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March 10, 2026 Get Citation Alerts Download PDF Add Note

People of Michigan v. Exzavier Lamar Lewis

Michigan Court of Appeals

• Citations: None known
• Docket Number: 371584
• Precedential Status: Non-Precedential

• Disposition: Affirm in Part, Reverse in Part, Remanded

• Opinion

• Authorities (24)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Affirm in Part, Reverse in Part, Remanded

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 10, 2026
Plaintiff-Appellee, 9:37 AM

v No. 371584
Wayne Circuit Court
EXZAVIER LAMAR LEWIS, LC No. 21-006470-01-FC

Defendant-Appellant.

Before: FEENEY, P.J., and GARRETT and BAZZI, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of third-degree criminal sexual
conduct (CSC-III), MCL 750.520d(1)(c) (incapacitated/physically helpless victim).1 The trial
court sentenced defendant, as a second-offense habitual offender, MCL 769.10, to serve 3 to 22.5
years in prison. We affirm defendant’s conviction, reverse defendant’s sentence, and remand to
the trial court to resentence defendant under correctly scored sentencing guidelines.

I. FACTS

This case arises out of the victim’s claim that defendant sexually assaulted her while she
was asleep in her bed. On the night of the incident, the victim’s daughter, Ashley Byrd, borrowed
the victim’s vehicle and left the victim’s house to see her ex-boyfriend, defendant. Byrd drove
defendant to the store then to defendant’s cousin’s house where they had something to drink. Byrd
recalled getting back into the vehicle with defendant, but her next memory was at about 4:30 or
5:00 a.m., when she woke up in the vehicle’s driver’s seat—alone—with about 20 missed calls.

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The jury found defendant not guilty of: (1) two counts of first-degree criminal sexual conduct
(CSC-I), MCL 750.520b(1)(c) (during a home invasion/felony); (2) one count of CSC-III, MCL
750.520d(1)(b) (force or coercion); (3) one count of first-degree home invasion, MCL
750.110a(2); and (4) one count of unlawfully driving away a motor vehicle, MCL 750.413.

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Meanwhile, the victim went to bed at about 11:00 or 11:30 p.m. The victim awoke to a
“sensation” near her vagina, a weight upon her, and hair dangling down onto her. The victim
clarified that the “sensation” that she felt was the man’s mouth, and at one point, the man “tried to
insert [his] penis inside of [her],” but “the beginning of the tip point” was the only part that entered
her vagina. The victim pushed the man off her, chased him through her house, and watched him
exit her side door, enter her vehicle with Byrd unalert in the passenger seat, and speed out of her
driveway. At 2:10 a.m., the victim called the police and was taken to the hospital for a sexual
assault examination.

An expert in forensic DNA analysis testified that there was “very strong support” that
defendant contributed to the DNA material on both of the swabs taken from the victim’s labia
majora, which is “one of the outer layers” of the vagina. Cell phone records also showed that
defendant’s phone was physically located near the victim’s house shortly before the victim called
the police. Although defense counsel raised a consent-defense in her opening statement, defendant
chose not to testify in this case.

Defendant was convicted and sentenced, as stated earlier. Defendant now appeals.

II. INEFFECTIVE ASSISTANCE

Defendant first argues that defense counsel was ineffective for failing to present a consent-
defense or impeach witness testimony. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

Because defendant did not raise these ineffective-assistance claims in the trial court or in a
motion to remand for an evidentiary hearing in this Court, they are not preserved for appellate
review. See People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437 (2020); People v
Sabin (On Second Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000). “The question
whether defense counsel performed ineffectively is a mixed question of law and fact; this Court
reviews for clear error the trial court’s findings of fact and reviews de novo questions of
constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “A finding
is clearly erroneous when, although there is evidence to support it, the reviewing court, on the
whole record, is left with the definite and firm conviction that a mistake has been made.” People
v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008) (quotation marks and citation omitted),
amended 481 Mich 1201 (2008). But when a claim of ineffective assistance of counsel is not
preserved, “our review is limited to errors apparent on the record.” People v Unger, 278 Mich
App 210, 253; 749 NW2d 272 (2008).

B. ANALYSIS

In Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the
United States Supreme Court established a two-prong test that a defendant must meet to prove that
his or her counsel’s assistance was so defective as to require a new trial. The test is as follows:

First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

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Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. [Id.]

