People v. Wright, 317086

Decision Date04 December 2014
Docket NumberNo. 317086,317086
CourtCourt of Appeal of Michigan — District of US
PartiesPEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANDREW CARLOS WRIGHT, Defendant-Appellant.

UNPUBLISHED

Wayne Circuit Court

LC No. 11-011611-FC

Before: BORRELLO, P.J., and WILDER and STEPHENS, JJ.

PER CURIAM.

Defendant was convicted in a bench trial of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to 18 to 40 years' imprisonment for the second-degree murder conviction, and two years' imprisonment for the felony-firearm conviction. He appeals of right his sentence, and for the reasons set forth in this opinion, we affirm.

This appeal arises from a shooting that took place during the early morning hours of October 17, 2011, in Detroit, Michigan. On October 17, 2011, at approximately 5:00 a.m., Jason Harbin and his friend, Aamir Fuqua, traveled to the home of Lakeisha Pringle for the purpose of borrowing her car. Harbin planned to move away and start a new life with defendant's wife, Connie, and the son that Harbin and Connie had together while Connie was married to defendant.1 Harbin drove Pringle's vehicle to defendant's house; while Fuqua sat in the rear driver's seat. Harbin sent Connie several text messages to indicate that he was waiting outside; however, when Connie failed to respond, Harbin exited the vehicle and walked toward defendant's house. As Harbin walked toward the house, defendant was waiting outside with a firearm, and began firing shots at Harbin. Harbin attempted to flee the area but defendant walked toward him and the vehicle as he continued to fire shots. As Harbin ran away from defendant, he yelled at Fuqua, who was still inside the vehicle, to flee the scene. Harbin was hit by one bullet in the leg but was able to escape. Fuqua made his way into the driver's seat of the car and shifted into drive; however, he was fatally struck in the back by one of defendant'sgunshots. Police officers found Fuqua dead in the driver's seat of the vehicle when they arrived at the scene.

At the conclusion of the bench trial, the trial court made extensive findings of fact. Specifically, the trial court found that on the morning of the shooting, Harbin traveled to defendant's home for the purpose of picking up Connie and their son, "and that it was [Harbin's] intention to take them both away from the defendant's residence and that they were going to start a life together." The trial court also found that defendant was waiting outside his home at the time that Harbin arrived, and that defendant was the person who shot at Harbin and Fuqua. The trial court concluded that defendant was not guilty of assault with intent to murder in the context of his shooting Harbin; specifically, the trial court found that defendant was acting in self-defense because Harbin was walking onto his property, and defendant possessed a reasonable apprehension that Harbin intended to cause him harm. However, the trial court concluded that defendant did not have a reasonable fear of harm from Fuqua, who remained in the vehicle, on the street, throughout the entire incident. The trial court found that Fuqua was unarmed at the time of the shooting, and that defendant possessed "an intent to do great bodily harm or . . . an intent to kill." Ultimately, the trial court concluded that defendant was guilty of second-degree murder in the shooting of Fuqua. This appeal then ensued.

On appeal, defendant argues that he is entitled to resentencing because the trial court inaccurately assessed points for Offense Variables (OV) 1, 3, 5, and 6. Specifically, defendant argues that he should have been assessed zero points for OV 1 because the shooting was done in self-defense, and was directed at Jason Harbin, not the victim. Further, defendant contends that he was not even aware that the victim was present at the time of the shooting because the victim remained in a vehicle on the street throughout the incident. Defendant also contends that he should have been assessed zero points for OV 3 because homicide was the sentencing offense. Defendant argues that he should have been assessed zero points for OV 5 because there was no evidence presented to suggest that the victim's family suffered severe psychological injury requiring professional treatment. Defendant contends that he should have been assessed zero points, or in the alternative, 10 points for OV 6, because he was in an extreme emotional state at the time of the shooting and he did not possess the intent to shoot the victim.

"Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made." People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). This Court reviews de novo whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute. Hardy, 494 Mich at 438.

OV 1 is the offense variable relating to aggravated use of a weapon. MCL 777.31(1); People v Morson, 471 Mich 248, 256; 685 NW2d 203 (2004). Pursuant to OV 1, 25 points must be assessed where a firearm was discharged at or toward a human being. MCL 777.31(1)(a). Fifteen points must be assessed where "a firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an immediate battery when threatened with a knife or other cutting or stabbing weapon." MCL 777.31(1)(c). Alternatively, pursuant to OV 1, five points must be assessed if a weapon was displayed or implied. MCL 777.31(1)(e). Zero points must be assessed if no aggravated use of a weapon occurred. MCL 777.31(1)(f).

Defendant argues that he should have been assessed zero points for OV 1 because the victim "was not outside of a vehicle and therefore not in a position to be seen" by defendant at the time of the shooting. Further, defendant argues that he was shooting at Harbin, not at the victim. However, defendant's argument is meritless. The trial court assessed 25 points for OV 1. Defendant shot at Harbin and the vehicle with the victim inside; defendant necessarily pointed a firearm at or toward the victim because he actually, and fatally, hit the victim with one of his gunshots. Though the victim remained in the vehicle throughout the shooting incident, Harbin yelled out to him as defendant was shooting that he should flee the scene; however, defendant continued to fire his weapon in the direction of Harbin and the vehicle. Accordingly, defendant pointed his firearm at the car where he had reasons to believe another person was located and fired. We therefore concur with the trial court's finding that defendant fired his weapon at or toward the victim and Harbin. Therefore, the trial court's assessment of 25 points for OV 1 was correct.

OV 3 is the offense variable relating to physical injury to a victim. MCL 777.33. Pursuant to OV 3, 100 points must be assessed if a victim was killed; however, 100 points may only be assessed "if death results from the commission of a crime and homicide is not the sentencing offense." MCL 777.33(2)(b). Fifty points may be assessed under OV 3 if "death results from the commission of a crime and the offense . . . involves the operation of a vehicle." MCL 777.33(2)(c). Twenty-five points may be assessed under OV 3 if a "life threatening or permanent incapacitating injury occurred to a victim." MCL 777.33(1)(c). Zero points must be assessed for OV 3 if "no physical injury occurred to a victim." MCL 777.33(1)(f). Our Supreme Court has held that 25 points may be assessed for OV 3 in cases where homicide is the sentencing offense. People v Houston, 473 Mich 399, 405-408; 702 NW2d 530 (2005).

Defendant argues, in cursory fashion, that "zero points should have been assessed since the death of . . . [T]he victim did not result from the commission of an offense that was not homicide." The trial court assessed 25 points for OV 32 because it concluded that Houston was controlling. Defendant shot and killed the victim; accordingly, life threatening or permanently incapacitating injury was inflicted by defendant upon the victim. Defendant's argument has no basis in law; 25 points may be assessed for OV 3, even where homicide is the sentencing offense, as it is here. See Houston, 473 Mich at 405-408. The trial court's assessment of 25 points for OV 3 was correct.

OV 5 is the offense variable relating to psychological injury to members of a victim's family. MCL 777.35. Under OV 5, 15 points may be assessed where "serious psychological injury requiring professional treatment occurred to a victim's family." MCL 777.35(1)(a). Alternatively, zero points must be assessed for OV 5 where no serious psychological injury requiring professional treatment occurred to a victim's family. MCL 777.35(1)(b). Whether afamily member of the victim has actually sought professional treatment is not...

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