                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 19, 2015
               Plaintiff-Appellee,

v                                                                  No. 319391
                                                                   Macomb Circuit Court
GREGORY MATTHEW DOHERTY,                                           LC No. 2012-002899-FH

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and SAWYER and BORRELLO, JJ.

PER CURIAM.

        A jury convicted defendant of assault with intent to do great bodily harm less than
murder, MCL 750.84,1 for which the trial court sentenced him as an habitual offender, fourth
offense, MCL 769.12, to a term of 76 to 200 months’ imprisonment. Defendant appeals as of
right, and we affirm.

        Defendant was involved in a dating relationship with the complainant. The complainant
asserted that after the couple arrived at the home they shared, defendant, who was inebriated and
belligerent, began to repeatedly strike her with his fists, causing her to grab a pillow and cower
in a fetal position on one side to avoid the harm. The beating left blood on the sheets and pillow
and blood splatter on the blinds. The complainant testified that after the beating, defendant
turned her over and forcibly engaged in sexual relations. She did not resist or express refusal,
because she was in fear. The complainant suffered severe bruising from the beating, and a tooth
was knocked out. That weekend, the complainant accompanied defendant to church and to a
friend’s home. The complainant explained that she was trained in cosmetology and applied
makeup to cover her injuries. From the friend’s home, the complaint called her daughter to pick
her up. As the complaint attempted to leave the friend’s home, defendant hit her on the shoulder.
The following day, the complainant went to the police, who photographed her injuries. In an
interview with a detective, defendant acknowledged striking the complainant at least 20 times.
At trial, defendant denied assaulting the complainant and testified that his admission during the




1
 The jury acquitted defendant of two additional counts of third-degree criminal sexual conduct,
MCL 750.520d(1)(b).

                                               -1-
interview referred to a prior incident. Defendant was convicted of the assault charge, but
acquitted of the criminal sexual conduct charges.

        Defendant first argues that there was insufficient evidence to support his conviction of
assault with intent to do great bodily harm less than murder. 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). In examining a sufficiency challenge, we review the evidence in a light most
favorable to the prosecution to determine whether a rational trier of fact could have found that
the essential elements of the crime were proved beyond a reasonable doubt. People v Dunigan,
299 Mich App 579, 582; 831 NW2d 243 (2013). Circumstantial evidence and reasonable
inferences arising from that evidence may constitute proof of the elements of the crime. People
v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). This Court’s review is deferential
because the trier of fact, not the appellate court, properly determines what inferences may be
fairly drawn from the evidence and the weight to be accorded those inferences. Malone, 287
Mich App at 654. Further, we will not interfere with the jury’s assessment of the weight of
evidence or the credibility of witnesses. Dunigan, 299 Mich App at 582; People v Eisen, 296
Mich App 326, 331; 820 NW2d 229 (2012).

         The crime of assault with intent to do great bodily harm less than murder requires proof
of (1) an attempt or threat with force or violence to do corporal harm to another (an assault), and
(2) an intent to do great bodily harm less than murder. People v Dillard, 303 Mich App 372,
377-378; 845 NW2d 518 (2013). Defendant challenges only the intent element. Assault with
intent to do great bodily harm is a specific intent crime. People v Stevens, 306 Mich App 620,
628-629; 858 NW2d 98 (2014), lv pending. “The intent to do great bodily harm less than murder
is ‘an intent to do serious injury of an aggravated nature.’ ” Id. (citation omitted). A defendant’s
state of mind may be inferred from all of the evidence. People v Kanaan, 278 Mich App 594,
622; 751 NW2d 57 (2008). “Intent may be inferred from a defendant’s use of physical
violence.” Dillard, 303 Mich App at 377. Although it is unnecessary for an actual injury to
occur, it is proper for the jury to consider the extent of any injury, and there is a presumption that
one intends the natural consequences of one’s actions. Id. at 378. Because of the difficulty in
proving an actor’s intent, minimal circumstantial evidence is necessary to prove the requisite
intent. Stevens, 306 Mich App at 628-629. The instigation of a fight, the use of a weapon, and
serious injury incurred by the victim are sufficient to demonstrate the intent required for assault
with intent to do great bodily harm less than murder. Id. at 629.

