Opinion
No. 329046
06-08-2017
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Christopher Allan OROS, Defendant–Appellant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jeffrey S. Getting, Prosecuting Attorney, and Heather S. Bergmann, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Desiree M. Ferguson ) for defendant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jeffrey S. Getting, Prosecuting Attorney, and Heather S. Bergmann, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Desiree M. Ferguson ) for defendant.
Before: Stephens, P.J., and Shapiro and Gadola, JJ.
Per Curiam.Defendant appeals from his jury convictions of first-degree premeditated murder, MCL 750.316(1)(a) ; felony murder, MCL 750.316(1)(b) ; first-degree arson, MCL 750.72 ; second-degree home invasion, MCL 750.110a(3) ; and escape while awaiting trial, MCL 750.197(2). Defendant asserts that there was insufficient evidence to support the convictions of premeditated murder and felony murder and that those convictions should be reduced to second-degree murder. He also seeks reversal on grounds of evidentiary and procedural error and to be resentenced.
For the reasons set forth in this opinion, we reduce defendant's conviction of first-degree premeditated murder to second-degree murder and remand for sentencing for that offense. We also vacate his conviction of felony murder and remand for a new trial on that charge. We reject his other claims of error and do not address the sentencing issue because it is moot.I. FACTS
On November 22, 2014, emergency personnel responded to a fire at the apartment complex of the victim, Marie McMillan, in Kalamazoo, Michigan. The responders extinguished the fire and discovered the victim's body on a bed in her bedroom. Testimony from first responders indicated that someone had piled items over her body and set them on fire. An autopsy determined that the victim had died before the fire was set as a result of multiple stab wounds.
Police officers learned that a man had been knocking on the apartment doors of the apartments of the victim's neighbors throughout the day of the fire and using a fake story to solicit money. He told the residents that his girlfriend had left with his car, debit card, and cell phone. He then asked to use the person's phone, and, if allowed to do so, he made a call that went unanswered. After the "unsuccessful" call, he would directly or indirectly solicited money from the resident.
Officers determined that the number this man called from the residents' phones was associated with defendant. They also learned that a call had been made to that number from the victim's phone. The officers tracked defendant down at the apartment he shared with his girlfriend, Robin Wiley, Battle Creek, Michigan. When officers arrived, defendant unsuccessfully attempted to flee. After defendant was arrested, he was interrogated. During the interrogation, defendant admitted that he had gotten the victim to let him into her apartment and that he used her phone. He claimed that she then attacked him without provocation by hitting him on the head with a coffee mug and that she sat on top of him with a "huge knife in her hand." He said that he and the victim struggled for control of the knife and he gained control of it. Defendant then began stabbing the victim, first in the stomach, and then, after getting on the victim's back, in the neck and other parts of her body. There were 29 stab wounds in all.
Wiley testified against defendant at trial. She stated that she had pleaded guilty to being an accessory after the fact for her role in helping defendant return to the victim's apartment and dispose of evidence.
Defendant did not testify at trial, but his statements were recounted in testimony from the interrogating police officer's testimony.
Defendant was charged with both first-degree premeditated murder and felony murder. At trial, defendant argued that he was not guilty of murder because he killed the victim in self-defense. In the alternative, he argued that there were mitigating circumstances that reduced his culpability for her death. The jury rejected his defenses and found him guilty as earlier described.II. SUFFICIENCY OF THE EVIDENCE OF FIRST–DEGREE PREMEDITATED MURDER
Defendant first challenges the sufficiency of the evidence supporting his first-degree premeditated murder conviction. "The sufficient evidence requirement is a part of every criminal defendant's due process rights." People v. Wolfe, 440 Mich. 508, 514, 489 N.W.2d 748 (1992), amended on other grounds 441 Mich. 1201, 489 N.W.2d 748 (1992). "[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." Id. at 515–516, 489 N.W.2d 748. "The fact that some evidence is introduced does not necessarily mean that the evidence is sufficient to raise a jury issue." People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979) (opinion by COLEMAN, C.J.). "[C]ircumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." People v. Lee, 243 Mich.App. 163, 167–168, 622 N.W.2d 71 (2000). Defendant does not argue that there was insufficient evidence from which a reasonable jury could have found that he killed McMillan and did so with malice. Therefore, he concedes that there was sufficient evidence to support a verdict of second-degree murder. People v. Roper, 286 Mich.App. 77, 84, 777 N.W.2d 483 (2009) (stating that the elements of second-degree murder are "(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse") (quotation marks and citation omitted). Instead, he argues that the prosecution failed to present any evidence from which the jury could reasonably find that he deliberated or premeditated the killing thereby elevating the crime to first-degree murder.
