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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 25, 2024
Plaintiff-Appellee,
v No. 364576
Ottawa Circuit Court
SHANE MEL JOHNSON, LC No. 21-044506-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and FEENEY and YOUNG, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of two counts of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(1)(b) (victim between 13 and 16 years of age and related
to defendant). The trial court sentenced defendant to serve two concurrent prison terms of 240 to
480 months (20 to 40 years). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In 2021, defendant’s niece, RC, disclosed to police an extensive history of sexual contact
between her and defendant that occurred between 2009 and 2013, when RC was between the ages
of 13 and 16. RC testified to that extensive history at trial, stating that she and defendant had had
oral, vaginal, and anal sex hundreds of times over that time period. RC testified that she believed
that defendant was her boyfriend when she was 15 years old. RC testified that she would sit on
defendant’s lap while he played poker at family gatherings, and that they first had vaginal
intercourse in her home while “spooning” on a beanbag in the living room. She also testified that
defendant took her to a hotel room to have sex “at least a hundred times.” RC testified that
defendant would pick her up from school or her home to take her to work for his painting company,
or to taekwondo practice, and that they would often go to defendant’s house to have sex instead of
either working or practicing taekwondo.
RC recorded a phone call between her and defendant in 2021; this recording was admitted
and published to the jury without objection. During the phone call, RC made references to their
past sexual relationship; defendant responded by telling her that he would meet with her to talk in
person, but he never denied her statements.
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Defendant was interviewed by police detectives in March 2021 and denied the charges
against him. Prior to trial, defendant objected to the admission of portions of the interview, arguing
that statements by the interviewers appeared to bolster RC’s credibility, and that they should be
excluded under People v Musser, 494 Mich 337; 835 NW2d 319 (2013). The trial court ordered
that the interview be redacted to exclude all statements made after defendant unequivocally
invoked his right to remain silent, but it did not otherwise redact any specific statements. The
redacted interview was admitted at trial and published to the jury.
RC’s mother testified at trial that she had observed defendant and RC “spooning” on the
couch once during the relevant time period, and that she had noted at the time that it appeared to
be “more like a boyfriend-girlfriend relationship than it was an uncle and niece.” RC’s mother
further testified that she discussed this incident with RC at the time but that RC had denied any
inappropriate behavior. RC’s sister testified and also confirmed that she had seen defendant and
RC “spooning” on the couch; she also testified that she had seen RC sit on defendant’s lap while
he played poker. One of RC’s high school friends testified that she knew of the relationship
between defendant and RC while it was going on, but that she had not told anyone. Several of
defendant’s family members also testified that they had observed RC sit on defendant’s lap during
poker games. Multiple family members confirmed that defendant would pick RC up from home
or school to go to taekwondo practice or to go to work with him.
Barbara Welke, a forensic interview consultant, testified as a prosecution expert concerning
delays in disclosure of child sexual abuse. A police detective testified that he was unable to obtain
any hotel records indicating that defendant had stayed at certain hotels named by RC during the
relevant time. A records custodian for one of the named hotels also testified to her failure to find
any records that defendant had ever stayed there.
Defendant testified and denied ever having a sexual or dating relationship with RC, taking
her to hotels, or “spooning” with her. Defendant testified that he took RC to taekwondo practice
or to work with him, and that RC had occasionally slept over at his house on the couch. Defendant
testified that he had a poor memory of the recorded phone call because he had been grieving his
wife’s death at the time.
