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

revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED

August 17, 2023

v No. 361169

Monroe Circuit Court

JERMAINE LAMONT BREWTON, LC No. 2021-246232-FC

Defendant-Appellant.

Before: O’BRIEN, P.J., and CAVANAGH and MARKEY, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions and sentences for six counts of 

assault with intent to commit murder, MCL 750.83, and one count each of felon in possession of 

a firearm, MCL 750.224f, felon in possession of ammunition, MCL 750.224f(6), and possession 

of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was 

sentenced, as a fourth-offense habitual offender, MCL 769.12, to 480 to 680 months’

imprisonment for each of the six assault with intent to commit murder convictions, 76 to 480 

months’ imprisonment for the felon in possession of a firearm conviction, 76 to 480 months’

imprisonment for the felon in possession of ammunition conviction, and 24 months’ imprisonment 

for the felony-firearm conviction. We affirm.

I. BACKGROUND

This case arises from a shooting that took place near the intersection of Stewart Road and 

Telegraph Road in Monroe, Michigan. Defendant was arrested for his suspected involvement, and 

after a four-day jury trial, was convicted as one of the shooters.

Alishia Jones witnessed a physical altercation involving defendant outside of a grocery 

store on February 1, 2021. Defendant and Kelvin Harris (defendant’s codefendant) were involved 

in a fistfight with people Jones was closely associated with. During the fight, Jones laughed at 

defendant and Harris because they were losing the fight. Jones also recorded the fight and 

uploaded a video of it to social media. After the fight, Jones was worried about retaliation from 

defendant and Harris and was “concerned about [her] kids’ safety and [her] own.” She then called 

her friend Alexanderia Alamo-Cruz and asked her to help transport her children to a hotel to spend 
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the night. Alamo-Cruz later arrived at Jones’s house near Telegraph Road and Stewart Road. As 

they left Jones’s house, Jones drove with three of her children in her car, and Alamo-Cruz drove a 

second car with three other adults and two of Jones’s other children. Jones left her house first, and 

Alamo-Cruz followed behind her. After Jones turned on to Telegraph Road, she realized AlamoCruz’s car was no longer behind hers. Jones then pulled into a gas station to wait for Alamo-Cruz. 

While at the gas station, someone yelled that there had been a shooting down the street. Jones 

immediately got into her car and drove back the way she came. At the intersection of Stewart 

Road and Telegraph Road, Jones saw Alamo-Cruz’s car stopped at a corner. Alamo-Cruz was 

“slumped over in her car” in the driver’s seat. Alamo-Cruz was unconscious but still breathing. 

A bystander called 911, and the police arrived shortly after.

Andrew Gannon testified that, on the day of the shooting, he was at a gas station on the 

corner of Telegraph Road and Stewart Road. While filling his car, Gannon saw “somebody 

walking on the street . . . [and] start shooting into [Alamo-Cruz’s] car.” Gannon then “ducked 

down behind [his] car” and called 911. Gannon witnessed the shooter exit a “dark[-]colored 

vehicle.” While he only saw one person exit the dark-colored vehicle before he ducked down 

behind his own car, Gannon believed he also heard “another shooter” involved in the shooting.

On February 2, 2021, a black Nissan was found in Elizabeth Woods trailer park in Newport, 

Michigan. Evidence found in the black Nissan was tested; the fingerprints from a magazine body 

matched those of Harris, and fingerprints on a cigarette pack matched those of defendant. Further, 

13 firearm casings from the shooting were examined; six of the bullets had been fired from one 

gun and seven had been fired from another. Additionally, data mapping from defendant’s 

cellphone records showed that defendant’s cellphone was at the grocery store where the fight 

occurred at 6:15 p.m. on February 1, 2021. Then, defendant’s cellphone was recorded at the scene 

of the shooting at 10:27 p.m. The shooting itself occurred at 10:26 p.m. Further, defendant’s 

cellphone was in the area of the Elizabeth Woods trailer park at 10:36 p.m.

Alamo-Cruz testified that, on February 1, 2021, Jones told her about a fight that had 

occurred earlier in the day involving defendant and Harris and that she was scared for her 

children’s safety. Alamo-Cruz agreed to help Jones transport her children to a nearby hotel for 

them to spend the night and drove to Jones’s house to pick up the children. Once at Jones’s house, 

Alamo-Cruz noticed an occupied, running, dark-colored vehicle with its lights on parked across 

the street. Alamo-Cruz saw at least two men inside the vehicle but could not identify the occupants 

at first. She testified the men were watching her as she, three other adults, and Jones’s two minor 

children loaded into Alamo-Cruz’s car.