This Court reviews a challenge to the sufficiency of the evidence by reviewing "the record evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v. Roper, 286 Mich.App. 77, 83, 777 N.W.2d 483 (2009).
First-degree murder is a statutory offense. Therefore, we must "interpret the statute by examining its plain language and by employing applicable rules of statutory construction." People v. Anstey, 476 Mich. 436, 445 n. 7, 719 N.W.2d 579 (2006). The Legislature defined first-degree murder as, in relevant part, "[m]urder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing." (emphasis added). "Murder committed in the perpetration of, or attempt to perpetrate" certain enumerated offenses also constitutes first- degree murder. MCL 750.316(1)(b). Significantly, the Legislature used the conjunctive word "and" in the phrase "other willful, deliberate and premeditated killing." We must, therefore, presume that the Legislature intended different meanings for the words and that there must be evidence of all three to sustain a conviction on this basis. See Liberty Hill Housing Corp. v. Livonia, 480 Mich. 44, 57, 746 N.W.2d 282 (2008) (stating that when the conjunctive "and" is used, the Legislature presumes different meanings), and People v. Sanford, 402 Mich. 460, 473–474, 265 N.W.2d 1 (1978) (noting that because "[t]he assault with intent to rob unarmed statute is conjunctive," there must be an assault with force and violence).
To "premeditate" means "to think about beforehand." People v. Morrin, 31 Mich. App. 301, 329, 187 N.W.2d 434 (1971). Merriam–Webster's Collegiate Dictionary(11th ed.) defines "premeditate" as "to think about and revolve in the mind beforehand[.]" Black's Law Dictionary(10th ed.) defines "premeditation" as "[c]onscious consideration and planning that precedes an act (such as committing a crime); the pondering of an action before carrying it out." Premeditation can be proved through circumstantial evidence; however, inferences may "not be arrived at by mere speculation." People v. O'Brien, 89 Mich.App. 704, 710, 282 N.W.2d 190 (1979). The prosecution may establish premeditation and deliberation through evidence of (1) the parties' prior relationship, (2) the defendant's actions before the killing, (3) the circumstances surrounding the killing itself, and (4) the defendant's conduct after the killing. People v. Schollaert, 194 Mich.App. 158, 170, 486 N.W.2d 312 (1992).
This definition is consistent with the examples provided in the statute. Both poisoning and lying in wait involve conscious planning for an action to be taken later. When a statute contains general terms that follow immediately after specific terms, the general words are presumed to be "of the same kind, class, character or nature as those specifically enumerated." People v. Jacques, 456 Mich. 352, 355, 572 N.W.2d 195 (1998) (describing and applying the canon of ejusdem generis in statutory construction) (quotation marks and citation omitted). This is particularly so when, as in MC: 750.316(1)(a), the general words are preceded by the word "other." Id. at 361–362, 572 N.W.2d 195 ( Taylor , J., dissenting). See also Scalia & Garner, Reading Law: The Interpretation of Legal Texts(St. Paul: Thomson/West, 2012), pp. 199–213, for a discussion of ejusdem generis.
Regarding the first factor, no evidence was presented that defendant and the victim had a prior relationship. Nor was there any evidence that defendant had previously threatened the victim or that she ever expressed fear of defendant. Thus, consideration of the parties' prior relationship yielded no evidence to support a finding of premeditation.