Stated more simply, “[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. To show that a counsel’s performance was deficient, a defendant “must identify the acts
or omissions of counsel that are alleged not to have been the result of reasonable professional
judgment.” Id. at 690. “The court must then determine whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range of professionally competent
assistance.” Id

Because there are countless ways to provide effective assistance in a given case, courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.” Id.
at 689 (quotation marks and citation omitted). “Reviewing courts are not only required to give
counsel the benefit of the doubt with this presumption, they are required to affirmatively entertain
the range of possible reasons that counsel may have had for proceeding as he or she did.” People
v Gioglio (On Remand), 296 Mich App 12, 22; 815 NW2d 589 (2012) (quotation marks and
citation omitted), vacated in part on other grounds 493 Mich 864 (2012). This Court has further
stated that

a reviewing court must conclude that the act or omission of the defendant’s trial
counsel fell within the range of reasonable professional conduct if, after
affirmatively entertaining the range of possible reasons for the act or omission
under the facts known to the reviewing court, there might have been a legitimate
strategic reason for the act or omission. [Id. at 22-23.]

1. CONSENT DEFENSE

Defendant first argues that defense counsel was ineffective for failing to present a consent-
defense. This argument lacks merit.

In defense counsel’s opening statement, she argued that the sexual encounter between
defendant and the victim had been entirely consensual; she even recited a version of the alleged
consensual events. At the end of the trial, defense counsel requested that the trial court include a
jury instruction regarding consent, reasoning that although defendant did not testify, “[t]here’s
been enough on this record to indicate that, our defense is, consent.” The trial court denied that
request, stating that there was no evidence of consent in the record. The trial court also stated that
defense counsel could not argue consent in her closing argument because “she can only argue
evidence, facts and evidence.” Nevertheless, during her closing argument, defense counsel argued
that the prosecutor had “not presented anything that proves that this was a sexual assault. That
this was not consensual. That this was forced.” The prosecutor objected, and the trial court
instructed the jury as follows: “Ladies and gentlemen, the only thing that a[n] attorney can argue,

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in closing, is something that comes from the evidence. And even though the attorneys’ arguments
are not evidence, there was no evidence in this trial of consent. Okay? No evidence presented.”

Accordingly, defense counsel made a serious effort to include a consent defense at trial.
Defendant’s appellate counsel argues that there was no tactical reason for defendant to not testify
given that “[h]e, and he alone, could testify to consent.” But “the ultimate decision whether to
testify at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419; 803
NW2d 217 (2011). Defense counsel’s performance cannot be considered defective simply because
defendant chose not to exercise his right to testify; in fact, defense counsel’s acquiescence to
defendant’s constitutional decision displays that she was exercising reasonable professional
judgment. See Strickland, 466 US at 687, 690.

Furthermore, although “consent can be utilized as a defense to negate the elements of force
or coercion” associated with a CSC charge, People v Waltonen, 272 Mich App 678, 689; 728
NW2d 881 (2006), a consent defense is not available for a CSC-III charge under MCL
750.520d(1)(c) because consent requires that a person agree to a sexual act freely and willingly,
whereas a person who is “mentally incapable, mentally incapacitated, or physically helpless,”
pursuant to MCL 750.520d(1)(c), is not able to willingly agree to a sexual act. See MCL
750.520a(j), (k), and (m). Therefore, because defendant was only convicted of one count of CSC-
III, pursuant to MCL 750.520d(1)(c) (incapacitated/physically helpless victim)—a charge for
which consent is not a valid defense—defendant cannot prove that he was prejudiced by the lack
of a consent defense in this case. See Strickland, 466 US at 687, 694.

1. IMPEACHMENT

Defendant further argues that defense counsel was ineffective for failing to properly
impeach Byrd’s testimony with a Cash App document. This argument lacks merit.

