People of Michigan v. Nathan Gentry

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 28, 2016
Plaintiff-Appellee,
V No. 326228
Ingham Circuit Court
NATHAN GENTRY, LC No. 13-000137-FC

Defendant-Appellant.

Before: SAWYER, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of assault with intent to commit murder,
MCL 750.83, carrying a concealed weapon (CCW), MCL 750.227(2), and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court
sentenced defendant to serve terms of imprisonment of 225 to 335 months for the assault
conviction, 23 to 60 months for the CCW conviction, and two years for the felony-firearm
conviction. The latter is consecutive to the assault sentence, but otherwise the sentences run
concurrently. Defendant appeals as of right. We affirm defendant’s convictions, but remand the
case to the trial court for a determination of whether resentencing is required pursuant to People
v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), and United States v Crosby, 397 F3d 103
(CA 2, 2005).

I. FACTS

This case arises from a shooting that occurred in Lansing during the early morning hours
of December 30, 2012. The prosecution presented evidence that, shortly after midnight,
defendant engaged a woman working as a prostitute (hereafter N.V.) to provide oral sex for him
and then demanded further sexual service which N.V. refused, causing defendant to become
enraged, threaten N.V.’s life, briefly leave the scene to retrieve a gun, and then to shoot several
times at N.V.’s boyfriend and protector.

A resident of the house toward which the boyfriend ran for cover testified that he and his
wife were watching television at the time, that both went to the floor upon hearing shots, and that
afterward there was a bullet hole in the side of his house at “head level” that had not been there
before. A police investigator testified that he had hoped to recover the spent bullet, but aborted

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that effort when it became apparent that the bullet had entered the house at an angle that made it
impractical to locate.

II. GUIDELINES SCORING

Defendant argues that the trial court misscored offense variables (OVs) 6, 9, 10, and 19
when calculating the recommended range for his minimum sentence under the sentencing
guidelines. Defendant preserved appellate objections in connection with OVs 6, 9, and 10 by
way of a proper motion in this Court to remand for resentencing.1 See MCL 769.34(10); MCR
6.429(C). However, defendant’s argument in connection with OV 19 is not preserved.

“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id. However, where an
unpreserved claim of a guidelines scoring error, if vindicated, would cause the minimum
sentence imposed to fall outside the corrected range, the issue is subject to review for plain error
affecting substantial rights. People v Kimble, 470 Mich 305, 311-313; 684 NW2d 669 (2004).

A. OV 6

The offender’s intent to kill or injure is scored under OV 6. MCL 777.36(1). The trial
court assessed 50 points, which subsection (1)(a) prescribes where the offender acted with the
premeditated intent to kill.

The evidence included N.V.’s testimony that defendant became enraged, threatened to
kill her, and announced that he was going for his gun, along with her boyfriend’s testimony that
he and the assailant exchanged looks and gestures and that the assailant drove away briefly
before returning, approaching him, and shooting at him several times. That evidence well
supported the trial court’s conclusion that defendant had time to give the matter a second look
before he elected to discharge his lethal firearm several times at his victim, see People v
Marsack, 231 Mich App 364, 370-371; 586 NW2d 234 (1998), and thus its conclusion that
defendant acted with the premeditated intent to kill for purposes of assessing 50 points for OV 6.

B. OV 9

OV 9 concerns the number of victims. The trial court assessed 10 points, which is
appropriate where “[t]here were 2 to 9 victims who were placed in danger of physical injury or
death . . . .” MCL 777.39(1)(c). “[O]ffense variable . . . 9 in the sentencing guidelines cannot be
scored using uncharged acts that did not occur during the same criminal transaction as the

1
People v Gentry, unpublished order of the Court of Appeals, entered July 24, 2015 (Docket No.
326228).

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sentencing offense.” People v McGraw, 484 Mich 120, 121-122; 771 NW2d 655 (2013)
(parenthetical and citation omitted).