The jury convicted defendant as described. At sentencing, defendant’s minimum
guidelines range was calculated at 108 to 180 months, with offense variable (OV) 8 scored at 15
points. Defendant objected to the scoring of OV 8, but the trial court upheld the score. The trial
court determined that out-of-guidelines sentences were warranted, stating in relevant part:
Departures are appropriate where the guidelines do not adequately account for
important factors that should be legitimately considered at sentence. The court does
have aspects in this case that were not adequately accounted for in the guidelines
and does lead me to impose a sentence outside the recommended range. This is a
serious offense. The relationship between the defendant, the uncle, and the victim
in this case, [RC] his niece, has reported a number of times that this occurred over
approximately a three or four year period of time is very disturbing to the court and
is why the court is going above the guidelines. The court also considers the
defendant’s lack of remorse in this in regard to the sentence. The following
explains why in this particular case it is more appropriate for the offense and the
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offender that a sentence be more than the guidelines range. Primarily the number
of times this occurred and the years over which it occurred is the reason the court
is departing above the guidelines. The assaults occurred hundreds of times over the
three or four year period of time. So OV-13 is scored at 25 points for three or more
crimes against a person, but the defendant here was a serial, selfish, sexual abuser
of his niece, so hundreds of times the victim had to endure this sexual intercourse
by the defendant and that’s not being taken into consideration by the facts of the—
or by the calculation of the guidelines. So if OV-13 is scored for 25 points, if you
have three sexual assaults, that means that each point is worth 8.33 points—that
each act is worth 8.33 points. So there’s a hundred times at least that the victim
testified about how this happened. It happened a hundred times according to her at
a hotel. It also happened about every Tuesday night and it happened other times,
so let’s just say it happened a hundred times for 8.33 points. That means the point
value on this is 800.33, so really he would be off the charts on the offense variables
. . . . And the court also considers the defendant’s lack of remorse . . . . The fact
that [defendant] never denied it over [the recorded] phone call, that he never denied
having sexual relations with the victim is also not calculated in the guidelines . . . .
The court has read through [defendant’s] letters of support and understands that this
is a divided family now, but the court also wants the family to understand as well
as you, [defendant], that a jury decided this and made the decision and believed
[RC] and believed what she had to say and believed that you did these things.
The trial court sentenced defendant as described. This appeal followed.
II. JUDICIAL QUESTIONING
Defendant argues that the trial court pierced the veil of judicial impartiality by bolstering
RC’s credibility when questioning her and two other witnesses. We disagree.
“The question whether judicial misconduct denied defendant a fair trial is a question of
constitutional law that this Court reviews de novo.” People v Stevens, 498 Mich 162, 168; 869
NW2d 233 (2015). Judicial bias is a structural error that renders the determination of defendant’s
guilt or innocence unfair or unreliable. Id. at 178-179. Therefore, “once a reviewing court has
concluded that judicial misconduct has denied the defendant a fair trial, a structural error has
occurred and automatic reversal is required.” Id. at 168.
The Sixth Amendment of the United States Constitution and Article 1, § 20 of the Michigan
Constitution guarantee a defendant the right to a fair and impartial trial. “[T]he initial assumption
is that a trial judge designs to be impartial.” Stevens, 498 Mich at 175. See also Bracy v Gramley,
520 US 899, 904-905; 117 S Ct 1793; 138 L Ed 2d 97 (1997). In People v Conley, 270 Mich App
301, 308; 715 NW2d 377 (2006) (quotation marks and citation omitted), this Court stated as
follows:
The appropriate test to determine whether the trial court’s comments or conduct
pierced the veil of judicial impartiality is whether the trial court’s conduct or
comments were of such a nature as to unduly influence the jury and thereby deprive
the appellant of his right to a fair and impartial trial.
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In Stevens, 498 Mich at 172, the Michigan Supreme Court determined that reviewing courts
should consider a variety of factors when determining whether a trial judge’s conduct showed
partiality, including:
[T]he nature of the judicial conduct, the tone and demeanor of the trial judge, the
scope of the judicial conduct in the context of the length and complexity of the trial
and issues therein, the extent to which the judge’s conduct was directed at one side
more than the other, and the presence of any curative instructions.
