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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 10, 2016

v No. 321744 Wayne Circuit Court EDWARD KHALIL, LC No. 12-003518-FC

Defendant-Appellant.

Before: B OONSTRA , P.J., and M ETER and B ECKERING , JJ.

P ER C URIAM

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Defendant was originally trie d in 2012 and a jury convicted hi m of first-degree murder, MCL 750.316(1)(a), and possession of a firearm during the commi ssion of a felony (felonyfirearm), MCL 750.227b. However, the trial court granted defen dant’s motion for a new trial on the ground that the jury’s verdict was against the great weight of the evidence. At defendant’s second trial in 2014, a jury convicted him of the lesser includ ed offense of second-degree murder, MCL 750.317, as well as felony-firearm. The trial cour t sentenced defendant to a prison term of 16-1/2 to 30 years for the murder conviction, and a con secutive two-year term of imprisonment for the felony-fire arm conviction. Defendant agai n moved for a new trial, which the trial court denied. Defendant now appeals as of right. We affirm defendant’s convictions,
but remand this case for furthe r sentencing proceedings consist ent with this opinion.

I. FACTS AND PROCEEDINGS

Defendant’s convictions arose from the shooting death of Antho ny Jones, who was shot while trespassing in a vacant apartment building at 931 Covingt on in Detroit. Defendant and Parminder Saroya owned the building, which was undergoing renov ations. Jones and Arthur Richardson had broken into the building to strip copper and oth er metals to sell as scrap. The shooting was likely to have occurred during a two-minute window between 6:07 and 6:08 a.m., as established by analysis of surveillance videos recorded by c ameras mounted on a neighboring apartment building at 980 Whitmore.

According to the prosecution’s theory at trial, defendant and Saroya were frustrated by the Detroit Police Department’s failure to arrest scrappers. D efendant came to 931 Covington during the early morning hours of September 15, 2011, after bei ng notified that scrappers were present. Defendant summoned an employee, Charles Shavers, to b ring him a shotgun. Defendant then shot Jones, who was attempting to leave the buil ding though a window, and-2- prevailed upon Shavers to accept blame for the shooting. The s urveillance videos did not capture the shooting, but captured images of Shavers carrying the shotg un from 980 Whitmore towards the shooting location.

The defense theory at trial was that Shavers shot Jones while defendant was several miles away from the building. The def ense theory was premised on cel lular telephone records, which
established that defendant’s cel lular telephone “interacted” wi th cellular telephone towers located six or seven miles away f rom the building during the re levant two-minute window.

II. GREAT WEIGHT OF THE EVIDENCE

Defendant argues that he should be granted a new trial because the jury’s verdict was against the great weight of the evidence. We review for an abu se of discretion the trial court’s decision denying defendant’s motion for a new trial on this gro und. People v Unger , 278 Mich App 210, 232; 749 NW2d 272 (2008).

A new trial may be granted if a jury’s verdict is against the great weight of the evidence, but only if the evidence preponderates so heavily against the v erdict that it would be a miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 627, 635; 576 NW2d 129 (1998); Unger , 278 Mich App at 232. “Conflicting testimony and questions of witness credibility are generally insufficient grounds for gran ting a new trial.” Unger , 278 Mich App at 232; see also Lemmon, 456 Mich at 627. Generally, “a verdict may be vacated only wh en the evidence does not reasonabl y support it and it was more lik ely the result of causes outside the record, such as passion, prejudi ce, sympathy, or some other ext raneous influence.” People v
Lacalamita , 286 Mich App 467, 469; 780 NW2d 311 (2009). “[U]nless it can be said that directly contradictory testimony was so far impeached that it w as deprived of all probative value or that the jury could not belie ve it, or contradicted indisput able physical facts or defied physical realities, the trial court must d efer to the jury’s determinati on.” People v Musser , 259 Mich App 215, 219; 673 NW2d 800 (2003) (citati ons and quotation marks om itted).

