People of Michigan v. Marvin Lamar Wilburn ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 18, 2016
Plaintiff-Appellee,
v No. 327059
Wayne Circuit Court
ANDREW JUSTIN CAMPBELL, LC No. 14-010082-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 327060
Wayne Circuit Court
ISAIAH SANDERS, LC No. 14-010082-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 327061
Wayne Circuit Court
MARVIN LAMAR WILBURN, LC No. 14-010082-FC
Defendant-Appellant.
Before: MURRAY, P.J., and CAVANAGH and WILDER, JJ.
PER CURIAM.
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Defendant, Andrew Justin Campbell, appeals as of right his bench trial convictions of
armed robbery, MCL 750.529, carjacking, MCL 750.529a, and unlawfully driving away an
automobile (UDAA), MCL 750.413.1 Campbell was sentenced to 15 to 35 years’ imprisonment
each for his armed robbery and carjacking convictions and one to five years’ imprisonment for
his UDAA conviction.
Defendant, Isaiah Sanders, appeals as of right his jury trial convictions of armed robbery,
carjacking, UDAA, felon in possession of a firearm, MCL 750.224f, possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b, and reckless driving, MCL
257.626. Sanders was sentenced, as a second habitual offender, MCL 769.10,2 to 23 years and 9
months to 75 years’ imprisonment each for his armed robbery and carjacking convictions, 1 to 10
years’ imprisonment each for his UDAA and felon in possession of a firearm convictions, two
years’ imprisonment for his felony-firearm conviction, and 93 days’ imprisonment for his
reckless driving conviction.
Defendant, Marvin Lamar Wilburn, appeals as of right his jury trial convictions of armed
robbery, carjacking, UDAA, felon in possession of a firearm, two counts of felony-firearm,
second offense, and carrying a concealed weapon, MCL 750.227. Wilburn was sentenced, as a
third habitual offender, MCL 769.11,3 to 35 years and 6 months to 70 years’ imprisonment each
for his armed robbery and carjacking convictions, one to five years’ imprisonment each for his
UDAA, felon in possession of a firearm, and carrying a concealed weapon convictions, and five
years’ imprisonment for each of his felony-firearm, second offense convictions.
Defendants were convicted at a joint trial in which Campbell was tried by the trial court
and in which Sanders and Wilburn were each tried by a separate jury. The appeals were
consolidated to advance the efficient administration of the appellate process. People v Campbell,
1
Also, at the conclusion of the bench trial, the trial court found Campbell guilty of carrying a
concealed weapon, MCL 750.227, and the trial court stated at Campbell’s sentencing hearing
that it was sentencing Campbell to one to five years’ imprisonment for his carrying a concealed
weapon conviction, but the carrying a concealed weapon conviction and sentence are not
reflected on Campbell’s judgment of sentence. On remand, the trial court shall correct the
judgment of sentence to reflect Campbell’s conviction and sentence for carrying a concealed
weapon. See MCR 6.435(A); MCR 7.216(A)(7).
2
Sanders’s judgment of sentence does not refer to his status as a second habitual offender, but
Sanders was charged as a second habitual offender, and the trial court at sentencing calculated
Sanders’s guidelines range on the basis of his status as a second habitual offender. On remand,
the trial court shall correct the judgment of sentence to reflect that Sanders was sentenced as a
second habitual offender. See MCR 6.435(A); MCR 7.216(A)(7).
3
Wilburn’s judgment of sentence does not refer to his status as a third habitual offender, but
Wilburn was charged as a third habitual offender, and the trial court at sentencing calculated
Wilburn’s guidelines range on the basis of his status as a third habitual offender. On remand, the
trial court shall correct the judgment of sentence to reflect that Wilburn was sentenced as a third
habitual offender. See MCR 6.435(A); MCR 7.216(A)(7).
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unpublished order of the Court of Appeals, entered April 29, 2015 (Docket Nos. 327059,
327060, 327061). We affirm defendants’ convictions. With respect to defendants’ sentences,
we remand for implementation of the Crosby4 remand procedure and for various corrections and
clarification on sentencing issues as set forth in this opinion.
In his Standard 4 brief, Wilburn argues that there was insufficient evidence to support his
carjacking conviction. We disagree. To determine whether there was sufficient evidence to
support a conviction, this Court reviews the evidence de novo, in the light most favorable to the
prosecutor, to determine whether a rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. People v Odom, 276 Mich. App.
407, 418; 740 NW2d 557 (2007). “This Court will not interfere with the trier of fact’s role of
determining the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278
Mich. App. 594, 619; 751 NW2d 57 (2008). “All conflicts in the evidence must be resolved in
favor of the prosecution.” Id. “Circumstantial evidence and reasonable inferences arising
therefrom may constitute proof of the elements of the crime.” People v Bennett, 290 Mich. App.
465, 472; 802 NW2d 627 (2010).
Our Supreme Court has described the elements of carjacking as follows:
A carjacking occurs “in the course of committing a larceny of a motor
vehicle[.]” While doing so, a defendant must use (1) “force or violence,” (2) “the
threat of force or violence,” or (3) put “in fear any operator, passenger, or person
in lawful possession of the motor vehicle, or any person lawfully attempting to
recover the motor vehicle.” [People v Hardy, 494 Mich. 430, 444; 835 NW2d 340
(2013) (alteration in original), quoting MCL 750.529a(1).]
Also, identity is an element of every criminal offense. People v Yost, 278 Mich. App. 341, 356;
749 NW2d 753 (2008).
An aider and abettor may be convicted as though he directly committed the offense.
MCL 767.39; People v Mass, 464 Mich. 615, 628; 628 NW2d 540 (2001). In order to establish
guilt under an aiding and abetting theory, the prosecutor must show that:
(1) the crime charged was committed by the defendant or some other person; (2)
the defendant performed acts or gave encouragement that assisted the commission
of the crime; and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that [the
defendant] gave aid and encouragement. [Bennett, 290 Mich. App. at 472
(alteration in original), quoting People v Robinson, 475 Mich. 1, 6; 715 NW2d 44
(2006).]
“Mere presence, even with knowledge that an offense is about to be committed or is being
committed, is insufficient to establish that a defendant aided or assisted in the commission of the
4
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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crime.” People v Norris, 236 Mich. App. 411, 419-420; 600 NW2d 658 (1999). “An aider and
abettor’s knowledge of the principal’s intent can be inferred from the facts and circumstances
surrounding an event.” Bennett, 290 Mich. App. at 474. Factors that may be considered “in
determining [an] aider and abettor’s state of mind include [a] close association between the
defendant and the principal, the defendant’s participation in planning or executing the crime, and
evidence of flight after the crime[.]” Norris, 236 Mich. App. at 421.
Wilburn’s sufficiency argument does not focus on any specific element of carjacking but
asserts that it is speculative to conclude that he participated in committing the offense. We
disagree. Defendants were convicted for the armed robbery and carjacking of Bernard Ogburn
on October 24, 2014, in Detroit, Michigan. Wilburn and Sanders were seen together inside
another stolen vehicle, a black Ford Explorer, on the night before the carjacking of Ogburn.
Ogburn testified that as he was getting into his burgundy Ford Explorer, a black Explorer
approached, and Sanders then appeared and hit Ogburn in the face with a gun, injuring his lip
and breaking his glasses. As Sanders and Ogburn fought over the gun, another man appeared on
the side of the black Explorer and pointed another gun at Ogburn. Ogburn could not see the
second man well enough to identify him because Ogburn’s glasses had been broken. Sanders or
the other man then “mushed” Ogburn “upside the head” with a gun and said, “[G]imme this
truck bitch.” Ogburn let Sanders and the other man have the burgundy Explorer. One of the
men pushed Ogburn away, and Ogburn partially fell to the ground. The men got in Ogburn’s
vehicle and drove away. Later that day, following a police chase of the stolen burgundy
Explorer, Wilburn got out of the vehicle, removed a handgun from his waistband, tossed it to the
ground, and ran before being apprehended and arrested. Wilburn later made an oral statement to
police admitting that he had participated in taking the burgundy Explorer and that he had a gun.
Wilburn said that he was riding in the stolen black Explorer when he and his cohorts saw an “old
man” in the burgundy Explorer, whereupon “we turned around and took his s---, too.” This
evidence, including Ogburn’s testimony describing the crime, defendant’s running out of the
stolen vehicle and throwing a gun to the ground, and defendant’s statement admitting his
participation in the crime, was sufficient to support defendant’s conviction. Defendant’s flight
from police may also suggest consciousness of guilt. “It is well established that evidence of
flight is admissible to show consciousness of guilt.” People v Compeau, 244 Mich. App. 595,
598; 625 NW2d 120 (2001). “[I]t is always for the jury to determine whether evidence of flight
occurred under such circumstances as to indicate guilt.” People v Unger, 278 Mich. App. 210,
226; 749 NW2d 272 (2008).
Next, Sanders and Wilburn (in his Standard 4 brief) each argue that his Sixth Amendment
right of confrontation was violated by the admission of statements made by his respective
nontestifying codefendants even though the trial court provided a proper limiting instruction at
the joint trial. We disagree.
To preserve an argument that the admission of evidence violates the Confrontation
Clause of the Sixth Amendment, a defendant must raise an objection or move for a mistrial on
that ground below. People v Pipes, 475 Mich. 267, 278; 715 NW2d 290 (2006); People v
Jackson, 292 Mich. App. 583, 594; 808 NW2d 541 (2011). Neither Sanders nor Wilburn objected
or moved for a mistrial on that ground. Although Campbell raised a Confrontation Clause
challenge after the statements were admitted, neither Sanders nor Wilburn joined that argument.
Therefore, the issue is unpreserved.
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Whether a defendant’s Sixth Amendment right of confrontation is violated presents a
question of constitutional law that is reviewed de novo. People v Fackelman, 489 Mich. 515,
524; 802 NW2d 552 (2011). Unpreserved constitutional issues, however, are reviewed for plain
error affecting substantial rights. Id. at 537; People v Carines, 460 Mich. 750, 763-764; 597
NW2d 130 (1999). Under the plain error rule, a defendant must demonstrate that an error
occurred, that it was clear or obvious, and that it affected substantial rights, i.e., that it affected
the outcome of the proceedings. Carines, 460 Mich. at 763. If these requirements are satisfied,
reversal is warranted only when the error resulted in the conviction of an innocent defendant or
seriously affected the fairness, integrity, or public reputation of the proceedings. Id. at 763-764.
