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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 12, 2016 

v No. 326501 

Wayne Circuit Court 

AARON DESMOND DAVIS, LC No. 14-009733-FC 

 Defendant-Appellant. 

Before: JANSEN, P.J., and FORT HOOD and BOONSTRA, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial conviction of armed robbery, MCL 750.529. 

The trial court sentenced defendant as a second habitual offender, MCL 769.10, to 65 to 240 

months’ imprisonment. We affirm defendant’s conviction, but remand for further proceedings 

consistent with the Michigan Supreme Court’s decision in People v Lockridge, 498 Mich 358; 

870 NW2d 502 (2015). 

 After an incident that occurred in the early morning hours of August 22, 2014, the victim, 

Antwain Rogers, Sr., identified defendant as the person who stuck a sawed off shotgun in his 

side and forced Rogers to give him money while Rogers sat in his car. Defendant was charged 

with armed robbery, MCL 750.529, possession of a firearm by a person convicted of a felony 

(felon-in-possession), MCL 750.224f, and possession of a firearm during the commission of a 

felony (felony-firearm), MCL 750.227b. Defendant brought a pretrial motion to suppress 

Rogers’s photographic lineup identification of defendant as the perpetrator, but the trial court 

denied the motion after an evidentiary hearing. The matter proceeded to a jury trial, and the jury 

found defendant guilty of armed robbery and not guilty of the firearm charges. 

 Defendant first argues that he was denied due process of law when the trial court denied 

his motion to suppress his photo lineup identification because the photo array was unduly 

suggestive and because he was in custody at the time of the lineup. We disagree. 

 In relation to a motion to suppress identification evidence, this Court reviews the trial 

court’s decision regarding the admission of the identification evidence for clear error, and 

reviews relevant issues of law de novo. People v McDade, 301 Mich App 343, 356; 836 NW2d 

266 (2013). “Clear error exists when the reviewing court is left with a definite and firm 

conviction that a mistake was made.” Id. 
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 “A photographic identification procedure or lineup violates due process guarantees when 

it is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.” 

McDade, 301 Mich App at 357. The issue is determined based on the totality of the 

circumstances. People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700 (2002). “Physical 

differences among the lineup participants do not necessarily render the procedure defective and 

are significant only to the extent that they are apparent to the witness and substantially 

distinguish the defendant from the other lineup participants.” Id. In general, the physical 

differences relate to the weight, rather than the admissibility, of the identification. Id. 

Furthermore, even if a photographic lineup is suggestive, it is only improper if there was a 

substantial likelihood of misidentification. People v Kurylczyk, 443 Mich 289, 306; 505 NW2d 

528 (1993) (opinion by GRIFFIN, J.). “The relevant inquiry, therefore, is not whether the lineup 

photograph was suggestive, but whether it was unduly suggestive in light of all of the 

circumstances surrounding the identification.” Id. Several factors to be considered include 

the opportunity of the witness to view the criminal at the time of the crime, the 

witness' degree of attention, the accuracy of the witness' prior description of the 

criminal, the level of certainty demonstrated by the witness at the confrontation, 

and the length of time between the crime and the confrontation. [Id. (citation and 

quotation marks omitted).] 

 This Court has concluded that a lineup was not impermissibly suggestive when the 

defendant was the second tallest person in the lineup and was heavier than the other participants, 

when there were age and height differences between the defendant and the other participants and 

the defendant had a scarred face, or when the defendant was the only individual in the lineup 

who had both a mustache and goatee. Kurylczyk, 443 Mich at 312 (opinion by GRIFFIN, J.). This 

Court in McDade, 301 Mich App at 357-358, found useful this Court’s observation in People v 

Dean, 103 Mich App 1, 10; 302 NW2d 317 (1981), that when considering the totality of the 

circumstances, “the mere fact that defendant’s photograph was taken from a vertical angle was 

[not] so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable 

misidentification.” 

