COA 374845 PEOPLE OF MI V TIERNAN QUINN GOLEMBIEWSKI Opinion - Per Curiam - Unpublished 10/8/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
October 08, 2026
9:00 AM
v No. 374845
St. Clair Circuit Court
TIERNAN QUINN GOLEMBIEWSKI, LC No. 24-001632-FC
Defendant-Appellant.
Before: MARIANI, P.J., and O’BRIEN and WALLACE, JJ.
PER CURIAM.
Defendant appeals as of right from his jury-trial convictions of assault with intent to do
great bodily harm less than murder (AWIGBH), MCL 750.84; domestic violence, MCL 750.81(2);
and unlawful imprisonment, MCL 750.349b.1 The trial court sentenced defendant as a fourth-
offense habitual offender, MCL 769.12, to serve 15 to 30 years’ imprisonment each for his
AWIGBH and unlawful-imprisonment convictions, and 93 days in jail for his domestic-violence
conviction. On appeal, defendant argues: (1) the trial court’s exclusion of defendant’s statement
asserting the victim, AS, was arrested for domestic violence in the past violated defendant’s due-
process right to present a defense; (2) the evidence was insufficient to sustain defendant’s
conviction of unlawful imprisonment; (3) the trial court’s refusal to instruct the jury on self-
defense violated defendant’s due-process right to present a defense; and (4) defendant is entitled
to resentencing because the trial court improperly assessed 50 points for offense variable (OV) 7.
We affirm.
1 Defendant was also charged with one count of first-degree criminal sexual conduct, MCL
750.520b, and one count of second-degree criminal sexual conduct, MCL 750.520c. However, the
jury could not reach a unanimous verdict and an order of nolle prosequi entered as to these two
counts following sentencing.

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I. FACTS
AS and defendant met on an online dating website in May 2024, when AS was 19 years
old and defendant was 25 years old. They moved into an apartment together about one month
later. On July 4, 2024, AS and defendant attended an Independence Day gathering at the home of
AS’s family friend. Defendant was talking with AS’s “aunt” more than he was talking with AS,
which made her upset. AS confronted defendant, and they began an argument that lasted the entire
evening. Upon returning to the apartment, the argument turned physical, but AS and defendant
recounted substantially different versions of events.
According to AS, after she entered the apartment, defendant immediately pushed her to the
floor and repeatedly strangled her until she nearly lost consciousness. Defendant took AS’s cell
phone, preventing her from contacting anyone for help, and found a recent conversation between
AS and her ex-boyfriend, which angered him. AS was able to run to the bathroom and lock herself
inside. After attempting to use a pen to unlock the door, defendant banged on the door until AS
eventually opened it, but not before grabbing a curling iron to use for her defense. He continued
to physically attack her, so she hit him with the curling iron “[a]s many times as [she] could.”
Defendant only stopped because he had an asthma attack (and AS retrieved an inhaler for him).
Defendant then requested oral sex from AS and subsequently dragged her into the bedroom to have
sex with him. She felt she had to submit because defendant would hurt her if she resisted. AS
attempted to leave the apartment several times but defendant prevented her from escaping.
AS’s mother picked her up the next morning and AS showed her the bruises around her
neck. They contacted the police, who referred AS to a Sexual Assault Nurse Examiner (SANE
nurse). The SANE nurse noted multiple areas of abrasions and bruising. The bruising on AS’s
neck and other symptoms she was experiencing were consistent with strangulation.
On the other hand, defendant testified that he approached AS in the bedroom to try to “fix”
things when she accused him of being unfaithful because he received a text message from another
woman earlier in the evening. He went to the bathroom to take “a break from the arguing.” AS
followed several minutes later, demanding to see the messages, which he had already deleted.
“[F]urious,” AS grabbed the curling iron and began hitting defendant on the head with it.
Defendant explained he impulsively reached out in “self-defense” and grabbed AS’s neck,
accidentally squeezing “just a little bit.”
