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

revision until final publication in the Michigan Appeals Reports.

-1-

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UNPUBLISHED

September 19, 2019

v No. 342997

Wayne Circuit Court

CARRILLE STEPHON JORDAN, LC No. 17-006704-02-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 343435

Wayne Circuit Court

CHRISTOPHER LAMAR DAVIS, LC No. 17-006704-01-FC

Defendant-Appellant.

Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

Defendants Carrille Jordan (Jordan) and his half-brother Christopher Davis (Davis) were 

tried jointly, before separate juries, on charges of two counts of first-degree premediated murder, 

MCL 750.316(1)(a); two counts of first-degree felony murder, MCL 750.316(1)(b); two counts 

of armed robbery, MCL 750.529; one count each of first-degree home invasion, MCL 750.110a;

and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. 

Jordan’s jury acquitted him of first-degree premeditated murder, but convicted him of two counts 

of felony murder, two counts of armed robbery, and one count each of first-degree home 

invasion and felony-firearm. The trial court sentenced Jordan to two terms of life imprisonment 

without parole for the felony-murder convictions, 18 to 40 years in prison for each armed 

robbery conviction, and 6 to 20 years in prison for the first-degree home invasion conviction, to 

be served concurrently, but consecutive to a two-year term of imprisonment for the felony-
-2-

firearm conviction. Davis’s jury convicted him of first-degree home invasion and felonyfirearm, and acquitted him of all remaining charges. The trial court sentenced Davis to 10 to 20 

years in prison for the home invasion conviction and a consecutive two-year term of 

imprisonment for the felony-firearm conviction. Both defendants appeal as of right. We affirm 

defendants’ convictions, but vacate Davis’s sentence for first-degree home invasion and remand 

for resentencing on that offense. 

Defendants’ convictions arise from a shooting incident at an apartment building in 

Detroit on May 31, 2017. The building was a known location for selling drugs. Sometime 

between 4:00 and 5:00 a.m., residents heard several gunshots. At approximately 6:00 a.m., the 

police entered the apartment of 66-year-old Frank Welch and discovered the bodies of Welch 

and 28-year-old Monica Newman, both of whom had been fatally shot. A cabinet that was used 

to store drugs had been broken in to and was empty. A resident of the building, Willie Gilbert, 

testified that he heard two rounds of gunshots. After the second round, he looked out his 

window and saw defendant Davis walking away from the apartment building, toward the I-75 

freeway. Surveillance recordings showed both defendants entering the apartment building 

through a window and then entering Welch’s apartment. Both defendants gave police interviews 

in which they admitted entering Welch’s apartment for the purpose of stealing drugs and an AR15 rifle, but they both denied shooting either victim. At trial, both defendants argued that there 

were other suspects who could have shot the victims after the defendants left the apartment. 

I. DOCKET NO. 342997 (DEFENDANT JORDAN)

In Docket No. 342997, defendant Jordan raises issues through both appointed appellate 

counsel and in a pro se brief filed pursuant to Supreme Court Administrative Order No. 2004-6, 

Standard 4 (“Standard 4 brief”). 

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant Jordan argues through appellate counsel that defense counsel was ineffective 

for not requesting a jury instruction on voluntary manslaughter as a lesser offense of felony 

murder. Jordan further argues in his Standard 4 brief that counsel was ineffective for not 

requesting jury instructions on third-degree home invasion, breaking and entering without 

permission, or entering without breaking as lesser-included offenses of first-degree home 

invasion. 

Preliminarily, because defendant Jordan did not raise these ineffective-assistance claims 

in an appropriate motion in the trial court, and this Court denied his motion to remand, our 

review of this issue is limited to errors apparent from the record. People v Matuszak, 263 Mich 

App 42, 48; 687 NW2d 342 (2004). To establish ineffective assistance of counsel, a defendant 

must show that counsel’s performance fell below an objective standard of reasonableness, and 

that the representation so prejudiced the defendant that he was denied the right to a fair trial. 

People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). The defendant must overcome the 

presumption that the challenged action might be considered sound trial strategy. People v 

Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). To establish prejudice, the defendant 

must show a reasonable probability that, but for counsel’s error, the result of the proceeding 

would have been different. People v Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996). 
-3-

“[A] requested instruction on a necessarily included lesser offense is proper if the 

charged greater offense requires the jury to find a disputed factual element that is not part of the 

lesser included offense and a rational view of the evidence would support it.” People v Cornell, 

466 Mich 335, 357; 646 NW2d 127 (2002), overruled in part on other grounds by People v 

Mendoza, 468 Mich 527 (2003). The decision whether to request a lesser-offense instruction is a 

matter of trial strategy. People v Sardy, 216 Mich App 111, 116; 549 NW2d 23 (1996); People v 

Robinson, 154 Mich App 92, 93-94; 397 NW2d 229 (1986). 

