                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 31, 2016
               Plaintiff-Appellee,

v                                                                  No. 324479
                                                                   Genesee Circuit Court
CLARENCE JOVAN DAVISON,                                            LC No. 13-034125-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and JANSEN and STEPHENS, JJ.

PER CURIAM.

        A jury convicted defendant of assault with intent to commit murder, MCL 750.83, and
assault by strangulation, MCL 750.84(1)(b).1 The trial court sentenced defendant as a third-
offense habitual offender, MCL 769.11, to concurrent prison terms of 40 to 60 years for the
assault with intent to murder conviction and 114 months to 20 years for the assault by
strangulation conviction. Defendant appeals as of right. We affirm defendant’s convictions;
however, we remand for further proceedings in accordance with People v Lockridge, 498 Mich
358, 397-399; 870 NW2d 502 (2015).

        Defendant’s convictions arise from an October 15, 2013 assault of his former girlfriend.
The victim had been involved in a dating relationship with defendant on and off for several
years, but was actively trying to end the relationship in the weeks leading up to the assault. The
victim was driving home from a store shortly before 1:30 AM on the date of the assault when
defendant called her mobile phone 8 times within a ten minute span. She ignored the calls. The
victim testified that, when she pulled into the driveway of her home, defendant approached her
and held an item against her stomach while repeatedly stating, “I’m sick of this.” The victim
believed the item to be a gun but could not describe the item as it was being concealed in
defendant’s coat pocket.




1
  The jury acquitted defendant of additional charges of armed robbery, MCL 750.529, felon in
possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a
felony, 750.227b.


                                               -1-
        Defendant put his hand around the victim’s mouth and dragged her to the far side of an
abandoned house next to her home. He threw the victim to the ground and choked her until she
lost consciousness. When the victim regained consciousness, a shoestring was wrapped tightly
around her neck. The victim testified that defendant then grabbed her by her ponytail and stated,
“Well if I can’t have you, can’t nobody have you.” The victim then felt something sharp go
across her neck and could hear blood gushing from the wound. At this point, defendant fled.
The victim remained on the ground for several minutes before struggling to her home where her
roommates called 911. Responding officers and paramedics testified that a shoelace was
embedded in a wound around victim’s neck cutting off her air supply. Though the victim lost
consciousness several times in the hours that followed, emergency personnel testified that the
victim positively identified defendant as her assailant.

                            I. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that the prosecution failed to present sufficient evidence to
establish his identity as the person who assaulted the victim. When evaluating a sufficiency of
the evidence claim, this Court must determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt based on the evidence
presented at trial and viewed in a light most favorable to the prosecution. People v Wolfe, 440
Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). “[A] reviewing court is
required to draw all reasonable inferences and make credibility choices in support of the jury
verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). “The credibility of
witnesses and the weight accorded to evidence are questions for the jury, and any conflict in the
evidence must be resolved in the prosecutor’s favor.” People v Harrison, 283 Mich App 374,
378; 768 NW2d 98 (2009).

        As identity is an essential element in every criminal prosecution, People v Yost, 278 Mich
App 341, 356; 749 NW2d 753 (2008), defendant’s identity as the perpetrator of the charged
crime must be established beyond a reasonable doubt. People v Kern, 6 Mich App 406, 409; 149
NW2d 216 (1967). However, the prosecution need not prove identity with direct evidence;
identity may be established by circumstantial evidence and any associated reasonable inferences.
People v Nelson, 234 Mich App 454, 459; 594 NW2d 114 (1999); Kern, 6 Mich App at 409-410.

        In the instant case, the victim positively identified defendant as her assailant. Defendant
attacks this identification, claiming that, because the attack occurred in a dark area, the victim
lost consciousness during and immediately after the attack, and a toxicology screen returned
evidence that the victim had consumed illegal drugs, a rational jury could not find that
defendant’s identity as the assailant was proven beyond a reasonable doubt. We disagree.