As Alamo-Cruz drove her car away from Jones’s house sometime after 10:00 p.m., she 

noticed the dark-colored vehicle was following her. Then, when Alamo-Cruz stopped at a red 

light on Telegraph Road, the dark-colored car following her stopped and two men jumped out of 

the car and started shooting at her vehicle. One of the men approached the driver’s side window 

holding a gun; Alamo-Cruz identified this man as Harris. The second man stood behind her car; 

Alamo-Cruz could not see his face but saw that he held “a long gun.” She recognized the second 

man’s voice as defendant’s. Alamo-Cruz stated she had known defendant for at least five months 

before the incident and had interacted with him multiple times. She recognized defendant’s voice 

because he had a specific way of talking that she was familiar with. Alamo-Cruz was shot in the 

shoulder and head during the incident and had “blacked out” shortly after she recognized Harris 
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and defendant as the shooters. Alamo-Cruz was then taken to the hospital and treated for lifethreatening injuries. Alamo-Cruz underwent surgery to remove the bullet from her head; however, 

some fragments of the bullet still remained in her head at the time of the trial.

After its deliberations, the jury convicted both defendant and Harris of assault with intent 

to commit murder, felon in possession of a firearm, felon in possession of ammunition, and felonyfirearm. In April 2022, a sentencing hearing was held for both defendant and Harris. The 

minimum sentencing guidelines range for the assault with intent to commit murder convictions

was 270 to 900 months’ imprisonment. The trial court acknowledged that Harris “was the leader”

and the “driving force” of the shooting. Defendant then urged the trial court to consider 

defendant’s lesser role during the shooting when imposing defendant’s sentences. At the close of 

the hearing, as relevant, the trial court sentenced both defendant and Harris to 480 to 680 months’

imprisonment for each of the assault with intent to commit murder convictions, to be served 

concurrently.

II. SUFFICIENCY OF THE EVIDENCE

Defendant argues there was insufficient evidence to establish beyond a reasonable doubt 

that he committed the crimes of assault with intent to commit murder, felon in possession of a 

firearm, felon in possession of ammunition, and felony-firearm. Specifically, defendant argues 

there was insufficient evidence to establish the element of identification for each crime. We 

disagree.

We “review de novo a challenge on appeal to the sufficiency of the evidence.” People v 

Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). We “examine the evidence in a light 

most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine 

whether a rational trier of fact could have found that the essential elements of the crime were 

proved beyond reasonable doubt.” Id. at 196. “Circumstantial evidence and reasonable inferences 

arising therefrom may constitute proof of the elements of the crime.” People v Head, 323 Mich 

App 526, 532; 917 NW2d 752 (2018) (quotation marks and citation omitted). “With regard to an 

actor’s intent, because of the difficulties inherent in proving an actor’s state of mind, minimal 

circumstantial evidence is sufficient.” People v McKewen, 326 Mich App 342, 347 n 1; 926 NW2d 

888 (2018) (quotation marks and citation omitted).

First, “[t]he 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.” Ericksen, 288 

Mich App at 195-196 (quotation marks and citation omitted). In this case, multiple individuals 

shot at Alamo-Cruz’s stopped car full of women and children. Defendant contends there was 

insufficient evidence to establish that he was involved in the shooting because there was no 

evidence that anyone directly saw him at the scene of the shooting. However, considering the 

circumstantial evidence and reasonable inferences made therefrom, and examining the evidence 

in a light most favorable to the prosecution, we conclude that there was sufficient evidence to 

establish, beyond a reasonable doubt, that defendant shot at Alamo-Cruz and the other occupants 

of her vehicle with the intent to kill.

The prosecution established defendant lost a fistfight and that Jones uploaded to social 

media a video of the fight with Jones laughing at defendant. Testimony also established that two 
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men in a dark-colored vehicle were parked outside of Jones’s house and watched Jones and AlamoCruz load Jones’s children into Alamo-Cruz’s car. The dark-colored vehicle followed AlamoCruz’s car when they left Jones’s house, and once Alamo-Cruz’s car stopped at an intersection, 

two men got out of the dark-colored vehicle and began shooting at Alamo-Cruz’s car. Both men 

were holding a gun, and Alamo-Cruz identified the second man as defendant based on his voice. 

