People of Michigan v. Marquan Antonio Jackson

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

December 18, 2014

Plaintiff-Appellee,

v No. 316433

Wayne Circuit Court

MARQUAN ANTONIO JACKSON, LC No. 12-008303-FJ

Defendant-Appellant.

Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

Defendant appeals as of right from his convictions following a jury trial of carjacking,

MCL 750.529a, and armed robbery, MCL 750.529. The trial court sentenced defendant to serve

10 to 20 years’ imprisonment for both convictions, with credit for 293 days served. We affirm

defendant’s convictions, but remand for resentencing.

I. BASIC FACTS

On July 9, 2012, at around 7:00 a.m., Louis Poineau was driving to work when a vehicle

passed him at a high rate of speed and then stopped in front of his vehicle. A tan colored SUV

then rear-ended Poineau’s vehicle, pushing him into the vehicle in front. Two males got out of

the front vehicle and pulled Poineau out of his vehicle at gunpoint. Poineau said that four to six

men surrounded him and demanded his money, which he turned over. The men also took his

phone, his credit and debit cards, his identification, and his vehicle. On July 12, 2012, after

turning himself in to the police, defendant confessed to participating in the carjacking and

robbery of Poineau. He also made several incriminating statements in regard to a number of

additional robberies and carjackings. Defense counsel moved to suppress defendant’s statement

as involuntary and, after a Walker1 hearing, the trial court denied the motion. This ruling is

challenged on appeal.

1

People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

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Also at issue is the court’s admission of testimony concerning an additional, uncharged

carjacking. The victim of that carjacking, Gerald Moss, testified that he was carjacked and

robbed at around 6:30 a.m. on July 9, 2012. Defendant also confessed to being a participant in

this carjacking. Moss’s vehicle was later used in the carjacking of Poineau. Moss identified

defendant as being in the backseat of the perpetrators’ vehicle. Defendant sought to suppress

Moss’s in-court identification because the initial identification occurred during the preliminary

examination and was, according to defendant, impermissibly suggestive. After a Wade2 hearing,

the trial court found that there was an independent basis for Moss’s in-court identification and

denied defendant’s motion to suppress the identification.

II. VOLUNTARY CONFESSION

Defendant argues that the trial court erred in denying his motion to suppress his statement

because his Miranda3 waiver and confession were not voluntary. Defendant asserts the

statement was involuntary because, although he told the police that he had asthma before he gave

the statement, he was not taken to the hospital for treatment until approximately four hours after

making the statement. “When reviewing a trial court’s determination of the voluntariness of

inculpatory statements, this Court must examine the entire record and make an independent

determination, but will not disturb the trial court’s factual findings absent clear error.” People v

Shipley, 256 Mich App 367, 372-373; 662 NW2d 856 (2003). “A finding is clearly erroneous if

it leaves this Court with a definite and firm conviction that a mistake was made.” Id. at 373.

“[D]eference is given to the trial court’s assessment of the weight of the evidence and credibility

of the witnesses.” Id.

It is well settled that admitting an involuntary confession into evidence violates a

defendant’s due process rights. Lynumn v Illinois, 372 US 528, 537; 83 S Ct 917; 9 L Ed 2d 922

(1963); People v Conte, 421 Mich 704, 722; 365 NW2d 648 (1984). When determining the

voluntariness of a statement, a court looks to the totality of the circumstances to see if the

statement was given voluntarily and was the product of the defendant’s own free will. People v

Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988). To determine whether the statement

was freely and voluntarily made, the following factors are taken into consideration:

[T]he age of the accused; his lack of education or his intelligence level; the extent

of his previous experience with the police; the repeated and prolonged nature of

the questioning; the length of the detention of the accused before he gave the

statement in question; the lack of any advice to the accused of his constitutional

rights; whether there was an unnecessary delay in bringing him before a

magistrate before he gave the confession; whether the accused was injured,

intoxicated or drugged, or in ill health when he gave the statement; whether the

accused was deprived of food, sleep, or medical attention; whether the accused

2

United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).

3

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

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was physically abused; and whether the suspect was threatened with abuse. [Id. at

334.]

“The absence or presence of any one of these factors is not necessarily conclusive on the issue of

voluntariness.” Id.