        The victim testified that, although the attack occurred at about 1:30 AM, the street lights
were working and she recognized defendant by both his appearance and voice. Though she lost
consciousness during and after the event, the victim informed responding emergency personnel
that defendant was her assailant. Furthermore, the victim testified that she had been trying to
break off her dating relationship with defendant and that her assailant stated, “Well if I can’t
have you, can’t nobody have you.” That the victim may have been under the influence of illegal
drugs at the time of the assault may affect her credibility. However, any credibility questions
were for the jury to resolve, and this Court will not resolve them anew. Harrison, 283 Mich App

                                                -2-
at 378. “It is the jury’s task to weigh the evidence and decide which testimony to believe.”
People v Jones, 115 Mich App 543, 553; 321 N.W.2d 723 (1982). That the jury believed the
victim’s testimony over defendant’s contentions is within their province. Viewed in a light most
favorable to the prosecution, the evidence was sufficient to establish defendant’s identity as the
assailant beyond a reasonable doubt.

                                  II. JUDICIAL FACT-FINDING

       Defendant next argues that he is entitled to resentencing because the trial court engaged
in impermissible judicial fact-finding to score the sentencing guidelines, thereby violating his
Sixth Amendment right to a jury trial. Defendant preserved this issue by raising it in a motion to
remand in this Court. People v McChester, 310 Mich App 354, 357; ___ NW2d ___ (2015).

         Defendant’s fact-finding claims present a Sixth Amendment challenge reviewed de novo
by this Court as a question of constitutional law. People v Stokes, ___ Mich App ___, ___; ___
NW2d ___ (2015) (Docket No. 321303); slip op at 6. In Lockridge, our Supreme Court held that
Michigan’s mandatory sentencing guidelines violate a defendant’s Sixth Amendment right to a
jury trial to the extent that they require judicial fact-finding beyond facts admitted by defendant
or found by the jury beyond a reasonable doubt and this judicial fact-finding increases the floor
of defendant’s minimum sentence range. Lockridge, 498 Mich at 364-65. The remedy for this
constitutional violation is severance of MCL 769.34(2) to the extent that it makes the guidelines
mandatory. Id. “Thus, under Lockridge, while the sentencing guidelines must still be scored by the
trial court, the resulting range is merely an advisory range that must be taken into account by the trial
court when imposing a sentence.” Stokes, ___ Mich App at ___, slip op. at 8. Moving forward, the
trial court must only use facts determined by a jury beyond a reasonable doubt when calculating
defendant’s OV score under the guidelines. Once this score is calculated, the judge may utilize
judicial fact-finding to depart from the sentence imposed by the guidelines. 2 The Supreme Court
stated that “in cases in which a defendant’s minimum sentence was established by application of
the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be
remanded to the trial court to determine whether that court would have imposed a materially
different sentence but for the constitutional error.” Lockridge, 498 Mich at 397. This remedy
was modeled on the procedure adopted in United States v Crosby, 397 F3d 103, 117-118 (CA 2,
2005). See Lockridge, 498 Mich at 395-396. Although Lockridge prescribed this remedy in the
context of an unpreserved claim that is subject to review for plain error, the Crosby remand



2
  We are aware that, in the Lockridge opinion, our Supreme Court stated that “trial courts must
assess the ‘highest number of points possible’ to each variable, ‘whether using judge-found facts
or not.’” Stokes, __ Mich App at ___; slip op at 8, quoting Lockridge, 498 Mich at 392 and n 28.
We find it difficult to reconcile that statement with the holding that sentencing guidelines are to
be scored only on the basis of facts necessarily found by the jury or admitted by defendant.
However, in Stokes, we understand that our Court concluded that it could reconcile the disparate
statements in Lockridge by determining that judges may score guidelines on the basis of facts
they found independent of the jury or defendant’s admissions on the theory that doing so
constitutes a departure, which now need only be justified as reasonable. Id.


                                                  -3-
procedure also applies to a preserved Lockridge sentencing error. Stokes, ___ Mich App at___;
slip op at p 11. Accordingly, since defendant here preserved the instant claim by raising it in a
motion to remand, if we are to find that defendant’s sentence was established in a manner that
violates defendant’s Sixth Amendment right to a jury trial, this court may remand under the
Crosby remand procedure.

