COA 368871 PEOPLE OF MI V CORY DARIELL MCGILL Opinion - Per Curiam - Unpublished 7/16/2026

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UNPUBLISHED
July 16, 2026
11:28 AM
V No. 368871
Kent Circuit Court
CORY DARIELL MCGILL, LC No. 21-001564-FC
Defendant-Appellant.
Before: ACKERMAN, P.J., and REDFORD and FEENEY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for (1) two counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(e) (weapon used); (2) one count of assault
with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84; (3) one count of
domestic violence, third offense, MCL 750.81(5); (4) one count of felon in possession of a firearm
(felon-in-possession), MCL 750.224f; and (5) one count of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant, as
a fourth-offense habitual offender, MCL 769.12, to serve (1) 35 to 80 years, (2) 5 to 10 years, (3)
3 to 5 years, (4) 3 to 5 years, and (5) 2 years in prison, for each count respectively.1 We affirm.
I. FACTS
This case arises out of a domestic violence incident that took place on January 7, 2021.
Defendant and the victim had been in a romantic relationship in the past, and the two were parents
of a 17-year-old child.
The victim testified that on the day of the incident, defendant picked her up from work and
offered to buy her groceries on the way to her home; however, he did not take her grocery shopping
and instead drove her to her apartment. On arrival, defendant asked to use the victim’s bathroom.
1 Defendant’s sentences were to be served concurrently but consecutive to his felony-firearm
sentence.

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The victim relented and permitted defendant to enter her apartment. Once inside, the victim stated
that defendant immediately became aggressive and attempted to take off her clothes. According
to the victim’s testimony, defendant was angry about his perception that the victim was seeing
other men and became violent as the victim resisted. Eventually, defendant removed a gun from
his waistband, and he threatened the victim and struck her in the face with it.
After hitting the victim several times, defendant sexually assaulted her on the floor. He
then took the victim into her bedroom and sexually assaulted her on the bed. At one point, the two
got into the adjoining bathroom and struggled over the gun. Two rounds were discharged into the
wall, but the victim was not shot. When defendant had his back to the victim, looking for the
victim’s cell phone, the victim fled the apartment. The victim ran to her neighbors’ doors and
began banging on doors and yelling. One neighbor exited his apartment and saw the victim
crumpled on the floor and a man descending the stairwell. The neighbor took the victim into his
apartment and called 911. Defendant was arrested days later after a standoff with the special
response team at a residence in Kent County.
At trial, defendant testified in his own defense, claiming that he acted in self-defense. The
jury found defendant guilty, and the trial court sentenced defendant, as stated earlier.
II. HABITUAL OFFENDER ENHANCEMENT
Defendant first argues that the trial court erred by denying his motion to dismiss the
prosecutor’s habitual offender enhancement. Defendant contends that the prosecutor’s
enhancement notice was not timely; therefore, he is entitled to resentencing without the
enhancement. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
Defendant preserved this issue by moving to dismiss the prosecutor’s habitual offender
enhancement in the trial court. See People v Swenor, 336 Mich App 550, 562; 971 NW2d 33
(2021). The question of whether a defendant’s due-process rights were violated by lack of notice
of an enhancement is reviewed de novo. See People v Walker, 234 Mich App 299, 302; 593 NW2d
673 (1999). We also review de novo the proper interpretation and application of statutory
language. People v Gardner, 482 Mich 41, 46; 753 NW2d 78 (2008).
B. ANALYSIS
Defendant was subject to the habitual offender enhancement under MCL 769.12, which
states as follows:
If a person has been convicted of any combination of 3 or more felonies or
attempts to commit felonies, whether the convictions occurred in this state or would
have been for felonies or attempts to commit felonies in this state if obtained in this
state, and that person commits a subsequent felony within this state, the person shall
be punished upon conviction of the subsequent felony and sentencing under section
13 of this chapter . . . . [MCL 769.12(1).]

