                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 22, 2016
               Plaintiff-Appellee,

v                                                                    No. 328067
                                                                     Ingham Circuit Court
SHALUN LATOI SANDERS,                                                LC No. 14-000361-FC

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

        Defendant was convicted of armed robbery, MCL 750.529, under an aiding and abetting
theory following a jury trial. She was sentenced to 42 to 120 months in prison and appeals as of
right. We affirm defendant’s conviction, but vacate her sentence and remand for resentencing.

                                 I. FACTUAL BACKGROUND

        On March 15, 2014, Rodney Tipton bought 20 winning lottery tickets, each worth $416.
That afternoon, Karim Karana, who was working at the 1910 Meat Market in Lansing, cashed
out 10 of the winning tickets for Tipton and paid him $4,160 but did not have funds to cash out
the other 10 tickets. This transaction was recorded on videotape (“the market video”), which
showed that Karana openly counted out the money on the market counter while defendant and
Billie Lackey were standing behind Tipton. Detective Andrew Hogan narrated the market video
while it played for the jury at trial and described how Lackey “lean[ed] forward on his tiptoes
looking up and over at the money being counted out” while defendant stood directly beside
Lackey with “what appeared to be a pretty clear view” of where the money was being laid out.
Tipton testified that he gave some money to people in the store, put the balance in his left pocket
and decided to go to Von’s Market, which was nearby, apparently to attempt to cash out his
remaining ten lottery tickets. Cecil Thornton, Tipton’s cousin, who was at the deli counter
getting some meat, testified that before Tipton went to Von’s, Tipton told him that he was going
“across the parking lot to another store.”

        Tipton testified that he then walked over to Von’s. Cecil testified that he and his brother,
Clemie Thornton, drove over and that Clemie went inside with Tipton while Cecil stayed in the
back seat of the car. Cecil testified that he then noticed a white Suburban with black trim pull
into the parking lot and saw a man jump out of the passenger side, run up to Von’s, open the
door, look inside, come back out, “motioning, like, here he come[s],” and then jump back in the


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Suburban. Cecil testified that he then saw Tipton come out of Von’s and saw a different man,
who he would later identify as Lackey, exit the driver’s side of the Suburban. Tipton testified
that Lackey ran up behind him with a gun and say something. Tipton testified that Lackey
“stood in front of” him with the weapon “facing the ground,” and reached into Tipton’s pocket
with his left hand, taking approximately $4,000.00, before running back to the Suburban and
getting in on the left rear of the vehicle. Tipton and Cecil both testified that the Suburban was
being driven by a black female with long hair. Tipton also stated that after the robbery, the
Suburban then “backed up all the way up to Pleasant Grove so you couldn’t see the plate.”
Investigators later determined that the Suburban backed up 163 feet and 9 inches before turning.

         After the robbery, Tipton called 911. Cecil testified that he then gave the police a
description of the vehicle, the driver, and the robber. The police officer who interviewed Tipton
testified that after showing Tipton the market video Tipton identified the woman and the man
behind him in line at the Meat Market as the driver and robber. Within 10 minutes of dispatch
putting out a description of the suspects and the Suburban, the vehicle was spotted. Defendant
was driving. Tipton and Cecil were taken to the scene of the traffic stop, and the officer who
drove them there testified that they both identified defendant and Lackey as those involved in the
robbery, an identification that Tipton repeated in his own testimony. Also, Cecil testified that the
vehicle at the traffic stop was the same vehicle involved in the robbery.

        Officer Jeremiah Wonnacott testified that, during the traffic stop, he interviewed
defendant and that she admitted to being at the market with Lackey, acknowledged being in line
behind the person who had cashed out the lottery tickets, and admitted that she knew that the
person had a large amount of money on him. Wonnacott testified that defendant did not indicate
that she had been threatened by Lackey.

