                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 17, 2016
               Plaintiff-Appellee,

v                                                                  No. 325204
                                                                   Isabella Circuit Court
JAMES ELROY DENTON,                                                LC No. 2014-001290-FC

               Defendant-Appellant.


Before: SERVITTO, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

         Defendant appeals as of right his jury trial convictions of unlawful imprisonment, MCL
750.349b; fleeing and eluding a police officer (third degree), MCL 257.602a(3)(a); aggravated
stalking, MCL 750.411i; operating while intoxicated, MCL 257.625(1)(a); and domestic
violence, MCL 750.812. The trial court sentenced defendant, a habitual fourth offender, MCL
769.12, to concurrent terms of 19 to 40 years’ imprisonment for the unlawful imprisonment
conviction, and 13 to 40 years’ for the fleeing and eluding and aggravated stalking convictions,
and to 30 days of jail, with credit for time served, for the operating while intoxicated and
domestic violence convictions. We affirm defendant’s convictions but remand for resentencing
in light of Lockridge.

        Defendant and Robin Marshalek, his ex-girlfriend, were involved in a physical altercation
on July 12, 2014, that began in a hotel room. The altercation eventually moved outside, with
defendant hitting Marshalek, grabbing her in a headlock, and forcing her into his vehicle. A
police officer saw defendant’s vehicle stop and Marshalek exited the vehicle, yelling at the
officer to get defendant because he was beating her. Defendant then accelerated quickly and the
police officer, as well as two others, pursued defendant in his vehicle until he crashed. Upon
speaking to defendant at the crash scene, defendant admitted to one of the officers that he had
been drinking alcohol, but denied hitting Marshalek.

       On appeal, defendant first contends that the prosecutor engaged in misconduct by shifting
the burden of proof during his questioning of defendant and during closing argument and by
disparaging defense counsel during closing arguments. “[P]reserved allegations of prosecutorial
misconduct are reviewed de novo to determine whether the defendant was denied a fair and
impartial trial.” People v Atkins, 259 Mich App 545, 562; 675 NW2d 863 (2003). “Under the
preserved, nonconstitutional error standard, a defendant has the burden of establishing that it is

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more probable than not that the error in question ‘undermine[d] the reliability of the verdict,’
thereby making the error ‘outcome determinative.’ ” People v Blackmon, 280 Mich App 253,
270; 761 NW2d 172 (2008), quoting People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607
(1999)(alteration by Blackmon Court). “[I]n order for prosecutorial misconduct to be
constitutional error, the misconduct must have so infected the trial with unfairness as to make the
conviction a deprivation of liberty without due process of law.” Id. at 269.

        “Issues of prosecutorial misconduct are decided case by case, and this Court must
examine the entire record and evaluate a prosecutor’s remarks in context.” People v Dobek, 274
Mich App 58, 64; 732 NW2d 546 (2007). “A prosecutor’s remarks must be examined in context
and evaluated in light of defense arguments and the relationship they bear to the evidence
admitted at trial to determine whether a defendant was denied a fair and impartial trial.” People
v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005). “A prosecutor may argue from the
facts that a witness, including the defendant, is not worthy of belief, and is not required to state
inferences and conclusions in the blandest possible terms.” People v Launsburry, 217 Mich App
358, 361; 551 NW2d 460 (1996) (citation omitted). However, “the prosecution may never shift
its burden to prove that defendant is guilty beyond a reasonable doubt and obligate the defendant
to prove his innocence.” People v Rosales, 160 Mich App 304, 312; 408 NW2d 140 (1987).
But, as explained by the Michigan Supreme Court in People v Fields, 450 Mich 94, 115; 538
NW2d 356 (1995):

       [W]here a defendant testifies at trial or advances, either explicitly or implicitly, an
       alternate theory of the case that, if true, would exonerate the defendant, comment
       on the validity of the alternate theory cannot be said to shift the burden of proving
       innocence to the defendant. Although a defendant has no burden to produce any
       evidence, once the defendant advances evidence or a theory, argument on the
       inferences created does not shift the burden of proof.

        In this case, defendant argues that the prosecutor improperly shifted the burden of proof
by suggesting, during cross-examination and rebuttal argument, it was significant that defendant
was disclosing for the first time at trial that he observed bruises on Marshalek’s legs before the
offenses occurred. Yet, the issue of when and how Marshalek obtained the bruises on her legs
pertained to the charge of assault with intent to commit criminal sexual misconduct—of which
defendant was acquitted. Therefore, even if the prosecutor’s question and comments were
improper, they were not outcome determinative. Blackmon, 280 Mich App at 270.