A defendant’s right of confrontation under the Sixth Amendment includes the right to
cross-examine witnesses. Richardson v Marsh, 481 U.S. 200, 206; 107 S. Ct. 1702; 95 L. Ed. 2d
176 (1987).
Ordinarily, a witness whose testimony is introduced at a joint trial is not
considered to be a witness “against” a defendant if the jury is instructed to
consider that testimony only against a codefendant. This accords with the almost
invariable assumption of the law that jurors follow their instructions. [Id.]
A narrow exception to this principle, however, was recognized in Bruton v United States, 391 U.S.
123; 88 S. Ct. 1620; 20 L. Ed. 2d 476 (1968). See Richardson, 481 U.S. at 207. The United States
Supreme Court held in Bruton “that a defendant was deprived of his Sixth Amendment right to
confrontation when the facially incriminating unredacted confession of a nontestifying
codefendant was admitted at their joint trial, even if the jury was instructed to consider the
confession only against the codefendant.” People v Akins, 259 Mich. App. 545, 560; 675 NW2d
863 (2003). “In Bruton, the codefendant’s confession expressly implicated the defendant as his
accomplice.” Richardson, 481 U.S. at 208 (quotation marks and brackets omitted). The
codefendant’s confession in Bruton was thus deemed to be “powerfully incriminating.” Id.,
quoting Bruton, 391 US at 135. In Richardson, however, the codefendant’s “confession was not
incriminating on its face, and became so only when linked with evidence introduced later at trial
(the defendant’s own testimony).” Richardson, 481 U.S. at 208.
Where the necessity of such linkage is involved, it is a less valid
generalization that the jury will not likely obey the instruction to disregard the
evidence. Specific testimony that “the defendant helped me commit the crime” is
more vivid than inferential incrimination, and hence more difficult to thrust out of
mind. Moreover, with regard to such an explicit statement the only issue is, plain
and simply, whether the jury can possibly be expected to forget it in assessing the
defendant’s guilt; whereas with regard to inferential incrimination the judge’s
instruction may well be successful in dissuading the jury from entering onto the
path of inference in the first place, so that there is no incrimination to forget. In
short, while it may not always be simple for the members of a jury to obey the
instruction that they disregard an incriminating inference, there does not exist the
overwhelming probability of their inability to do so that is the foundation of
Bruton’s exception to the general rule. [Id.]
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The Richardson Court thus held “that the Confrontation Clause is not violated by the admission
of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant’s name, but any reference to his or her
existence.” Id. at 211.
In applying the principles set forth in Bruton and Richardson, our Supreme Court has
“observed that the line between inferential incrimination and direct implication is thin.” People
v Frazier, 446 Mich. 539, 550; 521 NW2d 291 (1994) (opinion of BRICKLEY, J.), citing People v
Banks, 438 Mich. 408, 419; 475 NW2d 769 (1991).
Drawing this line requires a careful examination of the specific details disclosed
in each codefendant’s statement and analysis of whether the statement may have
implicated any of the other codefendants when the context of all the evidence
introduced during the trial is taken into consideration. [Frazier, 446 Mich. at 550
(opinion of BRICKLEY, J.).]
In Frazier, minimal redactions of statements of nontestifying codefendants were made to
substitute the term “friend” whenever there was a pejorative reference to a person other than the
declarant. Id. at 553. Our Supreme Court concluded that “the minimally redacted statements
introduced in this case did not powerfully incriminate any particular defendant. The defendants
were not named, and any inference regarding identity that could be drawn was sufficiently
attenuated to warrant confidence in the effectiveness of the limited use instruction.” Id. at 567;
id. at 568 (RILEY, J., concurring).
In this case, defendants’ confessions did not facially incriminate their respective
codefendants. Defendants’ confessions did not refer by name to any defendant other than the
one making the statement. Campbell’s statement admitted that he participated in the carjacking
and indicated that “[t]hey pull[ed] up on a[n] old guy and” robbed him, and that “we sped off.”
Campbell denied that it was his idea to rob Ogburn and indicated that Ogburn was lying on the
ground when Campbell got out of the black Explorer and stepped into the burgundy Explorer.
Sanders’s statement indicated that “we” took the burgundy Explorer from Ogburn and that “[m]y
boy” got Ogburn out of the burgundy Explorer and hit him a couple of times while holding a
gun. Sanders said that “the n---- with the .45 cal drove the burgundy” Explorer away. Sanders
said that “we” later dumped the black Explorer, that “we” then robbed another person of
sunglasses and a Rolex watch, and that “[t]wo of my n----s jumped out and robbed” that person.
Wilburn’s statement indicated that “[w]e” took the burgundy Explorer from Ogburn, that “we”
later got rid of the black Explorer, and that “[w]e” had three guns. Wilburn further said that
“[w]e” stole sunglasses and a Rolex watch from another person and that “they was throwing s---
out of the windows of the car, I was picking that s--- up too.”
In short, each defendant’s statements used generic terms or pronouns such as “we” or
“they” when describing the commission of the crimes. None of the statements facially
incriminated any of the other defendants. Any incriminatory inference arising from the linkage
of defendants’ statements with testimony by police officers that defendants were all apprehended
and arrested during the pursuit of the fleeing burgundy Explorer, thereby arguably suggesting
that each defendant’s statement may have been referring to his codefendants, is sufficiently
attenuated to justify confidence that the limited use instruction given by the trial court was
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effective. See Richardson, 481 U.S. at 208; Frazier, 446 Mich. at 567 (opinion of BRICKLEY, J.);
id. at 568 (RILEY, J., concurring). Indeed, it is unclear from any of the statements which if any of
each declarant’s codefendants are being referenced. It is also notable that some police testimony
indicated that there was or may have been a fourth person in the fleeing stolen vehicle,5 thereby
further attenuating any inference that a reference in any statement to other participants in the
crime was meant to refer to any particular codefendant. Overall, defendants’ statements were not
so powerfully incriminating that either Sanders or Wilburn was deprived of his Sixth
Amendment right of confrontation where the jury was properly instructed to consider each
defendant’s confession only against that defendant.
Sanders argues that the prosecutor’s rebuttal closing argument effectively undid the trial
court’s limiting instruction by urging consideration of statements of other defendants when
deciding each defendant’s guilt or innocence. The prosecutor’s rebuttal closing argument did
make some comparisons of defendants’ statements, primarily to note that Wilburn’s statement
included additional details concerning the crimes that were not provided by Campbell and
Sanders. The prosecutor was seeking to rebut Wilburn’s claim that he did not actually make his
statement, which he had refused to sign. But the prosecutor did not suggest that any particular
defendant was incriminated by the statement of any other defendant; the prosecutor was instead
seeking to use Wilburn’s own statement, and the presence of additional details in that statement,
against Wilburn himself. To the extent that the prosecutor’s argument improperly suggested
comparison of the statements, any prejudice was cured by the trial court’s final instruction to the
juries regarding the limited use of each defendant’s statement. See Frazier, 446 Mich. at 567
(opinion of BRICKLEY, J.) (“If there was a chance the jury might have been misled by the
prosecutor’s choice of words, the harm was cured by the final instruction given by the judge.”).
But even if a Bruton error occurred, it was harmless. A Bruton error is subject to
harmless error analysis, and a defendant’s own confession along with other properly admitted
evidence may be considered in determining whether the error was harmless. Pipes, 475 Mich. at
276-277, 280-283. Because Sanders and Wilburn failed to preserve this issue, this Court’s
review is for plain error affecting substantial rights. Id. at 277-279. In Sanders’s case, there was
overwhelming evidence of guilt comprised of Ogburn’s testimony identifying Sanders as the
person who struck Ogburn’s face with a gun during the carjacking; police testimony concerning
Sanders’s operation of the fleeing stolen burgundy Explorer during the chase by police, his
ramming or sideswiping of a police vehicle during the chase, and his subsequent attempt to flee
the police on foot; and Sanders’s own statement confessing his role in the crimes. In Wilburn’s
case, there was again significant evidence of guilt that included police testimony concerning
Wilburn’s presence in the stolen burgundy Explorer during the flight from police and his getting
out of the stolen vehicle, removing a handgun from his waistband, tossing it to the ground, and
running away; and Wilburn’s own statement admitting his role in the crimes. Given the strong
evidence of guilt with respect to both Sanders and Wilburn, we conclude that any Bruton error
was harmless, and reversal of their convictions is not required. Id. at 283.
5
As the trial court explained in its bench trial findings in Campbell’s case, a fourth participant,
Claudius Morrow, pleaded guilty to offenses in connection with this incident.
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In his Standard 4 brief, Wilburn argues in the alternative that he was deprived of the
effective assistance of counsel when his trial attorney failed to object to the purported Bruton
error. We disagree. An ineffective assistance of counsel issue is preserved if it was raised in a
motion for a new trial or a Ginther6 hearing in the trial court. People v Petri, 279 Mich. App. 407,
410; 760 NW2d 882 (2008). Wilburn did not file a motion for a new trial or a Ginther hearing in
the trial court. His ineffective assistance of counsel claim is therefore unpreserved. “A claim of
ineffective assistance of counsel is a mixed question of law and fact. A trial court’s findings of
fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue
arising from an ineffective assistance of counsel claim de novo.” Id. (citation omitted). Because
Wilburn’s claim of ineffective assistance of counsel is unpreserved, this Court’s review is limited
to mistakes apparent on the record. Id.
“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show
that (1) counsel’s performance was below an objective standard of reasonableness and (2) a
reasonable probability [exists] that the outcome of the proceeding would have been different but
for trial counsel’s errors.” People v Ackerman, 257 Mich. App. 434, 455; 669 NW2d 818 (2003).