During cross-examination, Byrd: (1) testified that after the incident, defendant had texted
her, but she had not texted him; and (2) denied ever sending defendant a request for money on
Cash App. In an effort to impeach Byrd’s testimony, defense counsel attempted to introduce a
document purportedly showing that about three weeks after the incident, Byrd sent defendant a
request for $20 on Cash App. After the prosecutor stated that she had never seen the document
before, the trial court dismissed the jury. Defense counsel stated that defendant’s previous trial
counsel texted her the document—a screen shot of the alleged request—at 9:00 a.m. the morning
of trial. The trial court told defense counsel that she should have promptly shown the document
to the prosecutor, and the prosecutor argued that she would have attempted to verify the request
had she known that the screen shot existed. The trial court then inspected the document and asked
how defense counsel knew that it was a request sent to defendant considering that it did not name
who the request was sent to. Defense counsel stated that she did not know, but that her detective
was going to look into it. The trial court responded as follows: “So, that’s the end of that. There’s
nothin[g] on there that says that twenty dollars was to your client. Nothing. That just says she
Cash Apped twenty dollars. That’s it. So, it’s not, it’s not impeachment.” The trial court further
found that the document was not relevant to the case considering that “there’s nothing on there
that says anything that had to do with your client, at all.”

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After the parties returned from their lunch break, defense counsel stated that she had
reviewed defendant’s Cash App activity log and verified that Byrd did in fact send the request to
defendant. Defense counsel argued that the documents showed that contrary to Byrd’s testimony,
she continued to have contact with defendant after the incident. The trial court and the parties
engaged in a lengthy discussion regarding whether extrinsic evidence could be used to impeach a
witness on a collateral matter and whether the matter was in fact a collateral matter. The trial court
ruled that because this issue had “nothin[g] to do with the sexual assault,” it was a collateral issue,
and there was no impeachment on collateral issues. The trial court then brought the jury back into
the courtroom and stated as follows: “All right. Uhm, uhm, any—jurors, any, uh, testimony
regarding any possible Cash App, or whatever, is to be stricken from the record. It’s not relevant
to the case. All right. Move on.”

Accordingly, defense counsel made a serious effort to impeach Byrd with the Cash App
document. But even assuming, arguendo, that defense counsel provided deficient performance by
not promptly sharing the Cash App document with the prosecutor, defendant cannot meet the
second prong of the Strickland test—prejudice to the defense.

On appeal, defendant argues that “had defense counsel been properly prepared for trial [by
timely presenting the Cash App document to the prosecutor], the Cash App evidence would have
been admitted.” Yet defendant provides no law in support of that statement and instead contradicts
his position by: (1) conceding that “the judge’s rulings on notice and relevance may have been
correct,” and (2) arguing that defense counsel should have raised the issue outside the jury’s
presence to avoid the appearance that defense counsel acted improperly. When claiming
ineffective assistance because of defense counsel’s unpreparedness, a defendant must show
prejudice resulting from the lack of preparation. People v Caballero, 184 Mich App 636, 640; 459
NW2d 80 (1990). In this case, defendant concedes that the trial court’s evidentiary ruling may
have been correct, and defendant does not provide any argument or caselaw to the contrary. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation
of supporting authority.” People v Iannucci, 314 Mich App 542, 545; 887 NW2d 817 (2016)
(quotation marks and citation omitted). Accordingly, defendant has failed to show that counsel’s
timeliness in sharing the evidence would have resulted in a different outcome, and therefore, that
“but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 US at 694.

III. PROSECUTORIAL ERROR—INEFFECTIVE ASSISTANCE

In a Standard 4 brief,2 defendant further argues that he was denied a fair trial because of an
error contained in the prosecutor’s closing argument, and that defense counsel was ineffective for
failing to: (1) object to such error, (2) ask the trial court to determine how many jurors saw the
statement, and (3) request a mistrial. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

2
See Administrative Order No. 2004-6, 471 Mich ci, cii, Standard 4 (2004).

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Because defense counsel contemporaneously objected to the alleged instance of
prosecutorial impropriety, that issue is preserved for appellate review. See Unger, 278 Mich App
at 234-235. “Issues of prosecutorial misconduct are reviewed de novo to determine whether the
defendant was denied a fair and impartial trial.” People v Bennett, 290 Mich App 465, 475; 802
NW2d 627 (2010). “Further, allegations of prosecutorial misconduct are considered on a case-by-
case basis, and the reviewing court must consider the prosecutor’s remarks in context.” Id.

Because defendant did not raise his alternative ineffective-assistance-of-counsel claims in
the trial court or in a motion to remand for an evidentiary hearing in this Court, they are not
preserved for appellate review. See Abcumby-Blair, 335 Mich App at 227; Sabin, 242 Mich App
at 658. When a claim of ineffective assistance of counsel is not preserved, “our review is limited
to errors apparent on the record.” Unger, 278 Mich App at 253.