Alamo-Cruz recognized defendant’s voice because she had known him for at least five months 

and recognized defendant’s specific way of talking. The bystander who called 911 also testified 

that, while he had ducked down behind his car after the shooting started, he believed there had 

been two shooters involved in the shooting.

Further, defendant’s fingerprints were on a cigarette pack that was found in a black Nissan, 

which was abandoned in the Elizabeth Woods trailer park. Firearm casings from the shooting 

were also tested; the police determined that the bullets had been fired from two different guns. 

Additionally, mapping data from defendant’s cellphone showed that, on the day of the shooting, 

defendant had been at the grocery store where the fight occurred at 6:15 p.m., at the scene of the 

shooting at 10:27 p.m., and at the Elizabeth Woods trailer park at 10:36 p.m. The shooting 

occurred at 10:26 p.m.

Circumstantial evidence and reasonable inferences may be used to establish the elements 

of a crime. Head, 323 Mich at 532. We conclude that all of this evidence, together with the 

reasonable inferences therefrom, is sufficient to establish that defendant was one of the men who 

shot at Alamo-Cruz’s vehicle. Further, because minimal circumstantial evidence is sufficient to 

prove a defendant’s state of mind, see McKewen, 326 Mich App at 347 n 1, defendant’s act of 

firing a gun at a car full of people establishes that he intended to kill the occupants within the 

vehicle. This is further evidenced by the fact that Alamo-Cruz was hospitalized for her injuries 

and was in critical condition during her surgery to remove one of the bullets from her head. There 

is also circumstantial evidence to establish that defendant knew the car was full of people, 

including Jones’s children, based on defendant getting out of the same dark-colored vehicle that 

had been parked across from Jones’s house as Jones and Alamo-Cruz loaded everyone into AlamoCruz’s car. Thus, we conclude that all of the elements of assault with intent to commit murder 

were established beyond a reasonable doubt.

Next, the elements of felon in possession of a firearm are “(1) the defendant is a felon who 

possessed a firearm (2) before his right to do so was formally restored under MCL 28.424.”

1

 

People v Bass, 317 Mich App 241, 267-268; 893 NW2d 140 (2016). Similarly, a defendant is 

guilty of felon in possession of ammunition if he “possesses, uses, transports, sells, carries, ships, 

or distributes ammunition” before his right to do so has been formally restored under MCL 28.424. 

MCL 750.224f(6); see also MCL 750.224f(4). As noted above, there was sufficient evidence to 

establish that defendant possessed a firearm and ammunition during the shooting. Alamo-Cruz 

testified that Harris approached her car holding a gun and that a second man also stood behind the 

car holding “a long gun.” Alamo-Cruz identified the second man as defendant based on his voice. 

The police also concluded that, based on the examination of the firearm casings, which were found 

 

1 MCL 28.424(4) describes that the circuit court may restore an individual’s right to possess a 

firearm under certain circumstances.
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in the dark-colored vehicle along with the cigarette pack with defendant’s fingerprint, the bullets 

fired during the shooting came from two different guns. Thus, we conclude there was sufficient 

circumstantial evidence to establish that defendant possessed a firearm and ammunition. Further, 

defendant had been previously convicted of a felony. There is no evidence that defendant’s right 

to possess a firearm or ammunition has been formally restored by a court.

Next, defendant argues that there was insufficient evidence to establish beyond a 

reasonable doubt that defendant committed felony-firearm. We disagree. “The elements of 

felony-firearm are that the defendant possessed a firearm during the commission of, or the attempt 

to commit, a felony.” Bass, 317 Mich App at 268-269 (quotation marks and citation omitted). 

Here, as we concluded above, there was sufficient evidence to establish that defendant committed 

the felony of assault with intent to murder, which was the underlying offense for the felony-firearm 

charge. Further, for the reasons discussed above, we conclude there was sufficient evidence to 

establish that defendant possessed a firearm during the commission of these felonies.

Defendant also argues that his convictions constitute a violation of the Fifth Amendment 

because the standard of proof in a criminal prosecution (proof beyond a reasonable doubt) is a 

constitutional guarantee provided by the Due Process Clause. The Fifth Amendment states that 

no person shall be “deprived of life, liberty, or property, without due process of law.” US Const, 

Am V. “[T]he Due Process Clause protects the accused against conviction except upon proof 

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 

charged.” In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). However, as 

discussed above, we conclude the prosecution established all elements of assault with intent to 

commit murder, felon in possession of a firearm, felon in possession of ammunition, and felonyfirearm beyond a reasonable doubt, and thus, defendant’s Due Process rights were not violated.

