People of Michigan v. Clarence Reed Jenkins Jr

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 4, 2019
Plaintiff-Appellee,
v No. 339161
St. Clair Circuit Court
CLARENCE REED JENKINS, JR., LC No. 16-001029-FC
Defendant-Appellant.
Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of torture, MCL 750.85; domestic
violence, third offense, MCL 750.81(2) and (4); two counts of assault with a dangerous weapon
(felonious assault), MCL 750.82; and assault with intent to do great bodily harm less than
murder (AWIGBH), MCL 750.84. Additionally, defendant pleaded guilty to failing to comply
with the registration requirements of the Sex Offenders Registration Act (SORA), MCL 28.729.
Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12(1)(a), to concurrent
terms of imprisonment of 40 to 60 years for the torture count; 40 to 60 years for the domestic
violence count; 10 to 15 years for each felonious assault count; 40 to 60 years for the AWIGBH
count; and 10 to 15 years for failure to comply with SORA. Defendant now appeals as of right
his convictions for torture and AWIGBH, as well as the scoring of certain offense variables
under the sentencing guidelines. In a Standard 4 brief, defendant also appeals as of right his
guilty plea for failure to comply with SORA on the grounds that the plea was the product of
coercion. We affirm.
I. FACTS
Defendant and the victim began dating in August 2015 and began living together in the
victim’s apartment in early 2016. During trial, the victim recounted several instances of verbal
and physical abuse perpetrated by defendant at various times throughout their relationship. The
present charges, however, stem from an instance of domestic violence that occurred on April 11,
2016. The victim testified that she was sleeping on the couch in the living room that evening
when defendant woke her to ask who was sending her text messages. When the victim replied
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that no one was texting her, defendant told her not to lie, began chugging liquor, and warned her
that she had better run because “the [d]evil’s in the house.” The victim testified that, although
she began to cry and begged defendant not to hit her, he repeatedly punched her in the face,
knocking her backwards onto the couch with each blow. Defendant continued to hit the victim
even after he shook her awake when she began to lose consciousness. As he was hitting the
victim, defendant smoked a cigarette, which he put out on the victim’s neck, side, and “down
[her] pants” when he did not like her answer to one of his questions. When the victim continued
to insist that no one had texted her, defendant picked up a table and swung it at the victim, hitting
her and the couch with such force that the top panel of the table broke away from the frame.
Defendant then began to choke the victim and flung her into a wall.
The victim testified that defendant then ordered her upstairs into the bathroom, where he
forced her to drink his urine out of the toilet after she refused to admit to having a sexual
relationship with her brother. When the victim nearly vomited, defendant threatened that she
would have to drink the contents of the toilet until there was no water left. In the hopes that
defendant would stop the abuse, the victim falsely admitted that she had sex with her brother. In
response, defendant urinated on her head. The victim testified that defendant then broke the
shower curtain rod, held it like a baseball bat, and threatened to swing it at her if she did not
answer his questions. Defendant swung the rod close to the victim several times before
eventually striking her with it on her side. As the victim lay on the floor crying, defendant
kicked her on her side. He ordered her to take a shower because she smelled like urine and then
ordered her into the bedroom, where he became calmer. However, after asking the victim
another question, defendant became agitated afresh and began choking her. He then had sex
with her and fell asleep. The victim testified that the attack had lasted from approximately
8:00 p.m. on April 11, 2016, until the sky began to lighten early the following morning. The
victim further recalled that, throughout the entire night, defendant repeatedly threatened her,
“You’re going to die tonight, bitch.”
After defendant fell asleep, the victim also slept and awoke in the afternoon of April 12,
2016, to defendant applying ointment to her injuries. Defendant went downstairs to answer the
front door for two maintenance men; although the victim contemplated escaping at that time, she
feared that it was not yet safe. Defendant returned to the bedroom, and he and the victim talked
and watched a movie. The victim eventually told defendant that she was going downstairs to
wash the dishes, as the sink was near the front door. Defendant followed her and paced between
the kitchen and living room while she washed the dishes. The victim stated that she deliberately
clattered the dishes loudly to mask any sound when she unlocked and escaped through the front
door while defendant was in the living room. The victim, barefoot and wearing only a t-shirt and
shorts, ran to her mother’s apartment, which was located in a building adjacent to the victim’s.
Upon arriving, the victim immediately vomited and told her brother Marcus Jamison to lock the
door. Jamison testified that he observed the victim with a black eye and spitting blood into a
trash can. The victim’s other brother Relashen Howard recalled that the victim was shaking
when she came into his room without her shoes or coat and that her face and body were covered
in marks. The victim called 911, and the police arrested defendant on April 13, 2016.
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II. ANALYSIS
A. AMENDED INFORMATION
On appeal, defendant first contends that the trial court abused its discretion by permitting
the prosecution to amend the information to add the charge of AWIGBH. Specifically,
defendant maintains that the victim’s testimony during the probable cause hearing was
insufficient to establish the level of intent necessary to support a finding of probable cause on
this charge. We disagree.
