                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 12, 2016
               Plaintiff-Appellee,

v                                                                  No. 325610
                                                                   Wayne Circuit Court
JAWANTA DERIN COVINGTON,                                           LC No. 13-007478-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions of armed robbery, MCL 750.529,
conspiracy to commit armed robbery, MCL 750.529; MCL 750.157a, possession of burglary
tools, MCL 750.116, and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. We affirm defendant’s convictions, but remand for possible
resentencing.

        Defendant’s convictions arise from the robbery of Mike’s Detroit Jewelry in Hamtramck
on August 1, 2013. One of the people participating in the robbery, Frank Jackson (Jackson), was
killed by a security guard at the jewelry store.

        Defendant first argues that the record evidence was insufficient to support his conviction
of felony-firearm under an aiding and abetting theory because the prosecutor did not prove that
he performed acts or gave encouragement with the intention of assisting his accomplices in
keeping possession of their firearms. We disagree.

        This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence.
People v Bailey, 310 Mich. App. 703, 713; 873 NW2d 855 (2015). We view the evidence
presented in the light most favorable to the prosecution and determine whether a rational trier of
fact could have found, including through reasonable inferences from the evidence, that the
essential elements of the crime were proven beyond a reasonable doubt. People v Taylor, 275
Mich. App. 177, 179; 737 NW2d 790 (2007). The standard of review for a claim challenging the
sufficiency of the evidence is deferential. Bailey, 310 Mich. App. at 713.

       To convict a defendant of felony-firearm, the prosecution is required to prove “that the
defendant possessed a firearm during the commission of, or the attempt to commit, a felony.”
Taylor, 275 Mich. App. at 179 (citation omitted). In this case, defendant was charged with

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felony-firearm under an aiding and abetting theory. In People v Moore, 470 Mich. 56, 58-59; 679
NW2d 41 (2004), our Supreme Court considered the language of both the felony-firearm statute
and the aiding and abetting statute, and ultimately held, in pertinent part:

               [T]he prosecutors must demonstrate that defendants specifically aided the
       commission of felony-firearm. Establishing that a defendant has aided and
       abetted a felony-firearm offense requires proof that a violation of the felony-
       firearm statute was committed by the defendant or some other person, that the
       defendant performed acts or gave encouragement that assisted in the commission
       of the felony-firearm violation, and that the defendant intended the commission of
       the felony-firearm violation or had knowledge that the principal intended its
       commission at the time that the defendant gave aid and encouragement. [People
       v] Carines, 460 Mich. 750,] 768; 597 NW2d 130 (1999)]. In determining whether
       a defendant assisted in the commission of the crime, the amount of advice, aid, or
       encouragement is not material if it had the effect of inducing the commission of
       the crime. People v Smock, 399 Mich. 282, 285; 249 NW2d 59 (1976). It must be
       determined on a case-by-case basis whether the defendant “ ‘performed acts or
       gave encouragement that assisted,’ ” Carines, supra at 768; 597 NW2d 130,
       quoting People v Turner, 213 Mich. App. 558, 568; 540 NW2d 728 (1995), in the
       carrying or possession of a firearm during the commission of a felony. [Moore,
470 Mich. at 70-71 (footnote omitted).]

The Moore Court also observed that the phrase “aids or abets” in the aiding and abetting statute
“is used to describe any type of assistance given to the perpetrator of a crime by words or deeds
that are intended to encourage, support, or incite the commission of [a] crime.” Id. at 63.

        In this case, the evidence was sufficient for the jury to convict defendant of felony-
firearm under an aiding and abetting theory. First, defendant’s accomplices, Jackson and
codefendant Darnell Eric Redmond (Redmond), possessed guns during the armed robbery. See
id. at 70. Jackson held a gun to the store’s security guard’s head and Redmond had a .45 caliber
handgun in his waistband that was recovered by the police right after the armed robbery.
Second, there was ample evidence that defendant engaged in acts that assisted Jackson and
Redmond in the commission of felony-firearm. See id. For example, trial testimony included
that defendant entered the jewelry store several moments before his accomplices and wandered
about the store in a suspicious manner. From this evidence, the jury could have reasonably
inferred that defendant was “casing” the jewelry store before his accomplices entered, and acting
as a decoy, distraction or diversion to the staff employed there. Defendant was also carrying a
hammer and a pillowcase, leading to an inference that he was ready to secure and carry away the
fruits of the armed robbery.

