                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 25, 2018
               Plaintiff-Appellee,

v                                                                  No. 337787
                                                                   Macomb Circuit Court
CARLTON DOUGLAS YEAGER,                                            LC No. 2016-002243-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

       Defendant appeals by right his jury trial convictions of armed robbery, MCL 750.529,
and two counts of resisting or obstructing a police officer, MCL 750.81d(1). The trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent terms of
300 to 400 months’ imprisonment for the armed robbery conviction and 12 to 24 months’
imprisonment for each count of resisting or obstructing a police officer. We affirm.

        This case arises from an incident that occurred at FA Beauty Supply and Hair Braiding in
Mount Clemens on May 29, 2016. The prosecution presented evidence that while Shalanda
Lucas was having her hair braided by Fatoumata Kone, defendant entered the store armed with a
BB gun and demanded that Lucas give him her belongings. The store’s surveillance video
showed a masked individual enter and leave the store. Lucas testified that the person, whom she
identified as defendant, threatened her with a gun and demanded her property. Defendant’s GPS
tracking device placed him near the store at the time of the robbery. Police testimony established
that defendant was arrested shortly after the incident based on a description provided by Lucas.
Defendant was carrying a backpack containing clothing items similar to those worn by the
robber. A BB gun was found under bushes at a nearby business and forensic testing revealed
“very strong support” that defendant was a contributor to DNA found on the gun. After being
arrested and placed in a police vehicle, defendant attempted to flee and assaulted two officers.
Defendant did not present any evidence at trial. A jury convicted defendant of armed robbery
and two counts of resisting or obstructing a police officer.

                             I. HABITUAL OFFENDER NOTICE

        Defendant first contends that he was denied due process because he was not adequately
notified of the prosecution’s intent to have him sentenced pursuant to MCL 769.12(1)(a), which
prescribes a mandatory 25-year minimum sentence for a fourth-offense habitual offender who is
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convicted of a serious crime and one or more of the offender’s prior convictions is for a listed
felony offense. We disagree.

        Defendant did not argue below that the prosecution failed to provide adequate notice of
its intent to have him sentenced pursuant to MCL 769.12(1)(a). Therefore, this issue is
unpreserved. People v Solloway, 316 Mich App 174, 197; 891 NW2d 255 (2016). Generally,
whether notice was properly provided under MCL 769.13 is reviewed de novo. People v
Hornsby, 251 Mich App 462, 469; 650 NW2d 700 (2002). But because this issue is unpreserved,
our review is limited to whether plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

        On November 10, 2016, the prosecution filed a notice that was titled: “Habitual Offender
– Fourth Notice – Mandatory 25 Year Sentence.” The notice indicated that defendant was
previously convicted of three or more felonies or attempted felonies, at least one was a prior
listed felony as defined in MCL 769.12(6)(a), and, therefore, defendant was subject to the
penalties provided by MCL 769.12(1)(a), i.e., “to imprisonment for not less than 25 years.” At
the November 14, 2016 arraignment on the amended felony information, defendant’s trial
counsel acknowledged receipt of the notice, and the prosecutor informed the trial court that
defendant was subject to a mandatory 25-year sentence.

        Defendant argues that adequate notice was not provided and that the 25-year minimum
sentence was not mentioned until sentencing; defendant refers to statements made at earlier
arraignments held on June 27, 2016, and July 18, 2018. He also attaches to his brief on appeal
an habitual offender notice dated June 16, 2016, which only referred to MCL 769.12 generally.
The prosecution, however, filed a new notice on November 10, 2016, the same day that it filed
the amended felony information with the trial court. As discussed, the November 10, 2016
notice clearly provided that defendant was subject to the penalties under MCL 769.12(1)(a),
expressly referred to the mandatory 25-year sentence, and was received by trial counsel on
November 14, 2016. Accordingly, defendant received adequate notice that he was subject to
sentencing under MCL 769.12(1)(a), including a 25-year minimum sentence, the trial court did
not err by sentencing him under that provision, and defendant’s due-process argument fails.

                           II. SUFFICIENCY OF THE EVIDENCE

       Next, defendant contends that there was insufficient evidence to support his conviction of
armed robbery. We disagree.

         This Court reviews de novo a challenge to the sufficiency of the evidence. People v
Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). This Court must view the trial
evidence in a light most favorable to the prosecution and determine whether a rational trier of
fact could have found all of the elements of the offense were proved beyond a reasonable doubt.
People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), mod 441 Mich 1201 (1992).
Circumstantial evidence and reasonable inferences therefrom may be sufficient for rational trier
of fact to find all of the elements of an offense beyond a reasonable doubt. Carines, 460 Mich at
757. Under this deferential standard, the prosecutor need not negate every theory consistent with
innocence; the prosecutor is only obligated to prove the elements of the crime beyond a


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reasonable doubt in the face of any contradictory evidence the defendant may present. People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

       Defendant was convicted of armed robbery, the elements of which are:

       (1) the defendant, in the course of committing a larceny of any money or other
       property that may be the subject of a larceny, used force or violence against any
       person who was present or assaulted or put the person in fear, and (2) the
       defendant, in the course of committing the larceny, either possessed a dangerous
       weapon, possessed an article used or fashioned in a manner to lead any person
       present to reasonably believe that the article was a dangerous weapon, or
       represented orally or otherwise that he or she was in possession of a dangerous
       weapon. [People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007).]

