                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 25, 2018
                 Plaintiff-Appellee,

v                                                                   No. 335070
                                                                    Wayne Circuit Court
DASHAWN JESSIE WALLACE,                                             LC No. 16-003007-01-FC

                 Defendant-Appellant.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

        Defendant was originally charged with four counts each of assault with intent to commit
murder, MCL 750.83, assault with intent to do great bodily harm less than murder, MCL 750.84,
and felonious assault, MCL 750.82, and one count each of carrying a dangerous weapon with
unlawful intent, MCL 750.226, intentionally discharging a firearm at a dwelling causing physical
injury, MCL 750.234b(3), carrying a concealed weapon, MCL 750.227, and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. Following trial, the
jury convicted defendant of intentionally discharging a firearm at a dwelling causing personal
injury and felony-firearm but acquitted him of all other charges. 1 The trial court sentenced
defendant to 3 to 15 years in prison for the intentional discharge of a firearm conviction and two
years for the felony-firearm conviction, to be served consecutively. We affirm defendant’s
convictions but remand for resentencing of the intentional discharge of a firearm conviction.

        This case arises from an altercation on February 28, 2016, with several members of the
Matten family. Defendant shot both Carmen Matten and her son, James Matten. Other members
of Carmen’s family were also present, but they were not injured. The circumstances surrounding
the altercation were disputed. The defense theory at trial was that defendant acted in self-defense
after James and his siblings came after and threatened him with a metal pole and an ax.




1
    The charge of carrying a concealed weapon was dismissed by the trial court.


                                                -1-
                             I. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that the evidence at trial was insufficient to disprove his claim of
self-defense and thereby allow the jury to convict him of discharging a firearm at a dwelling,
causing personal injury. We disagree. When an appellate court’s review of the sufficiency of
the evidence, it must “view the evidence in a light most favorable to the prosecution and
determine whether any rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt.” People v Wolfe, 440 Mich 508, 515; 489 NW2d
748 (1992), amended 441 Mich 1201 (1992). The jury, not the appellate court, determines the
weight and credibility to assign to the evidence. Id. “This Court will not interfere with the trier
of fact’s role of determining the weight of the evidence or the credibility of witnesses.” People v
Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005). Any conflicts in the evidence must
be resolved in favor of the prosecution. Wolfe, 440 Mich at 515.

        The jury convicted defendant of violating MCL 750.234b, which provides, in relevant
part:

                (1) Except as otherwise provided in this section, an individual who
        intentionally discharges a firearm at a facility that he or she knows or has reason
        to believe is a dwelling or a potentially occupied structure, whether or not the
        dwelling or structure is actually occupied at the time the firearm is discharged, is
        guilty of a felony punishable by imprisonment for not more than 10 years or a fine
        of not more than $10,000.00, or both.

                (2) An individual who intentionally discharges a firearm in a facility that
        he or she knows or has reason to believe is a dwelling or a potentially occupied
        structure, in reckless disregard for the safety of any individual and whether or not
        the dwelling or structure is actually occupied at the time the firearm is discharged,
        is guilty of a felony punishable by imprisonment for not more than 10 years or a
        find of not more than $10,000.00, or both.

                (3) If an individual violates subsection (1) or (2) and causes any physical
        injury to another individual, the individual is guilty of a felony punishable by
        imprisonment for not more than 15 years or a fine of not more than $15,000.00, or
        both.

As used in the statute, discharging a firearm “at” a dwelling includes the discharge of a firearm
“in, on, or near” a dwelling. People v Wilson, 230 Mich App 590, 592; 585 NW2d 24 (1998).

       At trial, defendant raised a claim of self-defense. In People v Stevens, 306 Mich App
620, 630; 858 NW2d 98 (2014), this Court stated:

               Once a defendant raises the issue of self-defense and “satisfies the initial
        burden of producing some evidence from which a jury could conclude that the
        elements necessary to establish a prima facie defense of self-defense exist,” the
        prosecution must “exclude the possibility” of self-defense beyond a reasonable

                                                 -2-
       doubt. People v Dupree, 486 Mich 693, 709-710; 788 NW2d 399 (2010)
       (quotation marks and citations omitted). Under MCL 780.972(1):

                       An individual who has not or is not engaged in the
               commission of a crime at the time he or she uses deadly force may
               use deadly force against another individual anywhere he or she has
               the legal right to be with no duty to retreat if . . .

