                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 10, 2018
               Plaintiff-Appellee,

v                                                                  No. 338046
                                                                   Oakland Circuit Court
JAMES SCOTT,                                                       LC No. 2016-260187-FH

               Defendant-Appellant.


Before: CAVANAGH, P.J., and STEPHENS and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals as of right his bench-trial conviction1 of unarmed robbery, MCL
750.530. Defendant was sentenced, as a second habitual offender, MCL 769.10, to 2½ to 22½
years of imprisonment for his unarmed robbery conviction. We affirm.

                            I. SUFFICIENCY OF THE EVIDENCE

         Defendant argues that the evidence presented at trial was insufficient to prove the
elements of unarmed robbery. Challenges to the sufficiency of the evidence are reviewed de
novo. People v Solloway, 316 Mich App 174, 180; 891 NW2d 255 (2016). The reviewing Court
must determine if, viewing the evidence in the light most favorable to the prosecution, a rational
trier of fact could find that the prosecution proved each essential element of the crime beyond a
reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). A trier of fact
may consider circumstantial evidence and all reasonable inferences that evidence creates.
Solloway, 316 Mich App at 180-181. “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 Flick, 487 Mich 1, 24-25; 790 NW2d 295 (2010)
(internal quotation marks and citation omitted).

       “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


1
  Though the judgment of sentence states that there was a jury trial, there was, in fact, a bench
trial.


                                               -1-
Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). Unarmed robbery is a specific
intent crime. Id. The prosecution must prove that the defendant intended to deprive the owner
of property. Id. “Because intent may be difficult to prove, only minimal circumstantial evidence
is necessary to show a defendant entertained the requisite intent.” Id. at 178.

        Defendant claims that he did not use force or violence, or assault, or put the victim in fear
with the specific intent of depriving her of her phone. The evidence showed that defendant
shook the victim’s arm, causing her phone to fall to the ground. He then took the phone and
began walking away with it. This series of events—causing the phone to fall and then promptly
taking it—is sufficient to show that defendant shook Carroll’s arm with the intent of causing her
to lose her grip on her phone so that he could deprive her of it.

        Additionally, there is sufficient evidence to show that defendant assaulted or put the
victim in fear with the requisite intent. When the victim told defendant to give the phone back to
her, defendant responded, “I’m about to be arrested for beating the shit out of a female,” and
began walking toward her. This qualifies as an assault, which is defined as “an unlawful act
which places another in reasonable apprehension of receiving an immediate battery.” People v
Nickens, 470 Mich 622, 628; 685 NW2d 657, 661 (2004) (internal quotation marks and citation
omitted). Because defendant’s threat acted as a refusal of the victim’s request to get her phone
back, defendant assaulted her “in an attempt to retain possession of the property.” MCL
750.530(2). By telling her that he was going to be arrested for beating a female and then walking
toward her, defendant threatened to harm her. Viewing the evidence in the light most favorable
to the prosecution, there is sufficient evidence to establish that defendant assaulted or put the
victim in fear while taking her phone. MCL 750.530(2). The series of events—shaking the
victim’s arm, picking up the phone that she dropped, threatening her when she asked for her
phone, and then walking toward her—is sufficient to qualify as the “minimal circumstantial
evidence . . . necessary to show a defendant entertained the requisite intent.” Harverson, 291
Mich App at 178.

        Defendant argues that he was acting irrationally when he shook Carroll’s arm, blocked
her from picking up her phone, and threatened her. Defendant further posits that his irrational
behavior shows that he did not have the requisite intent when he acted. By claiming that he
acted irrationally and therefore could not form the requisite intent, defendant seeks to put forth a
diminished-capacity defense. There is, however, no diminished-capacity defense in Michigan.
People v Carpenter, 464 Mich 223, 241; 627 NW2d 276 (2001).

                                  II. OFFENSE VARIABLE 19

       Defendant also argues that he is entitled to resentencing because the trial court’s
purported improper assessment of offense variable (OV) 19 altered the advisory sentencing-
guidelines range. Defendant contends that he did not interfere with the administration of justice
during his arrest. Specifically, he was cooperative during his arrest, and only when placed in the
squad car did he become disruptive (e.g., kicked the inside, banged his head, yelled). In his
view, his disruptive actions did not interfere with the administration of justice and should be
excused because he suffered from a mental disorder.



                                                 -2-
        We need not determine whether the trial court properly scored OV 19 here. Even
assuming for the sake of argument that OV 19 should have been scored zero, a sentence should
be affirmed when the trial court “has clearly indicated that it would have imposed the same
sentence regardless of the scoring error and the sentence falls within the appropriate guidelines
range.” People v Woolsey, 480 Mich 909, 909 (2007) (internal quotation marks omitted). The
trial court explicitly stated that it departed downward from the sentencing guidelines, imposing a
lesser sentence because it wanted to “deflate the damage that would be done by the OV-19.”
Thus, the trial court clearly indicated that, even if OV 19 were assessed at zero points, the trial
court would impose the same sentence. The sentence imposed falls within the appropriate
sentencing-guidelines range if OV 19 is zero. The trial court sentenced defendant to a minimum
term of 30 months, and, had OV 19 been assessed at zero points, the guidelines range would
have been 29 to 71 months. As such, defendant is not entitled to resentencing. See People v
Mutchie, 468 Mich 50, 52; 658 NW2d 154 (2003) (affirming the defendant’s sentence despite the
trial court’s incorrect assessment of OV 11 because the trial court “clearly expressed its view that
the sentences imposed in this case were the proper sentences without regard to how OV 11 might
be scored.”).

       Affirmed.

                                                             /s/ Mark J. Cavanagh
                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Brock A. Swartzle




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