The day after the argument, police officers arrested defendant, who admitted to arguing
with AS but denied that it turned physical. The interviewing officer recalled defendant’s
explanation for the strangulation marks on AS’s neck was her preference for rough sex. Defendant
did not mention acting in self-defense or accidentally grabbing AS in the interview.
At trial, defendant testified that he and AS agreed to look through each other’s cell phones,
and when he found text messages from AS’s ex-boyfriend on her cell phone, he asked her “if this
was the man that she got arrested for with [sic] domestic violence before.” The court sustained
the prosecutor’s objection to the statement. Defense counsel requested a self-defense jury
instruction, which the trial court declined to give, explaining: “[I]n order to argue self-defense as
to the underlying charge of assault by suffocation, he has to intend to engage in that conduct for
purposes of self-defense, and that’s not what his testimony was.” Defendant was convicted as

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indicated. At sentencing, defense counsel did not object to the assessment of 50 points for OV 7.
The court opined, “this was a torturous event that went on for many, many hours.” Regarding
defendant’s unlawful imprisonment conviction, the court commented: “[T]here was no way she
was going anywhere. You weren’t going to let her.” Defendant was sentenced at the ceiling of
the sentencing guidelines.
II. DISCUSSION
A. MRE 404
Defendant argues evidence of the alleged domestic violence incident between AS and her
ex-boyfriend “should have been admitted under the ‘reverse Rule 404(b)’ doctrine” as evidence
defendant was not the initial aggressor, and the exclusion violated his constitutional right to present
a defense. We disagree.
A party must raise an issue before the trial court to preserve it for appeal, and “[a] challenge
on one ground before the trial court is not sufficient to preserve a challenge on another ground on
appeal.” People v Swenor, 336 Mich App 550, 562; 971 NW2d 33 (2021). While defendant raised
and sought to introduce evidence about AS’s alleged domestic violence arrest at trial, he did not
raise his constitutional claim below, so that claim is unpreserved. This Court reviews a trial court’s
decision to admit or exclude evidence for abuse of discretion. People v Thorpe, 504 Mich 230,
251; 934 NW2d 693 (2019). Unless the trial court’s decision regarding admitting evidence falls
“outside the range of principled outcomes,” it will not be disturbed. Id. at 251-252 (quotation
marks citation omitted). An abuse of discretion occurs when a trial court “admits evidence that is
inadmissible as a matter of law,” and “this Court reviews de novo whether a rule or statute
precludes admission of evidence as a matter of law.” People v Roper, 286 Mich App 77, 91; 777
NW2d 483 (2009). We review defendant’s unpreserved claim of constitutional error “for plain
error affecting defendant’s substantial rights.” People v Thigpen, 349 Mich App 437, 449; 27
NW3d 647 (2023). “To avoid forfeiture under the plain error rule, three requirements must be
met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain
error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
“[T]he right to present a defense extends only to relevant and admissible evidence.” People
v Solloway, 316 Mich App 174, 198; 891 NW2d 255 (2016) (quotation marks and citation
omitted). In general, relevant evidence is admissible. Roper, 286 Mich App at 91, citing MRE
402. Admissibility of relevant character evidence, however, is “strictly limited because of its
highly prejudicial nature.” Id. For this reason, MRE 404(a) prohibits the introduction of character
evidence “to prove that on a particular occasion the person acted in accordance with the character
or trait.” MRE 404(a)(1); see also Roper, 286 Mich App at 91. MRE 404(b)(1) also prohibits the
introduction of evidence regarding “any other crime, wrong, or act” offered “to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the
character.” MRE 404(b)(1); see also Roper, 286 Mich App at 91. However, if it is material, other
acts evidence may be admissible for another purpose, including “motive, opportunity, intent,
preparation, scheme, plan, or system in doing an act, knowledge, identity, absence of mistake, or
lack of accident.” MRE 404(b)(2); see also Roper, 286 Mich App at 92. In other words,
“[e]vidence of other crimes or bad acts is admissible when it is offered for a proper purpose, MRE
404(b)(1); it is relevant under MRE 402; and its probative value is not substantially outweighed

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by unfair prejudice, MRE 403.” People v Bergman, 312 Mich App 471, 493; 879 NW2d 278
(2015).
