Opinion
No. 344162
05-16-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ADRIAN DOMONIQUE WILKERSON, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court
LC No. 16-000397-FH Before: SWARTZLE, P.J., and M. J. KELLY and TUKEL, JJ. PER CURIAM.
Defendant appeals by right his convictions of witness retaliation, MCL 750.122(8), and assault, MCL 750.81(1). The trial court sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to serve 3 to 15 years in prison for the witness-retaliation conviction and 108 days in jail for the assault conviction. The trial court also ordered defendant to pay $700 in court costs. We affirm defendant's convictions and sentences but remand to the trial court to establish a factual basis for the amount of the court costs imposed.
I. BACKGROUND
In early February 2016, the victim, Christopher Scott, testified in the homicide trial of DeShawn Carter. Defendant knew Carter and attended portions of the trial. Witnesses at the Carter trial and the victim's family members "were uncomfortable and felt threatened by" defendant's presence in the courtroom because he appeared to be taking pictures of witnesses with his cell phone. Following the trial, Carter was convicted of homicide.
On the evening of February 22, 2016, Scott was in a party store when defendant walked up, punched him in the face, and they began to fight. Defendant was accompanied by Quinton Williams and Keith Medlin. Defendant, Williams, and Medlin kicked Scott "millions of times" "from [his] waist up to [his] head." When Officer Douglas Hall of the Lansing Police Department saw Scott shortly after the fight, Scott's left eye was swollen shut and he had scrapes above his right eye into his right ear. Scott did not want to seek medical treatment, but his fiancée encouraged him to go to the hospital. Scott went to the emergency room, where he was diagnosed with a fractured nose, but he did not receive any further treatment.
Scott refused to testify at the trial in this case and the trial court held him in contempt of court for his refusal. Because Scott was unavailable to testify, the prosecutor read Scott's testimony from the preliminary examination into the record at trial under MRE 804(a)(2). Scott testified that when defendant punched him, defendant said, "This is for snitching." During the fight, Williams also told Scott, "This is for snitching." Additionally, former Lansing Police Department detective Mark Lewandowsky testified that after he and Officer Hall interviewed defendant and left the room, defendant said, "Fucking snitches," which was recorded on the videotape of the interview.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Defendant first claims that there is insufficient evidence to support his conviction of witness retaliation. We disagree.
This Court reviews de novo a defendant's challenge to the sufficiency of the evidence supporting his conviction. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). Evidence is sufficient if a "rational trier of fact could have found that the essential elements of the crime were proved beyond reasonable doubt." People v Erickson, 288 Mich App 192, 196; 793 NW2d 120 (2010). This Court will not infringe upon "the jury's assessment of the weight and credibility of witnesses or the evidence, and the elements of an offense may be established on the basis of circumstantial evidence and reasonable inferences from the evidence." People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013) (citation omitted). Conflicting testimony and disputed facts are to be resolved by the jury. See People v Yost, 468 Mich 122, 133 n 14; 659 NW2d 604 (2003).
The offense of retaliating against a witness requires that the defendant "retaliates, attempts to retaliate, or threatens to retaliate against another person for having been a witness in an official proceeding." MCL 750.122(8). "Retaliate" means to "[c]ommit or attempt to commit a crime against any person," or to "[t]hreaten to kill or injure any person or threaten to cause property damage." MCL 750.122(8)(a),(b). An "official proceeding" includes a proceeding heard before a judicial official authorized to hear evidence under oath. MCL 750.122(12)(a).
There is no dispute that Scott was a witness in an official proceeding when he testified in the Carter trial and that defendant was present at that trial. Defendant also does not dispute that he assaulted Scott, and he admits that he "threw the first punch." The issue is whether defendant assaulted Scott in retaliation for Scott's testimony in the Carter trial. Scott testified that when defendant punched him at the party store, he told Scott, "This is for snitching." Scott also stated that Williams told him, "This is for snitching." Additionally, Lewandowsky testified that after he interviewed defendant about the incident and left the room, defendant stated, "Fucking snitches," while he was being recorded by a video camera.
Defendant testified at trial that he did not tell Scott that he attacked him for snitching, and that the assault was a reaction to Scott raising his middle finger at him shortly before they encountered one another in the party store. He argues that this testimony, in addition to his lack of interaction with Scott during and immediately following the Carter trial, undermines a finding that he assaulted Scott in retaliation for Scott's testimony in the Carter trial. The jury heard defendant's testimony about Scott's actions and about defendant's knowledge of where Scott lived and his ability to contact him. Although there was conflicting testimony about why defendant assaulted Scott, it was for the jury to resolve those conflicts. See Yost, 468 Mich at 133 n 14. A rational trier of fact could have reasonably concluded that defendant assaulted Scott in retaliation for Scott's testimony in the Carter trial. Therefore, defendant's challenge to the sufficiency of the evidence supporting his conviction for witness retaliation is without merit.
B. SENTENCING
Defendant next argues that the trial court erred by assessing 10 points for Offense Variable (OV) 3 and by imposing an unreasonable sentence. We disagree with both claims.
1. OV 3
"A trial court's findings of fact at sentencing must be supported by a preponderance of the evidence; this Court reviews a trial court's findings of fact for clear error. This Court reviews de novo whether the facts are adequate to satisfy the statutory criteria for scoring the variable." People v Maben, 313 Mich App 545, 549; 884 NW2d 314 (2015) (citation omitted).
