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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION October 22, 2015 9:00 a.m.

v No. 318329 Wayne Circuit Court ALEXANDER JEREMY STEANHOUSE, LC No. 11-011939-FC

Defendant-Appellant.

Before: W ILDER , P.J., and O WENS and M. J. K ELLY , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of as sault with intent to commit murder, MCL 750.83, and receiving and concealing stolen propert y under $20,000, MCL 750.535(3)(a). He was sentenced to 30 to 60 years’ imprisonmen t for his assault with intent to commit murder conviction and one to five years’ imprisonment fo r his receiving and concealing stolen property conviction. We a ffirm defendant’s convictions, but remand for further proceedings consistent with this opinion.

I

A

Defendant and Antonin (“Anton”) Valoppi were good friends and often smoked marijuana in the basement of the home that Anton shared with hi s parents, Rory and Suzanne Valoppi. 1 In September 2011, the Valoppis’ residence was robbed. Two w eeks later, defendant told Anton that he knew the individuals who had broken into the Valoppis’ home and offered to retrieve the stolen items if Anton paid him. According to defe ndant, he discovered that Derrin Evans had committed the robbery and retrieved the items from hi m. Defendant partially returned the stolen property to Anton, who gave him “reward” money in re turn. Defendant testified that he subsequently gave a portion of the “reward” money to Evans.

1 We will refer to Antonin Valoppi by his nickname, “Anton,” and will refer to Rory and Suzanne Valoppi by their first names.-2- On October 16, 2011, defendant came to the Valoppi residence to smoke marijuana with Anton. Anton and Rory did not recall anyone except defendant e ntering their home. However, defendant testified at trial that he and Evans both went to Ant on’s home to smoke marijuana. 2 When defendant arrived, Anton and defendant went into the basem ent. Anton then went upstairs to retrieve his box of marijuana and returned to the basement. The next thing that Anton remembered was waking up with his throat “hanging open” and see ing defendant standing in front of him while staring at him, “wait[ing] for [him] to die. ” Defendant made no attempt to help Anton.

Anton ran upstairs to get help and told Rory “[t]hat his friend tried to kill him.” While Rory and Suzanne were helping Anton, Rory saw defendant run up the stairs and out the side door of their home even though Rory shouted at defendant for he lp. Suzanne asked Anton what happened, and Anton replied, “A.J. stabbed me.” In response to questions by the 911 operator, Anton indicated that A.J. Steanhouse committed the assault and provided defendant’s address. Anton did not actually see who assaulted him, but he believed that defendant was the only other person in the basement when the assault occurred. Additionally , Anton believed that he was struck in the head with a wrench before his throat was slit, dr awing this inference from the fact that he sustained a skull fract ure and that he later found a wr ench with “hair sti cking out of [it].”

According to defendant, Evans was the perpetrator of the assaul t. When Anton, who was “past [sic] over the level of being high,” went upstairs, Evans told defendant that he was going to rob and kill Anton. After Anton returned to the basement, Evan s attacked him, cut his throat, grabbed some marijuana and pills, and left the residence. Defe ndant then rolled Anton over, at which time the knife came out of his neck, and called Anton’s n ame, waking Anton up. Defendant testified that Anton acc used defendant of stabbing hi m, and defendant excitedly repeated that he was not the one who assaulted Anton. Defendan t then ran upstairs and left the residence because he was “under the influence and high” and sho cked and hurt that Anton would believe that defendant “would do s omething like this to him.”

After leaving Anton’s home, defe ndant went to his own house an d changed his clothes because there was blood on them. He also woke up his girlfrien d, Katherine McIntyre, telling her that he had been at Anton’s home and that Ant on had been st abbed, but he did not specify the perpetrator of the assault. Def endant then left the house and stayed the night at a friend’s residence. Defendant later told McIntyre that “Chips” 3 stabbed Anton.

The day after the incident, defendant turned himself in and was arrested. He maintained his innocence and implicated “Chips” as the perpetrator of the assault. When the police searched defendant’s vehicle, they discovered some of the items that wer e reported as stolen from the Valoppi residence. Police officer s also recovered defendant’s clothing from his home. Forensic testing of the blood on defendant ’s clothing and the possible b lood stain on the knife blade recovered from the scene matched Anton’s DNA. Additionally, fo rensic testing of the knife

2 Anton testified that he di d not know anyone named Derrin Evans

.
3 “Chips” is Evans’s nickname.-3- handle recovered from the scene revealed two DNA types, but onl y that of the major donor, i.e., Anton, could be identified; the testing could not confirm wheth er the DNA of the minor donor was defendant’s or Evans’s DNA.

B

After the incident, Evans provide d two statements during separa te interviews with a police detective. In his first statement, provided after the d etective indicated that defendant had implicated Evans as the perpetrator of the assault, Evans state d that he was not present at the scene of the assault. Evans provided his second statement four months later while he was in custody for a separate offense. After the detective informed h im again that defendant had implicated him in Anton’s assault, and the detective stated tha t he knew that Evans was present when the crime was committed, Evans admitted that he was presen t in the basement of Anton’s home at the time of the assault, but he claimed that defendant slit Anton’s throat, after which Evans ran up the stairs a nd left the residence.

At a pretrial hearing, the prosecutor informed the trial court of the possibility that Evans could incriminate himself in li ght of his contradictory police statements and defendant’s theory that Evans committed the assault. The prosecutor asked the tri al court to appoint counsel for Evans and conduct a hearing before trial regarding whether Evan s would exercise his privilege against self-incrimination. The trial court granted the prosec utor’s request.

On the first day of the trial, before jury selection and outsid e the presence of the prospective jurors, Evans’s appo inted counsel informed the tria l court that he had discussed the Fifth Amendment right against se lf-incrimination with Evans, an d that he believed that Evans could incriminate himself if he t estified given th e inconsisten cies between his two statements and his potential testimony that he wa s present at the scene of the crime. Evans’s attorney stated that he had advised Evans not to testify, and that Evans had decided to invoke his Fifth Amendment privilege. Based on Evans’s invocation of his Fifth Amendment privilege, the trial court ruled that Evans was an unavailable witness and did not compel Evans to testify. Subsequently, defendant moved to admit the statements that Evans made to the police pursuant to MRE 804(b)(3) and MRE 804(b )(7). The trial court ruled that Evans’ s statements were not admissible under either hearsay exception, fi nding that neither of Evans’s statements was against his penal interest and that the statements lacked sufficient indicia of t rustworthiness.

During trial—after McIntrye tes tified that defendant stated, w hen he came home on the night of the incident, that he wa s at Anton’s home and that Ant on was stabbed without specifying who stabbed Anton—the prosecutor introduced a brief excerpt of McIntyre’s police interview. During the interview, McIntyre initially told the d etective that defendant did not admit that he stabbed Anton on the night of the assault, but sh e later told the detective that defendant admitted that he stabbed Anton. After she left the p olice station, McIntyre immediately called the detective and stated that she lied when she said that defendant admitted that he stabbed Anton. At trial, McIntyre testified that she l ied to the police and asserted that defendant never told her that he stabbed Anton. She explained that she made the statement during the interview because she was tired and felt threatened, pressured, not safe, and uncomfortable when the detective mentioned her children and ind icated that she could get into trouble even though she was not pr esent during the offense.-4- During his closing argument, th e prosecutor argued, without ob jection, that defendant’s admission to McIntyre that he stabbed Anton was substantive evi dence of defendant’s guilt. The trial court, also without object ion, instructed the jurors thatthey could consider prior inconsistent statements both for impeachment purposes and as substantive evi dence. Afterward, defense counsel expressly approved the i nstructions provided by the tri al court.

Also during trial, the prosecutor made the following reference s to defendant’s account of the criminal episode as a “lie ” and a “story” during his closin g argument:

What we have here is the defendant basically, following the ol d axiom about if you’re going to lie, tell a big lie.

Tell one that’s so shocking and enormous that people don’t jus t immediately dismiss it as a lie, because it’s so big but they h ave to just stand back and look at him; wait a minute, i s he really telling me what I think he’s telling me.

And what you heard from the defendant about his explanation fo r what happened, is precisely tha t. It’s the big lie.

And we know that from a lot of different perspectives and for a lot of different reasons.

One of them is the fact that he got caught up in the details o f what he was saying, and it turned out there w ere some pretty major inconsis tencies in what he was saying.

Because when you tell the big lie, you can’t always keep your little details straight.

