                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 23, 2016
               Plaintiff-Appellee,

v                                                                    No. 327622
                                                                     Ingham Circuit Court
LAWRENCE SMITH VANBUREN,                                             LC No. 14-000998-FC

               Defendant-Appellant.


Before: OWENS, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of torture, MCL 750.85, and assault with
intent to rob while unarmed, MCL 750.88. Defendant was sentenced as a habitual offender,
fourth offense, MCL 769.12, to concurrent prison terms of 25 to 40 years for the torture
conviction and 20 to 30 years for the assault with intent to rob while unarmed conviction, with
credit on both sentences for 281 days served. Defendant appeals as of right and we affirm.

                             I. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that there was insufficient evidence to support his torture and
assault with intent to rob while unarmed convictions and that he was therefore deprived of due
process of law. Specifically, defendant argues that the prosecution presented insufficient
evidence on the “intent” element for torture and the “intent” element for assault with intent to rob
while unarmed. We disagree.

        “Criminal defendants do not need to take any special steps to preserve a challenge to the
sufficiency of the evidence.” People v Cain, 238 Mich App 95, 116-117; 605 NW2d 28 (1999).1


1
  In any event, we note that defendant did move for a directed verdict at the close of the
prosecutor’s case-in-chief, essentially raising the same “intent” arguments that he has presented
to this Court on appeal. In denying defendant’s motion, the trial court provided the following
explanation for its decision:
       The defendant also says there’s not enough evidence to go to the jury of cruel and
       extreme physical harm. [The victim] testified that while he was being restrained,


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However, when reviewing a sufficiency challenge, “evidence is reviewed de novo, in a light
most favorable to the prosecution, to determine whether the evidence would justify a rational
jury’s finding that the defendant was guilty beyond a reasonable doubt.” People v McGhee, 268
Mich App 600, 622; 709 NW2d 595 (2005). Similarly, “[d]ue process requires that the
prosecutor introduce sufficient evidence which could justify a trier of fact in reasonably
concluding that defendant is guilty beyond a reasonable doubt before a defendant can be
convicted of a criminal offense.” People v Hampton, 407 Mich 354, 368; 285 NW2d 284
(1979). “All conflicts in the evidence must be resolved in favor of the prosecution and [this
Court] will not interfere with the jury’s determinations regarding the weight of the evidence and
the credibility of the witnesses.” People v Unger, 278 Mich App 210, 222; 749 NW2d 272
(2008). “Circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.” People v Allen, 201 Mich App 98, 100;
505 NW2d 869 (1993).




       and even attempting to have his hands tied behind his back, he was assaulted
       multiple times. It began with the first assault at the kitchen table. And in that
       assault he said that he was struck with such force that it knocked him off the
       chair, it fractured his jaw, and it knocked out several teeth. After that first initial
       attack he was continued [sic] to have been beaten multiple times. He said that he
       was in extreme pain. He was bleeding profusely and he, again, indicated that
       after the first attack he had the fractured jaw and the teeth broken out.

              Despite that extreme injury that caused extreme physical harm to him
       from the first attack there was a continued beating where he was on the couch and
       he was being beaten, where he ran up the stairs and was thrown down the stairs,
       where he ran up the stairs again. He was thrown into the bathroom. He was
       beaten in the bathroom. Despite the fact that he had already suffered a significant
       and severe injury he managed to make it—and in the course of being beaten in the
       bathroom and trying to get out of the bathroom he was choked.

               And despite all of that once he was able to get out of the home he was
       beaten again outside the home. So the jury could certainly find from those facts
       that there not only was cruel and extreme physical harm, but there was an intent to
       cause cruel and extreme physical harm, because despite how badly he was injured
       in the first attack there were multiple repeated attacks after that causing him
       extreme pain. With respect to the Assault with Intent to Commit Armed Robbery
       or Unarmed Robbery, there is certainly evidence from which the jury could
       conclude there was an intent to rob that happened in the course of that, either an
       armed robbery or an unarmed robbery in that the victim testified that—that hands
       were going through his pockets as he was being assaulted on the couch. And, in
       fact, his property was stolen, not only his wallet, but the car. And from that the
       jury could find evidence of intent to rob either while armed or unarmed.



