            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 22, 2019
              Plaintiff-Appellee,

v                                                                  No. 344028
                                                                   Kent Circuit Court
LARRY DEVONTE HARRIS,                                              LC No. 17-010975-FH

              Defendant-Appellant.


Before: MARKEY, P.J., and BORRELLO and BOONSTRA, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of assault with a dangerous weapon
(felonious assault), MCL 750.82, malicious interference with an electronic communication, MCL
750.540, and third-offense domestic assault, MCL 750.81(4). He was sentenced as a fourth-
offense habitual offender, MCL 769.12, to 4 to 15 years’ imprisonment for the felonious assault
conviction, 2 to 15 years’ imprisonment for the communication-interference conviction, and 12
to 70 years’ imprisonment for the domestic assault conviction. Defendant appeals by right, and
we affirm.

        This case stems from a violent domestic assault committed by defendant against the
mother of his child. The victim testified that defendant had an argument with his girlfriend and
that he called the victim, asking her to pick him up. The victim picked up defendant, and the two
drove back to her place. The victim testified that defendant spent the night at her home, with
defendant staying in a room with their son. The victim slept separately in her own room. After
she awoke the next day, the victim discovered money missing from her wallet and confronted
defendant. According to the victim, an argument ensued and quickly escalated with defendant’s
becoming violent. Along with yelling at and threatening the victim, defendant threw, kicked,
choked, spit on, and punched her repeatedly in different areas of the home over a prolonged
period. He then put a knife to the victim’s neck and threatened to kill her. The victim testified
that the assault was committed in front of their young child and that defendant was high on
cocaine. The victim attempted to call the police using her cell phone, but defendant grabbed the
phone and threw it to the ground, smashing the phone. The victim, whose face, head, and body


                                               -1-
were bruised and bloodied, was finally able to escape her home and call the police using a
neighbor’s phone. The court admitted into evidence photographs of the victim’s injuries, the
smashed phone, the knife, and a bathroom door damaged when defendant thrust the knife into it
several times while the victim and child cowered inside.

        Throughout the proceedings, including the preliminary examination and trial, defendant
conducted himself in a disorderly, disruptive, and disrespectful manner. Defendant often
interrupted as the prosecutor was eliciting testimony, fought and argued with the trial court, and
spoke very loudly when conferring with counsel such that the entire courtroom could hear. The
trial court repeatedly admonished defendant, asking him to be respectful and quiet and warning
defendant that he would be removed from the courtroom if he continued acting in an unruly
fashion. The court was eventually forced to remove defendant from the courtroom during the
trial because he ignored the court’s repeated admonitions to behave appropriately. Although in
lockup, defendant was able to listen to the remainder of the trial and communicate in writing
with his counsel.

        The minimum sentence guidelines range for defendant was 22 to 76 months (domestic
assault). The trial court imposed a minimum sentence of 12 years for the domestic assault
conviction, nearly doubling the top end of the guidelines range. At the sentencing hearing, the
trial court noted that there had been an attempt to sentence defendant a week earlier, but
“defendant start[ed] ranting and raving, screaming, yelling, [and] was moved out [of] the
courtroom.” The court indicated that defendant continued to disrupt the sentencing “even when
he was in lockup and had to be removed off the floor.”               The trial court observed that
defendant’s record was “absolutely atrocious,” revealing eight prior felony convictions, 20
misdemeanor convictions, six juvenile adjudications, 16 different jail sentences, probation and
prison stints, and various parole violations. The court then stated:

               This was a very long, involved attack on this woman and her child. This is
       a woman that you had a child with that was, quite frankly, allowing you to be a
       father figure and wanted you to be a father figure to this child. You stole from her,
       you abused her, you threatened her, you beat her. This started out downstairs in
       the apartment. It went on for a long period of time, and then it graduated upstairs
       where this poor woman and her child were trying to hide in the bathroom. You
       took a knife, you were stabbing the door trying to—threatening to kill her and this
       little boy. That is outrageous. You said, as I recall—the quote was during the
       course of trial that you were going to [“]O. J. them.[”] In other words, kill them
       both. This was a very serious attack. There was a mirror that was broken. Luckily
       this woman survived, and this child survived.


