Opinion
No. 339651
07-24-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARCUS ALEXANDER WARDEN, Defendant-Appellant.
UNPUBLISHED Tuscola Circuit Court
LC No. 16-013905-FC Before: CAMERON, P.J., and JANSEN and O'CONNELL, JJ. PER CURIAM.
Defendant was convicted of two counts of third-degree criminal sexual conduct (CSC III) (victim at least 13 years of age but less than 16 years of age), MCL 750.520d(1)(a). Defendant was sentenced to 7 years, 11 months to 15 years' imprisonment for each conviction. We affirm defendant's convictions and sentences, but vacate the trial court's scoring of offense variable (OV) 8, which should have been scored at zero points.
I. RELEVANT FACTS
This case arises out of defendant's sexual assault of the then 14-year-old victim. Defendant, who was almost 17-years-old at the time of the assault, had known the victim since she was in the sixth grade. Although defendant and the victim had previously discussed having a romantic relationship, they were just friends. On the date in question, defendant sent the victim a text message inviting her to go with him to Bernthal's, a gravel pit that had a beach where people went to swim. The victim agreed to go with defendant, as well as defendant's friend and his girlfriend.
While at the beach, defendant saw his ex-girlfriend and her new boyfriend. Defendant became upset, began shouting, and walked off down the beach. The victim grabbed her towel and followed defendant, who stopped at a place where they could not be seen by anyone. Defendant continued to pace around and mumble to himself. The victim put her towel on the beach and sat down, and eventually defendant joined her.
While sitting together on the victim's towel, defendant started to feel up the victim's legs and the inside of her upper thighs. The victim told defendant to stop, but he pushed her down and climbed on top of her. The victim was unable to push defendant off of her. The victim heard the Velcro closure of defendant's shorts "rip," and "then everything started hurting . . . The inside of my vagina started hurting . . . My stomach started hurting[;] [i]t just felt like something kept being hit repeatedly [and] it hurt extremely." Defendant moved aside the victim's bikini bottoms, and the victim felt something enter her vagina repeatedly.
Eventually, the victim was able to push defendant off her, and she ran to the parking lot crying. The victim yelled at defendant and asked him to take her home. Defendant began driving the victim to her friend's house, at her request. While they were riding in the car, defendant told the victim that "he was going to kill himself and that he was nothing and that nobody cares about him and that he was worthless." When they arrived at the home of the victim's friend, the victim told defendant to never speak to her again, to leave her alone, and to never speak to her family or her friends.
Although she disclosed the assault to her family, the victim did not speak to the police for over a year. Accordingly, no physical examination was performed. Although the victim struggled with mental health issues throughout her life, she had sought counseling and had been doing well for four to five months before the assault. After the assault, the victim resumed cutting herself, began taking sleeping pills more frequently, showered multiple times per day, and became distrustful of older men and boys. The victim also became disrespectful to her parents and suffered with depression.
Following an investigation, defendant was originally charged with two counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b, and one count of second-degree criminal sexual conduct (CSC II), MCL 750.520c. Following the jury trial, defendant was found guilty of three counts of the lesser offense, CSC III. As noted, defendant was sentenced to 7 years, 11 months to 15 years' imprisonment for each CSC III conviction. This appeal followed.
II. OFFENSE VARIABLES 3, 4, 8, AND 10
Defendant challenges the scoring of offense variables (OVs) 3, 4, 8, and 10. Although we conclude that the scoring of OVs 3, 4, and 10 are supported by a preponderance of the evidence, we agree with defendant that OV 8 should have been scored at zero points. However, even if OV 8 were to be scored at zero points, defendant's minimum sentencing guidelines range would remain unchanged, and therefore we decline to remand for resentencing.
A. STANDARD OF REVIEW
"Under the sentencing guidelines, the [trial] court's factual determinations are reviewed for clear error, and must be supported by a preponderance of the evidence. 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." People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (citations omitted).
B. OV 3
First, defendant argues the trial court erred in assessing five points for OV 3. Defendant contends that the victim did not sustain an injury not requiring medical treatment. We disagree.