                                          II. ANALYSIS

                               A. SUFFICIENCY OF EVIDENCE

       Defendant argues that the jury had insufficient evidence to convict. We disagree.1

         Claims of insufficient evidence “focus[] on whether the evidence, taken as a whole,
justifies submitting the case to the trier of fact.” People v Clark, 172 Mich App 1, 6; 432 NW2d
173 (1988). Due process requires such evidence to sustain a conviction. People v Wolfe, 440
Mich 508, 514; 489 NW2d 748 (1992), amended on other grounds 441 Mich 1201 (1992). We
review “the evidence in a light most favorable to the prosecutor to determine whether any trier of
fact could find the essential elements of the crime were proven beyond a reasonable doubt.”
People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). Prosecutors must prove three elements
to secure a conviction on an aiding and abetting theory:




1
 We review de novo sufficiency of the evidence claims. People v Osby, 291 Mich App 412,
415; 804 NW2d 903 (2011).



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       (1) the crime charged was committed by the defendant or some other person, (2)
       the defendant performed acts or gave encouragement that assisted the commission
       of the crime, and (3) the defendant intended the commission of the crime or had
       knowledge that the principal intended its commission at the time that [the
       defendant] gave aid and encouragement. [People v Carines, 460 Mich 750, 768;
       597 NW2d 130 (1999).]

       In the present case, defendant was charged with armed robbery. “The essential elements
of an armed robbery are (1) an assault, and (2) a felonious taking of property from the victim’s
person or presence, while (3) the defendant is armed with a weapon described in the statute.”
People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). An assault requires
“commi[ssion of] an unlawful act which placed another in reasonable apprehension of receiving
an immediate battery.” People v McConnell, 124 Mich App 672, 678; 335 NW2d 226 (1983).
MCL 750.529, the statute governing armed robbery, explains that the defendant may be (a)
armed with “a dangerous weapon,” (b) armed with “an article used or fashioned in a manner to
lead any person present to reasonably believe the article is a dangerous weapon,” or (c)
“represent . . . that he or she is in possession of a dangerous weapon.”

       “Armed robbery is a specific intent crime.” People v Flowers, 186 Mich App 652, 654;
465 NW2d 43 (1990). “An aider and abettor must have the same criminal intent as the
principal.” Robinson, 475 Mich at 28. However, “the intent of the aider and abettor is satisfied
by proof that he knew the principal’s intent when he gave the aid or assistance.” People v
McCray, 210 Mich App 9, 14; 533 NW2d 359 (1995). Intent “may be inferred from all the facts
and circumstances,” including the defendant’s actions. People v Cameron, 291 Mich App 599,
615; 806 NW2d 371 (2011). Because proving a defendant’s state of mind is difficult, “minimal”
circumstantial evidence may prove intent. People v Kanaan, 278 Mich App 594, 622; 751
NW2d 57 (2008). “Factors that may be considered include a close association between the
defendant and the principal, the defendant’s participation in the planning or execution of the
crime, and evidence of flight after the crime.” Carines, 460 Mich at 757-758. Viewing the
evidence in the light most favorable to the prosecution, a rational jury could reliably find all
elements of an armed robbery under an aiding and abetting theory.

       First, there is sufficient evidence that Lackey, the principal, committed an assault against
Tipton. Tipton testified that Lackey ran up from behind with a gun in his hand, and said
something startling, which frightened him, and he testified that he thought that Lackey “would
have shot” him had he fought back or refused to give up the money. This element was also fully
supported by the testimony of Cecil and Hogan both of whom testified consistently with Tipton’s
description of events.

       Second, there is sufficient evidence that Lackey committed a felonious taking of money
from Tipton’s person. Tipton testified that Lackey took approximately $4,000.00 out of his
pocket, and Cecil testified that he watched this occur. A video-recording showed Lackey
“reaching in and pulling things out” of Tipton’s pockets.

       Third, testimony shows that Lackey committed the robbery while armed with a
dangerous weapon as described in MCL 750.529. Tipton and Cecil testified that Lackey was
armed with a gun while he committed the robbery, and both witnesses described the gun


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consistently and in detail. A gun was never recovered or depicted on the video-recording. But
even if Lackey did not use a gun, the video-recording as narrated by Hogan showed Lackey raise
his hand in a manner that would be consistent with the possession of a weapon and would have
allowed the jury to infer that Lackey “represent[ed] . . . that he . . . [wa]s in possession of a
dangerous weapon.” MCL 750.529.

