PEOPLE OF MI V KYRUS WEEMS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 22, 2004
Plaintiff-Appellee,
v
No. 239660
Wayne Circuit Court
LC No. 01-006261-01
KYRUS WEEMS,
Defendant-Appellant.
Before: Donofrio, P.J., and Griffin and Jansen, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions for assault with intent to murder, MCL
750.83, two counts of assault with intent to commit great bodily harm, MCL 750.84, and
possession of a firearm during the commission of a felony, MCL 750.227b. We affirm. This
appeal is being decided without oral argument pursuant to MCR 7.214(E).
On appeal, defendant asserts that there was no substantial and compelling reason to
sentence him outside the 126 to 210 month sentencing guidelines range, and that the extent of the
departure shows that his 25 to 50 year sentence is disproportionate.
A sentencing court may depart from the appropriate sentence range established under the
sentencing guidelines if the court has a substantial and compelling reason for the departure, and
states the reason on the record. MCL 769.34(3). A departure may be based on a characteristic
already taken into account in determining the appropriate range if the court finds from the record
that the characteristic has been given inadequate weight. MCL 769.34(3)(b). The existence of a
particular factor is a factual determination reviewed for clear error. People v Babcock, 469 Mich
247, 264; 666 NW2d 231 (2003). The determination that a factor is objective and verifiable is
reviewed as a matter of law. Id. The determination that the objective and verifiable factors
constitute a substantial and compelling reason to depart from the statutory minimum sentence is
reviewed for abuse of discretion. Id., 265.
Substantial and compelling reasons exist only in exceptional cases and reasons justifying
departure should keenly or irresistibly grab the court’s attention and be recognized as having
considerable worth in determining the length of a sentence. Id., 257.
The trial court stated the following as it basis for upwardly departing: 1) the fact that one
individual was shot in the back while trying to leave, 2) the fact that another individual was shot
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while just standing there, and 3) the fact that defendant shot another victim twice, and the second
time the victim was on the ground. The factors stated by the trial court are objective and
verifiable, and valid reasons for departure. See id., 258-260. The fact that a victim was shot is a
substantial and compelling reason to depart from the guidelines range, as neither OV 1 nor OV 3
considers that particular fact. People v Lowery, 258 Mich App 167, 171; ___ NW2d ___ (2003).
The degree of the injury and the nature of the shooting are significant factors, and may constitute
substantial and compelling reasons for departure for a particular case. Id. If there is a substantial
and compelling reason for the departure, the extent of the departure is reviewed for abuse of
discretion. Id., 172.
Here, the degree of the injury and the nature of the shootings are substantial and
compelling reasons that justify the extent of the departure. The trial court rejected defendant’s
claim of self defense, and found that his use of a firearm was unjustified. The guidelines do not
account for the circumstances of the shooting or the nature of the injuries received. Defendant
shot one victim in the face, then shot him two more times as he lay on the ground. Defendant
shot another victim that was standing nearby, who subsequently spent three or four weeks in the
hospital. The third victim was shot in the back. Following Lowery, supra, these are substantial
and compelling reasons that justify a departure. These circumstances also establish that the trial
court did not abuse its discretion by the extent of its departure. Id. In addition, the sentence is
proportionate to the seriousness of the crime and the circumstances surrounding the offense and
the offender. See Babcock, supra at 263-264.
Affirmed.
/s/ Pat M. Donofrio
/s/ Richard Allen Griffin
/s/ Kathleen Jansen
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