People of Michigan v. Charles Bufford Burns Jr ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 28, 2023
Plaintiff-Appellee,
v Nos. 359317; 359318; 359319
Cass Circuit Court
CHARLES BUFFORD BURNS, JR., LC Nos. 20-010225-FH; 20-
010226-FH; 20-010227-
FH
Defendant-Appellant.
Before: MURRAY, P.J., and CAMERON and PATEL, JJ.
PER CURIAM.
In these consolidated1 appeals, defendant appeals as of right his multiple jury trial
convictions. In Docket No. 359317, defendant was convicted of unlawful imprisonment, MCL
750.349b; assault by strangulation or suffocation, MCL 750.84; and assault with a dangerous
weapon (felonious assault), MCL 750.82. The trial court sentenced defendant to 10 to 15 years’
imprisonment for unlawful imprisonment, seven to 10 years’ imprisonment for assault by
strangulation, and three to four years’ imprisonment for felonious assault.2
In Docket No. 359318, defendant was convicted of third-offense domestic violence, MCL
750.81, and sentenced to three years and two months to five years’ imprisonment. In Docket No.
359319, defendant was convicted of assault by strangulation, MCL 750.84; and felonious assault,
MCL 750.82. He was sentenced as a fourth-offense habitual offender, MCL 769.12, to 12 years
1
People v Burns, unpublished order of the Court of Appeals, entered November 23, 2021 (Docket
Nos. 359317; 359318; 359319).
2
Defendant was originally sentenced to 19 to 40 years’ imprisonment for unlawful imprisonment;
12 years and eight months to 30 years’ imprisonment for assault by strangulation; and four years
and 10 months to 15 years’ imprisonment for felonious assault. Because the prosecutor failed to
notify defendant of its intent to seek an enhanced sentence, the trial court later resentenced
defendant on these convictions.
-1-
and 10 months to 30 years’ imprisonment for assault by strangulation, and four years and 10
months to 15 years’ imprisonment for felonious assault. Finding no error regarding defendant’s
convictions and sentences, we affirm.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
These cases arise from a series of attacks on the victim by defendant. The two lived
together off-and-on in 2019 and 2020. On several occasions, they smoked methamphetamine and
drank alcohol. While living with defendant, the victim reported numerous violent acts by
defendant. Defendant was arrested and charged. These appeals followed his jury trial convictions.
II. PRIOR INCONSISTENT STATEMENT
Defendant’s first argument relates to the interplay of certain testimony at trial. He contends
that the trial court abused its discretion when it denied the admission of the victim’s alleged prior
inconsistent statement because he claims the statement was admissible under MRE 613. He also
argues that defense counsel was ineffective for failing to challenge the prosecutor’s objection to
the testimony. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
We review the trial court’s decision to admit evidence for an abuse of discretion. People
v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). A court abuses its discretion when its
“decision falls outside the range of principled outcomes.” People v Magnant, 508 Mich 151, 161;
973 NW2d 60 (2021).
Preliminary questions of law, such as whether a statute or rule permits the admission of
evidence, are reviewed de novo. Lukity, 460 Mich at 488. “[I]t is an abuse of discretion to admit
evidence that is inadmissible as a matter of law.” Id. Further, “[t]he rules of evidence are
interpreted according to the principles of statutory interpretation. Accordingly, if the plain
language of a rule of evidence is unambiguous, we must enforce the meaning expressed, without
further judicial construction or interpretation.” People v Snyder, 301 Mich App 99, 104-105; 835
NW2d 608 (2013) (quotation marks and citations omitted).