B. PROSECUTORIAL ERROR

As an initial matter, we submit that the term “prosecutorial error” is more appropriate than
the term “prosecutorial misconduct” in this case. See People v Cooper, 309 Mich App 74, 87-88;
867 NW2d 452 (2015) (“Although we recognize that the phrase ‘prosecutorial misconduct’ has
become a term of art in criminal appeals, we agree that the term ‘misconduct’ is more appropriately
applied to those extreme—and thankfully rare—instances where a prosecutor’s conduct violates
the rules of professional conduct or constitutes illegal conduct.”) (citations omitted).

“Generally, to prevail on a claim of prosecutorial misconduct, a defendant must show that
he was denied a fair and impartial trial.” People v Solloway, 316 Mich App 174, 201; 891 NW2d
255 (2016). “A prosecutor can deny a defendant his or her right to a fair trial by making improper
remarks that so infect the trial with unfairness as to make the resulting conviction a denial of due
process.” People v Lane, 308 Mich App 38, 62; 862 NW2d 446 (2014) (quotation marks and
citation omitted). “We must evaluate instances of prosecutorial misconduct on a case-by-case
basis, reviewing the prosecutor’s comments in context and in light of the defendant’s arguments.”
Id. at 62-63. “Generally, prosecutors are accorded great latitude regarding their arguments, and
are free to argue the evidence and all reasonable inferences from the evidence as they relate to
their theory of the case.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). “A
defendant is entitled to a fair trial, not a perfect one.” Solloway, 316 Mich App at 201.

In this case, after the parties finished presenting their closing arguments, and the jury was
excused from the courtroom, defense counsel made a record about a specific slide that was
contained in the prosecutor’s closing-argument slideshow; defense counsel noted that the slide
stated that “defendant admitted to a sexual act.” After reviewing the slide, the prosecutor agreed
that there was “a slide that says, yes, D.N.A. identifies him. And then, it did have the, he admits
to sexual acts. And it—I do know what you’re saying now. And I clicked it, really fast, past it.”
The prosecutor apologized, acknowledging that although that portion of the slide was meant to
stay “hidden,” it was shown to the jury. Defense counsel acknowledged that the slide was shown
quickly and that the prosecutor did not intentionally display the statement. The trial court asked
defense counsel what she wanted to do, and she responded that she “just want[ed] to put that on
the record” because defendant was concerned when he saw it. The trial court asked defense
counsel if she wanted the court to tell the jury that there was no admission by defendant, and
defense counsel stated that the court could do “whatever [it] want[s].” The trial court again

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questioned whether defense counsel wanted the court “to say somethin[g] to the jury, and point it
out,” and defense counsel responded, “No.”

The prosecutor clearly erred by including the statement in her slideshow; the prosecutor
even acknowledged as much on the record. But even though the prosecutor’s statement was
improper, any prejudice caused by the statement was alleviated by the trial court’s jury
instructions. See People v Thomas, 260 Mich App 450, 454-455; 678 NW2d 631 (2004) (“[T]he
trial court instructed the jurors that they must decide the case on the evidence and that the remarks
of counsel were not evidence. This instruction was sufficient to eliminate any prejudice that might
have resulted from the prosecutor’s remarks”). For example, the trial court instructed the jury that:
(1) the jury had to start with the presumption that defendant was innocent; (2) it was the
prosecutor’s burden to prove the charges beyond a reasonable doubt; (3) the jury could not consider
the fact that defendant had not testified; (4) the attorney’s arguments were not evidence; and (5)
the jury “should only accept the things the lawyers say that are supported by the evidence, or by
your own common sense, and general knowledge.” “Jurors are presumed to follow their
instructions, and instructions are presumed to cure most errors.” People v Abraham, 256 Mich
App 265, 279; 662 NW2d 836 (2003). Moreover, defendant has failed to show that the jury’s
guilty verdict was made on the basis of the prosecutor’s closing statements, opposed to the strong
DNA and cell phone evidence in support of his guilt.

C. INEFFECTIVE ASSISTANCE

Contrary to defendant’s argument on appeal, defense counsel did object to the prosecutor’s
error. Although defense counsel discussed the error with the trial court and the prosecutor, she
ultimately declined to have the trial court give the jury an additional instruction beyond the general
instructions that attorney’s arguments were not evidence. Defense counsel acknowledged that the
slide was not intentionally injected into the case, and that it only appeared for a brief moment.

