            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 28, 2019
               Plaintiff-Appellee,

v                                                                   No. 341915
                                                                    Oakland Circuit Court
GREGORY ALLEN BELKIN,                                               LC No. 2017-262898-FC

               Defendant-Appellant.


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

PER CURIAM.

        Defendant pleaded nolo contendere to second-degree murder, MCL 750.317, and
operating a motor vehicle while intoxicated (OWI) causing death, MCL 257.625(4). He was
sentenced to 25 to 40 years’ imprisonment for the second-degree murder conviction and to 10 to
15 years for the OWI conviction. Defendant now appeals by leave granted. People v Belkin,
unpublished order of the Court of Appeals, entered March 16, 2018 (Docket No. 341915). We
affirm.

        On January 24, 2017, defendant was driving his Maserati eastbound on Square Lake
Road in Bloomfield Township when he crashed into the rear end of Rhonda Williams’s vehicle.
Williams was pronounced dead at the hospital shortly after the crash. Later testing revealed that
defendant had a blood-alcohol content of 0.315 and that he was traveling 145 mph a half-second
before the moment of impact and at 134 mph at the moment of impact. Seconds before the
crash, defendant was speaking on the telephone stating, “I’m going 100, I’m going 120, I’m
going 150.

        On appeal, defendant argues that the trial court erred by assessing 10 points for offense
variable (OV) 1 (aggravated use of a weapon), one point for OV 2 (lethal potential of a weapon
used or possessed), and 25 points for OV 6 (intent to kill or injure an individual). When
reviewing a trial court’s scoring decision, the trial court’s “factual determinations 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). “A finding of fact is clearly erroneous if, after a review
of the entire record, an appellate court is left with a definite and firm conviction that a mistake
has been made.” People v Antwine, 293 Mich App 192, 194; 809 NW2d 439 (2011) (quotation
marks and citation omitted). “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.” Hardy, 494 Mich at 438.

                                       I. OV 1 AND OV 2

        Defendant first argues that the trial court erred by assessing 10 points for OV 1 and one
point for OV 2. We agree.

        “OV 1 assesses points for the aggravated use of a weapon, MCL 777.31 . . . .” People v
Morson, 471 Mich 248, 256; 685 NW2d 203 (2004). Ten points is properly scored for OV 1 if
“[t]he victim was touched by any other type of weapon.” MCL 777.31(1)(d).

        “Points are assessed for OV 2 when an offender possessed or used a weapon during the
commission of a crime, and the amount of points assessed depends on the lethal potential of the
weapon.” People v Jackson, 320 Mich App 514, 524; 907 NW2d 865 (2017). MCL 777.32 lists
the various number of points which should be scored depending on the type of weapon used.
While it specifies the number of points that are to be scored for certain weapons, such as
“harmful biological substance,” “fully automatic weapon,” “pistol,” and “knife,” the guideline
does not list a car or automobile. However, under MCL 777.32(1)(e), one point is properly
scored for OV 2 if “[t]he offender possessed or used any other potentially lethal weapon” not
enumerated in the statute.

        Therefore, each of OV 1 and OV 2 requires the use of a “weapon” in order for a trial
court to assess points. Relying on both dictionary definitions and the plain, common, everyday
meaning of the words, this Court has held that within the context of OV 1, a “weapon” is “any
other instrument or device used for attack [or defense] in a fight or in combat.” People v Lange,
251 Mich App 247, 257; 650 NW2d 691 (2002) (ellipses and original brackets omitted).

        Thus, the manner in which an item is used determines whether it is a weapon for
sentencing guidelines scoring purposes.1 Furthermore, this Court has extended this definition of
weapon to OV 2, holding that when an object does not qualify as a weapon under OV 1 it cannot
qualify as a weapon under OV 2. People v Hutcheson, 308 Mich App 10, 17; 865 NW2d 44
(2014).

        The prosecution contends that a vehicle can constitute a weapon when it is employed in a
manner capable of inflicting serious injury or death. The prosecution argues that defendant’s
vehicle qualifies as a weapon because defendant drove it in excess of 130 miles per hour while
intoxicated and on a public roadway. The prosecution’s argument, however, misstates the law,
which requires that in order to qualify as a weapon, the item must be used against a victim for


1
  It is clear that in Lange the defendant intended to use the item, a glass mug, as a weapon, as he
repeatedly struck his wife in the head with the mug after learning that she was involved in an
extra-marital affair. Lange, 251 Mich App at 248.


                                                -2-
attack or defense in a fight or in combat. Furthermore, the cases the prosecution relies on
involve instances in which the vehicle in question was used for attack. See People v Goolsby,
284 Mich 375, 377; 279 NW 867 (1938) (following an altercation with a police officer, the
defendant drove his vehicle directly at the police officer and injured him); People v Blacksmith,
66 Mich App 216, 217-219; 238 NW2d 810 (1975) (the defendant used his vehicle to ram police
cars during a car chase). Thus, while the prosecution is correct that Michigan courts have in the
past found vehicles to be weapons because they were employed in a manner capable of inflicting
serious injury or death, these instances involve vehicles being used to attack or assault other
individuals. The cases cited by the prosecution, therefore, do not demonstrate an exception to
the general rule determining when an object is a weapon.

