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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED December 27, 2018

v No. 341399 Wayne Circuit Court ALEX HALE, LC No. 16

- 009522

- 01

- FC

Defendant

- Appellant.

Before: G LEICHER

, P .J., and B ORRELLO and B ECKERING , JJ.

P ER C URIAM

.

Defendant , Alex Hale, appeals by leave granted 1 his convictions based upon a plea of

nolo contendere for carrying a firearm during the commission of a felony (felony

- firearm), MCL 750.227b, and intentional discharge of a firearm at a building, MCL 750.234b. The trial court

sentenced d efendant to two years ’ imprisonment for the felony

- firearm conviction, and 9 months to 10 years ’ imprisonment for the intentional discharge of a firearm at a building conviction, with 215 days ’ credit for time serve d. Because defendant correctly argues that the trial court erred in assessing 10 points for Offense Variable (OV) 12, and because the error changes the recommended guidelines range, w e remand for resentencing.

Defendant’s plea

- based convictions arise from an altercation he had with a housemate

over t he use of a new refrigerator . The altercation led to the housemate sequestering himself in

his bedroom and defendant firing two bullets into the bedroom wall or door molding

. The trial

court sentenced d efendant as described above, and after the court denied a timely motion for resentencing

, defendant appli ed for leave to appeal, which this Court granted.

I. STANDARD OF REVIEW

This Court reviews a sentencing court ’ s factual findings regarding scoring variables for clear error, and the facts must be supported by a preponderance of the evidence. People v

Gl oster , 499 Mich 199, 204; 880 NW2d 776 (2016). “ ‘ Whether the facts, as found, are adequate

1 People v Hale , unpublished order of the Court of Appeals, entered February 23, 2018 (Docket No. 341399).- 2

- to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a quest ion of statutory interpretation ’ ” that this Court reviews de novo. Id ., quoting People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). Clear error exists if this Court “ is left with a

definite and firm conviction that a mistake has been made. ” People v Stone , 269 Mich App 240, 242; 712 NW2 d 165 (2005). Further, the “ trial court may consider all evidence in the record, including but not limited to the presentence investigation report (PSIR) and admissions made by a defendant during a plea proceeding. ” People v Jackson , 320 Mich App 514, 51 9; 907 NW2d 865 (2017)

.

I I

. MCL 777.31 (OV 1)

Defendant contends that the trial court clearly erred by assessing 25 points for OV 1, rather than five points , claiming “[t]here is simply no evidence on record that [defendant] discharged the firearm at or towards Mr. Myers

. ” We disagr ee.

OV 1 considers the aggravated use of a weapon. MCL 777.31(1). Defendant was assessed 25 points fo r OV 1, which is appropriate if “ [a] firearm was discharged at or toward a human being

. . . . ” MCL 777.31(1)(a). The tr ial court may assess five points for OV 1 if “ [a] weapon was displayed or implied. ” MCL 777.31(1)(c)

.

When defendant pleaded nolo contendere to intentional discharge of a firearm at a building, defendant stipulated that, while he did not shoot into the d oor of Frank Myers, Sr. ’ s bedroom, he did sh o ot two bullets through the molding of the door while Myers, Sr.

, was inside

the bedroom . Defendant also stipulated that he made threats to harm Myers, Sr.

, before he fired his gun. According to the PSIR, defendant told Myers, Sr.

, that he would kill him

, after which he fired two shots toward Myers, Sr.’s bedroom door and then shouted that he had “ four more ” bullets for Myers, Sr. The PSIR also noted that t here were bullet holes in the wall of the second floor. Thus, defendant did not merely display or imply that he had a weapon, he actually f ired

two bullets at Myers, Sr. ’ s bedroom while Myers, Sr.

, was inside . OV 1 is to be scored if the person discharge s a firearm “toward” a human being. Defendant’s conduct of shooting through

the molding of a closed door into a room occupied by a person easily qualifies as discharging a firearm toward a human being. Based on the stipulated record and the PSIR, which t he trial court may consider in determining defendant ’ s sentence, there was a preponderance of the evidence to support an assessment of 25 points for OV 1. Therefore, the trial court did not clearly err in assessing 25 points for OV 1.