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The prosecutor may seek to enhance a sentence under MCL 769.12 “by filing a written
notice of his or her intent to do so within 21 days after the defendant’s arraignment on the
information charging the underlying offense or, if arraignment is waived, within 21 days after the
filing of the information charging the underlying offense.” MCL 769.13(1). The notice “shall list
the prior conviction or convictions that will or may be relied upon for purposes of sentence
enhancement” and “shall be filed with the court and served upon the defendant or his or her
attorney within the time provided in subsection (1).” MCL 769.13(2).
In this case, defendant’s preliminary examination occurred on February 4, 2021. On the
same day, defendant waived arraignment. Twenty-two days later, on February 26, 2021, the
prosecutor filed defendant’s information and habitual offender notice. Defendant moved to
dismiss the habitual offender notice, arguing that it was untimely and improper because the
prosecutor did not file the notice within 21 days of the preliminary examination and waiver of
arraignment. The trial court rejected defendant’s argument that the 21-day clock begins at
preliminary examination or waiver of arraignment. Rather, the court determined that when an
arraignment is waived, a habitual offender notice is timely if it is filed with the felony information.
The trial court concluded that because defendant waived arraignment, the relevant date was the
date the information was filed and, under that date, the notice was timely.
On appeal, defendant argues that the trial court erred by failing to consider MCR
6.112(C)’s requirement that the information be filed on or before the date set for arraignment,
which in this case was February 4, 2021. But defendant is conflating his waiver of arraignment
with “the date set for the arraignment.” MCR 6.112(C). Because defendant waived his
arraignment in this case: (1) there was no date set for arraignment, and (2) the prosecutor was
required to provide notice of the enhancement “within 21 days after the filing of the information
charging the underlying offense.” MCL 769.13(1). The prosecutor ultimately filed defendant’s
information and notice of enhancement on the same day; therefore, the notice of enhancement was
timely under MCL 769.13(1).2 See People v Marshall, 298 Mich App 607, 626-627; 830 NW2d
414 (2012), vacated in part on other grounds 493 Mich 1020 (2013) (concluding that a habitual
offender enhancement notice—that was included in the prosecutor’s filing of the information
charging the underlying offense—was timely under MCL 769.13(1)).
Accordingly, the trial court did not err by denying defendant’s motion to dismiss the
prosecutor’s habitual offender enhancement.
2 Defendant argues that this interpretation of the court rule and statute may result in a defendant
being “unsure” of what the charges against him may be. This argument is not convincing because
when a defendant waives arraignment, he must acknowledge that he “received a copy of the
information, has read or had it read or explained to him, [and] understands the substance of the
charge . . . .” MCR 6.113(C). Although the information may be amended before it is ultimately
filed with the trial court, like it was in this case, this requirement ensures that the defendant is
adequately informed of the charges against him after the preliminary examination.

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III. SENTENCING
Defendant further argues that he is entitled to resentencing because, without the habitual
offender enhancement, the trial court’s sentence was outside of the recommended sentencing
guidelines range, and the court did not articulate its reasons for exceeding the guidelines. We
disagree.
A. PRESERVATION AND STANDARD OF REVIEW
A defendant is not required to take any special steps to preserve the argument that a
sentence is not proportional. People v Walden, 319 Mich App 344, 350; 901 NW2d 142 (2017).
“Sentencing decisions are reviewed for an abuse of discretion . . . .” People v Ventour, 349 Mich
App 417, 429; 27 NW3d 660 (2023) (quotation marks and citation omitted). “A trial court abuses
its discretion if the imposed sentence is not proportionate to the seriousness of the circumstances
surrounding the offense and the offender.” Id. (quotation marks and citation omitted).
B. ANALYSIS
On appeal, challenges to within-guidelines sentences are reviewed for reasonableness.
People v Posey, 512 Mich 317, 326; 1 NW3d 101 (2023) (Posey I).
The proper inquiry when reviewing a sentence for reasonableness is
whether the trial court abused its discretion by violating the “principle of
proportionality” set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
(1990), “which requires sentences imposed by the trial court to be proportionate to
the seriousness of the circumstances surrounding the offense and the offender.”
[People v Posey, 349 Mich App 199, 203-204; 27 NW3d 137 (2023) (quotation
marks and citation omitted) (Posey II).]
“An appropriate sentence should give consideration to the reformation of the offender, the
protection of society, the discipline of the offender, and the deterrence of others from committing
the same offense.” People v Boykin, 510 Mich 171, 183; 987 NW2d 58 (2022). “The key test is
whether the sentence is proportionate to the seriousness of the matter.” Posey II, 349 Mich App
at 204. When a defendant challenges a within-guidelines sentence, there is a presumption of
proportionality “through which the defendant bears the burden of demonstrating that their within-
guidelines sentence is unreasonable or disproportionate . . . .” Posey I, 512 Mich at 359. “[T]o
overcome the presumption that the sentence is proportionate, a defendant must present unusual
circumstances that would render the presumptively proportionate sentence disproportionate.”
People v Bowling, 299 Mich App 552, 558; 830 NW2d 800 (2013) (quotation marks and citation
omitted).
In this case, defendant’s only argument to the proportionality of his sentence is that if the
habitual offender enhancement was removed, then defendant’s sentence would reflect a departure
from the guidelines that the trial court did not sufficiently explain. But as previously discussed,
the trial court did not err by denying defendant’s motion to dismiss the prosecutor’s habitual
offender enhancement. Accordingly, defendant received a within-guidelines sentence, which is
presumed proportionate. See Posey I, 512 Mich at 359.

