                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 16, 2017
               Plaintiff-Appellee,

v                                                                    No. 332252
                                                                     Huron Circuit Court
TIMOTHY ALLEN TAIT,                                                  LC No. 15-305966-FH

               Defendant-Appellant.


Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions of assault with intent to commit murder
(AWIM), MCL 750.83, and possessing a weapon as a prisoner, MCL 801.262(2). He was
sentenced as a third-offense habitual offender, MCL 769.11, to concurrent prison terms of 17 to
30 years for AWIM and 3 to 10 years for possessing a weapon as a prisoner. We affirm.

       Defendant was in the Huron County jail when he attacked Corporal Steven Bischer, who
was responsible for maintaining security at the jail. Defendant attacked Bischer with an ink pen
that he had fashioned into a makeshift stabbing implement known as a “shank,” using plastic
wrap as a handle. Defendant stabbed Bischer at least two to three times in the back and neck
areas. After defendant was disarmed and restrained, Bischer immediately felt pain in his
shoulder area. He sought medical treatment at the emergency room of a local hospital. Upon
examination, it was determined that Bischer suffered superficial abrasions and a half-centimeter
stab wound to his neck area, and he was given a tetanus shot.

        Defendant first challenges his AWIM conviction on the ground that the evidence was
insufficient to establish that he intended to kill Bischer. We review this issue de novo, People v
Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010), considering 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). We resolve all conflicts in the evidence in favor of the prosecution, and
we will “not interfere with the trier of fact’s role of determining the weight of the evidence or the
credibility of witnesses.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

       To establish that defendant committed AWIM, the prosecution was required to prove that
defendant committed “(1) an assault, (2) with an actual intent to kill, (3) which, if successful,
would make the killing murder.” People v Jackson, 292 Mich App 583, 588; 808 NW2d 541
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(2011) (quotation marks and citation omitted). “The intent to kill may be proved by inference
from any facts in evidence.” Id.

        Defendant argues there was insufficient evidence that he intended to kill Bischer.
Testimony at trial included that defendant had told multiple corrections officers that he intended
to kill Bischer, including Bischer himself. And, after stabbing Bischer in the neck with a shank,
he expressed regret for not having succeeded and stated his intent to try again. The jury could
infer defendant’s intent to kill from these statements. Therefore, there was sufficient evidence to
establish the intent element. See id.

        Next, defendant argues that the court erred by excluding evidence relating to his mental
health pursuant to People v Carpenter, 464 Mich 223, 241; 627 NW2d 276 (2001), which held
that evidence of a defendant’s lack of mental capacity short of legal insanity was inadmissible to
establish a lack of specific intent. We review the trial court’s decision to admit or exclude
evidence for an abuse of discretion. People v Yost, 278 Mich App 341, 353; 749 NW2d 753
(2008). An abuse of discretion occurs when the trial court “selects an outcome that does not fall
within the range of reasonable and principled outcomes.” Id. Whether the admission of
evidence is precluded by rule or statute is a question of law that is reviewed de novo. Id.

        Defendant does not challenge the trial court’s determination that he did not meet the
requirements for establishing an insanity defense. Rather, he argues that the trial court erred by
rejecting his argument that evidence of the mood disorder that made him impulsive and
aggressive was relevant for purposes other than negating his specific intent and, therefore, was
admissible under Yost. In Yost, this Court held that “[a]lthough a defendant may no longer
present evidence of diminished capacity to negate the intent element of a crime, there are
circumstances where a defendant’s mental capacity may make a fact that is of consequence to the
determination of the action more or less probable without such evidence being offered to negate
the specific-intent element of the charged offense” and would, therefore, be admissible under
MRE 402. Id. at 355-356.

        It is not clear, however, for what purpose defendant believes the evidence of his mental-
health issues is relevant, if not to show that his statements of intent to kill Bischer should not
have been taken as evidence of his specific intent to do so. Defendant claims that the evidence
was relevant “to explain factual circumstances that would otherwise be used by the prosecution
as alleged evidence of [defendant’s] calculated and rational pronouncement that he intended to
kill Bischer,” and that “the jury [was] entitled to consider his mental state when assessing the
proper weight to be given to the alleged threats.” While defendant insists that this “is not a
semantical argument that presents a distinction without a difference,” given that the proffered
alternative purpose appears to be undermining the significance of defendant’s express threats to
kill Bischer, which were evidence of his specific intent, we agree with the trial court that the
evidence was properly excluded under Carpenter.

