                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 18, 2015
               Plaintiff-Appellee,

v                                                                   No. 321228
                                                                    Macomb Circuit Court
JAMES RONNIE HOLLOWAY II, a/k/a JAMES                               LC No. 2013-003469-FC
RONNIE HALLOWAY II,

               Defendant-Appellant.


Before: METER, P.J., and CAVANAGH and WILDER, JJ.

PER CURIAM.

     Defendant appeals as of right his jury conviction of assault with intent to commit murder,
MCL 750.83. We affirm.

                            I. SUFFICIENCY OF THE EVIDENCE

         Defendant first argues the evidence did not establish that he intended to kill the victim;
thus, it was insufficient to support his conviction. We disagree.

        “A challenge to the sufficiency of the evidence is reviewed de novo.” People v Malone,
287 Mich App 648, 654; 792 NW2d 7 (2010). “When reviewing a claim of insufficient
evidence, this Court reviews the record in a light most favorable to the prosecution to determine
whether a rational trier of fact could find that the essential elements of the crime were proven
beyond a reasonable doubt.” Id. “This Court must not interfere with the jury’s role as the sole
judge of the facts when reviewing the evidence.” Id. Thus, “[t]he reviewing court must draw all
reasonable inferences and examine credibility issues in support of the jury verdict.” Id.

        “The 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.” People v
McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999). “Circumstantial evidence and
reasonable inferences that arise from the evidence can constitute satisfactory proof of the
elements of the crime.” Id. Defendant challenges only the sufficiency of the evidence to support
the intent element of his conviction. “The intent to kill may be proved by inference from any
facts in evidence.” Id. “Because of the difficulty of proving an actor’s state of mind, minimal
circumstantial evidence is sufficient.” Id. The requisite actual intent to kill may be proved by
‘“the nature of the defendant’s acts constituting the assault; the temper or disposition of mind

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with which they were apparently performed, whether the instrument and means used were
naturally adapted to produce death, [the defendant’s] conduct and declarations prior to, at the
time, and after the assault, and all other circumstances calculated to throw light upon the
intention with which the assault was made.”’ People v Taylor, 422 Mich 554, 568; 375 NW2d 1
(1985) (citation omitted).

        The victim was defendant’s long-term girlfriend, and they had two sons together. From
the victim’s testimony detailing the violent nature of defendant’s conduct during the assault, as
well as the manner of the assault, a rational jury could reasonably find that the natural tendency
of defendant’s assaultive conduct was to cause death to the victim. See id. The victim testified
that, during the early morning hours, while she was asleep in her bedroom, she awoke when she
heard defendant enter her bedroom and lock the door. The victim testified that defendant then
struck her in the back of her head with a “hard,” “heavy” metal bar while she was lying on her
stomach in her bed. Defendant then picked her up, threw her on the floor, got on top of her,
straddled her and, with both hands and applying his weight, pressed the metal bar against her
neck which impaired her ability to breathe and caused her to lose consciousness. After regaining
consciousness, the victim saw that she was “bleeding everywhere” and defendant “dragged” her
into the shower to stop the bleeding. The victim testified that she tried to go downstairs to get
away from defendant, but he prevented her from going downstairs. Instead, he “took” or
“dragged” her back into the bedroom, where she either fell down or was pushed down by
defendant, who then straddled her, and choked her with both of his hands around her neck,
applying “[a] lot, a lot of pressure, very strong,” causing her to lose consciousness a second time.

        Testimony from the responding police officer revealed that the victim had a laceration on
the back of her head, which required 18 staples at the hospital, as well as a lot of red marks,
bruising, and cuts in her neck area. The victim testified that she thought she was going to die
during the attack, and was scared for her life. In fact, when she arrived at defendant’s mother’s
house seeking help, she stated that defendant had tried to kill her, which further indicated the
grave and life threatening nature of the assault. From this testimony describing the violent,
aggressive, and repeated nature of defendant’s assaultive conduct during the attack, the jury
could reasonably find, beyond a reasonable doubt, that defendant assaulted the victim with an
actual intent to kill her. See id. Although defendant claimed that the victim’s injuries were
accidental, it is the role of the jury to determine the weight of the evidence and the credibility of
witnesses. See McRunels, 237 Mich App at 181. Viewing the evidence in the light most
favorable to the prosecution, a rational jury could find the essential elements of the crime of
assault with intent to commit murder were proved beyond a reasonable doubt. See Malone, 287
Mich App at 654; McRunels, 237 Mich App at 181-182. Thus, this argument is without merit.

