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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 2, 2020
Plaintiff-Appellee,
v No. 346811
Oakland Circuit Court
JEFFREY CRAIG ZEIGLER, LC No. 2018-267052-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
Defendant was charged with assault with intent to commit murder (AWIM), MCL 750.83,
and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Following a jury trial, he was acquitted of AWIM, but convicted of the lesser offense of assault
with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, and felony-firearm.
The trial court sentenced defendant to 2 to 10 years’ imprisonment for the AWIGBH conviction,
and a consecutive two-year term of imprisonment for the felony-firearm conviction. We affirm
defendant’s convictions, but remand for further proceedings regarding defendant’s sentence for
the AWIGBH conviction.
I. FACTS
Defendant’s convictions arise from events that occurred on the morning of April 12, 2018.
On that day, the 14-year-old complainant overslept and missed the bus. Because his mother was
at work and had taken away his cell phone the night before, the complainant decided to walk to
school, which was several miles away. The complainant planned to follow his bus route, but
became lost in a particularly confusing subdivision. Eventually, the complainant stopped at
defendant’s house to ask for directions. The complainant approached defendant’s house, rang the
doorbell, and then and knocked on the front door. Defendant’s wife came downstairs to answer
the door, and upon confronting the complainant, she yelled for defendant because she thought the
complainant was trying to break into the house. After hearing his wife scream, defendant retrieved
his shotgun and headed towards his front door. When the complainant saw the gun, he started
running away from the house. Defendant emerged from the house, aimed the shotgun toward the
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complainant as he was running away, and eventually discharged the gun. Fortunately, no one was
physically injured when the gun discharged. Defendant offered several explanations for his
actions, including that the shotgun discharged accidentally and that, fearing for his safety, he fired
a warning shot into the air to scare the complainant.
The incident was captured on video by a home surveillance camera at defendant’s house.
The video was played for the jury at trial. The video shows the complainant, wearing a backpack,
walk up to the front door of defendant’s house and ring the doorbell. After waiting a few seconds,
the complainant opens the screen door and knocks on the main door. The complainant appears to
be speaking to someone inside the house and then releases the screen door and backs away while
gesturing with his left hand, as if pointing behind him. He then steps farther back on the porch
and puts his hands down at his side. The complainant then backs off the porch, turns to his left,
and starts running. At the same time, a shirtless defendant emerges from the house and looks in
the complainant’s direction while holding a shotgun.
The video shows defendant raising the shotgun to chest height, and he appears to aim the
gun in the complainant’s direction. Defendant’s upper body moves slightly, as though preparing
for the gun to recoil. Defendant admitted at trial that, at this point, he pulled the trigger but the
safety was on. In the video, defendant briefly glances down at the shotgun while keeping it raised,
then fires. Defendant admitted at trial that he “[tried] to shoot the gun, [found] that the safety was
on, turn[ed] off the safety, and then [shot].” These events—from the time that defendant is seen
walking onto his porch until he discharges the gun—took place in a matter of seconds. In the
video, after the gun is discharged, defendant can be seen lowering the gun to his waist while
continuing to look in the direction in which the complainant fled, before eventually dropping the
gun to his side and walking back into his house.
The jury acquitted defendant of AWIM, but convicted him of the lesser offense of
AWIGBH and felony-firearm. Defendant now appeals, challenging both his convictions and his
sentence for AWIGBH.
II. PROSECUTORIAL MISCONDUCT
Defendant first argues that his trial was tainted by the prosecutor’s misconduct during
direct examination of a detective who interviewed defendant on the morning of the shooting
incident. Defendant admits that while being interrogated by the detective, he referred to the
complainant, one time, as the “colored kid.” However, he asserts that the prosecutor improperly
aroused the jurors’ prejudices by questioning the detective in a manner that required the witness
to repeatedly reference defendant’s isolated racial slur. We disagree.
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Defendant did not object to the prosecutor’s examination of the detective at trial, so this
issue is unpreserved. People v Cox, 268 Mich App 440, 451; 709 NW2d 152 (2005). We review
unpreserved claims of prosecutorial misconduct1 for plain error affecting substantial rights. Id.