 Here, defendant complains his photograph in the photo array was so different from the 

other photos that it stood out prominently, even at first glance. In particular, defendant argues 

that his face was stretched out and that he was the only person in the array who was smiling with 

his mouth open. The prosecution does not dispute that defendant’s head was larger than the 

heads of the other individuals in the photographic lineup and that defendant was the only 

individual with a broad smile. A review of the black and white photo array displays headshots of 

six African American males of similar age and similar skin tone.

1

 Height and build cannot easily 

 

1

 Defendant points out in his reply brief that Rogers testified during the preliminary examination 

that the photographs were in color. However, the officer who created the photograph lineup 

testified that the lineup was in black and white, and a colored photographic lineup was never 

produced for the trial court’s review. In addition, even assuming that Rogers viewed a colored 

photographic array, defendant does not explain how this fact, in and of itself, rendered the lineup 
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be discerned because the individuals are displayed from the neck up. Two of the men appear to 

have braided hair, two of the men, including defendant, have dreadlocks, and the last two have 

afro hairstyles. All six men appear to have facial hair, either goatees or beards, though it is hard 

to tell whether defendant has facial hair. Three of the men have dark shirts, and three of the men 

have white shirts. Four of the men have oval face shapes, one of the men has a longer, thinner 

face, and defendant’s face appears to be slightly wider and more round. Four of the men are not 

smiling, one man appears to have a very small smile, and defendant is broadly smiling. 

 Defendant claims that his face was stretched out and that he was the only individual who 

was smiling with his mouth open. He argues that these differences merit suppression and 

reversal. But he fails to explain how the differences would result in a substantial likelihood of 

misidentification, as opposed to merely constituting “noticeable” differences. See McDade, 301 

Mich App at 358. As the McDade Court stated, “If one were to accept defendant’s complaints 

about the slight physical differences or variations, it would make it nearly impossible for the 

police to compose a lineup, forcing authorities to search for ‘twin-like’ individuals to match 

against a defendant.” Id. We do not see how these discrepancies would justify a conclusion that 

the photographic array was impermissibly suggestive. 

 Furthermore, the record evidence displays that Rogers was aware and attentive during the 

incident, watching defendant the whole time. Defendant approached Rogers twice during the 

incident, was in close proximity to Rogers while he was robbing him, and was not wearing a 

mask or other facial covering. Rogers testified that the incident occurred near a working 

streetlight. Rogers repeatedly testified that he was certain in his identification both at the 

evidentiary hearing and at trial. Rogers testified that the police did not suggest to him that 

defendant was depicted on the photographic lineup and did not suggest that the perpetrator was 

displayed on the lineup. Also, significantly, only five days passed between the incident and the 

date of the photo lineup, during which time Rogers saw defendant again. Under these 

circumstances, even if the photographic lineup was suggestive, there was no substantial 

likelihood of misidentification in this case. We conclude that the composition of the 

photographic lineup was not impermissibly suggestive to the extent that it would have given rise 

to a substantial likelihood of misidentification.2

 

 Defendant also argues that he was in custody at the time of the photographic lineup and 

that he had a right to counsel. “ ‘In the case of photographic identifications, the right of counsel 

attaches with custody.’ ” People v McCray, 245 Mich App 631, 639; 630 NW2d 633 (2001), 

quoting Kurylczyk, 443 Mich at 302 (opinion by GRIFFIN, J.). But this rule is only triggered 

impermissibly suggestive, and he does not explain what characteristics of the colored 

photographic lineup rendered it impermissibly suggestive. 

2

 Defendant contends that Rogers “was influenced by talk around the neighborhood” with regard 

to the name of the perpetrator and information regarding the close relatives of the perpetrator. 

Assuming this is the case, defendant fails to explain how the fact that Rogers knew the 

perpetrator’s name and information about his family affected his identification of defendant as 

the perpetrator on the photographic lineup, which did not contain the names of the individuals or 

any information regarding their families. 
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when a defendant is in custody. When a defendant is not in custody at the time of the 

photographic lineup, he “is entitled to counsel at a precustodial investigatory photographic lineup 

only when the circumstances underlying the investigation and the lineup are unusual.” People v 

Lee, 243 Mich App 163; 622 NW2d 71 (2000) (citation and quotation marks omitted). 