       In the present case, the complainant testified that the couple had a history of domestic
violence, and that defendant became violent when he drank alcohol. She stated that after a night
of drinking, defendant became angry with her and began to repeatedly strike her with his fists,
causing her to cower into a fetal position and grab a pillow for protection. She testified that one
of the punches to her face knocked out a tooth. The complainant’s injuries were depicted in
photographs that were taken four days after the assault. Testimony indicated that the
complainant had extensive bruising to her torso that extended to her hip and to her back, and a
swollen and bruised face. A police officer stated that he had never seen such injuries sustained
by a surviving victim. Defendant admitted in an interview that he struck the complainant
approximately 20 times. Although defendant claimed at trial that he was referring to a different
incident, the credibility of defendant’s testimony was an issue for the trier of fact to resolve, and
this Court will not second-guess that determination. Dunigan, 299 Mich App at 582. Moreover,

                                                 -2-
the bloody sheet and pillow, blood splatter on the blinds, and the photographs of the
complainant’s injuries provided independent corroboration of the complainant’s testimony.
Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable the
jury to find beyond a reasonable doubt that defendant assaulted the complainant, intending to
cause her great bodily harm.2

        Defendant next argues that the trial court erred by refusing to admit the out-of-court
statements of Roger “Bill” Strother, a mutual friend of defendant and the complainant, who died
before trial. Defendant argues that Strother’s statements to the police and to a defense
investigator were admissible under MRE 804(b)(7), and that the trial court’s exclusion of the
statements violated his constitutional right to present a defense. We disagree.

        We review a trial court’s decision to exclude evidence for an abuse of discretion. People
v King, 297 Mich App 465, 472; 824 NW2d 258 (2012); People v McCray, 245 Mich App 631,
634-635; 630 NW2d 633 (2001). Whether a defendant suffered a deprivation of his
constitutional right to present a defense is reviewed de novo. People v Steele, 283 Mich App
472, 480; 769 NW2d 256 (2009).

       Defendant does not dispute that Strother’s out-of-court statements are hearsay. MRE
801(c). The admission of hearsay evidence is generally prohibited unless it is governed by an
exception to the hearsay rule. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010).
Defendant argues that Strother’s statements were admissible under the catch-all exception in
MRE 804(b)(7), which provides:

               Other Exceptions. A statement not specifically covered by any of the
       foregoing exceptions but having equivalent circumstantial guarantees of
       trustworthiness, if the court determines that (A) the statement is offered as
       evidence of a material fact, (B) the statement is more probative on the point for
       which it is offered than any other evidence that the proponent can procure through
       reasonable efforts, and (C) the general purposes of these rules and the interests of
       justice will best be served by admission of the statement into evidence. However,
       a statement may not be admitted under this exception unless the proponent of the
       statement makes known to the adverse party, sufficiently in advance of the trial or
       hearing to provide the adverse party with a fair opportunity to prepare to meet it,
       the proponent’s intention to offer the statement and the particulars of it, including
       the name and address of the declarant.




2
  Defendant’s reliance on People v Emerson, 319 Mich 225, 226; 29 NW2d 161 (1947), is
misplaced. The complainant’s testimony describing the duration and nature of the assault, and
the injuries she received, distinguishes this case from Emerson.

                                               -3-
      In People v Katt, 468 Mich 272, 279; 662 NW2d 12 (2003), our Supreme Court analyzed
MRE 803(24), the identical equivalent to MRE 804(b)(7),3 and explained that the following four
elements must be established to warrant admission of a statement under the rule:

                  [E]vidence offered under MRE 803(24) must satisfy four elements to be
          admissible: (1) it must have circumstantial guarantees of trustworthiness equal to
          the categorical exceptions, (2) it must tend to establish a material fact, (3) it must
          be the most probative evidence on that fact that the offering party could produce
          through reasonable efforts, and (4) its admission must serve the interests of
          justice. Also, the offering party must give advance notice of intent to introduce
          the evidence. [Id.]

