Opinion
No. 349837
11-24-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. AURIEN EMANUAL BROWN, 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 UNPUBLISHED Genesee Circuit Court
LC No. 16-039249-FC Before: JANSEN, P.J., and FORT HOOD and RONAYNE KRAUSE, JJ. PER CURIAM.
Defendant was convicted by a jury of armed robbery, MCL 750.529, and first-degree home invasion, MCL 750.110a(2). The jury acquitted defendant of first-degree felony murder, MCL 750.316(1)(b), felon in possession of a firearm (felon-in-possession), MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. We previously affirmed defendant's convictions and remanded for resentencing. On remand, the trial court sentenced defendant to consecutive prison terms of 427 months to 70 years for armed robbery and 17½ to 40 years for first-degree home invasion. Defendant again appeals, challenging the scoring of offense variables (OVs) 1, 2, and 3. Because the scores relied on conduct of which defendant was acquitted in contravention of People v Beck, 504 Mich 605, 629; 939 NW2d 213 (2019), and because correction of the error results in an alteration to the applicable guidelines ranges, we once again vacate defendant's sentences and remand for resentencing.
We note that Beck was not decided until more than a month after defendant's resentencing. At the time of defendant's sentencing, trial courts were permitted to consider acquitted conduct. See People v Golba, 273 Mich App 603, 614; 729 NW2d 916 (2007). Such consideration was not considered improper "because an acquittal does not necessarily mean that the defendant did not engage in criminal conduct, but only demonstrates a lack of proof beyond a reasonable doubt." People v Harris, 190 Mich App 652, 663; 476 NW2d 767 (1991). We do not fault the trial court for following the prevailing law at the time. However, we are now bound by Beck. See Pellegrino v AMPCO Sys Parking, 486 Mich 330, 352-354; 785 NW2d 45 (2010). --------
I. BACKGROUND
The following facts are taken from our prior opinion:
The victim, an elderly man, was shot and killed during the course of a home invasion and robbery at his Flint home. Defendant and three other codefendants, including defendant's brother Takais Brown, were charged in the crime. The defendants were tried jointly but with four separate juries. Over the course of 14 days of trial, the prosecution produced evidence that defendant's DNA, fingerprint, and shoeprint were found at the scene of the crime. The gun used in the commission of the crime was found in an apartment defendant shared with the other codefendants, and there was testimony that defendant had tried to hide the gun at a friend's house.In addition to the murder weapon, which was a .40-caliber pistol, a .38-caliber revolver was also found on the ground in front of the victim. One of the five bullets recovered from the scene was fired from the revolver. The origin of the other bullets was unclear.
On the eleventh day of trial, after the close of the prosecution's case-in-chief, Takais informed the trial court that he wished to testify. Defendant objected to his jury hearing Takais's testimony, but the trial court overruled that objection. Takais's testimony inculpated defendant and suggested that the other codefendants were not involved. After Takais's testimony, all of the parties rested. The prosecution and defendants gave closing arguments to their respective juries only, the juries were instructed separately, and then sent to deliberate. Takais's jury was the first to hear closing arguments and jury instructions. Later that same day, which was several days before defendant's jury heard closing arguments or jury instructions, Takais's jury acquitted him of all counts in open court. The other two codefendants were also acquitted of all charges. [People v Brown, unpublished per curiam opinion of the Court of Appeals, issued March 22, 2018 (Docket No. 334779), unpub op at pp 1-2.]
As noted, we previously affirmed defendant's convictions. The trial court departed from the applicable guidelines ranges by sentencing defendant, as a third-offense habitual offender, MCL 769.11, to consecutive prison terms of 40 to 60 years for armed robbery and 20 to 40 years for first-degree home invasion. We vacated his sentences and remanded for resentencing because "[o]ther than restating the facts of the case, all of which already were considered in defendant's OV [offense variable] and PRV [prior record variable] scores, the trial court failed to articulate any reason why it sentenced defendant above the guideline range for both of his convictions or why it ordered those sentences to be served consecutively." People v Brown, unpub op at p 7. The matter now returns to us after resentencing.
II. STANDARD OF REVIEW
"Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made." People v Blevins, 314 Mich App 339, 348-349; 886 NW2d 456 (2016). " 'Preponderance of the evidence' means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth." People v Cross, 281 Mich App 737, 740; 760 NW2d 314 (2008). "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." Hardy, 494 Mich at 438.
III. ANALYSIS
Defendant argues that he is entitled to resentencing because the trial court impermissibly relied on "acquitted conduct" when it assessed 25 points for OV 1, five points for OV 2, and 100 points for OV 3. We agree; therefore, the defendant is entitled to resentencing.
"Under the statutory sentencing guidelines, the trial court must score the applicable offense and prior record variables to determine the appropriate range for the minimum sentence." People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004). When reviewing the record evidence, a trial court may make "reasonable inferences arising from the record evidence to sustain the scoring of an offense variable." People v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012).
Shortly after defendant was resentenced, our Supreme Court held that "due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted." Beck, 504 Mich at 629. "When a jury has made no findings (as with uncharged conduct, for example), no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that conduct using a preponderance-of-the-evidence standard." Id. at 626. However, "when a jury has specifically determined that the prosecution has not proven beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent." Id.
