People of Michigan v. Michael Alan Latimer

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 21, 2019
Plaintiff-Appellee,

v No. 336692
Oakland Circuit Court
MICHAEL ALAN LATIMER, LC No. 2015-256955-FC

Defendant-Appellant.

Before: CAMERON, P.J., and RONAYNE KRAUSE and TUKEL, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of assault with intent to do great
bodily harm less than murder, MCL 750.84, and armed robbery, MCL 750.529.1 Defendant was
sentenced concurrently to 57 months to 10 years for the assault with intent to do great bodily
harm less than murder conviction and 32 to 99 years for the armed robbery conviction. Finding
no error, we affirm.

I. BASIC FACTS

This case arises from a series of breakings and entering of parked cars late at night by
defendant and his conspirators. The victim in the present case lived in a trailer park in Oakland
County. On November 17, 2015, the victim, per his usual schedule, left his home at 4:15 a.m.
for work. As the victim came out of his home and walked toward his car, he passed a car near
his neighbor’s home that he did not recognize. The victim did not see anyone in the car at that
time. As the victim walked down the sidewalk, he noticed the dome light on in his girlfriend’s
car. The victim approached his car, opened the driver’s side door, and looked inside. The victim

1
Defendant was charged with the crime of assault with intent to commit murder, in violation of
MCL 750.83. The jury found him guilty of the lesser-included offense of assault with intent to
do great bodily harm less than murder, MCL 750.84.

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immediately saw that at all of the paperwork that normally was within the glove box was
scattered all over the floorboards and the seats. The victim had not left his car in that condition,
so he knew that someone had broken into his car and his girlfriend’s car.

After seeing the disrepair inside of his car, the victim saw an individual walking. The
person the victm saw was later identified as Colin Feeney, defendant’s friend and codefendant.
From about 15 to 20 feet away, the victim asked Feeney, “Are you from around here? What are
you doing? You’ve been in my vehicles.” Feeney responded, “ F*** you old man,” and began
to run off.

After Feeney ran out of the victim’s sight, the victim walked to the side window of his
own home, knocked on it, and told his girlfriend to call the Sheriff’s Department because
someone had been in their cars. As he was inspecting the cars, the victim’s girlfriend told him
that she saw four people walking toward them. The victim told his girlfriend to go back inside.
From a distance of 50 to 60 feet, the victim heard defendant say multiple times “You’re going to
get stabbed mother f******.” The victim also saw Feeney pump his fists in the air and heard
him say, “It’s a good night to die tonight, b****.” Feeney repeated this statement several times
as he continued to walk towards the victim and throughout the fight which ensued.

Once defendant was close enough to the victim, the victim saw an object in defendant’s
hand, which the victim assumed to be a knife, but which in fact was a screwdriver that defendant
had stolen from a car. Rather than waiting to be attacked, the victim kicked defendant as hard as
he could. Defendant then lunged at the victim, stabbing him in the left part of his chest. All four
of the conspirators began attacking the victim, surrounding him, punching and kicking him, and
poking him in the eyes with fingers. The victim was bleeding heavily from his head.
Nevertheless, defendant attacked the victim with the screwdriver. The victim tried to get on his
feet but was unable to because, in his words, as he lay on the ground he was “totally exhausted,”
could not breathe, and was “choking on his own blood.” Defendant and the others continued to
kick the victim, while the group, including defendant, yelled, “Yeah, you deserve this mother
f******.”

After the victim heard police sirens, Feeney and the two girls ran to their car and got in,
while the victim tried to hold onto defendant’s foot until the police arrived. While the victim
was holding defendant, Feeney and the two girls jumped back out of the car “to kick [the victim]
before they left.” As the victim held onto defendant’s foot, defendant punched and kicked the
victim in the head and face, “wiggled out” of the victim’s hold, and jumped in the car. It was the
victim’s belief that at the time defendant and the others surrounded the victim, they were not
trying to get away or fight him but rather were trying to kill him.

Defendant testified at trial. In his testimony, defendant admitted that he and the three
other individuals went to the mobile home park where the victim lived to steal from cars, the idea
for which originated with defendant that night. Defendant testified that he went inside
approximately six or seven cars without the owners’ consent that night. Defendant took spare
change, a circular saw, a leaf blower, phone chargers, the screwdriver which he later used to stab
the victim, and a handbag full of “miscellaneous hand tools and stuff like that” from the various
cars.

