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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 22, 2016

v No. 324630 Charlevoix Circuit Court KAYLEE ROSE BOOTH, LC No. 14-019011-FC

Defendant-Appellant.

Before: H OEKSTRA , P.J., and M ETER and M. J. K ELLY , JJ.

P ER C URIAM

. Following a jury trial, defendant was convicted of assault wit h intent to murder, MCL 750.83, and was sentenced to serve a prison term of 12 to 25 ye ars. Defendant now appeals as of right. We affirm defendant’s con viction but remand this case t o the trial court for further proceedings regarding sentencing.

I. FACTS

Defendant was charged with assault with intent to murder for s tabbing Justine Murray in the thigh, arm, and chest with a kitchen knife that had a six-i nch blade. The incident occurred outside of an apartment that de fendant shared with her boyfrien d. Defendant suspected that her boyfriend was cheating on her with Murray. There were multiple eye-witnesses to the stabbing, and defendant admitted that she stabbed Murray multiple times, but argued that she was suffering from temporary insanity and did not have an intent to kill. The jury rejected defendant’s insanity defense and c onvicted her of assault with intent to murder.

II. JUROR QUESTIONS

At trial, the trial court screened and asked a number of juror questions of witnesses. Defendant first argues that as “a matter of law reform,” the pr actice of allowing such juror questions should stop. However, t he Michigan Supreme Court for eclosed defendant’s argument in People v Heard , 388 Mich 182, 187-188; 200 NW2d 73 (1972). Because we are re quired to follow Heard , we must reject defendant’s ar gument regarding this issue. Se e People v Hall , 249 Mich App 262, 270; 643 NW2d 253 (2002), remanded on other groun ds 467 Mich 888 (2002) (this Court is required by stare decisis to follow decisions of the Michigan Supreme Court).-2- III. EXPERT TESTIMONY

Defendant next argues that her constitutional right to due pro cess was violated by the admission of Dr. Craig Wendt’s opinion testimony regarding the stab wound. We disagree.

Dr. Wendt, who is board-certified as a specialist in general s urgery and has been a practicing surgeon for 29 years, t reated Murray after the stabb ing. He testified that he had treated at least 30 patients for stab wounds. When the prosecu tor sought to ask Dr. Wendt whether Murray’s chest injury w as consistent with her being sea ted on the ground while her attacker stood over her with the knife stabbing downwards, defe nse counsel objected on the grounds that Dr. Wendt was not qua lified to give an opinion on wound trajectory because he was not a forensic pathologist. The prosecutor responded that the objection “goes to the weight of his testimony” and asserted that the doctor met the standards of MR E 702 and should be allowed to give expert opinion testimony on the issue. The trial court ov erruled the objection, stating that the question went to Dr. Wendt’s observation. Dr. Wendt then a nswered the question in the affirmative. In regard to Mur ray’s chest wound, he testified t hat, given the location, the knife could have reached Murray’s heart had it gone straight into her chest rather than downward across her body.

Although defendant challenged th e trial court’ s admission of t his evidence, sh e did not do so on the basis that it violated her constitutional right to du e process, as she does on appeal. See People v Coy , 258 Mich App 1, 12; 669 NW2d 831 (2003) (“Although defendant objected that the testimony was hearsay, that objection did not preserve the issue whether the testimony violated the Confrontation Clause s of the federal and state con stitutions . . . .”), and People v Asevedo , 217 Mich App 393, 398; 551 NW2d 478 (1996) (objection to evid ence on one ground is insufficient to preserve an a ppellate attack on a different ground). Accordingly, this issue is reviewed as an unpreserved cons titutional claim. This Court re views unpreserved constitutional issues for plain error affecting substantial rights. People v Carines
, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

To avoid forfeiture under the pl ain error rule, three requireme nts must be met: 1) error must have occurred, 2) the error was plain, i.e., clear o r obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. . . . Finally, once a defendant satisfies these t hree requirements, an appellate court must exercise discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in t he conviction of an actually innocent defendant or when an error “ ‘seriously affec t[ed] the fairness, integrity or public reputation of judicial proceedings’ indepen dent of the defendant’s innocence.” [ Id . (citations omitted).]

