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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 5, 2016

v No. 324018 Wayne Circuit Court THEODORE PAUL WAFER, LC No. 14-000152-FC

Defendant-Appellant.

Before: S TEPHENS , P.J., and H OEKSTRA and S ERVITTO , JJ.

P ER C URIAM

. A jury convicted defendant of second-degree murder, MCL 750.31 7, statutory involuntary manslaughter (discharg e of an intentionally aimed f irearm resulting in death), MCL 750.329, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to concurrent pr ison terms of 15 to 30 years for the second-degree murder convicti on and 7 to 15 years for the m anslaughter conviction, to be served consecutive to a two-year term of imprisonment for the f elony-firearm conviction. Defendant appeals as of right. For the reasons explained in th is opinion, we affirm defendant’s convictions but remand for Crosby 1 proceedings in accordance with People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015).

On November 2, 2013, at approximately 4:30 a.m., defendant sho t and killed 19-year-old Renisha McBride on the front por ch of defendant’s home in Dearb orn Heights. McBride had been in a car accident before the shooting, and it is uncertain how or why she came to be at defendant’s home. She had marijuana in her system and her bloo d alcohol level was .218. Defendant admitted that he shot McBride, but he asserted at tri al that he did so in self-defense because he thought McBride was trying to break into his home. However, the evidence showed that McBride was not armed at the time of the shooting, and she possessed no burglary tools. The jury convicted defendant of second-degree murder, statutoryinvoluntary manslaughter, and felony-firearm. The trial court sentenced defendant as noted above. Defendant now appeals as of right.

1 United States v Crosby , 397 F3d 103 (CA 2, 2005).-2- I. JURY INSTRUCTIONS

Defendant first argues that the trial court erred when it deni ed his request for a jury instruction based on MCL 780.951(1), which w ould have afforded him the benefit of a rebuttable presumption that he had an honest and reasonable belief that im minent death or great bodily harm would occur. Specifically, defendant maintains this instr uction was warranted because there was evidence to support the assertion that McBride was in the process of breaking and entering at the time of the shooting.

We review de novo questions of law, and we review for an abuse of discretion a trial court’s determination whether a jury instruction applies to the facts of the case. People v Dupree , 486 Mich 693, 702; 788 NW2d 399 (2010). “A defendant in a cr iminal trial is entitled to have a properly instructed jury consider the evidence agains t him or her.” People v Dobek

, 274 Mich App 58, 82; 732 NW2d 546 (2007). “When a defendant re quests a jury instruction on a theory or defense that is supported by the evidence, the tria l court must give the instruction.” People v Riddle , 467 Mich 116, 124; 649 NW2d 30 (2002). “However, if an appli cable instruction was not given, the de fendant bears the burden of es tablishing that the trial court's failure to give the requested instruction resulted in a miscarr iage of justice.” Id. Thus, “[r]eversal for failure to provide a jury instruction is unwarr anted unless it appears that it is more probable than not that the erro r was outcome determinative.” People v McKinney , 258 Mich App 157, 163; 670 NW2d 254 (2003).

A successful claim of self-def ense “requires a finding that th e defendant acted intentionally, but that the circumstances justified his actions .” Dupree , 486 Mich at 707 (citation and quotation marks omitted). The Self-Defense Act (SDA), MCL 780.971 et seq. , “codified the circumstances in which a person may use deadly force in self-de fense . . . without having the duty to retreat.” Dupree , 486 Mich at 708. MCL 780.972(1)(a) provides:

(1) An individual who has not or is not engaged in the commiss ion of a crime at the time he or she us es deadly force may use deadly fo rce against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the u se of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or t o another individual.

In this case, the trial court instructed the jury on self-defe nse, including the grounds for self-defense, the prosecutor’s b urden of proof regarding self-d efense, the fact that an individual in his home has no duty to retre at, and the fact that a porch i s considered part of a home. In addition to the instructions given, defendant argues on appeal he was also entitled to a jury instruction based on MCL 780.951(1), which provides a rebuttabl e presumption that a defendant who uses deadly force acted with “an honest and reasonable beli ef that imminent death . . . or great bodily harm to himself . . . will occur” if both of the following apply:

(a) The individual against whom deadly force or force other th an deadly force is used is in the process of breaking and entering a dwelling or business-3- premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still prese nt in the dwelling or business premises, or is unlawfully attempting to remove ano ther individual from a dwelling, business premises, or occupied vehicle against his or her will.