OV 3 concerns physical injury to a victim. MCL 777.33(1). Under this variable, the trial court must assess 10 points if "[b]odily injury requiring medical treatment occurred to a victim," but the trial court may only assess five points if "[b]odily injury not requiring medical treatment occurred to a victim." MCL 777.33(1)(d),(e). The term "bodily injury" encompasses "anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence." People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). MCL 777.33(3) further provides that the phrase "requiring medical treatment" refers to "the necessity for treatment and not the victim's success in obtaining treatment." Record evidence must support an assessment of points for OV 3. People v Endres, 269 Mich App 414, 417-418; 711 NW2d 398 (2006), overruled in part on other grounds by People v Hardy, 494 Mich 430, 438 n 18; 835 NW2d 340 (2013). When the victim did not receive any medical treatment and there is "no evidence that treatment was necessary," the trial court may not assess 10 points for OV 3. People v Armstrong, 305 Mich App 230, 246; 851 NW2d 856 (2014).
Officer Hall testified that when he met with Scott at his home following the assault, Scott's left eye was swollen shut, he had a contusion above his right eye, and there was a slight mark on his right ear. Scott testified that he did not want to obtain medical treatment for his injuries, but he went to the emergency room at the urging of his fiancée. Although he did not receive further treatment, he was diagnosed with a fractured nose. On these facts, we conclude that the trial court did not err by assessing 10 points for OV 3. Scott clearly suffered bodily injury requiring medical treatment.
Even if defendant's argument had merit and the trial court should have assessed only five points for OV 3, defendant would not be entitled to resentencing. Witness retaliation is a Class D felony. MCL 777.16f. At sentencing, the trial court assessed a total OV score of 20 points and a total prior record variable (PRV) score of 30 points. Therefore, the applicable minimum-sentence range for the witness retaliation conviction was 5 to 23 months in prison. MCL 777.65. Because the trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12(1)(b), the upper limit of the recommended minimum-sentence range was increased by 100%, MCL 777.21(3)(c). Therefore, the applicable minimum-sentence range for the witness-retaliation conviction was 5 to 46 months in prison. Reducing defendant's OV 3 score to five points would reduce his total OV score to 15 points, which would not alter the applicable minimum-guidelines range of 5 to 46 months. See MCL 777.65; MCL 777.21(3)(c). Because any scoring error regarding OV 3 would not affect the applicable minimum-guidelines range, defendant is not entitled to resentencing based on the trial court's scoring of OV 3. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006); People v Biddles, 316 Mich App 148, 162-163; 896 NW2d 461 (2016).
2. REASONABLENESS
This Court reviews a defendant's unpreserved challenge to his sentence for plain error affecting substantial rights. People v Meshell, 265 Mich App 616, 638; 696 NW2d 754 (2005); see also People v Lockridge, 498 Mich 358, 397; 870 NW2d 502 (2015). This Court reviews "for an abuse of discretion whether a sentence is proportionate to the seriousness of the offense." People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011).
The trial court must use the sentencing guidelines when imposing a sentence. MCR 6.425(D). This includes consulting the guidelines, calculating the recommended guidelines-sentence range, and taking that range into account when determining a defendant's sentence. People v Steanhouse, 500 Mich 453, 470; 902 NW2d 327 (2017); Lockridge, 498 Mich at 392. The trial court must also articulate its reasons for imposing a particular sentence on the record at sentencing, and the articulation is sufficient if the trial court expressly relies on the sentencing guidelines. People v Conley, 270 Mich App 301, 312-313; 715 NW2d 377 (2006).
"When a trial court does not depart from the recommended minimum sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or the trial court relied on inaccurate information." People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). In this case, the trial court imposed a minimum sentence of 36 months, which was well within the applicable guidelines range of 5 to 46 months.
Defendant argues that the sentences for his two convictions were inconsistent because he was sentenced to serve 108 days in jail for his misdemeanor-assault conviction and 3 to 15 years in prison for his witness-retaliation conviction. Although defendant's conduct of attacking Scott underlies both convictions, defendant fails to address that the trial court sentenced him for misdemeanor assault and felony witness retaliation. Further, because witness retaliation is punishable by up to 10 years in prison, MCL 777.16f, and because the trial court sentenced defendant as a fourth-offense habitual offender, the trial court could have imposed a sentence of life in prison, MCL 769.12(1)(b). Because defendant's sentence is within the applicable guidelines range, we must affirm his sentence. MCL 769.34(10). That being said, even setting aside the applicability of MCL 769.34(10), we also conclude that the sentence imposed by the trial court was proportionate to the offense and to the offender.
C. COURT COSTS
Defendant argues that the trial court erred by imposing $700 in court costs without articulating a factual basis for the amount imposed. We agree.
MCL 769.1k(1)(b)(iii) provides, in relevant part:
(1) If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred by statute or sentencing is delayed by statute:
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(b) The court may impose any or all of the following:
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(iii) Until October 17, 2020, any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case.
The costs incurred by the trial court may include, but are not limited to, "[s]alaries and benefits for relevant court personnel," "[g]oods and services necessary for the operation of the court," and "[n]ecessary expenses for the operation and maintenance of court buildings and facilities." MCL 769.1k(1)(b)(iii)(A)-(C). Although the trial court is not required to calculate separately the court costs imposed on a defendant, the trial court must establish a factual basis for the costs. People v Konopka (On Remand), 309 Mich App 345, 359-360; 869 NW2d 651 (2015). "[W]ithout a factual basis for the costs imposed, we cannot determine whether the costs imposed were reasonably related to the actual costs incurred by the trial court, as required by MCL 769.1k(1)(b)(iii)." Id.
In this case, the trial court did not articulate a factual basis for its imposition of costs. Accordingly, this Court cannot determine whether the amount was reasonably related to the actual costs incurred by the trial court and a remand is required. We therefore remand to the trial court to establish a factual basis for the imposition of $700 in court costs or to impose a different amount (or none). In all other respects, we affirm.
Remanded. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Michael J. Kelly
/s/ Jonathan Tukel