The scoring of OV 3 is governed by MCL 777.33, which provides that 5 points should be assigned when the victim sustains "[b]odily injury not requiring medical treatment[.]" MCL 777.33(1)(e). "Bodily injury" includes "anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence." People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). The assessment of points under OV 3 requires factual causation, in that but for the defendant's criminal actions, the injury to the victim would not have occurred. People v Laidler, 491 Mich 339, 345; 817 NW2d 517 (2012).
Defendant contends to have been assessed five points for OV 3, the victim would have had to sustain an actual injury, and that the victim's claim that she felt pain during the sex act does not qualify. Defendant's contention is incorrect. Here, the victim reported pain during defendant's sexual penetration of her body. When asked to describe the pain, the victim stated: "It hurt very bad... it hurt extremely." The combination of the pain the victim felt and her statement that she had never previously engaged in sexual activity affirmatively establishes that the victim sustained unwanted physical damage to her body. McDonald, 293 Mich App at 298. Accordingly, a preponderance of the evidence supports the trial court's conclusion that defendant caused the victim bodily injury not requiring medical attention, and therefore, did not clearly err in assessing defendant five points for OV 3.
C. OV 4
Second, defendant challenges the trial court's scoring of OV 4, arguing that where the victim testified she struggled with her mental health before the incident in question, OV 4 should have been scored at zero points. We disagree.
The trial court assessed defendant 10 points for OV 4, which is appropriate where a "[s]erious psychological injury requiring professional treatment occurred to a victim." MCL 777.34(1)(a). There must be some evidence of psychological injury on the record to justify the assessment of the points. People v Lockett, 295 Mich App 165, 182-183; 814 NW2d 295 (2012). A trial court may not assess points for OV 4 "solely on the basis . . . that a 'serious psychological injury' would normally occur as a result of the crime perpetrated against the victim," nor is "evidence of fear while a crime is being committed, by itself," sufficient to assess points for OV 4. People v White, 501 Mich 160, 162; 905 NW2d 228 (2017) (emphasis omitted).
We note that our Supreme Court's holding in White overruled People v Apgar, 264 Mich App 321; 690 NW2d 312 (2014), "to the extent it held a victim's fear during a crime, by itself without any other showing of psychological harm, is sufficient to assess 10 points for OV 4." White, 501 Mich at 164.
Defendant argues that OV 4 should have been scored at zero points because the victim testified that she had mental health problems before defendant sexually assaulted her. The trial court properly rejected this argument. While the victim testified that she had pre-existing mental health issues, she stated that she had been doing well for about four or five months before defendant sexually assaulted her. His assault caused her to resume self-harming behavior and taking sleeping pills. Additionally, it caused her to have nightmares, begin showering obsessively, be distrustful of older boys, and to become disrespectful and rude to her parents. Finally, the victim indicated that she resumed mental health counseling.
Nothing in the plain language of the statute precludes assigning points when the victim had pre-existing mental health issues that were exacerbated or caused to recur because of a defendant's criminal behavior. The preponderance of the evidence clearly established that defendant's sexual assault caused serious psychological injury to the victim requiring professional treatment. Therefore, the trial court properly assigned 10 points for OV 4.
D. OV 8
Third, defendant challenges the scoring of OV 8, arguing that defendant did not move the victim to a different location. Rather, she followed defendant down the beach on her own volition, and therefore, OV 8 should have been scored at zero points. We agree.
The scoring of OV 8 is governed by MCL 777.38, which provides, in pertinent part:
(1) Offense variable 8 is victim asportation or captivity. Score offense variable 8 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:According to our Supreme Court, the "asportation" element of OV 8 is satisfied "[i]f a victim was carried away or removed to another place of greater danger or to a situation of greater danger[.]" People v Barrera, 500 Mich 14; 892 NW2d 789 (2017).
(a) A victim was asported to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 points
(b) No victim was asported or held captive . . . . . . . . . . . . . . . . . . . . . . .0 points[.]
In assessing defendant 15 points for OV 15, the trial court found:
I mean the [c]ourt distinctly remembers testimony wherein it was [defendant] - he may not have physically moved [the victim] to the other location, but certainly it was his intention to get away from other people who were present and to move [the victim]. Again, she was on her own - she was ambulatory, but, in any event, certainly that was his intention to move her to a place where there were no other people present. And that was obvious from the testimony at the time of trial.
So the [c]ourt concludes that there's [a] preponderance of the evidence at least that OV 8 should be scored at 15.
