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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 18, 2016

v No. 323969 Ingham Circuit Court VALENTINO LAHRON LEE STEWART, JR., LC No. 14-000463-FC

Defendant-Appellant.

Before: H OEKSTRA , P.J., and M ETER and M. J. K ELLY , JJ.

P ER C URIAM

.

Defendant was convicted, followi ng a jury trial, of second-deg ree murder, MCL 750.317;
assault with intent to commit murder, MC L 750.83; carrying a co ncealed weapon (CCW), MCL 750.227; and possession of a firearm during the commission of a felony (felony firearm), MCL
750.227b. He was sentenced to concurrent terms of 300 to 600 m onths in prison for seconddegree murder, 200 to 400 months in prison for assault with int ent to commit murder, and 24 to 60 months for CCW, to be served consecutively to a two-year pri son term for felony firearm. For the reasons explained in thi s opinion, we affirm defendant’ s convictions but remand for a Crosby 1 hearing.

I. FACTS

According to the evidence intr oduced at trial, on June 26, 201 3, defendant participated in a shooting on North Pine Street in Lansing that resulted in the death of Anthony Kye. Kye’s autopsy report showed that he had been shot three times, and th at his wounds were consistent with those caused by a high-powered rifle. Although Kye lost h is life in the shooting, it appears
that he was not the intended vi ctim. Rather, the shooters inte nded to kill someone known as “Fat Cat,” who assaulted defendant sev eral days prior to the shootin g.

One of the principal witnesses at defendant’s trial was Mark W illiams, who lived with defendant and defendant’s family, including defendant’s brother , Jamon Hampton. Williams

1 United States v Crosby , 397 F3d 103, 117 (CA 2 2005).-2- testified that on June 26, 2013, he agreed to defendant’s reque st to drive defendant and Hampton to the store. Williams was new to the area, so Hampton provide d directions; but it soon became clear that Hampton was not directing him to a store. During th e drive, Williams heard Hampton ask defendant if “they were going to be doing this by their sel f [sic] or were we . . . meeting somebody over there.” Hampton also asked defendant whether he had a “mag,” and defendant responded that he had only three bullets. According to William s, defendant owned a 9- millimeter pistol which he was carrying that night.

Williams testified that Hampton eventually directed him to a c orner near the intersection of Lapeer and Pine streets. Williams offered Hampton the use o f a firearm, which Williams had stored in the trunk of his car. In response, Hampton asked to use his AR-15 assault rifle, so Williams loaded the weapon and gave it to Hampton. Hampton and defendant then ran off into the night.

Williams and other witnesses testified that they heard repeated gunfire, and Williams testified that he recognized it as the sound of his assault rif le. Defendant and Hampton returned to Williams’s car a few moments later, and he drove back to the apartment. Defendant called someone while they were driving, and told the person to avoid t he north side of town because it was “hot,” and to meet them at the apartment. When they return ed to the apartment building, Jarvis Askew and Charles Mattox, who were friends of defendant and Hampton, were waiting in the parking lot. Mattox testified that defendant told them tha t he had seen Fat Cat and shot twice in the air. According to Williams, while they were discussing the shooting, they learned through phone calls that the “wro ng person” had been killed.

A jury convicted defendant of se cond-degree murder, assault wit h intent to commit murder, CCW, and felony firearm. The trial court sentenced def endant as noted above. Defendant now appeals as of right.

II. PROSECUTORIAL MISCONDUCT

On appeal, defendant first argues that the prosecutor committe d misconduct during closing arguments when the prosecutor stated that defendant was a “member of a gang” and that the shooting had been undertaken i n retaliation for the beating suffered by defendant. Defendant
maintains that references to def endant’s gang membership were u nsupported by the evidence and that such remarks impermissibly urged the jury to convict defen dant based on gang affiliation. Defendant asserts that the mention of gangs is inherently preju dicial and that, therefore, the prosecutor’s remarks require r eversal of his conviction.