* * *

He has not kept his details straight in the big lie he’s told you. And beyond just the details that he’s gotten wrong[,] it just doesn ’t make sense.

During his rebuttal argument, the prosecutor stated:

[W]hat they’re left with is the defendant’s big lie; that [sic] so obviously a big lie that you can’t believe it.

* * *

Now, I think you have to ask yourself how is it, and why is it , and when is it that the defendant came up with this story about Chips havin g done this. . . . [4]

4 Defense counsel objected to the p rosecutor’s use of the word “ story” at this point.-5- * * *

[H]e’s faced with a situation where he’s got to tell you the bi g lie and he’s got to have you believe that big lie.

The prosecutor also argued duri ng his closing argument that def endant was the only person to come inside the home and only person in the basement except for Anton.

Defense counsel asserted during his closing argument that the prosecutor failed to present Anton’s medical records and, there fore, prevented the jury from being able to perf orm a “fair and meaningful” evaluation of the ext ent of Anton’s injuries. In r esponse, the prosecutor stated the following during his rebuttal:

Now, you may have noticed I was taking a few notes while [defe nse counsel] was talking. So I’m goi ng to address a few of the iss ues that he did.

And first on that list of issues is, I think what he mentioned , one of the first things, and he kept going back to it, was there’s not eno ugh blood here[,] he says. There’s no[] medical records to show you what actually h appened to Anton Valoppi.

Well it’s true; I mean one thing you have to keep in mind thro ughout this entire process is that, as I’v e just said, I have the burden of proof.

The defense has no burden of proof whatsoever. They don’t hav e to call any witnesses.

They didn’t have to call his own client to the witness stand, didn’t have to call any witnesses whatsoever.

As the Judge told you from the beginning of the trial[,] they could have just sat here and played tic-tac-toe.

And then just got up an argument [sic] in the end, doesn’t eve n have to argue again.

But if they got up and argued again and just said prosecutor d idn’t prove his case and sat down, you would have to consider all the same instructions whether we’ve proven the case beyond a reasonable doubt; the de fense doesn’t have to do anything.

So I mean when you think about that argument about the medical records[,] though, it’s true we’ve had the medical records for three months but so has [defense counsel].

* * *

[Defense counsel] doesn’t have to show you the medical records he-6- received[;] he has no burden of proof.

But when he argues to you that I should have shown them to you , at least you ought to think well, if there’s something important in ther e[, defense counsel,] you could have brought it out.

He didn’t[] because all he wants to argue to you is that someh ow we’re being unfair to him. We didn’t bring any medical records in he re[;] he’s had them for three (3) months.

C

At sentencing, defendant objected to the scoring of offense var iable (OV) 5 and OV 6. The trial court assessed 15 points for OV 5, finding that the e vidence and testimony were sufficient to establish psychological injury, especially in lig ht of the trial court’s opportunity to observe the witnesses as they testified, and concluding that th ere was “no question that psychological injury would be an issue” when a father discovere d his son with a slit throat, which was allegedly performed by his son’s friend. The trial c ourt assessed 50 points for OV 6 based on its finding that the jury’s verdict and the evidence p resented at trial demonstrated that defendant had “a clear, premeditated intent to kill in addition to an intent to rob.” Apart from indicating that it believed that defendant intended to torture Anton when he committed the assault, the trial court did not specify the portions of testim ony or evidence from which he discerned a premeditated intent to kill. Later, the trial court reiterated that it would score 50 points for OV 6 in light of defendant’s statement that he knew the individuals who stole the property from the residence, defendant’s offer to return the pr operty, the fact that defendant actually returned some of the property, and the fact that some of the stolen property was found in defendant’s car after the incident.

The trial court departed from the minimum range recommended by the sentencing guidelines, i.e., 171 to 285 months’ imprisonment, by 75 months , imposing a sentence of 30 to 60 years’ imprisonment for the assault with intent to commit murder conviction. The trial court provided the following reas ons for its departure:

[T]he first two factors that the prosecutor mentions the horre ndous, brutal assault on this young man when [it] basically appeared [from] the facts that you thought he was somehow rendered weak or incapacitated by his dr ug use at that time.

And the action taken by you towards a person who considers youa friend does substantiate the thought tha t you are a person without a c onscience, a person who’s violent and depraved and that this is an assault that is quite shocking even to people who have been in the courts for 20 and more years.

The Court is going to sentence you accordingly to 30 to 60 years on the charge of assault with intent to commit murder and one to five concurrently on the charge of receiving stolen prope rty between the amounts of [$]1 ,000 but less than $20,000.-7- II

First, defendant raises three related claims concerning the pr osecution’s responsibility to present Evans as a res gestae witness and the trial court’s exc lusion of Evans’s testimony. He first contends that the prosecuti on violated its duty to presen t the res gestae of the case by failing to acknowledge that Evans was a res gestae witness and by objec ting to defendant’s efforts to call Evans as a witness, thereby depriving defendant of his rig ht to present a defense. We disagree.

Because a defendant must move in the trial court for a posttri al evidentiary hearing or a new trial preserve a claim that the prosecution failed to produ ce a res gestae witness, this issue is not preserved for appeal. People v Dixon , 217 Mich App 400, 409; 552 NW2d 663 (1996). Unpreserved issues are reviewed for plain error affecting subst antial rights. People v Carines
, 460 Mich 750, 763-764; 597 NW2d 130 (1999). To demonstrate suc h an error, the defendant must show that (1) an error occurred, (2) the error was clear o r obvious, and (3) “the plain error affected [the defendant’s] substantial rights,” which “generall y requires a showing of prejudice, i.e., that the error affected the outcome of the lower court pr oceedings.” Id . at 763. Reversal is warranted only if the error res ulted in conviction despite defe ndant’s actual innocence or if the error seriously affected the fairness, integrity, or public rep utation of judicial proceedings. Id . at 763-764.

Because Evans’s second statement to the police indicated that he was present when the assault occurred, Evans is arguably a res gestae witness, i.e., “one who is present at the scene of the alleged crime, at the time of the alleged crime, or one who had occasion to observe the surrounding events and circumstances.” People v Dyer , 425 Mich 572, 577 n 4; 390 NW2d 645 (1986). Contrary to defendant’s argument on appeal, following the enactment of MCL 767.40a, the prosecution no longer has an affirmative duty to present th e “entire res gestae,” or call at trial all of the witnesses who were present when a crime occurred. People v Koonce , 466 Mich 515, 518-519; 648 NW2d 153 (2002). Under MCL 767.40a, the prosecuto r has a duty to disclose “all known res gestae witnesses, to update the list as additional wi tnesses became known, and to provide to the defendant a list of witnesses the prosecution in tend[s] to call at trial.” Koonce
, 466 Mich at 517-521, citing MCL 7 67.40a(1)-(3). The prosecutor is also “compelled to render reasonable assistance in locating and serving process upon witn esses upon the request of the defendant.” Koonce , 466 Mich at 521, citing MCL 767.40a(5).

Although the prosecutor did not include Evans as a known res g estae witness on his witness list, the record shows that the prosecutor’s omission d id not prejudice defendant, Carines , 460 Mich at 763, or violate his right to present a defense, People v Unger , 278 Mich App 210, 249-250; 749 NW2d 272 (2008). Because defendant impli cated Evans in the assault, it is apparent that defendant was aware that Evans could be a res gestae witness. The prosecutor subpoenaed Evans and produced him for trial in the event that t he trial court ruled that Evans constituted a res gestae witness and defendant desired to call him, thereby satisfying the prosecution’s obligations under MCL 767.40a even though he did not intend to present Evans as a witness. As discussed infra , the prosecutor properly notifie d the trial court before trial of the possible need for Evans to be informed of his Fifth Amendment r ight against self-incrimination. Dyer , 425 Mich at 578 n 5. Because E vans invoked his Fifth Amendme nt privilege against selfincrimination and refused to testify, neither the prosecution n or the defense could call Evans as a-8- witness. People v Paasche , 207 Mich App 698, 709; 525 NW2d 914 (1994). Thus, there is n o indication that the prosecution committed a plain error affecti ng defendant’s substantial rights by failing to include Evans on the witness list as a res gestae wi tness, notifying the trial court of the need to inform Evans of his Fifth Amendment right against self- incrimination, and failing to call Evans as a witness.

