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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

January 22, 2015 

v No. 318391 

Wayne Circuit Court 

ERIK SADOWSKI, LC No. 12-009458-FC 

 Defendant-Appellant. 

Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ. 

PER CURIAM. 

 Defendant, Erik Sadowski, appeals as of right his bench trial convictions of assault with 

intent to commit murder, MCL 750.83, and felonious assault, MCL 750.82. The trial court 

sentenced defendant to concurrent sentences of 12 to 30 years’ imprisonment for the assault with 

intent to commit murder conviction and one to four years’ imprisonment for the felonious assault 

conviction. We affirm. 

I. PERTINENT FACTS AND PROCEDURAL HISTORY 

 This case arises from an altercation in which the victim, Justin Krol, was stabbed multiple 

times. On September 17, 2012, defendant and Krol, who had been friends for approximately 

nine years before the stabbing, decided to celebrate defendant’s decision to join the United States 

Army. They began consuming beer at approximately 3:00 p.m. that day, and ended up at the 

Toy Chest, a strip club, later that evening. While leaving the Toy Chest at approximately 2:00 

a.m. the next morning, defendant and Krol confronted Renae Ruelas, Tracy Weiler, Barend 

Spies, and Carl Lewis, who also attended the club. Defendant and Krol claimed that they 

worked for the Toy Chest and that the other group had not paid its bill. Weiler testified that she 

knew this was a lie because she knew all of the people who worked at the Toy Chest. When 

Weiler told the men she would not give them any money, the conversation grew heated and 

defendant repeatedly told Krol to punch Weiler, but Krol refused. The confrontation turned 

physical when defendant punched Weiler in the jaw. Defendant and Krol then squared off with 

Ruelas, Weiler, Lewis, and Spies. After a brief fracas, defendant and Krol fell to the ground, and 

Ruelas, Weiler, Spies, and Lewis ran away. 

 When the fight ended, defendant walked over to Krol to help him up, and he and Krol 

began to argue. Defendant punched Krol in the face two or three times, knocked him down, then 

reached into his pocket and continued punching Krol while he was on the ground. Defendant 
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stood over Krol, “just hitting him” and moving his hands in an “up and down motion” several 

times. Defendant also kicked Krol in the head two times. Ruelas, who had turned around, yelled 

for defendant to stop. Defendant left after a bouncer from the Toy Chest approached. Ruelas 

observed that Krol was covered in what appeared to be blood and that blood was “pooling” 

underneath him. Weiler observed cuts all over Krol’s body. Police officers responding to the 

scene saw “multiple stab or slash wounds” on Krol’s lower left back, left side, and left arm. 

 Defendant was arrested a short distance away following a traffic stop by Officers Daniel 

Ross and Nicholas Damphousse. The officers ordered defendant to come out of the vehicle with 

his hands above his head. Defendant was covered in what appeared to be blood. Officer Ross 

handcuffed defendant, but did not inform him of his Miranda1

 rights. Officer Ross began to 

search defendant for weapons, at which point defendant volunteered that “the knife is in my right 

pocket.” Officer Ross did not immediately locate the weapon, so he asked, “are you sure you 

have a weapon on you[?]” Officer Ross explained that he did not want to turn defendant over to 

other officers if defendant was still armed. He was concerned that defendant, who had allegedly 

been involved in a stabbing, was still armed and that his search of defendant failed to reveal the 

hidden knife. In response, defendant told Officer Ross that “[i]f it’s not in my pocket then it’s in 

the car.” Officer Damphousse looked inside the car and saw a knife in the passenger seat. The 

knife was in plain view and appeared to be covered in blood. 

 At trial, defendant objected to the admission of both of his statements to Officer Ross 

about the knife. The trial court ruled that the first statement—that the knife was located in 

defendant’s pocket—was admissible because defendant volunteered the information without any 

questioning from Officer Ross. The trial court also explained, “clearly the public safety 

exception [to Miranda] applies there as well.” With regard to the second statement, the trial 

court found that the public safety exception applied, given that defendant had already 

volunteered that he was armed with a knife and that Officer Ross was unable to locate the knife 

on defendant’s person. 