       The trial court then acknowledged that the guidelines were only advisory and that it had
to impose a sentence that was reasonable and proportionate. The court ruled:

               [T]hese guidelines do not take into [account] the significance of this
       attack, the fact that you went after both this woman and this child with a knife
       over an extended period of time. It does not take into [account] your extensive
       criminal record that I have already articulated on the record, nor does it take into
       [account] . . . that you just cannot control yourself. You could not control yourself
                                                -2-
       in the courtroom during the course of trial. You could not control yourself at
       sentencing. I have been doing this for 33 years. I’ve been on the bench for 12
       years. You are one of the most dangerous individuals that I have ever had come
       before me or that I have ever seen or worked with. There is no question in my
       mind that you are a threat to society, and you need, quite frankly, to be housed
       away and need counseling, and you need to be able to reflect on the way you’ve
       been living your life and what you have been doing.

       On appeal, defendant first argues that the trial court erred by removing him from the
courtroom during which time critical portions of the trial were conducted, including the
testimony of witnesses, closing arguments, and final jury instructions. This issue was not
preserved below; therefore, our review is for plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

        Under MCL 768.3, a criminal defendant has a statutory right to be present during his or
her trial. People v Kammeraad, 307 Mich App 98, 116; 858 NW2d 490 (2014). The right of an
accused to be present at trial is also impliedly guaranteed by the state and federal Confrontation
Clauses, US Const, Am VI; Const 1963, art 1, § 20, the Due Process Clauses, US Const, Am
XIV; Const 1963, art 1, § 17, and the right to an impartial jury, Const 1963, art 1, § 20. People v
Mallory, 421 Mich 229, 246 n 10; 365 NW2d 673 (1984); Kammeraad, 307 Mich App at 116-
117. A defendant, however, can forfeit or waive his right to be present at trial by voluntarily
being absent after the trial has started, which was not the case here, or by being so disorderly and
disruptive that the trial simply cannot be continued with the defendant being present.
Kammeraad, 307 Mich App at 117. Although a court must indulge every reasonable
presumption against the loss of the constitutional right to be present in the courtroom, “a
defendant can lose his right to be present at trial if, after he has been warned by the judge that he
will be removed if he continues his disruptive behavior, he nevertheless insists on conducting
himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot
be carried on with him in the courtroom.” Illinois v Allen, 397 US 337, 343; 90 S Ct 1057; 25 L
Ed 2d 353 (1970); see also Kammeraad, 307 Mich App at 118. The proper administration of
justice requires that dignity, order, and decorum be the hallmarks of all court proceedings, and
the flagrant disregard in the courtroom of these basic tenets of appropriate conduct is not to be
tolerated. Kammeraad, 307 Mich App at 119. Trial courts confronted with disruptive,
contumacious, and stubbornly defiant defendants have the discretion to meet the circumstances
by removing such defendants from the courtroom. Id.

        An examination of the record in the instant case reveals a course of conduct by defendant
before, during, and after trial that was unruly, disruptive, disrespectful, disorderly, and offensive.
Defendant’s conduct made it impossible to carry on the trial with any semblance of order were
he to remain present in the courtroom. The trial court repeatedly warned defendant of the
consequences of his actions, continually asked him to behave respectfully, and even gave him the
opportunity after ordering him removed from the courtroom to reclaim the right to be present on
condition that he conduct himself in a proper manner. Defendant chose to forfeit his “second”
chance: he chose to maintain his rebellious attitude despite having promised that he understood
and would “behave”. The trial court ultimately deemed it necessary to remove defendant from
the courtroom so that the trial could continue in orderly fashion. Although defendant was placed


                                                 -3-
in lockup, he was still able to hear the trial and to effectively communicate with defense counsel
through the passing of notes. We hold that the trial court did not err by removing defendant from
the courtroom during the trial in light of his belligerent behavior. See People v Harris, 80 Mich
App 228, 230; 263 NW2d 40 (1977). There was no error, plain or otherwise.

        Next, defendant argues that the trial court abused its discretion by imposing a sentence
that departed upward from the guidelines range by nearly double the range’s top end. Defendant
contends that the departure was unreasonable and disproportionate.

