People of Michigan v. Wesley Lamarr Banks ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 11, 2018
Plaintiff-Appellee,
v No. 333776
Wayne Circuit Court
WESLEY LAMARR BANKS, LC No. 16-001897-01-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions for unarmed robbery, MCL 750.530,
and unlawful imprisonment, MCL 750.349b, for which he received concurrent sentences of 100
to 180 months. We affirm defendant’s convictions, but vacate his judgment of sentence and
remand for resentencing.
On January 15, 2016, at around midnight, Jacarr Worthy was at a Shell station in Detroit.
Worthy testified that, as he was getting into his car after pumping gas, two unknown men entered
the vehicle on the passenger side—defendant in the front seat and the other man in the back seat.
Defendant pulled a gun with a black handle slightly out of his jacket pocket as he demanded
Worthy’s unlocked cell phone, debit card, and wallet. At the robbers’ orders, Worthy then drove
to a liquor store down the road but it was closed. He was then ordered to drive to the Citgo gas
station less than one mile away, and enter through the back alley. During this time, defendant
held the gun low and pointed at Worthy.
Once at the gas station, the robbers demanded the pin number for Worthy’s debit card
and then the man in the back seat took Worthy’s phone and debit card into the station. When the
man could not get the debit card to work, he called defendant. Defendant told Worthy that they
would shoot or kill him if they could not get money using his card. Worthy was afraid and told
defendant he would help them because he wanted to live. Leaving the car running, defendant
exited the vehicle with Worthy and walked a few steps ahead of Worthy. Once defendant got far
enough in front of him, Worthy ran back to the car and drove away.
Both defendant and the other man chased Worthy and tried to pull the car door open, then
ran behind the car as Worthy was driving off. Worthy went to the police station and reported the
incident. The next day, he contacted the police and gave them a residential address on Ardmore
Street where he had tracked the location of his cell phone. He also informed the police that he
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had retrieved messages sent from his phone and searched on Facebook to find the number to
which the messages were sent. When he did so, a picture of defendant appeared. He recognized
defendant’s face but did not know his name at the time. On January 19, Worthy returned to the
police station to look at a photo array, and he identified defendant as the person who robbed him.
He was not able to identify the second man when the police called him back for a second photo
array.
Defendant testified at his trial that he had met Worthy in December 2015, through a
mutual friend, Derrick Johnson. On the night of the purported robbery, defendant was at
Johnson’s house. He called Worthy at about 12:00 a.m. and asked him to come to Johnson’s
house and Worthy came over with Hennessy. Worthy did not drink because he is on dialysis.
When defendant and Johnson finished the Hennessey, the three headed to the Citgo gas station to
get cigarillos and more alcohol. They never went to the liquor store.
At the Citgo station, Worthy gave Johnson his debit card of his own free will. While
Johnson was in the gas station, Worthy tried to touch defendant’s private parts three times and
grabbed defendant’s coat when defendant tried to get out of the car. Defendant defended himself
by punching Worthy in the neck and jaw, and then defendant exited the car. Worthy
immediately pulled off in the car. Defendant then went into the Citgo and tried, unsuccessfully,
to use Worthy’s debit card. He never contacted Worthy to return the debit card but gave it back
to Johnson. Defendant never pointed a gun at Worthy; defendant did not own a gun.
Under cross-examination, defendant identified himself and Johnson on the video from the
Citgo station. He also admitted that his phone records showed eight calls to or from Worthy’s
phone on January 15 between 12:23 a.m. and 1:08 a.m., the time of the alleged robbery. He
stated that he only saw Worthy one time after he first met him. He admitted that he had
Worthy’s cell phone and explained that he had asked to see it while they were in the car and took
it with him when he left the car. Though the phone was not intended to be a gift, defendant
never returned the phone to Worthy.
Defendant was charged with armed robbery, felony-firearm, and unlawful imprisonment,
but the jury found him guilty of unarmed robbery and unlawful imprisonment. The minimum
guideline range for defendant was 50 to 100 months. At the sentencing hearing, defense counsel
stated that the PSIR had been reviewed and “we have no additions, deletions, or corrections.”