Defendant emphasizes that the testimony indicated that he shot at N.V.’s boyfriend, but
not at N.V. herself. Defendant also points out that the home-dweller described hearing gunshots
and something “smack[] the side of the house,” but that the police recovered no attendant bullet.
We need not determine whether N.V. might be considered a victim for this purpose, because we
conclude that the two home-dwellers who felt obliged to take cover on the floor themselves put
the number of victims up to three.

The home-dweller testified that the street where the shooting was taking place was
immediately to his left, and defendant’s presentence investigation report (PSIR) indicated that
the bullet hole “consistent with the shooting” that the police discovered was near a center
window. That no bullets were actually recovered from the house’s physical structure or curtilage
negates neither the resident’s account of the threats he and his wife experienced, nor the
inference that the hole resulted from defendant’s shooting rampage, with its location indicating
that one of the shots narrowly missed a window through which it could have entered the room
where the two were watching television. Because the latter two thus joined the actual target of
the shooting as victims in the matter, the trial court properly scored OV 9 at 10 points.

C. OV 10

The trial court assessed defendant 15 points for OV 10, which concerns exploitation of a
vulnerable victim. This is the total prescribed where the offender engaged in predatory conduct,
MCL 777.40(1)(a), which is defined as “preoffense conduct directed at a victim for the primary
purpose of victimization,” MCL 777.40(3)(a). We find it unnecessary to address defendant’s
challenge of OV 10, given that there was no clear error in the scoring of OVs 6 and 9, as held
above, that there was no clear error in the scoring of OV 19, as we shall discuss momentarily,
and that, assuming error in the scoring of OV 10, the reduction of 15 points with respect to
defendant’s total OV score would not alter his placement at OV level VI in the class A grid.
MCL 777.62; People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring
error does not alter the appropriate guidelines range, resentencing is not required.”).2

D. OV 19

The trial court assessed defendant 10 points for OV 19, which MCL 777.49(c) prescribes
where the offender “interfered with or attempted to interfere with the administration of justice.”
In briefing the matter the parties both indicate that the basis for the scoring of this variable was
defendant’s alleged attempt to persuade certain family members to conceal evidence related to

2
Although we are remanding the case for Crosby proceedings pursuant to Lockridge, if
resentencing ultimately does indeed take place, the point assessment for OV 10 would remain
inconsequential, considering that defendant would still be at OV level VI regardless of the
scoring of OV 10.

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the case, as revealed in surveillance recordings of conversations defendant had with family
members while incarcerated.3 At sentencing the prosecuting attorney reminded the court that
defendant “involved his family, otherwise law abiding citizens, called them up, mom, dad, and
sister asking them to assist in hiding the gun.” Defendant’s PSIR in turn indicated that, “[w]hile
incarcerated at the Ingham County jail, it was alleged that [defendant] contacted his mother and
they conspired to tamper with evidence regarding these crimes,” but “[h]e was not charged with
a crime for these allegations.” Regardless of whether defendant was charged with any crime
related to his communications with family members, the evidence was more than adequate to
support the trial court’s conclusion that defendant attempted to interfere with the administration
of justice by trying to tamper with evidence by way of his family members.

In sum, resentencing is not warranted relative to whether the trial court clearly erred in
finding that there existed a preponderance of evidence supporting the assessment of points for
the challenged OVs.

III. EXTRANEOUS SENTENCING CONSIDERATIONS

Defendant argues that the trial court relied on extraneous considerations when imposing
sentence, asserting that the court revealed such error in the following comments from the bench:
We had 12 astute jurors. . . . I heard the testimony and the evidence as did
they, and we had a unanimous verdict on three counts, the largest one being
assault with intent to commit murder and a lack of regard for a woman.

Women are not Barbie dolls when you can pop off their heads and spread
their legs and take the legs off and put them back without harm. Women are not
plastic gals without feeling. You don’t know that, sir, because you wouldn’t have
been in the car when you have a fiance’ [sic] with a baby.

