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March 24, 2026 Get Citation Alerts Download PDF Add Note

People of Michigan v. Tyrone Carleece Demmings

Michigan Court of Appeals

• Citations: None known
• Docket Number: 368234
• Precedential Status: Non-Precedential

• Disposition: Lower Court Judgment/Order Affirmed

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.4K)

• PDF

Disposition

Lower Court Judgment/Order Affirmed

Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 24, 2026
Plaintiff-Appellee, 12:38 PM

v Nos. 368234; 374372
Wayne Circuit Court
TYRONE CARLEECE DEMMINGS, LC No. 22-002248-01-FC

Defendant-Appellant.

Before: RIORDAN, P.J., and MURRAY and MALDONADO, JJ.

PER CURIAM.

In these consolidated appeals as of right, defendant appeals his convictions of and
sentences for discharge of a firearm in or at a building, causing injury, MCL 750.234b(3); felon in
possession of a firearm (felon-in-possession), MCL 750.224f; and two counts of carrying a firearm
during commission of a felony, second offense, MCL 750.227b(1). We affirm.

I. NO. 368234

A. INEFFECTIVE ASSISTANCE—WITNESSES

“A criminal defendant has the fundamental right to effective assistance of counsel.” People
v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). The defendant bears the burden of proving
that trial counsel failed to provide effective assistance. Id. A claim of ineffective assistance of
counsel presents a mixed question of law and fact. People v Petri, 279 Mich App 407, 410; 760
NW2d 882 (2008). “A trial court’s findings of fact, if any, are reviewed for clear error, and this
Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel
claim de novo.” Id. To establish ineffective assistance of counsel, a defendant first must
demonstrate that trial counsel’s performance fell below an objective standard of reasonableness.
People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011). “Second, the defendant
must show that, but for counsel’s deficient performance, a different result would have been
reasonably probable.” Id. at 290. “[T]he defendant must overcome the strong presumption that
counsel’s assistance constituted sound trial strategy.” Id.

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Counsel’s decisions regarding what, if any, witnesses to call at trial are generally a matter
of trial strategy. People v Jackson (On Reconsideration), 313 Mich App 409, 432; 884 NW2d 297
(2015). A defendant claiming ineffective assistance “must overcome the strong presumption that
counsel’s challenged actions were sound trial strategy.” People v Cooper, 309 Mich App 74, 80;
867 NW2d 452 (2015). Defendant’s trial counsel, Jason Grant Miller, attempted to investigate
Falonda Scandrick, but she did not cooperate with his attempt. At the Ginther1 hearing, Miller
stated that he attempted to talk to her on the phone, but her response indicated that she believed he
was the prosecutor. She ended the call before he could correct her mistaken assumption. The trial
court found that Miller attempted to investigate Falonda as a potential defense witness, but she
would not cooperate because she thought that he was the prosecutor. The trial court’s finding of
fact was not clearly erroneous. Petri, 279 Mich App at 410. Thus, Miller did not act in an
objectively unreasonable manner, as he in fact followed up with defendant’s recommendation.
Additionally, Miller made a strategic choice to attack the prosecutor’s case in closing argument by
commenting, “We haven’t heard from Falonda[.]” Defendant thus fails to establish that Miller
made an objectively unreasonable error in failing to call Falonda.

B. INEFFECTIVE ASSISTANCE—EVIDENCE OF FLIGHT

The prosecutor stated in closing argument that defendant “t[ook] off and [went] into hiding
for about two years” until he was arrested. The trial court instructed the jury that evidence of flight
could reflect consciousness of guilt, but could also reflect innocent causes such as fear or mistake.
Defendant argues that the evidence did not support this argument or this instruction, and that trial
counsel was ineffective in failing to object. He also argues that the cumulative effect of these two
unpreserved errors deprived him of a fair trial.

The test for prosecutorial error is whether the defendant was denied a fair and impartial
trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). This Court reviews
arguments of prosecutorial error2 case by case, reviewing the record as a whole and considering
the prosecution’s comments in their proper context. Id. at 64. “The propriety of a prosecutor’s
remarks depends on all the facts of the case.” Id. (quotation marks and citation omitted). Claims
of instructional error are reviewed de novo. People v Spaulding, 332 Mich App 638, 652; 957
NW2d 843 (2020). However, the trial court’s determination that a jury instruction is applicable to
the case is reviewed for an abuse of discretion. People v Montague, 338 Mich App 29, 37; 979
NW2d 406 (2021). Issues of cumulative error are reviewed “to determine if the combination of
alleged errors denied defendant a fair trial.” Dobek, 274 Mich App at 106. Unpreserved claims
of error are reviewed for plain error affecting the defendant’s substantial rights. People v Solloway,
316 Mich App 174, 201-202; 891 NW2d 255 (2016). “To avoid forfeiture under the plain error
rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear

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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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This Court prefers the term “prosecutorial error” in place of “prosecutorial misconduct” except
for “those extreme—and thankfully rare—instances where a prosecutor’s conduct violates the
rules of professional conduct or constitutes illegal conduct.” People v Cooper, 309 Mich App 74,
87-88; 867 NW2d 452 (2015).