As an initial matter, the prosecution contends that, although defendant objected to the
amendment of the felony complaint before the district court, he failed to preserve the issue by
challenging the amendment of the information before the trial court. “Appellate review is
generally limited to issues raised before and decided by the trial court.” People v Giovanni, 271
Mich. App. 409, 414; 722 NW2d 237 (2006). Requiring parties to preserve their arguments by
raising them before the trial court serves the interests not only of judicial economy but also of
fairness in ensuring that litigants advance their positions at a time when their opponents have an
opportunity to respond factually. Napier v Jacobs, 429 Mich. 222, 228; 414 NW2d 862 (1987),
quoting 3 LaFave & Israel, Criminal Procedure, § 26.5(c), pp 251-252. During the preliminary
examination before the district court, defendant challenged the prosecution’s motion to amend
the felony complaint by arguing that a charge of AWIGBH was not supported by probable cause.
Accordingly, consistent with the interests protected by the preservation requirement, the
prosecution, as well as the district court, had the opportunity to consider and respond to this
argument. We conclude that defendant’s argument was preserved.
“A trial court’s decision to grant or deny a motion to amend an information is reviewed
for an abuse of discretion.” People v McGee, 258 Mich. App. 683, 686-687; 672 NW2d 191
(2003). Under this standard, there may be circumstances in which there is “more than one
reasonable and principled outcome.” People v Babcock, 469 Mich. 247, 269; 666 NW2d 231
(2003). An abuse of discretion occurs when the trial court selects an outcome falling outside the
range of reasonable and principled outcomes. Id. “A trial court necessarily abuses its discretion
when it makes an error of law.” People v Franklin, 500 Mich. 92, 100; 894 NW2d 561 (2017)
(quotation marks and citation omitted).
In relevant part, MCR 6.112(H) provides that a court, “before, during, or after trial may
permit the prosecutor to amend the information . . . unless the proposed amendment would
unfairly surprise or prejudice the defendant.” Indeed, an information is not limited only to those
charges “contained within the complaint and warrant, but rather is presumed to have been framed
with reference to the facts presented at the preliminary examination.” McGee, 258 Mich. App. at
690-691, citing People v Hunt, 442 Mich. 359, 363; 501 NW2d 151 (1993). Defendant is unable
to demonstrate any unfair surprise or prejudice stemming from the amendment of the
information. Based on the testimony presented during the probable cause hearing, the prosecutor
sought at an early stage of the proceedings to add the charge of AWIGBH, and the information
was amended accordingly. In fact, defendant’s trial counsel admitted during the preliminary
examination that the prosecution informed him of its intent to add a count of AWIGBH a week
in advance. Thus, defendant is unable to demonstrate unfair surprise.
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Defendant claims that he suffered prejudice because the prosecution’s sole motivation for
adding the AWIGBH count was to charge defendant as a fourth-offense habitual offender.
However, the mere fact that a charge added to an amended information carries a more severe
penalty than those charges included in the original information “does not, by itself, constitute
unacceptable prejudice.” Hunt, 442 Mich. at 365. Moreover, our Supreme Court has held that
the addition of an offense to an information does not result in unfair surprise or prejudice when
the elements of the offense are supported by sufficient evidence and when defendant fails to
suggest any manner in which his defense would have differed. Id. Here, defendant offers no
argument regarding how his defense or strategy would have differed had he been initially
charged with AWIGBH.
To the extent that defendant challenges the district court’s finding of probable cause with
respect to the charge of AWIGBH, this argument is unpreserved. See People v Noble, 238 Mich
App 647, 658; 608 NW2d 123 (1999) (holding that in order to preserve the issue of whether a
district court erred in binding a defendant over, the defendant must file a motion to quash before
the district court). Accordingly, this Court’s review is limited to determining whether defendant
has established plain error affecting substantial rights. Id., citing People v Carines, 460 Mich.
750, 763; 597 NW2d 130 (1999). An error is plain if it is “clear or obvious,” while an error
affects substantial rights if it resulted in prejudice affecting the outcome of the trial court
proceedings. Carines, 460 Mich. at 763.
“The purpose of a preliminary examination is to determine whether probable cause exists
to believe that a crime was committed and that the defendant committed it.” People v Bennett,
290 Mich. App. 465, 480; 802 NW2d 627 (2010) (quotation marks and citation omitted). To
demonstrate probable cause, the prosecution must present evidence of each element of the crimes
charged sufficient “to lead a person of ordinary prudence and caution to conscientiously entertain
a reasonable belief of [the defendant’s] guilt.” People v Cohen, 294 Mich. App. 70, 74; 816
NW2d 474 (2011) (quotation marks and citation omitted). Because of the difficulty inherent in
proving a person’s state of mind, the element of intent to commit any crime may be inferred from
the circumstances, and minimal circumstantial evidence will suffice. People v Russell, 297 Mich
App 707, 721; 825 NW2d 623 (2012).
The elements of AWIGBH are: “(1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm less than
murder.” People v Parcha, 227 Mich. App. 236, 239; 575 NW2d 316 (1997). The intent to do
great bodily harm has been defined as “an intent to do serious injury of an aggravated nature.”
People v Brown, 267 Mich. App. 141, 147; 703 NW2d 230 (2005). The evidence introduced
during the probable cause hearing in the present case was sufficient to permit an ordinary person
to entertain reasonable belief that defendant assaulted the victim with the intent to inflict serious
injury. The victim testified during the hearing that defendant hit her with his fists and that he
swung a table at her, hitting her on her side. She further stated that defendant grabbed the
shower rod from the bathroom, threatened to hit her with it, and ultimately struck her with it.