* * *

[If] you have a regard for a woman, you don’t go to a strange woman.
You take a woman out on a date. You buy her a meal. You send her flowers.
You get to know her. I don’t care when it was, sir. You don’t go in a dark street,
in a dark alley, and have a sexual anything with a woman or a man, for that
matter. Respect each other. Respect your own body. Because this is what
happens. . . .

As I listened to the victims and how traumatized they are for the rest of
their lives and what you did, and we like it to have a civilized community in
Lansing, Michigan. This crime spree has to stop with everyone. No guns, no
prostitution, no firing bullets in the air, no treating women like Barbie dolls that
we can break apart and put back together, because life doesn’t work that way, sir.

3
The propriety of admitting those recordings into evidence is discussed in part VII below.

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 Defendant points out that while the court was obviously expressing indignation over how
he treated N.V. that night, it was her boyfriend who was in fact the victim of the shooting attack.
Defendant further protests that he is responsible for only his own conduct, not for the general
crime problem in Lansing. We find that the trial court did not actually add time to the minimum
sentence imposed in connection with the comments at issue. Rather, viewed in context, it is
apparent that the court was in fact lapsing into a conversational mode, responding to defendant’s
having done the same while pleading for mercy or leniency.

In particular, defendant expressed remorse, insisted that he never intended to hurt anyone,
and asserted that he had changed “drastically” since the night of the crime. Defendant
additionally expressed concerns regarding his relationships with, respectively, his fiancée, his
young son, and his father. The trial court then offered the statements set forth above in response
to defendant’s entreaties. Although the trial court was responding to defendant’s personal
statements, we do believe that the court did go overboard with its remarks, but, again, the court
clearly did not add time to the sentence on the basis of its commentary. No error is apparent.
IV. JUDICIAL FACT-FINDING

Defendant next argues that the trial court engaged in unconstitutional judicial fact-finding
in assessing the OVs for purposes of establishing the minimum sentence range and imposing
sentence. Defendant did not raise this issue below; therefore, “our review is for plain error
affecting substantial rights.” Lockridge, 498 Mich at 392. In Lockridge, our Supreme Court
held:

Because Michigan's sentencing guidelines scheme allows judges to find by
a preponderance of the evidence facts that are then used to compel an increase in
the mandatory minimum punishment a defendant receives, it violates the Sixth
Amendment to the United States Constitution . . . . To remedy the constitutional
flaw in the guidelines, we hold that they are advisory only.

To make a threshold showing of plain error that could require
resentencing, a defendant must demonstrate that his or her OV level was
calculated using facts beyond those found by the jury or admitted by the
defendant and that a corresponding reduction in the defendant's OV score to
account for the error would change the applicable guidelines minimum sentence
range. If a defendant makes that threshold showing and was not sentenced to an
upward departure sentence, he or she is entitled to a remand for [sic] the trial
court for that court to determine whether plain error occurred, i.e., whether the
court would have imposed the same sentence absent the unconstitutional
constraint on its discretion.[4] If the trial court determines that it would not have

4
The Court referred to such remands as “Crosby remands” after the procedures outlined in
Crosby, 397 F3d 103. Lockridge, 498 Mich at 395-399. “Crosby remands are warranted only in
cases involving sentences imposed on or before July 29, 2015 . . . .” Id. at 397. Defendant here
was sentenced before July 29, 2015.

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 imposed the same sentence but for the constraint, it must resentence the
defendant. [Id. at 399.]

A review of the record in this case reveals that the trial court relied on facts beyond those
admitted by defendant or found by the jury relative to multiple OVs, which OVs, if not
considered or assessed, would reduce defendant’s total OV score by an amount sufficient to
lower the guidelines minimum sentence range. MCL 777.62. Accordingly, defendant is entitled
to a Crosby remand.

V. FAILURE TO INVESTIGATE OR DISCLOSE EVIDENCE

Defendant argues that he was denied a fair trial by failures on the part of the police or
prosecution to investigate or disclose evidence. This issue was not raised below. Accordingly,
our review is for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999).