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 Defendant testified that the victim was the aggressor. At some point, defendant related
that he heard yelling and ran toward where it originated, at which time he saw Feeney and the
victim. Defendant denied saying anything to the victim about being a “mother f******,” that he
did not want to kill the victim, and that he did not recall hearing anyone yelling to call the police.
Defendant stated that he did not hear Feeney say anything to the victim. It was defendant’s
testimony that the victim turned toward defendant, approached him, and kicked defendant in the
groin “for no reason.” Defendant testified that once the victim began attacking defendant,
defendant began trying to get away from the victim. Defendant stated that at some point, he
reached into his pocket and pulled out the screwdriver that he had stolen from one of the cars.
Defendant testified that he stabbed the victim in the back while the victim was on top of him, and
also stabbed the victim in the chest. Defendant stated that he stabbed the victim more than once
in order to “defend himself.” Other evidence at trial established that the victim was stabbed a
total of 14 times, and in his trial testimony, defendant stated that he was the only person who had
stabbed the victim. As a result of the attack, the victim suffered a punctured lung, a fractured rib,
and abrasions and contusions. The victim had a plastic canister in his shirt pocket in which he
carried his medications; that canister had a hole all the way through it as a result of defendant’s
stabbing with the screwdriver.

II. DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE AS TO ARMED ROBBERY

Defendant first argues that there was insufficient evidence to convict him of armed
robbery. Specifically, defendant contends that the confrontation between himself and the victim
was unrelated to defendant stealing property from cars in the mobile home park and his attempt
to leave the areas of those crimes. We disagree.

“A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo,
viewing the evidence in the light most favorable to the prosecution, to determine whether the
trier of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt.” People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014). “All
conflicts in the evidence must be resolved in favor of the prosecution, and circumstantial
evidence and all reasonable inferences drawn therefrom can constitute satisfactory proof of the
crime.” People v Solloway, 316 Mich App 174, 180-181; 891 NW2d 255 (2016) (citations
omitted). It is the role of the trier of fact to determine the weight of the evidence and the
credibility of the witnesses. People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014).

The armed robbery statute, MCL 750.529, provides in relevant part:

A person who engages in conduct proscribed under [MCL 750.530] and who in
the course of engaging in that conduct, possesses a dangerous weapon or an
article used or fashioned in a manner to lead any person present to reasonably
believe the article is a dangerous weapon, or who represents orally or otherwise
that he or she is in possession of a dangerous weapon, is guilty of a felony
punishable by imprisonment for life or for any term of years.

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MCL 750.530 in turn provides that “[a] person who, in the course of committing a larceny of any
money or other property that may be the subject of larceny, uses force or violence against any
person who is present, or who assaults or puts the person in fear, is guilty of a felony.” Thus,
MCL 750.530 defines what is commonly known as “robbery” as a larceny by force, while armed
robbery is a larceny by force during which a dangerous weapon is possessed. See People v
Williams, 288 Mich App 67, 71 n 2, 73; 792 NW2d 384 (2010). Michigan has “no statutory
definition of larceny, and all our statutes use it in its common law sense.” People v March, 499
Mich 389, 399-400; 886 NW2d 396 (2016) (quotation marks and citation omitted). The common
law definition of larceny is “(a) a trespassory taking and (b) the carrying away (c) of the personal
property (d) of another (e) with intent to steal that property.” Id. at 401. Importantly, for
purposes of the robbery statute, a defendant’s acts “in the course of committing a larceny” also
include those “taken in flight or attempted flight after the commission of the larceny, or in an
attempt to retain possession of the property.” MCL 750.530(2).

Here, the evidence, including defendant’s trial testimony, readily established that he
planned and committed the underlying larcenies, which consisted of entering into and stealing
items from various parked cars, including the victim’s car. For one or more of those larcenies to
constitute a robbery, the issue is whether defendant used “force and violence” against the victim.
MCL 750.530. We conclude that the evidence was sufficient to establish that defendant used
force and violence against the victim “in the course of committing a larceny.” The evidence
showed that defendant assaulted the victim during defendant’s attempted flight from the victim’s
parked car, in which defendant had committed larceny. Viewing the evidence in the light most
favorable to the prosecution, a reasonable jury could conclude that defendant committed an
armed robbery. Defendant possessed (and used) a dangerous weapon, a screwdriver, during and
after the thefts from numerous cars, including the victim’s car, and used the screwdriver to stab
the victim fourteen times in “attempted flight after the commission of the larceny,” MCL
750.530(2), as the victim tried to hold and restrain defendant pending arrival of the police.
Although defendant denied the victim’s allegations, stating that he stabbed and beat the victim
because the victim had attacked him, the jury certainly was free to credit the victim’s version of
events rather than defendant’s. See People v Unger, 278 Mich App 210, 228; 749 NW2d 272
(2008). Therefore, there was sufficient evidence to support the conviction for armed robbery.

