People of Michigan v. Justin Robert Mosher

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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

v No. 342214
Washtenaw Circuit Court
JUSTIN ROBERT MOSHER, LC No. 16-000214-FH

Defendant-Appellant.

Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82;
possession of a firearm by a person convicted of a felony (felon-in-possession), MLC 750.224f;
carrying a concealed weapon, MCL 750.227; and possession of a firearm during the commission
of a felony (felony-firearm) (two counts), MCL 750.227b. For the reasons set forth in this
opinion, we affirm defendant’s convictions but remand for resentencing.

I. BACKGROUND

On February 14, 2016, defendant and the victim encountered each other while driving in
Ann Arbor, Michigan. The victim testified that he approached an intersection after which the
left lane where he was driving merged into the lane to his right. When the victim realized that he
needed to merge, he noticed that there was a black sedan to the right of his vehicle. The driver of
the black sedan, who was later identified as defendant, was “veering back and forth” and
“beeping the horn.” The victim attempted to yield to defendant’s vehicle as defendant
simultaneously attempted to yield to him. Both the victim and defendant attempted to yield a
second time after which defendant continued to brake and merged behind the victim. The victim
testified that defendant followed closely behind the victim’s vehicle, continued to swerve back
and forth, and beeped the horn intermittently.

At the next intersection, the victim stopped at a red light. Defendant’s vehicle was
stopped directly behind the victim’s vehicle. The victim testified that after the light turned
green, defendant accelerated and passed alongside him until the back of defendant’s vehicle was
near the front wheel of the victim’s vehicle. According to the victim, defendant lowered his

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driver’s side window, put his head and right hand out the window, and waved a pistol with his
right hand while his left hand was on the steering wheel. Defendant pointed the gun at the victim
and then accelerated down the street at a high rate of speed. The victim testified that the
experience was “absolutely terrifying.” The victim wrote down defendant’s license plate number
and contacted the police. The responding police officers conducted a felony traffic stop after
locating defendant driving in his vehicle later that day. The police officers did not find any
weapons on defendant’s person or in defendant’s vehicle.

The jury convicted defendant as previously noted. This appeal ensued.

II. JUROR BIAS

On appeal, defendant first argues that he was denied his right to a fair and impartial jury
because of the alleged bias harbored by a juror whose daughter had been the victim of an
incident that was factually similar to the charged offenses in the instant case.

During defendant’s trial, approximately one hour after the jury began its deliberations, a
juror submitted a note to the court in which the juror raised a potential bias issue involving
another juror. The note stated as follows:

How do we share that a potential bias came up with a juror? Juror shared
daughter had a gun pulled on her in a road rage incident on a highway and gun
was pointed out window at her about a year ago.

The record indicates that the trial court held a discussion about this note in chambers, but
there is no record of what was said during this discussion. The record is also silent regarding any
response that the jury received from the trial court with respect to this note. However, it is
apparent that the jury proceeded with its deliberations. Approximately three hours after this note
was submitted, the jury sent a note indicating that a verdict had been reached. Before the jury
was called into the courtroom to announce its verdict, defense counsel moved on the record for a
mistrial on the ground that defendant was denied his right to a fair and impartial jury. Defense
counsel argued that because the juror in question failed to disclose this particular incident during
voir dire in response to defense counsel’s questions about whether any jurors or their relatives or
close friends had been involved in any road rage incidents, defense counsel had been unable to
conduct further relevant voir dire to determine whether to challenge the juror for cause or use a
peremptory challenge. The trial court denied the motion for a mistrial, subject to the possibility
of revisiting this ruling once the attorneys had an opportunity to voir dire the jurors after the
verdict was given. The trial court then called the jury in to render its verdict.