        Defendant’s action of driving his vehicle in excess of 130 miles per hour while highly
intoxicated and on a public roadway undeniably created a high risk of serious injury or death,
and did in fact cause Williams’s death. Defendant, however, did not use his vehicle for attack or
defense in a fight or in combat. Defendant did not specifically target Williams or anyone else
when he was driving the night of the crash, and the record does not contain any facts indicating
that defendant used his vehicle to attack or defend himself in a fight or combat. Therefore, the
trial court clearly erred when it determined that defendant’s car was a weapon for purposes of
OV 1 and OV 2. Therefore, these OVs should have been scored at zero points each.

                                            II. OV 6

       Defendant also argues that the trial court erred by assessing 25 points for OV 6. We
disagree.

         OV 6 considers “the offender’s intent to kill or injure another individual.” MCL
777.36(1). In order to assess 25 points for OV 6, a trial court must find that “[t]he offender had
unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of
death or great bodily harm knowing that death or great bodily harm was the probable result.”
MCL 777.36(1)(b). At issue in this case is the last aspect, whether defendant “created a very
high risk of death or great bodily harm knowing that death or great bodily harm was the probable
result.”

        A nolo contendere plea establishes “a defendant’s desire not to contest the issue of his
factual guilt. It is an admission of all the essential elements of the charged offense and is
tantamount to an admission of guilt for purposes of the case.” People v New, 427 Mich 482, 493
n 10; 398 NW2d 358 (1986) (citations omitted). A conviction for second-degree murder requires
the prosecution to prove “(1) a death, (2) caused by an act of the defendant, (3) with malice, and
(4) without justification or excuse.” People v Roper, 286 Mich App 77, 84; 777 NW2d 483
(2009) (quotation marks and citation omitted). “Malice is defined as the intent to kill, the intent
to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the
likelihood that the natural tendency of such behavior is to cause death or great bodily harm.”
Id. (emphasis added; quotation marks and citation omitted). Defendant had no intent to kill or
cause great bodily harm; therefore, under the circumstances present here, defendant’s plea of
nolo contendere establishes that he had the intent to do an act in wanton and willful disregard of
the likelihood that the natural tendency of that behavior was to cause death or great bodily harm.
This element is synonymous with the requirement under OV 6—namely, that defendant “created

                                                -3-
a very high risk of death or great bodily harm knowing that death or great bodily harm was the
probable result.” Therefore, the trial court did not err in scoring OV 6 at 25 points.

        Defendant claims that the underlying malice element of second-degree murder cannot
support a score of 25 points under OV 6 because second-degree murder requires that death or
great bodily harm be a “likely” result from the conduct, as opposed to the OV 6 requirement that
death or great bodily harm be “the probable result” of the conduct. However, this is merely a
distinction without a difference. This Court in People v Nix, 301 Mich App 195, 200-201; 836
NW2d 224 (2013), interpreted “probably” as being a synonym of “likely.” Thus, whether
defendant’s conduct was likely to cause death or great bodily harm or whether it was probable
that the conduct would cause death or great bodily harm has no significance. Therefore,
defendant’s conviction of second-degree murder supports the scoring of 25 points for OV 6.

        Moreover, even if defendant’s plea of nolo contendere was not sufficient by itself to
support the scoring of OV 6, the underlying facts as presented to the trial court are. Defendant
avers that he did not create a risk knowing that death or great bodily harm was the likely result
because he was not “presently conscious and thoughtful of the risk he was creating” at the time
of the crash. We find defendant’s argument unpersuasive because he was aware enough to get in
his car, drive, and call his ex-girlfriend to brag about his speed just moments before the crash.
Because defendant had the presence of mind to drive his vehicle and call his ex-girlfriend, while
discussing his alarming rate of speed, we hold that he created a risk while knowing that death or
great bodily harm was the probable or likely result.

        Defendant’s reliance on statistics from Mothers Against Drunk Driving (MADD), which
he asserts demonstrate that the risk he created while driving drunk did not create a likelihood of
causing death or great bodily harm, is misplaced. The data from MADD shows that on a daily
basis, there are 300,000 incidents of drunk driving leading to 28 deaths. Defendant argues that
this correlates to a 0.009% chance that an incident of drunk driving will lead to death and,
therefore, that death or great bodily harm was not the “probable” outcome of his actions.

