PEOPLE OF MI V MARK ANDREW OTT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 16, 2011
Plaintiff-Appellee,
v
No. 298529
Oakland Circuit Court
LC No. 09-225007-FC
MARK ANDREW OTT,
Defendant-Appellant.
Before: CAVANAGH, P.J., and WILDER and OWENS, JJ.
PER CURIAM.
Defendant was convicted of two counts of guilty but mentally ill of first-degree
premeditated murder, MCL 750.316(a), and two counts of guilty but mentally ill of seconddegree murder, MCL 750.317, after a jury trial. He was sentenced to concurrent terms of natural
life imprisonment without parole for the first-degree premeditated murder convictions and 37.5
to 60 years’ imprisonment for the second-degree murder convictions. Defendant appeals as of
right. We affirm defendant’s first-degree murder convictions but vacate defendant’s seconddegree murder convictions.
It is undisputed that defendant stabbed and killed his parents. Instead, defendant
contends that he was legally insane at the time of the offense and maintains that there was
insufficient evidence to support the jury’s verdict that he was guilty but mentally ill. We
disagree.
A challenge to the sufficiency of the evidence is reviewed de novo and in a light most
favorable to the prosecution to determine “whether any rational trier of fact could have found
that the essential elements of the crime were proven beyond a reasonable doubt.” People v
Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007).
Insanity is an affirmative defense. MCL 768.21a(1). A defendant is not guilty by reason
of legal insanity if, as a result of mental illness, the defendant “lacks substantial capacity either to
appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or
her conduct to the requirements of the law.” MCL 768.21a(1). On the other hand, a person will
be found guilty but mentally ill if the person “has proven by a preponderance of the evidence that
he or she was mentally ill at the time of the commission of that offense,” but cannot establish “by
a preponderance of the evidence that he or she lacked the substantial capacity either to appreciate
the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct
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to the requirements of the law.” MCL 768.36(1). In Michigan, this burden of proof is on the
defendant because a defendant is presumed sane. People v Jones, 151 Mich App 1, 5; 390
NW2d 189 (1986).
Preliminarily, defendant maintains that the prosecution had to prove his legal sanity by a
preponderance of the evidence once he had provided proof of his insanity by the same standard.
Before 1994, the burden would have shifted to the prosecution. See People v Savoie, 419 Mich
118, 126; 349 NW2d 139 (1984). However, after MCL 768.21a(3) was amended in 1994, the
statute simply stated that “[t]he defendant has the burden of proving the defense of insanity by a
preponderance of the evidence.” This means that the prosecution is no longer “shouldered with
the burden of proving the failure of an affirmative defense.” People v Mette, 243 Mich App 318,
330; 621 NW2d 713 (2000). As a result, any of defendant’s arguments relying on the
prosecution failing to “meet its burden” are without merit.
Here, both defendant and the prosecution presented conflicting evidence regarding
defendant’s mental state at the time of the crimes. Defendant relies on the fact that he presented
more expert witnesses than the prosecution as proof positive that he established by a
preponderance of the evidence that he was legally insane. While doing so, defendant discounts
the fact that “it is the province of the jury to determine questions of fact and assess the credibility
of witnesses.” People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998). Thus, defendant
essentially is asking us to substitute our judgment for the jury’s to find that the defense experts
were more credible than the other evidence presented. We decline.
A jury enjoys the same power to assess the credibility of experts and lay persons
regarding the issue of insanity. “The jury is the ultimate judge of defendant’s
sanity at the time of the crime, and in this case, since it had before it evidence of
defendant’s behavior and state of mind upon the basis of which it could have
found defendant sane at that time, it was not bound by the [defendant’s] expert
opinion testimony . . . .” [People v Weddell, 485 Mich 942, 947-949; 774 NW2d
509 (2009) (Corrigan, J., concurring) (quoting People v Krugman, 377 Mich 559,
563; 141 NW2d 33 (1966))].
A review of the record reveals that six experts testified for the defense and agreed that
defendant is schizophrenic. However, four of the six experts examined defendant to determine
his competency to stand trial, not his sanity at the time of the offense. Of the two experts who
assessed defendant’s sanity at the time of the offense, only one was a clinical and forensic
psychologist. In rebuttal, the prosecution presented a clinical and forensic psychologist who
opined that defendant was not legally insane at the time of the offense. In addition, a police
officer who had interviewed defendant on the day of the killings testified that defendant was
acting rationally and logically.
“[T]he question of the sufficiency of evidence is to be resolved by the jury unless there is
no evidence at all upon a material point.” People v VanDiver, 79 Mich App 539, 541; 261
NW2d 78 (1977). Here, there was evidence to support a finding that defendant was not legally
insane at the time of the killings. Therefore, the jury was within its right, after weighing the
evidence, interpreting the experts’ opinions, and assessing the witnesses’ credibility, to find that
defendant was guilty but mentally ill. People v Renno, 392 Mich 45, 60; 219 NW2d 422 (1974).
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We further note that defendant’s reliance on Burks v United States, 437 US 1; 98 S Ct
2141; 57 L Ed 2d 1 (1978), is misplaced. First, in Burks, different burdens of proof were present
since the prosecution had the burden of proving that defendant was sane beyond a reasonable
doubt. Id. at 3. Second, the Burks Court did not examine whether any burden was met; instead,
it examined whether double jeopardy was implicated. Id. at 5. Thus, Burks is of no consequence
in the instant matter.
Defendant next argues that his convictions on four counts of murder for the murders of
just two people violated the constitutional protection against double jeopardy, US Const, Ams V,
XIV. The prosecution does not contest this, and we agree. Double jeopardy does not allow for
multiple punishments for the same offense, and convictions for both premeditated murder and
felony murder arising from the death of a single victim have been found to violate double
jeopardy. People v Bigelow, 229 Mich App 218, 200; 581 NW2d 744 (1998). Because
defendant was convicted of two counts of first-degree premeditated murder and two counts of
second-degree murder when there were only two deaths, we vacate the second-degree murder
convictions.
Affirmed in part, vacated in part and remanded for revision of the judgment of sentence
in accord with this opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
/s/ Donald S. Owens
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