After accepting the jury’s guilty verdict and excusing the jury from the courtroom, the
trial court brought the juror who had written the note, Juror 6, back into the courtroom for
individual questioning on the record. Juror 6 identified Juror 7 as the juror with the potential
bias issue, and Juror 6 further indicated that her verdict determination was not influenced by
Juror 7’s statement regarding her daughter’s experience of road rage. Juror 7 was brought into
the courtroom to be questioned on the record after Juror 6 had been excused. In response to the
trial court’s questioning, Juror 7 stated that she did not have any bias based on the incident
involving her daughter. Juror 7 further stated that she remembered the incident at some point

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during deliberations, that she shared it with the jury, and that it was “blown off” by the other jury
members. The incident did not come up again during deliberations. Juror 7 stated with respect
to the incident involving her daughter that it did not “sway me one way or the other,” that her
verdict was based “strictly on what was presented” to the jury, and that her verdict was not the
product of any bias. Juror 7 also affirmatively indicated that she was fair and impartial in her
verdict. Finally, the entire jury was brought back into the courtroom, and the trial court asked all
of the jury members whether any of their respective decisions were affected in any way by Juror
7’s description of her daughter’s experience or any discussion that resulted from that statement.
No jurors indicated that there had been any such influence. Additionally, the trial court asked the
jury members whether any of them had any doubt regarding the fairness and impartiality of their
verdict. No jurors responded affirmatively to this question.

Both the United States Constitution and the Michigan Constitution protect a criminal
defendant’s right to be tried by an impartial jury. People v Miller, 482 Mich 540, 547; 759
NW2d 850 (2008); US Const, Am VI; Const. 1963, art 1, § 20. Appellate review of the question
whether a defendant was denied the constitutional right to an impartial jury is de novo. People v
Bryant, 491 Mich 575, 595; 822 NW2d 124 (2012). This Court reviews for an abuse of
discretion a trial court’s ruling on a motion for a mistrial. People v Schaw, 288 Mich App 231,
236; 791 NW2d 743 (2010). “An abuse of discretion occurs only when the trial court chooses an
outcome falling outside [the] principled range of outcomes.” Miller, 482 Mich at 544 (quotation
marks and citation omitted; alteration in original). “A trial court should grant a mistrial only for
an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair
trial.” Schaw, 288 Mich App at 236 (quotation marks and citation omitted). We review a trial
court’s factual findings for clear error, which exists only “if the reviewing court is left with a
definite and firm conviction that a mistake has been made.” Miller, 482 Mich at 544 (quotation
marks and citation omitted).

Our Supreme Court has held that a defendant seeking to invalidate a jury verdict on the
ground that his right to an impartial jury was violated must demonstrate that the alleged juror
misconduct or bias resulted in prejudice—i.e., that the juror’s impartiality was compromised.
Miller, 482 Mich at 548-552. “A juror’s failure to disclose information that the juror should
have disclosed is only prejudicial if it denied the defendant an impartial jury,” and a new trial is
warranted only if the juror’s failure to disclose actually denied the defendant the protection of
this right. Id. at 548-549. The juror misconduct must be of a type that would “reasonably
indicate” that there was not a fair and impartial trial. Id. at 551 (quotation marks and citation
omitted). “A new trial will not be granted for misconduct of the jury if no substantial harm was
done thereby to the party seeking a new trial . . . ” Id. (quotation marks and citation omitted;
ellipsis in original). “[J]urors are presumed to be . . . impartial, until the contrary is shown,” and
the “burden is on the defendant to establish that the juror was not impartial or at least that the
juror’s impartiality is in reasonable doubt.” Id. at 550 (quotation marks and citation omitted;
ellipsis in original). Where there is no evidence that the juror alleged to have been impartial was
actually not impartial or that the juror improperly influenced other jurors, it is not clear error for
a trial court to find that the defendant was not prejudiced by the juror’s presence on the jury. Id.
at 552-555.

