                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 20, 2015
               Plaintiff-Appellee,

v                                                                  No. 321805
                                                                   Saginaw Circuit Court
DANIEL WILLARD WELLS,                                              LC No. 13-038170-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of conspiracy to commit arson, MCL
750.72, arson of a dwelling house, MCL 750.72, arson of an insured property, MCL 750.76, and
larceny by false pretenses, MCL 750.218(6)(a). The trial court sentenced defendant to serve
concurrent prison terms of 7 to 20 years for the arson and conspiracy convictions and 7 to 15
years for the larceny conviction. For the reasons provided below, we affirm defendant’s
convictions, but we remand for further proceedings related to defendant’s sentence.

       The main evidence against defendant was introduced through defendant’s son, Dennis
Wells, who testified that he intentionally burned defendant’s home at defendant’s request on
August 6, 2011, in exchange for a truck. Along with this damaging testimony, the trial court also
admitted evidence pursuant to MRE 404(b) of previous fires at buildings or of property owned
by defendant.

                                        I. PRIOR ACTS

       Defendant argues that the trial court erred in admitting evidence of four previous fires on
his properties that occurred between 2002 and 2008. The admissibility of bad acts evidence will
be reversed on appeal only when there has been a clear abuse of discretion. People v McGhee,
268 Mich App 600, 636; 709 NW2d 595(2005). A trial court abuses its discretion when it
chooses an outcome outside the range of reasonable and principled outcomes. People v Babcock,
469 Mich 247, 269; 666 NW2d 231 (2003).

       As a cornerstone of evidentiary law, relevant evidence is admissible and irrelevant
evidence is not admissible. MRE 402. However, MRE 404(b)(1) provides that



                                               -1-
       [e]vidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, opportunity,
       intent, preparation, scheme, plan, or system in doing an act, knowledge, identify,
       or absence of mistake or accident when the same is material, whether such other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case.

In other words, “[w]here the only relevance of the proposed evidence is to show the defendant’s
character or the defendant’s propensity to commit crime, the evidence must be excluded.”
People v Knox, 469 Mich 502, 510; 674 NW2d 366 (2004). Thus, for evidence that potentially
implicates MRE 404(b) to be admissible, the evidence must be offered for a proper purpose, id.
at 509, and a proper purpose is one other than establishing a defendant’s character to show his
propensity to commit the charged offense, People v Johnigan, 265 Mich App 463, 465; 696
NW2d 724 (2005).

        Defendant contends that evidence of the past fires was admitted solely to demonstrate his
character or propensity to set fires. We disagree. The purpose of the evidence was to
demonstrate a lack of accident with respect to the fire at issue by showing the history of fires of
defendant’s property, which is a proper purpose. See MRE 404(b)(1) (listing “absence of
mistake or accident” as a proper purpose to admit prior-act evidence). Our Supreme Court has
explained that in arson cases, evidence of past fires is admissible because the “series of similar
incidents—fires involving homes and vehicles owned or controlled by defendant—” objectively
suggests a lack of accident. People v Mardlin, 487 Mich 609, 619; 790 NW2d 607 (2010).
Michigan has long recognized this concept, which is known as the doctrine of chances and
provides that “rare or unusual events that occur frequently in relation to a single person are less
likely to have an innocent explanation and more likely to demonstrate the probability of an actus
reus.” People v Breidenbach, 489 Mich 1, 12; 798 NW2d 738 (2011). In fact, the doctrine of
chances is often relied on in arson cases to demonstrate that a fire was not accidental. See
Mardlin, 487 Mich at 618-619 (stating that “the doctrine is epitomized in arson cases in which
apparently accidental fires befall property linked to the defendant with uncommon frequency”).

        Defendant avers that Mardlin was inapplicable because he did not present a defense that
the fire was accidental. Instead, his defense was that he never instructed his son to set the fire.
However, regardless of defendant’s defense, the prosecutor had to prove beyond a reasonable
doubt that defendant was actively involved in intentionally setting the fire. MCL 750.72(1)
(arson statute providing that a person who willfully or maliciously burns is guilty); People v
Moore, 470 Mich 56, 67-68; 679 NW2d 41 (2004) (stating that to be convicted on an aiding and
abetting theory, the prosecution must prove, among other things, that the defendant intended the
commission of the crime). As a result, Mardlin and the doctrine of chances are applicable.