       And, third, the evidence was sufficient for the jury to conclude that defendant intended
the commission of the felony-firearm offense or knew that Redmond and Jackson intended its
commission at the time that he engaged in the acts that provided aid and encouragement. See id.
at 70-71. Defendant entered a jewelry store carrying supplies to commit an armed robbery, and
was joined shortly thereafter by accomplices wielding handguns. The jury could have
reasonably inferred that he intended the commission of the felony-firearm offense. Further, as
the prosecution argues, an aider and abettor’s knowledge of the principal’s intent may be inferred

                                               -2-
from the facts and circumstances giving rise to the criminal offense. People v Bennett, 290 Mich
App 465, 474; 802 NW2d 627 (2010). Defendant’s fingerprints and palm prints, as well as
Redmond’s fingerprints, were found on a stolen Jeep that quickly left the area of the jewelry
store after being sighted by the police, and sped away when pursued by the police. Together
with the carrying of the implements of the armed robbery and his diversionary and distracting
behavior, there was ample evidence to allow the jury to conclude that defendant knew of
Jackson’s and Redmond’s intentions to carry guns during the commission of the armed robbery.
In sum, defendant’s felony-firearm conviction was sufficiently supported by the evidence.

       Defendant next contends that the trial court erred in scoring Offense Variable (OV) 3
because the evidence did not support a conclusion that his conduct in the commission of the
charged offenses was a cause of Jackson’s death. We disagree.

        In People v Hardy, 494 Mich. 430; 835 NW2d 340 (2013), our Supreme Court set forth
the standard of review for a sentencing guidelines scoring issue:

                Under the sentencing guidelines, the circuit court’s factual determinations
       are reviewed for clear error and must be supported by a preponderance of the
       evidence. 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.
       [Id. at 438 (footnotes omitted).]

“Clear error exists when the reviewing court is left with a definite and firm conviction that a
mistake was made.” People v McDade, 301 Mich. App. 343, 356; 836 NW2d 266 (2013).

       MCL 777.33, provides, in pertinent part:

       (1) Offense variable 3 is physical injury to a victim. Score offense variable 3 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 victim was killed ……………………………………………… 100 points

       (b) A victim was killed ……………………………………………… 50 points

                                             * * *

       (2) All of the following apply to scoring offense variable 3:

       (a) In multiple offender cases, if 1 offender is assessed points for death or
       physical injury, all offenders shall be assessed the same number of points.

       (b) Score 100 points if death results from the commission of a crime and homicide
       is not the sentencing offense.

As noted in People v Laidler, 491 Mich. 339; 817 NW2d 517 (2012), the language of MCL
777.33(2)(b) makes it “clear that the defendant’s criminal actions must constitute a factual cause

                                               -3-
of a death for purposes of OV 3.” Id. at 345. The question that must be considered is: “‘but for’
defendant’s commission of a crime, would his coperpetrator’s death have occurred?” Id.

        In Laidler, the defendant and his accomplice attempted to break into a person’s home,
and the prosecution’s theory was that the defendant “had boosted [the accomplice]” up to the
window of the home, six feet off of the ground. Id. at 342. The homeowner saw the
accomplice’s hand extend inside the window after hearing glass shatter and shot the accomplice,
who subsequently died. Id. at 341. The defendant was assessed 100 points under OV 3. Id. at
342. The Court concluded that the assessment of 100 points was not error, where “[b]ut for the
instant criminal activity that defendant coperpetrated, and but for defendant’s specific assistance
in enabling his coperpetrator to reach into the window of the home being invaded, there would
have been no need for the homeowner to respond to the invasion of his home . . . .” Id. at 345.
The Court also recognized that but for the defendant’s commission of a crime, his accomplice
would not “have been placed in the position in which he was shot and killed.” Id. Further, the
fact that the homeowner’s gunshot killed the accomplice did not alter its conclusion; the
language of MCL 777.33 did not speak to only a single cause of death and a coperpetrator is a
“victim” for purposes of assessing points under OV 3. Laidler, 491 Mich. at 346-347.