The record reveals that defendant disclosed, as a routine part of his booking, that he

suffered from asthma. Defendant’s booking sheet indicated that he took Albuterol for his

asthma, but he had not taken the medication in the past year. The booking sheet classified

defendant’s asthma as a “non-emergency medical issue.” Detroit Police Sergeant Robert

Wellman, who took defendant’s statement, testified that defendant read and understood his

Miranda rights at the outset of the interview. Defendant did not have any problem reading his

rights, nor did he indicate that he did not understand them. In addition, defendant did not

indicate that he took any type of medication or that he needed any type of medication. Wellman

did not believe that defendant ever appeared in need of medical assistance or that he was unable

to breathe. If defendant had displayed any sign that he needed medical attention or was suffering

from some sort of illness, Wellman testified that he would have taken defendant to the hospital

immediately, without waiting for defendant to finish giving his statement. Wellman did not need

to take defendant to the hospital in this case, though, because defendant “didn’t show any signs,

at all” of the need for medical assistance.

Wellman further testified that after defendant indicated that he understood his rights,

defendant confessed his involvement in the charged offenses, as well as additional, uncharged

offenses. Defendant began giving his statement at approximately 8:55 p.m. on July 11, 2012,

and finished his statement at approximately 11:15 p.m. Defendant read his statement at the end

and verified its accuracy. Wellman testified that neither he nor anyone else used any physical

force, verbal force, threats, or coercion in taking defendant’s statement.

Wellman testified that after defendant gave his statement, he was returned to his jail cell.

At approximately midnight, an officer conducted a walk-through of defendant’s cell block and

reported that everything was “okay” at that time. Later, at approximately 3:00 a.m. the morning

after giving his statement, defendant was taken to the hospital. It appears that defendant was

taken to the hospital, pursuant to police procedure, because his intake form indicated a non-

emergency health issue. Defendant returned from the hospital at approximately 4:35 a.m. the

same morning. While at the hospital, defendant was given a prescription for Albuterol; officers

had this prescription filled for defendant. Records did not indicate whether defendant was given

a dose of the prescription while he was in custody; however, records indicated that other asthma

patients who were in custody were given doses of their respective medications.

The record supports the trial court’s finding of voluntariness. According to unrebutted

testimony, defendant indicated that he knew and understood his rights, and he was not threatened

in any manner. And, contrary to defendant’s assertions on appeal, there is no evidence to

support his assertion that his statement was influenced by his asthma. Wellman presented

unrebutted testimony that defendant did not appear to have any trouble breathing or that he

otherwise needed medical assistance at the time he gave his statement. Although defendant

subsequently visited the hospital, this does not render his statement involuntary. Rather, as

noted, the only testimony presented at the Walker hearing was that defendant did not suffer from

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any apparent medical conditions at the time he gave his statement. Furthermore, it appears that

defendant’s visit to the hospital was a matter of routine procedure, not associated with a medical

emergency. Indeed, it is not apparent from the record that defendant was even given a dose of

the medication he was prescribed—a medication he had reportedly not taken for over a year. As

such, we find no basis for disturbing the trial court’s finding that defendant’s statement was

voluntary. See Cipriano, 431 Mich at 334; Shipley, 256 Mich App at 372-373.

III. OTHER ACTS EVIDENCE

Defendant next argues that the trial court erred in admitting evidence about the Moss

carjacking. He also contends that the trial court erred in admitting testimony from Officer Dana

Russell concerning another stolen automobile, a high-speed chase, and one of defendant’s

accomplices who fled from police officers. The prosecutor offered the evidence pursuant to

MRE 404(b); he also argued that the evidence was admissible as res gestae evidence. The

prosecutor argued that the other carjackings were so intertwined that presentation thereof was

necessary in order to give the jury the complete circumstances of the charged offenses. The trial

court ruled that the other-acts evidence was admissible pursuant to MRE 404(b).4 The decision

whether to admit evidence is within the trial court’s discretion and will be reversed on appeal

only if there is an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607

(1999). “A trial court abuses its discretion when it chooses an outcome that is outside the range

of reasonable and principled outcomes.” People v Orr, 275 Mich App 587, 588-589; 739 NW2d

385 (2007).

