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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v WILLIE BENJAMIN WEBB, Defendant-Appellant.

UNPUBLISHED May 20, 2010

No. 291033 Gogebic Circuit Court LC No. 08-000201-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JESSIE JAMES WALTON, Defendant-Appellant. No. 291147 Gogebic Circuit Court LC No. 07-000335-FH

Before: WHITBECK, P.J., and SAWYER and BORRELLO, JJ. PER CURIAM. A jury convicted defendant Willie Webb of assisting in causing a prison riot,1 and two counts of assaulting a prison employee.2 The trial court sentenced him as a second habitual offender,3 to 95 months to 15 years' imprisonment for the assisting in causing a prison riot conviction and four to six years' imprisonment for each assault conviction. The same jury convicted defendant Jessie Walton of assisting in causing a prison riot and assaulting a prison employee. The trial court sentenced him as a third habitual offender,4 to 7-1/2 to 20 years'

1 2 3 4

MCL 752.542a. MCL 750.197c. MCL 769.10. MCL 769.11.

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imprisonment for the assisting in causing a prison riot conviction and four to eight years' imprisonment for the assault conviction. Webb now appeals as of right in Docket No. 291033, and Walton appeals as of right in Docket No. 291147. We affirm in both appeals. I. BASIC FACTS AND PROCEDURAL HISTORY Webb's and Walton's convictions stem from an April 9, 2006 riot at the Ojibway Correctional Facility in Marenisco, Michigan. Walton and Webb were tried jointly before a single jury, resulting in their convictions and these appeals. According to numerous Ojibway corrections officers who testified during the trial, approximately two hours before the riot, a Caucasian inmate, called "Mason," stabbed an African-American inmate, called "Lundy," with a homemade knife. Tension among the inmates was high because the stabbing appeared to be racially motivated. African-American inmates were upset because they believed that the prison corrections officers, all of whom were Caucasian, did not adequately assist Lundy. But according to Inspector Donald Majurin, the corrections officers complied with protocol and did not get involved in the altercation until there were enough officers present to properly handle the situation. Sergeant Dale Ann Havenor testified that after the Mason-Lundy altercation, the inmates seemed to stop paying attention to the guards' directions. Corrections officers then began videotaping the inmates in an attempt to coerce them to return to their housing units. Sergeant Havenor testified that oftentimes inmates will disperse when a guard attempts to videotape their faces. However, the inmates instead began to congregate in the T.V. room. The inmates, including Webb, also began threatening to harm or kill the corrections officers. At approximately 8:40 p.m., one of the inmates made a saluting motion, and chaos erupted thereafter. The inmates yelled, screamed, and beat the officers. Approximately 50 African-American inmates were involved in the disturbance. Sergeant Sheldon Ewers responded as part of the emergency response team. He estimated that between 8 and 12 staff members were injured. The emergency response team quelled the riot with a teargas gun. During trial, several officers identified both Webb and Walton as participants or instigators of the riot. The jury convicted Webb and Walton and they now both appeal. II. DOCKET NO. 291033 (DEFENDANT WEBB) A. SUFFICIENCY OF THE EVIDENCE 1. STANDARD OF REVIEW Webb argues that the evidence failed to show that he participated in the prison riot or that he assaulted Officer Brady Roberts or Officer John Ahola. When determining whether sufficient evidence exists to support a conviction, a reviewing court must view the evidence in the light most favorable to the prosecution and determine whether a rational fact-finder could conclude

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that the prosecution proved every element of the crime charged beyond a reasonable doubt.5 The reviewing court must draw all reasonable inferences and make credibility determinations in support of the jury's verdict.6 Circumstantial evidence and reasonable inferences drawn therefrom can constitute sufficient proof of the elements of an offense.7 2. ANALYSIS The jury convicted Webb of assisting in causing a prison riot, contrary to MCL 752.542a, which provides: A person shall not willfully instigate, cause, attempt to cause, assist in causing, or conspire to cause a riot at a state correctional facility. As used in this section, "riot at a state correctional facility" means 3 or more persons, acting in concert, who intentionally or recklessly engage in violent conduct within a state correctional facility that threatens the security of the state correctional facility or threatens the safety or authority of persons responsible for maintaining the security of the state correctional facility.[8] The disjunctive term "or" in the statute allows for conviction based on any one theory stated in the statute.9 Here, Webb was charged with willfully assisting in causing a riot at the facility and the jury convicted him based on this theory. The jury also convicted Webb of two counts of assault of a prison employee. To establish that charge, the prosecution was required to prove: (1) that defendant was lawfully imprisoned in a place of confinement, (2) that he used violence, threats of violence, or dangerous weapons to assault an employee or other custodian of the place of confinement, and (3) that he knew the person to be an employee or custodian of the place of confinement.10 We find no merit to Webb's argument that the evidence was insufficient to support his convictions. Several corrections officers testified regarding his involvement in both inciting the riot and assaulting corrections officers Roberts and Ahola. Sergeant Kurt Zazeski testified that he observed that Webb and fellow inmates were very angry and trying to incite 15 to 20 other inmates to attack the corrections officers. Webb told Sergeant Zazeski that they were going to "kick [his] ass" and that Webb had burnt the place down before and would do it again. Sergeant Zazeski heard Woods say, "Let's rush them. They

