                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 10, 2015
                Plaintiff-Appellee,

v                                                                 No. 322419
                                                                  Saginaw Circuit Court
EMERSON LAMONT BEVERLY,                                           LC No. 13-039012-FC

                Defendant-Appellant.


Before: SHAPIRO, P.J., and O’CONNELL and WILDER, JJ.

PER CURIAM.

        Defendant, Emerson Lamont Beverly, appeals as of right his convictions, following a
jury trial, of first-degree home invasion, MCL 750.110a(2), and assault with intent to commit
murder, MCL 750.83. The trial court sentenced defendant as a fourth-offense habitual offender,
MCL 769.12, to serve consecutive terms of 20 to 40 years’ imprisonment for his first-degree
home invasion conviction and 30 to 45 years’ imprisonment for his assault conviction. We
affirm defendant’s convictions, but remand his sentence for a Crosby1 hearing.

                                 I. FACTUAL BACKGROUND

        According to the victim, she and defendant dated from September 2012 until March
2013. Defendant spent five or six nights a week at her home, but he did not store any belongings
there. The victim’s home was equipped with an alarm system. On the days defendant left the
home after the victim did, she gave defendant a key so that he could lock up and she would
retrieve the key from him later. She did not give him the code to the alarm system.

        The relationship began to deteriorate in March 2013. On March 12, 2013, they had a
verbal altercation. Defendant told the victim that he would kill her rather than allow her to be
with someone else. On March 19, the victim told defendant that she “wanted to take a step back”
in their relationship. As she was getting ready for work, defendant grabbed her around the neck
and threw her to the floor. She injured her nose and called 911. After March 19, the victim no



1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


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longer considered herself in a dating relationship with defendant and no longer gave him a key to
her home, but she allowed him to spend the night on a less frequent basis.

        The victim testified that in the evening of April 11, 2013, she woke up to the sound of her
alarm beeping and saw defendant standing over her bed. Defendant stated “I told you I was
going to kill you” and began striking the victim with a hard object. Defendant dragged her out of
her bed and struck her with something that broke. He then dragged the victim into the kitchen,
over broken glass, and repeatedly struck her on the head with a frying pan. When she lifted her
head, the victim saw defendant with two knives in his hands. The alarm siren stopped, defendant
dropped the knives, said he was not done with her yet, and left.

        According to Saginaw Police Department Officer Anthony Teneyuque, when he made
contact with the victim, she was covered in blood. Officer Teneyuque later entered the victim’s
home, where he found large blood spatters, puddles of blood on the kitchen floor, a broken
frying pan with blood on it, and a knife with a bloody handle. Sergeant Mark Scott testified that
the victim appeared severely injured. According to paramedic Whitney Gavord, the victim had
multiple lacerations to her head, hands, feet, legs, eye, and cheek, but the bleeding was not life-
threatening. Dr. Andrew Bazaki prepared a medical report that stated that, among other medical
issues, the victim had significant trauma to her left eye, a fractured wrist, and crush injuries to
the tips of her fingers. The victim testified that she suffered permanent damage to her eye and
now requires eyeglasses.

       The jury found defendant guilty as previously described. Defendant now appeals.

                            II. SUFFICIENCY OF THE EVIDENCE

       Through counsel, defendant contends that the evidence was insufficient to prove that he
broke into the victim’s home or that he intended to kill her. We disagree.

        A claim that the evidence was insufficient to convict a defendant invokes that defendant’s
constitutional right to due process of law. People v Patterson, 428 Mich 502, 525; 410 NW2d
733 (1987). We review de novo a defendant’s claim that the evidence was insufficient to sustain
his or her conviction. People v Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120 (2010).
We must view the evidence in the light most favorable to the prosecution, drawing all reasonable
inferences and resolving all credibility determinations in support of the jury’s verdict. People v
Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000). We will not interfere in the jury’s role
to determine the weight of the evidence and the credibility of the witnesses. People v Eisen, 296
Mich App 326, 331; 820 NW2d 229 (2012).