B. APPLICATION OF OV 7

Defendant next argues that the trial court erred when it assessed 50 points for offense
variable (OV) 7 because defendant was “not engaged in conduct beyond what was necessary”
and he was not “trying to make [the victim’s] fear and anxiety any greater.” Specifically,
defendant asserts that OV 7 should have been scored at zero points because his actions were
taken in order to escape from the victim. We disagree.

“Under the sentencing guidelines, the trial court’s findings of fact are reviewed for clear
error and must be supported by a preponderance of the evidence.” People v McChester, 310
Mich App 354, 358; 873 NW2d 646 (2015), citing People v Hardy, 494 Mich 430, 438; 835
NW2d 340 (2013). “Clear error is present when the reviewing court is left with a definite and
firm conviction that an error occurred.” McChester, 310 Mich App at 358 (quotation marks and
citation omitted). “Whether the facts, as found, are adequate to satisfy the scoring conditions

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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.” Hardy, 494 Mich at 438.

MCL 777.37(1) provides, in relevant part:

(1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 by
determining which of the following apply and by assigning the number of points
attributable to the one that has the highest number of points:

(a) A victim was treated with sadism, torture, or excessive brutality or conduct
designed to substantially increase the fear and anxiety a victim suffered during the
offense . . . 50 points

(b) No victim was treated with sadism, torture, or excessive brutality or conduct
designed to substantially increase the fear and anxiety a victim suffered during the
offense . . . 0 points

“OV 7 is designed to respond to particularly heinous instances in which the criminal
acted to increase that fear by a substantial or considerable amount.” People v Glenn, 295 Mich
App 529, 536; 814 NW2d 686 (2012), rev’d on other grounds by Hardy, 494 Mich at 434.
“Although ‘all crimes against a person involve the infliction of a certain amount of fear and
anxiety,’ the trial court ‘may consider conduct inherent in a crime’ when scoring OV 7.” People
v Rosa, 322 Mich App 726, 743, 913 NW2d 392 (2018), citing Hardy, 494 Mich at 442.

“[A] defendant’s conduct does not have to be similarly egregious to sadism, torture, or
excessive brutality for OV 7 to be scored at 50 points, and [] absent an express statutory
prohibition, courts may consider circumstances inherently present in the crime when scoring OV
7.” Hardy, 494 Mich at 443 (quotation marks omitted). In determining whether a “defendant’s
conduct was designed to substantially increase fear, to assess points for OV 7,” a sentencing

court must first determine a baseline for the amount of fear and anxiety
experienced by a victim of the type of crime or crimes at issue. To make this
determination, a court should consider the severity of the crime, the elements of
the offense, and the different ways in which those elements can be satisfied. Then
the court should determine, to the extent practicable, the fear or anxiety associated
with the minimum conduct necessary to commit the offense. [Id. at 442-443.]

“[E]xcessive brutality means savagery or cruelty beyond even the ‘usual’ brutality of a
crime.” Glenn, 295 Mich App at 533. A single blow to the head of a victim during an armed
robbery or felonious assault is insufficient to invoke OV 7 because “while certainly illegal and
reprehensible,” it is “not savage or inhuman in comparison with behavior that has occurred
during other armed robberies or felonious assaults.” Id.

In this case, the trial court determined that defendant’s actions “went far beyond the
necessary conduct of either of the crimes.” The trial court adopted the prosecution’s arguments
that the fourteen stab wounds constituted excessive brutality and that the action of returning to
the victim before fleeing and kicking him in the ribs was designed to substantially increase the
fear and anxiety suffered by the victim.

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The trial court further noted:

[T]he statements made at the beginning of the encounter and throughout the
encounter, which the [d]efendants as a group talked about what -- it was a good
day to die, swearing at the victim, threatening -- you know, telling him he was
about to die, that there was a -- what was about to happen. Those would also, I
think, increase the fear and anxiety.

The trial court did not clearly err in making its finding as to either excessive brutality or
substantially increasing fear and anxiety on the part of the victim. Testimony established that
defendant and defendant alone stabbed the victim fourteen times with a screwdriver and
repeatedly punched and kicked him in the face and torso. As a result of the attack, the victim
suffered a punctured lung, a rib fracture, plus the stab wounds across his chest, back, shoulder,
arm, and leg, a bruise around one eye, and abrasions and contusions across his body. Although
some of the bruises, abrasions, and contusions may be attributable to codefendants, which are not
scorable, the stab wounds were solely attributable to defendant. The number and nature of the
stab wounds, 14 in total, is out of proportion to other armed robberies or felonious assaults.
Based on defendant’s acts of stabbing the victim and his words, we hold that the trial court did
not clearly err in finding that defendant used excessive brutality and also sought to substantially
increase the fear and anxiety the victim felt during the attack. Accordingly, the trial court did not
err when it assessed 50 points for OV 7.