II. DEFENDANT’S STATEMENTS ABOUT THE KNIFE 

 Defendant first argues that the trial court erred in admitting his statements to the police 

that he had a knife in his right pocket and that the knife was located in a car because the 

statements were made before the police officers informed defendant of his Miranda rights. We 

disagree. 

 An appellate court reviews a trial court’s findings of fact with regard to a motion to 

suppress for clear error. People v Elliott, 494 Mich 292, 300; 833 NW2d 284 (2013). An issue 

of legal interpretation is reviewed de novo. Id. at 300-301. “Whether a court applied the correct 

constitutional standard is reviewed de novo.” Id. at 301. 

 The United States and Michigan Constitutions provide a criminal defendant with a 

privilege against self-incrimination. People v Cortez (On Remand), 299 Mich App 679, 691; 832 

 

1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 
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NW2d 1 (2013), citing US Const, Am V; Const 1963, art 1, § 17. When a criminal defendant 

undergoes custodial interrogation, the defendant must be warned that “ ‘he has a right to remain 

silent, that any statement he does make may be used as evidence against him, and that he has a 

right to the presence of an attorney, either retained or appointed.’ ” Cortez (On Remand), 299 

Mich App at 691, quoting Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 

(1966). This Court determines whether a defendant is in custody by examining the totality of the 

circumstances. Cortez (On Remand), 299 Mich App at 691. This Court examines “whether a 

reasonable person in the defendant’s situation would believe that he or she was free to leave,” as 

well as “whether the relevant environment present[ed] the same inherently coercive pressures as 

the type of station house questioning at issue in Miranda.” Id. at 692 (citations and quotation 

marks omitted). Interrogation occurs when a defendant “ ‘is subjected to either express 

questioning or its functional equivalent.’ ” People v White, 493 Mich 187, 195; 828 NW2d 329 

(2013), quoting Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct 1682; 64 L Ed 2d 297 

(1980). The term “functional equivalent” includes “ ‘any words or actions on the part of the 

police (other than those normally attendant to arrest and custody) that the police should know are 

reasonably likely to elicit an incriminating response from the suspect.’ ” White, 493 Mich at 

195, quoting Innis, 446 US at 301. In contrast, the admission of statements that did not come in 

response to police questioning, i.e., volunteered statements, does not violate the defendant’s due 

process rights. White, 493 Mich at 194-195. 

 Courts have recognized that an exception exists to the rule from Miranda when there is 

an immediate concern for the safety of the public and police questioning is “objectively 

necessary” to ensure public safety. People v Attebury, 463 Mich 662, 670-671; 624 NW2d 912 

(2001). The public safety exception also applies when there is an immediate concern for the 

safety of the police officers themselves. Id. at 671-672. However, the exception does not apply 

to questions that are “clearly investigatory.” Id. at 671 (citation and quotation omitted). For 

example, in Attebury, the Michigan Supreme Court held that the public safety exception applied 

when the defendant began to search through his dresser drawers after the police officers allowed 

the defendant to dress before arresting him. Id. at 672-673. The Michigan Supreme Court held 

that a reasonable person would have felt threatened when the defendant began to look through 

his dresser. Id. at 672-673. The Michigan Supreme Court also emphasized that the police 

officers limited their questioning of the defendant to the location of a weapon. Id. at 673-674. 

Furthermore, the basis for the defendant’s arrest was an incident in which the defendant 

threatened his wife with a gun, and the police offers knew that the defendant had been reported 

to have had homicidal and suicidal thoughts. Id. at 673-674. Therefore, the defendant’s 

statements to the police regarding the location of a weapon were admissible at trial. Id. at 674. 

 Here, defendant was in custody when he made both statements regarding the location of 

the knife to Officer Ross. Defendant complied with Officer Ross’s command to go down on his 

knees with his hands on top of his head. Officer Ross, who, along with Officer Damphousse, 

drew his weapon on defendant, then handcuffed defendant. A reasonable person in defendant’s 

position would not have felt free to leave. See Cortez (On Remand), 299 Mich App at 691-692. 

 Nevertheless, the trial court did not err in admitting defendant’s first statement to the 

police regarding the fact that the knife was in his right pocket because defendant volunteered the 

statement without being interrogated by the officers. See White, 493 Mich at 193-195. 