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                                          A. TORTURE

       A person commits torture if, “with the intent to cause cruel or extreme physical or mental
pain and suffering, [he] inflicts great bodily injury or severe mental pain or suffering upon
another person within his or her custody or physical control . . . .” MCL 750.85(1) (emphasis
added). Further, MCL 750.85(2)(a) defines “cruel” to mean “brutal, inhuman, sadistic, or that
which torments.” “Because of the difficulty of proving an actor’s state of mind, minimal
circumstantial evidence is sufficient.” People v McRunels, 237 Mich App 168, 181; 603 NW2d
95 (1999).

        Here, there was evidence giving rise to an inference that defendant’s intent was to inflict
cruel or extreme physical or mental pain and suffering on the victim. As the trial court noted in
denying defendant’s motion for a directed verdict, the victim suffered a severe facial injury
during the first attack in the kitchen, but defendant continued the assault at the top of the stairs,
in the basement, in the bathroom, and outside the house. These multiple and repeated assaults
evidence an intent to cause the victim extreme pain. We also note that the victim testified that
defendant attempted to tie his hands behind his back during the assault in the basement, an action
which would likely cause a person to have severe mental pain and suffering, rightfully fearing
for one’s life. Accordingly, we conclude that the evidence was sufficient to establish intent to
cause cruel or extreme physical or mental pain and suffering. Likewise, because the prosecutor
introduced sufficient evidence which could justify a trier of fact in reasonably concluding that
defendant was guilty beyond a reasonable doubt of torture, defendant’s conviction for that
offense did not deny him due process of law.

                  B. ASSAULT WITH INTENT TO ROB WHILE UNARMED

       “[T]he essential elements of assault with intent to rob while unarmed are (1) an assault
with force and violence, (2) an intent to rob and steal, and (3) defendant being unarmed.” People
v Chandler, 201 Mich App 611, 614; 506 NW2d 882 (1993). Again, “[b]ecause of the difficulty
of proving an actor’s state of mind, minimal circumstantial evidence is sufficient.” McRunels,
237 Mich App at 181.

       Here, there was ample evidence giving rise to an inference that defendant’s intent was to
rob and steal. As the trial court noted in denying defendant’s motion for a directed verdict, the
victim testified that hands were going through his pockets as he was being assaulted on the
couch. And, in fact, the victim’s wallet and car keys were stolen from him during the assault on
the couch and the car was driven away shortly thereafter. Additionally, there was evidence that
defendant’s accomplice invited the victim into the house under the guise of receiving money for
gas merely as a ruse for her and defendant to rob him. Accordingly, we conclude that the
evidence was sufficient to establish an intent to rob and steal and accordingly, that there was no
due process violation.

                          II. CRUEL AND UNUSUAL PUNISHMENT

        Defendant next argues that his sentence constitutes cruel and unusual punishment and
that the sentence was not reasonable under the facts and circumstances of this case. We disagree.


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       Defendant failed to preserve this “cruel and unusual punishment” issue by raising it
below. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007)
(“For an issue to be preserved for appellate review, it must be raised, addressed, and decided by
the lower court.”). This Court reviews unpreserved constitutional errors for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

               The United States Constitution prohibits cruel and unusual punishment.
       US Const, Am VIII. The Michigan Constitution prohibits cruel or unusual
       punishment, Const 1963, art 1, § 16, and “[i]f 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),
       quoting People v Nunez, 242 Mich App 610, 618–619 n 2; 619 NW2d 916 (2007).
       [People v Costner, 309 Mich App 220, 232; 870 NW2d 582 (2015) (emphasis in
       original).]

“In deciding if punishment is cruel or unusual, this Court looks to the gravity of the offense and
the harshness of the penalty, comparing the punishment to the penalty imposed for other crimes
in this state, as well as the penalty imposed for the same crime in other states.” People v Brown,
294 Mich App 377, 390; 811 NW2d 531 (2011).

        In People v Steanhouse, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No.
318329), slip op at 24, this Court held “that a sentence that fulfills the principle of
proportionality under [People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990)] and its progeny
constitutes a reasonable sentence under [People v Lockridge, 498 Mich 358; 870 NW2d 502
(2015)].” Under Milbourn and its progeny, a sentence falling within the minimum range
specified by the advisory judicial guidelines was presumptively proportionate. People v
Kennebrew, 220 Mich App 601, 609; 560 NW2d 354 (1996) (“As a general rule, a sentence that
falls within the guidelines’ range is presumed to be neither excessive nor disparate.”); People v
Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991) (“Milbourn left intact the Court’s prior
observation, in People v Broden, 428 Mich 343, 354; 408 NW2d 789 (1987), that sentences
falling within the recommended guidelines range are presumptively not excessively severe or
unfairly disparate.”).

