If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 22, 2024

v No. 362221

Jackson Circuit Court

ARTIS LEE HOLMES, LC No. 19-002923-FC

Defendant-Appellant.

Before: GARRETT, P.J., and LETICA and MALDONADO, JJ.

PER CURIAM.

Defendant appeals by right his jury trial conviction of assault with intent to do great bodily 

harm less than murder, MCL 750.84. The trial court sentenced defendant as a fourth-offense 

habitual offender, MCL 769.12, to serve 15 to 40 years’ imprisonment. We affirm defendant’s 

conviction but remand this case for the trial court to further articulate its reasoning for its upwarddeparture sentence or to resentence defendant.

I. BACKGROUND

This case arises from a fight between defendant and Donald Cain during which Cain was 

repeatedly stabbed.

For years, Cain had been in a dating relationship with the mother of Brianna Sweet, and 

she viewed him as her stepfather and as a quasi-grandfather to her children. Sweet lived with 

defendant, their children, and her aunt. Sweet had two children with defendant, and on August 7, 

2019, Cain had plans to take one of the children to the county fair. Unbeknownst to Cain, 

defendant had been feuding with Cain’s brother, Ernest Eison, and Eison had sent threatening text 

messages to defendant. When Cain arrived to pick up the child for the county fair, Sweet told him 

that she did not want Cain to take the child. When defendant arrived and confirmed what Sweet 

said, Cain was outraged and a heated argument with defendant ensued. The pair argued in the 

driveway, and as defendant went into the breezeway of his house, Cain followed him and attacked 

him with his fists. Cain started the fight, but defendant finished it.
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Defendant stabbed Cain in his arm, chest, neck, and thorax area. Cain suffered some of 

the stab wounds to his back as he was trying to leave the breezeway. Once outside the breezeway, 

Cain passed out, and while he was on the ground, defendant stomped on his face, causing Cain to 

suffer a broken nose and a broken eye socket. Cain was able to get into his car and drove to his 

brother’s house, and an ambulance then took him to the hospital. Defendant was arrested the same 

day; he was charged with assault to commit murder, but the jury found him guilty of the lesser 

crime of assault with intent to do great bodily harm less than murder.

This appeal followed.

II. ANALYSIS

A. JURY INSTRUCTIONS

Defendant argues that he is entitled to reversal based on errors related to M Crim JI 7.16 

(conditions for using force or deadly force), 7.16a (presumption of reasonable fear of death or 

great bodily injury), and 7.17 (use of deadly force in defense of the home). We disagree.

At the outset, we note the differences in the framing of these three arguments. With respect 

to M Crim JI 7.16, defendant argues that the trial court erred by reading the first paragraph of this 

instruction and asserts that this issue is preserved for appellate review. However, defendant 

acknowledges the possibility that we might deem this issue unpreserved, but he does not assert a 

claim of ineffective assistance arising from defense counsel’s failure to properly preserve the issue; 

rather, he argues that the error is so egregious that it satisfies the dictates of plain error review. 

However, as detailed below, defense counsel expressly agreed to the instructions provided, so 

direct review of this instruction has been waived. With respect to M Crim JI 7.16a and 7.17, on 

the other hand, defendant argues that he received ineffective assistance due to defense counsel’s 

failure to request these instructions. Accordingly, we deem the first argument waived and review

the other two for ineffective assistance.

Claims of ineffective assistance of counsel present mixed questions of fact and law. People 

v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). Factual findings are reviewed for clear 

error and legal conclusions are reviewed de novo. Id. Because the trial court has not conducted

an evidentiary hearing, our review is limited to mistakes that are apparent from the record. People 

v Riley, 468 Mich 135, 139; 659 NW2d 611 (2003). 

