People of Michigan v. Ryan James Murdock

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

April 17, 2018

Plaintiff-Appellee,

v No. 337430

Monroe Circuit Court

RYAN JAMES MURDOCK, LC No. 16-242974-FC

Defendant-Appellant.

Before: SERVITTO, P.J., and MARKEY AND O’CONNELL, JJ.

PER CURIAM.

Defendant appeals as of right the sentence imposed for his jury trial conviction of armed

robbery, MCL 750.529. The trial court sentenced defendant to 72 to 240 months’ imprisonment

for his conviction. We affirm.

Defendant argues that he is entitled to resentencing because the trial court engaged in

judicial fact finding to score offense variables (OV’s) 4, 8, and 10. We disagree.

This Court reviews a sentencing court’s factual findings, which must be supported by a

preponderance of the evidence, for clear error. People v Gloster, 499 Mich 199, 204; 880 NW2d

776 (2016). “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 this Court reviews de novo. Id., quoting People v Hardy, 494 Mich 430,

438; 835 NW2d 340 (2013). Clear error exists if this Court is “left with a definite and firm

conviction that a mistake has been made.” People v Stone, 269 Mich App 240, 242; 712 NW2d

165 (2005).

I. MCL 777.34 (OV 4)

OV 4 considers the psychological injury to a victim. MCL 777.34(1). Defendant was

assessed 10 points for OV 4, which is appropriate if “[s]erious psychological injury requiring

professional treatment occurred to a victim.” MCL 777.34(1)(a). An assessment of 10 points for

OV 4 is appropriate if the victim suffered “personality changes, anger, fright, or feelings of being

hurt, unsafe, or violated.” People v Armstrong, 305 Mich App 230, 247; 851 NW2d 856 (2014).

The fact that the victim did not seek treatment is not conclusive, MCL 777.34(2), and a trial

court’s observations of the victim’s demeanor at trial can support a finding of psychological

injury, People v Schrauben, 314 Mich App 181, 197; 886 NW2d 173 (2016). However, “points

may not be assessed solely on the basis of a trial court’s conclusion that a ‘serious psychological

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injury’ would normally occur as a result of the crime perpetrated against the victim.” People v

White, 501 Mich 160, 162; 905 NW2d 228 (2017). In White, the trial court assessed 10 points

for OV 4 even though the only evidence that the victim suffered a psychological injury was her

fear while the crime was being committed. Id. at 162-163. The Supreme Court ruled that the

trial court erred scoring OV 4 because the victim’s “fear while a crime is being committed, by

itself, is insufficient to assess points for OV 4.” Id.

Defendant does not argue that the victim failed to seek professional treatment, but rather,

argues that the victim did not suffer a psychological injury. Defendant does acknowledge that

the victim testified at trial that she has refused to work the midnight shift since the armed

robbery, and that she feared defendant carried a gun on June 26, 2016. The victim’s statements

about the way the armed robbery affected her work life demonstrate that she suffered a

psychological injury that may require treatment in the future. See Armstrong, 305 Mich App at

247-248 (finding that although the complainant of a sexual assault had not sought counseling by

the time of trial, her expression of confusion, anger, and inability to trust others demonstrated

that she had suffered a psychological injury). The victim expressed that she was afraid that

defendant had a gun on June 26, 2016. Further, her refusal to work the midnight shift is

evidence of a psychological harm outside the “characteristics of the crime” because it impacted

her working life months after the robbery occurred. Additionally, the trial court had the

opportunity to observe the victim’s demeanor during trial, and noted that the victim was visibly

shaken when she testified. Accordingly, the trial court’s factual finding that the victim suffered a

serious psychological injury was not clearly erroneous, and was supported by a preponderance of

the evidence. The trial court properly assessed 10 points for OV 4 because the evidence

sufficiently demonstrates that the victim suffered a serious psychological injury that may require

professional treatment in the future.

II. MCL 777.38 (OV 8)

Defendant argues that the trial court improperly assessed 15 points for OV 8 because the

statute requires movement that was more than incidental to the commission of the crime.

Specifically, defendant argues that although the victim moved “mere feet” from the where she

stood, it does not constitute “movement” within the meaning of the statute.