 This issue was raised below, and the trial court relied on the testimony of police officers 

when it concluded that defendant was not in custody at the time of the photo lineup. Detroit 

Police Officer Nzinga Moore testified that he had been investigating defendant on a charge 

unrelated to this case. He explained that defendant had been in custody, but was released on that 

charge before the armed robbery investigation. Detroit Police Sergeant Robert Turner and 

Detroit Police Officer Brian Hanks, who were both present at the time of the photo lineup, 

clearly testified at the evidentiary hearing that defendant was not in custody at the time of the 

photographic lineup. At the evidentiary hearing, defendant presented no evidence to the 

contrary. 

 On appeal, defendant relies on a register of actions from the 36th District Court, asserting 

that the register of actions demonstrates that defendant was not released from custody until 

August 27, 2014, which was the same date as the photo lineup. Defendant may not enlarge the 

record on appeal. See MCR 7.210(A)(1); People v Williams, 241 Mich App 519, 524 n 1; 616 

NW2d 710 (2000). Even if this Court were to consider this evidence, while the register of 

actions does reflect that defendant’s jail release was received on August 27, 2014, it does not 

show what time of day defendant was released, and defendant provides no information or 

additional evidence regarding what time of day the photo lineup occurred. Because two officers 

testified that defendant was not in custody at the time of the lineup, and the register of actions 

reflects that defendant was released on the day of the lineup, the evidence supports the trial 

court’s conclusion. Furthermore, defendant does not contend that there were any unusual 

circumstances warranting counsel during the precustodial photographic lineup. Therefore, we 

find no error. 

 Defendant next argues that he is entitled to resentencing because the scores he received 

for offense variable (OV) 1, OV 2, and OV 3 were not supported by a preponderance of the 

evidence. We disagree. 

 “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed 

for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 

Mich 430, 438; 835 NW2d 340 (2013). However, whether the facts as found by the court are 

sufficient to justify the scoring conditions prescribed by statute is a legal question to be reviewed 

de novo. Id. 

 Defendant argues that OV 1, aggravated use of a weapon, was incorrectly scored at 15 

points and should be scored at 0 points because the jury found him not guilty of felon-inpossession and felony-firearm. The trial court scored OV 1 at 15 points, concluding that a 

preponderance of the evidence showed that a “firearm was pointed at or toward a victim[.]” 

MCL 777.31(1)(c). Indeed, a review of the record reveals that Rogers clearly testified that 

defendant stuck a sawed off shotgun in his left side while robbing him. Defendant next argues 

that OV 2, lethal potential of a weapon possessed or used, was incorrectly scored at 10 points 

and should be scored at 0 points. The trial court scored OV 2 at 10 points, concluding that a 
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preponderance of the evidence showed that defendant used a “short-barreled rifle or a shortbarreled shotgun.” MCL 777.32(1)(c). Indeed, a review of the record reveals that Rogers clearly 

testified that defendant stuck a sawed off shotgun in his left side while robbing him. Thus, the 

trial court correctly assessed 10 points for OV 2. Defendant further argues that OV 3, physical 

injury to a victim, was incorrectly scored at 10 points under the theory that “[b]odily injury 

requiring medical treatment occurred to a victim.” MCL 777.33(1)(d). Rogers testified that 

defendant hit him in the face two or three times, which knocked his tooth out, made a hole in his 

face, and also caused a small cut over his eye. Rogers also testified that he lay in his driveway 

bleeding after the incident and that his wife treated his injuries. Although Rogers did not 

actually seek medical treatment, MCL 777.33(3) notes that the phrase “requiring medical 

treatment” only “refers to the necessity for treatment and not the victim’s success in obtaining 

treatment.” A preponderance of the evidence therefore supported the assessment of 10 points. 