A trial court’s decision to adm it or exclude evidence is review ed for an abuse of discretion. People v Mardlin , 487 Mich 609, 614; 790 NW2d 607 (2 010). An abuse of discreti on occurs when the trial court chooses an outcome falling outside the pri ncipled range of outcomes. People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003).-3- MRE 702 requires a court to ens ure that expert testimony is re liable:

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The trial court did not abuse its discretion in admitting Dr. Wendt’s opinion testimony regarding the stab wound. That Dr . Wendt does not have a degre e in forensic pa thology does not mean that he cannot, on the basis of his decades of training an d experience as a surgeon, offer a factually supported opinion that Murray’s wounds were “consiste nt with” a downward stabbing trajectory. Dr. Wendt never gave a conclusion on the precise o r specific angle of the stabbing action. Rather, he merely opined that a downward trajectory wa s consistent with the full picture of Murray’s injuries to her chest. As a surgeon, Dr. Wendt’s e xpertise is in the use of a scalpel, which is used to cut flesh. This gives him expertise regarding the angle at which a blade enters a body when the appropriate facts are present, such as here, wher e he had detailed knowledge of the wound from the CAT scan tha t was administered to Murray.

Even if we were to conclude that the trial court abused its di scretion in admitting Dr. Wendt’s opinion testimony regarding the stab wound, defendant h as not established the third prong of the Carines plain error test—that the error affected the outcome of the low er court proceedings. See Carines , 460 Mich at 763. Given the location of the wound, the jury h ad ample evidence to convict defenda nt of assault with intent to m urder regardless of Dr. Wendt’s testimony. The wound was to Murray’s chest, just below her bre ast, in a vital region of her body. The jurors had ample reason to determine that stabbing s omeone in the chest with a kitchen knife with a six-inch blad e is evidence of an intent to murder. Because the verdict would not have differed without Dr. Wendt’s testimony, defendant cann ot demonstrate plain error affecting substantial rights.

IV. PROSECUTORIAL ERROR 1

Defendant next argues that prosecutor comments denigrated defe nse counsel in violation of defendant’s rights to a fai r trial and due process. We disa gree.

1 We recently held in People v Cooper , 309 Mich App 74, 87- 88; 867 NW2d 452 ( 2015), that the term “prosecutorial error” is preferred over the more commonly used phrase of “prosecutorial misconduct,” which should be reserved for only the most extreme cases when a prosecutor’s conduct violates the rules of pr ofessional conduct or constitut es illegal conduct. See also People v Bosca , 310 Mich App 1, 25-26; 871 NW2d 307 (2015) (applying the Cooper distinction). Accordingly, we will adopt this same convention.-4- During closing argument, without objection, the prosecutor sta ted:

This is a case of Assault with Intent to Murder, plain and sim ple. You’re gonna hear a bunch of instructions and you’re gonna see a littl e hocus pocus and maybe you can find her guilty of this and maybe you can find he r guilty of this and maybe you can find her guilty of this, and you’ll hear all that from the Defense. I’m not gonna give you hocus pocus . This is what she’s charged with. This is what I’m asking you to convict her of. This is taking responsibility. Nothing else is taking respons ibility. [Emphasis added.]

During defense counsel’s closing, she stated:

In [the prosecutor’s closing], he said I’m not going to talk t o you about all that hocus pocus , those other jury instructions that the Judge might give you. I’m not going to talk to you about that hocus pocus . It’s not hocus pocus , it’s the Judge’s instructions to you; it’s what you’re required to follo w in this case. [Emphasis added.]

And finally, during the prosecu tor’s rebuttal, he stated:

Hocus pocus ? What I was talking to you about and you’ll – let me read the instruction to you. And I don’t mean that certainly to den igrate Judge Pajtas but I’m – what I mean is here’s an instruction you’re gonna hea r:
“In this case there are several different crimes that you may consider. When you discuss the case you must consider the crime of Assaul t with Intent to Murder first. If you all agree the defendant’s guilty of that crime you may stop your discussions and return your verdict.

