People of Michigan v. Terrance Jerod Hare ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 16, 2017
Plaintiff-Appellee,
v No. 329376
Oakland Circuit Court
TERRANCE JEROD HARE, LC No. 2014-251257-FC
Defendant-Appellant.
Before: HOEKSTRA, P.J., and JANSEN and SAAD, JJ.
PER CURIAM.
A jury convicted defendant of armed robbery, MCL 750.529, first-degree home invasion,
MCL 750.110a(2), and two counts of possession of a firearm during the commission of a felony,
MCL 750.227b. The trial court sentenced defendant to concurrent prison terms of 13 to 40 years
for the robbery conviction, and 10 to 20 years for the home invasion conviction, to be served
consecutive to two concurrent two-year terms of imprisonment for the felony-firearm
convictions. Defendant appeals, and for the reasons provided below, we affirm.
Defendant’s convictions arise from his participation in an offense that involved breaking
into a motel room and robbing an escort of her money on June 5, 2014. The prosecution
presented evidence that after arrangements were made through a website to meet with an escort
at a Southfield motel, defendant drove codefendants Gmarre Bell and Joshua Lewis, and a fourth
unidentified co-offender, to the designated motel where Bell interacted with the escort. The
escort testified that, within minutes after Bell left, three people kicked in her door and entered
her motel room. She and her boyfriend, who had returned to the room after Bell left, managed to
barricade themselves in the bathroom and called 911. Shortly after the men left the scene,
defendant’s car was stopped approximately two miles from the motel because it matched a
witness’ description of the suspects’ vehicle. A witness identified the suspects at the scene of the
traffic stop, and Willis’ shoe print matched a footprint found on the motel room door. Defendant
later admitted to the police that he and his passengers formed a plan to pay for sex and then rob
the escort of the money they paid her plus any additional money she had in her possession.
Defendant denied going into the motel room. He claimed that he waited in the car for the other
men, and that he was only going to be compensated with gas money. At trial, the defense denied
that defendant was culpable of any crime, as either a principal or an aider or abettor.
I. SUFFICIENCY OF THE EVIDENCE
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Defendant argues that the evidence was insufficient to find him guilty of first-degree
home invasion and two counts of felony-firearm beyond a reasonable doubt. We disagree. We
review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich. App.
703, 713; 873 NW2d 855 (2015). When ascertaining whether sufficient evidence was presented
at trial to support a conviction, this Court must view the evidence in a light most favorable to the
prosecution 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). Circumstantial evidence and reasonable inferences arising from the evidence
can constitute satisfactory proof of the elements of a crime. People v Brantley, 296 Mich. App.
546, 550; 823 NW2d 290 (2012). “[A] reviewing court is required to draw all reasonable
inferences and make credibility choices in support of the jury’s verdict.” People v Nowack, 462
Mich. 392, 400; 614 NW2d 78 (2000).
A. AIDING AND ABETTING FIRST-DEGREE HOME INVASION1
The elements of first-degree home invasion are (1) the defendant broke and entered a
dwelling or entered the dwelling without permission, (2) when the defendant did so, he intended
to commit a felony, larceny, or assault, or he actually committed a felony, larceny, or assault
while entering, being present in, or exiting the dwelling, and (3) another person was lawfully
present in the dwelling or the defendant was armed with a dangerous weapon. MCL
750.110a(2); People v Wilder, 485 Mich. 35, 43; 780 NW2d 265 (2010).
A person who aids or abets the commission of a crime may be convicted and punished as
if he directly committed the offense. MCL 767.39. “To support a finding that a defendant aided
and abetted a crime, the prosecution must show that (1) the crime charged was committed by the
defendant or some other person, (2) the defendant performed acts or gave encouragement that
assisted the commission of the crime, and (3) the defendant [either] intended the commission of
the crime or had knowledge that the principal intended its commission at the time he gave aid
and encouragement,” People v Izarraras-Placante, 246 Mich. App. 490, 495-496; 633 NW2d 18
(2001) (quotation marks and citation omitted), “or, alternatively, that the charged offense was a
natural and probable consequence of the commission of the intended offense,” People v
Robinson, 475 Mich. 1, 15; 715 NW2d 44 (2006). “Aiding and abetting” describes all forms of
assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might
support, encourage, or incite the commission of a crime. People v Carines, 460 Mich. 750, 757;
597 NW2d 130 (1999); People v Rockwell, 188 Mich. App. 405, 411-412; 470 NW2d 673 (1991).
“The quantum of aid or advice is immaterial as long as it had the effect of inducing the crime.”