       The elements of first-degree home invasion are: (1) the defendant either broke and
entered a dwelling or entered a dwelling without permission; (2) the defendant either intended
when entering to commit a felony, larceny, or assault in the dwelling or at any time while
entering, present in, or exiting the dwelling committed a felony, larceny, or assault; and (3) while
the defendant was entering, present in, or exiting the dwelling, he was either armed with a
dangerous weapon or another person was lawfully present in the dwelling. People v Wilder, 485
Mich 35, 43; 780 NW2d 265 (2010). The existence of a dating relationship does not give a



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person the right to be present in his or her partner’s home. People v Dunigan, 299 Mich App
579, 583; 831 NW2d 243 (2013).

         Defendant contends that he had permission to be in the victim’s home. Defendant stayed
at the victim’s home periodically, even after he and the victim broke up. However, the victim
testified that she was the sole lessee of the home, had never given defendant the right to enter or
leave freely, and had never given defendant the alarm code. We conclude that sufficient
evidence supported defendant’s home invasion conviction because the jury could reasonably
conclude from this evidence that defendant entered the victim’s home without permission. See
id.

        “The elements of assault with intent to commit murder are (1) an assault, (2) with an
actual intent to kill, (3) which, if successful, would make the killing murder.” People v
Plummer, 229 Mich App 293, 305; 581 NW2d 753 (1998). The jury may infer the defendant’s
intent to kill from circumstantial evidence. People v Unger, 278 Mich App 210, 223; 749 NW2d
272 (2008). This evidence may include the use of a weapon, threats, and any other
circumstances. People v Brown, 267 Mich App 141, 149 n 5; 703 NW2d 230 (2005).

       Defendant contends that he did not have the intent to kill the victim because he could
have, but did not, stab her with the knife. However, the victim testified that defendant struck her
repeatedly in the head with various blunt objects. He did so with enough force to break the
handle of a frying pan. Witnesses testified that the victim was covered in blood and there were
puddles of blood on the kitchen floor. Defendant struck the victim so forcefully that the victim’s
mother found blood spatter on the ceiling when she was cleaning the victim’s home.
Additionally, the victim testified that defendant threatened to kill her before, during, and after the
incident. Viewing the evidence in the light most favorable to the prosecution, we conclude that a
reasonable jury could find that defendant assaulted the victim with the intent to kill her.

                              III. EVIDENTIARY CHALLENGES

       In his pro-se brief filed pursuant to Michigan Supreme Court Order 2004-6, Standard 4,
defendant raises several issues regarding the admission of evidence.

        This Court reviews for an abuse of discretion preserved challenges to the trial court’s
evidentiary rulings. People v Duncan, 494 Mich 713, 722; 835 NW2d 399 (2013). Defendant’s
challenge to the other acts evidence and cell phone records are preserved, but defendant did not
challenge admission of the photographs below, so that issue is unpreserved. See People v
Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004). We review unpreserved issues for plain
error affecting a party’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). An error is plain if it is clear or obvious, and the error affected the defendant’s
substantial rights if it affected the outcome of the lower court proceedings. Id.

        First, defendant contends that the trial court erred by admitting photographs of the
victim’s house and injuries that the victim’s mother took because a police officer testified that he
did not know when the pictures were taken. The victim laid a proper foundation for the
admission of the photographs because she testified that they fairly and accurately represented
their contents. See MRE 901; In re Robinson, 180 Mich App 454, 460; 447 NW2d 765 (1989).

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Any inconsistencies regarding the contents of the photographs and the police testimony went to
the weight of the evidence, not its admissibility. See People v Barrera, 451 Mich 261, 289; 547
NW2d 280 (1996). We conclude that defendant has failed to establish that admitting the
photographs was a clear error.

       Second, defendant asserts that admission of his other acts of domestic violence against
the victim was improper character evidence because it showed his propensity to engage in
violence.

        MCL 768.27b(1) provides that “in a criminal action in which the defendant is accused of
an offense involving domestic violence, evidence of the defendant’s commission of other acts of
domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise
excluded under [MRE 403].”2 A household member includes someone with whom the defendant
was formerly in a dating relationship. MCL 768.27b(5)(b)(iv). This statute explicitly allows
other acts evidence in domestic violence cases to be admitted for propensity purposes. People v
Railer, 288 Mich App 213, 219-220; 792 NW2d 776 (2010). In this case, the trial court was
permitted to admit evidence of domestic violence for propensity purposes, and there is no
indication that the brief testimony regarding the other acts was substantially more prejudicial
than probative under MRE 403. We conclude that defendant’s argument lacks merit.