Defendant also claims defense counsel was ineffective for failing to properly respond to
the prosecutor’s objection regarding MRE 613. Because defendant did not move the trial court for
a new trial or request a Ginther3 hearing, this issue is unpreserved. People v Heft, 299 Mich App
69, 80; 829 NW2d 266 (2012). “The question of whether a defendant was denied the effective
assistance of counsel is a mixed question of fact and constitutional law. Questions of fact are
reviewed for clear error and questions of constitutional law are reviewed de novo.” People v Loew,
340 Mich App 100, 119-120; 985 NW2d 255. Where the ineffective-assistance-of-counsel issue
is not preserved, this Court’s review “is limited to errors apparent on the record.” People v
Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
3
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-2-
B. LAW AND ANALYSIS
Defendant’s admissibility argument relies on two exchanges during trial. The first
exchange was during defense counsel’s cross-examination of the victim:
Q. You weren’t wanting this case pursued?
A. No.
Q. Did you tell anybody that the incidents didn’t occur?
A. No, I—um, I think I just say it [sic] to what—to, um, an officer when I
was arrested just not too long ago.
Q. You told an officer that—that it didn’t occur?
A. No, I didn’t say that, but—
Q. What did—
A. —something in that lines [sic], I guess.
Q. —what did you tell them?
A. I was bein’ a smartass and I said—I know I said, um, well, you can say
I lied—lied if you want to, I don’t care; that’s what I said, something like that.
Q. You said you could tell ‘em I lied, I don’t care?
A. Um-hum.
Q. And what were you meaning by that?
A. I just didn’t want him to ruin his whole life over this crazy incident.
Q. Okay, do you remember what officer you told that to?
A. I don’t know his name, but he’s bigger—he was the one at Pam—Pam—
Pam Waterson’s house incident, that officer.
* * *
Q. Okay. Did you tell anybody else that it didn’t happen?
A. Huh-uh
Q. You didn’t tell anybody that, you know, you had made it up because you
thought [defendant] cheated on you?
-3-
A. No, never.
The second exchange occurred during defense counsel’s direct examination of defendant’s
mother. Specifically, defense counsel asked defendant’s mother whether the victim ever told her
that the allegations in this case were false:
A. She talked to me about it and said it wasn’t true.
Q. She said it wasn’t true?
A. That’s what she said.
Q. What did she say, specifically?
The prosecutor objected on the basis of inadmissible hearsay and the trial court sustained the
objection.
MRE 613 concerns the admission of prior inconsistent statements. It reads, in relevant
part:
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny the same
and the opposite party is afforded an opportunity to interrogate the witness thereon,
or the interests of justice otherwise require. This provision does not apply to
admissions of a party-opponent as defined in Rule 801(d)(2). [MRE 613(b).]
Such statements “are admissible only for impeachment purposes and, since they would otherwise
be hearsay, cannot be used as substantive evidence of the truth of the matter asserted.” People v
Kohler, 113 Mich App 594, 599; 318 NW2d 481 (1981). To impeach a witness on the basis of a
prior inconsistent statement, the proponent should first establish a proper foundation “by
questioning the witness concerning the time and place of the statement and the person to whom it
was allegedly made.” People v Rodriguez, 251 Mich App 10, 34; 650 NW2d 96 (2002).
Defendant claims on appeal that he laid the proper foundation to admit the victim’s prior
inconsistent statement under MRE 613. In his view, the victim’s denials during cross-examination
were adequate for admission of this statement. Looking to defense counsel’s cross-examination
of the victim, counsel plainly did not ask the victim about “the time and place of the statement.”
Nor did counsel ask the victim to whom she allegedly made the statement. By neglecting to elicit
this line of questioning, defense counsel failed to lay the proper foundation for the victim’s
purported prior inconsistent statement. Therefore, the trial court did not abuse its discretion in
denying admission of the statement.
Alternatively, defendant argues that defense counsel was ineffective for failing to properly
respond to the prosecutor’s objection to the admission of this prior statement. “Trial counsel is
presumed effective, and defendant must overcome a strong presumption that a trial counsel’s
performance was sound trial strategy.” Loew, 340 Mich App at 120. A successful ineffective-
assistance-of-counsel argument requires a showing “that counsel’s representation fell below an
objective standard of reasonableness” and that the defendant “was prejudiced by counsel’s
-4-
performance.” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015) (quotation marks
and citation omitted). “Ineffective assistance of counsel cannot be predicated on the failure to
make a frivolous or meritless motion.” People v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003).