The test for prosecutorial misconduct is whether the defendant was denied a fair trial.
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Issues of prosecutorial
misconduct are decided case by case, and this Court must examine the entire record and evaluate
a prosecutor’s remarks in context.” Id. at 64. In People v Bahoda, 448 Mich 261, 266; 531 NW2d
659 (1995), our Supreme Court emphasized that it abhorred “the injection of racial or ethnic
remarks into any trial because it may arouse the prejudice of the jurors against a defendant, and
hence, lead to a decision based on prejudice rather than on the guilt or innocence of the accused.”
Accordingly, the Court noted that it would not hesitate “to reverse where potentially inflammatory
references are intentionally injected, with no apparent justification except to arouse prejudice. Id.
During the detective’s testimony, the prosecutor questioned him about what defendant
disclosed during their interview. The first reference to defendant using the phrase “colored boy”
or “colored kid” occurred in the following exchange:
Q. [W]hat did [defendant] tell you about the about, you know, the
beginning of his day?
A. So, beginning of his day in which he told me during the interview was
that he was awoken by a loud scream by his wife. He states that he heard this
scream. He put on his pants. Didn’t have an opportunity to put his shirt on. Started
walking downstairs. As he was walking down stairs, he indicated to mean [sic] he
seen a colored—a colored boy or kid outside of his door on the front porch, and felt
that this colored boy was coming through his door.
After this exchange, the prosecutor continued to question the detective about defendant’s
statements and actions. When doing so, the prosecutor referred to the complainant only as
“person” or “guy,” but the detective, in response to the prosecutor’s questions, continued to employ
the phrase “colored boy” or “colored kid”:
Q. Now, I know that you mentioned that he told you that his—he awoke to
his wife, you know, screaming, and—and he came down the stairs. In his
assessment to you, though did he express to you that he was acting completely off
of what his wife was saying and doing or did he tell you that he assessed that this
person was coming in the house?
1
This Court explained in People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015), that
a fairer label for most claims of prosecutorial misconduct would be “prosecutorial error,” while
only the most extreme cases rise to the level of “prosecutorial misconduct.” However, we will use
the phrase “prosecutorial misconduct” because it has become a term of art.
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A. He had—he had expressed to me that when he was coming down the
stairs, he seen the colored boy coming through what he felt was coming through his
door, assessing him as breaking into his home.
* * *
Q. Okay, and do you remember his expression about as he was getting the
gun or as he was going to get his shotgun, what his thought was about this guy
breaking in?
A. He had indicated to me that he perceived the colored boy as a threat.
The prosecutor’s direct examination concluded with no other mention of the objectionable phrases.
On cross-examination, however, defendant’s counsel questioned the detective extensively
on defendant’s use of the objectionable phrase, using the terms “colored boy” and “colored kid”
several times. Ultimately, through counsel’s cross-examination, the detective waffled about how
many times defendant actually used the phrase “colored boy” or “colored kid,” until the detective
admitted that he did know which description was actually used, and then finally acknowledged
that it was “colored kid.” He also admitted that he was incorrect when he testified on direct
examination that defendant referred to the complainant as “colored boy.” The detective then
admitted that he never documented in his report that defendant referred to the complainant as
“colored kid,” and further acknowledged that he had only revealed defendant’s use of the phrase
for the first time at trial.
After defendant’s cross-examination, the prosecutor, for the first time, used the phrase
“colored kid” when she asked the detective on redirect if the phrase had ever come out of
defendant’s mouth. The detective simply replied, “Yes, it did.” Later in the trial, the parties
stipulated that during defendant’s interview, defendant stated, “I threw on my pants, and I ran
downstairs and there was a colored kid on the front porch, and it appeared he was trying to get in.”
The stipulation included the parties’ agreement that defendant said “colored kid” only one time
and never said “colored boy.”