The victim also explained that the visible burns on her neck were sustained when defendant put
out his cigarettes on her skin. Finally, she described that defendant urinated on her and forced
her to drink his urine from the toilet by holding her neck. Because of defendant’s violent and
threatening behavior, the victim explained that she was fearful and did not believe that she could
safely leave the apartment. When this testimony is considered in context of the significant
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difference in size between the victim and defendant,1 as well as defendant’s unruly behavior
during the probable cause hearing,2 the district court did not plainly err in binding over defendant
on the AWIGBH charge. Moreover, even if the district court erred in concluding that the
prosecution adduced sufficient evidence to bind over defendant, such an error would be rendered
harmless in light of our conclusion below that the prosecution presented sufficient evidence to
sustain defendant’s conviction. See People v Libbett, 251 Mich. App. 353, 357; 650 NW2d 407
(2002).
B. SUFFICIENCY OF THE EVIDENCE
Defendant next challenges the sufficiency of the evidence supporting his convictions of
AWIGBH and torture. This Court reviews de novo a defendant’s claim that the evidence was
insufficient to support his conviction. People v Kosik, 303 Mich. App. 146, 150; 841 NW2d 906
(2013). To sustain a conviction, a reviewing court must evaluate whether the evidence
demonstrates the defendant’s guilt beyond a reasonable doubt. People v Railer, 288 Mich. App.
213, 216; 792 NW2d 776 (2010). “In reviewing the sufficiency of the evidence, this Court must
view the evidence in the light most favorable to the prosecution and determine whether a rational
trier of fact could find that the essential elements of the crime were proven beyond a reasonable
doubt.” Kosik, 303 Mich. App. at 150. Any conflicts in the evidence are to be resolved in favor
of the prosecution. Id. at 151.
1. AWIGBH
With respect to his conviction for AWIGBH, defendant maintains that the evidence is
insufficient to demonstrate beyond a reasonable doubt that he intended to inflict the level of
injury illustrated by Michigan case law as constituting “great bodily harm.” We disagree.
Again, the elements necessary to establish AWIGBH are: “(1) an attempt or threat with
force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily
harm less than murder.” Parcha, 227 Mich. App. at 239. The intent to inflict great bodily harm,
or serious injury of an aggravated nature, Brown, 267 Mich. App. at 147, may be “inferred from
the defendant’s actions, including the use of a dangerous weapon or the making of threats,”
People v Stevens, 306 Mich. App. 620, 629; 858 NW2d 98 (2014). Minimal circumstantial
evidence of a defendant’s state of mind is sufficient to establish intent. Russell, 297 Mich. App. at
721. Notably, although a victim’s injuries may be probative of a defendant’s intent, actual injury
to the victim is not an element of the offense that must be proven by the prosecution. Stevens,
306 Mich. App. at 629.
1
The victim is 4’11” tall and weighed approximately 118 pounds, whereas defendant is 6’3” tall
and weighs 245 pounds.
2
Defendant was held in contempt five times within the course of the hour-long probable cause
hearing because of his angry outbursts, particularly during the victim’s testimony.
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By way of comparison, defendant cites to a variety of Michigan cases in an effort to
illustrate the level of force that must be used to establish a defendant’s intent to cause great
bodily harm. Indeed, the conduct and harm inflicted in those cases was severe. See, e.g., id.
(holding that the evidence was sufficient to demonstrate intent to cause great bodily harm when
the defendant, brandishing a knife, made threats, instigated a fight, and wrestled the victim to the
ground before stabbing him four times and puncturing a lung); People v Wilson, 159 Mich. App.
345; 406 NW2d 294 (1987) (holding that the evidence supported a conviction of AWIGBH when
the defendant pointed his gun at and struck two victims, fired a shot in the air, actually shot a
third victim, and fired three more shots at but missed a fourth victim).
In reliance on these cases, defendant maintains that the intent to inflict great bodily harm
requires conduct just shy of murder, further arguing that defendant did not inflict any injury
coming close to death. Defendant’s argument is flawed in two respects. First, conduct resulting
in a conviction of AWIGBH need not rise to the level of severity described in the caselaw cited
by defendant. See, e.g., People v Dillard, 303 Mich. App. 372, 378-379; 845 NW2d 518 (2013),
abrogated on other grounds by People v Barrera, 500 Mich. 14; 892 NW2d 789 (2017) (evidence
that the defendant pulled the victim to the ground multiple times, punched her in the face,
dragged her across a driveway, choked her, and covered her mouth to muffle her screams was
sufficient to permit a reasonable jury to conclude that the defendant acted with the intent to
inflict great bodily harm). Second, defendant’s argument is unavailing insofar as it improperly
focuses on the severity of the victim’s injuries. In order to prove a defendant’s guilt of
AWIGBH, the prosecution is not required to demonstrate that the victim sustained any injuries
whatsoever. See Stevens, 306 Mich. App. at 629. Thus, although the victim in the present case
did not sustain near-lethal injuries, the proper focus is on defendant’s intent, which must be
inferred from the nature of his attack and threats made to the victim.
