                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 13, 2015
               Plaintiff-Appellee,

v                                                                   No. 320388
                                                                    Oakland Circuit Court
AWS M. NASER,                                                       LC No. 2013-244672-FC

               Defendant-Appellant.


Before: BORRELLO, P.J., and JANSEN and OWENS, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of armed robbery, MCL 750.529.
The trial court sentenced defendant to 3 to 20 years’ imprisonment for the conviction. We
affirm.

         This case arises from a situation where defendant entered a gas station and removed a
bottle of pepper spray from the shelves before walking behind the station counter and up to the
cashier, who was engaged in assisting a customer. Defendant immediately removed a stack of
bills from the cash register’s open cash drawer. Defendant, an ex-employee of the gas station,
then threatened the cashier with the pepper spray, telling the cashier that he would use the spray
if the cashier did not allow him to take the money and hand over his paycheck. The cashier
recognized defendant, who had not worked at the station for months, and told defendant that he
did not know where defendant’s paycheck was located. The cashier reached to grab the stack of
bills back from defendant, and defendant shot pepper spray in the cashier’s face. After a scuffle,
defendant ran out of the store with the money and the pepper spray.

        Defendant argues that the evidence presented at trial was insufficient to support a
conviction for armed robbery. Specifically, defendant claims that the prosecution did not prove
that defendant possessed the requisite specific intent to steal the property of another in light of
defendant’s honest belief that he had a right to the property he took. We disagree.

        A challenge to the sufficiency of evidence is reviewed de novo. People v Harverson, 291
Mich App 171, 175-176; 804 NW2d 757 (2010). This Court must review the evidence in a light
most favorable to the prosecution and determine whether the jury could have found each element
of the charged crimes proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139;
815 NW2d 85 (2012).


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        For an armed robbery conviction, the prosecutor must prove that defendant (1) committed
larceny, (2) through the use of force or violence, and (3) at the time of the larceny, possessed a
dangerous weapon. MCL 750.529; MCL 750.530; People v Williams, 288 Mich App 67, 72-73;
792 NW2d 384 (2010), aff’d 491 Mich 164 (2012). The intent necessary for an armed robbery
conviction comes from the larceny element, which requires proof that the defendant specifically
intended to permanently deprive another person of their property. People v Lee, 243 Mich App
163, 168; 622 NW2d 71 (2000); People v Cain, 238 Mich App 95, 120; 605 NW2d 28 (1999).
Minimal circumstantial evidence suffices to establish the defendant’s state of mind, which can be
inferred from all the evidence presented. People v Kanaan, 278 Mich App 594, 622; 751 NW2d
57 (2008).

        Defendant disputes whether felonious intent existed at the time of the taking, and asserts
a “claim of right” defense. Cain, 238 Mich App at 120. “According to this defense, if a
defendant had a good-faith belief that the defendant had a legal right to take the property at issue,
then the defendant cannot be convicted because the defendant did not intend to deprive another
person of property.” Id. at 119. The question of honesty of belief involves the weighing of
evidence and assessment of the credibility of witnesses, which are issues left to the trier of fact.
Id. Thus, the honesty of belief necessary to support the claim of right defense does not guarantee
acquittal unless the jury believes the defense. Id. If the evidence demonstrates that the
defendant did not have a bona fide claim of possession, the good faith necessary for a claim of
right defense is negated. People v Karasek, 63 Mich App 706, 713; 234 NW2d 761 (1975).

