People of Michigan v. Adam John Zawacki ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 20, 2023
Plaintiff-Appellee,
v No. 360288
Wexford Circuit Court
ADAM JOHN ZAWACKI, LC No. 2021-013080-FH
Defendant-Appellant.
Before: M. J. KELLY, P.J., and SHAPIRO and REDFORD, JJ.
PER CURIAM.
Defendant appeals by right his jury trial convictions of discharging a weapon from a
vehicle, MCL 750.234a(1)(a); carrying a concealed weapon (CCW) in a vehicle, MCL 750.227;
and reckless use of a firearm, MCL 752.863a. The trial court sentenced defendant as a second-
offense habitual offender, MCL 769.10, to serve 3 to 15 years’ imprisonment for discharging a
weapon from a vehicle, 18 to 90 months’ imprisonment for CCW, and 93 days in jail for reckless
use of a firearm. We affirm.
I. BACKGROUND
This case arises out of an incident at a group of rental cabins in Cadillac, Michigan.
Witnesses described the location as a cul-de-sac with two rows of five cabins facing each other.
Defendant previously lived at one of the cabins with his girlfriend, Erica Kline, but had moved out
two months prior to the incident. On May 26, 2021, defendant arrived in front of Kline’s cabin in
his Ford Mustang. Aaron Colcord, who lived in the cabin next to Kline, testified that he
approached defendant and asked him to leave. According to Colcord, defendant then retrieved a
“pistol” from inside the vehicle. Colcord told defendant that if he continued what Colcord thought
he was doing, Colcord was “going to have to use force.” In response, defendant “just laughed and
started shooting off the gun” from the driver’s side of the car. Colcord claimed that, after shooting
the gun a few times, defendant pointed the gun at Colcord’s face and said: “This bullet is for your
temple[.]” Colcord testified that he reached into the open driver’s side car door and grabbed
defendant’s arm as defendant was shooting the gun. Colcord yanked on defendant’s wrist in an
attempt to remove the gun and punched defendant in the face.
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George Goodall, another cabin resident, was the first to join the struggle. Goodall testified
that he stepped outside after a hearing commotion and then heard Colcord yell, “He’s got a gun.”
Goodall asserted he entered the driver’s side of defendant’s vehicle and pulled defendant back as
Colcord tried to pull the gun away from defendant on the passenger side. Jeremy Hooker, yet
another cabin resident, testified that he ran outside his cabin after hearing gun shots. Hooker
“heard at least eight shots” while he was inside, and the gun “went off maybe two more times” as
he ran toward defendant’s car. Hooker saw Colcord and defendant “leaning through the crack of
the [car] door” and “wrestling over a gun on the hood.” Colcord’s “hand was on [defendant’s]
wrist” in an attempt to take the gun from defendant. Hooker then ran over and hit defendant in the
face, and defendant dropped the gun.
Kline testified that the gun was hers and that she picked it up and brought it into her home.
Michigan State Troopers arrived at the scene and found Colcord, Goodall, and defendant
struggling inside the vehicle. Defendant was taken by ambulance to be treated for his injuries.
The troopers searched Kline’s cabin with permission and found the firearm under her mattress.
An evidence technician processed the crime scene and located 11 ammunition casings surrounding
the sides and rear of defendant’s car, but he did not recover any bullets or discover any bullet holes.
Five casings were located on the ground near the front passenger side of defendant’s car, three
casings were located on the ground near the driver’s side, and the remaining casings were located
on the ground “a couple of feet” behind the rear of the car.
Kline, who testified for the defense, claimed that she woke up to the sound of gunshots,
and when she walked outside, it “looked like [Colcord] had the gun in his hand over” defendant.
On cross-examination, Kline stated that she told the police officers during her initial interview that
defendant had the gun, not Colcord. Defendant also testified, claiming that when he arrived at
Kline’s cabin Colcord came out and fired two or three rounds, told defendant to leave, and
threatened to shoot him if he came back. Defendant stated that his wife was with him when he
arrived, but she ran away when the shooting began. Colcord then put defendant in a headlock and
fired eight or nine more rounds as defendant yelled for help, which resulted in Goodall and Hooker
running outside and hitting defendant. On cross-examination, defendant admitted that he told his
wife during a phone call that he had fired the gun.1
As noted, the jury found defendant guilty of discharging a weapon from a vehicle, CCW,
and reckless use of a firearm. The jury found defendant not guilty of assault with a dangerous
weapon (felonious assault), MCL 750.82(1), possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b, and brandishing a firearm in public, MCL 750.234e.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
1
Although not expressly stated at trial, it is clear from the record that defendant made this
statement in a recorded jail phone call.
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Defendant first argues that he was denied effective assistance of counsel when defense
counsel did not order a ballistic report and hire a firearms expert. Alternatively, defendant requests
we remand for a Ginther2 hearing.3
“To establish ineffective assistance of counsel, a defendant must show (1) that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and (2) that there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” People v Shaw, 315 Mich App 668, 672; 892 NW2d 15(2016). “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018) (quotation marks and citation
omitted).