Again, the victim’s prior inconsistent statement was inadmissible because defense counsel
failed to lay the proper foundation during cross-examination of the victim. Any argument by
defense counsel challenging the trial court’s denial of the prior inconsistent statement would have
been meritless. Therefore, defense counsel was not ineffective.
III. PROSECUTORIAL ERROR
Defendant next argues that he was denied a fair trial because of prosecutorial error.4 He
claims that during rebuttal closing argument, the prosecutor inflamed the jury by alleging for the
first time that defendant sold methamphetamine to the victim. Alternatively, defendant claims
defense counsel was ineffective for failing to object to the prosecutor’s statements. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
A defendant preserves a claim of prosecutorial error by making a timely and specific
objection to the prosecutor’s conduct. People v Unger, 278 Mich App 210, 234-235; 749 NW2d
272 (2008). Defendant did not object to the prosecutor’s statements during closing arguments.
Therefore, this issue is unpreserved for our review. Id. Unpreserved claims of prosecutorial error
are reviewed for plain error affecting substantial rights. People v Abraham, 256 Mich App 265,
274; 662 NW2d 836 (2003). “Reversal . . . is warranted only when a plain error resulted in the
conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public
reputation of the judicial proceedings.” Id. at 274-275.
Defendant also argues defense counsel was ineffective for failing to object to the
prosecutor’s statements. Because defendant did not move for a new trial on this basis or request a
Ginther hearing, this issue is unpreserved for our review. Heft, 299 Mich App at 80.
B. LAW AND ANALYSIS
Defendant’s challenge arises from the following statement by the prosecutor to the jury
during rebuttal closing arguments:
Let’s talk abut [sic] [defendant]. [Defendant] was living in a two[-]bedroom
camper that was put there in the ‘50s, according to him. He says that throughout
this time period there were up to six people living there, at many different times
4
Defendant identifies the prosecutor’s actions as “prosecutorial misconduct.” This phrase is a
misnomer for any actions not involving violations of the rules of professional conduct or illegal
activity by the prosecutor. Cooper, 309 Mich App at 87-88. Instead, these lesser violations should
be called “prosecutorial error.” Because defendant does not allege violations of the rules of
professional conduct or illegal activity by the prosecutor, we refer to the challenged actions as
“prosecutorial error.”
-5-
they would flop through there when he was using meth . . . all these people coming
through, and that was when [the victim] was around, also. He’s got a camera system
on his camper that he’s living in. So all these people are living in and out of this
camper. And why are they going there? Because they were getting their meth from
[defendant].
When you think about domestic violence, when you think about that abusive
relationship, when you think about why a person who’s being savaged and beaten,
choked over and over again, why is this person going back? You heard the
testimony from the officers about their experience in dealing with cases of domestic
violence, and that they’ve seen this over and over again where it might not make
sense, but you have this domestic relationship and this victim, even though she’s
been put through all this, she’s going to keep going back to him. Now when you
add the component of methamphetamine into that, because where do you think that
she was getting her meth from? Same place all those other people were getting it
from. They were getting it from [defendant], and it’s an extremely addictive drug
and they’re coming back, and that’s one more aspect of control that he has over
her. [Emphasis added.]
According to defendant, these statements amounted to prosecutorial error because there was “[n]ot
one shred of evidence introduced at trial” indicating defendant provided methamphetamine to the
victim.
Throughout trial, the prosecutor attempted to elicit an admission from defendant and other
witnesses that defendant was supplying house guests with methamphetamine. These attempts were
unsuccessful. Therefore, the prosecutor’s remarks during rebuttal argument impermissibly
expanded the record. Although we are troubled by the prosecutor’s argument, we conclude that it
is not cause for reversal. Again, reversal in cases on unpreserved prosecutorial error is only
warranted if it results in the conviction of an actually innocent defendant or the error “seriously
affected the fairness, integrity, or public reputation” of the proceedings. Abraham, 256 Mich App
at 274-275. Here, defendant does not contend he was actually innocent. Similarly, the purported
error did not affect the fairness, integrity, or public reputation of the proceedings. Indeed, the jury
was instructed that the arguments made by the attorneys did not constitute evidence. “Jurors are
presumed to follow their instructions, and it is presumed that instructions cure most errors.”