The second factor, defendant's actions before the murder, similarly yielded no support for a finding of premeditation. Defendant had a well established pattern of trying to trick people into giving him money by telling them a false story about being locked out of his apartment and needing to get to his place of work. Residents of four other apartments in the same complex in which the victim lived in testified that defendant attempted the same scam with them that afternoon, and, though some described defendant as intimidating, none testified that he acted violently. There was no evidence to suggest that defendant acted with a different plan when he knocked on the victim's door.
The fourth factor concerns the defendant's actions after the murder. In this case, defendant attempted to cover up the murder, but his actions do not suggest that the attempt was part of a pre-offense plan. Defendant washed the knife, which was an ordinary steak knife, in the victim's kitchen sink and left it there. Nearly two hours later, ample time after the crime to think about the extensive evidence at the victim's apartment, he returned to the apartment, removed bloodied items and set the fire. While evidence that an assailant attempted to cover up a murder in its immediate aftermath can support a reasonable inference that the series of events was part of a preconceived plan, see People v. Gonzalez, 468 Mich. 636, 641–642, 664 N.W.2d 159 (2003), the evidence of defendant's actions after the murder in this case do not indicate a preconceived plan. To the contrary, the fact that defendant initially left the victim's apartment after doing very little, if any, cleanup suggests that even after the murder defendant's thought process was unsettled and that he had not preplanned any means of covering up his crime. The prosecution has not suggested any premeditated plan that would involve leaving the scene of the crime and returning two hours later to attempt to cover it up. Therefore, evidence of defendant's actions after the murder cannot be used to support a finding of premeditation.
Defendant's cell phone records established that the murder took place between 4:30 p.m. and 4:38 p.m. Wiley testified that defendant had returned home by "6:15ish" and that after defendant had changed his clothes, the two of them went back to the victim's apartment. The fire at the apartment complex was first reported at 8:27 p.m.
The most significant factor here is the third one—the circumstances surrounding the killing. The prosecution argues that given the number of stab wounds, defendant had adequate time to consciously reconsider his actions in a "second look" and decide whether to continue, i.e., to have premeditated some of the later knife wounds he inflicted. However, the prosecution's argument that premeditative intent can be formed between successive stab wounds has already been rejected by our Supreme Court. In People v. Hoffmeister, 394 Mich. 155, 157–158, 229 N.W.2d 305 (1975), the victim and the defendant were seen by witnesses driving into a parking area shortly before the victim drove to a friend's house with " ‘multiple lacerations and stab wounds,’ " to a friend's house where she ultimately died. The prosecution in that case argued, as the prosecution in this case does, that the number of stab wounds and the brief time that the victim and defendant were together before the killing were sufficient for a jury to infer premeditation and deliberation. Id. at 159, 229 N.W.2d 305. The Hoffmeister Court concluded that "[t]here is no basis on this record for an inference that between the successive, potentially lethal blows the killer calmly, in a cool state of mind ... subjected the nature of his response to a second look." Id. (quotation marks and citation omitted). The Court explicitly stated that "[t]he brutality of a killing does not itself justify an inference of premeditation and deliberation." " ‘[M]any murders most brutish and bestial are committed in a consuming frenzy or heat of passion, and ... these are in law only murder in the second degree.’ " Id. at 160, 229 N.W.2d 305 quoting Austin v. United States, 127 U.S. App. D.C. 180, 190, 382 F.2d 129 (1967) (alteration in original).
