The opinion
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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 9, 2021
Plaintiff-Appellee,
v No. 352860
Washtenaw Circuit Court
JOSEPH DEWORNE SWILLING, LC No. 18-000990-FC
Defendant-Appellant.
Before: SWARTZLE, P.J., and SAWYER and LETICA, JJ.
PER CURIAM.
Defendant appeals as of right his convictions following a jury trial of two counts of armed
robbery, MCL 750.529, one count of conspiracy to commit armed robbery, MCL 750.157a,
MCL 750.529, two counts of first-degree home invasion, MCL 750.110a(2), one count of unlawful
imprisonment, MCL 750.349b, one count of felon in possession of a firearm (felon-in-possession),
MCL 750.224f, and four counts of possession of a firearm while committing a felony (felony-
firearm), second offense, MCL 750.227b. The trial court sentenced defendant as a third-offense
habitual offender, MCL 769.11, to serve imprisonment of 28 to 50 years for each armed robbery
and conspiracy to commit armed robbery conviction, 15 to 25 years for each first-degree home
invasion conviction and the unlawful imprisonment conviction, 40 to 60 months for the felon-in-
possession conviction, and 5 years for each felony-firearm conviction. We affirm in part, vacate
in part, and remand to the trial court for further proceedings.
I. BACKGROUND
This case stems from a home invasion in October 2018. One evening Hui Wang was
watching television while his wife Susan Wang prepared some food in the kitchen when a brick
crashed through a glass door near Hui and hit him in the hands. The Wangs had multiple security
cameras inside and outside their house that recorded the incident.
Defendant and his codefendants— Deangelo Reed and Elijah Wilson-Beauford—entered
the Wangs’ home through the broken door. Reed and defendant had guns in their hands when they
entered the house. Defendant and his codefendants were not wearing masks or otherwise
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obscuring their faces, allowing the Wangs to recognize Reed because he painted their house two
months earlier.
Over a period of 30 to 40 minutes, defendant, Reed, and Wilson searched throughout the
house for items to steal. Included in the items stolen from the Wangs’ house was a television as
well as both domestic and foreign money. During the home invasion, defendant hit Hui and Susan;
the Wangs’ feared they would be killed. Before the three offenders left the Wangs’ house, they
tied Susan to a chair and tied Hui’s hands behind his back.
Defendant was taken into custody one week after the home invasion. In an interview with
police, defendant identified himself as one of the three home invaders. Defendant explained to
police that Reed wanted the Wangs to be at home during the home invasion so the Wangs could
lead the intruders to valuable items. Defendant also told police that Wilson-Beauford was recruited
to participate in the home invasion at the last minute. The jury convicted defendant as stated
above. This appeal followed.
II. ANALYSIS
1. DOUBLE JEOPARDY
Defendant first argues that his first-degree home invasion convictions and sentences
violated the double jeopardy provisions of the Michigan and United States Constitutions because
only one entry into the house occurred. The prosecution agrees that defendant should have been
convicted and sentenced for only one first-degree home invasion count. The parties are correct
that defendant’s first-degree home invasion convictions and sentences violated double jeopardy.
People v Baker, 288 Mich App 378, 386; 792 NW2d 420 (2010). Thus, we vacate one of
defendant’s first-degree home invasion convictions and sentences and remand to the trial court for
it to correct defendant’s judgment of sentence.
2. OFFENSE VARIABLES
Defendant’s second claim of error is that the trial court erred when scoring offense
variables (OVs) 10, 13, 14, and 17. When reviewing a trial court’s scoring decision, the trial
court’s “factual determinations are reviewed for clear error and must be supported by a
preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
“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.” Hardy, 494 Mich at 438. “The sentencing Court may consider
facts not admitted by the defendant or found beyond a reasonable doubt by the jury. Offense
variables are properly scored by reference only to the sentencing offense except when the language
of a particular offense variable statute specifically provides otherwise.” People v Roberts, 331
Mich App 680, 687-688; 954 NW2d 221 (2020), reversed in part on other grounds by People v
Roberts, 506 Mich 938 (2020) (cleaned up). Finally, “[t]he trial court may rely on reasonable
inferences arising from the record evidence to sustain the scoring of an offense variable.” People
v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012), aff’d 495 Mich 33 (2014).