If you believe the defendant is not guilty of Assault with Int ent to Murder or you cannot agree about that crime, you should consider the l ess serious crime of Assault with Intent to Cause Great Bodily Harm Less Than Mur der.

You decide how long to spend on Assault with Intent to Murder before discussing Assault with Intent to Cause Great Bodily Harm Less Than Murder. You can go back to Assault with Intent to Murder after Assault with Intent to Cause Great Bodily Harm Less Than Murder if you want to.”

That’s what I was talking about. Maybe hocus pocus is the wrong word. I don’t think you need to do a lot of back and forth here, folks. [Emphasis added.]

Generally, a defendant must raise a timely and specific object ion in the trial court in order to preserve the issue of prosecutorial error on appeal. People v Unger , 278 Mich App 210, 234- 235; 749 NW2d 272 (2008). Because defense counsel did not obje ct to the alleged instance of prosecutorial error, this issue is unpreserved and review is fo r plain error affecting defendant’s substantial rights. Carines , 460 Mich at 763-764. Further, reversal is not required if an y prejudicial effect could have b een cured by a timely jury instr uction. People v Watson , 245 Mich App 572, 586; 629 NW2d 411 (2001). T he prejudicial effect of m ost improper prosecutorial-5- statements can be cured by such instructions, and jurors are pr esumed to follow their instructions. Unger , 278 Mich App at 235.

The test of prosecutorial error is whether the defendant was d enied a fair and impartial trial. Watson , 245 Mich App at 586.

When reviewing a claim of prosecutorial misconduct, this Court must examine the pertinent portion of the record and evaluate a pros ecutor’s remarks in context. Further, the propriety of a prosecutor’s remarks will depend upon the particular facts of each case. In addition, a prosecutor’s com ments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evidence admitted at trial. [ People v Callon , 256 Mich App 312, 330; 662 NW2d 501 (2003) (citations omitted).]

While “[p]rosecutors are typically afforded great latitude reg arding their arguments and conduct at trial[,] . . . [they] may not suggest that defense c ounsel is intentionally attempting to mislead the jury.” Unger , 278 Mich App at 236 (citations o mitted). Similarly, a prosec utor may not attack the personal credibility of defense counsel. People v Kennebrew , 220 Mich App 601, 607; 560 NW2d 354 (1996).

First, viewing the prosecutor’s initial statement in isolation , it may appear that he was asserting that defense counsel was attempting to sell the jury on a bunch of “hocus pocus.” However, in context, the stateme nt does not denigrate the defen se. The statement was directed at the jury instructions for assault with intent to do great bodil y harm less than murder. Even defense counsel interpreted the comments as being about the jur y instructions and not about defense counsel’s theory of the case. Second, and significantl y, the prosecutor essentially withdrew his use of the phrase “ hocus pocus” in his rebuttal ar gument. Third, defendant cannot prevail on this issue because a timely objection and cautionary instruction could have cured any possible prejudice from the pros ecutor’s comments. In fact, th e trial court instructed the jury that it “must take the law as I give it to you,” that the jury was t o “take all of [the judge’s] instructions together as the law that you are to follow,” and t hat “[i]f a lawyer said something different about the law, follow what I say,” presumably curing any prejudice arising from the comments. See People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003) (“Jurors are presumed to follow their instruc tions, and instructions are pre sumed to cure most errors.”). Under all the circumstances, t here was no due process violation

. 2

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant next argues that her trial counsel was ineffective f or failing to object to the prosecutor’s statements. We disagree.

2 We find no basis for reversal, giv en the specific circumstance s, but we caution the prosecutor to avoid using potentiall y inflammatory phrases.-6- The determination regarding whether there has been a deprivati on of the effective assistance of counsel is a mixed question of law and fact; the factual findings are reviewed for clear error and the matters of law are reviewed de novo. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). In this case, there are no factual findin gs on defendant’s claims of ineffective assistance of counsel. Thus, this Court’s review i s limited to mistakes apparent on the record. People v Rodriguez , 251 Mich App 10, 38; 650 NW2d 96 (2002).

