Jury instruction on aggravated assault as a cognate lesser offense of AWIM; People v Haynie; Sentencing; Scoring of OV 8; MCL 777.38(1)(a); People v Allen

As defendant did not offer any binding authority supporting “that the trial court erred by failing to instruct the jury on the cognate lesser offense of aggravated assault” where he was charged with AWIM, the court held that he was not entitled to relief on this claim. It also held that the trial court properly scored OV 8 at 15 points. Thus, it affirmed his AWIGBH conviction and his 48 to 120-month sentence. The court noted that aggravated assault “contains an element that AWIM does not: that the victim sustained a serious or aggravated injury.” Thus, this offense “is a cognate lesser offense of AWIM for which defendant was not entitled to a jury instruction.” While he relied on a concurrence in Haynie, the court noted that concurring opinions “are not binding authority.” In addition, while both this case and Haynie involved “the charged offense of AWIM, defendant here sought an instruction on aggravated assault as a lesser offense, while the defendant in Haynie sought an instruction on assault and battery” as a lesser offense. As to the scoring of OV 8, the court held that the evidence established “that defendant used both physical restraint and psychological influence to hold the victim captive.”