DocketNumber: Docket No. 292639
Citation Numbers: 290 Mich. App. 317
Judges: Donofrio, Kelly, Murray
Filed Date: 10/19/2010
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals as of right his jury trial convictions of kidnapping, MCL 750.349, two counts of assault with a dangerous weapon (felonious assault), MCL 750.82, and possession of a firearm during the commission of a felony (felony-firearm),
I. FACTS
This case arises from a kidnapping at gunpoint that occurred on June 7, 2008, in Detroit. On the date in question, Sierra Burton and her ex-boyfriend, Jonathan Broadus, were at a house on Audubon in Detroit. Burton testified that at about 6:00 p.m., during a child’s birthday party, defendant, Richard Harden, and Darnell Chapell ran into the house with guns. Defendant and Chapell had handguns, and Harden had a long gun or assault rifle. According to Burton, all three men directed Burton and Broadus to go downstairs at gunpoint. Broadus’s testimony was conflicting with regard to whether defendant was present at this time and, if he was present, whether he had a gun. Harden and Chapell then began asking about the whereabouts of Harden’s distinctive purple Caprice Classic, which had been stolen. It appeared to Burton that Broadus seemed to know about the missing Caprice. Burton testified that at some point she attempted to use a cell phone, but defendant “snatched” it. Burton also stated that when defendant took the phone, defendant’s gun was “just in his hand” and not pointed at her, though she felt scared. Broadus testified that Harden hit him with the assault rifle.
Both cars left the house and drove to an abandoned house on Beaconsfield, about three minutes away. Everyone went inside, but then Harden and defendant went to get another car. Burton, Broadus, and Chapell waited in the vacant house for them to return. Chapell still had his gun. After about 30 minutes, defendant and Harden returned. Burton, Broadus, defendant, Chapell, and Harden all piled into a white truck and returned to Chapell’s apartment on Audubon. Harden ran into the apartment, while defendant and Chapell stayed in the truck with Burton and Broadus. While Burton did not see defendant or Chapell with a gun at this time, she did not feel free to leave because Chapell said, “Don’t move.” Harden then came out and told them to come inside. When they went in, Harden again starting asking Broadus about the car. Harden tied Broadus’s and Burton’s hands behind their backs with a telephone cord, shoestrings, and an extension cord. Broadus answered questions about the car, but
Next, defendant, Harden, and Chapell took Burton and Broadus on a ride to another street looking for Harden’s stolen Caprice, a man named Courtney Gillon, known as “Monk,” or Gillon’s house. They did not find Gillon’s house and returned to Chapell’s apartment. While there, Chapell called Broadus’s and Burton’s families and told them to tell their parents that they were all right. Chapell and Broadus did so, speaking to Broadus’s nephew. At this point Burton and Broadus were still tied up and Harden still had a gun. After about an hour or two, Harden and Chapell untied them. Defendant was sitting at a table. Black then walked Burton to Black’s house around the corner on Courville, where they waited for defendant, Harden, and Chapell to bring Broadus.
Defendant, Harden, Chapell, and Broadus went to pick up Michael Webster and his sister, Unique Webster, from a house on Drexel. When they got to Michael Webster’s house, Harden held the gun to Broadus’s back and they walked into the house. One of the other men was also carrying a gun. The assailants forced the Websters and Broadus into a Suburban. Later, they all returned to the house on Courville. Unique Webster was Gillon’s girlfriend, and she said that Gillon lived at a house on Bluehill. Everyone got back into the Suburban and drove to Bluehill.
At the house on Bluehill, Chapell and Harden walked Unique Webster to the side door, where she knocked. Defendant stayed in the car with Burton, Broadus, and Michael Webster. Gillon answered the door. Harden then “[g]rabbed him by his arms” and “snatched him out [of] the house.” Chapell and Harden were holding handguns
Next, they returned to Chapell’s apartment, and someone phoned Black. Black returned, and he, Chapell, and Harden beat Gillon using “[sjhoestrings, telephone cords, extension cords, chairs.” The beating lasted about 30 to 45 minutes. Defendant was in the other room with Burton, Broadus, Michael Webster, and Unique Webster. Defendant did not appear to be armed at this time, but again, neither Burton nor Broadus felt free to leave because Harden and others were still armed. At some point the beating began again in the other room, and they heard Gillon screaming and then gunshots inside the apartment. Shortly thereafter, Black left.
Finally, after 45 minutes to an hour, Burton and Broadus heard the sound of police sirens from the street below. Harden tried to conceal his gun in the ceiling tiles and told the victims to say that they were family members and pretend that they were there willingly. Burton was in the same room as Broadus, Michael Webster, and Gillon. When the police knocked, defendant was in another room or apartment. Harden and Chapell left. Defendant then left with Unique Webster. No one opened the door, and police officers used a battering ram to get inside. Burton and Broadus told the police what happened, explaining that they had been kidnapped by defendant, Harden, and Chapell.
For his participation in the incident, the jury convicted defendant of kidnapping, two counts of felonious assault, and felony-firearm. Defendant now appeals as of right but only challenges his sentencing.
II. STANDARD OF REVIEW
When scoring the sentencing guidelines, “[a] trial court determines the sentencing variables by reference
III. ANALYSIS
Defendant argues that he is entitled to resentencing because the trial court erred when it assessed 50 points for OV 7. MCL 777.37 provides:
(1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 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:
(a) 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........................................................50 points
(b) No 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......................................................................0 points
(2) Count each person who was placed in danger of injury or loss of life as a victim.
(3) As used in this section, “sadism” means conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.
The trial court assessed 50 points for OY 7 because (1) the victims were moved from location to location, (2) a substantial beating was inflicted, designed to increase fear, and (3) one of the victims was beaten by multiple individuals. However, of these three factors, only the
Cases upholding scores of 50 points for OV 7 are distinguishable because they involve specific acts of sadism, torture, or excessively brutal acts by the defendant. In People v Wilson, 265 Mich App 386, 396-398; 695 NW2d 351 (2005), the defendant was convicted of assault with intent to commit great bodily harm less
Unlike the defendants in those cases, while defendant was present and armed during the commission of the crimes here, he did not himself commit, take part in,
And the movement of the victims did not justify a 50-point score for OV 7. Transportation to a place of greater danger is appropriately scored under OV 8, but must be given a score of zero points when, as here, the sentencing offense is kidnapping. MCL 777.38(2)(b). The trial court’s comments included the OV 8 factor in its discussion of OV 7. There was testimony thát defendant held and pointed a gun. However, again, the use of a gun is inherent in the felony-firearm and felonious assault crimes, and defendant, unlike the others, did not fire the gun, threaten to fire it, or hit the victims with it. For a good portion of the time, the victims who testified did not see him holding a gun. For all these reasons, defendant’s own conduct toward the victims did not qualify as “sadism, torture, or excessive brutality” or justify a score of 50 points on OV 7.
Finally, defendant is correct that resentencing is required even though the minimum sentence he received for the kidnapping conviction, 15 years, falls within the recommended minimum sentence range calculated under the guidelines after the correction. Sentencing must be based on accurately scored guidelines. MCL 769.34(10). Without the 50-point score for OV 7, defendant’s offense variable level and prior
IV CONCLUSION
Because the trial court erred when it assessed 50 points for offense variable 7, we vacate defendant’s sentence for kidnapping and remand for resentencing in accordance with this opinion.
Affirmed in part, vacated in part, and remanded for resentencing in accordance with this opinion. We do not retain jurisdiction.