        Much of the testimony presented at trial was offered to establish defendant’s claim to
money owed by the store owner for defendant’s work as an employee. But a claim of right
defense is intended for use in situations where the defendant, in good faith, believes he has “a
legal right to take the property at issue.” Cain, 238 Mich App at 120 (emphasis added). It does
not entitle an individual to forcibly take from an alleged debtor any property he views as
adequate to settle a debt. Whether the store owner owed defendant compensation for work is
irrelevant in light of the fact that defendant did not have a bona fide claim of possession to either
the cash he took from the cash register or the pepper spray he took from the gas station’s shelves.
Defendant repeatedly emphasized that he went to the store to recover his paycheck, specific
property which he believed he was entitled to. However, despite defendant’s claim to simply
want his paycheck, defendant did not look for the paycheck before grabbing a package of pepper
spray off of the shelf, opening it, and using it to steal money from the cash register. The
evidence demonstrated that, even if defendant had a bona fide claim to a paycheck, he did not
have a bona fide claim to either the pepper spray or the cash in the cash register. Without a bona
fide claim to the property taken, defendant’s claim of right defense necessarily fails.

        Further, the evidence presented was sufficient to support the jury’s conclusion that
defendant possessed the felonious intent to steal. Given that only minimal circumstantial
evidence is necessary to establish intent, defendant’s admission that he ran out of the store with
the cash and the pepper spray was enough to establish his intent to keep what he had taken.
Additionally, a rational trier of fact could have considered defendant’s decision to steal the
pepper spray before confronting Rehm as an indication that defendant did not walk into the gas
station simply intending to claim his paycheck. Defendant did not even ask for his paycheck
until after he had stolen both the pepper spray and the cash, despite his admission that he knew at


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the time of the robbery that paychecks were normally left for employees in a drawer behind the
counter.

        Questions regarding defendant’s good faith belief were for the jury to answer. Cain, 238
Mich App at 119. The jury was properly instructed to consider the defendant’s claim of right
defense. The jury is presumed to have followed that instruction, People v Abraham, 256 Mich
App 265, 278-279; 662 NW2d 836 (2003), and there is no reason for this Court to question its
decisions as fact-finder. Therefore, when viewed in a light most favorable to the prosecution,
sufficient evidence existed to support a rational trier of fact’s conclusion that defendant’s
felonious intent was proven beyond a reasonable doubt.

        Defendant also argues that certain statements made by the prosecutor during closing
arguments misstated the law regarding defendant’s claim of right defense and deprived defendant
of a fair trial. Although we agree that several statements made by the prosecutor were improper,
the error did not deprive defendant of a fair trial.

        Defendant did not contemporaneously object to the alleged improper statements at trial.
Therefore, the issue is not preserved. People v Thomas, 260 Mich App 450, 453-454; 678 NW2d
631 (2004). Unpreserved issues are reviewed for plain error affecting defendant’s substantial
rights. Id. at 453-454. Once the plain error rule is satisfied, a conviction is reversed only if
defendant is actually innocent or if the error “seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” People v Ackerman, 257 Mich App 434, 449; 669 NW2d
818 (2003).

        Prosecutors are typically afforded great latitude regarding their arguments. People v
Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). Prosecutors should not resort to civic duty
arguments that appeal to the fears and prejudices of jury members, express their personal opinion
of a defendant’s guilt, or denigrate a defendant with intemperate and prejudicial remarks. Id. at
283. Otherwise, they are generally free to argue the evidence and all reasonable inferences as
may relate to their theory of the case, and are not required to confine their statements to the
blandest possible terms. People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007).
Improper remarks from the prosecutor rise to the level of prosecutorial misconduct and require
reversal when they deprive defendant of a fair and impartial trial. Id. at 63. Issues of
prosecutorial misconduct are decided on a case by case basis, and this Court must examine the
entire record and consider the challenged remarks in context. People v Roscoe, 303 Mich App
633, 648; 846 NW2d 402 (2014).

       Several of the remarks made by the prosecutor during closing arguments misstated the
law regarding defendant’s claim of right defense. The prosecutor repeatedly suggested that the
way in which defendant carried out the alleged robbery had some bearing on his claim of right
defense:

               One of the first things the [d]efendant told you when he gave his opening
       statement is maybe I went about it wrong, and how close that very phrase was to
       what ultimately in my view becomes the theme here, and the theme was set in
       stone by you because it depends on how he did it. I’ll be the first one to tell you
       there is an onerous instruction that you are going to hear about this really weird

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       thing called claim of right. What I’m going to suggest to you [sic] that how the
       [d]efendant did it matters.