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IV. JUDICIAL MISCONDUCT
In his Standard 4 brief,3 defendant further argues that the trial court plainly erred: (1) during
voir dire and preliminary jury instructions when it stated that defendant had been convicted of
“domestic violence third offense” and felon-in-possession, and (2) by failing to sua sponte
investigate any possible jury taint. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
To preserve an argument that the trial court erred when instructing the jury, the defendant
must timely object before the jury deliberates. People v Carter, 462 Mich 206, 216; 612 NW2d
144 (2000). Because defendant failed to make any such objection, that issue is not preserved. See
id. “To preserve a claim that there was an irregularity warranting a mistrial, defendant had to move
for a mistrial in the trial court and assert the same ground for relief before the trial court that he
asserts on appeal.” People v Haynes, 338 Mich App 392, 410; 980 NW2d 66 (2021). Because
defendant did not move for a mistrial or request any other relief rising from his belief that the jury
was tainted by the prosecutive juror’s comments, that issue is also not preserved. See id.
Unpreserved arguments are reviewed for plain error affecting substantial rights. People v
Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014). “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). “The third requirement generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id.
B. ANALYSIS
As an initial matter, the trial court’s statements concerning defendant’s felon-in-possession
charge merely reiterated that the prosecutor must prove that defendant knowingly possessed a
firearm before his right to do so had been restored in accordance with a previous felony conviction.
See People v Thigpen, 349 Mich App 437, 454; 27 NW3d 647 (2023). Defense counsel stipulated
to the fact that defendant was convicted of a prior felony and that his right to possess a firearm had
not been restored. See MCL 750.224f. Therefore, the trial court did not exhibit any error in regard
to its instructions concerning defendant’s felon-in-possession charge.
But, as appellee acknowledges on appeal, the trial court erred by noting that defendant was
charged with one count of “domestic violence third offense,” instead of only “domestic violence,”
during its voir dire instructions. See People v Brown, unpublished per curiam opinion of the Court
of Appeals, issued April 14, 2005 (Docket No. 253246), pp 1-2.4 Regardless, any error was
3 See Administrative Order No. 2004-6, 471 Mich ci, cii, Standard 4 (2004).
4 Although unpublished “opinions are not binding precedent on this Court, we may consider them
as instructive or persuasive.” People v Jamison, 292 Mich App 440, 445; 807 NW2d 427 (2011).
See MCR 7.215(C)(1).