In arguing this issue, defendant sets forth the elements for a Brady violation, as if that is
the theory underlying this issue, but then makes no effort to show how those elements were
satisfied in this instance.5 Defendant additionally cites authority for the proposition that a trial
court may properly dismiss a criminal case over an egregious discovery violation, but then
alleges no discovery violation in this case.6 Instead, defendant complains generally about the
failure to retrieve a bullet from the bullet hole discovered in the nearby house after the shooting.

However, defendant does not state how his defense was placed at any disadvantage for
want of such a specimen. Further, a police investigator explained that he “cut back a little bit of
the plastic or vinyl siding that was on the outside of the house,” and then cut “some wood siding
underneath” in an attempt to “dig out” the bullet, but “the bullet appeared to have gone into an
angle in the house,” which prevented him from locating it. The investigator elaborated that the
bullet “was not fired from perpendicular to the house,” and thus lodged in such a way that it
could not be located.

5
Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), held that
“suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” To establish a Brady violation, a defendant must show
that: (1) the state possessed evidence of exculpatory or impeachment value to the defendant; (2)
the prosecution suppressed the evidence; and (3) the evidence, viewed in its totality, was
material, meaning that had the evidence been disclosed to the defense, a reasonable probability
exists that the result of the proceedings would have been different. People v Chenault, 495 Mich
142, 150-151; 845 NW2d 731 (2014).
6
In fact, defense counsel told the jury in his closing argument that the prosecution “has supplied
me with all of their evidence, statements, transcripts, DVDs, police reports, everything, and there
are no surprises.”

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 This record indicates no attempt by the prosecution or police to obscure evidence or
prevent its discovery or use by the defense. The police investigator’s testimony indicated a
good-faith effort to retrieve the bullet. “Absent a showing of suppression of evidence,
intentional misconduct, or bad faith, the prosecutor and the police are not required to test
evidence to accord a defendant due process.” People v Coy, 258 Mich App 1, 21; 669 NW2d
831 (2003). “Nor does due process require that the prosecution seek and find exculpatory
evidence,” “exhaust all scientific means at its disposal,” or “search for evidence to aid” the
defense. Id.

For these reasons, defendant’s argument that the police or prosecution failed in some duty
to discover or disclose evidence must fail.

VI. ADMISSION OF FIREARMS INTO EVIDENCE

Defendant argues that the trial court plainly erred in allowing the prosecutor to place in
evidence three revolvers seized from the household where defendant lived with his parents.
Defendant alternatively argues that defense counsel was ineffective for failing to raise an
objection in the matter.

Defendant’s mother had voluntarily produced those weapons for the police, before the
police returned to her home with a search warrant. All indications are that the three revolvers
were legally owned, securely stored, well maintained, and showed no indication of having
recently been discharged. Further, the shooting victim testified unequivocally that the handgun
used against him was a semiautomatic, not a revolver.

We agree that the three revolvers were of minimal relevance to the prosecution’s case.
MRE 401. However, we conclude that the record indicates that defense counsel had strategic
reasons for declining to object.

In cross-examining a police officer over those weapons, defense counsel elicited that
there was no effort to check the weapons for defendant’s fingerprints, or test them in connection
with ballistics, gun residue, or defendant’s clothing, hair, or skin. Then, in closing argument,
defense counsel reminded the jury that the guns found in the home of defendant and his parents
were legal “family pistols,” which the police did not think worthy of testing for fingerprints, and
that “the police didn’t fully do their job trying to exclude a suspect as well as include him.”
Defense counsel thus recognized an opportunity to suggest to the jury that the lack of testing left
defendant deprived of exculpatory evidence, or that the prosecution was satisfied to rest on a
shaky evidentiary foundation. Because a strategic reason for preferring to cross-examine and
argue over the prosecution’s reliance on the challenged evidence, rather than object to its
introduction, is readily apparent, defendant’s claim of ineffective assistance predicated on that
strategy must fail. See People v Henry, 239 Mich App 140, 146; 607 NW2d 767 (1999) (a
defendant pressing a claim of ineffective assistance of counsel must overcome a strong
presumption that counsel’s tactics were matters of sound trial strategy).