“Reviewing courts may consider additional factors if they are relevant to the determination of
partiality in a particular case.” Id. “These errors must be considered within the context of a given
case, i.e., the totality of the circumstances, to determine whether the judge demonstrated the
appearance of advocacy or partiality on the whole.” Id. “[A]n objection by trial counsel may
specifically note the inappropriateness of the judge’s demeanor in the courtroom, further aiding
the appellate court in understanding the tenor of judicial involvement.” Id. at 176. “[T]he central
object of judicial questioning should be to clarify. Therefore, it is appropriate for a judge to
question witnesses to produce fuller and more exact testimony or elicit additional relevant
information.” Id. at 173-174 (citations omitted).
In this case, defendant argues that the judge improperly questioned: (1) RC, (2) Welke, and
(3) defendant’s son. Defense counsel did not object to any of the trial court’s questions.
Regarding the first factor, based on our review of the transcript and defendant’s lack of
objection, see id., we conclude that the trial judge’s courtroom demeanor and tone throughout the
trial were not inappropriate. Additionally, while the trial court asked RC more questions than it
asked other witnesses, she also testified the longest—approximately 41/2 hours over the course of
two days. And the jury was instructed that the trial court’s comments and questions were not
evidence.
Defendant specifically argues that the trial judge’s questions to RC regarding oral sex were
repetitive and served to highlight her accusations, not clarify her testimony. We disagree and
conclude that the trial judge’s questions properly sought clarification. At the beginning of jury
selection, the trial court described the sexual penetration alleged in Count 2 as “oral-penis/mouth
with a child”—additionally, during opening arguments, the prosecutor explained that Count 2
referred to “oral sex that took place involving the defendant’s penis going inside of the victim[’s]
mouth.” When RC testified that she had performed “oral sex” on defendant, the trial court asked
her for clarification regarding what she meant by the use of the term, and RC elaborated that the
term meant, “Me sucking on his penis.” Because the nature of the sexual act was an integral
element of one of the charges against defendant, it was important for the trial court to clarify—
with appropriate terminology—what RC meant by the term “oral sex.” Further, although the trial
court did ask for clarification twice, the questions related to RC’s testimony concerning separate
instances of oral sex.
Defendant further argues that the trial judge’s questions regarding anal sex were
unnecessary and “only served to have her provide gratuitous detail which bolstered [RC’s]
credibility and made [defendant] look deviant.” We disagree. After RC testified to an instance
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involving “anal sex,” the trial court asked similar questions regarding what she meant specifically
by that phrase. For similar reasons, we conclude that the questions were proper.
On the whole, the nature of the trial court’s clarifying questions was appropriate. All of
the Stevens factors—in addition to the assumption “that a trial judge designs to be impartial,” id.
at 175—support the finding that the trial judge did not pierce the veil of judicial impartiality when
questioning RC.
Defendant also argues that the trial judge improperly questioned Welke because the court’s
question only served to repeat and amplify Welke’s testimony. We disagree. On cross-
examination, Welke stated, “Delays are not atypical for child victims.” The trial judge then asked
Welke the following: “So when you say atypical, it means that it is—okay. Say it another way as
far as delays being atypical, also meaning . . . .” Welke responded, “It is not unusual for a child to
delay before they disclose their abuse to someone.” The trial judge simply asked for clarification
regarding Welke’s use of the word “atypical,” to which Welke clarified that she meant “unusual.”
The trial judge did not pierce the veil of judicial impartiality when questioning Welke.
Defendant further argues that the trial judge’s questioning of defendant’s son—regarding
when he worked for defendant’s company—was improper because it served to damage the son’s
credibility. We disagree.
Defendant’s son testified that he worked for defendant’s company and that he could only
remember one time that RC worked with him and defendant. Moreover, when defendant’s son
was asked if he was with RC and defendant when they were in defendant’s car, the son stated,
“Not [100%] of the time, but if I wasn’t, there was somebody else with them, yes.” This testimony
directly conflicted with RC’s testimony; therefore, it was important for the trial judge to clarify
the time period to which defendant’s son was testifying, to discover whether he and RC were
testifying about the same time period. Although the trial judge’s questioning of defendant’s son
was long, it was only long because defendant’s son was initially unsure of when he began working
with defendant. The trial judge simply asked similar questions in different ways to jog the witness’
memory and clarify to which time period he was testifying.