        Defendant also says that evidence of the past fires was not relevant because none of the
past fires involved a claim that defendant requested someone to set a fire for him. This argument
misses the mark and seems to be based on defendant’s view that the evidence was offered to
show that defendant acted in conformity with the prior incidents. In other words, defendant
seems to suggest that because, in his view, the evidence was offered to show that he had a
propensity for setting fires, it was not relevant or admissible because the circumstance here

                                                -2-
allegedly involved him directing someone else to set the fires, which was a circumstance that
was not present in the prior episodes. However, as explained above, the evidence was merely
offered to show that defendant had the requisite intent, which was a necessary element for the
prosecutor to prove. Furthermore, when past acts are used to prove present intent, “the past
events need only be of the same general category as the charged offense.” Mardlin, 487 Mich at
622-623.

        Though relevant, MRE 404(b) evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. MRE 403; Knox, 469 Mich at 509.
Only unfairly prejudicial evidence is covered by this aspect of MRE 403. People v Mills, 450
Mich 61, 75; 537 NW2d 909 (1995). “‘Evidence is unfairly prejudicial when there exists a
danger that marginally probative evidence will be given undue or preemptive weight by the
jury.’” People v Ortiz, 249 Mich App 297, 306; 642 NW2d 417 (2001), quoting People v
Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998). Here, defendant suggests that evidence
of the past fires was prejudicial because it could only be used to infer his propensity to burn his
property. However, as already discussed, the evidence had significant value regarding
defendant’s intent to have his home burned. While this may have been prejudicial to defendant
with respect to establishing his intent, such prejudice would not have been unfair or improper.
Accordingly, the trial court did not clearly abuse its discretion in allowing evidence of
defendant’s past fires.

       Similarly, defendant maintains that the jury was improperly instructed regarding the
evidence of his past fires. The trial court instructed the jury as follows:

               The prosecution has introduced evidence of other fires at the defendant’s
       properties in 2002, 2003, and 2008. I will now explain how you are to consider
       evidence of those fires. As the number of incidents of an out of the ordinary
       event increases in relation to a particular defendant, the probability increases that
       the charged act or the prior occurrences were not the result of natural causes.

              If a type of event linked to the defendant occurs with unusual frequency,
       evidence of the occurrences may indicate his criminal intent or the absence of
       accident because it is improbable that such events occur so often in relation to the
       same person due to mere happenstance.

       A criminal defendant has the right to have a properly-instructed jury consider the
evidence against him. Mills, 450 Mich at 80. The trial court is required to instruct the jury with
the law applicable to the case and fully and fairly present the case to the jury in an
understandable manner. Id.

        Defendant argues that this instruction unfairly presented the case to the jury because he
never offered an accident defense and because the instruction included the words “criminal
intent.” However, as discussed above, defendant’s defense at trial is not controlling, and the
instruction fairly conveys the doctrine of chances and is proper. Furthermore, we discern no
error in the trial court’s use of the phrase “criminal intent.” Whether the court stated “criminal
intent” or “intent to commit arson” is of no consequence. What is important is that the court was
explaining to the jury that the fires could only be considered for that specific purpose, which was

                                                -3-
proper. See MRE 1051; People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888
(2000). As a result, the trial court’s instructions were consistent with the applicable law, and
defendant’s claim of instructional error fails.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also contends that his trial counsel provided ineffective assistance because he
failed to call witnesses requested by defendant, failed to adequately cross-examine Dennis and
his wife, Laci Wells, and gave erroneous advice about being out on bond prior to sentencing,
which caused defendant economic loss. Because no evidentiary hearing was held, our review is
limited to mistakes apparent from the record. People v Riley (After Remand), 468 Mich 135,
139; 659 NW2d 611 (2003). “Whether a person has been denied effective assistance of counsel
is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). “Findings on questions of fact are reviewed for clear error, while rulings on
questions of constitutional law are reviewed de novo.” People v Jordan, 275 Mich App 659,
667; 739 NW2d 706 (2007).