        The trial court’s decision to assess 100 points for OV 3 was supported by a
preponderance of the evidence, and we are not left with a definite and firm conviction that the
trial court made a mistake. Defendant entered the jewelry store and spent several moments
“casing” the establishment in a suspicious manner before his accomplices, Jackson and
Redmond, joined him. Accordingly, it was reasonable to infer that defendant acted as a decoy
and diversion to distract the security guard’s attention, which allowed Jackson to be in a position
to draw a gun and hold it to his head. But for the criminal activity that defendant coperpetrated,
and but for defendant’s “specific assistance” in “casing” the jewelry store and providing a
distraction for the security guard so Jackson could hold a gun to his head, there would have been
no need for the security guard to respond by shooting Jackson. See Laidler, 491 Mich. at 345.
We conclude that defendant’s criminal actions were a factual cause of Jackson’s death, and that
Jackson’s death “resulted from” defendant’s criminal actions as contemplated by MCL
777.33(2)(b). See id. at 345-347.

        Defendant next contends that the trial court impermissibly engaged in judicial fact-
finding to assess 100 points for OV 3 by concluding that defendant’s criminal actions resulted in
Jackson’s death. The prosecution concedes that remand is necessary pursuant to People v
Lockridge, 498 Mich. 358; 870 NW2d 502 (2015). We agree. Because defendant did not raise
this challenge in the trial court, our review is for plain error affecting his substantial rights. Id. at
392.

        In Lockridge, our Supreme Court concluded that, to the extent Michigan’s sentencing
guidelines require judicial fact-finding beyond facts admitted by a defendant or necessarily found
by the jury, they are constitutionally deficient. Lockridge, 498 Mich. at 364. To address the
constitutional infirmity, the Court severed MCL 769.34(2) where it made the sentencing
guidelines range as scored on the basis of impermissible judicial fact-finding mandatory. Id. As
relevant to this appeal, the Lockridge Court held:



                                                  -4-
               We conclude that all defendants (1) who can demonstrate that their
       guidelines minimum sentence range was actually constrained by the violation of
       the Sixth Amendment and (2) whose sentences were not subject to an upward
       departure can establish a threshold showing of the potential for plain error
       sufficient to warrant a remand to the trial court for further inquiry. We reach this
       conclusion in part on the basis of our agreement with the following analysis from
       United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005):

                                              * * *

       . . . [I]n cases in which a defendant’s minimum sentence was established by
       application of the sentencing guidelines in a manner that violated the Sixth
       Amendment, the case should be remanded to the trial court to determine whether
       that court would have imposed a materially different sentence but for the
       constitutional error. If the trial court determines that the answer to that question is
       yes, the court shall order resentencing. Id. at 118. [Id. at 395, 397.]

This procedure has become known as a Crosby remand. Id. at 397. The Lockridge Court then
set forth a procedure for the trial court to follow on remand: the defendant must have an
opportunity to avoid resentencing and, in determining whether the trial court would have
imposed a different sentence but for the unconstitutional constraint, the court should consider
only the circumstances that existed at the time of the original sentence. Id. at 398.