Defendant made the statement while he was handcuffed, but before Officer Ross asked him any 
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questions regarding the location of the knife. Thus, defendant was not subjected to express 

questioning by Officer Ross. See id. at 195, 197-198. In addition, Officer Ross’s conduct did 

not amount to the “functional equivalent” of express questioning because his search of defendant 

was attendant to defendant’s arrest, and he did not have reason to know that searching defendant 

would cause defendant to say where the knife could be found. See id. at 202. Therefore, the trial 

court did not err in admitting defendant’s first statement about the knife. 

 Although defendant made his second statement in response to Officer Ross’s questioning, 

the trial court correctly ruled that the statement should not be suppressed because the second 

statement falls under the public safety exception to Miranda. Officer Ross’s search of defendant 

and his question regarding the location of the knife were reasonably necessary to protect the 

officers and other members of the public from the potential dangers posed by the knife and 

defendant’s possible possession thereof. Officer Ross and Officer Damphousse, who also 

participated in defendant’s arrest, knew that defendant was a suspect in a stabbing that had 

occurred just moments before the arrest. Immediately after his arrest, defendant volunteered that 

he had a knife on his person. Even though he handcuffed defendant, Officer Ross feared injury 

to himself and anyone else who would encounter defendant because it was possible that 

defendant still possessed the knife used in the stabbing. Officer Ross’s question regarding the 

location of the knife was reasonably necessary to protect himself, and those who might have 

encountered defendant after his arrest, from the inherent and immediate danger that defendant 

possessed a weapon. See Attebury, 463 Mich at 670-672. The question was not investigatory, as 

Officer Ross reasonably feared for his safety as well as for the safety of other officers who might 

have encountered a still-armed suspect. In addition, Officer Ross limited his question to the 

location of the knife and neutralizing the danger caused thereby. See id. at 674 (emphasizing 

that the officers’ questioning was solely about neutralizing the danger and did not involve 

broader questions related to the investigation of the crime). Therefore, the trial court did not err 

in admitting both of defendant’s statements to the police. See id. 

III. IMPROPER PROSECUTORIAL ARGUMENT 

 Defendant next argues the prosecutor’s statement during his closing argument, that 

defendant reached into his pocket numerous times during the first fight, denied defendant of his 

rights to a fair trial, due process of the law, and confrontation of the witnesses against him. 

Specifically, defendant contends that the prosecutor committed misconduct by stating, in regard 

to the initial altercation with Weiler, Spies, Ruelas, and Lewis, that defendant “reached into his 

pocket numerous times throughout this fight, I guess in an attempt to even the odds” and that 

defendant had “bad intentions” and “malice in his mind.” Defendant contends that the 

prosecutor’s comment was improper because there is no evidence that he ever reached into his 

pockets during the initial altercation. 

 “In order to preserve a claim of prosecutorial misconduct for appellate review, a 

defendant must have timely and specifically objected below, unless objection could not have 

cured the error.” People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). Defendant 

did not object to the prosecutor’s statement in the trial court. Therefore, the issue is unpreserved. 

This Court reviews an unpreserved claim of prosecutorial misconduct “for plain error that 

affected the defendant’s substantial rights.” People v Meissner, 294 Mich App 438, 455; 812 

NW2d 37 (2011). “Reversal is warranted only when plain error resulted in the conviction of an 
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actually innocent defendant or seriously affected the fairness, integrity, or public reputation of 

judicial proceedings.” Id. (citation and quotation omitted). 

 “Given that a prosecutor’s role and responsibility is to seek justice and not merely 

convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and 

impartial trial.” People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014) (citation and 

quotation omitted). This Court considers the issue on a case-by-case basis and examines the 

prosecutor’s statement in context to determine whether an error occurred. Brown, 294 Mich App 

at 382-383. “A prosecutor may not make a statement of fact to the jury that is not supported by 

evidence presented at trial and may not argue the effect of testimony that was not entered into 

evidence.” People v Unger, 278 Mich App 210, 241; 749 NW2d 272 (2008). However, a 

prosecutor may argue any reasonable inference stemming from the evidence presented at trial. 

