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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 17, 2015

v No. 321806 Saginaw Circuit Court ERIC LAMONTEE BECK, LC No. 13-039031-FC

Defendant-Appellant.

Before: B OONSTRA , P.J., and S AAD and H OEKSTRA , JJ.

P ER C URIAM

.

Following a jury trial, defendant was convicted of felon in po ssession of a firearm, MCL 750.224f, and possession of a firear m during the commission of a felony (felony firearm), MCL 750.227b. He was acquitted of murd er, carrying a dangerous wea pon with unlawful intent, and two felony firearm charges. The trial court departed from the recommended sentencing range under the now-advisory legislative guidelines and sentenced def endant as an habitual offender, fourth offense, MCL 769.12, to 240 to 400 months’ imprisonment for the felon in possession conviction and to a consecutive sentence of 5 years’ imprisonme nt for the felony firearm conviction. Defendant appeals as of right. We affirm defendan t’s convictions. However, in light of People v Steanhouse , __ Mich App, __; __ NW2d __ (2015), we remand for a Crosby 1 hearing.

On June 11, 2013, Hoshea Pruitt was shot to death. Mary Loyd- Deal, a witness who died before trial, saw the shooting and identified defendant as the shooter in her preliminary examination testimony, which was presented to the jury. Loyd-D eal explained that defendant
shot Pruitt after a verbal alterc ation about a woman named Raje ana Drain. The shooting was also witnessed by Jamira Calais. Although Calais could not ide ntify defendant, she testified that
she saw a man in a black shirt run across the street after a ma n in a white shirt was shot three or four times. She saw the man with the black shirt with a gun. The prosecution also presented testimony from Aaron Fuse, who te stified that defendant called him a couple of days after Pruitt’s death and told Fuse that he had done “something stupid ” and shot someone while arguing about a woman.

1 United States v Crosby , 397 F3d 103 (CA 2 2005).-2- Defendant was charged with murder, carrying a dangerous weapon with unlawful intent, felon in possession of a firearm, and three counts of felony-fi rearm. As noted, the jury convicted defendant of felon in possessionof a firearm and one count of felony-firearm, but returned a verdict of not guilty with respe ct to murder, carrying a danger ous weapon with unlawful intent, and the remaining two counts of felony-firearm. Defendant’s re commended minimum sentencing range under the legisl ative guidelines as a fourth-h abitual offender, MCL 769.12, was 22 to 76 months for felon in possession of a firearm. The tria l court departed upward from this range and sentenced defendant to 240 to 400 months’ imprisonmen t for felon in possession of a firearm, which was to be served consecutively to a 5 year sente nce for felony-firearm. Defendant now appeals as of right.

I. SENTENCING

On appeal, defendant raises seve ral challenges r egarding the s entence imposed. First, defendant contends that the trial court impermissibly engaged i n judicial fact-finding that increased the floor of his minimum sentencing range in violatio n of Alleyne v United States

, __ US __; 133 S Ct 2151; 186 L Ed 2d 314 (2013). Specifically, de fendant asserts that the trial court’s scoring of offense variab les required the trial court t o find facts beyond those established by the jury. Based on this required judicial fact-finding, def endant claims that he is entitled to resentencing.