1. VOLUNTARY MANSLAUGHTER

In People v Mitchell, 301 Mich App 282, 286-287; 835 NW2d 615 (2013), this Court 

stated: 

When a defendant is charged with murder, the trial court must give an 

instruction on voluntary manslaughter if the instruction is “supported by a rational 

view of the evidence.” People v Mendoza, 468 Mich 527, 541; 664 NW2d 685 

(2003). To prove that a defendant committed voluntary manslaughter, “ ‘one 

must show that the defendant killed in the heat of passion, the passion was caused 

by adequate provocation, and there was not a lapse of time during which a 

reasonable person could control his passions.’ ” People v Reese, 491 Mich 127, 

143; 815 NW2d 85 (2012), quoting Mendoza, 468 Mich at 535. However, 

provocation is not an element of voluntary manslaughter; rather, it is a 

circumstance that negates the presence of malice. Mendoza, 468 Mich at 536. In 

People v Tierney, 266 Mich App 687; 703 NW2d 204 (2005), this Court held that 

“[t]he degree of provocation required to mitigate a killing from murder to 

manslaughter ‘is that which causes the defendant to act out of passion rather than 

reason.’ ” Id. at 714-715, quoting People v Sullivan, 231 Mich App 510, 518; 586 

NW2d 578 (1998). Further, “[i]n order for the provocation to be adequate it must 

be that which would cause a reasonable person to lose control.” Tierney, 266 

Mich App at 715 (citation and quotation marks omitted). Whether the 

provocation was reasonable is a question of fact; but if “no reasonable jury could 

find that the provocation was adequate, the court may exclude evidence of the 

provocation.” Id. (citation and quotation marks omitted). 

A rational view of the evidence did not support an instruction on voluntary manslaughter. 

There was no evidence of adequate provocation or evidence that the victims were killed in the 

heat of passion. Although there was evidence that a starter pistol was found in Welch’s 

bedroom, it was found between the folds of his mattress and Welch was lying on top of his bed. 

There was no evidence suggesting that the pistol was used or produced by Welch before he was 

shot. In addition, there was no evidence of a struggle between any of the victims and the

defendants before the victims were shot. No one heard any screams or other noises indicative of 

a struggle. In his statement to the police, Jordan denied that he was armed, and also denied that 

he was involved in a struggle with Welch. Indeed, Jordan denied that Welch saw him in the 

apartment. Jordan also denied shooting either victim and blamed their deaths on someone else. 

In sum, a rational view of the evidence did not permit the jury to find that Jordan killed the 

victims in the heat of passion caused by adequate provocation. 
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Furthermore, an instruction on voluntary manslaughter would have been inconsistent 

with the defense theory at trial. The defense theory was that Jordan was not involved in the 

victims’ shooting deaths and that someone other than defendants was responsible for shooting 

the victims. Jordan has not overcome the presumption that defense counsel reasonably decided 

not to request an instruction on voluntary manslaughter as a matter of trial strategy. 

2. FAILURE TO REQUEST LESSER-OFFENSE INSTRUCTIONS FOR FIRST-DEGREE 

HOME INVASION

In his Standard 4 brief, Jordan argues that defense counsel was ineffective for not 

requesting instructions on third-degree home invasion, breaking and entering without permission, 

or entering without breaking, as lesser-included offenses of first-degree home invasion. We

disagree. 

The record discloses that Jordan’s defense strategy was to focus primarily on the murder

charges. Video evidence showed Jordan and Davis entering Welch’s apartment, and Jordan 

admitted to the police that he and Davis stole drugs and a firearm from the apartment. However, 

Jordan denied that he or Davis shot the victims. Given this evidence, Jordan has not overcome 

the presumption that counsel elected not to request lesser-offense instructions for the first-degree 

home invasion charge as a matter of trial strategy, because consideration of additional lesser 

offenses may have confused the jury or distracted it from focusing on the principal defense 

theory that the prosecution had not eliminated the possibility that someone else committed the 

murders.

