-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 14, 2015 

v No. 321846 

Kent Circuit Court 

ZEBULON TIMOTHY NESTER, LC No. 13-009718-FC 

 Defendant-Appellant. 

Before: SERVITTO, P.J., and BECKERING and BOONSTRA, JJ. 

PER CURIAM. 

 Defendant was convicted, following a jury trial, of assault with intent to rob while 

unarmed, MCL 750.88. The trial court sentenced defendant to 5 years and 6 months’ to 15 

years’ imprisonment. Defendant appeals by right. We affirm. 

I. PERTINENT FACTS AND PROCEDURAL HISTORY 

 Defendant shot the victim during a house party, resulting in wounds to the victim’s left 

arm and hip. The prosecution charged defendant with assault with intent to rob while armed, 

felonious assault, and felony-firearm. At trial, defendant asserted that the shooting occurred as a 

result of a botched drug deal. He testified that the victim drew a handgun on defendant, and that 

defendant accidentally discharged the firearm while disarming the victim. The victim and 

several other witnesses testified that defendant initially pointed a handgun at the victim, a 

struggle ensued for the gun, and the victim was shot. The jury acquitted defendant of the 

charged offenses, finding him guilty of a lesser included offense of assault with intent to rob 

while unarmed. 

 At sentencing, defendant objected to the assessment of 25 points for offense variable 

(OV) 1 (aggravated use of a weapon), five points for OV 2 (lethal potential of the weapon used 

or possessed), and 25 points for OV 3 (physical injury to the victim), because defendant was 

acquitted of the charges of which possession of a weapon was an element. Specifically, 

defendant argued that the jury “didn’t find [defendant] had that gun at the time.” The trial court 

agreed with the scoring of OV 1, as “clearly a firearm was discharged at or toward a human 

being, and whoever brought the gun to the party, it wound up being shot at [the victim], and he 

got rather badly wounded in the process.” The trial court also found that OV 2 was properly 

scored because the weapon was a pistol. Finally, the trial court agreed with the assessment of 25 

points for OV 3 because “we clearly have a life threatening injury occurring to a victim.” This 
-2- 

appeal followed. On appeal, defendant only challenges the application of these offense variables 

to his minimum sentence. 

II. STANDARD OF REVIEW 

 The proper application of the legislative sentencing guidelines is a question of law that 

we review de novo. People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008). We review 

the factual determinations underlying a trial court’s offense variable assessment for clear error; 

such determinations must be supported by a preponderance of the evidence. People v Hardy, 

494 Mich 430, 438; 835 NW2d 340 (2013). 

III. ANALYSIS 

 Defendant challenges the trial court’s assessment of 25 points for offense variable (OV) 

1, five points for OV 2, and 25 points for OV 3. Defendant argues that because the jury 

acquitted him of any offense involving possession or use of a weapon, these OVs are 

inapplicable, and the trial court therefore erred in scoring them. 

 Defendant’s argument is without merit. Assault with intent to rob while unarmed is a 

crime against a person. MCL 777.16d. MCL 777.22(1) instructs that a trial court must score 

OVs 1, 2, and 3, amongst others, for all crimes against a person. Accordingly, the trial court was 

required to score OVs 1, 2, and 3. Moreover, when applying the sentencing guidelines, “[a] 

sentencing court may consider all record evidence before it,” including trial testimony. People v 

Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993). Provided that the trial 

court’s scoring of the guidelines is supported by record evidence, it “need not be consistent with 

the jury verdict.” People v Perez, 255 Mich App 703, 712; 662 NW2d 446 (2003). A sentencing 

court may also “consider facts concerning . . . even acquittals, provided that the defendant is 

afforded the opportunity to challenge the information and, if challenged, it is substantiated by a 

preponderance of the evidence.” People v Golba, 273 Mich App 603, 615; 729 NW2d 916 

(2007). Only facts (other than the fact of a prior conviction) that “increase the penalty for a 

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond 

a reasonable doubt.” People v Althoff, 280 Mich App 524, 540; 760 NW2d 764 (2008); see also 

People v Herron, 303 Mich App 392, 399; 845 NW2d 533 (2013), lv held in abeyance 846 

NW2d 924 (2014); People v Lockridge, 304 Mich App 278, 284; 849 NW2d 388 lv granted 496 

Mich 852 (2014) (lead opinion by O’Connell, J.). 

 Defendant’s sentence is within the statutory maximum of 15 years’ imprisonment for 

assault with intent to rob while unarmed. MCL 750.88. Therefore, the facts underlying the trial 

court’s scoring need only be supported by a preponderance of the evidence. Golba, 273 Mich 

App at 615; Hardy, 494 Mich at 438. Although the jury acquitted defendant of those charges 

that required a finding, beyond a reasonable doubt, that defendant had possessed or used a 

firearm, the trial court was required to score OVs 1, 2, and 3 by looking at defendant’s conduct 

during the crime for which he was convicted. So long as a preponderance of record evidence 

supported the facts underlying the trial court’s assessments, Hardy, 494 Mich at 438, there was 

no error. 
-3- 

OV 1 instructs trial courts to assess 25 points where “[a] firearm was discharged at or 

toward a human being.” MCL 777.31(1)(a). It is undisputed that a firearm was discharged at the 

victim. Numerous witnesses testified in support of this; defendant admitted that he “pried” the 

firearm from the victim, and then “accidentally shot him.” The victim suffered gunshot wounds. 

A preponderance of the evidence thus supports a finding that “[a] firearm was discharged at or 

toward a human being.” MCL 777.31(1)(a). 

OV 2 directs trial courts to assess five points where “[t]he offender possessed or used a 

pistol.” MCL 777.32(1)(d). Multiple witnesses testified that they saw defendant with a pistol, 

and that he shot the victim with it. Defendant also stated in his testimony that he had possession 

of the pistol at the time it was fired. Accordingly, a preponderance of the evidence supports a 

finding that defendant “possessed or used a pistol.” MCL 777.32(1)(d). 

Finally, OV 3 instructs trial courts to assess 25 points where “[l]ife threatening or 

permanent incapacitating injury occurred to a victim.” MCL 777.33(1)(c). Testimony at trial 

established that the victim required emergency medical services. The victim indicated in his 

victim impact statement that, eight months after the shooting, the bullet was still lodged in his 

pelvis, he still experienced difficulty grasping and carrying things with his left arm, and he had 

problems walking any distance. In light of the victim’s ongoing incapacitating injury, a 

preponderance of the evidence supports a finding that he suffered a “[l]ife threatening or 

permanent incapacitating injury.” MCL 777.33(1)(c). A preponderance of the evidence thus 

supported the trial court’s scoring assessments. 

 Because the trial court’s scoring of the guidelines need not be consistent with the jury’s 

verdict, Perez, 255 Mich App at 712, and a preponderance of record evidence supported the trial 

court’s scoring of OVs 1, 2, and 3, there was no error and defendant is not entitled to 

resentencing. Hardy, 494 Mich at 438. 

 Affirmed. 

/s/ Deborah A. Servitto 

/s/ Jane M. Beckering 

/s/ Mark T. Boonstra