Viewed in the light most favorable to the prosecution, the evidence in the present case
demonstrates that defendant savagely beat and terrorized the victim over the course of many
hours. He repeatedly punched the victim in her face with such force that she was thrown
backwards onto the couch and began to lose consciousness. He picked up and swung a table at
her, hitting her in her side, then choked her and flung her into a wall. Once in the upstairs
bathroom, defendant swung at and struck the victim in her side with a shower rod and then
kicked her in her side as she lay on the floor crying. In the bedroom, defendant again began
choking the victim. Throughout the ordeal, defendant threatened the victim by stating, “You’re
going to die tonight, bitch.” Especially in context of their significant difference in size and the
fact that the victim was recovering from a recent caesarian section surgery, the amount of force
used by defendant in the attack could have led a reasonable juror to infer that he intended to
inflict serious physical harm. This Court does not interfere with the jury’s role as factfinder—it
is they who determine the witnesses’ credibility and assign the weight to be accorded to the
evidence. Kosik, 303 Mich. App. at 150. It is also the function of the jury, and not of this Court,
“to determine what inferences can be fairly drawn from the evidence and to determine the weight
to be afforded to the inferences.” Id. at 150-151. We therefore conclude that the evidence
presented was sufficient to sustain defendant’s conviction of AWIGBH.
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2. TORTURE
Next, defendant argues that evidence presented during trial was insufficient to sustain his
conviction for torture. Specifically, defendant asserts that he neither had physical custody or
control of the victim against her will, nor did he inflict great bodily injury or severe mental pain
or suffering as specifically defined by statute. Again, we disagree.
The offense of torture is set forth under MCL 750.85:
(1) A person who, with the intent to cause cruel or extreme physical or
mental pain and suffering, inflicts great bodily injury or severe mental pain or
suffering upon another person within his or her custody or physical control
commits torture . . . .
(2) As used in this section:
* * *
(b) “Custody or physical control” means the forcible restriction of a
person’s movements or forcible confinement of the person so as to interfere with
that person’s liberty, without that person’s consent or without lawful authority.
* * *
(d) “Severe mental pain or suffering” means a mental injury that results in
a substantial alteration of mental functioning that is manifested in a visibly
demonstrable manner caused by or resulting from any of the following:
(i) The intentional infliction or threatened infliction of great bodily injury.
(ii) The administration or application, or threatened administration or
application, of mind-altering substances or other procedures calculated to disrupt
the senses or the personality.
(iii) The threat of imminent death.
(iv) The threat that another person will imminently be subjected to death,
great bodily injury, or the administration or application of mind-altering
substances or other procedures calculated to disrupt the senses or personality.
Although no published authority exists applying the requirement that a torture victim be
in the custody or physical control of a defendant, this Court has previously construed Michigan’s
false imprisonment statute, MCL 750.349b, which renders it unlawful to knowingly restrain
another person under various circumstances. The statute defines the term “restrain” in terms
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similar to those used under MCL 750.85(2)(b) to define “custody or physical control.”3 In Kosik,
this Court evaluated whether a victim was restrained when she was taken against her will into a
windowless conference room, where the defendant stood guard at the only exit and could have
prevented any escape. Kosik, 303 Mich. App. at 152. While the victim was not bound, gagged, or
threatened, this Court held that the evidence was sufficient to establish that the defendant had
“restricted the victim’s movement within the bounds of the conference room” such that she was
restrained. Id. at 152. In reaching this conclusion, this Court observed that the circumstances of
the restraint need not be particularly egregious to satisfy the statute, which does not “require[] a
certain level of difficulty of discovery or escape.” Id. at 153. We find this reasoning to be
equally compelling with respect to interpretation of MCL 750.85. Indeed, the model criminal
jury instructions applicable to the offense of torture provide that confinement or restriction of
movement may be achieved either through force or threat of force. See M Crim JI 17.36(2).
In the present case, the evidence sufficiently demonstrates that defendant forcibly
confined the victim insofar as he used both force and threat of force to prevent her from escaping
the apartment. The victim testified multiple times that she obeyed defendant’s orders and did not
attempt to run away because she was terrified of further endangering herself. She was unable to
call for help because defendant had taken her cell phone. The victim also explained that she did
not attempt to escape when the maintenance men arrived at the apartment because she was
uncertain whether it would be safe. Additionally, she did not attempt to escape through her back
door because defendant “would have gotten [her] faster than anything.” Even the victim’s
eventual escape establishes that her fears were well-founded, as defendant not only paced to and
from the kitchen to monitor the victim but also arrived at the victim’s mother’s house only
minutes after the victim. Contrary to defendant’s argument on appeal, the fact that the victim did
not attempt an earlier escape does not demonstrate that she remained inside the apartment of her
own accord rather than because she was forcibly confined. The evidence that the victim was
under defendant’s forcible control was sufficient to support the jury’s verdict.
MCL 750.85 also requires actual infliction of either great bodily injury or severe mental
pain or suffering upon the victim. The prosecution does not contend that the victim suffered
great bodily injury but rather severe mental pain or suffering. The evidence sufficiently supports
that, as a result of defendant’s attack, the victim suffered “a substantial alteration of mental
functioning that [was] manifested in a visibly demonstrable manner.” See MCL 750.85(2)(d).