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mitigated in this case because the prosecutor flagged the issue, and defense counsel agreed that if
the trial court: (1) reiterated to the jury that the information was not evidence or proof of guilt, and
(2) only used the term “domestic violence” in the final jury instructions, then any error would be
cured. See id. The trial court’s final jury instructions comported with that agreement, effectively
dispelling any notion that the jury considered the trial court’s comments as evidence of defendant’s
guilt. “It is well established that jurors are presumed to follow their instructions.” People v
Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Accordingly, defendant has failed to show,
in light of the cautionary instructions, that he was prejudiced by the trial court’s comment. See
Brown, unpub op at 2.
Defendant also argues that the trial court erred by failing to sua sponte investigate any
possible jury taint after a potential juror, who was dismissed for cause, voiced that she: (1) did not
“believe with multiple convictions, one of them being a third offense, that she” could be fair and
impartial; and (2) had “an opinion on guns, too.” “Defendant had the right to be tried by an
impartial jury.” Haynes, 338 Mich App at 411. “A trial court ensures that a jury is impartial by
conducting voir dire and removing biased jurors before impaneling the jury: The purpose of voir
dire is to elicit enough information for development of a rational basis for excluding those who are
not impartial from the jury.” Id. “To the extent that defendant maintains that the process did not
result in an impartial jury, defendant has the burden to show that a particular juror was not impartial
or, at the very least, that the juror’s impartiality was in reasonable doubt.” Id. In this case, the
trial court and counsel for the parties explored whether the prospective jurors might have biases
arising from the nature of the events at issue, and each of the empaneled jurors affirmed that they
would be impartial and follow the trial court’s instructions. “Jurors are presumed to follow their
instructions and are presumed to be impartial.” Id. at 416 (citations omitted). Accordingly,
defendant has failed to show that any empaneled juror’s impartiality was in reasonable doubt, and
“it cannot be said that the trial court plainly erred by failing to sua sponte grant a mistrial.” See
id. at 411-416.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant further argues that defense counsel was ineffective for failing to request a jury
instruction for the lesser included offense of AWIGBH: assault. In his Standard 4 brief,5 defendant
adds that defense counsel was ineffective for failing to request a: (1) jury instruction for the lesser
included offense of AWIGBH: aggravated assault; (2) jury instruction for the lesser included
offense of CSC-I: attempted CSC; and (3) mistrial or curative instruction regarding the trial court’s
mention of defendant’s prior criminal history. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
A defendant can preserve a claim of ineffective assistance of counsel by raising the issue
in a motion for a new trial or evidentiary hearing filed in the trial court, People v Sabin (On Second
Remand), 242 Mich App 656, 658; 620 NW2d 19 (2000), or in a motion to remand for an
evidentiary hearing filed in this Court, People v Abcumby-Blair, 335 Mich App 210, 227; 966
5 See Administrative Order No. 2004-6, 471 Mich ci, cii, Standard 4 (2004).

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NW2d 437 (2020). In this case, defendant did not move for a new trial or evidentiary hearing;
therefore, these issues are not preserved. See Abcumby-Blair, 335 Mich App at 227; Sabin, 242
Mich App at 658.
“The question whether defense counsel performed ineffectively is a mixed question of law
and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo
questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
“A finding is clearly erroneous when, although there is evidence to support it, the reviewing court,
on the whole record, is left with the definite and firm conviction that a mistake has been made.”
People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008) (quotation marks and citation
omitted), amended 481 Mich 1201 (2008). “When there has been no evidentiary hearing and no
findings of fact by the trial court, this Court reviews de novo the entire record to determine whether
the defendant’s trial counsel’s representation constituted ineffective assistance of counsel.”
People v Rose, 289 Mich App 499, 524; 808 NW2d 301 (2010).
B. ANALYSIS
Criminal defendants have the right to the effective assistance of counsel under the United
States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. “To establish
ineffective assistance of counsel, defendant must first show that (1) his trial counsel’s performance
fell below an objective standard of reasonableness under the prevailing professional norms, and
(2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings would
have been different.” People v Uphaus, 278 Mich App 174, 185; 748 NW2d 899 (2008).
“Effective assistance of counsel is presumed and defendant bears the burden of proving
otherwise.” People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “Defendant must
overcome a strong presumption that counsel’s performance constituted sound trial strategy.” Id.
at 411.
Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel. People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).
Similarly, counsel’s decision to forgo requesting a particular jury instruction can constitute sound
trial strategy. See People v Dunigan, 299 Mich App 579, 584; 831 NW2d 243 (2013). This is
particularly the case when counsel’s strategy is an “all-or-nothing” defense in which counsel is
attempting to obtain an acquittal in lieu of reduced charges. See People v Robinson, 154 Mich
App 92, 94; 397 NW2d 229 (1986) (stating that “[i]nstruction on lesser offenses might have
reduced the chance of an acquittal” and “[d]efense counsel may have correctly assumed that the
minimum sentence for the offense charged, if defendant should be convicted of it, would be no
more than the probable minimum sentence for a conviction of a lesser included offense”).
1. LESSER INCLUDED OFFENSE INSTRUCTION FOR AWIGBH
Defendant first contends his trial attorney was ineffective for failing to seek a lesser
included instruction of misdemeanor assault or, in the alternative, aggravated assault. We disagree.
A court is required to give an instruction on a lesser included offense if the lesser included
offense is necessarily included in the charged offense and the lesser included offense is supported
by a rational view of the evidence. People v Cornell, 466 Mich 355, 357; 646 NW2d 127 (2002).