A. MOSS CARJACKING

Moss testified that on July 9, 2012, at approximately 6:30 a.m., he stopped his gold Ford

Explorer at a gas station and went inside to purchase a cup of coffee. When he came out of the

gas station, a silver Dodge Intrepid pulled up near him, and a man, later identified as Edward

Spann5, got out of the passenger seat, armed with a gun. The man pointed the gun at Moss’s

chest and told him to “give him my stuff.” Moss dropped his keys on the ground and gave the

man his phone and his money. One of the occupants of the Intrepid got out, picked up Moss’s

keys, jumped in the Explorer, and drove away. As will be discussed in more detail infra, Moss

identified defendant as one of the occupants of the Intrepid.

4

The trial court did not render a ruling as to whether the evidence was also admissible as res

gestae evidence.

5

Spann was convicted of several charges stemming from the events underlying this prosecution.

His delayed application for leave to appeal was denied. People v Spann, unpublished order of

the Court of Appeals, entered November 20, 2013 (Docket No. 317736).

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B. RUSSELL’S TESTIMONY

Russell testified that she was assigned to investigate the Moss carjacking and that, at

around 6:30 p.m. on July 9, 2012, she saw Moss’s Explorer parked at a gas station. She testified

that she saw an individual in the Explorer conversing with individuals in a purple Chevrolet

Caprice. Russell testified that she saw defendant in the Caprice, and that the Caprice had been

stolen earlier.

The Caprice and the Explorer left the gas station and continued onto I-94 West; Russell

followed them in an unmarked police car. While she was following the two vehicles, a white

Cadillac Escalade pulled up alongside the Caprice and began motioning for the Caprice to pull

over. Thereafter, Russell heard gunshots, but was not certain from which vehicles the gunshots

originated. Russell testified that the vehicles were traveling approximately 90 to 95 miles per

hour on the highway. Eventually, the Explorer exited the highway, and Russell continued to

follow it. Later, a marked police car attempted a traffic stop on the Explorer, and one of the

occupants jumped from the vehicle and ran.

Russell subsequently returned to the gas station where Moss’s Explorer had been stolen

and obtained surveillance video of the carjacking. She testified that someone in a white shirt was

present inside the silver Intrepid during the carjacking. She also testified that, when she saw

defendant in the stolen Caprice, he was wearing a white shirt.

C. MRE 404(B)

To be admissible under MRE 404(b), other acts evidence (1) must be offered for a proper

purpose, (2) must be relevant, and (3) must not have a probative value substantially outweighed

by its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004).

Additionally, upon request, the trial court “may provide a limiting instruction under MRE 105.”

Id.

A proper purpose is one offered “under something other than a character to conduct

theory.” People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), amended on other

grounds 445 Mich 1205 (1994). Here, the prosecution sought to introduce other acts evidence to

show a scheme, plan, or system in doing the acts, which is a proper purpose under MRE 404(b).

“Nevertheless, the prosecution may not mechanically recite a permissible reason without

explaining how the evidence is relevant.” People v McGhee, 268 Mich App 600, 610; 709

NW2d 595 (2005). Logical relevance is the “touchstone” of the admissibility of other acts

evidence, and it “is determined by the application of” MRE 401 and 402. People v Crawford,

458 Mich 376, 388; 582 NW2d 785 (1998). MRE 401 provides that relevant evidence is

evidence having “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Relevance has two elements: materiality and probative force. McGhee, 268 Mich

App at 610. Evidence is material if it goes to a fact that is truly at issue. Id. If the evidence has

any tendency to prove a fact at issue, then there is sufficient probative force. People v Starr, 457

Mich 490, 497-498; 577 NW2d 673 (1998).

Evidence of misconduct similar to that charged is logically relevant to show that the

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charged act occurred if the uncharged misconduct and the charged offense are sufficiently

similar to support an inference that they were manifestations of a common plan, scheme, or

system. People v Dobek, 274 Mich App 58, 90; 732 NW2d 546 (2007). Moreover, it must

support an inference that the defendant employed the common plan or scheme in committing the

charged offense. People v Ackerman, 257 Mich App 434, 440-441; 669 NW2d 818 (2003).

