the evidence and decide the questions of
    fact. In determining the facts the jury may draw reasonable inferences from the
    facts established by either direct or circumstantial evidence.
    Juries, not appellate courts, see and hear witnesses and are in a much
    better position to decide the weight and credibility to be given to their testimony.
    Where sufficient evidence exists, which may be believed by the jury, to sustain a
    verdict of guilty beyond a reasonable doubt, the decision of the jury should not be
    disturbed by an appellate court. [Citations omitted; see 
    Wolfe, 440 Mich. at 514
    -
    515; People v Mikulen, __ Mich App __, __; __ NW2d __ (2018), slip op at 3 (“A
    jury, and not an appellate court, observes the witnesses and listens to their
    testimony; therefore, an appellate court must not interfere with the jury’s role in
    assessing the weight of the evidence and the credibility of the witnesses.”).]
    Defendant initially complains that the officer who was first on the scene failed to prepare
    a written report of the incident, that this officer claimed to be testifying from memory although
    he had read reports from other officers before testifying, and that this officer gave evasive
    answers when questioned about his conduct when first encountering defendant. This is nothing
    more than an attack on the officer’s credibility and the reliability of his testimony. Accordingly,
    it was solely a matter for the jury to resolve.
    Defendant next points to the testimony by another officer that he did not call for a
    supervisor when defendant made that request while in the van, yet no officer testified that
    defendant was informed of that fact. Defendant asks, “Why not?”3 We fail to understand the
    relevancy, if there is any, of this argument, but it certainly does not undermine the evidence of
    guilt.
    Defendant next states that his registration and proof of insurance for the van was found
    by police on the van’s console, indicating that he had attempted to provide the documentation to
    the police. Defendant asks, “If he was not doing that why would those documents be out on the
    console?” This, effectively, is a challenge to the credibility of the officers’ accounts regarding
    what transpired when they approached the van and confronted defendant, implicitly suggesting
    that defendant was being fully compliant and that he fled because of some kind of wrongdoing
    by the police. Accordingly, it was solely a matter for the jury to resolve.
    Next, defendant argues that there was no effort to match blood found on the nine-
    millimeter firearm to defendant and that, while police indicated that the gun was not registered in
    anyone’s name, defense counsel was able to produce a report that the gun had been purchased by
    a particular person in May of 2015. Defendant asks why defense counsel was able to procure the
    document while the police failed to do so and why the prosecution failed to contact the owner
    3
    Defendant’s appellate brief is riddled with speculative questions.
    -3-
    regarding the whereabouts of the gun. We do not have the answers to these questions, nor do we
    need the answers. The argument challenges the adequacy of the police investigation. To the
    extent that defendant is arguing that there was insufficient evidence linking defendant to the
    nine-millimeter, the argument fails, given that the evidence presented at trial was more than
    sufficient to connect defendant to the weapon, including testimony that defendant was found near
    the gun and had been seen placing it in the window well. If defendant is complaining about the
    weight of the evidence linking him to the firearm, that was a matter for the jury to resolve.
    Defendant next maintains that there was no physical evidence corroborating the extensive
    testimony by the officers that defendant shot at them. This argument necessarily pertains to the
    credibility of and weight to be given the testimony by the officers. The prosecutor was not
    required to submit physical evidence corroborating the testimony. People v Newby, 66 Mich
    App 400, 405; 239 NW2d 387 (1976) (rejecting the defendant’s argument that physical evidence
    linking him to the crime was necessary, holding that eyewitness testimony suffices to sustain a
    conviction, and noting that our “jurisprudence requires that the weight of the evidence and the
    credibility of a witness be left to the trier of fact”).
    Defendant next complains about the recorded jail phone call in which defendant spoke of
    shooting at the police, arguing that the remaining portion of the call included defendant’s claims
    of innocence. The entire phone call was ultimately played for the jury, and the jurors were free
    to give as much weight to defendant’s statements as they saw fit.
    Next, defendant states that the officers’ injuries were minor, that defendant suffered at
    least eight gunshot wounds, and that defendant’s medical records included a history which stated
    that he was stealing a car and involved in gunfire. Defendant then contends:
    Clearly the defendant did not provide a history claiming to have been shot
    during the theft of his own vehicle. That raises a question regarding who did
    provide that information and why? The answer to that question is what the
    defendant suspected when he said, “They trying to railroad me. They lying on
    me.”
    Evidently, defendant is arguing that a grand conspiracy against him occurred and that the
    police shot him without cause. Once again, these arguments go to the credibility of the witnesses
    that the prosecution presented at trial. Accordingly, it was solely a matter for the jury to resolve.
    Defendant next maintains:
    The appellant asks, given the totality of the evidence presented during his
    trial, what credible and reliable evidence supported the jury’s findings beyond a
    reasonable doubt that he tried to kill three Detroit police officers, resisted or
    obstructed any officer, possessed a pistol or wrongfully fled from the police? He
    submits that there was no such evidence and that his guilt was not proven by the
    required legal standard. [Emphasis added.]
    Thus, defendant’s own arguments acknowledge that he is attacking the credibility and
    reliability of the evidence; he does not maintain that there was a lack of testimony encompassing
    all of the elements of the crimes upon which he was convicted. Weight, credibility, and
    -4-
    reliability of the evidence simply cannot serve as bases for this Court to reverse a criminal
    conviction.
