                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 26, 2016
               Plaintiff-Appellee,

v                                                                    No. 325567
                                                                     Wayne Circuit Court
GLEN LAMARE RANKINS,                                                 LC No. 14-005194-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and SERVITTO and M. J. KELLY, JJ.

PER CURIAM.

        Defendant, Glen Lamare Rankins, appeals by right his jury convictions of unarmed
robbery, MCL 750.530, and larceny in a building, MCL 750.360. The trial court sentenced
Rankins as a fourth habitual offender, MCL 769.12, to serve concurrent terms of 7 years and 5
months to 20 years in prison for the unarmed robbery conviction and to 46 months to 15 years in
prison for the larceny in a building conviction. Although we conclude that there were no errors
warranting a new trial, for the reasons explained below, we vacate Rankins’ larceny in a building
conviction and remand this case to the trial court for the ministerial task of amending Rankins’
judgment of sentence and presentence investigation report.

                                 I. LARCENY IN A BUILDING

        Rankins argues that the trial court erred when it added an uncharged count of larceny in a
building after the close of proofs, but before instructing the jury. Rankins contends that the
addition of this count violated his rights. At the close of proofs, Rankins’ trial lawyer
participated in a discussion with the prosecutor and the trial court concerning instructions on
lesser included offenses and the possible addition of larceny in a building as a separate count.
The prosecutor had charged Rankins with armed robbery and Rankins’ lawyer expressed his
belief that it would be in Rankins’ interest to add the new count to give the jury an opportunity to
reject the more serious charge: “Well, obviously, Judge, the defense would be looking for
charges which would give the jury options, other than the most serious one here, a capital
offense, and -- any charges that would carry the potential of a long period of -- incarceration. Or
even a mandatory incarceration.” After further discussions, the trial court elected to instruct the
jury on unarmed robbery as a lesser included offense of armed robbery and on the additional
charge of larceny in a building.



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        On this record, it is apparent that Rankins’ trial lawyer participated in the decision to add
the charge of larceny in a building and approved this course of action. Accordingly, there is no
error to review. See People v Carter, 462 Mich 206, 216; 612 NW2d 144 (2000). Moreover,
even reviewing this claim for plain error, it would not warrant relief. See People v Reid (On
Remand), 292 Mich App 508, 514; 810 NW2d 391 (2011). The trial court had the authority to
add the new charge after the close of proofs. MCR 6.112(H). And there is no indication that the
addition of this charge unfairly surprised or prejudiced Rankins. See People v McGee, 258 Mich
App 683, 700; 672 NW2d 191 (2003) (noting that a defendant must show prejudice to establish a
due process violation warranting relief). The record shows that, far from trying to surprise
Rankins or unfairly prejudice his ability to present a defense, the prosecutor and trial court
worked with Rankins’ lawyer to try and give the jury an alternative option for conviction should
the jury reject Rankins’ defense that his actions had a completely innocent explanation. Given
the overwhelming evidence that Rankins robbed the drycleaner, brandished a screwdriver when
he did so, and was found with items stolen from the drycleaner, the addition of the new charge
did not prejudice Rankins. Id. Similarly, it is plain that the prosecutor could have established
probable cause for this charge at a preliminary examination. Id. at 693-699.

                            II. SUFFICIENCY OF THE EVIDENCE

                                  A. STANDARD OF REVIEW

        Rankins next argues that there was insufficient evidence to support his conviction of
unarmed robbery. In reviewing a claim of insufficient evidence, this Court reviews the record
evidence de novo in the light most favorable to the prosecution to determine whether the
prosecutor presented sufficient evidence to permit a rational trier of fact to find that the essential
elements of the crime were proved beyond a reasonable doubt. People v Roper, 286 Mich App
77, 83; 777 NW2d 483 (2009).

                                          B. ANALYSIS

        A person commits unarmed robbery if, “in the course of committing a larceny of any
money or other property that may be the subject of larceny, uses force or violence against any
person who is present, or who assaults or puts the person in fear . . . .” MCL 750.530(1). The
phrase “ ‘in the course of committing a larceny’ includes acts that occur in an attempt to commit
the larceny or during commission of the larceny, or in flight or attempted flight after the
commission of the larceny, or in an attempt to retain possession of the property.” MCL
750.530(2). Here, there was testimony and evidence that Rankins ordered an employee of the
drycleaner to open the register and that he used force or put her in fear when he did so. There
was also evidence that he took items from the business and fled with the items. The evidence
that he attempted to commit a larceny from the register after placing the employee in fear was
sufficient to support his conviction of unarmed robbery. See People v Williams, 288 Mich App
67, 72-74; 792 NW2d 384 (2010) (recognizing that robbery and unarmed robbery no longer
require a completed larceny).

        Nevertheless, Rankins maintains that his conviction cannot stand because the prosecutor
failed to rebut his evidence that he acted under a reasonable belief that the business owed him the
money. A claim of right defense is viable when the record evidence establishes a dispute over

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whether the defendant had a felonious intent at the time of the taking or attempted taking. See
People v Cain, 238 Mich App 95, 118-119; 605 NW2d 28 (1999).

        At trial, Rankins asserted that the cleaner’s employee agreed to have him wash the
windows in exchange for cash. The prosecutor, however, presented evidence that Rankins was
not hired to wash the windows. The owner and employee both testified that they had not ever
seen Rankins before the day at issue and that he was not given permission to wash the windows.
The employee also testified that Rankins came into the business evasively and then repeatedly
badgered her to open the cash register while wielding a screwdriver. Thus, whether Rankins
acted with the requisite intent was a question for the jury. Roper, 286 Mich App at 88-89.

