                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 20, 2015
              Plaintiff-Appellee,

v                                                                  No. 321864
                                                                   Calhoun Circuit Court
SHAWN THOMAS MCKNIGHT,                                             LC No. 2013-003882-FC

              Defendant-Appellant.


Before: BOONSTRA, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

       Defendant appeals from his convictions following a jury trial of felon in possession of a
firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. The jury acquitted defendant of first-degree premeditated murder,
MCL 750.316(a),1 assault with intent to murder, MCL 750.83, and the felony-firearm charges
associated with those two charges. The trial court sentenced defendant as a habitual offender,
fourth offense, MCL 769.12, to serve a prison term of 76 months to 15 years for the felon in
possession of a firearm conviction and to a preceding and consecutive sentence of 2 years for the
felony-firearm conviction. For the reasons provided below, we affirm defendant’s convictions
but remand for further proceedings related to defendant’s sentence.

                                           I. FACTS

        This prosecution stems from a shooting that occurred while many people were
congregating at a block party. Terrance Ware was shot and killed, and Tyreese Hesiben, who
had been talking with Ware just prior to the shooting, was shot in the neck but survived.
Defendant was charged with shooting both men. There was evidence of bad blood between
Ware and defendant. Multiple witnesses testified to seeing defendant at the party holding a gun.
But no one at the time reported seeing defendant actually fire any shots with his gun. However,
two years after the shooting, a witness came forward and claimed that he saw defendant fire
several rounds in the direction of Ware. This eyewitness was in jail when he came forward with


1
  The jury was also instructed on second-degree murder, MCL 750.317, as a lesser included
offense of first-degree murder.


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his evidence. He agreed that in exchange for his testimony, a pending charge of armed robbery
was reduced to larceny from a person. Defendant presented witnesses that placed him
somewhere else at the time of the shooting.

                                II. EXTRANEOUS INFLUENCE

       Defendant argues that the trial court erred when it denied his motion for a mistrial
because of a purported extraneous influence on the jury. We review the court’s decision on a
motion for a mistrial for an abuse of discretion. People v Dennis, 464 Mich 567, 572; 628
NW2d 502 (2001). “An abuse of discretion occurs when a trial court chooses an outcome falling
outside the range of reasonable and principled outcomes.” People v Lacalamita, 286 Mich App
467, 469; 780 NW2d 311 (2009).

        Following the testimony of defendant’s first witness, Christopher Taylor, a juror came
forward and informed the court that he knew Taylor and was afraid of him. The juror indicated
that he could no longer be a fair and impartial. The court excused the juror and then interviewed
four other jurors who might have learned of the dismissed juror’s concerns. One explained that
she did not overhear any comments. Two others admitted that they had heard about the
dismissed juror’s concerns, but they each asserted that it would not affect their ability to be fair
and impartial. A fourth juror said that she “felt bad for” the dismissed juror because he appeared
to be very worried about the situation. The fourth juror also claimed that the incident would
make her think more about “the reaction of the family.” She clarified that she did not intend to
imply that she was only concerned for one family’s reaction; instead, she meant that “either
family” could be upset depending on the verdict. However, the juror ultimately asserted that the
incident would not change her ability to make a fair decision, and she was satisfied that she could
execute her oath as a juror despite her concerns.

        Defense counsel moved for a mistrial, arguing that the dismissed juror’s comments
“clearly had a chilling effect on the jurors, especially” the fourth juror. Moreover, counsel
argued “that in fairness to my client we should, at the very least, poll each and every” juror. The
court denied the motion for mistrial and declined to interview more jurors. The court noted that
the four jurors questioned stated that their objectivity was not affected by the events and
concluded that there was no basis to question the remaining jurors because there was no evidence
that anyone else heard the dismissed juror’s statements or were likely to have been influenced by
them.

        “A defendant tried by jury has a right to a fair and impartial jury.” People v Budzyn, 456
Mich 77, 88; 566 NW2d 229 (1997). “During their deliberations, jurors may only consider the
evidence that is presented to them in open court.” Id. “Where the jury considers extraneous
facts not introduced in evidence, this deprives a defendant of his rights . . . .” Id.

               In order to establish that the extrinsic influence was error requiring
       reversal, the defendant must initially prove two points. First, the defendant must
       prove that the jury was exposed to extraneous influences. Second, the defendant
       must establish that these extraneous influences created a real and substantial
       possibility that they could have affected the jury’s verdict. Generally, in proving
       this second point, the defendant will demonstrate that the extraneous influence is

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       substantially related to a material aspect of the case and that there is a direct
       connection between the extrinsic material and the adverse verdict. If the
       defendant establishes this initial burden, the burden shifts to the people to
       demonstrate that the error was harmless beyond a reasonable doubt. [Id. at 88-89
       (citations omitted).]