People v Sherman-Huffman, 466 Mich 39, 40-41; 642 NW2d 339 (2002); People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000).
6 7 8 9

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Nowack, 462 Mich at 400. Id. Emphasis added. See People v Hyde, 285 Mich App 428, 448; 775 NW2d 833 (2009). MCL 750.197c(1); People v Odom, 276 Mich App 407, 418; 740 NW2d 557 (2007).

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can't get us all." Webb stepped forward, but another inmate grabbed him and said, "Not now. We'll get them later." Webb tried to pull away and spun out of his jacket. Webb threw his jacket at Sergeant Zazeski's feet and told him that he would be the first to die. Sergeant Zazeski also testified that Webb was a leader of the disturbance. Officer Leonard Janssen also recalled that Webb and another inmate were very upset after the altercation between Lundy and Mason. Officer Leonard Janssen heard some of Webb's threats after the Mason-Lundy altercation and heard Webb attempting to convince other inmates to back him up. Webb told Officer Janssen that if there was any bloodshed between Mason and Lundy, "there was going to be a lot of gray shirts that were going to get hurt." Officer Marc Pangrazzi also observed Webb attempt to rally the other inmates to burn down the facility and start a riot. According to Officer Mark Mazanec, video footage of the riot depicted Webb raising his arm and striking Officer Roberts. The video further showed Webb pick up a "wet floor" sign, raise it above his head, and swing it in front of him. Officer Ahola was struck with a "wet floor" sign and Webb was identified as the inmate who had struck him with the sign. Officer Stephen Peterson was involved in identifying security threat groups. From his experience with security threat groups, Officer Peterson determined that Webb was one of the main characters in the riot. Although Webb speculates that certain video footage that was disposed of before trial would have been exculpatory, nothing in the record supports this contention. The evidence supported that Webb willfully instigated, attempted to cause, and assisted in causing the riot.11 Moreover, the evidence supported that Webb, an Ojibway inmate, used violence to assault Ojibway corrections officers Roberts and Ahola.12 Thus, viewing the evidence in the light most favorable to the prosecution, we conclude that a rational fact-finder could have concluded that the prosecution proved every element of the crime charged beyond a reasonable doubt. B. GREAT WEIGHT OF THE EVIDENCE 1. STANDARD OF REVIEW Webb argues that his convictions are against the great weight of the evidence. Because he failed to preserve this issue for appellate review by raising it in a motion for a new trial in the trial court, our review is limited to plain error affecting his substantial rights.13 Reversal is warranted only if the error resulted in conviction despite Webb's actual innocence or if it

11 12 13

See MCL 752.542a. See MCL 750.197c(1); Odom, 276 Mich App at 418.

People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003).

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seriously affected the fairness, integrity, or public reputation of judicial proceedings, independent of his innocence.14 2. ANALYSIS A verdict is against the great weight of the evidence if the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow it to stand.15 For the same reasons previously discussed regarding Webb's sufficiency of the evidence claim, the verdict was not against the great weight of the evidence. The evidence showed that Webb incited other inmates to riot, participated in the riot, and personally assaulted Officer Roberts and Officer Ahola. Thus, Webb has failed to establish a plain error affecting his substantial rights. C. JURY INSTRUCTIONS 1. STANDARD OF REVIEW Webb argues that the trial court's instruction regarding MCL 752.542a did not fairly present the issues to be tried because it improperly allowed conviction based on mere participation in the riot. We review de novo claims of instructional error.16 2. ANALYSIS Generally, jury instructions must fairly present the issues to be tried and sufficiently protect a defendant's rights.17 The instructions must include all elements of the charged offenses and must not exclude relevant issues, defenses, and theories if supported by the evidence.18 "If the jury instructions, taken as a whole, sufficiently protect a defendant's rights, reversal is not required."19 Jury instructions must interpret statutory language according to its plain terms.20 The plain language of MCL 752.542a states that "[a] person shall not willfully instigate, cause, attempt to cause, assist in causing, or conspire to cause a riot at a state correctional facility." As we stated previously, the disjunctive term, "or," allows for conviction based on any one theory stated in the statute.21 One such theory is willfully assisting in causing a riot, and the trial court