Defendant cites a federal case, United States v Seals, 419 F3d 600 (CA 7, 2005), to explain
the admissibility of “reverse 404(b) evidence.”2 Id. at 606. “[A] defendant can seek to admit
evidence of other crimes under this rule if it tends to negate the defendant’s guilt of the crime
charged against him.” Id. In determining the admissibility of reverse 404(b) evidence, a lower
court “must balance ‘the evidence’s probative value under Rule 401 against considerations such
as prejudice, undue waste of time, and confusion of the issues under Rule 403.’ ” Id. at 606,
quoting United States v Reed, 259 F3d 631, 634 (CA 7, 2001). The standard for admissibility of
reverse 404(b) evidence is lower than for standard 404(b) evidence “ ‘because prejudice to the
defendant is not a factor.’ ” Seals, 419 F3d at 606, quoting United States v Stevens, 935 F2d 1380,
1404 (CA 3, 1991).
As noted, assuming defendant’s statement about AS’s alleged previous arrest for domestic
violence is characterized as “other acts” evidence under MRE 404(b), it was admissible only if it
was relevant, offered for a proper purpose, and its probative value was not outweighed by unfair
prejudice. Bergman, 312 Mich App at 493. Defendant argues evidence of AS’s alleged arrest for
domestic violence was offered for the proper purpose of negating his guilt by explaining “why he
felt the need to defend himself” and suggests AS was the initial aggressor. Inherent in this assertion
is the assumption that AS was acting in conformity with her supposed “character of being a violent
person.” MRE 404(a)(2)(B) permits admission of evidence of “an alleged victim’s trait for
aggression” in a homicide case, when self-defense is an issue; this is not a homicide case, however,
and defendant correspondingly makes no argument for admission of this evidence under MRE
404(a) or under any other court rule aside from MCR 404(b).
In essence, defendant’s claim that the reverse 404(b) evidence was offered to support his
self-defense claim flows from character evidence that AS acted in conformity with her trait for
violence or aggression. This type of character evidence is not admissible in this case. Because
character evidence is inadmissible to prove a person acted in conformity with that trait on a
particular occasion, MRE 404(a)(1), the trial court did not abuse its discretion by excluding it.
Accordingly, defendant’s constitutional right to present a defense was not violated. Solloway, 316
Mich App at 198.
As to MRE 404(b), defendant maintains that evidence regarding AS’s alleged prior arrest
was admissible because it was not offered simply as proof of AS’s character, but for the proper,
nonpropensity purpose of supporting his claim of self-defense. Both below and on appeal,
however, defendant has not meaningfully developed this assertion. He has made no offer of proof,
for instance, regarding what evidence he would have offered about the alleged arrest beyond the
passing mention of it he made at trial. Nor has he otherwise attempted to substantiate or explain
any of the details of the alleged arrest or the conduct and circumstances underlying it, or which of
those details he might have known at the time of the events at issue in this case—and thus how
exactly the alleged arrest might have demonstrated his honest and reasonable belief that his use of
2 Seals, 419 F3d at 606, refers to Rule 404(b) of the Federal Rules of Evidence, which is
substantially similar to MRE 404(b).

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force against AS was necessary to defend himself in this case. See, e.g., MCL 780.972. He has
also made no effort to explain why whatever “probative value” this evidence may have possessed
in that regard would not have been “substantially outweighed by” one or more of the dangers set
forth in MRE 403. Given the record and arguments before us on this point, we cannot conclude
that the trial court abused its discretion by excluding this evidence or that defendant’s
constitutional right to present a defense was violated as a result. Solloway, 316 Mich App at 198.