III. SENTENCING

Defendant argues that he is entitled to a reasonableness review of his assault with intent to 

commit murder sentences, and that the sentences are cruel and unusual punishment. We disagree.

For sentences that do not depart from the recommended minimum sentencing guidelines 

range, “the minimum sentence must be affirmed unless there was an error in scoring or the trial 

court relied on inaccurate information.” People v Schrauben, 314 Mich App 181, 196; 886 NW2d 

173 (2016); see also MCL 769.34(10). Absent an error in scoring or a reliance on inaccurate 

information, this Court’s reasonableness review of sentences within the minimum sentencing 

guidelines range is restricted by MCL 769.34(10). See id.

Defendant argues that People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), requires 

this Court to review the sentences imposed by the trial court for reasonableness. Defendant is 

correct that Lockridge held that the sentencing guidelines are no longer mandatory and are 

advisory, only. See Lockridge, 498 Mich at 391. Trial court judges may now exercise discretion 

and impose sentences that depart from the guidelines. See id. “A sentence that departs from the 

applicable guidelines range will be reviewed by an appellate court for reasonableness.” Id. at 392.

However, defendant is incorrect that his sentences are entitled to a reasonableness review 

in this case. Importantly, the Lockridge reasonableness review applies to sentences that depart
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from the minimum sentencing guidelines range. See id. Under MCL 769.34(10), “[i]f a minimum 

sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that 

sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines 

or inaccurate information relied upon in determining the defendant’s sentence.”

In Schrauben, the defendant’s recommended minimum sentencing guidelines range was 0 

to 17 months’ imprisonment. Schrauben, 314 Mich App at 195. The trial court sentenced the 

defendant to a minimum of 16 months’ imprisonment, which the defendant appealed. Id. at 195-

196. Citing, MCL 769.34(10), the Schrauben Court affirmed the sentence because, “[w]hen a trial 

court does not depart from the recommended minimum sentencing range, the minimum sentence 

must be affirmed unless there was an error in scoring or the trial court relied on inaccurate 

information.” Id. at 196. This Court stated that, “[n]otably, Lockridge did not alter or diminish 

MCL 769.34(10) . . . .” Id. at 196 n 1. The defendant did not argue that there was an error in 

scoring or that the court relied on inaccurate information; thus, because the defendant’s minimum 

sentence was within the recommended minimum sentencing guidelines range, this Court affirmed 

the sentence as was required under MCL 769.34(10). Id. at 196.

Likewise, in Steanhouse, the Michigan Supreme Court made clear that the reasonableness 

and proportionality review standards apply to sentences that depart from the recommended 

guidelines range. People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). The 

Steanhouse Court noted:

Because both defendants received departure sentences, we do not reach the 

question of whether MCL 769.34(10), which requires the Court of Appeals to 

affirm a sentence that is within the guidelines absent a scoring error or reliance on 

inaccurate information in determining the sentence, survives Lockridge. [Id. at 471 

n 14.]

Thus, we conclude that, for sentences that do not depart from the recommended minimum 

sentencing guidelines range, MCL 769.34(10) still controls.

In this case, the recommended minimum sentencing guidelines range for defendant’s 

convictions of assault with intent to commit murder was 270 to 900 months’ imprisonment. On 

these convictions, the trial court sentenced defendant to minimum terms of 480 months’

imprisonment. Defendant’s minimum sentences of 480 months’ imprisonment are within the 

recommended guidelines range; the trial court did not make a departure when imposing the 

minimum sentences. Defendant does not allege there was an error in scoring during his sentencing. 

Additionally, there is no evidence the trial court relied on inaccurate information during 

sentencing. Thus, because defendant does not allege a scoring error, and because the trial court 

did not rely on inaccurate information in scoring, defendant’s sentences are not subject to review 

for reasonableness.

Further, the imposed sentences for defendant’s assault with intent to commit murder 

convictions are presumptively proportionate. A “sentence within the guidelines range is 

presumptively proportionate, and a proportionate sentence is not cruel or unusual punishment.” 