The Sixth Amendment of the United States Constitution guarantees that criminal 

defendants receive effective assistance of counsel. Strickland v Washington, 466 US 668, 687-

688; 104 S Ct 2052; 80 L Ed2d 674 (1984). Michigan’s Constitution affords this right the same 

level of protection as the United States Constitution. People v Pickens, 446 Mich 298, 318-320; 

521 NW2d 797 (1994). Accordingly, “[t]o prevail on a claim of ineffective assistance, a defendant 

must, at a minimum, show that (1) counsel’s performance was below an objective standard of 

reasonableness and (2) a reasonable probability exists that the outcome of the proceeding would 

have been different but for trial counsel’s errors.” Head, 323 Mich App at 539 (quotation marks, 

citation, and alteration omitted). “[A] reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). 
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This Court presumes counsel was effective, and defendant carries a heavy burden to overcome this 

presumption. Head, 323 Mich App at 539.

Questions of law involving jury instructions are reviewed de novo. People v Gillis, 474 

Mich 105, 113;712 NW2d 419 (2006). “A criminal defendant has the right to have a properly 

instructed jury consider the evidence against him.” People v Rodriguez, 463 Mich 466, 472; 620 

NW2d 13 (2000) (quotation marks and citation omitted). However, even flawed instructions “do 

not create error if they fairly present to the jury the issues tried and sufficiently protect the 

defendant’s rights.” People v Bartlett, 231 Mich App 139, 143-144; 585 NW2d 341 (1998).

1. M CRIM JI 7.16

Defendant argues that the trial court erred by reading the first paragraph of M Crim JI 7.16, 

but review of this issue has been waived. 

“This Court has defined ‘waiver’ as the intentional relinquishment or abandonment of a 

known right.” People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (quotation marks 

and citation omitted). “One who waives his rights under a rule may not then seek appellate review 

of a claimed deprivation of those rights, for his waiver has extinguished any error.” People v Buie, 

491 Mich 294, 306; 817 NW2d 33 (2012) (quotation marks and citation omitted). “Defense 

counsel cannot acquiesce to the court’s handling of a matter at trial, only to later raise the issue as 

an error on appeal.” Id. at 312 (quotation marks and citation omitted). Moreover, defendant cannot 

allow counsel to consent to a procedure only to object later as this would provide “a defendant 

with ‘an appellate parachute.’ ” Id. at 313. “When defense counsel clearly expresses satisfaction 

with a trial court’s decision, counsel’s action will be deemed to constitute a waiver.” Kowalski, 

489 Mich at 503. 

In the present case, defense counsel initially objected to instructing the jury that defendant 

had a duty to retreat to avoid using deadly force, see M Crim JI 7.16(1), and he asked the trial court 

to instruct the jury regarding “the rebuttable presumption regarding fear of death.” However, 

counsel withdrew his objection regarding M Crim JI 7.16 when he told the trial court: “[W]e’ll 

take the instruction. We’ll address it with the jury.” Additionally, counsel expressly agreed twice 

to the trial court’s instructions as they were read. Under these circumstances, defendant waived 

any objections to erroneous instructions, and there is nothing for us to review. See Kowalski, 489 

Mich at 504.

2. M CRIM JI 7.16A

Defendant argues that defense counsel rendered ineffective assistance by agreeing to jury 

instructions without requesting M Crim JI 7.16a. We conclude that defendant, to the extent defense 

counsel erred by failing to request this instruction, is not entitled to reversal because the error did 

not affect the outcome of the proceeding. 

The relevant portion of M Crim JI 7.16a details a presumption regarding imminent death 

or great bodily harm:

(1) If you find both that—
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(a) the deceased was in the process of breaking and entering a business or 

dwelling, or committing home invasion, or had broken into a business or dwelling, 

or committed home invasion and was still present in the business or dwelling, or 

was unlawfully attempting to remove a person from a dwelling, business, or vehicle 

against the person’s will,

and

(b) the defendant honestly and reasonably believed the deceased was 

engaged in any of the conduct just described

—it is presumed that the defendant had an honest and reasonable belief that 

imminent [death / great bodily harm] would occur. The prosecutor can overcome 

this presumption by proving beyond a reasonable doubt that the defendant did not 

have an honest and reasonable belief that [death / great bodily harm] was imminent.