In this case, there is no record evidence that the jury verdict was the product of any juror
impartiality. The record indicates that Juror 7 disclosed during jury deliberations an incident that

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she had not previously remembered in which her daughter had been the victim of an instance of
road rage with factual similarities to the instant case. The trial court questioned the juror
regarding the disclosure, and the juror stated that the incident did not come up again during the
jury deliberations, that her daughter’s experience did not have any bearing on her decision in this
case, and that she was fair and impartial in the verdict. Both the prosecutor and defense counsel
questioned the juror regarding the event and her impartiality.

The trial court then asked the entire jury whether there was anything about Juror 7’s
personal disclosure during deliberations, or any resulting discussion, that affected the verdict in
any way. The trial court also asked the jury whether it rendered a fair and impartial verdict on
the basis of the evidence that was presented in this case. No juror gave any indication that the
disclosure had any effect on the verdict or that the verdict was not fair or impartial. Defense
counsel and the prosecutor had the opportunity to further question the jury panel, but they
declined to do so. In the absence of any evidence that any member of the jury was not impartial,
defendant has failed to establish the prejudice required to demonstrate that he was denied a fair
and impartial trial. Id. at 548-555. Accordingly, it was not an abuse of discretion for the trial
court to refrain from revisiting its decision to deny defendant’s motion for a mistrial.

Next, defendant further argues that he was deprived of his right to effective assistance of
counsel based on defense counsel’s “failure to immediately request permission to conduct
necessary follow-up out of the presence of the rest of the jury, which would have likely led to a
successful cause challenge.”

“Whether a defendant has been denied the effective assistance of counsel is a mixed
question of law and fact.” People v Riley (After Remand), 468 Mich 135, 139; 659 NW2d 611
(2003). “We review factual findings for clear error, but we review de novo questions of
constitutional law.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). Because
no Ginther1 hearing was conducted in this matter,2 “our review of the relevant facts is limited to
mistakes apparent on the record.” Riley, 468 Mich at 139.

For a defendant to successfully establish an ineffective assistance of counsel claim, a
defendant must show (1) that defense counsel’s performance did not meet an objective standard
of reasonableness under prevailing professional norms and (2) that defendant was prejudiced,
meaning that there is a reasonable probability that the result of the proceeding would have been
different but for defense counsel’s deficient performance. Strickland v Washington, 466 US 668,
687-688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); see also People v Pickens, 446 Mich 298,
302-303; 521 NW2d 797 (1994).

1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
This Court previously denied defendant’s motion to remand because defendant “fail[ed] to
persuade the Court of the necessity of a remand at this time.” People v Mosher, unpublished
order of the Court of Appeals, entered October 1, 2018 (Docket No. 342214).

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 In this case, defendant has not shown the requisite prejudice and therefore has not
demonstrated that he was denied the effective assistance of counsel. As previously discussed,
the questioning of the jurors on the record did not reveal evidence of any bias or partiality on the
part of any of the jurors. Even if defense counsel had made a request to examine the jurors
immediately after the note indicating a potential bias issue was received, such a course of action
thus would still not have led to discovering that any juror was susceptible to removal on the basis
of improper bias. In other words, there is no evidence indicating a reasonable probability that the
result of the trial would have been different had such an earlier request been made by defense
counsel. Because defendant has not demonstrated that he was prejudiced by defense counsel’s
actions, he cannot establish his ineffective assistance of counsel claim. Strickland, 466 US at
700.

III. SUFFICIENCY OF THE EVIDENCE

Defendant next challenges the sufficiency of the evidence supporting his convictions.
Specifically, defendant argues that there was insufficient evidence that a gun was actually
involved in the incident and that defendant therefore was improperly convicted of felonious
assault and the other firearm offenses that flowed from that charge.3

This Court reviews de novo a sufficiency of the evidence question in a criminal case.
People v Murphy, 321 Mich App 355, 358; 910 NW2d 374 (2017). We must consider the
evidence “in a light most favorable to the prosecution to determine whether a rational trier of fact
could have concluded that the elements of the offense were proven beyond a reasonable doubt.”
Unger, 278 Mich App at 222. “All conflicts in the evidence must be resolved in favor of the
prosecution and we will not interfere with the jury’s determinations regarding the weight of the
evidence and the credibility of the witnesses.” Id. This is because “[j]uries, not appellate courts,
see and hear witnesses and are in a much better position to decide the weight and credibility to be
given to their testimony.” People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended
441 Mich 1201 (1992) (quotation marks and citation omitted). “Circumstantial evidence and
reasonable inferences arising therefrom may be sufficient to prove the elements of a crime.”
People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).