The trial in this case was not asimple credibility contest be tween defense and prosecution witnesses, but a contest in whic h defendant’s testimony was corroborated by obj ective evidence
about defendant’s cellular tele phone. Defendant’s “cellular al ibi” was corroborated by Special Agent Joseph Slatalla’s testimony that defendant’s cellular tel ephone use during the morning of September 15, 2011, was consistent with defendant’s “life patte rn” and consistent with his reported movements at other times between 4:00 and 8:00 a.m. th at morning. Slatalla also
testified that he determined that the cellular network was work ing according to design when calls were placed to and from defenda nt’s cellular te lephone, meaning that the calls interacted with the cellular towers within their normal ranges. There was no testi mony explaining how defendant came to be separated from his cel lular telephone f or the releva nt brief period. In addition, although Shavers testified that h e called defendant’s cellular telephone shortly after the shooting and a woman answered, there was no testimony explaining the ide ntity of this woman, or how she came into possession of defendant’s telephone. In addition to the cellular telephone and surveillance video evidence, police witnesses testified that Sh avers admitted shooting Jones and did not object when defendant told t he officers that Shavers sh ot him.-3- Despite this evidence, Shavers d enied shooting Jones and incul pated defendant as the shooter, and other witnesses pla ced defendant at the scene at t he time of the shooting. The testimony of Shavers and other prosecution witnesses was not so far impeached that it was deprived of all probative value. Musser , 259 Mich App at 219. Nor was the prosecution’s case against defendant contrary to in disputable physical facts or indefiance of physical realities. Id

. Defendant’s cellular telephone was not attached to his person; it was not impossible that another person temporarily took possession of his phone, and whatever p roblems were associated with the credibility of prosecution w itnesses, it was still within t he jury’s province to decide whether to believe the pertinent po rtions of their testimony.

Shavers’s testimony was corroborated by other witnesses. Arth ur Richardson testified that defendant angrily shouted t hat he wanted the trespassers k illed. Richardson also testified that he heard defendant say “we got that mother f***er” and tha t defendant sounded happy when
he said it. Shantele Henderson testified that defendant was th e person she saw with a rifle and heard saying that he killed the “motherf***er.” Henderson and Richardson corroborated each other by their similar testimony. Moreover, defendant’s behavi or reflected consciousness of guilt. He started to call 911 shortly after the shooting, but disconnected the call and decided instead to discuss the incident with Shavers, Saroya, and Saroy a’s son. He did not call 911 until two hours after the shooting. Defendant’s conduct and statemen ts before the shooting reflected his motive and intent. Defendant told the police that he would buy a shotgun because he was frustrated by the reoccurrence of scrapping. Richardson testif ied that he heard defendant say that he wanted the scrappers killed, not arrested. Evidence was pre sented that one or more
individuals remained behind when the vehicles left before the s hooting. Richardson testified that, after the shooting, a woma n asked defendant what happened

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The trial court did not abuse its discretion in determining th at the evidence did not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand.

III. SCORING OF OFFENSE VARIABLE 19

Defendant argues that the trial court erred in assessing 10 po ints for offense variable (OV) 19 of the sentencing guidelines. “Under the sentencing gu idelines, a trial court’s findings of fact are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Thompson , ___ Mich ___; ___ NW2d ___ (2016) (Docket No. 318128); slip o p at 3. “Clear error is present when the reviewing court is left with a definite and firm conviction that an
error occurred.” Id . (citations and quotation marks omitted). “This Court reviews de novo [w]hether the facts, as found, are adequate to satisfy the scor ing conditions pres cribed by statute .
. . .” Id . (citations and quotation marks omitted).

The trial court is authorized to assess 10 points for OV 19 if “[t]he offender otherwise interfered with or attempted to interfere with the administrati on of justice.” MCL 777.49(c). In People v Ericksen , 288 Mich App 192, 204; 793 NW2d 120 (2010), this Court held t hat a 10- point score for OV 19 was justified where there was “evidence t hat defendant asked one of his companions to dispose of the knife he used to stab the victim and asked others to lie about his whereabouts during the night of the crime.” This Court stated:-4- Clearly, defendant's attempt to hide or dispose of the weapon i n conjunction with his encouragement of others to lie about where he was at the ti me of the stabbing was a multifaceted attempt to create a false alibi and mislead the police. His actions ultimately constituted fabrications that were self-serv ing attempts at deception obviously aimed at leading police investigators astra y or even diverting suspicion onto others and away from him. Unmistakably, defenda nt's actions were attempts to interfere with the administration of justice a s contemplated by the plain language of MCL 777.49(c), and the trial court did no t abuse its discretion by assessing 10 points for OV 19. [ Ericksen , 288 Mich App at 204.]