C. PROPORTIONALITY OF SENTENCE

Defendant’s final argument is that his sentence was not proportionate. Specifically,
defendant argues that his sentence was disproportionate because he was only 21 years old at
sentencing, with no previous felony convictions. Defendant states that all but two of his 16
misdemeanor convictions were not scorable under the guidelines, most were traffic related, and
in addition, he apologized to the victim. Thus, defendant argues that his “conduct is entirely
taken into consideration in the offense variables[,]” thereby precluding an upward departure from
the guidelines. We disagree.

In People v Lockridge, 498 Mich 358, 364; 870 NW2d 502 (2015), our Supreme Court
severed “MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on
the basis of facts beyond those admitted by the defendant or found by the jury beyond a
reasonable doubt mandatory.” The Court also struck “down the requirement in MCL 769.34(3)
that a sentencing court that departs from the applicable guidelines range must articulate a
substantial and compelling reason for that departure.” Id. at 364-365. Instead, the Court held,
“A sentence that departs from the applicable guidelines range will be reviewed by an appellate
Court for reasonableness.” Id. at 392.

In People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017) (Steanhouse II), the Court
reaffirmed “that the legislative sentencing guidelines are advisory in all applications.” Id. at
459. The Court also held that “the proper inquiry when reviewing a sentence for reasonableness
is whether the trial court abused its discretion by violating the ‘principle of proportionality’ set
forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), ‘which requires sentences

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imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender.’ ” Steanhouse II, 500 Mich at 459.

In People v Dixon-Bey, 321 Mich App 490, 520-521; 909 NW2d 458 (2017)2, this Court
recently explained the standards applicable to review of a departure sentence:

“A sentence that departs from the applicable guidelines range will be
reviewed by an appellate court for reasonableness.” “[T]he standard of review to
be applied by appellate courts reviewing a sentence for reasonableness on appeal
is abuse of discretion.” In Steanhouse [II], the Michigan Supreme Court clarified
that “the relevant question for appellate courts reviewing a sentence for
reasonableness” is “whether the trial court abused its discretion by violating the
principle of proportionality[.]” The principle of proportionality is one in which

“a judge helps to fulfill the overall legislative scheme of criminal
punishment by taking care to assure that the sentences imposed
across the discretionary range are proportionate to the seriousness
of the matters that come before the court for sentencing. In
making this assessment, the judge, of course, must take into
account the nature of the offense and the background of the
offender.”

Under this principle, “ ‘the key test is whether the sentence is proportionate to the
seriousness of the matter, not whether it departs from or adheres to the guidelines’
recommended range.’ ” [Dixon-Bey, 321 Mich App at 521 (citations omitted).]

Thus, the Court continued in Dixon-Bey:

Because the guidelines embody the principle of proportionality and trial courts
must consult them when sentencing, it follows that they continue to serve as a
“useful tool” or “guideposts” for effectively combating disparity in sentencing.
Therefore, relevant factors for determining whether a departure sentence is more
proportionate than a sentence within the guidelines range continue to include (1)
whether the guidelines accurately reflect the seriousness of the crime, (2) factors
not considered by the guidelines, and (3) factors considered by the guidelines but
given inadequate weight. [Id. at 524-525 (citations omitted).]

“Other factors listed by this Court in People v Steanhouse, 313 Mich App 1, 46; 880 NW2d 297
(2015) [(Steanhouse I)], rev’d in part on other grounds by [Steanhouse II, 500 Mich 453],
include ‘the defendant’s misconduct while in custody, the defendant’s expressions of remorse,
and the defendant’s potential for rehabilitation.” Dixon-Bey, 321 Mich App at 525 n 9 (citations
omitted).

2
Our Supreme Court currently is considering whether to grant leave in Dixon-Bey. See People v
Dixon-Bey, 501 Mich 1066 (2018).

