People of Michigan v. Gerri Conic ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 14, 2023
Plaintiff-Appellee,
v No. 360347
Saginaw Circuit Court
GERRI CONIC, LC No. 20-047340-FC
Defendant-Appellant.
Before: GLEICHER, C.J., and JANSEN and RICK, JJ.
PER CURIAM.
Defendant appeals as of right her jury trial conviction of second-degree murder,
MCL 750.317. The trial court sentenced defendant as a second-offense habitual offender,
MCL 769.10, to serve 25 to 50 years’ imprisonment. We affirm.
I. FACTUAL BACKGROUND
Defendant was convicted of second-degree murder after she ran the victim over with her
car. Defendant and the victim had been in a relationship for approximately 12 to 17 years. On the
day in question, the victim had decided to end the relationship and put defendant’s belongings out
in his driveway. The victim left his home to run errands with a friend named Eugene Moten.
While Eugene and the victim ran errands, the victim received more than 10 phone calls from
defendant. The victim put defendant on speaker phone, and Eugene heard defendant scream at the
victim and threaten to break the windows out of his home. Once Eugene and the victim finished
their errands, they stopped by the victim’s home to see if defendant had broken any windows. As
they were pulling out of the driveway to leave again, they noticed that the door to the house looked
like it had been forced open. Eugene told the victim not to go in the house and to instead call the
police.
The victim called the police, and while the two men were waiting for them to arrive,
defendant showed up and backed her car into the driveway. Defendant got out of the car and began
yelling at the victim. Eugene called his wife, Pamela, to pick him up from the victim’s home
because he did not want to be in the middle of a fight between defendant and the victim. When
Pamela arrived, an altercation occurred between defendant and Pamela because of defendant’s
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conduct toward Eugene. Eugene was able to break up the struggle between defendant and Pamela.
Eugene told Pamela to move her car out of the driveway so that defendant could leave the
residence.
Eugene testified that once the driveway was clear, defendant put the car in gear and turned
the tires toward the victim, who was standing near the passenger side of the car. The victim put
his hands on the car and was pushing back when he slipped in the snow and went under the car.
Eugene and Pamela shouted at defendant to stop. Instead, defendant continued to accelerate back
and forward over the victim. Police officers arrived a few minutes later and saw defendant in her
car, on top of the victim. One of the officers approached defendant’s car and saw an open bottle
of liquor inside of it. He also attested that he smelled the odor of intoxicants coming from
defendant. The officer put defendant in the back seat of his patrol car and returned to the victim.
At first, the victim was responsive to the officer’s questions, but he eventually became
unresponsive. Once the victim was removed from under the car, he was taken to a local hospital.
The victim died a few weeks later as a result of the injuries he sustained from being hit by
defendant’s car.
Saginaw Police Detective Patrick Busch testified that he arrived on the scene after the
victim was taken to the hospital. Detective Busch testified that tire marks in the driveway appeared
to be acceleration marks, and he noted that there were no tire marks indicating deceleration.
Detective Busch interviewed defendant, who originally said that she did not realize that the victim
was under the car until after the accident, but she then admitted that she “felt the thump or a bump.”
Defendant stated that, after she felt the bump, she turned off the car and got out. However, later
in the interview, defendant acknowledged that she was trying to leave before police arrived.
Defendant was charged with open murder, MCL 750.316. At the jury trial, the prosecutor
argued that there was sufficient evidence to establish beyond a reasonable doubt that defendant
intentionally killed the victim and was guilty of first-degree murder, or in the alternative, second-
degree murder. The prosecutor presented photographs of the victim’s home to demonstrate how
the accident occurred. Additionally, the prosecutor showed the body-camera, dash-camera, and
in-car camera footage from one of the officers who first arrived on the scene to corroborate witness
testimony about the incident. The prosecutor also presented a 911 call in which the parties agree
that defendant can be heard saying “I’ll kill you.” In turn, defendant argued that there was
reasonable doubt whether defendant acted with premeditation or malice when she hit the victim
with her car. Instead, defendant argued that the jury should consider the lesser offense of statutory
involuntary manslaughter.
At the close of the prosecution’s case, defendant moved for a directed verdict, arguing that
the prosecutor presented insufficient evidence to prove that she was guilty of first- or second-
degree murder. Defense counsel argued that the prosecutor failed to demonstrate premeditation
and deliberation, or in the alternative, malice. The trial court denied defendant’s motion. The trial
court instructed the jury regarding the elements of first-degree murder, second-degree murder, and
voluntary manslaughter. The trial court also provided instructions regarding voluntary
intoxication and self-defense. The jury returned a guilty verdict for the lesser included offense of
second-degree murder.