People v Posey, 334 Mich App 338, 358; 964 NW2d 862 (2020). “A defendant can only overcome 

that presumption by presenting unusual circumstances that would render a presumptively 
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proportionate sentence disproportionate.” Id. Defendant argues his age makes the sentences

imposed disproportionate because “a now [33] year old man will spend at least [42] years of his 

life in prison.” However, we conclude that defendant being 33 years old is not an unusual 

circumstance. Further defendant argues his sentences are disproportionate because his 

codefendant was sentenced to the exact same sentences as defendant, even though the trial court 

acknowledged his codefendant was the “leader” of the incident. However, “the trial court is not 

required to consider the sentence of a codefendant” during a defendant’s sentencing. People v 

Colon, 250 Mich App 59, 64; 644 NW2d 790 (2002). “Sentences must be individualized and 

tailored to fit the circumstances of the defendant and the case.” Id. (quotation marks and citation 

omitted). Thus, we conclude the sentencing of his codefendant does not affect defendant’s 

sentences or make his sentences less proportionate or reasonable.

Defendant further argues that his sentences violate the Eighth Amendment of the United 

States Constitution, and Article 1, § 16, of Michigan’s 1963 Constitution. We disagree.

“To preserve a claim that the defendant’s sentences were unconstitutionally cruel or 

unusual, the defendant must raise the claim in the trial court.” People v Burkett, 337 Mich App 

631, 635; 976 NW2d 864 (2021). Here, defendant did not raise this claim below, and thus, this 

claim is unpreserved. When an issue is not properly preserved for appellate review, we review the 

unpreserved issue for plain error affecting a defendant’s substantial rights. See People v Noble, 

238 Mich App 647, 658; 608 NW2d 123 (1999). “[T]he defendant bears the burden to show that 

(1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error prejudiced 

substantial rights, i.e., the error affected the outcome of the lower court proceedings.” People v 

Cameron, 291 Mich App 599, 618; 806 NW2d 371 (2011).

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive 

fines imposed, nor cruel and unusual punishments inflicted.” US Const, Am VIII. Similarly, the 

Michigan Constitution provides, “Excessive bail shall not be required; excessive fines shall not be 

imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably 

detained.” Const 1963, art 1, § 16. Further, “[t]he Michigan Constitution prohibits cruel or

unusual punishment . . . whereas the United States Constitution prohibits cruel and unusual 

punishment.” Burkett, 337 Mich App at 636 (quotation marks and citation omitted). Thus, “[i]f a 

punishment passes muster under the state constitution, then it necessarily passes muster under the 

federal constitution.” Id. (quotation marks and citation omitted).

Defendant argues that the disproportionality of his sentences constitutes cruel and unusual 

punishment. However, “the Eighth Amendment contains no proportionality guarantee.” Harmelin 

v Michigan, 501 US 957, 965; 111 S Ct 2680; 115 L Ed 2d 836 (1991). “[T]he drafters of the 

Declaration of Rights did not explicitly prohibit ‘disproportionate’ or ‘excessive’ punishments. 

Instead, they prohibited punishments that were ‘cruell and unusuall [sic].’ ” Id. at 967. The Court 

went on to note that, while all disproportionate punishments may be cruel, they are not always 

unusual. See id.

“Under the Michigan Constitution, the prohibition against cruel or unusual punishment 

includes a prohibition on grossly disproportionate sentences.” Burkett, 337 Mich App at 636

(quotation marks, alterations, and citation omitted). However, a sentence within the guidelines 

range is “presumptively proportionate, and a proportionate sentence is not cruel or unusual.” 
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People v McFarlane, 325 Mich App 507, 538; 926 NW2d 339 (2018) (quotation marks and citation 

omitted). Once again, “[i]n order to overcome the presumption that the sentence is proportionate, 

a defendant must present unusual circumstances that would render the presumptively proportionate 

sentence disproportionate.” Burkett, 337 Mich App at 637 (quotation marks and citation omitted).

In this case, we conclude the minimum sentences of 480 months’ imprisonment are not 

cruel or unusual. Defendant was found guilty of assault with intent to commit murder and the 

recommended minimum sentencing guidelines range was 270 to 900 months’ imprisonment. The 

trial court did not depart from that recommendation and instead imposed minimum sentences of 

480 months’ imprisonment. Further, because defendant’s minimum sentences were within the 

recommended guidelines range, the sentences are presumptively proportionate. See McFarlane, 

325 Mich App at 538. As discussed above, there are not any unusual circumstances that are 

sufficient to overcome this presumption. Thus, defendant’s minimum sentences are presumptively 

proportionate, and proportionate sentences are not cruel or unusual punishment.

Affirmed.

/s/ Colleen A. O’Brien

/s/ Mark J. Cavanagh

/s/ Jane E. Markey