(b) The individual using deadly force or force other than dead ly force honestly and reasonably believes that the individual is engagin g in conduct described in subdivision (a). [Emphasis added.]

Considering the plain language of the statute, these two subsec tions differ in that subsection (a) focuses on the conduct of the person against whom deadly force is used, whereas subsection (b) focuses on the state of mind of the person using deadly force.

In light of defendant’s testimony about his fear arising from the extent of the banging and pounding noise he heard at two different doors of his home, the fact that the banging occurred at such an early hour of the morning, and the fact that there had been other criminal incidents in the neighborhood that summer, we agree that there was sufficient ev idence to support a finding that defendant may have honestly and r easonably believed that a pers on was in the process of breaking and entering his home. See MCL 780.951(1)(b). Howeve r, the fact that defendant may have reasonably perceived McBrid e as attempting to break into h is home does not establish that she was actually trying to do so. Cf. People v Mills , 450 Mich 61, 83; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995) (“People can appear one way to someone else when in actuality there is something else causing them to act the way they are being ob served.”). In other words, the principal dispute in this case concerns whether there was evide nce to support the occurrence of conduct required under subsection (a).

Given the evidence presented at trial, we conclude that the tr ial court did not abuse its discretion when it determined that the evidence did not support the assertion that McBride was actually in the process of breaking and entering when the shoot ing occurred. “A breaking is any use of force, however slight, to access whatever the defendant is entering.” People v Heft , 299 Mich App 69, 76; 829 NW2d 266 (2012). There was evidence that McBride was “banging” on defendant’s front and side doors, which would potentially const itute a “use of force.” Nonetheless, the evidence did not support a finding that McBrid e was attempting to access the house so as to be considered “in the process of breaking and en tering a dwelling.” See MCL 750.115(1); Heft , 299 Mich App at 75-76. On the evening in question, McBride w as extremely intoxicated and she crashed her car. Appearing disorientated, McBride wandered away from the crash site and she somehow made her way to defendant’s home. M cBride had no burglar tools with her at defendant’s house, and there was no damage to the l ocks, door handles, or doors of defendant’s home. At best, the evidence showed that McBride lo udly pounded on defendant’s doors and that the screen in the outer front door had “dropped” down. But, without more, loud ineffectual banging on a door does not support the claim that M cBride was in the process of breaking and entering. Moreover, at the point in time when def endant actually fired the lethal shot, McBride had apparently s topped pounding on the door. Def endant testified that he went to the front door, even though he had last heard banging at the si de door. When he opened it, McBride came around the side of the home and defendant shot her before she could explain her presence. On this record, the evidence does not support the as sertion that McBride was in the process of breaking or entering when she was shot by defendant. Consequently, the trial court-4- did not abuse its discretion by denying defendant’s request for a jury instruction based on MCL 780.951(1). 2

II. PROSECUTORIAL MISCONDUCT

Defendant next argues that several alleged instances of miscon duct by the prosecutors denied him a fair trial. A defendant must “contemporaneously o bject and request a curative instruction” to preserve a cla im of prosecutorial misconduct fo r appellate review. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). Defendant object ed to the prosecutor’s handling of the murder weapon dur ing the prosecutor’s cross-exa mination of defendant. Accordingly, that issue is prese rved. However, he did not obje ct to the remaining instances of alleged misconduct or he did not object on the same basis now p resented on appeal. Therefore, the majority of defendant’s cla ims of misconduct are unpreserve d. See id.

Generally, issues of prosecutorial misconduct are reviewed de novo to determine whether the defendant was denied a fair and impartial trial. Id. However, unpreserved claims of prosecutorial misconduct are revi ewed for plain error affecting substantial rights. People v Gaines , 306 Mich App 289, 308; 856 NW2d 222 (2014). Under this stand ard, “[r]eversal is warranted only when plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputatio n of judicial proceedings.” People v Callon , 256 Mich App 312, 329; 662 NW2d 501 (2003). “Further, we can not find error requiring reversal where a curativ e instruction could have alle viated any prejudicial effect.” Id. at 329-330.