         “The essential Sixth Amendment inquiry is whether a fact is an element of the crime.”
Alleyne v United States, 133 S. Ct. 2151, 2153 (2013). Defendant claims that his scores for OVs
1, 2, 3, 4, 6, 7, 8, 10, and 19 violate his Sixth Amendment right to a jury trial because these OVs
were not scored on the basis of facts that have been admitted by defendant or found by a jury
beyond a reasonable doubt, i.e., facts that are an element of an offense defendant had committed.
We agree.

        Defendant was assessed 15 points under OV 1, MCL 777.31(1)(c), 5 points under OV 2,
MCL 777.32(1)(d), 25 points under OV 3, MCL 777.33(1)(c), 10 points under OV 4, MCL
777.34(1)(a), 50 points under OV 6, MCL 777.36(1)(a), 15 points under OV 8, MCL
777.38(1)(a), 5 points under OV 10, MCL 777.40(1)(c), and 10 points under OV 19, MCL
777.49(c) for a total OV score of 185 points. The jury convicted defendant of assault with intent
to commit murder, MCL 750.83, and assault by strangulation, MCL 750.84(1)(b). “The
elements of assault with intent to commit murder are (1) an assault, (2) with the specific intent to
commit murder, (3) which, if successful, would make the killing murder.” People v Beard, 171
Mich App 538, 541; 431 NW 2d 232, 233 (1988). An assault is “an attempt or threat with force
or violence to do corporal harm to another.” People v Brown, 267 Mich App 141, 147; 703 NW
2d 230, 236 (2005). The elements of assault by strangulation are: (1) an assault, and (2) the
intentional “impeding [of] normal breathing or circulation of the blood by applying pressure on
the throat or neck or by blocking the nose or mouth of another person.” MCL 750.84(1)(b), (2).

        Defendant’s use or possession of a weapon, MCL 777.31(1)(c) (OV 1) and MCL
777.32(1)(d) (OV 2), were not elements of the charged offenses. The correct score for both OV
1 and OV 2 is zero points. MCL 777.31(1)(f); MCL 777.32(1)(f). In addition, the jury was not
required to find that the victim sustained a life-threatening injury, MCL 777.33(1)(c) (OV 3), or
a psychological injury. MCL 777.34(1)(a) (OV4). The correct score for both OV 3 and OV 4 is
zero points. MCL 777.33(1)(f), MCL 777.34(1)(b). Although intent to kill is an essential
element of assault with intent to commit murder, the jury was not required to find that defendant
acted with a premeditated intent to kill, as is necessary to score 50 points for OV 6. MCL
777.36(1)(a). The correct score for OV 6 is 25 points. MCL 777.36(1)(b). The jury’s verdict
also did not contain a finding that any of the aggravating factors necessary to score 50 points for
OV 7 were present. MCL 777.37(1)(a). The correct score for OV 7 is zero points. MCL
777.37(1)(b). In addition, the jury made no finding that the victim was asported, MCL
777.38(1)(a) (OV 8), that defendant took advantage of the victim’s vulnerability, MCL
777.40(1)(c) (OV 10), or that defendant interfered with the administration of justice, MCL
777.49(c) (OV 19). The correct score for each of those offense variables is zero points. MCL
777.38(1)(b); MCL 777.40(1)(d); MCL 777.49(d).