MCL 750.530(2) defines “in the course of committing a larceny” as including “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.”
This definition was added by the Legislature in 2004. It “considerably broadened the scope of
the robbery statute, MCL 750.530, to encompass a ‘course of conduct’ theory of robbery, which
specifically includes ‘an attempt to commit the larceny[,]’ ” so that “a completed larceny is no
longer necessary to sustain a conviction for the crime of robbery or armed robbery.” People v
Williams, 491 Mich 164, 184; 814 NW2d 270 (2012). “[T]he specific intent necessary to
commit larceny is the intent to steal another person’s property.” People v Cain, 238 Mich App
95, 120; 605 NW2d 28 (1999). “Because intent may be difficult to prove, only minimal
circumstantial evidence is necessary to show a defendant entertained the requisite intent.”
Harverson, 291 Mich App at 178.

        Defendant only challenges that there was no evidence that he intended to steal anything.
But Lucas testified that while defendant put a gun to her face, he told her to “get the f--k off your
phone and give me your s--t.” Defendant’s demand of Lucas’s property was sufficient to
demonstrate his intent to steal her property. That defendant intended to commit a larceny is
further supported by the evidence that he entered the store with his face covered; he had a BB
gun that looked like a real weapon; he pointed the gun at Lucas; he fled after the incident, and he
attempted to flee from the police after he was arrested. See People v Hawkins, 245 Mich App
439, 458; 628 NW2d 105 (2001) (“A factfinder can infer a defendant’s intent from his words or
from the act, means, or the manner employed to commit the offense.”).

         Contrary to defendant’s assertion, Lucas’s testimony regarding defendant’s statement was
not impeached by the surveillance video or the GPS tracking information. Lucas admitted that
the surveillance video did not show defendant pointing the gun at her face. Our review of the
surveillance video confirms that it does not show defendant pausing and pointing a gun at
Lucas’s face. Lucas, however, testified that the video did not show the area where defendant
paused. The video shows a large empty area in front of Lucas. If defendant paused and pointed
the gun at Lucas outside the view of the camera, it would appear that he was more than several
feet away from her when he did so. Lucas testified that defendant was not inches from her face,
but it felt like it was in her face. Although defendant may not have paused within inches, or even
feet, of Lucas’s face, the video does not refute that he pointed a gun at her and told her to give

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him her belongings. Moreover, although the GPS tracking information established that
defendant was only in the store for less than a minute, this does not refute that he attempted to
commit a larceny of Lucas’s property during that period of time.

        Defendant points to several other pieces of evidence that he claims demonstrate that he
was merely cutting through the store, including (1) he was aware that he was wearing a GPS
tracking device; (2) he was due to be released from parole and the tether in 35 days; (3) he went
past the cash register; (4) he did not pick up Lucas’s phone or purse; (5) Lucas’s written
statement did not include that defendant said anything to her, and (6) Kone did not hear
defendant say anything. These matters, however, affect only the weight of the evidence and the
credibility of the witnesses. “All conflicts in the evidence must be resolved in favor of the
prosecution and we 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). Viewed in a light most favorable to the prosecution, the evidence was
sufficient to support defendant’s conviction of armed robbery and, in particular, to show that he
intended to steal Lucas’s property. Wolfe, 440 Mich at 515.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant next contends that he was denied the effective assistance of counsel by trial
counsel’s failure to request a jury instruction defining “attempt.” We disagree.

        Defendant failed to preserve his claim of ineffective assistance of counsel by moving for
a new trial or an evidentiary hearing in the trial court. People v Heft, 299 Mich App 69, 80; 829
NW2d 266 (2012). Therefore, our review is limited to mistakes apparent from the record. Id.
Generally, to establish ineffective assistance of counsel, a defendant must show: (1) that
counsel’s performance was below an objective standard of reasonableness under prevailing
professional norms; and (2) that there is a reasonable probability that but for counsel’s error the
result of the proceedings would have been different. People v Trakhtenberg, 493 Mich 38, 51;
826 NW2d 136 (2012); Unger, 278 Mich App at 242.

        During deliberations, the jury asked for clarification regarding the meaning of attempted
larceny, stating: “Does the defendant failing to leave with nothing from anyone constitute an
attempt at larceny? Is intent to commit larceny the same as attempt to commit a larceny?”
Defense counsel suggested that the trial court reread the instruction as a whole but did not
provide a specific answer to the question. The trial court reread the entire armed robbery
instruction and also instructed the jury that “[t]he actual taking of something is not necessarily an
element of the offense.” Defense counsel stated his belief that the trial court’s statements were
“correct.” Defendant now argues that his attorney should have requested M Crim JI 18.7,
concerning the elements of an attempt to commit a crime.