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There is no dispute that misdemeanor assault is necessarily included in AWIGBH.6 “The elements
of AWIGBH are (1) an attempt or threat with force or violence to do corporal harm to another (an
assault), and (2) an intent to do great bodily harm less than murder.” People v Stevens, 306 Mich
App 620, 628; 858 NW2d 98 (2014) (quotation marks and citation omitted). In contrast, a person
is guilty of misdemeanor assault if the person “assaults or assaults and batters another
individual . . . .” MCL 750.81(1). As such, “[w]hat distinguishes the misdemeanors, simple
assault and aggravated assault, from the felonies, assault with intent to do great bodily harm less
than murder and assault with intent to murder, is the actor’s intended result.” People v Van Diver,
80 Mich App 352, 356; 263 NW2d 370 (1977).
On appeal, defendant argues that defense counsel should have requested a lesser included
instruction; however, at trial, defendant testified in his own defense, claiming that he acted in self-
defense. Therefore, suggesting to the jury that defendant was guilty of misdemeanor assault would
have undermined defendant’s argument that he did nothing wrong when he struck the victim. See
Dunigan, 299 Mich App at 584. Defendant cannot overcome the strong presumption that defense
counsel was attempting to employ a strategy that would have defendant acquitted if successful.
See Petri, 279 Mich App at 410; Robinson, 154 Mich App at 94. “That the strategy [defense
counsel] chose ultimately failed does not constitute ineffective assistance of counsel.” People v
Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001).
Moreover, had defense counsel sought such an instruction, it is likely the trial court would
have denied it. Cornell, 466 Mich at 357 (stating that the court is only required to give a lesser
included instruction if a rational view of the evidence supports it). In this case, the victim was
subjected to a prolonged assault that only ended when she was able to escape her apartment and
seek the assistance of a neighbor. When the victim left the apartment and reached her neighbor’s
door, she was unable to stand under her own power. The victim testified that she had been
repeatedly struck with the handle of defendant’s gun, cut with the shard of a lamp, and sexually
assaulted twice. Officers who observed the crime scene noted that the scene was extremely bloody,
and traces of blood were found inside and outside of the apartment. The sexual assault nurse
examiner testified that there was not “any part of [the victim’s] body that did not have some kind
of visible injury.” Moreover, the victim testified that during the incident, defendant told her that
she was going “to die tonight . . . .” Accordingly, had defense counsel sought a lesser included
instruction for AWIGBH, the trial court would have likely denied it for lack of congruity with the
record. See id. Failure to advance a meritless argument does not constitute ineffective assistance
of counsel. See Snider, 239 Mich App at 425.
6 Appellee does assert, however, that aggravated assault is a cognate offense to AWIGBH. See
People v Brown, 87 Mich App 612, 615; 274 NW2d 854 (1978) (“A comparison of the charged
offense (assault with intent to commit great bodily harm less than murder) with the offense of
which defendant was convicted (aggravated assault) demonstrates the overlapping of certain
elements and common statutory purpose such that the two crimes may accurately be described as
cognate.”). Regardless, for reasons that will be discussed, a rational view of the evidence did not
support an aggravated assault instruction; therefore, the trial court was not required to provide such
an instruction. See Cornell, 466 Mich at 357.

