Mitigating circumstances jury instruction (M Crim JI 17.4); MCR 2.512(D)(2); When a defendant charged with assault with intent to commit murder (AWIM) is entitled to the instruction; People v. Rosa; People v. Pouncey; Prosecutorial error; People v. Cooper; People v. Rodriguez; Inferring intent from the nature of the attack; People v. Brown; Sentencing; Scoring of OVs 1, 2, 5, & 10; MCL 777.31(1)(a) & (d); Cut defined; MCL 777.32(1)(d) & (e); MCL 777.35(1)(a) & (b); MCL 777.35(2); People v. Calloway; MCL 777.40(1)(b), (2), & (3); Vulnerability based on a domestic relationship with the perpetrator; People v. Huston; Reasonableness of a departure sentence; People v. Lockridge; Proportionality; People v. Milbourn; People v. Steanhouse; People v. Walden; Lack of remorse; People v. Houston; Adequate explanation of why the sentence was more proportionate than a different one within the guidelines would have been; People v. Dixon-Bey

Holding that the trial court did not abuse its discretion in denying defendant’s request for the mitigating circumstances jury instruction and that the prosecutor’s challenged remarks did not deny him a fair trial, the court affirmed his convictions. It also affirmed his departure sentence, finding no error in the scoring of the OVs, and concluding that the trial court did not abuse its discretion. He was convicted of AWIM, making a false statement to a peace officer about a criminal investigation, and making a false police report of a felony. He was sentenced to concurrent terms of 40 to 80 years for AWIM, and 32 to 48 months for each of the other convictions. He bludgeoned his wife (C) with an axe as she lay in bed, and then claimed to the police that an intruder had done it. As to his request for M Crim JI 17.4, he never stated that C “actually swung the axe at him. In addition, he admitted that he struck her while she was lying in bed. These facts are analogous to Pouncey in that defendant was never dealing with actual physical contact. This is not a situation in which a reasonable person would act out of passion instead of reason.” Rather, the two of them argued, C allegedly said “that she should go after defendant with an axe, and she lay back on the bed.” Regardless of whether she held the axe or not, defendant admitted that she “had never actually left the bed during the incident, but had only ‘sat up in the bed[.]’ The law does not ‘countenance’ a loss of control in such a situation.” The court also rejected his claim as to the prosecutor's comments during rebuttal closing argument about determining a defendant’s intent during an assault. It next concluded that OV 1, 2, 5, and 10 were properly scored at 25 points, 5 points, 15 points, and 10 points, respectively. Finally, as to the reasonableness of his departure sentence (the guidelines range for his AWIM sentence was 135 to 225 months), the court noted that the trial court mentioned several factors not accounted for by the guidelines, including the “extreme level of brutality[,]” the fact it was virtually incredible that C survived, that defendant left her “in a pool of blood for over half a day without checking whether she was dead[,]” and his lack of remorse. It also provided an adequate explanation of why “the sentence it imposed was ‘more proportionate than a different sentence within the guidelines would have been.’”