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II. ANALYSIS
A. JURY COMPROMISE
Defendant argues that the first-degree and second-degree murder charges were improperly
submitted to the jury, and that the verdict was likely the product of jury compromise. Specifically,
defendant contends that these charges were improperly submitted to the jury because the
prosecutor presented insufficient evidence to demonstrate that defendant acted with premeditation
or malice. We disagree.
We review de novo a challenge to the sufficiency of the evidence to support a conviction.
People v Speed, 331 Mich App 328, 331; 952 NW2d 550 (2020). “In examining the sufficiency
of the evidence, this Court reviews the evidence in a light most favorable to the prosecutor to
determine whether any trier of fact could find the essential elements of the crime were proven
beyond a reasonable doubt.” Id., quoting People v Reese, 491 Mich 127, 139; 815 NW2d 85(2012) (quotation marks omitted). “The standard of review is deferential: a reviewing court is
required to draw all reasonable inferences and make credibility choices in support of the jury
verdict. The scope of review is the same whether the evidence is direct or circumstantial.” People
v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Reversal is not generally required when a jury returns inconsistent verdicts within a single
trial. People v Montague, 338 Mich App 29, 51; 979 NW2d 406 (2021). In fact, a jury is “not
held to any rules of logic” whatsoever and is not required to explain why it reached a decision. Id.(quotation marks and citation omitted). To have a conviction reversed on the basis of inconsistent
verdicts, a defendant must show “confusion by the jury, a misunderstanding of the instructions, or
impermissible compromises.” Id. A defendant bears the burden of making this showing. Id.On this record, defendant has failed to demonstrate that the first-degree murder charge was
improperly submitted to the jury or that insufficient evidence supported the charge. “The elements
of first-degree murder are (1) the intentional killing of a human (2) with premeditation and
deliberation.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). Defendant only
disputes the premeditation and deliberation element of the charge. “When first-degree murder is
premised on premeditation, the prosecutor must prove that the defendant acted with the intent to
kill the victim and must show that he acted deliberately and with premeditation.” People v Clark,
330 Mich App 392, 436; 948 NW2d 604 (2019). “[P]remeditation may be established by
circumstantial evidence tending to show that a defendant had an opportunity to think about,
evaluate, or take a ‘second look’ at their actions.” People v Walker, 330 Mich App 378, 383; 948
NW2d 122 (2019) (citation omitted). Additionally, “[p]remeditation may be established through
evidence of the following factors: (1) the prior relationship of the parties; (2) the defendant’s
actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct
after the homicide.” Id. at 384 (quotation marks and citation omitted).
Even though the jury presumably did not find that defendant acted with premeditation or
deliberation, when viewed in a light most favorable to the prosecution, there was sufficient
evidence for the trial court to submit the charge of first-degree premeditated murder to the jury.
Eugene testified that defendant and the victim got into a dispute after the victim decided to break
up with defendant, with whom he had been in a relationship with for over a decade. On the day in
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question, Defendant repeatedly called the victim and was verbally aggressive, and even threatened
to break the windows out of the victim’s house. Defendant told the victim “I’ll kill you”, and the
comment was heard by the 911 operator. Eugene testified that defendant arrived at the victim’s
home, backed her car into the driveway, and proceeded to argue with the victim about why he was
putting her out. After a brief altercation with Eugene’s wife, defendant got into her car to leave.
However, instead of pulling straight out the driveway, defendant turned the car to the right and
directly hit the victim. She did not try to stop the car or call for help. Rather, defendant continued
to accelerate, running over the victim repeatedly, and did not stop until police arrived.
Further, both Eugene and Pamela testified that the victim was standing on the passenger
side of defendant’s car. Eugene testified that the victim was walking around the car when
defendant got in it. Eugene explained that defendant could have avoided the victim if she had
pulled straight out the driveway because she backed in, but instead, she deliberately turned her
wheel to the right and hit the victim. Both Eugene and Pamela testified that they yelled at
defendant to stop, but that defendant did not listen. Rather, defendant continued to accelerate her
engine as she drove aggressively over the victim multiple times. Thus, there was sufficient
evidence to demonstrate that defendant deliberately, aggressively, and repeatedly drove forward
and over the victim, causing his eventual death. As such, the charge of first-degree murder was
properly submitted to the jury.
