Defendant appeals as of right his jury-trial conviction of assault with intent to commit murder, MCL 750.83. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve a life sentence. Because the prosecution presented sufficient evidence from which a jury could convict defendant beyond a reasonable doubt and defendant’s claims of prosecutorial misconduct, ineffective assistance of counsel, and sentencing error are without merit, we affirm defendant’s conviction and life sentence. We remand only for ministerial correction of defendant’s judgment of sentence to include 282 days of jail credit.
i
Before being attacked, the victim, Ervin Ritthaler, Jr., had been involved in an altercation with the sister of one of defendant’s friends. Defendant and two other men confronted the victim about the earlier incident. The confrontation soon became violent, and defendant stabbed Ritthaler several times in the back with a knife he had secreted on his person. The wounds resulted in a cascade of severe medical complications for Ritthaler, including multiple organ failures, cardiac arrest, brain injury, and, ultimately, amputation of both of his legs below the knee.
ii
Defendant first argues on appeal that his conviction cannot stand because the prosecution failed to present sufficient evidence at trial. We review de novo a challenge on appeal to the sufficiency of the evidence. People v Hawkins,
Defendant specifically asserts that because the prosecution’s case rested extensively on circumstantial evidence, he could have been convicted only if that evidence proved the prosecution’s theory of guilt with “impelling certainty.” This is a misstatement of the law. Circumstantial evidence and the reasonable inferences it permits are sufficient to support a conviction, provided the prosecution meets its constitutionally based burden of proof beyond a reasonable doubt. People v Nowack,
Defendant also argues that the prosecution presented insufficient evidence to establish that he had the requisite specific intent. The evidence at trial established that defendant secreted a knife before leaving with his companions to confront Ritthaler. In addition, defendant told his companions that he had “stuck [Ritthaler] five times.” A trier of fact could reasonably have interpreted this statement as an admission that he knowingly stabbed the victim many times. The medical evidence showed that Ritthaler’s right back had four knife wounds. Defendant’s intent could be inferred from any facts in evidence, including the nature, extent, and location of these wounds. People v Mills,
Defendant also challenges the credibility of the testimony of his companions and codefendants, arguing that they were not credible because each man received a favorable plea deal in exchange for his testimony. Both men, however, acknowledged their respective plea agreements during their testimony. Not only does this Court scrupulously leave questions of credibility to the trier of fact to resolve, People v Williams,
Defendant also highlights a statement the trial court made at sentencing to the effect that it did not appear that defendant intended the extent of the injury sustained by Ritthaler. The record reveals that the trial court actually stated that it was “guessing” that the injuries sustained were “more serious than [defendant] ever intended. . . .” The court’s conjecture regarding defendant’s motivation is, by its very nature, pure speculation, as opposed to the jury’s determination of guilt beyond a reasonable doubt.
In sum, taken as a whole and viewed in a light most favorable to the prosecution, the evidence presented
in
Defendant next argues that he was denied a fair trial when the prosecutor engaged in numerous instances of misconduct. See People v Dobek,
Defendant first asserts that the prosecutor engaged in misconduct when he stated during his opening statement that Ritthaler had many health problems stemming from the attack, and then stated during closing argument that Ritthaler was confined to a wheelchair. Defendant contends that these comments were improper because they were irrelevant, unduly prejudicial, intended to elicit the jury’s sympathy for the victim, and, in relation to the second statement, constituted facts not in evidence.
The record reveals that the prosecutor actually stated during his opening statement that although Ritthaler had no memory of the night he was attacked, “he can tell you about his state of health today, and he can testify to a number of other aspects of information which will be useful.” When read in context with the rest of the prosecutor’s opening statement, it is apparent that the prosecutor was attempting to describe Ritthaler’s anticipated testimony. While Ritthaler ultimately did not testify, his treating physicians did testify and described Ritthaler’s condition on being brought
The prosecutor’s statement during closing argument that Ritthaler was now in a wheelchair was conclusory given the record evidence. “[A] prosecutor may not make a statement of fact to the jury that is unsupported by the evidence . . . .” People v Schumacher,
Defendant also argues that the prosecutor interjected his personal beliefs into the case when he stated during his opening statement that defendant’s companions went to see Ritthaler in order to talk to him but defendant had a different intent. Rather than offering his personal beliefs about defendant’s guilt, the prosecutor was simply summarizing the anticipated testimony of defendant’s companions, as well as providing a fair view of what the evidence would show. Opening statement is the appropriate time to state the facts that will be proved at trial. People v Moss,
Defendant also argues that the prosecutor engaged in misconduct when he argued during closing argument that it would not be reasonable to find defendant guilty of the lesser included offense of assault with intent to commit great bodily harm less than murder or assault with a dangerous weapon. However, when read in context of the entire closing argument, it is apparent that the prosecutor was asking the jury to convict
Defendant’s final claim of prosecutorial misconduct relates to testimony elicited from an Alpena Police Department detective that the trial testimony of one of defendant’s companions was consistent with an earlier police interview. While a witness cannot properly comment on the credibility of another witness, People v Buckey,
Because defendant has not shown error with regard to any of his assignments of prosecutorial misconduct, his concomitant arguments that he was denied due process when the trial court “failed to control the prosecutor” or that he was denied effective assistance of counsel when trial counsel failed to object to the prosecutor’s actions also fail. Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel. People v Snider,
IV
Defendant next challenges his life sentence. He first argues, on the basis of Blakely v Washington, 542 US
Defendant next argues that the trial court improperly scored offense variables (OVs) 4 and 19 for reasons besides those related to the principle underlying Blakely.