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

        In this case, defendant relied on the testimony of Kenan Marten to support his claim of
self-defense. According to Kenan, James Matten and his siblings, Jared Matten and Kenneth
Matten, all approached defendant outside his house while screaming at him and getting “in his
face.” Kenan said that Jared had a dark pole, and Kenneth had an ax. Kenan testified that
defendant retreated, and then disappeared behind an abandoned house, and that James, Jared, and
Kenneth appeared to chase after him. About 30 seconds later, Kenan saw defendant emerge
from beside the abandoned house. He then saw James, Kenneth, and Jared advancing toward
defendant as defendant was backing up. Kenan agreed that Carmen Matten was on the front
porch of her own house while this was happening. Kenan said that defendant again disappeared
beside a house, and then he heard gunshots. After the shooting, Carmen ran inside her house,
and Jared and Kenneth ran off.

        Even if the jury believed Kenan’s testimony and found that defendant reasonably felt
threatened by James, Kenneth, and Jared, we note the jury did not convict defendant of any
offenses involving those persons. The intentional discharge of a firearm conviction was based
on defendant’s discharge of a firearm at Carmen’s dwelling, causing personal injury to Carmen.
Carmen testified that she was placing some bags on her front porch, in preparation for her move
to another house, when she saw defendant on the ground at the side of her house. According to
Carmen, she merely asked defendant what he was doing and, without responding to her question,
he pointed a rifle toward her and shot her in the leg. This testimony was sufficient to enable the
jury to find beyond a reasonable doubt that defendant discharged a firearm at Carmen’s dwelling,
causing her personal injury. The only evidence supporting defendant’s claim of self-defense was
Kenan’s testimony, but that testimony did not provide any basis for the jury to find that
defendant had a reason to feel threatened by Carmen. According to Kenan, he was able to see
Carmen on her front porch, whereas James, Kenneth, and Jared were all beside the houses,
advancing toward defendant, and then defendant disappeared from Kenan’s view, after which
Kenan heard gunshots. There was no evidence that Carmen presented any threat to defendant
when she was shot.

       Based on Carmen’s testimony that defendant intentionally pointed and discharged a
firearm at her while she was on the porch of her house, that she was shot in the leg, and Kenan’s
testimony that the only apparent threat to defendant came from James, Kenneth, and Jared, who
were not with Carmen or on the porch of her house, the jury could reasonably find beyond a
reasonable doubt that defendant was not entitled to use deadly force when he discharged a

                                               -3-
firearm at Carmen’s dwelling, resulting in Carmen’s gunshot injury. Given Kenan’s testimony,
it was not inconsistent for the jury to find that defendant’s self-defense theory applied to some of
the charges, but not the charge of intentional discharge of a firearm at Carmen’s dwelling.
Moreover, the fact that the jury acquitted defendant of the charged assault offenses against
Carmen does not affect the sufficiency of the evidence in support of defendant’s intentional
discharge of a firearm conviction. The jury was entitled to find that defendant did not intend to
assault Carmen but still intentionally discharged a firearm at her dwelling, which caused her
gunshot wound.

        Accordingly, sufficient evidence supports defendant’s conviction of intentional discharge
of a firearm at a dwelling causing personal injury and to therefore rebut defendant’s claim of
self-defense.