       We review for reasonableness “[a] sentence that departs from the applicable guidelines
range.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). In People v
Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017), our Supreme Court provided
elaboration on the “reasonableness” standard, stating:

                  [T]he proper inquiry when reviewing a sentence for reasonableness is
          whether the trial court abused its discretion by violating the “principle of
          proportionality” set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
          (1990), “which requires sentences imposed by the trial court to be proportionate
          to the seriousness of the circumstances surrounding the offense and the offender.”

       Factual findings related to a departure must be supported by a preponderance of the
evidence and are reviewed for clear error. People v Lawhorn, 320 Mich App 194, 208-209; 907
NW2d 832 (2017). For purposes of sentencing, “a court may consider all record evidence,
including the contents of a PSIR,[1] plea admissions, and testimony presented at a preliminary
examination.” People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015).

        The key test is not whether a sentence departs from or adheres to the guidelines range,
but whether the sentence is proportionate to the seriousness of the matter. Steanhouse, 500 Mich
at 472. “The premise of our system of criminal justice is that, everything else being equal, the
more egregious the offense, and the more recidivist the criminal, the greater the punishment.”
People v Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003). Sentencing judges are “entitled
to depart from the guidelines if the recommended ranges are considered an inadequate reflection
of the proportional seriousness of the matter at hand.” Milbourn, 435 Mich at 661. A sentence
within the guidelines might be disproportionality lenient. Id. “Where a defendant’s actions are
so egregious that standard guidelines scoring methods simply fail to reflect their severity, an
upward departure from the guidelines range may be warranted.” People v Granderson, 212
Mich App 673, 680; 538 NW2d 471 (1995). In People v Steanhouse, 313 Mich App 1, 46; 880
NW2d 297 (2015), aff’d in part, rev’d in part on other grounds 500 Mich 453 (2017), this Court
indicated:

                 Factors previously considered by Michigan courts under the
          proportionality standard included, among others, (1) the seriousness of the
          offense; (2) factors that were inadequately considered by the guidelines; and (3)


1
    PSIR stands for presentence investigation report.


                                                 -4-
       factors not considered by the guidelines, such as the relationship between the
       victim and the aggressor, the defendant’s misconduct while in custody, the
       defendant’s expressions of remorse, and the defendant’s potential for
       rehabilitation. [Citations omitted.]

       “[A] trial court must justify the sentence imposed in order to facilitate appellate review,
which includes an explanation of why the sentence imposed is more proportionate to the offense
and the offender than a different sentence would have been.” People v Dixon-Bey, 321 Mich
App 490, 525; 909 NW2d 458 (2017) (quotation marks and citations omitted).

        We first agree with the trial court’s conclusion that the prior record variables (PRVs)
were woefully inadequate with respect to addressing defendant’s extensive criminal history.
Under PRV 1, defendant was assessed 50 points for two prior high severity felony convictions.
MCL 777.51(1)(b). Under PRV 2, defendant was assessed 30 points for four or more prior low
severity felony convictions. MCL 777.52(1)(a). Accordingly, two of defendant’s eight prior
felony convictions had no bearing on his PRV score and were given no weight. Under PRV 5,
defendant was assessed 20 points for seven or more prior misdemeanor convictions or prior
misdemeanor juvenile adjudications. MCL 777.55(1)(a). But 13 of defendant’s 20 prior
misdemeanor convictions had no bearing on his PRV score and were given no weight. Between
defendant’s prior misdemeanor and felony convictions, 15 crimes that defendant committed were
effectively unrecognized in scoring the PRVs; consequently, we agree that the trial court
appropriately took into consideration the inadequacy of the guidelines relative to defendant’s
criminal background. The PSIR also supported the trial court’s reliance on the fact that
defendant had several parole and probation violations on his record.

        With respect to the trial court’s reference to the prolonged, vicious nature of the assault,
while various characteristics of the assault and impact on the victim were taken into
consideration in scoring the offense variables (OVs), there are no OVs that particularly address
the longevity or duration of an assault. Also, to the extent that the OVs somewhat take into
consideration the horrific nature of a crime, we question the adequacy of the OVs in addressing
this particular situation in which the drug-crazed defendant attempted to break through the door
of a bathroom wherein the victim and child sought shelter: defendant rammed the door with a
knife and threatened to kill the victim—patently a terrifying experience for both the victim and
the child. We agree with the trial court’s sentiments that defendant’s conduct was “outrageous.”
One should also not lose sight of the fact that a young child was present throughout the long
brutal assault on his mother.

