                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 19, 2017
               Plaintiff-Appellee,

v                                                                  No. 329471
                                                                   Kalamazoo Circuit Court
ADAM DAVID SHIGWADJA,                                              LC No. 2014-001371-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and METER and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant appeals as of right his bench-trial convictions of assault with intent to cause
great bodily harm less than murder, MCL 750.84, first-degree home invasion, MCL 750.110a(2),
and second-degree arson, MCL 750.73(1). The trial court sentenced him as a second-offense
habitual offender, MCL 769.10, to 83 months to 15 years’ imprisonment for the assault
conviction and 175 months to 30 years’ imprisonment for the arson and home invasion
convictions. The assault and arson sentences are to be served concurrently, but consecutive to
defendant’s sentence for home invasion. We affirm.

        The female victim and defendant began dating as teenagers and had a tumultuous and
volatile relationship for three years, marked by physical, verbal, and emotional abuse, as well as
manipulative conduct, by defendant, which at times terrorized the victim and culminated on
September 15, 2014, with the conduct giving rise to the convictions. On that date, the victim,
who lived in a residence separate from defendant, arrived at her house in the evening, and her
mother and brother were present. Subsequently, the victim went upstairs to her bedroom while
speaking on a cell phone to a friend. Once in her bedroom, the victim closed her door, at which
point defendant popped up from underneath a comforter that was lying next to the door.
Defendant had a knife and gasoline, and he took the victim’s phone. The victim began crying,
which her mother and brother heard, and the victim’s mother went upstairs to check on her. The
victim’s mother could not open the door, as defendant used his body to keep it pushed shut. The
mother inquired of her daughter whether everything was okay, and the victim, who feared that
defendant would kill her if she informed her mother of his presence, indicated that she was fine
and was crying because of a mean text that she had received. The victim’s mother insisted on
coming in, but did not enter and then headed back downstairs after the victim assured her that
she would be out soon.


                                               -1-
        Defendant then approached the victim and cut her chest with the knife, indicating that he
was going to kill her. The victim collapsed, crouched down, and began sobbing. Her mother
heard a thud, her daughter cry out, and what sounded like wrestling, and the victim’s mother
raced back to the bedroom, slamming the door open after some initial unsuccessful efforts at
opening the door. According to the victim, defendant had poured the gasoline in front of the
bedroom door and to the side and then lit it on fire as the mother was entering the room. Flames
erupted from the floor to the ceiling, and the victim called out for her brother to come help. The
victim testified that defendant wrapped his arms around her and began moving the two of them
toward the fire; she then closed her eyes, believing that she was going to die. Her brother,
wielding a baseball bat, reached the bedroom and pushed through the flames. The victim’s
brother thought that he saw defendant holding a knife up to the victim’s neck and chest area.
The brother began hitting defendant with the bat, driving him back toward the bedroom’s
window. At some point, defendant released the victim, and he then jumped through the window,
landed on the ground, and raced from the scene. In the process of swinging the bat at defendant
in the chaotic, fiery scene, the victim’s brother had accidently struck his sister in the head, and
she was rushed to the hospital for treatment of a severe head injury. The victim’s hair was
singed on one side from the fire. An officer later arrested defendant as he limped down a street;
defendant had injuries to his knuckles and burns on his leg.1

        In the bench trial, the court found defendant guilty of the arson and home invasion
charges, but rejected a charge of assault with intent to commit murder, MCL 750.83, finding
defendant guilty of the lesser included offense of assault with intent to commit great bodily harm
less than murder. Defendant now appeals as of right.

         On appeal, defendant first argues that the trial court erred when it allowed the victim to
testify about prior acts of domestic violence committed by defendant against the victim that were
not included in the prosecution’s pretrial notice of intent. The evidence, he maintains, was not
admissible under MRE 404(b) and, to the extent that it was relevant and admissible under MCL
768.27b, the prosecution’s failure to give notice prevented defendant from “adducing evidence to
refute the allegations, which he denies.” Defendant asserts that the testimony was highly
prejudicial and deprived him of a fair trial, where it was inconsistent with his testimony that his
intent was only to self-immolate and not to burn the residence. According to defendant,
especially prejudicial was evidence showing that defendant had allegedly stated in July 2014 that
he intended to drive his car into the victim’s home with gasoline in order to cause an explosion.

       Given that the prior acts and the assault charge clearly constituted “domestic violence,”
where defendant and the victim had a dating relationship and the conduct entailed assaultive
behavior or the causing of physical or mental harm, MCL 768.27b governed the admission of the



1
  Defendant testified that he had accidently bumped the victim’s chest with the knife, that he
poured the gasoline on the left side of his body and lit himself on fire, while admitting on cross-
examination that he only had burns near his ankle and on the bottom of his pants, and that, after
briefly blacking out in the bedroom, he grabbed the victim in an effort to keep her away from the
flames.


