Following a jury trial, defendant appeals as of right his conviction of assault with intent to do
Defendant’s conviction arises from a stabbing that occurred on March 7, 2012. At the time of the stabbing, the victim, Luther Allbright, lived with two women, Maria Castillo and Sandra Williams. The evening before the stabbing, defendant and Williams went to defendant’s apartment, approximately two blocks from All-bright’s house. When Williams did not return to All-bright’s house, Castillo became concerned, and she and Allbright went to defendant’s apartment. After Castillo aggressively knocked on the apartment door, defendant opened the door and punched Castillo, at which time Allbright departed from the building without entering defendant’s apartment. Sometime later, Castillo and Williams also departed; but defendant ran after the women and stopped them. Defendant frisked Williams, supposedly looking for possessions he claimed were missing from his apartment.
The following afternoon, defendant went to All-bright’s home and a fight ensued. In particular, according to Allbright, defendant entered his home uninvited and asked, “Why did you bring all that drama to my house?” Defendant then punched Allbright in the face, after which defendant wrestled him to the ground. While the two rolled on the ground, defendant stabbed Allbright twice in the left side of his back, once in the right side of his back (puncturing Allbright’s lung), and once in his left arm. He then pinned Allbright to the
At trial, defendant conceded that he brought a knife to Allbright’s home and that he stabbed Allbright, but he claimed that he acted in self-defense. According to defendant’s version of events, he suffers from several medical conditions, including congestive heart failure. Defendant maintained that, during the fight, Allbright ended up on top of defendant while they were wrestling on the ground and, because of his medical conditions, defendant could not breathe, which prompted him to pull a knife and stab Allbright several times.
The trial court instructed the jury on the theory of self-defense; however, the jury convicted defendant of AWIGBH.
On appeal, defendant first argues that the trial court erred when it assessed 20 points under PRV 5 on the basis of defendant’s prior misdemeanor convictions. Defendant failed to preserve his challenge to the scoring of PRV 5 for appeal, meaning his claim is unpreserved and reviewed for plain error affecting his substantial rights. People v Loper, 299 Mich App 451, 456-457; 830 NW2d 836 (2013); MCL 769.34(10).
Relevant to defendant’s claim, under MCL 777.55(1)(a), PRV 5 should be scored at 20 points when the offender has seven or more prior misdemeanor convictions. The phrase “prior misdemeanor conviction” refers to “a conviction for a misdemeanor under a
In this case, defendant has numerous misdemeanor convictions that the trial court considered when it assessed defendant 20 points under PRV 5. On appeal, defendant acknowledges that he has 13 misdemeanor convictions, including four for possession of drug paraphernalia, but he asserts that he should have been assessed only 10 points, the score appropriate when the offender has 3 or 4 misdemeanor convictions. See MCL 777.55(1)(c). Defendant argues that only four of his misdemeanor offenses — aggravated assault, resisting and obstructing a police officer, and two trespassing convictions — qualify as offenses against a person or property, a controlled substance offense, or a weapon offense. He specifically asserts that his four convictions for possession of drug paraphernalia may not be counted as controlled substance offenses.
The prosecution concedes error in the scoring of PRV 5, acknowledging that not all of defendant’s misdemeanor convictions should have been counted. However, the prosecution identifies what it considers to be six offenses that could have been properly counted under PRV 5: aggravated assault, resisting and ob-
If the prosecution is correct, any error in the trial court’s scoring was harmless as it did not affect defendant’s ultimate PRV score and therefore did not alter the appropriate guideline range. In contrast, if defendant’s view is correct, a PRV 5 score of 10 points would necessitate resentencing because it would affect defendant’s ultimate PRV score and thus alter the appropriate guidelines range. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring error does not alter the appropriate guidelines range, resentencing is not required.”). Specifically, with a PRV 5 score of 20 points, defendant’s total PRV score was 55 points, placing him in PRV Level E. MCL 777.65. A reduction to 15 points, as advanced by the prosecution, results in a total PRV score of 50 points, which still places defendant in PRV Level E. In contrast, a 10-point score for PRV 5, as championed by defendant, reduces defendant’s total PRV score to 45 points, placing him in PRV Level D. Id. Because error, if there is error, in the counting of defendant’s misdemeanor drug paraphernalia offenses would necessitate resentencing, we must decide whether misdemeanor convictions for possession of drug paraphernalia qualify as controlled substance offenses for purposes of scoring PRV 5.