We are similarly unpersuaded by defendant’s argument that the charge of second-degree
murder was improperly submitted to the jury. At the time of defendant’s conviction, “[t]he
elements of second-degree murder [were]: (1) a death, (2) caused by an act of the defendant, (3)
with malice, and (4) without justification or excuse.”1 People v Gafken, 510 Mich 503, 511; 990
NW2d 826 (2022) (quotation marks and citation omitted; emphasis added). See also People v
McMullan, 284 Mich App 149, 156; 771 NW2d 810 (2009). “Malice may be established in three
ways: by showing (1) the intent to kill, (2) the intent to cause great bodily harm, or (3) the intent
to do an act in wanton and willful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.” Gafken, 510 Mich at 511. “[T]he third theory
for proving malice can be shown by the intent to create a very high risk of death or great bodily
harm with the knowledge that death or great bodily harm is the probable result.” Id. (quotation
marks and citation omitted). “The prosecution is not required to prove that the defendant actually
intended to harm or kill. Instead, the prosecution must prove the intent to do an act that is in
obvious disregard of life-endangering consequences.” People v Werner, 254 Mich App 528, 531;
659 NW2d 688 (2002) (quotation marks and citations omitted).
The evidence presented supports a finding that defendant acted “in wanton and willful
disregard of the likelihood that the natural tendency of such behavior is to cause death or great
bodily harm.” Gafken, 510 Mich at 511. Eugene testified that defendant was being aggressive in
the altercation with the victim, that the victim did not get physical or aggressive with defendant,
1
This Court has subsequently determined that “without justification or excuse” is “not a true
element of second-degree murder.” People v Spears, ___ Mich App ___, ___; ___ NW2d ___
(2023) (Docket No 357848); slip op at 14-15. In any event, defendant does not raise an argument
about justification or excuse. Rather, defendant disputes only the element of malice.
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and that defendant refused to leave when the victim asked. Eugene testified that defendant had
backed into the driveway when she arrived at the victim’s house, and he explained that defendant
could have pulled straight out of the driveway. Instead, defendant jerked the car to the right and
struck the victim. Defendant did not try to stop the car after hitting the victim; rather, defendant
kept trying to move the car despite being stuck on top of the victim. Detective Patrick Busch
testified that the tire marks on the ground indicated that defendant accelerated for a prolonged
period without any sign of deceleration. Accordingly, there was sufficient evidence to support the
jury’s verdict of guilty of second-degree murder.
B. SCORING ERROR
Next, defendant argues that zero points should have been assessed for offense variables
(OVs) 1 and 2 because a vehicle is not an instrument used for attack or defense, which therefore
means that a vehicle cannot be considered a weapon. We disagree.
A defendant is entitled to resentencing when a trial court commits an error in scoring the
sentencing guidelines and when this error “altered the appropriate guidelines range.” People v
Francisco, 474 Mich 82, 88-91; 711 NW2d 44 (2006). Here, 10 points were assessed for OV 1,
and one point was assessed for OV 2. OV 1 addresses “aggravated use of a weapon,” MCL 777.31,
while OV 2 addresses “lethal potential of the weapon possessed or used,” MCL 777.32. Ten points
are assessed for OV 1 if “[t]he victim was touched by any other type of weapon[.]”
MCL 777.31(1)(d). One point is assessed for OV 2 if the defendant “possessed or used any other
potentially lethal weapon[.]” MCL 777.32(1)(e). Neither provision defines “weapon.” However,
as defendant acknowledges, this Court has previously utilized the dictionary definition of
“weapon,” that is, “1. any instrument or device used for attack or defense in a fight or in combat.
2. anything used against an opponent, adversary, or victim . . . . 3. any part or organ serving for
attack or defense, as claws, horns, teeth, or stings.” People v Ball, 297 Mich App 121, 125; 823
NW2d 150 (2012) (quotation marks and citation omitted; emphasis added; alteration in original).
The definition of weapon is clearly and unambiguously broad, and there is no indication
that it is limited to traditional weapons, e.g., firearms or knives. This Court has found that a vehicle
may be considered a dangerous weapon if used in the furtherance of accomplishing an assault and
if capable of inflicting serious injury. People v Sheets, 138 Mich App 794, 799; 360 NW2d 301(1984). Therefore, it is immaterial that a vehicle does not have the characteristics of a traditional
weapon. What matters is whether defendant used her car against the victim in the same manner
that one would use a traditional weapon like a gun or a knife. As previously discussed, there was
ample, undisputed evidence that defendant struck and ran over the victim with her car. Therefore,
the vehicle was used as a weapon, and as such, the trial court did not err by assessing 10 points for
OV 1 and one point for OV 2.