Furthermore, a rational view of the evidence did not support the lesser-offense 

instructions. Third-degree home invasion, MCL 750.110a(4), can be a necessarily included 

lesser offense of first-degree home invasion. People v Wilder, 485 Mich 35, 42-46; 780 NW2d 

265 (2010). In this case, the distinction between first-degree home invasion and third-degree 

home invasion depended on whether a felony or larceny, versus a misdemeanor, was committed 

inside the dwelling, or whether defendants were armed with a dangerous weapon, or whether 

another person was lawfully present inside the dwelling. Id. at 43-44. The facts showed that 

defendants stole a large amount of drugs (valued at several thousand dollars) and an AR-15 rifle,

while Welch and Newman were present inside the apartment. No rational view of the evidence 

supported a finding that defendants committed only a misdemeanor and not a larceny upon 

entering the apartment, or that the apartment was not occupied. Because a rational view of the 

evidence did not support third-degree home invasion as a lesser-included offense, Jordan was not 

prejudiced by counsel’s failure to request that instruction.

MCL 750.115(1), which proscribes breaking and entering without permission or entering 

without breaking, provides: 

Any person who breaks and enters or enters without breaking, any 

dwelling, . . . or structure used or kept for public or private use, or any private 

apartment therein, . . . or any other structure, whether occupied or unoccupied, 

without first obtaining permission to enter from the owner or occupant, agent, or 

person having immediate control thereof, is guilty of a misdemeanor.
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MCL 750.111, which proscribes entering without breaking, provides: 

Any person who, without breaking, enters any dwelling, . . . or structure 

used or kept for public or private use, or any private apartment therein, with intent 

to commit a felony or any larceny therein, is guilty of a felony punishable by 

imprisonment for not more than 5 years or a fine of not more than $2,500.00. 

The element that distinguishes first-degree home invasion from the lesser offense of 

breaking and entering without permission or entering without breaking is whether Jordan 

intended to commit a felony or larceny while inside the dwelling. Even if this offense could be 

considered a lesser-included offense of first-degree home invasion, given the defense theory that 

Jordan and Davis staged a robbery for the purpose of stealing drugs and a firearm, but did not 

commit murder, a rational view of the evidence did not support an instruction on that lesser 

offense. Further, there was no evidence that Jordan was able to enter the apartment without a 

breaking, and Jordan admitted that Welch and Newman were inside the apartment when he and 

Davis entered the apartment and stole property. Because the evidence did not establish a factual 

dispute with respect to elements that distinguished first-degree home invasion from these lesser 

offenses, instruction on the lesser offenses would not have been appropriate. See People v Heft, 

299 Mich App 69, 77; 829 NW2d 266 (2012). Accordingly, Jordan has failed to show that 

defense counsel was ineffective for not requesting these lesser-offense instructions. 

B. GREAT WEIGHT AND SUFFICIENCY OF THE EVIDENCE

Defendant Jordan next argues through appellate counsel that the evidence was 

insufficient to support his felony-murder convictions, and that these convictions are also against 

the great weight of the evidence. Jordan further argues in his Standard 4 brief that the evidence 

was insufficient to support his convictions of armed robbery and felony-firearm, and that those 

convictions also are against the great weight of the evidence. 

1. SUFFICIENCY OF THE EVIDENCE

A defendant’s challenge to the sufficiency of the evidence in support of a conviction is 

reviewed de novo. People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). We 

must view the evidence in a light most favorable to the prosecution to determine if a rational trier 

of fact could find the defendant guilty beyond a reasonable doubt. People v Wolfe, 440 Mich 

508, 513-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Circumstantial evidence 

and any reasonable inferences that can be drawn from the evidence may be sufficient to prove 

the elements of a crime. People v Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999). 

“This Court will not interfere with the trier of fact’s role of determining the weight of the 

evidence or the credibility of witnesses,” People v Williams, 268 Mich App 416, 419; 707 NW2d 

624 (2005), and all conflicts in the evidence must be resolved in the prosecution’s favor, People 

v Jackson, 292 Mich App 583, 587-588; 808 NW2d 541 (2011). 

a. FELONY MURDER

In People v Carines, 460 Mich 750, 758-759; 597 NW2d 130 (1999), our Supreme Court 

discussed the elements of felony murder: 
-6-

The elements of felony murder are: (1) the killing of a 

human being, (2) with the intent to kill, to do great bodily harm, or 

to create a very high risk of death or great bodily harm with 

knowledge that death or great bodily harm was the probable result 

[i.e., malice], (3) while committing, attempting to commit, or 

assisting in the commission of any of the felonies specifically 

enumerated in [the statute, including armed robbery]. 

The facts and circumstances of the killing may give rise to an inference of malice. 

A jury may infer malice from evidence that the defendant intentionally set in 

motion a force likely to cause death or great bodily harm. Malice may also be 

inferred from the use of a deadly weapon. 