People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011). Defendant’s unsupported
allegation that the prosecutor’s statement was so “inflammatory” to the jury is insufficient to
overcome this presumption. Because the jury was properly instructed, defendant’s contention that
defense counsel was ineffective for failing to object to the prosecutor’s statement is also meritless.
Riley, 468 Mich at 142.
IV. DEPARTURE SENTENCE
Defendant next argues the trial court erred when it exceeded the minimum sentencing
guideline range and sentenced defendant to 10 to 15 years’ imprisonment for unlawful
imprisonment. We disagree.
-6-
A. STANDARD OF REVIEW
A trial court’s sentencing decision is reviewed for an abuse of discretion. People v
Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). A court abuses its discretion if the
sentence is not “proportionate to the seriousness of the circumstances surrounding the offense and
the offender.” Id. at 460 (quotation marks and citation omitted). Although the sentencing
guidelines are highly relevant to the question of reasonableness of a sentence, the guidelines do
not carry with them a presumption that a departure sentence is unreasonable. Id. at 475. Rather,
“the key test is whether the sentence is proportionate to the seriousness of the matter, not whether
it departs from or adheres to the guidelines’ recommended range . . . .” Id. (quotation marks and
citation omitted).
B. LAW AND ANALYSIS
“[T]o facilitate appellate review,” of a departure sentence, the trial court must “include[]
an explanation of why the sentence imposed is more proportionate to the offense and the offender
than a different sentence would have been.” People v Dixon-Bey, 321 Mich App 490, 525; 909
NW2d 458 (2017).
[R]elevant factors for determining whether a departure sentence is more
proportionate than a sentence within the guidelines range continue to include
(1) whether the guidelines accurately reflect the seriousness of the crime;
(2) factors not considered by the guidelines; and (3) factors considered by the
guidelines but given inadequate weight . . . . [Id. (citations omitted).]
Where a trial court “has abused its discretion in applying the principle of proportionality by failing
to provide adequate reasons for the extent of the departure sentence imposed,” this Court “must
remand to the trial court for resentencing.” Steanhouse, 500 Mich at 476.
The trial court articulated its justification of its departure sentence, stating:
[W]hen I look at the evidence that . . . I saw at the trial . . . the treatment that you
put the victim through in this matter is probably . . . the worst that I’ve ever been
involved with; I’m sure there are . . . worse, but the worst that I’ve been involved
with either as prosecutor or attorney or judge.
Obviously, the thing that’s concerning about these cases as well is it wasn’t
a one-time incident, it was an incident . . . that happened in January, then another
incident in April, and another incident in July which resulted in a . . . number of
cases and . . . really just some very, very severe injuries that were inflicted on the
victim here. And again, I think some of that was pointed out by the prosecutor; you
had hit her with a bat, you had burned her with a torch, you had struck her with
some objections [sic], you’d actually . . . locked her and screwed the door shut in
the house so that she couldn’t leave. At one point she was thrown out of a vehicle
naked, and . . . then you actually went, when she was finally able to escape,
you . . . were searching her out, and . . . it appeared you[r] intention was to bring
her back and keep her . . . under your control.
-7-
And so when I look at the cases, I know your attorney has indicated that
based on good behavior in prison, that the Court should sentence you at the bottom
of the guidelines; I believe that based on the actions that you’ve taken, that the
Court actually needs to deviate in your case, and it needs to do an upward deviation.