        In any event, it was not improper for the prosecutor to comment on defendant’s theory of
the source of Marshalek’s bruises. When read in context, the prosecutor’s question and
comments did not suggest that defendant had the burden to prove his innocence. Rather, he was
arguing that there were credibility implications to defendant sharing his observations of the
bruises for the first time at trial. “[A] prosecutor may argue from the evidence that a witness is
unworthy of belief.” People v Reid, 233 Mich App 457, 478; 592 NW2d 767 (1999).

        In addition, after defendant’s objection to the prosecutor’s comments during rebuttal
argument, the trial court responded, “[T]he defense has no obligation to do anything.” The trial
court also instructed the jury that plaintiff bore the burden of proving every element of the crimes
beyond a reasonable doubt, that it could only consider properly admitted evidence when reaching

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a verdict, and that a lawyer’s statements and arguments were not evidence. Thus, to the extent
the prosecutor’s remarks implied that defendant had the burden to prove his innocence, the trial
court’s instructions cured any prejudicial effect. Brown, 267 Mich App at 153. See also People
v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998) (“It is well established that jurors are
presumed to follow their instructions.”).

        Defendant also argues that comments made by the prosecutor during closing argument
improperly suggest that defense counsel was intentionally misleading the jury. “Prosecutors are
typically afforded great latitude regarding their arguments and conduct at trial.” People v Unger,
278 Mich App 210, 236; 749 NW2d 272 (2008). “But the prosecutor may not suggest that
defense counsel is intentionally attempting to mislead the jury.” People v Fyda, 288 Mich App
446, 461; 793 NW2d 712 (2010). The danger of such a suggestion was explained by this Court
in People v Wise, 134 Mich App 82, 102; 351 NW2d 255 (1984):

       When the prosecutor argues that the defense counsel himself is intentionally
       trying to mislead the jury, he is in effect stating that defense counsel does not
       believe his own client. This argument undermines the defendant’s presumption of
       innocence. Such an argument impermissibly shifts the focus from the evidence
       itself to the defense counsel’s personality. [Citation omitted.]

      In this case, the prosecutor commented on defense counsel’s decision not to question
Marshalek about defendant’s tattoo:

               What’s the one thing we don’t hear? During the cross, think back now,
       think back to the testimony and the cross examination of Ms. Marshalek. Did you
       hear any questions of Ms. Marshalek about the bandages on the left hand? Did
       you hear any questions to Ms. Marshalek of tattoos being the matter that set her
       off, that made her go ballistic, as Mr. Denton says? Did you—why wouldn’t you
       ask those questions of the person who supposedly is fabricating everything to get
       back at Mr. Denton? Because it didn’t happen.

               Did he have the tattoo. Perhaps. But think about in your mind Mr.
       O’Neil, a trained lawyer, had the opportunity to ask Ms. Marshalek those
       questions and they were never asked. Why? So that when he, Mr. Denton, takes
       the stand, he can make any assertion that he wants and there is nobody to—

                                               ***

       That’s what happened. It was never—she was never questioned about that. But
       that was the catalyst. That was the wick in the keg that set her off to cause all
       these problems. It didn’t happen. Ms. Marshalek never knew of that tattoo. If it
       was there, she didn’t know about it. Seems to me that that would be important
       information.

       The import of the prosecutor’s remarks was that defense counsel did not ask Marshalek
about defendant’s tattoo because he knew that the tattoo did not initiate the altercation, which in
turn suggested that he did not believe defendant’s version of the events. The prosecutor notes
how defense counsel introduced the idea during Hick’s testimony. The prosecutor refers to
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defense counsel as a “trained lawyer,” and notes that counsel did not pursue the matter with
Marshalek, even though he had the opportunity to do so. “Why,” the prosecutor wonders
cryptically, were the questions never put to Marshalek. The unspoken implication is that defense
counsel knew that Marshalek would reject the contention because it was not true. Moreover,
because defendant had no obligation to prove his innocence, Rosales, 160 Mich App at 312,
counsel had no obligation to ask Marshalek the questions suggested by the prosecutor.
Accordingly, the prosecutor’s comments suggested that defense counsel was intentionally
misleading the jury, Fyda, 288 Mich App at 461, and undermined defendant’s presumption of
innocence, Wise, 134 Mich App at 102.