Defendant further argues that the trial judge’s questioning of his son regarding his
qualifications was improper. We disagree. Defendant’s son testified that, after his mother
(defendant’s wife) died, defendant showed signs of dementia. The prosecutor objected on the basis
of relevancy and speculation, and the trial court stated as follows:
The Court: Does he have a base—do you have a basis, any sort of medical
degree on that or not?
[Defendant’s Son]: My mother-in-law has dementia.
The Court: Do you have a medical degree on that or not?
[Defendant’s Son]: I do not, no.
The Court: Okay. So that part will be stricken.
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The trial court was simply ensuring that the son did not have a basis for using the medical term
“dementia.” Defendant’s son was still able to testify to his personal observations regarding
defendant’s behavior after his wife died; he was merely unable to diagnose him with a medical
condition without possessing the necessary expertise to do so.
Accordingly, the trial judge did not pierce the veil of judicial impartiality, and defendant
was not denied a fair trial. Conley, 270 Mich App at 308.
III. ADMISSION OF POLICE INTERVIEW
Defendant also argues that the trial court abused its discretion by admitting a police
interview containing statements from police interviewers that improperly bolstered RC’s
credibility. We conclude that, regardless of whether the trial court abused its discretion by
admitting the detective’s statements, any such error is not grounds for reversal because it was not
outcome-determinative in this case.
“The decision whether to admit evidence is within the trial court’s discretion, which will
be reversed only where there is an abuse of discretion.” People v Gursky, 486 Mich 596, 606; 786
NW2d 579 (2010). “A trial court abuses its discretion when its decision falls outside the range of
principled outcomes.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010).
However, if an evidentiary error is a nonconstitutional, preserved error, then it is
presumed not to be a ground for reversal unless it affirmatively appears that, more
probably than not, it was outcome determinative. An error is outcome
determinative if it undermined the reliability of the verdict and, in making this
determination, a court should focus on the nature of the error in light of the weight
and strength of the untainted evidence. [Musser, 494 Mich at 348 (quotation marks
and citation omitted).]
Relevant evidence is generally admissible. MRE 401. However, hearsay evidence, that is,
an unsworn, out-court-statement that is offered in evidence to prove the truth of the matter asserted,
is not admissible unless it falls under one of the hearsay exceptions found in the Michigan Rules
of Evidence. MRE 801(c); MRE 802; Musser, 494 Mich at 350. Out-of-court statements offered
for a purpose other than to prove the truth of the matter asserted are not hearsay. MRE 801(c).
But such statements are not automatically admissible. “This Court has long held that even if an
out-of-court statement is not offered for the truth of the matter asserted, the statement is not
automatically admissible because the touchstone of admissibility is relevance.” Musser, 494 Mich
at 354 (quotation marks and citation omitted). An interrogator’s statement may be relevant to
provide context to the defendant’s statement, even if the statement is not offered for the truth of
the matter asserted. Id. at 354-355.
Determining whether a statement is relevant requires a trial court to
carefully scrutinize whether the statement is both material—i.e., offered to help
prove a proposition which is . . . a matter in issue—and probative—i.e., tends to
make the existence of any fact that is of consequence to the determination of the
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action more probable . . . than it would be without the evidence. [Id. at 355
(quotation marks and citation omitted; alterations in original).]
In determining the admissibility of such statements, a trial court must “evaluate the
probative value of the out-of-court statements in providing context to a defendant’s statements and
the resulting prejudice to a defendant before the interrogator’s out-of-court statements are
presented to the jury.” Id. at 356-357 (quotation marks, citation, and alteration omitted).
[A]n out-of-court statement made by an investigating officer may be given undue
weight by the jury where the determination of a defendant’s guilt or innocence
hinges on who the jury determines is more credible—the complainant or the
defendant. Thus, even if an interrogator’s statements are not offered for the truth
of the matter asserted, courts must be mindful of the problems inherent in
presenting the statements to the jury, especially in child-sexual-abuse cases. [Id.
at 358 (quotation marks and citation omitted).]