After defendant exercised his right of allocution, the trial court noted that defendant had
expressed no remorse and blamed the victim. The court opined that defendant “is a danger to
society” and noted “that the defendant has been given plenty of opportunities to be
rehabilitated.” With regard to defendant’s juvenile record, the trial court listed the following
from the report: carrying a concealed weapon, larceny from a person, truancy, assault and
battery, as well as gambling. The court noted that defendant was still committing the same types
of crimes despite “all of these placements as a juvenile and he’s only 21.” And defendant was
convicted as an adult of larceny from a person for which he received the benefit of the Holmes
Youthful Training Act, giving him a chance to straighten out without a record. The court stated:
“This many contacts and you see your past reflects [or] gives us a great indication of what your
future is going to be.” The court concluded that defendant was dangerous and sentenced him to
concurrent terms of 100 to 180 months’ imprisonment for the two convictions. This appeal
followed.
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First, defendant argues that there was insufficient evidence to support his unlawful
imprisonment conviction. We disagree.
We review de novo a defendant’s claim that the evidence was insufficient to support his
conviction. People v Kosik, 303 Mich. App. 146, 150; 841 NW2d 906 (2013). “In reviewing the
sufficiency of the evidence, this Court must view the evidence in the 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.” Id. Any conflicts in the evidence are to be
resolved in favor of the prosecution. Id. at 151.
The false imprisonment statute, MCL 750.349b, provides in relevant part:
(1) A person commits the crime of unlawful imprisonment if he or she
knowingly restrains another person under any of the following circumstances:
(a) The person is restrained by means of a weapon or dangerous
instrument.
(b) The restrained person was secretly confined.
(c) The person was restrained to facilitate the commission of another
felony or to facilitate flight after commission of another felony.
This Court has held that the three methods of committing false imprisonment are alternative
theories. People v Chelmicki, 305 Mich. App. 58, 68; 850 NW2d 612 (2014). This means that a
conviction is proper “even if some jurors believed [the defendant] restrained the victim by means
of a weapon, and the rest of the jurors believed he restrained the victim in order to facilitate the
commission of the felony[.]” Id. at 68-69.
Defendant argues that the evidence was not sufficient to support his conviction for false
imprisonment because the jury acquitted him of armed robbery and felony-firearm, i.e., the jury
did not believe that he had a gun; thus, he did not “restrain” Worthy. We disagree. There was
sufficient evidence for the jury to conclude, at minimum, that defendant knowingly restrained
Worthy to facilitate the commission of unarmed robbery, a felony. MCL 750.349b(1)(c); MCL
750.530(1).
MCL 750.349b defines the term “restrain” as follows:
(3) As used in this section:
(a) “Restrain” means to forcibly restrict a person’s movements or to
forcibly confine the person so as to interfere with that person’s liberty without
that person’s consent or without lawful authority. The restraint does not have to
exist for any particular length of time and may be related or incidental to the
commission of other criminal acts.
In this case, Worthy testified that as he was getting back into his car after pumping gas at
about midnight, two unknown men entered his vehicle on the passenger side—defendant in the
front seat and the other man in the back seat. Defendant announced to Worthy that he was being
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robbed and demanded his wallet, debit card, and unlocked cell phone. Worthy testified that he
followed defendant’s orders out of fear for his life. Defendant then ordered Worthy to drive to
another location where his debit card could be used and told Worthy that they would kill him if
they could not get money using his card.
As the prosecution argues, defendant could have robbed Worthy of his personal
possessions when he was outside of his vehicle pumping gas. But instead, defendant waited until
Worthy was inside of his vehicle and then he and his accomplice entered the vehicle so that
Worthy was confined within the vehicle and unable to flee on foot. And because defendant was
inside of his vehicle, Worthy was also unable to use the car for his escape. Thus, defendant used
Worthy’s own car as a means to forcibly confine Worthy so that defendant could rob him of his
personal possessions and thereby accomplish the felony. Accordingly, there was sufficient
evidence to support defendant’s conviction of unlawful imprisonment and his challenge is
without merit.
Next, defendant argues that he is entitled to resentencing because the trial court took into
consideration dismissed juvenile charges in rendering sentence. After de novo review of this
issue of law, we disagree. See People v Lee, 489 Mich. 289, 295; 803 NW2d 165 (2011).
It has long been the rule in Michigan that a presentence investigation report (PSIR) may
contain the defendant’s juvenile history, including any dispositions made, and that this
information is properly considered in sentencing an adult defendant. People v McFarlin, 389
Mich. 557, 574-575; 208 NW2d 504 (1973); People v Cross, 186 Mich. App. 216, 217-218; 463
NW2d 229 (1990). As the McFarlin Court explained:
A judge needs complete information to set a proper individualized sentence. A
defendant’s juvenile court history may reveal a pattern of lawbreaking and his
response to previous rehabilitative efforts. [Id. at 574-575.]