In addition to her severe emotional distress arising from the physical violence and defendant’s
threats that she was “going to die tonight,” the victim sustained further humiliation and torment
when defendant forced her to drink his urine, even when she was about to vomit, and urinated on
her head. The victim’s testimony demonstrates that she cried throughout the ordeal and
desperately begged defendant to stop. She stated that during the attack she was “terrified,”
“scared,” and “in shock.” Although defendant had previously been physically abusive toward
her, the victim stated that “[t]his time felt like a nightmare.” Both of the victim’s brothers
3
Under MCL 750.349b(3)(a), “ ‘[r]estrain’ means to forcibly restrict a person’s movements or to
forcibly confine the person so as to interfere with that person’s liberty without that person’s
consent or without lawful authority. . . .”
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testified that the victim was visibly scared, out of breath, and shaking when she arrived at their
apartment. Likewise, a responding officer stated that the victim was shaking and in fear. During
the victim’s testimony at trial, she became distraught, began to cry, and needed to leave the
courtroom to calm herself down.
Viewing this evidence in a light most favorable to the prosecution and drawing all
inferences in support of the jury’s verdict, we conclude that the evidence was sufficient to permit
a rational juror to find that the victim suffered severe mental pain and suffering.4 Accordingly,
we conclude that the evidence presented at trial was sufficient to support defendant’s torture
conviction.
C. SCORING OF OFFENSE VARIABLES
Defendant argues that his sentence is invalid because the trial court improperly scored
Offense Variables (OVs) 4, 7, 8, 10, and 19, and thus seeks resentencing. Although we conclude
that the trial court erroneously scored OV 4, remand for resentencing is unnecessary because this
scoring error does not alter defendant’s guidelines range.
A trial court’s factual determinations regarding sentencing, which must be supported by a
preponderance of the evidence, are reviewed for clear error. People v Calloway, 500 Mich. 180,
184; 895 NW2d 165 (2017). The clear error standard is satisfied “when the reviewing court is
left with a definite and firm conviction that an error occurred.” People v McChester, 310 Mich
App 354, 358; 873 NW2d 646 (2015). “ ‘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.’ ” Calloway, 500 Mich. at
184, quoting People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). When scoring offense
variables under the sentencing guidelines, a court may consider all record evidence, including the
presentence investigation report, plea admissions, and testimony presented during a preliminary
examination or trial. McChester, 310 Mich. App. at 358. Reasonable inferences arising from the
record evidence may also be utilized to support the scoring of a variable. People v Earl, 297
Mich. App. 104, 109; 822 NW2d 271 (2012).
1. OV 4
OV 4, which concerns the psychological injury to a victim, requires a trial court to assess
10 points when “[s]erious psychological injury requiring professional treatment occurred” and no
points when no such injury to the victim occurred. MCL 777.34(1). The statute does not require
that a victim actually receive psychological treatment, only that professional treatment may be
required. MCL 777.34(2); see also People v Urban, 321 Mich. App. 198, 215; 908 NW2d 564
(2017). However, “[t]here must be some evidence of psychological injury on the record to
4
Defendant again relies on several unpublished Michigan cases in an effort to illustrate that the
victim’s injuries here do not rise to a comparable level of severity. In addition to the fact that
these unpublished cases are not binding precedent, MCL 7.215(C)(1), they are also inapposite, as
none involve the infliction of severe mental pain or suffering.
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justify a 10-point score.” People v Lockett, 295 Mich. App. 165, 183; 814 NW2d 295 (2012). A
victim’s fear during the commission of the charged offense, “by itself and without any other
showing of psychological harm,” is insufficient to assess 10 points for OV 4. People v White,
501 Mich. 160, 164; 905 NW2d 228 (2017) (emphasis in original). Nor may a court simply
assume that a reasonable person in the victim’s position normally would have suffered serious
psychological injury as a result of the crime perpetrated. Id. at 163.
The trial court premised its assessment of 10 points for OV 4 on the fact that the victim
was emotional when delivering her trial testimony, which the court construed as “evidence of
serious psychological injury that may necessitate some professional treatment at some point in
time in the future.” Although the victim became emotional while testifying during the probable
cause hearing and at trial, her testimony regarding the psychological impact of the attack was
limited to the terror she experienced during and immediately after the event. The victim did not
testify regarding any lasting psychological effects stemming from the attack, nor did she offer a
victim impact statement or testify during the sentencing hearing. Her emotional demeanor
during her testimony could have been attributable either to the fleeting stress of reliving the
ordeal or to severe emotional trauma requiring psychological treatment. In the absence of any
evidence favoring the latter explanation, the trial court effectively made the improper assumption
that serious psychological injury was a likely result of the attack perpetrated against the victim.
Accordingly, because the trial court’s factual finding that the victim suffered serious
psychological injury requiring treatment is not supported by a preponderance of the evidence, the
assessment of 10 points for OV 4 was clearly erroneous.
Although the trial court erroneously assessed defendant 10 points for OV 4, we conclude
for the reasons set forth below that the trial court’s scoring was otherwise proper. The trial court
assessed defendant a total of 146 points, placing him at OV Level VI under the sentencing grid
for Class A offenses. See MCL 777.62. A defendant is sentenced under OV Level VI when the
offense variables are scored at 100 points or above. Id. Therefore, the subtraction of 10 points
from defendant’s aggregate score would not alter defendant’s guidelines range. Under these
circumstances, it is unnecessary for this Court to vacate defendant’s sentence and remand for
resentencing. See People v Francisco, 474 Mich. 82, 90 n 8; 711 NW2d 44 (2006) (“Where a
scoring error does not alter the appropriate guidelines range, resentencing is not required.”).