“Defendant must overcome a strong presumption that counsel’s performance constituted sound
trial strategy.” Petri, 279 Mich. App. at 411. This Court does not substitute its judgment for that
of counsel regarding matters of trial strategy, nor does it assess counsel’s performance with the
benefit of hindsight. Id. A defendant claiming ineffective assistance has the burden of
establishing the factual predicate for the claim. People v Carbin, 463 Mich. 590, 600; 623 NW2d
884 (2001). Wilburn argues that his trial counsel was ineffective for failing to object to the
purported Bruton error. As discussed, however, no Bruton error occurred. “Failing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of
counsel.” People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010). Even if a Bruton
error occurred, there is not a reasonable probability that the outcome of Wilburn’s trial would
have been different but for defense counsel’s failure to object, given the overwhelming evidence
of guilt discussed earlier.
Next, Sanders and Wilburn both assert the existence of a due process violation arising
from the failure of the prosecutor to produce police scout car video7 of the chase and arrest of
defendants and argue that the trial court erred in failing to give an adverse inference instruction
in regard to this failure. We disagree. Although a discovery order entered by the district court
required the prosecutor to produce any scout car video, and no such video was produced,
defendants have failed to establish the existence of a due process violation or entitlement to an
adverse inference instruction.
“A trial court’s decision regarding discovery is reviewed for an abuse of discretion.”
People v Phillips, 468 Mich. 583, 587; 663 NW2d 463 (2003). “An abuse of discretion occurs
when the trial court’s decision is outside the range of reasonable and principled outcomes.”
6
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
7
For the sake of simplicity, we will use the term “video” to encompass both video and audio
recordings in connection with this issue.
-8-
Jackson, 292 Mich. App. at 591. A defendant’s claim that he was denied due process is reviewed
de novo. People v Schumacher, 276 Mich. App. 165, 176; 740 NW2d 534 (2007). Any
underlying factual determinations are reviewed for clear error. People v Tracey, 221 Mich. App.
321, 323; 561 NW2d 133 (1997). “Clear error exists if the reviewing court is left with a definite
and firm conviction that the trial court made a mistake.” People v Armstrong, 490 Mich. 281,
289; 806 NW2d 676 (2011). Questions of law pertaining to jury instructions are reviewed de
novo, but a lower court’s determination whether a jury instruction applies to the facts of a case is
reviewed for an abuse of discretion. People v Gillis, 474 Mich. 105, 113; 712 NW2d 419 (2006).
“ ‘[T]he suppression by the prosecution of evidence favorable to the accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.’ ” Arizona v Youngblood, 488 U.S.
51, 55; 109 S. Ct. 333; 102 L. Ed. 2d 281 (1988), quoting Brady v Maryland, 373 U.S. 83, 87; 83 S
Ct 1194; 10 L. Ed. 2d 215 (1963).
The Due Process Clause of the Fourteenth Amendment, as interpreted in
Brady, makes the good or bad faith of the State irrelevant when the State fails to
disclose to the defendant material exculpatory evidence. But we think the Due
Process Clause requires a different result when we deal with the failure of the
State to preserve evidentiary material of which no more can be said than that it
could have been subjected to tests, the results of which might have exonerated the
defendant. [Youngblood, 488 U.S. at 57.]
Therefore, the failure to preserve potentially useful evidence does not constitute a due process
violation unless the defendant can demonstrate bad faith. Id. at 58. See also People v Heft, 299
Mich. App. 69, 79; 829 NW2d 266 (2012) (“If the defendant cannot show bad faith or that the
evidence was potentially exculpatory, the state’s failure to preserve evidence does not deny the
defendant due process.”), citing Youngblood, 488 U.S. at 57-58. The routine destruction of
recordings pursuant to a police department policy where the purpose is not to deprive a
defendant of evidence does not amount to bad faith. See People v Johnson, 197 Mich. App. 362,
365; 494 NW2d 873 (1992).
In this case, there is no evidence that any scout car video showing the police chase and
arrests of defendants even exists or that it ever existed. Although several police officers involved
in this incident testified that their police cars contained recording equipment, they had no control
over the recording system and did not know whether a recording existed. Even if scout car video
existed, Sanders and Wilburn have failed to demonstrate that it was potentially exculpatory. See
Heft, 299 Mich. App. at 79; Johnson, 197 Mich. App. at 365. The testimony of the police officers
reflects that Sanders and Wilburn were each inside the stolen vehicle and were then arrested after
getting out and running away on foot. Wilburn threw a gun to the ground when he got out of the
stolen vehicle. Sanders and Wilburn both made statements admitting their roles in the crimes.
Sanders made the following admission concerning his behavior during the police chase: “I
panicked. I didn’t stop when they tried to pull me over. I hit [an undercover police vehicle]
while I was trying to get away. I stopped, got out and ran, they obviously got me though.”
Wilburn admitted that he was inside the stolen vehicle and that he had a gun. Given this
evidence, Sanders and Wilburn have failed to demonstrate that any scout car video of this
incident, if it ever existed, was potentially exculpatory.
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Nor have Sanders and Wilburn demonstrated any bad faith on the part of the police or the
prosecutor with respect to the failure to preserve or produce the scout car video. There is no
evidence that any scout car video of this incident ever existed, let alone that it was destroyed in
bad faith. Sergeant Patrick Saunders, the officer-in-charge, testified about his efforts to obtain
any scout car video. Saunders, who was employed by the Wayne State University Police
Department, was told by a Detroit Police Department officer with whom Saunders worked to
request the video through the Detroit Police Department Help Desk. Saunders sent two emails to
the Help Desk requesting any video recordings but received no response. Saunders also called
the Help Desk approximately four times. The Help Desk phone recording said to press two for
scout car video, which Saunders did, but he never reached a live human being. He left
voicemails but received no response. Saunders did not know if any scout car video existed. If it
existed, Saunders lacked access to it and did not know where it was stored. He last called the
Help Desk three or four weeks before trial. Saunders did not believe that he asked the prosecutor
for help in obtaining the video and did not ask for a subpoena. In short, Saunders made efforts to
obtain any video that existed but was unsuccessful in obtaining it. The failure to make additional
efforts was at worst negligent, but negligence does not establish the existence of bad faith. See
Youngblood, 488 U.S. at 58 (finding no evidence of bad faith where the failure of the police to
preserve evidence could “at worst be described as negligent.”). Nor is there any apparent motive
for why the prosecutor or the police would not wish to produce any video that existed, given that
there is no basis to conclude that the video was potentially exculpatory.
Because Sanders and Wilburn have failed to demonstrate that any video existed, that it
was potentially exculpatory, or that the police or the prosecutor acted in bad faith, Sanders and
Wilburn have not established a due process violation. Youngblood, 488 U.S. at 57-58; Heft, 299
Mich. App. at 79; Johnson, 197 Mich. App. at 365. For the same reason, the trial court did not err
in declining to provide an instruction that the juries may infer that any scout car video would
have been favorable to Sanders and Wilburn. See People v Davis, 199 Mich. App. 502, 514-515;
503 NW2d 457 (1993), overruled on other grounds by People v Grissom, 492 Mich. 296 (2012)
(the trial court did not err in declining to give an adverse inference instruction where the
defendant failed to show that the prosecutor acted in bad faith in failing to produce evidence and
where the evidence simply did not exist or could not be located).
Wilburn also argues that he was denied his constitutional right to present a defense by the
prosecutor’s failure to produce Christian Flennoy as a witness at trial and by the trial court’s
denial of Wilburn’s request for an adverse inference instruction on this matter. Any testimony
by Christian would have pertained only to the other acts evidence; she is the daughter of Natalie
Flennoy, the owner of the black Explorer that was stolen on the night before the carjacking of
Ogburn.
We disagree with Wilburn’s argument. Whether a defendant was denied his
constitutional right to present a defense is a constitutional question that is also reviewed de novo.
People v Kurr, 253 Mich. App. 317, 327; 654 NW2d 651 (2002). A defendant has a constitutional
right to present a defense. Unger, 278 Mich. App. at 249-250. This right is not absolute and must
“accommodate other legitimate interests in the criminal trial process.” Id. at 250 (quotation
marks and citation omitted). “States have been traditionally afforded the power under the
constitution to establish and implement their own criminal trial rules and procedures.” Id. “Like
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other states, Michigan has a legitimate interest in promulgating and implementing its own rules
concerning the conduct of trials.” Id.
Under Michigan law, the prosecutor is no longer required to produce all res gestae
witnesses. People v Snider, 239 Mich. App. 393, 423; 608 NW2d 502 (2000). Rather, the
prosecutor must exercise due diligence to produce a witness that the prosecutor has endorsed
under MCL 767.40a(3). People v Eccles, 260 Mich. App. 379, 388; 677 NW2d 76 (2004). See
also People v Steanhouse, 313 Mich. App. 1, 15; 880 NW2d 297 (2015), lv gtd 499 Mich. 934
(2016) (“Under MCL 767.40a, the prosecutor has a duty to disclose all known res gestae
witnesses, to update the list as additional witnesses become known, and to provide to the
defendant a list of witnesses the prosecution intends to call at trial.”) (quotation marks, brackets,
and citations omitted). Because Christian was not endorsed as a witness on the prosecutor’s
witness list, the prosecutor was under no obligation to produce her. As the trial court noted,
defendants were free to call Christian as a witness. The prosecutor was obligated to provide
reasonable assistance in locating Christian if a defendant requested such assistance, see MCL
767.40a(5); Snider, 239 Mich. App. at 423, but there is no indication here of such a request having
been made. Because the prosecutor did not fail to comply with any duty with respect to this
witness, the trial court properly declined to provide an adverse inference instruction. Id.
Wilburn asserts that Christian’s preliminary examination should have been presented at
trial as former testimony of an unavailable witness under MRE 804(b)(1) but offers no argument
to support a conclusion that Christian was unavailable as defined by MRE 804(a). An appellant
may not simply announce a position and leave it up to this Court to rationalize the basis for his
claims or elaborate his arguments. People v Kevorkian, 248 Mich. App. 373, 389; 639 NW2d 291
(2001). The record does not establish that Christian was unavailable under MRE 804(a).