        It is no criticism at all of MADD’s laudable mission to say that its citation of the drunk-
driving death rate is not designed as a predictive model of the profile of any particular driver, and
whether or not that particular driver is likely to cause death by driving drunk. Rather, MADD’s
use of that particular statistic is part of its mission of public education, to define the scope of the
problem, in support of its public policy proposals.2 A purported predictive model, as defendant
seeks to use the statistics, would lie in the realm of the social sciences and the proper application
of statistical models which would control for the different variables at play in drunk driving
offenses, which include blood-alcohol level; the degree to which a defendant’s blood-alcohol
level exceeds the legal limit; the differing blood-alcohol levels which states have criminalized;
accidents involving alcohol only, drugs only, or a combination of the two; and the manner in
which a defendant drives. See generally Bazemore v Friday, 478 US 385, 400; 106 S Ct 3000;
92 L Ed 2d 315 (1986) (discussing the use of regression analysis generally to control for
variables regarding a particular party’s actions). Defendant’s use of statistics gathered by


2
    See <https://www.madd.org/the-solution> (last visited January 28, 2019).


                                                 -4-
MADD merely lumps all drunk driving offenses together and then purports to draw some
meaningful analysis at the granular level as to the likelihood of a particular result in a particular
case, a clearly invalid use of MADD’s data.3 Defendant made no attempt to demonstrate the
reliability of the data for the purposes for which it was offered.

        By choosing data defining the scope of the national problem, defendant also ignores other
MADD statistics which might support a different conclusion. For example, MADD notes that
“every 51 minutes, someone is killed” as a result of drunk driving, and “drunk driving is still the
number 1 cause of death on our roadways.” MADD also notes that every two minutes, someone
is injured in a drunk driving crash.4 The MADD data, applied to defendant’s conduct, which so
egregiously deviates from a typical drunk driving offense, may well support a finding that it was
quite likely, even overwhelmingly likely, that death would result. Defendant’s blood-alcohol
level was 0.315 (or nearly four times the legal limit); he was not merely speeding—he was
driving a high-powered sports car in excess of 140 miles per hour; and he was on the phone
immediately before the accident bragging about his speed. The victim’s car was moving in the
same direction as defendant’s own at 53 miles per hour; the force of the impact which defendant
precipitated was the equivalent of hitting a stationary individual at more than 80 miles per hour.
And defendant engaged in such a conduct on a surface street, not a highway, which is designed
to handle higher speeds more safely, although certainly not to anything approaching the level
engaged in by defendant. In light of the MADD statistic that more than one person an hour is
killed by a drunk driver, and the facts of defendant’s actions the night of the incident, we think it
highly likely that in that one-hour period, no other drunk driver in America demonstrated
conduct more likely to cause an accident; and that if a collision were to occur, striking the victim
at the equivalent of a car moving at 80 miles per hour striking a person at a standstill, the result
would have been the certainty of the victim’s death. So while we reject defendant’s use of the
MADD statistics, and do not rely on any of the MADD data ourselves, we do note that based on
defendant’s generalized citation to it, and assuming the reliability of it, the data might well
support the opposite conclusion from that for which defendant argues.

        Rather, for our purposes, based on defendant’s particular, individualized conduct, suffice
it to say that we are not left with a definite and firm conviction that a mistake was made by the
trial court when it found that defendant “created a very high risk of death or great bodily harm


3
  The rules of evidence do not apply at sentencing. MRE 1101(b)(3). Thus, defendant was not
required to satisfy the Daubert standard, as adopted in Michigan to bring the MADD data before
the trial court. See Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786;
125 L Ed 2d 469 (1993); Gilbert v DaimlerChrysler Corp, 470 Mich 749, 781; 685 NW2d 391
(2004) (noting that MRE 702 incorporates Daubert’s standards of reliability) However,
sentencing decisions must themselves be supported by “reliable evidence.” People v Lawrence,
206 Mich App 378, 379; 522 NW2d 654 (1994). Many of the same principles applicable to a
Daubert analysis also apply to determining reliability of information for use at sentencing. Thus,
in order to make a reliable statistical analysis of the likelihood of any particular accident causing
death requires a properly drawn regression analysis accounting for the variables involved.
4
    See <https://www.madd.org/the-problem> (last visited January 28, 2019).


                                                -5-
knowing that death or great bodily harm was the probable result.” As noted by the trial judge,
“in all the years that I’ve served on this bench, I have not seen a drunk driving case that caused
death that was this egregious.” Therefore, the trial court did not err when it assessed 25 points
for OV 6.

                          III. IMPACT OF OV 1 AND OV 2 ERRORS

       Because OV 1 and OV 2 were erroneously scored at 10 points and one point respectively,
defendant’s total OV score should be reduced from 126 points to 115 points. This change in
total OV score, however, does not alter defendant’s minimum sentencing guidelines range
because the OV level is still III, which is the level which the trial court found at sentencing. See
MCL 777.61. This OV level, coupled with defendant’s prior record variable level, yields a
minimum sentencing guidelines range of 225 to 375 months or life. Id. “Where a scoring error
does not alter the appropriate guidelines range, resentencing is not required.” People v
Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). Therefore, although the trial court
erroneously scored OV 1 and OV2, defendant is not entitled to resentencing.

       Affirmed.

                                                             /s/ Jonathan Tukel
                                                             /s/ Michael F. Gadola




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