        Because the trial court’s scoring of the offense variables was based on judicially-found
facts that increased the floor of the guidelines minimum sentence range, the guidelines range was
unconstitutionally constrained by a violation of the Sixth Amendment. Lockridge, 498 Mich at

                                                -4-
399. Therefore, defendant is entitled to the Crosby remand procedure outlined in Lockridge.
Stokes, ___ Mich App at ___; slip op at 12; see Lockridge, 498 Mich at 395-99. On remand, the
trial court should allow defendant an opportunity “ ‘to avoid resentencing by promptly notifying
the [trial] judge that resentencing will not be sought.’ ” Lockridge, 498 Mich at 398, quoting
Crosby, 397 F3d at 118. If defendant does not wish to avoid resentencing, the court must
determine if it “would have imposed a materially different sentence but for the unconstitutional
constraint [considering] only the ‘circumstances existing at the time of the original sentence.’ ”
Id., quoting Crosby, 397 F3d at 117. In making this determination, the trial court may properly
consider the judicially-found facts underlying its original scoring when determining if departure
from the properly scored guidelines range is appropriate. See id. at 391-92 (“[T]he sentencing
court may exercise its discretion to depart from that guidelines range without articulating
substantial and compelling reasons for doing so. A sentence that departs from the applicable
guidelines range will be reviewed by an appellate court for reasonableness.”). If the sentencing
court decides to depart from the properly scored guidelines range, it must state on the record its
reasons for departure. MCL 769.34(b)(3).3

                          III. DEFENDANT’S STANDARD 4 BRIEF

      Defendant raises additional issues in a pro se supplemental brief filed pursuant to
Supreme Court Administrative Order 2004-6, Standard 4, none of which have merit.

                                      A. JURISDICTION

        Defendant argues that various procedural defects divested the trial court of jurisdiction
over his criminal proceeding. We disagree. Because defendant did not raise these procedural
claims in the trial court, this issue is unpreserved. People v Pipes, 475 Mich 267, 277; 715
NW2d 290 (2006). Therefore, review is limited to plain error affecting defendant’s substantial
rights. People v Vandenberg, 307 Mich App 57, 61; 859 NW2d 229 (2014).

        From what we can discern from defendant’s first argument about a defect involving an
“Affidavit of Probable Cause,” it appears that defendant is challenging the lack of a probable
cause hearing before trial. After defendant’s arrest, however, a preliminary examination was
held, following which the district court found that the prosecutor had established probable cause
to believe that defendant committed the charged offenses. Defendant’s argument that he was not
presented with a probable cause hearing and that the magistrate’s actions, presumably in
authorizing the complaint, amounted to a “rubber stamp” for the police is without merit.




3
  Lockridge, though changing the standard governing departure from the guidelines range, did
not abrogate the requirement that a trial court departing from the guidelines range articulate its
reasons for departure. See Lockridge, 498 Mich at 392 (changing the standard for review of
departures from “substantial and compelling” to “reasonable”); MCL 769.34(3) (“A court may
depart from the appropriate sentence range . . . if the court has a substantial and compelling
reason for that departure and states on the record the reasons for departure”)(emphasis added).


                                               -5-
       Defendant next appears to complain that the warrant was not supported by sufficient facts
“to support an independent judgment that probable cause existed for the [warrant] to be issued.”
We disagree.

       A criminal complaint serves to “initiate[] the judicial phase of the prosecution and
provide[] a basis for the issuance of an arrest warrant.” People v Burrill, 391 Mich 124, 128, 214
NW2d 823 (1974). Concerning the substance of a criminal complaint, MCR 6.101 provides:

       “[A] A complaint is a written accusation that a named or described person has
       committed a specified criminal offense. The complaint must include the
       substance of the accusation against the accused and the name and statutory
       citation of the offense.

       [B] The complaint must be signed and sworn to before a judicial officer or court
       clerk”

       The record discloses that the complaint contained: (1) the date of the offenses, October
15, 2013; (2) the location where the offenses occurred, Genesee County; (3) the details of the
charges against defendant, and (4) an assistant prosecutor’s signature based on “info[rmation]
and belief.” The complaint satisfied the requirements in MCR 6.101(A) and (B), and served to
properly commence the judicial proceedings against defendant. Burrill, 391 Mich at 128; People
v Cain, 299 Mich App 27, 52, 829 NW2d 37 (2012), rev’d in part on other grounds 495 Mich
874 (2013).