B. SUFFICIENCY OF EVIDENCE
Defendant contends that restraint is an element of the unlawful imprisonment statute, MCL
750.349b, and that there is insufficient evidence that he restrained AS under the relevant
circumstances delineated in that section. We disagree.
Challenges to the sufficiency of the evidence are reviewed de novo. Solloway, 316 Mich
App at 180. Evidence is reviewed “in the light most favorable to the prosecution” to determine
“whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond a
reasonable doubt.” People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018) (quotation marks
and citation omitted). Under this deferential standard of review, this Court must “ ‘draw all
reasonable inferences and make credibility choices in support of the jury verdict.’ ” Id., quoting
People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Further, all evidentiary conflicts
must be resolved in the prosecution’s favor. Solloway, 316 Mich App at 180-181.
The unlawful imprisonment statute, MCL 750.349b, states, in relevant part:
(1) A person commits the crime of unlawful imprisonment if he or she
knowingly restrains another person under any of the following circumstances:
* * *
(b) The restrained person was secretly confined.
(c) The person was restrained to facilitate the commission of another felony
or to facilitate flight after commission of another felony. [People v Railer, 288
Mich App 213, 217; 792 NW2d 776 (2010), quoting MCL 750.349b.]
As used in MCL 750.349b, “ ‘restrain’ means “to forcibly restrict a person’s movements or to
forcibly confine the person so as to interfere with that person’s liberty without that person’s
consent or without lawful authority.” The restraint need not occur “for any particular length of
time and may be related or incidental to the commission of other criminal acts.” MCL
750.349b(3)(a). “To ‘secretly confine’ means either ‘[t]o keep the confinement of the restrained
person a secret’ or ‘[t]o keep the location of the restrained person a secret.’ ” Railer, 288 Mich
App at 217, quoting MCL 750.349b(3)(b)(i) and (ii).
In Railer, the defendant and the victim were in a dysfunctional romantic relationship and,
one night, the defendant took the victim’s phone and keys and “told her that she was going to
spend time with him.” Id. at 214-215. The victim attempted to escape, but the defendant dragged
her by her hair across the parking lot and into her car, then drove to another parking lot where he
punched and strangled her until she lost consciousness. Id. at 215. When she regained

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consciousness, the victim’s sister called, and the defendant threatened to hang up if the victim
revealed their location. Id. at 215-216. The victim convinced the defendant to go into a store
alone and she was able to contact the police while he was inside. Id. at 216. This Court affirmed
the defendant’s unlawful-imprisonment conviction because it was “clear” the victim was “forcibly
confined against her will” when she was dragged by her hair and forced into the car. Id. at 218.
The victim “dared not leave while in [the] defendant’s presence” because he had punched and
strangled her when she expressed “displeasure with the situation.” Id. This Court also found the
defendant’s interference with the victim’s communication with her sister revealed his intention to
keep the victim’s confinement secret, satisfying MCL 750.349b(1)(b) (“[t]he restrained person
was secretly confined”). Railer, 288 Mich App at 217-218.
In this case, AS asserted that defendant immediately pushed her to the ground and began
repeatedly strangling her after she entered the apartment, and she believed she was going to die.
AS tried to yell for help, but defendant covered her mouth with one hand and strangled her with
the other. Defendant took AS’s cell phone and text messaged AS’s mother, pretending to be AS,
asserting she and defendant were “good.” His control over her cell phone prevented AS from
reaching out for help. AS attempted to leave several times. She “got out one time. [She] made it
halfway into the hallway, and he ran up to the door and told [her] to get [her] a*s back inside.”
She complied because she was afraid “he was just going to tackle [her] and bring [her] back in.”
At other times, he physically grabbed her and prevented her from leaving. Defendant continued
to physically assault and strangle AS in the apartment.