If an interrogator’s statements are determined to be admissible for the purpose of providing context
for the defendant’s statements, “a trial court shall restrict the interrogator’s statements to their
proper scope—to actually provide context to a defendant’s statement.” Id.1
In Musser, 494 Mich at 343-346, a video recording and corresponding transcript of the
defendant’s police interview was shown to the jury. During the interview, two detectives made
statements indicating that they believed that a 12-year-old child alleging sexual abuse was telling
the truth. See id. at 343-345. The defendant made a pretrial motion to exclude the detective’s
statements; however, the trial court denied defendant’s motion, reasoning that the “statements
either gave context to defendant’s statements or were ‘in the nature of the interrogation of the
accused,’ and the questions and answers could be favorable to both parties.” Id. at 345.
Our Supreme Court noted that courts of various jurisdictions had come to “divergent
conclusions” about how to apply the evidentiary rules in the context of a police interrogation
interview. Id. at 351-353. Ultimately, the Court declined to adopt a bright-line rule excluding, in
that context, officer statements commenting on another person’s credibility, but held that:
where the proponent of the evidence offers an interrogator’s out-of-court statements
that comment on a person’s credibility for the purpose of providing context to a
defendant’s statements, the interrogator’s statements are only admissible to the
extent that the proponent of the evidence establishes that the interrogator’s
statements are relevant to their proffered purpose. See MRE 401. Even if relevant,
the interrogator’s statements may be excluded under MRE 403 and, upon request,
must be restricted to their proper scope under MRE 105. [Id. at 353-354.]
1
In other words, Musser merely presents a specific case of the general rule that the prosecution
may not, through questioning or evidence, improperly bolster or attempt to bolster a witness’s
credibility by implying that the police or the prosecution have some special knowledge that the
witness is telling the truth. See, e.g., People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995).
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On the facts of that case, the Court concluded that “the trial court abused its discretion by failing
to redact the majority of the detectives’ out-of-court statements commenting on credibility from
the recording that was played to the jury because they were irrelevant to their offered purpose of
actually providing context to defendant’s statements.” Id. at 365-366.
In this case, defendant was interviewed by two detectives. Before trial, the prosecution
moved to admit defendant’s police interview. Defendant responded, objecting to the admission of
any portion of the police interview containing statements from the police interviewers commenting
on RC’s credibility. Although defendant objected to the introduction of the interviewer’s out-of-
court statements, the trial court did not require the prosecution to establish the relevancy of the
statements or determine if any probative value was outweighed by unfair prejudice. The trial court
simply ruled that everything from page 51, line 5, of defendant’s interview be excluded because
defendant had made an unequivocal invocation of his right to remain silent. The trial court
therefore, did not assess—nor do we—whether the officers’ statements (earlier in the interview)
should properly be admitted or excluded in the context of the police interview in this case.
We conclude that, regardless of whether the trial court abused its discretion by admitting
the detectives’ statements, reversal is not required. This case was not a one-on-one credibility
contest between RC and defendant. Although none of the witnesses directly saw sexual acts occur
between RC and defendant, many witnesses testified about RC and defendant’s interactions and
close relationship. This testimony also corroborated many parts of RC’s testimony, such as her
sitting on defendant’s lap while he played poker, “spooning” with defendant, and defendant
picking her up from school or home to work or go to taekwondo practice. Further, RC’s high
school classmate testified that she knew that the victim was in a relationship with defendant when
they were in high school. Moreover, defendant chose to testify (and in fact specifically denied
“spooning” with RC despite numerous witnesses testifying to the contrary), which gave the jury
the opportunity to assess defendant’s credibility for itself. Therefore, it does not “affirmatively
appear[] that, more probably than not, [any error] was outcome determinative.” Id. at 348.
IV. OUT-OF-GUIDELINES SENTENCES
Defendant also argues that the out-of-guidelines sentences imposed by the trial court were
unreasonable and disproportionate. We disagree.