People v Lawton, 196 Mich. App. 341, 352; 492 NW2d 810 (1992). An aider or abettor’s state of
mind may be inferred from all the facts and circumstances, including a close association between
the defendant and the principal, the defendant’s participation in the planning or execution of the
1
Defendant challenges the sufficiency of the evidence to sustain his first-degree home invasion
conviction in a pro se supplemental brief filed pursuant to Supreme Court Administrative Order
No. 2004-6, Standard 4.
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crime, and evidence of flight after the crime. Carines, 460 Mich. at 757; People v Bennett, 290
Mich. App. 465, 474; 802 NW2d 627 (2010).
Viewed in a light most favorable to the prosecution, the evidence, including defendant’s
own statements to the police, was sufficient to support defendant’s conviction of home invasion.
First, codefendant Willis, who was armed, used his foot to kick open the escort’s motel room
door and then entered the motel room with an intention to commit a larceny by robbing the
escort of her money. Second, there was sufficient evidence that defendant assisted the
codefendants in the home invasion by (1) driving his co-offenders to the motel to carry out the
plan, (2) waiting outside the motel while the codefendants executed the planned crime, (3)
continuing to wait after seeing the codefendants forcefully kick in the motel room door, and (4)
driving the codefendants from the crime scene after they “hopped” back into the car. Third, the
evidence also was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that
defendant knew his codefendants intended to commit the home invasion at the time he gave aid
and encouragement, including acting as the getaway driver by driving his codefendants away
from the scene. In addition, the evidence, considered as a whole, was sufficient to enable the
jury to find that defendant was aware that, given the plan, the commission of a home invasion
was a natural and probable consequence of the intended armed robbery. Accordingly, the
evidence was sufficient to support defendant’s conviction of first-degree home invasion under an
aiding and abetting theory.
B. AIDING AND ABETTING FELONY-FIREARM
“The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich. App. 499, 505;
597 NW2d 864 (1999). “Under the aiding and abetting statute, MCL 767.39, the correct test for
aiding and abetting felony-firearm in Michigan is whether the defendant procures, counsels, aids,
or abets in another carrying or having possession of a firearm during the commission or
attempted commission of a felony.” People v Moore, 470 Mich. 56, 70; 679 NW2d 41 (2004)
(quotation marks and brackets omitted). Further,
[e]stablishing that a defendant has aided and abetted a felony-firearm offense
requires proof that a violation of the felony-firearm statute was committed by the
defendant or some other person, that the defendant performed acts or gave
encouragement that assisted in the commission of the felony-firearm violation,
and that the defendant intended the commission of the felony-firearm violation or
had knowledge that the principal intended its commission at the time that the
defendant gave aid and encouragement. In determining whether a defendant
assisted in the commission of the crime, the amount of advice, aid, or
encouragement is not material if it had the effect of inducing the commission of
the crime. It must be determined on a case-by-case basis whether the defendant
performed acts or gave encouragement that assisted in the carrying or possession
of a firearm during the commission of a felony. [Id. at 70-71.]