Defendant argues that his trial counsel should have hired a firearms expert to determine
whether the statements of the witnesses aligned with the placement of the shell casings found near
his car. However, while defendant speculates that a ballistics report4 and firearms expert would
have offered favorable evidence to the defense, he has failed to make an offer of proof as to the
content of such testimony.5 Speculation does not support an ineffective-assistance claim, nor does
it warrant remand for a Ginther hearing. See People v Payne, 285 Mich App 181, 190; 774 NW2d
714 (2009); MCR 7.211(C)(1). Defendant fails to show that defense counsel was ineffective or
that remand is justified.
Further, in the absence of expert evidence, defense counsel argued that Goodall’s and
Hooker’s testimonies were unreliable given inconsistencies with each other’s testimony and the
location of the shell casings. Again, it is unknown whether expert evidence regarding the shell
casings would have actually supported defense counsel’s argument. Both the prosecution and
defense witnesses testified that gun shots were fired while defendant and Colcord were fighting
over the gun in an extended struggle. Colcord, Goodall, and Hooker all testified that defendant
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
Claims of ineffective assistance of counsel present mixed questions of fact and law. People v
Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). Factual findings are reviewed for clear
error, while questions of law are reviewed de novo. Id. Findings of fact are “clearly erroneous if
this Court is definitely and firmly convinced that the trial court made a mistake.” People v Shaw,
315 Mich App 668, 672; 892 NW2d 15 (2016). Because no evidentiary hearing was held in the
trial court, our review is limited to errors apparent from the record. People v Acumby-Blair, 335
Mich App 210, 227; 966 NW2d 437 (2020).
4
Defendant does not specifically address how a ballistics report would have aided the defense;
presumably, he is referring to a report by the sought expert that would indicate the shooter’s
location based on the shell casings. We note that while the record suggests that Kline’s gun was
sent to a crime lab, it is not apparent from the record why this was done or that a report was
completed.
5
Defendant has provided an affidavit asserting only his belief that testimony about the shell
casings would have discredited the prosecution’s witnesses and resulted in his acquittal on all
charges.
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shot the gun until the magazine was empty, all while Colcord tried to take the gun from him. The
prosecution witnesses described the gun as being in various places and shot in different directions,
which is more or less consistent with shell casings being found all the way around the car. It is
therefore unlikely that expert testimony would have made a difference at defendant’s trial. Indeed,
the central question in this case was who had the gun and fired it, defendant or Colcord, and any
inconsistencies between the location of the gun as testified to by the prosecution witnesses and the
found shell casings would not necessarily be damaging, let alone fatal, to the prosecution’s case.
Further, while the defense witnesses testified that Colcord had the gun, they were both impeached
by their prior statements to the contrary. Kline had previously told the officers that defendant had
the gun, and defendant admitted at trial that he told his wife on the phone that he did, in fact, fire
the gun to keep Colcord, Goodall, and Hooker at bay. Defendant also admitted that he had
conversations with his wife in which he attempted to convince her to state that she was with him
during the incident. Defendant also admitted that he asked his wife to convince Kline to testify it
was Colcord who had the gun. For these reasons, even if defense counsel’s performance was
deficient for any of the reasons claimed by defendant, he cannot show a reasonable probability of
a different outcome at trial.
In conclusion, defendant fails to establish that he was denied effective assistance of
counsel, and we deny his request to remand for a Ginther hearing.
III. CHALLENGE TO THE SCORING OF OV 1
Defendant also argues that the trial court erred by assessing 25 points for OV 1. We
disagree.6
OV 1 concerns the aggravated use of a weapon and is assessed at 25 points if “[a] firearm
was discharged at or toward a human being . . . .” MCL 777.31(1)(a). “OV 1 is an ‘offense-
specific’ variable; therefore, in scoring OV 1, the trial court [is] limited to ‘considering the
sentencing offense alone.’ ” People v Chelmicki, 305 Mich App 58, 72; 850 NW2d 612 (2014),
quoting People v McGraw, 484 Mich 120, 134; 771 NW2d 655 (2009). “However, in doing so, a
trial court may properly consider all of ‘defendant’s conduct during’ that offense.” Chelmicki, 305
Mich App at 72, quoting McGraw, 484 Mich at 134.
Defendant first contends that the assessment of 25 points for OV 1 was not supported by
any evidence that he discharged a gun at or toward a human being. The prosecution, on the other
hand, maintains that the trial court properly assessed 25 points on the basis of Hooker’s testimony.