“[A]llegations of prosecutorial misconduct are considered on acase-by-case basis, and the reviewing court must consider the prosecutor’s remarks in c ontext.” Bennett , 290 Mich App at 475. The propriety of a prosecutor’s remarks will depend onthe particular facts of the case, meaning that “a prosecutor's comments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evidence admitt ed at trial.” Callon , 256 Mich App at 330. “Prosecutors are typ ically afforded great latitude regarding their arguments and conduct at trial.” People v Unger , 278 Mich App 210, 236; 749 NW2d 272 (2008).

Defendant first argues that one of the prosecutors committed m isconduct when she held the murder weapon in an unsafe manner such that it was pointed in the direction of the jurors during her cross-examination of defendant. The gun in question was admitted into evidence, it was unloaded at the time of the incident, and, as noted, prosec utors are typically afforded great

2 We note briefly that, even if the trial court should have instructed the jury on the presumption found in MCL 780.951(1), defendant has not shown that it is mor e probable than not that this error affected the outcome of the proceedings. McKinney , 258 Mich App at 163. Defendant admitted that he shot McBride and his only claim was that he di d so in self-defense. However, there was scant evidence of self-defense while, in contrast, th e jury received detailed instructions on defendant’s self-defense theory and the prosecutor presented ample evidence to disprove defendant’s claim of self-defense beyond a reasonable doubt. O n this record, there is not a reasonable probability that the instruction at issue would have affected the outcome.-5- latitude regarding their conduct at trial. Id. Nonetheless, defendant argues that the prosecution’s “grandstanding with the weapon” was improper and deprived him o f a fair trial because at least one of the jurors appeared startled by the prosecutor’s handlin g of the gun. However, in the course of the trial as a whole, we cannot see that the incident deprived defendant of a fair and impartial trial. The incident was brief and isolated, there wa s no apparent intended purpose to scare anyone, and the trial court ordered the attorneys not to point the gun at the jurors during closing arguments. Moreover, d efense counsel in fact used the incident to defendant’s advantage by reminding the jury of the prosecutor’s actions, and the jury ’s reaction, during closing argument, in the context of emphasizing his position that defen dant had brought the gun to the door with him in order to frighten the intruder away because th e weapon was “scary.” Under the circumstances, this isolated incident did not deny defendant a fair trial. Cf. People v Bosca , 310 Mich App 1, 35; 871 NW2d 307 (2015) (finding that the prosecuto r’s demonstration with a circular saw used to threaten t he victims did not deprive the d efendant of a fair trial).

Defendant also argues that the prosecutor misstated the law during closing argument when commenting on the necessarymens rea to support conviction s for the different charged offenses. “A prosecutor’s clear misstatement of the law that r emains uncorrected may deprive a defendant of a fair trial.” People v Grayer , 252 Mich App 349, 357; 651 NW2d 818 (2002). “However, if the jury is correc tly instructed on the law, an er roneous legal argument made by the prosecutor can potentially be cured.” Id. In the instant case, defendant was charged with second-degree murder, common-law manslaughter as a lesser inclu ded offense, and statutory manslaughter under MCL 750.329. Whe n discussing the charged cr imes during closing argument, the prosecutor incorrectly commented that, had the di scharge of the weapon been accidental, defendant would still be guilty of second-degree mu rder. This was not a correct statement of the law because the malice necessary to support se cond-degree murder “is defined as the intent to kill, the intent to cause great bodily harm, o r the intent to do an act in wanton and wilful disregard of the likeli hood that the natural tendency of such behavior is to cause death or great bodily harm.” People v Goecke , 457 Mich 442, 464; 579 NW2d 868 (1998). Contrary to the prosecutor’s framing of the issue, an act done accidentally , or even with gross negligence, would not constitute malice. See id . at 466-467; People v Holtschlag , 471 Mich 1, 21; 684 NW2d 730 (2004); CJI2d 7.1.

However, any error in the prose cution’s explanation of the lawin this regard did not deprive defendant of a fair trial because the trial court prope rly instructed the jury on the elements of second-degree murder and the lesser included offens e of common-law manslaughter and, in particular, the specific mens rea necessary to support a second-degree murder conviction as opposed to the lesser offense of common-law involuntary mans laughter. The jury was further instructed that if there was a conflict between the trial court ’s explanation of the law and that offered by the attorneys, the jury must follow the trial court’ s instructions. Under these circumstances, any misstatement of the law by the prosecutor di d not affect defendant’s substantial rights. See Grayer , 252 Mich App at 357.