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or obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999).

The prosecutor is not permitted to argue facts not in evidence or to mischaracterize the
evidence, but the prosecutor is free to argue all reasonable inferences that arise from the evidence.
People v Anderson, 331 Mich App 552, 565; 953 NW2d 451 (2020). Defendant argues that the
prosecutor violated these principles when she stated in closing argument:

Now, Cherron gets shot. It’s chaos. The police arrive. EMS arrives. Where
does the defendant go? He takes off, and he goes into hiding for about two years
until he’s arrested on the charges that are before you.

The statement that defendant “takes off” was supported by evidence that defendant left the
location, but the statement, “he goes into hiding for about two years” was not. Although defendant
was not arrested until March 12, 2022, there was no evidence that defendant purposefully
concealed his whereabouts or obstructed law enforcement. Trial counsel therefore had a legitimate
basis to object to the argument and to request a curative instruction, and by doing so he either
would have received the instruction or minimally would have preserved the issue for appellate
review. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). However, “declining
to raise objections, especially during closing arguments, can often be consistent with sound trial
strategy.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008).

Competent counsel might withhold an objection out of the realization “that there are times
when it is better not to object and draw attention to an improper comment.” Id. (quotation marks
and citation omitted). Indeed, Miller testified that he generally pursues a strategy of not objecting
during closing arguments, which the trial court acknowledged in its findings of fact. Additionally,
defense counsel could, as Miller did, rely on the trial court to instruct the jury that attorneys’
arguments are not evidence. “It is well established that jurors are presumed to follow their
instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Defendant thus fails
to demonstrate that defense counsel’s failure to object to the improper argument was an objectively
unreasonable error. Armstrong, 490 Mich at 289-290.

Defendant’s instructional error argument is premised on this statement in the trial court’s
jury instructions:

There’s been some evidence that the defendant fled the scene after the
alleged crime. This evidence does not prove guilt.

A person may run for innocent reasons such as panic, mistake, or fear.
However, a person may also run because of a consciousness of guilt.

Jury instructions “must not exclude from jury consideration material issues, defenses or theories
if there is evidence to support them.” People v Armstrong, 305 Mich App 230, 240; 851 NW2d
856 (2014) (quotation marks and citation omitted). As noted above, defendant’s departure from
Greenview Street where the shooting occurred could be construed as flight, although it could also
be construed as simply leaving the neighborhood after the family demanded that he leave the home.
The instructions made no reference to hiding, which was the objectionable aspect of the closing

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argument. Accordingly, there was no firm basis for counsel to object to the instruction. “Failure
to raise a futile objection or advance a meritless argument does not constitute ineffective assistance
of counsel.” People v Isrow, 339 Mich App 522, 532; 984 NW2d 528 (2021).

Defendant fails to satisfy the first requirement of ineffective assistance, namely that
counsel’s performance fell below an objective standard of reasonableness. Armstrong, 490 Mich
at 289-290. Additionally, defendant’s acquittal of the most serious charges indicates that the jury
was not influenced by the prosecutor’s statement about hiding. Defendant thus also fails to satisfy
the second requirement, “that, but for counsel’s deficient performance, a different result would
have been reasonably probable.” Id. at 290.

II. NO. 374372

A. OV 9

In this appeal defendant argues that both scoring error and ineffective assistance occurred
with respect to the trial court’s scoring of OV 9, number of victims. “To preserve a challenge to
the scoring of the sentencing guidelines, the challenge must be raised at sentencing, in a proper
motion for resentencing, or in a proper motion to remand filed in this Court.” People v Ventour,
349 Mich App 417, 433; 27 NW3d 660 (2023); MCR 6.429(C). Defendant acknowledges that his
scoring error argument was not preserved. As to his ineffective assistance of counsel argument,
defendant did not address this issue in his motion for a Ginther hearing. Thus, review is limited
to mistakes apparent on the record. People v Riley (After Remand), 468 Mich 135, 139; 659 NW2d
611 (2003).