The prosecution refers us to two Supreme Court cases issued after Hoffmeister, but it does not suggest that the cases have overruled Hoffmeister, and we conclude that they can be harmonized with that case. People v. Johnson, 460 Mich. 720, 721–722, 597 N.W.2d 73 (1999), involved the murder of a social worker at a juvenile detention center by one of the detainees. In that case, which involved manual strangulation, the Court stated that "evidence of manual strangulation can be used as evidence that a defendant had an opportunity to take a ‘second look.’ " Id. at 733, 597 N.W.2d 73. However, the Court was careful to note that "neither the brutal nature of a killing nor manual strangulation alone is sufficient to show premeditation...." Id. (emphasis added). Other evidence of premeditation cited in Johnson included the following: (1) the defendant moved the victim to a more secluded place before committing the murder, (2) about an hour before the murder the defendant asked another detainee if he had seen the victim, (3) the defendant has asked the victim when she was leaving for the day, and (4) the defendant directed another detainee away from the area where the murder occurred shortly thereafter. Id. at 732-733, 597 N.W.2d 73. In Gonzalez, 468 Mich. at 638–639, 642, 664 N.W.2d 159, the defendant raped the victim, battered her to death, strangled her, and then set her corpse on fire before leaving the premises. The Gonzalez opinion cited Johnson for the principle that "[m]annual strangulation can be used as evidence that a defendant had an opportunity to take a ‘second look,’ " id. at 641, 664 N.W.2d 159, but it did not conclude that such evidence was sufficient on its own.
We recognize that this issue is challenging and that bench and bar may benefit from additional clarification from the Supreme Court. See People v. Martin, 472 Mich. 930, 697 N.W.2d 520 (2005) ( Markman , J. dissenting).
That this murder was particularly savage and senseless may be considered by the trial court when imposing sentence for second-degree murder, but it does not provide sufficient evidence to prove premeditated first-degree murder. III. THE FELONY–MURDER INSTRUCTION
Defendant's culpability does not turn on "[t]he apparent savagery of the attack or any number of other factors [that] may appear to some persons to evince the highest degree of moral culpability." People v. Gill, 43 Mich.App. 598, 604, 204 N.W.2d 699 (1972). "The Legislature ... has chosen to distinguish degrees of culpability based on the presence or absence of premeditation and deliberation[.]" Id.
Defendant was convicted of a second count of first-degree murder on a felony-murder theory. The prosecution presented evidence that the murder occurred during either of two crimes: larceny from a person, MCL 750.357, or use of false pretenses to defraud, MCL 750.218. On the prosecution's request, and with defense counsel's acquiescence, the trial court instructed the jury that it could convict defendant of first-degree felony murder if it found that he caused the victim's death, did so intentionally, and did so while "committing or attempting to commit the crime of attempted false pretenses under 200 dollars and/or larceny under 200 dollars." Consistent with this instruction, the jury verdict form did not require the jury to specify which of the two underlying crimes was the basis for its conviction; the form simply required the jury to indicate whether it found defendant guilty of felony murder.
On appeal, defendant correctly points out that using false pretenses cannot serve as the basis for a felony-murder conviction. The prosecution does not disagree. It appears from the record that the prosecutor, defense counsel, and the trial court were all under the mistaken belief that using false pretenses was a larceny for purposes of felony murder. However, it is long settled that the crime of using false pretenses to obtain a victim's property does not constitute a larceny because the victim of false pretenses intends to part with title and possession of the property, whereas the victim of a larceny does not intend to part with title. People v. Malach, 202 Mich.App. 266, 271, 507 N.W.2d 834 (1993), citing People v. Long, 409 Mich. 346, 3501351, 294 N.W.2d 197 (1980).On appeal, the prosecution does not argue that defendant could have been properly convicted of felony murder using false pretenses as the predicate offense. Nor does it argue that the conviction should stand because the jury might have concluded that defendant had committed larceny from a person rather than using false pretenses. It is clear that "[w]here one of two alternative theories of guilt is legally insufficient to support a conviction, and where it is impossible to tell upon which theory the jury relied, the defendant is entitled to a reversal of his conviction and a new trial." People v. Grainger, 117 Mich.App. 740, 755, 324 N.W.2d 762 (1982).