Defendant challenges the sufficiency of evidence to prove he knowingly restrained AS to
facilitate the commission of another felony. MCL 750.349b. However, when viewed in the light
most favorable to the prosecution, Oros, 502 Mich at 239, AS’s testimony supports defendant’s
conviction. Defendant began assaulting AS when she entered the apartment and prevented her
from leaving or calling for help. Like the defendant in Railer, 288 Mich App at 215-216, defendant
used physical violence and the threat of physical violence to exert control over AS, amounting to
a forcible restriction in her freedom of movement. MCL 750.349b(3)(a). In this case, the evidence
demonstrates defendant restrained AS to continue his physical assault. MCL 750.349b(1)(c).
Additionally, defendant’s interference with AS’s cellular phone prevented her from seeking help,
reflecting his intention to keep AS’s confinement a secret. This conduct satisfies MCL
750.349b(1)(b) (“[t]he restrained person was secretly confined”). Railer, 288 Mich App at 217-
218.
We find that the evidence in this matter is more than sufficient to sustain defendant’s
conviction because he restricted AS’s movements by threat of violence, AS’s testimony suggests
he did so to commit AWIGBH, and because he took actions to attempt to keep AS’s confinement
a secret. A rational juror would be justified in finding that defendant was guilty of unlawful
imprisonment beyond a reasonable doubt. Oros, 502 Mich at 239.
C. JURY INSTRUCTIONS ON SELF-DEFENSE
Defendant asserts the trial court’s erroneous refusal to instruct the jury on defendant’s
claim of self-defense deprived defendant of his rights to present a defense and to a properly
instructed jury. Again, we disagree.

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This Court reviews de novo “questions of law arising from the provision of jury
instructions,” People v Guajardo, 300 Mich App 26, 34; 832 NW2d 409 (2013), and reviews “a
trial court’s determination whether a jury instruction is applicable to the facts of a case” for an
abuse of discretion, People v Thigpen, 349 Mich App at 449. “ ‘An abuse of discretion occurs
when the court chooses an outcome that falls outside the range of reasonable and principled
outcomes.’ ” Guajardo, 300 Mich App at 34, quoting People v Unger, 278 Mich App 210, 217;
749 NW2d 272 (2008). In determining whether an error occurred, the instructions are considered
in their entirety. Thigpen, 349 Mich App at 449. Reversal is unwarranted “if the ‘instructions
fairly presented the issues to be tried and sufficiently protected the defendant’s rights.’ ” Id.,
quoting People v Eisen, 296 Mich App 326, 330; 820 NW2d 229 (2012). “The instructions must
include all elements of the crime charged and must not exclude consideration of material issues,
defenses, and theories for which there is supporting evidence.” People v Kurr, 253 Mich App 317,
327; 654 NW2d 651 (2002).
[I]f an applicable instruction was not given, the defendant bears the burden of
establishing that the trial court’s failure to give the requested instruction resulted in
a miscarriage of justice. Reversal for failure to provide a jury instruction is
unwarranted unless it appears that it is more probable than not that the error was
outcome determinative. [People v. McKinney, 258 Mich App 157, 163, 670 NW2d
254 (2003) (quotation marks and citations omitted).]
Whether a defendant was denied their constitutional right to present a defense is reviewed
de novo. Kurr, 253 Mich App at 327. While defendant argued below that he was entitled to a
self-defense jury instruction, he did not raise his constitutional claim. As such, the constitutional
claim is unpreserved. Thorpe, 504 Mich at 252. Unpreserved claims of constitutional error are
reviewed for plain error affecting the defendant’s substantial rights. Thigpen, 349 Mich App at
449. “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must
have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Carines, 460 Mich at 763 (citation
omitted).