In this case, the trial court assessed 10 points for OV 19 bec ause there was evidence that defendant removed surveillance video equipment from the buildin g after the shooting. The surveillance equipment had the potential to identify the perpet rator of the homicide. Destruction of potentially valuable evidence qualifies as interference with the administration of justice. Defendant argues, however, that the evidence was insufficient t o establish that he actually took or destroyed the equipment. Howev er, Shavers testified that be fore he, defendant, and the Saroyas left the building afte r the shooting, defendant and the Saroyas entered the building for a few minutes. When they left th e building, one of them was carr ying the video recorder. Even though Shavers could not remember which person was carrying the recorder, his testimony supported an inference that defe ndant either removed the record er himself or cooperated with and approved the decision to r emove it. Although defendant ass erts that Shavers’s testimony was not credible, this Court will defer to the trial court’s as sessment of a witness’s credibility. People v Shipley , 256 Mich App 367, 373; 662 NW 2d 856 (2003). The trial court did not clearly err in crediting Shaver’s testimony and did not err in finding that the testimony supported a 10- point score for OV 19.

IV. JUDICIAL FACT-FINDING

Defendant also argues that he i s entitled to sentencing relief under People v Lockridge

, 498 Mich 358; 870 NW2d 502 (2015), because judicial fact-findin g at sentencing increased the sentencing guidelines range. We agree. Because defendant did not raise this Sixth Amendment issue at sentencing, it is unpreserved, and our review is for p lain error affecting defendant’s substantial rights. Id . at 392.

In Lockridge

, id . at 388-389, the Michigan Supreme Court, relying on Apprendi v New Jersey , 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), held that Michig an’s sentencing guidelines
scheme violated the Sixth Amendment because it allowed a senten cing judge to find facts that are used to score the offense variables and, thereby, to mandat orily increase the floor of the sentencing guidelines range. To remedy this constitutional vio lation, the Court severed the mandate in MCL 769.34(2) that a sentencing judge sentence a def endant within the guidelines range to the extent that the range is a product of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt. Lockridge , 498 Mich at 391-392. The Court held that a guidelines range calculated in violation of Alleyne is “advisory only.” Id . at 399. The Court stated, however, that the guidelines remain “a highly rel evant consideration in a trial court’s exercise of sentencing di scretion[,]” and that sentenci ng judges remain obligated to-5- determine the applicable guidelines range and to take the guide lines range into account when imposing a sentence. Id . at 391.

The Court discussed how its decision should be applied in othe r cases where, as here, review is for plain error affec ting substantial rights. The Co urt stated that in cases where the “facts admitted by a defendant or found by a jury were insufficient to assess the minimum number of OV points necessary forthe defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced[,] . . . an unconstitutiona l constraint [will have] actually impaired the defendant’s Sixth Amendment right. Id . at 395 (emphasis in original). Where the
defendant demonstrates such a cons traint and the defendant was not subject to an upward departure from the guidelines range, he has made a “showing of the potential for plain error
sufficient to warrant remand to t he trial court for further inq uiry.” Id

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In this case, we agree that judicial fact-finding was necessar y to the trial court’s assessment of (1) 15 points for OV 5, MCL 777.35(1)(a) (serious psychological injury to a victim’s family), (2) 10 points for OV 14, MCL 777.44(1)(a) (of fender was a leader in a multiple offender situation), and (3) 10 points for OV 19, MCL 777.49(c) (offender interfered with or attempted to interfere with the administration of justice). Mo reover, the scoring of those variables placed defendant in OV Level III instead of OV Level II on the applicable sentencing grid for second-degree murder. MCL 777.61. A remand for furth er inquiry regarding defendant’s sentence is appropriate.

Defendant’s convictions are affirmed but this case is remanded for further sentencing proceedings in accordance with Lockridge . We do not retain jurisdiction.

/s/ Mark T. Boonstra
/s/ Patrick M. Meter /s/ Jane M. Beckering