                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    June 8, 2017
               Plaintiff-Appellee,                                  9:25 a.m.

v                                                                   No. 329046
                                                                    Kalamazoo Circuit Court
CHRISTOPHER ALLAN OROS,                                             LC No. 2014-001711-FC

               Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals from his jury convictions of first-degree premeditated murder, MCL
750.316(1)(a); first-degree felony murder, MCL 750.316(1)(b); first-degree arson, MCL 750.72;
second-degree home invasion, MCL 750.110a(3); and escape while awaiting trial, MCL
750.197(2). He asserts that there was insufficient evidence to support the conviction of
premeditated murder and felony murder and that those convictions should be reduced to second
degree murder. He also seeks reversal on grounds of evidentiary and procedural error as well as
a resentencing.

        For the reasons set forth in this opinion, we reduce defendant’s conviction of first degree
premeditated murder to second-degree murder and remand for sentencing for that offense. We
also vacate his conviction of felony murder and remand for a new trial on that charge. We reject
his other claims of error and do not address the sentencing issue as it is moot.

                                         I.      FACTS

        On November 22, 2014, emergency personnel responded to a fire at the apartment
complex of the victim, Marie McMillan, in Kalamazoo, Michigan. The responders extinguished
the fire and discovered the victim’s body on a bed in her bedroom. Testimony from first
responders showed that someone had piled items over her body and set it on fire. An autopsy
determined that the victim had died before the fire was set as a result of multiple stab wounds.

        Police officers learned that a man had been knocking on the doors of the apartments of
the victim’s neighbors throughout the day of the fire and using a fake story to solicit money. He
would tell the residents that his girlfriend had left with his car, debit card, and cell phone. He
would then ask to use the person’s phone, and, if allowed to do so, he would make a call to a



                                                -1-
number where no one was available to answer it. After the “unsuccessful” call, he would
directly or indirectly solicit money from the resident.

        Officers determined that the number this man would call from the residents’ phones was
associated with defendant. They also learned that a call had been made to that number from the
victim’s phone. The officers tracked defendant down at his apartment in Battle Creek, Michigan,
which he shared with his girlfriend, Robin Wiley.1 When officers arrived, defendant
unsuccessfully attempted to flee. After the arrest, defendant was interrogated.2 During the
interrogation, defendant admitted that he had gotten the victim to let him into her apartment and
used her phone. He claimed that she then attacked him without provocation by hitting him on
the head with a coffee mug and sat on top of him with a “huge knife in her hand.” He said that
he and the victim struggled for control of the knife, and, when he gained control of the knife, he
began stabbing the victim first in the stomach and then, after getting on the victim’s back, in the
neck and other parts of her body. There were 29 stab wounds in all.

        Defendant was charged with both first degree premeditated murder and first-degree
felony murder. At trial, defendant argued that he was not guilty of murder because he killed the
victim in self-defense. In the alternative, he argued that there were mitigating circumstances that
reduced his culpability for her death. The jury rejected his defense and found him guilty as
described.

    II.     SUFFICIENCY OF THE EVIDENCE OF FIRST-DEGREE PREMEDITATED
                                  MURDER

        Defendant first challenges the sufficiency of the evidence for his first-degree
premeditated murder conviction.3 “The sufficient evidence requirement is a part of every
criminal defendant’s due process rights.” People v Wolfe, 440 Mich 508, 514; 489 NW2d 748
(1992), amended on other grounds 441 Mich 1201 (1992). “[W]hen determining whether
sufficient evidence has been presented to sustain a conviction, a court must view the evidence in
a light most favorable to the prosecution and determine whether any rational trier of fact could
have found that the essential elements of the crime were proven beyond a reasonable doubt.” Id.
at 515-516, citing People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979) cert den 449
US 885; 101 S Ct 239; 66 L Ed 2d 239 (1980). “The fact that some evidence is introduced does
not necessarily mean that the evidence is sufficient to raise a jury issue.” Hampton, 407 Mich at


1
 Wiley testified against defendant at trial. She stated that she had pleaded to being an accessory
after the fact to a felony for her role in helping defendant return to the victim’s apartment and
dispose of evidence.
2
  Defendant did not testify at trial, but his statements were recounted in testimony from the
interrogating police officer.
3
  This Court reviews a challenge to the sufficiency of the evidence by reviewing “the record
evidence de novo in the 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 Roper, 286 Mich App 77, 83; 777 NW2d 483 (2009).