                         II. OTHER ACTS EVIDENCE—DRUG DEAL

        At trial, the prosecutor elicited testimony from the victim that defendant pawned her
engagement ring because “he owed somebody some money for a bad drug deal[.]” Defendant
asserts on appeal that this evidence of his involvement in a drug deal was improperly admitted
because the prosecution failed to provide the requisite pretrial notice under MRE 404(b)(2) of its
intent to introduce the testimony, and the court’s allowance of the testimony denied him a fair
trial. We disagree.


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        Although defendant objected to the substantive admissibility of the challenged testimony
before and during trial, he did not raise his claim of deficient notice before the trial court, and
thus his notice issue is not properly preserved for our review. See People v Dobek, 274 Mich
App 58, 87; 732 NW2d 546 (2007). We review unpreserved evidentiary issues for plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764, 774; 597
NW2d 130 (1999). To avoid forfeiture of an unpreserved issue, defendant must demonstrate
plain, outcome-determinative error. Id. We review the trial court’s decisions regarding the
admissibility of evidence for an abuse of discretion. People v Duenaz, 306 Mich App 85, 90, 98;
854 NW2d 531 (2014) (citation omitted). “An abuse of discretion occurs when a trial court’s
decision is outside the range of principled outcomes.” Id. (citation omitted). “Preliminary
questions of law, including whether a rule of evidence precludes the admission of evidence, are
reviewed de novo.” People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013).

       Under MRE 404(b), other acts evidence is not admissible to prove the character of a
defendant to show action in conformity therewith. People v Magyar, 250 Mich App 408, 413-
414; 648 NW2d 215 (2002). However, other acts evidence may be introduced for a non-
character purpose, such as proof of “motive, opportunity, intent, preparation, scheme, plan, or
system in doing an act, knowledge, identity, or absence of mistake or accident . . . .” MRE
404(b)(1). Other acts evidence is admissible under MRE 404(b) where (1) it is offered for a
proper purpose, (2) it is relevant, and (3) its probative value is not substantially outweighed by
the danger of unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004).
Generally, under MRE 404(b)(2), the prosecution must provide reasonable pretrial notice of the
nature of other acts evidence it intends to introduce and the rationale for admitting the evidence.
People v Hawkins, 245 Mich App 439, 454; 628 NW2d 105 (2001). This Court has held that the
prosecution’s failure to provide pretrial notice did not prejudice the defendant so as to warrant
reversal where defense counsel was aware of the other acts evidence before trial. Dobek, 274
Mich App at 87.

       In this case, defendant had the requisite notice before trial of the nature of the evidence
regarding his involvement in a drug deal and the prosecution’s rationale for admitting the
testimony. See MRE 404(b)(2); Hawkins, 245 Mich App at 454. Defendant brought a pretrial
motion to exclude the potential testimony, which was revealed in the victim’s police statement,
on the basis that it was impermissible character evidence under MRE 404(b). Thus, defendant
was obviously aware of the existence and nature of the potential testimony before trial. See
Dobek, 274 Mich App at 87; Hawkins, 245 Mich App at 454-455. In response to the motion, the
prosecution provided notice of its intent to introduce the testimony and the rationale for
admitting it—to explain the context of their argument that occurred on the night of the assault,
thereby ensuring its relevancy and use for a proper non-character purpose. Clearly, the hearing
on his motion afforded defendant the opportunity to object to the evidence before trial. See
Hawkins, 245 Mich App at 454-455. Therefore, defendant had adequate notice of the challenged
evidence before trial. See Dobek, 274 Mich App at 87; Hawkins, 245 Mich App at 454-455.