                              II. PROSECUTORIAL MISCONDUCT

           Next, defendant argues that the prosecutor engaged in misconduct by questioning both
Carmen and James about their injuries and by commenting on Carmen’s injuries in closing
argument. Defendant argues that the prosecutor’s questions and comments were irrelevant and
unduly prejudicial because they evoked sympathy for the victims. Defendant concedes that there
was no objection to the prosecutor’s questions or closing remarks, leaving these claims
unpreserved. An unpreserved issue of prosecutorial misconduct is reviewed for plain error
affecting substantial rights. People v Abraham, 256 Mich App 265, 274; 662 NW2d 836 (2003).
An error is plain if it is clear or obvious, and an error affects substantial rights if it is prejudicial,
i.e., if it affects the outcome of the proceedings. People v Pipes, 475 Mich 267, 279; 715 NW2d
290 (2006). This Court will not reverse if the prejudicial effect of any improper comment could
have been cured by a timely instruction from the trial court. People v Watson, 245 Mich App
572, 586; 629 NW2d 411 (2001).

        Claims of prosecutorial misconduct are decided case by case and by reviewing
challenged comments in context to determine if defendant received a fair trial. Id. A prosecutor
is afforded great latitude during closing argument and may argue the evidence and reasonable
inferences arising from the evidence in support of her theory of the case. People v Unger, 278
Mich App 210, 236; 749 NW2d 272 (2008). But a prosecutor may not appeal to the jury to
sympathize with the victim. Id. at 237. Prosecutorial misconduct may not be predicated on
good-faith efforts to admit evidence. People v Dobek, 274 Mich App 58, 70; 732 NW2d 546
(2007).

        The testimony regarding the injuries suffered by Carmen and James was not plainly
improper because defendant was charged with multiple forms of assault. Both assault with intent
to commit murder and assault with intent to do great bodily harm require proof of the
defendant’s intent. See Stevens, 306 Mich App at 628; People v Jackson, 292 Mich App 583,
588; 808 NW2d 541 (2011). Although evidence of an actual injury is not necessary to prove
those offenses, a victim’s injuries may be probative of the defendant’s intent. Stevens, 306 Mich
App at 629. Consistent with these principles, the trial court instructed the jury that actual injury
is not necessary to prove assault with intent to do great bodily harm, but the jury could consider
any injuries when deciding defendant’s intent. The court also generally instructed the jury that
“an assault does not have to cause an actual injury,” but “if there was an actual injury, you may

                                                   -4-
consider that injury with the other evidence in determining whether there was an assault in this
case.” Defendant was also charged with intentional discharge of a firearm at a dwelling causing
injury, which required the prosecutor to prove that defendant’s discharge of a firearm caused an
actual injury to the victim. Accordingly, it was not plain error to question Carmen and James
about their injuries and to comment on their testimony in closing argument. To the extent that
defendant complains that the prosecutor’s questions and comments had the improper effect of
eliciting sympathy for the victims, we remind him that an appropriate instruction on timely
objection could have cured any perceived prejudice. Indeed, even without an objection, the trial
court instructed the jury that it “must not let sympathy or prejudice influence your decision.”
This instruction was sufficient to protect defendant’s substantial rights. See Abraham, 256 Mich
App at 279 (“Jurors are presumed to follow their instructions, and instructions are presumed to
cure most errors.”).

        Even if some of the testimony was not relevant to the elements of the offenses, the
testimony was not so prejudicial that a cautionary instruction could not have cured any possible
prejudice. Moreover, questions about Carmen’s use of a cane would not have been unduly
prejudicial considering that the jury was able to observe her use of the cane when she testified.
Additional testimony from Carmen about how the shooting impacted her and her family was not
so prejudicial that a timely objection could not have cured any prejudice. Indeed, to the extent
that the prosecutor’s questions and comments could be deemed improper, it is clear that they did
not affect the outcome of defendant’s trial considering that the jury acquitted defendant of all of
the assault charges, including all charges of assault relating to James and Carmen, the subjects of
the challenged questions and comments.

       For these reasons, defendant is not entitled to appellate relief on the basis of these
unpreserved claims of prosecutorial misconduct.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that defense counsel was ineffective for failing to object to the
prosecutor’s conduct discussed in Section II. Defendant raised this issue in a motion for a new
trial and requested an evidentiary hearing on his claim. The trial court denied defendant’s
motion for a new trial and determined that an evidentiary hearing was not necessary.

        Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). The trial court’s factual findings are reviewed for clear error. Id. Whether the facts as
found by the trial court establish a violation of the defendant’s right to the effective assistance of
counsel is a question of constitutional law, which is reviewed de novo. Id. To establish
ineffective assistance of counsel, defendant must show that his counsel’s performance fell below
an objective standard of reasonableness, and that counsel’s representation so prejudiced the
defendant that he was denied a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797
(1994). To demonstrate prejudice, defendant must show that there is a reasonable probability
that but for counsel’s error the result of the proceeding would have been different. People v
Johnson, 451 Mich 115, 124; 545 NW2d 637 (1996).



                                                 -5-
        As discussed in Section II, the testimony of Carmen and James regarding their injuries
was relevant and admissible because it was probative of defendant’s intent with regard to the
assault charges. Further, the existence of a personal injury was an element of the charged
offense of intentionally discharging a firearm at a dwelling, causing personal injury; therefore,
defense counsel was not ineffective for failing to object to this testimony. Any objection would
have been futile. See Unger, 278 Mich App at 256.

        As for Carmen’s additional testimony about how her injury had impacted her and her
family, we agree the testimony may have been objectionable, but defendant has not established a
reasonable probability that counsel’s failure to object affected the jury’s verdict. Defendant
complains that the testimony was likely to garner sympathy for the victims, but the trial court
specifically instructed the jury that it “must not let sympathy or prejudice influence your
decision,” and the jury’s acquittal of defendant on most of the charges, including all assault
charges related to Carmen, indicates that Carmen’s brief comments about the consequences of
being shot did not unduly influence the jury. For this reason, defendant has not shown that he
was prejudiced by counsel’s failure to object. Johnson, 451 Mich at 124.

       Likewise, it would have been futile for defense counsel to object to the prosecutor’s
comments about Carmen’s injuries during closing argument. The prosecutor’s remarks were
made for the proper purpose of arguing that Carmen’s testimony about her injury supported the
personal injury element of the charge of intentionally discharging a firearm at a dwelling,
causing personal injury.

        Although defendant also requested that the trial court conduct an evidentiary hearing on
his claim of ineffective assistance of counsel, defendant’s claim involved questions and
comments that were matters of record, and he never made an offer of proof to show that further
development of the record was necessary. Accordingly, the trial court did not err by deciding
this issue without an evidentiary hearing, and defendant has not shown that remand for further
proceedings is necessary. See People v McMillan, 213 Mich App 134, 141-142; 539 NW2d 553
(1995); People v Simmons, 140 Mich App 681, 685; 364 NW2d 783 (1985).

                          IV. GREAT WEIGHT OF THE EVIDENCE

        In cases tried before a jury, a defendant must move for a new trial in the trial court to
preserve a claim that the jury’s verdict is against the great weight of the evidence. People v
Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). Although defendant moved for a
new trial in the trial court, he argued only that there was no evidence that he aimed his firearm at
the house, or evidence that a bullet struck the house. On appeal, defendant argues that the jury’s
verdict is against the great weight of the evidence because the prosecutor did not disprove that he
acted in self-defense. Because defendant’s motion was not based on the same ground that
defendant now asserts on appeal, this issue is unpreserved. See People v Danto, 294 Mich App
596, 605; 822 NW2d 600 (2011). This Court reviews an unpreserved claim that a jury’s verdict
is against the great weight of the evidence for plain error affecting substantial rights. Id.

     In People v Lacalamita, 286 Mich App 467; 780 NW2d 311 (2009), this Court
summarized the test for whether a jury’s verdict is against the great weight of the evidence:


                                                -6-
               The test to determine whether a verdict is against the great weight of the
       evidence is whether the evidence preponderates so heavily against the verdict that
       it would be a miscarriage of justice to allow the verdict to stand. Generally, a
       verdict may be vacated only when the evidence does not reasonably support it and
       it was more likely the result of causes outside the record, such as passion,
       prejudice, sympathy, or some other extraneous influence. Conflicting testimony,
       even when impeached to some extent, is an insufficient ground for granting a new
       trial. Further, the resolution of credibility questions is within the exclusive
       province of the jury. [Id. at 469-470 (citations and quotation marks omitted).]