Hooker testified that defendant shot the gun “in the direction of [his] house” while he was inside
watching a baseball game and later as he ran toward defendant’s car. When later asked to confirm
6
When reviewing a trial court’s scoring decision, the trial 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). “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.” Id. Defendant
preserved this issue by raising it in his motion to remand to the trial court. See People v McChester,
310 Mich App 354, 357; 873 NW2d 646 (2015).
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that those shots were aimed toward his home, Hooker answered, “Just down in that general
direction.” In addition to Hooker’s testimony, Goodall testified that, as he tried to restrain
defendant by putting him in a choke hold from behind, defendant reached with the weapon in his
right hand around Goodall and fired the gun out the driver’s side door. We agree with the
prosecution that this was sufficient evidence to uphold the trial court’s scoring. While there is no
evidence that defendant discharged the firearm directly at a human being, he fired shots in close
proximity to Goodall and in the general direction of Goodall and Hooker. Accordingly, it was not
clear error for the trial court to conclude that defendant discharged a firearm toward a person.
Defendant also argues that, in scoring OV 1 at 25 points, the trial court considered
“acquitted conduct” at sentencing in violation of his due-process rights. See People v Beck, 504
Mich 605, 609, 629; 939 NW2d 213 (2019). In Beck, the 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.” Id. The Court described “acquitted conduct” as conduct
that “has been formally charged and specifically adjudicated not guilty by a jury.” Id. at 620. To
help clarify what constitutes acquitted conduct, in People v Brown, 339 Mich App 411, 423-425;
984 NW2d 486 (2021), we adopted the “rational-jury approach,” which focuses “on what the
parties actually disputed at trial[:]”
This approach moves away from prohibiting any and all facts and circumstances
related to any element of the crime and instead focuses on the key facts and
circumstances that the parties argued about during the trial. 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. [Quotation
marks and citation omitted.]
In Brown, we held that the trial court erred by imposing an upward departure sentence on the basis
that the defendant was responsible for the decedent’s death when the jury acquitted the defendant
of murder and manslaughter charges on a self-defense theory. See id. at 425-428.
In this case, defendant argues that his acquittal of felonious assault precluded the trial court
from finding that defendant discharged a firearm at Colcord. While it appears highly likely that
the jury acquitted defendant of felonious assault against Colcord on the basis of self-defense,7 this
7
“The elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and (3) with
the intent to injure or place the victim in reasonable apprehension of an immediate battery.” People
v Chambers, 277 Mich App 1, 8; 742 NW2d 610 (2007) (quotation marks and citation omitted).
The alleged victim of this charge was Colcord, and the jury was instructed that the prosecutor was
required to prove beyond a reasonable doubt, among other elements, “that the Defendant either
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did not preclude a scoring of OV 1 as to other individuals, i.e., Hooker and Goodall, when
defendant was convicted of a shooting offense. Specifically, to convict defendant of discharging
a weapon from a vehicle, the jury was required to find beyond a reasonable doubt that defendant
“endanger[ed] the safety of another individual” when he “discharge[d] a firearm from a motor
vehicle.” MCL 750.234a(1)(a). As we explained in Brown, 339 Mich App at 423: “[I]f a specific
fact or circumstance was relevant to both the acquitted charge and the convicted charge—i.e., if
there was an overlap of relevant conduct—then the trial court could consider that fact or
circumstance when sentencing on the convicted charge.” Accordingly, because defendant’s
discharge of a firearm related both to acquitted and convicted charges, the trial court was permitted
to consider such conduct when it scored OV 1. It would be inconsistent to conclude that the trial
court was precluded from finding that defendant discharged a firearm toward a person when the
jury necessarily found that defendant endangered another person by discharging a weapon.
In sum, the trial court did not improperly rely on acquitted conduct in scoring OV 1. And
because the record supports the trial court’s finding that defendant discharged a gun toward another
individual, it did not clearly err by assessing 25 points for OV 1.8
Affirmed.
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
/s/ James Robert Redford
attempted to commit a battery on Aaron Colcord or did an act that would cause a reasonable person
to fear or apprehend an immediate battery,” and that “the Defendant intended either to injure Aaron
Colcord or to make Aaron Colcord reasonably fear an immediate battery.” The prosecutor argued
that defendant placed Colcord in fear of an immediate battery by making a threat and shooting the
gun.
Defense counsel’s primary argument to the jury was that it was Colcord, not defendant,
who fired the gun. But defense counsel alternatively argued that defendant acted in self-defense,
emphasizing that Colcord, Goodall and Hooker “freely admitted they were pounding [defendant].”
The trial court instructed the jury on self-defense, stating that “[i]f a person acts with lawful self-
defense, his actions are justified, and he is not guilty of assault with a dangerous weapon or
felonious assault.” Given the evidence that defendant repeatedly shot the gun while engaged in a
physical struggle with Colcord, it is unclear on what grounds the jury could have acquitted
defendant of felonious assault unless it determined that defendant acted in self-defense.
8
Defendant also argues that he was denied effective assistance of counsel at sentencing because
defense counsel failed to object to the scoring of OV 1. However, because the evidence supports
a score of 25 points for OV 1, and the scoring is not based on acquitted conduct, any objection by
defense counsel would have been meritless, and counsel is not ineffective for failing to make a
meritless objection. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
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