Defendant failed to raise thi s judicial fact-finding argument regarding of the scoring of offense variables in the trial court, meaning that his Alleyne claim is unpreserved and reviewed for plain error affecting his substantial rights. See People v Lockridge , __ Mich __, __; __ NW2d __ (2015), slip op at 30. Recently, in Lockridge , the Michigan Supreme Court determined that Michigan’s sentencing guidelines violate the Si xth Amendment right to a jury trial insofar as they require a sentencing judge to find facts at sentencing that mandatorily increase the floor of the recommended minimum sentencing range under the legislative guidelines. Id. , slip op at 1-2. To remedy th is constitutional defect, the Lockridge Court held that the sentencing guidelines are now “advisory.” Id. at 36. However, while declaring the guidelines advisory, the Lockridge Court specified that an unpreserved claim of Alleyne error was subject to plain error analysis and that, under this standard of review, a defendant who received a minimum sentence that is an upward departure cannot show plain error “because the sentencing court has already clea rly exercised its discretion t o impose a harsher sentence than allowed by the guideli nes and expressed its reasons for doing s o on the record.” Id. , slip op at 30 & n 31. “It defies logic that the court in those circumstances would impose a lesser sentence had it been aware that the guidelines were merely advisory.” Id. Consequently, in this case, because defendant’s sentence was an upward departure, he cannot show pl ain error and he is not entitled to resentencing on the basis of j udicial fact-finding regarding offense variables. See id.

Next, with respect to sentencing, defendant also argues that t he trial court could not consider Pruitt’s death when imposing a sentence because the jury found defendant not guilty of homicide. Contrary to these asse rtions, it is well-settled tha t a trial court may consider all the evidence admitted at trial when determining the appropriate sen tence. See People v Shavers , 448 Mich 389, 393; 531 NW2d 165 (1995). Indeed, a trial court may consider even acquitted conduct during sentencing, provided that the facts are proven t o the judge by a preponderance of
the evidence. See People v Ewing , 435 Mich 443, 451-452; 458 NW2d 880 (1990) (opinion by-3- B RICKLEY , J.); id. at 473 (opinion by B OYLE , J.); People v Compagnari , 233 Mich App 233, 236; 590 NW2d 302 (1998). Consequently, in this case, we see nothin g improper in the trial court’s
consideration of defendant’s rol e in Pruitt’s death when crafti ng an appropriate sentence. The evidence introduced at trial included Loyd-Beal’s identificatio n of defendant in her preliminary examination testimony along with other evidence establishing de fendant’s identity as the shooter by a preponderance of the evidence. Thus, the trial court was free to consider defendant’s responsibility for Pruitt’s dea th as a circumstance surrounding defendant’s conduct when imposing the sentence for defe ndant’s felon in p ossession convi ction.

Regarding the sentence imposed, defendant also contends that the trial court failed to justify the departure with substa ntial and compelling reasons. After defendant filed his appellate brief in the present case, our S upreme Court reached a decision in Lockridge , which, as described above, rendered the previously mandatory sentencing guidelines “only advisory.” Lockridge , slip op at 36. Relevant to defendant’s current arguments on appeal, in holding that the guidelines were now “advisory,” the Court specifically struck down the req uirement that a trial court articulate substantial and compelling reasons to depart from th e guidelines range as previously required under MCL 769.34(3). Lockridge , slip op at 29. Consequently, following Lockridge

, we no longer consider whether a trial court articulated substan tial and compelling reason to justify a departure; rather, a departure sentence will be revie wed on appeal for “reasonableness.”

Id. Sentencing courts must still articulate justification for the d eparture sentence in order to facilitate appellate review; but resentencing will only be requ ired when a sentence is determined
to be “unreasonable.” Id.

The Lockridge Court did not elaborate on the meaning of “reasonableness.” T he phrase was, however, recently considered by a panel of this Court. Sp ecifically, in People v
Steanhouse , this Court considered two possible approaches to understandin g “reasonableness,”
and concluded that Lockridge ’s adoption of a reasonableness standard heralded a return to the proportionality principles in place before the enactment of the legislative guidelines as set forth
in People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990) and its progeny. See People v
Steanhouse , __ Mich App __, __; __ NW2d __ (2015), slip op at 23-24. Und er this standard, we apply a “‘principle of proportiona lity’ test in order to determ ine whether a trial court abuses its discretion in imposing a sentence.” Id. at 23, citing Milbourn , 435 Mich at 634-636.