        Third, defendant contends that the trial court improperly excluded a cell phone bill that
showed that the victim called him on April 10, 2013. Hearsay is “a statement, other than the one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” MRE 801(c). Generally, hearsay is not admissible. MRE 802.
However, MRE 803(6) provides an exception for records or reports “made at or near the time by,
or from information transmitted by, a person with knowledge, if kept in the course of a regularly
conducted business activity.” To certify a record of a regularly conducted business activity, the
proponent must submit an affidavit from the custodian of the record. MRE 902(11).

         In this case, defendant sought to admit the cell phone records through the testimony of his
mother. There is no indication in the record that defendant’s mother was a custodian of the cell
phone bills or that defendant provided the affidavit required by MRE 902(11). We conclude that
the trial court did not err by excluding this evidence as hearsay.

                                 IV. PROSECUTORIAL ERROR

       Through counsel, defendant contends that the prosecution committed error by denigrating
defense counsel and commenting on defendant’s decision not to testify. We disagree.

        A prosecutor can deny a defendant’s right to a fair trial by making improper remarks that
infringe on a defendant’s constitutional rights or by making remarks that “so infect[] the trial
with unfairness as to make the resulting conviction a denial of due process.” Donnelly v
DeChristoforo, 416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). The prosecutor has


2
    MRE 403 excludes evidence that is substantially more prejudicial than probative.


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committed misconduct if the prosecutor abandoned his or her responsibility to seek justice and,
in doing so, denied the defendant a fair and impartial trial. People v Dobek, 274 Mich App 58,
63; 732 NW2d 546 (2007). We must evaluate instances of prosecutorial misconduct on a case-
by-case basis, reviewing the prosecutor’s comments in context, and in light of the defendant’s
arguments and the evidence presented in the case. Id. at 64.

        First, defendant contends that the prosecutor denigrated defense counsel by implying
during close arguments that counsel had tried to mislead the jury by using the phrases “red
herrings” and “smoke and mirrors.” A prosecutor may not suggest that defense counsel is
intentionally attempting to mislead the jury. Unger, 278 Mich App at 238. A prosecutor may
not personally attack defense counsel. People v McLaughlin, 258 Mich App 635, 646; 672
NW2d 860 (2003).

       Reading the prosecutor’s statements in context, we conclude that the prosecutor did not
denigrate defense counsel with these remarks. The prosecution did not accuse defense counsel
of attempting to mislead the jury. Rather, the prosecutor urged the jury to focus on some
evidence instead of other evidence, referring to certain pieces of evidence as “red herrings” and
“smoke and mirrors.” The prosecution did not denigrate or attack defense counsel.

       Second, defendant contends that the prosecutor impermissibly infringed on his right to
remain silent when the prosecutor repeatedly argued that the evidence, including the victim’s
description of the assault, was uncontroverted.

       The prosecutor may not comment on a defendant’s silence at trial. Griffin v California,
380 US 609, 615; 85 S Ct 1229; 14 L Ed 2d 106 (1965). But this prohibition extends no farther
than the reach of the defendant’s right not to testify, and the prosecutor may observe that the
evidence against a defendant is uncontroverted or undisputed, even if the defendant is the only
person who could have contradicted the evidence. People v Fields, 450 Mich 94, 110, 115; 538
NW2d 356 (1995).

       Again, considering the prosecutor’s remarks in context, we conclude that they were not
improper. The prosecutor did not remark on defendant’s decision not to testify. Rather, the
prosecutor’s focus was on the evidence showed rather than on defendant. We conclude that the
prosecutor’s argument was within the bounds of propriety.

                                V. JUDICIAL MISCONDUCT

       In his pro-se brief, defendant asserts that the trial judge improperly questioned five
witnesses in order to elicit testimony favorable to the prosecution.