Defendant next argues that the pr osecutor misstated the law wh en discussing the elements of statutory involuntary manslaughter by failing to acknowledge that self-defense could be used as a defense to this charge and suggesting that there was “no d ispute” that the elements of this offense had been shown. Our review of the record reveals that the prosecutor merely argued that the elements of the offense had been established, and we see no thing improper in this argument.-6- Moreover, while the prosecutor did not discuss self-defense in relation to this charge, the trial court instructed the jury on self-defense and defense counsel a rgued for the applicability of this defense. Defendant has not s hown plain error and he is not ent itled to relief on this basis.

Defendant also asserts that, with respect to self-defense, the prosecutor misstated the law when she asserted that defendant had other options such as keep ing the door shut and going to “a different part of [his] house” ra ther than engaging with McBrid e. Troublingly, the prosecutor asserted that going to a different part of the house could not be characterized as “retreating.” To the extent the prosecutor suggested that defendant had an oblig ation to retreat to another area of his home, this was improper because a person does not have a du ty to retreat in his or her own home. People v Richardson , 490 Mich 115, 121; 803 NW2d 302 (2011). However, this potentially misleading remark does not entitle defendant to rel ief because elsewhere the prosecutor expressly acknowledged that there is no duty to retr eat in a person’s own home, the trial court instructed the jury that a person does not have a d uty to retreat while in his or her own home, and the jury was informed that a porch is considered part of a home. Given the proper instruction by the trial court, any misstatement by the prosecu tor did not affect defendant’s substantial rights. See Grayer , 252 Mich App at 357.

Next, defendant argues that the prosecutor improperly vouched for defendant’s guilt when she stated that she had seen “more homicide cases than [sh e] care[d] to recall,” that “this case is no different than a typical murder case,” that defendan t was “no different than a typical murder defendant,” and that “[m]urder defendants try to deflect , try to lie[,] [t]ry to get themselves out of trouble.” In a related argument, defendant a lso argues that the following statements by the prosecutor during closing argument were impro per:
Because our job, ladies and gentlemen, is to see that justice is served. Our job is to prosecute the guilty. And your job is to make that d etermination. You decide whether or not we’ve done our job properly. That’s your decision.

You have to tell us whether or not we’ve met our burden. We d on’t run away from our burden. It’s our burden. That’s what our consti tution says. We don’t take it lightly that we would charge a home owner. We do n’t take that lightly.

There’s plenty of home owners that haven’t been charged. We l ook at the law. We are guided by what the law requires. And the law in t his case required a charge of murder in the sec ond degree. And the intentionally a iming that gun.

You guys get to make the final call. There’s no self-defense here. Where’s the fear? Where’s the fear?

It is improper for a prosecutor to use the prestige of the pro secutor’s office to inject personal opinion or for the prosecutor to ask the jury to suspe nd its power of judgement in favor of the wisdom or belief of the prosecutor’s office. People v Bahoda , 448 Mich 261, 286; 531 NW2d 659 (1995). In this case, viewed in isolation, some of th e prosecutor’s remarks could be understood as an invitation for the jury to suspend its own cri tical analysis of the evidence and accept the prosecutor’s assurances of the defendant’s guilt. V iewed in context, however, the-7- remarks constituted an argument, albeit unartfully presented, t hat the prosecution had met its burden in overcoming defendant’s self-defense claim. The prose cutor repeatedly stated that it was up to the jury to decide whether the prosecution had met it s burden of proving defendant guilty. Moreover, any improper prejudicial effect could have b een cured by an appropriate instruction, upon request. Accordingly, there was no outcome-d eterminative plain error. Unger
, 278 Mich App at 235.