Overall, Wilburn has identified no basis to conclude that any Michigan statutes or rules
regarding the production of witnesses or the admissibility of former testimony are arbitrary or
disproportionate to their purposes such that Wilburn was denied his constitutional right to
present a defense. See Unger, 278 Mich. App. at 250 (rules excluding evidence “do not abridge
an accused’s right to present a defense so long as they are not arbitrary or disproportionate to the
purposes they are designed to serve.”) (quotation marks and citations omitted).
Campbell argues that the trial court committed various errors in rendering its findings of
fact in Campbell’s bench trial. We disagree. A trial court’s findings of fact in a bench trial are
reviewed for clear error. People v Lanzo Constr Co, 272 Mich. App. 470, 473; 726 NW2d 746
(2006). “A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been made.” Id.
This Court gives regard to the trial court’s special opportunity to assess the credibility of
witnesses who appeared before it. MCR 2.613(C). Any questions of law are reviewed de novo.
Lanzo Constr Co, 272 Mich. App. at 473.
In a bench trial, a trial court is required to announce its findings of fact and conclusions
of law. MCR 2.517(A)(1). “Brief, definite, and pertinent findings and conclusions on the
contested matters are sufficient, without overelaboration of detail or particularization of facts.”
MCR 2.517(A)(2). “Ultimately, this Court must review a trial court’s findings in the context of
the specific legal and factual issues raised by the parties and the evidence. If the trial court was
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aware of the issues in the case and correctly applied the law to the facts, its findings are
sufficient.” Lanzo Constr Co, 272 Mich. App. at 479 (quotation marks and citation omitted).
Campbell asserts various challenges to the trial judge’s findings of fact. First, Campbell
argues that the trial judge improperly relied on Campbell’s statement to the police because the
judge failed to indicate that she was considering the fact that the interrogation was not recorded.
Campbell claims that the trial judge erred in failing to give herself an adverse inference
instruction. MCL 763.9 provides that if a statement to police is not recorded as required by
MCL 763.8, “the jury shall be instructed that it is the law of this state to record statements of an
individual in custodial detention who is under interrogation for a major felony and that the jury
may consider the absence of a recording in evaluating the evidence relating to the individual’s
statement.” The trial judge provided an instruction to the juries for Sanders and Wilburn in
accordance with the language of MCL 763.9. A trial judge in a bench trial is presumed to
possess an understanding of the applicable law. Lanzo Constr Co, 272 Mich. App. at 484.
Therefore, the judge is not required to instruct herself on the law in open court. People v Cazal,
412 Mich. 680, 691 n 5; 316 NW2d 705 (1982). Indeed, the trial judge’s presumed awareness in
this case of the statute allowing consideration of the failure to record the interrogation is
reinforced by the fact that the judge had already instructed the juries for Sanders and Wilburn on
this very point. Campbell’s argument on this matter is devoid of merit.
Campbell next argues that the trial court improperly relied on portions of the statements
of Campbell’s codefendants mentioning a Rolex watch in order to conclude that Campbell was a
participant in the crimes. In stating its findings of fact, the trial court noted testimony from a
police officer that he confiscated a Rolex watch from Campbell at the Detroit Detention Center
following Campbell’s arrest. The trial court further stated:
Now, I don’t know whether it’s true or not that that Rolex was stolen, or if
any of that stuff that’s in the other defendant’s [sic] statements about how they
came in possession of that Rolex, but it certainly – it certainly – there’s nothing
on this record that would cause this Court to believe that that was Mr. Campbell’s
Rolex, where would he get a Rolex from?
It indicated here that he went to – up to the 12th grade on his Constitutional
Rights Notification form, and it doesn’t indicate anything about him, you know,
being in any kind of way – having any kind of job or anything that would enable
him to be able to afford a Rolex watch.
So, the very fact that he had this Rolex watch in his possession, it was
found on his person, demonstrates to me that he was not just merely present, that
he was very active and willing participant of the crime spree, that he decided to go
on with his buddies Mr. Sanders, Mr. Wilburn, and the defendant who has already
pled guilty in this matter, who I believe his name was Mr. Claudius Morrow.
They were all in this thing together.
Campbell asserts that he was denied his right of confrontation because the trial court
relied on portions of the statements of Campbell’s nontestifying codefendants regarding the
Rolex watch. This Court has declined to extend the Bruton rule (discussed earlier) to bench
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trials. See People v Butler, 193 Mich. App. 63, 65-66; 483 NW2d 430 (1992), abrogated on other
grounds by People v Reese, 491 Mich. 127 (2012). Further, the trial court did not rely in its
bench trial findings on codefendants’ statements. The court noted, in addition to other evidence
of guilt, that a Rolex watch was confiscated from Campbell following his arrest and that there
was no indication that it belonged to Campbell, given his lack of discernable means to purchase
it. The trial court said that it did not know whether the comments in codefendants’ statements
regarding the Rolex were true. Again, the trial court is presumed to know the applicable law,
Lanzo Constr Co, 272 Mich. App. at 484, and had already instructed codefendants’ juries
regarding the limited use of each defendant’s statement. In addition, after codefendants’
statements were admitted, the trial court emphasized outside the presence of the juries that it
would not attribute any assertions in those statements to Campbell.
But even if the trial court considered codefendants’ statements, any error was harmless
beyond a reasonable doubt given the overwhelming evidence of guilt against Campbell,
including police testimony that Campbell was apprehended in the driver seat of the stolen vehicle
following a pursuit by police, that a gun was then found in the driver seat, and that Campbell
made a statement admitting his participation in the crimes. See Banks, 438 Mich. at 427 (an error
in admitting a codefendant’s statement is harmless beyond a reasonable doubt if the properly
admitted evidence of guilt is overwhelming and the prejudicial effect of the codefendant’s
statement is insignificant by comparison).
Campbell next argues that the trial court failed to engage in a meaningful discussion of
the absence of scout car video. Campbell says that the trial court should have explained its
findings regarding the lack of video and the failure to comply with the district court’s discovery
order. Campbell’s argument is cursory. He cites no pertinent authority establishing that the trial
court was required to discuss the lack of scout car video in its findings of fact. Campbell may
not leave it to this Court to rationalize the basis for his claim or to search for authority to sustain
or reject his position. Kevorkian, 248 Mich. App. at 389. As discussed earlier, there is no
evidence that any scout car video existed, that it was potentially exculpatory, or that the
prosecutor or the police acted in bad faith in failing to produce it. Overall, the trial court’s
findings in the bench trial were sufficient because the court exhibited awareness of the issues in
the case and correctly applied the law to the facts. Lanzo Constr Co, 272 Mich. App. at 479.
Next, Wilburn argues that the trial court abused its discretion in admitting other acts
evidence concerning the theft of Natalie’s black Explorer. We disagree. “While a trial court’s
decision to admit or exclude evidence is reviewed for an abuse of discretion, a preliminary or
underlying issue of law regarding the admissibility of the evidence, such as whether a rule of
evidence bars admission, is reviewed de novo.” People v McDade, 301 Mich. App. 343, 352; 836
NW2d 266 (2013). “A trial court abuses its discretion when it chooses an outcome falling
outside the range of principled outcomes.” People v Watkins, 491 Mich. 450, 467; 818 NW2d
296 (2012).
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
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intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
“To be admissible under MRE 404(b), bad-acts evidence must satisfy three requirements: (1) the
evidence must be offered for a proper purpose; (2) the evidence must be relevant; and (3) the
probative value of the evidence must not be substantially outweighed by the danger of unfair
prejudice.” People v Kahley, 277 Mich. App. 182, 184-185; 744 NW2d 194 (2007). Also, the
trial court, on request, may instruct the jury regarding the limited use of the evidence. People v
Watson, 245 Mich. App. 572, 577; 629 NW2d 411 (2001). See also People v VanderVliet, 444
Mich. 52, 74-75; 508 NW2d 114 (1993), amended 445 Mich. 1205 (1994).
Evidence relevant to a noncharacter purpose is admissible under MRE
404(b) even if it also reflects on a defendant’s character. Evidence is inadmissible
under this rule only if it is relevant solely to the defendant’s character or criminal
propensity. Stated another way, the rule is not exclusionary, but is inclusionary,
because it provides a nonexhaustive list of reasons to properly admit evidence that
may nonetheless also give rise to an inference about the defendant’s character.
Any undue prejudice that arises because the evidence also unavoidably reflects
the defendant’s character is then considered under the MRE 403 balancing test,
which permits the court to exclude relevant evidence if its “probative value is
substantially outweighed by the danger of unfair prejudice . . . .” MRE 403.
[People v Mardlin, 487 Mich. 609, 615-616; 790 NW2d 607 (2010) (citations
omitted).]
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.” MRE 401. Moreover, all relevant evidence is prejudicial; only unfairly
prejudicial evidence may be excluded. People v McGhee, 268 Mich. App. 600, 613-614; 709
NW2d 595 (2005). “Unfair prejudice exists when there is a tendency that evidence with little
probative value will be given too much weight by the jury.” Id. at 614. Such unfair prejudice
may arise where considerations extraneous to the merits of the case are injected, such as jury
bias, sympathy, anger, or shock. Id.
“[E]vidence of similar misconduct is logically relevant to show that the charged act
occurred where the uncharged misconduct and the charged offense are sufficiently similar to
support an inference that they are manifestations of a common plan, scheme, or system.” People
v Sabin (After Remand), 463 Mich. 43, 63; 614 NW2d 888 (2000). “There must be such a
concurrence of common features that the charged acts and the other acts are logically seen as part
of a general plan, scheme, or design.” People v Steele, 283 Mich. App. 472, 479; 769 NW2d 256
(2009). “Distinctive and unusual features are not required to establish the existence of a
common plan or scheme.” Kahley, 277 Mich. App. at 185.
In this case, Wilburn challenges only the first and third factors in determining the
admissibility of other acts evidence, i.e., whether the evidence was offered for a proper purpose
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and whether the probative value of the evidence was substantially outweighed by the danger of
unfair prejudice. We will address each factor in turn.
