PEOPLE OF MI V EBONY SHARDA'E JACKSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 14, 2009
Plaintiff-Appellant,
v
No. 282708
Wayne Circuit Court
LC No. 05-010849-FC
EBONY SHARDA’E JACKSON,
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 284430
Wayne Circuit Court
LC No. 05-010849-FC
EBONY SHARDA’E JACKSON,
Defendant-Appellant.
Before: Markey, P.J., and Fitzgerald and Gleicher, JJ.
PER CURIAM.
After a bench trial, the court convicted defendant of arson of a dwelling, MCL 750.72,
and intentional discharge of a firearm at a dwelling, MCL 750.234b. The trial court sentenced
her to three years’ probation for each offense. In Docket No. 282708, the prosecutor appeals as
of right challenging the trial court’s downward departure from the statutory guidelines when
imposing defendant’s sentence. In Docket No. 284430, defendant appeals as of right the validity
of her convictions.1 We affirm defendant’s convictions and sentences.
We first consider defendant’s contention in Docket No. 284430 that the trial court erred
in rejecting her alibi defense as incredible. This Court reviews for clear error a trial court’s
1
This Court consolidated the appeals. People v Jackson, unpublished order of the Court of
Appeals, entered April 16, 2008 (Docket Nos. 282708, 284430).
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findings of fact. People v Rodriguez, 251 Mich App 10, 25; 650 NW2d 96 (2002); MCR
2.613(C). “A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been made.” People
v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). The trier of fact possesses
the authority to resolve questions of credibility and make determinations regarding the weight of
the evidence, which this Court generally will not second guess on appeal. People v Williams,
268 Mich App 416, 419; 707 NW2d 624 (2005).
The trial court found defendant guilty of the charged crimes on a theory that she aided
and abetted her boyfriend, Paco Comonte, in an attack on the victim’s house. Comonte fired a
gun and threw a Molotov cocktail at the house. Earlier in the evening of the attack, defendant
and the victim had a physical altercation, in which the victim had severely beaten defendant.
The victim testified that she later observed defendant in Comonte’s car during the attack on her
house, but did not see defendant participate in any respect. Defendant presented evidence that
when the attack on the victim’s residence occurred, she was at the apartment of her mother’s
boyfriend.
The victim’s trial testimony did not pinpoint the time of the attack on her house, although
she estimated that the attack took place between 11:30 p.m. and 12:00 a.m. The accounts of
several police officers who testified suggested that the attack had taken place around 12:30 a.m.
The officers obtained information from the victim and a neighbor that defendant may have gone
to a nearby apartment where her mother’s boyfriend lived. Officers promptly went to the
apartment building, where they found defendant. Defendant called witnesses, including her
mother, her mother’s boyfriend, and a security guard who worked at the apartment building’s
front desk, who attested to the facts that defendant’s mother had picked up defendant from near
the victim’s residence sometime around 11:00 p.m. on the eve of the shooting, that the security
guard signed defendant into the apartment building at 11:17 p.m., and that defendant had
remained in the apartment until the police arrived hours later.
In summary, the evidence at trial conflicted with respect to whether defendant was
present in her boyfriend’s car at the time of the attack on the victim’s residence. Defendant
correctly notes that only the victim, whose trial testimony otherwise contained various
inconsistencies, reported seeing defendant when the attack on her house occurred. However, it
falls to the trier of fact to resolve credibility determinations and to weigh the evidence. The trial
court expressly recognized the conflicting nature of the evidence:
In terms of the alibi presented by the defense, obviously I know the burden
. . . the defense has no burden on the alibi. The prosecutor has to prove beyond a
reasonable doubt. I know the law. There’s no question that the alibi presented by
the defense was considered by the Court, and I reject it. I don’t find it to be of
such a kind or nature that it was persuasive in the least. And I do find that the
statement given by [the victim], however poor of a witness she was—I do find her
identification to be a good and valid identification. And furthermore, that she
reinforced it when she gave it to the police the very night that it occurred. . . .
And the prosecutor has to prove the defendant committed it, not that the defense
has to prove alibi, which everybody knows. And I know that. And I make the
point of the fact that I reject that alibi for the reasons that I have already stated . . .
