                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 30, 2016
              Plaintiff-Appellee,

v                                                                  No. 327349
                                                                   Oakland Circuit Court
ANDRE LEE HEARD,                                                   LC No. 2014-252386-FC

              Defendant-Appellant.


Before: BECKERING, P.J., and CAVANAGH and GADOLA, JJ.

PER CURIAM.

        Defendant, Andre Lee Heard, appeals as of right his convictions of armed robbery, MCL
750.529, and stealing or retaining another’s financial transaction device without consent, MCL
750.157n(1). We affirm defendant’s convictions, but remand for further proceedings consistent
with this opinion.

                                       I. BASIC FACTS

        The 90-year-old victim, Jan Wampuszyc, hired defendant to perform yard work. On one
occasion when defendant was performing yardwork, defendant entered the victim’s home while
the victim was at his kitchen table opening mail with a letter opener. Defendant requested to use
the victim’s bathroom, and the victim granted defendant’s request. The victim continued to open
his mail while seated at the table. Defendant exited the bathroom and threw a hand towel over
the victim’s head. Defendant grabbed the victim’s neck with his left hand and hit the victim’s
head with something hard. The victim testified that he assumed defendant was using the letter
opener, but he could not see what he was being struck with because the towel obstructed his
view. After hitting the victim, defendant held the letter opener to the victim’s chest over his
heart. Defendant told the victim to give him money or else he would “put it in [the victim’s]
heart or stomach.” The victim could see the letter opener in defendant’s hand from underneath
the towel. The victim grabbed defendant’s hand and turned it, causing defendant to fall into the
kitchen table. As defendant fell, the victim also fell to the floor. Defendant then kicked the
victim in the side and took his wallet and cellular telephone. The victim informed defendant that
he pushed an emergency button that he wore around his neck, and defendant left. The victim
then called 911. The victim informed police that defendant struck him in the head with the letter
opener. Later at the hospital, according to his treating emergency room physician, the victim did



                                               -1-
not mention the use of a letter opener. After leaving the victim’s home, defendant used the
victim’s bank cards to purchase gasoline at two local gas stations.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant first challenges the sufficiency of the evidence supporting his armed robbery
conviction. This Court reviews sufficiency of the evidence claims de novo. People v Hawkins,
245 Mich App 439, 457; 628 NW2d 105 (2001). “[A] reviewing court ‘must consider not
whether there was any evidence to support the conviction but whether there was sufficient
evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.’ ” People v
Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992), quoting
People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979). The Court “must view the
evidence in the light most favorable to the prosecution . . . .” People v Kloosterman, 296 Mich
App 636, 639; 823 NW2d 134 (2012). We defer to a jury’s determination regarding witness
credibility. People v Lee, 243 Mich App 163, 167; 622 NW2d 71 (2000). Additionally, any
factual conflicts are to be resolved in favor of the prosecution. Wolfe, 440 Mich at 515.

       The elements of armed robbery 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); See
       also MCL 750.529]

Defendant only challenges the sufficiency of the evidence supporting the second element. He
makes two arguments: first, that a letter opener is not a dangerous weapon, and, second, that
there was insufficient evidence to establish that he possessed a dangerous weapon. We disagree.

        The test for whether a normally harmless article is a dangerous weapon is whether the
instrument was used as a weapon and whether the instrument when used as a weapon is
dangerous. People v Lange, 251 Mich App 247, 256; 650 NW2d 691 (2002). In this case, there
was evidence presented that the letter opener was a nine-inch, bladed instrument with a handle.
While a letter opener is harmless in itself, when it was being held to the victim’s chest
accompanied by verbal threats to stab the victim with it, it was being used as a weapon. Further,
it was reasonable for the jury to conclude that “putting” a nine-inch long instrument into
someone’s chest or stomach would be dangerous. Therefore, sufficient evidence was presented
to establish that the letter opener was “used or fashioned in a manner to lead any person present
to reasonably believe that the article was a dangerous weapon.” Chambers, 277 Mich App at 7.