Felonious assault is a felony in which a person “assaults another person with a gun,
revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without
intending to commit murder or to inflict great bodily harm less than murder.” MCL 750.82(1).
The prosecution must prove beyond a reasonable doubt that there was “(1) an assault, (2) with a
dangerous weapon, and (3) with the intent to injure or place the victim in reasonable
apprehension of an immediate battery.” Avant, 235 Mich App at 505. Defendant’s additional
convictions for felon-in-possession, carrying a concealed weapon, and felony-firearm also
required proof that he possessed or carried a firearm as an element to support these convictions.

3
Defendant’s appellate argument is directed solely at whether there was sufficient evidence that
he possessed a firearm. Defendant has not made any argument specifically directed at any other
element of the crimes of which he was convicted. He has therefore abandoned any such
challenges. People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).

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See MCL 750.224f(1) 4 (felon-in-possession); MCL 750.227(2)5 (carrying a concealed weapon);
MCL 750.227b(1) (felony-firearm).

In this case, the record reflects that there was sufficient evidence introduced at trial to
support the conclusion that defendant possessed a gun. The victim testified that defendant put
his head and right hand out the window, waved “a pistol” around that he held with his right hand,
and then pointed the gun at the victim. The victim described the gun with specificity as a small,
semiautomatic, “subcompact style gun” with a “large barrel hold” and a black matte finish. A
police officer that responded to the victim’s 911 call testified that the victim reported that
defendant pointed a gun at him. Based on the trial testimony, a rational trier of fact could have
concluded beyond a reasonable doubt that defendant possessed a gun.

Although defendant argues that the victim could have mistaken black gloves for a gun
and notes that no gun was ever recovered from defendant in this case, the prosecutor is only
required to “convince the jury in the face of whatever contradictory evidence the defendant may
provide” and is under no obligation to “negate every reasonable theory consistent with
innocence.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000) (quotation marks and
citation omitted). Furthermore, the testimony at trial reflected that defendant was not
apprehended until several hours after the assault occurred, which would have allowed him plenty
of time to dispose of the weapon. Defendant additionally argues that the victim was not credible
because he gave inconsistent descriptions of the event. At trial, defense counsel cross-examined
the victim and the responding police officer regarding inconsistencies between the victim’s trial
testimony, his preliminary examination testimony, and his report to the police officers. It is
strictly the jury’s task to determine the credibility of witnesses and the weight to be given to the
evidence. Unger, 278 Mich App at 222.

On the record evidence presented in this case, we conclude that there was sufficient
evidence to support the conclusion that defendant possessed and used a gun during the incident
that led to his convictions.

IV. SPEEDY TRIAL

Next, defendant argues that he was deprived of his right to a speedy trial because his trial
occurred approximately nine months after the date of his arrest.

4
In this case, the parties stipulated that defendant was previously convicted of a non-specified
felony. Therefore, MCL 750.224f(1) was applicable.
5
Although this statutory provision specifically refers to a “pistol,” the applicable definition of
that term is contained in MCL 750.222(f) and defines “pistol” to mean “a loaded or unloaded
firearm that is 26 inches or less in length, or a loaded or unloaded firearm that by its construction
and appearance conceals itself as a firearm.” Moreover, the victim described the gun at one
point during his testimony as a “pistol.”