                                             * * *

               Do you honestly believe that his [sic] intelligent [d]efendant here . . . has
       the right to physically – to physically take on a complete bystander? Does that
       mean the [d]efendant could have taken a firearm? Well the instruction says you
       can use force . . . I guess doesn’t that mean for all those out here in our state
       whose pensions just might start to shrink, does that mean every single one of these
       thousands of people who may rightfully may think are getting screwed, you all
       can gang up, ride downtown, get to the emergency manager Orr’s office and start
       looting the place? Are we really about vigilante justice?

                                             * * *

               If it becomes by any means necessary, there has to be a limit. The
       instruction is good, but the way the [d]efendant did it, by his own words, he
       should have done it a different way.

The prosecutor’s characterization of the claim of right defense is inaccurate. The law is clear
that, “if a defendant had a good-faith belief that the defendant had a legal right to take the
property at issue, then the defendant cannot be convicted because the defendant did not intend to
deprive another person of property.” Cain, 238 Mich App at 119. The intent to permanently
deprive another person of their property is an essential element of armed robbery, which the
prosecutor is required to prove beyond a reasonable doubt. Williams, 288 Mich App at 72-73.
Thus, without a specific felonious intent, there can be no armed robbery, regardless of how
defendant conducted himself. The “limits” on conduct the prosecutor is searching for exist in
statutes proscribing violent conduct in any context, including when reclaiming property or
settling a debt.

       The prosecutor’s statements also improperly appealed to the jury’s civic duty. A
prosecutor may not appeal to the jury’s civic duty by injecting issues broader than guilt or
innocence or encouraging jurors to suspend their powers of judgment.” Thomas, 260 Mich App
at 455-456. The prosecutor’s remarks went so far as to suggest that the jury’s acceptance of the
claim of right defense in defendant’s case would lead to a system of “vigilante justice”
throughout the state. These remarks clearly went beyond the scope of defendant’s guilt or
innocence and encourage the jurors to follow their hearts, rather than the law.

        Despite the prosecutor’s improper remarks, defendant is not entitled to a new trial. In
order for prosecutorial misconduct to be constitutional error, the error must have so infected the
trial with unfairness as to render the conviction a deprivation of liberty without due process of
law. People v Blackmon, 280 Mich App 253, 269; 761 NW2d 172 (2008), citing Donnelly v
DeChristoforo, 416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). “A prosecutor’s clear
misstatement of the law that remains uncorrected may deprive a defendant of a fair trial.”
People v Grayer, 252 Mich App 349, 358; 651 NW2d 818 (2002). However, reversal is only
appropriate where a curative instruction could not have alleviated any prejudicial effect. People

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v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). If the jury is correctly instructed on
the law, a prosecutor’s erroneous legal argument can be cured. Grayer, 252 Mich App at 358.
Here, the trial court corrected the prosecutor’s misstatement of the law and alleviated any
prejudicial affect the misstatement may have caused when it provided a legally accurate
instruction regarding defendant’s claim of right defense, which included a clarification that the
use of force “does not matter” when defendant honestly believes he has a legal right to the
property. The trial court also instructed the jurors after closing arguments that they must only
consider the evidence before them, and that the attorneys’ statements were not evidence. Jurors
are presumed to follow their instructions, and curative instructions are generally sufficient to
alleviate the prejudicial effect of inappropriate prosecutorial statements. Abraham, 256 Mich
App at 278-279. Thus, the prosecutor’s improper remarks did not deny defendant a fair and
impartial trial.

       Affirmed.


                                                           /s/ Stephen L. Borrello
                                                           /s/ Kathleen Jansen
                                                           /s/ Donald S. Owens




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