Defense counsel objected to the prosecutor’s remarks at trial, thereby preserving this issue for appellate review. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). We review de novo preserved claims of prosecutorial misconduct to determine whether the defendant was denied a fair and impartial trial. People v Akins , 259 Mich App 545, 562; 675 NW2d 863 (2003). “Issues of prosecutorial misconduct are decid ed case by case, and this Court must examine the entire record and evaluate a prosecutor’s remarks in context.” People v

Dobek , 274 Mich App 58, 64; 732 NW2d 546 (2007). The prosecutor’s c omments are evaluated in light of “the relationship the comments bear to the evidence admitted at trial.” Id. “Prosecutors are typically afforded great latitude regarding th eir arguments and conduct at trial.”-3- People v Unger , 278 Mich App 210, 236; 749 NW2d 272 (2008). They are permitt ed to argue the evidence and all reasonable inferences arising from the evi dence as they relate to the prosecutor’s theory of the case. People v Lane , 308 Mich App 38, 63; 862 NW2d 446 (2014). However, a prosecutor may not make a factual statement to the j ury that is not supported by the
evidence. Dobek , 274 Mich App at 66.

In this case, during closing argument, the prosecutor discusse d the motive for defendant’s involvement with the shooting and he stated that the case was “ just about a retaliation, a gang retaliation shooting” that defendant had taken part in “because he is a member of a gang who was beaten.” Defense counsel objected, and argued that no evid ence had been presented to support the prosecutor’s characte rization of defendant as a gan g member. The trial court instructed the prosecutor to “m ove on.” The prosecutor continu ed by characterizing the case as a story of “[r]etaliation between two warring groups,” and stated that Mattox had referred to his friends, including defendant, Askew, Hampton, and Williams, as a “group” or “crew.”

Contrary to defendant’s arguments on appeal, the discussion of the motivation for the crime did not deprive defendant a fair trial and these statemen ts by the prosecutor were reasonable inferences from the evidence presented at trial. Fo r example, Mattox testified that defendant had been in a fight with “Fat Cat and his crew,” a gr oup that called themselves “STB” or “Shaking the Bag,” which was a drug reference of some kind. In comparison, Mattox testified that his “group” or “crew” consisted of defendant, Askew, Hampt on, and Williams. In response to the prosecutor’s questioning, Mattox agreed t hat his “group” as well as Fat Cat’s “crew” could be characterized as “groups of people who are in gangs or loose association with each other.” Based on Mattox’s testimony, the prosecutor’s reference to defe ndant as a gang member was a reasonable inference. Similarly, the prosecutor’s statement th at the case was about gang
“retaliation” was a reasonable inference based on Williams’s te stimony that defendant wanted revenge for his assault as well as testimony from Mattox that h e and Askew were planning to “squash” Fat Cat and “[t]o settle the situation” on the night o f the shooting. In sum, the prosecutor’s comments during closing argument were based on the evidence presented at trial. Consequently, these remarks on the prosecutor’s theory of the c ase relating to the motive for the shooting were not improper and de fendant is not entitled to a n ew trial on this basis.

III. INSUFFICIENT EVIDENCE

Defendant argues that the prosecutor presented insufficient ev idence to establish the elements of second-degree murder beyond a reasonable doubt beca use questions as to the identity of the shooters were not satisfactorily resolved and b ecause Williams and Mattox were
not credible witnesses.

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

, 291 Mich App 171, 177; 804 NW2d 757 (2010). “We examine the ev idence in a light most favorable to the prosecution, resolving all evidentiary conflic ts in its favor, and determine
whether a rational trier of fact could have found that the esse ntial elements of the crime were proved beyond reasonable doubt.” People v Ericksen , 288 Mich App 192, 196; 793 NW2d 120 (2010). The elements of a crime may be established by circumst antial evidence and reasonable inferences from the evidence, and this Court will “not interfer e with the jury's assessment of the-4- weight and credibility of witnesses or the evidence.” People v Dunigan , 299 Mich App 579, 582; 831 NW2d 243 (2013).

In order to convict a defendant of second-degree murder, the p rosecution must show that there was “(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.” People v Goecke , 457 Mich 442, 463-464; 579 NW2d 868 (1998). In addition, “it is well settled th at identity is an element of ev ery offense.” People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008).