    Although not even argued by defendant, the prosecutor concedes that there was
    insufficient evidence to support the felon-in-possession conviction because a stipulation that
    defendant was a felon at the time the offenses were committed was inadvertently not placed into
    evidence. Given the concession, we shall vacate the conviction and sentence for felon in
    possession. With respect to the remaining convictions, there was more than sufficient evidence
    to sustain them, especially when viewing the evidence in a light most favorable to the
    prosecution and resolving all conflicts in the evidence in favor of the prosecution.
    Defendant next argues that his sentences of 30 to 60 years’ imprisonment for the AWIM
    convictions, to be served consecutively to the 5-year sentence for the felony-firearm conviction,
    second offense, constitute unreasonable and disproportionate sentences and violate the state and
    federal constitutional protections against cruel and unusual punishment. In a case where only by
    great fortune no one was killed by defendant’s repeated discharge of a firearm and operation of a
    vehicle against the flow of traffic on an expressway, and where defendant previously served a
    lengthy prison term for manslaughter, we conclude that this argument is completely devoid of
    merit. The central premise of his argument is that he was 44 years old at the time of sentencing
    and that he will be 79 years old when his minimum sentences are completed, effectively a life
    sentence according to defendant. Defendant’s minimum sentence of 30 years’ imprisonment for
    the AWIM convictions was within the minimum sentence guidelines range, and the 5-year
    consecutive sentence for felony-firearm was mandated by MCL 750.227b(1) and (3). The trial
    court did not even sentence defendant to the top end of the guidelines range for the AWIM
    convictions, which was 35½ years.
    MCL 769.34(10) provides, in relevant part, that “[i]f a minimum sentence is within the
    appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall
    not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate
    information relied upon in determining the defendant’s sentence.” Defendant does not allege a
    scoring error or reliance on inaccurate sentencing information; therefore, generally speaking, we
    must affirm defendant’s sentences. However, MCL 769.34(10) does not and cannot preclude
    constitutional appellate challenges to a sentence, e.g., an argument that a sentence constitutes
    cruel and unusual punishment. See People v Powell, 
    278 Mich. App. 318
    , 323; 750 NW2d 607
    (2008) (MCL 769.34[10]’s limitation on review does not apply to claims of constitutional error);
    see also People v Conley, 
    270 Mich. App. 301
    , 316; 715 NW2d 377 (2006) (“It is axiomatic that a
    statutory provision, such as MCL 769.34[10], cannot authorize action in violation of the federal
    or state constitutions.”).      A sentence within the guidelines range is presumptively
    proportionate, and a proportionate sentence is not cruel or unusual punishment. 
    Powell, 278 Mich. App. at 323
    . A defendant can only overcome the presumption by presenting unusual
    circumstances that would render a presumptively proportionate sentence disproportionate.
    People v Bowling, 
    299 Mich. App. 552
    , 558; 830 NW2d 800 (2013). The principle of
    proportionality requires sentences imposed by the trial court to be proportionate to the
    seriousness of the circumstances surrounding the offense and the offender. People v Milbourn,
    
    435 Mich. 630
    , 636; 461 NW2d 1 (1990).
    -5-
    Considering defendant’s criminal history that includes a conviction for manslaughter, and
    given that a police officer or member of the public could easily have been killed by defendant’s
    reckless and intentional actions, the 30-year minimum AWIM sentences, with the consecutive 5-
    year felony-firearm sentence, were proportionate to the seriousness of the offenses and the
    offender. Defendant has not presented any unusual circumstances that would render the
    presumptively proportionate sentences disproportionate. His age at the time of sentencing does
    not render the sentences disproportionate. In People v Lemons, 
    454 Mich. 234
    , 258-259; 562
    NW2d 447 (1997), our Supreme Court observed:
    [W]e find no basis . . . for a requirement that the trial judge tailor every
    defendant’s sentence in relationship to the defendant’s age. Persons who are sixty
    years old are just as capable of committing grievous crimes as persons who are
    twenty years old. We find no principled reason to require that a judge treat similar
    offenses that are committed by similarly depraved persons differently solely on
    the basis of the age of the defendant at sentencing where the Legislature has
    authorized the judge to impose life or any term of years.
    Because defendant has not overcome the presumption of proportionality, the sentences
    imposed by the trial court did not constitute cruel or unusual punishment. Resentencing is
    unwarranted.
    In a Standard 4 brief filed under Administrative Order No. 2004-6, defendant argues that
    the prosecutor engaged in several instances of prosecutorial misconduct, that his due process
    rights were violated in multiple ways, that he was denied the effective assistance of counsel for
    various reasons, and that this Court should remand the case for an evidentiary hearing. We have
    reviewed and carefully scrutinized each and every argument posed by defendant in painstaking
    detail, and there simply is no basis in the record or the law warranting reversal on any of his
    claims. Accordingly, they are rejected.
    Affirmed with respect to all of defendant’s convictions and sentences, with the exception
    of the felon-in-possession conviction and sentence, which are vacated.
    /s/ William B. Murphy
    /s/ Amy Ronayne Krause
    -6-