O People of Michigan v. Demarcus Allen-Troy Miles ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 5, 2023
Plaintiff-Appellee,
v No. 350281
Oakland Circuit Court
DEMARCUS ALLEN-TROY MILES, LC No. 2018-267165-FC
Defendant-Appellant.
ON REMAND
Before: MURRAY, P.J., and JANSEN and RIORDAN, JJ.
PER CURIAM.
This matter is before us on remand to reconsider the scoring of offense variable (OV) 1,
MCL 777.31, in light of People v Dupree, 511 Mich 1; 993 NW2d 185 (2023).1 The parties have
filed supplemental briefs addressing the issue, and the matter is ripe for decision. We vacate
defendant’s sentence and remand for resentencing under recalculated guidelines.
The trial court assessed 25 points for OV 1. The variable is prescribed by MCL 777.31,
which provides, in pertinent part:
(1) Offense variable 1 is aggravated use of a weapon. Score offense variable 1 by
determining which of the following apply and by assigning the number of points
attributable to the one that has the highest number of points:
(a) A firearm was discharged at or toward a human being or a victim was
cut or stabbed with a knife or other cutting or stabbing
weapon………………………………………………………….…25 points
1
The plethora of other issues raised by defendant and rejected by this Court, see People v Miles,
unpublished per curiam opinion of the Court of Appeals, issued October 21, 2021 (Docket No.
350281), are not the subject of the remand order. People v Miles, 991 NW2d 563 (2023).
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* * *
(2) All of the following apply to scoring offense variable 1:
(a) Count each person who was placed in danger of injury or loss of life as
a victim.
(b) In multiple offender cases, if 1 offender is assessed points for the
presence or use of a weapon, all offenders shall be assessed the same
number of points.
Importantly, for defendant’s purposes, “due process bars sentencing courts from finding by a
preponderance of the evidence that a defendant engaged in conduct of which he was acquitted.”
People v Beck, 504 Mich 605, 629; 939 NW2d 213 (2019). Defendant argues that under Dupree,
he could not have been assessed 25 points for the discharge of a firearm because he was acquitted
of felony-firearm, MCL 750.227b, and to that end, of discharging the firearm involved in this case.
In Dupree, the defendant was convicted of armed robbery, though video evidence of the
robbery showed that he was not the offender who utilized the weapon. Instead, that individual had
not been apprehended and, thus, was not prosecuted. Dupree, 511 Mich at 5. The trial court
assessed 15 points for OV 1, and this Court affirmed, concluding that OV 1 was properly scored
because (1) the statute does not require that the other offenders be identified or prosecuted for the
“other offenders” to be scored, and (2) the defendant was convicted as an aider-and-abettor, and
therefore statutorily (MCL 767.39) was equally responsible as the principal for carrying the
weapon. Id. at 5-6. The Supreme Court disagreed, holding that because the defendant was not the
offender possessing the gun during the robbery, and the other offenders were not scored under OV
1, neither could the defendant:
The plain language of MCL 777.31(2)(b) and MCL 777.32(2) sets forth two
conditions that must be satisfied before those provisions are triggered. The first
condition is that the case is a “multiple offender case[ ].” The second condition is
that “1 offender is assessed points” for possessing a weapon. Here, there were three
offenders, which makes this a “multiple offender case,” satisfying the first
condition. However, defendant was the only person charged and convicted of
armed robbery; no other offender has been charged or convicted, let alone assessed
points for possessing a weapon. Therefore, the second condition, requiring another
offender to have been assessed points for possessing a weapon, was not satisfied.
Since defendant was the only person arrested, convicted, and assessed points under
OVs 1 and 2, points could only be assessed under OVs 1 and 2 if he had possessed
and/or used the weapon himself. There is no contention that he did so. Therefore,
no points should have been assessed under OV 1 or OV 2. [Id. at 7.]
We conclude that under Dupree, defendant was improperly assessed 25 points for OV 1.
Like Dupree, the first condition—that the case be a “multiple offender case”—is satisfied because
some evidence showed that defendant’s friend Justin Sumner was at the scene, and according to
defendant, Sumner did the shooting. However, like Dupree, the second condition is not, i.e., that
“1 offender is assessed points” for possessing a weapon. Id. Although in Dupree there was
irrefutable video evidence that the defendant did not wield the gun during the robbery, here
defendant was acquitted of felony-firearm, which means that the jury likely did not believe beyond
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a reasonable doubt that he possessed the firearm.2 Given the second-degree murder verdict and
the jury instructions on the aider-and-abettor theory, it is much more likely that the jury convicted
defendant as an aider-and-abettor. And if that is so, then the principal would have been Sumner,
and he was not prosecuted. Under Dupree, there being no other offender being assessed points
under OV 1, defendant cannot be assessed either.3
Defendant’s sentence is vacated and the matter is remanded for resentencing under
recalculated guidelines. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Michael J. Riordan
2
The prosecution argues that the jury possibly acquitted defendant of the felony-firearm count as
a matter of leniency, rather than through a finding that he did not shoot the victim. That is possible,
see People v Goss, 446 Mich 587, 597-598; 521 NW2d 312 (1994), but the prosecution has offered
nothing beyond speculation that the verdict was the result of leniency, People v McKinley, 168
Mich App 496, 510; 425 NW2d 460 (1988). Additionally, the verdicts are consistent, and in fact
the trial prosecutor argued that the jury could find defendant guilty of murder even if some jurors
did not believe he was the shooter: “Because if for some reason you believe anything that the
Defendant said yesterday, his own words indicate he’s an aider and abettor. So, it’s an “or” test.
So, some might feel you’re—he’s the shooter. Some people on the jury would be very comfortable
that he’s at least the aider and abettor. It really doesn’t and the Judge will instruct you -- it really
-- it really makes no difference under the law.” The same points were made when the trial
prosecutor was arguing to the jury about second-degree murder and aiding and abetting—that if
the jury believed defendant about Sumner being the shooter, he would still be guilty of murder.
3
The prosecution argues that Dupree is inconsistent with the statute. Even if we were to agree,
we are powerless to ignore the binding precedent.
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