Relevant to the instant appeal, M Crim JI 7.16a would have entitled defendant to the 

presumption that he had an honest and reasonable belief of imminent death or great bodily injury 

if the jury found that Cain was in the process of, and defendant honestly and reasonably believed 

that Cain was in the process of, breaking and entering into defendant’s home. See M Crim JI 

7.16a(1). The prosecutor could overcome this presumption by proving beyond a reasonable doubt 

that defendant did not have an honest and reasonable belief that death or great bodily harm was 

imminent. The jury’s determination that the prosecution met its burden regarding self-defense 

necessarily implies that the prosecution rebutted the presumption that defendant had an honest and 

reasonable belief that imminent death or great bodily harm would occur from Cain’s entry into his 

home. Therefore, defendant cannot establish prejudice from defense counsel’s agreement to jury 

instructions that did not contain M Crim JI 7.16a because the instructions that were given “fairly 

present[ed] to the jury the issues tried and sufficiently protect[ed] the defendant’s rights.” Bartlett, 

231 Mich App at 143-144.

3. M CRIM JI 7.17

Defendant argues that defense counsel rendered ineffective assistance by agreeing to jury 

instructions without requesting M Crim JI 7.17. We again conclude that defendant, to the extent 

defense counsel erred by failing to request this instruction, is not entitled to reversal because the 

error did not affect the outcome of the proceeding. 

The relevant portion of M Crim JI 7.17 describes the circumstances in which a jury may 

find that a defendant acted in lawful defense of the defendant’s home:

(3) A person may use deadly force to defend [his / her] home where both of 

the following conditions exist:

(a) First, at the time [he / she] acted, the defendant must have honestly and 

reasonably believed that the person whom [he / she] killed or injured used force to 

enter the defendant’s home, or was forcibly attempting to enter the defendant’s 
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home, and had no right to enter [his / her] home. The use of any force may be 

sufficient, including opening a door or raising a window.

(b) Second, at the time [he / she] acted, the defendant must have honestly 

and reasonably believed that the person whom [he / she] killed or injured intended 

to steal property from the home or do bodily injury to the defendant or someone 

else who was lawfully in the home.

If the defendant honestly and reasonably believed that both of those 

conditions existed, [he / she] could act immediately to defend [his / her] home even 

if it turned out later that [he / she] was wrong about those conditions. In deciding 

if the defendant’s belief was honest and reasonable, you should consider all the 

circumstances as they appeared to the defendant at the time.

For the same reasons as discussed above concerning M Crim JI 7.16a, defendant cannot 

establish prejudice from defense counsel’s failure to request the jury instruction addressing the use 

of deadly force in defense of one’s home, see M Crim JI 7.17. Justifying the use of force in defense

of his home required defendant to “have honestly and reasonably believed that [Cain] intended to 

steal property from the home or do bodily injury to the defendant or someone else who was 

lawfully in the home . . . .” M Crim JI 7.17(3)(b). As already discussed, the jury’s verdict 

indicated that the prosecution proved beyond a reasonable doubt that defendant did not honestly 

and reasonably believe that he was in danger of being killed or seriously injured. Therefore, even 

if defense counsel had requested instruction under M Crim JI 7.17, the jury’s conclusion that 

defendant did not honestly and reasonably believe that he was in danger of being killed or seriously 

injured, see M Crim JI 7.17(3)(b), would have prevented the jury from finding that defendant acted 

in defense of his home. Therefore, we conclude that the instructions “fairly present[ed] to the jury 

the issues tried and sufficiently protect[ed] the defendant’s rights.” Bartlett, 231 Mich App at 143-

144.

B. RIGHT TO TESTIFY

Defendant argues that he is entitled to reversal because he was denied his right to testify at 

trial. We disagree.

“A defendant must raise an issue in the trial court to preserve it for [this Court’s] review.” 

