Great weight of the evidence; People v. Lemmon; People v. Unger; People v. Lacalamita; People v. Musser; Sentencing; Scoring of OV 19; MCL 777.49(c); People v. Ericksen; Credibility; People v. Shipley; Judicial fact-finding; People v. Lockridge; Apprendi v. New Jersey; Alleyne v. United States

The court held that the jury’s verdict was not against the great weight of the evidence, and the trial court did not err in scoring OV 19, but did engage in judicial fact-finding in scoring the defendant’s OVs. He was convicted of first-degree murder and felony-firearm. However, the trial court granted his motion for a new trial on the ground that the jury’s verdict was against the great weight of the evidence. At his second trial, a jury convicted him of the lesser included offense of second-degree murder and felony-firearm. The trial court sentenced him to a prison term of 16-1/2 to 30 years for the murder conviction, and a consecutive 2-year term for the felony-firearm conviction. The trial court denied his motion for a new trial. On appeal, the court rejected his argument that the jury’s verdict was against the great weight of the evidence, finding the trial court “did not abuse its discretion in determining that the evidence did not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” It also rejected his claim that the trial court erred in scoring OV 19, noting that the trial court “assessed 10 points for OV 19 because there was evidence that defendant removed surveillance video equipment from the building” after the shooting, and although he contended that the testimony of a witness was not credible, the court noted it will defer to the trial court’s assessment of credibility. Finally, the court agreed with defendant that he was entitled to sentencing relief because judicial fact-finding at sentencing increased the sentencing guidelines range, noting “judicial fact-finding was necessary to the trial court’s assessment of” 15 points for OV 5, 10 points for OV 14, and 10 points for OV 19. “Moreover, the scoring of those variables placed defendant in OV Level III instead of OV Level II on the applicable sentencing grid for second-degree murder.” Affirmed but remanded for further sentencing proceedings in accordance with Lockridge.