A sentencing court that departs from the applicable guidelines range no longer needs to
supply a substantial or compelling reason for doing so. People v Lockridge, 498 Mich 358, 364-
365; 870 NW2d 502 (2015). “A sentence that departs from the applicable guidelines range will
be reviewed by an appellate court for reasonableness.” Id. at 392; see also People v Posey, 512
Mich 317; ___ NW3d ___ (2023). “[T]he standard of review to be applied by appellate courts
reviewing a sentence for reasonableness on appeal is abuse of discretion.” People v Steanhouse,
500 Mich 453, 471; 902 NW2d 327 (2017). “[A]ppellate review of departure sentences for
reasonableness requires review of whether the trial court abused its discretion by violating the
principle of proportionality . . . .” Id. at 477. Instead of measuring proportionality by references
to deviations in the guidelines, the Michigan principle of proportionality “requires sentences
imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” Id. at 474 (quotation marks and citation omitted). See also Graham
v Florida, 560 US 48, 59; 130 S Ct 2011; 176 L Ed 2d 825 (2010).
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Sentencing guidelines are advisory, not mandatory. Lockridge, 498 Mich at 399.
However, “they remain a highly relevant consideration in a trial court’s exercise of sentencing
discretion.” Id. at 391. “[T]rial courts ‘must consult those Guidelines and take them into account
when sentencing.’ ” Id., quoting United States v Booker, 543 US 220, 264; 125 S Ct 738; 160 L
Ed 2d 621 (2005); see also People v Dixon-Bey, 321 Mich App 490, 524-525; 909 NW2d 458
(2017). However, under the principle of proportionality, “the key test is whether the sentence is
proportionate to the seriousness of the matter, not whether it departs from or adheres to the
guidelines’ recommended range.” Steanhouse, 500 Mich at 472 (quotation marks and citation
omitted). A sentencing court may impose an out-of-guidelines sentence without a substantial and
compelling reason to do so, but it “must justify the sentence imposed in order to facilitate appellate
review.” Lockridge, 498 Mich at 391-392.
A court should consider several factors when determining whether an out-of-guidelines
sentence is more proportionate than a sentence within the guidelines range, including “(1) whether
the guidelines accurately reflect the seriousness of the crime, (2) factors not considered by the
guidelines, and (3) factors considered by the guidelines but given inadequate weight.” Dixon-Bey,
321 Mich App at 525. These factors are not an exhaustive list of considerations—for example,
“the relationship between the victim and the aggressor, the defendant’s misconduct while in
custody, the defendant’s expressions of remorse, and the defendant’s potential for rehabilitation”
may also be considered, if appropriate. People v Walden, 319 Mich App 344, 352-353; 901 NW2d
142 (2017) (quotation marks and citation omitted).
In this case, defendant’s sentencing guidelines range was 108 to 180 months (9 to 15 years).
However, the trial court sentenced defendant, outside of the recommended guidelines range, to
concurrent sentences of 240 to 480 months (20 to 40 years). Regarding the decision to impose an
out-of-guidelines sentence, the trial court stated that it had read through defendant’s sentencing
memorandum as well as defendant’s letters of support; therefore, the trial court properly
considered defendant’s lack of criminal history and impact on people around him. The trial court
also considered defendant’s lack of remorse. Most notably, the trial court considered the fact that
the highest points that could be assessed for OV 13 accounted for “3 or more crimes against a
person,” MCL 777.43(1)(c). The trial court stated that it did not believe that OV 13 adequately
accounted for the hundreds of times that defendant had sexually assaulted RC over a period of
years. In other words, the trial court found that the number of times that defendant had assaulted
RC was “considered by the guidelines but given inadequate weight.” Dixon-Bey, 321 Mich App
at 525. We agree. RC testified that, apart from having sex “all over” defendant’s house, including
at least fifteen times in the basement, there had been “at least a hundred times,” that defendant
took her to hotels where they had sex. Moreover, she testified that sexual acts also occurred in
defendant’s truck, in RC’s family’s living room, and at two other houses.
