                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 21, 2016
               Plaintiff-Appellee,

v                                                                   No. 323557
                                                                    Genesee Circuit Court
JAMES KENNETH SEELEY,                                               LC No. 14-034659-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and HOEKSTRA and SERVITTO, JJ.

PER CURIAM.

       Following a jury trial, defendant appeals as of right his convictions of assault with intent
to do great bodily harm less than murder, MCL 750.84, felon in possession of a firearm, MCL
750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b.1 Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to 8 to
25 years’ imprisonment for the assault with intent to do great bodily harm less than murder
conviction, 4 to 15 years’ imprisonment for the felon in possession of a firearm conviction, and
two years’ imprisonment for the felony-firearm conviction. Because the evidence was sufficient
to support defendant’s convictions and defendant is not entitled to resentencing, we affirm.

        According to the evidence introduced at trial, at approximately 7:00 p.m. on September
29, 2013, the victim, Gavaughny Mims, and his friend, Tylor Simpson, both of whom were
fourteen years old, were walking down Arizona Avenue in Flint, Michigan. As they walked,
they saw two individuals on the front porch of 1514 Arizona. Mims and Simpson later identified
defendant as one of the individuals on the porch, and the other individual was Victor Shaw, the
14-year-old son of defendant’s girlfriend. As Mims and Simpson continued to walk, defendant’s
girlfriend came out of the house onto the porch. Defendant’s girlfriend began to stare at the boys
and, in response, Mims yelled at her, “what are you lookin’ at, bitch?”




1
  Defendant was charged with two counts of assault with intent to commit murder, MCL 750.83.
Defendant was found not guilty of these counts, but was convicted of one count of the lesser
included offense of assault with intent to do great bodily harm less than murder.


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       Following Mims’s remark, the boys continued to walk, at which time Mims saw
defendant raise his arm out straight in front of him. Mims then saw a flash, heard a loud bang,
and immediately felt his leg lock up. After he was shot, Mims attempted to run with Simpson
away from the home. Simpson then called 911. At trial, neighbors confirmed that defendant
lived at 1514 Arizona, and one neighbor in particular, Judith Howe, testified that she saw
defendant on the porch at 1514 Arizona on the day in question after she heard gunfire.

        Later that day, police arrested defendant at 1527 Arizona, down the street from where the
shooting occurred. A search warrant was executed at 1514 Arizona. Inside of the home, officers
recovered a shotgun, rifle, and a pistol. In addition, the officers discovered a box of .22 caliber
bullets, the same caliber as the bullet found lodged near Mims’s hip after he had been shot. The
police later conducted tests of the firearms to see if they matched the bullet found in Mims, but
the results of the tests were inconclusive.

        At trial, Shaw testified for the defense. He claimed that defendant did not live at 1514
and that, on the day in question, defendant was not on the porch. Shaw heard gunfire, but he
claimed that no one on the porch fired a gun at Mims or Simpson. A jury convicted defendant of
assault with intent to do great bodily harm less than murder, felon in possession of a firearm, and
felony-firearm. The trial court sentenced defendant as noted above. Defendant now appeals as
of right.

        On appeal, defendant first argues that there was insufficient evidence to support his
convictions. Specifically, defendant maintains that the prosecutor failed to establish defendant’s
identity as the shooter beyond a reasonable doubt and that the prosecutor failed to show that
defendant intended to cause great bodily harm. Therefore, he argues, all three of his convictions
should be vacated.

        We review de novo a challenge to the sufficiency of the evidence. People v Cline, 276
Mich App 634, 642; 741 NW2d 563 (2007). This Court reviews the evidence in a light most
favorable to the prosecution to determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. Id. “[T]he elements of
an offense may be established on the basis of circumstantial evidence and reasonable inferences
from the evidence.” People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013). All
conflicts in the evidence must be resolved in favor of the prosecution, and we “will not interfere
with the trier of fact's role of determining the weight of the evidence or the credibility of
witnesses.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

        The elements of assault with intent to do great bodily harm less than murder are as
follows: “(1) an attempt or threat with force or violence to do corporal harm to another (an
assault), and (2) an intent to do great bodily harm less than murder.” People v Brown, 267 Mich
App 141, 147; 703 NW2d 230 (2005) (citation omitted). “The elements of felony-firearm are
that the defendant possessed a firearm during the commission of, or the attempt to commit, a
felony.” People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). Finally, the elements
of felon in possession of a firearm are (1) that the defendant possessed, used, transported, sold,
purchase, carried, shipped, received, or distributed a firearm in this state, (2) that the defendant
was convicted of a felony or a specified felony, and (3) that the defendant had not regained


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eligibility to possess a firearm. See MCL 750.224f; People v Perkins, 473 Mich 626, 630-631;
703 NW2d 448 (2005).