Defendant next asserts that the trial court failed to adequate ly inquire into whether Evans validly asserted his Fifth Amendment privilege against self-inc rimination, and that the trial court erroneously concluded Evans had a valid Fifth Amendment privile ge. As such, defendant argues that the trial court deprived def endant of his right to present a defense when it precluded Evans from testifying. We disagree.

“The decision to admit evidence is within a trial court’s disc retion, which is reviewed for an abuse of that discretion.” People v Bynum , 496 Mich 610, 623; 852 NW2d 570 (2014). “Preliminary questions of law, s uch as whether a rule of eviden ce or statute precludes the admission of particular evidence, are reviewed de novo, and it is an abuse of discretion to admit evidence that is inadmissible as a matter of law.” Id. A trial court “abuse[s] its discretion only when its decision falls outside the principled range of outcome s.” People v Blackston , 481 Mich 451, 460; 751 NW2d 408 (2008). Additionally, “[w]hether a defe ndant’s right to present a defense was violated by the exclusion of evidence is a constitutional question that this Court reviews de novo.” People v Mesik (On Reconsideration)
, 285 Mich App 535, 537-538; 775 NW2d 857 (2009).

The Fifth Amendment to the United States Constitution and Artic le 1, § 17 of the Michigan Constitution provide that “[n]o person shall be compel led in any criminal case to be a witness against himself.” People v Wyngaard , 462 Mich 659, 671; 614 NW2d 143 (2000); People v Schollaert , 194 Mich App 158, 164; 486 NW2d 312 (1992). “This prohibitio n ‘not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official ques tions put to him in any other proceeding, civil or criminal, formal or informal, where the an swers might incriminate him in future criminal proceedings.’ ” Wyngaard , 462 Mich at 671-672; quoting Minnesota v Murphy
, 465 US 420, 426; 104 S Ct 1136; 79 L Ed 2d 409 (1984). Thus, awitness, as well as the accused, has a right to exercise his privilege against self-inc rimination. Dyer , 425 Mich at 578. An attorney is not permitted to knowingly call a witness when h e is aware that the witness “will claim a valid privilege not to testify” because “critical weigh t is added to the prosecution’s case” and an “adverse inference . . . may be drawn against the defend ant by the jury from the claim of testimonial privilege.” Paasche , 207 Mich App at 709 (quotation marks and citation omitted).

Michigan courts have recognized a procedure for “protect[ing] the defendant’s rights when the trial court is confront ed with a potential witness who plans to assert a testimonial privilege.” Id . “The proper procedure is for the prosecutor to inform the co urt, out of the presence of the witness” and the jury, “of the possible need fo r the witness to be informed of Fifth Amendment rights.” Dyer , 425 Mich at 578 n 5. The “tria l court must determine whether the witness understands the privilege and must provide an adequ ate explanation if the witness does not.” Paasche , 207 Mich App at 709-710. “[T]he court must then hold an evid entiary hearing outside of the jury’s presence to determine the validity of the witness’[s] claim of privilege.” Id. at 709. “If the court determines the assertion of the privile ge to be valid, the-9- inquiry ends and the witness is excused.” Id. However, “[i]f the assertion of the privilege is not legitimate in the opinion of the trial judge, the court must th en consider methods to induce the witness to testify, such as contempt and other proceedings.” Id . If the witness still refuses to testify, “the court must proceed to trial without the witness, because there is no other way to prevent prejudice to the defendant.” Id . at 709-710.

The record reveals that the trial court complied with the appli cable procedure and properly ordered that Evans could not be called as a witness. The prosecutor informed the trial court at a pretrial hearing of the possibility that Evans may a ssert his privilege against selfincrimination if he testified at trial. The trial court appoin ted counsel for Evans and later held a hearing outside the presence of the jury to determine whether E vans intended to invoke his Fifth Amendment privilege. As defendant asserts, the trial court did not question Evans or make an explicit determination on the record concerning the validity of Evans’s assertion of the privilege against self-incrimination. Instead, the trial court conducted an inquiry with Evans’s appointed counsel, who indicated that he had counseled Evans regarding hi s Fifth Amendment privilege, that he had advised Evans not to testify based on the “potentia lly dangerous” nature of Evans’s prospective testimony—given Evans’s inconsistent statements to the police and potential testimony that he was present when the assault occurred—and tha t Evans had decided not to testify. As such, the record shows that the trial court was no tified that Evans’s attorney had counseled Evans regarding his Fifth Amendment privilege and that the trial court was aware of the underlying factual basis that supported Evans’s assertion o f his Fifth Amendment privilege. Additionally, the trial court was aware that defendant had impl icated Evans as the perpetrator of the assault, and, therefore, any further questioning of Evans r egarding the validity of the assertion of his privilege may h ave incriminated Evans. See People v Lawton , 196 Mich App 341, 346-347; 492 NW2d 810 (1992); Dyer , 425 Mich at 579. We also find significant that, before trial, the trial court pr ovided defense counsel with an opportunity to further question Evans’s appointed counsel regarding Evans’s intent to assert hi s Fifth Amendment rights, but defense counsel did not avail himself of that opportunity; defe ndant cannot now complain of the trial court’s procedure. See Lawton , 196 Mich App at 346.

Moreover, we find that Evans validly asserted his Fifth Amendm ent privilege, and the trial court properly excused Evans as a witness. Paasche , 207 Mich App at 709. To properly assert such a privilege, a witness must have a “reasonable basi s . . . to fear incrimination from questions.” Dyer , 425 Mich at 578. Thus, “a trial court may compel a witness t o answer a question only where the court can foresee, as a matter of law, that such testimony could not incriminate the witness.” Id. at 579 (citation omitted). Defendant’s statements to the poli ce, his theory of the case, and his tes timony at trial indicate that Ev ans may have been intimately associated with the criminal transaction or involved with the c ommission of the crimes, thereby demonstrating a reasonable basis for Evans to fear incriminatio n from questions regarding his participation. Id. at 578. Additionally, the prosecutor indicated that he was un able to predict whether charges would be brought against Evans after he testifi ed, which left open the opportunity of future prosecution. On this record, we find tha t Evans had a reasonable basis to fear incrimination from questioning about the criminal episode, and it is not evident that the trial court could have found, as a matte r of law, that Evans’s testim ony could not incriminate him. Id. at 578-579. Accordingly, the trial court did not abuse its dis cretion when it excluded Evans as a witness. Bynum , 496 Mich at 623; Dyer , 425 Mich at 578.-10- Finally, the trial court’s preclusion of Evans’s testimony did not violate defendant’s right to present a defense. A defendant has a constitutionally guara nteed right to present a defense, which includes the right to call witnesses. Unger , 278 Mich App at 249-250. “However, an accused’s right to present evidence in his defense is not absol ute.” Id. at 250; citing United States v Scheffer , 523 US 303, 308; 118 S Ct 1261; 140 L Ed 2d 413 (1998); Crane v Kentucky
, 476 US 683, 690; 106 S Ct 2142; 90 L Ed 2d 636 (1986). “The ac cused must still comply with ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” People v Hayes , 421 Mich 271, 279; 364 NW2d 635 (1984), quoting Chambers v Mississippi , 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). Likewise, as recognized by the Sixth Circuit, “[a] def endant’s right to force a witness to testify must yield to that witness’[s] assertion of his Fifth A mendment privilege against self incrimination, where it is ‘gr ounded on a reasonable fear of da nger of prosecution.” United States v Gaitan-Acevedo , 148 F3d 577, 588 (CA 6, 1998) (quotation marks and citation o mitted). Thus, when a witness legitimately exercises his Fifth Amendment right against self-incrimination and refuses to testify, neither the prosecution nor the defense can call him as a witness. Dyer
, 425 Mich at 576; Paasche , 207 Mich App at 709. Through his own testimony and testimony elicited from a detective 5 and McIntyre, defendant was able to present his defense theory that Evans was at the scene of the crime and committed the assault. Thus, the trial court did not deprive defendant of his ri ght to present a defense. Unger , 278 Mich App at 249-250.

III

Second, defendant argues that the trial court abused its discr etion in excluding as inadmissible hearsay Evans’s statement 6 to the police that he was present during the assault because it was admissible under th e statement against penal int erest exception to the hearsay rule, MRE 804(b)(3), or under the “catchall” exception to the h earsay rule, MRE 804(b)(7). We disagree.

This Court “use[s] a clearly erroneous standard in reviewing t he trial court’s findings of fact and an abuse of discretion st andard in reviewing the trial court’s decision to exclude the evidence.” People v Barrera , 451 Mich 261, 269; 547 NW2d 280 (1996). However, whether a statement was against a declarant’s penal interest is a questio n of law that this Court reviews de

novo. Id . at 268.