                                                -2-
368. “[C]ircumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.” People v Lee, 243 Mich App 163, 167-
168; 622 NW2d 71 (2000). Defendant does not argue that there was insufficient evidence from
which a reasonable jury could have found that he killed McMillan and did so with malice and so
he concedes that there was sufficient evidence to support a verdict of second-degree murder.
People v Roper, 286 Mich App 77, 84; 777 NW2d 483 (2009) (stating that the elements of
second-degree murder are (1) a death, (2) caused by an act of the defendant, (3) with malice, and
(4) without justification or excuse). Instead, he argues that the prosecution failed to present any
evidence from which the jury could reasonably find that he deliberated or premeditated thereby
elevating the crime to first degree murder.

       First degree murder is a statutory offense. Therefore, we must “interpret the statute by
examining its plain language and by employing applicable rules of statutory construction.”
People v Anstey, 476 Mich 436, 445 n 7; 719 NW2d 579 (2006) (emphasis in original). The
Legislature defined first-degree murder as, in relevant part, “[m]urder perpetrated by means of
poison, lying in wait, or any other willful, deliberate, and premeditated killing,” (emphasis
added) or as murder “committed in the perpetration of, or attempt to perpetrate” certain
enumerated offenses. MCL 750.316(1). Significantly, the Legislature used the conjunctive word
“and” in the phrase “other willful, deliberate and premeditated killing.” We must, therefore,
presume that the Legislature intended different meaning for the words, and there must be
evidence of all three to sustain a conviction on this basis. See Liberty Hill Housing Corp v
Livonia, 480 Mich 44, 57; 746 NW2d 282 (2008) (stating that when the conjunctive is used the
Legislature presumes different meanings) and People v Gardner, 402 Mich 460, 473-474; 265
NW2d 1 (1978) (stating that because the “assault with intent to rob unarmed statute is
conjunctive; there must be an assault with force and violence”).

       To “premeditate” means “to think beforehand.” People v Morrin, 31 Mich App 301, 329
187 NW2d 434 (1971).          Merriam-Webster’s Collegiate Dictionary (11th ed) defines
“premeditate” as “to think about and revolve in the mind beforehand.” Black’s Law Dictionary
(10th ed) defines “premeditation” as “[c]onscious consideration and planning that precedes an
act (such as committing a crime); the pondering of an action before carrying it out.”4
Premeditation can be proved through circumstantial evidence, however, inferences may “not be
arrived at by mere speculation.” People v O’Brien, 89 Mich App 704, 710; 282 NW2d 190
(1979). The prosecution may establish premeditation and deliberation through (1) evidence of


4
  This definition is consistent with the examples provided in the statute. Both poisoning and
lying in wait involve conscious planning for an action to be taken later. Where a statute contains
general terms that follow immediately after specific terms, the general words are presumed to be
of the same kind, class, character or nature as those specifically enumerated.” People v Jacques,
456 Mich 352, 355; 572 NW2d 195 (1998) (describing and applying the canon of ejusdem
generis in statutory construction). This is particularly so where, as in this statute, the general
words are preceded by the word “other.” Id. at 361 (Taylor, J., dissenting). See also Scalia &
Garner, Thompson/West, Reading Law: The Interpretation of Legal Texts, regarding ejusdem
generis, pp 199-213.



                                                -3-
the parties’ prior relationship, (2) the defendant’s actions before the killing, (3) the circumstances
surrounding the killing itself, and (4) the defendant’s conduct after the killing. People v
Schollaert, 194 Mich App 158, 170; 486 NW2d 312 (1992).

