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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 21, 2015

v No. 319349

Kent Circuit Court JAHLEEL AMON HOSKINS, LC Nos. 13-005609-FC;

13-005610-FH Defendant-Appellant.

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

P ER C URIAM

.

Defendant appeals as of right his convictions by a jury in LC No. 13-005609-FC for assault with intent to do great bodily harm (AGBH), MCL 750.84, and in LC No. 13-005610-FH for perjury, MCL 767A.9(1)(b). The lower court cases were cons olidated for trial. The trial court sentenced defendant to 25 to 75 years’ imprisonment for A GBH as a fourth-offense habitual offender and to 260 months’ to 50 years’ imprisonment for perjury. We affirm.

Defendant initiated a confrontation with the victim, Kenneth H arris, at a nightclub, and

then stabbed the victim with a box cutter outside the club. Th e victim received treatment for five stab wounds to his chest, arm, and back. In statements under o ath to police in connection with an investigative subpoena, 1 defendant denied being at the club on the night in question an d denied having any sort of alte rcation with the victim.

Defendant asserts that he is entitled to a new trial because t he trial court declined to instruct the jury on felonious assault as an alternative to the charged AGBH offense. We review legal questions surrounding a clai m of instructional error de n ovo, but we review for an abuse of discretion a trial court’s determination that a jury instructio n did not apply to the facts of the

case. People v Dupree , 486 Mich 693, 702; 788 NW2d 399 (2010).

A trial court may instruct the jury on an uncharged offense on ly if that offense is a necessarily included lesser offense of the charged offense. MC L 768.32(1); People v Nyx , 479

1 The investigative subpoena was related to a murder; the partie s stipulated to keep the nature of the main focus of the subpoena from the jury.-2- Mich 112, 119; 734 NW2d 548 (2007). We compare the elements of each offense to determine whether one offense is a necessarily included lesser offense of another. Id . at 117-121. When the elements of the greater offense completely subsume those of the lesser, the latter offense is a necessarily included lesser offense of the former. See id. at 118 n 13. In comparing AGBH, MCL 750.84(1), and felonious assault, MCL 750.82(1), it is appa rent that the elements of felonious assault are not comple tely subsumed by AGBH. Felonio us assault requires the use of a dangerous weapon while AGBH does not. Felonious assault is not a necessarily included lesser offense of AGBH, and thus defendant was not entitled to a jury instruction on felonious assault. The trial court properly declin ed to instruct the jury on felon ious assault.

Defendant next argues that his 25-year mandatory minimum sente nce for AGBH pursuant to the fourth-offense habitual offender statute, MCL 7 69.12(1)(a), violates the doctrine of separation of powers because the judiciary, according to def endant, should determine the appropriate sentence.

Defendant’s issue is moot in light of his concurrent sentence of 50 to 100 years’ imprisonment for a plea to second-degree murder in a separate c ase. Defendant appealed that sentence to the Michigan Supreme Court, which denied leave to a ppeal on February 3, 2015. People v Hoskins , 497 Mich 955; 858 NW2d 425 (2015). Because of defendant’s co ncurrent 50- year sentence in that case, reversal of his sentence in the pre sent case would have no practical legal effect in the case before us, and the issue is therefore moot. 2 See People v Richmond , 486 Mich 29, 34; 782 NW2d 187 (2010), am ended on rehearing 486 Mich 1041 (2010), amended 784 NW2d 204 (2010) (discussing mootness). Further, defendant has not shown that his separationof-powers claim presents an exception to the mootness doctrine as an issue “of public significance that is likely to recur, yet evade judicial review .” Id . (citation and quotation marks omitted). Indeed, any defendant receiving a 25-year mandatory minimum sentence as a fourthoffense habitual offender under MCL 769.12(1)(a) could raise th e same separation-of-powers argument. Accordingly, we declin e to consider defendant’s moot claim.

Affirmed.

/s/ Patrick M. Meter /s/ David H. Sawyer

/s/ Mark T. Boonstra

2 In his appellate brief, dated April 29, 2014, defendant states , in arguing against mootness, that he “hopes to pursue a sentencing appeal in the [other case].” As noted, the Michigan Supreme Court denied leave to appeal in that case on February 3, 2015.