“In situations involving the vicarious liability of co-felons, 

the individual liability of each felon must be shown. It is 

fundamentally unfair and in violation of basic principles of 

individual criminal culpability to hold one felon liable for an 

unforeseen death that did not result from actions agreed upon by 

the participants. In cases where the felons are acting intentionally 

or recklessly in pursuit of a common plan, liability may be 

established on agency principles. If the homicide is not within the 

scope of the main purpose of the conspiracy, those not 

participating are not criminally liable.” [Citations omitted.] 

The prosecution argued that Jordan was guilty of felony murder as a direct principal, or 

as an aider or abettor. To find that a defendant aided or abetted a crime, the prosecution must 

show that:

(1) the crime charged was committed by the defendant or another person, (2) the 

defendant performed acts or gave encouragement that assisted in the commission 

of the crime, and (3) the defendant intended the commission of the crime or had 

knowledge that the principal intended its commission at the time he gave aid and 

encouragement. [ Id. at 757-758.]

See also People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006). An aider or abettor’s state of 

mind may be inferred from all of the facts and circumstances of the crime. Carines, 460 Mich at 

758. Factors that can be considered include a close association between the principal and the 

defendant, the defendant’s participation in the planning and execution of the crime, and evidence 

of flight after the crime. Id. at 758. “Mere presence, even with knowledge that an offense is 

about to be committed or is being committed, is insufficient to show that a person is an aider and 

abettor.” People v Wilson, 196 Mich App 604, 614; 493 NW2d 471 (1992). 

Jordan argues that the evidence was insufficient to support his felony-murder convictions 

because there was no evidence that he or Davis shot the victims. We disagree. 

It is undisputed that Welch and Newman were both fatally shot and that their bodies were 

discovered inside Welch’s apartment. Although there was no direct evidence identifying the 
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shooter, the evidence supported an inference that Welch and Newman were shot and killed 

during a robbery. Welch was known to store drugs in his apartment. Witnesses heard gunshots 

between 4:00 and 5:00 a.m., and the police entered Welch’s apartment at approximately 6:00 

a.m. and discovered the bodies of Welch and Newman. The cabinet that Welch used to store 

drugs was empty. Jordan and Davis were connected to the offense by video evidence showing 

them entering the building near the time of the offense by climbing through a window and then 

“faking” an armed robbery just before entering Welch’s apartment. In addition, Jordan admitted 

to the police that he and Davis entered Welch’s apartment and stole drugs and an AR-15 firearm. 

There was no evidence that anyone else was in the apartment when the shots were fired. 

Moreover, Jordan told the police that Davis left the apartment first and headed toward the 

freeway while Jordan stayed behind to gather camera boxes. Jordan also said that he made sure 

the door was locked when he left Welch’s apartment and then also headed toward the freeway. 

A resident of the building, Gilbert, testified that he heard two rounds of gunshots. After the 

second round, Gilbert looked out his window and saw Davis crossing the street and heading 

toward the I-75 freeway. This evidence permitted the jury to find that the victims were shot after 

Davis left the apartment, but while Jordan was still there, which supported an inference that 

Jordan shot the victims. Although Jordan claims that Gilbert and a person referred to as Mike 

were never eliminated as possible suspects, it was up to the jury to determine whether the 

evidence of their connection to Welch affected the weight and strength of the evidence linking 

Jordan to the victims’ shooting deaths. Viewed in a light most favorable to the prosecution, the 

evidence was sufficient to enable the jury to find beyond a reasonable doubt that Jordan was 

guilty of felony murder, either as a direct principal, an aider, or abettor. 

b. ARMED ROBBERY AND FELONY-FIREARM

In his Standard 4 brief, Jordan argues that the evidence was insufficient to support his 

convictions of armed robbery and felony-firearm. 

The elements of armed robbery are:

(1) the defendant, in the course of committing a larceny of any money or other 

property that may be the subject of a larceny, used force or violence against any 

person who was present or assaulted or put the person in fear, and (2) the 

defendant, in the course of committing the larceny, either possessed a dangerous 

weapon, possessed an article used or fashioned in a manner to lead any person 

present to reasonably believe that the article was a dangerous weapon, or 

represented orally or otherwise that he or she was in possession of a dangerous 

weapon. [People v Gibbs, 299 Mich App 473, 490-491; 830 NW2d 821 (2013).]

The phrase “in the course of committing a larceny” is statutorily defined as including “acts that 

occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or 

attempted flight after the commission of the larceny, or in an attempt to retain possession of the 

property.” MCL 750.530; MCL 750.529. “The elements of felony-firearm are that the 

defendant possessed a firearm during the commission of, or the attempt to commit, a felony.” 

