            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 6, 2020
               Plaintiff-Appellee,

v                                                                  No. 345215
                                                                   Calhoun Circuit Court
ROBERT DESHAWN AMERSON,                                            LC No. 2018-000228-FC

               Defendant-Appellant.


Before: TUKEL, P.J., and MARKEY and GADOLA, JJ.

MARKEY, J. (dissenting).

        Because I conclude that the trial court properly assessed 100 points for offense variable
(OV) 3, MCL 777.33(1)(a), which would not alter defendant’s placement at the highest OV level
in the Class E sentencing grid, MCL 777.66, even if the remaining scoring challenges were valid,
I would affirm defendant’s sentence of 57 to 120 months’ imprisonment.1 Accordingly, I
respectfully dissent.

        I begin my analysis without yet taking into consideration the impact of People v Beck, 504
Mich 605; 939 NW2d 213 (2019). One hundred points are properly assessed under OV 3 when
the victim was killed but only if the “death results from the commission of a crime and homicide
is not the sentencing offense.” MCL 777.33(1)(a) and (2)(b). In this case, homicide was not the
sentencing offense because the jury acquitted defendant of first-degree felony murder, MCL
750.316(1)(b), second-degree murder, MCL 750.317, and voluntary manslaughter, MCL



1
  Defendant was convicted of felon in possession of a firearm, MCL 750.224f. The crime of felon-
in-possession is a public safety offense, falling within the Class E sentencing grid. MCL 777.16m.
The highest OV level in the Class E sentencing grid is OV VI, covering assessments of 75 or more
total OV points. MCL 777.66. If a scoring error does not change the applicable minimum sentence
guidelines range, resentencing is not warranted. People v Francisco, 474 Mich 82, 89 n 8; 711
NW2d 44 (2006).



                                               -1-
750.321.2 With respect to the interpretation of the “results from the commission of a crime” phrase
in MCL 777.33(2)(b), our Supreme Court in People v Laidler, 491 Mich 339, 344-345; 817 NW2d
517 (2012), explained:

               This language contemplates factual causation, a conclusion supported by
       this Court’s decision in People v Schaefer, 473 Mich 418, 439 n 67; 703 NW2d 774
       (2005) (subsequently reversed on other grounds), in which we explained in the
       course of our interpretation of a former version of MCL 257.625(4) (operating a
       motor vehicle while under the influence of liquor and causing death) that “[h]ad the
       Legislature intended to require only factual causation and not proximate causation
       as well, the Legislature would have instead used the words ‘results in death’ rather
       than ‘causes the death.’ ” Because the Legislature in MCL 777.33(2)(b) used the
       phrase “results from the commission of a crime,” it is clear that the defendant’s
       criminal actions must constitute a factual cause of a death for purposes of OV 3.
       “In determining whether a defendant’s conduct is a factual cause of the result, one
       must ask, ‘but for’ the defendant’s conduct, would the result have occurred?” Id. at
       435-436 (citations omitted). Specifically, “but for” defendant’s commission of a
       crime, would his coperpetrator’s death have occurred? [Alteration in original.]

        Although the jury may have based the felon-in-possession conviction on defendant’s
possession of the gun after the shooting when he left the scene with it, there was evidence that
defendant, a felon, also possessed the gun before and during the shooting. Under simple factual
causation analysis, “but for” defendant’s gaining some level of possession of the firearm at a point
before the shooting, the weapon would not have been discharged, and Kyle Brown would not have
been struck by gunfire and killed.3 The trial court stated at sentencing, “During his possession as
a felon of this weapon somebody died as . . . a result of that weapon being discharged and so 100
points is appropriately scored.” The record supported the trial court’s conclusion.4




2
 The jury was not instructed on and did not consider first-degree premeditated murder, MCL
750.316(1)(a).
3
  The reference to the “commission of a crime” in MCL 777.33(2)(b) pertains solely to the
sentencing offense, People v Biddles, 316 Mich App 148, 165; 896 NW2d 461 (2016), which in
this case is felon-in-possession.
4
 Under the sentencing guidelines, the trial court’s findings of fact 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); People v Rhodes (On Remand), 305 Mich App 85, 88; 849 NW2d 417 (2014).
Clear error is present when the appellate court is left with a firm and definite conviction that an
error occurred. People v Fawaz, 299 Mich App 55, 60; 829 NW2d 259 (2012). This Court reviews
de novo “[w]hether the facts, as found, are adequate to satisfy the scoring conditions prescribed
by statute . . . .” Hardy, 494 Mich at 438; see also Rhodes, 305 Mich App at 88. In scoring OVs,
a court may consider all record evidence, including the contents of a presentence investigation



                                                -2-
        I do find it necessary to distinguish People v Biddles, 316 Mich App 148, 165; 896 NW2d
461 (2016), where this Court, reviewing a 100-point assessment for OV 3, held that “[t]here was
no evidence, let alone a preponderance of it, establishing a causal connection between defendant’s
crime of felon-in-possession and [the victim’s] death.” In Biddles, the evidence revealed that the
defendant’s codefendant, Charles Johnson, shot and killed the victim and that the “defendant was
observed holding a gun after the shooting by codefendant Johnson had concluded.” Id. at 151
(emphasis added). Accordingly, there plainly was no “but for” or factual causation in Biddles
linking the defendant’s possession of a gun to the shooting death. And thus Biddles is easily
distinguishable because here there was evidence that defendant possessed the gun before the
shooting.

