            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 25, 2019
               Plaintiff-Appellee,

v                                                                  No. 340391
                                                                   Wayne Circuit Court
MARQUIESE RASHAWN ESTERS,                                          LC No. 16-010956-01-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ.

PER CURIAM.

        A jury convicted defendant of assault with intent to commit murder (AWIM), MCL
750.83, assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84,
discharge of a firearm from a motor vehicle, MCL 750.234a, felon in possession of a firearm,
MCL 750.224f, two counts of assault with a dangerous weapon (felonious assault), MCL 750.82,
and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to prison
terms of 16 to 30 years for the AWIM conviction, 5 to 10 years for the AWIGBH and firearm-
discharge convictions, two to five years for the felon-in-possession conviction, two to four years
for the felonious assault convictions, and two years for the felony-firearm conviction. Defendant
appeals by right. We affirm.

        Defendant’s convictions arise from assaults against his father and his sister in Detroit.
The prosecutor presented evidence that defendant became angry with his father after he
reprimanded defendant about driving recklessly outside a home where a family gathering was
taking place. During their interaction, defendant’s father grabbed defendant around the collar
and pushed him. Defendant’s father and sister then got into a vehicle and drove away, with
defendant’s father behind the wheel. The prosecution elicited testimony from defendant’s father
and sister that defendant, who was visibly upset about the confrontation with his father, hopped
in his own car and began chasing their vehicle, shooting at them and their car numerous times
with a handgun and striking the vehicle in the area of the gas tank. Defendant’s father managed
to elude his son, dropped off his daughter at their home, and then went to the police station to
report the incident. Defendant called his father while he was at the police station, leaving a


                                               -1-
message on his father’s voicemail in which he threatened to kill him. After leaving the police
station, defendant’s father went to the home of his best friend, where he observed defendant with
an AK-47 automatic rifle and heard him tell the friend that he was going to kill defendant’s
father.1 The friend, who was “like an uncle” to defendant, persuaded defendant to leave the area.
Approximately three weeks later, defendant sent his father a threatening text message, reminding
him that defendant was “still out here” and that his father was not getting a “pass.” The defense
theory at trial was that defendant never fired at the vehicle carrying his father and sister, that he
never possessed any type of firearm that day, and that the testimony of the witnesses for the
prosecution were unreliable and uncorroborated.

        On appeal, defendant first argues that the evidence was insufficient to support the
verdicts, thereby violating his right to due process. This Court reviews de novo the issue
regarding whether there was sufficient evidence to support a conviction. People v Lueth, 253
Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this
Court must view the evidence—whether direct or circumstantial—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. People v Reese, 491 Mich 127, 139; 815
NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
Circumstantial evidence and the reasonable inferences that arise from such evidence can
constitute satisfactory proof of the elements of a crime. People v Carines, 460 Mich 750, 757;
597 NW2d 130 (1999). The prosecution need not negate every reasonable theory of innocence,
but need only prove the elements of the crime in the face of whatever contradictory evidence is
provided by the defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). We
resolve all conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich App
594, 619; 751 NW2d 57 (2008).

        Although defendant frames the issue in terms of the sufficiency of the evidence, when we
scrutinize his arguments their true nature is revealed. They are nothing more than a series of
challenges to the reliability, credibility, and weight of the testimony. In fact, defendant
acknowledges the testimony that supports each and every element of the offenses; however, he
questions the strength and soundness of the evidence, claiming lack of corroboration and
pointing out purported weaknesses and conflicts in the testimony. In People v Palmer, 392 Mich
370, 375-376; 220 NW2d 393 (1974), our Supreme Court explained:

               In a criminal trial the burden is on the prosecution to prove the defendant's
       guilt beyond a reasonable doubt on every element of the crime charged. On appeal
       from a conviction a defendant may request the appellate court to determine if the
       prosecution fulfilled this burden. In conducting this review the appellate court
       must remember that the jury is the sole judge of the facts. It is the function of the
       jury alone to listen to testimony, weigh the evidence and decide the questions of



1
  Defendant’s father also testified that he received a voicemail message from his brother,
defendant’s uncle, warning him that defendant was driving around in a black car armed with an
AK-47.


                                                -2-
       fact. In determining the facts the jury may draw reasonable inferences from the
       facts established by either direct or circumstantial evidence.

               Juries, not appellate courts, see and hear witnesses and are in a much
       better position to decide the weight and credibility to be given to their testimony.
       Where sufficient evidence exists, which may be believed by the jury, to sustain a
       verdict of guilty beyond a reasonable doubt, the decision of the jury should not be
       disturbed by an appellate court. [Citations omitted; see also People v Wolfe, 440
       Mich 508, 514-515; 489 NW2d 748 (1992).]