        In order to establish a claim of ineffective assistance of counsel, a defendant must show
(1) that counsel’s performance fell below an objective standard of reasonableness and (2) that
counsel’s deficient performance prejudiced the defense. People v Lopez, 305 Mich App 686,
694; 854 NW2d 205 (2014). For the second part of this test, counsel’s performance will be
deemed to have prejudiced defendant if it is reasonably probable that, but for counsel’s error, the
result of the proceeding would have been different. Jordan, 275 Mich App at 667. The effective
assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.
People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001).

                             A. FAILURE TO CALL WITNESSES

        Here, defendant argues that the performance of his trial counsel was deficient because
counsel failed to call several witnesses identified in his affidavit who allegedly could have
commented on the credibility of Dennis. However, because our review is limited to the lower
court record, defendant’s affidavit on appeal is not to be considered. See Riley, 468 Mich at 139.
There is nothing in the record to indicate what these witnesses would have stated if called to
testify at trial.2 Accordingly, defendant has failed to establish the necessary factual predicate to
support his claim of ineffective assistance of counsel. See People v Hoag, 460 Mich 1, 6; 594
NW2d 57 (1999). Furthermore, decisions regarding what evidence to present and whether to call
or question witnesses are presumed to be matters of trial strategy that this Court will not second-
guess with the benefit of hindsight. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308


1
 “When evidence which is admissible as to one party or for one purpose but not admissible as to
another party or for another purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.” MRE 105.
2
  We note that even if we were to consider defendant’s affidavit, it also fails to provide the
substance of what these witnesses would have stated at trial.


                                                -4-
(2004). Therefore, defendant has not overcome the presumption that it was sound trial strategy
to not call these witnesses.

                    B. FAILURE TO FULLY CROSS-EXAMINE/IMPEACH

       Defendant also says that counsel’s performance was deficient because he did not
adequately cross-examine Dennis and his wife, Laci. We first will address counsel’s
performance with respect to Laci.

         Defendant notes three instances where the testimony of Laci differed between the
preliminary examination and trial. Defendant claims that at the preliminary examination, Laci
testified that she learned of the arson plan only after the fire was set, but she testified at trial that
she learned of the plan on the way to defendant’s house. However, a careful review of the
testimony shows that there was no discrepancy. At the preliminary examination, Laci explained
that, while Dennis only told her the existence of a “plan” after the fire was set, she knew of the
plan on the way to defendant’s house because she overheard Dennis and defendant’s
conversation. Thus, any discrepancy is illusory and would have had no effect on any attempt to
impeach.

        Further, defendant claims that Laci testified differently regarding the impact her illness
has on her memory. At the preliminary examination, Laci stated, “With my illness I have a lot of
memory issues.” And at trial, she stated that her illness affected “[s]ome of my like way back
memory—I mean, there’s some little things, but I—I can remember most things.” But any
difference between the two testimonies is inconsequential; the testimony at trial simply
elaborated on her prior testimony without contradicting it. Accordingly, it was not unreasonable
for defense counsel to not attempt to impeach on this basis.

        And defendant avers that Laci never stated at the preliminary examination that defendant
made any death threats to her, while at trial she stated that defendant did make such threats. The
claim is unsupported by the record. At the preliminary examination, Laci testified that defendant
began making threats “a couple months” after the fire happened. Thus, defendant’s claim is not
supported by the record.

        Therefore, because Laci’s preliminary examination testimony was not inconsistent with
her testimony at trial, defense counsel was not ineffective by failing to impeach on the basis of
the alleged inconsistencies.

         We next address the three alleged discrepancies in Dennis’s testimony. Regarding the
first discrepancy, when Dennis was asked at the preliminary examination if defendant mentioned
why he wanted the fire set, Dennis responded, “No.” Dennis later repeated that he was not sure
why defendant wanted the fire set when the trial court asked him the same question. But at trial,
when Dennis was asked if defendant provided a reason for wanting the fire set, he responded,
“Financial situation,” and believed it was related to “the mortgage.”

       As to the second discrepancy, defendant notes that Dennis testified at the preliminary
examination that, while he spoke with defendant the morning of the fire, he did not recall the
substance of that conversation. But at trial, Dennis testified that on the morning of the fire,


                                                  -5-
defendant called him to let him know that because defendant would be in Jackson, it would be a
“good day” to go ahead with the fire.