We additionally conclude that because the prosecution sought introduction of the
weapons in the first instance, and the defense sought to use that evidence to its own advantage,
the trial court did not plainly err in admitting the weapons into evidence. Moreover, assuming

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error and deficient performance by counsel, defendant has completely failed to establish any
prejudice flowing from the admission of the evidence. People v Carbin, 463 Mich 590, 600; 623
NW2d 884 (2001); Carines, 460 Mich at 763.

Defendant grafts onto his argument for this issue the assertions that defense counsel was
ineffective also for failing to object to the scoring of the sentencing guidelines variables
discussed in Part II above, and for arguing to the jury that he personally believed the shooting
victim’s testimony. However, in setting forth as one of his questions presented the claim that
defense counsel was ineffective, defendant based the claim on counsel’s performance in
connection with only the presentation of the firearms evidence discussed here. Those additional
arguments are thus beyond the scope of the question actually presented for decision. This Court
is not obliged to entertain arguments that are not germane to the issues set forth in the statement
of questions presented. See People v Albers, 258 Mich App 578, 584; 672 NW2d 336 (2003);
MCR 7.212(C)(5).7

VII. ADMISSION OF JAILHOUSE PHONE CALLS INTO EVIDENCE

At trial, excerpts of surveillance recordings of telephone conversations between
defendant and family members that took place while defendant was in jail were admitted into
evidence and played for the jury. Commenting on those recordings, a police officer stated that
use of the word “cookies” caught his attention, explaining “that the term cookies was basically a
euphemism for guns or firearms.” The officer additionally stated that references to “empty
things” likely described shell casings. The officer further confirmed that defendant spoke to his
sister about a knotted sock, and that a “jingling” sound picked up on the recording might have
been shell casings in that sock. The officer explained that hearing those phone conversations
induced him to obtain a search warrant, but that execution of the warrant in the presence of
defendant’s parents turned up no knotted sock, empty shell casings, or firearm other than the
three revolvers defendant’s parents had earlier and voluntarily produced.

Defendant argues that the trial court erred in admitting those recordings into evidence on
the grounds that the recordings were not properly authenticated and that the statements
composing them were inadmissible hearsay. These precise arguments were not raised below.
See People v Welch, 226 Mich App 461, 464; 574 NW2d 682 (1997) (to preserve an evidentiary
issue for appellate review, a party opposing the admission of evidence must object at trial and
specify the same ground for objection that it asserts on appeal). Again, unpreserved issues are
reviewed for plain error affecting substantial rights. See Carines, 460 Mich at 763.

7
They lack merit in any event. The initial failure to raise objections to the scoring of OVs 6, 9,
and 10 was cured by a proper motion in this Court to remand for that purpose, and there was no
error by the trial court with respect to the scoring of OV 19. Further, it is apparent from
counsel’s closing argument, viewed in context, that counsel was strategically encouraging the
jurors to believe the shooting victim, who could not identify defendant as the shooter, as part of
his campaign to persuade the jurors to disbelieve N.V., who did positively identify defendant.
See Henry, 239 Mich App at 146.

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 Concerning the issue of authenticity, defendant suggests that the statements on the tapes
attributed to him were not actually his statements, but rather those of some third party. The
argument is unpersuasive. A police officer testified that he recognized defendant’s voice on the
recordings, from having spoken with defendant earlier, and further stated that defendant’s
identity as the speaker was well documented because “[e]verything is logged and videotaped up
there as far as all the inmate’s actions and who they call and what they do.” In light of this
record, the trial court did not plainly err for not having sua sponte raised concerns regarding the
authenticity of the recordings. See MRE 901(b)(5) (voice identification) and (6) (authenticating
telephone conversations).