       With respect to whether defendant possessed a dangerous weapon, the victim testified
that he felt defendant hitting him with something hard, and he surmised that it was the letter
opener. After being hit in the head, the victim observed the letter opener in defendant’s hand,

                                                -2-
held close to the victim’s chest as defendant threatened him with it. The victim told a responding
officer that defendant struck him with the letter opener. The jury could reasonably infer that
defendant would have to possess the letter opener in order to hit the victim with it.
“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). Moreover, the victim’s testimony that he observed defendant holding the
letter opener in his hand while he threatened to put it in the victim’s heart or stomach if the
victim did not give him money is sufficient evidence to establish possession during the offense.
The armed robbery statute proscribes possession of a weapon or other article “in the course of
engaging in” a larceny from a person, and references MCL 750.530. MCL 750.530(2) defines
“in the course of committing a larceny” to “include[] acts that occur in an attempt to commit the
larceny, or during the 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.” Thus, there
was sufficient evidence to support the jury’s finding beyond a reasonable doubt that defendant
possessed a dangerous weapon in the course of committing the larceny. Wolfe, 440 Mich at 513-
514.

                        III. EFFECTIVE ASSISTANCE OF COUNSEL

        Next, defendant asserts that he was denied the effective assistance of counsel by defense
counsel’s failure to request the lesser included unarmed robbery jury instruction. We review
defendant’s unpreserved ineffective assistance of counsel claim for mistakes apparent on the
record. People v Lockett, 295 Mich App 165, 186; 814 NW2d 295 (2012). To establish
ineffective assistance of counsel defendant must show that:

       (1) counsel’s performance fell below an objective standard of reasonableness and
       (2) but for counsel’s deficient performance, there is a reasonable probability that
       the outcome would have been different. [People v Trakhtenberg, 493 Mich 38,
       51; 826 NW2d 136 (2012).]

This Court may examine the prejudice suffered by the defendant as a result of the alleged
deficiencies without determining whether counsel’s performance was deficient, when, in cases
such as this one, “ ‘it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice.’ ” People v Reed, 449 Mich 375, 400-401; 535 NW2d 496 (1995), quoting,
Strickland v Washington, 466 US 668, 697; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        In this case, defendant cannot show that “there is a reasonable probability that the
outcome would have been different,” Trakhtenberg, 493 Mich at 51, because the jury instruction
for unarmed robbery was in fact given. While both parties agree that the instruction was not
given, the record reveals that the trial court gave the unarmed robbery instruction as follows:

       The Defendant is charged in Count 1 with the crime of armed robbery. You may
       also consider the lesser charge of unarmed robbery. To prove this charge, the
       prosecutor must prove each of the following elements beyond a reasonable doubt:

       First, the Defendant used force or violence and/or assaulted, and/or put Jan
       Wampuszyc in fear.

                                               -3-
       Second, the Defendant did so while he was in the course of committing a larceny.
       A larceny is the taking and movement of someone else’s property or money with
       the intent to take it away from the person permanently. In the course of
       committing a larceny includes acts that occur in an attempt to commit the larceny
       or during the commission of the larceny, or in flight after the commission of the
       larceny, or an attempt to retain possession of the property or money.

       Third—excuse me. Third, Jan Wampuszyc was present while Defendant was in
       the course of committing the larceny.

Additionally, the jury was given many other instructions regarding how it was to consider the
less serious offense.

               If you believe that the Defendant is not guilty of the armed robbery charge
       or if you cannot agree about that crime, you should consider the less serious crime
       of unarmed robbery. You decide how long to spend on the armed robbery charge
       before discussing unarmed robbery. You can go back to the armed robbery
       charge after discussing unarmed robbery if you want to.

                                             * * *

               . . .You must consider each crime separately in light of all the evidence in
       the case. You may find the Defendant guilty of all or any one of these crimes,
       guilty of a less serious crime, or not guilty.

               And I’ve prepared a verdict form listing the possible verdicts in this
       matter. And as it relates to Count 1, armed robbery, you may find the Defendant
       not guilty, guilty, or guilty of the less serious crime unrobbery—unarmed robbery.