        However, the prosecutor’s comments cannot be said to have “so infected the trial with
unfairness as to make the conviction a deprivation of liberty without due process of law.”
Blackmon, 280 Mich App at 269. The fact that the jury acquitted defendant of three charges and
was hung on another strongly indicates that the jury’s decisions were predicated on determining
whether the prosecutor had met its burden to prove defendant’s guilt beyond a reasonable doubt.
Moreover, the trial court instructed the jury that the lawyers’ statements and arguments were not
evidence and that it should only accept statements by the lawyers that are supported by the
evidence or common sense. “Curative instructions are sufficient to cure the prejudicial effect of
most inappropriate prosecutorial statements, and jurors are presumed to follow their
instructions.” Unger, 278 Mich App at 235 (citation omitted).

        Defendant next argues on appeal that he was sentenced based on an incorrect guidelines
range and is thus entitled to resentencing or, alternatively, that defense counsel was ineffective
for failing to object to the scoring errors. “In an appeal claiming that the scoring of the
sentencing guidelines was erroneous, the trial court’s findings of fact are reviewed for clear error
and must be supported by a preponderance of the evidence.” People v Hutchinson, 308 Mich
App 10, 12-13; 865 NW2d 44 (2014). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “The interpretation of the statutory sentencing
guidelines and the legal questions presented by application of the guidelines are subject to review
de novo.” People v Underwood, 278 Mich App 334, 337; 750 NW2d 612 (2008). “[T]he
standards of review traditionally applied to the trial court's scoring of the variables remain viable
after [People v ] Lockridge [498 Mich 358; 870 NW2d 502 (2015)].” People v Steanhouse, ___
Mich App ___ ; ___ NW2d ___ (issued October 22, 2015, Docket No. 318329); slip op at 19.

       A defendant must “move in the trial court for a new trial or an evidentiary hearing to
preserve the defendant’s claim that his or her counsel was ineffective.” People v Heft, 299 Mich
App 69, 80; 829 NW2d 266 (2012). Defendant moved for a new trial but not on the ground that
his counsel was ineffective. This Court’s review of unpreserved claims of ineffective assistance
of counsel is limited to mistakes apparent from the record. Id.

        Defendant challenges the scoring of offense variables (OV) 2 and 10, which were scored
at five points and ten points, respectively. Ten points are scored for OV 10 where “[t]he
offender exploited a victim’s physical disability, mental disability, youth or agedness, or a
domestic relationship, or the offender abused his or her authority status.” MCL 777.40(1)(b).
The prosecution concedes that OV 10 was improperly scored because defendant and Marshalek

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were not living together or in a relationship at the time of the offense. See People v Brantley,
296 Mich App 546, 555; 823 NW2d 290 (2012) (holding that the trial court erroneously assessed
10 points for OV 10 where the defendant and the victim had stopped dating at least two months
prior to the assault). The prosecution makes no argument for scoring OV 10 at all. Thus, OV 10
should have been scored at 0 points.

        As to OV 2, five points are assessed when the “offender possessed or used a pistol, rifle,
shotgun, or knife or other cutting or stabbing weapon.” MCL 777.32(1)(d). It is undisputed that
when defendant was arrested, a knife was found in his truck. Defendant, however, contends that
OV 2 was improperly scored in his case because there was no evidence that the knife was
possessed as a weapon. Rather, defendant testified at trial that he kept the hunting style knife in
his vehicle as a cutting tool and for use as a screwdriver and pry bar. Defendant also points out
that Marshalek testified that she did not see the knife on the night of the incident and that the jury
acquitted him of the charge of carrying a concealed weapon. The prosecutor, on the other hand,
contends that OV 2 was correctly scored at five points because the statute only requires that
defendant possessed a knife, which he does not dispute.

        When interpreting statutory provisions, the overriding goal is to discern and give effect to
the Legislature’s intent. People v Flick, 487 Mich 1, 10; 790 NW2d 295 (2010). The first step is
to examine the words of the statute, and “if the statute is unambiguous on its face, the Legislature
will be presumed to have intended the meaning expressed, and judicial construction is neither
required nor permissible.” People v Likine, 492 Mich 367, 387; 823 NW2d 50 (2012). “The
words of a statute are the most reliable indicator of the Legislature’s intent and should be
interpreted according to their ordinary meaning and the context within which they are used in the
statute.” People v Smith, 496 Mich 133, 138; 852 NW2d 127 (2014).

