Following a jury trial, defendant appeals as of right his convictions for felon in possession of a firearm (felon-in-possession), MCL 750.224f; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1). The trial court departed upward from the advisory minimum sentencing range and sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 10 to 25 years' imprisonment for the felon-in-possession conviction and to a consecutive term of 2 years' imprisonment for the felony-firearm conviction. Because the prosecutor presented sufficient evidence to support defendant's convictions and defendant is not entitled to resentencing, we affirm.
This case involves a shooting that occurred during a neighborhood feud between the "Church Street People" and the "Woodbury Street People," which resulted in the death of Orlando Walker. In particular, on July 6, 2014, defendant and several of the Church Street People attended a gathering at the home of Dena and Ervin Morrow. Several Woodbury Street People, including Walker, came to the Morrows' home uninvited. A physical fight ensued, and it continued until one of the Church Street People, Kenneth Langston, began shooting into the air. Once Langston began firing, other individuals also began shooting. The gunfire caused people to scatter, and Walker ran toward nearby Norway Street.
Langston went inside the Morrows' house with the gun. According to Langston's testimony, inside the home, defendant "snatched" the gun from Langston and ran out the back door toward Norway Street. Langston then heard the sound of multiple gunshots, coming from the direction of Norway Street. One of the other Church Street People, Donnell Davenport, saw defendant take the gun from Langston. Davenport described the gun as a silver and black .22 caliber handgun with a gold trigger. Davenport also testified that he saw defendant fire multiple gunshots in the direction of Norway Street and that he heard defendant say he was trying to kill Damian Swindle, who had fled in the direction of Norway Street. After the shooting, defendant gave Davenport the .22 caliber gun. Davenport then went to a house a few blocks away, and defendant arrived there soon after. According to Davenport, defendant was "panicking" and he kept saying "I hope I didn't kill him." Davenport returned the .22 caliber gun to defendant.
During the shooting, Walker was shot in the chest, and he died as a result of his injuries. Walker was shot with a .22. Another individual was shot in the leg, also with a .22. Police recovered multiple casings and cartridges at the scene related to various types of guns, including.22 caliber, .40 caliber, 9mm and .38 special. Police never recovered the gun that fired the fatal shots. However, the prosecution presented evidence that, on July 23, 2014 and August 4, 2014, defendant attempted to sell a .22 caliber handgun on Facebook, though the photograph defendant posted was a generic Google image and not a picture of the .22 with a gold trigger.
Defendant was charged with open murder, felon-in-possession, and two counts of felony-firearm. The jury found defendant not guilty of murder and the felony-firearm charge related to the murder charge. However, as noted, the jury convicted defendant of felon-in-possession and felony-firearm. The trial court departed upward from the sentencing guidelines and sentenced defendant as noted above. Defendant now appeals as of right.
Defendant first argues that there was insufficient evidence to convict him of felon-in-possession and felony-firearm because the prosecution failed to establish that defendant possessed a firearm. In particular, defendant attacks the credibility of Langston and Davenport; and, defendant contends that the evidence was insufficient because he "was never found in possession of a firearm on July 6, 2014," the date on the felony information. According to defendant, at most, the proofs showed that, on dates other than July 6th, defendant posted images of a gun on Facebook, which he contends is insufficient to establish his possession of a firearm.
We review de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288 Mich.App. 192, 195; 793 N.W.2d 120 (2010). "We examine the evidence in a light most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond reasonable doubt." Id. at 196. In applying this standard, we "draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Cameron, 291 Mich.App. 599, 613; 806 N.W.2d 371 (2011) (citation omitted.)
To establish the elements of felon-in-possession, the prosecution must prove that: (1) the defendant is a felon who possessed a firearm (2) before his right to do so was formally restored under MCL 28.424." People v Bass, 317 Mich.App. 241; 893 N.W.2d 140 (2016). To maintain a conviction for felony-firearm the prosecution must prove that: (1) the defendant possessed a firearm, (2) during the commission or attempted commission of a felony. People v Avant, 235 Mich.App. 499, 505; 597 N.W.2d 864 (1999). Felon-in-possession may constitute the underlying felony for felony-firearm. See People v Dillard, 246 Mich.App. 163, 168-170; 631 N.W.2d 755 (2001).
On appeal, the only disputed element is whether defendant possessed a firearm. "Possession of a firearm can be actual or constructive, joint or exclusive." People v Johnson, 293 Mich.App. 79, 83; 808 N.W.2d 815 (2011). Possession can be shown by circumstantial as well as direct evidence, including eyewitness testimony. See People v Hill, 433 Mich. 464, 469; 446 N.W.2d 140 (1989); People v Lopez, 305 Mich.App. 686, 696; 854 N.W.2d 205 (2014). Possession is a question of fact for the jury. People v Strickland, 293 Mich.App. 393, 400; 810 N.W.2d 660 (2011).
In this case, a rational jury could conclude beyond a reasonable doubt that defendant possessed a firearm on the date in question. Langston testified that defendant grabbed the gun out of his hands and ran out the back door. Davenport testified that he actually saw defendant take the gun from Langston and fire three to four shots toward Norway Street. While defendant challenges the credibility of their testimony, this was a question for the jury and we will not interfere with the jury's determinations of witness credibility. People v Stevens, 306 Mich.App. 620, 628; 858 N.W.2d 98 (2014). Instead, viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to establish defendant's possession of a firearm and to support defendant's conviction for felon-in-possession. Given that there was sufficient evidence to establish defendant's possession of a firearm and to support a felony conviction for felon-in-possession, it also follows that the prosecutor presented sufficient evidence to convict defendant of felony-firearm.