People v Heft, 299 Mich App 69, 78; 829 NW2d 266 (2012). Although defendant initially stated 

on the record that he intended to testify, there is no indication that the fact that he ultimately did 

not testify was against his will or in deprivation of his constitutional rights. Therefore, this issue 

is unpreserved. This Court reviews unpreserved claims of error for plain error affecting a 

defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). A 

plain error occurs if three requirements are “met: 1) error must have occurred, 2) the error was 

plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement 

generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower 

court proceedings.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999), reh den 461 

Mich 1205 (1999) (citation omitted). Even if the three requirements are met, “[r]eversal is 

warranted only when the plain, forfeited error resulted in the conviction of an actually innocent 

defendant or when an error seriously affected the fairness, integrity or public reputation of judicial 
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proceedings independent of the defendant’s innocence.” Id. at 763 (quotation marks, citation, and 

alteration omitted).

“A defendant’s right to testify in [his or her] own defense stems from the Fifth, Sixth, and 

Fourteenth amendments of the United States Constitution.” People v Thorne, 322 Mich App 340, 

351; 912 NW2d 560 (2017) (quotation marks and citation omitted). “Although counsel must 

advise a defendant of this right, the ultimate decision whether to testify at trial remains with the 

defendant.” People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217 (2011).

If a defendant expresses a wish to testify at trial, the trial court must grant the 

request, even over counsel’s objection. However, if a defendant decides not to 

testify or acquiesces in his attorney’s decision that he not testify, the right will be 

deemed waived. Furthermore, there is no requirement in Michigan that there be an 

on-the-record waiver of a defendant’s right to testify. [People v Spaulding, 332 

Mich App 638, 656-657; 957 NW2d 843 (2020) (quotation marks, citations, and 

alteration omitted).]

While the jury was on a break, defense counsel examined defendant on the record about 

whether he intended to testify. Defendant stated that he had decided to testify, and this decision 

was confirmed by the trial court. However, defense counsel did not call defendant to testify, the 

proofs were closed, and no one said anything on the record regarding whether defendant had 

changed his mind or still wanted to testify. Once the jury left for the day, the trial court and the 

attorneys discussed the jury instructions in defendant’s presence. The court stated that it would 

give instruction under M Crim JI 3.03 (defendant not testifying) and, again, nothing was said about 

defendant’s earlier indication that he wanted to testify. Defendant addressed the court at 

sentencing without reference to his decision to testify.

Defendant has not established that he was, in fact, denied the right to testify. Given that 

defendant stated on the record that he wanted to testify, it certainly would have assisted appellate 

review to also have placed on the record that defendant changed his mind about testifying or that 

he acquiesced in his attorney’s decision that he not testify. However, Michigan does not require 

an “on-the-record waiver of a defendant’s right to testify.” Id. at 657 (quotation marks, citation, 

and alteration omitted). Nevertheless, there was a seven-minute recess after defendant stated that 

he wanted to testify during which defendant could have changed his mind and defense counsel 

could have communicated as much to the trial court. Defense counsel called Sweet as a witness 

after the recess; she was on the witness stand for approximately 40 minutes, after which the defense 

rested. Neither the trial court, defendant, nor the prosecution commented about defendant’s 

statement 40 minutes earlier that he intended to testify. Given these circumstances, it is neither 

clear nor obvious that defendant did not simply change his mind about testifying. The fact that 

defense counsel opted for the instruction on defendant not testifying, again without any indication 

from defendant to the contrary, or any comment by the prosecution, also suggests that defendant 

changed his mind. There is simply no record evidence indicating that the trial court or defense 

counsel prevented defendant from testifying or that he was not free to testify had he wanted to.

In conclusion, defendant has not established plain error arising from the fact that he did not 

testify in his defense.
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C. PROSECUTORIAL MISCONDUCT

Defendant argues, both through his counsel and in a Standard 4 brief, 1that he is entitled 

to reversal due to prosecutorial misconduct. We disagree.

