People of Michigan v. Anthony Hall ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 17, 2020
Plaintiff-Appellee,
v No. 348799
Wayne Circuit Court
ANTHONY HALL, LC No. 18-007307-01-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and O’BRIEN and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals as of right his multiple convictions arising from a shooting. Although
the victim identified defendant as the shooter, he argues that the evidence presented at trial was
insufficient to prove his identity. In addition, defendant challenges his departure sentence as
unreasonable, as well as cruel or unusual. Because defendant’s arguments lack merit, we affirm.
I. BACKGROUND
This case arises out of the drive-by shooting of the victim, who told the 911 dispatcher and
responding officers that she was shot by the driver of a black, two-door car with tinted windows.
The victim was unable to describe the shooter or passenger of the suspect vehicle to the 911
dispatcher. It was not until police officers spoke to the victim at the hospital that she described
the shooter as a “[b]lack guy, medium dark complexion, braids, younger twenties” and described
the passenger as “[b]lack guy, light skinned.” When the officers showed the victim a photographic
array, she identified defendant as the shooter. At trial, she agreed that defendant was lighter
skinned than herself. The jury also heard testimony that defendant did not have his hair in braids
at the time of the shooting.
Police officers located a black 2005 Chevrolet Monte Carlo near the scene of the shooting.
When officers discovered the vehicle, its engine was warm and its parking lights were still on. The
car belonged to Julian Sullivan, who testified that defendant drove him to John Jenkins’s house in
the Monte Carlo. When Sullivan entered Jenkins’s house, defendant remained in possession of
Sullivan’s car keys. Sullivan went to a back room of Jenkins’s house to smoke crack cocaine, and
upon exiting the room, discovered that both his Monte Carlo and defendant were gone. Later,
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defendant returned to Jenkins’s house in the Monte Carlo, and police arrived shortly thereafter.
Sullivan consented to a search of the car. Police found defendant’s cellphone in the center console,
as well as a live round on the rear seat. The live round was the same brand and caliber as the shell
casings that police found at the scene of the shooting.
After a trial, the jury convicted defendant of assault with intent to do great bodily harm less
than murder (AWIGBH), MCL 750.84, felon in possession of a firearm (felon-in-possession),
MCL 750.224f, carrying a concealed firearm (CCW), MCL 750.227, and two counts of carrying a
firearm during the commission of a felony (felony-firearm), MCL 750.227b.1 The trial court
sentenced defendant, as a third-offense habitual offender, MCL 769.11, to a term of 10 to 20 years
in prison for the AWIGBH conviction, 6 to 10 years in prison for the felon-in-possession
conviction, 6 to 10 years in prison for the CCW conviction, and two years in prison for each felony-
firearm conviction.
This appeal followed.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that the prosecutor presented insufficient evidence to prove that he
was the person who committed the shooting. This argument is without merit.
This Court reviews de novo a challenge to the sufficiency of the evidence. People v
Savage, 327 Mich App 604, 613; 935 NW2d 69 (2019). We review the evidence in the light most
favorable to the prosecutor to determine whether the jury could have found each element of the
charged crime proved beyond a reasonable doubt. Id. Circumstantial evidence and reasonable
inferences arising therefrom may constitute proof of the elements of the crime, and we must draw
all reasonable inferences and make all credibility choices in support of the verdict. Id. at 613-614.
“It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn
from the evidence and to determine the weight to be accorded those inferences.” People v Oros,
502 Mich 229, 239; 917 NW2d 559 (2018) (cleaned up).
Defendant argues that there was no reliable evidence to establish his identity as the person
who committed the shooting. “[I]t is well settled that identity is an element of every offense.”
People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). In challenging the evidence of his
identity, defendant focuses on the victim’s inconsistent statements regarding his appearance, as
well as Sullivan’s credibility.
The victim testified at trial that defendant was the person who shot her. She also picked
defendant out of a photographic array shortly after the shooting occurred. Even though the
description she gave before identifying defendant in the photographic array was not entirely
1
The trial court granted a directed verdict on the charge of unlawfully driving away of an
automobile, MCL 750.413. The jury convicted defendant of AWIGBH rather than the greater
offense of assault with intent to murder, MCL 750.83.
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consistent with defendant’s appearance, this inconsistency went only to the weight of the evidence.
“Any discrepancy between complainant’s initial description and defendant’s actual appearance is
relevant to the weight of such evidence, not to its admissibility.” People v Davis 241 Mich App
697, 705; 617 NW2d 381 (2000). It was for the jury to decide whether the victim’s initial inability
to describe defendant and subsequent description affected the credibility and weight of her
identification of defendant at trial.
Sullivan testified at trial that defendant had possession of his car at the time of the shooting.
Defendant argues that Sullivan’s testimony was “hardly credible” because Sullivan admitted using
drugs on the night in question. Despite the credibility issues surrounding Sullivan’s testimony, the
jury heard testimony about the drug use and, even given this, appears to have credited that
testimony, and this Court must make credibility choices in support of the jury verdict. Savage,
327 Mich App at 613-614. The combined testimony of Sullivan and the victim provided sufficient
evidence from which the jury could have found, beyond a reasonable doubt, that defendant
committed the charged offenses.
B. SENTENCING
Defendant also argues that his sentences were disproportionate and unreasonable, and
constituted cruel or unusual punishment.
1. REASONABLENESS
This Court reviews whether a sentence is reasonable using the abuse of discretion standard
of review. People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). A sentencing court
abuses its discretion when it violates the principle of proportionality by imposing a sentence that
is not “proportionate to the seriousness of the circumstances surrounding the offense and the
offender.” Id. at 474 (cleaned up). Additionally, even though the sentencing guidelines are
advisory, “ ‘[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. at 470, quoting People v Lockridge, 498 Mich 358, 392; 870
NW2d 502 (2015).