        Further, the challenged testimony was properly admitted under MRE 404(b). The record
is clear that the prosecution did not introduce the testimony regarding defendant’s involvement
in a drug deal to prove defendant’s bad character to show his propensity to commit the assault.
See MRE 404(b)(1). Instead, the evidence was admitted for a proper non-character purpose, and
it was relevant, as well as probative to the prosecution’s theory. See Knox, 469 Mich at 509-510.

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That is, the challenged testimony of defendant’s state of mind on the night of the attack
explained why defendant and the victim were arguing, making it more probable that defendant
was in an angered state and that the incident was not accidental as he claimed, which in turn, was
probative of defendant’s intent in and/or motive for committing the assault. See MRE 401;
Watkins, 491 Mich at 470. Accordingly, defendant is not entitled to a new trial as a consequence
of the admission of the challenged evidence.

                       III. OTHER ACTS EVIDENCE—DOMESTIC VIOLENCE

        During trial, testimony was elicited regarding the past domestic violence between
defendant and the victim, including that defendant was physically and verbally abusive toward
the victim and defendant had a domestic violence conviction stemming from a prior domestic
dispute that resulted in a no-contact order, which prohibited defendant from having contact with
the victim. Defendant asserts that the trial court erred by allowing the admission of the domestic
violence testimony because the prosecution failed to provide notice of its intent to introduce the
other acts of domestic violence as required under MCL 768.27b and that the improper admission
of the testimony denied him a fair trial. We disagree.

        MCL 768.27b allows for the admission of evidence of other acts of domestic violence for
any purpose for which it is relevant, including the propensity to commit the charged offense.
People v Railer, 288 Mich App 213, 219-220; 792 NW2d 776 (2010). There is a notice
requirement that must be met before such evidence is admitted and, in this case, such notice was
not provided. But the prosecutor did not seek to admit the evidence of domestic violence under
MCL 768.27b; rather, it was offered—and admitted by the trial court—under MRE 404(b).
Therefore, defendant’s argument that the prosecutor failed to provide the requisite notice under
MCL 768.27b is without merit. Further, the evidence was properly admitted under MRE 404(b).
It is evident from the record that the prosecutor offered the domestic violence evidence for a
proper non-character purpose, to explain why the victim was afraid of defendant and allowed
him to stay in the house despite the no-contact order. Further, the evidence was clearly relevant
to and probative of the issues in this case. Accordingly, defendant is not entitled to a new trial as
a consequence of the admission of the challenged evidence.

                                       IV. SENTENCING ISSUES

                   A. SCORING OF OFFENSE VARIABLES 5, 10, AND 12

       Defendant next argues that the trial court erred in scoring Offense Variables (OV) 5, 10,
and 12. We disagree.

        “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id.

       First, defendant argues that OV 5 was incorrectly scored 15 points (psychological injury
to a member of the victim’s family) because the court already scored 10 points under OV 4
(psychological injury to the victim), thereby elevating his minimum sentence twice for
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psychological injury. However, MCL 777.22(1) plainly requires that the court score OV 4 for all
crimes against a person and, additionally, that the court score OV 5 for homicide, attempted
homicide, conspiracy or solicitation to commit a homicide, or assault with intent to commit
murder. See also People v Armstrong, 247 Mich App 423, 425-426; 636 NW2d 785 (2001).
Thus, contrary to defendant’s argument on appeal, the trial court properly scored both OV 4 and
OV 5 in this case.

        Second, defendant challenges the trial court’s assessment of 10 points under OV 10,
arguing that “OV 10 is not to be scored simply because the relationship exists.” But that is not
why OV 10 was scored at 10 points. OV 10 addresses the exploitation of a vulnerable victim
and allows 10 points to be scored when the defendant exploits a domestic relationship. People v
Dillard, 303 Mich App 372, 380; 845 NW2d 518 (2013), quoting MCL 777.40(1)(b). “Exploit”
is statutorily defined as “manipulat[ing] a victim for selfish or unethical purposes.” MCL
777.40(3)(b). In this case, the victim was clearly vulnerable and afraid because defendant was
physically and verbally abusive toward her. Defendant exploited or took advantage of their
relationship and the victim’s fear of him to ensure that he remained in her home, after which he
entered her bedroom when she was most vulnerable, while she was asleep, and brutally attacked
her. The trial court properly assessed 10 points under OV 10.