People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). 
-8-

The prosecution’s theory was that Welch and Newman were the victims of an armed 

robbery and were shot and killed by their assailant. Jordan does not dispute that the evidence 

was sufficient to show that he committed a larceny in Welch’s apartment, but argues that there 

was no evidence that he possessed a weapon or that Welch or Newman were the subjects of an 

assault when the larceny was committed. We disagree. The fact that Welch and Newman were 

both fatally shot was sufficient to show that they were victims of a shooting assault by a person 

who was armed with a firearm, which qualifies as a dangerous weapon. Although Jordan argues 

that there was no evidence that either he or Davis shot the victims, as discussed earlier, the 

evidence was sufficient to enable the jury to find that Jordan shot the victims during the course 

of committing the larceny at Welch’s apartment. Thus, the evidence was sufficient to support 

Jordan’s convictions of armed robbery. Similarly, because it is undisputed that Welch and 

Newman were both shot by a firearm and because the evidence was sufficient to link Jordan to 

their shooting deaths, sufficient evidence supports Jordan’s conviction of felony-firearm. 

2. GREAT WEIGHT OF THE EVIDENCE

Jordan did not challenge the great weight of the evidence in an appropriate motion for a 

new trial in the trial court. Therefore, his great-weight arguments are not preserved. People v 

Cameron, 291 Mich App 599, 617-618; 806 NW2d 371 (2011). We thus review this issue for 

plain error affecting Jordan’s substantial rights. People v Musser, 259 Mich App 215, 218; 673 

NW2d 800 (2003). 

In People v Lacalamita, 286 Mich App 467, 469-470; 780 NW2d 311 (2009), this Court 

stated: 

The test to determine whether a verdict is against the great weight of the 

evidence is whether the evidence preponderates so heavily against the verdict that 

it would be a miscarriage of justice to allow the verdict to stand. People v 

McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). Generally, a verdict 

may be vacated only when the evidence does not reasonably support it and it was 

more likely the result of causes outside the record, such as passion, prejudice, 

sympathy, or some other extraneous influence. People v Plummer, 229 Mich App 

293, 306; 581 NW2d 753 (1998). “Conflicting testimony, even when impeached 

to some extent, is an insufficient ground for granting a new trial.” People v 

Lemmon, 456 Mich 625, 647; 576 NW2d 129 (1998). Further, the resolution of 

credibility questions is within the exclusive province of the jury. People v 

DeLisle, 202 Mich App 658, 662; 509 NW2d 885 (1993).

In People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998), our Supreme Court 

explained that, absent extraordinary circumstances, issues of witness credibility are for the jury 

and a reviewing court may not substitute its view of the credibility of the evidence for the jury’s 

determination. The Court stated: 

We reiterate the observation in Anderson v Conterio, 303 Mich 75, 79; 5 NW2d 

572 (1942), that, when testimony is in direct conflict and testimony supporting the 

verdict has been impeached, if “it cannot be said as a matter of law that the 
-9-

testimony thus impeached was deprived of all probative value or that the jury 

could not believe it,” the credibility of witnesses is for the jury.

Adding flesh to what is a more refined articulation of the formula that “

‘[i]n general, conflicting testimony or a question as to the credibility of a witness 

are not sufficient grounds for granting a new trial,’ ” United States v Garcia, 978 

F2d 746, 748 (CA 1, 1992), quoting with approval United States v Kuzniar, 881 

F2d 466, 470 (CA 7, 1989), federal circuit courts have carved out a very narrow 

exception to the rule that the trial court may not take the testimony away from the 

jury. Id. at 470-471. Defining the exception, the federal courts have developed 

several tests that would allow application of the exception; for example, if the 

“testimony contradicts indisputable physical facts or laws,” id., “[w]here 

testimony is patently incredible or defies physical realities,” United States v 

Sanchez, 969 F2d 1409, 1414 (CA 2, 1992), “[w]here a witness’s testimony is 

material and is so inherently implausible that it could not be believed by a 

reasonable juror,” Garcia, supra at 748, or where the witness’ testimony has been 

seriously “impeached” and the case marked by “uncertainties and discrepancies.” 

United States v Martinez, 763 F2d 1297, 1313 (CA 11, 1985).

