COA 369129 PEOPLE OF MI V JOHNATHAN LAMAR BURKS Opinion - Per Curiam - Unpublished 5/19/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
-1-
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UNPUBLISHED
May 19, 2026
11:11 AM
v No. 369129
Wayne Circuit Court
JOHNATHAN LAMAR BURKS, LC No. 16-002935-03-FC
Defendant-Appellant.
Before: FEENEY, P.J., and GARRETT and BAZZI, JJ.
PER CURIAM.
Defendant is once again before this Court on remand from our Supreme Court for
consideration as on leave granted.1 Defendant previously appealed as of right his convictions for
(1) first-degree home invasion, MCL 750.110a(2); and (2) possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b, to which he was sentenced, as a third-
offense habitual offender, MCL 769.11, to consecutive prison terms of (1) 18 to 40 years, and (2)
2 years, respectively.2 See People v Burks, unpublished per curiam opinion of the Court of
Appeals, issued April 3, 2018 (Docket No. 335955) (Burks I). As will be discussed in greater
detail, this Court affirmed defendant’s convictions and sentences. See People v Burks,
unpublished per curiam opinion of the Court of Appeals, issued February 27, 2020 (Docket No.
335955) (Burks III), p 1, 3; Burks I, unpub op at 1. Defendant now appeals the trial court’s denial
of his motion for relief from judgment under MCR 6.508(D)(2) and (3). We affirm.
I. FACTS
“Defendant was convicted for his role in aiding and abetting his two co-defendants in a
shooting that was precipitated by a dispute over tennis shoes.” Burks III, unpub op at 1. “One of
1 People v Burks, 21 NW3d 462 (Mich, 2025) (Burks VII).
2 The jury acquitted defendant of first-degree premeditated murder, MCL 750.316(1)(a), first-
degree felony murder, MCL 750.316(1)(b), two counts of assault with intent to commit murder,
MCL 750.83, and discharge of a firearm at a dwelling causing death, MCL 750.234b(5).

-- 1 of 7 --

-2-
defendant’s accomplices burst into a home and shot three people. A three-year-old child died as a
result of the shooting, and two adults were injured.” Id. Leading up to the home invasion,
defendant called one of his codefendants, Paul Kendall, Jr., who was described as a “violent
person,” and informed him of the dispute. When Kendall arrived, he stated, “I’m not going over
there for no games, and if you don’t have a gun, you don’t need to go.” Defendant and another
codefendant joined Kendall; Kendall entered the home and shot the victims; and a few minutes
later, a vehicle drove by and fired at the home.
Defendant was convicted and sentenced, as stated earlier. At the sentencing hearing, the
prosecution requested that the trial court assign 100 points for offense variable (OV) 3. Defendant
objected, arguing that “the homicide was submitted to the jury, and the jury found him not
guilty . . . .” The trial court denied the objection and assigned 100 points for OV 3 without further
explanation. When sentencing defendant above his recommended minimum sentencing range for
his first-degree home invasion conviction,3 the trial court explained as follows:
In this particular case you mobilized an angry, volatile young person that
you knew to be angry and volatile, and who had a penchant for using guns to come
over and rally with you because of someone’s missing tennis shoes.
A three-year old child has no future. There is a heartache for that family
because it was your idea. You were the one who instigated the phone call and all
of the action that led to a three-year old child being murdered on Easter Sunday.
I know that your position has been that you didn’t do anything, that you
were just there watching.
Well, the jury didn’t believe that, and I don’t believe that. Nobody brings
spectators to a murder. You were involved. You were there in the car with the
shooter driving there, and you were there with the shooter driving away, and you
were prepared to be the wheel man to drive away.
And but for your active involvement, that three-year old child would be
alive today. You bear enormous responsibility.
II. PROCEDURAL HISTORY
In Burks I, unpub op at 1, this Court affirmed defendant’s convictions and sentences. In
doing so, this Court held that defendant’s sentence was not based on acquitted conduct,
determining “there was evidence that defendant’s actions set in motion the events leading to the
shooting death and injuries.” Id. at 4. This Court explained as follows:
As noted by the trial court, defendant’s behavior in being a part of the group that
produced the death and injuries in retaliation for what defendant thought had been
3 Defendant’s recommended minimum sentencing range was 57 to 142 months, and the trial court
sentenced defendant to 18 to 40 years’ imprisonment.