Defendant next argues that the trial court erred in scoring offense variable (OV) 1 at 25 points and in scoring OV 3 at 100 points. Defendant contends that these variables, which relate to aggravated use of a weapon and physical injury to a victim, are offense specific and thus they should not have been scored because the jury found defendant not guilty of murder and the felony-firearm charge related to murder. We disagree.
The scoring of OV 1 relates to the "aggravated use of a weapon," and it is properly scored at 25 points when "[a] firearm was discharged at or toward a human being or a victim was cut or stabbed with a knife or other cutting or stabbing weapon." MCL 777.31(1)(a). "OV 1 is an `offense-specific' variable," meaning that, in scoring OV 1, "the trial court was limited to considering the sentencing offense alone." People v Chelmicki, 305 Mich.App. 58, 72; 850 N.W.2d 612 (2014) (quotation marks and citation omitted). However, when "considering the sentencing offense," the trial court "may properly consider all of defendant's conduct during that offense." Id. (quotation marks and citation omitted).
In this case, the trial court assessed 25 points for OV 1, finding that "defendant did shoot at or toward the crowd." This finding was not clearly erroneous. Davenport testified that he actually saw defendant take the gun from Langston and fire three to four shots toward Norway Street, saying that he was trying to kill Swindle, and the evidence showed that there were multiple people on Norway Street at the time defendant fired those shots. Additionally, Langston testified that defendant grabbed the gun out of his hands and Langston then heard shots being fired from behind the house, in the direction of Norway Street. Davenport testified that the gun used by defendant was a .22, and two individuals were in fact shot by a .22 caliber gun. Based on this testimony, the trial court did not clearly err in finding by a preponderance of the evidence that defendant discharged a firearm toward a human being. Because this conduct occurred "during" defendant's sentencing offense of felon-in-possession, the trial court did not err by assessing 25 points for OV 1. See Chelmicki, 305 Mich App at 72.
The scoring of OV 3 involves "physical injury to a victim," and it is properly scored at 100 points when "[a] victim was killed," MCL 777.33(1)(a), provided that "death results from the commission of a crime and homicide is not the sentencing offense," MCL 777.33(2)(b). The relevant inquiry under OV 3 is whether the death "resulted" from defendant's criminal actions, i.e., whether defendant's criminal conduct is a "factual" or "but for" cause of death. People v Laidler, 491 Mich. 339, 345; 817 N.W.2d 517 (2012). OV 3 is an offense-specific variable, "meaning we can only take into consideration defendant's sentencing offense for purposes of scoring OV 3." People v Biddles, 316 Mich.App. 148, 165; ___ NW2d ___ (2016). However, as noted, the court "may properly consider all of defendant's conduct during that offense." Chelmicki, 305 Mich App at 72 (quotation marks and citation omitted). And, because a preponderance of the evidence standard applies to the scoring of the sentencing guidelines, facts may be scored at sentencing which were not proven beyond a reasonable doubt for purposes of conviction.
In this case, the prosecutor argued at sentencing that, applying a preponderance of the evidence standard, the trial court could score 100 points for OV 1 based on Walker's death; and the trial court followed this reasoning, scoring OV 3 at 100 points and stating: "The standard that I'm using, by a preponderance of the evidence, supports the scoring of a 100-points under OV 3. That's what I'm saying based on all the evidence." Given the evidence presented in this case, this finding was not clearly erroneous. As discussed, at least two witnesses testified that defendant took a gun from Langston and fired it in the direction of Norway Street, which was where Walker was running when he was fatally shot. Davenport also heard defendant say that he was trying to kill Swindle, who was also running toward Norway Street. Moreover, Davenport identified the gun in defendant's possession as a .22, and Walker was killed by a .22. These testimonies are the same evidence that supported the sentencing offense; and, therefore, it is appropriate to consider this evidence in determining whether the victim's death had a causal connection to the sentencing offense. See Biddles, 316 Mich App at 165. Considering this evidence, the trial court did not clearly err by concluding that it was established by a preponderance of the evidence that Walker's death resulted from defendant's crime of felon-in-possession. Laidler, 491 Mich at 345. Accordingly, the trial court's assessment of 100 points for OV 3 was proper.
Finally, defendant argues that the trial court failed to consult the sentencing guidelines, failed to adequately explain the reasonableness and proportionality of the departure sentence, and ultimately imposed a sentence that was unreasonable and disproportionate. We disagree.
When a trial court imposes a sentence that departs from the now-advisory sentencing guidelines range, the sentence imposed must be reasonable. People v Lockridge, 498 Mich. 358, 392; 870 N.W.2d 502 (2015). Reasonableness of a sentence is determined under the principle of proportionality standard set forth in Milbourn.
In this case, the sentencing guidelines provided an advisory sentencing range of 24 to 76 months' imprisonment.
Defendant argues on appeal that the trial court failed to explain the reasons for the departure sentence; and, analyzing the factors set forth in Milbourn, defendant contends that the trial court failed to impose a proportionate sentence because, (1) as to the seriousness of the offense, the jury found defendant not guilty of murder, and (2) defendant's criminal history was accounted for in the prior record variables, meaning that the trial court failed to identify facts not considered, or inadequately considered, by the guidelines. Contrary to defendant's arguments, we find that that the trial court did consider the proportionality factors set forth in Milbourn and the sentence imposed was not unreasonable.