Viewing the challenged questions and responses in context, it is apparent that the
prosecutor did not deliberately elicit improper testimony. During the prosecutor’s direct
examination, the prosecutor did not use the objectionable phrases and she never intentionally asked
questions that compelled the witness to invoke the phase in order to fully respond to the
prosecutor’s question. Moreover, the prosecutor did not dwell on this area, and there were only
three questions that resulted in the detective reiterating the fact that defendant used the racial term.
Prosecutorial misconduct is not present unless there is a “studied purpose to arouse the prejudice
of the jury.” Bahoda, 448 Mich at 271. Such a showing has not been made in this case. Instead,
the prosecutor’s questions were directed at eliciting relevant information regarding defendant’s
actions and intentions, not to provoke the detective to repeat the racial remark. A defendant may
not base a claim for prosecutorial misconduct on a prosecutor’s good-faith attempt to admit
evidence. People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999); Dobek, 274 Mich App
70. The record does not support defendant’s assertion that the prosecutor deliberately intended to
prejudice defendant by inserting race or racial bias into the trial. Thus, after reviewing the record,
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we are satisfied that the prosecutor did not commit prosecutorial misconduct in the manner alleged
by defendant.
III. FORM OF THE VERDICT
Next, defendant argues that the jury verdict form was defective because it did not give the
jury the option to return a general verdict of not guilty. We disagree.
An issue with a jury verdict form is considered an error in jury instructions. People v
Garcia, 448 Mich 442, 483-484; 531 NW2d 683 (1995). Preliminarily, we note that defendant did
not object to the jury verdict form and expressed satisfaction with the court’s jury instructions and
explanation of the verdict form. Therefore, this issue could be considered waived. See People v
Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). But because defendant also argues that
counsel was ineffective for not objecting to the verdict form, review of the issue is appropriate.
To the extent that direct review of the issue regarding the verdict form is not waived, our review
is for plain error affecting substantial rights. Id. at 505.
“[A] criminal defendant is deprived of his constitutional right to a jury trial when the jury
is not given the opportunity to return a general verdict of not guilty.” People v Wade, 283 Mich
App 462, 467; 771 NW2d 447 (2009). A defendant bears the burden of establishing that the
instructional error undermined the reliability of the verdict. People v Hawthorne, 474 Mich 174,
184; 713 NW2d 724 (2006). In this case, the verdict form provided:
You may return only one verdict on each count. Mark only one box for
each count on this sheet.
Count One: Assault with Intent to Murder
__ Not Guilty
__ Guilty of Assault with Intent to Murder
__ Guilty of the Lesser offense of Assault with intent to do Great Bodily
Harm
This verdict form provided the jury with three clear options for the AWIM count: (1) not guilty,
(2) guilty of the charged offense of AWIM, or (3) guilty of the lesser offense of AWIGBH.
Contrary to what defendant argues, this verdict form specifically provided the jury with the option
of returning a general “not guilty” verdict as an alternative to either AWIM and AWIGBH.
We reject defendant’s argument that the verdict form is similar to the verdict form that was
deemed defective in Wade, 283 Mich App at 464. In that case, this Court found that the following
verdict form was deficient:
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POSSIBLE VERDICTS
YOU MAY RETURN ONLY ONE VERDICT FOR EACH COUNT.
COUNT 1-HOMICIDE-MURDER FIRST DEGREE-PREMEDITATED
(EDWARD BROWDER, JR)
__ NOT GUILTY
__ GUILTY
OR
__ GUILTY OF THE LESSER OFFENSE OF-HOMICIDE-MURDER
SECOND DEGREE (EDWARD BROWDER, JR.)
OR
__ GUILTY OF THE LESSER OFFENSE OF-INVOLUNTARY
MANSLAUGHTER-FIREARM INTENTIONALLY AIMED (EDWARD
BROWDER, JR.)
COUNT 2-WEAPONS-FELONY FIREARM
__ GUILTY
__ NOT GUILTY [Wade, 283 Mich App at 465.]
The Wade Court concluded that, “despite the trial court’s efforts to clarify the verdict form
with its instructions, because of the way the verdict form was set up, the jury was not given the
opportunity to find defendant either generally not guilty or not guilty of the lesser-included
offenses such that his constitutional right to a trial by jury was violated.” Id. at 468. In Wade, the
placement of the word “or” suggested that if the jury decided to move on from the charged crime,
it had no other alternative than to choose the guilty option for the lesser included offense.