        Fourth, evidence showed that defendant performed acts or gave encouragement that
assisted the commission of an armed robbery. Evidence was presented that defendant drove the
Suburban just before the armed robbery, waited in the parking lot as Lackey committed the
armed robbery, and then drove Lackey away from the scene. Defendant stipulated that she was
identified as the driver of the Suburban ultimately pulled over.

        On appeal, defendant argues that her actions of driving away from the scene of the
robbery make her at most guilty of accessory after the fact. However, the evidence established
that defendant committed acts of assistance after she became aware that Tipton was carrying a
large sum of cash and that Lackey intended to rob him. A video-recording showed her watching
Karana count out $4,160 in cash and give it to Tipton. She stood directly beside Lackey with
what appeared to be a pretty clear view of the countertop where the money was being laid out.
Then, the video showed Lackey view a conversation between Tipton and Cecil, during which,
according to Cecil, Tipton indicated that he was going to another store to cash out additional
lottery tickets. Finally, as the driver of the vehicle, defendant witnessed the events described by
Cecil, including the fact that one of her passengers got out of the car to watch Tipton and to
announce to Lackey when Tipton was leaving Von’s. Based on this evidence, a rational jury
could have inferred that defendant knew that Lackey specifically intended to commit an armed
robbery prior to its commission and when she assisted him. Carines, 460 Mich at 757.
Accordingly, the evidence was sufficient and there was no due process violation.

                                       B. SENTENCING

        The trial court sentenced defendant to 42 to 120 months in prison. The minimum
sentence was within the guidelines sentencing range of 42 to 70 months based on a total prior
record variable (PRV) score of zero and a total offense variable (OV) score of 45: 15 points for
OV 1, 5 points for OV 2, 10 points for OV 4, and 15 points for OV 10. While defendant frames
this issue as a Lockridge2 issue and failed to preserve a claim based on OV scoring error, the
prosecution concedes that the trial court incorrectly scored OV 4, requiring resentencing.
Therefore, we address defendant’s claim of sentencing error as a Francisco3 error and not as a
Lockridge error and remand to the trial court for resentencing.4 However, on remand, as the


2
    People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).
3
    People v Francisco, 474 Mich 82, 84, 88; 711 NW2d 44 (2006).
4
  While unpreserved claims are reviewed for plain error affecting a substantial right, People v
Schumacher, 276 Mich App 165, 177; 740 NW2d 534 (2007), a prosecutor’s admission of a
scoring error constitutes “a plain error affecting the defendant’s substantial rights.” People v
Lathrop, 480 Mich 1036, 1036; 743 NW2d 565 (2008)



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parties agree, the trial court should utilize the now advisory sentencing guidelines, as described
in Lockridge.

        A defendant is entitled to be sentenced by a trial court on the basis of accurate
information. People v Francisco, 474 Mich 82, 89-91; 711 NW2d 44 (2006). Scoring errors
entitle defendants to resentencing. Id. A “sentence is invalid if it is based on inaccurate
information.” People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). As noted above, the
prosecutor concedes that OV 4 was scored improperly. OV 4 addresses “psychological injury to
a victim.” MCL 777.34(1). A trial court may assign 10 points under OV 4, if “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).
There was no indication in the record that Tipton suffered such an injury. Subtracting the 10
points scored under OV 4 from defendant’s total OV score reduces defendant’s total OV score
from 45 points to 35 points resulting in her being a level II offender instead of a level III
offender, which reduces her guideline minimum sentence range from 42 to 70 months down to
27 to 45 months. MCL 777.62. Depriving her of her liberty interest, for any improper time
period constitutes plain error requiring resentencing. People v Lathrop, 480 Mich 1036, 1036-
1037; 743 NW2d 565 (2008) (resentencing when the prosecutor admitted to a PRV scoring
error).

        Because the trial court erred in its OV scoring and because this error affected the
statutory sentencing guidelines range, we remand to the trial court for resentencing.
Additionally, because we find that the trial court’s scoring errors require resentencing, we need
not reach defendant’s Lockridge challenge other than to remind the trial court the sentencing
guidelines are now advisory.

                                       III. CONCLUSION

       We affirm defendant’s conviction but vacate her sentence and remand for resentencing
consistent with this opinion. We do not retain jurisdiction.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Michael F. Gadola




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