“Trial management is the lawyer’s province: Counsel provides his or her assistance by
making decisions such as what arguments to pursue, what evidentiary objections to raise, and what
agreements to conclude regarding the admission of evidence.” People v Klungle, ___ Mich App
__, _; _NW3d __ (2024) (Docket Nos. 364125; 367795); slip op at 3 (quotation marks and
citation omitted). Because there are countless ways to provide effective assistance in a given case,
courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.”
Strickland, 466 US 668 at 689 (quotation marks and citation omitted). “Reviewing courts are not
only required to give counsel the benefit of the doubt with this presumption, they are required to
affirmatively entertain the range of possible reasons that counsel may have had for proceeding as
he or she did.” Gioglio, 296 Mich App at 22 (quotation marks and citation omitted).

In this case, defense counsel chose to not draw the jury’s attention back to the statement,
which is reasonable considering that the slide was only shown for a brief moment and the statement
was not read to the jury. “[T]here are times when it is better not to object and draw attention to an
improper comment.” Unger, 278 Mich App at 242 (quotation marks and citation omitted). “We
will not substitute our judgment for that of counsel on matters of trial strategy, nor will we use the
benefit of hindsight when assessing counsel’s competence.” Id. at 242-243. Defendant has simply

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failed to overcome the strong presumption that defense counsel’s performance was strategic.
Moreover, a “defendant is required to demonstrate prejudice to obtain relief on a claim of
ineffective assistance.” Thomas, 260 Mich App at 458. We conclude that “any minimal prejudice
was alleviated by the trial court’s instruction to the jury that the case was to be decided on the
evidence and that the comments of counsel were not evidence.” Id. Accordingly, defendant has
not shown that there is a reasonable probability that, but for counsel’s alleged deficient
performance, the result of the proceeding would have been different. See Unger, 278 Mich App
at 243.

IV. CUMULATIVE ERROR

In a Standard 4 brief, defendant further argues that the cumulative effect of errors infringed
on his right to a fair trial. The cumulative effect of several minor errors may warrant reversal even
when individual errors in the case would not warrant reversal. People v Knapp, 244 Mich App
361, 388; 624 NW2d 227 (2001). But because we find no error in defendant’s jury trial, we also
find that there was not cumulative error.

V. SENTENCING—OV 19

Defendant further argues that he is entitled to resentencing because the trial court erred by
relying on ex parte communications with the jury and improperly considering acquitted conduct
when assigning 10 points for offense variable (OV) 19. We agree.

A. PRESERVATION AND STANDARD OF REVIEW

“A claim that the sentencing guidelines range was improperly calculated is preserved by
raising the issue at sentencing, in a motion for resentencing, or in a motion to remand.” People v
Sours, 315 Mich App 346, 348; 890 NW2d 401 (2016) (quotation marks and citation omitted).
Because defense counsel objected to the assignment of 10 points for OV 19 at sentencing—arguing
that defendant’s actions did not constitute “flight” and emphasizing that the jury did not find
defendant guilty of unlawfully driving away—this issue is preserved for appellate review. See id.
“We review factual findings concerning the sentencing variables for clear error.” People v Hines,
___ Mich App __, _; __ NW3d ___ (2025) (Docket No. 363151); slip op at 10. “Such
findings must be supported by a preponderance of the evidence.” Id. “Clear error exists when we
are left with a definite and firm conviction that a mistake was made.” Id. (quotation marks and
citation omitted). “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.” Hines, ___ Mich App at ___; slip op at
10-11 (quotation marks and citation omitted).

B. ANALYSIS

“Although the sentencing guidelines are advisory, trial courts must still properly score the
guidelines and must consider them when sentencing a defendant.” People v Dingee, ___ Mich
App __, _; __ NW3d ___ (2025) (Docket No. 365531); slip op at 10. A defendant is entitled
to be resentenced if “there has been a scoring error or inaccurate information has been relied upon.”
People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006).