The other acts evidence in this case consisted of Natalie’s testimony that her black
Explorer was stolen on the night before the charged offenses occurred. Later that night, Natalie
saw her stolen vehicle, which Sanders was driving and in which Wilburn was a passenger. The
next day, Ogburn’s burgundy Explorer was taken by Sanders and an accomplice who arrived in a
black Explorer. Because Sanders broke Ogburn’s glasses, Ogburn could not identify Sanders’s
accomplice. In his statement to police, Wilburn said that he knew the owner of the black
Explorer, that he and his cohorts were riding in the black Explorer when they saw the burgundy
Explorer, that they took the burgundy Explorer, and that they then disposed of the black
Explorer.
The evidence concerning the theft of Natalie’s black Explorer was introduced for the
proper purpose of establishing defendants’ motive. Wilburn and his cohorts were riding in the
black Explorer, which had been stolen the previous night from a woman whom Wilburn said he
knew. Sanders and Wilburn knew that Natalie, the owner of the black Explorer, had seen them
in that vehicle because they fled at a high rate of speed when she saw them approximately an
hour after it was stolen. It is reasonable to infer that defendants needed to find a different vehicle
to use before being caught in the stolen black Explorer given that Natalie had seen them in the
vehicle. Also, the concurrence of common features supports a logical inference that the charged
offenses were part of a common plan, scheme, or system to steal Explorers and ride in them
during this ongoing crime spree. A trial court does not abuse its discretion in admitting other
acts evidence where “reasonable persons could disagree on whether the charged and uncharged
acts contained sufficient common features to infer the existence of a common system used by
defendant in committing the acts.” Sabin, 463 Mich. at 67. A “trial court’s decision on a close
evidentiary question such as this one ordinarily cannot be an abuse of discretion.” Id.
The probative value of the other acts evidence was not substantially outweighed by the
danger of unfair prejudice. “Whether other-acts evidence is more prejudicial than probative is
best left to the contemporaneous assessment of the trial court.” McGhee, 268 Mich. App. at 614
(citation omitted). The evidence concerning the theft of the black Explorer was probative of
defendants’ motive for stealing the burgundy Explorer and was relevant to their common plan or
scheme to steal Explorers. Wilburn identifies no basis to conclude that the other acts evidence
was unfairly prejudicial. There is no indication of a tendency for this evidence to be given too
much weight by the jury. No considerations extraneous to the merits of the case were injected.
Id. Also, the trial court instructed the juries regarding the limited use of the other acts evidence,
which served to alleviate any unfair prejudice. A jury is presumed to follow the trial court’s
instructions. People v Graves, 458 Mich. 476, 486; 581 NW2d 229 (1998).
Wilburn also contends that he was denied due process by the admission of the other acts
evidence. We disagree. To preserve a due process argument for appellate review, a defendant
must raise an objection on that ground in the trial court. People v Hanks, 276 Mich. App. 91, 95;
740 NW2d 530 (2007). Wilburn did not object on due process grounds below. Therefore, his
due process argument concerning the other acts evidence is unpreserved. Unpreserved
constitutional issues are reviewed for plain error affecting substantial rights. Carines, 460 Mich.
at 763-764. Given that the admission of the other acts evidence was proper, no basis exists to
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conclude that Wilburn’s due process rights were violated. See Kahley, 277 Mich. App. at 186
(finding no due process violation in the proper introduction of other acts evidence).
Even if the introduction of the other acts evidence comprised error, it would not require
reversal. A preserved nonconstitutional error does not warrant reversal unless the defendant
establishes that it is more probable than not that the error was outcome determinative, i.e., that it
undermined the reliability of the verdict. People v Douglas, 496 Mich. 557, 565-566; 852 NW2d
587 (2014); People v Blackmon, 280 Mich. App. 253, 270; 761 NW2d 172 (2008). Unpreserved
claims of constitutional error are reviewed for plain error affecting substantial rights. Carines,
460 Mich. at 763-764. Aside from the other acts evidence, there was overwhelming evidence of
guilt that included police testimony concerning Wilburn’s presence in the stolen burgundy
Explorer during the flight from police and his getting out of the stolen vehicle, removing a
handgun from his waistband, tossing it to the ground, and running away; and Wilburn’s own
statement admitting his role in the crimes. Given the strong evidence of guilt, we conclude that
any error in admitting the other acts evidence was harmless such that reversal of Wilburn’s
convictions is therefore not required.
We next address defendants’ arguments that the trial court clearly erred in finding that a
preponderance of the evidence supported the scoring of various offense variables (OVs) at
sentencing. We disagree with defendants’ arguments. “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. 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
(citations omitted). “A sentencing court may consider all record evidence before it when
calculating the guidelines, including, but not limited to, the contents of a presentence
investigation report, admissions made by a defendant during a plea proceeding, or testimony
taken at a preliminary examination or trial.” People v Johnson, 298 Mich. App. 128, 131; 826
NW2d 170 (2012) (quotation marks and citation omitted). “The 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).
Campbell asserts in a cursory fashion that there was no evidence to support the scoring of
OVs 4, 9, and 10. Campbell cites no authority and presents no argument to support his
conclusory claim. “As we have repeatedly stated, an appellant may not simply announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority
either to sustain or reject his position.” People v Bowling, 299 Mich. App. 552, 559-560; 830
NW2d 800 (2013) (quotation marks and citation omitted). Campbell has thus abandoned this
argument. Kevorkian, 248 Mich. App. at 389. Campbell has also waived this argument for
appellate review by failing to identify it as an issue in his statement of questions presented.
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People v Fonville, 291 Mich. App. 363, 383; 804 NW2d 878 (2011).8 Further, Campbell
concedes that correction of the purported scoring errors would not alter his sentencing guidelines
range. Hence, resentencing would not be required even if the claimed errors occurred. People v
Francisco, 474 Mich. 82, 89 n 8; 711 NW2d 44 (2006).
Sanders and Wilburn each argue that the trial court erred in assessing 10 points for OV 4.
OV 4 addresses psychological injury to a victim. MCL 777.34(1); People v Lockett, 295 Mich
App 165, 182; 814 NW2d 295 (2012). OV 4 requires a 10 point assessment if “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).
Zero points are to be assessed if “[n]o serious psychological injury requiring professional
treatment occurred to a victim.” MCL 777.34(1)(b). A trial court must assess “10 points if the
serious psychological injury may require professional treatment. In making this determination,
the fact that treatment has not been sought is not conclusive.” MCL 777.34(2). “There must be
some evidence of psychological injury on the record to justify a 10-point score.” Lockett, 295
Mich. App. at 183. A victim’s expression of fearfulness may comprise sufficient evidence of a
psychological injury. People v Williams, 298 Mich. App. 121, 124; 825 NW2d 671 (2012); Earl,
297 Mich. App. at 109-110.
In his victim impact statement, Ogburn indicated that he had never previously been
robbed and that he now fears for his safety and for the safety of a 13-year-old child who lives in
his home. At Sanders’s sentencing, the trial court noted that Ogburn had been attacked,
threatened, beaten about his head, and pushed to the ground, and that he was clearly traumatized
when he came to court. The court thus assessed 10 points for OV 4. At Wilburn’s sentencing,
the prosecutor stated that Ogburn had indicated his everyday functions have been altered
drastically as a result of this crime and that he no longer feels comfortable leaving his house.
The prosecutor said Ogburn’s wife also indicated that Ogburn is “quite jittery. Once they leave
to go anywhere he’s constantly looking around, he’s constantly rushing, you know, jumping
inside of the car, looking around, and this has had a great psychological impact on [him].” In
assessing 10 points for OV 4 in Wilburn’s case, the trial court stated:
And under the facts and circumstances of this case we had a senior citizen
who had some independence, where he felt free to go and run his daily errands,
and lead his normal life, and as a result of this happening to him, he’s fear [sic],
and it’s affected the way he lives his life, even if he hasn’t sought psychological
treatment yet at this point, the guidelines clearly indicate that they can be scored
regardless of whether or not treatment has been sought.
It was obvious to me from his demeanor, the way he testified in court,
there was even some discussion on the record about the fact that the media
published his address and that caused him to be in fear for his safety and for
retaliation, so for those reasons that have been previously outlined on this record,
8
Campbell’s statement of questions presented identifies an issue under People v Lockridge, 498
Mich. 358, 373; 870 NW2d 502 (2015), but does not identify an issue concerning a traditional
OV scoring error. Campbell’s Lockridge argument is discussed later.
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over your defense attorney’s objection, I’m scoring Offense Variable 4 at 10
points, sir.
The trial court did not clearly err in assessing 10 points for OV 4 with respect to Sanders and
Wilburn given Ogburn’s expressions of continuing fearfulness as a result of this incident.
Sanders and Wilburn each challenge the assessment of 50 points for OV 7. OV 7
addresses aggravated physical abuse. MCL 777.37(1); Hardy, 494 Mich. at 439. At the time of
defendants’ sentencings, this OV required a score of 50 points if “[a] victim was treated with
sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and
anxiety a victim suffered during the offense[.]” MCL 777.37(1)(a).9 In Hardy, 494 Mich. at 440,
our Supreme Court addressed the fourth category for which 50 points may be assessed under OV
7, i.e., “conduct designed to substantially increase the fear and anxiety a victim suffered during
the offense.” MCL 777.37(1)(a). The Hardy Court “conclude[d] that it is proper to assess points
under OV 7 for conduct that was intended to make a victim’s fear or anxiety greater by a
considerable amount.” Hardy, 494 Mich. at 441. “The relevant inquiries are (1) whether the
defendant engaged in conduct beyond the minimum required to commit the offense; and, if so,
(2) whether the conduct was intended to make a victim’s fear or anxiety greater by a
considerable amount.” Id. at 443-444. The Court found that racking a shotgun during a
carjacking to make the victim fear an imminent violent death supported an assessment of 50
points for OV 7. Id. at 445. Also, threatening and striking victims with what appeared to be a
sawed-off shotgun went beyond what was necessary to commit an armed robbery and was
intended to increase the victims’ fear by a considerable amount, thus supporting a 50-point
assessment for OV 7. Id. at 446-447.
