People of Michigan v. David Carl Barrett ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 11, 2020
Plaintiff-Appellee,
v No. 345821
Washtenaw Circuit Court
DAVID CARL BARRETT, LC No. 16-000777-FH
Defendant-Appellant.
Before: FORT HOOD, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by right his bench trial conviction of assault with a dangerous weapon
(felonious assault), MCL 750.82. The trial court sentenced defendant as a fourth-offense habitual
offender, MCL 769.12, to three years’ probation, and ordered defendant to pay fees and court
costs. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant and his neighbor, Robert Douglass, had a dispute over where their adjoining
property line was located, which led to litigation. During the litigation, on July 21, 2016, Douglass
had his property surveyed. The surveyors placed 3-foot wooden laths1 at intervals to mark the
property line.
Douglass testified at trial that while he was accompanying the surveyors, defendant
watched and “hollered” at him and the surveyors; at some point, defendant reached for one of the
laths, prompting Douglass to also reach for it and to tell defendant not to remove it from the ground.
Douglass testified that defendant reached the lath first, pulled it from the ground, and swung it
“back like a baseball bat,” hitting him in his back, and then threw the lath into Douglass’s yard
before walking away.
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The parties describe the laths as wooden sticks or stakes.
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Guy Hodges, a surveyor, witnessed the incident through a magnification scope from
approximately 600 feet away. His testimony corroborated Douglass’s testimony, indicating that
defendant had approached the lath, pulled it out, and hit Douglass with it. Hodges testified that
defendant took a “full swing” with the lath.
Defendant testified and admitted to striking Douglass with the lath. But while he admitted
that he had heard Douglass approaching, he also testified that he stuck Douglass because he “didn’t
know what was happening” and he “didn’t know who was attacking” him or why. Defendant also
testified that he was afraid of Douglass because “he drinks every day, and he smokes every day,
and he does stuff off the wall,” and recounted an earlier incident in which Douglass allegedly had
tried to run him over with a tractor.
The lath incident was recorded by video cameras that defendant had installed on his house.
The trial court viewed the recording.
Defendant’s counsel argued at trial that the lath was not a “dangerous weapon” under
MCL 750.82 and that he had acted in self-defense. The trial court convicted and sentenced
defendant as described. This appeal followed.
II. FAILURE TO ADDRESS SELF-DEFENSE
Defendant argues that the trial court erred by not making explicit factual findings regarding
his claim of self-defense, and by not explicitly stating that it found that the prosecution had carried
its burden of proving that defendant did not act in self-defense. We disagree. We review for clear
error a trial court’s findings of fact after a bench trial. People v Lanzo Constr Co, 272 Mich App
470, 473; 726 NW2d 746 (2006). A trial court’s findings are “clearly erroneous when, although
there is evidence to support [them], the reviewing court is left with a definite and firm conviction
that a mistake has been made.” Id.MCR 6.403 provides that for bench trials in criminal cases “[t]he court must find the facts
specially, state separately its conclusions of law, and direct entry of the appropriate judgment. The
court must state its findings and conclusions on the record or in a written opinion made a part of
the record.” A trial court’s factual findings “are sufficient as long as it appears that the trial court
was aware of the issues in the case and correctly applied the law.” People v Legg, 197 Mich App
131, 134; 494 NW2d 797 (1992). “The court need not make specific findings of fact regarding
each element of the crime.” Id. “A court’s failure to find the facts does not require remand where
it is manifest that the court was aware of the factual issue, that it resolved the issue, and that further
explication would not facilitate appellate review.” Id. at 134-135.
In this case, the trial court did not explicitly address defendant’s self-defense claim in its
verdict. However, the record shows that the trial court was aware of defendant’s claim of self-
defense and implicitly rejected it when it found that the prosecution had proven all of the elements
of felonious assault. See id. at 134. Further, remanding this case “would serve no useful purpose,”
id. at 135, in light of the fact that sufficient evidence existed to prove that defendant did not act in
self-defense, as discussed later in this opinion. Therefore, the trial court did not err by not
explicitly addressing defendant’s self-defense claim in its verdict.
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III. SUFFICIENCY OF THE EVIDENCE/GREAT WEIGHT OF THE EVIDENCE
Defendant argues that there was insufficient evidence to support the finding that defendant
assaulted Douglass with a dangerous weapon or that defendant did not act in self-defense;
alternatively, he argues that that his conviction was against the great weight of the evidence. We
disagree in all respects.
We review de novo challenges to the sufficiency of the evidence. People v Meissner, 294
Mich App 438, 452; 812 NW2d 37 (2011). The Court must review the challenge “in the light most
favorable to the prosecution to determine whether a rational tier of fact could have found that the
essential elements of the crime to have been proved beyond a reasonable doubt.” Id. Where a
defendant has not preserved the issue by moving for a new trial on the ground that the verdict was
against the great weight of the evidence, we review the issue for plain error affecting substantial
rights. People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). Here, defendant did
not preserve this issue before the trial court; we therefore review it to determine “whether the
evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to
allow the verdict to stand.” Id.; see also People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). In reviewing challenges to a verdict, this Court should not interfere with the trial court’s
determination of fact because the trial court is in a “much better position” to assess the evidence
before it. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992) (quotation marks and
citation omitted), amended 441 Mich 1201 (1992).