Therefore, defendant fails to establish a scoring error warranting resentencing. 

 Defendant next argues, and the prosecution concedes, that the trial court engaged in 

judicial fact-finding at sentencing, which altered defendant’s sentencing guidelines range and 

warrants remand. We agree. 

 Defendant failed to preserve his argument because he did not object to the scoring of the 

OVs on this ground. Lockridge, 498 Mich at 392. Therefore, the unpreserved issue is reviewed 

for plain error affecting defendant’s substantial rights. See id. “To establish entitlement to relief 

under plain-error review, the defendant must establish that an error occurred, that the error was 

plain, i.e., clear or obvious, and that the plain error affected substantial rights.” Id. at 392-393. 

With regard to the third requirement, the defendant must show prejudice, meaning that the error 

affected the outcome in the trial court. Id. at 393. Finally, the court must exercise its discretion 

in deciding if reversal is appropriate, and “[r]eversal is warranted only when the error resulted in 

the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or 

public reputation of judicial proceedings independently of the defendant’s innocence.” Id. 

 Recently, our Supreme Court significantly altered the standards for sentencing criminal 

defendants in our state. In Alleyne v United States, 570 US ___; 133 S Ct 2151, 2155; 186 L Ed 

2d 314, 321 (2013), the United States Supreme Court held that because mandatory minimum 

sentences increase the penalty for a crime, any fact that increases the mandatory minimum “is an 

‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” In 

Lockridge, 498 Mich at 364, our Supreme Court held that Michigan’s sentencing guidelines are 

constitutionally deficient under the Sixth Amendment to the extent that “the guidelines require

judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense 

variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, 

i.e., the ‘mandatory minimum’ sentence under Alleyne.” As a remedy, our Supreme Court 

“sever[ed] MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored 

on the basis of facts beyond those admitted by the defendant or found by the jury beyond a 

reasonable doubt mandatory.” Id. The Court also struck “down the requirement in MCL 

769.34(3) that a sentencing court that departs from the applicable guidelines range must 

articulate a substantial and compelling reason for that departure.” Id. at 364-365. The Court 

held that the “guidelines minimum sentence range” is advisory only and “that sentences that 

depart from that threshold are to be reviewed by appellate courts for reasonableness.” Id. at 365. 
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Courts must continue to determine the applicable guidelines range and take it into account when 

sentencing a defendant. Id. 

 With regard to an unpreserved challenge, where facts admitted by the defendant or found 

by the jury “were sufficient to assess the minimum number of OV points necessary for the 

defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced,” 

a defendant did not suffer any prejudice and “there is no plain error and no further inquiry is 

required.” Lockridge, 498 Mich at 394-395. However, where the facts found by the jury or 

admitted to by the defendant were insufficient to assess the minimum number of OV points for 

the defendant’s score to fall in the cell of the sentencing grid under which he was sentenced, “an 

unconstitutional constraint actually impaired the defendant’s Sixth Amendment right,” and in the 

absence of an upward departure, defendants “who can demonstrate that their guidelines 

minimum sentence range was actually constrained by the violation of the Sixth Amendment . . . 

can establish a threshold showing of the potential for plain error sufficient to warrant a remand to 

the trial court for further inquiry.” Id. at 395. 

 While the jury found defendant guilty of armed robbery, the jury’s verdict does not 

reflect that defendant actually pointed a firearm at Rogers, because it is not an element of armed 

robbery.3

 Although Rogers testified that defendant pointed a sawed off shotgun at him, this fact 

was not necessary to support the armed robbery conviction. Therefore, as defendant argues and 

the prosecutor concedes, the trial court’s assessment of 15 points for OV 1 was based on facts 

that were not admitted by defendant or found beyond a reasonable doubt by the jury. 

 

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 The armed robbery statute, MCL 750.529, provides, in relevant part: 

 A person who engages in conduct proscribed under [MCL 750.530] and 

who in the course of engaging in that conduct, possesses a dangerous weapon or 

an article used or fashioned in a manner to lead any person present to reasonably 

believe the article is a dangerous weapon, or who represents orally or otherwise 

that he or she is in possession of a dangerous weapon, is guilty of a felony 

punishable by imprisonment for life or for any term of years. 

