Right to present a defense; Exclusion of evidence; Waiver; Presenting the defense theory with other evidence; Sentencing; Scoring of OV 10; MCL 777.40(1)(b) or (c); Vulnerability; People v Cannon; Exploitation; People v Ziegler; Acquitted conduct; People v Yeager; People v Brown

The court held that defendant waived his right to present a defense issue, and in any event, he was still able to present the defense theory to the jury with other evidence. As to his sentencing claims, while OV 10 should have been scored at 5 points, not 10, the change did not alter his guidelines range and thus, did not require reversal. Finally, the trial court was allowed to consider his intentional shooting of the victim because it was relevant to both the acquitted charge (first-degree premeditated murder) and the conviction charge (second-degree murder). He was also convicted of felony-firearm. He was sentenced to 22-1/2 to 60 years for second-degree murder and 2 years for felony-firearm, to run consecutively. He first argued that the trial court’s exclusion of testimony that the victim underwent bariatric surgery denied him his right to present a defense. The court concluded that he waived this issue because defense counsel “expressed satisfaction with the trial court’s ultimate ruling.” His defense theory “was that despite the strain caused by the victim’s changing behavior and” an altercation between them, “he never thought about killing her until seeing her with” another man. The court noted that “the trial court never instructed the jury that it could not consider defendant’s testimony about the change in the relationship he had with the victim after her surgery. And, defendant testified that in about [4/23] his relationship with [her] changed, explaining that she was not acting like herself because she was more secretive and neglectful. In response to defense counsel’s questions, [he] denied he thought about killing the victim beginning in [4/23] or at the time of the” 7/23 incident. He also testified about that “incident without objection. Indeed, defense counsel explained this theory during closing argument.” There was no violation of his right to present a defense “because he was able to present his theory of defense to the jury.” As to sentencing, his acquitted conduct argument failed given that evidence that he purposefully stood “over the victim to shoot her again” was relevant to the malice element of second-degree murder. Affirmed.