Claims of prosecutorial misconduct are preserved by making a contemporaneous objection 

and requesting curative jury instructions. People v Mullins, 322 Mich App 151, 172; 911 NW2d 

201 (2017). Defendant did neither, so this issue is unpreserved. In general, claims of prosecutorial 

misconduct are reviewed de novo. People v Dunigan, 299 Mich App 579, 588; 831 NW2d 243 

(2013). However, unpreserved claims of prosecutorial misconduct are reviewed for plain error. 

People v Evans, 335 Mich App 76, 88; 966 NW2d 402 (2020). 

“During a criminal trial, prosecutors serve truth and justice first. The job isn’t just to win, 

but to win fairly, staying well within the rules.” People v Urbanski, ___ Mich App ___, ___; ___ 

NW2d ___ (2023) (quotation marks and citation omitted) (Docket No. 359011); slip op at 5. “The 

test for prosecutorial misconduct is whether the defendant was deprived of a fair trial.” People v 

Orlewicz, 293 Mich App 96, 106; 809 NW2d 194 (2011). “Curative instructions are sufficient to 

cure the prejudicial effect of most inappropriate prosecutorial statements and jurors are presumed 

to follow their instructions.” People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008)

(citation omitted). Unpreserved claims of prosecutorial misconduct will not warrant reversal 

unless a curative instruction would have been insufficient to alleviate the harm caused by the 

misconduct. Id.

1. BURDEN OF PROOF

Defendant argues that the prosecution improperly implied to the jury that it was defendant’s 

burden to prove that he acted in self-defense. We disagree.

“Prosecutors are typically afforded great latitude regarding their arguments and conduct at 

trial. They are generally free to argue the evidence and all reasonable inferences from the evidence 

as it relates to their theory of the case.” Unger, 278 Mich App at 236 (citation omitted). However, 

it is not permissible to “imply in closing argument that the defendant must prove something or 

present a reasonable explanation for damaging evidence because such an argument tends to shift 

the burden of proof.” People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010). That 

said, “otherwise improper remarks by the prosecutor might not require reversal if they respond to 

issues raised by the defense.” People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003).

The rebuttal arguments with which defendant takes exception were appropriate and direct 

responses to arguments made by defendant. During his closing, defense counsel read to the jury 

the instruction for self-defense. He told the jury that a person could use self-defense, including 

deadly force, against an unarmed assailant if the person believed that the assailant was going to 

cause death or serious injury and that belief was honest and reasonable. Counsel then said:

 

1 A “Standard 4” brief refers to the brief a defendant may file in propria persona pursuant to 

Standard 4 of Michigan Supreme Court Administrative Order No. 2004-6, 471 Mich c, cii (2004).
-8-

We know that belief was honest and reasonable. We have the text messages. 

We know that belief is honest and reasonable. Mr. Cain invades into his home. We 

know that belief is honest and reasonable. He had avoided any physical 

confrontation before. We know that belief was honest and reasonable. Mr. Cain 

was a trained boxer. His belief was honest and reasonable. There’s no question 

about that. 

Defense counsel continued by reading to the jury other sections of the self-defense instruction and 

arguing that the evidence met the requirements of the instruction. Counsel stated that, “[i]n 

deciding if the defendant’s belief was honest and reasonable,” the jury had to “judge Mr. Holmes’s 

decisions as they were happening on that day with everything that he had in his mind.” He then 

reminded the jury of evidence that established the honesty and reasonableness of defendant’s belief 

that he was in danger of death or great bodily harm: the threatening texts, his knowledge of Cain 

and his capabilities, and the fact that Cain went into the breezeway to attack defendant after 

defendant had retreated. Lastly, as it pertains to the self-defense instruction, defense counsel 

addressed the requirement that a person could only use “as much force as he thinks is necessary at 

the time to protect himself.” Counsel argued that a person caught up in the excitement of a street 

fight is not thinking like a lawyer: he is not wondering if he is going to be prosecuted, if the threat 

has de-escalated, or whether he was sufficiently safe to stop fighting. 