With regard to OV 4, a sentencing court must assess 10 points under OV 4 if the victim sustained serious psychological injury that may require professional treatment, although treatment need not actually have
With regard to OV 19, MCL 777.49(c) requires that the sentencing court assess 10 points if “[t]he offender otherwise interfered with or attempted to interfere with the administration of justice[.]” Defendant challenges the trial court’s assessment of 10 points, arguing that his conduct of leaving the scene of the crime and leaving the state did not constitute interference with the administration of justice because he was not actually being chased by police when he left. The prosecution responds that additional conduct on the part of defendant constituted interference with the administration of justice under the language of the statute. The prosecution specifically argues that defendant attempted to impede the investigation of the crime by wiping the knife down, asking one of his companions to dispose of it, and asking others to lie about his whereabouts on the night of the crime.
The primary rule for determining legislative intent is that statutory language is to be strictly construed according to its plain and ordinary meaning. People v Noble,
We also reject defendant’s attendant argument that he was denied effective assistance of counsel when his trial counsel agreed that the trial court had properly
v
Defendant next argues that the trial court erred by refusing to strike certain information from the PSIR. Defendant first takes issue with a statement contained in the PSIR that he “has a history of offenses similar to the current conviction.” Defendant asserts that because this instance is the first in which he was charged with assault with intent to murder, the other conduct listed in the PSIR was insufficient to qualify as similar to the conduct that resulted in the current conviction. The term “similar” is defined by the Random House Webster’s College Dictionary (1997) as “having a likeness or resemblance, [especially] in a general way[.]” The definition does not require that each occurrence be identical to the others or that each circumstance could be charged under the same criminal statute.
The “Criminal Justice” section of defendant’s PSIR reveals that in 1997 defendant was involved in a stabbing outside a bar and that he was involved in another incident involving a knife in 1998, when he threatened two witnesses to the 1997 incident. The final charge in both of these incidents was assault with intent to commit great bodily harm less than murder, which is a necessarily included lesser offense of assault with intent to murder. Brown,
Finally, defendant asserts that the trial court should not have considered information related to his prior offenses when the information had not been proved beyond a reasonable doubt before a jury. To the extent that this argument rings of Blakely, it fails, as we discussed earlier in part III. In any event, it is well established that a PSIR may include information that would not be admissible at trial, including information about prior convictions as well as other criminal activity allegedly committed by the defendant. People v Fleming,
We note that defendant is entitled to 282 days’ jail credit for time served in jail before sentencing. See MCL 769.11b. Jail credit was not included in the judgment of sentence.
VI
In sum, defendant’s claims that there was insufficient evidence to support his conviction, that he was denied a fair trial because of prosecutorial misconduct, that his sentences are invalid and that he is entitled to resentencing, that he was denied effective assistance of counsel at trial, that the trial court denied him a fair trial, and that the trial court improperly considered inaccurate information in his PSIR all fail, and we affirm defendant’s conviction and life sentence.
Defendant’s conviction and life sentence are affirmed. We remand this case to the trial court for ministerial correction of the judgment of sentence to include 282 days’ jail credit. We do not retain jurisdiction.
Notes
Defendant also claims that defense counsel’s failure to object to the prosecutor’s wheelchair reference amounted to ineffective assistance of counsel. Defense counsel’s failure to object to the prosecutor’s wheelchair reference was likely a strategic decision. See People v Bahoda,
Defendant accepted the scoring of the sentencing guidelines at the time of sentencing, but did file a subsequent motion for resentencing.
We recognize that our Supreme Court has explained that, as a general matter, offense variables should not be scored on the basis of acts occurring after the completion of a crime unless the applicable offense variable statute otherwise provides. People v McGraw,