        Third, defendant challenges the trial court’s assessment of 5 points under OV 12. If a
defendant committed one contemporaneous felonious criminal act involving a crime against a
person, 5 points are assessed under OV 12. MCL 777.42(1)(d). A felonious criminal act is
contemporaneous “if the act occurred within 24 hours of the sentencing offense” and “the act has
not and will not result in a separate conviction.” MCL 777.42(2)(a). “[W]hen scoring OV 12, a
court must look beyond the sentencing offense and consider only those separate acts or behavior
that did not establish the sentencing offense.” People v Light, 290 Mich App 717, 723; 803
NW2d 720 (2010). In this case, defendant committed multiple acts of assault and strangulation
against the victim, any of which could have been considered a “contemporaneous felonious
criminal act” under MCL 777.42(1)(d). But even if OV 12 was improperly scored, defendant’s
minimum sentencing range would not have changed because he would have remained within the
OV IV Level with 66 points. See MCL 777.62. Accordingly, defendant would not be entitled to
resentencing. See People v Francisco, 474 Mich 82, 89 n 8, 91-92; 711 NW2d 44 (2006).

                                    B. SENTENCING JUDGE

        Next, defendant argues that he is entitled to resentencing because the sentencing judge
was not the same judge who presided over his trial. We disagree. Defendant failed to preserve
this issue and, thus, our review is limited to plain error affecting substantial rights, i.e., outcome-
determinative error. See Carines, 460 Mich at 763-764.

         “Generally, a defendant should be sentenced by the judge who presided at his trial,
provided that the judge is reasonably available.” People v Pierce, 158 Mich App 113, 115; 404
NW2d 230 (1987). Defendant does not argue, nor is there anything in the record, indicating that
the trial judge, a retired and visiting judge, was reasonably available to preside at the sentencing
hearing. See id. Accordingly, defendant failed to establish plain error. Carines, 460 Mich at
763-764; People v Van Auker (After Remand), 132 Mich App 394, 399; 347 NW2d 466 (1984),
rev’d in part on other grounds 419 Mich 918 (1984). Further, defendant does not argue that the

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judge who presided over his sentencing hearing was uninformed about the evidence admitted at
trial or was unable to tailor a sentence to fit the circumstances of the case and the offender. See
Pierce, 158 Mich App at 115-116. Moreover, defendant was sentenced within the minimum
sentencing guidelines range. Accordingly, this argument is without merit.

                                  C. ALLEYNE CHALLENGE

       Finally, defendant argues that the offense variables were not proven beyond a reasonable
doubt in violation of Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314
(2013). In Alleyne, the United States Supreme Court held that “any fact that increases the
mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and found
beyond a reasonable doubt. Alleyne, 133 S Ct at 2155, 2158. In People v Herron, 303 Mich App
392; 845 NW2d 533 (2013), this Court held that the Supreme Court’s decision in Alleyne does
not implicate Michigan’s sentencing scheme. See also People v Lockridge, 304 Mich App 278,
284; 849 NW2d 388, lv gtd 496 Mich 852 (2014). This Court is bound to follow previous
published decisions of this Court, and thus, is bound to follow Herron.1 MCR 7.215(J)(1).

       Affirmed.

                                                            /s/ Patrick M. Meter
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Kurtis T. Wilder




1
  We note that our Supreme Court has granted leave in Lockridge to consider “whether a judge’s
determination of the appropriate sentencing guidelines range, MCL 777.1, et seq., establishes a
‘mandatory minimum sentence,’ such that the facts used to score the offense variables must be
admitted by the defendant or established beyond a reasonable doubt to the trier of fact” pursuant
to Alleyne. This Court has held the application for leave to appeal in Herron in abeyance
pending the resolution of Lockridge. However, an order granting leave to appeal does not
diminish or alter the precedential effect of a published opinion of this Court. MCR 7.215(C)(2).


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