Furthermore, absent extraordinary circumstances, issues of witness credibility are for the jury to
resolve, and a reviewing court may not substitute its own view of the credibility of witnesses for
that of the jury. People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998)

        As discussed earlier, the prosecution presented sufficient evidence to prove that
defendant committed the offense of discharging a firearm at a dwelling, causing injury. This
charge was supported principally by Carmen’s testimony that she was standing on the porch of
her house when she saw defendant on the ground next to the porch and asked him what he was
doing. After her inquiry, he pointed a rifle in her direction and fired it, hitting her in the leg.
Although defendant raised a claim of self-defense, the evidence in support of that claim was
based on the actions of Carmen’s sons, who were in a different area away from Carmen. There
was no evidence that Carmen presented any threat to defendant’s safety. The jury could have
rationally found that defendant acted in self-defense to ward off a perceived threat from
Carmen’s sons, but that he was not justified in discharging a firearm at Carmen’s dwelling. In
addition, the jury could have logically acquitted defendant of the assault charges against Carmen
by finding that he did not intend to assault her, but that he did intentionally discharge a firearm at
her dwelling, which resulted in her being struck by a bullet, causing injury.

         There is no reasonable support for defendant’s position that the jury’s verdict was based
solely on sympathy for Carmen. The fact that the jury acquitted defendant of the assault charges
against Carmen undermines this claim. As defendant argues, the jury may have believed that
Carmen was an innocent bystander but that did not preclude the jury from reasonably finding
that it was defendant’s intentional discharge of a firearm at her house that caused her injury.

        For these reasons, defendant’s argument that the jury’s verdict is against the great weight
of the evidence is meritless.

                                        V. SENTENCING

        Defendant challenges his prison sentence of 3 to 15 years for intentionally discharging a
firearm at a dwelling, causing personal injury. Because we agree with defendant that the trial
court erred in scoring offense variable (OV) 13 of the sentencing guidelines, and the scoring of
that variable affects the appropriate guidelines range, we remand for resentencing.

        A trial court’s scoring decision must be supported by a preponderance of the evidence.
People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). This Court reviews the trial court’s
factual determinations for clear error. Id. “Whether the facts, as found, are adequate to satisfy

                                                 -7-
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.

       In scoring the guidelines, the trial court assessed 25 points for OV 13, which provides, in
relevant part:

              (1) Offense variable 13 is continuing pattern of criminal behavior. Score
       offense variable 13 by determining which of the following apply and by assigning
       the number of points attributable to the one that has the highest number of points:

                                                   * * *

              (c) The offense was part of a pattern of felonious criminal activity
       involving 3 or more crimes against a person . . . . . . . . . . . . . . . . . . . . . . 25 points

                                                   * * *

               (2) All of the following apply to scoring offense variable 13:

              (a) For determining the appropriate points under this variable, all crimes
       within a 5-year period, including the sentencing offense, shall be counted
       regardless of whether the offense resulted in a conviction. [MCL 777.43.]

The trial court counted the charges for which defendant was acquitted to support its assessment
of 25 points for OV 13. In denying defendant’s motion for resentencing, the court stated that the
“record here does establish that there was — and the Court was actually mandated to score that
25 points, offense variable 13 must have been scored at 25 points establishing a pattern of
criminal behavior using all the charged offenses here.”

       Defendant first argues that because the sentencing offense, discharge of a firearm at a
dwelling causing injury, MCL 750.234b(3), is classified as an offense against public safety,
MCL 777.16m, and because 25 points are to be scored under OV 13 only when the sentencing
“offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a
person,” MCL 777.43(1)(c), the trial court erred as a matter of law in assessing 25 points for OV
13. We disagree.

        MCL 777.22(5) provides that “[f]or all crimes against public safety, score offense
variables 1, 3, 4, 9, 10, 12, 13, 14, 16, 19, and 20.” Because the instructions direct the trial court
to score OV 13 when scoring the guidelines for a crime against public safety, we reject
defendant’s argument that the trial court was not permitted to score OV 13, or was restricted to
considering only public safety offenses to find a pattern of criminal activity. Although MCL
777.43(1)(c) requires the trial court to determine if a pattern of felonious criminal activity
involving 3 or more crimes against a person existed, the sentencing offense need not also be a
crime against a person.