         In People v Mikulen, 324 Mich App 14, 20; 919 NW2d 454 (2018), this Court similarly
stated that “[a] jury, and not an appellate court, observes the witnesses and listens to their
testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses.” Physical evidence linking a
defendant to a crime is unnecessary, and eyewitness testimony can suffice to sustain a
conviction. People v Newby, 66 Mich App 400, 405; 239 NW2d 387 (1976) (noting our
“jurisprudence requires that the weight of the evidence and the credibility of a witness be left to
the trier of fact”).

        In sum, the evidence recited earlier, when viewed in a light most favorable to the
prosecution and with our resolving all evidentiary conflicts in favor of the prosecution, was more
than sufficient to prove beyond a reasonable doubt that defendant committed the offenses for
which he was convicted. Defendant’s appellate arguments ultimately concern matters falling
within the purview of the jury, not this panel on appeal.

        Next, in a pro se supplemental brief filed pursuant to Supreme Court Administrative
Order No. 2004-6, Standard 4, defendant asserts that trial counsel was ineffective for failing to
object to the admission of two voicemail recordings—defendant’s message to his father
threatening to kill him and the message from defendant’s uncle about defendant’s possession of
the AK-47—and for failing to communicate a plea offer. Neither argument warrants reversal.

        With respect to the two voicemail recordings, defendant contends that they were “never
disclosed by the prosecution, but instead [were] introduced for the first time at trial” and that he
was unaware of the existence of the recordings and surprised by their admission. First,
defendant was plainly aware of the threatening voicemail message he left his father; the
voicemail to his father was thoroughly discussed at the preliminary examination conducted eight
months before trial, and the voicemail to his father was referenced in the police report.
Regardless, assuming that there was a discovery failure by the prosecution and deficient
performance by counsel, defendant has failed to demonstrate the requisite prejudice. People v
Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001) (“To demonstrate prejudice, the
defendant must show the existence of a reasonable probability that, but for counsel's error, the
result of the proceeding would have been different.”). With respect to the voicemail by his
uncle, we conclude that the reference to defendant’s possessing an AK-47 did not alter the
outcome of the trial given that the eyewitness testimony by defendant’s father already placed the
AK-47 in defendant’s hands. And with regard to defendant’s voicemail to his father, aside from
the recording, defendant’s father testified that defendant repeatedly threatened to kill him.
Additionally, there was an abundance of evidence that defendant intended to commit murder and

                                                -3-
do great bodily harm as reflected in the circumstances surrounding the shootings, which included
the fact that a bullet struck the car defendant’s father was driving. Moreover, with respect to
both recordings, we note that defendant fails to explain how he would have proceeded any
differently in defending himself against the charges had he received notice from the prosecution
through earlier disclosure. See People v Jackson, 498 Mich 246, 278-279; 869 NW2d 253
(2015) (failure to provide notice for purposes of introducing other-acts evidence was harmless as
the defendant did not show how he would have approached trial or presented his defense
differently had he received proper notice).

        In regard to trial counsel’s alleged failure to communicate a plea offer to defendant
during the proceedings, defendant relies on a complaint he had filed with the Attorney Grievance
Commission (AGC) about his dissatisfaction with counsel’s performance, including an allegation
that counsel failed to inform him of any plea offers. In a response letter to the AGC, trial
counsel indicated that defendant was informed of all plea offers, and his rejections were placed
on the record. We, however, have scoured the lower court record, and there is no evidence of
any plea offer. Indeed, the trial court specifically inquired about any plea offers at a pretrial
hearing and at the final conference, and the prosecution indicated that no offers had been
extended to defendant. Moreover, defense counsel himself acknowledged that defendant had not
been offered any plea deals. Defendant’s effort to establish the factual predicate for this claim
with the letter that trial counsel sent to the AGC constitutes an impermissible expansion of the
record on appeal. People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).
Furthermore, although a claim of ineffective assistance of counsel may be based on counsel’s
failure to communicate a plea offer, a defendant must prove by a preponderance of the evidence
that a plea offer was made and that his counsel failed to communicate it to him. People v
Williams, 171 Mich App 234, 242; 429 NW2d 649 (1988). The record simply does not support
defendant’s argument; he has failed to establish the factual predicate for this claim of ineffective
assistance of counsel. Carbin, 463 Mich at 600.

        Defendant’s final arguments pertain to his sentencing. He argues in his Standard 4 brief
that the trial court erred in assessing 15 points for offense variable (OV) 2, MCL 777.32.2
Defendant waived this claim of error, given that, while challenging OV10 below, he expressed to



2
  Under the sentencing guidelines, the trial court’s findings of fact 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); People v Rhodes (On Remand), 305 Mich App 85, 88; 849 NW2d 417
(2014). Clear error is present when the appellate court is left with a firm and definite conviction
that an error occurred. People v Fawaz, 299 Mich App 55, 60; 829 NW2d 259 (2012). This
Court reviews de novo “[w]hether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute . . . .” Hardy, 494 Mich at 438; see also Rhodes, 305 Mich App
at 88. In scoring OVs, a court may consider all record evidence, including the contents of a
presentence investigation report, plea admissions, and testimony presented at a preliminary
examination. People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012).