       In People v Lee, 243 Mich App 163, 178; 622 NW2d 71 (2000), this Court delineated the
following factors to determine whether statements have particularized guarantees of
trustworthiness considering the totality of the circumstances:

                   (1) the spontaneity of the statements, (2) the consistency of the statements,
          (3) lack of motive to fabricate or lack of bias, (4) the reason the declarant cannot
          testify, (5) the voluntariness of the statements, i.e., whether they were made in
          response to leading questions or made under undue influence, (6) personal
          knowledge of the declarant about the matter on which he spoke, (7) to whom the
          statements were made . . . , and (8) the time frame within which the statements
          were made. [Citations omitted.]

A material fact is a fact that is of consequence to the proceeding. People v Crawford, 458 Mich
376, 388-389; 582 NW2d 785 (1998).

          A police report contains the following narrative description of Strother’s statements to the
police:

                 INTERVIEW WITH ROGER [STROTHER]:

                  On 07/19/2012 Roger [Strother] arrived at MCSO at about 10 am to speak
          with me. Roger was escorted to Interview room 2 where I spoke with him about
          this incident.

                 Roger advised me that he resides at [REDACTION] Roger told me that he
          goes by “Bill” and knows both [the complainant] and Gregory Doherty. [The
          complainant] and Gregory were at his apartment on 07/08/2012. Roger denied
          seeing any assault and said if he saw Gregory hit [the complainant] then he would
          have hit Gregory. Roger said that he was watching “the ball game” while [the
          complainant] and Gregory were arguing. Roger does not know what they were
          arguing about.


3
  MRE 804(b)(7) is applicable when the declarant is unavailable, whereas MRE 803(24) applies
to out-of-court statements by an available declarant.

                                                   -4-
               Roger advised that he thinks that [the complainant] and Gregory were at
       his house on Tuesday 07/03/2012 or Wednesday 07/04/2012 he could not
       remember because his “days run together”. Roger again told me that he has not
       witnessed any physical assaults between them and did not see Gregory hit [the
       complainant]. Roger said it is not uncommon for the two to argue because [the
       complainant] is always leaving Gregory and he takes her back. Roger told
       Gregory to stop yelling at [the complainant] when she was leaving and said he did
       not want any trouble at his apartment. Roger said [the complainant] left and
       called Gregory several times the rest of the night. Roger also said he did not
       notice [the complainant] having any injuries. Roger did speak with Gregory’s
       mother prior to this interview but she did not tell him what to say to me. Roger
       did not have any further information. The interview was concluded.

        On October 12, 2012, Strother apparently wrote a statement for a defense investigator
that provided:

               I have known [the complainant] for at least year + ½, Greg the same. We
       all lived in same Bldg.

               On Friday, July 6, 2012, they were both talking about having been to a
       concert at the festival. [The complainant] was clearly with him on her own free
       willing.

               On July 7 they told me they went to the festival.

              On July 8, I picked them up at their house on Grand Street. They told me
       they had gone to church earlier that day. [The complainant] was free willing to be
       with Greg. When [the complainant] left she did not have any bruises on her face.
       After she left [the complainant] phoned Greg at least 5 times.

       Initially, Strother’s statements do not tend to establish a material fact. Strother’s police
statement described his observations on July 8. The charged assault was committed on the
evening of July 5 and 6. According to the complainant, no one else was present during
defendant’s assault. Although Strother reported that he did not view any injury to the
complainant on July 8, the complainant testified that she used her cosmetology training to cover
up her facial bruises with makeup. Furthermore, the predominant injury sustained by the
complainant was to her torso or stomach area, extending toward her back, which was covered by
her clothing. Strother’s statements did not elaborate on what the complainant was wearing or
whether such injuries would be visible in light of her clothing.