II I . MCL 777.42 (OV 12)

Defendant next argues that the trial court erred in assessing 10 points for OV 12 because it is it unclear whether the trial court assessed 10 points for two contemporaneous felonious acts against a person or three other contemporaneous acts involvin g other crimes, and because a preponderance of the evidence does not support either. We agree.

OV 12 considers contemporaneous felonious acts. MCL 777.42(1). Defendant was assessed 10 points for OV 12, which is appropriate if “ [t]wo contemporaneous fel onious criminal acts involving crimes against a person were committed, ” or if “ [t]hr e e or more contemporaneous felonious criminal acts involving other crimes were committed. ” MCL 777.42(1)(b) and (c). A- 3

- felonious criminal act is defined as contemporaneou s if “ [t]he act occurred within 24 hours of the sentencing offense, ” and “ [t]he act has not and will not result in a separate conviction. ” MCL 777.42(2)(a)( i ) and ( ii ). The contemporaneous felonious criminal acts must be “ acts other than the sentencing offense and not just other methods of classifying the sentencing offense. ” People v Light , 290 Mich App 717, 726; 803 NW2d 720 (2010). The “ court must look beyond the sentencing offense ” and “ consider only those separate acts or behavior that did not est ablish the sentencing offense. ” Id . at 723. Additionally, felony

- firearm should not be considered when scoring OV 12. MCL 777.42(2)(b)

.

The basis for the trial court ’ s scoring of OV 12 is not entirely clear from the record. The

record demonstrate s tha t defendant made several death threats to Myers, Sr.

, before firing two bullets into the molding of Myers, Sr. ’ s bedroom door while Myers, Sr.

, was inside. There is also evidence that defendant continued to make threats toward Myers, Sr.

, after firing his gun and then walked toward Frank Myers, Jr.

— brandishing the handgun

— before Myers, Jr.

, could run into his bedroom, lock the door, and call the police. The prosecution argues that an assessment of 10 points for OV 12 was appropriate because there was a pr eponderance of the evidence that defendant committed two contemporaneous felonious acts against a person that will not result in a separate conviction , namely, defendant’s actions toward Myers, Jr

. The relevant inquiry is whether a preponderance of the ev idence supports that finding. Gloster , 499

Mich at 204.

Defendant pleaded guilty to intentional discharge of a firearm at a building after his initial charges of assault with intent to murder, assault with intent to do great bodily harm less than murder, and felonious assault were dismissed. According to the prosecution, the two contemporaneous felonious acts against a person are either assault with intent to murder and

felonious assault or assault with intent to do great bodily harm less than murder and felonious

assault.

Assault with intent to murder, assault with intent to do great bodily harm less than murder, and felonious assault are all crimes against a person. MCL 777.16d. Because the charges of assault with intent to murder, assault with inten t to do great bodily harm less than murder, and felonious assault were dismissed, they satisfy the statutory requirement of MCL 777.42(2) ( ii ) that they will not result in separate convictions. See People v Billings , 283 Mich App 538, 553; 770 NW2d 893 (20 09) (holding that, because the defendant pleaded guilty to criminal enterprise and the charges of uttering and publishing were dismissed, those acts would not result in a separate conviction and could be considered for the purposes of OV 12 )

.

Under Light

, the contemporaneous felonious acts must be separate acts of behavior from those that established the intentional discharge of a firearm at a building. See Light , 290 Mich App at 723. Therefore, defendant ’ s conduct or actions that served as the basis for defendant ’ s conviction of intentional discharge of a firearm at a building cannot be considered in determining whether defendant committed two contemporaneous felonious acts against a person. The elements of intentional discharge of a firearm at a buildi ng are (1) the intentional discharge of a firearm, (2) at a dwelling. MCL 750.234b(1). Accordingly, defendant ’ s intentional discharge of- 4

- a firearm cannot be considered for the purposes of OV 12 because it formed the basis of

defendant ’ s sentencing offens e. 2

The elements of felonious assault are: “ (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery. ” People v Nix , 301 Mich App 195, 205; 836 NW2d 224 (2013), quoting People v Avant

, 235 Mich App 499, 505; 597 NW2d 864 (1999). An assault is committed when the defendant

takes some “ ‘ unlawful act that places another in reasonable apprehension of receiving an

immediat e battery. ’ ” Nix , 301 Mich App at 195, quoting People v Starks , 473 Mich 227, 234; 701 NW2d 136 (2005)

.