Defendant’s other unpreserved argument relating to the jailhouse phone calls involves
hearsay. Testimony describing a person’s out-of-court statements offered to prove the truth of
the matters asserted is generally inadmissible as hearsay, subject to several exemptions and
exceptions as provided by the rules of evidence. MRE 801-805. Again, defendant alleges that it
was in fact not his voice that was captured and presented in the recordings of jailhouse phone
calls, thus suggesting that the words attributed to him were actually those of some unknown third
party, and thus lay outside the exemption from the definition of hearsay for admissions by a
party opponent. See MRE 801(d)(2)(A). Because we find no merit in the challenge to the
authenticity of the recordings, we find no merit in the hearsay challenge predicated on that
challenge.

Defendant also argues that the statements of defendant’s family members may not be
considered statements of defendant for purposes of that exemption, which is a valid point to the
extent that no family member said something that might be attributed to defendant on the basis of
adoption, agency, or conspiracy. See MRE 801(d)(2)(B)-(E). But, again, hearsay is testimony
concerning an out-of-court statement that is offered for the truth of the matter asserted, MRE
801(c), and defendant sets forth no statement in the jailhouse recordings from a family member
that was actually asserting some matter at issue. Therefore, we conclude that the trial court did
not plainly err for having declined sua sponte to prevent or otherwise limit the presentation of the
jailhouse phone calls out of concerns relating to hearsay.

In his reply brief, defendant argues that the police officer’s testimony interpreting the
statements in the challenged recordings should not have been allowed for lack of proper
foundation. This argument is unavailing because this issue is framed as a challenge to the
admissibility of the jailhouse recordings, not the admissibility of that officer’s testimony. See
Albers, 258 Mich App at 584; MCR 7.212(C)(5). Further, an appellant may not raise a new issue
in a reply brief, but must confine the reply to “rebuttal of the arguments in the appellee’s or
cross-appellee’s brief.” MCR 7.212(G). Moreover, we find no basis for reversal on substantive
consideration of defendant’s lack-of-foundation argument.

VIII. SUFFICIENCY OR GREAT WEIGHT OF THE EVIDENCE

Defendant frames this issue in terms of the great weight of the evidence, but, in arguing
it, defendant digresses from challenging the great weight of the evidence to challenging its legal
sufficiency. Regardless, the evidence was sufficient to support the verdicts, and the verdicts
were not against the great weight of the evidence.

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 A. SUFFICIENCY

The elements of assault with intent to commit murder are “(1) an assault, (2) with an
actual intent to kill, (3) which, if successful, would make the killing murder.” People v Hoffman,
225 Mich App 103, 111; 570 NW2d 146 (1997). Defendant argues that the prosecution failed to
prove the specific intent element. We disagree.

We review de novo the issue regarding whether there was sufficient evidence to sustain a
conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the
sufficiency of the evidence, this Court must view the evidence, whether direct or circumstantial,
in a light most favorable to the prosecutor and determine whether a rational trier of fact could
find that the essential elements of the crime were proved beyond a reasonable doubt. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646
NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their
testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-
515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise
from such evidence can constitute satisfactory proof of the elements of the crime. Carines, 460
Mich at 757. The prosecution need not negate every reasonable theory of innocence, but need
only prove the elements of the crime in the face of whatever contradictory evidence is provided
by the defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all
conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619;
751 NW2d 57 (2008).

N.V. testified that defendant became enraged, repeatedly threatened her life, and
announced his intention to retrieve a gun for that purpose. That evidence raised a reasonable
inference that defendant formed the intent to kill in order to vent his rage, which remained with
him as his confrontation with N.V. gave way to a confrontation with her boyfriend, the eventual
shooting victim.