        Moreover, the statements lacked circumstantial guarantees of trustworthiness. Strother’s
statement to the defense investigator is inconsistent with his police statement. In his police
statement, Strother had difficulty identifying dates for his contact with the couple because “his
days ran together,” and he could not recall what the couple argued about because he did not pay
attention to them. His statement to the investigator recalled specific dates and contacts with the
couple, and mundane facts such as their attendance at a festival. The investigator statement also
references conversations on July 6 and 7, but Strother’s police statement did not indicate that he
saw or spoke to the couple on those dates. Further, Strother’s statement to the investigator that
                                                -5-
the complainant “was clearly with [defendant] of her own free willing” at a concert does not
reveal the basis for this conclusion, or indicate that it was based on personal knowledge of the
couple’s attendance at the concert. Further, there is no indication that the statements were made
spontaneously. On the contrary, they were made in the context of investigative interviews, a
factor that diminishes the inherent reliability of the statements. In addition, Strother’s statements
were not the most probative evidence of the complainant’s appearance and demeanor with
defendant after the assault. Defendant was able to also present the testimony of Reverend
Kilcoyne, who testified that he saw defendant and the complainant on the same day that they
visited Strother, and that he did not see any bruises on the complainant when she came to his
church nor did she appear in fear or distress while she was with defendant. Considering all of
the circumstances, the trial court did not abuse its discretion by excluding Strother’s hearsay
statements.

       We also reject defendant’s argument that the exclusion of Strother’s statements violated
his constitutional right to present a defense. Although a defendant has a constitutionally
guaranteed right to present a defense, US Const, Am VI; Const 1963, art 1, § 20, People v Yost,
278 Mich App 341, 379; 749 NW2d 753 (2008), that right may be limited by established rules of
procedure and evidence to ensure both fairness and reliability in ascertaining guilt and
innocence. People v Toma, 462 Mich 281, 294; 613 NW2d 694 (2000). Strother’s hearsay
statements were inadmissible under established rules of evidence. Further, defendant was
permitted to introduce other evidence of the complainant’s appearance and demeanor with
defendant after the assault through the testimony of Reverend Kilcoyne. Thus, the trial court’s
exclusion of Strother’s hearsay statements did not infringe on defendant’s constitutional right to
present a defense.

        Defendant next argues that the trial court erred in admitting evidence of prior episodes of
domestic violence between himself and the complainant. We disagree. The trial court admitted
the evidence under MCL 768.27b. Defendant was charged with an offense that qualifies as an
act of “domestic violence” against a “household member.” See MCL 768.27b(5)(a)(i) and
(b)(iv). Therefore, evidence of defendant’s other acts of domestic against the complainant was
admissible for any relevant purpose, including to demonstrate defendant’s propensity to commit
acts of domestic violence against the complainant, subject only to exclusion under MRE 403.
MCL 768.27b(1); People v Cameron, 291 Mich App 599, 609-612; 806 NW2d 371 (2011).

        We disagree with defendant’s argument that the evidence should have been excluded
under MRE 403 because its probative value was substantially outweighed by its prejudicial
effect. In Cameron, 291 Mich App at 611-612, this Court explained:

       [T]his Court must make two distinct [inquiries] under the balancing test of MRE
       403. First, this Court must decide whether introduction of Cameron’s prior-bad-
       acts evidence at trial was unfairly prejudicial. Then, this Court must apply the
       balancing test and “weigh the probativeness or relevance of the evidence” against
       the unfair prejudice. Upon completion of this second inquiry, this Court can
       determine whether the trial court abused its discretion in allowing Cameron’s
       prior bad acts into evidence.