        In this case, defendant was assessed 5 points for OV 2, 100 points for OV 3, and 10
points for OV 9, for a total of 115 points. Defendant’s Prior Record Variable score was 20
points, placing defendant in the C-VI cell of the Class A sentencing grid, and calling for a
minimum sentence range of 135 to 225 months. MCL 777.62. On appeal, defendant only
challenges the assessment of points for OV 3. The trial court assessed 100 points, concluding
that Jackson’s “death result[ed] from the commission of a crime and homicide is not the
sentencing offense,” MCL 777.33(2)(b). These facts were not admitted by defendant or
necessarily found by the jury beyond a reasonable doubt, given that defendant was convicted of
armed robbery, conspiracy to commit armed robbery, possession of burglary tools, and felony-
firearm. He was acquitted of assault with intent to commit murder. Without the 100 points
assessed for OV 3, defendant would have been placed in the C-I cell of the Class A sentencing
grid, which calls for a minimum sentence range of 42 to 70 months. MCL 777.62. Accordingly,
defendant has established that his guidelines minimum range was “actually constrained by the
violation of the Sixth Amendment” and has made a “threshold showing of the potential for plain
error sufficient to warrant a remand to the trial court for further inquiry.” Lockridge, 498 Mich.
at 395. Therefore, this matter is remanded to the trial court for possible resentencing in
accordance with the Crosby procedure. See id. at 397-398.

        Finally, defendant argues that exculpatory evidence was withheld from him in violation
of his due process rights because the police and the prosecution did not investigate cellular phone
records. After review for plain error, because this issue was not raised in the trial court, we
disagree. See People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999).



                                                -5-
        In People v Chenault, 495 Mich. 142, 149-150, 155; 845 NW2d 731 (2014), our Supreme
Court discussed the requirements for a defendant to establish that the prosecution has violated
the rule set forth in Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963):

               The Supreme Court of the United States held in Brady that “the
       suppression by the prosecution of evidence favorable to an accused upon request
       violates due process where the evidence is material either to guilt or to
       punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 87. In identifying the essential components of a Brady violation, the
       [United States] Supreme Court has articulated a three-factor test:

               The evidence at issue must be favorable to the accused, either
               because it is exculpatory, or because it is impeaching; that
               evidence must have been suppressed by the State, either willfully
               or inadvertently; and prejudice must have ensued. [Strickler v
               Greene, 527 U.S. 263, 281-282; 119 S. Ct. 1936; 144 L. Ed. 2d 286
               (1999).]

       Stated differently, the components of a “true Brady violation,” are that: (1) the
       prosecution has suppressed evidence; (2) that is favorable to the accused; and (3)
       that is material. Id. [Chenault, 495 jessica88@example.org.]

This Court has recognized that due process does not require the prosecution to seek and find
exculpatory evidence. People v Coy, 258 Mich. App. 1, 21; 669 NW2d 831 (2003).

        Here, as an initial matter, we note that it does not appear defendant had requested cellular
telephone records from the prosecution. In any event, in support of his argument, defendant
refers to evidence that the police, when searching Jackson’s home, found what appeared to be a
recently paid cellular telephone bill. Defendant also notes that a cellular telephone was
recovered by police from the area where defendant was standing in the jewelry store. Defense
counsel questioned Detective George about why the police did not investigate defendant’s and
Jackson’s cellular telephone records. Detective George testified that the police investigation did
not yield a “working” cellular telephone for Jackson and he did not believe such action was
necessary where he had enough evidence “for this crime to connect everything together.”
Specifically, Detective George concluded he had ample evidence to connect defendant to
Jackson and Redmond where defendant’s palm prints and fingerprints were on the stolen Jeep,
which was characterized as the “getaway car,” and where an anonymous telephone caller
contacted the Hamtramck Police Department to inquire about both defendant and Redmond.

        Defendant has not met the requirements set forth in Chenault, 495 Mich. at 149-150. The
prosecution did not suppress exculpatory evidence. And there is nothing in the record to suggest
that further investigation into Jackson’s and defendant’s alleged telephone records may have
been in some way favorable or exculpatory to defendant or material to his guilt or innocence.
Finally, as noted above, the prosecutor is not under any obligation to seek and secure evidence
exculpatory to defendant. Coy, 258 Mich. App. at 21. Accordingly, defendant has not established
a violation of the Brady rule and his claim of error is without merit.


                                                -6-
       We affirm defendant’s convictions, but remand to the trial court for possible resentencing
in accordance with the Crosby procedure. We do not retain jurisdiction.



                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Karen M. Fort Hood




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