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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Plaintiff-Appellee, UNPUBLISHED July 12, 2016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: J ANSEN , P.J., and F ORT H OOD and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial conviction of arm ed robbery, MCL 750.529. The trial court sentenced defendant as a second habitual offend er, MCL 769.10, to 65 to 240 months’ imprisonment. We affirm defendant’s conviction, but re mand 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 occurre d in the early morning hours of August 22, 2014, the victim, Antwain Rogers, Sr., identified defendant as the person who stu ck a sawed off shotgun in his side and forced Rogers to give him money while Rogers sat in hi s car. Defendant was charged with armed robbery, MCL 750.529, possession of a firearm by a p erson convicted of a felony (felon-in-possession), MCL 750.224f , and possession of a firear m during the commission of a felony (felony-firearm), MCL 750.227b. Defendant brought a pre trial 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 pro ceeded to a jury trial, and the jury found defendant guilty of armed robbery and not guilty of the f irearm charges.

Defendant first argues that he was denied due process of law w hen 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 lin eup. We disagree.

In relation to a motion to supp ress identificat ion 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 le ft with a definite and firm conviction that a mistake was made.” Id

.-2- “A photographic identification pr ocedure or lineup violates du e process guarantees when it is so impermissibly suggestiv e as to give rise to a substant ial likelihood of misidentification.” McDade , 301 Mich App at 357. The issue is determined based on the to tality of the circumstances. People v Hornsby , 251 Mich App 462, 466; 650 NW2d 700 (2002). “Physical differences among the lineup participants do not necessarily re nder the procedure defective and are significant only to the exten t that they are apparent to th e witness and substantially distinguish the defendant from th e other lineup pa rticipants.” 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 G RIFFIN , 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 surroundi ng 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, th e accuracy of the witness' prio r 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 s uggestive when the defendant was the second tallest person in the lineup and was h eavier than the other participants, when there were age and height differences between the defendan t 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 G RIFFIN , J.). This Court in McDade , 301 Mich App at 357-358, found useful this Court’s observatio n in People v Dean , 103 Mich App 1, 10; 302 NW2d 317 (1981), that when considerin g the totality of the circumstances, “the mere fact that defendant’s photograph was t aken from a vertical angle was [not] so impermissibly suggestive as to give rise to a very sub stantial likelihood of irreparable misidentification.”

Here, defendant complains his photograph in the photo array wa s so different from the other photos that it stood out pro minently, even at first glanc e. In particular, defendant argues that his face was stretched out a nd that he was the only person in the array who was smiling with his mouth open. The prosecution does not dispute that defendan t’s head was larger than the heads of the other individuals in the photographic lineup and t hat 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 sim ilar age and similar skin tone

. 1 Height and build cannot easily

1 Defendant points out in his rep ly brief that Rogers testified during the preliminary examination that the photographs were in color. However, the officer who c reated 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 r eview. In addition, even assum ing that Rogers viewed a colored photographic array, defendant does not explain how this fact, i n and of itself, rendered the lineup-3- be discerned because the individuals are displayed from the nec k up. Two of the men appear to have braided hair, two of the men, including defendant, have dr eadlocks, and the last two have afro hairstyles. All six men appear to have facial hair, eithe r goatees or beards, though it is hard to tell whether defendant has facial hair. Three of the men ha ve 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 mor e round. Four of the men are not smiling, one man appears to have a very small smile, and defend ant is broadly smiling.

Defendant claims that his face was stretched out and that he w as the only individual who was smiling with his mouth open. He argues that these differen ces merit suppression and reversal. But he fails to expl ain how the differences would re sult in a substantial likelihood of misidentification, as opposed t o merely constituting “noticeabl e” 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 differe nces or variations, it would m ake 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 conclu sion that the photographic array was i mpermissibly suggestive.

Furthermore, the record evidence displays that Rogers was awar e and attentive during the incident, watching defendant the whole time. Defendant approac hed 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. R ogers testified that the incid ent occurred near a working streetlight. Rogers repeatedly testified that he was certain i n his identification both at the evidentiary hearing and at trial. Rogers testified that the po lice did not suggest to him that defendant was depicted on the pho tographic lineup and did not s uggest that the perpetrator was displayed on the lineup. Also, significantly, only five days p assed between the incident and the date of the photo lineup, during which time Rogers saw defendan t again. Under these circumstances, even if the phot ographic lineup was suggestive, there was no substantial likelihood of misidentification in this case. We conclude that the composition of the photographic lineup was not imper missibly suggestive to the ext ent that it would have given rise to a substantial likeli hood of misidentification. 2

Defendant also argues that he was in custody at the time of th e 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 G RIFFIN , J.). But this rule is only triggered

impermissibly suggestive, and he does not explain what characte ristics 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 cl ose relatives of the perpetrator. Assuming this is the case, defendant fails to explain how the f act that Rogers knew the perpetrator’s name and information about his family affected hi s identification of defendant as the perpetrator on the photograp hic lineup, which did not conta in the names of the individuals or any information regardi ng their families.-4- when a defendant is in custody. When a defendant is not in cus tody at the time of the photographic lineup, he “is enti tled to counsel at a precustodi al investigatory photographic lineup only when the circumstances underlying the investigation and th e lineup are unusual.” People v Lee , 243 Mich App 163; 622 NW2d 71 (2000) ( citation and quotation marks omitted).