              Under the first inquiry, we conclude that the trial court’s decision to allow
       evidence of Cameron’s prior bad acts did not unfairly prejudice Cameron at trial.
                                              -6-
       The “unfair prejudice” language of MRE 403 “ ‘refers to the tendency of the
       proposed evidence to adversely affect the objecting party’s position by injecting
       considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias,
       sympathy, anger, or shock.’ ” Moreover, admission of “[e]vidence is unfairly
       prejudicial when . . . [the danger exists] that marginally probative evidence will be
       given undue or preemptive weight by the jury.” However, the Michigan Supreme
       Court also recognizes that the prosecution does not have to use the least
       prejudicial evidence to make out its case. In this case, the prejudicial effect of
       other-acts evidence did not stir such passion as to divert the jury from rational
       consideration of Cameron’s guilt or innocence of the charged offenses. In fact,
       the trial court minimized the prejudicial effect of the bad-acts evidence by
       instructing the jury that the issue in this case was whether Cameron committed the
       charged offense.

               Under the second inquiry, we conclude that any prejudicial effect of the
       trial court’s decision to allow evidence of Cameron’s prior bad acts did not
       substantially outweigh the probative value of the evidence. A trial court admits
       relevant evidence to provide the trier of fact with as much useful information as
       possible. Here, the trial court found that Cameron’s prior bad acts were relevant
       and therefore admissible to establish Yacheson’s credibility. The trial court also
       found that Cameron’s actions were relevant to show that he acted violently toward
       Yacheson and that his actions were not “accidental” at the time of the incident.
       Additionally, the evidence of Cameron’s actions on six separate occasions with
       Yacheson and on three separate occasions with Ponder [another ex-girlfriend of
       the defendant] demonstrated Cameron’s propensity to commit acts of violence
       against women who were or had been romantically involved with him.

              Therefore, Cameron’s prior bad acts were relevant to the prosecutor’s
       domestic violence charge under MCL 768.27b. Any prejudicial effect of
       admitting the bad-acts evidence did not substantially outweigh the probative value
       of the evidence, and the trial court did not abuse its discretion when it allowed
       Cameron’s prior-bad-acts evidence to be introduced under MCL 768.27b.
       [Footnotes omitted.]

        As applied to this case, there is no indication that the prior disputes between defendant
and the complainant injected considerations extraneous to the case, causing jury bias, sympathy,
anger, or shock. Furthermore, the trial court minimized any potential for unfair prejudice by
instructing the jury that the issue in the case was only whether defendant committed the charged
offenses. Moreover, defendant was permitted to introduce evidence of the circumstances
surrounding the prior police contacts, including that he was not arrested for domestic violence as
a result of most of the police contacts. Defendant was also permitted to introduce evidence that
the complainant’s conduct also led to much of the police intervention, and that the complainant
had a history of drinking to excess, violence, and disregard of court orders and police instruction
to stay away from the other. Indeed, defense counsel used these circumstances to attack the
legitimacy of the complainant’s prior reports of abuse. Any prejudicial effect of this evidence
did not substantially outweigh its probative value. Thus, the trial court did not abuse its
discretion by admitting the evidence under MCL 768.27b.

                                                -7-
        Next, defendant argues that the trial court erred in scoring offense variables 7, 10, and 11
of the sentencing guidelines. We disagree. We review the trial court’s factual findings in
support of its scoring decisions for clear error, and those findings must be supported by a
preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
We review the trial court’s application of its findings to the statutory scoring criteria de novo, as
a question of law. Id.

        MCL 777.37 addresses aggravated physical abuse and provides that 50 points are to be
scored for OV 7 when a victim was treated with “sadism, torture, or excessive brutality or
conduct designed to substantially increase the fear and anxiety a victim suffered during the
offense.” MCL 777.37(1)(a). The evidence at trial indicated that the couple had a tumultuous
relationship, coupled with alcohol use that caused violence and requests for police intervention.
When defendant first assaulted the complainant, she was pushed into a wall and asked defendant
to stop. Instead of stopping, defendant relentlessly punched her 20 to 30 times, causing her to
grab a pillow and lie on her side to shield herself from the beating. Defendant then proceeded to
sexually assault the complainant, who testified that she was in fear and afraid to ask him to stop
or refuse him because of what would happen next. The degree of force exceeded that necessary
to commit the assault charge and placed the complainant in greater fear of what would happen
next. The trial court did not clearly err in scoring 50 points for OV 7.