In this case, Williams testified to driving defendant and Hamp ton to the area where the shooting occurred. While they we re driving, defendant pointed out the intended victim, stating “It’s him. It’s him.” After Williams parked the car, defendantand Hampton ran into the night armed with guns, including the AR-15 carried by Hampton. The s hooting followed shortly thereafter, and an autopsy later showed that Kye died as a resu lt of gunshot wounds. In addition, defendant had a 9mm handgun in his possession that evening, 9mm shell casings were found at the scene, defendant told Mattox that he saw “Fat Cat” that eve ning and that he shot the 9mm handgun into the air, and defendant warned Askew via cell phone to avoid the area because they had “just shot it up.” Defendant had a motive for the crime, i nsofar as he wanted revenge for the assault perpetrated by “Fat Ca t;” and, when informed that the w rong victim had been killed, defendant stated that Kye “shouldn’t have been there.” While d efendant challenges the credibility of the testimony presented and argues that other in ferences could be drawn, it was the jury’s responsibility to determine the witnesses’ credibility a nd to decide the facts from the evidence presented. See Dunigan , 299 Mich App at 582. Viewing th e evidence in a light most favorable to the prosecutor, there was sufficient evidence to e stablish defendant’s identity as one
of the shooters.

In contrast, defendant argues th at the elements of the offense were not proven beyond a reasonable doubt because one of the prosecution’s eyewitnesses described the suspect as a tall, slender man who wore dreadlocks while, in comparison, defendant was a large and not particularly tall person who di d not wear dreadlocks in his sho rt hair. Because the witness’s description does not match defe ndant, defendant maintains there was insufficient evidence to establish his identity. Again, it was for the jury to weigh th is evidence, and the significance of any inconsistency between this description and defendant’s phys ical appearance was for the jury
to resolve. See id. And, it is axiomatic that “a jur y is free to believe or disbe lieve, in whole or in part, any of the evidence presented.” People v Perry , 460 Mich 55, 63; 594 NW2d 477 (1999). Moreover, we note that, contrary to defendant’s argument, this was not the only eyewitness description of a suspect. Defe ndant does not address the testi mony of another eyewitness, who observed that the suspect had sho rt hair and was wearing bright ly colored tennis shoes, which arguably corroborated Mattox’s testimony that defendant was wea ring red tennis shoes on the night of the shooting. Overall, viewing the evidence in a ligh t most favorable to the prosecution,
the evidence was sufficient to support defendant’s conviction f or second-degree murder.

IV. JURY INSTRUCTIONS

In a Standard 4 brief, defendant argues that an instruction fo r voluntary manslaughter should have been given at trial. Defendant did not request an instruction for voluntary-5- manslaughter before the trial court. However, defendant argues that the trial court erred by failing to instruct the jury on t his offense sua sponte.

Because defendant failed to request the instruction at issue, his claim is unpreserved and our review is for plain error aff ecting his substa ntial rights. People v Aldrich , 246 Mich App 101, 124; 631 NW2d 67 (2001); People v Sabin (On Second Remand) , 242 Mich App 656, 657; 620 NW2d 19 (2000). “A criminal defendant is entitled to have a properly instructed jury consider the evidence against him.” People v Riddle , 467 Mich 116, 124; 649 NW2d 30 (2002). Voluntary manslaughter is a neces sarily lesser-included offense of murder. People v Mendoza

, 468 Mich 527, 540-541; 664 NW2d 685 (2003). When a defendant i s charged with murder, he is entitled to a jury instruction for voluntary manslaughter “if s upported by a rational view of the
evidence.” Id . at 541.

In this case, a rational view of the evidence did not support the giving of a voluntary manslaughter instruction, and thus defendant has not shown plai n error. In particular, in order to convict a defendant of voluntary manslaughter, the prosecutor “ must show that the defendant killed in the heat of passion, the passion was caused by adequa te provocation, and there was not a lapse of time during which a reasonable person could control his passions.” People v Reese

, 491 Mich 127, 143; 815 NW2d 85 (2012) (internal quotation marks and citation omitted). According to defendant’s argument on appeal, his actions during the night of the shooting were provoked by Fat Cat’s assault on him. However, although the re cord is not clear as to the exact amount of time that elapsed between the assault on defendant an d the shooting (nor does defendant clarify this point on appeal), Williams indicated at trial that at least several days had passed between the two events. Given this significant lapse of time between the purported provocation and the shooting, there was ample time for defendan t to control his passions and a rational view of the evidence did not support the giving of a v oluntary manslaughter instruction.