                                                -4-
the court that the remaining OVs were accurately scored. People v Carter, 462 Mich 206, 215-
216; 612 NW2d 144 (2000); People v Green, 228 Mich App 684, 691; 580 NW2d 444 (1998).

        Even if the argument was not waived, defendant has not demonstrated that he would be
entitled to resentencing. Fifteen points must be assessed for OV 2 when “[t]he offender
possessed or used . . . a fully automatic weapon.” MCL 777.32(1)(b). Five points are to be
scored if the offender “possessed or used a pistol[.]” MCL 777.32(1)(d). There was testimony
that defendant was armed with an AK-47, which is a fully automatic weapon; therefore, the 15-
point score for OV 2 was proper. See MCL 777.32(3)(b). Contrary to defendant’s argument,
there is no requirement that the weapon be recovered and examined before scoring OV 2.
Furthermore, defendant’s father and sister testified that defendant had fired a pistol at them
during the car chase. This testimony supported, at a minimum, a five-point score for OV 2.
Defendant received a total OV score of 110 points, placing him at OV Level VI (100+ points) on
the relevant grid, the highest category of offense severity. MCL 777.62. A score of only 5
points, rather than 15 points, for OV 2 would not have changed defendant’s placement at OV
Level VI. Because any scoring error would not have affected defendant’s minimum sentence
guidelines range, he would not be entitled to resentencing. People v Francisco, 474 Mich 82, 89
n 8; 711 NW2d 44 (2006).

       Defendant also argues that his sentences are unreasonable, violate the principle of
proportionality, and constitute cruel and unusual punishment. First, because the trial court did
not depart from the guidelines, reasonableness review does not apply. People v Anderson, 322
Mich App 622, 636; 912 NW2d 607 (2018) (“this Court is required to review for reasonableness
only those sentences that depart from the range recommended by the statutory guidelines”).

        MCL 769.34(10) provides, in relevant part, that “[i]f a minimum sentence is within the
appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall
not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate
information relied upon in determining the defendant’s sentence.” We have already rejected
defendant’s OV challenge, and he does not allege reliance on inaccurate sentencing information;
therefore, generally speaking, we must affirm defendant’s sentences. However, MCL 769.34(10)
does not and cannot preclude constitutional appellate challenges to a sentence, e.g., an argument
that a sentence constitutes cruel and unusual punishment. See People v Powell, 278 Mich App
318, 323; 750 NW2d 607 (2008) (MCL 769.34[10]’s limitation on review does not apply to
claims of constitutional error); see also People v Conley, 270 Mich App 301, 316; 715 NW2d
377 (2006) (“It is axiomatic that a statutory provision, such as MCL 769.34[10], cannot
authorize action in violation of the federal or state constitutions.”).

       A sentence within the guidelines range is presumptively proportionate, and a
proportionate sentence is not cruel or unusual punishment. Powell, 278 Mich App at 323. A
defendant can only overcome the presumption by presenting unusual circumstances that would
render a presumptively proportionate sentence disproportionate. People v Bowling, 299 Mich
App 552, 558; 830 NW2d 800 (2013). The principle of proportionality requires sentences
imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
Defendant has not presented us with any unusual circumstances that would render the
presumptively proportionate sentences disproportionate.

                                               -5-
        Defendant primarily argues that his sentences are disproportionate because there was
insufficient evidence to support his convictions. A challenge to the sufficiency of the evidence
relates only to the validity of a defendant’s conviction, not his sentence. We have already
rejected defendant’s argument that the evidence did not support his convictions. Further,
defendant’s reliance on the fact that he will be 44 years old after serving the 16-year minimum
sentence for AWIM, in conjunction with the consecutive two-year sentence for felony-firearm, is
equally unavailing. In People v Lemons, 454 Mich 234, 258-259; 562 NW2d 447 (1997), our
Supreme Court observed:

              [W]e find no basis . . . for a requirement that the trial judge tailor every
       defendant’s sentence in relationship to the defendant’s age. Persons who are sixty
       years old are just as capable of committing grievous crimes as persons who are
       twenty years old. We find no principled reason to require that a judge treat similar
       offenses that are committed by similarly depraved persons differently solely on
       the basis of the age of the defendant at sentencing where the Legislature has
       authorized the judge to impose life or any term of years.

       We note that given defendant’s age of 26 at the time he was sentenced, his
characterization of his combined 18-year minimum sentence as closely resembling a life
sentence is nothing more than hyperbole. In sum, defendant has not demonstrated any unusual
circumstances as necessary to overcome the presumption that his minimum sentence is
proportionate. Accordingly, defendant’s sentences are not unconstitutionally cruel or unusual.
He is not entitled to resentencing.

       We affirm.

                                                            /s/ Jane E. Markey
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Michael F. Gadola




                                               -6-