People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003). 

 The prosecutor’s argument was proper because the statement about defendant reaching 

into his pockets during the first altercation constituted a reasonable inference from the testimony 

presented at trial. Ruelas testified at trial that defendant attempted to reach inside his pocket 

during the fight. Ruelas stated that defendant “kept going for his pockets” during the initial 

altercation. The prosecutor’s statement that defendant reached inside his pocket is a reasonable 

inference from Ruelas’s testimony that defendant kept reaching inside or going for his pockets. 

See Ackerman, 257 Mich App at 450. 

 Furthermore, the prosecutor’s remark did not affect defendant’s substantial rights. The 

prosecutor made the statement in the context of describing defendant’s initial altercation with 

Ruelas, Weiler, Spies, and Lewis. As defendant notes in his brief, the main dispute was whether 

defendant used a knife to injure Krol. There was testimony presented at trial that defendant 

reached into his pocket before punching or hitting Krol in the stomach. Defendant was found 

with a bloody knife in the front seat of his vehicle shortly after this incident. In addition, in a 

bench trial such as this one, the trial court is presumed to have known that the prosecutor’s 

remarks during closing argument were not evidence. See People v Lanzo Constr Co, 272 Mich 

App 470, 484; 726 NW2d 746 (2006) (“In a bench trial, the trial court is presumed to know the 

applicable law.”). Therefore, the prosecutor’s statement did not amount to plain error affecting 

defendant’s substantial rights. See Meissner, 294 Mich App at 455. 

 For the same reasons, we reject defendant’s attendant claim that his trial counsel was 

ineffective for failing to object to the prosecutor’s statements. “[T]rial counsel is not ineffective 

when failing to make objections that are lacking in merit.” People v Matuszak, 263 Mich App 

42, 58; 687 NW2d 342 (2004). 

IV. DIRECTED VERDICT 

 Defendant next argues that the trial court erred in denying his motion for a directed 

verdict on the charge of assault with intent to commit murder because there was insufficient 

evidence presented at trial to establish beyond a reasonable doubt that he had the specific intent 

to kill Krol. We disagree. 
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 This Court reviews a trial court’s denial of a motion for a directed verdict de novo. 

People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001). This Court looks at the 

evidence in a light most favorable to the prosecution to determine whether a rational trier of fact 

could find “that the essential elements of the crime charged were proved beyond a reasonable 

doubt.” Aldrich, 246 Mich App at 122-123. 

 The elements of assault with intent to commit murder are “(1) an assault, (2) with an 

actual intent to kill, (3) which, if successful, would make the killing murder.” People v 

Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014) (citation and quotation omitted). Assault 

with intent to commit murder is a specific intent crime. People v Brown, 267 Mich App 141, 

147; 703 NW2d 230 (2005). “[I]ntent may be inferred from circumstantial evidence.” 

Henderson, 306 Mich App at 11. Circumstantial evidence includes the use of a deadly weapon 

to commit the assault. Id. “Minimal circumstantial evidence is sufficient to show an intent to 

kill, and that evidence can include a motive to kill, along with flight and lying, which may reflect 

a consciousness of guilt.” Id. 

 The trial court did not err in denying defendant’s motion for a directed verdict because 

there was sufficient evidence for the trial court to find that defendant intended to kill Krol. The 

violent manner in which defendant committed the assault shows that he intended to kill Krol. 

Defendant punched Krol two or three times in the face. He reached into his pocket and then hit 

Krol in the stomach. Defendant stabbed Krol approximately 14 times. He also kicked Krol in 

the head twice. When Ruelas approached Krol, he was covered in blood and was unable to 

breathe. He had cuts all over his body, and blood was pooling around him. Moreover, the fact 

that defendant used a deadly weapon—a knife—to assault Krol provides circumstantial evidence 

of defendant’s intent to kill. Officer Damphousse recovered a “folding blade knife” with a 3-

inch blade from the passenger side of the Jeep defendant was driving. The knife was covered in 

what appeared to be blood. Additionally, defendant fled the scene after a bouncer came out of 

the Toy Chest, which supports a finding that he had a guilty conscience. See Henderson, 306 

Mich App at 11. Therefore, there was ample circumstantial evidence showing that defendant 

intended to kill Krol. See id. 