The prosecutor’s rebuttal argument mirrored the essential structure of defense counsel’s 

closing argument. Regarding whether defendant believed that Cain was going to cause death or 

serious injury, the prosecutor argued that:

The problem is we don’t have any testimony to support that. We don’t have 

any testimony whatsoever to say what Artis Holmes’ beliefs were. The only 

testimony we have that says anything about defense whatsoever is Brianna Sweet 

says, [sic] yes, when Donald Cain punched [defendant] he appeared to be defending 

himself and they began to fight. So to say that Artis Holmes had a reasonable belief 

that he was going to be killed or seriously injured, there’s just no evidence 

whatsoever to support that. 

The prosecutor argued that the testimony suggested that defendant was threatened with only minor 

injury from a fist fight. The prosecutor further argued that, even if the jury concluded that 

defendant honestly and reasonably believed that he was in danger of death or serious injury from 

Cain, that danger dissipated when Cain realized that defendant was stabbing him and began to 

leave. At that point, there was no reason to continue to stab Cain or to follow him outside and 

stomp on his face multiple times while he was lying on the ground. The prosecutor argued that 

defendant did that out of anger, not out of any sense that he was in danger of death or serious 

bodily injury.

The structure of the prosecutor’s rebuttal argument showed that he was responding directly 

to defense counsel’s repeatedly pointing to evidence that counsel asserted illustrated defendant’s 

honest and reasonable belief that he was in danger of death or serious bodily injury from Cain. 

The prosecution had the burden to prove beyond a reasonable doubt that defendant did not honestly 

and reasonably believe that he was at danger of death or serious bodily injury, and the prosecutor’s 

comment reminded the jury that none of the witnesses had testified about what defendant believed 
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regarding Cain and his intentions. Even if the prosecution’s comment would have been improper 

during the prosecution’s closing argument, it arguably was a fitting response to defense counsel’s 

urging the jury to find that the evidence showed that defendant believed that he was at risk of death 

or serious injury and that this belief was honest and reasonable. Arguing that defense counsel 

made statements lacking evidentiary support is not the same as arguing that defendant had the 

burden to produce evidence proving his innocence.

Further, the trial court’s instructions to the jury directly addressed the concerns defendant 

raises on appeal. After the conclusion of closing arguments, the court instructed the jury that 

defendant had the absolute right not to testify; that the jury could not allow defendant’s exercise 

of that right to affect its verdict; and that defendant did not have to prove that he acted in selfdefense, but the prosecutor had to prove beyond a reasonable doubt that defendant did not act in 

lawful self-defense. Moreover, the trial court instructed the jury, “It’s my duty to instruct you on 

the law. You must take the law as I give it to you. If a lawyer has said something different about 

the law follow what I say.” “Jurors are presumed to follow their instructions . . . .” People v 

Abraham, 256 Mich App 265, 279; NW2d 836 (2003). Therefore, defendant has not shown that 

he is entitled to relief based on the challenged comments.

2. FALSE EVIDENCE

In his Standard 4 brief, defendant argues that the prosecution knowingly used false 

testimony to obtain defendant’s conviction. We disagree. 

Defendant first contends that the prosecutor used leading questions to elicit Cain’s

testimony that the fight between him and defendant began outside instead of in the breezeway. “It 

is well settled that a conviction obtained through the knowing use of perjured testimony offends a 

defendant’s due process protections guaranteed under the Fourteenth Amendment.” People v 

Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009). However, the presentation of conflicting 

testimony does not run afoul of these guarantees if “there is no evidence that the prosecutor 

attempted to conceal these contradictions,” and it is permissible to present testimony contradicted 

by prior statements made to the police if “there is no evidence that the prosecutor attempted to 

keep the contents of those previous statements from defendant.” People v Parker, 230 Mich App 

677, 690; 584 NW2d 753 (1998). The record in the present case shows that the prosecutor did not 

ask Cain leading questions to elicit his account of where the fight began, that the jury heard 

testimony from a sheriff’s deputy indicating that Cain told him that the fight started in the 

breezeway, and that the prosecutor acknowledged during his closing argument that there existed 

conflicting testimony about where the fight started. The prosecutor did not conceal the 

contradictions regarding where the fight started from either the jury or defendant, see Id., and it 

was for the fact-finder to decide which version of events to believe, see People v Canter, 197 Mich 

App 550, 565; 496 NW2d 336 (1992).