-- 2 of 7 --

-3-
an assault on his brother was not adequately accounted for in the sentencing
guidelines. Contacting a violent person, knowing that he is violent and utilizes
firearms, immediately after learning of his brother’s situation, along with
participating in the retaliation, defendant properly shares the blame for the carnage,
at least for purposes of a sentencing departure. The trial court’s view that
defendant’s phone call to the gunman over stolen shoes was the catalyst for the
crimes, in contrast to defendant’s view that he was merely a spectator, was
supported by the evidence. [Id. at 4-5.]
In People v Burks, 505 Mich 873 (2019) (Burks II), our Supreme Court vacated the portion of the
judgment affirming defendant’s sentence for home invasion and remanded for reconsideration in
light of People v Beck, 504 Mich 605; 939 NW2d 213 (2019).
On remand, this Court again affirmed defendant’s sentence, determining that the trial court
did not sentence defendant as if he had aided and abetted in the child’s murder. Burks III, unpub
op at 1, 3. This Court reasoned as follows:
Although [the] trial court commented on the death that resulted from the shooting,
the trial court did not equate defendant’s conduct with the murder and sentence him
accordingly for an acquitted murder. Rather, the trial court cited to defendant’s role
in the killing as a catalyst for the circumstances that were placed into motion and
the individuals prone to violence that defendant brought into the fray over tennis
shoes. We conclude that [the] sentencing court’s rationale for imposing its sentence
did not violate Beck and adhere to our prior rejection of defendant’s contention that
the sentence was improperly premised on acquitted conduct[.] [Id. at 3.]
Notably, this Court declined to address the scoring of OV 3, reasoning that the issue was not within
the scope of the Supreme Court’s remand order. Id. at 4. In People v Burks, 505 Mich 1083 (2020)
(Burks IV), our Supreme Court denied leave to appeal, stating that it was “not persuaded that the
question presented should be reviewed by this Court.”
Thereafter, defendant moved in propria persona for relief from judgment in the trial court,
under MCR 6.508(D)(2) and (3), asserting that the trial court’s consideration of acquitted conduct
when assigning 100 points for OV 3 violated defendant’s due-process rights under Beck. The trial
court denied relief from judgment, determining that defendant was not sentenced as if he aided
and abetted in the child’s death; instead, he was sentenced because of his role “as a catalyst” for
her death. Thereafter, defendant filed a delayed application for leave to appeal, again raising the
alleged use of acquitted conduct to score OV 3, which this Court denied. People v Burks,
unpublished order of the Court of Appeals, entered April 29, 2024 (Docket No. 369129) (Burks
V). In lieu of granting leave to appeal, our Supreme Court remanded this matter to this Court for
consideration as on leave granted. People v Burks, 21 NW3d 462 (Mich, 2025) (Burks VI).