This Court sought to provide further guidance to implementing our Supreme Court's decision, inferring from Beck that "a sentencing court must consider a defendant as having undertaken no act or omission that a jury could have relied upon in finding the essential elements of any acquitted offense proved beyond a reasonable doubt" but also that trial courts may "consider uncharged conduct and any other circumstances or context surrounding the defendant or the sentencing offense." People v Roberts, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 339424); slip op at 5. In a peremptory order, our Supreme Court reversed this Court's decision in Roberts, seemingly concluding that some contextual facts upon which this Court relied were, in fact, part of the conduct of which the defendant had been acquitted. People v Roberts, ___ Mich ___; ___ NW2d ___ (October 21, 2020). Peremptory orders from our Supreme Court are binding precedent to the extent they can be comprehended, even if only by reference to other opinions. See Woodring v Phoenix, 325 Mich App 108, 115; 923 NW2d 607 (2018). It appears, therefore, that the prohibition in Beck extends to any conduct that might implicitly be involved in the commission of a crime for which a defendant is acquitted.
We are constrained by our Supreme Court to conclude that the trial court relied on acquitted conduct in scoring all three challenged OVs. Defendant was acquitted of his firearms charges; therefore, in scoring his sentencing guidelines, the sentencing court must deem defendant as having had no possession, control, use, direction, or any other kind of involvement with the guns; or, by necessary implication, with the bullet-related injuries or damages found on the victim or at the scene. Defendant was also acquitted of murder, so he cannot be deemed to have any responsibility for killing the victim. We note that the victim sustained and died of a single gunshot wound to the chest, so defendant cannot be considered to have inflicted that injury.
However, defendant was convicted of armed robbery. Armed robbery consists of "(1) an assault and (2) a felonious taking of property from the victim's person or presence (3) while the defendant is armed with a dangerous weapon described in [MCL 750.529]." People v Lee, 243 Mich App 163, 168; 622 NW2d 71 (2000). Under the third prong, the defendant must (1) actually possess a dangerous weapon, (2) possess "some article that would lead a person to reasonably believe that the article is a dangerous weapon," (3) orally represent that he or she possesses a dangerous weapon, or (4) otherwise represent that he or she possesses a dangerous weapon. People v Henry, 315 Mich App 130, 137; 889 NW2d 1 (2016). Thus, although defendant may not be considered to have had a firearm, he might have possessed some kind of weapon, and he necessarily conveyed the impression of having a dangerous weapon.
A. OV 1
"OV 1 assesses points for the aggravated use of a weapon." MCL 777.31; People v Morson, 471 Mich 248, 256; 685 NW2d 203 (2004). The trial court scored OV 1 at 25 points, which is appropriate if "a firearm was discharged at or toward a human being . . . " MCL 777.31(1)(a). As noted, defendant cannot be scored points for anything firearm-related; there is no evidence of any stabbing, cutting, biological, radioactive, or incendiary or explosive weapon; and defendant cannot be considered to have caused the victim's injury. However, defendant's conviction of armed robbery necessarily means "a weapon was displayed or implied," so 5 points would be the appropriate score under OV 1. MCL 777.31(1)(e).
B. OV 2
"OV 2 addresses the lethal potential of a weapon possessed or used by a defendant during the commission of the offense." MCL 777.32; People v Young, 276 Mich App 446, 451; 740 NW2d 347 (2007). The trial court scored OV 2 at 5 points, which is appropriate if "the offender possessed or used a pistol, shotgun, or knife or other cutting or stabbing weapon." MCL 777.32(1)(d). Again, defendant cannot be scored points for anything firearm related, and there is no evidence that any cutting or stabbing weapon was present or used. OV 2 may be scored at 1 point if "the offender possessed or used any other potentially lethal weapon." MCL 777.32(1)(e). Unlike with OV 1, mere implication of a weapon is insufficient. Armed robbery does not require possession of an actual weapon. People v Banks, 454 Mich 469, 472-473; 563 NW2d 200 (1997). Furthermore, the assault element of armed robbery does not require actual touching, but rather only the perception of danger. See People v Gardner, 402 Mich 460, 474-475; 265 NW2d 1 (1978). Thus, defendant's armed robbery conviction establishes that he gave the impression of possessing a weapon, but does not establish that he actually did possess a weapon. Because there is no evidence that any weapons other than firearms were actually involved in the commission of the armed robbery, no points may be scored under OV 2.
C. OV 3
"OV 3 assesses points for physical injury to a victim." MCL 777.33; Morson, 471 Mich at 256. The trial court scored OV 3 at 100 points, which is appropriate if "a victim was killed" and "homicide is not the sentencing offense." MCL 777.33(1)(a), (2)(b). However, as discussed, defendant was acquitted of murder, so he cannot be considered to have killed the victim; and he was acquitted of the firearms charges, so he cannot be considered to have inflicted the injury to the victim. Although the victim was killed, and clearly one of the four individuals involved in the home invasion killed the victim, defendant's acquittals and the absence of any other evidence necessarily means defendant cannot be considered to have injured the victim. Thus, zero points should have been scored. See MCL 777.33(1)(f).
IV. CONCLUSION
At his resentencing, defendant's total prior record variable (PRV) score was 35, and his total OV score was 145. His sentencing offense was a Class B crime, and his scores placed him in level D-VI, so his minimum guidelines range was 84-140 months. MCL 777.63. As a third-offense habitual offender, his term was subject to doubling. MCL 769.11(1)(a). However, the subtraction of 125 points from his OV score reduces his guidelines level to D-II, which has a minimum guidelines range of 51-85 months. Because his guidelines range has changed, defendant must be resentenced. See People v Biddles, 316 Mich App 148, 156; 896 NW2d 461 (2016).
We vacate defendant's sentences and remand for resentencing. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
/s/ Amy Ronayne Krause