Comparing the verdict form in the present case to the one in Wade, it is clear that the defect in
Wade’s verdict form in not present in this case. Unlike in Wade, defendant’s verdict form did not
limit or restrict a finding of “not guilty” to only one offense. The “not guilty” option is independent
from the offenses, thereby indicating that the jury had the option to find defendant generally “not
guilty” of the two listed offenses below. Defendant was not deprived of his right to have the jury
presented with the opportunity to return a general verdict of not guilty.
Because the form of the verdict in this case was not defective, defendant’s related
ineffective-assistance claim cannot succeed because any objection would have been futile. See
People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (explaining that trial counsel’s
failure to raise a futile objection does not constitute ineffective assistance of counsel).
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IV. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecution failed to present sufficient evidence of intent to
support his conviction of AWIGBH.2 We disagree.
This Court reviews de novo a challenge to the sufficiency of the evidence. People v
Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012). The evidence must be viewed in the
light most favorable to the prosecution to determine if any rational trier of fact could have found
that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese,
491 Mich 127, 139; 815 NW2d 85 (2012).
The elements of AWIGBH are “(1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.”
People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016) (quotation marks and citation
omitted). Defendant only challenges the intent element. “Assault with intent to commit great
bodily harm is a specific intent crime.” People v Parcha, 227 Mich App 236, 239; 575 NW2d 316
(1997). This Court has defined the intent to do great bodily harm as “an intent to do serious injury
of an aggravated nature.” Blevins, 314 Mich App at 357 (quotation marks and citation omitted).
Because intent is difficult to prove, minimal circumstantial evidence is sufficient to demonstrate
the required intent. People v Stevens, 306 Mich App 620, 629; 858 NW2d 98 (2014).
The record discloses that the prosecution presented ample evidence to allow a rational jury
to conclude beyond a reasonable doubt that defendant intended to cause great bodily harm. “Intent
to cause serious harm can be inferred from the defendant’s actions, including the use of a
dangerous weapon or the making of threats.” Id. In this case, the evidence demonstrated that the
14-year-old complainant approached defendant’s home because he was lost and required directions
to the local high school. He did not display any threatening behavior, but defendant and his wife
irrationally perceived him as a threat. Defendant retrieved a loaded shotgun and when the
complainant saw that defendant was armed with a shotgun, he took off running. The complainant
testified that when he turned to look back, he saw defendant pointing the shotgun at him, which
compelled him to run even faster. Shortly thereafter, the complainant heard a gunshot.
Video from the porch’s surveillance camera corroborated the complainant’s version of the
events. The video shows the complainant looking over his shoulder as he is running away from
defendant’s porch. At this point, defendant is looking in the complainant’s direction while holding
the shotgun, then raises the gun to chest height and appears to aim the gun. Defendant’s upper
body then slightly moves. At trial, a deputy testified that this movement is indicative of a person
anticipating the recoil of firing a gun. Defendant admitted at trial that, when his body slightly
moves, he indeed tried to pull the trigger, but the safety was on. He further admitted that, had the
2
As part of this issue, defendant asserts that the trial court erred by denying his motion for a
directed verdict. However, no such motion was ever raised by defendant. While our review of a
challenge to the sufficiency of the evidence is largely similar to our review of a challenge to a trial
court’s decision on a motion for a directed verdict, see People v Schultz, 246 Mich App 695, 702;
635 NW2d 491 (2001), we limit our review in this case solely to whether the evidence was
sufficient to support defendant’s conviction.
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safety not been on, it was a “distinct possibility” that he would have shot at the complainant. As
the video continues, defendant can be seen glancing slightly down at the shotgun while keeping it
raised, and then fires it. Defendant admitted at trial that he “[tried] to shoot the gun, [found] that
the safety was on, turn[ed] off the safety, and then [shot].”