       Defense counsel’s decision to merely request that the armed robbery instruction be read
again is presumed to be reasonable trial strategy. See Heft, 299 Mich App at 83. Even if
counsel’s failure to request M Crim JI 18.7 were objectively unreasonable, it did not prejudice
defendant. Defendant argues that M Crim JI 18.7 would have allowed the jury to focus on
whether defendant intended to commit a larceny in this instance “because it made no sense.”
The instructions provided to the jury, however, stated that the prosecution was required to prove

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that defendant “was in the course of committing a larceny,” and that “[a] larceny is the taking
and movement of someone else’s property or money with intent to take it away from that person
permanently.” The instruction further explained that “in the course of committing a larceny
included acts that occur in an attempt to commit the larceny.” Although M Crim JI 18.7 would
have made clear to the jury that an attempted larceny required the intent to commit a larceny, the
instructions as a whole adequately informed the jury that intent was an element of the offense.
Moreover, for the reasons discussed above, there was sufficient evidence for a rational factfinder
to conclude that defendant intended to commit a larceny. Accordingly, there is no reasonable
probability that the failure to provide M Crim JI 18.7 affected the outcome of the trial.

                         IV. CONSTITUTIONALITY OF MCL 769.12

       Finally, defendant contends that MCL 769.12(1)(a) violates the Eighth Amendment’s
prohibition against cruel and unusual punishment and the doctrine of separation of powers. We
disagree.

        Defendant did not present these arguments in the trial court. Therefore, this issue is
unpreserved. See Solloway, 316 Mich App at 197. This Court reviews unpreserved issues for
plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.

       With regard to whether MCL 769.12(1)(a) violates the separation of powers doctrine, we
note that statutes are presumed to be constitutional, and we must so construe them unless their
unconstitutionality is readily apparent. People v Russell, 266 Mich App 307, 310; 703 NW2d
107 (2005). Const 1963, art 3, § 2 provides:

               The powers of government are divided into three branches: legislative,
       executive and judicial. No person exercising powers of one branch shall exercise
       powers properly belonging to another branch except as expressly provided in this
       constitution.

The separation of powers doctrine does not require that the three branches of government be kept
totally apart without any overlap of functions or powers. “Rather, the evil to be avoided is the
accumulation in one branch of the powers belonging to another.” People v Conat, 238 Mich App
134, 146; 605 NW2d 49 (1999). The Michigan Constitution further provides: “The legislature
may provide for indeterminate sentences as punishment for crime and for the detention and
release of persons imprisoned or detained under such sentences.” Const 1963, art 4, § 45. Thus,
“the ultimate authority to provide for penalties for criminal offenses is constitutionally vested in
the Legislature.” People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001). Although the
judiciary has the power to exercise discretion in imposing sentences, the Legislature may limit
this judicial discretion. Id. at 440; Conat, 238 Mich App at 147. Indeed, the Legislature may
establish offenses that leave the judiciary no sentencing discretion, or that sharply limit judicial
sentencing discretion. People v Garza, 469 Mich 431, 434; 670 NW2d 662 (2003).

       The mandatory minimum penalty of MCL 769.12(1)(a) does not violate the separation of
powers doctrine by invading the discretion of trial courts in sentencing. Through the enactment
of MCL 769.12(1)(a), the Legislature decided to limit the discretion available to sentencing
courts. See Garza, 469 Mich at 434. The mandatory minimum penalty prescribed in MCL

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769.12(1)(a) does not violate the separation of powers doctrine because the Legislature clearly
has authority to limit a trial court’s sentencing discretion with regard to habitual offenders.

       With regard to defendant’s claim that the mandatory 25-year minimum sentence under
MCL 769.12(1)(a) constitutes cruel and unusual punishment, this Court explained in People v
Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011):

               The Michigan Constitution prohibits cruel or unusual punishment, Const
       1963, art 1, § 16, whereas the United States Constitution prohibits cruel and
       unusual punishment, US Const Am VIII. If a punishment “passes muster under
       the state constitution, then it necessarily passes muster under the federal
       constitution.” [Citation omitted.]

Whether a punishment is cruel or unusual depends on “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 Bowling,
299 Mich App 552, 557-558; 830 N2d 800 (2013) (citation and quotation marks omitted).

        Defendant’s 25-year minimum sentence was within his minimum sentence guidelines
range of 171 to 570 months. Thus, his sentence is presumed to be proportionate. “A sentence
within the guidelines range is presumptively proportionate, and a proportionate sentence is not
cruel or unusual.” Id. at 558. Defendant merely points to the trial court’s statement that it would
have sentenced him to less than 25 years if it were permitted to do so, but he fails to overcome
the presumption of proportionality. Defendant also fails to compare his sentence to the penalty
imposed for other crimes in this state. Finally, defendant discusses “three strikes” laws and their
effectiveness, but, again, he fails to compare the penalty imposed for the same crime in other
states. Accordingly, defendant fails to establish that his mandatory 25-year minimum sentence
under MCL 769.12(1)(a) constitutes cruel or unusual punishment.

       We affirm.

                                                            /s/ Michael J. Kelly
                                                            /s/ Jane E. Markey
                                                            /s/ Karen M. Fort Hood




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