A criminal defendant is entitled to a properly instructed jury, Guajardo, 300 Mich App at
34, and “[i]nstructional errors that directly affect a defendant’s theory of defense can infringe a
defendant’s due process right to present a defense.” Kurr, 253 Mich App at 326-327. Before a
trial court is required to instruct a jury on affirmative defenses asserted by a defendant, the
defendant “must produce some evidence on all elements of the defense.” Guajardo, 300 Mich
App at 34 (quotation marks and citation omitted).
In this case, defendant claimed that he acted in self-defense. The Self-Defense Act (SDA),
MCL 780.971 et seq., states, in relevant part:
(1) An individual who has not or is not engaged in the commission of a
crime at the time he or she uses deadly force may use deadly force against another
individual anywhere he or she has the legal right to be with no duty to retreat if
either of the following applies:

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(a) The individual honestly and reasonably believes that the use of deadly
force is necessary to prevent the imminent death of or imminent great bodily harm
to himself or herself or to another individual.
* * *
(2) An individual who has not or is not engaged in the commission of a
crime at the time he or she uses force other than deadly force may use force other
than deadly force against another individual anywhere he or she has the legal right
to be with no duty to retreat if he or she honestly and reasonably believes that the
use of that force is necessary to defend himself or herself or another individual from
the imminent unlawful use of force by another individual. [MCL 780.972.]
As recognized by our Supreme Court: “A finding that a defendant acted in justifiable self-
defense necessarily requires a finding that the defendant acted intentionally, but that the
circumstances justified his actions.” People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010)
(quotation marks and citation omitted).3 See also People v Nelson, ___ Mich ___, ___; ___ NW3d
___ (2025) (Docket No. 166297); slip op at 11. As such, if defendant “honestly and reasonably”
believed his use of force was necessary to defend himself from imminent death, great bodily harm,
or the unlawful use of force, and he intentionally used force to defend himself, his self-defense
claim was possibly applicable to the facts.
The trial court declined to instruct the jury on self-defense because it found that defendant’s
testimony established he did not act intentionally in response to AS hitting him with the curling
iron. He explained: “I reach[ed] out to, out of self-defense and just impulse, I reached my hand
out. And I go to push her away, but, uh, I ended up grabbing her or whatever.” Defendant grabbed
AS’s neck “out of impulse.” He did so because “it actually hurt being hit on the head with a pretty
dense metal curling iron. Um, I didn’t mean to harm her. I was just, you know, just caught off
guard and just trying to defend myself in the process.” He squeezed AS’s neck, “just a little bit”
and “it wasn’t on purpose.” Defendant acknowledged he could have walked out of the bathroom.
He decided to push AS away, and instead of pushing her, he “accidentally” grabbed her neck and
“accidentally” squeezed “out of impulse.” The trial court opined defendant’s testimony did not
support a self-defense instruction: “[I]n order to argue self-defense as to the underlying charge of
assault by suffocation, he has to intend to engage in that conduct for purposes of self-defense, and
that’s not what his testimony was.”
Although the trial court correctly found that defendant’s testimony indicated that he did
not intend to repeatedly strangle AS, the court incorrectly ignored the fact that his testimony
nonetheless established that he intended to use some type of physical force against AS, which he
alleged to have undertaken in order to stop her from continuing to strike him with a curling iron.
As a result, we find that defendant did, in fact, introduce sufficient evidence to demonstrate that
he acted intentionally. Dupree, 486 Mich at 707. While there were other potential bases upon
3 In Dupree, the Supreme Court analyzed the availability of self-defense for the crime of felon-in-
possession under the common law because the crime predated the SDA’s effective date. Dupree,
486 Mich at 703-709.

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which the court could have arguably refused to provide the self-defense instruction in this matter,
including significant evidence demonstrating that defendant was the aggressor, we need not decide
whether the trial court nonetheless properly excluded the instruction, i.e., whether the court made
the right decision for the wrong reason, because defendant cannot demonstrate that it was more
probable than not that the failure to provide the instruction was outcome determinative.