Evidence that defendant pointed the gun in the direction of the complainant and pulled the
trigger, and then disengaged the safety and discharged the gun while it was still pointed in the
direction of the complainant, was sufficient to enable the jury to find that defendant deliberately
aimed and fired the gun at the complainant, intending to cause great bodily harm. The fact that
the complainant was not struck or injured by the bullet did not preclude the jury from finding that
defendant acted with the requisite intent. People v Harrington, 194 Mich App 424, 429-430; 487
NW2d 479 (1992).
We also note that defendant gave conflicting versions of the events surrounding the
shooting in his statements before trial and his testimony at trial, which is relevant to the issue of
intent. “[C]onflicting statements tend to show a consciousness of guilt.” People v Unger, 278
Mich App 210, 225, 227; 749 NW2d 272 (2008). Defendant initially asserted that he had come
out onto the porch, slipped, and then the shotgun accidentally discharged. He then claimed that
when he opened the door in anticipation of the sheriff’s department arriving in response to his
wife’s 911 call, the complainant turned and started walking back toward him, at which point
defendant attempted to retreat to his home, and while doing so his gun accidentally discharged
when he slipped on wet pavement. At trial, defendant admitted that he left his house with the
intent to fire his weapon, but claimed that his goal was just to scare the person who he thought was
breaking into his home with a warning shot into the air. Again, defendant claimed that the gun
discharged accidentally, but this time he said that it was because he was unbalanced. Defendant
claimed that this imbalance caused his finger to slip from the trigger guard to the trigger, and the
momentum from this slip caused his finger to actually pull the trigger. A deputy inspected
defendant’s gun and concluded that it did not have a “hair trigger,” meaning that the trigger was
not particularly sensitive. While defendant’s conflicting statements alone tend to show his
consciousness of guilt, it is also notable that none of his accounts of the events were supported by
the video evidence. Defendant admitted as much at trial.
Furthermore, although motive is not an element of AWIGBH, evidence of motive is
relevant in determining whether a defendant acted with the intent to kill or to do great bodily harm.
See id. at 223. Both defendant and his wife testified regarding a history of break-ins and attempted
home invasions. Although, they embellished the number and nature of the alleged prior
incidences, it was undisputed that their home had been breached on several occasions. This is
actually what prompted defendant to secure the home with an alarm system and surveillance
cameras. The complainant testified that when defendant came down the stairs, he appeared angry.
Defendant admitted that when he came down the stairs, he was thinking to himself, “Oh, hell no,
not again.” When the detective confronted defendant with the surveillance video and the
implausibility of defendant’s version of the events, defendant replied, “I’m tired of being a victim.”
From this evidence, the jury could have inferred that defendant intended to shoot the complainant
because he was motivated by not only safety concerns, but also an ill-conceived sense of righteous
indignation.
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In sum, the jury was presented with both parties’ interpretations of the events, and it was
up to the jury to determine which theory was more plausible. The jury also had the benefit of the
video evidence, and it was entitled to find that this evidence supported the complainant’s
credibility. This Court will not interfere with the jury’s role in determining the weight of the
evidence or the credibility of witnesses. People v Muhammad, 326 Mich App 40, 60; 931 NW2d
20 (2018). Accordingly, we reject defendant’s argument that the evidence was insufficient to
support his conviction of AWIGBH.
V. ADJOURNMENT
Next, defendant argues that the trial court abused its discretion when it denied his “request”
for an adjournment before trial. To preserve an issue regarding the denial of an adjournment, a
defendant must actually request an adjournment or a continuance. People v Snider, 239 Mich App
393, 421; 608 NW2d 502 (2000). Contrary to what defendant asserts, the record discloses that he
never requested an adjournment of trial. Therefore, this issue is unpreserved. This Court reviews
unpreserved issues for plain error affecting substantial rights. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999).
Defendant’s argument is three-fold. Not only does he argue that he was denied an
adjournment, he asserts that the trial court’s denial of his “request” prevented him from calling his
treating medical professionals, which in turn deprived him of the opportunity to present a defense.
However, defendant never actually requested an adjournment and, during trial, he never sought to
call the proposed witnesses in his defense. Due to these failures, defendant’s argument lacks merit.