 Defendant argues that there was no evidence that he had a motive to kill Krol. However, 

the prosecution only needed to show minimal circumstantial evidence of defendant’s intent to 

kill. See id. at 11. Whether defendant had a motive to kill Krol was only one factor in 

determining whether defendant intended to kill Krol. See id. Defendant also argues that he was 

unable to form the specific intent to kill Krol because he was intoxicated during the incident. 

Krol testified that he and defendant consumed a “six pack” of beer at Krol’s house, drank a 

pitcher of beer at a restaurant, and drank again at a pub before the altercation. To the extent that 

Krol’s testimony regarding the fact that he had been drinking with defendant establishes that 

defendant was intoxicated during the incident, voluntary intoxication does not negate defendant’s 

specific intent. Voluntary intoxication is an affirmative defense to a specific intent crime only if 

the defendant establishes by a preponderance of the evidence “that he or she voluntarily 

consumed a legally obtained and properly used medication or other substance and did not know 

and reasonably should not have known that he or she would become intoxicated or impaired.” 

MCL 768.37(2). Defendant fails to argue, let alone establish, that he did not know or reasonably 

should not have known that he would become intoxicated or impaired when he consumed 

alcohol with Krol. Therefore, defendant’s argument fails. See MCL 768.37(2). 
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V. SENTENCING 

 Defendant argues that the trial court erred in assessing 25 points for offense variable 

(OV) 3 because there was insufficient evidence that Krol suffered life threatening or permanent 

incapacitating injury. Defendant also argues that the trial court erred in assessing 25 points for 

OV 6 because the incident involved a combative situation, and defendant did not initiate the 

altercation with Krol. 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). A finding is clearly erroneous when this Court “is left 

with a definite and firm conviction that an error occurred.” People v Fawaz, 299 Mich App 55, 

60; 829 NW2d 259 (2012) (citation and quotation omitted). “Whether 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 question of statutory interpretation, which an appellate court reviews de novo.” 

Hardy, 494 Mich at 438. 

A. OV 3 

 OV 3 addresses the physical injuries to the victim. Fawaz, 299 Mich App at 60. MCL 

777.33(1) governs the scoring of OV 3 and provides, in part: 

(a) A victim was killed ............................................................................ 100 points 

(b) A victim was killed ............................................................................ 50 points 

(c) Life threatening or permanent incapacitating injury occurred to a victim 

................................................................................................................... 25 points

(d) Bodily injury requiring medical treatment occurred to a victim 

................................................................................................................... 10 points

(e) Bodily injury not requiring medical treatment occurred to a victim 

..................................................................................................................... 5 points

(f) No physical injury occurred to a victim ................................................ 0 points 

The prosecution does not need to present medical testimony to show that the victim suffered life 

threatening injuries. People v McCuller, 479 Mich 672, 697 n 19; 739 NW2d 563 (2007). 

Instead, the trial court can consider all evidence on the record, including trial testimony. See 

People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012). 

 In People v Anderson, 298 Mich App 178, 187-188; 825 NW2d 678 (2012), this Court 

upheld the trial court’s score of OV 3 based on life threatening injuries where the victims 

suffered from observable burns covering their bodies and were still undergoing treatment for the 

burns at the time of trial. In McCuller, 479 Mich at 697, the Michigan Supreme Court noted that 

the trial court’s assessment of 25 points for OV 3 “was based on uncontested factors and was 

supported by overwhelming evidence” when the evidence established that the victim lost 
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consciousness after being struck by the defendant, stayed in the hospital for ten days, lost several 

teeth, and “suffered a concussion, broken nose, broken cheek bone, broken eye socket, fractured 

skull, and collapsed right inner ear wall.” 

 Although the victim need only suffer a permanent incapacitating injury or a life 

threatening injury, the trial court did not err in scoring OV 3 because the record evidence shows 

that Krol sustained both a permanent incapacitating injury and a life threatening injury. At 

sentencing, the trial court found, based on Krol’s trial testimony, that Krol could not use his left 

hand.2

 Thus, Krol suffered an incapacitating injury that, per all accounts at trial, appeared to be 

permanent. Therefore, the trial court did not err by scoring OV 3. See MCL 777.33(1)(c) 

(authorizing a score of 25 points where the victim sustained a permanent incapacitating injury or

a life threatening injury). 