In assessing 50 points for OV 7 in Sanders’s case, the trial court stated:
. . . I think it should be 50 ‘cause they did not have to do that man like that. They
didn’t. He was elderly man, and they did not have to beat him and knock and
push him to the ground. And a man of his age he could’ve suffered a broken hip,
anything could happened to him, he was elderly, and they didn’t have to do him
like that. And I think that was aggravated physical abuse. I do. I know you don’t
agree but it was done for no purpose to increase his fear and his anxiety, because
when they first approached him, he was trying to fight with Mr. Sanders. He was
trying to get that gun pointed down away from him, and it wasn’t till the other
defendant came out and used additional force to increase his fear and his anxiety
so that they could effectuate this crime, and it was wrong. They didn’t have to do
that old man like that, so I’m scoring it at 50 points, but your objection is noted
you can say whatever want [sic], preserve it for the record.
9
MCL 777.37(1)(a) was amended effective January 5, 2016, to require a 50 point assessment if
“[a] victim was treated with sadism, torture, excessive brutality or similarly egregious conduct
designed to substantially increase the fear and anxiety a victim suffered during the offense.” See
2015 PA 137.
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Sanders’s counsel then said that Ogburn did not identify anyone other than Sanders and that
Ogburn said he fell rather than being pushed. The trial court responded:
Okay. So maybe he fail [sic] when the other another [sic] guy jumped out
and pointed the gun at him, but the facts are the same. I think it was to increase
his anxiety, and he suffered, I really do think he did, and that’s my position. But
if the Court of Appeals says I’m wrong, I’ll stand corrected, but your objections
are duly preserved for this record.
In assessing 50 points in Wilburn’ case, the trial court stated:
Okay. Well as I indicated in the previous cases, the facts and
circumstances of this case were that one armed individual first approached the
complaining witness, the victim, and tried to commandeer his vehicle from him,
and when he resisted the second defendant, who I believe the facts support was
more than likely Mr. Wilburn, your client, came out, said it something to him to
the effect of gimme (sic) that truck bitch, or something. And that’s when he was
overpowered and taken to the ground, and I think that that was done, specifically,
to increase his level of fear and anxiety, because when it was just one defendant
who was trying to accost him and commandeer his vehicle, he resisted.
And it was only with the additional force, the additional weapon being
produced and those threatening words being used to this senior citizen, I mean
who talks to a [sic] elderly person that way? He didn’t have to be done that way,
it was only done specifically for the purpose of increasing his fear and to
humiliate him. And it wasn’t necessary in order to commit the crime, so for those
reasons I believe that it’s accurately scored at 50 points, but your objection is duly
preserved for this record.
The trial court did not clearly err in assessing 50 points for OV 7. Sanders and Wilburn
used additional force beyond the minimum necessary to commit armed robbery and carjacking.
Sanders grabbed Ogburn’s arm, spun Ogburn around, and attempted to hit Ogburn in the face
with a gun. Ogburn reflexively threw his hand up, but the gun still made contact with Ogburn’s
face, injuring his lip, breaking his glasses, and knocking his glasses to the ground. As Sanders
and Ogburn were “tussling” over Sanders’s gun, another man appeared on the side of the black
Explorer and pointed another gun at Ogburn. Ogburn could not see the second man well enough
to identify him because Ogburn’s glasses had been broken. After the second man pointed the
gun at him, Ogburn stopped “tussling” with Sanders. Sanders or the other man then “mushed”
Ogburn “upside the head” with a gun and said, “[G]imme this truck bitch.” One of the men
pushed Ogburn away, and Ogburn partially fell to the ground. The men got in Ogburn’s vehicle
and drove away. Defendants’ actions certainly exceeded the minimum amount of force needed
to commit the offenses, and it is reasonable to conclude that the conduct was intended to make
Ogburn’s fear or anxiety greater by a considerable amount. Ogburn could not identify the
second gunman because Sanders broke Ogburn’s glasses, but a reasonable inference exists that it
was Wilburn. Wilburn admitted in his statement to the police that he participated in the
carjacking and that he had a gun, and Wilburn threw a gun to the ground when he ran from the
stolen vehicle. Overall, then, the assessment of 50 points for OV 7 was proper.
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Wilburn challenges the assessment of 10 points for OV 9. OV 9 addresses the number of
victims. MCL 777.39(1); People v Fawaz, 299 Mich. App. 55, 62; 829 NW2d 259 (2012). A trial
court must assess 10 points if “there were 2 to 9 victims who were placed in danger of physical
injury or death . . . .” MCL 777.39(1)(c). An assessment of zero points is required if “there were
fewer than 2 victims who were placed in danger of physical injury or death . . . .” MCL
777.39(1)(d). Each person who was placed in danger of physical injury or loss of life must be
counted as a victim. MCL 777.39(2)(a); People v Morson, 471 Mich. 248, 262; 685 NW2d 203
(2004); People v Waclawski, 286 Mich. App. 634, 682; 780 NW2d 321 (2009). “A person may be
a victim under OV 9 even if he or she did not suffer actual harm; a close proximity to a
physically threatening situation may suffice to count the person as a victim.” People v Gratsch,
299 Mich. App. 604, 624; 831 NW2d 462 (2013), vacated in part on other grounds by 495 Mich.
876 (2013).
The trial court assessed 10 points for OV 9 because, in addition to Ogburn, the police
officers involved in the pursuit of Wilburn and his cohorts could be counted as victims,
especially Lenz, whose vehicle was struck by the fleeing stolen car. The trial court’s decision
was not clearly erroneous. Although a defendant’s conduct after completion of the sentencing
offense does not relate back to the offense for the purpose of scoring OV 9, People v McGraw,
484 Mich. 120, 122; 771 NW2d 655 (2009), armed robbery is a transactional offense that
includes “ ‘acts that occur in an attempt to commit the larceny, or during commission of the
larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to
retain possession of the property.’ ” People v Chambers, 277 Mich. App. 1, 7 n 5; 742 NW2d 610
(2007), quoting MCL 750.530(2). “Accordingly, the course of an armed robbery includes the
robber’s conduct in fleeing the scene of the crime.” People v Mann, 287 Mich. App. 283, 287;
786 NW2d 876 (2010). Carjacking also includes acts that occur “in flight or attempted flight
after the commission of the larceny, or in an attempt to retain possession of the motor vehicle.”
MCL 750.529a(2). Although the police chase in this case occurred more than four hours after
defendants took Ogburn’s vehicle and cell phone, it is reasonable to infer that defendants were
fleeing the police after the commission of the larceny and were attempting to retain possession of
the stolen property.10 The trial court thus properly included Lenz as a victim in addition to
Ogburn because Lenz was placed in danger of physical injury or death when his vehicle was
rammed or sideswiped by the fleeing stolen vehicle occupied by defendants. Other police
officers who pursued the fleeing stolen vehicle at high rates of speed were also placed in danger
of physical injury or death. There was no clear error in assessing 10 points for OV 9.
Sanders and Wilburn next challenge the assessment of 15 points for OV 10. They contest
the finding of predatory conduct. OV 10 addresses the exploitation of a vulnerable victim. MCL
10
In seeking a directed verdict regarding certain weapons offense counts that he claimed were
duplicative, Wilburn’s counsel conceded below that the flight from police was part of the same
transaction as the underlying robbery and carjacking. A defendant may not “assign error on
appeal to something his own counsel deemed proper at trial. To do so would allow a defendant
to harbor error as an appellate parachute.” People v Green, 228 Mich. App. 684, 691; 580 NW2d
444 (1998) (citation omitted).
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777.40(1). The trial court must assess 15 points if predatory conduct was involved. MCL
777.40(1)(a). “ ‘Predatory conduct’ means preoffense conduct directed at a victim, or a law
enforcement officer posing as a potential victim, for the primary purpose of victimization.”
MCL 777.40(3)(a). A 15-point assessment is proper only if the preoffense conduct is commonly
understood as predatory in nature, such as lying in wait or 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.” People v Huston, 489
Mich. 451, 462; 802 NW2d 261 (2011) (quotation marks and citation omitted). Predatory
conduct does not have to be directed toward the particular or specific person who is ultimately
victimized. Id. at 459. In Huston, 489 Mich. at 454-455, 459-460, our Supreme Court concluded
that the defendant engaged in predatory conduct by lying in wait while armed and hidden from
view in a parking lot at night until a random person came along who could be robbed.
In deciding to assess 15 points for OV 10 in Sanders’s case, the trial court stated:
Okay. Well, I think it should be 15 because this was definitely predatory
conduct. They had stolen one car, and they were patrolling the streets looking for
another car to steal when they happened upon the victim, who just happened to be
coming from getting his car washed or the store. I don’t know what he was but he
was prey.
And then if you look at their statements, and I’m allowed to consider
things that were not presented, you know, that uncharged conduct when I scored
the guidelines. They were just on a crime spree preying on anybody that they
could find in concluding [sic: including] that unnamed, unknown victim who got
jacked and beat up at the stoplight for his fake Carties (sic) and his fake Rolex
watch. So I believe it should be 15 points, but your objection is duly noted for
this record, and Offense Variable 10 will be scored at 15 points.
Likewise, the trial court stated at Wilburn’s sentencing:
Offense Variable 10, exploitation of a vulnerable victim, they have that
scored at 0. I don’t believe that that’s accurately scored. I believe it should be
scored at 15 points ‘cause I think that they specifically targeted this elderly
gentleman, because he was in the right place at the right time, as they were
trolling the streets looking for someone else’s vehicle to steal so they could
continue their crime spree.
The trial court also expressed agreement with the following comments by the prosecutor:
Judge, I believe that 15 points would be accurate in that the testimony of
the witnesses was that after the, I believe it was the black Explorer, the Explorer
of the female victim was stolen, that the female victim came looking for her truck,
that she found Mr. Wilburn and Mr. Sanders inside of the truck.
They were aware that they were being looked for because they then ran
away from her inside of her truck. That they’re aware that not only the victim is
looking for them, but at this time the police officers are also looking for them, and
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so one of the statements of the defendants, I believe it was actually Mr. Campbell,
indicated that they needed to get out of the truck, basically, they needed to get out
of the female victim’s truck.