We conclude that the trial court's findings regarding asportation of the victim were clearly erroneous. At trial, the victim testified that upon seeing his ex-girlfriend and her new boyfriend, defendant became angry and walked off down the beach by himself. The victim, on her own volition, picked up her belongings and followed defendant, who was pacing and mumbling. The victim put down her beach towel and sat down. Defendant then came to sit next to her.
There was no evidence presented to suggest defendant moved the victim down the beach, forcibly or otherwise. In fact, there was no evidence presented to suggest that defendant ever asked the victim to follow him, or that when defendant took off he was even concerned with whether the victim, or anyone else, would follow him down the beach. There was no evidence to suggest defendant walked down the beach, hoping the victim would follow him so he could carry out a sexual assault. By the victim's own account, she followed defendant to attempt to calm him down. In fact, the victim testified that defendant walked down the beach alone because he was upset about seeing a former girlfriend with another man. Accordingly, the trial court clearly erred by assessing 15 points for OV 8.
Briefly, we reject the prosecution's analogy to People v Spanke, 254 Mich App 642; 658 NW2d 504 (2003). In Spanke, a preponderance of the evidence established that the defendant had invited the victims to accompany him, moved the victims to his home, and admitted to doing so. As discussed supra, that did not occur here. Further, the prosecution fails to appreciate that Spanke, and its discussion regarding the scoring of OV 8, was expressly overruled by our Supreme Court in Barrera. See Barrera, 500 Mich at 19-21.
Regardless, the erroneous scoring of OV 8 does not affect defendant's appropriate guidelines range. Even if OV 8 had properly been scored at zero points, defendant's total OV score remains well over 75 points, placing him OV Level IV (75+ points) under the applicable sentencing grid. MCL 777.63. Therefore, because defendant's sentencing guidelines range does not change, resentencing is not required. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).
E. OV 10
Fourth, defendant challenges the trial court's assessment of 15 points for OV 10. Defendant argues that he did not engage in predatory conduct with respect to a vulnerable victim, and therefore, OV 10 should have been scored at zero points. We disagree.
The trial court assessed defendant 15 points for OV 10, which is appropriate where a defendant exploited a "vulnerable victim" using "predatory conduct". MCL 777.40(1)(a). For the purpose of OV 10, MCL 777.40(3)(a) provides that " '[p]redatory conduct' means preoffense conduct directed at a victim for the primary purpose of victimization." In People v Huston, 489 Mich 451; 802 NW2d 261 (2011), our Supreme Court held that a victim may be vulnerable because of a difference in age with the defendant or because of a difference in size or strength, among other nonexclusive factors. Huston, 489 Mich at 465-466. See also People v Cannon, 481 Mich 152, 158-159; 749 NW2d 257 (2008). In this case, defendant was nearly three years older than the 14-year-old victim. The victim also described defendant as being much bigger and stronger than she was, and having used his size to force and hold her down during the assault. Accordingly, we conclude the victim qualifies as a vulnerable victim.
Although there is nothing in the record to indicate the victim's height and weight, OTIS lists defendant as being 6'2" tall and weighing 190 pounds. --------
The remaining question is whether defendant exhibited predatory conduct. Our Supreme Court in Huston held that, in line with the statutory language, predatory conduct must be "preoffense conduct directed at a victim." In Cannon, 481 Mich at 161, our Supreme Court provided the following inquiries to be used in assessing the propriety of scoring OV 10:
To aid lower courts in determining whether 15 points are properly assessed under OV 10, we set forth the following analytical questions:
(1) Did the offender engage in conduct before the commission of the offense?
(2) Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, persuasion, or temptation?
(3) Was victimization the offender's primary purpose for engaging in the preoffense conduct?
If the court can answer all of these questions affirmatively, then it may properly assess 15 points for OV 10 because the offender engaged in predatory conduct under MCL 777.40.
In responding to defendant's challenge to the assignment of points for OV 10, the trial court stated:
All right. So the Court finds that - I mean I have the benefit of testimony in this situation, so certainly there was testimony that would indicate that there were prior contacts between the defendant and the victim and that there were many statements made to other people regarding the defendant [sic] feelings for the victim and his intentions. So the Court concludes from the Victim Impact Statement of [the victim] and the Agent's Description of the Offense as well as the testimony that was adduced at trial that 15 points is appropriate for OV 10.