In order to prove felonious assault, the prosecution must prove each of the following
elements beyond a reasonable doubt: “(1) an assault, (2) with a dangerous weapon, and (3) with
the intent to injure or place the victim in reasonable apprehension of an immediate battery.” People
v Avant, 235 Mich App 499, 504; 597 NW2d 864 (1999). The affirmative defense of self-defense
justifies criminal conduct such as felonious assault. See People v Guarjardo, 300 Mich App 26,
35; 832 NW2d 409 (2013). A defendant has the initial burden of producing evidence at trial that
a fact-finder could use to conclude that a prima facie claim of self-defense exists. People v Reese,
491 Mich 127, 155-156; 815 NW2d 85 (2012). If he does so, the prosecution then has the burden
of proving beyond a reasonable doubt that the defendant did not act in self-defense. Id. at 155.
A. DANGEROUS WEAPON
The evidence was sufficient for the trial court to conclude that the lath was a “dangerous
weapon” under MCL 750.82(1). The statute states that “a person who assaults another person with
a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without
intending to commit murder or to inflict great bodily harm less than murder is guilty” of felonious
assault.
Our Supreme Court has held that “dangerous weapons per se, which carry their dangerous
character because so designed and are, when employed, per se, deadly” satisfy the second element
of felonious assault. People v Triplett, 499 Mich 52, 55-56; 878 NW2d 811 (2016) (quotation
marks and citations omitted). However, this Court has also stated that other objects satisfy the
element of dangerous weapon if the weapon was “used as a weapon and, when so employed in an
assault [was] dangerous.” Id. at 56 (quotation marks and citations omitted; alteration in original).
Whether an object qualifies as a dangerous weapon is a question of fact for the fact-finder. People
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v Norris, 236 Mich App 411, 415; 600 NW2d 658 (1999). “Circumstantial evidence and
reasonable inferences arising therefrom may be sufficient to prove the elements of a crime.” Avant,
235 Mich App at 505.
In this case, Hodges testified that the wooden laths used by the surveyors were “three feet
long and probably an inch-and-a-half wide by half an inch, three-eighths thick.” Hodges also
testified that defendant took a “full swing” with the lath, and he heard the sound of the hit from
600 feet away. Douglass testified that defendant “swung back like a baseball bat with [the lath]”
and hit him with it, and that the hit from the lath left bruises on him.
Viewing the evidence presented at trial in the light most favorable to the prosecution, the
evidence was sufficient for the trial court to find that the lath was a dangerous weapon. Meissner,
294 Mich App at 452; see also People v Geierman, 493 Mich 934; 825 NW2d 582 (2013)
(concluding that the evidence was sufficient to support a felonious assault conviction when the
defendant threatened to strike the victims with “what appeared to be a small bat or club”); see also
People v McCadney, 111 Mich App 545, 550; 315 NW2d 175 (1981) (“[W]e cannot say that a [3
foot] stick is not a dangerous weapon as a matter of law.”). The trial court assessed the credibility
of the witnesses and viewed direct evidence of the encounter. Wolfe, 440 Mich at 514-515. We
conclude that there was sufficient evidence to conclude beyond a reasonable doubt that the lath
was a dangerous weapon.
Moreover, such a conclusion was not against the great weight of the evidence. As stated
earlier, the trial court, serving as the fact-finder, determines whether an object satisfies the
definition of a dangerous weapon when evaluating the elements of felonious assault. Triplett, 499
Mich at 56. The record reveals no reason for this Court to usurp the trial court’s role as fact-finder.
See People v Lemmon, 456 Mich 625, 644 n 24; 576 NW2d 129 (1998).
B. SELF-DEFENSE
Defendant argues that there was insufficient evidence to support the determination that he
did not act in self-defense, or that such a determination was against the great weight of the
evidence. We disagree.
MCL 780.972(2) governs situations that involve the use of “force other than deadly force,”
and provides:
An individual who has not or is not engaged in the commission of a crime
at the time he or she uses force other than deadly force may use force other than
deadly force against another individual anywhere he or she has the legal right to be
with no duty to retreat if he or she honestly and reasonably believes that the use of
that force is necessary to defend himself or herself or another individual from the
imminent unlawful use of force by another individual.
Whether a defendant acted in self-defense is a question of fact. People v Prather, 121 Mich App
324, 330; 328 NW2d 556 (1982).
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Defendant argues that he had an honest and reasonable belief that force was necessary to
defend himself, but the evidence presented at trial contradicts defendant’s claim of self-defense.
During trial, defendant argued essentially that he hit Douglass because Douglass had surprised him
and he thought he was being attacked. But defendant’s testimony contradicted Hodges’s and
Douglass’s testimony in several respects. Hodges testified that defendant and Douglass were an
“arm’s length” apart when defendant swung at Douglass, and Hodges and Douglass testified that
Douglass simply reached for the lath and did not attempt to attack defendant after defendant pulled
the lath out of the ground.
Viewing the evidence in the light most favorable to the prosecution, the trial court’s
implicit finding that defendant did not act in self-defense was sufficiently supported by the
evidence. Meissner, 294 Mich App at 452. Although defendant’s testimony in some respects
supported his claim, the trial court was entitled to judge the credibility of the witnesses before it.
See People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008).
Additionally, the verdict was not against the great weight of the evidence. The trial court’s
implicit rejection of defendant’s self-defense claim was supported by witness testimony.
Determinations of witness credibility are reserved for the trial court “[a]bsent exceptional
circumstances.” Unger, 278 Mich App at 232; see also Lemmon, 456 Mich at 644.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
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