The principle of proportionality requires a trial court to imp ose a sentence that takes “into account the nature of the offense and the background of the off ender.” Id. , quoting Milbourn

, 435 Mich at 651. In this context, the sentencing guidelines se rve as an advisory “barometer,” that assists the trial court in placing a given case on the “co ntinuum from the least to the most threatening circumstances.” Id. , quoting Milbourn , 435 Mich at 656-657. The trial court has discretion to depart from the sentencing guidelines when the tr ial court concludes that the guidelines are disproportionate t o the seriousness of the crime

. Id. , citing Milbourn , 435 Mich at 656-657. The court may consider a variety of factors when sent encing, including among others, (1) the seriousness of the offens e; (2) factors not considered by the guidelines, such as the relationship between the victim a nd the aggressor, the defendan t's misconduct while in custody, the defendant's expressions of remorse, and the defendant's pot ential for rehabilitation, and (3) factors that were inadequately considered by the guidelines in a particular case. Id. at 24 (citation omitted).-4- On appeal, we review the trial court’s sentencing decision for an abuse of discretion, and
a trial court will be said to have abused its discretion “if th at sentence violate[d] the principle of proportionality, which require[d] sentences imposed by the tria l court to be proportionate to the
seriousness of the circumstances surrounding the offense and th e offender.” Id. at 23, quoting

Milbourn , 435 Mich at 636.

Where there is a departure from the sentencing guidelines, an a ppellate court's first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guid elines. A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality a nd thus abused its sentencing discretion. Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the princip le of proportionality. [ Id. , quoting Milbourn , 435 Mich at 659–660.]

In this case, the trial court sentenced defendant before the d ecisions in Lockridge and

Steanhouse were issued. Consequently, the trial court articulated substantial and compelling reasons for departing, rather than focusing on the “reasonablen ess” of the sentence imposed. In these circumstances, the Steanhouse Court determined that a remand for a Crosby hearing is the appropriate remedy. Steanhouse , slip op at 25. Resentencing is not necessarily required inci dent

to a Crosby hearing; rather, at a Crosby hearing the sentencing court, now fully informed of the new sentencing regime, determines whether or not to resentence. Lockridge , slip op at 33-36, citing Crosby , 397 F2d 117-118. In other words, “the purpose of a Crosby remand is to
determine what effect Lockridge would have on the defendant's sentence, so that it may be determined whether any prejudice resulted from the error.” People v Stokes , __ Mich App __, __; __ NW2d __ (2015), slip op at 11. Under the new sentencing regime now in place, a defendant may face a more severe sentence at resentencing and, for this reason, a defendant is provided with an opportunity to av oid resentencing by promptly notifying the trial judge that resentencing will not be sought. Id. at 11-12. Consequently, in keeping with Steanhouse , we remand this case for a Crosby hearing following the procedures set forth in Lockridge

. Steanhouse , slip op at 25. Defendant may elect to forego resentencing an d must promptly notify
the trial court of this decision. Id. “If notification is not received in a timely manner, the tria l
court shall continue with the Crosby remand procedure as explained in Lockridge .” Id. (citation and quotation marks omitted).

II. DEFENDANT’S ST ANDARD 4 BRIEF

In a Standard 4 brief, defendant raises three additional argum ents. First, relying on MCL 769.11b, defendant argues that he was denied credit for 268 day s served before his convictions. Contrary to defendant’s argument, the judgment of sentence clea rly indicates that he was credited with 268 days in relation to his felony-firearm convic tion. Defendant appears to believe
that he was also entitled to this credit in relation to his fel on in possession sentence or that, alternatively, the credit shoul d have instead been applied to h is felon in possession sentence
rather than his fel ony-firearm sentence. B ut, as noted, defend ant’s sentences are consecutive, not concurrent, and in these circumstances the jail credit was prop erly applied only to the felony--5- firearm sentence which, according to the judgment of sentence, is to precede his felon in possession sentence. See People v Cantu , 117 Mich App 399, 402-404; 323 NW2d 719 (1982).