The prosecution does, however, maintain that defendant waived his right to raise this error on appeal. The record shows that both in pretrial proceedings and at trial, defendant's trial counsel expressed his belief that false pretenses could serve as an underlying felony to support a first-degree felony-murder conviction, and he affirmatively stated that he had no issue with the jury being instructed as the prosecution requested. Typically, when defense counsel affirmatively agrees to an erroneous instruction, the defendant is deemed to have waived the error. See People v. Carter, 462 Mich. 206, 213–214, 612 N.W.2d 144 (2000). However, we decline to find a waiver in this case.
The nature of the instructional error in this case rises to the level of a due process violation, and we conclude that allowing it to stand would undermine the authority of the judiciary. The error was not merely one in which the jury received an imprecise definition or in which the trial court omitted an element of the offense for which the evidence was overwhelming. In this case, the instruction directed the jury to convict defendant on the basis of affirmative findings that, by statute, are not grounds on which to convict. We, therefore, conclude that defendant's trial counsel could not unilaterally waive this issue without defendant's full knowledge and understanding about exactly what he was waiving. It is well recognized that "there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client...." Taylor v. Illinois, 484 U.S. 400, 417–418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Among the basic constitutional rights that cannot be waived absent a defendant's express consent are the rights to plead not guilty, to have a jury trial, and to be present at that trial. Id. at 418 n. 24, 108 S.Ct. 646.
If a defendant's trial counsel cannot waive the defendant's rights to not plead guilty and to demand a trial on all the elements of the charged offense without the fully informed and express consent of his or her client, we see no reason why counsel should be able to agree that the defendant may be found guilty of because the charged offense when the jury finds that the defendant committed acts that are not grounds on which to convict. The United States Supreme Court has defined waiver as "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Courts should "indulge every reasonable presumption against waiver," Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937), and they should "not presume acquiescence in the loss of fundamental rights," Ohio Bell Tel. Co. v. Pub. Utilities Comm. of Ohio, 301 U.S. 292, 307, 57 S.Ct. 724, 81 L.Ed. 1093 (1937).
Additionally, in this case, the only reason defense counsel agreed to submission of the felony-murder charge was his mistaken view of the law that false pretenses could serve as an underlying felony for a felony-murder conviction. Our Supreme Court has previously held that a defendant could not consciously waive a right as a result of his or her attorney's mistaken view of the law. People v. Grimmett, 388 Mich. 590, 601, 202 N.W.2d 278 (1972), overruled on other grounds by People v. White, 390 Mich. 245, 257–258, 212 N.W.2d 222 (1973).
The prosecution refers us to People v. Kowalski, 489 Mich. 488, 502–504, 803 N.W.2d 200 (2011), and asserts that in that case, the Supreme Court held that waiver can occur even when it involves a constitutional error in instructions. The instructional error in Kowalski occurred when the trial court omitted an element of the charged offense. Id. at 502–503, 803 N.W.2d 200. The Kowalski Court determined that defense counsel's "explicit [ ] and repeated[ ]" approval of the instruction operated as a waiver. Id. at 503, 803 N.W.2d 200 Despite that determination, however, the Court conducted a thorough analysis of the substance of the claimed error and ultimately declined to reverse because it concluded that "even if the trial court had properly instructed [the jury,] ... the jury would still have convicted defendant" due to the nature of the evidence. Id. at 506, 803 N.W.2d 200. The Kowalski Court went on to state that "defendant cannot establish that the trial court's charge to the jury affected the outcome of the lower court proceedings." Id. at 509–510, 803 N.W.2d 200.