Effective assistance of counsel is presumed and a defendant cl aiming ineffective assistance is required to overcome a strong presumption that so und trial strategy motivated counsel’s conduct. LeBlanc , 465 Mich at 578. To establish ineffective assistance of coun sel, defendant must show that counsel’s performance fell below an ob jective standard of reasonableness under prevailing professional norms and that the re is a reasonable probability that, but for counsel’s error, the result of the proceedings wo uld have been different. People v Mack , 265 Mich App 122, 129; 695 NW2d 342 (2005); People v Rodgers , 248 Mich App 702, 714; 645 NW2d 294 (2001).

Rather than objecting, defense counsel repeated the prosecutor ’s use of the phrase “hocus pocus” and provided a counter to the prosecutor’s characterizat ion of the instructions. Defendant cannot show that counsel’s choice of dealing with the comment i n this manner, rather than objecting, was anything other than sound trial strategy. Moreo ver, given that any prejudicial effect from the closing was cured by the trial court’s instruct ions and by the prosecutor’s withdrawal of the phrase, defendant cannot establish that the o utcome of the proceedings would have been different had her couns el objected to the prosecutor’ s allegedly improper statements. Mack , 265 Mich App at 129. Therefore, defendant’s claim of ineffec tive assistance of counsel must fail.

VI. SENTENCING

In People v Lockridge , 498 Mich 358, 395-398; ___ NW2d ___ (2015), the Court held that in cases with judicial fact-finding that changed the sente ncing guidelines range, that did not involve an upward departure, and that involved a sentence impos ed on or before July 29, 2015, a defendant is entitled to a remand to the trial court for furthe r proceedings regarding sentencing. Here, defendant alleges that judi cial fact-finding occurred. W e agree.
Defendant was assessed 10 points for offense variable (OV) 4. OV 4 covers “psychological injury to a victim,” and 10 points is appropriat e if there is evidence that a “serious psychological injury” th at “may require professional t reatment” occurred to a victim. MCL 777.34. The jury found defendant guilty of assault with in tent to murder, which did not require the jury to find that defendant caused a psychological injury to any victim. Thus, the facts necessary to support a 10- point score for OV 4 were not f ound by the jury beyond a reasonable doubt.

Defendant was assessed 50 points for OV 6. OV 6 covers intent to kill or injure, and 50 points is appropriate if the “offender had premeditated intent to kill . . . .” MCL 777.36. “To premeditate is to think about beforehand . . . .” People v Furman , 158 Mich App 302, 308, 404 NW2d 246 (1987). Again, the jury found defendant guilty of ass ault with intent to murder, which did not require the jury to find that defendant had a premeditated intent to kill. Thus, the-7- facts necessary to support a 50- point score for OV 6 were not f ound by the jury beyond a reasonable doubt. 3

Defendant was assessed 10 points for OV 9, which covers “numbe r of victims;” 10 points are appropriate if “[t]here were 2 to 9 victims who were placed in danger of physical injury or death . . . .” MCL 777.39. Zero points are to be assessed if there were fewer than two victims. MCL 777.39(1)(d). Again, the jury found defendant guilty of as sault with intent to murder, which did not require the jury to find that there were more tha n two victims who were placed in danger of physical injury or dea th. The jury’s decision only r equired it to find that the victim of the assault with intent to murder was placed in danger of physi cal injury or death. Thus, the facts necessary to support a 10-point s core for OV 4 were not found b y the jury beyond a reasonable doubt.

The OV scoring errors affected the guidelines range and we rem and this case for further proceedings in accordance with Lockridge

.
Defendant’s conviction is affirm ed but this case is remanded f or further proceedings regarding sentencing. We do not retain jurisdiction.

/s/ Joel P. Hoekstra /s/ Patrick M. Meter /s/ Michael J. Kelly

3 However, a score of 25 points is appropriate for OV 6 if the “ offender had an unpremeditated intent to kill . . . .” MCL 777.36(1)(b). Here, the jury’s de cision required it to find that defendant had the intent to kill. Thus, we note that the facts necessary to support a 25-point score for OV 6 were necessarily found by the jury beyond a reas onable doubt.