.
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Because the trial court possessed the prerogative to make this credibility finding concerning the
alibi defense, and because the trial court’s findings had support in the record, we find no clear
error in the court’s rejection of the alibi defense. MCR 2.613(C); Rodriguez, supra at 25.
We next address the prosecutor’s argument in Docket No. 282708 that the trial court
improperly departed downward from defendant’s minimum sentencing guidelines range. While
the statutory guidelines recommended sentencing defendant to a minimum term between 45 and
75 months’ incarceration, the trial court imposed a term of probation. “A court may depart from
the appropriate sentence range established under the sentencing guidelines . . . if the court has a
substantial and compelling reason for that departure and states on the record the reasons for
departure.” MCL 769.34(3). However, “[t]he court shall not base a departure on an offense
characteristic or offender characteristic already taken into account in determining the appropriate
sentence range unless the court finds from the facts contained in the court record . . . that the
characteristic has been given inadequate or disproportionate weight.” MCL 769.34(3)(b).
On appeal, courts review the reasons given for a departure for clear error.
The conclusion that a reason is objective and verifiable is reviewed as a matter of
law. Whether the reasons given are substantial and compelling enough to justify
the departure is reviewed for an abuse of discretion, as is the amount of the
departure. A trial court abuses its discretion if the minimum sentence imposed
falls outside the range of principled outcomes. [People v Smith, 482 Mich 292,
300; 754 NW2d 284 (2008) (footnotes omitted).]
The sentencing information report departure evaluation prepared by the trial court listed
the following reasons in support of its departure: defendant’s age, the assault of defendant
before the crimes, defendant’s two young children and her recent loss of a child, her lack of a
prior record, her good conduct during the more than 1-1/2-year period between the trial and her
sentencing, her suicidal ideations after her child died in April 2007, and “[a]ll reasons on the
record.” The trial court explained at length at the sentencing hearing the grounds for its
downward departure. The court specifically emphasized on the record the severe and
“merciless” nature of the attack on defendant that precipitated the crimes, the lack of any
evidence that defendant physically participated in any of the charged criminal actions, that
defendant did not actively participate in the incident, that defendant had acquired her GED
“while she was going through what she was going through,” and “the employment where she
was working.” The court concluded that all of these factors taken together constituted
“substantial and compelling reasons to depart.”
The prosecutor initially complains that two facts cited by the trial court, namely
defendant’s possession of employment and her GED, have no support in the record. With
respect to defendant’s employment, the trial court did not observe that she currently had
employment, which defendant specifically denied at the sentencing hearing, only that she had in
the past had employment, as mentioned in the most recent presentence information report
(PSIR).2 Regarding defendant’s education, the PSIRs agree that she completed 11th grade at a
2
The record contains two PSIRs, one dated May 2006, and a second dated November 2007. The
November 2007 PSIR stated that defendant most recently had worked at a Columbus, Ohio
(continued…)
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Detroit high school. According to the earlier PSIR, defendant “report[ed] currently studying to
obtain her GED certificate,” but according to the latter PSIR, defendant had not “received a GED
Certificate.” Because no other evidence in the record we received tended to substantiate that
defendant obtained her GED, we concur in the prosecutor’s assessment that the trial court clearly
erred in finding that defendant had a GED.
The prosecutor also asserts that the trial court inappropriately relied on defendant’s clean
criminal record because the scoring of the prior record variables (PRVs) already took into
account her lack of a prior criminal record. However, the scoring of the PRVs does not permit a
sentencing court to decrease a defendant’s guidelines range on the basis of a clean criminal
record. The floor of the guidelines range is determined by statute and can only be increased by
the scoring of guideline variables. MCL 769.34; MCL 777.21. Furthermore, the PRV scoring
only takes into consideration offenses committed within the preceding 10 years; a zero PRV
score does not necessarily equate to a “clean” criminal record. MCL 777.50. Therefore,
defendant’s entire lack of any prior record is not explicitly accounted for in the scoring of her
PRVs. Moreover, our Supreme Court has previously approved the use of a clean criminal record
as a factor potentially warranting a downward sentencing departure. People v Fields, 448 Mich
58, 77, 80; 528 NW2d 176 (1995).