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 Finally, “[w]hen making this determination and sentencing a defendant, a trial court must
justify the sentence imposed in order to facilitate appellate review, which includes an explanation
of why the sentence imposed is more proportionate to the offense and the offender than a
different sentence [i.e., one within the guidelines,] would have been.” Id. at 525 (quotation
marks and citations omitted). “However, this is not to say that the trial court must explain why it
chose a twelve-month departure as opposed to an eleven-month departure (or indeed as opposed
to any one of countless other potential departures). Rather, the trial court must simply explain
why the actual departure that it imposed is justified.” People v Babcock, 469 Mich 247, 260 n
14; 666 NW2d 231 (2003); see also People v Smith, 482 Mich 292, 311; 754 NW2d 284 (2008).
Further, when making such an articulation, “the trial court is not required to use any formulaic or
‘magic’ words in doing so.” Babcock, 469 Mich at 259.3

Thus, defendant’s argument in this case that his “conduct is entirely taken into
consideration in the offense variables,” is simply not of critical importance to whether or not his
sentence is proportionate because “the key test is whether the sentence is proportionate to the
seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended
range.” Steanhouse II, 500 Mich at 472. Notably, our Supreme Court has expressly rejected
dicta suggesting “presumptions of unreasonableness for out-of guidelines sentences.” Id. at 474.
Rather, our principle of proportionality simply “requires sentences imposed by the trial court to
be proportionate to the seriousness of the circumstances surrounding the offense and the
offender.” Milbourn, 435 Mich at 636; see also Steanhouse II, 500 Mich at 474.

In sentencing defendant, the trial court stated:

The advisory guidelines in this case is a hundred and thirty-five to two
hundred and twenty-five months. He’s twenty-one years of age. In his tender
years, he has managed to rack up sixteen misdemeanors. He’s employed, an
eleventh grade education. He does have a history of substance abuse as well as
psychiatric history. I will note that of the sixteen prior misdemeanors only two
were scorable.

He has -- since he’s been in custody on this case, he has -- has been issued
a category one ticket for assaulting another inmate, and was issued a five-day
lockdown for . . . another category one ticket.

We’ve heard from the victim here in connection with the assault. I -- I
will simply incorporate by references testimony in connect -- in this case in
connection with the dramatic effect that it’s had, very negative effect it’s had on
his life.

3
Babcock was decided prior to Lockridge, when a sentence within the guidelines was mandatory
absent a “substantial and compelling reason.” Given that the guidelines are now advisory,
current law provides even less justification for requiring a trial court to use “magic” or
“formulaic” words to justify a sentencing decision.

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 This was a vicious, brutal and despicable attack. I certainly do not punish
people for going and invoking the right to a Constitu -- their Constitutional right
to have a trial. They are presumed innocent. The People did an exemplary job in
disproving that presumption. But it is different when you have a Defendant get
on the stand and shift blame, which has happened here. It happened here just
now. He said he was the victim despite after already being convicted.

The jury -- jury obviously disbelieved the Defendant’s testimony, found
very credible the -- obviously beyond a reasonable doubt that the elements of the
offenses were committed by the Defendant and convicted him accordingly. This
Defendant has to this day disclaims any -- he says I’m responsible, but I’m the
victim.

There’s some cognitive dissidence [sic—dissonance] going on there. It’s
very concerning to the Court. Obviously this, as I said before, was a brutal,
vicious, and despicable crime. The -- the victim is very fortunate that he
survived. There was a terrifying incident as I -- as I stated before, threats at the
beginning, threats during the incident, multiple stab wounds, the kicking. He was
surrounded by multiple offenders. I have to hand it to the victim, he was very
strong at the time, fought those kids off and adults off for a very long time. They
did not get what they were expecting. I think they were expecting a very docile
person, and he did his best to defend himself.

The guideline range is advisory at this point, and I think for the reasons
I’ve articulated on the record that a very reasonable sentence is as follows:

For assault with intent to commit great bodily harm, fifty-seven months to
ten years in the Michigan Department of Corrections, with three hundred and
ninety-four days of jail credit. For robbery armed, thirty-two to ninety-nine years
in the Michigan Department of Corrections with jail credit of three hundred and
ninety-four days.

We find no abuse of discretion on the part of the trial court. The trial court correctly calculated
and considered the guidelines, see Steanhouse II, 500 Mich at 474-475. The trial court then
applied the principle of proportionality, by thoroughly analyzing “the seriousness of the
circumstances surrounding the offense and the offender.” Milbourn, 435 Mich at 636; see also
Steanhouse II, 500 Mich at 459.