Defendant next contends that the prosecutor elicited false testimony from Cain that he went 

to defendant’s house for the sole purpose of picking up the child and taking him to the fair. In 

support of this claim, defendant points to statements in a deputy sheriff’s incident report indicating 

that defendant told Cain that he could not pick up the child and take him to the fair, but Cain went 

to the house to pick up the child anyway. Although the incident report indicates that Cain may 

have known that defendant did not want him to take the child to the fair before Cain went to 
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defendant’s house, it does not show that Cain went to defendant’s house for reasons other than to 

pick up the child. Therefore, defendant has not shown that Cain’s testimony claiming he went to 

defendant’s house to pick up the child and take him to the fair was false or that the prosecutor 

knew that it was false.

Lastly, defendant asserts that the prosecution incorrectly stated during its closing argument 

that Cain first learned of the threatening text messages and the dispute between defendant and 

Eisen on the day of the fight, when Cain’s preliminary examination testimony showed that he knew 

about the dispute before then. Regarding Cain’s knowledge of the dispute between defendant and 

Eisen, the prosecutor’s statement was consistent with Cain’s trial testimony. Even if Cain’s 

preliminary examination testimony might have suggested that Cain knew about the dispute before 

the incident in question, a prosecutor may use testimony that is inconsistent with prior testimony 

if the prosecutor does not have knowledge that the testimony used was false and does not conceal 

the prior testimony. See Parker, 230 Mich App at 690. Moreover, no evidence was presented at 

the preliminary examination or at trial indicating that Cain knew about Eisen’s threatening text 

messages.

For the foregoing reasons, we conclude that defendant has not established that the 

prosecutor knowingly used false testimony to secure a conviction.

D. DEPARTURE SENTENCE

Defendant argues that he is entitled to resentencing because the trial court did not properly 

justify its 28-month upward-departure sentence. We agree in part.

“A sentence that departs from the applicable guidelines range will be reviewed by an 

appellate court for reasonableness. Resentencing will be required when a sentence is determined 

to be unreasonable.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), cert den 

577 US 1043 (2015) (citation omitted). “[T]he relevant question for appellate courts reviewing a 

sentence for reasonableness is whether the trial court abused its discretion by violating the

principle of proportionality.” People v Dixon-Bey, 321 Mich App 490, 520; 909 NW2d 458 (2017) 

(quotation marks and citation omitted). “[T]he principle of proportionality . . . requires sentences 

imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding 

the offense and the offender.” People v Steanhouse, 500 Mich 453, 460; 902 NW2d 327 (2017)

(quotation marks and citation omitted). “The trial court’s fact-finding at sentencing is reviewed 

for clear error.” People v Lampe, 327 Mich App 104, 125-126; 933 NW2d 314 (2019).

The sentencing guidelines are no longer mandatory and are now advisory; however, “they 

remain a highly relevant consideration” and the trial courts must continue to consult them. 

Lockridge, 498 Mich at 391. It is appropriate for trial courts to depart from the sentencing ranges 

recommended by the guidelines “when, in their judgment, the recommended range under the 

guidelines is disproportionate, in either direction, to the seriousness of the crime.” People v 

Walden, 319 Mich App 344, 352; 901 NW2d 142 (2017) (quotation marks and citation omitted). 