                                                -2-
prior acts, superseding MRE 404(b), so to the extent that defendant’s argument is based on MRE
404(b), it is rejected. See People v Watkins, 491 Mich 450, 476-477; 818 NW2d 296 (2012). On
a substantive level, defendant makes no argument that the evidence was inadmissible under MCL
768.27b, and this statutory provision allows for the admission of “domestic violence” evidence
for any relevant purpose, including propensity or the character of the accused, subject to MRE
403. MCL 768.27b(1); People v Daniels, 311 Mich App 257, 272-273; 874 NW2d 732 (2015).2

        Defendant’s argument, as relevant under MCL 768.27b, is ultimately premised solely on
a lack of notice. Under MCL 768.27b(2), “[i]f the prosecuting attorney intends to offer evidence
under this section, the prosecuting attorney shall disclose the evidence, including the statements
of witnesses or a summary of the substance of any testimony that is expected to be offered, to the
defendant not less than 15 days before the scheduled date of trial . . . .” Because the issue was
not preserved by defendant, our review is for plain error affecting substantial rights, requiring a
showing of prejudice, as well as a showing of actual innocence or, independent of innocence, of
an error that seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Defendant’s
cursory and vague assertion that the lack of notice “prevented him from adducing evidence to
refute the” challenged evidence is inadequate to establish the requisite prejudice; we note that
defendant does not explain how he would have proceeded differently with notice, nor does he
specifically explain why the lack of notice prevented him from refuting the prior acts. See
People v Jackson, 498 Mich 246, 278-279; 869 NW2d 253 (2015) (no prejudice established from
the lack of notice, where the defendant did not show how he would have approached the trial or
presented his defense differently had the required notice been given, and where he did not
identify or present offers of proof from any witnesses that he might have called with notice).
And with respect to defendant’s threat to use his vehicle and gasoline to blow up the victim’s
home, this was a statement in a text message, not an other act. See People v Rushlow, 179 Mich
App 172, 176; 445 NW2d 222 (1989) (“As the Supreme Court recently noted, a prior statement
does not constitute a prior bad act because it is just that, a prior statement and not a prior bad
act.”) Accordingly, no notice under MCL 768.27b was even necessary to introduce that
particular testimony. In sum, reversal is unwarranted under the plain-error test.

        Defendant next argues that there was insufficient evidence to support his arson
conviction, where a rational factfinder could not have found beyond a reasonable doubt that
defendant intended to burn the dwelling or intentionally committed an act that created a very
high risk of burning the dwelling, with defendant being aware of the risk and disregarding it.
Defendant contends that the evidence instead showed that he was attempting suicide by pouring
gas on his left pant leg and then igniting it. For purposes of second-degree arson, the prosecution
had to prove that defendant “willfully or maliciously” burned, damaged, or destroyed by fire or


2
  Had defendant challenged the admissibility of the evidence under MCL 768.27b, aside from the
purported notice failure, we would have rejected the argument, considering that the prior acts
revealed his abusive history and character, strongly bearing on his credibility, motivation, and
intent relative to the charged offenses. And the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice, MRE 403.


                                                -3-
explosive “a dwelling . . . or its contents . . . .” MCL 750.73(1). At trial, it was undisputed that
the victim’s home constituted a dwelling and that defendant started a fire that damaged the
dwelling and its contents. The only issue in dispute was whether he “willfully or maliciously”
burned the dwelling or its contents.3

        The phrase “willfully or maliciously” means to commit an act “while knowing it to be
wrong and without any just cause or excuse” and to do so “intentionally or with a conscious
disregard of known risk to the property of another.” People v Richardson, 118 Mich App 492,
496; 325 NW2d 419 (1982) (quotation marks and citation omitted). The evidence showed that
defendant brought gasoline to the victim’s home, poured it out, and ignited it with a lighter.
Although he claimed that he only intended to pour the gasoline on himself, there was evidence
and testimony that directly contradicted his version of events. The victim testified that defendant
poured the gasoline across the doorway just as her mother was attempting to force her way into
the bedroom. And the victim’s mother similarly testified that the spill appeared to be in a line
before the door and that when she tried to enter the bedroom she was blocked by a wall of
flames. The prosecution also presented photos of the damaged doorway that suggested that the
gasoline was deliberately poured across the doorway, and it presented photos of defendant’s
injuries that suggested that he did not directly pour the gas on himself.