Thus, although defendant argues that he was only 21 years old at sentencing, the
sentencing court determined that his extensive criminal history of sixteen misdemeanor
convictions outweighed that fact. In addition, although defendant notes he had no felony record,
his lengthy misdemeanor record nevertheless constituted a significant criminal history. In
considering that criminal history, the trial court noted that only two of those misdemeanor
convictions were scorable under the guidelines. As we have noted, “the seriousness of the
circumstances surrounding the offense and the offender” are the key considerations rather than
whether a sentence “departs from or adheres to the guidelines’ recommended range,” see
Steanhouse II, 500 Mich at 472, 474. Moreover, the fact that only two of the misdemeanors

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were scorable hurts defendant’s position rather than helps it. Because the conduct at issue was
not accounted for by the guidelines, the sentencing court was justified in finding that a sentence
above the guidelines was warranted by defendant’s criminal history. See Dixon-Bey, 321 Mich
App at 524-525 (providing that one of the relevant considerations justifying a departure includes
factors not considered by the guidelines).

Defendant also argues that his “apology” to the victim renders the sentence imposed
unreasonable. At sentencing, although he said the word “apologize,” defendant did not in fact
apologize for his criminal conduct but rather denied criminal culpability, at least for the brutal
assaults which resulted in the victim being stabbed 14 times.4 The trial court was very
“concern[ed]” with defendant’s so-called apology and noted how it tried to portray defendant as
the victim. Given defendant’s statements denying criminal culpability, at least for the assaultive
crimes, we cannot say that the trial court abused its discretion in relying on this fact. This is
particularly so as defendant twice denied intending to harm the victim for any reason save
justified self-defense, evidencing no slip of the tongue or misstatement on defendant’s part. It is
well-established that such lack of remorse is an appropriate consideration for purposes of
proportionality. See People v Houston, 448 Mich 312, 323; 532 NW2d 508 (1995); People v
Wesley, 428 Mich 708; 411 NW2d 159 (1987). And the trial court’s reliance on the fact that the
entire episode was a “vicious, brutal and despicable attack” was clearly warranted given the
number of times defendant stabbed the victim. Such viciousness has long been a factor that
courts can rely on in justifying a departure, even under the stricter standards applicable to the
former regime of mandatory guidelines. See Babcock, 469 Mich at 249 (noting that if the
defendant stabbed his victim multiple times, or in a manner designed to inflict maximum harm,
that might constitute a substantial and compelling reason for a departure because these
characteristics may have been given inadequate weight in determining the guidelines range).

Finally, the trial court also noted that since defendant had been in custody, he had been
issued two tickets for misconduct, one of which involved an assault on another inmate. The trial
court was fully justified in relying on “ ‘the defendant’s misconduct while in custody’ ” as a
basis for departing from the guidelines. Dixon-Bey, 321 Mich App at 525 n 9, quoting Houston,
448 Mich at 323. The fact that defendant’s misconduct while in custody again involved
assaultive conduct, the same type of behavior for which he was convicted here, also permitted an

4
Defendant stated in relevant part:
And the whole reason why I even committed an act of violence towards [the
victim] was to simply try to get away from him, not to steal anything from him.
And when -- anytime that I was involved with [the victim], I was not intending to
steal from him, I was intending to get away.

And ah, I understand that I put myself in that situation and other people, and I
understand that I put [the victim] in harm -- in harm’s way. And I would like to
sincerely apologize to [the victim] for my acts. But yet again, the only reason
why I committed an act of violence was to get away from [the victim] not to steal
anything from him.

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inference by the trial court that “defendant’s potential for rehabilitation,” was poor, another
permissible factor for the trial court to consider. Id.

In short, the record is quite clear that the trial court considered the “nature of the offense
and the background of the offender,” Milbourn, 435 Mich at 651, when it discussed the “vicious,
brutal and despicable attack” for which it was sentencing defendant. The trial court also
carefully analyzed defendant’s history and characteristics. Although the trial court did not state
that it was imposing a sentence above the guidelines range for particular reasons, that was its
implicit ruling: it noted the correct guideline range and the fact that the guidelines are advisory,
and listed a host of reasons which support a departure from the guidelines. The trial court was
well within its discretion in doing so, as it was not required to use “magic” or “formulaic” words
to justify its sentence. Babcock, 469 Mich at 259. As this Court noted in People v Walden, 319
Mich App 344, 355; 901 NW2d 142 (2017), the greater discretion given to trial courts in the
aftermath of Lockridge necessarily “constricts an appellate court’s wherewithal to find an abuse
of discretion.” Indeed, the Steanhouse II Court pointed out that trial courts were not required to
consider “the principle [of proportionality] to the exclusion of any other permissible concepts.”
Steanhouse II, 500 Mich at 473 n 15. Therefore, contrary to defendant’s arguments here, and the
dissent’s separate views that the trial court did not adequately explain the extent of its departure,
the trial court fully complied with these principles and did not abuse its discretion.

