Jury instruction on the lesser included offense of assault & battery (MCL 750.81) where defendant was charged with AWIM (MCL 750.83); Ineffective assistance of counsel; Failure to make a futile request or a meritless challenge; Sentencing; Scoring of OVs 4, 6, & 10; MCL 777.34(1)(a); MCL 777.36(1)(b) & (2)(a); MCL 777.40(1)(c); “Exploit” (MCL 777.40(3)(b)); “Vulnerability” (MCL 777.40(3)(c)); MCL 777.40(2); Prosecutorial misconduct; Motion for a mistrial; Opening statement; Distinguishing People v Dalessandro; Statement of fact not supported by the evidence; Whether the prosecution’s witness list was timely filed; MCL 767.40a(3)

Holding that a rational view of the evidence did not support a jury instruction on the lesser included offense of assault and battery, the court concluded defense counsel was not ineffective for failing to request one. It also rejected defendant-Bozile’s claims of ineffective assistance related to his sentencing and alleged prosecutorial misconduct. The court upheld the scoring of OVs 4, 6, and 10 at 10 points, 25 points, and 5 points, respectively. Further, it found that the trial court did not abuse its discretion in denying his motion for a mistrial based on prosecutorial misconduct, and rejected his claim as to the timeliness of the filing of the prosecution’s witness list. He was charged with and convicted of AWIM. The record showed “Bozile stabbed the victim multiple times, causing life-threatening injuries. A witness heard Bozile repeatedly ask during the violent attack, ‘Why didn’t you tell me you did that to the kids?’ Another witness overheard Bozile state, ‘They told me what you did.’” The court noted that given his “theory that he acted under the emotional excitement of learning that the victim might have sexually assaulted Bozile’s children and did not have the intent to murder, the jury was instructed on the lesser included offense of” AWIGBH. The court concluded that “a rational view of the evidence did not support an instruction on assault and battery,” and as a result, “the trial court would not have been obligated to give it even if defense counsel had requested it.” As to the scoring of OV 4, at “trial, the victim described a psychological injury that continued to plague him with inability to sleep at times, flashbacks to the incident that he was unable to shut out of his mind at times, and an inability to return to living at the motel where the incident occurred.” As to OV 6, given that defendant was convicted of AWIM, “which requires an actual intent to kill, . . . and the trial court found that the assault was not premeditated,” the court concluded that scoring “25 points was consistent with the jury’s verdict.” As to OV 10, there was “little doubt that the victim was intoxicated at the time of the assault, and Bozile knew the victim was intoxicated. Although that fact does not automatically render the victim vulnerable,” his intoxication likely made him “vulnerable because he was more susceptible ‘to injury[] [or] physical restraint’ since alcohol tends to impair a person’s judgment and motor skills.” Affirmed.