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Defendant argues that the trial court should have assessed zero points for OV 10 because
he did not know the age of the victims and also did not exploit their age. OV 10 addresses the
“exploitation of a vulnerable victim.” MCL 777.40(1); People v Cannon, 481 Mich 152, 159; 749
NW2d 257 (2008). For OV 10, a score of 10 points is appropriate if the defendant exploited a
victim’s agedness. Id. If the defendant did not exploit a victim’s vulnerability, then zero points
should be assessed. Id. “Exploit” is defined as “to manipulate a victim for selfish or unethical
purposes.” MCL 777.40(3)(b). “Vulnerability” is defined as “the readily apparent susceptibility
of a victim to injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)(c). The mere
existence of one or more factors described in the statute does not automatically equate with a
victim being vulnerable. MCL 777.40(2).
The trial court did not err when it concluded that the victims were vulnerable. The evidence
showed that they were elderly and their victim impact statements supported the conclusion that the
victims were susceptible to injury.
Additionally, the trial court concluded that defendant and his codefendants targeted the
Wangs because of their age and specifically broke in the home when they knew the Wangs were
present. The record supports this finding; Reed targeted the Wangs because he knew about them
from painting their house. Furthermore, video surveillance shows defendant and his codefendants
looking in the window to ensure the Wangs were home before breaking the door and entering the
house. The record further establishes that defendant and his codefendants had complete control of
the situation after they broke in to the house; the Wangs did everything they were told and did not
struggle or resist while defendant and his codefendants were in their home.
Defendant argues that these facts fail to establish that he exploited the Wangs’ age. Rather,
defendant argues that “[a] middle-aged couple would have suffered the same fate” at the Wangs.
Defendant might be correct, but simply because other potential victims might have suffered the
same fate does not mean that defendant did not exploit the Wangs’ age. As an elderly couple, the
Wangs were clearly more susceptible to a home invasion than a younger couple might have been.
Thus, while defendant’s argument has some merit, it fails to establish that the trial court clearly
erred by finding that defendant exploited the Wangs’ age.
Finally, the trial court supported its OV 10 scoring decision by noting that defendant’s
codefendants each also were assessed 10 points for OV 10. The trial court erred by doing so
because OV 10 must be scored based on the defendant’s conduct alone without considering the
conduct of his or her codefendants. See People v Gloster, 499 Mich 199, 206-207; 880 NW2d 776
(2016). This error, however, does not require reversal because the trial court articulated sufficient
reasons to assess 10 points for OV 10. Thus, we affirm the trial court’s assessment of 10 points
for OV 10.
Defendant next argues that the trial court erred when it assessed 25 points for OV 13.
Defendant argued that he did not have three qualifying felonies within the last five years and that
it was error for the trial court to find that three of defendant’s convictions in the instant case could
constitute a continuing pattern of criminal behavior. According to defendant, the trial court should
have assessed zero points for OV 13.
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OV 13 addresses a continuing pattern of criminal behavior. MCL 777.43(1). The trial
court assesses 25 points for OV 13 if the offense was part of a pattern of felonious criminal activity
involving three or more crimes against a person. MCL 777.43(1)(c). All crimes within a five-year
period, including the sentencing offense, should be counted. MCL 777.43(2)(a).