III. RESPONSE TO THE DISSENT

We respectfully disagree with the dissent’s assertion that the trial judge impermissibly
punished defendant for maintaining his innocence and for exercising his right to a trial.5

At sentencing, the trial judge commented on his view of the evidence: that defendant and
his conspirators threatened the victim verbally, told him they were going to stab him, approached
him in a menacing manner prepatory to the attack, and would have attacked first but for the
victim, out of self-defense, striking preemptively. In other words, the trial judge stated his belief
that defendant’s recitation of events was false. Such judicial factfinding is entirely within a
sentencing court’s discretion. Lockridge, 498 Mich at 391-392. However, even if judicial
factfinding were generally impermissible, the trial court’s sentencing decision here nevertheless
would have been completely appropriate because the facts on which the trial court relied are
those which the jury found beyond a reasonable doubt.

As the dissent notes, defendant claimed self-defense at trial, asserting that the victim
unprovokedly attacked him. When self-defense is asserted, “the prosecutor must prove beyond a
reasonable doubt that the defendant did not act in self-defense.” M Crim JI 7.20.6 Thus, the fact

5
At the outset, we note that this issue is being raised sua sponte by the dissent, as defendant did
not raise this issue on appeal. As such, this Court ought to decline to address it. See Froling v
Carpenter, 203 Mich App 368, 373; 512 NW2d 6 (1993) (stating that the appellants’ failure to
argue an issue in their brief on appeal results in abandonment of the issue).
6
The trial court in fact gave that instruction, adding, “The Defendant does not have to prove that
he acted in self-defense.”

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that the jury convicted defendant of assault with intent to do great bodily harm means that the
jury found that the prosecution disproved defendant’s claim of self-defense beyond a reasonable
doubt. As such, the question of self-defense, and thus the truthfulness of defendant’s
maintenance of his claim that the victim attacked defendant, rather than the other way around,
was rejected beyond a reasonable doubt by the fact-finder. Accordingly, the trial judge at
sentencing was free to treat as an established fact the falsity of defendant’s claim of self-defense.
Consequently, we do not believe that the dissent is on point with its observation that “although
the jury did not accept defendant’s self-defense claim, the jury did accept defendant’s purpose
for going to trial: that he lacked the intent to kill.” The issue at trial was whether defendant was
guilty of an offense at all, i.e., whether he was guilty of any assaultive crime, as self-defense
would have been a complete defense to either assault with intent to murder or assault with intent
to do great bodily harm. And here, the jury necessarily found that defendant did not act in self-
defense and therefore was not innocent of either of those crimes. It was that lack of self-defense
which the trial court in large measure relied on in imposing sentence. Indeed, “[a]t sentencing,
the court is bound by the earlier determination of guilt.” People v Yennior, 72 Mich App 35, 41;
248 NW2d 680 (1976), rev’d on other grounds 399 Mich 892 (1977). Here, of course, there was
much more than a bare finding of guilt—there was the requirement, which was met, that the
prosecution prove lack of self-defense beyond a reasonable doubt. Thus, the trial court was fully
justified in basing its sentencing decision on the the failure of defendant’s self-defense claim,
even in light of defendant’s continued claims of innocence, as those claims had been
categorically and conclusively disproven at trial.

Moreover, in evaluating whether a trial court improperly punished a defendant for
maintaining his innocence, this Court has focused on three factors: “(1) the defendant’s
maintenance of innocence after conviction, (2) the judge’s attempt to get the defendant to admit
guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence
would not have been so severe.” People v Payne, 285 Mich App 181, 194; 774 NW2d 714
(2009) (quotation marks and citation omitted). “[I]f there is an indication of the three factors,
then the sentence was likely to have been improperly influenced by the defendant’s persistence
in his innocence. If, however, the record shows that the court did no more than address the
factor of remorsefulness as it bore upon defendant’s rehabilitation, then the court’s reference to a
defendant’s persistent claim of innocence will not amount to error requiring reversal.” Wesley,
428 Mich at 713 (opinion by ARCHER, J.).

In this case, the first factor was present—defendant maintained his innocence. But as
already noted, particularly in light of the jury’s rejection of his claimed self-defense, defendant’s
maintenance of his innocence carried little weight. But in any event, the other two factors were
completely lacking. The trial judge made no attempt to get defendant to admit his guilt. All of
the court’s comments came after defendant’s allocution and were not questions at all but rather
observations. Indeed, the trial judge commented that he “would never punish a defendant for
going and invoking the right to a Constitu -- their Constitutional right to have a trial.” Thus, in
this case, the second and third factors overlapped, and neither was present because the trial court
made no attempt to get defendant to admit guilt, and therefore could not have created the
appearance that if defendant had admitted guilt, the sentence would not have been so severe.