       To preserve an issue of judicial bias, a party must raise the claim before the trial court.
MCR 2.003(D); People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011). Where a
defendant has not done so, we review the issue for plain error. Id.; Carines, 460 Mich at 763.

        A trial judge may question witnesses. MRE 614(b). A defendant is entitled to a “neutral
and detached magistrate.” People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996)
(quotation marks and citation omitted). The trial judge should take care to ensure that his or her


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questions “are not intimidating, argumentative, prejudicial, unfair, or partial.” Id. Also see
People v Stevens, 498 Mich 162, 174-175; ___ NW2d ___ (2015).

        We have reviewed the trial court’s questions and conclude that they did not implicate
judicial bias. The judge phrased the questions neutrally, and they elicited information helpful to
both the prosecution and the defense. The judge specifically prefaced the questions with a
curative instruction—that the judge was not being critical of the witnesses or attorneys and did
not want the jury to “imply one way or another” from the questions asked. We conclude that the
judicial questioning in this case was proper.

                                  VI. SENTENCING ISSUES

                              A. PRIOR RECORD VARIABLES

       Defendant’s contentions regarding his prior record variables (PRVs) are primarily based
on his mistaken belief that the trial court could not count offenses that occurred ten years before
the sentencing offense. The trial court may count offenses unless there is “a gap of 10 or more
years between a discharge date and a subsequent commission date.” People v Billings, 283 Mich
App 538, 552; 770 NW2d 893 (2009). The 10-year gap must be free of any convictions. People
v Reyna, 184 Mich App 626, 632; 459 NW2d 75 (1990). Defendant had convictions in 1989,
1991, 1994, 1996, 2000, 2008, 2009, and 2013. The longest gap in defendant’s convictions was
only 8 years from conviction date to conviction date—the length between his discharge date for
his 2000 conviction and his 2008 conviction was even smaller. The trial court did not err by
considering all of defendant’s prior convictions.

        We have considered the remainder of defendant’s PRV issues and conclude they are
without merit. There is no indication that the trial court improperly counted his juvenile
adjudications, and MCL 777.57(2)(c) provides that a concurrent felony conviction that will result
in a mandatory consecutive sentence may not be used to score PRV 7—in this case, the trial
court sentenced defendant to concurrent terms under MCL 750.110a(8), a discretionary statute,
and so this language did not apply.

                        B. OFFENSE VARIABLES AND LOCKRIDGE

        Defendant contends that the trial court improperly assessed points under OVs 1, 3, and 7.
This Court reviews an unpreserved scoring issue for plain error affecting substantial rights.
Kimble, 470 Mich at 312. For preserved scoring issues, we review de novo the interpretation and
application of the sentencing guidelines and review for clear error the trial court’s factual
determinations. People v Hardy, 494 Mich 430, 438; 835 W2d 340 (2013). A preponderance of
the evidence must support the trial court’s factual determinations. Id.

       The prosecutor concedes that the trial court erred by assessing points under OV 1 because
there was no evidence that the victim was cut with a cutting or stabbing weapon. However, the
OV score of 145 as scored by the trial court placed defendant in OV level VI. See MCL
777.16d; MCL 777.62. When reduced by 25 points, defendant’s OV score is 120 and remains in
level VI. This error did not change defendant’s recommended minimum sentence.



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        Regarding OV 3, MCL 777.33(c) authorizes a score of 25 points for “[l]ife threatening or
permanent incapacitating injury” to a victim. The victim testified that she suffered permanent
retina damage as a result of the assault. We conclude that a preponderance of the evidence
supported the trial court’s finding that she suffered a permanent incapacitating injury.

       Regarding OV 7, MCL 777.37(1)(a) authorizes the assessment of 50 points when “[a]
victim was treated with sadism, torture, or excessive brutality or conduct designed to
substantially increase the fear and anxiety a victim suffered during the offense.” When assessing
OV 7, the trial court should consider the elements of the offense, minimum amount of conduct
necessary to commit the crime, and the defendant’s conduct. Hardy, 494 Mich at 443. The trial
court may assess 50 points if any conduct occurred beyond whatever “baseline” level thereof
would ordinarily be attendant to the offense. Id. at 442-443.