“ ‘Hearsay’ is a statement, other than the one made by the de clarant while testifying at the trial or hearing, offered in e vidence to prove the truth of the matter asserted.” MRE 801(c). Hearsay statements are not admi ssible unless they fall under a recognized exception to the

5 A detective testified that defendant claimed that Evans was pr esent at the scene, which was why the detective obtained a DNA sample from Evans and submitte d it for forensic testing in an attempt to eliminate “a secondary DNA sample that was on the kn ife handle.”

6 Defendant only appears to assertthat the trial court erred in failing to admit Evans’s statement that he was present at the crime scene, not the first statement that Evans made to the police, during which he denied that he w as present during the offense.-11- hearsay rule. MRE 802. MRE 804(b)(3) provides an exception fo r a statement against interest, which is defined as

[a] statement which was at the t ime of its making so far contra ry to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the decl arant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it t o be true. [MRE 804(b)(3).]

Under that rule, “if a declarant is unavailable, [7] as defined in MRE 804(a), his out-of-court statement against interest may avoid the hearsay rule if certai n thresholds are met.” Barrera , 451 Mich at 267 (footnote added). “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless c orroborating circumstances clearly indicate the trustworthiness of the statement.” MRE 804(b)(3). Whether to admit or exclude a statement against a witness’s penal interest offered under MRE 804(b)(3) is determined by considering “(1) whether the dec larant was unavailable, (2) whe ther the statement was against penal interest, (3) whether a re asonable person in the declaran t’s position would have believed the statement to be true, and (4) whether corroborating circums tances clearly indicated the trustworthiness of the statement.” Barrera , 451 Mich at 268. A statement against a declarant’s penal interest is “not limited to ‘direct confessions,’ ” “need not by itself prove the declarant guilty,” and “need not have been incriminating on its face, as long as it was self-incriminating when viewed in context.” Id . at 270-271.

In exercising its discretion, th e trial court must conscientiou sly consider the relationship between MRE 804(b)(3) and a defendant’s constituti onal due process right to present exculpatory evidence. Likewise, appellate rev iew necessarily requires a review of the importance of the statement to the def endant’s theory of defense in determining whether the trial court abused its discr etion by excluding the evidence. [ Id . at 269 (citation omitted).]

The trial court properly concluded that Evans’s second police statement was not a statement against his penal interest. Evans admitted that he w as present during the assault after the detective told Evans that de fendant had blamed Evans for pl anning and committing the assault and the detective claime d that he knew for a fact that Evans was present at the scene of the crime. The context of Evans’s admission included an extens ive explanation of the way in which defendant planned and exec uted the assault against Anton, which does not demonstrate that the statement “so far tende d to subject the declarant to c ivil or criminal liability . . . that a reasonable person in the declar ant’s position would not have ma de the statement unless believing it to be true.” MRE 804(b)(3). I nstead, it appears that Evans made the statement in order to emphasize that he was merely present during the offense and had no role in its commission. See People v Wilson , 196 Mich App 604, 614; 493 NW2d 471 (1992) (stating that mere presence is

7 There is no dispute that Evans was unavailable under MRE 804(a ) due to his assertion of his Fifth Amendment privilege ag ainst self-incrimination. People v Meredith , 459 Mich 62, 66; 586 NW2d 538 (1998).-12- insufficient to prove that someone aided and abetted the commis sion of a crime). Likewise, “the mere fact that the declarant invoked his Fifth Amendment right not to testify does not make the statement against penal interest.” Barrera , 451 Mich at 270. However, even if we construe Evan’s statement as being against his penal interest because of his earlier inconsistent statement to the police, we conclude that there were no corroborating circumstances clear ly indicating the trustworthin ess of the statement for the reasons discussed below re garding MRE 804(b)(7). See Barrera , 451 Mich at 274-275 (adopting a totality-of-the circumstances test). In this case, Evans’s statement was not crucial to defendant’s theory of defense because it clearly implicates him in the assault. As such, “other factors [were appropriately] interjected to weigh against admis sion of the statement.” Id . at 279- 280. Moreover, because Evans was in custody when he made the state ment to the authorities, there are three additional factors that must be considered—the relationship between the confessing party and the exculpated party and whether the confe ssor was likely fabricating the story for the benefit of his friend, whether the statement was voluntarily made after Miranda warnings were provided, and whether the statement was made in o rder to curry favor with authorities. Id . at 275-276. Here, because the statement incriminated rather than exculpated the defendant, Evans did not likely make the statement to benefit d efendant. In addition, while there was no evidence that the statement was involuntarily made or ma de to curry favor with authorities, nevertheless, the tot ality of the circumstances we ighs against admission. Accordingly, the trial court did not abuse its discretion when it precluded the admission of Evans’s statement under MRE 804(b)(3).

Likewise, the trial court did not abuse its discretion when it concluded that Evans’s statement to the police was not admissible under the catchall e xception to the hearsay rule when the declarant is unavailable, MRE 804(b)(7). 8 MRE 804(b)(7) provides for admission of a statement that is not specifically covered by any of the other hearsay exceptions under MCR 804(b),

but [has] equivalent circumstan tial guarantees of trustworthine ss, if the court determines that (A) the statement is offered as evidence of a m aterial fact, (B) the statement is more probative on the point for which it is offere d than any other evidence that the proponent can procure through reasonable effo rts, and (C) the general purposes of these rules and the interests of justice wi ll best be served by admission of the statement into evidence.

In interpreting MRE 803(24), which is nearly identical to MRE 8 04(b)(7), the Michigan Supreme Court has stated, “[t]he first and most important requi rement is that the proffered statement have circumstantial guarantees of trustworthiness equ ivalent to those of the categorical hearsay exceptions.” People v Katt , 468 Mich 272, 290; 662 NW2d 12 (2003). A trial court

8 Defendant cites MRE 803(24) in his brief on appeal, which is t he catchall exception applicable when the availability of the declarant is immaterial. However, he moved in the trial court for the admission of Evans’s statement under MRE 804(b)(7).-13- “should consider the ‘totality of the circumstances’ surroundin g each statement to determine whether equivalent guarantees of trustworthiness exist.” Id . at 291. Although “[t]here is no complete list of factors that establish whether a statement has equivalent guarantees of trustworthiness,” id ., some relevant factors include:

(1) the spontaneity of the state ments, (2) the consistency of t he statements, (3) lack of motive to fabricate or lack of bias, (4) the reason the declarant cannot testify, (5) the voluntariness of the statements, i.e., whether they were made in response to leading questions or made under undue influence, (6 ) personal knowledge of the declarant about the matter on which he spoke, (7) to whom the statements were made . . . , and (8) the time frame within whic h the statements were made. [ People v Geno , 261 Mich App 624, 634; 683 NW2d 687 (2004) (quotation marks and citation omitted).]

The totality of the circumstances does not demonstrate that Ev ans’s statement is trustworthy. It is evident Evans had personal knowledge of whe ther he was present when the assault occurred, and there is no indication that Evans’s state ment was involuntary, especially given that the detective informed Evans of his Miranda 9 rights before Evans made the statement. However, his admission was not spontaneous and was only provide d to the police after the detective reiterated that defendant had implicated him in the a ssault and the detective stated that he knew that Evans was present during the assault. Additionall y, Evans’s statements were not consistent, as he expressly denied being present when the assau lt occurred during his first statement to the police, when he was also aware that defendant had implicated him as the perpetrator. Evans’s admission that he was present was provide d approximately four months after the assault while he was in custody for a separate offens e. Accordingly, the trial court did not abuse its discretion when it precluded the admission of Eva ns’s statement under MRE 804(b)(7).

IV

Third, defendant raises three cl aims related to the prosecutio n’s use of McIntyre’s prior inconsistent statement (i.e., that on the night of the assault, defendant told McIntyre that he stabbed Anton) as substantive ev idence of defendant’s guilt. D efendant argues that his right to a fair trial was violated by the prosecutor’s use of McIntyre’s p rior inconsistent statement as substantive evidence of his guilt and the trial court’s failure to provide a proper cautionary instruction. Additionally, defenda nt asserts that defense coun sel’s failure to object to the trial court’s improper jury instruction constituted ineffective assis tance of counsel. We reject defendant’s claims.