        Defendant further argues that the trial court erred by scoring OV 13 on the basis of the
charged conduct for which he was acquitted. The trial court’s comments indicate that it believed
that it was required to score OV 13 merely because defendant had been charged with additional

                                                     -8-
crimes against a person, notwithstanding that the jury acquitted him of those charges. Although
MCL 777.43(2)(a) allows a court to consider criminal conduct that did not result in a conviction,
MCL 777.43(1)(c) still requires evidence of the defendant’s “criminal behavior” or “criminal
activity” in order for points to be assessed. People v Harverson, 291 Mich App 171, 180; 804
NW2d 757 (2010). Further, the court’s scoring decision must be supported by a preponderance
of the evidence. Hardy, 494 Mich at 438.

        The jury convicted defendant only of intentionally discharging a firearm at a dwelling,
and felony-firearm. It acquitted him of the remaining charges associated with Carmen and other
members of her family. We acknowledge that a sentencing court need not score the sentencing
guidelines consistent with a jury’s verdict. See People v Johnson, 298 Mich App 128, 131; 826
NW2d 170 (2012), citing People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d
886 (1993). But because the jury acquitted defendant of the remaining charges, the trial court
could not rely on those additional charges to score OV 13 unless it found by a preponderance of
the evidence that defendant actually engaged in the charged criminal activity. Id.; Hardy, 494
Mich at 438. Although defendant did not dispute engaging in the underlying conduct that was
offered in support of the additional charges, a mere finding that defendant engaged in that
conduct was not sufficient to support the scoring of OV 13. As explained, to be scored under
OV 13, a defendant’s conduct must involve “criminal activity.” MCL 777.43(1)(c); Harverson,
291 Mich App at 180. At trial, defendant claimed that his conduct did not constitute criminal
activity because it was justified, lawful self-defense. The trial court stated that it was “mandated
to score that 25 points . . . using all the charged offenses here.” The trial court’s comments
reflect an erroneous belief that the charges themselves were sufficient to score OV 13. The court
never made findings of fact by a preponderance of the evidence that defendant committed the
other charged offenses under circumstances that were not justified by self-defense. Accordingly,
as the record currently exists, the trial court erred in assessing 25 points for OV 13. See People v
Golba, 273 Mich App 603, 614; 729 NW2d 916 (2007).

       The trial court’s scoring of OV 13 affects defendant’s guidelines range. If OV 13 is not
scored, defendant’s total OV score will be reduced from 70 to 45 points, placing him in OV
Level IV instead of OV Level V. This change will lower defendant’s guidelines range from 29
to 57 months to 19 to 38 months. MCL 777.64. A scoring error that affects the guidelines range
requires resentencing. People v Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006).
Accordingly, we vacate defendant’s sentence for intentional discharge of a firearm at a dwelling
and remand for resentencing on that offense. 2



2
  Because we are remanding for resentencing, we do not reach defendant’s additional challenge
to the reasonableness and proportionality of his sentence. We note, however, that if we were not
remanding for resentencing on the basis of a scoring error, defendant would not be entitled to
relief with respect to his additional proportionality argument. Because defendant was sentenced
within the sentencing guidelines range, his sentence is presumed proportionate. People v
Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011). Further, MCL 769.34(10) requires this
Court to affirm a sentence that is within the guidelines range absent a scoring error or reliance on
inaccurate information. People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016).


                                                -9-
       We affirm defendant’s convictions but remand for resentencing consistent with this
opinion. We do not retain jurisdiction.

                                                           /s/ Michael J. Kelly
                                                           /s/ Jane E. Markey
                                                           /s/ Karen M. Fort Hood




Thus, if we did not conclude that the trial court erred in scoring OV 13, we would be required to
affirm defendant’s sentence, which was within the guidelines range.


                                              -10-