Defendant next argues that a prosecutor improperly denigrated defense counsel when she discussed the fact that defendanthad changed his initial claim that the shooting was accidental to a claim that he acted in self-defense. A prosecutor may not pe rsonally attack defense counsel. People v McLaughlin , 258 Mich App 635, 646; 672 NW2d 860 (2003). Likewise, the pr osecutor may not personally attack the defe ndant with “intemperate and p rejudicial remarks,” and may not suggest that a defendant or defense counsel is trying to manipu late or mislead the jury. People v Light , 480 Mich 1198; 748 NW2d 518 (2008); Bahoda , 448 Mich at 283; People v Watson , 245 Mich App 572, 592; 629 NW2d 411(2001). Viewed as a whole, the thrust of the prosecutor’s argument was to properly suggest that defendant should not be b elieved when he stated that he was in fear when he shot McBride because he had earlier implied to the police that the shooting was “accidental.” But in doing so, the prosecutor improperly a ccused defense counsel of having “coached” defendant to change his story to one of self-defense. This type of attack on defense counsel was wholly inappropriate. See Light , 480 Mich at 1198. However, because an appropriate jury instruction coul d have cured any perceived pre judice, reversal is not required. Unger , 278 Mich App at 235.

Defendant also argues that the prosecutor improperly appealed to the jurors’ sympathy for McBride and mischaracterized the defense counsel’s self-def ense argument as an attack on the victim’s character. “Appeals to the jury to sympathize wit h the victim constitute improper argument.” Watson , 245 Mich App at 591. However, an otherwise improper remark m ay not require reversal when offered in response to an issue raised bydefense counsel. Dobek , 274 Mich App at 64. Such is the case here. That is, the prosecuto r’s rebuttal argument was responsive to defense counsel’s earlier argument that focused o n the victim’s actions. Defense counsel argued that McBride was in the process of “changing” be cause she was “coming down” from her intoxication, and claime d that “alcohol is what caused all of this.” The prosecutor’s rebuttal argument, essentially that 19-year-old McBride did not deserve to die simply because she was drunk and high, was respons ive to defense counsel’s arg ument. Moreover, any prejudicial effect could have b een cured with a jury instructio n upon request, meaning that defendant has not shown plain error. Unger , 278 Mich App at 235.

For these reasons, defendant is not entitled to reversal on th e basis of this issue. The prosecutor’s conduct did not deny de fendant a fair trial.

III. DOUBLE JEOPARDY

Defendant next argues that his convictions for both statutory involuntary manslaughter and second-degree murder, arising from the death of one victim, violate the double jeopardy prohibition against multiple punishments for the same offense. In particular, defendant argues that double jeopardy principles should prevent convictions for both second-degree murder and statutory manslaughter under MCL 750.329 because the crimes con tain contradictory elements-8- insofar as murder requires malice while MCL 750.329(1) specifie s that statutory manslaughter must be committed “without malice.”

We review this question of constitutional law de novo. People v Nutt , 469 Mich 565, 573; 677 NW2d 1 (2004). The Double Jeopardy Clause of the Fift h Amendment provides that no person shall “be subject for the same offence to be twice pu t in jeopardy of life or limb. . . .” US Const V. In People v Miller , 498 Mich 13, 17-19; 869 NW2d 204 (2015), our Supreme Court recently provided a comprehensive overview of the constit utional double jeopardy protections, and, in particular, the analysis to use when determining whether dual convictions violate the “multiple punishments” strand of double jeopardy:

The multiple punishments strand of double jeopardy “is designe d to ensure that courts confine their sentences to the limits established b y the Legislature” and therefore acts as a “restraint on the prosecutor and the Courts .” The multiple punishments strand is not violated “[w]here ‘a legislature spec ifically authorizes cumulative punishment under two st atutes. . . .’” Conversely, where the Legislature expresses a clear intention in the plain language o f a statute to prohibit multiple punishments, it will be a violation of the multiple pu nishments strand for a trial court to cumulatively punish a defendant for both offen ses in a single trial. “Thus, the question of what punishments are constitutionally pe rmissible is not different from the question of what punishments the Legislative Branch intended to be imposed.”

The Legislature, however, does not always clearly indicate its intent with regard to the permissibility of multiple punishments. When leg islative intent is not clear, Michigan courts apply the “abstract legal elements” test articulated in [ People v Ream , 481 Mich 223; 750 NW2d 536 (2008),] to ascertain whether the Legislature intended to classify two offenses as the “same offe nse” for double jeopardy purposes. This test focuses on the statutory elements of the offense to determine whether the Legislature intended for multiple punishm ents. Under the abstract legal elements test, it is not a violation of double j eopardy to convict a defendant of multiple offenses if “each of the offenses for whi ch defendant was convicted has an element that the other does not. . . .” This means that, under the Ream test, two offenses will only be considered the “same offense” where it is impossible to commit the greater offense without also committin g the lesser offense.