        The question becomes whether the trial court’s assessment of 100 points for OV 3 runs
afoul of Beck wherein our Supreme Court held:

               When a jury has made no findings (as with uncharged conduct, for
       example), no constitutional impediment prevents a sentencing court from punishing
       the defendant as if he engaged in that conduct using a preponderance-of-the-
       evidence standard. But when a jury has specifically determined that the prosecution
       has not proven beyond a reasonable doubt that a defendant engaged in certain
       conduct, the defendant continues to be presumed innocent. To allow the trial court
       to use at sentencing an essential element of a greater offense as an aggravating
       factor, when the presumption of innocence was not, at trial, overcome as to this
       element, is fundamentally inconsistent with the presumption of innocence itself.

              [C]onduct that is protected by the presumption of innocence may not be
       evaluated using the preponderance-of-the-evidence standard without violating due
       process. . . . .

                                              ***

               [W]e do not believe existing United States Supreme Court jurisprudence
       prevents us from holding that reliance on acquitted conduct at sentencing is barred
       by the Fourteenth Amendment. We hold that it is.

               Because the sentencing court punished the defendant more severely on the
       basis of the judge’s finding by a preponderance of the evidence that the defendant
       committed the murder of which the jury had acquitted him, it violated the
       defendant’s due-process protections. [Beck, 504 Mich at 626-629 (citations
       omitted).]




report, plea admissions, and testimony presented at a preliminary examination. People v Johnson,
298 Mich App 128, 131; 826 NW2d 170 (2012).




                                               -3-
        Here, the jury determined that the prosecution failed to establish beyond a reasonable doubt
one or more of the elements of first-degree felony murder, second-degree murder, and voluntary
manslaughter. Stated otherwise, the jury concluded that defendant’s conduct did not amount to
any one of these three forms of homicide. Perhaps the jury acquitted defendant of the homicide
charges on the basis that it was not shown that he had the requisite malice, i.e., the intent to kill,
the intent to do great bodily harm, or knowingly creating a very high risk of death or great bodily
harm knowing that death or such harm was the likely result. See M Crim JIs 16.4, 16.5, and 16.8;
see also People v Mendoza, 468 Mich 527, 533-540; 664 NW2d 685 (2003) (discussing the various
forms of homicide). Or the jury may have acquitted defendant of felony murder on the basis that
no armed robbery was taking place at the time of the shooting. Other possibilities are that the jury
acquitted defendant of the homicide charges on the basis of self-defense or accident, which theories
pertained solely to the homicide offenses and were presented to the jury through the instructions.
Additionally, the jury theoretically could have acquitted defendant of the homicide charges on the
basis that defendant did not cause the death of the victim with a gun, which was an element of all
three homicide charges.

        The conduct that supported an assessment of 100 points for OV 3 was defendant’s
possession of a firearm while being a convicted felon, which then resulted in or caused Brown’s
death under a “but for” analysis, as the trial court found at sentencing. In People v Roberts (On
Remand), __ Mich App __, __; __ NW2d __ (2020); slip op at 5, this Court construed Beck as
supporting an inference that “a sentencing court must consider a defendant as having undertaken
no act or omission that a jury could have relied upon in finding the essential elements of any
acquitted offense proved beyond a reasonable doubt.” Id. at __; slip op at 5 (emphasis added).
Assuming the jury found defendant guilty of felon-in-possession solely on the basis of post-
shooting possession of the gun, there nevertheless would be no support for a conclusion that the
jurors acquitted defendant of possessing the firearm before or during the shooting. Therefore, in
that respect, there was no Beck violation when the trial court found that defendant possessed the
gun before or at the time of the shooting. The more difficult and closer question is whether the
court’s finding that Brown’s death resulted from or was caused by defendant’s possession of a
firearm encompassed a matter that the jury could have relied upon when acquitting defendant
relative to the homicide charges. In other words, could the jury have acquitted defendant of the
homicide charges on the basis of a determination that defendant did not cause Brown’s death by
gunfire? Although this is, as mentioned, theoretically possible, I cannot conclude that the jury
could have relied or did rely on a lack of causation in acquitting defendant of homicide. As
reflected by defendant’s own testimony, and as he argued to the jury, the shooting was done in
self-defense and/or accidently, which in either case entailed defendant’s causing Brown’s death
by shooting—defendant was not acquitted due to a lack of causation. The jury’s verdict was not
inconsistent with the trial court’s assessment of 100 points for OV 3. Viewed from a different
perspective, the trial court’s determination that Brown’s death resulted from the commission of
the offense of felon-in-possession under a “but for” analysis did not amount or equate to a
determination that defendant committed felony murder, second-degree murder, or voluntary
manslaughter.




                                                 -4-
In sum, I would affirm defendant’s sentence. Accordingly, I respectfully dissent.



                                                    /s/ Jane E. Markey




                                       -5-