 In addition, the trial court did not err by finding that Krol suffered a life threatening 

injury. Krol testified at trial that he was in a coma for ten days following the assault, which 

indicates that his life was threatened. See McCuller, 479 Mich at 697. Furthermore, Krol was 

stabbed 14 times, including in his left arm, his left side, his chest, and the area of his back 

underneath his shoulder blades. Krol was in the hospital for approximately two weeks, had 

several surgeries, and received numerous blood transfusions. He had a chest tube placed in his 

lung because his lung collapsed. He was also placed on a ventilator. Krol’s liver was damaged 

from the stabbing as well. These severe injuries rose to the level of a life threatening injury. See 

McCuller, 479 Mich at 697; Anderson, 298 Mich App at 187-188; Johnson, 298 Mich App at 

131 (noting that a trial court may consider all evidence on the record in calculating the 

sentencing guidelines). Therefore, the trial court properly assessed 25 points for OV 3. See 

MCL 777.33(1)(c). 

B. OV 6 

 OV 6 addresses a defendant’s intent to kill or injure another person. See MCL 777.36(1); 

People v Bowling, 299 Mich App 552, 561; 830 NW2d 800 (2013). The trial court must score 

OV 6 when the offense is assault with intent to commit murder. MCL 777.22(1). MCL 

777.36(1) governs the scoring of OV 6 and provides, in part: 

(a) The offender had premeditated intent to kill or the killing was committed 

while committing or attempting to commit arson, criminal sexual conduct in the 

first or third degree, child abuse in the first degree, a major controlled substance 

offense, robbery, breaking and entering of a dwelling, home invasion in the first 

or second degree, larceny of any kind, extortion, or kidnapping or the killing was 

the murder of a peace officer or a corrections officer .............................. 50 points 

 

2

 Although Krol’s medical records were admitted as evidence at trial, they were not provided to 

this Court. Regardless, the available record supports the trial court’s factual findings by a 

preponderance of the evidence. 
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(b) The offender had unpremeditated intent to kill, 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 ........................................... 25 points 

(c) The offender had intent to injure or the killing was 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 ...................................... 10 points 

(d) The offender had no intent to kill or injure .......................................... 0 points 

 “The sentencing judge shall score this variable consistent with a jury verdict unless the 

judge has information that was not presented to the jury.” MCL 777.36(2)(a). In addition, the 

trial court must assess ten points for OV 6 “if a killing is intentional within the definition of 

second degree murder or voluntary manslaughter, but the death occurred in a combative situation 

or in response to victimization of the offender by the decedent.” MCL 777.36(2)(b). 

 The trial court properly assessed 25 points for OV 6. As noted, the trial court, in 

rendering its verdict, found that defendant had the specific intent to kill Krol. The trial court did 

not find that the intent to kill was premeditated. Thus, the trial court was required to assess 25 

points for OV 6 in order to score OV 6 consistent its verdict. See MCL 777.36(2)(a). In 

addition, MCL 777.36(2)(b) does not apply in this situation. First, MCL 777.36(2)(b) applies 

when there is a death, since the statute refers to a “killing” and the “death” of a person. See 

MCL 777.36(2)(b). Second, there is no indication that the assault occurred in a combative 

situation. Instead, the testimony at trial established that defendant walked over to Krol after 

Ruelas, Weiler, Spies, and Lewis ran away, and helped Krol get up. Defendant and Krol started 

to talk or argue. Defendant punched Krol in the face two or three times, and Krol fell to the 

ground. Defendant punched Krol in the stomach and stabbed him several times. Defendant then 

kicked Krol in the head two times and ran away. There is no indication that Krol initiated or 

participated in the physical altercation. Therefore, the trial court did not err in assessing 25 

points for OV 6. 

 Affirmed. 

/s/ Jane M. Beckering 

/s/ Kathleen Jansen 

/s/ Mark T. Boonstra