PEOPLE OF MI V CARL EUGENE BETZER JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 15, 2002
Plaintiff-Appellee,
v
No. 227647
Hillsdale Circuit Court
LC No. 99-238705-FC
CARL EUGENE BETZER, JR.,
Defendant-Appellant.
Before: Meter, P.J., and Markey and Owens, JJ.
PER CURIAM.
Defendant was convicted by a jury of involuntary manslaughter, MCL 750.321, for the
death of his girlfriend’s child. The trial court sentenced defendant to eighty-six to 180 months’
imprisonment. Defendant now appeals by right. We affirm.
Defendant first asserts that the jury’s verdict was against the great weight of evidence.
We disagree.
This Court will not address a claim that a conviction is against the great weight of
evidence unless the defendant moved for a new trial in the trial court, absent manifest injustice.
People v Noble, 238 Mich App 647, 658; 608 NW2d 123 (1999). Because defendant failed to
move for a new trial, this issue is unpreserved. We conclude that manifest injustice would not
result from failure to review this issue1 because defendant’s argument is largely that the
prosecution witnesses were not credible and that the Michigan Supreme Court acknowledged
“the power of the trial judge to sit as a thirteenth juror, and grant a new trial based upon a lack of
credibility of witnesses.” Four years ago, our Supreme Court specifically rejected the “thirteenth
juror” approach to credibility questions in the context of a great weight of the evidence issue and
ruled that where there is conflicting evidence, the question of credibility ordinarily should be left
for the factfinder. People v Lemmon, 456 Mich 625, 640, 642-643, 647; 576 NW2d 129 (1998).
This issue is wholly without merit.
1
In addressing this unpreserved issue on appeal, we also conclude that there has been no
showing of a plain error that affected defendant’s substantial rights. People v Carines, 460 Mich
750, 763, 774; 597 NW2d 130 (1999).
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Defendant also asserts that offense variables 3, 6, and 10 were incorrectly scored,
warranting resentencing before a new judge. Again, we disagree.
On appeal, a party may not challenge the scoring of the sentencing guidelines or the
accuracy of the information used in imposing a sentence within the guidelines range unless he
raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to
remand filed with this Court. MCL 769.34(10); People v Harmon, 248 Mich App 522, 530; ___
NW2d ___ (2001). Because defendant only objected to the scoring of offense variables 6 and
10, he forfeited any issue on appeal regarding the propriety of the score assessed for offense
variable three. Id.
Because the crime for which defendant was sentenced was committed on or about
October 25, 1999, the statutory guidelines apply. People v Babcock, 244 Mich App 64, 72; 624
NW2d 479 (2000). “The interpretation and application of statutes is a question of law that is
reviewed de novo by this Court.” People v Al-Saiegh, 244 Mich App 391, 394; 625 NW2d 419
(2001).
First, OV 6 concerns the “offender’s intent to kill or injure another individual.” MCL
777.36. “An unlawful act, committed with the intent to injure or in a grossly negligent manner,
that proximately causes death is involuntary manslaughter.” People v McCoy, 223 Mich App
500, 502; 566 NW2d 667 (1997). There was evidence that the child’s skull was hit against
another object at least two, and maybe three times. The jury concluded that defendant intended
to injure the child. In addition, the deputy coroner testified that every bone except one had been
crushed in the upper portion of the child’s skull. Where such tremendous force is used, several
times, to inflict such extensive harm, there is clearly an intent to injure, and therefore, ten points
were properly assessed. MCL 777.36(1)(c).
Second, OV 10 concerns the “exploitation of a vulnerable victim.” MCL 777.40. MCL
777.40(1)(c) provides that five points be assessed where “[t]he offender exploited a victim by his
or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the
influence of drugs, asleep, or unconscious.” Defendant, an adult, exploited the difference in size
and strength between himself and the infant victim. He could not have inflicted the injuries in
the manner that he did on a person of his own size and strength. Consequently, we find that OV
10 was correctly scored.
We affirm.
/s/ Patrick M. Meter
/s/ Jane E. Markey
/s/ Donald S. Owens
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