Viewed in the light most favorable to the prosecution, defendant’s actions and words
demonstrated an intent to counsel, aid, or abet the possession of a firearm during the commission
of the armed robbery and home invasion. Defendant admitted that he was aware of the plan to
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rob the escort of her money, and that, when he picked up his codefendants, he knew that they,
specifically codefendant Willis, had a gun. A jury could infer that given the planned robbery,
defendant knew that his codefendants intended to use the gun to carry out the crime. Defendant
assisted his codefendants in the possession of a firearm by specifically driving his armed
codefendants to the crime scene to carry out the planned robbery. Defendant further assisted his
codefendants in the offenses of felony-firearm when he admittedly took steps to prevent the
police from locating the gun. Defendant admitted that he did not “stop at first” when the police
signaled him to pull over, because he was asking his passengers about the location of the gun,
i.e., counseling his codefendants in a manner to avoid detection, and pulled over only after the
gun was hidden under the seat. Accordingly, defendant’s convictions for felony-firearm based
on an aiding and abetting theory are supported by sufficient evidence.
II. JURY INSTRUCTIONS—FELONY-FIREARM
Defendant also argues that he is entitled to a new trial because the trial court failed to
properly instruct the jury on the theory of aiding and abetting with respect to the offenses of
felony-firearm. Again, we disagree.
Preliminarily, we conclude that defendant’s substantive claim of instructional error is
waived. After the trial court completed its final instructions and the jury was excused to begin
deliberations, the court asked the parties whether they “were satisfied with the instructions as
given.” Defense counsel stated, “Yes, your Honor.” By expressly approving the jury
instructions, defendant waived review of his substantive claim of instructional error. People v
Kowalski, 489 Mich. 488, 504; 803 NW2d 200 (2011). Defendant’s waiver extinguished any
error, leaving no error to review. People v Carter, 462 Mich. 206, 216; 612 NW2d 144 (2000).
Defendant alternatively argues that defense counsel was ineffective for failing to object to
the instructions as given. Because defendant failed to raise an ineffective assistance of counsel
claim in the trial court, our review of that claim is limited to mistakes apparent from the record.
People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective
assistance of counsel, a defendant must show that his or her attorney’s performance fell below an
objective standard of reasonableness under prevailing professional norms and that this
performance caused him or her prejudice.” People v Nix, 301 Mich. App. 195, 207; 836 NW2d
224 (2013). “To demonstrate prejudice, a defendant must show the probability that, but for
counsel’s errors, the result of the proceedings would have been different.” Id. “A defendant
must meet a heavy burden to overcome the presumption that counsel employed effective trial
strategy.” People v Payne, 285 Mich. App. 181, 190; 774 NW2d 714 (2009).
Due process requires that the trial court “properly instruct the jury so that it may correctly
and intelligently decide the case.” People v Clark, 453 Mich. 572, 583; 556 NW2d 820 (1996).
Jury instructions are reviewed in their entirety to determine whether any error requiring reversal
occurred. Kowalski, 489 Mich. at 501.
Defendant claims that defense counsel should have objected to the jury instruction related
to these counts because the instruction improperly required the jury to find that he possessed a
firearm while he aided and abetted the underlying offense of robbery and home invasion. The
particular instruction required the jury to find that the prosecutor proved, inter alia, that “at the
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time the Defendant or someone else he aided or abetted committed [robbery or home invasion],
he knowingly carried or possessed a firearm.” (Emphasis added.) We agree with defendant that
the instruction could be viewed as requiring the jury to find that defendant, himself, possessed
the firearm, instead of the person he was aiding and abetting. But we also note that the parties
and the jury could have understood the second pronoun “he” to refer to whoever acted as the
principal, as in “Defendant or someone else he aided or abetted.” Thus, we cannot conclude that
defense counsel’s failure to object was unreasonable. We also note that elsewhere, the trial court
properly instructed the jury of the elements of aiding and abetting and the elements of felony-
firearm. Thus, viewing the instructions as a whole, it appears that the instructions were sufficient
to protect defendant’s rights. See id. at 501-502.