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“At their core, OVs seek to tailor a recommended sentence to a particular case.” People v
Morris, 22 NW3d 527, 528 (Mich, 2025) (quotation marks and citation omitted). “They do so by
generating a sentencing range meant to reflect the particular facts of the case based on factors that
the Legislature has deemed relevant to sentencing.” Id. (quotation marks and citation omitted).
At issue here is OV 19, which considers a “threat to the security of a penal institution or court or
interference with the administration of justice or the rendering of emergency services.” MCL
777.49. The assignment of 10 points for OV 19 is appropriate in cases in which the defendant
“otherwise interfered with or attempted to interfere with the administration of justice, or directly
or indirectly violated a personal protection order.” MCL 777.49(c). Conversely, the assignment
of zero points for OV 19 is appropriate in cases in which the defendant “did not threaten the
security of a penal institution or court or interfere with or attempt to interfere with the
administration of justice or the rendering of emergency services by force or threat of force.” MCL
777.49(d). “A person interferes with the administration of justice if he or she does anything to
hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes
by judicial process.” Dingee, ___ Mich App at ___; slip op at 10 (quotation marks and citation
omitted).

In this case, defendant’s sentencing information report assigned zero points for OV 19.
Nevertheless, the prosecution requested that 10 points be assigned for OV 19. Defense counsel
argued that that defendant’s actions did not constitute “flight” and emphasized that the jury did not
find defendant guilty of unlawfully driving away. The trial court responded as follows:

But he was found not guilty of that, and the Court spoke to the jury, only
because they thought that the daughter might have allowed him to drive the car.

That’s where they hung up.

It’s not that they didn’t think it was him.

‘[Be]Cause clearly, they thought it was him, [be]cause they found him
guilty of the sexual conduct.

What they said, is, when they, when he got in the car, is they weren’t sure
that the daughter had allowed him to drive the car.

And that’s what they, it, it wasn’t a issue that they didn’t believe it was him.

It was the issue that they thought the daughter might have given him
permission.

So, well, the Court having presided over it, the victim had indicated that
this, that [defendant], when she pushed him off of her, he took off running.

And she chased him.

And he fled the house.

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He ran through the house, out the side door, jumped in her car, which she
did not give him permission to get in, and drove off, with her daughter in it.

And there was testimony.

There was testimony about the phones.

They were together, at some point, at the same area where the young lady
woke up.

And then, his phone left.

So, and the flight instruction was given, at trial.

So that bein[g] the case, the Court will score, uhm, for flight.

Accordingly, the trial court assigned 10 points for OV 19. As an initial matter, a plain reading of
OV 19 does not support the trial court’s assignment of 10 points. The record is clear that when
assigning 10 points for OV 19, the trial court considered defendant’s alleged flight from the crime
scene as an interference or attempted interference with the administration of justice. See MCL
777.49(c). The trial court relied on the victim’s testimony that when she pushed defendant off her,
he ran through her house, exited the side door, entered the victim’s car, and drove off. In People
v Hershey, 303 Mich App 330, 343-344; 844 NW2d 127 (2013), this Court explained that

[d]ecisions of both this Court and our Supreme Court have held the following
conduct to constitute an interference or attempted interference with the
administration of justice: providing a false name to the police, threatening or
intimidating a victim or witness, telling a victim or witness not to disclose the
defendant’s conduct, fleeing from police contrary to an order to freeze, attempting
to deceive the police during an investigation, interfering with the efforts of store
personnel to prevent a thief from leaving the premises without paying for store
property, and committing perjury in a court proceeding.

In this case, there was no interfering with the administration of justice when defendant simply fled
the victim’s house; indeed, he did nothing to “hamper, hinder, or obstruct the act or process of
administering judgment of individuals or causes by judicial process.” Dingee, ___ Mich App at
___; slip op at 10 (quotation marks and citation omitted). To conclude that defendant’s decision
to leave the scene of the alleged crime is akin to fleeing the police or providing the police with a
false name to derail their investigation, see Hershey, 303 Mich at 343-344, is a great stretch. If
this were true, every alleged perpetrator would be assigned 10 points under OV 19 for not staying
at the site of the alleged criminal act. This is not what OV 19 is intended to address.

On appeal, defendant argues that he is entitled to resentencing because the trial court erred
by relying on ex parte communications with the jury and improperly considering acquitted conduct
when assigning 10 points for OV 19. We also agree.