         In addition, “it is well settled that identity is an element of every offense.” People v Yost,
278 Mich App 341, 356; 749 NW2d 753 (2008). “[P]ositive identification by witnesses may be
sufficient to support a conviction of a crime.” People v Davis, 241 Mich App 697, 700; 617
NW2d 381 (2000). Further, “[t]he credibility of identification testimony is a question for the
trier of fact that we do not resolve anew.” Id.

        Considering the trial court record, there was clearly sufficient evidence to establish
defendant’s identity as the perpetrator of the crimes at issue. Mims and Simpson identified
defendant as one of the individuals on the porch. Mims testified that he observed defendant raise
his arm, and that he then saw a flash, heard a loud bang and felt his leg lock up. Medical
testimony confirmed that Mims had been shot with a .22 caliber bullet. When police later
executed a search warrant at 1514 Arizona, they discovered a large quantity of .22 caliber bullets
and weapons that were capable of firing them. Testimony from neighbors confirmed that
defendant resided at the house, and that he was on the porch on the day in question, close in time
to when the shooting occurred. This evidence, combined with Mims’s identification testimony,
was sufficient to prove beyond a reasonable doubt that Mims was assaulted and that defendant
was the individual who assaulted Mims. This same evidence also establishes, for purposes of
felony-firearm and felon in possession of a firearm, defendant’s identity as the individual who
possessed, and in fact used, a firearm.2 Overall, contrary to defendant’s argument, the prosecutor
presented sufficient evidence to allow a reasonable trier of fact to determine defendant’s identity
as the perpetrator of the crimes at issue.

        With regard to defendant’s intent, assault with intent to do great bodily harm less than
murder is a specific intent crime that requires “an intent to do serious injury of an aggravated
nature.” Brown, 267 Mich App at 147 (citation omitted). “An actor’s intent may be inferred
from all of the facts and circumstances, and because of the difficulty of proving an actor's state of
mind, minimal circumstantial evidence is sufficient.” People v Gonzalez, 256 Mich App 212,
226; 663 NW2d 499 (2003) (citations and quotations omitted). In particular, defendant's intent
to do great bodily harm may be inferred from all the facts in evidence, including the type of
weapon used. People v Henderson, 306 Mich App 1, 11; 854 NW2d 234 (2014). Moreover,
although actual injury to the victim is not an element of the offense, “injuries suffered by the
victim may also be indicative of a defendant’s intent.” People v Stevens, 306 Mich App 620,
629; 858 NW2d 98 (2014).

       It follows from these principles that, in this case, there was sufficient evidence to prove
that defendant intended to do great bodily harm to Mims. As stated above, the evidence
introduced at trial established that defendant was the individual who shot Mims. The very act of


2
  With regard to the elements felon-in-possession, defendant does not dispute that he had
previously been convicted of a felony and was ineligible to possess a firearm at the time the
present offenses were committed. And, for purposes of felony-firearm, it is clear from the
evidence that defendant possessed the firearm during the commission of a felony.


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aiming and firing a gun at an individual is strong circumstantial evidence of defendant’s intent to
cause great bodily harm. Cf. Brown, 267 Mich App at 152. Moreover, defendant in fact
succeeded in shooting Mims and causing him injury. Given evidence that defendant used a
potentially lethal weapon to actually shoot Mims, the jury could reasonably infer that defendant
intended to do serious injury of an aggravated nature. See Stevens, 306 Mich App at 629.

        In sum, viewing the evidence in a light most favorable to the prosecution, the evidence
was sufficient to establish beyond a reasonable doubt defendant’s identity as the perpetrator of
the crimes and to establish that defendant possessed the requisite intent for assault with intent to
do great bodily harm. Defendant’s claims of insufficient evidence are without merit and we
therefore affirm defendant’s convictions.

         Defendant next argues that OVs 4, 9, and 19 were incorrectly scored by the trial court,
and that, because the scoring altered the sentencing guidelines range, defendant is entitled to
resentencing. Specifically, defendant contends that OV 4 should have been scored at zero points
because Mims did not suffer serious psychological injury requiring professional treatment, that
OV 9 should have been scored at zero points because Simpson was not in danger, and that OV
19 should have been scored at zero points because defendant’s refusal to come to the door of
1527 Arizona when called by police did not constitute interference with the administration of
justice.

        At sentencing, defendant objected to the scoring OV 9 and OV 19, thus preserving those
issues for appeal. See People v Gibbs, 299 Mich App 473, 491; 830 NW2d 821 (2013).
However, defendant did not raise an objection in regard to the scoring of OV 4. Therefore, that
issue is unpreserved and reviewed for plain error. People v Odom, 276 Mich App 407, 411; 740
NW2d 557 (2007).