See id .; Mendoza , 468 Mich at 541. Thus, defendant ha s not shown plain error i n the trial court’s failure to instruct the jury on voluntary manslaughter. 2

V. SCORING OF OFFENSE VARIABLES

In his Standard 4 brief, defendant also asserts that he is ent itled to resentencing due to errors in the scoring of Offense Variables 2, 6, 9, 12, and 14.

“Determining whether a trial court properly scored sentencing variables is a two-step process.” People v Marshall, 495 Mich 983; 843 NW2d 925 (2014). First, we review the trial court's factual determinations for clear error, which “must be supported by a preponderance of

2 In the course of his jury instruction argument, defendant argu es that, because there was evidence that he shot into the air, the jury could not conclude that defendant shot Kye or that he intended to do so. To the extent defendant attempts to challen ge the sufficiency of the evidence supporting his convictions, this argument is improperly present ed, MCR 7.212(C)(5), and it is clearly without merit. Even if d efendant did not fire the fata l shots, the jury was also instructed on an aiding and abetting theory. Under such a theory, there w as ample evidence supporting defendant’s convictions. See generally People v Robinson , 475 Mich 1; 715 NW2d 44 (2006).-6- the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). Second, we must decide “[w]hether 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 qu estion of statutory interpretation, which an appellate court reviews de novo.” Id. See also People v Steanhouse , __ Mich App __, __; __ NW2d __ (2015) (Docket No. 318329), slip op at 19.

In this case, as originally scored, defendant’s total OV score for second-degree murder was 161 points. At a sentencing hearing on September 3, 2014, with the agreement of the parties, the trial court approved several changes that reduced defendant’s total OV score to 115. 3 Specifically, the trial court changed the scoring of OV 2 from 10 to 5 points, reduced the scoring
of OV 6 from 50 to 25 points, altered th e scoring of OV 9 from 25 to 10 points, and corrected the scoring of OV 12 from 1 to 0 points. We mention these changes because many of the precise changes requested by defendant on appeal were already made by t he trial court—namely, those changes to the scoring of OV 2, OV 9, and OV 12. Because the t rial court already granted the requested relief, this issue is moot and we need not consider i t further. See People v Pennington

, 240 Mich App 188, 197; 610 NW2d 608 (2000).

With regard to OV 6, defendant argues on appeal that OV 6 shou ld have been scored 10 points, rather than the 25 point s assessed by the trial court. MCL 776.36 governs the scoring of OV 6, which “is the offender's intent to kill or injure another individual.” Unde r OV 6, 25 points is appropriate if the offender “h ad unpremeditated intent to ki ll, the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing that death or great bodily harm was the probable result.” MCL 777.36(1)(b). In c omparison, 10 points is properly scored if the defendant “had intent to injure or the killing wa s committed in an extreme emotional state caused by an adequate provocation and before a reasonable amount of time elapsed for the offender to calm or there was gross negligence amounting to an unreasonable disregard for life.” MCL 777.36(1 )(c). The sentencing court i s required to score OV 6 “consistent with a jury verdict unless the judge has informatio n that was not presented to the jury.” MCL 777.36(2)(a). Conseque ntly, in this case, the tria l court properly scored defendant at 25 points, which was consistent w ith the jury’s verdict of seco nd-degree murder.

Next, defendant argues that the trial court should have scored OV 14 at 0 points, rather than 10 points. OV 14 relates t o an offender’s role in a multi ple offender situa tion, and 10 points is properly scored when the offender “was a leader in a multipl e offender situation.” MCL 777.44(1)(a). When more than 3 offenders are involved, more th an one individual may be considered a “leader.” MCL 777.44( 2)(b). Defendant argues tha t he should have been scored zero points because he was not a leader and because several oth er people were involved in orchestrating and carrying out the shooting. Before the trial court, defense counsel also noted that defendant, at 16 years of age, “was by far the youngest pe rson involved” i n the shooting, and argued that the evidence indicate d that Askew “may have plannedthis or directed it,” although counsel did not cite evidence in support of this assertion. Th e court rejected defendant’s