        As to the first factor, no evidence was presented that defendant and the victim had a prior
relationship. Nor was there any evidence that defendant had previously threatened the victim or
that she ever expressed fear of defendant. Thus, consideration of the parties’ prior relationship
yields no evidence to support a finding of premeditation.

        The second factor, i.e. defendant’s actions before the murder, similarly yields no support
for a finding of premeditation. Defendant had a well-evidenced pattern of trying to trick people
into giving him money by using a false story of being locked out of his apartment and needing to
get to his place of work. Residents of four other apartments in the same complex that the victim
lived in testified that defendant attempted the same scam with them that afternoon, and, though
some described him as intimidating, none testified that he acted violently. There was no
evidence to suggest that defendant acted with a different plan when he knocked on the victim’s
door.

       The fourth factor concerns the defendant’s actions after the murder. In this case,
defendant did attempt to cover up the murder, but his actions do not suggest that these attempts
were part of a pre-offense plan. He washed the knife, which was an ordinary steak knife, in the
victim’s kitchen sink and left it there. Nearly two hours later,5 ample time after the crime to
think about the extensive evidence at the victim’s apartment, he returned to the apartment,
removed bloodied items and set the fire. While evidence an assailant attempted to cover up a
murder in its immediate aftermath can support a reasonable inference that the series of events
was part of a preconceived plan, see People v Gonzalez, 468 Mich 636, 638-639, 642; 664
NW2d 159 (2003), the evidence of defendant’s actions after the murder in this case do not
evidence a preconceived plan. To the contrary, the fact that defendant initially left the victim’s
apartment after doing very little, if any, clean up suggests that even after the murder defendant’s
thought process was still unsettled and that he had not preplanned any means of covering up his
crime. The prosecution has not suggested any premeditated plan that would involve leaving the
scene of the crime and returning two hours later to attempt to cover it up. Therefore, the
evidence of defendant’s actions after the murder cannot be used to support a finding of
premeditation.

        The most significant factor then was the third one, i.e., the circumstances surrounding the
killing. The prosecution argues that given the number of stab wounds defendant had adequate
time to consciously reconsider his actions in a “second look” and decide whether to continue, i.e.
to have premeditated some of the later blows. However, the prosecution’s argument that
premeditative intent can be formed between successive stab blows has already been rejected by


5
  Testimony of defendant’s cell phone records established that the murder took place between
4:30 p.m. and 4:38 p.m. Wiley testified that defendant had returned home by “6:15ish” and that,
after he changed his clothes, the two of them went back to the victim’s apartment. The fire at the
apartment complex was first reported at 8:27 p.m.



                                                 -4-
our Supreme Court. In People v Hoffmeister, 394 Mich 155, 157-158; 229 NW2d 305 (1975),
the victim and the defendant were seen by witnesses driving into a parking area shortly before
the victim drove to a friend’s house with “multiple lacerations and stab wounds,” where she
ultimately died. (Quotations omitted). The prosecutor in that case argued, as the prosecution in
this case does, that the number of stab wounds and the brief moments that the victim and
defendant were together before the killing were sufficient for a jury to infer premeditation and
deliberation. Id. at 159. The Supreme Court found that “[t]here is no basis on this record for an
inference that between the successive, potentially lethal blows the killer calmly, in a cool state of
mind . . . subjected the nature of his response to a second look.” Id. The Court explicitly stated
that “[t]he brutality of a killing does not itself justify an inference of premeditation” because “
‘[m]any murders most brutish and bestial are committed in a consuming frenzy or heat of
passion, and that these are in law only murder in the second degree.’ ” Id. at 159-160 quoting
Austin v United States, 127 US App DC 180, 190; 382, F2d 129, 139 (1967).