        “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013); People v Steanhouse, __ Mich App __, __; __ NW2d __
(2015), slip op at 19. However, whether the facts as found by the court are sufficient to justify
the scoring conditions prescribed by statute is a legal question to be reviewed de novo. Hardy,
494 Mich at 438. To the extent defendant’s arguments are unpreserved, this Court reviews
unpreserved issues for plain error affecting a defendant’s substantial rights. People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999).

        MCL 777.34 directs the trial court to assess 10 points under OV 4 where “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).
The statute specifies that 10 points should be scored “if the serious psychological injury may
require professional treatment.” MCL 777.34(2)(emphasis added). Under the statute, “the fact
that treatment has not been sought is not conclusive,” MCL 777.34(2); but it may be considered
when scoring OV 4. See, e.g., People v Bosca, 310 Mich App 1, __; __ NW2d __ (2015), slip op
at 24. Moreover, in considering what constitutes serious psychological injury, this Court has
recognized that 10 points may be scored under OV 4 “if the victim suffers, among other possible
psychological effects, personality changes, anger, fright, or feelings of being hurt, unsafe, or
violated.” People v Armstrong, 305 Mich App 230, 247; 851 NW2d 856 (2014).


                                                -4-
        In this case, according to the presentence investigation report (PSIR), Mims’s mother
reported that, after the shooting Mims “was scared to go anywhere.” The PSIR also indicates
that Mims personally stated that he would “be starting counseling,” and that OV 4 was scored 10
points because the victim “will be talking to his therapist about the within offense.” On this
record, the trial court did not clearly err by scoring OV 4 at 10 points, and defendant has not
shown plain error.

        MCL 777.39 states that the trial court must score OV 9 at 10 points where “[t]here were 2
to 9 victims who were placed in danger of physical injury or death[.]” MCL 777.39(1)(c).
Defendant argues that because he was acquitted of the murder and assault charges in regard to
Simpson, and because only one shot was fired, only Mims was placed in danger of physical
injury or death. While defendant is correct that only Mims was actually struck by a bullet, OV 9
is to be assessed at 10 points if at least two victims were “placed in danger.” MCL 777.39(1)(c).
See also People v Morson, 471 Mich 248, 262; 685 NW2d 203 (2004). Given that Mims and
Simpson were walking together, the act of firing the weapon at Mims still placed Simpson in a
great deal of danger. Indeed, Simpson testified that he “felt the breeze” from the bullet.
Therefore, a preponderance of the evidence supported the trial court’s scoring of OV 9 at 10
points.

        Finally, MCL 777.49 instructs trial courts to score OV 19 at 10 points where “[t]he
offender otherwise interfered with or attempted to interfere with the administration of justice.”
MCL 777.49(c). “Interfering or attempting to interfere with the administration of justice
includes acts that constitute obstruction of justice, but is not limited to such acts.” People v
Ericksen, 288 Mich App 192, 204; 793 NW2d 120 (2010). Moreover, a defendant may be
scored points under OV 19 where his conduct interferes with the duties of law enforcement
officers. See, e.g., People v Barbee, 470 Mich 283, 288; 681 NW2d 348 (2004).

        In this case, the trial court scored 10 points because, after the shooting, defendant went to
a house down the street at 1527 Arizona and, when police arrived at that location, he and others
present refused police requests to answer the door and come outside. Relying on Illinois v
Wardlow, 528 US 119, 124-125; 120 S Ct 673, 676; 145 L Ed 2d 570 (2000), defendant
maintains on appeal that this scoring was incorrect because an individual “has a right to ignore
the police and go about his business.” Defendant emphasizes that he did not actively flee from
the police and he asserts that, under these circumstances, his refusal to come outside did not
constitute interference with the administration of justice.

        On the facts of this case, the prosecutor concedes error in the scoring of OV 19, and we
agree. Nonetheless, accepting that the trial court erred by scoring this variable, defendant is
nonetheless not entitled to resentencing. With the scoring of OV 19 at 10 points, defendant was
assessed a total of 71 OV points, placing him at level V for the Class D offense of assault with
intent to do great bodily harm less than murder. See MCL 777.16d; MCL 777.65. However,
even if the trial court had scored OV 19 at zero, defendant’s 61 total OV points would still place
him in OV level V. MCL 777.65. Because the scoring of OV 19 did not alter the appropriate
guidelines range, resentencing is not required. People v Francisco, 474 Mich 82, 89 n 8; 711
NW2d 44 (2006).



                                                -5-
Affirmed.



                  /s/ Cynthia Diane Stephens
                  /s/ Joel P. Hoekstra
                  /s/ Deborah A. Servitto




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