The prosecutor further maintains that the victim’s assault on defendant does not justify a
downward departure because defendant instigated the confrontation. The testimony of the trial
witnesses agreed that the victim and her friends beat defendant severely, and that defendant
endured kicking, punching, having her face slammed into a stove, and a beating with pots and
pans, all of which caused defendant’s eyes to swell shut. Irrespective who started the fight, the
evidence objectively reflects that defendant suffered a serious, one-sided beating. The
prosecutor ignores that “[i]n evaluating whether a case presents substantial and compelling
reasons to depart below the mandatory minimum, courts should place particular emphasis on
mitigating circumstances surrounding the offense.” Fields, supra at 76.
The prosecutor next suggests that defendant’s lack of criminal entanglements since her
conviction does not amount to a substantial and compelling reason to depart. A defendant’s lack
of criminal involvements between trial and sentencing in most circumstances may seem
unremarkable. But in this case, the period between defendant’s conviction and sentencing
encompassed more than 1-1/2 years, a uniquely long period. And consistent with defendant’s
prior history, she committed no new crimes before her sentencing hearing.
Regarding the trial court’s observance that no evidence proved that defendant actively
participated in the assault, our Supreme Court has explained, “These kinds of circumstances,
which fall short of warranting a finding of innocence but render the defendant less culpable are
often especially compelling because of the possibility that the Legislature did not consider this
type of behavior when it set the statute’s harsh minimum sentences.” Fields, supra at 77.
(…continued)
Subway restaurant, which she managed between July 2006 and October 2006, the month when
defendant gave birth to twins. However, the PSIR noted that “this information could not be
verified.”
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Conviction as an aider and abettor under MCL 767.39 does not necessarily entail or involve only
a minimum amount of assistance in committing a charged crime.
The court also mentioned defendant’s history of mental health issues following the death
of one of her young children. Factors arising after a defendant’s arrest or conviction may qualify
as relevant to a trial court’s departure. Fields, supra at 77. The trial court noted, as documented
in the PSIRs, that defendant had exhibited suicidal tendencies after her very young child died, at
only six months of age. The trial court additionally listed defendant’s age as a relevant
consideration in its sentencing departure. Our Supreme Court has approved age as a relevant
consideration in imposing a downward departure. Fields, supra at 77. Defendant, aged 19 at the
time of the crimes, was 21 years of age when the court imposed sentence.
In summary, we detect no clear error arising from the court’s findings regarding
defendant’s age, the brutal assault on her before the crimes, her lack of a prior criminal record,
her good conduct during the more than 1-1/2-year period between the trial and her sentencing,
her recent loss of a child, and her suicidal ideations after her child died. We find that as a matter
of law each reason qualifies as objective and verifiable, and that the unique circumstances of this
case, either standing alone or taken together, are “of considerable worth in determining the
length of the sentence and . . . keenly and irresistibly grab[bed] the court’s attention.” Smith,
supra at 299-300. In light of the circumstances emphasized by the trial court, including
defendant’s age, the “merciless” assault on her, her lack of a criminal record, her past
employment, her good conduct after trial, her loss of a child shortly before sentencing, and her
resultant mental health issues, we cannot conclude that the trial court abused its discretion in
departing downward from the guidelines range. The trial court’s rejection of a minimum term of
imprisonment between 45 and 75 months as calculated under the sentencing guidelines, and its
decision to instead sentence her to a three-year probationary term does not strike us as “fall[ing]
outside the range of principled outcomes,” because the downward departure was “proportionate
to . . . defendant’s conduct and prior criminal history.” Id. at 300. To the extent that the trial
court mistakenly found that defendant had received her GED, we remain entirely convinced that
even without considering this potentially mitigating factor in any respect, the trial court surely
would have imposed the same downward departure. People v Babcock, 469 Mich 247, 260-261;
666 NW2d 231 (2003).
Affirmed.
/s/ Jane E. Markey
/s/ E. Thomas Fitzgerald
/s/ Elizabeth L. Gleicher
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