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 A defendant’s right to a speedy trial is protected by both the United States Constitution
and Michigan Constitution, People v Williams, 475 Mich 245, 260; 716 NW2d 208 (2006); US
Const, Am VI; Const. 1963, art 1, § 20, as well as by statute and court rule, MCL 768.1; MCR
6.004(A). We review de novo, as an issue of constitutional law, the question whether a
defendant was denied the right to a speedy trial. Williams, 475 Mich at 250. The trial court’s
factual findings are reviewed for clear error. Id. Under the standards adopted by both the United
States Supreme Court and the Michigan Supreme Court, there is no longer a strict requirement
that a defendant must formally demand a speedy trial but a defendant’s failure to do so is an
important factor in evaluating whether the defendant was denied the right to a speedy trial.
Barker v Wingo, 407 US 514, 523-529, 531-532; 92 S Ct 2182; 33 L Ed 2d 101 (1972);6 People
v Collins, 388 Mich 680, 692-693; 202 NW2d 769 (1972).

In Barker, the United States Supreme Court set forth a four-factor balancing test for
determining whether a defendant’s right to a speedy trial was violated. Barker, 407 US at 530.
The factors to consider are (1) the length of delay, (2) the reason for the delay, (3) the
defendant’s assertion of the right to a speedy trial, and (4) the prejudice to the defendant. Id.
The Michigan Supreme Court has also expressly adopted the Barker factors as the applicable test
in Michigan. Collins, 388 Mich at 688; Williams, 475 Mich at 261. The speedy trial protections
are triggered once an individual becomes an “accused” in a criminal prosecution by way of being
formally charged or arrested and held to answer a criminal charge. United States v Marion, 404
US 307, 313, 320-321; 92 S Ct 455; 30 L Ed 2d 468 (1971); see also Williams, 475 Mich at 261
(“The time for judging whether the right to a speedy trial has been violated runs from the date of
the defendant’s arrest.”). As the Barker Court explained, each case requires a careful balancing
of these factors and no factor is dispositive:

We regard none of the four factors identified above as either a necessary
or sufficient condition to the finding of a deprivation of the right of speedy trial.
Rather, they are related factors and must be considered together with such other
circumstances as may be relevant. In sum, these factors have no talismanic
qualities; courts must still engage in a difficult and sensitive balancing process.
But, because we are dealing with a fundamental right of the accused, this process
must be carried out with full recognition that the accused’s interest in a speedy
trial is specifically affirmed in the Constitution. [Barker, 407 US at 533.]

6
The Barker Court specifically stated at one point during its explanation of this concept as
follows:
We reject, therefore, the rule that a defendant who fails to demand a
speedy trial forever waives his right. This does not mean, however, that the
defendant has no responsibility to assert his right. We think the better rule is that
the defendant’s assertion of or failure to assert his right to a speedy trial is one of
the factors to be considered in an inquiry into the deprivation of the right.
[Barker, 407 US at 528.]

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 We begin our analysis in the instant case by considering the length of the delay, which “is
to some extent a triggering mechanism.” Id. at 530. “Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the
balance.” Id. However, the length of time that constitutes such a presumptively prejudicial
delay depends on the circumstances of the individual case because the right to a speedy trial is a
somewhat imprecisely defined one that is evaluated on an “ad hoc basis” and in which
considerably less delay is acceptable for “an ordinary street crime” than for a “serious, complex
conspiracy charge.” Id. at 530-531. In Michigan, a delay under 18 months places the burden on
the defendant to demonstrate that he or she was prejudiced, but a delay of more than 18 months
is presumptively prejudicial and requires the prosecution to assume the burden of rebutting that
presumption. People v Waclawski, 286 Mich App 634, 665; 780 NW2d 321 (2009).