The trial court referred to the probation agent's description of the offense in the PSIR. "When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination." People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). The PSIR is replete with information regarding the victim's prior interactions with the defendant. First, the victim reported that:
she should never have gone to the gravel pit with the defendant because she felt that something would happen based on an incident that had occurred a couple days prior to the assault. The victim and the defendant had been at the gravel pit together and the defendant was driving her home afterward. The victim stated that he stopped at Indianfields [sic] Park and asked her to take a walk with him. They got out of the car and walked in the park. He approached her with a leaf in his hand then asked her for a kiss. She stated that she refused because he was in a relationship with someone she had considered a friend. The victim stated that she was uncomfortable and told the defendant to take her home. Once in the car, the defendant began to rub her legs. She asked him to stop, but he continued running his hands up and down her thigh, going increasingly higher up on the thigh, toward her genital area. The defendant also attempted to reposition the victim's seat so she would be laying back rather than sitting upright. When she still rebuffed his advances, the defendant began to make threats that he was going to harm himself. This continued until the victim agreed to see him again, on the day of the assault.Additionally, on a separate occasion, the victim reported that:
she and the defendant had been over at another female friend's house, where they were both lying on the couch together. The other female had sent the victim a text message stating that she had sexual intercourse with the defendant just prior to the victim's arrival at the house. The victim stated that she became upset by this and refused to speak to the defendant, so he left the house. In the following days, the defendant called and told the victim that he loved her, purchased her flowers, started calling the victim's mother, and other things to try and salvage their friendship. The victim stated that the defendant appeared to be obsessed and if she did not answer him right away, he would ''blow up" her phone- repeatedly calling or texting her. On another occasion, the defendant told the victim he loved her, so she told him to ''prove it." The victim stated that after that conversation, the defendant got her name tattooed on his arm [and] then sent her picture of it. She stated it was of poor quality and that the defendant ultimately had it covered with another tattoo. The victim reiterated that she believed the victim [sic - defendant] was obsessed with her; and stated she believed it was because she had not had sex with him.
These prior interactions indicate that defendant had been interested in engaging in sexual activity with the victim for some time, and the victim continued to rebuke his advances. In response, defendant threatened to harm himself in order to invoke sympathy from the victim, bought the victim flowers, told the victim he loved her, pursued a friendship with the victim's mother, and got the victim's name tattooed on his arm. Further, defendant would threaten to harm himself unless the victim agreed to see him again. Defendant exhibited similar behavior following the underlying incident in this case, telling the victim "he was going to kill himself and that he was nothing and that nobody cares about him and that he was worthless."
The totality of the evidence established that defendant engaged in predatory conduct with the intent to exploit his victim's vulnerability. Accordingly, we conclude that the trial court did not clearly err in assessing defendant 15 points for OV 10.
III. PROPORTIONALITY OF DEFENDANT'S SENTENCES
Finally, defendant argues that although his minimum sentence was within the sentencing guidelines range, it is still disproportionate, and should be reviewed for proportionality. We disagree.
When a defendant is sentenced above the guidelines, this Court reviews the sentence for reasonableness, assessing 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 Steanhouse, 500 Mich 453, 460; 902 NW2d 327 (2017).
Contrary to defendant's position, we are only required to review a defendant's sentence for reasonableness if it departs from the sentencing guidelines range. People v Lockridge, 498 Mich 358, 364; 870 NW2d 502 (2015). "If the defendant's sentence is within the recommended guidelines range, resentencing is not required unless there is a scoring error that changes the guidelines range or the trial court relied on inaccurate information in sentencing the defendant." People v Carpenter, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 335383); slip op at 4-5, citing People v Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006) and People v Sours, 315 Mich App 346, 350; 890 NW2d 401 (2016). Although we vacate defendant's OV 8 score of 15 points, as it was clearly erroneous, defendant's sentence remains within the sentencing guidelines range, and remand for resentencing is unwarranted.
We affirm defendant's convictions and sentences, but vacate the trial court's scoring of offense variable (OV) 8, which should have been scored at zero points.
/s/ Thomas C. Cameron
/s/ Kathleen Jansen
/s/ Peter D. O'Connell