        The prosecution refers us to two more recent Supreme Court cases though it does not
suggest that they have overruled Hoffmeister, and we conclude they can be harmonized with that
case.6 People v Johnson, 460 Mich 720, 721-722; 597 NW2d 73 (1999) involved the murder of
a social worker at a juvenile detention center by one of the detainees. In that case, which
involved manual strangulation, the Court stated that “evidence of manual strangulation can be
used as evidence that a defendant had an opportunity to take a ‘second look.’ ” Id. at 733.
However, the Court was careful to note that “neither the brutal nature of a killing nor manual
strangulation alone is sufficient to show premeditation.” Id. (emphasis added). Other evidence
of premeditation cited by the Court included: that the defendant moved the victim to a more
secluded place before committing the murder, that about an hour before the murder he asked
another detainee if he’d seen the victim, that he’d asked the victim when she was leaving for the
day, and that he directed another detainee away from the area where the murder occurred shortly
thereafter. Id. In People v Gonzalez, 468 Mich 636, 638-639; 664 NW2d 159 (2003), the
defendant raped the victim, battered her to death, strangled her, and then set her corpse on fire
before leaving the premises. The Gonzalez opinion cited Johnson for the principal that
“[m]annual strangulation can be used as evidence that a defendant had an opportunity to take a
‘second look,’ ” 468 Mich at 641, but it did not conclude that such evidence was sufficient on its
own.

       That this murder was particularly savage and senseless may be considered by the trial
court when imposing sentence for second-degree murder, but it does not provide sufficient
evidence to prove premediated first-degree murder.7



6
  We recognize that this issue is challenging and bench and bar may benefit from additional
clarification from the Supreme Court. See People v Martin, 472 Mich 930; 697 NW2d 520
(2005) (Markman, J. dissenting).
7
 Defendant’s culpability does not turn on “[t]he apparent savagery of the attack or any number
of other factors [that] may appear to some persons to evince the highest degree of moral
culpability.” People v Gill, 43 Mich App 598, 604; 204 NW2d 699 (1972).



                                                -5-
                       III.    THE FELONY-MURDER INSTRUCTION

        Defendant was convicted of a second count of first degree murder on a felony-murder
theory. The prosecution presented evidence that the murder occurred during either of two
crimes: larceny from a person, MCL 750.357 or use of false pretenses to defraud MCL 750.218.
On the prosecution’s request, and with acquiescence of defense counsel, the trial court instructed
the jury that it could convict defendant of first-degree felony murder if it found that he caused
the victim’s death, did so intentionally, and did so while “committing or attempting to commit
the crime of attempted false pretenses under 200 dollars and/or larceny under 200 dollars.”
Consistent with this instruction, the jury verdict form did not require the jury to specify which of
the two underlying crimes was the basis for its conviction; the form simply required the jury to
indicate whether or not it found defendant guilty of felony murder.

        On appeal, defendant correctly points out that using false pretenses cannot serve as the
basis for a felony murder conviction. The prosecution does not disagree. It appears from the
record that the prosecutor, defense counsel, and the trial court were all under the mistaken belief
that using false pretenses was a larceny for purposes of felony murder. However, it is long-
settled that the crime of using false pretenses does not constitute a larceny because the victim
intends to part with title and possession of the property rather than merely possession. Peoplv v
Malach, 202 Mich App 266, 271; 507 NW2d 834 (1993).

       On appeal, the prosecution does not argue that defendant could have properly been
convicted of felony murder based on using false pretenses as the predicate offense. Nor does it
argue that the conviction should stand because the jury might have concluded that defendant had
committed larceny from a person rather than using false pretenses. It is clear that “[w]here one
of two alternative theories of guilt is legally insufficient to support a conviction, and where it is
impossible to tell upon which theory the jury relied, the defendant is entitled to a reversal of the
conviction and a new trial.” People v Grainger, 117 Mich App 740, 755; 324 NW2d 762 (1982).

        The prosecution does, however, maintain that defendant waived his right to raise this
error on appeal. The record does show that both in pre-trial proceedings and at trial, defendant’s
trial counsel expressed his belief that false pretenses could serve as an underlying felony to
support a first-degree felony murder conviction, and he affirmatively stated that he had no issue
with the jury being instructed as the prosecution requested. Typically, where defense counsel
affirmatively agrees to an erroneous instruction the error is deemed waived. People v Carter,
462 Mich 206, 213-214; 612 NW2d 144 (2000). However, we decline to do so in this case.