        Defendant next argues that the trial court erred in scoring 10 points for OV 10,
exploitation of victim vulnerability. MCL 777.40(1)(b) directs that 10 points should be scored
when the offender “exploited a victim’s physical disability, mental disability, youth or agedness,
or a domestic relationship, or the offender abused his or her authority status.” Exploitation
occurs when the victim is manipulated for selfish or unethical purposes. MCL 770.40(3)(b);
People v Cannon, 481 Mich 152, 157; 749 NW2d 257 (2008). Vulnerability means the apparent
susceptibility of the victim to be injured, physically restrained, persuaded, or tempted. MCL
777.40(3)(c); People v Huston, 489 Mich 451, 466; 802 NW2d 261 (2011). Susceptibility need
not be inherent in the victim, but may arise from the specific circumstances of the crime. Id.

        The complainant testified that she suffered from multiple physical disabilities and that
defendant was aware of her condition. Additionally, defendant was involved in a domestic
relationship with the complainant, who testified that she remained with defendant and tolerated
his verbal and physical abuse because she did not have a support system, had limited income,
and needed a home. The complainant’s physical disabilities, coupled with her domestic
relationship with defendant, made her particularly vulnerable to abuse by defendant, which
defendant exploited through his continued episodes of abuse. Thus, the trial court did not err in
assessing 10 points for OV 10.

        We also reject defendant’s argument that the trial court erred in scoring 25 points for OV
11. OV 11 addresses criminal sexual penetrations, MCL 777.41, and 25 points should be scored
when one criminal sexual penetration occurred. MCL 777.41(1)(b). The court is to score all
sexual penetrations arising out of the sentencing offense. MCL 777.41(2)(a). A penetration
arises from the sentencing offense when there is a connective relationship with the offense.
People v Johnson, 474 Mich 96, 101-102; 712 NW2d 703 (2006). The complainant testified that
defendant sexually assaulted her immediately after the physical assault, and she explained that
she did not resist or refuse defendant’s sexual advances because she feared that he would beat
her again. This testimony establishes a connective relationship between the physical assault and
                                               -8-
the sexual assault. Further, the fact that the jury did not convict defendant of criminal sexual
conduct did not preclude the trial court from scoring OV 11. At sentencing, a court may
consider charges of which a defendant was acquitted if the underlying conduct is proven by a
preponderance of the evidence. People v Ewing, 435 Mich 443, 454-455, 479; 458 NW2d 880
(1990). The complainant’s testimony was sufficient to establish a criminal sexual penetration by
a preponderance of the evidence. Because the offense variables were properly scored, defendant
is not entitled to resentencing.

        Defendant raises additional issues in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4. Initially, there is no merit to
defendant’s argument that the tardy appointment of appellate counsel affected his substantive
rights, particularly his ability to file a postjudgment motion for a new trial or a Ginther4 hearing.
The record discloses that defendant’s first appointed appellate counsel declined the appointment
because of caseload constraints. The trial court thereafter promptly appointed substitute counsel.
The timing of the appointment did not affect defendant’s ability to file a postjudgment motion in
the trial court in accordance with MCR 7.208(B)(1). That rule allows a defendant to file a
motion in the trial court after a claim of appeal has been filed “[no] later than 56 days after the
commencement of the time for filing the defendant-appellant’s brief as provided by MCR
7.212(A)(1)(a)(iii),” which in turn references several different events that trigger the
commencement of the time for filing a brief. In particular, the latter rule provides:

         In a criminal case in which substitute counsel is appointed for the defendant, the
         time period runs from the date substitute counsel is appointed, the transcript is
         filed, or a settled statement of facts and certifying order is entered, whichever is
         later. . . . [Emphasis added.]

Thus, the appointment of substitute counsel had no effect on the time period for filing a post-
judgment motion.