This does not mean that “[a] judge’s disagreement with the jury’s verdict,”

United States v Arrington, 757 F2d 1484, 1486 (CA 4, 1985), or a “trial judge’s 

rejection of all or part of the testimony of a witness or witnesses,” entitles a 

defendant to a new trial. Sanchez, supra at 1414. Rather, a trial judge must 

determine if one of the tests applies so that it would seriously undermine the 

credibility of a witness’ testimony and, if so, is there “a real concern that an 

innocent person may have been convicted” or that “it would be a manifest 

injustice” to allow the guilty verdict to stand. Id. If the “evidence is nearly 

balanced, or is such that different minds would naturally and fairly come to 

different conclusions,” the judge may not disturb the jury findings although his 

judgment might incline him the other way. Kringstad, supra at 307.[1] Any “real 

concern” that an innocent person has been convicted would arise “only if the 

credible trial evidence weighs more heavily in [the defendant’s] favor than against 

it.” Polin, supra at 551.[2] [Lemmon, 456 Mich at 642-645 (footnotes omitted).]

a. FELONY MURDER

Jordan’s principal argument with respect to his felony-murder convictions is that the 

police did not adequately eliminate Gilbert as a suspect in the shootings. Jordan argues that the 

evidence supported Gilbert’s identity as the shooter because he was the first person to find the 

victims, he reported the crime, and he did not initially tell the police that he saw Davis leaving 

the scene shortly after the shooting. Gilbert testified at trial and explained how he investigated 

 1 State v Kringstad, 353 NW2d 302 (ND, 1984). 

2 United States v Polin, 824 F Supp 542 (ED Pa, 1993). 
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Welch’s apartment after hearing the gunshots, and he further explained why he did not initially 

identify Davis to the police. It was up to the jury to evaluate Gilbert’s account, determine his 

credibility, and weigh his testimony against the evidence of Jordan’s guilt, notably the video 

evidence showing Jordan and Davis entering the apartment building by climbing through a 

window, feigning a robbery in the hallway outside Welch’s apartment, and then entering 

Welch’s apartment, as well as Jordan’s admission that he entered Welch’s apartment and stole 

drugs, all of which occurred in the same general timeframe that the two victims were shot and 

killed inside Welch’s apartment. Jordan has not shown that Gilbert’s testimony lacked probative 

value, was inherently implausible, or defied physical realities such that it could not be believed. 

Lemmon, 456 Mich at 642. Further, considering the video evidence and Jordan’s admissions, 

and the lack of any corroborative evidence of Gilbert’s involvement in the offense, the evidence 

does not preponderate so heavily against the jury’s verdict that it would be a miscarriage of 

justice to allow the verdict to stand. Thus, Jordan has failed to show that his felony-murder 

convictions are against the great weight of the evidence. 

b. ARMED ROBBERY AND FELONY-FIREARM

We also reject Jordan’s argument in his Standard 4 brief that his armed robbery and 

felony-firearm convictions are against the great weight of the evidence. Jordan again relies on 

the lack of direct evidence that he possessed a firearm or was involved in the victims’ shooting 

deaths. As discussed earlier, however, the evidence supported an inference that the victims were 

shot during the course of a larceny committed by Jordan and Davis, and even permitted the jury 

to find that Jordan was the shooter. Jordan’s convictions of armed robbery and felony-firearm 

are not against the great weight of the evidence. 

II. DOCKET NO. 343435 (DEFENDANT DAVIS)

A. SUFFICIENCY OF THE EVIDENCE

Davis challenges the sufficiency of the evidence to support his conviction of first-degree 

home invasion. Davis argues that he could not be convicted of first-degree home invasion 

because he was with Jordan, who Davis asserts was living at Welch’s apartment at the time of 

the offense and thus had a lawful right to be there. 

The charge of first-degree home invasion was predicated on breaking and entering the 

apartment, not entering without permission. However, a person cannot be convicted of home 

invasion for breaking into a dwelling in which the person is lawfully present. People v Bush, 

315 Mich App 237, 246; 890 NW2d 370 (2016). In this case, conflicting evidence was presented 

at trial regarding whether Jordan was actually living at the apartment at the time of the offense. 

The evidence showed that, at the time of the offense, Jordan did not have a key to Welch’s 

apartment, or to the apartment building. Jordan and Davis gained access to the building by 

climbing through a window. Evidence was also presented that after entering the building, Jordan 

and Davis faked a robbery as they approached Welch’s apartment. The jury could have inferred 

from this evidence that Jordan was not living at Welch’s apartment at that time, and thus did not 

have a lawful right to be present there or to invite Davis inside. 
-11-

Although Davis claimed that Newman opened a window so that they could enter the 

building, the evidence did not establish that Newman lived at Welch’s apartment or had authority 

to invite Jordan or Davis inside. According to Gilbert, Newman was not a “regular” at the 

apartment and was very seldom there. Further, the jury was not required to believe Davis’s 

claim that Newman was involved, particularly considering that she was shot and killed during 

the offense. 