Because defendant did not object to the prosecutor’s use of McI ntyre’s statement, request a limiting instruction, or object to the jury instructions prov ided by the trial court, this issue is not preserved for appeal. People v Grant , 445 Mich 535, 545-546, 553; 520 NW2d 123 (1994); People v Sabin , 242 Mich App 656, 657; 620 NW2d 19 (2000). Accordingly, defe ndant must

9 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-14- demonstrate plain error affec ting his substantial rights. Carines , 460 Mich at 763-764. 10 To the extent that defendant challenges the jury instructions provided by the trial court, he affirmatively waived any claim of error when defense counsel expressed satisf action with the instructions provided by the trial court. People v Gaines , 306 Mich App 289, 310-311; 856 NW2d 222 (2014).

Defendant’s ineffective assistance claim is not preserved for a ppeal because defendant did not move in the trial court for a new trial or a Ginther 11 hearing. People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009). As such, this Court’s revie w of the issue is limited to errors apparent from the trial court record. People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). “A claim of ineffectiv e assistance of counsel is amixed question of law and fact. A trial court’s findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assis tance of counsel claim de novo.” Id ., citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). In order to prove th at defense counsel provided ineffective assistance, a defendant mu st demonstrate that (1) “ ‘counsel’s representation fell be low an objective standard of r easonableness,’ ” a nd (2) defendant was prejudiced, i.e., “that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ’ ” Vaughn , 491 Mich at 669-671, quoting Strickland v Washington , 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “[D]efendant must also show that the result that did occur was fundamentally unfair or unreliable.” People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012).

Extrinsic evidence of a prior inconsistent statement can be use d “to impeach a witness even though the statement tends t o directly inculpate the defen dant.” People v Kilbourn , 454 Mich 677, 682; 563 NW2d 669 (1997); see also MRE 613(b). “The purpose of extrinsic impeachment evidence is to prove that a witness made a prior in consistent statement—not to prove the contents of the statement.” People v Jenkins , 450 Mich 249, 256; 537 NW2d 828 (1995). As such, “[a] prosecutor may not use an elicited denia l as a springboard for introducing substantive evidence under the guise of rebutting the denial.” People v Stanaway , 446 Mich 643, 693; 521 NW2d 557 (1994). “[P]rior unsworn statements of a witness are mere hearsay and are generally inadmissible as substantive evidence.” People v Lundy , 467 Mich 254, 257; 650 NW2d 332 (2002). Thus, McIntyre’s prior inconsistent statement during which she incriminated defendant could not be admitted to prove the truth of the matte r asserted unless it fell within a recognized hearsay exception. MRE 802; People v Musser , 494 Mich 337, 350; 835 NW2d 319 (2013); see also Jenkins , 450 Mich at 261-262.

10 We reject the prosecution’s argu ment that defendant waived thi s issue by introducing McIntyre’s police statement in its entirety. In light of the p rosecutor’s initial introduction of McIntyre’s prior inconsistent sta tement, we find that defendant permissibly “explore[d] the extent of the inconsistencies by showing how those statements w ere consistent with” McIntyre’s trial testimony, People v Sayles , 200 Mich App 594, 595; 504 NW2d 738 (1993); see also MRE 801(d)(1)(B), and did not invite the purported error.

11 People v Ginther , 390 Mich 436, 443-444; 212 NW2d 922 (1973).-15- The record shows that the prosecu tor impermissibly used McIntyr e’s statement as substantive evidence by arguing that the final piece of evidenc e was McIntyre’s statement to the police that, on the night of the assault, defendant told her th at he stabbed Anton. The prosecution does not argue that McIntyre’s statement was admissible under a hearsay exception, nor do we believe that an exception applies. Compounding this error, the trial court instructed the jury at the end of the trial, in accordance with M Crim JI 4.5(2), thatthe jury could consider prior inconsistent statements as substantive evidence. Because McInt yre’s police statement implicating defendant in the assault was admissible only to imp each her testimony, the prosecution’s use of the statement as substantive evidence of d efendant’s guilt, and the trial court’s instruction, constituted plain error. Carines , 460 Mich at 763-764, 768, 774. Likewise, given that a jury is presumed to follow a trial court’s instruc tions, People v Meissner , 294 Mich App 438, 457; 812 NW2d 37 (2011), itis probable that the jury impermissibly considered McIntyre’s statement as substa ntive evidence that defendant com mitted the assault.

However, in light of the extensive evidence admitted at trial linking defendant to the assault, we find that these errors did not prejudice defendant. Carines , 460 Mich at 763-764, 772, 774. McIntyre’s trial testimony and the admission of McIn tyre’s police interviews in their entirety confirmed that she also told the defective that (1) de fendant told her that Anton was stabbed but did not indicate who stabbed him, and (2) defendant told her that he did not commit the act, both of which were consistent with her written police statement and with her trial testimony. Additionally McIntyre testified that she lied to th e detective when she told him that defendant had admitted that he stabbed Anton and that she immed iately recanted her statement implicating defendant when she left the police station. Furthe r, apart from McIntyre’s incriminating police statement, the consistent testimony of Ant on, Rory, and Suzanne, as well as the physical evidence linking defe ndant to the crime, provided overwhelming evidence that defendant committed the assault. Therefore, the substantive us e of McIntyre’s statement did not constitute a plain error that a ffected defendant’s substantial rights. Id . at 763-764, 774.

For the same reasons, we conclude that defense counsel’s perfo rmance did not constitute ineffective assistance. Defense counsel’s performance arguably fell below an objective standard of reasonableness when he failed to object to the prosecution’s improper use of McIntyre’s prior inconsistent statement as substantive evidence of defendant’s g uilt, object to the jury instructions as given, or request a limiting instruction regarding the use o f McIntyre’s statement. Vaughn
, 491 Mich at 669-671. However, in light of the overwhelming evi dence implicating defendant as the perpetrator of the assault, there is not a reasonable proba bility that the result of the proceedings would have been different but for counsel’s errors. 12 Id.

12 Additionally, defense counsel employed sound trial strategy byintroducing McIntyre’s police statements in their entirety, which allowed the jury to review the portions of the interview during which McIntyre indicated that defendant did not admit that he s tabbed Anton and during which the police officer allegedly pressured McIntyre into falsely st ating that defendant admitted that he committed the assault.-16- V

Fourth, defendant argues that the prosecutor’s improper commen ts and arguments violated his right to a fai r trial. We disagree.

“Review of alleged prosecutorial misconduct is precluded unles s the defendant timely and specifically objects, except when an objection could not ha ve cured the error, or a failure to review the issue would result in a miscarriage of justice.” Unger , 278 Mich App at 234-235. Preserved claims of prosecutorial misconduct are reviewed de no vo. People v Abraham , 256 Mich App 265, 272; 662 NW2d 836 (2003). Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting substantial rights. Unger , 278 Mich App at 234-235, citing Carines , 460 Mich at 763.

“The test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.” People v Dobek , 274 Mich App 58, 63; 732 NW 2d 546 (2007). “[A]llegations of prosecutorial misconduct are considered on a case-by-case ba sis, and the reviewing court must consider the prosecutor’s remarks in context.” People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). “[A] prosecutor’s comments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evid ence admitted at trial.” People v Callon , 256 Mich App 312, 330; 662 NW2d 501 (2003) (citations omitted ). Additionally, this Court may not “find error requiring reversal where a curative i nstruction could have alleviated any prejudicial effect.” Bennett , 290 Mich App at 476 (internal quotation marks and citation omitted).

First, defendant argues that the prosecutor improperly express ed his opinion regarding defendant’s credibility and guilt by repeatedly referring to de fendant’s account of the incident as a lie during his closing ar gument. We disagree.

Defendant did not object to these allegedly improper character izations of defendant’s testimony until defense counsel objected to the prosecutor’s ch aracterization of defendant’s testimony as a “story” during th e prosecution’s rebuttal argume nt. The comments to which defendant did not object are unpreserved and reviewed for plainerror affecting defendant’s substantial rights, Brown , 294 Mich App at 382; Unger , 278 Mich App at 234-235, and the comment to which defendant did object is preserved and reviewed do novo, Abraham , 256 Mich App at 272.