We find that the trial court did not err by admitting testimony about the Moss carjacking

pursuant to MRE 404(b). The Moss carjacking was substantially similar to the charged

carjacking so as to support an inference that they were manifestations of a common plan,

scheme, or system. Both carjackings were committed less than one hour apart and they involved

the same perpetrators, similar acts, and the same mode of operating—notably, the perpetrators

would rapidly approach the victim in another vehicle, hit or come close to the victim’s car to

prevent the victim from escaping, have one or more assailants jump out and point a gun at the

victim’s chest or midsection, and then the perpetrators would demand the victim’s personal

possessions and take the victim’s car. According to defendant’s subsequently-admitted

confession, he and his cohorts stole the vehicles pursuant to a plan to sell the vehicles to an

individual who operated a repair shop. The similarity between the acts, and defendant’s admitted

motive in stealing the vehicles, demonstrates that they were part of the same plan, scheme, or

system. See Dobek, 274 Mich App at 90; Ackerman, 257 Mich App at 440-441.

We also find that the probative value of the evidence was not substantially outweighed by

the danger of unfair prejudice. “The determination whether the probative value of evidence is

substantially outweighed by its prejudicial effect is best left to a contemporaneous assessment of

the presentation, credibility and effect of the testimony.” People v Waclawski, 286 Mich App

634, 670; 780 NW2d 321 (2009). All relevant evidence is somewhat prejudicial. People v

Magyar, 250 Mich App 408, 416; 648 NW2d 215 (2002). “Unfair prejudice occurs ‘when there

is a tendency that the evidence will be given undue or preemptive weight by the jury, or when it

would be inequitable to allow use of the evidence.’ ” Waclawski, 286 Mich App at 672, quoting

People v Taylor, 252 Mich App 519, 521-522; 652 NW2d 526 (2002).

Here the trial court properly found that although the other acts evidence was prejudicial

to defendant, the prejudice did not substantially outweigh the evidence’s probative effect. As the

previous discussion shows, the evidence was highly probative on defendant’s involvement in the

charged crimes. It showed defendant’s involvement in an orchestrated series of crimes that

culminated in the armed robbery of Poineau and the carjacking of his vehicle. It was also

significantly probative on issues of credibility related to defendant’s confession. The prejudicial

effect of the evidence stemmed directly from its relevance. The court’s MRE 403 analysis was

sound. Moreover, the trial court gave a clear limiting instruction on how the other acts evidence

could be considered. Jurors are presumed to follow their instructions. People v Graves, 458

Mich 476, 486; 581 NW2d 229 (1998).6

6

To the extent that defendant argues that testimony about a high-speed chase and shooting on an

interstate highway was wrongly admitted, we note that defendant’s statement includes references

to these events and that defendant does not argue that his statements related thereto were

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IV. REFERENCES TO DEFENDANT’S PRIOR ARREST AND PENDING CHARGES

Next, defendant notes that his confession contained references to the fact that he had

previously been arrested and that, at the time of his confession, he had additional, unrelated

charges pending against him. Defendant did not object to the admission of these statements at

trial or move to redact the statements from his confession. We review this unpreserved issue for

plain error affecting substantial rights. People v Jones, 468 Mich 345, 355; 662 NW2d 376

(2003). Under plain error review, reversal is not warranted unless the plain error resulted in the

conviction of an innocent person or seriously affected the fairness, integrity, or public reputation

of the proceedings. Id.

Evidence of defendant’s prior arrest and pending charges should have, upon request, been

redacted from defendant’s confession. The prosecutor does not point to a proper purpose for

admitting this evidence, nor can we ascertain any such purpose. Moreover, such evidence is not

probative as it has no tendency to make any fact of consequence more or less probable.

However, we cannot conclude that defendant’s assertion of error affected his substantial rights or

that it warrants reversal in this case. Evidence of defendant’s prior arrest and pending charges

was unlikely to have affected the outcome at trial in light of the compelling evidence against

defendant. Defendant confessed to the charged offenses. In addition, defendant’s confession

was corroborated, at least in part, by Moss’s and Poineau’s testimony. As such, defendant

cannot make the requisite showing of prejudice in order to establish that the plain error affected

his substantial rights. Id. at 356.

