People of Michigan v. Derwin Jerome Holt ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 16, 2015
Plaintiff-Appellee,
v No. 321063
Wayne Circuit Court
DERWIN JEROME HOLT, LC No. 13-010604-FC
Defendant-Appellant.
Before: FORT HOOD, P.J., and SAAD and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529,
and three counts of illegal use of a financial transaction device, MCL 750.157q. Defendant was
sentenced to 225 to 540 months’ imprisonment for the armed robbery conviction and two to four
years’ imprisonment for each illegal use of a financial transaction device conviction. We affirm.
This case arises from an incident in which a juvenile female calling herself Amber posted
an adult online dating profile and lured the victim, Derrik Schwartz, to a wooded area. Once
Schwartz entered the woods, defendant and two juvenile males robbed him at knifepoint. During
and immediately after the robbery, defendant and his accomplices threatened Schwartz’s life and
the lives of his family, cut off a lock of Schwartz’s hair and made him eat it, forced him to
remove his clothing, made stabbing motions at Schwartz, and ran the point of the knife over
Schwartz’s face, neck, and body before releasing him.
Defendant argues that the trial court erred in scoring OV 7 and OV 8. We disagree.
When reviewing a scoring issue, 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). The court’s application of the facts to the statutory
scoring conditions is a question of statutory interpretation that is reviewed de novo on appeal.
Id. However, defendant’s challenges are unpreserved because defendant did not object to the
trial court’s scoring of these variables at sentencing, file a motion for resentencing, or file a
motion to remand. MCL 769.34(10); People v Loper, 299 Mich. App. 451, 456; 830 NW2d 836
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(2013). “[T]his Court may review an unpreserved scoring issue for plain error affecting
substantial rights.” Loper, 299 Mich. App. at 457.
Defendant asserts that the trial court erred in assigning 50 points for OV 7 because his
conduct did not amount to sadism, torture, excessive brutality, or conduct designed to
substantially increase the complainant’s fear and anxiety during the offense. We reject
defendant’s assertion and conclude that the trial court properly determined that there was
sufficient evidence to assess 50 points for OV 7.
The statutory basis of OV 7 is MCL 777.37, which provides for an assessment of points
when the offense involves “aggravated physical abuse.” MCL 777.37(1). Fifty points shall be
assessed if “[a] victim was treated with sadism, torture, or excessive brutality or conduct
designed to substantially increase the fear and anxiety a victim suffered during the offense.”
MCL 777.37(1)(a). In the context of OV 7, “sadism” is defined as “conduct that subjects a
victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the
offender’s gratification.” MCL 777.37(3). Emotional or psychological abuse may produce
humiliation, and physical abuse is not required. People v Mattoon, 271 Mich. App. 275, 277; 721
NW2d 269 (2006). Unlike sadism, excessive brutality is not defined in the OV statute. This
Court, however, has said that it means “savagery or cruelty beyond even the ‘usual’ brutality of a
crime.” People v Glenn, 295 Mich. App. 529, 533; 814 NW2d 686 (2012), rev’d on other grounds
sub nom Hardy, 494 Mich. 430. Finally, in regard to conduct designed to substantially increase
the fear and anxiety a victim suffered during the offense, our Supreme Court has explained that
the relevant inquiry is “whether the defendant engaged in conduct beyond the minimum required
to commit the offense” and “whether the conduct was intended to make [the] victim’s fear or
anxiety greater by a considerable amount.” Hardy, 494 Mich. at 443-444.
In this case, defendant’s actions amounted to sadism, excessive brutality, and conduct
designed to substantially increase the complainant’s fear and anxiety during the offense. After
completing the crime, defendant ran the point of the knife across Schwartz’s throat and made
stabbing motions at Schwartz while telling Schwartz he was going to kill him. Defendant and
one of the juvenile males then forced Schwartz to strip and walk through a heavily wooded area,
telling him all the while that they would kill him and his family because they knew where to find
him. At sentencing, Schwartz further noted that “[t]hey humiliated me, calling me fat and ugly
and a piece of s*** and f*** face, amongst many other names.” Based on the record, defendant
subjected Schwartz to both extreme and prolonged humiliation and there was no purpose for
these actions other than to humiliate Schwartz or to gratify defendant. Schwartz had given up
the physical struggle with defendant and was willing to hand over his valuables without further
protest. Forcing Schwartz to strip and threatening his life and the lives of his family was
gratuitous and was calculated to subject the complainant to pain and humiliation. See MCL
777.37(3). Defendant’s conduct was also savage and cruel beyond the usual brutality associated
with armed robbery. Glenn, 295 Mich. App. at 533.