Prosecutors are accorded “wide latitude” with regard to their arguments during trial. People v Bahoda , 448 Mich 261, 282-283; 531 NW2d 659 (1995); Dobek , 274 Mich App at 66. In general, prosecutors are “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. However, “prosecutors should not . . . exp ress their personal opinion of a defendant’s guilt, and must refrain from denigrating a defendant with intemperate and preju dicial remarks.” Bahoda , 448 Mich at 282-283. A prosecutor must also refrain from suggestin g or implying that he has special knowledge regarding whether a wi tness is worthy of belief, id . at 276; Dobek , 274 Mich App at 66, but a “prosecutor may argue from the facts that a witness, including the defendant, is not worthy of belief, and is not required to state inferences and c onclusions in the blandest possible terms,” People v Launsburry , 217 Mich App 358, 361; 551 NW2d 460 (1996) (citations-17- omitted); see also People v Howard , 226 Mich App 528, 548; 575 NW2d 16 (1997).

The prosecutor’s characterizati on of defendant’s account of the criminal episode as a lie or a “story” did not deprive de fendant of a fair and impartial trial, Dobek , 274 Mich App at 63, or constitute a plain error that affected defendant’s substantial rights, Unger , 278 Mich App at 234- 235. Reviewing the challenged comments in context, it is evide nt that the prosecutor’s references to defendant’s account of the incident as a lie prop erly advanced the prosecution’s position that defendant’s testim ony was not credible in light o f the contradictory evidence adduced at trial. During his closing argument, the prosecutor pointed out the inconsistencies in defendant’s testimony and explained why he believed that defend ant’s account of the criminal episode was not worthy of belief. The prosecutor did not impro perly imply that he had special knowledge that defendant fabricated his account of the incident . Thus, the prosecutor’s argument was properly based on the evidence admitted at trial. Unger , 278 Mich App at 236; Howard , 226 Mich App at 548. Likewise, the prosecutor’s references t o defendant’s account of the criminal episode as a lie were not improper, as the prosecutor was not required to use the blandest possible language i n presenting his argument. Unger , 278 Mich App at 239.

Moreover, any prejudice that may have resulted from the prosec utor’s remarks was cured by the trial court’s jury instructions, which indicated that th e lawyers’ statements and arguments were not evidence; that it is the jurors’ responsibility to dec ide the facts of the case, to determine which witnesses to believe, and to assess the importance of the ir testimony; and that the jurors should rely on their own common sense and everyday experiences in deciding which testimony to believe. “[J]urors are presumed to follow their instruction s.” Id . at 235.

Second, defendant argues that the prosecutor impermissibly shi fted the burden of proof by arguing that the defense had Anton’s medical records and cou ld have introduced them at trial. We disagree.

We review this unpreserved issue for plain error affecting def endant’s substantial rights. See Brown , 294 Mich App at 382; Unger , 278 Mich App at 235. “[A] prosecutor may not comment on a defendant’s failure to testify or present evidence , i.e., the prosecutor may not attempt to shift the burden of proof.” Abraham , 256 Mich App at 273. “[T]he prosecutor’s comments must be considered in light of defense counsel’s comme nts,” and “an otherwise improper remark may not rise to an error requiring reversal whe n the prosecutor is responding to the defense counsel’s argument.” People v Watson , 245 Mich App 572, 592-593; 629 NW2d 411 (2001) (quotation marks and citation omitted).

During his closing argument, defense counsel advanced the theo ry that the prosecutor failed to present a “fair [and] meaningful evaluation” of Anton ’s injuries to the jury by failing to present Anton’s medical records, insinuating that the records d id not support the prosecution’s theory of the case. As such, it is evident that the prosecutor ’s statements regarding defendant’s opportunity to present the medical records were made in respons e to defense counsel’s argument that the prosecutor deficiently or unfairly failed to present A nton’s medical records. Furthermore, the prosecutor did not actually argue that defendant should have introduced Anton’s medical records; he onl y argued that defendant could ha ve introduced the medical records if he believed that something in the records was signif icant, which, at most, implied that defendant had no reason to introduce the records and did not sh ift the burden of proof to-18- defendant. Moreover, defendant is unable to demonstrate the re quisite prejudice in light of the prosecutor’s repeated reminders during his argument that defend ant was not obligated to produce any evidence whatsoever and that the prosecutor had the burden of proof. Additionally, because any prejudicial effect caused by the challenged comment was cur ed by the trial court’s instruction to the jury indicat ing that the prosecution, and no t defendant, had th e burden of proof, Dobek , 274 Mich App at 68, we find no error requiring reversal, Bennett , 290 Mich App at 476 (internal quotation marks and citation omitted).

Defendant also argues that the p rosecutor erroneously referred to an extrajudicial fact when he stated that the defense had the medical records for thr ee months. “A prosecutor may not make a statement of fact to the jury that is unsupported by the evidence in the case.” People v Fisher , 193 Mich App 284, 291; 483 NW2d 452 (1992). However, this er ror was cured by the trial court’s instruction that “[t]he lawyer[s’] statements and their arguments are not evidence[;] they’re only meant to help you understand the evidence and each side[’]s legal theory,” and there is no indication that the prosecutor’s comment denied defendant a fair and impartial trial. Dobek , 274 Mich App at 63, 68.

Finally, defendant argues that the prosecutor misled the jury and misrepresented the evidence presented at trial by a rguing that no one else was pre sent when the assault occurred except for defendant and Anton, despite the prosecutor’s knowle dge that Evans admitted to the police that he was present duri ng the assault. We disagree.

Because defendant objected and moved for a mistrial on the bas is of the prosecutor’s comment, which the trial court denied, Brown, 294 Mich App at 382, the p rosecutor’s comment is reviewed de novo to determine whether it denied defendant a fair and impartial trial, Bennett
, 290 Mich App at 475. “Although a prosecutor may not argue a fa ct to the jury that is not supported by evidence, a prosecuto r is free to argue the eviden ce and any reasonable inferences that may arise from the evidence.” Callon , 256 Mich App at 330.

Anton, Rory, and Suzanne testifie d that the only other person that they saw in the house before and after the incident was defendant. Additionally, Ror y testified that he only saw defendant leave the house after the assault. Con sidering this testimony, the prosecutor properly argued the evidence admitted at trial and reasonable inferences arising from the evidence, id
., and did not violate defendant’s right to a fair trial, Bennett , 290 Mich App at 475.

VIII

Lastly, defendant raises severa l issues related to the validity of his sentences. We remand for further proceedings consistent with this opinion.

As a preliminary matter, we mustconsider the Michigan Supreme Court’s recent decision in People v Lockridge , ___ Mich ___; ___ NW2d ___ (2015). In Lockridge , the Court held that “the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them co nstitutionally deficient,” id . at ___; slip op at 1, meaning that “to the extent that the OVs sco red on the basis of facts not admitted by the defendant or necessarily found by the jury verd ict increase the floor of the-19- guidelines range, i.e. the defendant’s ‘mandatory minimum’ sent ence, that procedure violates the Sixth Amendment,” id . at ___; slip op at 11. Accordingly,

[t]o remedy the constitutional violation, [the Court] sever[ed] MCL 769.34(2) to the extent that it makes the sentencing guidelines range as sco red on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. [The Court] also str[uck] down the requirement in MCL 769.34(3) that a sentencing court that departs from the app licable guidelines range must articulate a substant ial and compelling reason for that departure. [ Id

. at ___; slip op at 2.]

The Court also stated:

[A] guidelines minimum sentence range calculated in violation o f Apprendi and Alleyne is advisory only and that sentences that depart from that thre shold are to be reviewed by appellate courts for reasonableness. To preserv e as much as possible the legislative intent i n enacting the guidelines, how ever, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. [ Id . ___; slip op at 2 (citations omitted).]

Likewise, the Court indicated t hat “[o]ur holding today does no thing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judgefound facts or not.” Id . at ___; slip op at 29 n 28. Therefore, we conclude that, giv en the continued relevance of the scori ng variables to the Michigan se ntencing scheme, the standards of review traditionally applied to t he trial court’s scoring of th e variables remain viable after Lockridge

. [T]he circuit court’s factual determinations are reviewed for c lear error and must be supported by a preponderance of the evidence. Whether the f acts, as found, are adequate to satisfy the scoring conditions prescribed by st atute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. [ People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) (citations omitted).]

This Court reviews de novo, as a question of law, the proper in terpretation of the sentencing guidelines. People v Gullett , 277 Mich App 214, 217; 744 NW2d 200 (2007).