Defendant also argues that his counsel was ineffective for failing to object to the

admission of that portion of his confession. To establish ineffective assistance of counsel, a

defendant must show: (1) that counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms; (2) that there is a reasonable probability

that, but for counsel’s error, the result of the proceedings would have been different. People v

Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). Here, assuming without deciding that

defense counsel should have objected, defendant is not entitled to relief because he cannot show

that the outcome of the proceedings would have been different. See id. As noted, the evidence

against defendant was compelling, given defendant’s confession and testimony from other

witnesses that corroborated his confession. As such, defendant is not entitled to relief on his

attendant claim for ineffective assistance of counsel.

V. IDENTIFICATION

Defendant next argues he was denied due process because there was no independent basis

for Moss’s trial identification of defendant, which, he argues, was based on impermissibly

improperly admitted. Moreover, in light of defendant’s properly admitted confession to the

charged offenses, we find that, even assuming error, defendant could not establish that the error,

if any, was outcome determinative. See Lukity, 460 Mich at 496 (internal quotation marks

omitted) (explaining that “preserved, nonconstitutional error is not a ground for reversal unless

after an examination of the entire cause, it shall affirmatively appear that it is more probable than

not that the error was outcome determinative.”).

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suggestive influences at the preliminary examination. “If a witness is exposed to an

impermissibly suggestive pretrial identification procedure, the witness’ in-court identification

will not be allowed unless the prosecution shows by clear and convincing evidence that the in-

court identification will be based on a sufficiently independent basis to purge the taint of the

illegal identification.” People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998). “The

defendant must show that in light of the totality of the circumstances, the procedure was so

impermissibly suggestive as to have led to a substantial likelihood of misidentification.” Id.

The determination whether an in-court identification has an independent basis is a factual

inquiry, and the trial court’s findings are reviewed for clear error. People v Gray, 457 Mich 107,

115; 577 NW2d 92 (1998). “Clear error exists when the reviewing court is left with a definite

and firm conviction that a mistake was made.” People v Hornsby, 251 Mich App 462, 466; 650

NW2d 700 (2002). Erroneously admitted identification testimony warrants reversal when the

error is not harmless beyond a reasonable doubt. People v Winans, 187 Mich App 294, 299; 466

NW2d 731 (1991).

Although the trial court did not expressly find that the pretrial identification was unduly

suggestive, we agree with defendant that it was a suggestive atmosphere. According to Moss, at

the time he identified defendant, which was during the preliminary examination, defendant was

wearing a prisoner’s jumpsuit and was in handcuffs or chains. Although defendant was not the

only person brought into the courtroom in chains and jail clothing, his presence in “prison garb”

convinces us that the atmosphere was nonetheless suggestive. See Colon, 233 Mich App at 305

(“Here, there is no question that the preliminary examination was a suggestive atmosphere in that

defendant was placed in the courtroom in prison garb.”).

Without specifically concluding that the pretrial procedure was impermissibly suggestive,

the trial court held that an independent basis for Moss’s in-court identification existed:

I’m satisfied that the identification was not the product of any police

misconduct, and that basically that there is a basis by which this witness could

identify him. He indicated that his identification was based solely upon what he

recalls when he was being car-jacked; that he was able to, due to length of his

attention, and there was nothing blocking his view of the defendant. He was

somewhat familiar with him, but couldn’t place him, although he did indicate to

the officers that he did not know him.

The following eight factors should be considered, where relevant, to determine if an

independent basis exists for admission of an in-court identification:

(1) prior relationship with or knowledge of the defendant; (2) opportunity to

observe the offense, including length of time, lighting, and proximity to the

criminal act; (3) length of time between the offense and the disputed

identification; (4) accuracy of description compared to the defendant’s actual

appearance; (5) previous proper identification or failure to identify the defendant;

(6) any . . . identification lineup of another person as the perpetrator; (7) the

nature of the offense and the victim’s age, intelligence, and psychological state;

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and (8) any idiosyncratic or special features of the defendant. [People v Davis,

241 Mich App 697, 702-703; 617 NW2d 381 (2000).]

At the Wade hearing, Moss testified that while he thought defendant looked familiar at

the time of the offense, he did not initially identify defendant as one of the perpetrators. Later,

however, he realized where he knew defendant, which was through defendant’s family.7 He

testified that he had known defendant’s mother for around ten years before the carjacking,

although he had not seen defendant in seven years and defendant was a child at the time. He

testified that he did not have any question that defendant is the person he saw at the time of the

offense. He further testified that the carjacking lasted 12 to 13 seconds, that it was daylight, and

that defendant did not have anything covering his face. Moss specifically stated that he could