        The plain language of MCL 777.32(1)(d) appears unambiguous. Section 32 provides for
scoring of points on mere possession of a listed item, as the disjunctive “or” signals an
alternative to use of a weapon. The statute states that it addresses the “lethal potential” of the
listed weaponry possessed or used, not the actual threat posed by the weapon as used in the given
situation. OV 1, in contrast, addresses actual use of a weapon and aggravated use of the same, at
that. Regardless, defendant directs this Court to People v Ball, 297 Mich App 121; 823 NW2d
150 (2012), wherein the defendant was scored 20 points for OV 1, applicable to the aggravated
use of a weapon (MCL 777.31), and the “weapon” counted for this OV was heroin that the
defendant delivered to a victim and upon which the victim overdosed. A panel of this Court,
while agreeing that heroin met the statutory definition of a “harmful chemical substance” for
purposes of OV 1, disagreed with the trial court’s conclusion that the heroin was used as a
weapon under the facts of the case. Id. at 124-125. This Court defined “weapon” and concluded
that while under some circumstances heroin could be used as a weapon, such as if one forcibly
injected heroin into an unwilling victim, those circumstances were not present in Ball. Id. at
125-126. Relying on Ball, defendant indicates that the issue for purposes of scoring OV 2, then,
is whether defendant must have possessed the knife as a weapon in order for five points to be
assessed under OV 2.

        This Court’s opinion in People v Lange, 251 Mich App 247; 650 NW2d 691 (2002), is
instructive. In Lange, the Court held that a glass mug used to strike the victim over the head was
a weapon under OV 1. Id. at 248, 257-258. The defendant argued, in part, that the meaning of a

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weapon was ambiguous when read in context of other statutory provisions. Id. at 255. In
response, the Court noted that the Legislature is presumed to be aware of how courts interpret
terms and proceeded by observing how the Michigan Supreme Court defined “dangerous
weapon” in People v Vaines, 310 Mich 500; 17 NW2d 729 (1945):

             Some weapons carry their dangerous character because so designed and
       are, when employed, per se, deadly, while other instrumentalities are not
       dangerous weapons unless turned to such purpose.

              Daggers, dirks, stilettos, metallic knuckles, slung-shots, pistols, and
       similar articles, designed for the purpose of bodily assault or defense, are
       generally recognized as dangerous weapons per se. Other articles and
       instruments become dangerous weapons only when they are used or carried for
       use as weapons. [Lange, 251 Mich App at 256, quoting Vaines, 310 Mich at 505-
       506 (emphasis added by Lange Court).]

       Applying those holdings to this case, it is clear that a hunting knife, which has a
“dangerous character because [it is] so designed,” Vaines, 310 at 505, is a weapon per se and that
no additional inquiry is needed into whether it was actually possessed or used as a weapon
during the commission of the offense. Because OV 2 unequivocally addresses only lethal
potential, the only relevant inquiries for purposes of scoring OV 2 in defendant’s case are: (1)
whether the challenged instrument qualifies as a pistol, rifle, shotgun, or knife or other cutting or
stabbing weapon and (2) whether defendant possessed or used the same during the commission
of the offense. The answer to both questions here is “yes.” Therefore, the trial court did not err
by assessing five points for OV 2.

        “If a mistaken score affects the defendant’s recommended minimum sentence range, [this
Court] should remand for resentencing.” People v Portellos, 298 Mich App 431, 452; 827
NW2d 725 (2012). If OV 10 is scored at zero points, in this case, then defendant’s total OV
score is 50 points. This keeps him on the same sentencing cell. MCL 777.64. Resentencing is
thus not required.

        Defendant claims that counsel was ineffective for failing to object to the scoring of OV’s
2 and 10. “To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1)
that his attorney’s performance was objectively unreasonable in light of prevailing professional
norms; and (2) that he was prejudiced by the deficient performance.” People v Walker, 497
Mich 894, 895; 855 NW2d 744 (2014). In order 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.” People v Carbin, 463 Mich 590, 599-600; 623 NW2d
884 (2001).

       As discussed above, the court did not err in assessing five points under OV 2. “A trial
attorney need not register a meritless objection to act effectively.” People v Hawkins, 245 Mich
App 439, 457; 628 NW2d 105 (2001). While defense counsel erred by failing to object to the
incorrect scoring of OV 10, the corresponding reduction in defendant’s total OV score would not
have changed his minimum sentencing range under the guidelines. Therefore, defendant cannot


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show that but for defense counsel’s error the result of his sentencing would have been different.
Carbin, 463 Mich at 599-600.

