                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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

v                                                                   No. 333341
                                                                    Macomb Circuit Court
ROBERT ANTOINE MOORE,                                               LC No. 2015-002935-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and MURRAY and O’BRIEN, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of first-degree home invasion, MCL
750.110a(2), and two counts of assault and battery, MCL 750.81(1). He was acquitted of
unarmed robbery. Defendant was sentenced to 84 to 240 months’ imprisonment for the first-
degree home invasion conviction, to be served concurrently to terms of 93 days’ imprisonment
for each count of assault and battery. Defendant appeals as of right. We affirm defendant’s
convictions and remand for correction of the judgment of sentence.

                               I. SUFFICIENCY OF EVIDENCE

       Defendant first argues that the evidence was insufficient to convict him of first-degree
home invasion and both counts of assault and battery.

        “The sufficient evidence requirement is a part of every criminal defendant’s due process
rights.” People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, amended 441 Mich 1201 (1992).
After a jury convicts a defendant, we review the evidence on appeal in the light most favorable to
the prosecution to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. See Wolfe, 440 Mich at 513-515. In applying
this standard, reviewing courts are not to interfere with the role of the jury:

       It is the function of the jury alone to listen to testimony, weigh the evidence and
       decide the questions of fact.

                                             * * *

               Juries, not appellate courts, see and hear witnesses and are in a much
       better position to decide the weight and credibility to be given to their testimony.

                                               -1-
       Where sufficient evidence exists, which may be believed by the jury, to sustain a
       verdict of guilty beyond a reasonable doubt, the decision of the jury should not be
       disturbed by an appellate court. [People v Palmer, 392 Mich 370, 375-376; 220
       NW2d 393 (1974) (citations omitted).]

Even so, this Court cannot simply defer to the decision of the trial court. People v Harverson,
291 Mich App 171, 176; 804 NW2d 757 (2010). Instead, this Court must “employ [its own]
independent judicial views while employing the well-settled standards for deciding sufficiency
issues.” Id.

                             A. FIRST-DEGREE HOME INVASION

        Defendant argues that the evidence showed only that he was present during the home
invasion, that he did not participate in the crimes after entry, that he did not encourage the others,
and that he tried to stop them. Accordingly, he argues, the evidence was insufficient to convict
him of first-degree home invasion. However, viewing the evidence in a light most favorable to
the prosecutor, the evidence could lead a rational jury to conclude that he aided and abetted the
other intruders in entering the house with the intent to assault Panaccione. The evidence was,
therefore, sufficient.

       The home invasion statute provides:

       A person who breaks and enters a dwelling with intent to commit a felony,
       larceny, or assault in the dwelling, a person who enters a dwelling without
       permission with intent to commit a felony, larceny, or assault in the dwelling, or a
       person who breaks and enters a dwelling or enters a dwelling without permission
       and, at any time while he or she is entering, present in, or exiting the dwelling,
       commits a felony, larceny, or assault is guilty of home invasion in the first degree
       if at any time while the person is entering, present in, or exiting the dwelling
       either of the following circumstances exists:

       (a) The person is armed with a dangerous weapon.

       (b) Another person is lawfully present in the dwelling. [MCL 750.110a(2).]

        “Every person concerned in the commission of an offense, whether he directly commits
the act constituting the offense or procures, counsels, aids, or abets in its commission may
hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly
committed such offense.” MCL 767.39.1 Aiding and abetting describes all forms of assistance
rendered to the perpetrator of a crime, including



1
 This statute removes the common law requirement that a principal actor must be convicted of a
crime before an accessory—one who aids or abets—may be properly prosecuted. Palmer, 392
Mich at 378.


                                                 -2-
       all words or deeds which may support, encourage or incite the commission of a
       crime . . . [and] the actual or constructive presence of an accessory, in preconcert
       with the principal, for the purpose of rendering assistance . . . . The amount of
       advice, aid or encouragement is not material if it had the effect of inducing the
       commission of the crime. [Palmer, 392 Mich at 378 (citations omitted).]

Before a defendant can be found guilty under a theory of aiding and abetting, the underlying
offense must be proven. People v Blevins, 314 Mich App 339, 358; 886 NW2d 456 (2016).
Further, to be convicted as an aider and abettor, the defendant must either possess the requisite
intent to commit the underlying offense or participate while knowing that coparticipants possess
the requisite intent. People v Karst, 118 Mich App 34, 39; 324 NW2d 526 (1982).

        A defendant’s mere presence, even with knowledge that the underlying crime is about to
be committed or is currently being committed, is insufficient to warrant a conviction under a
theory of aiding and abetting. Id. However, by voluntarily choosing to join a group that was
intent on committing a crime, a person takes action that supports, encourages, and incites the
commission of that crime. People v Smock, 399 Mich 282, 284-285; 249 NW2d 59 (1976). The
Smock Court reasoned that joining with such a group contributes to the psychological
underpinnings that give strength to a “mob” via mutual reassurance. Id. The Court distinguished
such actions from cases of “guilt by association” or “mere presence.” Id. at 285.