Moreover, the jury verdict form even had unarmed robbery as an option for the jury to select.
Regardless of whether the unarmed robbery instruction was requested by defense counsel, it was
given, and the jury still chose to convict defendant of the higher charge of armed robbery. Thus,
defendant cannot establish the prejudice necessary for his ineffective assistance of counsel claim.
Reed, 449 Mich at 400-401.

                                  IV. OFFENSE VARIABLE 1

        Defendant next argues that offense variable (OV) 1, was improperly scored at 25 points.
We disagree. We review a trial court’s factual determination under the sentencing guidelines for
clear error, and its determination “must be supported by a preponderance of the evidence.”
People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). OV 1 can be scored at 25 points
when “[a] firearm was discharged at or toward a human being or a victim was cut or stabbed
with a knife or other cutting or stabbing weapon.” MCL 777.31(1)(a).

       The trial court found that the letter opener was a cutting weapon and that the victim was
cut. Defendant asserts that the victim was not cut with a stabbing instrument because the letter
opener was not a dangerous weapon. We disagree with defendant. The word “weapon” in MCL
777.31 includes an instrumentality that is not inherently a dangerous weapon, but, when it is

                                                -4-
employed in an assault, the instrumentality is dangerous. Lange, 251 Mich App at 256. As
noted above, a letter opener is a dangerous weapon when used in the way defendant used it.
Moreover, the purpose of a letter opener is to cut paper and can certainly be used as a cutting or
stabbing instrument. Moreover, the evidence supported the trial court’s finding that the victim
was cut with the letter opener. The victim grabbed defendant’s hand that was holding the letter
opener to try and disarm defendant, and the victim testified that he was struck with the letter
opener on his head. In the course of the altercation, the victim was cut on his head, ear, and
hands. The victim testified that he had no cuts on his hand or ear before the attack. Given this
evidence, there was evidence to support the scoring decision. Hardy, 494 Mich at 438. Because
there was sufficient evidence supporting the trial court’s finding that the victim was cut with a
cutting or stabbing instrument, the trial court did not clearly err in scoring OV 1 at 25 points. Id.

                                 V. IMPACT OF LOCKRIDGE

        Finally, defendant asserts that he is entitled to resentencing under People v Lockridge,
498 Mich 358; 870 NW2d 502 (2015). We disagree that he is entitled to resentencing, but as the
prosecution concedes, we deem it appropriate to remand the case. In Lockridge, our Supreme
Court held that Michigan’s sentencing scheme violated the Sixth Amendment right to a jury trial
because it required “judicial fact-finding beyond facts admitted by the defendant or found by the
jury to score offense variables (OVs) that mandatorily increase[d] the floor of the guidelines
minimum sentence range, i.e. the ‘mandatory minimum’ sentence under Alleyne [v United States,
570 US __; 133 S Ct 2151; 186 L Ed 2d 314 (2013).]” Lockridge, 498 Mich at 364. To remedy
the constitutional violation, the Court held that a guidelines minimum sentence range calculated
in violation Alleyne is advisory only. Id. at 365. In this instance, we agree with defendant that
the facts to which he admitted and those necessarily found by the jury were insufficient to assess
the minimum number of OV points necessary for his score to fall in the cell of the sentencing
grid under which he was sentenced. Specifically, the scoring of OVs 3, 4, and 10 involved
judicial-fact finding that increased defendant’s minimum-sentence guidelines range. As such,
defendant has made the threshold showing of plain error, and we remand to the trial court to
determine whether it “would have imposed a materially different sentence” in light of the
advisory nature of the guidelines. Id., at 397. On remand, we instruct the trial court to follow
the Crosby1 procedure outlined in Lockridge, 498 Mich at 398.

        We affirm defendant’s convictions, but we remand for further proceedings consistent
with this opinion. We do not retain jurisdiction.



                                                              /s/ Jane M. Beckering
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Michael F. Gadola




1
    United States v Crosby, 397 F 3d 103, 117-118 (CA 2, 2005).


                                                -5-