MCL 777.43(1)(c) does not prohibit the trial court from finding that multiple convictions
arising from the same incident constitute a pattern for the purposes of OV 13. See People v Gibbs,
299 Mich App 473, 488; 830 NW2d 821 (2013); People v Harmon, 248 Mich App 522, 532; 640
NW2d 314 (2001). In Gibbs, 299 Mich App at 488, this Court found that, although the defendant’s
robbery convictions arose out of a single criminal episode, the defendant committed three separate
acts, one against each of the three victims. The Gibbs Court concluded that those three distinct
crimes constituted a pattern of criminal activity for the purposes of OV 13. Id.
But not all cases involving convictions of multiple crimes constitute a pattern of criminal
conduct. In People v Carll, 322 Mich App 690, 693; 915 NW2d 387 (2018), the defendant was
convicted of four counts of reckless driving. The charges in Carll stemmed from a vehicle crash
caused by the defendant. Id. at 693-94. The Carll Court acknowledged the rulings in Gibbs and
Harmon, but found that Carll was distinguishable. Id. at 705-706. The Carll Court noted that the
convictions in Gibbs and Harmon arose from multiple acts by those defendants, but concluded that
the defendant’s convictions in Carll all arose from a single act even though that act had multiple
victims. Id. Thus, the Carll Court assessed zero points for OV 13. Id.
Defendant argues that Carll dictates the result in this case, but the facts of this case present
a situation more similar to those in Gibbs because, like that defendant, defendant’s convictions
here arose out of multiple acts. Defendant’s convictions for home invasion, armed robbery, and
unlawful imprisonment arose from a single criminal episode. But those convictions were based
on multiple separate criminal acts. Thus, the trial court did not err when it found that defendant
had engaged in a continuing pattern of criminal behavior based solely on the convictions that arose
from the home invasion of the Wangs’ house. Accordingly, the trial court did not err when it
assessed 25 points for OV 13.
Defendant next argues that the trial court erred when it assessed 10 points for OV 14.
Defendant argues that it was error to find that he was a leader in the home invasion and that zero
points should have been assessed for OV 14.
OV 14 addresses an offender’s role in the crime. MCL 777.44(1). In a multiple-offender
situation, the trial court assesses 10 points for OV 14 if the offender was a leader.
MCL 777.44(1)(a). The entire criminal transaction should be considered when scoring this
variable. MCL 777.44(2)(a). If there are three or more offenders involved, more than one offender
may be determined to have been a leader. MCL 777.44(2)(b). “[A] ‘leader’ is defined in relevant
part as ‘a person or thing that leads’ or ‘a guiding or directing head, as of an army or political
group.’ To ‘lead’ is defined in relevant part as, in general, guiding, preceding, showing the way,
directing, or conducting.” People v Rhodes, 305 Mich App 85, 90; 849 NW2d 417 (2014).
Possession of a gun can be considered some evidence of leadership, but gun possession alone is
not enough to establish that an offender was a leader for purposes of OV 14. Id. at 91.
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The parties agree that Reed was one leader of the home invasion. The question presented
is whether defendant could also be considered a leader for the purposes of OV14.
Defendant and Reed had guns during the home invasion. Additionally, as the trial court
pointed out, the video footage from the Wangs’ security cameras showed that defendant was acting
like a leader, while codefendant Wilson-Beauford was not. The video footage, which was
corroborated by the victims’ testimony, showed defendant taking items directly from Susan’s purse
and Hui’s wallet, walking throughout the house, and having Hui lead defendant to a safe in the
basement. Conversely, the video footage showed Wilson-Beauford mainly browsing through the
kitchen cabinets. Additionally, defendant recruited Wilson-Beauford to participate in the home
invasion at the last minute. All of these factors combined demonstrate that defendant was acting
as a leader in the home invasion. Thus, the trial court did not err when it assessed 10 points for
OV 14.
Finally, defendant argues that the trial court erred when it assessed 5 points for OV 17.
Since defendant filed this appeal, this case was remanded and the score assessed for OV 17 was
changed to zero. This issue is therefore moot.
III. CONCLUSION
For the reasons stated in this opinion, we affirm in part, vacate in part, and remand for
further proceedings. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Anica Letica
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