        Defendant was convicted of first-degree home invasion under a theory that he broke and
entered into the victims’ dwelling with the intent, specifically, to commit an assault therein; or
that he aided and abetted others in doing so. After defendant agreed to give Panaccione a $10
loan, Panaccione received a call in which the speaker aggressively inquired as to the debt that
Panaccione owed defendant. In the early hours of the next morning, while it was still dark,
defendant and others went to Panaccione and Penny Keleel’s house and attempted to kick in the
front door. Defendant and the other intruders opened the front door and entered the house
without invitation or permission, and defendant watched as his cohorts assaulted Panaccione,
Keleel, and Cassin.

        The time at which defendant and the intruders appeared at the house, the violent manner
in which they attempted to enter, and their conduct upon entry suggest that they were not there
simply to discuss the debt with Panaccione in a civil fashion. Rather, it may be inferred from the
facts that they had every intent to use violent means to procure payment of the debt that
defendant was owed. At the very least, even if defendant, himself, had no intention of assaulting
the victims, he should have been made aware of his cohort’s intentions when they began loudly
attempting to gain entry to the home using force, and was aware as the assaults were occurring.

        Neither Panaccione nor Keleel claim that defendant touched anyone. Nor did either
claim to have heard defendant actively giving aid or encouragement to the others as they
committed the assaults and batteries against the victims. However, it was within reason for the
jury to conclude that defendant enlisted the aid of the other intruders to intimidate Panaccione
into surrendering the debt owed. This greater number gives rise to the reasonable inference that
defendant entered the house intending on either using force to obtain the money he was owed, or
that he entered intending to put Panaccione in reasonable apprehension of such force. Moreover,
there is abundant evidence that an intruder brought a gun to both incidents. Whether the weapon

                                               -3-
was intended to be used or merely meant to inspire fear of its use when drawn, its presence
indicates that the intruders contemplated an assault when entering the house. Finally, defendant
returned after the first incident accompanied by even more people. The jury could have
reasonably concluded that if defendant truly did not desire to be a party to home invasion or
assaultive behavior, that he would not have come to the house a second time.

        Because it is for the jury to weigh the evidence, and because we review the evidence in
the light most favorable to the prosecution, Palmer, 392 Mich at 375-376, we conclude that
sufficient evidence was presented to allow a rational jury to find beyond a reasonable doubt that
defendant broke and entered into the victims’ home, while the victims were present, with the
intent to assault Panaccione, or at least that defendant sought, aided, or encouraged the other
intruders to break and enter into the victims’ home, while the victims were present, and with the
intent to assault Panaccione therein.

                                 B. ASSAULT AND BATTERY

       Defendant also argues that there was insufficient evidence to convict him of assaults on
both Panaccione and Keleel during the first incident.

         Under Michigan statutory law, “a person who assaults or assaults and batters an
individual, if no other punishment is prescribed by law, is guilty of a misdemeanor punishable by
imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL
750.81(1). An assault can occur in two ways: (1) an attempted battery; or (2) an unlawful act
that places another in reasonable apprehension of an imminent battery. People v Terry, 217
Mich App 660, 662; 553 NW2d 23 (1996). “A battery is the consummation of an assault.” Id.
It is the “intentional, unconsented and harmful or offensive touching of the person of another, or
of something closely connected with the person.” People v Nickens, 470 Mich 622, 628; 685
NW2d 657 (2004) (quotation marks and citation omitted).

        Here, the evidence does not suggest that defendant ever physically assaulted any of the
victims. However, defendant was also charged on a theory of aiding and abetting. As discussed
previously, the facts give rise to a reasonable inference that defendant enlisted the help of the
other intruders for the purpose of either using physical force against Panaccione, or instilling a
reasonable apprehension in Panaccione that they would use such force, to procure the money that
defendant was owed. In either case, an assault would have occurred that defendant played an
integral part in orchestrating.

        The evidence is also sufficient to establish that defendant aided and abetted in the assault
against Keleel. The jury could have concluded that defendant was present during the first
incident to render assistance in physical altercations if necessary. The jury could have also found
that defendant entered the home simply to add to the victims’ intimidation by adding to the
number of intruders. Unless the evidence, when viewed in the light most favorable to the
prosecution, could not have led a rational jury to convict defendant, the verdict must not be
disturbed. Palmer, 392 Mich at 375-376. The circumstances allowed for the jury to make the
necessary connections and inferences to find defendant guilty of aiding and abetting in the
assault and battery of both Panaccione and Keleel. The jury’s convictions of defendant for both
counts of assault and battery must, therefore, be affirmed.

                                                -4-
                     III. CORRECTION OF JUDGMENT OF SENTENCE

        Defendant next argues that he is entitled to a remand for the ministerial task of correcting
the judgment of sentence. We agree.

        The lower court record clearly indicates that defendant was convicted of first-degree
home invasion and both counts of assault and battery, and was acquitted of the unarmed robbery
charge. The trial judge sentenced defendant accordingly. The judgment of sentence incorrectly
indicates that defendant was convicted of unarmed robbery and acquitted of one count of assault
and battery. Defendant is, therefore, entitled to a remand in order to correct the judgment of
sentence. People v Terrell, 312 Mich App 450, 468; 879 NW2d 294 (2015), rev’d on other
grounds 902 NW2d 601 (2017). Indeed, the prosecution does not contest the issue.

        Affirmed but remanded to the trial court to correct the judgment of sentence. We do not
retain jurisdiction.



                                                             /s/ Michael J. Talbot
                                                             /s/ Christopher M. Murray
                                                             /s/ Colleen A. O’Brien




                                                -5-