A preponderance of the evidence supports a finding that defendant committed felonious assault. Defendant committed an assault by walking down the ha llway toward Myers, Jr.

, with the gun in his hand, placing Myers, Jr.

, in reasonable apprehension of an immediate battery. See

Nix , 301 Mich App at 195. Although there is little evidence of defendant ’ s intent to place Myers,

Jr.

, in reasonable apprehensi on of an immediate battery, the re is sufficient evidence to reasonably

infer defendant ’ s intent based on defendant ’ s threats to Myers, Sr.

, and walking around the house brandishing a firearm. Therefore, felonious assault constitutes a contemporaneous felo nious act for the purposes of scoring OV 12. 3

The elements of assault with intent to commit murder are “ (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder. ” People v Jackson

, 292 Mich App 583, 587; 808 NW2d 541 (2011) (quotation marks and citation omitted). A

defendant ’ s intent to kill can be established “ by inference from any facts in evidence. ” Id

. Here, a preponderance of the evidence does not support a finding that defendant

committed assault with intent to commit murder with respect to Myers, Jr . There is no evidence to demonstrate that defendant possessed an actual intent to kill Myers, Jr. Nowhere in the record

does it indicate that defendant ’ s threat that he had “ four more for you, ” was d irected towards Myers, Jr. Nor does the record support the prosecution ’ s argument that defendant “ could have just as easily been threatening ” Myers, Jr.

, as Myers, Sr.

, because the PSIR describes the threats as directed only towards Myers, Sr. Without mo re, the fact that defendant walked toward Myers,

Jr. brandishing a gun does not establish defendant ’ s intent to commit murder. Accordingly, assault with intent to commit murder does not constitute a contemporaneous felonious act.

The elements of assault with intent to commit great bodily harm less than murder are “ (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder. ” People v Stevens , 306 Mich App 620, 62 8; 858 NW2d 98 (2014), quoting People v Parcha , 227 Mich App 236, 239; 575 NW2d 316 (1997). Assault with intent to commit great bodily harm less than murder is a specific intent crime, and

2 This presumably explains why the prosecution argues that defendant committed two contemporaneous felonious acts as it concerns Myers, Jr.

, rather than Myers, Sr.

3 One contemporaneous felonious criminal act involving a crime against a person supports a score of 5 points for OV 12. MCL 777.42(1)(d).- 5

- requires that the defendant ’ s intent to commit serious injury be o f an aggravated nature. Stevens

, 306 Mich App at 628 (quotation marks and citation omitted). Actual injury to the victim is not

an element. Id . at 629.

Again, there is nothing in the record to demonstrate that defendant possessed the specific

intent to do great bodily harm to Myers, Jr. The record only indicates that defendant walked down the hall toward Myers, Jr.

, with the gun in his hand. Standing alone , the facts do not

establish defendant ’ s requisite intent to commit great bodily harm less than m urder with respect to Myers, Jr . Therefore, the trial court clearly erred in assessing 10 points for OV 12 because a preponderance of the evidence does not support the trial court ’ s finding that defendant committed two contemporaneous felonious acts again st Myers, Jr.

Defendant is entitled to resentencing because the trial court erred in scoring an offense variable, and the error affected the statutory sentencing guidelines range. See People v Jackson

, 487 Mich 783, 794; 790 NW2d 340 (2010). The trial court sentenced defendant to a minimum

of nine months ’ imprisonment under the mistaken belief that the correct guidelines range was 0 to 17 months, when the correct guide lines range was actually zero to 11 months . Although

defendant ’ s minimum sentence wa s within the guidelines range, resentencing is required because

“ the Legislature intended to have defendants sentenced according to accurately scored guidelines

and in reliance on accurate information

. . . . ” Id

. , quoting People v Francisco , 474 Mich 82, 89; 711 NW2d 44 (2006)

.

We vacate d efendant ’ s sentence and remand this matter for resentencing. 4 We do not

retain jurisdiction.

/s/ Elizabeth L. Gleicher /s/ Stephen L. Borrello /s/ Jane M. Beckering

4 Because we are vacating and remanding for resentencing, we need not address defendant’s other arguments pertaining to the trial court’s original sentence or its rulings at the motion for resentencing

. To the extent defendant argues that the trial court v iolated his constitutional rights when sentencing him while taking into account his credit for time served , we conclude that his argument lacks merit.