2. OV 7
Under OV 7, a trial court assesses 50 points for aggravated physical abuse when “[a]
victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct
designed to substantially increase the fear and anxiety a victim suffered during the offense.”
MCL 777.37(1)(a). In scoring OV 7, a trial court must evaluate “(1) whether the defendant
engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether
the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount.”
People v Hardy, 494 Mich. 430, 443-444; 835 NW2d 340 (2013). Accordingly, a trial court
should “consider the severity of the crime, the elements of the offense, and the different ways in
which those elements can be satisfied,” and then determine “the fear or anxiety associated with
the minimum conduct necessary to commit the offense.” Id. at 443. Finally, the court should
view these considerations in contrast to the defendant’s actions in committing the charged
offenses. Id.
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In the present case, the trial court assessed 50 points under OV 7, finding that defendant
engaged in sadistic and egregious conduct designed to substantially increase the fear and anxiety
the victim suffered. The trial court did not examine the “baseline” level of fear or anxiety likely
generated by the minimum conduct necessary to commit AWIGBH or torture. However, the
record amply supports the trial court’s finding of sadism, which is statutorily 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). The victim’s trial testimony
reveals that defendant went beyond the brutal physical violence that alone would have sustained
convictions of AWIGBH and torture and additionally threatened the victim throughout the night
that she was going to die. For his own gratification, defendant humiliated the victim by urinating
on her and forcing her to drink his urine in fear of further abuse or death. Defendant prolonged
this physical and mental torment such that it extended from approximately 8:00 p.m. until the
early hours of the following morning. Such conduct went far beyond the minimum required to
commit the charged offenses.
Defendant’s conduct was no doubt intended to increase the victim’s fear and anxiety by a
considerable amount. The victim testified multiple times that she was terrified throughout the
ordeal, which she described as nightmarish. She stated that she complied with defendant’s
orders and did not attempt to flee because she was fearful for her safety if she resisted. Indeed,
achieving a victim’s compliance by placing him or her in fear of imminent death constitutes
conduct designed to increase the victim’s fear and anxiety. See Hardy, 494 Mich. at 445. We
thus conclude that the trial court did not clearly err in assessing 50 points for OV 7.
3. OV 8
OV 8 instructs that 15 points be assessed 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.” MCL 777.38(1)(a). Our Supreme Court has held that the
term “asportation,” as used in OV 8, is to be accorded its plain meaning such that any movement
of a victim to a place of greater danger qualifies as asportation, even when it is “incidental to the
commission of a crime.” Barrera, 500 Mich. at 21. Under the facts presented in Barrera, the
Supreme Court specifically held that 15 points were properly assessed for OV 8 because the
defendant moved the victim from his living room into his bedroom before sexually assaulting
her. Id. at 21-22. The Court reasoned that the bedroom was a place of greater danger because
the assault was less likely to be discovered there. Id. at 22.
In the instant case, the trial court assessed 15 points for OV 8. The assault began in the
living room, and defendant then moved the victim upstairs, first to the bathroom and later to her
bedroom. Contrary to defendant’s argument on appeal, the evidence demonstrates that the
upstairs bathroom and bedroom were less safe than the living room because it was less likely that
the victim could escape from the second floor. By contrast, the living room was adjacent to the
kitchen, where the front door was located. Accordingly, as in Barrera, defendant moved his
victim from the living room to a location where he was less likely to be discovered and the
victim was less likely to escape. The trial court did not err in assessing 15 points based on OV 8.
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4. OV 10
The gravamen of OV 10 is that a vulnerable person was exploited. MCL 777.40; see also
People v Cannon, 481 Mich. 152, 157-158; 749 NW2d 257 (2008). “Vulnerability” is defined as
“the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or
temptation.” MCL 777.40(3)(c). “Exploit,” in turn, is defined as “to manipulate a victim for
selfish or unethical purposes.” MCL 777.40(3)(b). OV 10 provides for the assessment of 10
points when “[t]he offender exploited a victim’s physical disability, mental disability, youth or
agedness, or a domestic relationship, or the offender abused his or her authority status.” MCL
777.40(1)(b). Five points must be assessed when “[t]he offender exploited a victim by his or her
difference in size or strength, or both, or exploited a victim who was intoxicated, under the
influence of drugs, asleep, or unconscious.” MCL 777.40(1)(c).
Here, the trial court assessed 10 points for OV 10, reasoning that “[t]he facts in this case
clearly establish that [defendant] exploited a domestic relationship because he could. There was
a history of it. He knew he had power and control and took advantage of it.” Defendant
contends that the trial court’s assessment of 10 points was improper because he and the victim
did not have a domestic relationship. “[T]o qualify as a ‘domestic relationship,’ there must be a
familial or cohabitating relationship,” as opposed to a mere dating relationship. People v
Jamison, 292 Mich. App. 440, 447; 807 NW2d 427 (2011) (no domestic relationship existed when
the defendant and the victim previously dated, continued to have infrequent sexual relations, and
kept some personal belongings at each other’s residences); see also People v Brantley, 296 Mich
App 546, 555; 823 NW2d 290 (2012), abrogated on other grounds by People v Comer, 500 Mich.