        An assault with intent to commit murder does not include brutality as an element of the
crime. Conduct such as pulling the trigger of a gun that is pointed at a victim, even when no
bullets are fired, can constitute assault with intent to commit murder. See People v Davis, 216
Mich App 47, 53; 549 NW2d 1 (1996). The circumstances in this case were far more brutal.
The victim testified that defendant threatened to kill her before repeatedly striking her in the
head with a heavy object, a lamp, and a frying pan. Defendant dragged the victim through
broken glass, causing lacerations along her legs. The victim’s hand was broken and her
fingertips crushed from trying to defend herself. There were puddles of blood in the kitchen and
blood spatter on the ceiling. We conclude that a preponderance of the evidence supported the
trial court’s finding that defendant treated the victim with excessive brutality.

       However, each of these offense variables involves judicially-found facts that were not
elements of defendant’s offenses, and the trial court did not depart upward from the sentencing
guidelines. “[A]ll defendants (1) who can demonstrate that their guidelines minimum sentence
range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences
were not subject to an upward departure can establish a threshold showing of the potential for
plain error sufficient to warrant a remand to the trial court for further inquiry.” People v
Lockridge, 498 Mich 358, 395; 870 NW2d 502 (2015). We conclude that we must remand for a
Crosby hearing under Lockridge. If the trial court determines that it would have imposed the
same sentence absent the unconstitutional constraint on its discretion, it may reaffirm its original
sentence, but if it determines that it would not have imposed the same sentence, it may
resentence defendant. See Lockridge, 498 Mich at 399.

                               C. CONSECUTIVE SENTENCES

         Defendant contends that the trial court improperly ordered consecutive sentences. Before
the trial court, defendant objected at sentencing to the imposition of consecutive sentences on the
ground that the prosecution did not notify him of its intent to seek consecutive sentencing. On
appeal, defendant challenges his consecutive sentences on the different ground that they
essentially amount to a life sentence. “[A]n objection based on one ground at trial is insufficient
to preserve an appellate attack based on a different ground.” People v Asevedo, 217 Mich App
393, 398; 551 NW2d 478 (1996). We review this unpreserved issue for plain error affecting
substantial rights. Carines, 460 Mich at 763.


                                                -7-
        “In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be
imposed only if specifically authorized by statute.” People v Ryan, 295 Mich App 388, 401; 819
NW2d 55 (2012) (internal quotation marks and citation omitted). The purpose of consecutive
sentences is to deter people “from committing multiple crimes by removing the security of
concurrent sentencing.” Id. at 408. MCL 750.110a(8) provides that “[t]he court may order a
term of imprisonment imposed for home invasion in the first degree to be served consecutively
to any term of imprisonment imposed for any other criminal offense arising from the same
transaction.”

       The Legislature has subscribed to the principle of proportionality as enshrined in the
Michigan and United States constitutions when it fashioned the sentencing guidelines. People v
Babcock, 469 Mich 247, 262-263; 666 NW2d 231 (2003). This Court presumes that sentences
within the guidelines range are proportionate. People v Armisted, 295 Mich App 32, 51; 811
NW2d 47 (2011). “In determining the proportionality of an individual sentence, this Court is not
required to consider the cumulative length of consecutive sentences.” People v St John, 230
Mich App 644, 649; 585 NW2d 849 (1998). The question is whether the individual sentences
are proportionate. Id.

         In this case, the trial court ordered consecutive sentences because of defendant’s history
of an escalating pattern of criminal offenses extending back to 1989 and because of the brutality
of the instant offense. Even considering the OV 1 error, defendant’s sentences fell within the
guidelines range. The trial court was within its discretion to order consecutive sentences, and the
mere fact that the sentences were lengthy when combined together did not render the sentences
disproportionate. We conclude that the trial court did not err by imposing consecutive sentences
in this case.

       We affirm defendant’s convictions, but remand for the trial court to determine whether it
would have imposed a materially difference sentence under the sentencing procedure described
in Lockridge. We do not retain jurisdiction.

                                                            /s/ Douglas B. Shapiro
                                                            /s/ Peter D. O’Connell
                                                            /s/ Kurtis T. Wilder




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