Second, defendant argues that the evidence was insufficient to sustain his convictions beyond a reasonable doubt. Speci fically, defendant contends th at the prosecution presented no evidence to establish that defendant was present at the scene o r that he possessed a gun. Further, defendant claims that, because the jury found him not guilty of murder, they could not convict him of felon in possession or felony firearm. Defendant also a rgues that trial counsel provided ineffective assistance by faili ng to move for a directed verdic t or a new trial.

We review de novo a challenge to the sufficiency of the eviden ce. People v Ericksen

, 288 Mich App 192, 195; 793 NW2d 120 (2010). When determining w hether the prosecutor presented sufficient evidence to sustain a conviction, we consi der the evidence in a light most favorable to the prosecutor to ascertain whether a rational tri er of fact could find the defendant guilty beyond a reasonable doubt. People v Tennyson , 487 Mich 730, 735; 790 NW2d 354 (2010). Direct evidence as well as circumstantial evidence and reasonable inferences arising therefrom can constitute satisfactory proof of the elements of a crime. People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). It is for the jury to determine witness credibility and to resolve any inconsistencies in the testimony; and, this Court w ill not interfere with the jury’s role
as fact-finder. People v Harverson , 291 Mich App 171, 175, 179; 804 NW2d 757 (2010). Rather, “a reviewing court is required to draw all reasonable i nferences and make credibility choices in support of the jury verdict.” Nowack , 462 Mich at 400.

In this case, defendant does not dispute that he was a felon i neligible to possess a firearm, and he does not dispute that someone at the scene possessed a f irearm. Instead, defendant essentially argues that there w as no evidence that he was ident ified as present dur ing the crime or as being the person in possession of the gun. Defendant is correct in his assertion that identity is an element of every offense. People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008). However, contrary to defendant’s arguments, there was sufficien t evidence to establish his identity as the individual in possession of a gun at the scene. Calais, who was behind a turquoise car, saw an unidentified ma n shooting a gun before running away . Loyd-Deal stated that she saw defendant get out of a car that was the same color as the one i n front of Calais. Loyd-Deal identified defendant as the man having a heated argument with P ruitt regarding Drain. And, most notably, Loyd-Deal testified that, after she heard a shot fired, she went to her window and she saw defendant shoot Pruitt three times. Indeed, Loyd-Deal testified that she saw defendant with a gun more than once during the incident. Fuse testified that defendant called him a couple days after Pruitt died and that, consistent with Loyd-Deal’s de scription of events, defendant told Fuse that he did something stupid and shot “someone” while argu ing with a man over a girl. Thus, it was reasonable for the jury to conclude from the evide nce presented that defendant was at the scene and in possession of a gun. Although on appeal de fendant highlights inconsistencies in the evidence and in Loyd-Deal ’s testimony in particular, the se issues were for the jury to
resolve. 2 See Harverson , 291 Mich App at 175, 179. Viewed in a light most favorable t o the

2 There is also no merit to def endant’s assertion that his convi ctions were not supported by sufficient evidence simply because the jury returned a not guil ty verdict with respect to open-6- prosecution, the direct and circ umstantial evidence, as well as all reasonable inferences that may be drawn, was sufficient to support defendant’s convictions bey ond a reasonable doubt. See

Nowack , 462 Mich at 400.

Insofar as defendant asserts tha t trial counsel provided ineff ective assistance by failing to move for a directed verdict or a new trial, his claims are with out merit. To establish a claim of
ineffective assistance of counsel a defendant must show “(1) th at counsel's representation fell below an objective standard of reasonableness, and (2) that the re is a reasonable probability that, but for counsel's unprofessional e rrors, the result of the proc eeding would have been different.” People v Douglas , 496 Mich 557, 592; 852 NW2d 587 (2014) (quotation marks and c itations omitted). The effective assistance of counsel is presumed, and the defendant bears the heavy burden of proving otherwise. People v Rodgers , 248 Mich App 702, 714; 645 NW2d 294 (2001). Counsel is not considered ineffective for failing to m ake meritless arguments or for failing to pursue a futile motion. People v Riley , 468 Mich 135, 142; 659 NW2d 611 (2003); People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).

