Following a jury trial, defendant appeals as of right his conviction of assault with intent to do great bodily harm (AWIGBH), MCL 750.84. The trial court sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 7 to 20 years’ imprisonment. Because the prosecution presented sufficient evidence to support defendant’s conviction for AWIGBH and any error related to the scoring of prior record variable (PRV) 5 does not entitle defendant to resentencing, we affirm.
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 ground and told him, “I’m King Tut, bitch.” Afterward, defendant left Allbright’s house, purchased beer at a party store, and returned to his apartment.
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
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 law of this state, a political subdivision of this state, another state, a political subdivision of another state, or the United States if the conviction was entered before the sentencing offense was committed.” MCL 777.55(3)(a). However, for purposes of PRV 5, not all prior misdemeanor convictions may be counted when determining how many prior misdemeanor convictions a defendant has. MCL 777.55(2). Specifically, except as provided in MCL 777.55(2)(b), which does not apply in this case, a prior misdemeanor conviction may be counted “only if it is an offense against a person or property, a controlled substance offense, or a weapon offense.” MCL 777.55(2)(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-
stracting, and four convictions for possession of drug paraphernalia.
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,
To make this determination, we must ascertain what the Legislature intended when it authorized the counting of a prior misdemeanor conviction under PRV 5 that qualified as a “controlled substance offense.” MCL 777.55(2)(a). The Code of Criminal Procedure and, in particular, the statutory provisions relating to the scoring of PRV 5 do not include a definition of the phrase “controlled substance offense.” However, this Court has previously recognized that the phrase relates to Article 7 of the Public Health Code. See People v Endres,
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 linked to controlled substances. For this reason, offenses involving drug paraphernalia qualify as controlled substance offenses. Specifically, “drug paraphernalia” refers to “any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance . . . .” MCL 333.7451 (emphasis added). Acts involving drug paraphernalia are then criminalized in MCL 333.7453 and MCL 333.7455. Notably, the statutory definition of drug paraphernalia and the related provisions criminalizing activities associated with drug paraphernalia are found in Part 74 of Article 7, and Part 74 is specifically titled “offenses and penalties.”
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,
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,
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 equally without merit. Once a defendant raises the issue of self-defense and “satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist,” the prosecution must “exclude the possibility” of self-defense beyond a reasonable doubt. People v Dupree,
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,
Affirmed.
Notes
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,
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,