In this case, defendant was arrested at some point during the late evening hours of
February 14, 2016, or early morning hours of February 15, 2016. Defendant’s trial was initially
scheduled for August 15, 2016. On August 15, 2016, defendant’s trial was adjourned and
rescheduled for October 3, 2016, to accommodate another criminal case that took priority over
defendant’s trial, the trial court’s docket, and other scheduling conflicts. Defendant’s trial
commenced on November 7, 2016, and concluded on November 8, 2016. It is unclear from the
record why the trial was adjourned from October 3 to November 7. Accordingly, the period
between defendant’s arrest and his trial was approximately nine months. Because this delay was
less than 18 months, the general presumption of prejudice does not apply. Id. Nevertheless, the
instant case was a fairly simple one with relatively uncomplicated facts, and a nine-month delay
seems unnecessarily long on its face under the circumstances. See, e.g., Barker, 407 US at 531 n
31.

Turning to the second factor, the lower court record indicates that the August 15
adjournment was attributable to scheduling conflicts and docket congestion. Both parties were
prepared for trial at the August 15 proceeding. Although the prosecutor advocated for trying to
proceed with defendant’s trial more promptly, it became impractical to do so in light of various
scheduling concerns. In deciding to postpone defendant’s trial, the trial court considered the
court’s schedule, the parties’ schedules, and any potential inconvenience to jurors. “Although
delays inherent in the court system, e.g., docket congestion, are technically attributable to the
prosecution, they are given a neutral tint and are assigned only minimal weight in determining
whether a defendant was denied a speedy trial.” Williams, 475 Mich at 263 (quotation marks and
citation omitted). Scheduling delays are also attributed to the prosecution. Waclawski, 286 Mich
App at 666. Additionally, as previously noted, the reason for the additional delay from October
3 to November 7, 2016, is not apparent from the record. “Unexplained delays are charged
against the prosecution.” Id. (quotation marks and citation omitted).

With respect to the third factor, defendant asserted his right to a speedy trial through
defense counsel’s oral objection to the trial delay, which was placed on the record at the
August 15, 2016 trial adjournment hearing. The trial court responded to the objection by
instructing defense counsel that he could file a written motion. Defense counsel did not pursue
this matter further. Defendant’s failure to more zealously pursue a speedy trial motion seems
indicative of the lack of prejudice that the delay actually caused him. See Barker, 407 US at
531-532 (“Whether and how a defendant asserts his right is closely related to the other factors we
have mentioned. The strength of his efforts will be affected by the length of the delay, to some

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extent by the reason for the delay, and most particularly by the personal prejudice, which is not
always readily identifiable, that he experiences. The more serious the deprivation, the more
likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is
entitled to strong evidentiary weight in determining whether the defendant is being deprived of
the right.”).

Indeed, moving to the fourth factor, it is the lack of prejudice that the delay caused for
defendant that is most significant in the overall balance of the factors in this case. The Barker
Court, in providing guidance for evaluating the prejudice factor, identified three defendant
interests that the right to a speedy trial was designed to protect: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired.” Id. at 532. The last of these concerns is the most
serious “because the inability of a defendant adequately to prepare his case skews the fairness of
the entire system.” Id. Because the delay in the instant case was less than 18 months, it is
defendant’s burden to show that he was prejudiced by the delay. Waclawski, 286 Mich App at
665.

In this case, defendant has not pointed to any specific way in which he was prejudiced,
and he has not made any argument on appeal claiming that he was prejudiced other than merely
contending in circular fashion that he was prejudiced because his trial did not occur sooner. We
acknowledge that “affirmative proof of particularized prejudice is not essential to every speedy
trial claim.” Doggett v United States, 505 US 647, 655; 112 S Ct 2686; 120 L Ed 2d 520 (1992).
But there is also an inverse relationship between the requirement for a demonstration of
prejudice and the combination of (1) the length of the delay and (2) the egregiousness of the
state’s conduct in causing the delay. See id. at 655-657. While the delay in the instant case was
perhaps excessive for such a simple case, it was not extraordinarily so and the primary reasons
for the delay involved scheduling matters rather than negligence or bad faith on the part of the
prosecution.7 Under such circumstances, defendant must show some particularized form of
prejudice to establish a violation of his right to a speedy trial; this is not a case where he can
merely rest his claim on the length of the delay.8 In light of the total absence in the record of any
indication that defendant’s trial defense was impaired or that he suffered any kind of prejudice
during the relatively minor nine-month delay, coupled with the fact that defendant fails to make