         The third discrepancy relates to how Dennis set the fire. At the preliminary examination,
he testified that he set fire to a single t-shirt and placed it on a countertop, which had some other
items on it. When asked specifically if those other items were clothes, he stated that he could not
recall, but at trial, Dennis testified that he placed the lit t-shirt on a pile of clothes.

        While the failure to cross-examine Dennis on these matters presents a much closer
question, we find that defendant has failed to overcome the strong presumption that counsel’s
performance was constitutionally adequate. Counsel’s failure to properly impeach a witness may
constitute ineffective assistance of counsel. See People v Trakhtenberg, 493 Mich 38, 57-58;
826 NW2d 136 (2012). However, counsel need not impeach a witness “on all contradictory
aspects of his preliminary examination and trial testimony.” People v McFadden, 159 Mich App
796, 800; 407 NW2d 78 (1987).

        Here, counsel impeached Dennis’s trial testimony through other avenues. In questioning
Dennis, defense counsel initially focused on the fact that Dennis admitted to paying money for
the truck he received from defendant. The fact that Dennis paid money for the truck acts to cast
doubt on his contention that the plan all along was for him to receive the truck in exchange for
setting the fire. Defense counsel also attempted to show that Dennis testified the way he did for
personal reasons. Counsel had Dennis elaborate on his direct examination testimony that
defendant abused and victimized Dennis when Dennis was a child. This evidence could suggest
why Dennis might harbor resentment and thus be biased against his father and would provide a
motive for Dennis to fabricate his testimony. Additionally, counsel stressed the extremely
favorable plea bargain Dennis received as a result of testifying against defendant. Dennis
admitted that he would face no more than 12 months in a county jail and, as far as the
incarceration was concerned, it potentially could be served on an electronic tether, “like house
arrest.” As a result, while impeaching Dennis on the various discrepancies may have been
helpful, the failure to do so did not mean that counsel’s performance fell below an objective level
of reasonableness. See People v Pickens, 446 Mich 298, 359; 521 NW2d 797 (1994) (stating
that effective assistance is the test, not “perfect representation”). We conclude that counsel’s
decision to focus on other ways to impeach Dennis’s testimony falls under the ambit of
presumptively sound trial strategy, and defendant has not established that the strategy was
constitutionally deficient. See People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012); In re
Ayres, 239 Mich App 8, 23; 608 NW2d 132 (1999); People v Rockey, 237 Mich App 74, 76; 601
NW2d 887 (1999).

                                     C. ADVICE ON BOND

        Defendant also argues that the performance of his trial counsel was deficient because he
suffered financial loss based on advice from counsel that he would be continued on bond prior to
his sentencing hearing. However, there are no facts on the record to review regarding this issue
and, regardless, such advice would not have pertained to the events of the trial.

                                        III. SENTENCING


                                                -6-
        Defendant also argues that the trial court erred in scoring offense variable (OV) 9 at 25
points. Because defendant never raised this argument at sentencing, we review the issue for
plain error affecting defendant’s substantial rights. See People v Kimble, 470 Mich 305, 312;
684 NW2d 669 (2004).

       MCL 777.39(1)(b) provides that 25 points is appropriately scored for OV 9 when “[t]here
were 10 or more victims who were placed in danger of physical injury or death, or 20 or more
victims who were placed in danger of property loss.” The statute further instructs the sentencing
court to “count each person who was placed in danger of physical injury or loss of life or
property as a victim.” MCL 777.39(2)(a).

        Defendant argues that only defendant and an insurance company suffered property loss
and that there was no testimony that any person was in danger of death. However, there was
testimony that more than 12 firefighters from four fire departments took 45 minutes to extinguish
the significant fire at defendant’s home. Defendant claims that no firefighters were injured and
there was no testimony that they were in danger. However, it is established that first responders,
like the firefighters here, can be considered to be victims who were placed in danger for the
purposes of the statute. People v Fawaz, 299 Mich App 55, 63; 829 NW2d 259 (2012). Under
the statute, such a victim need not actually be injured—being placed in danger of physical injury
is sufficient. See id. Thus, with 12 firefighters battling the fire in the present case, even if none
was injured, defendant has failed to establish any plain error.

        Defendant further asserts that the trial court violated his Sixth Amendment rights under
the United States Constitution when it based defendant’s minimum sentence on facts not proven
to the jury beyond a reasonable doubt. However, defendant did not raise this issue at the trial
court. Therefore, this unpreserved issue also is reviewed for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).