The prosecution has not referred us to any other cases in support of its argument that we should dispose of this case on the basis of waiver. It cites to People v. Carter, 462 Mich. 206, 612 N.W.2d 144 (2000) and People v. Unger, 278 Mich.App. 210, 749 N.W.2d 272 (2008), but neither involved an instructional error of constitutional magnitude; rather, the claimed errors were very minor. Carter concerned the jury's request for the transcripts of testimony of certain witnesses; in fact no such transcripts yet existed, but the defendant argued that the court's instruction that the transcripts were not available violated MCR 6.414(H). Carter, 462 Mich. at 210, 213–215, 612 N.W.2d 144. In Unger, the defendant challenged the trial court's decision to give a single limiting instruction to the jury that applied to the testimony of several enumerated witnesses. Unger, 278 Mich. App. at 233–234, 749 N.W.2d 272. The defendant claimed on appeal that the court should have repeated the instructions for each witness separately. Id. at 233, 749 N.W.2d 272
For the same reason, the Court rejected the defendant's claim of ineffective assistance of counsel related to his counsel's failure to object to the jury instructions because, given the evidence, the defendant could not demonstrate that in its absence, the result of the proceeding would have been different. Kowlaski, 489 Mich. at 510 n. 38, 803 N.W.2d 200.
Accordingly to the Court, jury instructions that [are] somewhat deficient may nonetheless, when viewed as a whole, have sufficed to protect a defendant's rights when the jury would have convicted the defendant on the basis of the evidence regardless of the instructional error. If the evidence related to the missing element was overwhelming and uncontested, it cannot be said that the error affected the defendant's substantial rights or otherwise undermined the outcome of the proceedings. [ Id. at 506, 803 N.W.2d 200.]
Given this standard, we have reviewed the record in this case to determine whether the evidence related to larceny from a person was "overwhelming and uncontested" and whether the erroneous instruction adequately served to protect defendant's rights. We conclude that the instant circumstances fall well short of that demanding standard. The evidence to support the charge of larceny from a person was far weaker than the overwhelming evidence that supported the false pretenses charge. There was no direct or forensic evidence of a larceny; only evidence to supporting it was indirect and inferential. The prosecution suggests that the evidence supports an inference that defendant handled victim's the purse during the crime because defendant took the victim's purse when he returned to the crime scene to set the fire. The prosecution also points out that following the crime, defendant sent a text to an associate that could be read as indicating that defendant had obtained enough money to buy drugs. Evidence of a prior incident during which defendant had taken valuables from an apartment when its resident refused to give defendant money was also introduced. While that evidence allowed for reasonable inferences consistent with guilt, the inferences were vigorously contested and far from overwhelming.
Defendant rebutted these inferences by pointing out that he had been given $30 by other residents of the apartment building and that on the day in question he did not take any property from those residents who refused to give him money.
In a related issue, defendant argues not only that the instruction was infirm, but that there was insufficient evidence to convict him of larceny from a person. As just noted, the record evidence of larceny from a person was limited but, taking the evidence in the light most favorable to the prosecution, it was sufficient to present to the jury for decision. Accordingly, we reject defendant's argument that a retrial would be improper.
IV. EVIDENCE OF THE VICTIM'S MENTAL HEALTH
Defendant next argues that the trial court abused its discretion when it precluded him from introducing evidence of the victim's history of mental illness and her paranoia about people trying to kill her. The trial court precluded defendant from introducing this evidence absent a "nexus between the mental illness ... and violence."We do not find the trial court's ruling to be outside the range of reasonable and principled outcomes. The evidence of the victim's mental health that defendant wished to introduce came from statements of the victim's family members recorded in police reports. Defendant failed to proffer any proof of prior aggressive behavior linked to the victim's mental illness. Furthermore, statements of the victim's family members would have been lay opinion testimony and could not establish a medical diagnosis. Evidence of a link between the victim's mental illness and aggressive behavior showing that the mental illness caused irrational aggression would have been relevant to the jury's determination of whether the victim acted aggressively. However, that was not the case here.
We review for an abuse of discretion a trial court's decision whether to permit the admission of evidence. People v. Yost, 278 Mich.App. 341, 353, 749 N.W.2d 753 (2008). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Unger, 278 Mich. App. 210, 217, 749 N.W.2d 272.