A staggering amount of evidence was introduced in support of the prosecution’s theory
that defendant committed AWIGBH in the instant case, which included far more than just the
testimony of AS. While defendant testified that he impulsively grabbed AS’s neck with his hand,
in self-defense, and squeezed it “just a little bit,” that testimony was contradicted by photographic
evidence showing a significant amount of bruising to the neck, i.e., the photographs corroborated
AS’s testimony that he actually strangled her. Witnesses at trial authenticated photographs
demonstrating that AS suffered bruising to a significant number of areas in additional to her neck,
including her shoulder, thigh, cheek, the back of her arm, below her kneecap, and underneath her
chin, as well as an abrasion to her ankle. Additionally, AS’s mother testified to observing her
daughter after the incident and seeing what appeared to be a handprint from being slapped or held
on her side, a big bruise on AS’s thigh, and what appeared to be a bite mark on the back of her
neck. She further testified that she saw her daughter the night prior to the incident with defendant
and did not witness her having any such injuries at that time. Further, a SANE nurse who treated
AS following the incident testified that the bruising was consistent with strangulation.4 The nurse
also testified about various other bruises suffered by AS, as depicted in photographs entered as
evidence at trial, including a bruise to the rib cage area that bore a pattern consistent with AS’s
statement that defendant elbowed her there, and a five-centimeter bruise to the right knee that was
consistent with AS’s testimony that defendant pushed her down. The nurse further testified that,
during the examination, AS reported significant pain to the neck and throat area, “as well as pretty
much her entire body,” and that AS said she was coughing up blood and was nauseous. In total,
the prosecution admitted over 50 exhibits in this matter, most of which consisted of the
photographs supported by the above-referenced witness testimony. Finally, we note that defendant
conceded during his trial testimony that he never suggested to the officers who interviewed him
after the incident that he acted in self-defense, meaning the only evidence defendant offered to
rebut the extensive evidence of his physical assault on AS was his trial testimony.
Considering the voluminous evidence supporting the charge of AWIGBH, and defendant’s
lack of any rebuttal evidence other than his own testimony, no reasonable juror would have
nonetheless determined that defendant acted in self-defense in this matter. The evidence shows
that defendant battered and strangled AS, conduct that had the potential to cause grievous bodily
injury in this case. As a result, even if the trial court should have instructed the jury regarding self-
4 We note that the SANE nurse testified that her qualifications included 30 years’ nursing
experience, a bachelor’s degree in nursing, and a master’s degree in forensic nursing, which she
described as caring for patients that have been victims of sexual assault, strangulation, trafficking,
and abuse. She further testified that she had been working for a grant-funded program that
provides comprehensive care to victims of violent crimes like strangulation for the past seven
years, and that she was also teaching forensic nursing at a local university, including teaching a
lab every winter that covers strangulation.

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defense, defendant cannot demonstrate that it was more probable than not that the error was
outcome determinative. McKinney, 258 Mich App at 163.
As it pertains to defendant’s unpreserved claim that the trial court violated his
constitutional right to present a self-defense claim in this case, we first note that defendant testified
that he acted in self-defense and his counsel argued that he acted in self-defense during closing
argument. But, to the extent that defendant argues the trial court’s refusal to provide the self-
defense jury instruction deprived him of his constitutional right to present a self-defense claim in
his case, that unpreserved argument likewise fails in this matter because he cannot meet the
requisite third prong of the plain error standard, i.e., he cannot show that his substantial rights were
affected because he cannot prove that he was prejudiced by the court’s decision on the self-defense
issue. Carines, 460 Mich at 763. As previously indicated, defendant cannot demonstrate that the
outcome of the trial would have been different if the court had allowed the self-defense instruction,
thereby allowing defendant to further present his self-defense claim, because no reasonable juror
would find that defendant acted in self-defense considering the overwhelming evidence showing
that defendant strangled AS with both hands and caused the extensive injuries already delineated.5
D. OV 7
Defendant’s final argument is that the trial court erroneously assessed 50 points for OV 7
because there is no evidence defendant treated AS with “sadism, torture, excessive brutality, or
similarly egregious conduct designed to substantially increase the fear and anxiety a victim
suffered during the offense.” MCL 777.37(1)(a). We disagree.