7
There is no evidence in the record of negligence or bad faith on the part of the prosecution in
bringing this matter to trial.
8
In other words, the instant case is clearly distinguishable from Doggett. In Doggett, the United
States Supreme Court held that the petitioner’s right to a speedy trial was violated, despite the
petitioner’s failure to affirmatively demonstrate that he was prejudiced by the delay, where the
petitioner was arrested 8½ years after he was indicted because the Government agents had
completely neglected to look for him. Doggett, 505 US at 649-650, 655, 657-658. The Court
called this “the Government’s egregious persistence in failing to prosecute [the petitioner]” and
noted that the petitioner “would have faced trial 6 years earlier than he did but for the
Government’s inexcusable oversights.” Id. at 657.

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any specific claim of prejudice on appeal, defendant has not met his burden to show prejudice.
Waclawski, 286 Mich App at 665.

We therefore conclude that defendant’s right to a speedy trial was not violated.

Defendant additionally argues that defense counsel was constitutionally ineffective for
failing to file a formal, written motion on speedy trial grounds. “Whenever the defendant’s
constitutional right to a speedy trial is violated, the defendant is entitled to dismissal of the
charge with prejudice.” MCR 6.004(A). However, for the reasons stated above, defendant has
failed to demonstrate that such a motion would have been successful in obtaining a dismissal.
Accordingly, defendant has not established the requisite prejudice because he has not shown that
but for defense counsel’s performance, there is a reasonable probability that the outcome of the
proceedings would have been different. Strickland, 466 US at 694. Defendant has thus not
established that he was denied the effective assistance of counsel on this ground. Id. at 700.

V. OV 4

Finally, defendant argues that the trial court erroneously assessed 10 points for Offense
Variable (OV) 4 because the victim did not suffer serious psychological injury requiring
professional treatment.

Defendant preserved this issue for appeal through his objection at the sentencing hearing
to the scoring of OV 4 at 10 points. MCL 769.34(10). We review de novo as questions of law
the interpretation and application of the legislative sentencing guidelines. People v McGraw,
484 Mich 120, 123; 771 NW2d 655 (2009). “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. 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.” People v Hardy, 494 Mich 430, 438;
835 NW2d 340 (2013) (citation omitted). If a sentence is within the appropriate guidelines
sentence range, a defendant is still entitled to resentencing if there is a scoring error altering the
guidelines range or if the trial court relied on inaccurate information. People v Francisco, 474
Mich 82, 88-90, 92; 711 NW2d 44 (2006).

The trial court is to assess 10 points for OV 4 (psychological injury to the victim) where
the victim suffered “[s]erious psychological injury requiring professional treatment.” MCL
777.34(1)(a). Ten points are to be assessed “if the serious psychological injury may require
professional treatment,” and the fact that a victim has not sought treatment is not conclusive on
this question. MCL 777.34(2). The trial court is to assess zero points for OV 4 if the victim did
not suffer a serious psychological injury requiring professional treatment. MCL 777.34(1)(c).9
In determining the proper score for OV 4, “a court cannot merely assume that a victim has

9
At the time of defendant’s sentencing, this provision was contained in 777.34(1)(b). The
amendment to MCL 777.34(1), which became effective on March 28, 2019, has no further
bearing on the instant case. See 2018 PA 652.

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suffered a ‘serious psychological injury’ solely because of the characteristics of the crime.”
People v White, 501 Mich 160, 165; 905 NW2d 228 (2017). A “victim’s fear during a crime, by
itself and without any other showing of psychological harm,” is insufficient to justify assessing
10 points for OV 4. Id. at 164.