Moreover, assuming the instruction required defendant to be the one to possess the
firearm to be convicted of aiding and abetting the crime of felony-firearm, defendant fails to
recognize that this instruction would have worked to his benefit, as it ostensibly required him to
possess the firearm, but none of the evidence shows that he ever possessed one. Thus, it is a
certainty that had the jury been instructed that defendant could be convicted of felony-firearm if
he aided and abetted another to carry a firearm while that other person committed a felony, the
jury in any event would have convicted defendant. Accordingly, without being able to prove any
prejudice, he cannot prevail on his claim on ineffective assistance. In other words, had defense
counsel successfully objected and a more precise instruction been given, defendant nevertheless
would have been found guilty of two counts of aiding and abetting the crime of felony-firearm
because the evidence was overwhelming that he aided his armed co-defendant in committing the
two underlying felonies.
III. SCORING OF OV 10
Defendant further argues that he is entitled to be resentenced because the trial court
erroneously assessed 15 points for offense variable (OV) 10 of the sentencing guidelines. We
disagree.
To preserve a challenge to the scoring of the sentencing guidelines, the challenge must
have been raised at sentencing, in a proper motion for resentencing, or in a proper motion to
remand filed in this Court. MCL 769.34(10); MCR 6.429(C); People v Jones, 297 Mich. App. 80,
83; 823 NW2d 312 (2012). Because defendant did not so challenge the scoring of OV 10, this
issue is not preserved for appeal. Therefore, we review this unpreserved scoring challenge for
plain error affecting defendant’s substantial rights. Carines, 460 Mich. at 763-764; Jones, 297
Mich. App. at 83. Further, even if a defendant proves that a plain error affected a substantial
right, we nonetheless will not reverse unless the error “seriously affected the fairness, integrity,
or public reputation of judicial proceedings.” People v Vaughn, 491 Mich. 642, 654; 821 NW2d
288 (2012).
OV 10 addresses exploitation of a vulnerable victim, and the court must score 15 points if
“[p]redatory conduct was involved.” MCL 777.40(1)(a). Defendant claims that the 15 points
were incorrectly scored because any such conduct was attributable to his co-defendants and not
him. However, assuming that the 15-point score for OV 10 constitutes plain error, it does not
entitle defendant to resentencing because it did not affect defendant’s substantial rights.
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The trial court scored the guidelines for defendant’s conviction of armed robbery, which
is a class A offense. MCL 777.16y. Defendant received a total OV score of 70 points, which
placed him in the F-IV cell of the applicable sentencing grid, for which the minimum sentence
range is 171 to 285 months. MCL 777.62. If OV 10 had been scored at zero points, defendant’s
total OV score would have been 55 points instead, which in turn would result in a lower
minimum sentencing guidelines range of 135 to 225 months. In general, a defendant is entitled
to resentencing if a scoring error changes the appropriate guidelines range. People v Francisco,
474 Mich. 82, 89; 711 NW2d 44 (2006).
In this case, defendant received a minimum sentence of 156 months—well within, and
near the lower end of, the altered guidelines range of 135 to 225 months. If a defendant fails to
preserve a challenge to the trial court’s scoring decision, and his sentence is within the
appropriate guidelines range, as in this case, “the defendant cannot raise the error on appeal
except where otherwise appropriate, as in a claim of ineffective assistance of counsel.” Id. at 89
n 8. Moreover, there is no indication that the trial court would have imposed a lesser minimum
sentence if OV 10 had been scored at zero points. At sentencing, before imposing a downward
departure sentence, the trial court specifically recognized that the sentencing guidelines are now
advisory pursuant to the Supreme Court’s ruling in People v Lockridge, 498 Mich. 358, 365; 870
NW2d 502 (2015). The trial court provided detailed reasons for the sentences it imposed,
including defendant’s role in the crimes and the sentences that the trial court had imposed for
defendant’s co-offenders, who had entered pleas. In other words, the trial court did not rely on
the guidelines when imposing defendant’s 156-month minimum sentence, and thus it is
improbable that a lower guidelines range would have caused the trial court to impose a lesser
sentence. Indeed, the court seemed to be more concerned with how defendant’s sentence
compared to his co-defendants who took a more active role in the crimes. For these reasons,
defendant has not established that any error affected his substantial rights, or otherwise affected
the outcome of the proceedings. Accordingly, he is not entitled to be resentenced.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Kathleen Jansen
/s/ Henry William Saad
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