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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v ZACHARIAH DANIEL-JOSEPH CRAWFORD, Defendant-Appellee.

UNPUBLISHED December 15, 2009

No. 287482 Saginaw Circuit Court LC No. 08-030594-FC

Before: Gleicher, P.J., and Fitzgerald and Wilder, JJ. PER CURIAM. Defendant appeals by right his jury convictions of assault with intent to rob while armed, MCL 750.89, conspiracy, MCL 750.157a, and felonious assault, MCL 750.82. We affirm. The instant case involved alleged assaults on then 82-year-old James Erwin as he walked home. According to Erwin, defendant and his co-defendant Samantha Goff, both armed, approached Erwin three times as he walked home, demanded his money, and forcefully attempted to take it, albeit unsuccessfully. Defendant maintained that he and Goff approached Erwin only once, to ask Erwin to give defendant the money Erwin had promised to pay defendant's mother, Amy Spiller. Defendant denied attacking Erwin, and claimed that Erwin attacked him. Defendant first argues that the trial court erred in not sua sponte reading CJI2d 7.5 given defendant's "claim of right" theory that he was entitled to collect money from Erwin for Spiller. Defendant failed to preserve this issue for appeal because he did not specifically request this instruction. People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19 (2000). We review this issue for plain error affecting defendant's substantial rights and will not reverse unless defendant was actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. People v Carines, 460 Mich 750, 763764; 597 NW2d 130 (1999). Defendant also argues that defense counsel rendered ineffective assistance by failing to request the jury instruction regarding defendant's "claim of right" defense. Because no Ginther1

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People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

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hearing was held, our review of defendant's claim is limited to mistakes apparent on the record. People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005); People v Williams, 223 Mich App 409, 414; 566 NW2d 649 (1997). "The elements of assault with intent to rob while armed are: (1) an assault with force and violence; (2) an intent to rob or steal; and (3) the defendant's being armed. Because this is a specific intent crime, there must be evidence that the defendant intended to rob or steal." People v Cotton, 191 Mich App 377, 391; 478 NW2d 681 (1991). Consequently, if a defendant acts under a claim of right to the property taken, the element of intent to rob or steal is lacking. People v Pohl, 202 Mich App 203, 205; 507 NW2d 819 (1993).2 A claim of right defense is viable when the defendant had a good faith belief that he or she had a legal right to take the property at issue. People v Cain, 238 Mich App. 95, 118-119; 605 NW2d 28 (1999). The defense applies even if the defendant's belief is mistaken or unreasonable. Id. "It is necessary, however, in all cases that the claim of right be a bona fide one and not a mere cover for a felonious taking. The taker's claim of right must be something more than a vague impression, it must amount to an honest conviction." People v Karasek, 63 Mich App 706, 713; 234 NW2d 761 (1975), quoting 52A CJS, Larceny,

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