First, defendant argues that the trial court erred in scoring OV 5 because there was insufficient evidence that Anton’s parents sustained serious ps ychological injury. The statutory basis of OV 5 is MCL 777.35, which provides for an assessment o f points when there “is psychological injury to a member of a victim’s family.” MCL 77 7.35(1). Fifteen points shall be assessed if “[s]erious psychologi cal injury requiring professio nal treatment occurred to a victim’s family.” MCL 777.35(1)(a). Zero points shall be assessed if “[n]o serio us psychological injury requiring professional treatment occurred to a victim’s family. ” MCL 777.35(1)(b). “[T]he fact that treatment has not been sought is not conclusive,” MCL 777. 35(2), but “[t]here must be some evidence of psychological injury on the record,” see Lockett , 295 Mich App at 183 (discussing the assessment of points under OV 4 in circumstances where “[s] erious psychological injury-20- requiring professional treatment occurred to a victim.”)

The trial testimony, which indicated that Anton’s parents were present in their home when the crime occurred and found their son with his throat sla shed by someone whom they believed to be their son’s clos e friend, clearly demonstrated t he traumatic nature of the incident. The trial court’s opportunity to observe the demeanor of Anton’ s parents during their testimony also supported the trial court’s finding that Rory and Suzanne sustained psychological injury. Further, Anton testified at the s entencing hearing that his par ents were “deeply affected” by the incident and are in the process of seeking psychological help. Accordingly, because the facts as found by the trial court were not clearly erroneous and were su pported by a preponderance of evidence in the record, and because the evidence sufficiently d emonstrates that Anton’s parents sustained serious psychological in jury that may require profess ional treatment, the trial court properly assessed 15 points for OV 5. Hardy
, 494 Mich at 438; MCL 777.35(1)(a).

Second, defendant argues that the trial court erroneously asses sed 50 points for OV 6 because there was insufficient evidence in the record to find that defendant had a premeditated intent to kill Anton. The statutory basis of OV 6 is MCL 777.3 6, which provides for an assessment of points based on “the offender’s intent to kill or injure another individual.” MCL 777.36(1). A trial court shall assess 50 points for OV 6 if “[ t]he offender had premeditated intent to kill or [a] killing was committed while committing or attemp ting to commit” one of the offenses enumerated in MCL 777.36(1)(a). 13 Twenty-five points sha ll be assessed if “[t]he offender had unpremeditated intent to kill, the intent to do gr eat bodily harm, or created a very high risk of death or great bodi ly harm knowing that death or g reat bodily harm was the probable result.” MCL 777.36(1)(b). “The sentencing judge shall score this variable consistent with a jury verdict unless the judge has information that was not pres ented to the jury.” MCL 777.36(2)(a).

“Premeditation, which requires sufficient time to permit the de fendant to take a second look, may be inferred from the circumstances surrounding the ki lling.” People v Coy , 243 Mich App 283, 315; 620 NW2d 888 (2000). “To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a cho ice or problem. . . . [P]remeditation and deliberati on characterize a thought process undisturbed by hot blood.” People v Plummer , 229 Mich App 293, 300; 581 NW2d 753 (1998) (quotation marks a nd citation omitted). Nonexclusive “factors that may be considere d to establish premeditation include the following: (1) the previous relationship between t he defendant and the victim; (2) the defendant’s actions before and after the crime; and (3) the circumstances of the killing itself, including the weapon used and th e location of the wounds inflic ted.” Id . Additionally, “[p]remeditation and deliberati on may be inferred from all the facts and circumstances, but the inferences must have support in the record and cannot be arrive d at by mere speculation.” Id . at

13 The trial court erroneously considered defendant’s “intent to rob” when it scored OV 6. A killing was not committed in this case, so defendant’s purporte d attempt to commit robbery or larceny, which are two of the offenses enumerated in MCL 777.36 (1)(a), was not relevant to the scoring of OV 6.-21- 301.

The trial court’s finding that defendant had a premeditated in tent to kill was not clearly erroneous and was supported by apreponderance of evidence in the record. Hardy , 494 Mich at 438. Anton testified that he went upstairs to retrieve his mar ijuana and, when he returned to the basement, he was struck in the head, apparently without warning , and slit in the throat. When Anton woke up and realized that his throat had been slit, he sa w defendant staring at him, “[j]ust wait[ing] for [him] to die.” Def endant made no effort to assis t Anton. There was no evidence of an altercation or argument betw een defendant and Anton immediat ely before the assault which could indicate that the attack w as provoked or instigated by ho t blood. From these circumstances, one could reasonably infer that defendant planne d the attack before it occurred and was lying in wait to attack Anton when he returned to the b asement, Plummer , 229 Mich App at 301, which justifies an assessment of 50 points under OV 6, MCL 777.36(1)(a); Hardy, 494 Mich at 438. Thus, we find no error in the trial court’s s coring of the OVs.

In addition, defendant raises an Apprendi/Alleyne challenge, arguing that his Sixth and Fourteenth Amendment rights were violated because the trial cou rt’s scoring of OV 3, OV 4, OV 5, and OV 6 was based on impermissible judicial fact-finding, w hich increased the floor of the minimum range recommended by the sentencing guidelines. Becaus e “defendant did not object to the scoring of the OVs at sentencing on Apprendi/Alleyne grounds, . . . our review is for plain error affecting substantial rights.” Lockridge , ___ Mich at ___; slip op at 30.

In this case, the trial court departed from the minimum range recommended by the sentencing guidelines. Therefore, even if we assume that the f acts necessary to score OV 3, OV 4, OV 5, and OV 6 were not established by the jury’s verdict or admitted by defendant, defendant cannot establi sh plain error. As in Lockridge , because defendant

received an upward departure sentence that did not rely on the minimum sentence range from the improperly scored guidelines (and indeed, the tr ial court necessarily had to state on the record its reasons for departin g from that range), . . . defendant cannot show prejudice from any error in scoring the OVs in violation of Alleyne . [ Id . at ___; slip op at 31.]

However, under Lockridge , this Court must review defendant’s sentence for reasonableness. 14 Id . at ___; slip op at 2, 29, citing United States v Booker , 543 US 220, 264; 125 S Ct 738; 160 L Ed 2d 621 (2005). The appropriate procedur e for considering the reasonableness of a departure sentence is not set forth in Lockridge . We conclude that there are two approaches that Michigan appellate courts could adopt in or der to perform this reasonableness inquiry.

14 Because a trial court is no longer required to provide a subst antial and compelling reason for a departure from the sentencing guidelines under Lockridge , we need not review defendant’s argument specifically concerning whether the reasons articulate d by the trial court were substantial and compelling.-22- The first option is the standard of review currently employed by the federal courts. After determining whether the sentencing court committed a significant procedural error, federal appellate courts review the substantive reasonableness of a sen tence for an abuse of discretion. See, e.g., Gall v United States , 552 US 38, 56; 128 S Ct 586; 169 L Ed 2d 445 (2007); United States v Pirosko , 787 F3d 358, 372 (CA 6, 2015); United States v Feemster , 572 F3d 455, 462 (CA 8, 2009). Under Booker , 543 US at 261, federal courts should be guided by the factors listed in 18 USC § 3553(a) in determining whether a sentence is reasonable. 15 The factors include: (1) the nature and circumstances of the offense; (2) t he history and characteristics of the defendant; (3) the need for the sentence imposed to punish the offender, protect the public from the defendant, rehabilitate the defendant, and deter others; (4 ) the types of sentences available; (5) the sentencing range establis hed by the sentencing guidelin es; (6) pertinent policy statements issued by the United States Sen tencing Commission; (7) the need to avoid unwarranted sentence disparities among defendants withsimilar records who have beenfound guilty of similar conduct; and (8) the need for restitution. 18 USC § 3553(a).

The Eighth Circuit, among others, has noted the situations that would involve an abuse of discretion:

[A]n abuse of discretion may occur when (1) a court fails to co nsider a relevant factor that should have received significant wei ght; (2) a court gives significant weight to an improper or irrelev ant factor; or (3) a court cons iders only the appropriate factors but in weighing those factors commits a “cl ear error of judgment.” A discretionary sentencing ruling, similarly, may b e unreasonable if a sentencing court fails to consider a relevant factor that shoul d have received significant weight, gives signifi cant weight to an improper or irrelevant factor, or considers only appropriate factors but nevertheless commits a c lear error of judgment by arriving at a sentence that lies outside the limite d range of choice dictated by the facts of the case. [ United States v Haack , 403 F3d 997, 1004 (CA 8, 2005) (citations omitted).]