This issue was raised below, a nd 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 investig ating defendant on a charge unrelated to this case. He explained that defendant had been i n 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 th e 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 evid entiary hearing, defendant pre sented 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 no t 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 evid ence, 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 pro vides 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 th at there were any unusual circumstances warranting counsel during the precustodial photog raphic lineup. Therefore, we find no error.

Defendant next argues that he is entitled to resentencing beca use 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 scori ng conditions prescribed by stat ute is a legal question to be reviewed de novo. Id

. Defendant argues that OV 1, aggravated use of a weapon, was in correctly scored at 15 points and should be scored at 0 points because the jury found him not guilty of felon-inpossession and felony-firearm. Th e trial court scored OV 1 at 15 points, concluding that a preponderance of the evidence showed that a “firearm was pointe d 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 robb ing 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-5- preponderance of the evidence showed that defendant used a “sho rt-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 f urther argues that OV 3, physical injury to a victim, was incorrect ly scored at 10 points under t he 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 te stified that he lay in his driveway bleeding after the incident and that his wife treated his injur ies. Although Rogers did not actually seek medical treatment, MCL 777.33(3) notes that the p hrase “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 supporte d the assessment of 10 points. Therefore, defendant fails to est ablish a scoring error warrant ing resentencing.

Defendant next argues, and the prosecution concedes, that the trial court engaged in judicial fact-finding at sentenc ing, which altered defendant’s sentencing guidelines range and warrants remand. We agree.

Defendant failed to preserve his argument because he did not o bject to the scoring of the OVs on this ground. Lockridge , 498 Mich at 392. Therefore, the unpreserved issue is reviewe d for plain error affecting defendant’s substantial rights. See id . “To establish entitlement to relief under plain-error review, the de fendant must establish that an error occurred, that the error was plain, i.e., clear or obvious, a nd that the plain error affecte d substantial rights.” Id . at 392-393. With regard to the third requirement, the defendant must show p rejudice, 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 warr anted only when the error resulted in the conviction of an actually innocent defendant or seriously a ffected the fairness, integrity, or public reputation of judicial proceedings independently of the defendant’s innocence.” Id

. Recently, our Supreme Court significantly altered the standard s 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 b ecause mandatory minimum sentences increase the penalty for a crime, any fact that incre ases 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 Cour t held that Michigan’s sente ncing guidelines are constitutionally deficient under the Sixth Amendment to the ext ent 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 senten cing 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 “dow n the requirement in MCL 769.34(3) that a sentencing court that departs from the applica ble guidelines range must articulate a substantial and compelling reason for that departu re.” Id . at 364-365. The Court held that the “guidelines minimum sentence range” is advisory o nly and “that sentences that depart from that threshold are to be reviewed by appellate cour ts for reasonableness.” Id . at 365.-6- Courts must continue to determine the applicable guidelines ran ge 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 un der 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 j ury or admitted to by the defendant were insufficient to assess the mi nimum number of OV points for the defendant’s score to fall in the cell of the sentencing gri d under which he was sentenced, “an unconstitutional constraint actua lly impaired the defendant’s S ixth Amendment right,” and in the absence of an upward departure, defendants “who can demonstrate that their guidelines minimum sentence range was actu ally constrained by the violatio n of the Sixth Amendment . . . can establish a threshold showi ng of the potentia l for plain er ror 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 ju ry’s verdict does not reflect that defendant actually pointed a firearm at Rogers, be cause 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. The refore, as defendant argues and the prosecutor concedes, the tr ial court’s assessment of 15 poi nts for OV 1 was based on facts that were not admitted by defendant or found beyond a reasonabl e doubt by the jury.

3 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 dang erous weapon or an article used or fashioned in a manner to lead any person pre sent to reasonably believe the article is a dangerous weapon, or who represents or ally or otherwise that he or she is in possession of a dangerous weapon, is guilt y 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 s ubject of larceny, uses force o r violence against any person who is present, or who assaults or puts the person i n 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 la rceny” includes acts that occur in an a ttempt to commit the larceny, o r during commission of the larceny, or in flight or attempted flight aft er the commission of the larceny, or in an attempt t o retain possession of the prope rty.-7- While the jury found defendant guilty of armed robbery, the us e 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 s hotgun 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 de fendant or found beyond a reasonable doubt by the jury. Consequently, the trial court en gaged 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 reco rd 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 dou bt by the jury. Consequently, the facts found by a jury suppor t a score of 0 points under thi s 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 o n the Class A grid. See MCL 777.62. Defendant was assessed fiv e prior record variable (PRV ) points, placing him at PRVlevel B. As a second habitual offender, his sentencing guideli nes 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 f ell within the calculated guidelines range of 42 to 87 months. Therefore, it is necessar y 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 sen tence but for the constitutional error. See Lockridge , 498 Mich at 395-399. The court should only consider the circ umstances that existed at the time of de fendant’s original sentence. Id

. [O]n a Crosby remand, a trial court should first allow a defendant an opport unity 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 vi ews 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 woul d not have imposed a materiall y 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 t he sentence and, with defendant present, resentence defendant. Id.

4 United States v Crosby , 397 F3d 103 (CA 2, 2005).-8- Affirmed, but remanded for proceedings consistent with this op inion. We do not retain jurisdiction.

/s/ Kathleen Jansen /s/ Karen M. Fort Hood /s/ Mark T. Boonstra