As to arguments that a trial court improperly scored sentencing guidelines, the trial court’s
findings of fact 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), superseded in part on other
grounds by statute as stated in People v Rodriguez, 327 Mich App 573, 579 n 3; 935 NW2d 51
(2019). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by
statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which
an appellate court reviews de novo.” Id. Unpreserved scoring issues are reviewed for plain error
affecting the defendant’s substantial rights. Ventour, 349 Mich App at 433.

“Michigan’s sentencing guidelines are now advisory only, but trial courts must still consult
the guidelines and take them into account during sentencing.” People v Teike, 348 Mich App 520,
538; 19 NW3d 733 (2023). “Appellate courts are no longer required to affirm within-guidelines
sentences absent an error in the sentencing-guidelines scoring or inaccurate information relied on
by the trial court in sentencing.” Id. “However, sentences that fall within the properly calculated
guidelines minimum sentence range are rebuttably presumed to be proportionate.” Id. A
defendant is entitled to resentencing if there is a scoring error that alters the defendant’s
recommended minimum sentence range under the guidelines. People v Francisco, 474 Mich 82,
89; 711 NW2d 44 (2006). A scoring error that does not affect the guidelines range is harmless,
and does not require resentencing. Id. at 91-92.

For purposes of the legislative sentencing guidelines, discharge at a building causing
injury, MCL 750.234b(3), is a Class C offense. MCL 777.16m. MCL 777.64 provides the

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minimum sentence range grid for Class C offenses. Following resentencing, defendant’s total OV
score of 45 points, combined with his total prior record variable (PRV) score of 69, placed him at
the IV-E cell on the Class C Felony grid, which provides a minimum sentence range of 43 months
to 86 months. Defendant was sentenced as a fourth-offense habitual offender; accordingly, the
upper limit of this range was increased by 100% to 172 months. MCL 777.21(3)(c). The threshold
for Level IV is 35 points; therefore, defendant would have to demonstrate that his OV level,
correctly calculated, is 34 points or less. OV 9 was scored 10 points. If OV 9 was rescored to zero
points, defendant’s total OV score would be 35 points, keeping his OV level at Level IV. Any
scoring error was therefore harmless. Francisco, 474 Mich at 91-92.

We briefly note, however, that OV 9 was not wrongly scored. OV 9, number of victims,
is scored 10 points when “[t]here were 2 to 9 victims who were placed in danger of physical injury
or death, or 4 to 19 victims who were placed in danger of property loss.” MCL 777.39(1)(c). It is
scored zero points when “[t]here were fewer than 2 victims who were placed in danger of physical
injury or death, or fewer than 4 victims who were placed in danger of property loss.” MCL
777.39(1)(d). Here, the OV 9 score of 10 points is supported by evidence relating to the sentencing
offense of discharge of a firearm at a building, causing injury. Although Cherron was the only
individual who sustained an injury, the other individuals on the porch were at risk of injury from
defendant’s shooting because of their close proximity to Cherron. The jury’s finding that the
prosecutor failed to prove the elements of assault with the intent to murder or assault with the
intent to do great bodily harm less than murder did not absolve defendant of endangering persons
by firing a gun in their direction. Evidence that one of the persons was struck by a bullet proved
that defendant’s distance and lack of aim did not render the shooting harmless. The scoring of OV
9 was therefore appropriate. Defendant’s claim of ineffective assistance is without merit, because
“[f]ailure to raise a futile objection or advance a meritless argument does not constitute ineffective
assistance of counsel.” Isrow, 339 Mich App at 532.

B. DE NOVO SENTENCING

Lastly, defendant argues that the trial court was required to conduct “de novo”
resentencing, rather than limiting the decision to the rescoring of OV 12. He cites People v
Rosenberg, 477 Mich 1076 (2007) for the principle that: “When a trial court grants a motion for
resentencing . . . Michigan law requires that the resentencing be conducted de novo, unless the
remand or order expressly limits the scope of resentencing.” Rosenberg held that a defendant who
previously waived his objection to the imposition of a fine was not bound by this waiver after the
Court of Appeals vacated his original sentence, as the case was again in a “presentence posture.”
Id. Rosenberg allows a court to consider any prior or new evidence or arguments regarding
sentencing, but it does not preclude a trial court from relying on its previous reasoning for
concluding that the sentence originally imposed remained proportionate. Defendant fails to
demonstrate error.

Affirmed.

/s/ Michael J. Riordan
/s/ Christopher M. Murray
/s/ Allie Greenleaf Maldonado

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