14 15 16 17 18 19 20 21

Carines, 460 Mich at 763. Musser, 259 Mich App at 218-219. People v Fennell, 260 Mich App 261, 264; 677 NW2d 66 (2004). People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005). People v Huffman, 266 Mich App 354, 371-372; 702 NW2d 621 (2005). People v Shakur, 280 Mich App 203, 210; 760 NW2d 272 (2008). Hyde, 285 Mich App at 448.

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properly instructed the jury in accordance with this theory using the statutory language.22 Contrary to Webb's argument, the trial court did not instruct the jury that a defendant's mere participation in a riot is sufficient for conviction under MCL 752.542a. Accordingly, we conclude that the trial court's jury instruction fairly presented the issues to be tried. D. SEVERANCE OF TRIALS 1. STANDARD OF REVIEW Webb argues that the trial court erred by denying his motion for separate trials. We review for an abuse of discretion a trial court's decision on a motion to sever the trials of multiple defendants.23 A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes.24 2. ANALYSIS MCR 6.121(C) provides: On a defendant's motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant. "Severance is mandated under MCR 6.121(C) only when a defendant provides the court with a supporting affidavit, or makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will be prejudiced and that severance is the necessary means of rectifying the potential prejudice."25 Absent such a showing or an indication that the requisite prejudice actually occurred at trial, this Court should affirm a trial court's decision denying a motion for severance.26 The Michigan Supreme Court has further recognized that "severance should be granted `only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.'"27 In other words, a defendant must show that the magnitude of the

See People v Maynor, 470 Mich 289, 295-296; 683 NW2d 565 (2004) (stating that a trial court's use of the statutory language in instructing the jury is proper).
23 24 25 26 27

22

People v Hana, 447 Mich 325, 346; 524 NW2d 682 (1994), amended 447 Mich 1203 (1994). People v Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006). Hana, 447 Mich at 346. Id. at 346-347.

Id. at 359-360, quoting Zafiro v United States, 506 US 534, 539; 113 S Ct 933; 122 L Ed 2d 317 (1993).

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prejudice denied him a fair trial.28 Prejudice requiring reversal exists when one of the defendant's substantive rights, such as the right to present an individual defense, is violated.29 Webb contends that he was prejudiced by the joinder of his trial to Walton's because the evidence against him was slim, while the evidence against Walton was strong and incriminating, and included graphic photographs of the injuries that Walton caused. However, as we previously discussed, the evidence against Webb was not slim and was more than sufficient to support his convictions. Moreover, Webb has not shown that the evidence against Walton tainted the jury and prejudiced Webb's substantial rights as required under MCR 6.121(C). Although Webb contends that the testimony and "bloody pictures" established Walton's guilt regarding the prison riot charge and showed that he assaulted Sergeant Steven Buda, Lieutenant Joseph Basso, and Sergeant Roberta Hemming, the jury acquitted Walton of assaulting Lieutenant Basso and Sergeant Hemming. Thus, the jury apparently did not deem the evidence overly prejudicial to Walton, let alone Webb. The record shows that the jury was able to independently evaluate each charge. There is no basis for concluding that joinder prevented the jury from making a reliable judgment about guilt or innocence.30 Thus, in the absence of a showing that prejudice actually occurred at trial, we affirm the trial court's decision denying Webb's motion for severance. E. SENTENCING 1. STANDARD OF REVIEW Webb argues that he is entitled to resentencing because the trial court misscored offense variables (OVs) 1,31 3,32 9,33 14,34 and 19.35 A defendant may preserve an objection to the scoring of an offense variable by objecting to the scoring at sentencing or challenging the scoring in a proper motion for resentencing or a proper motion to remand.36 Webb preserved his objections to the scoring of OVs 1, 3, and 14 by objecting to the scoring of these variables at sentencing. But because Webb failed to challenge the scoring of OVs 937 and 19 at sentencing,

28 29 30 31 32 33 34 35 36

Id. at 360. Id. See id. at 359-360. MCL 777.31. MCL 777.33. MCL 777.39. MCL 777.44. MCL 777.49. MCL 769.34(10); People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006).