Davis also gave inconsistent statements regarding the entry into Welch’s apartment. He 

said that the door was open, but he also said that they had to “push it a little bit.” Although the 

front door itself was not damaged and there was no sign of forced entry, there was evidence that 

the door frame had some damage. During closing argument, the prosecutor urged the jury to 

look at the door hinge on the surveillance recording because it moved when defendants entered 

the apartment, indicating that the door was closed and they had to put pressure on it to enter the 

apartment. 

Viewing the evidence and resolving all conflicts in a light most favorable to the 

prosecution, the evidence was sufficient to enable the jury to find that defendants did not have a 

lawful right to enter the unit. Thus, sufficient evidence supports Davis’s conviction of firstdegree home invasion.

B. SENTENCING

Davis argues that the trial court erred by scoring offense variable (OV) 3 of the 

sentencing guidelines at 100 points, and also by departing from the sentencing guidelines range 

of 45 to 75 months and imposing an unreasonable departure sentence of 10 to 20 years’

imprisonment. 

When reviewing a trial court’s scoring decision, the trial court’s “factual determinations 

are reviewed for clear error and must be supported by a preponderance of the evidence.” People 

v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate 

to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, 

is a question of statutory interpretation, which an appellate court reviews de novo.” Id. “A 

sentence that departs from the applicable guidelines range will be reviewed by an appellate court 

for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). When 

reviewing a departure sentence for reasonableness, we must determine “whether the trial court 

abused its discretion by violating the ‘principle of proportionality’ set forth in People v 

Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), ‘which 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, 459-460; 902 NW2d 327 (2017).

The sentencing offense in this case was first-degree home invasion. The trial court 

assessed 100 points for OV 3 on the basis that “[a] victim was killed.” MCL 777.33(1)(a). The 

instructions for OV 3 state that a court should “[s]core 100 points if death results from the 

commission of a crime and homicide is not the sentencing offense.” MCL 777.33(2)(b). 

Relying on People v McGraw, 484 Mich 120; 771 NW2d 655 (2009), Davis argues that a 

trial court is not permitted to score OV 3 on the basis of conduct or actions beyond the 
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sentencing offense unless the offender was under the influence of drugs or alcohol. In McGraw, 

484 Mich at 122, the Court clarified that when scoring offense variables, only conduct that 

occurred during the sentencing offense may be considered, unless the Legislature has specifically 

provided that a court can consider the entire criminal transaction. It is apparent that the 

Legislature did not intend to limit the scoring of OV 3 to only conduct directly related to the 

sentencing offense where there has been a homicide, but homicide is not the sentencing offense. 

MCL 777.33(2)(b) is broadly worded to encompass any death that results from the commission 

of a crime. However, there must be a causal connection between the sentencing offense and the 

death. In People v Laidler, 491 Mich 339, 345; 817 NW2d 517 (2012), our Supreme Court 

explained that 100 points are to be assessed under MCL 777.33(2)(b) if the defendant’s criminal 

actions constitute a factual cause of the victim’s death. “In determining whether a defendant’s 

conduct is a factual cause of the result, one must ask, ‘but for’ the defendant’s conduct, would 

the result have occurred?” Laidler, 491 Mich at 345. 

Although it is undisputed that two victims were killed, the sentencing offense was firstdegree home invasion. Thus, the pertinent question is whether Davis’s conduct in relation to the 

home invasion was a factual cause of the victims’ deaths. Davis was separately charged with 

first-degree premediated murder and first-degree felony murder for causing the victims’ deaths, 

but the jury acquitted him of those charges. At the time Davis was sentenced, the fact that Davis 

had been acquitted of the murder charges did not preclude the trial court from finding that a 

preponderance of the evidence supported a finding that Davis’s conduct during the home 

invasion was a factual cause of the victims’ deaths, because trial courts were permitted to 

consider conduct for which an offender was acquitted. See People v Jackson, 320 Mich App 

514, 526 n 5; 907 NW2d 865 (2017), rev’d in part on other grounds ___ Mich ___ (2019) 

(Docket No. 156502); People v Coulter (After Remand), 205 Mich App 453, 456; 517 NW2d 

827 (1994). Recently, however, our Supreme Court held in People v Beck, ___ Mich ___; ___ 

NW2d ___ (2019) (Docket No. 152934); slip op at 2, that “[o]nce acquitted of a given crime, it 

violates due process to sentence the defendant as if he committed that very same crime.” In 

Beck, the Court held that trial courts may continue to sentence a defendant on the basis of 

uncharged conduct using the preponderance-of-the-evidence standard, but reasoned that when a 

jury has found beyond a reasonable doubt that the defendant did not engage in certain charged 

conduct, the defendant is still entitled to the presumption of innocence, and considering that 

same conduct at sentencing is fundamentally inconsistent with the presumption of innocence. Id. 

at ___; slip op at 10. 