        Finally, defendant contends that the trial court engaged in judicial fact-finding to assess
points for OV’s 2, 3, 4 and 10, which increased the permissible floor of his sentence in violation
of Alleyne v United States, 133 S Ct 2151; 186 L Ed 2d 314 (2013). We review unpreserved
issues for plain error affecting substantial rights. Carines, 460 Mich at 764-765. Reversal is
only warranted when the plain error caused an innocent defendant to be convicted, or when the
error “seriously affected the fairness, integrity, or public reputation of judicial proceedings[.]”
People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004) (internal quotation marks and
citation omitted).

        In People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), the Michigan Supreme
Court held that Michigan’s sentencing guidelines violated a defendant’s right to a jury trial “to
the extent that OVs scored on the basis of facts not admitted by the defendant or necessarily
found by the jury verdict increase the floor of the guidelines range, i.e., the defendant’s
‘mandatory minimum’ sentence[.]” Id. at 373-374. The Court remedied the constitutional
infirmity by making the sentencing guidelines advisory only and striking the statutory
requirement that a sentencing court must give a substantial and compelling reason for departing
from the guidelines range. Id. at 364-365.

        As for defendants previously sentenced under the unconstitutional scheme, in cases
where the facts admitted by the defendant or found by the jury “were sufficient to assess the
minimum number of OV points necessary for the defendant’s score to fall in the cell of the
sentencing grid under which he or she was sentenced . . . the defendant suffered no prejudice . . .
and no further inquiry is required.” Id. at 394-395. In cases “where the facts admitted by the
defendant or found by the jury were insufficient to assess the minimum number of OV points
necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she
was sentenced . . . an unconstitutional constraint actually impaired the defendant’s Sixth
Amendment right.” Id. at 395 (emphasis in original). In those cases, if the defendant’s sentence
was not subject to an upward departure, “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.” Id. at 397. “If the trial court determines that the answer to that question is
yes, the court shall order resentencing.” Id.

        In this case, defendant’s sentence was not subject to an upward departure. Thus, if the
facts admitted by him or found by the jury were insufficient to assess 50 OV points, then he is
entitled to a remand. Lockridge, 498 Mich at 395, 397; MCL 777.64. As previously indicated,
defendant was assessed five points under OV 2 for possessing a knife during the offense.
Defendant admitted that the knife found in the vehicle was his. Therefore, facts admitted by
defendant were sufficient to assess five points for OV 2.

        Defendant was assessed 10 points for OV 3, which addresses physical injury to a victim.
Under this variable, 10 points may be assessed if “bodily injury requiring medical treatment
occurred to a victim.” While Marshalek testified that she received treatment at the hospital for
her injuries, the jury did not have to find that fact to convict defendant of any charge. And


                                                -7-
defendant was not questioned about Marshalek’s treatment. For those reasons, the 10 points
assessed for OV 3 derived from judicial fact-finding.

        Similarly, it is clear that the 10 points assessed under OV 4, were scored on facts not
found by the jury or admitted by defendant. OV 4 provides for an assessment of 10 points when
“[s]erious psychological injury requiring professional treatment occurred to a victim.” MCL
777.34(1)(a). Not one of the charges the jury convicted defendant of required it to make such a
finding. Nor was defendant questioned about Marshalek’s psychological state. Finally, as
discussed above, the trial court mistakenly scored OV 10 at 10 points.

        Subtracting the 30 points assessed on the basis of judicial fact-finding from defendant’s
OV score results in a total OV score of 30 points, which results in a reduction of his minimum
sentence range from 58 to 228 months to 43 to 172 months. MCL 777.64; MCL 777.21(3)(c).
Because the facts found by the jury and admitted by defendant were insufficient to assess the
minimum number of OV points necessary for defendant’s score to fall in the cell of the
sentencing grid under which he was sentenced, he is entitled to a remand to the trial court for
further inquiry. Lockridge, 498 Mich at 395, 397.

      We affirm defendant’s convictions but remand for resentencing in light of Lockridge.
We do not retain jurisdiction.



                                                           /s/ Deborah A. Servitto
                                                           /s/ Michael F. Gadola
                                                           /s/ Colleen A. O'Brien




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