Defendant appeals as of right his jury trial conviction of unarmed robbery, MCL 750.530. For this conviction, defendant was sentenced to 3 to 15 years’ imprisonment. We affirm.
I. BACKGROUND
The events in this case were set in motion on March 14, 2008, when Kenneth Conliffe accepted a United Parcel Service (UPS) shipment of a cell phone for Kiara Anderson, his sister’s roommate and defendant’s girlfriend, at the women’s apartment. Under the impression that Anderson was involved in stealing the phone of his sister’s boyfriend, Conliffe explained that after accepting the phone, he threw it in a stream as a means of retaliation. Shortly thereafter, Conliffe received a ride home from his mother and stepfather.
Upon Conliffe’s arrival home, he was accosted in his driveway by defendant, Anderson, and Jovanta Jackson. According to Conliffe’s mothеr and stepfather, defendant accused Conliffe of stealing a cell phone and then removed Conliffe’s sunglasses at gunpoint before fleeing the scene with his compatriots. Both Conliffe and his mother added that before the assailants left, Jackson told Conliffe to “run his pockets.”
Offering a variation on this version of events, Anderson claimed that after learning from UPS that Conliffe had accepted the cell-phone shipment, she, defendant, and Jackson went to Conliffe’s house to scare Conliffe into returning her cell phone. Anderson elaborated that although
Following their altercation with Conliffe, the assailants drove off, but were pulled over and arrested when police identified their car and license plate number from a dispatch call regarding an armed robbery. During the course of the arrest, police found Conliffe’s glasses and ammunition inside the car. The gun was found the next day in the neighborhood whеre the assailants were pulled over. Defendant was subsequently tried on a charge of armed robbery, but convicted of the lesser offense previously stated. This appeal ensued.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
1. STANDARD OF REVIEW
Defendant first’s assignment of error is that the evidence was insufficient to support his unarmed robbery conviction. Due process requires that, to sustain a conviction, the evidence must show guilt beyond a reasonable doubt. People v Johnson,
The prosecution does not challenge the foregoing, but nonetheless points out that this Court has сited our Supreme Court for the proposition that sufficiency of the evidence issues are subject to de novo review despite the fact that no Michigan Supreme Court case expressly cites that standard. See People v Hawkins, 245 Mich App 439, 457;
When our Court reviews an issue “de novo,” it means that we are addressing a legаl issue anew, without any deference to the trial court’s conclusion. See, e.g., Mich Ed Ass’n v Secretary of State,
We have concluded that we do not defer to the district court, because we must make our own independent judgment regarding the sufficiency of evidence. In so doing, of course, we may consider and be influenced by the opinion of the expert trial judge who has lived with the case — just as we give weight to one another’s views. This will be particularly so where the trial judge has set forth his reasons with specificity. Moreover, it is the burden of the Government, as it is always the appellant’s burden, to show that thе judgment appealed from was wrong. But ultimately, the decision whether or not the evidence was sufficient is a question of law and therefore entirely our own. [United States v Singleton, 226 US App DC 445, 446; 702 F2d 1182 (1983) (en banc).]
See, also, United State v Kelley,
In light of this explanation, it is easy to see that in articulating the de novo standard of review our prior cases cited Supreme Court decisions that were reviewing the evidence in a de novo fashion, even though not specifically saying so. See, e.g., Tombs,
2. UNARMED ROBBERY
To be guilty of unarmed robbery, a defendant must (1) feloniously take the property of another, (2) by force or violence or assault or putting in fear, and (3) be unarmed. People v Johnson,
It is clear from defendant’s own rеndition of events that he possessed the requisite intent. On this score, defendant explained that he accompanied Anderson and Jackson for the express purpose of retrieving Anderson’s cell phone. When Conliffe subsequently denied having knowledge of Anderson’s phone, defendant “snatched” Conliffe’s glasses and told him, “you get these back when we get the phone back.” In other words, defendant intended to retain Conliffe’s glasses and only return them on the condition that Conliffe pay compensation in the form of returning Anderson’s phone. Suсh testimony easily satisfies the intent element of unarmed robbery.
Defendant argues that the testimony of Anderson and Conliffe’s mother contained inconsistencies. However, it is for the jury to determine witness credibility and resolve inconsistencies of testimony. People v Fletcher,
Before moving on, we note that although not directly challenged by defendant, sufficient evidence existed to satisfy the other elements of the offense. Indeed, Conliffe’s mother and stepfather positively identified defendant as the perpetrator who pointed the gun at Conliffe before taking the glasses. An inference of the use of fear or violence (and even that defendant was armed) is easily deducible from such testimony. Thus, the рrosecution met its burden of proving the elements of unarmed robbery beyond a reasonable doubt.
B. SCORING OF OFFENSE VARIABLES
Next, defendant challenges the scoring of Offense Variables (OV) 13, 9, 1, and 2. This Court reviews de novo the application of the sentencing guidelines but reviews a trial court’s scоring of a sentencing variable for an abuse of discretion. People v Cannon,
1. OV 13
Defendant first claims the court erroneously scored 10 points for OV 13 by including his juvenile adjudications.
2. ov 9
Next, defendant asserts that because Conliffe was the only victim, his score for this OV should be zero points instead of 10 points. MCL 777.39 governs the scoring of OV 9 and provides in part that the trial court assess 10 points if “2 to 9 victims . . . were placed in danger of physical injury or death. . . .” MCL 777.39(1)(c). For purposеs of scoring this variable, a court is to count each person who was placed in danger of physical injury or loss of life or property during the transaction giving rise to the particular offense as a victim. MCL 777.39(2)(a); People v McGraw,
The presentence investigation report reveals
3. OV 1 AND OV 2
Defendant chаllenges the scoring of OVs 1 and 2 on the grounds that he was not convicted of possessing or pointing a firearm toward the victim and because there was no evidence that any other offender was assigned points for the use of
C. BLAKELY CHALLENGE
Before concluding, we note that defendant also raises a Blakely challenge,
Affirmed.
Notes
Importantly, whether in federal or state court, it is a defendant’s constitutional right to due process that is at stake in sufficiency cases. Johnson,
Although King refers to armed robbery, the intent element of that offense is identical to that required for unarmed robbery. King,
Ironically, despite challenging the intent element of unarmed robbery on thеse grounds, defendant concedes that he is guilty of larceny from a person, MCL 750.357 — an offense requiring the intent to permanently deprive. People v Perkins,
According to the presentence investigation report, defendant’s juvenile adjudications included: receiving and concealing a stolen vehicle, unlawfully driving away an automobile, breaking and entering, fourth-degree criminal sexual conduct, and failure to register as a sex offender.
“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....” People v Ratkov (After Remand),
Blakely v Washington,