A trial court’s factual determinations relating to the sentencing guidelines “ ‘are reviewed
for clear error and must be supported by a preponderance of the evidence.’ ” People v Lydic, 335
Mich App 486, 490; 967 NW2d 847 (2021), quoting People v Hardy, 494 Mich 430, 438; 835
NW2d 340 (2013), superseded by statute on other grounds as stated in People v Rodriguez, 327
Mich App 573; 935 NW2d 51 (2019). A clear error has occurred if “an appellate court is left with
a definite and firm conviction that a mistake was made.” Lydic, 335 Mich at 490 (quotation marks
and citation omitted). This Court reviews de novo whether the facts satisfy the statutory scoring
conditions, which is a question of statutory interpretation. Id.
Under MCL 777.37(1)(a), if a defendant treats a victim with “sadism, torture, excessive
brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a
victim suffered during the offense,” the trial court may properly assign 50 points for OV 7. Lydic,
335 Mich App at 498. When “a statute does not contain internal definitions of terms used in it, we
give terms their ordinary meaning.” People v Peals, 476 Mich 636, 641; 720 NW2d 196 (2006).
MCL 777.37 does not define “torture” or “excessive brutality.” But when analyzing OV 7, this
Court has previously defined “torture” as “the act of inflicting excruciating pain, as punishment or
revenge, as a means of getting a confession or information, or for sheer cruelty.” Rodriguez, 327
Mich App at 578 n 2 (quotation marks and citation omitted). This Court has defined “excessive
5 Because we have determined that any such error by the trial court, if it occurred, would not have
been outcome determinative in this case, we will not further address the prosecution’s argument
that defendant introduced insufficient evidence to present a self-defense claim.

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brutality” as “savagery or cruelty beyond even the ‘usual’ brutality of a crime.” Id. (quotation
marks and citation omitted).
As the SANE nurse explained, strangulation is the application of external force to the neck
that can cause injury to the blood vessels in the neck. That external pressure can stop blood flow,
and consequently, oxygen delivery to the brain, causing brain cell death, memory lapses, and in
some cases, unconsciousness. AS testified that defendant strangled her “over and over again.” He
would release her neck, let her breathe, and strangle her again. AS thought defendant was going
to kill her. Her physical injuries and symptoms were consistent with multiple acts of strangulation.
AS indicated she was “too mentally unstable” to seek employment after the assault. At sentencing,
the prosecutor argued defendant tortured AS because he strangled her multiple times, severely
enough to leave visible marks, “right to the point that she can’t breathe and she thinks she’s going
to pass out,” then released, only to “strangle her again, over and over and over.”
The trial court’s factual determination that this was a “torturous event” in which AS
suffered anguish of body and mind, or agony or pain, is supported by a preponderance of the
evidence and is not clearly erroneous. Lydic, 335 Mich App at 490. The conclusion defendant
inflicted intense pain by applying an external “crushing” force to AS’s neck as punishment for
“embarrassing” him or conversing with her ex-boyfriend is also supported by a preponderance of
the evidence. Id.
A defendant’s conduct only needs to fall within one of the four categories of conduct set
forth in MCL 777.37(1)(a) to support the assessment of 50 points for OV 7, Hardy, 494 Mich at
439-440. Accordingly, because we find defendant’s conduct constituted “torture,” we need not
evaluate whether it likewise meets other categories of conduct, such as “excessive brutality.”
The trial court did not err in assessing 50 points for OV 7.
Affirmed.
/s/ Philip P. Mariani
/s/ Colleen A. O’Brien
/s/ Randy J. Wallace

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