“see [defendant’s] face” and that defendant had “braids or dreads.” He said the car defendant

was in was probably four to five feet away. Further, Moss had not previously failed to identify

defendant; he testified that he was sick at the time a lineup was offered and he did not

reschedule. Additionally, there are no allegations that Moss identified someone else as the

person in the backseat of the car. Based on these facts, we conclude that the trial court did not

clearly err in finding that Moss had a sufficiently independent basis upon which to identify

defendant. See Gray, 457 Mich at 115. Moreover, given the overwhelming evidence presented

by defendant’s confession to having committed the offense, as corroborated by other evidence,

any error in admitting Moss’s identification testimony was harmless beyond a reasonable doubt

such that reversal is not required. See Winans, 187 Mich App at 299.

VI. SENTENCING

Lastly, defendant argues that the trial court scored offense variable (OV) 1, OV 2, and

OV 10 incorrectly. Defendant did not object to the scoring of these offense variables at

sentencing. “Under the sentencing guidelines, the circuit 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). “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.” Id. However,

unpreserved challenges to the sentencing guidelines are reviewed for plain error affecting

defendant’s substantial rights. People v Meshell, 265 Mich App 616, 638; 696 NW2d 754

(2005).

7

Defendant’s mother testified at the Wade hearing that she spoke with Moss outside the

courtroom before the preliminary examination. He told her that he was in court because he had

been carjacked by “some dark-skinned dudes” and she told him that she was there because her

son was “in some stuff,” but she never pointed defendant out to Moss. Moss testified that

defendant’s mother spoke to him after he identified defendant at the preliminary examination and

that she apologized for her son’s actions.

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A. OV 1

The trial court scored 15 points for OV 1. OV 1 addresses the aggravated use of a

weapon. MCL 777.31(1). The trial court must score 15 points if “a firearm was pointed at or

toward a victim . . . .” MCL 777.31(1)(c). However, the trial court must only score 5 points if “a

weapon was displayed or implied.” MCL 777.31(1)(e). Defendant argues that a “firearm” was

not pointed toward Poineau because the weapon used was a BB gun, which does not qualify as a

firearm under MCL 8.3t.8 MCL 8.3t provides:

The word “firearm”, except as otherwise specifically defined in the

statutes, shall be construed to include any weapon from which a dangerous

projectile may be propelled by using explosives, gas or air as a means of

propulsion, except any smooth bore rifle or handgun designed and manufactured

exclusively for propelling BB’s not exceeding .177 calibre by means of spring,

gas or air.

Here, the testimony established that a BB gun was used in the carjacking and armed robbery, and

there is no record evidence establishing that the BB gun was capable of propelling BB’s

exceeding .177 calibre. Accordingly, because the BB gun does not meet the definition of

“firearm,” the trial court erred in scoring OV 1 at 15 points. However, it would have been

appropriate to score 5 points because a BB gun is certainly a “weapon” and it was—according to

Poineau’s testimony—displayed.

B. OV 2

The trial court scored 5 points for OV 2, which addresses the lethal potential of a weapon

possessed or used during the commission of the offense. MCL 777.32(1). The trial court must

assess 5 points if the offender “possessed or used a pistol, rifle, shotgun . . . ,” MCL

777.32(1)(d), 1 point if the offender “possessed or used any other potentially lethal weapon,”

MCL 777.32(1)(e), and no points are assessed if the offender “possessed or used no weapon,”

MCL 777.32(1)(f). A “ ‘[p]istol’, ‘rifle’, or ‘shotgun’ includes a revolver, semi-automatic pistol,

rifle, shotgun, combination rifle and shotgun, or other firearm manufactured in or after 1898 that

fires fixed ammunition, but does not include a fully automatic weapon or short-barreled shotgun

or short-barreled rifle.” MCL 777.32(3)(c). Defendant asserts that a BB gun does not fire fixed

ammunition, so it was inappropriate for the trial court to score OV 2 at 5 points. Plaintiff

concedes that OV 2 was misscored and should have been scored at 0 points. We agree that the

trial court erred in scoring OV 2 at 5 points. And because there is no record evidence that the

BB gun was potentially lethal or used in such a way to represent a potentially lethal weapon, we

agree that no points should have been scored for OV 2.