And what I’m going to do is based on the seriousness, and again, the fact that there
were three separate incidents, at least that were charged, and the severity of the
injuries, the you know, burning her with . . . fire, hitting her with a ball bat, all of
these on different occasions, and the way that you tried to manipulate her and keep
her under your control, I believe that a . . . departure above the guidelines is
appropriate. And so you’re very fortunate here, Mr. Burns, and . . . it’s interesting
because . . . it’s more a procedural issue; when I look at these three files . . . they
were all filed by the prosecutor’s office on the same date . . . They were all on the
docket at the same time, they were all prelim’d [sic] at the same time, and so for
you to not know that the prosecutor had wanted you sentenced as an habitual
fourth[-]offender is almost disingenuous. I understand the procedural aspect of it
because the notice wasn’t filed; I understand that aspect of it, but for . . . you to
believe that you that . . . for some reason on two files they didn’t they didn’t want
to file a habitual[-offender notice], it’s almost disingenuous and . . . it’s a procedural
issue and the Court is going to sentence you accordingly, and that’s why the Court
even addressed the top ends of the guidelines based on . . . the stipulation. But
when I look at the fact that the way these files were all tracked, there . . . couldn’t
have been any indication here, and when you look at your prior record, there’s not
any indication that you would not have known that you were subject to those
habitual fourth charges. You’re not going to be sentenced that way on these charges
as well, however, but I think your prior record is horrendous, as the prosecutor
indicated.
Defendant contends that the trial court’s reasoning for an upward departure was not
proportionate to the offense or defendant as the offender because the trial court considered factors
already considered in the scoring of the guidelines when it assessed points for offense variable
(OV) 3, OV 7, and OV 10. We will address each of defendant’s challenges in turn.
Defendant’s first argument that OV 3 already accounted for the severity of the victim’s
injuries is meritless. Defendant was assessed 10 points for OV 3. A trial court assesses 10 points
under OV 3 (physical injury to victim) for a victim’s “[b]odily injury requiring medical
treatment[.]” MCL 777.33(1)(d). OV 3 accounts for the infliction of physical injury but does not
address the extent of those injuries. Instead, the term “bodily injury” “encompasses anything that
the victim would, under the circumstances, perceive as some unwanted physically damaging
consequence.” People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). Further, the
term “requiring medical treatment” “refers to the necessity for treatment and not the victim’s
success in obtaining treatment.” People v Maben, 313 Mich App 545, 551; 884 NW2d 314 (2015),
citing MCL 777.33(3) (quotation marks omitted). Any number of bodily injuries, including a
sprained ankle, are included in this definition.
-8-
In this case, defendant could not be assessed a higher score because the victim’s injuries
were not life threatening or permanently incapacitating.5 This does not mean that the degree of
the victim’s injuries was not serious. The trial court explained that defendant had assaulted the
victim several times, which resulted in extensive and severe injuries. Specifically, defendant hit
her with a bat and burned her with a blow torch. The trial court sufficiently justified that the
sentencing guidelines did not account for the severity of the victim’s injuries. Therefore, the trial
court did not abuse its discretion when it cited the seriousness and extent of the victim’s injuries
to rationalize the upward departure from the sentencing guidelines under OV 3.
Similarly, defendant’s argument that OV 7 already accounted for the severity of the
victim’s treatment is unpersuasive. OV 7 (aggravated physical abuse) only provides for two
scores: 50 and 0 points. MCL 777.37. Defendant was assessed 50 points. An offense is assessed
50 points for OV 7 when a “victim was treated with sadism, torture, excessive brutality, or
similarly egregious conduct designed to substantially increase the fear and anxiety a victim
suffered during the offense.” MCL 777.37(1)(a). This is an either-or proposition; that is, a trial
court can assess zero or 50 points under OV 7. Therefore, a defendant who treats a victim with
sadism, torture, or excessive brutality in one incident is assessed the same point value as a
defendant, like defendant in this case, who repeatedly subjects his victim to multiple acts of
aggravated physical abuse. For purposes of a departure, the trial court is permitted to consider
factors the guidelines give inadequate weight or those which are not considered at all. Dixon-Bey,
321 Mich App at 525. Here, the trial court explained that defendant had inflicted severe injuries
on the victim during several assaults—three charged and several uncharged. While defendant was
assessed points under OV 7, the trial court explained that this assessment did not factor in the
extent of the aggravated physical abuse in this case. The trial court sufficiently explained that the
sentencing guidelines undervalued the extent of defendant’s aggravated physical abuse towards
the victim, and, therefore, justified why the imposed sentence was more proportionate than a
different sentence would have been. See id.