OV 8 considers victim asportation or captivity. MCL 777.38. Under MCL 777.38(1)(a),

the trial court must assess 15 points if “[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.” Movement of a victim that is incidental to the commission of an offense qualifies as

asportation within the meaning of MCL 777.38(1)(a). See People v Barrera, 500 Mich 14, 21-

22; 892 NW2d 789 (2017) (upholding the trial court’s assessment of 15 points for OV 8 because

the defendant moved the victim one room to another in order to sexually assault her without

likely discovery). “Nothing in the statute requires that the movement be greater than necessary

to commit” the crime.” Id. at 21. Thus, asportation is established if the victim is moved away

from the observation of others. People v Chelmicki, 305 Mich App 58, 70-71; 850 NW2d 612

(2014).

The evidence demonstrates that the victim was standing by the door in the front of the

store, visible to anyone who walked by. When defendant came inside, he forcibly moved her

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away from the door to behind the cash register. Thus, the victim was asported to a place of

greater danger because she was moved away from the front door, where she was within the

observation of others and in a place where she could have more easily escaped, to behind the

counter where others were less likely to see defendant committing the robbery. Therefore, the

trial court properly assessed 15 points for OV 4 because there was sufficient evidence that

defendant asported the victim within the meaning of the statute.

III. MCL 777.40 (OV 10)

Defendant argues that the trial court incorrectly assessed 15 points for OV 10 because

there is insufficient evidence in the record to support the trial court’s finding that defendant

exploited the victim’s vulnerability. Specifically, defendant argues that he intended to rob Stop

and Go, and not the victim.

OV 10 addresses the exploitation of a vulnerable victim. MCL 777.40(1). Under MCL

777.40(1)(a), the trial court must assess 15 points if there was exploitative conduct that involved

predatory conduct. See People v Cannon, 481 Mich 152, 157; 749 NW2d 257 (2008). The

statute defines predatory conduct as “preoffense conduct directed at a victim . . . for the primary

purpose of victimization.” MCL 777.40(3)(a). Evidence of predatory conduct can be established

by the timing and location of an offense. People v Kosik, 303 Mich App 146, 160; 841 NW2d

906 (2013). Further, preoffense conduct must be of a kind that is “commonly understood as

being predatory in nature,” rather than preoffense conduct that is merely planning to accomplish

a crime. People v Huston, 489 Mich 451, 462; 802 NW2d 261 (2011). The defendant’s

exploitive conduct must have been directed towards a vulnerable victim whose vulnerability was

readily apparent, i.e., “the victim was susceptible to injury, physical restraint, persuasion, or

temptation.” People v Ackah-Essien, 311 Mich App 13, 37; 874 NW2d 172 (2015), quoting

777.40(3)(c). Circumstances surrounding the crime can create a victim’s vulnerability, which

defendant can enhance through predatory conduct. Huston, 489 Mich at 462.

The trial court’s factual finding that circumstances surrounding the armed robbery

rendered the victim vulnerable was supported by a preponderance of the evidence because

defendant waited until approximately 3:50 a.m., when there would be minimal foot traffic and

only one working employee. The victim’s vulnerability was readily apparent because she

worked alone, and was susceptible to defendant’s physical restraint. Based on this, the trial court

reasonably determined that defendant engaged in predatory conduct sufficient to support an

assessment of 15 points for OV 10.

IV. LOCKRIDGE CHALLENGE

Defendant incorrectly argues that he can make a threshold showing of the potential for

plain error because the trial court relied on facts that were not admitted by defendant nor found

by the jury to calculate the sentencing guidelines range. In People v Lockridge, 498 Mich 358,

391-392; 870 NW2d 502 (2015), the Supreme Court made the sentencing guidelines advisory.

Lockridge, however, did not undercut the trial court’s requirement to assess the highest number

of points possible for “all OVs, whether using judge-found facts or not.” Id. at 392 n 28. In fact,

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“judicial fact-finding remains part of the process of calculating the guidelines.” People v

Biddles, 316 Mich App 148, 159; 896 NW2d 461 (2016). Therefore, the trial court did not

violate defendant’s Sixth Amendment rights when it used judge-found facts to calculate

defendant’s sentencing guidelines range.

Accordingly, we conclude that defendant is not entitled to resentencing because there was

sufficient evidence for the trial court to find by a preponderance of the evidence that 10 points

should be assessed for OV 4, 15 points should be assessed for OV 8, and 15 points should be

assessed for OV 10, and that the trial court properly considered judge-found facts to calculate the

sentencing guidelines range.

Affirmed.

/s/ Deborah A. Servitto

/s/ Jane E. Markey

/s/ Peter D. O'Connell

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