        The nature of the instructional error in this case rises to the level of a due process
violation, and we conclude that allowing it to stand would undermine the authority of the
judiciary. The error was not merely one in which the jury received an imprecise definition or in
which the trial court omitted an element of the offense, where the evidence as to the omitted
element was overwhelming. Here, the instruction directed the jury to convict defendant on the
basis of affirmative findings that, by statute, are not grounds to convict. We, therefore, conclude
that defendant’s trial counsel could not unilaterally waive this issue without defendant’s full
knowledge and understanding about exactly what he was waiving. It is well recognized that
“there are basic rights that the attorney cannot waive without the fully informed and publicly
acknowledged consent of the client.” Taylor v Illinois, 484 US 400, 417-418; 108 S Ct 646; 98


                                                -6-
L Ed 798 (1988). Among the basic constitutional rights that cannot be waived absent such
express consent by the defendant himself is the right to plead not guilty, have a jury trial, and be
present at that trial. Id. at 418 n 24, and People v Montgomery, 64 Mich App 101, 103; 235
NW2d 75 (1975).

        If defendant’s trial counsel cannot waive a defendant’s right to plead guilty and demand a
trial on all the elements of the charged offense without the fully informed and express consent of
his or her client, we see no reason why counsel should be able to agree that defendant may be
found guilty because the jury finds he committed acts that are not grounds to convict. The
United States Supreme Court has defined waiver as “an intentional relinquishment or
abandonment of a known right or privilege.” Johnson v. Zerbst, 304 US 458, 464; 58 S Ct 1019;
82 L Ed 1461 (1938). Courts should “indulge every reasonable presumption against waiver,”
Aetna Ins Co v Kennedy, 301 US 389, 393; 57 S Ct 809; 81 L Ed 1177 (1937), and they should
“not presume acquiescence in the loss of fundamental rights,” Ohio Bell Tel Co v Pub Utilities
Comm, 301 US 292, 307; 57 S Ct 724; 81 L Ed 1093 (1937).

       Additionally, in this case, the only reason defense counsel agreed to submission of the
felony murder charge was his mistaken view of the law that false pretenses could serve as an
underlying felony to a felony murder conviction. Our Supreme Court has previously held that a
defendant could not consciously waive a right simply because of his attorney’s mistaken view of
the law. People v Grimmett, 388 Mich 590, 601; 202 NW2d 278 (1972) overruled on other
grounds by People v White, 390 Mich 245, 257-258; 212 NW2d 222 (1973).

        The prosecution refers us to People v Kowalski, 489 Mich 488, 502-504; 803 NW2d 200
(2011), and asserts that in that case, the Supreme Court held that waiver can occur even where it
involves a constitutional error in instructions.8 The instructional error in Kowalski occurred
when the trial court omitted an element of the charged offense. Id. at 503. The Kowalski Court
determined that defense counsel’s “explicit[] and repeated[]” approval of the instruction operated
as a waiver. Id. Despite that determination, however, the Court continued for several pages
thereafter to address the substance of the claimed error and ultimately declined to reverse
because it concluded that “even if the trial court had properly instructed [the jury] . . . the jury




8
  The prosecution has not referred us to any other cases in support of its argument that we should
dispose of this case on the basis of waiver. It cites to People v Carter, 462 Mich 206; 612 NW2d
144 (2000) and People v Unger, 278 Mich App 210; 749 NW2d 272 (2008), but neither involved
an instructional error of a constitutional magnitude; rather, the claimed errors were very minor.
Carter concerned the jury’s request for the transcripts of testimony of certain witnesses; in fact
no such transcripts yet existed, but defendant argued that the court’s instruction that the
transcripts were not available was error. Carter, 462 Mich at 210, 213-215. In Unger, defendant
challenged the trial court’s decision to give a single limiting instruction which it told the jury
applied to the testimony of certain enumerated witnesses. Unger, 278 Mich App at 233.
Defendant claimed on appeal that the court should have repeated the instructions for each
witness separately. Id.