And so they’re looking for another vehicle to get into when they come into
contact with our male victim, Mr. Ogburn. And so when they see Mr. Ogburn
attempting to get inside of his vehicle, it’s then that they circle around and car
jack him and rob him. And so I believe 15 points scored by the Court would be
accurate.
The trial court properly assessed 15 points for OV 10. The evidence supports a
conclusion that Sanders and Wilburn were riding in a stolen black Explorer and that the owner of
that Explorer had seen them in it the night before, causing them to flee at a high rate of speed. It
is reasonable to infer that defendants were looking for another vehicle to steal so that they could
get out of the stolen black Explorer before being caught. While driving around with guns, they
came upon Ogburn, an older man who was in the process of getting into his burgundy Explorer.
After driving past Ogburn, defendants did a U-turn and came back to him, got out of the black
Explorer, and attacked him. In short, defendants were in effect “prowling” or patrolling the
streets looking for someone such as Ogburn whom they could victimize by taking his car, and
they did just that after passing him and then circling back to ambush him with guns. Defendants’
statements indicate that, after robbing and carjacking Ogburn, they disposed of the stolen black
Explorer, rode around in Ogburn’s burgundy Explorer, and robbed another, unknown person
who was stopped at a red light; this supports the conclusion that the victimization of Ogburn was
not merely opportunistic but was part of a predatory effort to find another vehicle to use so that
they could get out of the stolen black Explorer before being caught and then continue their crime
spree unabated. Therefore, the evidence supports the trial court’s finding of predatory conduct.
Wilburn challenges the assessment of 10 points for OV 14. OV 14 addresses the
offender’s role. MCL 777.44(1); People v Gibbs, 299 Mich. App. 473, 493; 830 NW2d 821
(2013). An assessment of 10 points is required if the defendant “was a leader in a multiple
offender situation.” MCL 777.44(1)(a). A leader is “a guiding or directing head of a group.”
People v Jones, 299 Mich. App. 284, 287; 829 NW2d 350 (2013), vacated in part on other
grounds by 494 Mich. 880 (2013) (quotation marks and citation omitted). A “multiple offender
situation” is “a situation consisting of more than one person violating the law while part of a
group.” Id. In scoring OV 14, the entire criminal transaction is considered. MCL 777.44(2)(a);
Gibbs, 299 Mich. App. at 493. If there were three or more offenders, then more than one offender
may be deemed to have been a leader. MCL 777.44(2)(b).
In deciding to assess 10 points for OV 14, the trial court stated:
Offense Variable 14, offender’s role in multiple offender’s situations.
They have that scored at 0 points, and I have said this before in every other case
and I’ll say it now. I think it should be scored at 10 because I believe, Mr.
Wilburn, I do. I believe you were the leader.
I believe that for whatever reason they were all following your lead, and I
don’t know how you came up with this plan or why you hatched it, but I believe
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the evidence supports in this case that you were the leader, and I believe it should
be scored at 10 points.
The trial court did not clearly err in assessing 10 points for OV 14. There is no question
that this case involved a multiple offender situation, given that Wilburn, Sanders, and Campbell
were engaged in criminal activities together. Wilburn’s own statement supports a reasonable
inference that he was acting as a leader. Wilburn said that “[w]e was already in this black Ford,
that my man had took from this lady I knew that lived on Glynn. He picked me up and we was
riding, in that stolen. We saw the old man in the burgundy Explorer, we turned around and took
his s---, too.” Wilburn said that they then got rid of the black Explorer and robbed another
person of his sunglasses and a Rolex watch. Wilburn described that robbery:
I had seen him take the glasses off his face while we was next to him at
the red light. We was in the burgundy Ford. I had that .22 cal on that one. We
got his glasses and Roley (sic) watch, and they was throwing s--- out of the
windows of the car, I was picking that s--- up too.
Wilburn’s description of the incident suggests that he was a leader. It was Wilburn who saw the
unnamed victim take sunglasses off his face; Wilburn and his cohorts then took that victim’s
sunglasses and Rolex watch; and the cohorts threw items out of the windows of this victim’s car,
which Wilburn picked up. A reasonable inference arises from Wilburn’s statement that he was
guiding or directing his cohorts. The trial court properly assessed 10 points for OV 14.
Wilburn next challenges the assessment of 25 points for OV 19. OV 19 addresses a
threat to the security of a penal institution or a court or interference with the administration of
justice or the rendering of emergency services. MCL 777.49. An assessment of 25 points is
required if “the offender by his or her conduct threatened the security of a penal institution or
court.” MCL 777.49(a). In scoring OV 19, a court may consider events that occurred after the
completion of the charged offense. People v Smith, 488 Mich. 193, 200; 793 NW2d 666 (2010).
Therefore, to properly assess 25 points under OV 19, it is unnecessary for the sentencing offense
itself to occur in, or to threaten the security of, a courthouse or penal institution. Id. at 200-201.
In deciding to assess 25 points for OV 19, the trial court stated:
First of all, the victim’s cell phone was stolen, and I think when victims [sic] cell
phones are stolen, that interferes with the administration of rendering of
emergency services because they can’t call for help.
And then we all remember Mr. Wilburn and his first incident where he
tried to distract us while his co-defendant Mr. . . . who was it Campbell?
DEPUTY: Campbell.
THE COURT: Armed himself with a pen, and we can’t forget Mr.
Wilburn tried to escape after the jury’s verdict. Well, I don’t know if he was
trying to escape or if he was just upset, but it definitely disrupted these court
proceedings, and we had to have extra deputies come in and Mr. Wilburn had to
be subdued by my deputies. And so for those reasons, based on his behavior both
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in this court, and during the sentencing offense, I believe it should be scored at 25
points over the objection of both the prosecutor and the defense.
The trial court did not clearly err in assessing 25 points for OV 19. The theft of Ogburn’s
cell phone did not threaten the security of the court or a penal institution, but the trial court’s
assessment of 25 points for OV 19 is supported by the other facts cited by the trial court. The
trial court reasonably concluded that Wilburn’s behavior in the courtroom presented a threat to
the security of the court. The trial court explained at numerous hearings what occurred in the ink
pen incident, i.e., that Wilburn created a distraction by coughing loudly as well as laughing and
that Campbell snuck an ink pen into his sleeve. Wilburn’s comments at sentencing effectively
admitted that the incident occurred but merely disputed the trial court’s inference concerning
why Wilburn was laughing, i.e., Wilburn denied that he was attempting to create a distraction so
that Campbell could arm himself. The trial court also explained another event that happened in
the courtroom; after the verdict was announced, Wilburn disrupted the court proceedings such
that additional deputies had to come into the courtroom to subdue him. At sentencing, Wilburn
admitted to having engaged in an altercation with the deputies in the courtroom. Given the trial
court’s explanation of what was observed in the courtroom and Wilburn’s own admissions, the
record amply supports the trial court’s finding that Wilburn threatened the security of the court.
Next, defendants argue that a Sixth Amendment violation occurred due to judicial fact-
finding in the scoring of OVs which increased their respective sentencing guidelines ranges. We
agree. To preserve an argument that a Sixth Amendment violation occurred due to judicial fact-
finding in the scoring of OVs, a defendant must raise an objection on that ground at sentencing
or in a motion for resentencing or a motion to remand. See Steanhouse, 313 Mich. App. at 42;
People v Terrell, 312 Mich. App. 450, 464; 879 NW2d 294 (2015), held in abeyance by ___ Mich
___; 878 NW2d 480 (2016). Although defendants objected to the scoring of various OVs at
sentencing, they did not object on the ground of a Sixth Amendment violation. Defendants did
not move for resentencing. Sanders raised the Sixth Amendment issue in a motion to remand,
which this Court denied. People v Sanders, unpublished order of the Court of Appeals, entered
March 23, 2016 (Docket No. 327060). Campbell and Wilburn did not file a motion to remand.
Therefore, the issue is unpreserved for Campbell and Wilburn but preserved for Sanders.
A Sixth Amendment challenge presents a question of constitutional law that is reviewed
de novo. People v Lockridge, 498 Mich. 358, 373; 870 NW2d 502 (2015). Unpreserved
constitutional issues are reviewed for plain error affecting substantial rights. Carines, 460 Mich.
at 763-764.
In Lockridge, 498 Mich. at 364, our Supreme Court held that Michigan’s sentencing
guidelines are constitutionally deficient under the Sixth Amendment to the extent that “the
guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the
jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines
minimum sentence range, i.e. the ‘mandatory minimum’ sentence under Alleyne [v United States,
570 US ___; 133 S. Ct. 2151; 186 L. Ed. 2d 314 (2013)].” As a remedy for this constitutional
violation, our Supreme Court “sever[ed] MCL 769.34(2) to the extent that it makes the
sentencing guidelines range as scored on the basis of facts beyond those admitted by the
defendant or found by the jury beyond a reasonable doubt mandatory.” Lockridge, 498 Mich. at
364. The Court also struck “down the requirement in MCL 769.34(3) that a sentencing court that
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departs from the applicable guidelines range must articulate a substantial and compelling reason
for that departure.” Id. at 364-365. The Court held “that a guidelines minimum sentence range
calculated in violation of Apprendi [v New Jersey, 530 U.S. 466; 120 S. Ct. 2348; 147 L. Ed. 2d 435
(2000),] and Alleyne is advisory only and that sentences that depart from that threshold are to be
reviewed by appellate courts for reasonableness.” Lockridge, 498 Mich. at 365. Courts must
continue to determine the applicable guidelines range and take it into account at sentencing. Id.
For cases held in abeyance for Lockridge, virtually all of which involved challenges that
were not preserved in the trial court, our Supreme Court held that when facts admitted by the
defendant and facts found by the jury were sufficient to assess the minimum number of OV
points needed for the defendant’s score to fall within the cell of the sentencing grid under which
he was sentenced, then the defendant has suffered no prejudice from any error, no plain error has
occurred, and no further inquiry is warranted. Lockridge, 498 Mich. at 394-395. However, a
defendant’s Sixth Amendment right is impaired if the “facts admitted by a defendant or found by
the jury verdict were insufficient to assess the minimum number of OV points necessary for the
defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced.”