Stated another way, “[t]he trial judge is required to inquire into a defendant’s antecedents and
character prior to sentencing.” People v Martin, 393 Mich. 145, 147; 224 NW2d 36 (1974). This
includes unsigned complaints as well as charges that did not result in convictions, as long as
there is no claim that the information is inaccurate. Id.; People v Gray, 125 Mich. App. 482, 486-
487; 336 NW2d 491 (1983). Our Supreme Court has held that even expunged juvenile
information is properly considered when the individual re-offends as an adult, because “complete
information is necessary to set an individualized sentence and [] rehabilitative goals would not be
served by preventing a sentencing judge from considering information about a defendant’s
juvenile criminal history.” People v Smith, 437 Mich. 293, 301-302; 470 NW2d 70 (1991).
If, however, a defendant does claim that there is inaccurate information in the PSIR, a
trial court must respond by: (1) holding an evidentiary hearing on the report’s accuracy; (2)
accepting an unsworn statement from the defendant; or (3) ignoring the challenged information
in sentencing the defendant and clearly indicate that the challenged information was not
considered. Gray, 125 Mich. App. at 487. But in this case, defendant did not challenge the
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accuracy of the PSIR at sentencing. Instead, defense counsel stated that the PSIR had been
reviewed and “we have no additions, deletions, or corrections.” Therefore, the trial court
properly considered defendant’s juvenile history in rendering sentence.1 And to the extent that
defendant is claiming his counsel was ineffective for failing to object to the inclusion of
defendant’s juvenile history in the PSIR, that argument fails. An attorney is not required to raise
futile objections. See People v Thomas, 260 Mich. App. 450, 457; 678 NW2d 631 (2004).
Next, defendant argues that he is entitled to resentencing because offense variables (OV)
1, 2, 4, and 12 were incorrectly scored which affected the recommended minimum sentencing
guidelines range. We disagree as to OV 1, 2, and 12, but agree as to OV 4.
The trial court’s factual determinations regarding sentencing are reviewed for clear error
and must be supported by a preponderance of the evidence. People v Calloway, 500 Mich. 180,
184; 895 NW2d 165 (2017), citing People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013).
“Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake
has been made.” People Johnson, 466 Mich. 491, 497-498; 647 NW2d 480 (2002). “ ‘Whether
the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the
application of the facts to the law, is a question of statutory interpretation, which an appellate
court reviews de novo.’ ” Calloway, 500 Mich. at 184, quoting Hardy, 494 Mich. at 438.
“[W]hen determining how offense variables should be scored, this Court reads the sentencing
guideline statutes as a whole.” People v Bonilla-Machado, 489 Mich. 412, 422; 803 NW2d 217
(2011).
Michigan’s sentencing guidelines are advisory in all cases. People v Steanhouse, 500
Mich. 453, 470; 902 NW2d 327 (2017). However, “ ‘[s]entencing courts must . . . continue to
consult the applicable guidelines range and take it into account when imposing a sentence . . .
[and] justify the sentence imposed in order to facilitate appellate review.’ ” Id., quoting People v
Lockridge, 498 Mich. 358, 392; 870 NW2d 502 (2015). “The sentencing offense determines
which offense variables are to be scored in the first place, and then the appropriate offense
variables are generally to be scored on the basis of the sentencing offense.” People v Sargent,
481 Mich. 346, 348; 750 NW2d 161 (2008). “The primary focus of the offense variables is the
nature of the offense[.]” Id.
“A sentencing court may consider all record evidence before it when calculating the
guidelines, including, but not limited to, the contents of a presentence investigation report,
admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary
examination or trial.” People v Johnson, 298 Mich. App. 128, 131; 826 NW2d 170 (2012)
(citation omitted). Reasonable inferences that arise from the record evidence may also be
utilized to support the scoring of a variable. People v Earl, 297 Mich. App. 104, 109; 822 NW2d
271 (2012).
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We note and reject defendant’s reliance on case law that involves the proper scoring of offense
variables because the trial court did not use defendant’s unproven juvenile charges to score an
offense variable.
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Defendant argues that OV 1 (aggravated use of weapon) should have been scored at 5
points—not 15 points, and that OV 2 (lethal potential of the weapon used) should have been
scored at zero points—not 5 points. We disagree.
