PEOPLE OF MI V KEVIN LAMONT DENNIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 14, 1997
Plaintiff-Appellee,
v
No. 196699
Recorder’s Court
LC No. 95-005717
KEVIN LAMONT DENNIS,
Defendant-Appellant.
Before: Bandstra, P.J., and Murphy and Young, JJ.
PER CURIAM.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549,
and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He
was sentenced to consecutive terms of 22-1/2 to fifty years’ imprisonment for the second-degree
murder conviction and two years’ imprisonment for the felony-firearm conviction. Defendant appeals as
of right. We affirm.
Defendant first argues that he was denied his right to a fair and impartial t ial because of
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numerous alleged improprieties by the prosecution. Defendant’s preserved allegations of impropriety
assert that the prosecutor improperly argued facts not in evidence, expressed his personal opinion,
speculated about what was in the minds of certain witnesses, and vouched for the veracity of evidence.
We disagree.
In reviewing the alleged improprieties in context, and in light of defense arguments and the
relationship they bear to the evidence admitted, we conclude that the prosecution’s comments were
proper. See People v McElhaney, 215 Mich App 269, 284; 545 NW2d 18 (1996); People v
Lawton, 196 Mich App 341, 353; 492 NW2d 810 (1992). The prosecutor was properly commenting
on the evidence and making inferences from the evidence presented regarding the police department’s
diligence in pursuing the case and regarding why witness Brown may have changed his story, and
properly responding to defendant’s argument that the prosecution was on a power trip and did anything
to convict defendant, including breaking the rules of evidence. See McElhaney, supra; Lawton,
supra. Further, because we find that any prejudicial effect from the prosecutor’s unobjected-to
comments could have been cured by cautionary instructions from the court, we conclude that a
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miscarriage of justice will not result from our failure to review those claims. People v Cross, 202 Mich
App 138, 143; 508 NW2d 144 (1993). Therefore, we hold that defendant was not denied his right to
a fair and impartial trial because of any alleged impropriety by the prosecutor. People v Legrone, 205
Mich App 77, 82-83; 517 NW2d 270 (1994).
Defendant next argues that there was insufficient evidence presented to convict him of second
degree murder beyond a reasonable doubt. We disagree. In viewing the evidence in the light most
favorable to the prosecution, we conclude that a rational trier of fact could have found defendant guilty
beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended
441 Mich 1201 (1992). The evidence supported findings that (1) Ellis’ death occurred, (2) that her
death was caused by defendant’s act of shooting at Ellis as well as several other people with whom she
was seated, (3) that no circumstances existed to justify, excuse, or mitigate defendant’s actions, but
rather that defendant acted in retaliation for an altercation that had ensued the previous day, and (4) that
defendant shot with an intent to kill, to inflict great bodily harm, or to create a high risk of death or great
bodily h 1 People v Bailey, 451 Mich 657, 669; 549 NW2d 325 (1996), amended 453 Mich
arm.
1204 (1996). Therefore, under these facts, we conclude that sufficient evidence was produced for a
rational trier of fact to find defendant guilty of second-degree murder beyond a reasonable doubt.
Finally, defendant argues that the trial court erred in scoring offense variable (OV) 6 and that his
sentence of 22-1/2 years’ imprisonment was disproportionate. We disagree.
Sentencing guidelines do not have the force of law; therefore, a claim that a variable was
miscalculated is not in itself a claim of legal error. People v Mitchell, 454 Mich 145, 175; 560 NW2d
600 (1997). “[A]pplication of the guidelines states a cognizable claim on appeal only where (1) a
factual predicate is wholly unsupported, (2) a factual predicate is materially false, and (3) the sentence is
disproportionate.” Id. at 177. Here, because the record indicates that Ellis as well as several other
people were put in danger or injury of loss of life by defendant’s actions, we conclude that the
sentencing court properly assessed defendant with ten points for offense variable six. See Michigan
Sentencing Guidelines (2d ed, 1988), p 77. Therefore, defendant’s guidelines challenge fails under the
Mitchell test. Mitchell, supra. Further, with respect to defendant’s proportionality argument,
defendant’s sentence is within the minimum guidelines range and is therefore presumptively
proportionate. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). We have
reviewed defendant’s arguments and conclude that because defendant has failed to present unusual
circumstances to overcome the presumption of proportionality, his sentence is proportionate. People v
Sharp, 192 Mich App 501, 505-506; 481 NW2d 773 (1992). Accordingly, we conclude that
defendant is not entitled to resentencing.
We affirm.
/s/ Richard A. Bandstra
/s/ William B. Murphy
/s/ Robert P. Young
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The jury was given instructions on second-degree murder and aiding and abetting someone else in
committing an offense. Although the evidence never clearly established who the shooter was, the
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prosecutor theorized that defendant was guilty under the principle of aiding and abetting. People v
Dilling, 222 Mich App 44, 50; 564 NW2d 56 (1997) (an aider and abettor may be convicted and
punished as if he directly committed the offense).
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