When deciding whether to depart from the guidelines, trial courts may consider “(1) whether the 

guidelines accurately reflect the seriousness of the crime, (2) factors not considered by the 

guidelines, and (3) factors considered by the guidelines but given inadequate weight.” Dixon-Bey, 

321 Mich App at 525 (citations omitted). “When making this determination and sentencing a 
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defendant, a trial court must justify the sentence imposed in order to facilitate appellate review, 

which includes an explanation of why the sentence imposed is more proportionate to the offense 

and the offender than a different sentence would have been.” Id. at 525. A trial court’s decision 

to depart from the guidelines should not be based on factors that are “contemplated by at least one 

offense variable” if the court offers “no rationale as to why that scoring was insufficient to reflect 

the nature of” the case’s unique circumstances. Id. at 526-527. This Court “must evaluate whether 

reasons exist to depart from the sentencing guidelines and whether the extent of the departure can 

satisfy the principle of proportionality.” People v Steanhouse (On Remand), 322 Mich App 233, 

239; 911 NW2d 253 (2017), vacated in part on other grounds 504 Mich 969 (2019). When a 

departure is justified, the trial court still “must explain how the extent of the departure is 

proportionate to the seriousness of the circumstances surrounding the offense and the offender.” 

Id.

The trial court explained that it considered punishment, defendant’s prospects for 

rehabilitation, deterrence, and the protection of society when fashioning an individualized sentence 

for defendant. The court observed that defendant was 37 years old and had four prior felonies, 

10 prior misdemeanors, and a juvenile record. The court also recalled the medical expert’s 

testimony regarding the viciousness of defendant’s response to Cain’s attack. The court further 

commented that most of defendant’s prior convictions were assaultive in nature and were often 

committed while defendant was on parole or probation, and, while defendant was on bond for the 

sentencing offense, he “picked up” a new charge of domestic violence, third offense, that was 

currently pending. The sentencing court did not believe that the sentencing guidelines adequately 

accounted for the assaultive nature of most of defendant’s prior convictions, nor for the fact that 

defendant appeared to be unable to conform his conduct to the requirements of his parole or 

probation. Therefore, the court sentenced defendant to a 28-month upward-departure sentence of 

15 to 40 years’ (180 to 480 months) imprisonment. The reasons provided were more than 

generalized, and the court noted that the guidelines did not adequately account for the nature of 

defendant’s convictions, i.e., that fact that most of them were assaultive, nor for defendant’s 

apparent inability to conform himself to the requirements of parole and probation, which arguably 

suggested a low likelihood of rehabilitation, a high likelihood that defendant would continue to be 

a threat to society, and a greater need to protect society. Therefore, we conclude that the court 

adequately justified its decision to depart from the sentencing guidelines.

However, the sentencing court did not explain why a 28-month upward-departure sentence 

was “more proportionate to the offense and the offender than a different sentence would have 

been.” See People v Smith, 482 Mich 292, 311; 754 NW2d 284 (2008). It is not necessary for

courts to “sentence defendants with mathematical certainty. Nor are any precise words necessary 

for them to justify a particular departure.” Id. Nevertheless, we review the reasons the trial court 

articulated for departure, which “includes an explanation of why the sentence imposed is more 

proportionate to the offense and the offender than a different sentence would have been.” Id. 

Articulation on the record of the trial court’s rationale is necessary to ensure that defendant’s 

sentence is proportionate to the offenses and the offender and to allow for this Court’s meaningful 

appellate review. Because “an appellate court cannot substitute its own judgment about why the 

departure was justified[, a] sentence cannot be upheld when the connection between the reasons 

given for departure and the extent of the departure is unclear.” Id. at 304. 
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Therefore, defendant’s sentence cannot be affirmed without additional explanation for the 

trial court’s belief that the sentence is proportionate.

III. CONCLUSION

Defendant’s convictions are affirmed. This case is remanded to the trial court to offer 

further explanation for the extent of its departure from the sentencing guidelines or, in the 

alternative, for resentencing. We do not retain jurisdiction.

/s/ Anica Letica 

/s/ Allie Greenleaf Maldonado