-- 3 of 7 --

-4-
III. PRE-OFFENSE CATALYST OR TRANSACTIONAL CONDUCT VERSUS ACQUITTED
CONDUCT
On appeal, defendant argues that he is entitled to resentencing because the trial court
erroneously relied on acquitted conduct when assigning 100 points for OV 3. We disagree.
A. STANDARD OF REVIEW
“A trial court’s decision on a motion for relief from judgment is reviewed for an abuse of
discretion.” People v Christian, 510 Mich 52, 74; 987 NW2d 29 (2022). An abuse of discretion
occurs when the court makes a decision that falls outside the range of reasonable and principled
outcomes or makes an error of law. Id. at 75. Constitutional issues are reviewed de novo. People
v Brown, 339 Mich App 411, 419; 984 NW2d 486 (2021). “Under the sentencing guidelines, the
circuit court’s factual determinations are reviewed for clear error and must be supported by a
preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
“Clear error is present when the reviewing court is left with a definite and firm conviction that an
error occurred.” People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015) (quotation
marks and citation omitted). When making these factual findings, the trial court may consider all
record evidence. Id. “Whether the facts, as found, are adequate to satisfy the scoring conditions
prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Hardy, 494 Mich at 438.
B. ANALYSIS
OV 3 concerns “physical injury to a victim.” MCL 777.33(1). An assessment of 100 points
is required “if death results from the commission of a crime and homicide is not the sentencing
offense.” MCL 777.33(2)(b). The assessment of 100 points for OV 3 requires factual causation,
i.e., that the victim’s death would not have occurred but for the defendant’s criminal actions.
People v Laidler, 491 Mich 339, 345; 817 NW2d 517 (2012). The defendant’s conduct is not
required to have been the exclusive cause of the death. Id. at 346. The assessment of points for
OV 3 is to be based on a consideration of the sentencing offense alone. People v Biddles, 316
Mich App 148, 165; 896 NW2d 461 (2016).
In Beck, 504 Mich at 629, our Supreme Court held that “due process bars sentencing courts
from finding by a preponderance of the evidence that a defendant engaged in conduct of which he
was acquitted.” Stated differently, “[o]nce acquitted of a given crime, it violates due process to
sentence the defendant as if he committed that very same crime.” Id. at 609. Accordingly, “a
sentencing court may not rely even in part on acquitted conduct when imposing a sentence for the
defendant’s conviction.” People v Stokes, 333 Mich App 304, 310; 963 NW2d 643 (2020). But
sentencing courts may consider “the entire res gestae of an acquitted offense” as well as “the time,
place, and manner in which an offense of which a defendant has been convicted is committed.”
Id. at 310-311. “In the absence of evidence presented by a defendant demonstrating that a
sentencing court actually relied on acquitted conduct when sentencing the defendant, the defendant
is not entitled to resentencing.” Id. at 312.
In People v Brown, 339 Mich App 411, 422; 984 NW2d 486 (2021), this Court discussed
“the epistemological and practical problems associated with” determining what constitutes

-- 4 of 7 --

-5-
“acquitted conduct” that a sentencing court is barred from considering under Beck. This Court
noted that one option “would be to adopt a categorical approach based on the elements of the
crime. Under this standard, any evidence that relates to any element of the crime of which the
defendant was acquitted would have to be discarded at sentencing.” Id. This Court rejected that
approach because although it would be easy to apply, it would lead to absurd results in some
situations. Id. at 423. For example, “[i]f the categorical approach were to be adopted, then this
would mean that any fact or circumstance related to any element of the acquitted crime would be
off-limits at sentencing, even if the same fact or circumstance was also related to the convicted
crime.” Id.
This Court then explained that “[a] different way of identifying the facts and circumstances
that are prohibited at sentencing centers on what the parties actually disputed at trial.” Id. This
approach would not prohibit consideration of “any and all facts and circumstances related to any
element of the crime” of which the defendant was acquitted of, but would “instead focus[] on the
key facts and circumstances that the parties argued about during the trial.” Id.
This approach is similar to the “rational jury” standard used in the double-jeopardy
context, which requires examining the record to determine the ground or grounds
upon which a rational jury could have acquitted the defendant. Rather than focus
on all of the conceivable grounds upon which a jury could have theoretically
acquitted the defendant—even those grounds, for example, that were conceded by
the defense or otherwise uncontested by the parties—the focus would be on the
grounds that the parties actually put in dispute at trial. The inquiry must be set in a
practical frame and viewed with an eye to all the circumstances of the proceedings.
[Id. at 423-424 (quotation marks and citations omitted).]
This Court concluded that “[t]his rational-jury approach appears to be consistent with Beck.” Id.
at 424. Accordingly, this Court specifically “look[s] at the conduct actually disputed at trial to
determine the basis of the jury’s acquittal and whether the evidence the trial court considered at
sentencing was consistent with that acquittal.” People v Boukhatmi, ___ Mich App ___, ___;
___NW3d ___ (2024) (Docket No. 363998); slip op at 6.
Applying these principles to the present case, we conclude that defendant has failed to
demonstrate that the trial court relied on “acquitted conduct,” opposed to the sentencing offense
alone, when assigning 100 points for OV 3. Therefore, as we will explain, the trial court did not
err in assigning 100 points for OV 3.
The sentencing offense for which 100 points were assigned for OV 3 was first-degree
home-invasion. Specifically, the jury found defendant guilty of aiding and abetting in a home-
invasion that resulted in a child’s death. That is, but for defendant’s criminal acts of aiding and
abetting in the home-invasion, the child would not have died. Defendant was therefore “a factual
cause” of the child’s death, even if he was not the sole factual cause. See Laidler, 491 Mich at
346.
Defendant argues that because the jury acquitted him of felony murder, the jury determined
that defendant was not the but-for cause or otherwise responsible for the child’s death. But the
trial court did not indicate that defendant engaged in acquitted conduct. As this Court previously