See also United States v Ressam , 679 F3d 1069, 1086-1087 (CA 9, 2012). Federal appellate courts are permitted to “apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines,” Rita v United States , 551 US 338, 347; 127 S Ct 2456; 168 L Ed 2d 203 (2007). 16

15 Federal district courts are required to first calculate the ap plicable guidelines range and subsequently “consider all of the § 3553(a) factors to determin e whether they support the sentence requested by a party.” Gall , 552 US at 49-50.

16 For examples of the manner in which federal circuit courts hav e reviewed sentences for reasonableness with regard to § 3553(a), see Gall , 552 US at 46-60; Pirosko , 787 F3d 358, 372, 374-375 (CA 6, 2015); United States v Rosales-Bruno , 789 F3d 1249 (CA 11, 2015).-23- The second option is the standard of review that was in place under People v Milbourn
, 435 Mich 630; 461 NW2d 1 (1990), which is similar to the federa l standard. When Milbourn was decided, the Legislature had not enacted the statutory sent encing guidelines; the guidelines in effect were those developed by the Michigan Supreme Court an d promulgated by administrative order. People v Hegwood , 465 Mich 432, 438; 636 NW2d 127 (2001). Trial court judges were not required to impose a sentence within the range recommended by the sentencing guidelines; they were only required to score the gui delines and articulate the reasons for a departure from the recommended range. Id . In this context—which is strikingly similar to the role of the sentencing guidelines after Lockridge , see Lockridge , ___ Mich at ___; slip op at 29—the Michigan Supreme Court overruled the “shocks the conscie nce” test that was previous employed under People v Coles , 417 Mich 523, 550; 339 NW2d 440 (1983), and adopted the “principle of proportionality” test in order to determine wheth er a trial court abused its discretion in imposing a sentence. Milbourn , 435 Mich at 634-636. Under the new test, “a given sentence [could] be said to constitute an abuse of discretion if that se ntence violate[d] the principle of proportionality, which require[d] sentences imposed by the tria l court to be proportionate to the seriousness of the circumstances surrounding the offense and th e offender.” Id . at 636. As such, trial courts were required to impose a sentence that took “into account the nature of the offense and the background of the offender.” Id . at 651.

With regard to the judicial sen tencing guidelines, the Court st ated:

The guidelines represent the actual sentencing practices of th e judiciary, and we believe that the second edition of the sentencing guidel ines is the best “barometer” of where on the continuum from the least to the mos t threatening circumstances a given case falls.

. . . We note that departures [from the guidelines] are appropr iate where the guidelines do not adequately acc ount for important factors legi timately considered at sentencing. . . . To require strict adherence to the guideli nes would effectively prevent their evolution, and, fo r this reason, trial judges maycontinue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, ineither direction, to the ser iousness of the crime. [ Id . at 656-657.]

The Court also provided the following guidance for appellate co urts reviewing a departure from the guidelines:

Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be w hether the case involves circu mstances that are not adequately embodied within the variables used to score the guidelines. A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality a nd thus abused its sentencing discretion. Even wher e some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the princi ple of proportionality. [ Id . at 659-660.]-24- Factors previously considere d by Michigan courts under the prop ortionality standard included, among others, (1) the s eriousness of the offense, People v Houston , 448 Mich 312, 321; 532 NW2d 508 (1995); (2) factor s not considered by the gui delines, such as the relationship between the victim and the aggressor, id . at 323; Milbourn , 435 Mich at 660, the defendant’s misconduct while in custody, Houston , 448 Mich at 323, the defendant’s expressions of remorse, id ., and the defendant’s poten tial for rehabilitation, id .; and (3) factors that were inadequately considered by the guideline s in a particular case, id . at 324.

The “principle of proportionality” previously employed by Michi gan appellate courts is consistent with the standard of review employed by federal courts after Booker

. 17 We conclude that reinstating the previous sta ndard of review in Michigan, a s a means of determining the reasonableness of a sentence, is preferable to adopting the ana lysis utilized by the federal courts and is most consistent with the Supreme Court’s directives in Lockridge . Unlike the federal district courts, Michigan trial courts are not procedurally required to expressly consider all of the factors listed in 18 USC § 3553(a). For example, unlike federa l courts, Michigan courts are not expressly required to consider sentences imposed in other cases in order to weigh “the need to avoid unwarranted sentence disparities among defendants with si milar records who have been found guilty of similar conduct.” § 3553(a)(6). 18 Instead, under Lockridge , sentencing courts are only required “to consult the appl icable guidelines range and t ake it into account when imposing a sentence . . . [and] justify the sentence imposed in order to facilitate appellate review.” Lockridge , ___ Mich at ___; slip op at 29. As such, it would be unworka ble to expect this Court to review a sentence for an abuse of discretion based on the fa ctors under § 3553(a) when the trial court was not required to expressly consider these factor s in determining a reasonable sentence. Moreover, unlike the United States Sentencing Commis sion, the Legislature does not issue policy statements under th e statutory sentencing scheme, MCL 777.1 et seq ., such that it is effectively impossible for a tria l court or this Court to consi der a factor analogous to § 3553(a)(5) in order to determine whether a sentence is reasonable. Furthe rmore, although the majority opinion in Lockridge expressly cites Booker , 543 US at 261, the opinion includes no discussion of § 3553(a) and the significant role of that statutory provisi on in the analysis employed by federal appellate courts in det ermining the reasonableness of asentence. See Lockridge , ___ Mich at ___; slip op at 29. Therefore, we hold that a sentence that fulfills the principle of proportionality under Milbourn and its progeny constitutes a reasonable sentence under Lockridge

.

17 Justice Markman noted in his Lockridge dissent that the post-severability analysis standard utilized by the United States Supreme Court under Booker , 543 US at 246, is consistent with Michigan’s previous standard of review under Milbourn , 435 Mich at 636. Lockridge , ___ Mich at ___; slip op at 61 n 40 (M ARKMAN , J., dissenting). This conclusion is further supported by the fact that the Sixth Circuit and other circuits have “applied a proportionality principle based on at least two of the § 3553(a) factors.” United States v Poynter , 495 F3d 349, 352 (CA 6, 2007); see also id . at 355-359.

18 Cf. United States v Begin , 696 F3d 405, 413-414 (CA 3, 2012) (explaining that a federal district court erred in failing t o consider the defendant’s arg ument regarding § 3553(a)(6)).-25- Given that Lockridge overturned the substantial a nd compelling reason standard, Lockridge , ___ Mich at ___; slip op at 29, which was in place at the tim e of defendant’s sentencing, and given our conclusi on that the principle of prop ortionality established under Milbourn and its progeny is now the appropriate standard by which a def endant’s sentence should be reviewed, we also find that the procedure articulated in Lockridge , and modeled on that adopted in United States v Crosby , 397 F3d 103 (CA 2, 2005), should apply here. Lockridge , ___ Mich at ___; slip op at 33-36 . As recently stated by thi s Court in People v Stokes , ___ Mich App ___, ___; ___NW2d ___ (2015); slip op at 11, “th e purpose of a Crosby remand is to determine what effect Lockridge would have on the defendant’s sentence, so that it may be determined whether any prejudice resulted from the error .” While the Lockridge Court did not explicitly hold that the Crosby procedure applies under the circumstances of this case, we conclude this is the proper remedy where, as here, the trial co urt was unaware of and not expressly bound by a reasonablen ess standard rooted in the Milbourn principle of proportionality at the time of sentencing.

Under the Crosby procedure, which “offers a measure of protection to a defendan t[,]” “a defendant is provided with an opportunity ‘to avoid resentencin g by promptly notifying the trial judge that resentencing will not be sought.’ ” Stokes , ___ Mich App at ___; slip op at 11-12, quoting Lockridge , ___ Mich at___; slip op at 35. Given the possibility that defendant could receive a more severe sentence, defendant should be provided th e opportunity to avoid resentencing if that is his desire. Stokes , ___ Mich App at ___; slip op at 12. Accordingly, we remand the matter to the trial court to follow the Crosby procedure outlined in Lockridge

. Defendant “may elect to forego resentencing by providing the tr ial court with prompt notice of his intention to do so. If ‘notification is not received in a timely manner,’ the trial court shall continue with the Crosby remand procedure as explained in Lockridge .” Stokes , ___ Mich App at ___; slip op at 12, quoting Lockridge , ___ Mich at ___; slip op at 35-36.

We affirm defendant’s convictions, but remand for further proc eedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Kurtis T. Wilder /s/ Donald S. Owens /s/ Michael J. Kelly