In keeping with Endres, we again turn to Article 7 of the Public Health Code to ascertain whether misdemeanor convictions for possession of drug paraphernalia may be counted toward the scoring of PRV 5 as controlled substance offenses. A definition of drug paraphernalia is specifically provided in Article 7 at MCL 333.7451, and this definition makes plain that, while drug paraphernalia is not itself a controlled substance, certain acts related to drug paraphernalia have been criminalized because drug paraphernalia is inextricably
Accordingly, we conclude that, in this case, the trial court properly counted defendant’s misdemeanor convictions for possession of drug paraphernalia under PRV 5.
On appeal, defendant also argues that the evidence presented at trial was insufficient to sustain his conviction for AWIGBH. Specifically, defendant maintains that the prosecution failed to establish that he possessed the requisite intent to cause great bodily harm. He also asserts that the prosecution failed to disprove his claim of self-defense.
Challenges to the sufficiency of the evidence are reviewed de novo, 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 Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012). All conflicts in the evidence are resolved in favor of the prosecution. Id. This Court will not interfere with the trier of fact’s determinations regarding the weight of the evidence or the credibility of witnesses. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
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 Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997). AWIGBH is a specific intent crime. Id. The intent to do great bodily harm less than murder is “an intent to do serious injury of an aggravated nature.” People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005) (quotation marks and citation omitted). “If a defendant has such intent, the fact
In this case, defendant went to Allbright’s home armed with a knife to confront him over a perceived wrong from the previous evening. Allbright testified that defendant entered his home without invitation, threatened him, instigated a fight, and wrestled him to the ground. Defendant then took out his knife and stabbed Allbright four times. Three of the stab wounds were to Allbright’s back, and one succeeded in puncturing his lung. After stabbing Allbright, defendant pinned him to the ground and proclaimed that he was “King Tut, bitch.” Defendant then walked away from the incident, purchased beer, and went home. On the whole, this evidence — particularly defendant’s instigation of the fight, his use of a knife, and the serious injury suffered by Allbright — was sufficient to demonstrate that defendant intended to cause a serious injury of an aggravated nature.
To the extent defendant argues that the prosecution failed to disprove his claim of self-defense, his claim is
An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if...
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
In this case, ample evidence existed to discount defendant’s claim of self-defense. According to All-bright, defendant entered his home uninvited and attacked him. From this, it appears defendant had no legal right to be in the home, and that, by attacking Allbright, defendant engaged in the commission of a crime. In these circumstances, defendant could not justifiably claim self-defense. See MCL 780.972(1)(a). Further, Allbright was never armed with any sort of weapon, and there is no indication that Allbright used deadly force against defendant. The only evidence that defendant had reason to fear for his life came from defendant’s testimony, in particular defendant’s claim that Allbright was on top of him during their struggle, causing him difficulty breathing. But this testimony was in conflict with Allbright’s description of events, and the credibility of defendant’s testimony was a question for the jury. See Kanaan, 278 Mich App at 619.
Affirmed.
The jury found defendant not guilty of assault with intent to murder, felonious assault, and first-degree home invasion.
We note that, in contrast to the prosecution, defendant includes two trespassing convictions as misdemeanors that may be scored under PRV 5, presumably on the premise that they constitute crimes against property. Because, in this case, scoring of these trespassing offenses will not alter the appropriate guideline range, we find it unnecessary to consider whether misdemeanor trespassing convictions may be scored under PRV 5. Cf. People v Crews, 299 Mich App 381, 399 n 10; 829 NW2d 898 (2013).
Capitalization altered.
Capitalization altered; italicization omitted.
Given this result, we see no merit in defendant’s claim that counsel rendered ineffective assistance by failing to object to the scoring of defendant’s misdemeanor convictions for possession of drug paraphernalia. Because these convictions were properly scored, any objection by counsel would have been futile, and counsel cannot be considered ineffective for failing to raise a futile objection. See People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).