Motion for JNOV/new trial; People v. Miller; Craig ex rel Craig v. Oakwood Hosp.; Sufficiency of the evidence; People v. Harverson; Felon in possession (FIP); MCL 750.224f; People v. Bass; Felony-firearm; MCL 750.227b(1); People v. Johnson; Carrying a concealed weapon (CCW); MCL 750.227; People v. Hernandez-Garcia; People v. Nimeth; Intent; People v. Brown; Instructional error claim; People v. Schaefer; People v. Gonzalez; Plain error review; People v. Carines; Waiver; People v. Carter; Credibility determinations; People v. Kanaan; People v. Garcia; Sentencing; Assessing points for OVs 1, 3, & 12 on the basis of a finding defendant was guilty of crimes for which the jury acquitted him; People v. Beck

Holding that there was sufficient evidence to support defendant’s FIP, CCW, and felony-firearm convictions, the court found that the trial court did not err in denying his motion for JNOV/new trial. It also rejected his claim that his motion should have been granted on the basis of instructional error. However, the trial court erred under Beck in sentencing him when it assessed points for OVs 1, 3, and 12 on the basis of finding by a preponderance of the evidence that he committed crimes for which the jury acquitted him. Thus, while the court affirmed his FIP, CCW, and felony-firearm convictions, it reversed as to his sentences and remanded for resentencing. He asserted “that the jury acquitted him of most of the charges because there was clearly insufficient evidence that he committed an armed robbery upon” the complainant (K) or assaulted him. He argued that there was also insufficient evidence to convict him of FIP, CCW, and felony-firearm because they “were attendant to the acquitted charges and the trial court erred in denying his motion for JNOV/new trial.” The court disagreed. It was stipulated at trial that he had a prior felony, and it was undisputed that he could not legally possess a gun. K “testified that defendant got into [K’s] vehicle” to engage in a drug deal, and then pulled out a gun and shot K. He “positively identified defendant as the shooter, within days of the incident, from a photographic lineup.” The court held that this was sufficient evidence for the jury to find that defendant possessed a gun. As to CCW, there was no evidence that he “was licensed to carry a concealed weapon and, in fact, defendant was not authorized to carry a weapon due to his status as a felon. [K] testified that defendant came out to his vehicle carrying a cell phone. When defendant got into [K’s] car, he pulled out a gun, which had not previously been visible to [K], and shot [K]. Thus, the evidence was sufficient to find” him guilty of CCW. The court next found that he waived his instructional error claim, which also failed on the merits. But it agreed with him that “the trial court could not engage in fact-finding to essentially find that” the offenses for which the jury acquitted him were proven beyond a reasonable doubt and then score “points on OVs 1, 3, and 12 consistent with a finding of guilt.” Due to the incorrect scoring, his guidelines had to be rescored and a different range would result.