At the sentencing hearing in this case, the prosecutor requested that the score for OV 4 be
increased from zero points to 10 points. The prosecutor argued that the victim’s trial testimony
showed that he suffered an enduring psychological injury. Defense counsel objected, arguing
that there was no evidence of psychological injury requiring professional treatment. The trial
court granted the prosecutor’s request, stating as follows:

Well leaving aside how different people certainly react, I think the idea
that someone’s got a gun pointed at them in a potential road, road rage kind of
circumstance particularly when they, they testify that he was not only concerned
but he was scared at the time, leaves [sic] the Court to a conclusion that it’s
clearly someone that may seek that kind of therapy and/or treatment. I’ll score it
as ten points.

This ruling resulted in an increase of defendant’s recommended minimum sentencing guidelines
range from 12 to 24 months to 14 to 29 months.

Although the victim’s testimony established that he was afraid during the incident, there
is no further evidence in the record of psychological harm. The trial court relied solely on the
victim’s testimony that he felt fearful as the crime was unfolding and the assumption that an
event such as the one that occurred in this case would typically cause psychological harm
requiring professional treatment. This is an insufficient basis on which to predicate a score of 10
points for OV 4. White, 501 Mich at 164, 165. “[A] trial court may not simply assume that
someone in the victim’s position would have suffered psychological harm because MCL 777.34
requires that serious psychological injury ‘occurred to a victim,’ not that a reasonable person in
that situation would have suffered a ‘serious psychological injury.’ ” Id. at 163 (citation and
some quotation marks omitted). The trial court erred by assessing 10 points for OV 4 in this
case.

Defendant’s recommended minimum guidelines range was calculated based on his felon-
in-possession conviction, which is a Class E felony and the offense with highest crime class
among his convictions for which he received concurrent sentences (felon-in-possession, carrying
a concealed weapon, and felonious assault).10 MCL 777.16m; MCL 750.224f; see also People v

10
Carrying a concealed weapon is also a Class E felony. MCL 777.16m; MCL 750.227.
Felonious assault is a Class F felony. MCL 777.16d; MCL 750.82. Felony-firearm carries a
mandatory 2-year sentence for a first offense, which is to be served consecutively with and
preceding the sentence for the underlying felony. MCL 750.227b(1) and (3). Defendant’s 2-
year felony-firearm sentences were concurrent with each other and concurrent with his sentence
for carrying a concealed weapon. His felony-firearm sentences were consecutive to and
preceding his sentences for the felonious assault and felon-in-possession convictions. Carrying a

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Lopez, 305 Mich App 686, 690; 854 NW2d 205 (2014) (“The trial court [is] not required to
independently score the guidelines for and sentence the defendant on each of his concurrent
convictions if the court properly score[s] and sentence[s] the defendant on the conviction with
the highest crime classification.”). Defendant’s sentence was based on a minimum guidelines
range of 14 to 29 months, which was calculated based on a total prior record variable (PRV)
score of 100 and a total OV score of 25. MCL 777.66. However, assessing zero points for OV 4
results in a total OV score of 15, which results in changing defendant’s OV level from III to II on
the Class E sentencing grid. Id. This change results in lowering defendant’s guidelines range to
12-24 months. Id. Although defendant’s 2-year concurrent minimum sentences for his felonious
assault, felon-in-possession, and carrying-a-concealed-weapon convictions are still within this
corrected guidelines range, resentencing is nonetheless required because this scoring error alters
the minimum sentencing guidelines range. See Francisco, 474 Mich at 92.

We affirm defendant’s convictions but remand for resentencing in accordance with this
opinion.

Remanded for resentencing. We do not retain jurisdiction.

/s/ Douglas B. Shapiro
/s/ Stephen L. Borrello
/s/ Jane M. Beckering

concealed weapon cannot serve as a predicate felony for a felony-firearm conviction. MCL
750.227b(1).

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