        With respect to the warrant, the complaint can serve as the basis for the arrest warrant.
MCL 764.1(1). A magistrate “ shall issue a warrant upon presentation of a proper complaint
alleging the commission of an offense and a finding of reasonable cause to believe that the
individual accused in the complaint committed that offense.” MCL 764.1a(1). According to
MCL 764.1a(2), a reasonable cause finding may rest on “1 or more of the following: . . . (a)
[f]actual allegations . . . contained in the complaint[,]” “(b) [t]he complainant’s sworn
testimony[,]” “(c) [t]he complainant’s affidavit[,]” or “(d) [a]ny supplemental sworn testimony
or affidavits of other individuals presented by the complainant or required by the magistrate.”
MCR 6.102(A) similarly authorizes the issuance of an arrest warrant “if presented with a proper
complaint and . . . the court finds probable cause to believe that the accused committed the
alleged offense.” The court rules also specify that a probable cause finding can “be based on
hearsay evidence . . . ” MCR 6.102(B). The felony warrant contained information identical to
the allegations in the complaint and included, immediately above the magistrate’s signature, the
statement that “[u]pon examination of the complaining witness, there is probable cause to believe
that the offense charged was committed and the Defendant committed the offense.” The
allegations in the complaint and warrant were sufficient to demonstrate compliance with MCL
764.1a. Cain, 299 Mich App at 52. Regardless, even assuming that inadequate detail was
presented to justify the issuance of the arrest warrant, the error would not divest the court of
jurisdiction over defendant. Burrill, 391 Mich at 132-134.

      Contrary to defendant’s assertion, the complaint and warrant were not improper because
they were authorized by an assistant prosecutor instead of the elected prosecuting attorney.
MCL 761.1(l) defines “[p]rosecuting attorney” to include, among others, “an assistant

                                               -6-
prosecuting attorney for a county.” And again, any defect in this regard would not affect the trial
court’s jurisdiction over defendant. Burrill, 391 Mich at 132-134. Thus, defendant is not
entitled to relief based on any defect in the warrant or complaint.

        We also find no merit to defendant’s argument that there was no official bindover to
circuit court. The transcript of the preliminary examination contains a statement by the district
court that it was binding over defendant to the circuit court. The register of actions also indicates
that a bindover was issued on November 7, 2013, and received by the circuit court on November
13, 2013. This argument is without merit.

                                       B. JUDICIAL BIAS

        Defendant next makes the insulting and unreasonable argument that his due process
rights were violated because the presiding judge and the trial prosecutor were both female.
Although defendant argues that he was prejudiced by having a female judge preside over his
trial, which involved charges relating to a domestic assault against a female, defendant did not
preserve this claim by raising it in a motion for disqualification in the trial court. MCR
2.003(D); People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011). Therefore, our
review is limited to plain error affecting defendant’s substantial rights. Vandenberg, 307 Mich
App at 61-62.

         Preliminarily, defendant has not offered any factual support for his suggestion that the
trial judge was chosen through some method other than by lot or some other approved system.
See MCR 8.111(B). Defendant’s reliance on a statistical analysis to argue that it is statistically
improbable that his case would be assigned to both a female district judge and a female circuit
judge, standing alone, does not demonstrate that the case was improperly assigned.

        Further, nothing in the record suggests that the trial judge was biased against defendant.
A defendant is entitled to a neutral and detached magistrate. Jackson, 292 Mich App at 597-598.
A defendant claiming judicial bias must overcome a heavy presumption of judicial impartiality.
Id. at 598. Defendant argues that the trial court’s interruption of his allocution at sentencing
demonstrates that the court was biased against him. The record discloses that the trial court
responded to defendant’s remarks during allocution by accurately stating that defendant’s
protestation of innocence was at odds with the victim’s testimony. In addition, contrary to what
defendant argues, the court made its remarks after defendant had finished his allocution.
Defendant also asserts that the victim had been a witness in a prior case assigned to the same
judge, but fails to explain how this fact supports any claim of judicial bias. Defendant has failed
to overcome the heavy presumption of judicial impartiality.