In People v Beck, 504 Mich 605, 629; 939 NW2d 213 (2019), the Michigan Supreme Court
held that “due process bars sentencing courts from finding by a preponderance of the evidence that

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a defendant engaged in conduct of which he was acquitted.” The Court explained that “when a
jury has specifically determined that the prosecution has not proven beyond a reasonable doubt
that a defendant engaged in certain conduct, the defendant continues to be presumed innocent.”
Id. at 626. Accordingly, “[t]o allow the trial court to use at sentencing an essential element of a
greater offense as an aggravating factor, when the presumption of innocence was not, at trial,
overcome as to this element, is fundamentally inconsistent with the presumption of innocence
itself.” Id. at 626-627 (quotation marks and citation omitted).

This Court has since held that although trial courts retain jurisdiction to consider uncharged
conduct at sentencing, “trial courts cannot make factual findings at sentencing based on ‘acquitted
conduct,’ ” meaning “any conduct . . . underlying charges of which [the defendant] had been
acquitted.” People v Beesley, 337 Mich App 50, 61-62; 972 NW2d 294 (2021) (quotation marks
and citation omitted; alteration in original). This Court has clarified that “a sentencing court may
not rely even in part on acquitted conduct when imposing a sentence for the defendant’s
conviction,” People v Ventour, 349 Mich App 417, 434; 27 NW3d 660 (2023) (quotation marks
and citation omitted), and “if the sentencing court specifically reference[s] acquitted offenses as
part of its sentencing rationale, a Beck violation [is] apparent,” Beesley, 337 Mich App at 63
(quotation marks and citation omitted). This Court specifically “look[s] at the conduct actually
disputed at trial to determine the basis of the jury’s acquittal and whether the evidence the trial
court considered at sentencing was consistent with that acquittal.” People v Boukhatmi, ___ Mich
App __, _; _NW3d __ (2024) (Docket No. 363998); slip op at 6.

For example, in People v Jackson, ___ Mich App __, _; _NW3d __ (2024) (Docket
No. 366078); slip op at 4, the defendant was charged with, and acquitted of, felonious assault and
felony-firearm. This Court explained that “[t]his reflects that the jury was not convinced beyond
a reasonable doubt that defendant possessed, nor used, a firearm.” Id. Accordingly, this Court
held that “[b]ecause the trial court’s scoring of OVs 1 and 2 required that defendant had used, or
at least possessed, a firearm in his assault on [the victim], both of those OVs should have been
scored at zero.” Id.

In this case, the jury found defendant not guilty of unlawfully driving away, which
embodied the trial court’s consideration of defendant’s alleged flight from the crime scene. The
trial court acknowledged that defendant was charged with, and acquitted of, unlawfully driving
away a motor vehicle, pursuant to MCL 750.413.3 But the trial court explained that the jurors later
informed the court that they only found defendant not guilty of that offense “because they thought
that [Byrd] might have allowed [defendant] to drive the car.” Nevertheless, because: (1) “a
sentencing court may not rely even in part on acquitted conduct when imposing a sentence for the
defendant’s conviction,” Ventour, 349 Mich App at 434 (quotation marks and citation omitted;
emphasis added); and (2) a sentencing court’s reference to acquitted offenses as part of its
sentencing rationale is an indicator of a Beck violation, Beesley, 337 Mich App at 63, we conclude

3
The essential elements of unlawfully driving away a motor vehicle are as follows: “(1) possession
of a vehicle, (2) driving the vehicle away, (3) that the act is done wilfully, and (4) the possession
and driving away must be done without authority or permission.” People v Hendricks, 200 Mich
App 68, 71; 503 NW2d 689 (1993), aff’d 446 Mich 435 (1994).

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that defendant is entitled to resentencing. As indicated in Beck, 504 Mich at 626-627 (quotation
marks and citation omitted), “[t]o allow the trial court to use at sentencing an essential element of
a greater offense as an aggravating factor, when the presumption of innocence was not, at trial,
overcome as to this element, is fundamentally inconsistent with the presumption of innocence
itself.” Therefore, the trial court erred by considering such acquitted conduct at sentencing, and
defendant is entitled to resentencing. See Beck, 504 Mich at 626-627, 629; Ventour, 349 Mich
App at 434; Beesley, 337 Mich App at 63; see e.g., Jackson, ___ Mich App at ___; slip op at 4.

VI. CONCLUSION

We affirm defendant’s convictions, reverse defendant’s sentence, and remand to the trial
court to resentence defendant under correctly scored sentencing guidelines. We do not retain
jurisdiction.

/s/ Kathleen A. Feeney
/s/ Kristina Robinson Garrett
/s/ Mariam S. Bazzi

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