Further, “[a]n actor’s intent may be inferred from all of the facts and circumstances, and
because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is
sufficient.” People v Fetterley, 229 Mich App 511, 517-518; 583 NW2d 199 (1998) (citations
omitted). In this case, defendant protested at sentencing that he shot in the air, never intending to
endanger anyone. However, the victim’s description of his assailant’s firing several shots, and
hearing them strike the house toward which he was running, suggested that defendant was not
taking pains to discharge his handgun harmlessly, but instead did so in a manner consistent with
a desire to strike his victim. Similarly, the home-dweller’s testimony that a bullet hole appeared
in his house after the shooting incident, and that the hole was at “head level,” reasonably allowed
the inference that defendant shot not in the air, but rather within striking range of a standing or
running victim.

The evidence that defendant was angry, threatened to get a gun and kill N.V., and then
left the area only briefly before returning to confront her companion and fire several gunshots in
his direction and at body level, was sufficient to persuade a reasonable trier of fact that defendant
acted with the specific intent to kill.

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 B. GREAT WEIGHT

“The test to determine whether a verdict is against the great weight of the evidence is
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand.” People v Musser, 259 Mich App 215, 218-219; 673
NW2d 800 (2003) (citation omitted). Mere conflicting testimony and credibility concerns do not
suffice to grant a new trial; rather, exceptional circumstances must exist, such as where directly
contradictory testimony was so far impeached that it was deprived of all probative value, where
witness testimony was so inherently implausible that a reasonable juror could not believe it,
where testimony contradicted indisputable physical facts or defied physical realities, or where
the case was marked with unacceptable uncertainties and discrepancies. People v Lemmon, 456
Mich 625, 643-646; 576 NW2d 129 (1998). “[A]bsent exceptional circumstances, issues of
witness credibility are for the jury, and the trial court may not substitute its view of the
credibility ‘for the . . . jury determination thereof.’ ” Id. at 642, quoting Sloan v Kramer-Orloff
Co, 371 Mich 403, 411; 124 NW2d 255 (1963).

Arguing for an alternative view of the evidence, defendant first protests that the bullet
hole found in the house near the shooting lacked “any corroborative or scientific basis” to allow
the inference that the hole was in fact caused by a bullet, or at least by a bullet fired by defendant
at the time in question. But, again, the home-dweller’s testimony that the damage to his house
was not present before the shooting incident is itself good circumstantial evidence that the hole
resulted from the shooting. Further, as discussed in Part V above, a police investigator identified
what he thought was a bullet hole on the north side of the house, and expressed no doubt that the
bullet itself was still present. Accordingly, the evidence concerning the bullet hole was marked
by no uncertainty or discrepancy that would justify impugning the jury’s verdict. See Lemmon,
456 Mich at 644.

Defendant otherwise challenges the great weight of the evidence by urging an appellate
credibility determination. In this regard, defendant argues only that “the complainant . . . was
not seen by any of the witnesses at or near the scene or even running from the scene and . . . was
unreliable and incredible.” Defendant does not specify whether by “complainant” he was
referring to N.V. or the actual victim, her boyfriend. Either way, defendant does not elaborate on
why this Court should deem the testimony unreliable or incredible. N.V.’s testimony that
defendant became angry, threatened lethal violence, and repeatedly shot at her companion was
neither inherently implausible nor seriously impeached. Likewise, the boyfriend’s testimony
concerning how the assailant shifted his confrontational focus from N.V. to him and then shot at
him was not implausible or seriously impeached.

For these reasons, neither the testimony of either of those witnesses, nor the evidence
concerning the bullet hole, provided a basis for discounting the jury’s determination that
defendant acted with the specific intent to kill. In sum, there existed no exceptional
circumstances, and the evidence did not preponderate so heavily against the verdict that it would
be a miscarriage of justice to allow the verdict to stand.

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 IX. CONCLUSION

For the reasons stated, we affirm defendant’s convictions, but remand this case to the trial
court for Crosby proceedings consistent with the directives in Lockridge, 498 Mich 358.

Affirmed, but remanded for possible resentencing under Lockridge. We do not retain
jurisdiction.

/s/ David H. Sawyer
/s/ William B. Murphy
/s/ Amy Ronayne Krause

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