In this case, defendant argues that his trial counsel provided ineffective assistance because he did not move for a directed verdict. However, such a motion would have been futile because the evidence discussed above, along with the physical e vidence that Pruitt died of a homicide after he was shot at close range, provided a basis for a reasonable juror to convict defendant of the crimes for which he was charged, including mur der. Counsel was not ineffective for failing to make a futile motion. Riley , 468 Mich at 142.

Finally, defendant argues that the trial court abused its disc retion by admitting LoydDeal’s preliminary examination testimony and her 911 call at tr ial. 3 Specifically, defendant

murder. Although it is not entirely clear from defendant’s arg ument, it appears to be his contention that there is some inconsistency in the verdicts tha t renders his convictions infirm. But, even supposing that there was some inconsistency in the ve rdicts, this would not entitle
defendant to relief because “inconsistent verdicts within a sin gle jury trial are permissible.” People v Wilson , 496 Mich 91, 100; 852 NW2d 134 (2014). Moreover, in this cas e, the jury’s verdicts are not necessarily inc onsistent. The jury could have found credible Loyd-Deal’s testimony that defendant was present with a gun while at the sa me time they might have had reasonable doubts about Loyd-Deal’s statement that she saw defe ndant shoot Pruitt given that
she also testified that she was in the kitchen on the phone whe n she initially heard shots fired.

3 Insofar as defendant challenges the admission of Loyd-Deal’s 9 11 call, defendant waived any error in this regard because it was defense counsel who introdu ced Loyd-Deal’s 911 call into evidence at trial. “Defendant may not assign error on appeal t o something that his own counsel deemed proper at trial.” People v Barclay , 208 Mich App 670, 673; 528 NW2d 842 (1995). Further, decisions regarding what evidence to present are matte rs of trial strategy, People v

Horn , 279 Mich App 31, 39; 755 NW2d 212 (2008), and it is clear tha t counsel was not ineffective for introducing this evidence because counsel used the 911 call to discredit LoydDeal’s testimony by asserting that she did not identify defendant during the 911 call as the
shooter when events were “still fresh in her mind” and that she instead “developed the story about [defendant] after the fact .” We need not consider the 91 1 call further.-7- categorizes the evidence as ina dmissible hearsay, he contends t hat Loyd-Deal was lacking the requisite mental capacity when she testified at the preliminaryexamination due to her poor health and, relying on MRE 403, defendant contends that this ev idence was irrelevant and unfairly prejudicial. Defendant also argues that his trial cou nsel was ineffective in failing to object to the admission of this evidence or to file a motion in limine for the exclusion of this
evidence.

We review a trial court’s decision to admit evidence for an ab use of discretion. People v

Duncan , 494 Mich 713, 722; 835 NW2d 399 (2013). “A trial court abuse s its discretion when its decision falls outside the range of reasonable and principled o utcomes.” Id. at 722-723. Preliminary questions of law, including whether a rule of evide nce precludes admissibility of evidence, are reviewed de novo. People v Lukity , 460 Mich 484, 488; 596 NW2d 607 (1999). A court necessarily abuses its discretion when it admits evidence that is inadmissible as a matter of
law. Id.

In this case, contrary to defendant’s arguments, Loyd-Deal’s t estimony was plainly relevant. She was present at th e scene, she observed defendantwith a gun, and she testified that
she saw defendant shoot Pruitt three times. Her testimony thus constituted evidence making it more probable that defendant was in possession of a gun and tha t he killed Pruitt. Because Loyd-Deal’s testimony was relevant to facts of consequence, it was generally admissible. See MRE 401; MRE 402. Further, although Loyd-Deal’s preliminary ex amination testimony constituted hearsay, see MRE 801, it was nonetheless admissible because Loyd-Deal was unavailable at trial and she testified at the preliminary exami nation, during which defendant had an opportunity and similar motive to develop her testimony on c ross examination. See MRE 804(a)(4); MRE 804(b)(1).