Defendant also contends that OV 10 was assessed 10 points and adequately accounted for
defendant’s control and manipulation of the victim. OV 10 (exploitation of vulnerable victim) is
assessed 10 points when the “offender exploited a . . . domestic relationship[.]”
MCL 777.40(1)(b). “Exploit,” means “to manipulate a victim for selfish or unethical purposes.”
MCL 777.40(2)(b). The trial court explained that defendant “tried to manipulate [the victim] and
keep her under [his] control.” It noted a time when defendant threw the victim out of a vehicle
naked, as well as another instance where defendant went searching for the victim after she had
escaped his house. Unlike OV 3 and OV 7, the trial court did not explain how this conduct was
distinct from other exploitative conduct giving rise to an assessment of 10 points for OV 10. This
Court will not substitute its own judgment when the trial court fails to justify its reasoning for
departure. See People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). Although the trial
court did not explain its upward departure for OV 10, the trial court adequately explained its
reasoning as to the other variable. Therefore, we are not convinced the trial court abused its
5
A trial court assesses 25 points under OV 3 accounts for a victim’s “[l]ife threatening or
permanent incapacitating injury[.]” MCL 777.33(1)(c).
-9-
discretion in granting an upward departure under OV 10 and resentencing is not necessary on this
basis. See Dixon-Bey, 321 Mich App at 525.
Defendant further argues that the trial court, in rationalizing its upward departure,
inappropriately considered that there were three separate incidents for which defendant was
convicted because this was accounted for in the sentencing guidelines’ assessment of 20 points for
prior record variable (PRV) 7. PRV 7 (subsequent or concurrent felony convictions) may be
assessed a maximum of 20 points for two or more subsequent felony convictions. See MCL
777.57(1)(a). Defendant was assigned the maximum 20 points under PRV 7 because defendant
had been convicted of more than two concurrent felonies. The trial court explained that defendant
was convicted for three separate incidents in this case. These three incidents gave rise to five
felony convictions. This is more than double the required felony convictions necessary to score
20 points under PRV 7. The trial court explained that the sentencing guidelines gave inadequate
weight to defendant’s concurrent offenses; this was a sufficient explanation for why the departure
sentence was proportionate.
Defendant next argues that the trial court did not consider mitigating factors such as his
intellectual disability and addiction fueled by tragedy. But, the trial court was not required to
consider such mitigating factors when it sentenced him. See People v Osby, 291 Mich App 412,
416; 804 NW2d 903 (2011). The trial court did not abuse its discretion.
Finally, defendant contends that the trial court improperly relied on defendant’s successful
motion for resentencing because the prosecution failed to provide notice of its intent to seek an
enhanced sentence. The trial court explained that defendant’s argument for resentencing was
“almost disingenuous” because all three of defendant’s files were docketed together and had a joint
preliminary examination hearing, meaning that the trial court believed that defendant was aware
that he was prosecuted as a fourth-offense habitual offender. This was not offered as a justification
for the trial court’s upward departure. Instead, the trial court was merely commenting that
defendant benefitted from the prosecutor’s error.
In sum, the majority of the trial court’s articulated reasons support its upward departure
from the sentencing guidelines. The sentencing guidelines did not account for the seriousness and
severity of defendant’s conduct in this case, particularly with regard to the victim’s injuries. The
trial court’s reliance on the number of convictions involved in these incidents was also appropriate.
However, the trial court did not properly justify why it departed from the sentencing guidelines
based on defendant’s control and manipulation of the victim when it assessed points under OV 10.
Regardless, the trial court’s explanation of its assessment of points under OVs 3 and 7 sufficiently
justified its upward departure. For these reasons, we conclude that the trial court properly
established by reference to matters of record that its departure sentence was “proportionate to the
seriousness of the circumstances surrounding the offense and the offender.” Steanhouse, 500 Mich
-10-
at 474. Accordingly, the trial court did not abused its discretion in applying the principles of
proportionality to justify its upward departure from the sentencing guidelines.
Affirmed.
/s/ Christopher M. Murray
/s/ Thomas C. Cameron
/s/ Sima G. Patel
-11-