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 Thus, as in Wesley,

the sentencing judge neither asked defendant to admit his guilt nor offered him a
lesser sentence if he did. . . . The court never indicated in any manner that an
admission of guilt would reduce the defendant’s sentence. If there had been such
an indication, then the sentence would have been improperly influenced by the
defendant’s claim of innocence. Instead, the court focused on the history and
character of the defendant as evidenced from the presentence report in
determining his potential for rehabilitation. [Id. at 716; see also id. at 726
(CAVANAGH, J., concurring) (“[T]he trial court made clear that the defendant’s
assertion of innocence was not a factor which affected the length of the sentence
imposed.”); id. at 727 (“Following a plea of guilty or a trial, a convicted
defendant stands before the sentencing judge no longer clothed with the
presumption of innocence. While a defendant is certainly free to continue to assert
innocence, a sentencing judge should not be required to tip-toe through the
metaphysical distinctions required to separate that continued assertion from a lack
of remorse.”).]

There is another reason as well why the trial court’s comments cannot be deemed
improper. The U.S. Supreme Court and our Supreme Court have consistently held that acquitted
conduct is properly considered at sentencing if a trial court finds by a preponderance that the
defendant engaged in the conduct. See People v Ewing (After Remand), 435 Mich 443, 473; 458
NW2d 880 (1990) (stating that a sentencing court may consider “criminal activity of which the
defendant has been acquitted, whether prior or subsequent to sentencing, so long as it satisfies
the preponderance of the evidence test”);7 United States v Watts, 519 US 148, 154; 117 S Ct 633;
136 L Ed 2d 554 (1997) (“[W]e are convinced that a sentencing court may consider conduct of
which a defendant has been acquitted.”).

7
Apparently the Michigan Supreme Court is considering whether to modify or overrule Ewing.
In Dixon-Bey, it has ordered the parties to address the issue of “whether, when a jury convicted
the defendant of second-degree murder, the trial court abused its discretion in applying the
principle of proportionality if it either (a) sentenced the defendant according to an independent
finding that she committed first-degree murder; or (b) departed upward from the sentencing
guidelines for second-degree murder based on facts established by a preponderance of the
evidence that the jury did not find were established beyond a reasonable doubt. See MCL
777.36(2)(a); People v Ewing (After Remand), 435 Mich 443; 458 NW2d 880 (1990); People v
Milbourn, 435 Mich 630, 654; 461 NW2d 1 (1990).” Dixon-Bey, 501 Mich at 1067. We of
course are duty bound to follow Ewing unless and until it has “clearly been overruled or
superseded.” Associated Builders & Contractors v Lansing, 499 Mich 177, 191-192; 880 NW2d
765 (2016). As Ewing has not been clearly overruled or superseded, it remains binding upon us.

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 In almost every instance in which a sentencing court considers acquitted conduct, by
definition the defendant’s theory of the case is that he or she was not guilty of the offense.8
Rarely, if ever, does a defendant who has been acquitted of some conduct nevertheless concede
his guilt of that offense at sentencing. Thus, such a defendant “maintains his theory of the case”
at sentencing, but trial courts nevertheless may appropriately base a sentence on the acquitted
conduct. If considering such acquitted conduct constituted improperly punishing a defendant for
maintaining his or her trial theory, then the United States and Michigan Supreme Courts in fact
would have promulgated a very empty rule in permitting trial courts to consider such evidence
except when a defendant maintains his trial theory of innocence (i.e., in essentially every case in
which a sentencing court considers acquitted conduct). The trial court did not err in basing its
sentence on defendant’s acquitted conduct of assault with intent to murder, particularly in light
of the jury’s rejection of defendant’s self-defense claim.

As a result, there is no evidence that the trial court punished defendant for asserting his
right to a trial; indeed, the court explicitly stated that it never would punish a defendant for
asserting that right. And in addition, an evaluation of the Payne factors shows that any inference
that the trial court punished defendant for asserting his right to a trial is misplaced.

Affirmed.

/s/ Thomas C. Cameron
/s/ Jonathan Tukel

8
An exception is where the acquitted conduct was based on a charge which predated the count
on which the defendant is being sentenced. It is the unusual case where the prosecution seeks to
rely on such historical acquitted conduct for sentencing purposes; the more common scenario is
where a defendant is found guilty of a lesser-included offense, but the prosecution nevertheless
seeks to rely on the original charge. See, e.g., Dixon-Bey, 501 Mich at 1067 (referring to
appropriateness of relying on acquitted conduct of first degree murder for sentencing on lesser-
included offense of second-degree murder).

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