MCR 2.503(B)(1) provides, in relevant part, that “[u]nless the court allows otherwise, a
request for an adjournment must be by motion or stipulation made in writing or orally in open
court based on good cause.” “A motion for adjournment must be based on good cause.” People
v Coy, 258 Mich App 1, 18; 669 NW2d 831 (2003). See MCL 768.2. “Good cause” factors include
“whether defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting the
right, (3) had been negligent, and (4) had requested previous adjournments.” Coy, 258 Mich App
at 18 (quotation marks and citation omitted). Application of these principles is difficult in this
case because defendant never requested an adjournment.
The trial court issued an order on August 28, 2018 requiring the parties to file their witness
list at least one week before trial. On September 10, 2018, the prosecution requested that defendant
identify the witnesses he intended to call at trial and, among other things, provide a copy of any
expert witness’s curriculum vitae (CV) and a description of the substance of the witness’s proposed
testimony. On September 14, 2018, defendant filed a witness list that identified three of
defendant’s treating doctors, but defendant did not provide a CV or the substance of the witnesses’
proposed testimony. This prompted the prosecution to file a motion to strike these witnesses or,
in the alternative, to compel defendant to provide an offer of proof to determine the admissibility
and relevancy of the anticipated testimony. In response to the prosecution’s motion, defendant
represented that it was necessary to call his treating physicians and therapist to determine what
medications defendant was taking and whether they could have affected his state of mind.
Defendant wished to call his therapist to explain what it means to be diagnosed with post-traumatic
stress disorder (PTSD) and what the signs and symptoms are of someone with PTSD.
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At the motion hearing, the prosecution argued that diminished capacity precipitated by the
use of medication was not a recognized defense in Michigan and, therefore, the proposed testimony
of the medical professionals was not relevant. Defendant argued that the proposed testimony was
relevant because his emotional or mental impairments could constitute mitigating circumstances.
The prosecution asserted that it would be entitled to discovery related to defendant’s medical and
emotional conditions to determine if it was necessary to call its own expert, in response to which
the court noted that the case was scheduled for trial in less than a week. Defense counsel then
stated, “I understand judge, but, however, if—depending on how the Court rules, I would
potentially ask for an adjournment.” The court indicated that it would take the matter under
advisement and issue a written opinion. In the written order that followed, the court granted in
part and denied in part the prosecution’s motion, stating in relevant part, “The motion to strike the
witnesses is denied. The admissibility of the evidence will be addressed at trial, at which time
Defendant will be required to provide an offer of proof regarding the evidence at issue.”
When trial began, the court briefly revisited the prosecution’s motion to strike defendant’s
witnesses and explained that the issue would be addressed later, outside the jury’s presence. Later,
in reference to the number of witnesses who would be called, defense counsel stated that “[i]t will
also depend on the Court’s ruling as far as any other evidence from the Defense coming in as far
as any other witnesses.” In response, the court indicated that it had been contemplating the issues
and noted that there would have to be a foundation for defendant to call the medical witnesses.
Defense counsel indicated that he understood, but the prosecutor again objected to the proposed
witnesses. The court reiterated that it wanted to consider the additional evidence to determine if
there existed any foundation for the testimony, explaining, “I can’t have a doctor testifying about
medications unless I have a witness saying I took them, and the time that they were taken.” The
court indicated that a similar foundation would have to be established for the testimony of the
therapist.
After defendant presented the testimony of his wife, the court asked defense counsel how
many more witnesses defendant intended to call. At that point, counsel indicated that he only
intended to call one more witness: defendant. Then, after defendant’s testimony, the court held a
brief bench conference, after which it indicted that defendant was the last witness, and closing
arguments would be heard in the morning. The following morning, defendant indicated that he
had no more witnesses and the defense rested.
As should be clear from the above summary, defendant never sought an adjournment or a
continuance. In the absence of a ruling by the trial court, this Court has nothing to review. People
v Buie, 491 Mich 294, 311; 817 NW2d 33 (2012). “[I]n the absence of a request for a continuance,
a trial court should assume that a party does not desire a continuance.” People v Elston, 462 Mich
751, 764; 614 NW2d 595 (2000).