C. PROPORTIONALITY OF SENTENCE
Lastly, defendant argues that the trial court abused its discretion when it imposed a 25-year
minimum sentence for her second-degree murder conviction. We disagree.
“This Court reviews the proportionality of a trial court’s sentence for an abuse of
discretion.” People v Lydic, 335 Mich App 486, 500; 967 NW2d 847 (2021) (quotation marks and
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citation omitted). “A given sentence constitutes an abuse of discretion if that sentence violates the
principle of proportionality . . . .” Id. (quotation marks and citation omitted; ellipsis in original).
“[T]he principle of proportionality simply requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Id. at 501 (quotation marks and citations omitted).
Michigan’s sentencing guidelines are advisory, but trial courts must still consult the
guidelines and take them into account during sentencing. People v Lockridge, 498 Mich 358, 381;
870 NW2d 502 (2015). Until recently, this Court was bound to affirm any minimum sentence that
fell within the guidelines range. See MCL 769.34(10); People v Schrauben, 314 Mich App 181,
196 n 1; 886 NW2d 173 (2016), overruled in part by People v Posey, ___ Mich ___, ___ (2023)
(Docket No. 162373); slip op at 4. However, our Supreme Court has struck down the portion of
MCL 769.34(10) that requires appellate courts to affirm within-guidelines sentences, and
determined that all sentences must be reviewed for proportionality. Posey, ___ Mich at; slip op
at 33-34. The Posey Court therefore “overrule[d] the portion of [Schrauben, 314 Mich App 181]
that requires the Court of Appeals to affirm a trial court’s sentence if the defendant’s minimum
sentence lies within the recommended guidelines minimum sentence range.” Posey, ___ Mich at
___; slip op at 4.
Defendant’s minimum sentencing guidelines range for her second-degree murder
conviction was 225 to 468 months. The trial court sentenced defendant within the guidelines range
to a minimum term of imprisonment of 300 months, i.e., 25 years. Under Posey, we are entitled
to review this sentence for reasonableness and proportionality, just as we would a departure
sentence. Defendant contends that her minimal criminal history and her alleged volatile
relationship with the victim constitute unusual circumstances that render her within-guidelines
sentence disproportionate to the seriousness of the offense and the offender. We disagree.
First, the record does not support defendant’s contention that she was in a volatile
relationship with the victim. Neither the prosecutor nor defendant presented evidence to
demonstrate that defendant and the victim had a history of domestic disturbances. The only
evidence presented to support the notion that defendant and the victim had a volatile relationship
were the events that occurred on the day of the incident at issue here, while the victim was clearly
attempting to break up with defendant. However, a single day of volatile interactions does not
sufficiently establish that defendant and the victim were in a volatile relationship. Moreover,
defendant’s argument on this point consists of a single sentence in her brief on appeal. She does
not explain why this alleged volatile relationship should have had any bearing on the trial court’s
sentencing decision. An appellant may not simply make an assertion and leave it up to this Court
to discover the basis for his or her claims. People v Bowling, 299 Mich App 552, 559-560; 830
NW2d 800 (2013). Without further evidence or explanation, we conclude that this argument lacks
merit.
Defendant also notes that the trial court relied on her prior misdemeanor and felony
convictions during sentencing. At sentencing, the trial court reflected on
the fact that [defendant] was still on probation and still subject to the conditions of
probation—which included that she not use or possess alcoholic beverages or other
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intoxicants, and that she not engage in any assaultive, abusive, threatening or
intimidating behavior—she went out and created this situation.
Again, defendant does not explain why she believes the trial court erred in considering her criminal
history during sentencing or why her 25-year minimum sentence was unreasonable and
disproportionate as a result. Consequently, she once again leaves this Court to infer the basis for
her claim. See Bowling, 299 Mich App at 559-660. We decline to do so here. Accordingly,
defendant has failed to demonstrate that her sentence was disproportionate.
III. CONCLUSION
Defendant has failed to show that the trial court committed any errors warranting relief.
Accordingly, we affirm.
/s/ Elizabeth L. Gleicher
/s/ Kathleen Jansen
/s/ Michelle M. Rick
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