                                                -7-
would still have convicted defendant” due to the nature of the evidence.9 It went on to state that
“defendant cannot establish that the trial court’s charge to the jury affected the outcome of the
lower court proceedings.” Id. at 509-510.

       [J]ury instructions that [are] somewhat deficient may nonetheless, when viewed
       as a whole, have sufficed to protect a defendant’s rights when the jury would have
       convicted the defendant on the basis of the evidence regardless of the instructional
       error. If the evidence related to the missing element was overwhelming and
       uncontested, it cannot be said that the error affect the defendant’s substantial
       rights or otherwise undermined the outcome of the proceedings. [Id. at 506
       (footnotes omitted).]

        Given this standard, we have reviewed the record to determine whether the evidence as to
larceny from a person was “overwhelming and uncontested,” so as to determine whether or not
in this case the erroneous instruction adequately served to protect defendant’s rights and have
concluded that it falls well short of that demanding standard. The evidence to support the charge
of larceny from a person was far weaker than the evidence that supported the false pretenses
charge, which was overwhelming. There was no direct or forensic evidence of a larceny, and the
only evidence to support it was indirect and inferential. The prosecution suggests that the fact
that when defendant returned to the crime scene to set the fire he took the victim’s purse supports
an inference that defendant handled the purse during the crime. It also points out that following
the crime, defendant sent a text to an associate that can be read as indicating he had obtained
enough money to buy drugs. Evidence was also offered of a prior incident where defendant had
taken valuables from the apartment when its resident refused to give him money. While such
evidence allows for reasonable inferences consistent with guilt, these inferences were vigorously
contested10 and far from overwhelming.

       In a related issue, defendant argues not only that the instruction was infirm, but that there
was insufficient evidence to convict of larceny from a person. As just reviewed, the record
evidence of larceny from a person was limited, but we conclude, taking the evidence in the most
favorable light to the prosecution, that it is sufficient to present to a jury for decision.
Accordingly, we reject defendant’s argument that no retrial would be proper.

                 IV.     EVIDENCE OF THE VICTIM’S MENTAL HEALTH

       Defendant next argues that the trial court abused its discretion when it precluded him
from introducing evidence that the victim had a history of mental illness and was paranoid about


9
 For the same reason, the Court rejected defendant’s claim of ineffective assistance of counsel
because, given the evidence, defendant could not demonstrate that in its absence, the result of the
proceeding would have been different. Id. at 510 n 38.
10
   Defendant rebuts these inferences by pointing out that he had been given $30 by other
apartment building residents and that on the day in question he did not take any property from
those residents who refused to give him money in response to his requests.



                                                -8-
people trying to kill her.11 The trial court precluded defendant from introducing such evidence
absent a “nexus between the mental illness . . . and violence.”

        Based on the facts of this case, we do not find the trial court’s ruling to be outside the
range of reasonable and principled rulings. The evidence of the victim’s mental health that the
defendant pointed to all came from statements from her family members in police reports.
Defendant failed to proffer any proof of prior aggressive behavior linked to the victim’s mental
illness. Furthermore, statements of the victim’s family members would have been lay opinion
testimony and could not establish a medical diagnosis. Had defendant been able to establish a
link between a mental illness and aggressive behavior showing that the existence of such an
illness caused irrational aggression, then such evidence would have been relevant to the jury’s
determination of whether the victim did act aggressively. However, that is not the case here.