        Viewing this evidence in a light most favorable to the prosecution, taking into
consideration the circumstantial evidence and all reasonable inferences arising from the evidence
generally, resolving all conflicts in the evidence in favor of the prosecution, deferring to the trial
court’s assessment of the weight of the evidence and the credibility of the witnesses, People v
Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008), and appreciating that minimal
circumstantial evidence suffices to establish intent, which can be inferred from any facts in
evidence, People v Unger, 278 Mich App 210, 223; 749 NW2d 272 (2008), we hold that the
evidence was sufficient to find that defendant intended to burn the house or that he intentionally
committed an act that created a very high risk of burning the dwelling, with defendant being
fully aware of the risk and disregarding it. Indeed, it would defy logic to conclude that defendant



3
 As reflected in People v Kanaan, 278 Mich App 594, 618-619; 751 NW2d 57 (2008), in the
context of a sufficiency argument, the principles governing our review of a jury’s verdict apply
equally when reviewing a verdict rendered in a bench trial:
               We review claims of insufficient evidence de novo. When ascertaining
       whether sufficient evidence was presented in a bench trial to support a conviction,
       this Court must view the evidence in a light most favorable to the prosecution and
       determine whether a rational trier of fact could find that the essential elements of
       the crime were proven beyond a reasonable doubt. This Court will not interfere
       with the trier of fact's role of determining the weight of the evidence or the
       credibility of witnesses. Circumstantial evidence and reasonable inferences that
       arise from such evidence can constitute satisfactory proof of the elements of the
       crime. All conflicts in the evidence must be resolved in favor of the prosecution.
       [Citations omitted.]


                                                 -4-
was unaware of the fire hazard or risk of fire damage to the dwelling caused by dousing an area
with gasoline, if even just his pant leg, and then igniting the gasoline. Reversal of the arson
conviction is unwarranted.

        Defendant next maintains that there was insufficient evidence to support the conviction of
assault with intent to cause great bodily harm less than murder, where there “was no evidence
that [he] intended to cause great bodily harm.” A person commits the offense when he or she
attempts or threatens to do corporal harm to another with force or violence and does so with the
intent to cause great bodily harm less than murder. See People v Brown, 267 Mich App 141,
147; 703 NW2d 230 (2005). The requisite intent is the intent to do serious injury of an
aggravated nature. People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014). And only
minimal circumstantial evidence is necessary to show the required intent. Id. at 629.

        Here, defendant cut the victim with a knife, began physically forcing the victim toward
the fire started by defendant, such that she thought that she was about to die before her brother
entered the room and saved her, and defendant expressly indicated that he intended to kill the
victim. The victim’s hair was singed by the fire. Viewing this evidence in a light most favorable
to the prosecution, taking into consideration the circumstantial evidence and all reasonable
inferences arising from the evidence generally, resolving all conflicts in the evidence in favor of
the prosecution, deferring to the trial court’s assessment of the weight of the evidence and the
credibility of the witnesses, Kanaan, 278 Mich App at 618-619, and appreciating that minimal
circumstantial evidence suffices to establish intent, which can be inferred from any facts in
evidence, Unger, 278 Mich App at 223, we hold that the evidence was more than sufficient to
show that defendant intended to cause serious injury of an aggravated nature, i.e., great bodily
harm, to the victim.

        Defendant next argues that the trial court erred in its handling of his objection to
statements that were contained in his presentence investigation report (PSIR). The PSIR
indicated that the victim’s mother had been informed by the victim of a previous incident in
which defendant abducted her at knife point, drove her to his grandparents’ residence in Paw
Paw, and held her captive for 14 hours. This incident was not addressed in the evidence
presented at trial, and defense counsel at sentencing stated that defendant disputed the claim and
objected to its inclusion in the PSIR. The prosecution responded, stating that the incident had
been reported. The trial court indicated that “given the extensive information attached in support
of everyone’s brief here too or sentencing memorandums – it certainly is addressed.” The court
decided to leave the information in the PSIR, implicitly finding it to be accurate, but the court
also added to the PSIR that defendant disputed the claim and that there was no evidence at trial
concerning the incident. The court noted, “I think I can consider it in totality for sentencing.”
On appeal, defendant claims that the sentence was based upon inaccurate information, i.e., the
kidnapping incident, and requests resentencing or an evidentiary hearing.