       Finally, defendant challenges the scoring of three offense variables on appeal. The
proper interpretation and application of the sentencing guidelines are legal questions that are
reviewed de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). The
sentencing court’s factual determinations must be supported by a preponderance of the evidence
and are reviewed for clear error. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

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        First, defendant challenges the scoring of OV 2, which requires five points to be assessed
if defendant “possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing
weapon,” MCL 777.32(1)(d), and requires one point to be assessed if defendant “possessed or
used any other potentially lethal weapon,” MCL 777.32(1)(e). Five points were assessed for OV
2 and there was no objection to the score raised at sentencing; thus, we review the issue for plain
error affecting defendant’s substantial rights. People v Chelmicki, 305 Mich App 58, 69; 850
NW2d 612 (2014). Defendant contends that he should have received one point under OV 2. The
statute does not define “cutting or stabbing weapon.” While it is unclear whether an ink pen
alone would qualify if used as a stabbing weapon, in this case, evidence indicated that defendant
had deliberately fashioned a handle onto the pen to transform it into a shank, that he used it to
attack Bischer, and that Bischer was subsequently diagnosed with a “[s]tab wound.” Given that
the instrument at issue was in fact used to inflict a stab wound, the trial court did not plainly err
by classifying it as a stabbing weapon for purposes of scoring OV 2. See id.

        Next, defendant challenges the scoring of OV 3, which requires 10 points to be assessed
if “[b]odily injury requiring medical treatment occurred to a victim,” MCL 777.33(1)(d), and five
points if “[b]odily injury not requiring medical treatment occurred to a victim,” MCL
777.33(1)(e). The phrase “requiring medical treatment” “refers to the necessity for treatment and
not the victim’s success in obtaining treatment.” MCL 777.33(3). At sentencing, defendant’s
attorney challenged the assessment of 10 points because Bischer was directed to seek medical
treatment by a superior at the jail. Bischer testified that after the attack, he immediately felt pain
in his shoulder. The practical nurse who was on site examined him and suggested that he seek
additional medical treatment. Bischer sought treatment at the emergency room of a local
hospital, where the doctor diagnosed superficial abrasions and a half-centimeter stab wound to
his neck. Bischer was also given a tetanus shot. Accordingly, OV 3 was properly scored at ten
points. However, even if OV 3 should have been scored at five points, reducing defendant’s
total OV score by five points does not alter his recommended minimum sentence range, MCL
777.62; thus, resentencing would not be required. See People v Francisco, 474 Mich 82, 89 n 8;
711 NW2d 44 (2006).

        Defendant also raises a challenge to the scoring of OV 19, which requires 25 points to be
assessed if defendant, by his conduct, “threatened the security of a penal institution or court.”
MCL 777.49(a). The trial court should assess 15 points if the defendant “used force or the threat
of force against another person . . . to interfere with, attempt to interfere with, or that results in
the interference with the administration of justice or the rendering of emergency services.” MCL
777.49(b). At sentencing, defendant’s attorney argued that 15 points would be more appropriate
“under the circumstances.” In this case, the jury found that defendant attacked the person who
was responsible for maintaining security at the jail with a weapon. This alone was sufficient to
support the score. Further, the record reflects that disarming and restraining defendant required
the resources of two additional officers. Under these circumstances, the evidence supported the
score of 25 points.

       Defendant also argues that assessing 25 points for OV 19 on the basis of the underlying
offense penalizes him twice for the same conduct. However, this Court has held that points may
be assessed for OV 19 “when the sentencing offense itself necessarily involves interfering with
the administration of justice,” such as cases involving perjury. People v Sours, 315 Mich App
346, 349 n 1; 890 NW2d 401 (2016), citing People v Underwood, 278 Mich App 334, 340; 750

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NW2d 612 (2008). Because possessing a weapon as an inmate and using that weapon against a
corrections officer necessarily threatens the security of a penal institution, the score was properly
assessed.

       Affirmed.



                                                              /s/ Deborah A. Servitto
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Karen M. Fort Hood




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