278; 901 NW2d 553 (2017) (no domestic relationship existed when the defendant and the victim
no longer dated, did not continue to have sexual relations, and did not live together).
Unlike Jamison and Brantley, the facts of the instant case establish that defendant and the
victim had a domestic relationship at the time of the attack. Both during the probable cause
hearing and during trial, the victim testified that she and defendant began living together in early
2016, in the victim’s apartment. She specifically confirmed that they were living together on
April 11, 2016, when the attack occurred. During the probable cause hearing, the victim stated
that defendant stayed at the apartment approximately three or four nights per week. In one of his
multiple outbursts, defendant took issue with that statement, calling the victim a liar and stating,
“You know I stayed there, all my clothes [are] there.” Consequently, the evidence, including
defendant’s own admission, demonstrates that defendant and the victim were cohabiting at the
time of the attack. We find the fact that defendant may not have stayed at the victim’s apartment
every day to be immaterial, as Jamison does not require that cohabitation be exclusive or daily.
Although defendant does not contest the trial court’s findings that the victim was a
vulnerable person who defendant exploited, we find these conclusions are supported by the
record. During her trial testimony, the victim described numerous instances of domestic abuse
that occurred before the attack underlying the present charges. In spite of this abuse, the victim
continued her romantic relationship with defendant, believing him to be remorseful. When asked
why she continued to communicate with defendant, the victim responded that she had an
attachment to him. Even after the attack underlying the present charges, the victim went back to
her apartment to see defendant before he was arrested, explaining that she did so because she had
an “attachment issue.” It is readily apparent from the victim’s testimony that she was vulnerable
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insofar as she was unable either to leave defendant or to resist his attempts to persuade her of his
remorse, in spite of his continued abuse. Defendant, in turn, exploited the victim’s susceptibility
to persuasion by convincing her to continue their relationship and to permit him to live in her
apartment. We therefore conclude that the trial court did not err in assessing 10 points for OV
10.
5. OV 19
Initially, we note that defendant failed to advance any argument regarding OV 19 beyond
the conclusory statement that the score was unsupported by the record. Defendant offered no
discussion regarding the trial court’s rationale for assessing 15 points for OV 19 and cited to no
legal authority beyond the relevant statute. It is a well-established principle of appellate practice
that “[a]n appellant may not merely announce his position and leave it to this Court to discover
and rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with
little or no citation of supporting authority.” People v Watson, 245 Mich. App. 572, 587; 629
NW2d 411 (2001) (quotation marks and citation omitted). As such, we find that defendant
abandoned this issue by failing to expound on any argument. See id.
Even had defendant advanced a cogent argument, however, we would nonetheless
conclude that the trial court properly scored OV 19, albeit on alternate grounds. OV 19 concerns
a defendant’s interference with the administration of justice. MCL 777.49. The statute requires,
in part, that 15 points be assessed if “[t]he offender used force or the threat of force against
another person or the property of another person to interfere with, attempt to interfere with, or
that results in the interference with the administration of justice;” 10 points if “[t]he offender
otherwise interfered with or attempted to interfere with the administration of justice;” and no
points if none of the above occurred. Id.
The phrase “interfere with the administration of justice” is defined in accordance with its
plain and ordinary meaning, “to oppose so as to hamper, hinder, or obstruct the act or process of
administering judgment of individuals or causes by judicial process.” People v Hershey, 303
Mich. App. 330, 343; 844 NW2d 127 (2013). Generally, offense variables must be scored with
regard to the sentencing offense alone. People v McGraw, 484 Mich. 120, 133; 771 NW2d 655
(2009). However, because “[t]he ‘administration of justice’ process . . . is not commenced until
an underlying crime has occurred,” a trial court scoring OV 19 may consider conduct that
occurred “after the completion of the sentencing offense.” People v Smith, 488 Mich. 193, 195;
793 NW2d 666 (2010) (emphasis added).
The trial court assessed 15 points5 for OV 19 on the basis that, when defendant moved
into the victim’s apartment in early 2016, he violated the terms of a personal protection order
(PPO) in place by the power of the court to protect the victim. However, defendant violated the
PPO when he moved into the victim’s apartment in January or February 2016, months before the
5
The prosecution erroneously stated in its appellate briefing that the trial court assessed 10
points for OV 19. In fact, the presentence investigation report recommendation was 15 points,
and that is what the trial court assessed.
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attack underlying the sentencing offenses occurred. Moreover, this Court has previously held
that mere failure to comply with a court order does not constitute interference with the
administration of justice. Hershey, 303 Mich. App. at 345 (holding that neither the defendant’s
failure to comply with a court order to pay child support nor his violation of the terms of his
court-ordered probation hindered the administration of justice). Therefore, the trial court’s
rationale is insufficient to sustain its assessment of 15 points for OV 19. However, we find that
the trial court’s scoring of OV 19 is nonetheless supported for a different reason. See People v
Jory, 443 Mich. 403, 425; 505 NW2d 228 (1993) (“Where a trial court reaches the correct result
for the wrong reason, its decision need not be reversed on appeal.”).