In addition, defendant’s conduct was designed to substantially increase the fear and
anxiety the complainant suffered during the offense. Defendant committed armed robbery by
taking money and property from Schwartz while armed with a dangerous weapon. See MCL
750.529. But defendant did much more. Again, defendant threatened Schwartz’s family, made
stabbing motions at Schwartz with the knife, ran the point of the knife across Schwartz’s neck,
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and told Schwartz, “We are gonna kill you. We’re gonna kill you.” Defendant thus engaged in
conduct beyond the minimum required to commit the offense of armed robbery. See Hardy, 494
Mich. at 443-444. Defendant also intended to increase Schwartz’s fear and anxiety by a
considerable amount. See id. at 440 n 26, 443-444. As defendant and the juvenile male forced
Schwartz to walk through the woods wearing only his underwear and socks, they told him that
they planned to empty his bank account completely. They also told him that if the police did not
come and arrest him, that they would kill him and his family. The evidence indicated that this
was meant not just to instill a sense of fear and anxiety in Schwartz during the incident, but to
make him fear a future assault as well. See People v McDonald, 293 Mich. App. 292, 298-299;
811 NW2d 507 (2011) (holding that the defendant intended to increase the victim’s fear or
anxiety when he “made threats that clearly indicated that he could find her again in the future.”).
Accordingly, the trial court could have found that defendant’s conduct was designed to
substantially increase the fear and anxiety Schwartz suffered. See Hardy, 494 Mich. at 439-440.
Defendant asserts that his actions individually were insufficient to justify a score of 50
points, as much of the most egregious conduct was committed by defendant’s accomplices, and
specifically someone who referred to himself as Amber’s brother. We disagree that defendant’s
specific actions were insufficient to justify a score under OV 7, as our analysis was based
exclusively on defendant’s actions. However, we further note that while this Court has held that,
in regard to OV 7, “only the defendant’s actual participation should be scored,” People v Hunt,
290 Mich. App. 317, 323-326; 810 NW2d 588 (2010), the current case is distinguishable from
Hunt. In Hunt, the Court held that “while [the] defendant was present and armed during the
commission of the crime here, he did not himself commit, take part in, or encourage others to
commit acts” justifying a score of 50 points under OV 7. Id. at 325-326. Here, it was clear that
defendant and Amber’s brother were acting congruently, and defendant certainly was not taking
a passive role in the events.
Defendant also contends that the trial court erred in assigning 15 points for OV 8 because
he did not asport Schwartz to a place of greater danger or hold Schwartz captive for longer than
was required to commit the offense. We disagree, and conclude that the trial court did not err in
assessing 15 points for OV 8.
OV 8 governs the asportation or captivity of a victim. See People v Dillard, 303 Mich
App 372, 379; 845 NW2d 518 (2013). MCL 777.38 provides that OV 8 should be scored at 15
points when “[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.” “A victim
is asported to a place or situation involving greater danger when moved away from the presence
or observation of others.” People v Chelmicki, 305 Mich. App. 58, 70-71; 850 NW2d 612 (2014).
A place of greater danger may include “an isolated location where criminal activities might avoid
detection.” Dillard, 303 Mich. App. at 379. Asportation requires no physical force and “may
occur even when the victim voluntarily accompanied the defendant to a place or situation of
greater danger.” Id.
In this case, defendant and his accomplices concocted a scheme to lure Schwartz from a
readily observable parking lot into a secluded wooded area to rob him. Furthermore, once
Schwartz was in the woods and defendant attacked him with the knife, Schwartz moved further
into the woods as he struggled with defendant for the weapon. It is irrelevant that Schwartz
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initially entered the woods with Amber of his own free will and that his struggles with defendant,
rather than defendant’s purposeful application of physical force, carried him deeper into the
woods. See id. Finally, once defendant had relieved Schwartz of his valuables and clothing, he
made Schwartz walk away from the clearing and into a thick, trackless part of the woods, further
increasing Schwartz’s isolation and danger. See Chelmicki, 305 Mich. App. at 70-71. Thus, the
trial court did not err in assigning 15 points to OV 8 because defendant asported Schwartz to a
place or situation of greater danger.
The trial court could also have assigned 15 points to OV 8 on the ground of captivity.
Defendant and his accomplices held Schwartz at knifepoint and forced him to give them his
wallet, car keys, and cell phone. The offense was then complete. It was after the actual robbery
that defendant ran the knife over Schwartz’s throat, made stabbing motions at Schwartz,
threatened to kill his family, forced him to remove his clothing, and made him walk through the
woods while defendant continued to berate and threaten him. Thus, even if only a brief time
elapsed, defendant held Schwartz captive beyond the time necessary to complete the offense of
armed robbery. See MCL 777.38(1).
Defendant also contends that defense counsel’s failure to object to the trial court’s
assessments for OV 7 and OV 8 deprived him of his right to the effective assistance of counsel at
sentencing. We disagree. As discussed, supra, the trial court did not err in its decisions
regarding OV 7 and OV 8. Defense counsel thus had no basis for objecting to them and was not
required to make a meritless objection. See Chelmicki, 305 Mich. App. at 69.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Henry William Saad
/s/ Michael J. Riordan
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