8

Plaintiff fails to address the scoring of OV 1 in its appellate brief.

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C. OV 10

Here, the trial court scored 15 points under OV 10. OV 10 addresses the exploitation of a

vulnerable victim. MCL 777.40(1). The trial court must assess 15 points if “[p]redatory conduct

was involved.” MCL 777.40(1)(a). “ ‘[P]redatory conduct’ under the statute is behavior that is

predatory in nature, precedes the offense, [and is] directed at a person for the primary purpose of

causing that person to suffer from an injurious action . . . .” People v Huston, 489 Mich 451,

463; 802 NW2d 261 (2011) (citation and quotation omitted). In Huston, our Supreme Court

recognized that “[f]ew criminal offenses arise utterly spontaneously and without forethought.”

Id. at 461. Accordingly, “reading MCL 777.40(1)(a) as requiring 15 points to be assessed for

OV 10 in every case would essentially render nugatory MCL 777.40(1)(b) through (d), the

provisions directing when OV 10 requires a score of 10, 5, and zero points respectively[.]” Id. at

461-462. “To enable MCL 777.40(1)(a) whenever there is any ‘preoffense conduct’ would

effectively ensure that MCL 777.40(1)(b) through (d) would never be enabled.” Id. at 462.

Thus, to give meaning to the entirety of MCL 777.40(1), and out of recognition

that 15 points for “predatory conduct” constitutes the highest number of points

available under OV 10 and that “preoffense conduct” is being used to define

“predatory conduct,” [our Supreme Court] conclude[d] that the latter term does

not encompass any “preoffense conduct,” but rather only those forms of

“preoffense conduct” that are commonly understood as being “predatory” in

nature, e.g., lying in wait and stalking, as opposed to purely opportunistic criminal

conduct or preoffense conduct involving nothing more than run-of-the-mill

planning to effect a crime or subsequent escape without detection. [Id. (citation

and quotation omitted).]

Here, the record does not show that there was any predatory conduct on defendant’s part.

Defendant’s statement makes clear that he and a group of others were driving around looking for

possible victims. They had a general plan to take their victims’ money and vehicles, but nothing

on the record suggests that they were lying in wait or stalking the victims. In particular, in

regard to Poineau, defendant said in his statement that they were heading to his uncle’s house

when they saw Poineau’s vehicle. Defendant said that another of his associates called Spann and

told him they were going to “get” the car behind Spann. After the call, the two vehicles stopped,

boxing Poineau’s vehicle in so he could not drive away. Although a group of perpetrators

surrounded Poineau, nothing on the record suggests this was anything other than a spontaneous

crime of opportunity, albeit one that was executed in accord with a common scheme or plan.

Accordingly, the trial court erred in scoring OV 10 at 15 points. See id. (explaining that

predatory conduct is more than purely opportunistic criminal conduct).

According to the sentencing information report attached to defendant’s brief, defendant’s

total OV score, including the errors noted above, was 65 points. For the Class A offense of

carjacking, see MCL 777.16y, this placed defendant in OV Level IV on the sentencing grid. See

MCL 777.62. Combined with defendant’s PRV Level C, defendant’s recommended minimum

guidelines range was 108 to 180 months; his 120-month minimum sentence was within that

original range. See MCL 777.62. After reducing OV 1 to 5 points and subtracting the points

erroneously scored under OVs 2 and 10, defendant’s total OV score is 35 points. This places

defendant in OV Level II. See MCL 777.62. An OV Level II and PRV Level C combination

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produces a recommended minimum sentence of 51 to 85 months’ imprisonment. See MCL

777.62. Defendant’s 120-month sentence is outside of this range. Because defendant’s sentence

is based upon an inaccurate calculation of the guidelines range, which resulted in a sentence

outside the proper recommended minimum sentence range under the legislative guidelines,

defendant can show plain error and he is entitled to be resentenced. People v Francisco, 474

Mich 82, 88; 711 NW2d 44 (2006); People v Kimble, 470 Mich 305, 312-313; 684 NW2d 669

(2004).

We affirm defendant’s convictions, but remand for resentencing consistent with this

opinion. We do not retain jurisdiction.

/s/ Michael J. Riordan

/s/ Jane M. Beckering

/s/ Mark T. Boonstra

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