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in a motion for resentencing, or in a motion to remand filed with this Court, he did not preserve his arguments regarding those variables for appellate review.38 This Court reviews for clear error a trial court's factual findings at sentencing.39 The proper application of the statutory sentencing guidelines presents a question of law that this Court reviews de novo.40 A sentencing court has discretion in determining the number of points to score for each variable, provided that record evidence adequately supports a given score.41 "Scoring decisions for which there is any evidence in support will be upheld."42 This Court reviews unpreserved scoring challenges for plain error affecting substantial rights.43 2. OV 1 AND OV 3 Webb argues that the trial court erred by scoring 25 points each for OV 1 and OV 3. A trial court should score 25 points for OV 1 if "a victim was cut or stabbed with a knife or other cutting or stabbing weapon[.]"44 OV 1 further provides that "[i]n multiple offender cases, if 1 offender is assessed points for the presence or use of a weapon, all offenders shall be assessed the same number of points."45 A trial court should also score 25 points for OV 3 if a victim suffered "[l]ife threatening or permanent incapacitating injury[.]"46 Like OV 1, OV 3 also provides that "[i]n multiple offender cases, if 1 offender is assessed points for death or physical injury, all offenders shall be assessed the same number of points."47 For logistical reasons, the prosecution chose to prosecute the inmates involved in the riot in groups. Some of the inmates, who entered guilty pleas, were not assessed points for OV 1. Other inmates, like Jerry Johnson, were convicted. But it was not until Johnson's sentencing that the prosecution argued that points should be scored for OV 1 because a stabbing weapon was used, which caused life threatening injury. The trial court agreed and assessed Johnson 25 points for OV 1.
(...continued)

Although Webb's counsel discussed OV 9 at sentencing, he did not argue that it was improperly scored. Rather, he sought a list of names of all of the corrections officers who were injured during the riot. Thus, he did not raise at sentencing the issue that he now asserts on appeal with respect to the scoring of OV 9.
38 39 40 41 42 43 44 45 46 47

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People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004). People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005). People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001). Endres, 269 Mich App at 417. Id. Kimble, 470 Mich at 312. MCL 777.31(1)(a). MCL 777.31(2)(b). MCL 777.33(1)(c). MCL 777.33(2)(a).

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Webb argues that he was erroneously assessed 25 points for OV 1 and OV 3 because the inmates sentenced before Johnson were assessed zero points for those variables, and the instructions require that the same number of points be assessed in multiple offender cases. We conclude that Webb was properly assessed 25 points for OV 1 and OV 3 based on the prosecutor's concession that the scores for these variables assessed to the previously sentenced inmates were erroneous. In People v Morson,48 two codefendants, Morson and Northington, were involved in an armed robbery. As Northington fled after stealing the female victim's purse, she shot a man who was attempting to recover the purse.49 Northington was assessed 15 points for OV 1 and zero points for OV 3.50 At Morson's sentencing, she argued that she should be assessed the same number of points for these variables because the statutory language required the trial court to score the same number of points.51 The trial court, however, assessed Morson 25 points for each variable.52 The Michigan Supreme Court held that the plain language of OVs 1 and 3 required that Morson be assessed the same number of points that were scored for Northington.53 The Court stated, however, "[w]hile we agree that the sentencing court should not be bound to apply an erroneous score in the multiple offender context, we note that the prosecution does not characterize . . . Northington's scores on OV 1 and OV 3 of her armed robbery conviction as inaccurate or erroneous."54 The Court again emphasized that the prosecution did not dispute Northington's scores and did not argue that her scores were erroneous.55 The Court held that "in the absence of any clear argument that the scores assessed to Northington under OV 1 and OV 3 were incorrect, the sentencing court should have assessed [Morson] the same number of points that were assessed to Northington for OV 1 and OV 3[.]"56 Here, the prosecution argued at sentencing that the inmates who were sentenced before Johnson were erroneously assessed zero points for OVs 1 and 3. Thus, this case is distinguishable from Morson. Moreover, it is undisputed that Lieutenant Basso suffered a lifethreatening or permanently incapacitating injury during the riot when he was stabbed with a "sticker." He suffered a two-inch deep stab wound along the side of his spine in the back of his neck. These facts support the trial court's 25-point score for OV 1 and OV 3.

48 49 50 51 52 53 54 55 56

People v Morson, 471 Mich 248, 251; 685 NW2d 203 (2004). Id. at 253. Id. Id. at 253-254. Id. at 254. Id. at 259. Id. Id. at 260-261.