In sum, when considering whether two offenses are the “same of fense” in the context of the multiple punishments strand of double jeopar dy, we must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments. If the legislat ive intent is clear, courts are required to abide by this intent. If, however, the legislative intent is not clear, courts must then apply the abstract legal elements test articulated in Ream to discern legislative intent. [Footnotes omitted.]

Consequently, to determine whether there is a double jeopardy violation in this case, we first consider whether the statu tory language evinces a clear i ntent with respect to the-9- permissibility of multiple punishments. Id. In particular, the two statutes at issue are MCL 750.317 and MCL 750.329(1). Second-degree murder is codified a t MCL 750.317, which states:

All other kinds of murder shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any t erm of years, in the discretion of the court trying the same.

In comparison, statutory involunt ary murder is set forth in MCL 750.329(1), which provides:

A person who wounds, maims, or injures another person by disch arging a firearm that is pointed or aime d intentionally but without mali ce at another person is guilty of manslaughter if the wounds, maiming, or injuries r esult in death.

Neither statute includes language that plainly indicates wheth er or not the Legislature intended to authorize multiple punishments. Cf. Miller , 498 Mich at 22-23. In Miller , the Court found that the express authorizat ion of multiple convictions inone section of the OWI statute in context of a multi-section statute where other sections were si lent as to multiple convictions was, in fact, clear evidence of an intent to exclude multiple convic tions for violations of other sections of the same act. Id . at 24-25. No such argument is offered in this case. Instead

, defendant argues on appeal that the legislative intent to prohi bit multiple punishments is expressed in the inconsistency between second-degree murder and MCL 750.329(1), insofar as second-degree murder requires a finding of malice while MCL 750 .319(1) involves a crime committed “without malice.” See People v Smith , 478 Mich 64, 70; 731 NW2d 411 (2007). Defendant cites no authority for this proposition, nor are we aware of any. To the contrary, when an offense requires criminal intent, the necessary mens rea is simply an element of the offense. See, generally, People v Kowalski , 489 Mich 488, 499 n 12; 803 NW2d 200 (2011). And, when comparing elements under the abst ract legal elements test, if o ffenses contain differing elements, conviction under both does not constitute a double jeopardy vio lation. 3 See People v Strawther

, 480 Mich 900; 739 NW2d 82 (2007); People v Werner , 254 Mich App 528, 535-536; 659 NW2d 688 (2002). In short, the abstract legal elements test applies in this case and, given that the offenses at issue obviously invo lve different elements, there w as no double jeopardy violation. See Smith , 478 Mich at 70 (detailing differing elements of second-degree murder and statutory manslaughter); Strawther , 480 Mich at 900.

IV. SENTENCING

3 Indeed, while defendant frames his argument as one involving d ouble jeopardy principles, in actuality his complaint is that the jury reached inconsistent v erdicts insofar as it convicted him of both second-degree murder requiri ng malice and statutory involuntary manslaughter under MCL 750.329(1), which must be committed without malice. As noted, this claim of inconsistency does not amount to a double jeopardy violation. See generally People v Wilson , 496 Mich 91, 102; 852 NW2d 134 (2014). Moreover, “inconsistent verdicts wit hin a single jury trial are permissible and do not require reversal.” People v Putman , 309 Mich App 240; 870 NW2d 593 (2015). “Juries are not held to a ny rules of logic nor are the y required to explain t heir decisions.” People v Vaughn , 409 Mich 463, 466; 295 NW2d 354 (1980).-10- Defendant lastly argues that he is entitled to resentencing be cause the trial court sentenced him at the low end of the sentencing guidelines range , based on its erroneous belief that it was bound to sentence him within the guidelines range a bsent a substantial and compelling reason for a departure. In keeping with this Court’s decision in People v Terrell , __ Mich App __; __ NW2d __ (2015) (Docket No. 321573), we remand for Crosby proceedings in accordance with the procedures set forth in Lockridge

.