         Our Supreme Court’s recent decision in People v Lockridge, ___ Mich ___; ___ NW2d
___ (Docket No. 149073, decided July 29, 2015), is dispositive on this issue. In Lockridge, the
Supreme Court held that when a judge makes findings of fact “beyond facts admitted by the
defendant or found by the jury” in a sentencing proceeding that increases a defendant’s minimum
sentence, this runs afoul of a defendant’s right to a jury trial. Id. at ___ (slip op at 1). As a
result, in order to avoid any Sixth Amendment violations, the Court further held that Michigan’s
sentencing guidelines scheme is to be deemed advisory, not mandatory. Id. at ___ (slip op at
28). But sentencing judges must nonetheless consult the guidelines and “‘take them into account
when sentencing.’” Id. at___ (slip op at 28), quoting United States v Booker, 543 US 220, 264;
125 S Ct 738; 160 L Ed 2d 621 (2005).

        Here, the court scored OV 9 at 25 points, OV 14 at 10 points, and OV 19 at 15 points for
a total OV score of 60, which placed defendant in OV level V in the sentencing grid. See MCL
777.63.

       As already discussed, OV 9 was scored at 25 points based on the number of “victims,”
which here was deemed to be the first responder firefighters that were called to defendant’s
burning house. OV 14 was scored at 10 points based on defendant’s status as the “leader in a
multiple offender situation.” MCL 777.44(1)(a). And OV 19 was scored at 15 points based on

                                                -7-
the fact that defendant “used force or the threat of force against another person . . . to interfere
with, attempt to interfere with, or that results in the interference with the administration of
justice . . . .” MCL 777.49(b).

        It is clear that the facts supporting the scoring of OV 9 and OV 19 were not “admitted by
the defendant or necessarily found by the jury verdict.” Lockridge, ___ Mich at ___ (slip op at
11). In regard to OV 9, the jury’s verdict did not address, directly or indirectly, the number of
firefighters who responded to the scene, and defendant never admitted to how many firefighters
participated in fighting the fire at his home. And likewise for OV 19, even though there was
testimony supporting the scoring of 15 points, defendant did not admit that he threatened any
witnesses, and the jury’s verdict does not require finding that defendant threatened any
witnesses. Therefore, because the facts supporting the scoring of OV 9 and OV 19 were not
admitted by defendant or found by the jury and because the facts found by the jury verdict were
insufficient to assess the minimum number of OV points necessary for defendant’s OV level of
V,3 defendant has established a “threshold showing of the potential for plain error.” Id. at __
(slip op at 32-33).

        The remedy, as outlined by our Supreme Court, is to remand for the trial court to conduct
a Crosby4 hearing, where the trial court is first to determine whether defendant wishes to be
resentenced, with the understanding that the sentencing guidelines now are advisory. Id. at ___
(slip op at 35). If the answer is “yes,” then the court shall determine whether it would have
imposed a materially different sentence but for the unconstitutional constraint. Id. at ___ (slip op
at 35). But in doing so, “the court should only consider the circumstances existing at the time of
the original sentence.” Id. at ___ (slip op at 35-36).




3
  A minimum of 50 points is required for defendant’s Level V. See MCL 777.62. Thus, by not
considering the impact of OV 9 and OV 19, only 10 points remain in defendant’s total OV score
from OV 14. In other words, the jury verdict only supports a total OV level of II.
        With respect to OV 14, we acknowledge that it is a much closer call whether the jury
verdict supported that scoring. With the sole evidence of defendant’s participation being him
instructing his son to set the fire, the jury’s guilty verdict necessarily means that the jury found
that defendant did indeed instruct Dennis to set the fire, which arguably would make him a
“leader in a multiple offender situation.” We note that even if the jury’s verdict did not support
the scoring under this OV, remand is necessary regardless based on the judicial fact-finding that
occurred with OV 9 and OV 19.
4
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                -8-
       We affirm defendant’s convictions but remand for proceedings consistent with this
opinion. We do not retain jurisdiction.



                                                      /s/ Mark T. Boonstra
                                                      /s/ Henry William Saad
                                                      /s/ Joel P. Hoekstra




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