Moreover, defendant does not present any argument or legal citation to explain how an
adjournment would have altered the result or outcome of the trial. Defendant represents that trial
counsel sought an adjournment because the prosecution was seeking to strike his medical witnesses
who would testify regarding defendant’s PTSD. However, the court denied the prosecution’s
pretrial motion to strike the witnesses. Then, during trial, the court never denied a request to call
the proposed witnesses. Instead, the defense rested its case without any indication that it still
wished to call the medical witnesses. “By failing to call an expert witness, despite the trial court’s
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indication that it would consider defendant’s ability to do so after defendant established a basis for
that testimony, defendant waived his claim that he was denied the opportunity to present a
defense.” In re Propp, ___ Mich App ___, ___; ___NW2d___ (2019) (Docket No. 343255).
Accordingly, defendant has failed to demonstrate a plain error affecting his substantial
rights.
VI. SCORING OF OV 1
Defendant argues that the trial court erred in its scoring of offense variable (OV) 1 of the
sentencing guidelines. We disagree.
When reviewing a trial court’s scoring decision, the court’s findings of fact 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). The Court reviews de novo the trial court’s determination
whether the facts as found satisfy the scoring conditions articulated in the statute. Id.
The court assessed 25 points for OV 1, involving the “aggravated use of weapon.” An
assessment of 25 points is appropriate if “[a] firearm was discharged at or toward a human being
or a victim was cut or stabbed with a knife or other cutting or stabbing weapon[.]” MCL
777.31(1)(a). Defendant argues that OV 1 should have been scored at only 15 points, which is the
appropriate score when “[a] firearm was pointed at or toward a victim or the victim had a
reasonable apprehension of an immediate battery when threatened with a knife or other cutting or
stabbing weapon.” MCL 777.31(1)(c). Thus, defendant concedes that the evidence was sufficient
to establish that he pointed a gun at or toward the complainant, but argues that it was insufficient
to establish that the weapon was discharged at the complainant. We disagree.
As discussed earlier, there was ample evidence that defendant pointed the gun at the
complainant and then fired. This is borne out by both the complainant’s testimony and the
surveillance video. At trial, the complainant testified that as he fled, he looked back and saw
defendant pointing a gun at him. This compelled the complainant to run faster. The complainant
then heard a shot fired. Given that the gun was fired after the complainant saw defendant pointing
the gun at him and the complainant perceived a need to run to avoid the gunfire, the evidence
supports the trial court’s assessment of 25 points for OV 1. The surveillance video evidence further
strengthens this conclusion. The video depicts defendant leveling the shotgun, aiming the gun in
the complainant’s direction, trying to pull the trigger, taking the safety off, and then firing. An
inference may be drawn that defendant discharged the gun in the complainant’s direction.
Accordingly, the trial court did not err when it assessed 25 points for OV 1.
VII. DEPARTURE SENTENCE
Defendant’s sentencing guidelines minimum sentence range was calculated at 0 to 17
months. The trial court sentenced defendant to 2 to 10 years’ imprisonment, which represents a
seven-month upward departure. Defendant does not challenge the reasonableness of the court’s
departure sentence, but asserts that the court failed to articulate its reasons for the sentence
imposed. We agree.
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A sentence imposed by the trial court must be proportionate to the seriousness of the
circumstances surrounding both the offense and the offender. People v Milbourn, 435 Mich 630,
636; 461 NW2d 1 (1990). The sentencing guidelines “remain a highly relevant consideration in a
trial court’s exercise of sentencing discretion . . . that the trial court must consult and take into
account when sentencing.” People v Lockridge, 498 Mich 358, 391; 870 NW2d 502 (2015)
(quotation marks and citations omitted). Trial courts may depart from the sentencing guidelines
“when in their judgment, the recommended range under the guidelines is disproportionate, in either
direction, to the seriousness of the crime.” Milbourn, 435 Mich at 657. “A sentence that departs
from the applicable guidelines range will be reviewed by an appellate court for reasonableness.”