                                   C. JURY VERDICT FORM

        Defendant next argues that the jury verdict form was improper because it allowed the jury
to consider the charged offense of assault with intent to commit murder or the lesser offense of
assault with intent to do great bodily harm less than murder, but did not give the jury the option
of finding him not guilty of the lesser offense. There was no objection to the verdict form in the
trial court, thereby limiting review to plain error affecting substantial rights. Vandenberg, 307
Mich App at 61. Defendant correctly observes that “a criminal defendant is deprived of his

                                                -7-
constitutional right to a jury trial when the jury is not given the opportunity to return a general
verdict of not guilty.” People v Wade, 283 Mich App 462, 467; 771 NW2d 447, 450 (2009).
The jury verdict form presented the jury with the following options for count 1, assault with
intent to commit murder4:

               ___ Not Guilty

               or

               ___ Guilty of Assault with Intent to Murder

               or

               ___ Guilty of the less serious offense of Assault with Intent to do Great
                     Bodily Harm less than Murder

The verdict form clearly provided the jury with three options: (1) not guilty; of either offense (2)
guilty of the charged offense of assault with intent to commit murder; or (3) guilty of the lesser
offense of assault with intent to do great bodily harm less than murder. There was no error, plain
or otherwise.

                             D. PROSECUTORIAL MISCONDUCT

       Defendant’s claims of prosecutorial misconduct are also unpreserved, thereby limiting
review to plain error affecting substantial rights. Vandenberg, 307 Mich App at 61. “[T]he test
for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.”
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007).

        Defendant faults the prosecutor for not raising the claims of error addressed in section III,
parts A, B, and C. The prosecutor was not defendant’s legal representative. Regardless, having
rejected each of those claims of error, we likewise reject this instant claim of misconduct.

       Defendant also argues that the prosecutor committed misconduct by failing to perform
due diligence in discovering evidence related to this case. Defendant correctly states that a
criminal defendant has a due process right to obtain exculpatory evidence possessed by the
prosecution if it would raise a reasonable doubt about defendant’s guilt. People v Stanaway, 446
Mich 643, 666; 521 NW2d 557 (1994), citing Brady v Maryland, 373 US 83, 87; 83 S Ct 1194;
10 L Ed 2d 215 (1963). However, defendant does not argue that the prosecution suppressed
material evidence in its possession, but rather argues that it failed to search for and discover
potentially useful evidence in the first place. It is well-established that neither the police nor the
prosecutor have a duty to search for and discover evidence beneficial to the defense. People v




4
  The jury was not instructed on a lesser offense for count 3, assault by strangulation, and the
jury acquitted defendant of the remaining counts.


                                                 -8-
Burwick, 450 Mich 281, 289 n 10; 537 NW2d 813 (1995); People v Sawyer, 222 Mich App 1, 6;
564 NW2d 62 (1997). Accordingly, there is no merit to this issue.

                       E. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that trial counsel was ineffective for failing to raise the previously
discussed substantive issues. We have concluded, however, that defendant has not demonstrated
any error with respect to those issues. Therefore, defense counsel was not ineffective for failing
to raise those matters in the trial court. The failure to raise meritless issues does not constitute
ineffective assistance of counsel. People v Wilson, 252 Mich App 390, 393–394; 652 NW2d 488
(2002).

                                   F. CUMULATIVE ERROR

        Defendant argues that the cumulative effect of the many errors identified in his brief
entitles him to a new trial. However, having found no individual errors, there can be no
improper cumulative effect. See People v Knapp, 244 Mich App 361, 388; 624 NW2d 227
(2001).

                G. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

       Defendant argues that appellate counsel was ineffective to the extent that he “opened a
door to jurisdiction” that would not otherwise exist but for appellate counsel’s choice of issues
on appeal. Because we have previously rejected defendant’s jurisdictional arguments, we
likewise reject this claim of error.

       Defendant’s convictions are affirmed, however the case is remanded for further
sentencing proceedings in accordance with this opinion. We do not retain jurisdiction.

                                                             /s/ Amy Ronayne Krause
                                                             /s/ Kathleen Jansen
                                                             /s/ Cynthia Diane Stephens




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