                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 4, 2014
                 Plaintiff-Appellee,

v                                                                    No. 317086
                                                                     Wayne Circuit Court
ANDREW CARLOS WRIGHT,                                                LC No. 11-011611-FC

                 Defendant-Appellant.


Before: BORRELLO, P.J., and WILDER and STEPHENS, JJ.

PER CURIAM.

        Defendant was convicted in a bench trial of second-degree murder, MCL 750.317, and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He
was sentenced to 18 to 40 years’ imprisonment for the second-degree murder conviction, and
two years’ imprisonment for the felony-firearm conviction. He appeals of right his sentence, and
for the reasons set forth in this opinion, we affirm.

        This appeal arises from a shooting that took place during the early morning hours of
October 17, 2011, in Detroit, Michigan. On October 17, 2011, at approximately 5:00 a.m., Jason
Harbin and his friend, Aamir Fuqua, traveled to the home of Lakeisha Pringle for the purpose of
borrowing her car. Harbin planned to move away and start a new life with defendant’s wife,
Connie, and the son that Harbin and Connie had together while Connie was married to
defendant.1 Harbin drove Pringle’s vehicle to defendant’s house; while Fuqua sat in the rear
driver’s seat. Harbin sent Connie several text messages to indicate that he was waiting outside;
however, when Connie failed to respond, Harbin exited the vehicle and walked toward
defendant’s house. As Harbin walked toward the house, defendant was waiting outside with a
firearm, and began firing shots at Harbin. Harbin attempted to flee the area but defendant
walked toward him and the vehicle as he continued to fire shots. As Harbin ran away from
defendant, he yelled at Fuqua, who was still inside the vehicle, to flee the scene. Harbin was hit
by one bullet in the leg but was able to escape. Fuqua made his way into the driver’s seat of the
car and shifted into drive; however, he was fatally struck in the back by one of defendant’s



1
    Defendant and Connie were still married on the date of the shooting.


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gunshots. Police officers found Fuqua dead in the driver’s seat of the vehicle when they arrived
at the scene.

         At the conclusion of the bench trial, the trial court made extensive findings of fact.
Specifically, the trial court found that on the morning of the shooting, Harbin traveled to
defendant’s home for the purpose of picking up Connie and their son, “and that it was [Harbin’s]
intention to take them both away from the defendant’s residence and that they were going to start
a life together.” The trial court also found that defendant was waiting outside his home at the
time that Harbin arrived, and that defendant was the person who shot at Harbin and Fuqua. The
trial court concluded that defendant was not guilty of assault with intent to murder in the context
of his shooting Harbin; specifically, the trial court found that defendant was acting in self-
defense because Harbin was walking onto his property, and defendant possessed a reasonable
apprehension that Harbin intended to cause him harm. However, the trial court concluded that
defendant did not have a reasonable fear of harm from Fuqua, who remained in the vehicle, on
the street, throughout the entire incident. The trial court found that Fuqua was unarmed at the
time of the shooting, and that defendant possessed “an intent to do great bodily harm or . . . an
intent to kill.” Ultimately, the trial court concluded that defendant was guilty of second-degree
murder in the shooting of Fuqua. This appeal then ensued.

        On appeal, defendant argues that he is entitled to resentencing because the trial court
inaccurately assessed points for Offense Variables (OV) 1, 3, 5, and 6. Specifically, defendant
argues that he should have been assessed zero points for OV 1 because the shooting was done in
self-defense, and was directed at Jason Harbin, not the victim. Further, defendant contends that
he was not even aware that the victim was present at the time of the shooting because the victim
remained in a vehicle on the street throughout the incident. Defendant also contends that he
should have been assessed zero points for OV 3 because homicide was the sentencing offense.
Defendant argues that he should have been assessed zero points for OV 5 because there was no
evidence presented to suggest that the victim’s family suffered severe psychological injury
requiring professional treatment. Defendant contends that he should have been assessed zero
points, or in the alternative, 10 points for OV 6, because he was in an extreme emotional state at
the time of the shooting and he did not possess the intent to shoot the victim.

        “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.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Clear error exists when the reviewing court is left with
a definite and firm conviction that a mistake was made.” People v McDade, 301 Mich App 343,
356; 836 NW2d 266 (2013). This Court reviews de novo whether the facts, as found, are
adequate to satisfy the scoring conditions prescribed by statute. Hardy, 494 Mich at 438.