       Further, as noted in People v Williams (After Remand), 198 Mich App 537, 543; 499
NW2d 404 (1993), citing People v Bullock, 440 Mich 15, 40–41; 485 NW2d 866 (1992), where
“sentences are not disproportionate in relation to the crimes, they are therefore not cruel or
unusual.” See People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008) (A sentence
within the guidelines range is presumptively proportionate, and a proportionate sentence is not
cruel or unusual). “In order to overcome the presumption that the sentence is proportionate, a
defendant must present unusual circumstances that would render the presumptively proportionate
sentence disproportionate.” People v Lee, 243 Mich App 163, 187; 622 NW2d 71 (2000).

        Here, defendant acknowledges that his sentence is within the appropriate advisory
sentencing guidelines range and, therefore, presumptively proportionate. Further, defendant has
failed to set forth a meritorious argument that would render his presumptively proportionate
sentence disproportionate. See People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994)
(concluding that the defendant had not cited “unusual circumstances that would overcome” the

                                               -4-
presumption of proportionality). It appears that defendant believes that his sentence is not
reasonable or that it constitutes cruel and unusual punishment in light of his criminal history, his
11th grade education, and his age of 39 years. However, defendant’s criminal record was
extensive. Indeed, he was sentenced as a fourth habitual offender. He had prior felony
convictions for second-degree home invasion, assault with a dangerous weapon, and receiving
and concealing stolen property over $100. The first two offenses occurred in 1996 and the third
occurred in 1995. He also had a misdemeanor domestic violence charge in 2011 and a
misdemeanor resisting and obstructing charge in 2013, and he violated his probation in relation
to the 2011 charge. This criminal record establishes a pattern of violence and disregard for
others and Michigan law. Furthermore, defendant’s age and 11th grade education are
insufficient to overcome the presumptive proportionality of his sentence, especially considering
his lengthy criminal record and the gravity of his offenses. Indeed, his conviction for torture
could have subjected him to a life sentence.2

        Finally, defendant also has failed to provide any argument or evidence demonstrating that
his sentence is constitutionally deficient in comparison to the penalties imposed for other crimes
in this state or for the same crimes in other states. Brown, 294 Mich App at 390. Defendant
offers no argument or evidence that, in relation to other crimes and other states, his sentences
were somehow abnormally harsh. In his brief he does not mention one other state or one other


2
  Regarding the gravity of the offense and the proportionality of defendant’s sentence, we note
that the trial court spoke in detail on this matter at defendant’s sentencing, stating as follows:
               All right. Okay, well I have given some thought along the lines of what
       [defense counsel] was addressing and that is, you know, we have the guidelines
       but we also have, what’s, what’s fair and proportionate to similar type cases,
       similar type offenders. And [defendant] does have, as the Prosecutor has pointed
       out, a history of assaultive offenses and quite dangerous offenses as well.

               And on the other hand, as the defense attorney’s pointed out, we’ve seen
       sentences in the low range of these guidelines for homicide cases. And yet, even
       though the victim did not die, I cannot minimize the seriousness of this offense.
       It’s more than an 8 minute assault. The victim was basically set up. Held captive.
       The event had to have been terrorizing to him, knowing that he could not get out
       of the house, that he was at the mercy of the individual, [defendant], according to
       the jury who was beating him viciously beyond anything, beyond the first blow,
       which was bad enough, and injured him severely. But, continued to beat him in,
       in a way that the victim must have thought that he was going to die and this would
       be the end, stuck in this house and being beaten to death.

               That is a very terrorizing situation and the fact that it’s not a homicide
       really doesn’t bring it downward in the severity to me because of the fact that, that
       the victim was so terrorized and so severely beaten and, and held under such
       circumstances that would be terrifying.



                                                -5-
crime in this state. “An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment
with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641;
588 NW2d 480 (1998). Accordingly, we conclude that defendant has failed to overcome the
presumption of proportionality, and therefore also conclude that his proportionate sentence is not
unreasonable and does not constitute cruel and unusual punishment.

       Affirmed.



                                                            /s/ Donald S. Owens
                                                            /s/ David H. Sawyer
                                                            /s/ Douglas B. Shapiro




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