-- 5 of 7 --

-6-
held in Burks III, unpub up at 3, although the trial court commented on the child’s death, it “did
not equate defendant’s contact with the murder and sentence him accordingly for an acquitted
murder.” “Rather, the trial court cited to defendant’s role in the killing as a catalyst for the
circumstances that were placed into motion and the individuals prone to violence that defendant
brought into the fray over tennis shoes.” Id. (emphasis added).
Indeed, here, the trial court focused on defendant’s pre-offense conduct as the “catalyst”
for the three-year-old child’s death; it concluded that but for defendant’s decision to “mobilize[]
an angry, volatile young person that [he] knew to be angry and volatile, and who had a penchant
for using guns to come over and rally with [him] because of someone’s missing tennis shoes,” the
three-year-old child would still be alive. The fact that defendant was not convicted of first-degree
murder, assault with intent to murder, and discharge of a firearm at or in a building causing death,
is irrelevant here because the trial court focused on defendant’s role as a catalyst in bringing the
“volatile” posse together; defendant even acknowledges on appeal that “[y]es, [defendant] made
a phone call and was present at the scene . . . .” In People v Barr, unpublished per curiam opinion
of the Court of Appeals, issued March 23, 2023 (Docket No. 353585), pp 34-35,4 a panel of this
Court determined that the trial court did not err when assessing 100 points for OV 3 when the
victim of an armed robbery died as a result of a conspiracy to commit armed robbery against him.
The defendant was convicted of that conspiracy as well as armed robbery and felony-firearm, but
he was acquitted of first-degree felony murder and several other charges. Id. at 1-2. The panel
reasoned as follows:
[B]y finding defendant guilty of conspiracy to commit an armed robbery against
[the victim], the jury found beyond a reasonable doubt that, inter alia, (1) defendant
and at least one other person agreed to commit an armed robbery against [the
victim], and (2) defendant specifically intended to accomplish the illegal objective,
i.e., to commit or help to commit an armed robbery of [the victim] . . . . That is,
but for defendant’s criminal acts of entering into a conspiracy to commit an armed
robbery of [the victim], [the victim] would not have died. Defendant was thus “a
factual cause” of the death, even if he was not the sole factual cause. [Id. at 34.]
Here, we agree that but for defendant inviting a weaponized Kendal to participate in Beck’s
scheme to recover the missing tennis shoes, the three-year-old child would still be alive. We
conclude that the assessment of 100 points for OV 3 is appropriate when “death results from the
commission of a crime and homicide is not the sentencing offense,” MCL 777.33(2)(b), and the
victim’s death would not have occurred but for the defendant’s conduct leading to the home
invasion. See People v McGraw, 484 Mich 120, 129; 771 NW2d 655 (2009) (regarding OV 9,
“[n]othing precludes the sentencing court from considering transactional conduct when deciding
what sentence to impose” within the guidelines’ range); Cf. Laidler, 491 Mich at 345-346.
4 “Although unpublished opinions are not binding, we may consider the rationale contained in an
unpublished opinion to be persuasive.” People v Brown, ___ Mich App ___, ___; ___NW3d ___
(2024) (Docket No. 359376); slip op at 9 n 14.

-- 6 of 7 --

-7-
IV. CONCLUSION
Because sentencing courts may consider “the entire res gestae of an acquitted offense” as
well as “the time, place, and manner in which an offense of which a defendant has been convicted
is committed,” Stokes, 333 Mich App at 310-311, the trial court did not err by considering
defendant’s pre-offense role under these circumstances. Accordingly, the trial court did not err in
assigning 100 points for OV 3, and the trial court did not abuse its discretion by denying defendant
relief from judgment.
Affirmed.
/s/ Kathleen A. Feeney
/s/ Mariam S. Bazzi

-- 7 of 7 --