        “If any information in the presentence report is challenged, the court must allow the
parties to be heard regarding the challenge, and make a finding with respect to the challenge or
determine that a finding is unnecessary because it will not take the challenged information into
account in sentencing.” MCR 6.425(E)(2). A PSIR may include “any . . . information that may
aid the court in sentencing.” MCR 6.425(A)(1)(l). The scope of a PSIR is necessarily broad;
therefore, “[a] judge preparing to sentence a defendant may consider comments made by the

                                                -5-
defendant to the probation officer during the presentence interview in addition to evidence
adduced at trial, public records, hearsay relevant to the defendant's life and character, and other
criminal conduct for which the defendant has not been charged or convicted.” Morales v Parole
Bd, 260 Mich App 29, 46; 676 NW2d 221 (2003) (citation omitted).

        Defendant never requested an evidentiary hearing below; defense counsel quickly
accepted the trial court’s resolution and moved on. A PSIR is presumed to be accurate and may
be relied on by a sentencing court “unless effectively challenged by the defendant.” People v
Callon, 256 Mich App 312, 334; 662 NW2d 501 (2003) (emphasis added), citing People v
Grant, 455 Mich 221, 233-234; 565 NW2d 389 (1997). The simple and cursory assertion by
counsel below that defendant “disputes” the incident absent any elaboration and without having
defendant himself step forward at the sentencing hearing and deny the incident or offer an
affidavit was not an “effective” challenge, such that an evidentiary hearing was required with the
burden shifting to the prosecution to show by a preponderance of the evidence that the incident
occurred. See Callon, 256 Mich App at 333-334 (noting that “it is incumbent on a defendant to
first mount an effective challenge to invoke his right to a hearing on a contested fact at
sentencing and, thus, the need for an evidentiary hearing with a finding by the trial court based
upon the preponderance of evidence” and that “a flat denial of an adverse factual assertion” may
not suffice, as opposed to “an affirmative factual assertion,” depending on the nature of the
disputed matter) (citations and quotation marks omitted). Again, defendant did not even request
an evidentiary hearing below. And on appeal, defendant fails to even frame an argument
employing the pertinent caselaw and analysis that contemplates whether there was an “effective”
challenge necessitating a hearing. We conclude that the trial court complied with MCR
6.425(E)(2) by allowing defendant to present the challenge and then by resolving the challenge,
and any argument about an evidentiary hearing is rejected and has not been properly presented to
us.

        Finally, defendant argues that, given the evidence in the record, the trial court should
have assessed: offense variable (OV) 3 (physical injury to victim), MCL 777.33, at 10 points
instead of 25 points; OV 4 (psychological injury to victim), MCL 777.34, at zero points instead
of 10 points; OV 7 (aggravated physical abuse), MCL 777.37, at zero points instead of 50 points;
OV 10 (exploitation of vulnerable victim; predatory conduct), MCL 777.40, at zero points
instead of 15 points; OV 13 (continuing pattern of criminal behavior), MCL 777.43, at zero
points instead of 25 points; and OV 16 (property damaged or destroyed), MCL 777.46, at zero
points instead of 10 points. We first note that, to the extent that defendant is making a claim
under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), that the trial court engaged in
constitutionally-impermissible fact-finding when scoring the challenged OVs, the argument is
rejected, given that defendant was sentenced after Lockridge was issued and pursuant to advisory
guidelines. See People v Biddles, __ Mich App __; __ NW2d __ (2016); slip op at 5-6 (“The
constitutional evil addressed by the Lockridge Court was not judicial fact-finding in and of itself,
it was judicial fact-finding in conjunction with required application of those found facts for
purposes of increasing a mandatory minimum sentence range, which constitutional violation was
remedied in Lockridge by making the guidelines advisory, not by eliminating judicial fact-
finding.”).

       Next, the unchallenged total OV points for defendant is 60; he had been assessed 185
total OV points. With respect to the applicable guidelines grid concerning class B offenses, the

                                                -6-
top OV level is level VI, which requires a score of 75 or more points. MCL 777.63.
Accordingly, if, in regard to the challenged scores, the trial court did not err in assessing 15 of
those points, there would be no basis for reversal, as only when the guidelines range is altered is
it necessary to remand for resentencing. People v Francisco, 474 Mich 82, 89; 711 NW2d 44
(2006). In People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013), our Supreme Court
observed:

               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. 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.
       [Citations omitted.]