“[T]his Court is required to review for reasonableness only those sentences that depart from
the range recommended by the statutory guidelines.” People v Anderson, 322 Mich App 622, 636;
912 NW2d 607 (2018). A sentence is reasonable under Lockridge if it adheres to the principle of
proportionality set forth in Milbourn, which “requires the sentences imposed by the trial court to
be proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
People v Lampe, 327 Mich App 104, 126; 933 NW2d 314 (2019) (cleaned up).
“An out-of-guidelines sentence may be imposed when the trial court determines that the
recommended range under the guidelines is disproportionate, in either direction, to the seriousness
of the crime.” Id. (cleaned up). Factors a trial court may consider under the proportionality
standard include:
(1) the seriousness of the offense; (2) factors that were inadequately considered by
the guidelines; and (3) factors not considered by the guidelines, such as the
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relationship between the victim and the aggressor, the defendant’s misconduct
while in custody, the defendant’s expressions of remorse, and the defendant’s
potential for rehabilitation. [Id. (cleaned up).]
“[A] trial court must justify the sentence imposed in order to facilitate appellate review, which
includes an explanation of why the sentence imposed is more proportionate to the offense and the
offender than a different sentence would have been.” People v Dixon-Bey, 321 Mich App 490,
525; 909 NW2d 458 (2017) (cleaned up).
Here, the trial court sentenced defendant to a minimum of 120 months in prison for the
AWIGBH conviction. The minimum-sentencing-guidelines range for this offense was 38 to 114
months in prison. Thus, defendant’s sentence represented an upward departure of six months.
Before sentencing defendant, the trial court stated:
I’m going to set forth some factors before I impose sentence in this matter,
and those factors are that [defendant] first of all, was convicted back in
approximately July of 2017 for Carrying a Concealed Weapon. He was on
probation when he picked this matter up under a HYTA [Holmes Youthful Trainee
Act] Program. Then while he was on probation he, also, picked up two additional
counts of felony counts of [sic] and was convicted of two counts of Controlled
Substance, Delivery and Manufacture Narcotic or Cocaine Under Fifty Grams.
And, and then as he’s waiting to be sentenced on those two felony convictions he
pick [sic], this case happens. And I agree with the prosecutor, this was completely
unprovoked. There was nothing that this victim did that should have resulted in
[her] being shot. And the victim was in a wheelchair and the victim--
This [defendant] comes flying up in a car and opens up fire and shoots this
victim in the thigh. And the jury has found him guilty of five counts, and I’m going
to go through each one count, each count.
After sentencing defendant, the trial court noted, “And the [c]ourt understands that the guidelines
are advisory now only pursuant to [Lockridge], and I believe that the sentence that I have set forth
here is reasonable.” It further noted, “And I believe that the sentence is reasonable, I believe that
it has a deterrent affect [sic], that it protects society, that it properly disciplines the wrongdoer, that
it is reformational and it is, also, proportional.”
The trial court’s rationale went to defendant’s rehabilitative potential and the seriousness
of these offenses. Defendant was on probation when he committed the charged offenses.
Defendant was also awaiting sentencing for two felony-drug convictions at the time of the
sentencing at issue here. This demonstrates defendant’s lack of respect for the criminal justice
system as well as his poor potential for rehabilitation. The victim in this case was also a vulnerable,
wheelchair-bound individual, and defendant’s actions toward her were completely unprovoked.
The sentencing guidelines did not take into account either the victim’s vulnerability or the
unprovoked nature of the shooting. Overall, the trial court sufficiently explained its justification
for imposing the departure sentence. Therefore, defendant’s sentences were proportionate and
reasonable.
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2. CRUEL OR UNUSUAL PUNISHMENT
Lastly, defendant argues that his sentences were cruel or unusual and that he is entitled to
resentencing. Defendant did not “advance a claim below that his sentences were unconstitutionally
cruel or unusual, so this issue is unpreserved.” People v Bowling, 299 Mich App 552, 557; 830
NW2d 800 (2013). We review unpreserved constitutional issues for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
The Eighth Amendment to the United States Constitution prohibits “cruel and unusual
punishment” and the Michigan Constitution prohibits “cruel or unusual punishment.” “If a
punishment passes muster under the state constitution, then it necessarily passes muster under the
federal constitution.” People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011) (cleaned
up). “[W]hether a penalty may be considered cruel or unusual is to be determined by a three-
pronged test that considers (1) the severity of the sentence imposed and the gravity of the offense,
(2) a comparison of the penalty to penalties for other crimes under Michigan law, and (3) a
comparison between Michigan’s penalty and penalties imposed for the same offense in other
states.” Id.As discussed earlier, defendant’s sentences are proportionate. “[A] sentence that is
proportionate is not cruel or unusual punishment.” People v Powell, 278 Mich App 318, 323; 750
NW2d 607 (2008). Accordingly, defendant’s sentences do not constitute cruel or unusual
punishment. This is true even considering defendant’s age at the time of sentencing because a
defendant’s age alone “is insufficient to overcome the presumptive proportionality of his
sentences.” Bowling, 299 Mich App at 558-559. Furthermore, defendant fails to compare the
sentences imposed to penalties for other crimes under Michigan law, and fails to compare
Michigan’s penalty to penalties imposed for the same offenses in other states. Defendant has failed
to establish that his sentences constitute cruel or unusual punishment.
Affirmed.
/s/ Michael J. Riordan
/s/ Colleen A. O’Brien
/s/ Brock A. Swartzle
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