People of Michigan v. David Anthony Cameron Jr

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 16, 2015
Plaintiff-Appellee,
v No. 320592
Washtenaw Circuit Court
DAVID ANTHONY CAMERON, JR., LC No. 11-000123-FH
Defendant-Appellant.
Before: O’CONNELL, P.J., and OWENS and M. J. KELLY, JJ.
PER CURIAM.
Defendant David Anthony Cameron, Jr. appeals by right the trial court’s sentences
imposed on remand from this Court.1 The trial court sentenced Cameron as a fourth-offense
habitual offender, MCL 769.12, to serve concurrent sentences of 108 months to 30 years in
prison for his assault with intent to do great bodily harm less than murder conviction, MCL
750.84, and 77 months to 30 years in prison for his felon in possession of a firearm conviction,
MCL 750.224f. Because we conclude there were no errors warranting resentencing, we affirm.
Cameron first argues the trial court erred when it scored 50 points under Offense Variable
(OV) 7. This Court reviews a trial court’s factual findings under the sentencing guidelines for
clear error. People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). This Court reviews de
novo whether the trial court properly applied the sentencing guidelines to the facts. Id.
Under MCL 777.37(1)(a), the trial court must score OV 7 at 50 points if a “victim was
treated with sadism, torture, or excessive brutality or conduct designed to substantially increase
the fear and anxiety a victim suffered during the offense.” Thus, a trial court properly scores OV
7 at 50 points if the defendant’s conduct amounted to sadism, torture, or excessive brutality, or
was designed to substantially increase the fear and anxiety a victim suffered during the offense.
Hardy, 494 Mich. at 439-440.
1
See People v Cameron, unpublished opinion per curiam of the Court of Appeals, issued
February 26, 2013 (Docket No. 306391).
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In Hardy, our Supreme Court explained that determining whether the defendant engaged
in conduct that was designed to substantially increase fear or anxiety involved a two-step
inquiry: “The relevant inquiries are (1) whether the defendant engaged in conduct beyond the
minimum required to commit the offense; and, if so, (2) whether the conduct was intended to
make a victim’s fear or anxiety greater by a considerable amount.” Id. at 443-444. A
defendant’s intent can be inferred from the facts and circumstances of the case. Id. at 440 n 26.
In Hardy, the Court determined that the defendant’s act of racking a shotgun while pointing it at
the victim was an extra step beyond the minimum necessary to commit carjacking because
“merely displaying the weapon or pointing it at the victim would have been enough . . . .” Id. at
445. The Court similarly held that the nature of the act supported the finding that the defendant
did it with the intent to substantially increase the victim’s fear. Id.
The relevant offense in this case was assault with intent to do great bodily harm less than
murder. Assault with intent to do great bodily harm less than murder requires two elements: “(1)
an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an
intent to do great bodily harm less than murder.” People v Brown, 267 Mich. App. 141, 147; 703
NW2d 230 (2005) (quotation marks, emphasis, and citation omitted). The intent to do great
bodily harm means “an intent to do serious injury of an aggravated nature.” Id. (quotation marks
and citation omitted). Accordingly, the minimum conduct required to commit the crime would
have been for Cameron to point the gun at the victim (an assault) under circumstances that
suggested that he had the intent to do great bodily harm less than murder.
The evidence showed that Cameron assaulted and threatened the victim because he was
upset that the victim had sent eviction notices to some friends. For that reason, he forced the
victim up against a wall, pressed a gun to her face, pulled her head back, and threatened to kill
her and her daughter if he had to come back. He then punctuated his threat by slamming the
victim’s head into the wall, which left her lying on the floor unconscious.
Cameron’s conduct went beyond the minimum necessary to commit assault with intent to
do great bodily harm less than murder and permitted an inference that he took the extra acts with
the intent to substantially increase the victim’s fear and anxiety. MCL 777.37(1)(a); Hardy, 494
Mich. at 440 n 26. When he pressed the gun firmly to her face, he told the victim to “quit f------
with his people.” He also threatened to kill her and her daughter if he had to come back. This
evidence supported by a preponderance that Cameron intended to considerably increase the
victim’s fear and anxiety during the assault so that she would take his threats seriously and not
evict his friends. Therefore, the trial court did not clearly err when it found that Cameron took
acts beyond the minimum necessary to commit the crime and did so to considerably increase the
victim’s fear or anxiety. Id. at 443-445.
Next, Cameron argues the trial court erred when it did not score the variables for his
lower crime class concurrent conviction of felon in possession of a firearm and, in effect,
departed from the guidelines in sentencing him for this conviction. We review de novo whether
the trial court properly applied the sentencing guidelines. People v Mack, 265 Mich. App. 122,
125; 695 NW2d 342 (2005).
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This Court has already determined that a trial court does not need to score the variables
for a lower crime class offense, which is to be served concurrent to the higher crime class
offense; it similarly held that sentencing a defendant within the range calculated for the higher
offense does not constitute a departure. See People v Lopez, 305 Mich. App. 686, 690-692; 854
NW2d 205 (2014). The Court explained that when a defendant is sentenced to concurrent
sentences for multiple offenses, the trial court is not required to calculate the guidelines range for
the lower crime class offense because “there would be no tangible reason or benefit in
establishing guidelines ranges for the lower-crime-class offenses” given that the “the guidelines
range for the highest-crime-class offense would subsume the guidelines range for lower-crime-
class offenses.” Id. at 691-692.
At resentencing, the trial court sentenced Cameron to serve concurrent sentences. The
assault with intent to do great bodily harm less than murder conviction was the higher crime
class conviction. Therefore, because the felon in possession of a firearm conviction was in a
lower crime class and the sentences were concurrent, the trial court did not need to score this
offense and there was no departure. Id.
There were no errors warranting resentencing.
Affirmed.
/s/ Peter D. O'Connell
/s/ Donald S. Owens
/s/ Michael J. Kelly
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