        Finally, the trial court noted defendant’s disorderly, disruptive, and disrespectful behavior
during court proceedings. The court tied this conduct, along with defendant’s criminal history,
to its conclusion that a substantial prison term was necessary for the protection of society, as
defendant was a very dangerous individual in great need of counseling. As indicated earlier, a
defendant’s misconduct while in custody and the potential for rehabilitation can be considered in
departing from the guidelines. Steanhouse, 313 Mich App at 46. The courtroom misconduct
defendant purposely and repeatedly displayed, although not in a prison setting, nevertheless
constituted misconduct while in custody. And the potential for rehabilitation relates to the
protection of society—the poorer the chance of rehabilitation, the greater the need for a lengthy


                                                -5-
prison term to protect society. The trial court appropriately considered these factors in departing
from the guidelines range.

        Taking into consideration defendant’s extensive criminal history, the prolonged and
horrific nature of the assault, defendant’s misconduct during court proceedings, and the need to
protect society, we find that the decision to depart from the guidelines and the extent of the
departure were reasonable, i.e., the 12-year minimum sentence was proportionate to the
circumstances surrounding the offense and the offender. The trial court effectively determined
that a sentence within the guidelines would not be proportionate to the offense and the offender
in light of the aggravating circumstances. In sum, we hold that the trial court did not abuse its
discretion by imposing the departure sentence.

          Next, in his Standard 4 brief, defendant argues that the district court erred in binding
defendant over for trial following the preliminary examination, considering that there was an
absence of probable cause to conclude that defendant committed a crime. This argument is
greatly lacking in merit. Defendant presents nonsensical arguments unsupported by law and/or
the facts contained in the record. At the preliminary examination, the victim testified to the
assault committed against her by defendant, and the district court admitted into evidence
photographs of the battered victim, the bathroom door, the knife, and the smashed cell phone.
There was probable cause to find that the charged offenses had been committed and that
defendant had committed them. 2 Although defendant presented the testimony of his girlfriend
who attempted to provide him with an alibi, a magistrate should not refuse to bind a defendant
over for trial simply because there is conflicting evidence. People v Yost, 468 Mich 122, 128;
659 NW2d 604 (2003). Furthermore, the district court expressly found that the victim was much
more credible than defendant’s girlfriend. See id. (a magistrate has the authority to assess the
credibility of witnesses in a preliminary examination). Finally, “an evidentiary deficiency at the
preliminary examination is not ground for vacating a subsequent conviction where the defendant
received a fair trial and was not otherwise prejudiced by the error.” People v Hall, 435 Mich
599, 601; 460 NW2d 520 (1990). Here, defendant received a fair trial and was not prejudiced by
any assumed evidentiary deficiency at the preliminary examination.

        Lastly, defendant presents various frivolous claims of ineffective assistance of counsel
that are not supported by the law and/or the facts contained in the record. We also deem the
issues abandoned due to inadequate and incoherent briefing. See People v Matuszak, 263 Mich
App 42, 59; 687 NW2d 342 (2004). Defendant has not persuaded us that trial counsel’s


2
  The purpose of a preliminary examination is to determine whether there is probable cause to
believe both that an offense has been committed and that it was committed by the defendant.
MCL 766.13; MCR 6.110(E). Probable cause is established by evidence “sufficient to cause a
person of ordinary prudence and caution to conscientiously entertain a reasonable belief” that a
crime was committed and committed by the defendant. People v Yost, 468 Mich 122, 126; 659
NW2d 604 (2003) (quotations and citation omitted). The prosecutor must present evidence
showing each element of the crime charged or evidence from which the elements can be inferred,
although the evidence need not establish guilt beyond a reasonable doubt. People v McBride,
204 Mich App 678, 681; 516 NW2d 148 (1994).


                                                -6-
performance was deficient or that, assuming deficient performance, defendant suffered any
prejudice. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). Reversal is
unwarranted.

      We affirm.



                                                      /s/ Jane E. Markey
                                                      /s/ Stephen L. Borrello




                                           -7-
