PEOPLE OF MI V KEITH ADIR CARTER JR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 20, 2010
Plaintiff-Appellee,
v
No. 289986
Wayne Circuit Court
LC No. 08-011715-FC
KEITH ADIR CARTER, JR.,
Defendant-Appellant.
Before: METER, P.J., and MURRAY and BECKERING, JJ.
BECKERING, J. (concurring).
I concur in the outcome, but write separately because I respectfully disagree with the
majority’s analysis concerning offense variable (OV) 12, MCL 777.42. Specifically, I do not
believe that the doctrine of transferred intent as set forth in People v Lovett, 90 Mich App 169;
283 NW2d 357 (1979), applies to the circumstances of this case. Because a rescoring of OV 12
would not change the sentencing guidelines range, however, a remand is unnecessary.
Defendant argues that his trial counsel was ineffective in failing to object to the trial
court’s scoring of ten points for OV 12. I agree. “Sentencing is a critical stage at which a
defendant has a constitutional right to counsel that includes the right to effective assistance of
counsel.” People v Russell, 254 Mich App 11, 18; 656 NW2d 817 (2002), rev’d on other
grounds 471 Mich 182 (2004). Provided that evidence of record supports a particular score, a
sentencing court has discretion in determining the number of points to be scored, People v
Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002), and a scoring decision “for which
there is any evidence in support will be upheld,” People v Elliot, 215 Mich App 259, 260; 544
NW2d 748 (1996).
The scoring of OV 12 involves a determination whether contemporaneous felonious
criminal acts were committed within 24 hours of the sentencing offense that have not and will
not result in a separate conviction. MCL 777.42. A defendant may be assessed ten points under
OV 12 when “[t]wo contemporaneous felonious criminal acts involving crimes against a person
were committed.” MCL 777.42(b).
In this case, although there are various accounts of what transpired, record evidence
supports a finding that defendant was at a party at Allyn Henderson’s house when he engaged in
a physical scuffle with Lisa Hood over whether she would have sex with him. Henderson and
several others physically removed defendant from the house. Defendant charged at Henderson,
-1-
causing Henderson to strike defendant in the head. Defendant walked two houses down the
street, obtained a gun, and walked quickly back toward Henderson’s house, holding the gun with
both hands. Party guests scattered. Defendant stopped at the next door neighbor’s driveway,
turned, held the gun in Henderson’s direction, and fired three or four shots at Henderson while
Henderson stood alone on his porch, hiding behind a cement pillar. At the time defendant shot at
Henderson, no one else was in sight anywhere near the house.
In a waiver trial, defendant was convicted of felonious assault, MCL 750.82; discharge of
a firearm at a building, MCL 750.234b; felon in possession of a firearm, MCL 750.224f; and
possession of a firearm during the commission of a felony, third offense, MCL 750.227b.
Defendant contends that he has already been convicted of the other felonies that he arguably
committed within 24 hours of the sentencing offenses. The prosecution contends that defendant
“committed many other acts of felonious assault against other persons attending the party,
besides the complainant,” and cites Lovett, 90 Mich App at 172, without any explanation
regarding how it applies to this case. Notably, Lovett addresses the doctrine of transferred intent.
The doctrine of transferred intent is explained in Lovett as follows:
“In the unintended-victim (or bad-aim) situation—where A aims at B but
misses, hitting C—it is the view of the criminal law that A is just as guilty as if
his aim had been accurate. Thus where A aims at B with a murderous intent to
kill, but because of a bad aim he hits and kills C, A is uniformly held guilty of the
murder of C. And if A aims at B with a first-degree-murder state of mind, he
commits first degree murder as to C, by the majority view. So too, where A aims
at B with intent to injure B but, missing B, hits and injures C, A is guilty of
battery of C.” [Id. at 171 (citation omitted).]
***
Where crimes against persons are involved, we believe a separate interest
of society has been invaded with each victim and that, therefore, where two
persons are assaulted, there are two separate offenses. [Id. at 174.]
The majority concludes that defendant could have been charged with multiple counts of
felonious assault under MCL 750.82(1) because he made either an attempt to commit a battery or
an unlawful act which placed others besides Henderson in reasonable apprehension of receiving
an immediate battery when he returned to Henderson’s house with a gun, “obviously inciting
fear in the attendees (as evidenced by flight).” See People v Johnson, 407 Mich 196, 210; 284
NW2d 718 (1979). An essential element of the crime of felonious assault is that the defendant
intended “to injure or place the victim in reasonable fear or apprehension of an immediate
battery.” People v Lawton, 196 Mich App 341, 349; 492 NW2d 810 (1992). It is reasonable to
conclude that defendant intended to place Henderson in reasonable fear or apprehension of an
immediate battery. But I do not believe the facts support a conclusion that defendant intended to
place others in reasonable fear or apprehension of an immediate battery.
Even if we applied the doctrine of transferred intent to this case, I do not believe the
record supports a conclusion that defendant’s intent with regard to Henderson could be
transferred to any other “victims”. First, although Henderson testified that people dispersed
-2-
when defendant approached his house holding a gun, he also testified that he saw no one else
anywhere near him or the house when defendant actually stopped walking, pointed the gun in his
direction, and fired. At the time defendant fired three or four shots at Henderson, Henderson was
standing by himself on the front porch, hiding behind a cement pillar. Hood, who appears to
have been the only person inside the house at the time of the shooting, testified that she was in
the back of the house in a bedroom “fixing herself up” when she heard gunshots being fired
outside. She never saw anyone with a gun, and did not know defendant had approached the
house with a gun. Davone Murray testified that he saw Henderson with a gun, he never saw
defendant with a gun, and that he was four or five houses away from Henderson’s house when he
heard shots being fired. Warren Baker testified that he ran from the house after he saw
Henderson with a gun, he was running when he heard gunshots, he never saw defendant with a
gun, and he did not see who did the shooting. Defendant testified that everyone scattered when
Henderson hit him in the head with a gun. Given the facts of this case, particularly the location
of other persons at the time defendant fired at Henderson, I do not agree that persons other than
Henderson could be considered victims of a felonious assault, and thus account for a
contemporaneous felonious criminal act for purposes of OV 12.
The problem with applying the doctrine of transferred intent to circumstances such as
these is that every time anyone witnesses a defendant pull out a gun within range of the witness,
regardless whether the witness is fired upon or is, for that matter, anywhere near the defendant’s
intended target, the witness could be considered the victim of a felonious assault for purposes of
scoring OV 12. OV 9 is intended to account for persons placed in danger of injury or loss of life
due to the defendant’s offense;1 the majority’s ruling effectively makes the scoring of points
under OV 9 a basis for scoring points under OV 12. Accordingly, I believe that the majority’s
application of the doctrine of transferred intent in this case is an improper extension of Lovett.
Because a correction of the scoring of OV 12 would not change the minimum sentence
guidelines range applicable to defendant, there is no need to remand for resentencing. See
People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).
/s/ Jane M. Beckering
1
I agree with the trial court’s scoring of ten points for OV 9, MCL 777.39(1)(c) (two to nine
victims placed in danger of physical injury or death), because Hood was arguably placed in
danger of injury when defendant’s shots penetrated the front of the house.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