There is no question that defendant established that the jury was exposed to an extraneous
influence—the fear the dismissed juror felt with respect to the witness Taylor. However,
defendant has not shown that there was a real and substantial possibility that the extraneous
influence affected the verdict.

        The fact that some jurors knew that the dismissed juror recognized and was frightened by
Taylor does not relate directly to the facts of the case. While this fear did affect the dismissed
juror’s ability to make an impartial verdict, each other juror that heard the dismissed juror’s
concerns affirmed that they could still be fair and impartial. Moreover, defendant’s argument
that the comments negatively affected the jury’s impression of Taylor is not supported by the
record. The witness testified, in relevant part, that Dedrick Richardson, who was the only
witness who claimed to have seen defendant fire a gun at the direction of Ware that night, was
not at the block party. The fact that the jury acquitted defendant of the more serious charges
related to the shooting itself, shows that Taylor’s testimony was, if anything, looked upon
favorably. Accordingly, we do not see how defendant established that there was “a real and
substantial possibility” that any extraneous influence could have impacted the jury’s verdict. Id.
at 89.

            III. REQUEST FOR REMAND—NEWLY DISCOVERED EVIDENCE

         Defendant also argues that the case should be remanded for an evidentiary hearing and
for allowing him to raise a motion for a new trial on the basis that Richardson offered to recant
his trial testimony. This same argument was the basis for a motion to remand defendant filed
with this Court, which was denied. People v McKnight, unpublished order of the Court of
Appeals, entered February 9, 2015 (Docket No. 321864). We note that defendant still has not
submitted a signed affidavit in support of his request, despite the fact his initial motion indicated
that one would be forthcoming. Accordingly, we find no reason to come to a different
conclusion.

         Regardless, even if a proper affidavit were submitted to this Court, a remand would not
be needed. We note that the jury did not convict defendant of any offense that was based on a
finding that defendant actually discharged his firearm. Defendant’s only convictions were based
on his possession of a firearm at the time. There were other witnesses, besides Richardson, who
testified that defendant possessed a weapon on the night of the shooting. Therefore, even if
Richardson recants his testimony regarding whether he actually saw defendant shoot at least one
of the victims, we do not believe that it would make a difference in the jury’s decision. It
appears that the jury did not find Richardson credible at the time of trial and based its verdict on
the other witnesses’ accounts. It therefore appears that the trial court would not grant a new trial
even if Richardson recants his trial testimony, see People v Terrell, 289 Mich App 553, 559; 797
NW2d 684 (2010) (providing that in order to grant a new trial on the basis of newly discovered


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evidence, a defendant must establish, inter alia, that the new evidence makes a different result
probable on retrial), which would make a remand an exercise in futility.

                           IV. DEFENDANT’S STANDARD 4 BRIEF

                             A. SUFFICIENCY OF THE EVIDENCE

       Defendant argues that there was insufficient evidence to convict him of felon in
possession of a firearm. When reviewing a challenge to the sufficiency of the evidence, we
review “the evidence in a light most favorable to the prosecutor to determine whether any trier of
fact could find the essential elements of the crime were proven beyond a reasonable doubt.”
People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). “The standard of review is deferential:
a reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

       MCL 750.224f provides that a person convicted of a felony “shall not possess, use,
transport, sell, purchase, carry, ship, receive, or distribute a firearm” until certain criteria are met.
Defendant does not dispute that he is a felon, only that there is insufficient evidence that he
possessed a firearm. As defendant admits, however, three witnesses testified that they saw him
in possession of a firearm. Defendant claims that these witnesses were not credible, but
“[q]uestions of credibility are left to the trier of fact and will not be resolved anew by this
Court.” People v Avant, 235 Mich App 499, 506; 597 NW2d 864 (1999). Therefore, the
evidence was sufficient for a jury to conclude beyond a reasonable doubt that defendant
possessed a firearm on the night of the shooting.