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2. LESSER INCLUDED OFFENSE INSTRUCTION FOR CSC-I
Defendant also argues that defense counsel was ineffective for failing to request a jury
instruction for the lesser included offense of CSC-I: attempted CSC. But, to the extent that this is
a lesser included offense, a rational view of the evidence at trial did not support such an instruction.
See Cornell, 466 Mich at 357. Although defendant’s testimony suggested that sexual penetration
had not occurred before the incident escalated, the victim testified that there were two instances of
sexual penetration, and a Michigan State Police DNA analyst testified that there was “very strong
support that [defendant was] a contributor to that DNA profile from the [victim’s] vulvar
swabs . . . .” Accordingly, the trial court would have likely determined that a rational view of the
evidence did not support an attempt instruction. See id. Failure to advance a meritless argument
does not constitute ineffective assistance of counsel. See Snider, 239 Mich App at 425.
3. FAILURE TO REQUEST MISTRIAL OR CURATIVE INSTRUCTION
Defendant further argues that defense counsel was ineffective for failing to request a
mistrial or curative instruction regarding the trial court’s mention of defendant’s prior criminal
history. But as previously discussed: (1) the trial court did not exhibit any error in regard to its
instructions concerning defendant’s felon-in-possession charge; and (2) although the trial court
erred by noting that defendant was charged with one count of “domestic violence third offense,”
instead of only “domestic violence,” during its voir dire instructions, any error was mitigated by
the trial court’s curative instruction that defense counsel agreed to. It cannot be said that defense
counsel was ineffective for failing to request an instruction when that very instruction was read to
the jury. By agreeing with the court’s handling of the issue, the question of whether the court erred
in the first instance has been waived. Carter, 462 Mich at 214 (“A defendant may not waive
objection to an issue before the trial court and then raise it as an error on appeal.”) (quotation marks
and citation omitted).
VI. DOUBLE JEOPARDY
In his Standard 4 brief, defendant further argues that his right to be free from double
jeopardy was violated when the court convicted him of domestic violence and AWIGBH. We
disagree.
A. PRESERVATION AND STANDARD OF REVIEW
Because defendant failed to raise the double jeopardy challenge at trial, this issue is not
preserved. See People v Wilson, 242 Mich App 350, 359-360; 619 NW2d 413 (2000).
Unpreserved arguments are reviewed for plain error affecting substantial rights. Chelmicki, 305
Mich App at 62.
B. ANALYSIS
Both the United States and Michigan Constitutions protect against double jeopardy. US
Const, Am V; Const 1963, art 1, § 15. “The prohibition against double jeopardy protects
individuals in three ways: (1) it protects against a second prosecution for the same offense after
acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3)

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it protects against multiple punishments for the same offense.” People v Miller, 498 Mich 13, 17;
869 NW2d 204 (2015) (quotation marks and citation omitted). “The multiple punishments strand
of double jeopardy is designed to ensure that courts confine their sentences to the limits established
by the Legislature and therefore acts as a restraint on the prosecutor and the Courts.” Id. at 17-18
(quotation marks and citation omitted).
This Court employs the “abstract legal elements test” to determine whether two offenses
are classified as the ‘same offense’ for double jeopardy purposes.” Id. at 19 (quotation marks
omitted). “Under the abstract legal elements test, it is not a violation of double jeopardy to convict
a defendant of multiple offenses if each of the offenses for which defendant was convicted has an
element that the other does not . . . .” Id. (quotation marks and citation omitted). In other words,
two offenses are considered the same offense “where it is impossible to commit the greater offense
without also committing the lesser offense.” Id.
Defendant fails to analyze the elements of each offense on appeal. Quite plainly, however,
a conviction of domestic violence contains an element that AWIGBH does not: the existence of a
domestic relationship. MCL 750.81(2). Moreover, the statute governing AWIGBH specifically
states, “This section does not prohibit a person from being charged with, convicted of, or punished
for any other violation of law arising out of the same conduct as the violation of this section.”
MCL 750.84(3). Because domestic violence contains an element that AWIGBH does not,
defendant’s right to be free from double jeopardy was not violated, and the trial court did not
plainly err in allowing the separate convictions.
Affirmed.
/s/ Matthew S. Ackerman
/s/ James Robert Redford
/s/ Kathleen A. Feeney

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