        We reject defendant’s contention that the 56-day time period prescribed in MCR
7.208(B)(1) should be deemed to run “after the 84 day time frame for . . . filing . . . a
Supplemental Brief in accordance with administrative order 2004-6.” Administrative Order No.
2004-6, Standard 4, provides that a pro se Standard 4 brief must be filed “within 84 days after the
appellant’s brief is filed by the attorney, but if the case is noticed for submission within that 84-
day period, the filing must be received no later than 7 days before the date of submission, or
within the 84-day period, whichever is earlier.” See 471 Mich cii (2004). Because MCR
7.208(B)(1) does not reference the time period for filing a Standard 4 brief under AO 2004-6,
and AO 2004-6 does not itself address the filing of post-judgment motions after a claim of appeal
has been filed, there is no basis for concluding that the 56-day period in MCR 7.208(B)(1) begins
to run after the 84-day period for filing a Standard 4 brief. When construing a court rule, the
plain language of the rule is examined, and if unambiguous, the rule is interpreted as expressed
without further construction or interpretation. People v Lacalamita, 286 Mich App 467, 472;
780 NW2d 311 (2009). Indeed, it is not even the filing of an appellant’s brief that triggers the


4
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

                                                 -9-
start of the 56-day period in MCR 7.208(B)(1), but rather the commencement of the time for
filing the appellant’s brief. Thus, defendant may not rely on the time period for filing a Standard
4 brief to extend the 56-day period permitted under MCR 7.208(B)(1) for filing post-judgment
motions after a claim of appeal has been filed.

        We further note, however, that the fact that defendant did not file a postjudgment motion
within the 56-day period permitted under MCR 7.208(B)(1) would not preclude this Court from
either granting an appropriate motion to remand under MCR 7.211(C), or from remanding a case
for further proceedings as appropriate under MCR 7.216(A)(5) or (7). Nonetheless, we conclude
that such relief is not appropriate because defendant did not file a motion to remand under MCR
7.211(C), and he has not demonstrated that remand for further proceedings is otherwise
warranted.

          Defendant argues that this case should be remanded to determine whether the trial court
improperly ordered the involuntary administration of antipsychotic medication without an
appropriate showing that such action was necessary. Defendant relies on Sell v United States,
539 US 166; 123 S Ct 2174; 156 L Ed 2d 197 (2003), in which the Supreme Court observed that
“the Constitution permits the Government involuntarily to administer antipsychotic drugs to a
mentally ill defendant facing serious criminal charges in order to render that defendant
competent to stand trial, but only if the treatment is medically appropriate, is substantially
unlikely to have side effects that may undermine the fairness of the trial, and, taking account of
less intrusive alternatives, is necessary significantly to further important governmental trial-
related interests.” Id. at 179. The Court further stated, however, that “[a] court need not
consider whether to allow forced medication for that kind of purpose [i.e., competency to stand
trial], if forced medication is warranted for a different purpose, such as . . . purposes . . . related
to the individual’s dangerousness, or purposes related to the individual’s own interests where
refusal to take drugs puts his health gravely at risk.” Id. at 181-182 (emphasis in original).

        In this case, the documentation on which defendant relies indicates that the
administration of medication was ordered by a probate court in response to a petition for
hospitalization. It was not ordered by the court in defendant’s criminal case. In addition, the
documentation indicates that medication was requested because defendant was engaging in
bizarre behavior and was a danger to himself and others. There is no indication that medication
was requested for trial competency purposes. Therefore, defendant’s reliance on Sell, and the
standards for involuntary administration of drugs for trial competency purposes, is misplaced.
Because the record does not factually support defendant’s claim that antipsychotic medication
was administered for trial competency purposes, remand for further proceedings related to that
issue is not warranted.

       Affirmed.

                                                               /s/ Joel P. Hoekstra
                                                               /s/ David H. Sawyer
                                                               /s/ Stephen L. Borrello




                                                 -10-