        OV 1 is the offense variable relating to aggravated use of a weapon. MCL 777.31(1);
People v Morson, 471 Mich 248, 256; 685 NW2d 203 (2004). Pursuant to OV 1, 25 points must
be assessed where a firearm was discharged at or toward a human being. MCL 777.31(1)(a).
Fifteen points must be assessed where “a firearm was pointed at or toward a victim or the victim
had a reasonable apprehension of an immediate battery when threatened with a knife or other
cutting or stabbing weapon.” MCL 777.31(1)(c). Alternatively, pursuant to OV 1, five points
must be assessed if a weapon was displayed or implied. MCL 777.31(1)(e). Zero points must be
assessed if no aggravated use of a weapon occurred. MCL 777.31(1)(f).

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        Defendant argues that he should have been assessed zero points for OV 1 because the
victim “was not outside of a vehicle and therefore not in a position to be seen” by defendant at
the time of the shooting. Further, defendant argues that he was shooting at Harbin, not at the
victim. However, defendant’s argument is meritless. The trial court assessed 25 points for OV
1. Defendant shot at Harbin and the vehicle with the victim inside; defendant necessarily pointed
a firearm at or toward the victim because he actually, and fatally, hit the victim with one of his
gunshots. Though the victim remained in the vehicle throughout the shooting incident, Harbin
yelled out to him as defendant was shooting that he should flee the scene; however, defendant
continued to fire his weapon in the direction of Harbin and the vehicle. Accordingly, defendant
pointed his firearm at the car where he had reasons to believe another person was located and
fired. We therefore concur with the trial court’s finding that defendant fired his weapon at or
toward the victim and Harbin. Therefore, the trial court’s assessment of 25 points for OV 1 was
correct.

        OV 3 is the offense variable relating to physical injury to a victim. MCL 777.33.
Pursuant to OV 3, 100 points must be assessed if a victim was killed; however, 100 points may
only be assessed “if death results from the commission of a crime and homicide is not the
sentencing offense.” MCL 777.33(2)(b). Fifty points may be assessed under OV 3 if “death
results from the commission of a crime and the offense . . . involves the operation of a vehicle.”
MCL 777.33(2)(c). Twenty-five points may be assessed under OV 3 if a “life threatening or
permanent incapacitating injury occurred to a victim.” MCL 777.33(1)(c). Zero points must be
assessed for OV 3 if “no physical injury occurred to a victim.” MCL 777.33(1)(f). Our Supreme
Court has held that 25 points may be assessed for OV 3 in cases where homicide is the
sentencing offense. People v Houston, 473 Mich 399, 405-408; 702 NW2d 530 (2005).

        Defendant argues, in cursory fashion, that “zero points should have been assessed since
the death of . . . [T]he victim did not result from the commission of an offense that was not
homicide.” The trial court assessed 25 points for OV 32 because it concluded that Houston was
controlling. Defendant shot and killed the victim; accordingly, life threatening or permanently
incapacitating injury was inflicted by defendant upon the victim. Defendant’s argument has no
basis in law; 25 points may be assessed for OV 3, even where homicide is the sentencing
offense, as it is here. See Houston, 473 Mich at 405-408. The trial court’s assessment of 25
points for OV 3 was correct.

        OV 5 is the offense variable relating to psychological injury to members of a victim’s
family. MCL 777.35. Under OV 5, 15 points may be assessed where “serious psychological
injury requiring professional treatment occurred to a victim’s family.” MCL 777.35(1)(a).
Alternatively, zero points must be assessed for OV 5 where no serious psychological injury
requiring professional treatment occurred to a victim’s family. MCL 777.35(1)(b). Whether a



2
  The Sentencing Information Report denotes that 50 points were assessed for OV 3; however,
the trial court clearly ruled that 25 points should be assessed for OV 3 at sentencing. However,
the ultimate calculation of the total OV points assessed (95 points) on the Sentencing
Information report was correct.


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family member of the victim has actually sought professional treatment is not determinative.
People v Portellos, 298 Mich App 431, 449; 827 NW2d 725 (2012) (citing MCL 777.35(2)).
Rather, 15 points may be assessed “if the serious psychological injury to the victim’s family may
require professional treatment.” MCL 777.35(2).