In light of Beck, we conclude that the trial court erred by assessing 100 points for OV 3 

when scoring the guidelines for first-degree home invasion. The jury absolved Davis of any 

liability for the deaths of Welch and Newman. The jury’s verdict acquitting Davis of the murder 

charges indicates that it determined that Davis’s conduct was not a factual cause of the victims’

deaths. Therefore, under Beck, the trial court could not rely on that conduct as a basis for scoring 

OV 3. If OV 3 is not scored, Davis’s guidelines range is reduced from 45 to 75 months to 24 to 

40 months under the applicable class B sentencing grid. MCL 777.63. A scoring error that 

affects the appropriate guidelines range generally requires resentencing. People v Francisco, 

474 Mich 82, 92; 711 NW2d 44 (2006). 

Plaintiff argues that even if the trial court erred by scoring OV 3, remand for resentencing 

is not required because the trial court departed from the sentencing guidelines range, the 
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guidelines are merely advisory, and the trial court’s departure indicates that it did not rely on the 

guidelines range but instead imposed what it considered to be an appropriate sentence for 

Davis’s conduct. In People v Ambrose, 317 Mich App 556, 565; 895 NW2d 198 (2016), this 

Court held that a scoring error that affects the appropriate guidelines range does not require 

resentencing where the trial court departed from the guidelines range and this Court determines 

that the departure was reasonable. In this case, Davis raises a separate challenge to the 

reasonableness of his departure sentence. As indicated, a departure sentence is reasonable if it is 

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

Steanhouse, 500 Mich at 459-460; see also People v Dixon-Bey, 321 Mich App 490, 520-521; 

909 NW2d 458 (2017). 

The trial court explained that it was exceeding the guidelines because Davis was a 

professional drug dealer who made a substantial amount of money selling drugs, he was involved 

in a gang, and he made a profit selling a substantial weapon on the street—factors that were not 

considered in the scoring of the guidelines. Although the court did not directly indicate that it 

considered conduct related to the deaths of Welch and Newman in its decision to depart from the 

guidelines range, their deaths were a factor in the scoring of OV 3, which significantly 

influenced Davis’s guidelines range. Even though the trial court departed from the guidelines for 

other reasons, and even if the court’s reasons justified a departure from the applicable guidelines 

range, it is unclear if the court would have imposed the same departure sentence knowing that 

Davis’s guidelines range was 24 to 40 months instead of 45 to 75 months. Moreover, under 

Beck, the trial court’s consideration of conduct of which Davis was acquitted in its scoring of OV 

3 is an error of constitutional magnitude. Under these circumstances, we conclude that 

resentencing is required. Accordingly, we vacate Davis’s sentence for first-degree home 

invasion and remand for resentencing on that offense. 

C. COURT COSTS

Davis also challenges the trial court’s assessment of $1,300 in court costs. Because 

Davis did not object to the trial court’s assessment of costs below, this issue is unpreserved, and 

our review is limited to plain error affecting Davis’s substantial rights. People v Konopka, 309 

Mich App 345, 356; 869 NW2d 651 (2015). 

The trial court was authorized to assess costs pursuant to MCL 769.1k(b)(iii). The trial 

court expressly found that the imposed costs were reasonably related to the actual costs incurred 

by the court. On appeal, Davis challenges the imposition of the court costs on various 

constitutional grounds. He acknowledges, however, that his arguments were previously 

considered in People v Cameron, 319 Mich App 215, 228-229, 231, 235; 900 NW2d 658 (2017), 

in which this Court held that costs imposed under MCL 769.1k(b)(iii) are a tax, not a fee, but 

that they are constitutionally permitted under the Distinct Statement Clause, Const 1963, art 4, §

32, and the Separation of Powers Clause, art 3, § 2. Although our Supreme Court granted oral 

argument to consider whether to grant an application for leave to appeal in Cameron, see People 

v Cameron, 501 Mich 986 (2018), the Court recently denied leave to appeal after hearing oral 

arguments. People v Cameron, ___ Mich ___ (2019) (Docket No. 155849). Accordingly, we 

are bound by this Court’s decision in Cameron, MCR 7.215(J)(1), and accordingly, we reject 

Davis’s constitutional challenges to the costs imposed by the trial court. 
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We affirm defendants’ convictions, but vacate Davis’s sentence for first-degree home 

invasion in Docket No. 343435 and remand for resentencing on that offense. We do not retain 

jurisdiction.

/s/ Stephen L. Borrello 

/s/ Kirsten Frank Kelly 

/s/ Deborah A. Servitto