In Lockridge , 498 Mich at 364, our Supreme Cour t held that “the rule from Apprendi v New Jersey , 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extende d by Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficie nt” “the extent to which the guidelines require judicial fact-finding beyond the facts admitted by the defendant or found by the jury to score offense variables that mandatorily increase the floor of the guidelines minimum sentence range . . . .” To remedy the constitutional violation , the Court severed MCL 769.34(2) “to the extent that it is mandatory” and held that “sentencing courts will hereafter not be bound by the applicable sentencing guidelines range[.]” Lockridge , 498 Mich at 391-392. The Court also struck down MCL 769.34(3), which required a “substantial a nd compelling reason” to depart from the guidelines range, and held that a court may exe rcise its discretion to depart from the guidelines range without artic ulating substantial and compe lling reasons. Id. Following Lockridge , a departure sentence need only be reasonable. See People v Steanhouse , ___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 318329), slip op at 21 -24.

With respect to a defendant’s entitlement to relief on appeal, in Lockridge , the Court specified that unpreserved claims of error involving judicial f act-finding were subject to plain error analysis and that plain error cannot be established when “(1) facts admitted by the defendant and (2) facts found by th e jury were sufficient to as sess the minimum number of OV points necessary for the defendant's score to fall in the cell of the sentencing gr id under which he or she was sentenced.” Lockridge , 498 Mich at 394-395. Conversely, a defendant will have made a threshold showing of erro r if there is no upward departu re involved and “the facts admitted by a defendant or found by the jury verdict were insufficient to assess the minimum number of OV points necessary for the defendant's score to fall in the cell of the sentencing grid under which he or she was sentence.” Id. at 395. A defendant who makes this threshold showing of potential plai n error is entitled to a Crosby remand for further inquiry. Id.

Following Lockridge , this Court has addressed preserved claims of sentencing error and determined that a Crosby remand is appropriate, even in the absence of evidence that ju dicial fact-finding increased the minimum sentence, if the trial court ’s use of the sentencing guidelines was mandatory at the time of s entencing. Most notably, in Terrell , this Court explained:

In [ People v Stokes, __ Mich App __; __ NW2d __ (2015)] this Court concluded that where judicially-found facts increased the minimum sentenc e guidelines range, the proper remedy was to remand for the Crosby procedure to be followed to determine whether the error was harmless. In this case, how ever, any judicial fact-finding did not increase th e minimum sentence guidelines b ecause the scoring was supported by the jury verdict. Nonetheless, we ado pt the remedy crafted in Stokes as the appropriate remedy here, because regardless of the fact that judicial fact-finding did not increase defendant's minimum sentence-11- guidelines range, the trial court's compulsory use of the guide lines was erroneous in light of Lockridge. Here, the trial court was not obligated to sentence defendant within the minimum sentence guidelines range and, ins tead, was permitted to depart from the guidelines range without articulat ing a substantial and compelling reason, so long as the resulting sentence was it self reasonable. Therefore, we conclude that a remand for the Crosby procedure is necessary to determine whether the error resulting from the compulsory use o f the guidelines was harmless. [ Terrell , slip op at 9 (footnotes omitted).]

In this case, the sentencing guidelines as scored resulted in a recommended minimum sentence range of 180 to 300 mont hs or life. The trial court i mposed a sentence at the lowest end of that range. In doing so, the court commented that it “canno t go below the guidelines.” Defendant did not object at sent encing, and he does not argue o n appeal that judicial fact-finding altered the minimum guideline range as required to establish pl ain error under Lockridge . But, defendant did move this Court for a remand for resentencing und er Lockridge . Under Terrell

, this was sufficient to preserve his Lockridge challenge. See Terrell , slip op at 8 & n 38. Moreover, as in Terrell , defendant was sentenced before the Supreme Court decided Lockridge

, which significantly altered the manner in which a trial court i s to consider and ap ply the statutory sentencing guidelines. Consequently, because the trial court’s compulsory adherence to the guidelines range was erroneous, in keeping with Terrell , we remand for Crosby proceedings. Defendant has the option of avoi ding resentencing by promptly n otifying the trial court of that decision. Lockridge , 498 Mich at 398. If notifica tion is not received in a timelymanner, the trial court should continue with the Crosby proceedings as described in Lockridge

. Affirmed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Cynthia Diane Stephens /s/ Joel P. Hoekstra