Nonetheless, defendant claims Loyd-Deal’s testimony was inadmi ssible because she was mentally incompetent. In support of this argument, defendant n otes that Loyd-Deal testified during the preliminary examinati on from a hospital bed in the c ourtroom. Although it would appear that Loyd-Deal was in poor physical health at the time o f the examination, and in fact died shortly thereafter, it is nonetheless true that “a witness is presumed to be competent to testify.” People v Flowers , 222 Mich App 732, 737-738; 565 NW2d 12 (1997). Under MRE 601, “[u]nless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provide d in these rules.” See also People v Breck , 230 Mich App 450, 457; 584 NW2d 602 (1998). There is no indi cation that Loyd-Deal lacked this capacity and the mere fact of her poor he alth does not, on its own, render her incompetent within the meaning of MRE 601. 4

4 Insofar as defendant claims counsel should have objected to Lo yd-Deal’s testimony on this basis, we note that it is defendant’s burden to establish the f actual predicate for his claim. People v Carbin , 463 Mich 590, 600; 623 NW2d 884 (2001). Without evidence to support the assertion that Loyd-Deal was incompetent within the meaning of MRE 601, there is no factual support for defendant’s claim tha t counsel provided ineffective assistance of counsel by failing to-8- In addition, defendant argues that her testimony should have b een excluded because it was unduly prejudicial and confusing. Even if relevant, eviden ce may be excluded if its probative value is substantially outweighed by the danger of un fair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or nee dless presentation of cumulative
evidence. MRE 403. See also People v Musser , 494 Mich 337, 356; 835 NW2d 319 (2013). Unfair prejudice exists when there is a tendency that the margi nally probative evidence will be given undue or preemptive weight by the jury. People v Mardlin , 487 Mich 609, 627; 790 NW2d 607 (2010). We have no such concerns in the present case. Here, the testimony had significant probative value as substantive evidence of the crim es for which defendant was charged. It was certainly prejudicial to the extent that the j ury could have relied on it to identify defendant as the perpetrator of the crimes; but, in this regard , “[a]ll relevant evidence is prejudicial,” and we see nothing unfairly prejudicial in this evidence which would require its
exclusion. See People v McGhee , 268 Mich App 600, 613-614; 709 NW2d 595 (2005). Nor can we discern any basis for concludi ng that the evidence was so co nfusing as to substantially outweigh the significant probative value of the evidence. Cons equently, the trial court did not abuse its discretion by admitting Loyd-Deal’s testimony.

Having concluded that the trial court did not abuse its discre tion by admitting LoydDeal’s testimony, we also reject defendant’s assertion that his trial counsel was ineffective for failing to object to the admission of this testimony based on t he various reasons asserted by defendant on appeal. First, th e decision to object is typicall y considered a matter of trial
strategy, People v Matuszak , 263 Mich App 42, 58; 687 NW2d 342 (2004), and in this case th e record shows that counsel did raise objections to portions of L oyd-Deal’s testimony and that counsel succeeded in having some o f her testimony redacted befo re it was presented to the jury. Second, overall, the testimony that was ultimately admitted was admissible for the reasons
discussed supra and counsel cannot be considered ineffective for failing to make meritless objections or for failing to pursue a futile motion in limine. See Riley , 468 Mich at 142;

Ericksen , 288 Mich App at 201.

We affirm defendant’s convictions, but remand for further proc eedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Mark T. Boonstra /s/ Henry William Saad
/s/ Joel P. Hoekstra

object to her testimony on this basis. Thus, defendant’s ineff ective assistance of counsel claim
must fail. See Carbin , 463 Mich at 600-601.