                                   V.      MOTION TO SEVER

        While in jail awaiting trial, defendant attempted to escape from jail by pushing an officer
escorting him to a different part of the jail and grabbing the officer’s key fob. Defendant’s
attempt failed when the key fob did not operate the door he attempted to open with it. Defendant
was charged with escape while awaiting trial, MCL 750.197(2). Defendant moved to sever this
count, but the trial court denied the motion, which defendant argues was erroneous.12 MCR
6.120(C) provides that the trial court “must sever for separate trials that are not related as defined
in subrule (B)(1).” Subrule (B)(1) states that charges are related if they are based on “(a) the
same conduct or transaction, or (b) a series of connected acts, or (c) a series of acts constituting
parts of a single scheme or plan.” MCR 6.120(B)(1). The prosecution argued that this offense
was connected to the other offenses. Each of defendant’s acts—the cover up, the evasion of
arrest, and the escape—were, in the prosecutor’s view, related by motive and connected as a
series of events taken to avoid incarceration for the offenses he committed on the day at issue.
The trial court found that there was a sufficient connection between the acts to warrant joinder
and denied defendant’s motion on that basis.

        Given that the attempted escape from jail happened 12 days after the murder, and
appeared to be a crime of opportunity rather than as part of a previous scheme or plan connected
with the other crimes, there is some merit to defendant’s argument that this event was not related
to the murder, arson, and home invasion. However, because defendant’s actions in covering up
the murder, attempting to evade arrest, and attempting to escape from jail can be seen as a series


11
  We review a trial court’s decision whether to permit the admission of evidence for an abuse of
discretion. People v Yost, 278 Mich App 341, 353; 749 NW2d 753 (2008). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008).
12
   We review a trial court’s decision on a motion to join or sever charges for an abuse of
discretion. People v Girard, 269 Mich App 15, 17; 709 NW2d 229 (2005). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” Unger, 278 Mich App at 217.



                                                 -9-
of connected acts, we do not find that the trial court’s decision was outside the range of
reasonable and principled outcomes. Additionally, defendant cannot show that if it was
erroneous for the trial court to deny his motion that this decision prejudiced him. People v
Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). Defendant’s self-defense claim was
extremely weak, and, while the evidence was insufficient to support a conviction of first-degree
premeditated murder, the evidence supporting a second-degree murder conviction, as well as a
conviction on first-degree arson, second-degree home invasion, and escape while awaiting trial,
was overwhelming. Defendant was not prejudiced by the denial of his motion to sever his
attempted escape offense from the other charges, and he is not entitled to any relief on this basis.

                                 VI.      SENTENCING ERROR

        Defendant’s final claim of error is that the trial court erred when it assessed points under
the offense variables for his sentencing offense, arson, on the basis of facts involving the murder.
See People v McGraw, 484 Mich 120, 129; 771 NW2d 655 (2009) (stating that “offense
variables are scored by reference only to the sentencing offense, except where specifically
provided otherwise”). Because the sentencing guidelines do not apply to offenses with a
mandatory penalty of life imprisonment, the trial court did not score the guidelines for
defendant’s first-degree murder convictions. See MCL 769.34(5). Instead, it had to score the
variables for the offense of the remaining offenses with the highest crime class. MCL
771.14(2)(e); see also People v Lopez, 305 Mich App 686, 690; 854 NW2d 205 (2014).
Following his jury trial, arson was the offense with the highest crime class. See MCL 777.16c
and MCL 777.16f.

       However, in light of our decision to reduce defendant’s first-degree premediated murder
conviction to second-degree murder, that conviction becomes the offense with the highest crime
class. See MCL 777.16p and MCL 777.16c. Therefore, defendant’s claim of error is moot. See
Swinehart v Secretary of State, 27 Mich App 318, 320; 183 NW2d 397 (1970) (explaining that
the Court does not consider moot questions). Defendant is to be resentenced on the basis of a
second-degree murder conviction.

                                       VII.   CONCLUSION

        We reduce defendant’s first-degree premeditated murder conviction to second-degree
murder. Defendant is to be resentenced on this basis. We vacate defendant’s conviction of first-
degree felony murder and remand to allow for retrial on that charge. We do not retain
jurisdiction.



                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Douglas B. Shapiro
                                                             /s/ Michael F. Gadola




                                               -10-