        With respect to OV 3, a trial court must assess 25 points if it finds that a “[l]ife
threatening or permanent incapacitating injury occurred to a victim.” MCL 777.33(1)(c).
Defendant suggests that the trial court could only consider the nature and extent of the physical
injury that he actually inflicted on the victim, which would not include the injury to the victim’s
head that was inflicted by her brother while swinging the baseball bat. However, the statute did
not limit the trial court to consideration of only those injuries directly inflicted by defendant
himself. Rather, the Legislature simply required the scoring of points for an injury that
“occurred to a victim” during the offense. MCL 777.33(1)(c). Thus, the trial court could
properly consider the injury that the victim suffered when her brother accidentally struck her
with the baseball bat, given that she would not have suffered the head injury but for defendant’s
home invasion and assault. See, e.g., People v Laidler, 491 Mich 339, 345-346; 817 NW2d 517
(2012) (holding that the trial court could properly score OV 3 on the basis of an injury inflicted
by a homeowner who exercised his right to use force in self-defense during a home invasion
because the injury to a coperpetrator would not have occurred but for the defendant perpetrator’s
commission of the home invasion).

         Defendant further contends that there was no evidence that the victim’s head injury was
life threatening or permanently incapacitating. During her trial testimony, the victim agreed that
she needed surgery to treat the head injury. And the PSIR stated that the victim suffered “a
severe head injury.” Also, it was indicated at sentencing that the victim underwent “brain
surgery” and “needed 24-hour care for 6-weeks” as a result of the injury.4 It is within the realm
of common understanding that a strike to the head with a baseball bat can cause a life-threatening



4
  “When calculating the sentencing guidelines, a court may consider all record evidence,
including the contents of a PSIR, plea admissions, and testimony presented at a preliminary
examination.” People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). It may
also consider a victim impact statement in a PSIR or statements or letters submitted to the court
for consideration on sentencing. See, e.g., People v Earl, 297 Mich App 104, 109-110; 822
NW2d 271 (2012). Further, the trial court may properly rely on inferences that arise from the
record evidence when making the findings underlying its scoring of offense variables. Id. at 109.


                                                -7-
injury, and the trial court could reasonably infer from the testimony and statements at sentencing
that the victim’s head injury was such an injury. We find no error in the trial court’s ruling.

        Adding 25 points for OV 3 to the unchallenged 60 points places defendant at OV level
VI, the top level (75+), MCL 777.63, and therefore there is no basis to remand for resentencing,
Francisco, 474 Mich at 89. Accordingly, there is no need for us to go further. That said, we find
that the evidence also adequately supported the scores for OVs 4, 7, 10, 13, and 16. There was
overwhelming evidence that the victim suffered “[s]erious psychological injury requiring
professional treatment,” including post-traumatic stress disorder, thereby supporting the
assessment of ten points for OV 4, MCL 777.34(1)(a). Next, there was sufficient evidence that
the “victim was treated with . . . egregious conduct designed to substantially increase the fear and
anxiety . . . [she] suffered during the offense,” including defendant popping out from underneath
the comforter after hiding in the victim’s bedroom, holding her at knifepoint, telling her that he
was going to kill her, and then attempting to burn her alive, thereby supporting the assessment of
50 points for OV 7, MCL 777.37(1)(a). Next, there was overwhelming evidence that defendant
engaged in “preoffense conduct directed at [the] victim . . . for the primary purpose of
victimization[,]” i.e., predatory conduct, including preoffense ominous and threatening text
messages sent by defendant to the victim, thereby supporting the assessment of 15 points for OV
10, MCL 777.40(1)(a) and (3)(a). Next, there was sufficient evidence that the home invasion
offense “was part of a pattern of felonious criminal activity involving 3 or more crimes against a
person,” including a 2013 felonious assault conviction and the three offenses for which
defendant was convicted in this case, thereby supporting the assessment of 25 points for OV 13,
MCL 777.43(1)(c). As indicated in MCL 777.43(2)(a) for purposes of OV 13, all crimes
committed by defendant “within a 5-year period, including the sentencing offense,” had to be
counted, and without regard to “whether the offense resulted in a conviction.” Moreover,
contrary to defendant’s argument, multiple concurrent offenses arising from the same incident or
from a single criminal episode are to be counted in scoring OV 13. People v Gibbs, 299 Mich
App 473, 487; 830 NW2d 821 (2013); People v Harmon, 248 Mich App 522, 532; 640 NW2d
314 (2001). We note that the assault, arson, and home invasion crimes were three separate and
distinct offenses. Finally, there was sufficient evidence that the fire-damaged portion of the
home had a value of more than $20,000, including the information in the PSIR that the insurance
carrier paid more than $24,000 to cover the damages, thereby supporting the assessment of ten
points for OV 16, MCL 777.46(1)(b). In sum, the trial court did not commit clear error in
scoring OVs 3, 4, 7, 10, 13, and 16. Resentencing is unwarranted.

       Affirmed.



                                                             /s/ William B. Murphy
                                                             /s/ Patrick M. Meter
                                                             /s/ Amy Ronayne Krause




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