V. MOTION TO SEVER
While in jail awaiting trial, defendant attempted to escape by pushing an officer who was escorting him to a different part of the jail and grabbing the officer's key fob. Defendant's attempt to escape failed when the key fob did not operate the door he attempted to open. Defendant was charged with escape while awaiting trial, MCL 750.197(2). Defendant moved to sever this charge, but the trial court denied the motion. Defendant argues that the denial of his motion was erroneous. MCR 6.120(C) provides that the trial court "must sever for separate trials offenses that are not related as defined in subrule (B)(1)." Subrule (B)(1) states that offenses are related if they are based on "(a) the same conduct or transaction, or (b) a series of connected acts, or (c) a series of acts constituting parts of a single scheme or plan." MCR 6.120(B)(1)(a) through (c). The prosecution argued that the escape offense was connected to the other offenses. Each of defendant's acts—attempting to cover up the murder, evade arrest, and escape—were, in the prosecution's view, related by motive and connected as a series of events taken to avoid incarceration for the offenses defendant committed. The trial court found that there was a sufficient connection between the acts to warrant joinder and denied defendant's motion on that basis.
We review for an abuse of discretion a trial court's decision on a motion to join or sever charges. People v. Girard, 269 Mich.App. 15, 17, 709 N.W.2d 229 (2005). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Unger, 278 Mich.App. at 217, 749 N.W.2d 272.
--------
Given that the attempted escape from jail happened 12 days after the murder and appeared to be a crime of opportunity rather than part of a previous scheme or plan connected with the other crimes, there is some merit to defendant's argument that this event was not related to the murder, arson, and home invasion. However, because defendant's attempts to cover up the murder, evade arrest, and escape from jail can be seen as a series of connected acts, we do not find that the trial court's decision was outside the range of reasonable and principled outcomes. Additionally, defendant cannot show that, even if it was erroneous for the trial court to deny his motion, that this decision prejudiced him. People v. Lukity, 460 Mich. 484, 495, 596 N.W.2d 607 (1999). Defendant's self-defense claim was extremely weak and, while the evidence was insufficient to support a conviction of first-degree premeditated murder, the evidence supporting defendant's convictions of second-degree murder, first-degree arson, second-degree home invasion, and escape while awaiting trial, was overwhelming. Defendant was not prejudiced by the denial of his motion to sever the attempted-escape charge from the other charges, and he is not entitled to any relief on this basis.VI. SENTENCING ERROR
Defendant's final claim of error is that the trial court erred when it assessed points under the offense variables for his sentencing offense, arson, on the basis of facts involving the circumstance of the murder. See People v. McGraw, 484 Mich. 120, 129, 771 N.W.2d 655 (2009) (stating that "offense variables are scored by reference only to the sentencing offense, except where specifically provided otherwise"). Because the sentencing guidelines do not apply to offenses with a mandatory penalty of life imprisonment, the trial court did not score the guidelines for defendant's first-degree murder convictions. See MCL 769.34(5). Instead, it had to score the variables for the remaining offense with the highest crime class. MCL 771.14(2)(e) ; see also People v. Lopez, 305 Mich.App. 686, 690, 854 N.W.2d 205 (2014). Following his jury trial, arson was the remaining offense with the highest crime class. See MCL 777.16c and MCL 777.16f.
However, in light of our decision to reduce defendant's first-degree premeditated murder conviction to second-degree murder, the second-degree murder conviction becomes the offense with the highest crime class. See MCL 777.16p and MCL 777.16c. Therefore, defendant's claim of error is moot. See Swinehart v. Secretary of State, 27 Mich.App. 318, 320, 183 N.W.2d 397 (1970) (explaining that the Court will not consider moot questions). Defendant must be resentenced on the basis of the second-degree murder conviction.
VII. CONCLUSION
We reduce defendant's first-degree premeditated murder conviction to second-degree murder. Defendant must be resentenced on this basis. We vacate defendant's conviction of first-degree felony murder and remand for retrial on that charge. We do not retain jurisdiction.
Stephens, P.J., and Shapiro and Gadola, JJ., concurred.