Offense variable 1 is to be assessed at 15 points if a “firearm was pointed at or toward a
victim,” and at 5 points if a “weapon was displayed or implied.” MCL 777.31(1)(c) and (e).
Offense variable 2 is to be assessed 5 points if a firearm was possessed or used. MCL
777.32(1)(d). Defendant argues that because the jury did not convict him of armed robbery, the
evidence was insufficient to establish that he possessed and pointed a firearm at or toward
Worthy. Although a jury was not convinced beyond a reasonable doubt that defendant had a
gun, the trial court was only required to determine if a preponderance of the evidence supported
the facts needed to score the variables. Calloway, 500 Mich. at 184, citing Hardy, 494 Mich. at
438. And here, Worthy testified that defendant pulled a gun with a black handle partway out of
his pocket and kept it low and pointed at him as he drove where defendant and his accomplice
directed him to drive. The trial court did not clearly err when it assessed 15 points for OV 1 and
5 points for OV 2.
Next, defendant argues that OV 4 (psychological injury) was improperly scored at 10
points and it should have been scored at zero points. We agree.
Offense variable 4 is to be assessed at 10 points if “[s]erious psychological injury
requiring professional treatment occurred to a victim” and zero points if there was no such
injury. MCL 777.34(1)(a) and (b). Further, 10 points is to be assessed “if the serious
psychological injury may require professional treatment . . . [and] the fact that treatment has not
been sought is not conclusive.” MCL 777.34(2). There must be some record evidence of
psychological injury to assess the points. People v White, ___ Mich ___; ___ NW2d ___
(December 26, 2017) (Docket No. 149490); People v Lockett, 295 Mich. App. 165, 183; 814
NW2d 295 (2012). The victim’s expression of fearfulness while a crime is being committed, by
itself, is insufficient to assess points for OV 4. White, ___ Mich ___; slip op at 1-2. “The trial
court may assess 10 points for OV 4 if the victim suffers, among other possible psychological
effects, personality changes, anger, fright, or feelings of being hurt, unsafe, violated.” People v
Armstrong, 305 Mich. App. 230, 247; 851 NW2d 856 (2014).
Worthy testified that he was afraid during this robbery but, as in the White case, here,
there was no victim impact statement, preliminary examination testimony, or victim statement at
sentencing that supports a scoring of 10 points for OV 4. Detroit Police Officer Robert Rowe,
who took Worthy’s statement immediately after the robbery, testified that Worthy “appeared
shaken” and it looked like “something traumatic happened” to him. But a preponderance of the
evidence must establish that Worthy suffered a “serious psychological injury” and this evidence
is insufficient. Because the subtraction of 10 points lowers defendant’s guidelines range from a
minimum of 50 to 100 months in prison to a minimum of 43 to 86 months in prison, MCL
777.64, we vacate defendant’s judgment of sentence and remand for resentencing. See People
Francisco, 474 Mich. 82, 92; 711 NW2d 44 (2006).
Defendant also argues that OV 12 (contemporaneous felonious criminal acts) was
improperly scored at one point and it should have been scored at zero points. We disagree.
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Offense variable 12 is to be assessed one point when one “contemporaneous felonious
criminal act involving any other crime was committed.” MCL 777.42(1)(f). The felonious
criminal act must not have resulted in a separate conviction. MCL 777.42(2)(a)(ii). And in this
case, there was evidence that defendant was unlawfully carrying a concealed weapon which is a
felony. MCL 750.227(2). Therefore, the trial court did not clearly err when it assessed one point
for OV 12.
In summary, defendant’s challenges to the scoring of the OV 1, 2, and 12 are without
merit. It follows that defendant’s ineffective assistance of counsel claim premised on the failure
to object to the scoring of these offense variables fails because an attorney is not required to raise
futile objections. See Thomas, 260 Mich. App. at 457. However, defendant’s challenge to the
scoring of OV 4 is meritorious and requires remand for resentencing. In light of this relief
afforded defendant, we will not address his ineffective assistance of counsel claim with respect
to OV 4. See People v Phelps, 288 Mich. App. 123, 142; 791 NW2d 732 (2010), overruled on
other grounds by People v Hardy, 494 Mich. 430, 438 n 18; 835 NW2d 340 (2013).
We affirm defendant’s convictions, but vacate defendant’s judgment of sentence and
remand for resentencing. We do not retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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