MCL 750.530 provides: 

 (1) A person who, in the course of committing a larceny of any money or 

other property that may be the subject of larceny, uses force or violence against 

any person who is present, or who assaults or puts the person in fear, is guilty of a 

felony punishable by imprisonment for not more than 15 years. 

 (2) As used in this section, “in the course of committing a larceny” 

includes acts that occur in an attempt to commit the larceny, or during 

commission of the larceny, or in flight or attempted flight after the commission of 

the larceny, or in an attempt to retain possession of the property. 
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 While the jury found defendant guilty of armed robbery, the use of a sawed off shotgun 

or any type of firearm is not an element of the crime. See MCL 750.529. Further, the jury found 

defendant not guilty of two firearms-related charges, felon-in-possession and felony-firearm. 

Thus, the use of a sawed off shotgun or any sort of firearm was not reflected in the jury verdict. 

Therefore, as defendant argues and the prosecutor concedes, the trial court’s assessment of 10 

points for OV 2 was based on facts that were not admitted by defendant or found beyond a 

reasonable doubt by the jury. Consequently, the trial court engaged in judicial fact-finding with 

regard to the assessment of 10 points for this offense variable. 

 With regard to the assessment of 10 points for OV 3, the jury’s verdict did not reflect its 

finding on this issue because physical injury is not an element of armed robbery. See MCL 

750.529. Accordingly, the judge had to determine from the record evidence whether Rogers 

suffered bodily injury requiring medical treatment. Therefore, as defendant argues and the 

prosecutor concedes, the trial court’s assessment of 10 points for OV 3 was based on facts that 

were not admitted by defendant or found beyond a reasonable doubt by the jury. Consequently, 

the facts found by a jury support a score of 0 points under this variable. 

 Defendant was sentenced before July 29, 2015, the date of the Lockridge decision. When 

scored on the basis of the facts necessarily found by the jury, defendant’s total OV score is 

reduced from 35 to 0, which changes his OV level from II to I on the Class A grid. See MCL 

777.62. Defendant was assessed five prior record variable (PRV) points, placing him at PRVlevel B. As a second habitual offender, his sentencing guidelines range would be 27 to 56 

months, instead of the originally calculated range of 42 to 87 months. See MCL 777.62; MCL 

777.21(3)(a). Defendant’s original 65-month minimum sentence fell within the calculated 

guidelines range of 42 to 87 months. Therefore, it is necessary to remand the case to the trial 

court in accordance with the “Crosby”4

 remand procedure set forth in Lockridge to determine 

whether the court would have imposed a materially different sentence but for the constitutional 

error. See Lockridge, 498 Mich at 395-399. The court should only consider the circumstances 

that existed at the time of defendant’s original sentence. Id. 

[O]n a Crosby remand, a trial court should first allow a defendant an opportunity 

to inform the court that he or she will not seek resentencing. If notification is not 

received in a timely manner, the court (1) should obtain the views of counsel in 

some form, (2) may but is not required to hold a hearing on the matter, and (3) 

need not have the defendant present when it decides whether to resentence the 

defendant, but (4) must have the defendant present, as required by law if it 

decides to resentence the defendant. [Id. at 398 (citation omitted).] 

If the court decides that it would not have imposed a materially different sentence, it must place 

on the record a decision not to resentence with explanation. Id. If the court decides that it would 

have imposed a materially different sentence, it shall vacate the sentence and, with defendant 

present, resentence defendant. Id. 

 

4 United States v Crosby, 397 F3d 103 (CA 2, 2005). 
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 Affirmed, but remanded for proceedings consistent with this opinion. We do not retain 

jurisdiction. 

/s/ Kathleen Jansen 

/s/ Karen M. Fort Hood 

/s/ Mark T. Boonstra