In People v Smith, 482 Mich 292, 315; 754 NW2d 284 (2008), our Supreme Court stated
that “mathematical precision in sentencing is neither required nor possible.” Therefore, a
mathematical justification—the number of points per act under OV 13—was not required.
However, through its justification, the trial court gave very clear reasoning behind the decision to
depart from the sentencing guidelines range, and the amount of that departure. We conclude that
the trial court did not abuse its discretion when it sentenced defendant according to this reasoning.
Steanhouse, 500 Mich at 471, 477.
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V. OV 8
Defendant argues that the trial court incorrectly assessed OV 8 because there was no
evidence of asportation connected to the sentencing offenses. We disagree.
We review de novo a trial court’s “application of the facts to the law” to determine
“[w]hether the facts, as found, are adequate to satisfy the scoring conditions prescribed by
statute . . . .” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). We review the trial
court’s factual determinations, used for sentencing under the sentencing guidelines, for clear error,
and those determinations must be supported by a preponderance of the evidence. Id. We will
conclude that the trial court’s factual determinations are clearly erroneous only if we are left with
a definite and firm conviction that the trial court made a mistake. People v Dickinson, 321 Mich
App 1, 21; 909 NW2d 24 (2017).
Due process requires that a defendant be sentenced only on the basis of accurate
information; therefore, “a sentence is invalid if it is based on inaccurate information.” People v
Miles, 454 Mich 90, 96; 559 NW2d 299 (1997).
OV 8, MCL 777.38, refers to victim asportation or captivity, and provides in relevant part:
(1) Offense variable 8 is victim asportation or captivity. Score offense
variable 8 by determining which of the following apply and by assigning the
number of points attributable to the one that has the highest number of points:
(a) A victim was 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 ....................................................................................................... 15 points
(b) No victim was asported or held captive .................................... 0 points
In People v Barrera, 500 Mich 14, 21; 892 NW2d 789 (2017) (quotation marks and citation
omitted), our Supreme Court stated that asportation occurs “[i]f a victim is carried away or
removed to another place of greater danger or to a situation of greater danger . . . .” Moreover,
“movement of a victim that is incidental to the commission of a crime nonetheless qualifies as
asportation.” Id. at 17. In Barerra, 500 Mich at 21-22, the Michigan Supreme Court determined
that 15 points were appropriately scored for OV 8 because the defendant moved “the victim from
the living room into his bedroom in order to sexually assault her.” The Supreme Court reasoned
as follows:
From those facts, the trial court could reasonably determine by a preponderance of
the evidence that the victim was ‘removed’ to a location where the sexual assault
was less likely to be discovered, which rendered the location a ‘place of greater
danger’ or ‘a situation of greater danger.’ Given that determination and because
such movement, whether incidental to the offense or meaningfully deliberate, may
suffice to assess points for OV 8, OV 8 was properly scored at 15 points. [Id. at 22
(citation omitted).]
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Further, when scoring OV 8, “movement of a victim that is incidental to the commission of a crime
nonetheless qualifies as asportation.” Barerra, 500 Mich at 17.
In this case, RC testified that defendant repeatedly drove her to hotels where they had sex.
Additionally, RC testified that defendant would pick her up from her home or school and drive her
to a location where they could have sex undisturbed, including having sex in his truck. RC
explained that defendant would pick her up from her home and bring her to his home, which would
make it difficult RC to get back home if she wanted to leave.
The record in this case shows that, similarly to the victim in Barrera, RC was repeatedly
“ ‘removed’ to a location where the sexual assault was less likely to be discovered, which rendered
the location a ‘place of greater danger’ or ‘a situation of greater danger.’ ” Barrera, 500 Mich
at 22. Accordingly, the trial court did not err by assessing 15 points for OV 8. Hardy, 494 Mich
at 438.
Affirmed.
/s/ Mark T. Boonstra
/s/ Kathleen A. Feeney
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