With respect to scoring OV 19, this Court previously held that a defendant interfered with
the administration of justice when he instructed his victims “not to disclose his acts or he would
go to jail.” People v Steele, 283 Mich. App. 472, 492-493; 769 NW2d 256 (2009) (affirming trial
court’s assessment of 10 points for OV 19 when the defendant discouraged victims from
testifying but did not threaten them). This Court reasoned that the defendant’s “admonitions to
his victims were a clear and obvious attempt by him to diminish his victims’ willingness and
ability to obtain justice.” Id. at 493.
Here, defendant similarly discouraged the victim from testifying. In a letter to the victim,
defendant wrote, “we have to fix this asap,” imploring the victim twice to contact the prosecutor
to drop the charges for which defendant faced a life sentence. After describing the life he
envisioned for them when he was released from jail, defendant wrote, “Baby let’s make this
work[.] Baby just don’t show up[.]” In a second letter, defendant asked the victim to prove she
was going to be a “better person” in the future and to leave the past behind. Unlike the defendant
in Steele who was assessed 10 points, defendant’s communications to the victim may be
construed as threatening, supporting a score of 15 points. A threat need not be explicit. See
People v McDonald, 293 Mich. App. 292, 299-300; 811 NW2d 507 (2011) (The “defendant’s
statements that he knew who the victim was and that his ‘boys’ had been watching her were
obvious threats” because “[a]ny person would interpret that as an implication that she or he could
be found again in the future.”). In the context of testimony by two arresting officers describing
defendant’s threats to kill the victim when he was released, his letters could be reasonably
construed as veiled threats that he would harm the victim if she did not get the charges dropped
or chose to testify against him. This implication is even stronger in light of defendant’s history
of physically abusing the victim for perceived unfaithfulness. Accordingly, the record supports
the finding that defendant used the threat of force against the victim in an effort to interfere with
the administration of justice. The trial court therefore correctly scored OV 19, though for the
wrong reason.
D. GUILTY PLEA
Finally, defendant argues in his Standard 4 brief that he was coerced by trial counsel into
pleading guilty to failing to comply with the registration requirements of SORA and therefore
should be permitted to withdraw his plea. Specifically, defendant contends that trial counsel
exerted undue pressure on him to plead guilty by declining to defend him on this charge. We
disagree.
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Initially, we note that appellate review of this issue is precluded under MCR 6.310(D),
which provides:
A defendant convicted on the basis of a plea may not raise on appeal any claim of
noncompliance with the requirements of the rules in this subchapter, or any other
claim that the plea was not an understanding, voluntary, or accurate one, unless
the defendant has moved to withdraw the plea in the trial court, raising as a basis
for withdrawal the claim sought to be raised on appeal. [(Emphasis added); see
also People v Pointer-Bey, 321 Mich. App. 609, 615; 909 NW2d 523 (2017)
(holding that the issue of whether a plea was knowingly and voluntarily made is
preserved by filing a motion to withdraw the plea before the trial court).]
It is undisputed that defendant did not file a motion to withdraw his plea before the trial court,
either before or after sentencing. Under similar circumstances, this Court declined to review a
defendant’s claim that his plea was the product of coercion by trial counsel when the defendant
never sought to withdraw his plea before the trial court. People v Armisted, 295 Mich. App. 32,
48; 811 NW2d 47 (2011). Accordingly, we likewise conclude that appellate review is precluded.
However, even if this Court were to review this unpreserved issue, we would find no
merit in defendant’s claim that his plea was involuntary. This Court’s review of an unpreserved
claim that a plea was involuntarily made is limited to “outcome-determinative plain error.” See
id. at 46, citing Carines, 460 Mich. at 763-764. On May 9, 2017, just before trial began,
defendant pleaded guilty to failing to comply with registration requirements under SORA.
Defendant agreed on the record to inform the judge if there was anything he did not understand.
He stated that he understood the general nature of the charge of failing to comply with SORA,
that the sentence could be up to 15 years because of the habitual fourth enhancement, and that he
had a constitutional right to a trial on this charge. He further acknowledged that, by pleading
guilty, he was giving up the right to appeal this conviction except by leave granted. Defendant
pleaded “guilty, guilty, guilty” to the charge and stated that he was pleading guilty by his own
choice; no one threatened him or promised him anything in return for his plea.
With respect to the factual basis underlying his plea, defendant testified that he was
previously convicted of CSC and that he registered in accordance with SORA using his mother’s
address. However, defendant admitted that he never registered at his primary residence, the
victim’s apartment. Defendant twice confirmed that his statements were true and verified that he
had no difficulty hearing or understanding what had been discussed. Defendant then confirmed
his prior convictions. Both attorneys expressed their satisfaction that the trial court had complied
with all applicable court rules, and only then did the court accept the plea, finding it both
accurate and voluntary.
The record does not support a finding that defendant’s plea was involuntary or the
product of coercion. Assuming that trial counsel refused to represent defendant with respect to
the SORA violation charge, the record does not demonstrate that defendant had no alternative
but to plead guilty to this charge. Had defendant not wished to plead guilty, he could have
requested that the trial court grant him a continuance on that charge to provide him an
opportunity to seek alternate counsel. He did not do so. Rather, defendant verified before the
trial court that his plea was voluntary and was not made as the result of any threat or promise.
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Finally, defendant admitted to the factual basis underlying his guilty plea. Accordingly, because
the record reveals no plain error in the plea proceeding, we conclude that defendant is not
entitled to relief.
Affirmed.
/s/ Jonathan Tukel
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
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