Id. at 261. See also People v Libbett, 251 Mich App 353, 367; 650 NW2d 407 (2002) (holding that OV 1 does not require a sentencing court to assess the same erroneous score for a subsequently sentenced defendant in a multiple offender case).

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3. OV 9 Webb argues that the trial court erred by scoring 25 points for OV 9. A trial court should score 25 points for OV 9 if "10 or more victims . . . were placed in danger of physical injury or death[.]"57 Webb argues that a trial court may not consider conduct beyond the sentencing offense in scoring OV 9 and that no evidence showed that he personally placed 10 or more people in danger. Webb relies on People v McGraw,58 which held that "[o]ffense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute specifically provides otherwise." We conclude that OV 9 was properly scored. The jury convicted Webb of assisting in causing a prison riot, which requires that "3 or more persons, acting in concert," "intentionally or recklessly engage in violent conduct" "that threatens the security of the state correctional facility or threatens the safety or authority of persons responsible for maintaining the security of the state correctional facility."59 Because the language of the statute required the trial court to consider the conduct of Webb and at least two other individuals involved in the riot, the statutory language necessarily encompassed the conduct of the other inmates. Therefore, the trial court did not consider conduct beyond the sentencing offense.60 Because the conduct of Webb and other inmates placed 10 or more people in danger of injury, the trial court properly scored OV 9 at 25 points. 4. OV 14 Webb argues that the trial court erroneously scored 10 points for OV 14. A trial court should score 10 points for OV 14 if "[t]he offender was a leader in a multiple offender situation[.]"61 Webb contends that the record fails to show that he assumed a leadership role. Contrary to Webb's argument, there was testimony that Webb incited his fellow prisoners to riot. He also threatened to kill Sergeant Zazeski. According to Sergeant Zazeski, Webb and Woods were very vocal among a "mass" of inmates and were "trying to beef them up pretty good[.]" Webb was overheard trying to rally a group of inmates to riot and burn down the facility. Because MCL 777.44(2)(a) directs that "[t]he entire criminal transaction should be considered when scoring" OV 14, the evidence supported the trial court's score of 10 points for OV 14. 5. OV 19 Webb argues that 25 points were erroneously scored for OV 19. A trial court should score 10 points for OV 19 if "[t]he offender by his or her conduct threatened the security of a

57 58 59 60 61

MCL 777.39(1)(b). People v McGraw, 484 Mich 120, 135; 771 NW2d 655 (2009). MCL 752.542a. McGraw, 484 Mich at 135. MCL 777.44(1)(a).

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penal institution or court[.]"62 Webb argues that the behavior for which points are scored under OV 19 is inherent in his sentencing offense and that, if points are scored for this variable, they would be scored every time a person is convicted for participating in a prison riot. A similar argument was rejected in People v Houston,63 in which the Court held that sentencing courts should look to the plain statutory language in determining the number of points to be scored for each variable. The Court recognized that if the Legislature had intended to preclude the scoring of points in certain circumstances, it could have done so.64 For example, the Court noted that in MCL 777.33(2)(b), the Legislature precluded the scoring of 100 points for OV 3 if death is an element of the sentencing offense.65 OV 19 does not contain such a preclusion if the sentencing offense is assisting in causing a prison riot. Thus, the clear statutory language required the trial court to score 25 points for OV 19. III. DOCKET NO. 291147 (DEFENDANT WALTON) A. DOUBLE JEOPARDY 1. STANDARD OF REVIEW Defendant Walton argues that his convictions should be reversed and the charges against him dismissed because his state and federal protections against double jeopardy barred his second trial. "A double jeopardy challenge presents a question of constitutional law that this Court reviews de novo."66 2. ANALYSIS "The United States and Michigan Constitutions protect a person from being twice placed in jeopardy for the same offense."67 Because the protection against double jeopardy attaches when a jury is selected and sworn, the Double Jeopardy Clause protects a defendant's interest in avoiding multiple prosecutions even when there is no determination of guilt or innocence.68 Double jeopardy is implicated when a trial court declares a mistrial before a verdict is reached.69 "However, the general rule permitting the prosecution only one opportunity to obtain a conviction must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments."70 If a trial concludes prematurely, retrial is not barred if the defendant

62 63 64 65 66 67 68 69 70

MCL 777.49(a). People v Houston, 473 Mich 399, 409-410; 702 NW2d 530 (2005). Id. at 410. Id. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). Id. at 574, citing US Const, Am V and Const 1963, art 1,

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