3 However, we note that a correct ed sentencing information repor t does not appear in the lower court records provided to us on appeal.-7- argument and upheld the score based on Williams’s testimony tha t defendant selected the
individual to be shot when defendant announced “that’s him” whi le they were driving to the location of the shooting. The tri al court reasoned “that this defendant did pick out and identify who was to be shot. That’s a leadership role.” Given the evid ence presented, the court’s decision was not clearly erroneous . Moreover, any error in the scoring of OV 14—which would
reduce defendant’s total OV scor e to 105—would not alter the re commended sentencing range. See MCL 777.61. Thus, even assuming some error, defendant woul d not be entitled to resentencing on this basis. See People v Francisco , 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

VI. JUDICIAL FACT-FINDING

Lastly, in a supplement brief filed pursuant to MCR 7.212(F), defendant argues that he is entitled to resentencing following the recent Michigan Supreme Court decision in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015). In Lockridge, the Court determined that Michigan's sentencing guidelines violate the Sixth Amendment ri ght to a jury trial insofar as they require a sentencing judge to find facts at sentencing that man datorily increase the floor of the recommended minimum sentencing range. Id. at 373-374. As a remedy to this constitutional defect, following Lockridge , the sentencing guidelines a re now “advisory only.” Id. at 391. That is, while the guidelines “remain a highly relevant consideratio n in a trial court’s exercise of sentencing discretion,” they are no longer mandatory, and a tri al court may depart from the recommended range without articul ating substantial and compelli ng reason for the departure, provided that the resulting s entence is “reasonable.” Id. at 391-392.

While declaring the guidelines advisory, Lockridge made clear that such claims of error are amenable to plain error review. Id. at 394-395. To establish plain error, a defendant must make a “threshold showing” on appeal, which would then entitle the defendant to a remand for a Crosby hearing. Id. at 395. As explained in Lockridge :

[A]ll defendants (1) who can dem onstrate that their guidelines minimum sentence range was actually constrained by the violation of the Sixth Am endment and (2) whose sentences were not subj ect to an upward departure can est ablish a threshold showing of the potential for plain error sufficient to warrant a remand to the trial court for further inquiry. [ Id. ]

Under the first prong, an unconstitutional constraint on a defe ndant’s Sixth Amendment right may be shown when “facts admitte d by a defendant or found by th e jury verdict were insufficient to assess the minimum number of OV points necessary for the def endant’s score to fall in the cell of the sentencing grid under whic h he or she was sentenced.” Id.

In this case, defendant was not subject to an upward departure and it is clear that the trial court’s calculation of the sentencing guideline range involved reliance on facts not admitted by defendant or supported by the jury’s verdict. In particular, under MCL 777.61, defendant would need a minimum of 100 points to be at OV level III for second-d egree murder. As noted, defendant had a total OV score of 115 points. However, this sc ore involved findings that members of the victim’s family suffered serious psychological i njury (15 points for OV 5), that 2 to 9 victims were placed in danger of physical injury or death (10 points for OV 9), and that defendant was a leader in a multiple offender situation (10 poi nts under OV 14). If these-8- variables had not been scored in this manner, defendant’s OV le vel would drop from III to II. Thus, because these facts were neither admitted by defendant no r supported by the jury’s verdict, it is plain that these judicial ly-found facts resulted in an in creased minimum sentencing range.
Cf. People v Stokes , __ Mich App, __; __ NW2d__ (2015) (Docket No. 321303), slip o p 6-7. Consequently, defendant has made a threshold showing under Lockridge , entitling him to a
remand for a Crosby hearing. See Lockridge , 498 Mich 394-395.

“[T]he 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.” Stokes , slip op at 11. The trial court must decide whether it would have imposed the
same sentence absent the uncons titutional constraint on its dis cretion; and, if not, the court must
resentence the defendant. Lockridge , 498 Mich at 399. Because defendant faces the possibility of a more severe sentence on resentencing, he must be given the option of promptly notifying the trial judge that resentencing will not be sought. Stokes , slip op 11-12. If notification is not received in a timely manner, the trial court shall continue wit h the Crosby remand proceedings as
set forth in Lockridge , 498 Mich at 395-398.

Affirmed, but remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Joel P. Hoekstra
/s/ Patrick M. Meter /s/ Michael J. Kelly