Lockridge, 498 Mich at 392. “[T]he standard of review to be applied by appellate courts reviewing
a sentence for reasonableness on appeal is an abuse of discretion.” People v Dixon-Bey, 321 Mich
App 490, 520; 909 NW2d 458 (2017). Accordingly, the pertinent inquiry for appellate courts
reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating
the principle of proportionality. Id.
Of import to this appeal, this Court in Dixon-Bey emphasized that “a trial court must justify
a sentence imposed in order to facilitate appellate review.” Id. at 525 (quotation marks and
citations omitted). This requires that the sentencing court provide “an explanation of why the
sentence imposed is more proportionate to the offense and offender than a different sentence would
have been.” Id. (quotation marks and citations omitted).
In this case, the trial court did not adequately explain why its departure sentence of 2 to 10
years was more proportionate than a different sentence would have been. After the court
articulated defendant’s sentence, defendant objected to the upward departure. In response, the trial
court simply replied, “The guidelines are advisory, and based on the circumstances of the case, the
Court feels that they’re appropriate.” The court’s comments do not provide a sufficient
explanation to facilitate appellate review. Earlier, the court did make certain observations, but
those were primarily directed at reciting the general facts of the case; they provide little guidance
for determining why the court imposed an out-of-guidelines sentence. The court stated:
Okay, All right, the Court has reviewed the pre-sentence report and the
many letters that were submitted, and the sentencing memorandum. You have one
prior misdemeanor for discharge of a weapon without malice or injury in 2004
stemming from a road rage incident.
In my case, the jury found you guilty of a lesser included offense, and felony
firearm. You’re married with three children, living in Rochester Hills, employed
as firefighter in Detroit from 1989 to 2013, achieving the rank of lieutenant. You
left because of the physical requirement of the job, and you receive a pension. You
have some college credits. You drink daily. You have physical problems,
including hip replacements and neck injuries. You were diagnosed with PTSD in
2010, began treatment while on bond in my case.
This offense occurred in Rochester Hills. The victim was 14, and after
oversleeping and walking to school, he approached your home for directions. Your
wife began screaming, thinking a break-in was occurring. You ran down the stairs,
you grabbed your shotgun. You exited your home, and went onto our porch. You
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pointed the gun at the victim, . . . but the safety was on. You released the safety,
and then shot in the direction of the victim, who, fortunately, had the time to flee.
The victim has become fragile, and is enrolled in therapy, and prescribed
medication. Shooting at a teenager, leaving your premises has consequences.
Fortunately, no physical injury occurred.
Firemen are held in very high esteem for the service they perform. Even
right now, with considering California and the fires. Your actions weren’t in
conformity with the actions of those brave firefighters.
When imposing a departure sentence, the trial court must explain why the sentence
imposed is more proportionate than a different sentence would have been in order to facilitate
appellate review of the defendant’s sentence. People v Smith, 482 Mich 292, 304; 754 NW2d 284
(2008). Although the court referenced many of the facts of the case, it did not explain why a seven-
month departure is more proportionate than a different sentence would have been, nor did it explain
why the extent of the departure was appropriate. “A sentence cannot be upheld when the
connection between the reasons given for departure and the extent of the departure is unclear.” Id.
Because the trial court did not comport with the foregoing principles, we remand this case for the
trial court to either articulate its reasons for departing from the sentencing guidelines or resentence
defendant.3
We affirm defendant’s convictions, but remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Colleen A. O’Brien
/s/ James Robert Redford
3
On appeal, the prosecution does not reference anything that the trial court stated at sentencing,
and instead encourages us to affirm defendant’s sentence for reasons given by the prosecution at
trial. Doing so, however, would be inappropriate because, in general, “an appellate court should
avoid supplementing or otherwise justifying the trial court’s otherwise insufficient reasoning with
reasoning of its own.” Dixon-Bey, 321 Mich App at 531, citing Smith, 482 Mich at 304. The
appropriate remedy is to allow the trial court the opportunity to explain its sentence in the first
instance.
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