                               III. PRO SE CLAIMS OF ERROR

       In a brief submitted on his own behalf, Rankins also argues that his convictions of
unarmed robbery and larceny in a building arising from the same events violate the prohibition
against multiple punishments for the same offense. He also claims that there was insufficient
evidence to support his conviction of unarmed robbery. Because Rankins did not raise his
double jeopardy claim before the trial court, we review it for plain error. People v Ackah-Essien,
311 Mich App 13, 30-31; 874 NW2d 172 (2015).

       Both the federal and Michigan constitutions protect a defendant against “multiple
punishments for the same offense.” People v Gibbs, 299 Mich App 473, 488-489; 830 NW2d
821 (2013). Because the Legislature did not specifically provide for multiple punishments for
unarmed robbery and larceny in a building, this Court uses the “same elements” test of
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), to determine
whether multiple punishments are permitted. People v Smith, 478 Mich 292, 315-316; 733
NW2d 351 (2007). “The Blockburger test looks at the statutory elements of the offenses and
asks whether each offense requires proof of a fact that the other does not.” People v Duenaz, 306
Mich App 85, 106; 854 NW2d 531 (2014), citing People v Nutt, 469 Mich 565, 576; 677 NW2d
1 (2004).

        The elements of unarmed robbery, as set forth in MCL 750.530, are that a person, in the
course of committing a larceny, uses force or violence against a person, or assaults or puts a
person in fear. In contrast, larceny in a building involves “1) an actual or constructive taking, 2)
an asportation, 3) with a felonious intent, 4) of someone else’s property, 5) without that person’s
consent, 6) in a building.” People v Cavanaugh, 127 Mich App 632, 636; 339 NW2d 509
(1983). Unarmed robbery requires a showing of force, violence, assault or putting the victim in
fear, and larceny in a building does not. Additionally, larceny in a building must occur in a
building, while unarmed robbery may occur anywhere. Because each offense requires proof of
facts that the other does not, the double jeopardy prohibition against multiple punishments is not
implicated. Smith, 478 Mich at 302-303, 315-316.

        Finally, to the extent that Rankins also argues that the record evidence was insufficient to
support a conviction of unarmed robbery, we have reviewed the record evidence in the light most
favorable to the prosecution, and conclude that the prosecutor presented sufficient evidence to
support that conviction. It was up to the jury as the trier of fact to weigh and determine issues of
credibility that arose from the record evidence. Roper, 286 Mich App at 88-89.

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        Rankins also contends in his own brief that his trial lawyer did not provide effective
assistance. Because the trial court did not hold a hearing on this claim of error, our review is
limited to mistakes that appear on the record alone. People v Gioglio (On Remand), 296 Mich
App 12, 20; 815 NW2d 589 (2012), remanded for resentencing 493 Mich 864. To establish a
claim of ineffective assistance, Rankins must demonstrate that his lawyer’s representation fell
below an objective standard of reasonableness under prevailing professional norms and that there
is a reasonable probability that, but for the error, the result of the proceedings would have been
different. Id. at 22.

        To the extent that he challenges his lawyer’s decision to agree to the additional charge of
larceny from a building, or at least not oppose the additional charge, Rankins has not overcome
the presumption that the decision was sound trial strategy. This Court must affirmatively
entertain the range of possible reasons that his lawyer had for agreeing to the additional charge
and, if there might have been a legitimate strategic reason for the decision, we must conclude
that the decision fell within the range of reasonable professional conduct. Id. at 22-23. There
was strong evidence that Rankins robbed the cleaners and he faced a mandatory minimum
sentence of 25 years in prison if convicted of armed robbery. Under these circumstances, a
reasonable trial lawyer might agree to add a charge of larceny in a building in order to provide
the jury with an opportunity for leniency. Id. To the extent that Rankins would like this Court to
order a remand to investigate his lawyer’s reasons for agreeing to the additional charge, we are
not persuaded that a remand is necessary to develop the record. MCR 7.211(C)(1)(a); People v
Chapo, 283 Mich App 360, 369; 770 NW2d 68 (2009). It appears from the record that Rankins’
lawyer agreed to the additional charge and that he did so for the reasons already discussed.

                               IV. CONCLUSION AND RELIEF

        Rankins has not established any errors that warrant a new trial. Nevertheless, on appeal,
the prosecutor has stated that it would be just to vacate Rankins’ conviction and sentence for
larceny in a building if this Court were to affirm his conviction of unarmed robbery. Because it
would normally be error to instruct a jury on a cognate lesser offense, see People v Jones, 497
Mich 155, 164; 860 NW2d 112 (2014), we elect to adopt the prosecutor’s suggestion for the
grant of alternate relief. See MCR 7.216(A)(7) (stating that this Court has the authority to order
or grant further or different relief as the case may require). Accordingly, we vacate Rankins’
conviction and sentence of larceny in a building and remand this case for the ministerial task of
amending the judgment of sentence and presentence investigation report accordingly. In all
other respects, we affirm.

        Affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.

                                                            /s/ Kathleen Jansen
                                                            /s/ Deborah A. Servitto
                                                            /s/ Michael J. Kelly




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