       Defendant argues that there was no evidence presented supporting the assertion that a
member of the victim’s family suffered serious psychological injury requiring professional
treatment. The trial court assessed 15 points for OV 5; specifically, the trial court stated:

               The issue for scoring points on OV [5] has to do with psychological injury
       sustained by a member of the victim’s family. In a homicide case I think in terms
       of reading the impact statement submitted by the deceased’s father, I think
       certainly it does point to serious psychological injury, for which I know that the
       Fuqua [f]amily has been seeking some counseling through their religious
       denomination.

              I think that that certainly is reflective of the fact that this is the kind of
       impact on the family that this scoring mandates.

               So noting the defense’s objection, it will be scored at 15 points.

        In the Presentence Investigation Report (PSIR), a victim’s impact statement was included
from the victim’s father. The victim’s father stated that “he and his wife have been receiving
spiritual counseling and are trying to find closure for their family.” Further, at sentencing, the
victim’s father, mother, and brother each stated, under oath, that they were overwhelmed with
grief resulting from the death of the victim. None of the victim’s family members stated at the
sentencing hearing that they were seeking professional treatment for their psychological injuries.
Defendant’s argument that the victim’s family members failed to demonstrate serious
psychological injury is meritless. Specifically, the victim’s father stated that he and his wife
were overwhelmed with grief at the loss of the victim, and they were seeking spiritual
counseling. Further, the victim’s father, mother, and brother stated that they were suffering from
extreme emotional anguish due to the death of the victim. Accordingly, the trial court’s decision
to assess 15 points for OV 5 was based in fact and law. Defendant is not entitled to relief on this
issue.

        OV 6 is the offense variable relating to an offender’s intent to kill or injure another
individual. MCL 777.36. Under OV 6, 50 points may be assessed where “[t]he offender had
premeditated intent to kill . . . .” MCL 777.36(1)(a). Alternatively, 25 points may be assessed
under OV 6 if “[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). Ten points may be assessed if “the
offender had intent to injure or the killing was committed in an extreme emotional state caused
by an adequate provocation and before a reasonable amount of time elapsed for the offender to
calm or there was gross negligence amounting to an unreasonable disregard for life.” MCL
777.36(1)(c). Zero points must be assessed for OV 6 if the offender had no intent to kill or
injure. MCL 777.36(1)(d). In making a scoring determination for OV 6, the trial court must


                                                -4-
assess points for the variable “consistent with a jury verdict unless the judge has information that
was not presented to the jury.” MCL 777.36(2)(a).

         Defendant argues that he should have been assessed zero points for OV 6 because he was
found not guilty of assault with intent to murder in his shooting of Harbin. Alternatively,
defendant argues that he should have been assessed 10 points, rather than 25 points, because “he
was in an extreme emotional state, which allowed him the defense of self-defense with respect to
. . . Harbin.” The trial court assessed 25 points for OV 6; specifically, it stated:

              But I do find that the shooting at Mr. Fuqua as he was attempting to drive
       away and get away from the shooting scene was intentional. I did find that
       [defendant] was guilty of murder in the second degree.

               And as the instruction indicates, that unless the sentencing court has
       information that was not presented to the jury, an offender’s OV [6] score must be
       consistent the jury’s verdict [sic]. And obviously it should also be similarly
       consistent with the Court’s verdict in this particular case, and 25 points is the
       actual element of the intent element or state of mind element necessary for murder
       in the second degree.

               So OV [6] will be scored at 25 points.

        The trial court’s assessment of 25 points for OV 6 was correct. Defendant was convicted
of second-degree murder for the shooting of the victim because defendant possessed “an intent to
do great bodily harm or . . . an intent to kill.” Accordingly, an assessment of 25 points for OV 6
was consistent with the trial court’s verdict of second-degree murder. The trial court’s decision
to find defendant not guilty of assault with intent to murder regarding the shooting of Harbin is
irrelevant to the scoring of OV 6; though the trial court determined that defendant shot Harbin in
self-defense, defendant had no legal justification for shooting and killing the victim, who
remained in the vehicle on the street during the shooting incident.

        Further, defendant alleges that he was in an extreme emotional state at the time of the
shooting, which requires an assessment of 10 points for OV 6. However, though defendant was
likely angry at the prospect of Harbin coming to his home for the purpose of taking away his
wife, he was already waiting outside, ready to shoot, when Harbin exited the vehicle and
approached the house. Accordingly, the trial court’s assessment of 25 points for OV 6 was
correct.

       Affirmed.




                                                             /s/ Stephen L. Borrello
                                                             /s/ Kurtis T. Wilder
                                                             /s/ Cynthia Diane Stephens


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