Background
A jury convicted Breon McIntosh of second-degree murder and possessing a firearm during the commission of a felony after acquitting him of first-degree premeditated murder. The trial court sentenced him to 22½ to 60 years in prison for murder and two years for felony-firearm, with the sentences to run consecutively.
McIntosh argued on appeal that the trial court violated his constitutional right to present a complete defense by excluding testimony that the victim had undergone bariatric surgery. He also challenged the assessment of 10 points under offense variable 10, which addresses exploitation of a vulnerable victim, and contended that the scoring improperly relied on conduct underlying his acquittal of first-degree murder.
The Court’s Holding
The Court of Appeals held that McIntosh waived his evidentiary claim because defense counsel expressly accepted the trial court’s ruling permitting testimony about changes in the relationship but excluding the victim’s medical procedure unless it became relevant. The court added that McIntosh was able to present his defense theory through testimony about the relationship’s deterioration, the victim’s changed behavior, a prior domestic incident, and his assertion that he had not earlier contemplated killing her.
The court held that OV 10 should have been scored at five points, not 10. The evidence supported findings that the victim became vulnerable after the first shooting left her incapacitated and that McIntosh exploited that condition by returning and shooting her again. But those findings fit the statutory five-point category for exploiting an unconscious victim. The reduced score did not change McIntosh’s guidelines range, so resentencing was unnecessary.
The court also rejected the acquitted-conduct argument. Although the first-degree-murder acquittal prevented reliance on conduct found to establish premeditation and deliberation, the evidence that McIntosh intentionally stood over the victim and shot her again was also relevant to malice, an element of the second-degree murder conviction. The court therefore affirmed the convictions and sentences but remanded for the ministerial correction of OV 10 in the sentencing information report and presentence investigation report.
Key Takeaways
- Defense counsel’s express acceptance of an evidentiary ruling waived appellate review of the claimed violation of the right to present a defense.
- A victim may become vulnerable during an offense, and a defendant may exploit that vulnerability for purposes of OV 10.
- Exploiting an unconscious victim warrants five points under OV 10, and a scoring correction does not require resentencing when it leaves the guidelines range unchanged.
- Evidence relevant to both an acquitted charge and a convicted charge may be considered at sentencing when its use is consistent with the conviction rather than the acquitted element.
Why It Matters
The decision distinguishes between an incorrect guidelines score that requires resentencing and one that calls only for correction of sentencing records. It also illustrates that Michigan’s prohibition on considering acquitted conduct does not exclude every fact introduced in support of an acquitted greater offense when the same fact independently supports an element of the offense of conviction.