        Additionally, defendant argues that the jury must have impermissibly compromised its
verdict because it found him guilty of felon in possession of a firearm while finding him not
guilty of murder or assault with intent to commit murder. Defendant is correct that compromised
verdicts are disfavored because there is a risk that some jurors did not believe that defendant was
actually guilty beyond a reasonable doubt. People v Lewis, 415 Mich 443, 451-452; 370 NW2d
16 (1982). However, the fact that the jury found defendant not guilty of murder and assault with
intent to commit murder but guilty of felon in possession and felony-firearm does not evidence a
compromised verdict because these verdicts are not inconsistent. See id. at 450 (stating that the
inconsistency in verdicts can suggest that a verdict was compromised). The mere fact that
defendant may have possessed a gun that night does not require finding that he was the one who
shot Ware and Hesiben. Thus, the verdicts do not suggest anything other than the prosecution
simply failed to prove beyond a reasonable doubt that defendant was the one who shot Ware and
Hesiben. Moreover, it is axiomatic that “a jury is free to believe or disbelieve, in whole or in
part, any of the evidence presented.” People v Perry, 460 Mich 55, 63; 594 NW2d 477 (1999).

                                          B. SENTENCING

       Defendant next raises multiple issues related to the scoring of the offense variables
(OVs). Specifically, defendant argues that the trial court improperly engaged in fact finding
during sentencing in relation to facts not found by the jury. Defendant did not raise this issue at


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the trial court. Therefore, this unpreserved issue is reviewed for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).

         Our Supreme Court’s recent decision in People v Lockridge, ___ Mich ___; ___ NW2d
___ (Docket No. 149073, decided July 29, 2015), addresses this issue. In Lockridge, the
Supreme Court held that when a judge makes findings of fact “beyond facts admitted by the
defendant or found by the jury” in a sentencing proceeding that increases a defendant’s minimum
sentence, this runs afoul of a defendant’s right to a jury trial. Id. at ___ (slip op at 1). As a
result, in order to avoid any Sixth Amendment violations, the Court further held that Michigan’s
sentencing guidelines scheme is to be deemed advisory, not mandatory. Id. at ___ (slip op at
28). But sentencing judges must nonetheless consult the guidelines and “‘take them into account
when sentencing.’” Id. at___ (slip op at 28), quoting United States v Booker, 543 US 220, 264;
125 S Ct 738; 160 L Ed 2d 621 (2005).

        Here, the court assessed 25 points for OV 1 (aggravated use of a weapon), 100 points for
OV 3 (physical injury to victim), 10 points for OV 9 (number of victims), and 15 points for OV
10 (exploitation of vulnerable victim). This total of 150 points placed defendant in OV level VI
of the sentencing grid. See MCL 777.66.

         It is clear that the trial court used facts beyond those admitted by defendant or found by
the jury to assess points for all of the OVs. The court assessed 25 points under OV 1 because it
found that defendant discharged a firearm at or toward a human being. The court assessed 100
points under OV 3 because a victim was killed. The court scored OV 9 at 10 points because it
found that two to nine people were placed in danger, and 15 points were scored under OV 10
because the court found that predatory conduct was involved. Although there was testimony at
trial to support the scoring of each of these OVs, defendant did not admit any facts to support
these assessments, and the jury’s verdict does not require finding any facts that support the
assessments. Specifically, the jury’s verdict does not require finding that defendant discharged a
firearm, that defendant killed anyone, that two to nine people were placed in danger, and that
predatory conduct was involved.2 Therefore, defendant has established a “threshold showing of
the potential for plain error.” Id. at __ (slip op at 32-33). To be clear, the constitutional malady
is the mandatory characteristic of the guidelines, not the fact that the trial court made findings of
fact outside the scope of the jury’s verdict. A court still must score the various OVs on the basis
of a preponderance of the evidence standard. People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013); see Lockridge, ___ Mich at ___ (slip op at 36).

      The remedy, as outlined by our Supreme Court, is to remand for the trial court to conduct
a Crosby3 hearing, where the trial court is first to determine whether defendant wishes to be


2
  We note that while defendant’s convictions established that he possessed a firearm, the
convictions do not establish how many people, i.e., “victims,” were present and “placed in
danger of physical injury or death.” See MCL 777.39. Thus, while a closer question, we
nonetheless conclude that the scoring of OV 9 at 10 points was not supported by the jury verdict.
3
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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resentenced, with the understanding that the sentencing guidelines now are advisory. Lockridge,
___ Mich at ___ (slip op at 35). If the answer is “yes,” then the court shall determine whether it
would have imposed a materially different sentence but for the unconstitutional constraint. Id. at
___ (slip op at 35).

       We affirm defendant’s convictions but remand for proceedings consistent with this
opinion. We do not retain jurisdiction.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Henry William Saad
                                                            /s/ Joel P. Hoekstra




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