Id. at 395. “[A]ll defendants (1) who can demonstrate that their guidelines minimum sentence
range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences
were not subject to an upward departure can establish a threshold showing of the potential for
plain error sufficient to warrant a remand to the trial court for further inquiry.” Id. “[I]n cases in
which a defendant’s minimum sentence was established by application of the sentencing
guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the
trial court to determine whether that court would have imposed a materially different sentence
but for the constitutional error.” Id. at 397. Such a remand (known as a Crosby remand) is
warranted only in cases in which the defendant was sentenced on or before July 29, 2015, the
date of the Lockridge decision. Id.11 On remand,
a trial court should first allow a defendant an opportunity to inform the court that
he or she will not seek resentencing. If notification is not received in a timely
manner, the court (1) should obtain the views of counsel in some form, (2) may
but is not required to hold a hearing on the matter, and (3) need not have the
defendant present when it decides whether to resentence the defendant, but (4)
must have the defendant present, as required by law, if it decides to resentence the
defendant. Further, in determining whether the court would have imposed a
materially different sentence but for the unconstitutional constraint, the court
should consider only the circumstances existing at the time of the original
sentence. [Id. at 398 (quotation marks and citations omitted).]
As discussed, although this issue is unpreserved for Campbell and Wilburn, Sanders
preserved his Lockridge issue by raising it in a motion to remand. In People v Stokes, 312 Mich.
11
For defendants sentenced after the Lockridge decision, traditional plain-error review will
apply. Lockridge, 498 Mich. at 397. In the present case, defendants were sentenced before the
date of the Lockridge decision.
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App 181, 198; 877 NW2d 752 (2015), held in abeyance by ___ Mich ___; 878 NW2d 886
(2016), this Court explained that a preserved Lockridge error is not structural and is therefore
subject to the harmless beyond a reasonable doubt standard. This Court further held that in order
to determine whether a preserved Lockridge error was harmless, the Crosby remand procedure
described in Lockridge must be followed. Id. at 198-199. That is, the Crosby remand procedure
applies to both preserved and unpreserved pre-Lockridge sentencing errors. Id. at 200-202.
Campbell asserts a Lockridge error, claiming that the trial court did not find facts beyond
a reasonable doubt to support some of his OV scores. The prosecutor agrees that OVs 4, 7, 9, 10,
and 19 were not scored on the basis of facts admitted by defendant or found beyond a reasonable
doubt, and that without the scoring of those OVs, Campbell’s guidelines range would be
reduced, entitling him to a Crosby remand. We agree.
The trial court assessed 10 points for OV 4 to Campbell. A trial court must assess 10
points for OV 4 if “[s]erious psychological injury requiring professional treatment occurred to a
victim.” MCL 777.34(1)(a). The trial court (which was the trier of fact in Campbell’s bench
trial) made no finding beyond a reasonable doubt and Campbell made no admission that a victim
suffered a serious psychological injury. It is not an element of the offenses of which Campbell
was convicted. The trial court’s assessment of 10 points for OV 4 was based on judicial fact-
finding by a preponderance of the evidence.
The trial court assessed 50 points for OV 7 to Campbell. As of the date of sentencing, the
trial court was required to assess 50 points for OV 7 if “[a] victim was treated with sadism,
torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a
victim suffered during the offense[.]” MCL 777.37(1)(a). The trial court made no finding
beyond a reasonable doubt and Campbell made no admission that a victim was treated with
sadism, torture, or excessive brutality or conduct designed to substantially increase a victim’s
fear and anxiety. It is not an element of the offenses of which Campbell was convicted. The
trial court’s assessment of 50 points for OV 7 was based on judicial fact-finding by a
preponderance of the evidence.
The trial court assessed 10 points for OV 9 to Campbell. A trial court must assess 10
points if “there were 2 to 9 victims who were placed in danger of physical injury or death . . . .”
MCL 777.39(1)(c). The trial court did not find beyond a reasonable doubt and Campbell did not
admit that there were two to nine victims. There was no element of the offenses of which
Campbell was convicted that establishes that there were two to nine victims. The trial court’s
assessment of 10 points for OV 9 was based on judicial fact-finding by a preponderance of the
evidence.
The trial court assessed 15 points for OV 10 to Campbell. A trial court must assess 15
points for OV 10 if predatory conduct was involved. MCL 777.40(1)(a). The trial court did not
find beyond a reasonable doubt and Campbell did not admit that there was predatory conduct. It
is not an element of the sentencing offenses. The trial court’s assessment of 15 points for OV 10
was based on judicial fact-finding by a preponderance of the evidence.
The trial court assessed 25 points for OV 19. An assessment of 25 points is required if
“the offender by his or her conduct threatened the security of a penal institution or court.” MCL
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777.49(a). The trial court did not find beyond a reasonable doubt and Campbell did not admit
that he threatened the security of a penal institution or court.12 It is not an element of the
sentencing offenses. This assessment was based on judicial fact-finding by a preponderance of
the evidence.
Subtracting 10 points from the OV 4 score, 50 points from the OV 7 score, 10 points
from the OV 9 score, 15 points from the OV 10 score, and 25 points from the OV 19 score,
reduces Campbell’s total OV score from 155 points to 45 points. This changes his OV level
from VI to III, causing his sentencing cell to change from D-VI to D-III on the Class A grid. His
sentencing guidelines range would then become 108 to 180 months, instead of the originally
calculated range of 171 to 285 months. See MCL 777.62. It follows, then, that facts admitted by
Campbell or found beyond a reasonable doubt at trial were insufficient to assess the minimum
number of OV points necessary for Campbell’s score to fall within the cell of the sentencing grid
under which he was sentenced. Campbell’s minimum sentence of 15 years for armed robbery
did not constitute an upward departure from the originally calculated guidelines range of 171 to
285 months. It is therefore necessary to remand Campbell’s case to the trial court in accordance
with the Crosby remand procedure.
In Sanders’s case, the trial court likewise engaged in judicial fact-finding in assessing 10
points for OV 4, 50 points for OV 7, 10 points for OV 9, 15 points for OV 10, and 10 points for
OV 19. Subtraction of these points reduces Sanders’s total OV score from 125 points to 30
points. This changes his OV level from VI to II, causing his sentencing cell to change from D-
VI to D-II on the Class A grid.13 His sentencing guidelines range as a second habitual offender
would then become 81 to 168 months, instead of the originally calculated range of 171 to 356
months. See MCL 777.62; MCL 777.21(3)(a). Therefore, facts admitted by Sanders or found
beyond a reasonable doubt by the jury were insufficient to assess the minimum number of OV
points necessary for Sanders’s score to fall within the cell of the sentencing grid under which he
was sentenced. Sanders’s minimum sentence of 23.75 years for armed robbery did not constitute
an upward departure from the originally calculated guidelines range of 171 to 356 months. It is
therefore necessary to remand Sanders’s case to the trial court for the Crosby remand procedure.
Wilburn also is entitled to a Crosby remand, as the prosecutor again concedes. The trial
court used judicial fact-finding to assess 10 points for OV 4, 50 points for OV 7, 10 points for
OV 9, 15 points for OV 10, 10 points for OV 14, and 25 points for OV 19.14 Subtraction of these
12
At sentencing, Campbell’s attorney conceded that Campbell tried to take a pen but denied that
Campbell intended to pose a danger to the court or court staff, claiming that taking the pen was
merely “an act of stupidity” that Campbell thought was “funny.”
13
Sanders cursorily asserts there was also judicial fact-finding in the assessment of five points
each for OV 3 (physical injury to victim) and OV 12 (contemporaneous felonious criminal acts),
but subtraction of 10 more OV points would still place him in the D-II cell. See MCL 777.62.
14
As discussed earlier, Wilburn admitted at sentencing some facts that were pertinent to the
assessment of 25 points for OV 19. Wilburn did not, however, admit that his actions comprised
a threat to the security of the court. Rather, it was the trial court’s reasonable inference from the
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points reduces Wilburn’s total OV score from 180 points to 60 points. This changes his OV
level from VI to IV, causing his sentencing cell to change from D-VI to D-IV on the Class A
grid. His sentencing guidelines range as a third habitual offender would then become 126 to 315
months, instead of the originally calculated range of 171 to 427 months. See MCL 777.62; MCL
777.21(3)(b). Therefore, facts admitted by Wilburn or found beyond a reasonable doubt by the
jury were insufficient to assess the minimum number of OV points necessary for Wilburn’s score
to fall in the cell of the sentencing grid under which he was sentenced. Wilburn’s minimum
sentence of 35.5 years for armed robbery did not constitute an upward departure from the
originally calculated guidelines range of 171 to 427 months. It is therefore necessary to remand
Wilburn’s case to the trial court for the Crosby remand procedure.
Next, Sanders argues that his armed robbery and carjacking sentences are invalid because
the trial court imposed the 75-year maximum sentences on the basis of a misconception of the
law. The determination whether a sentence is invalid presents a question of law, which is
reviewed de novo. See People v Miles, 454 Mich. 90, 96; 559 NW2d 299 (1997).
At Sanders’s sentencing hearing, the trial court originally stated that it was sentencing
Sanders to 23.75 years to life in prison for armed robbery and carjacking. Later, the following
exchange occurred concerning the maximum sentence:
MR. GERARD [prosecutor]: Your Honor, just to clarify his tail on this is
life, you’re not setting a term of years?
THE COURT: Oh, I don’t know that confuses me.
MS. LEWIS [Sanders’s counsel]: You determine the years (sic).
THE COURT: I do.
MS. LEWIS: Yeah.
THE COURT: Oh, okay. Well, we’ll make it 75, ‘cause yeah it has to be.
MS. LEWIS: Two-thirds –
COURT REPORTER: It has to be two-thirds through?
THE COURT: And you have to reasonably be able to service it.
MS. GERARD: To serve it.
MS. LEWIS: Right.
MS. GERARD: Correct.
facts regarding what occurred in the courtroom that led to this assessment. Hence, the
assessment of 25 points for OV 19 was not based entirely on Wilburn’s admissions.
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THE COURT: And you’re 29 so I think you’ll reasonably be able to serve
that, but If [sic] I’m wrong the Court of Appeals I’ll [sic] tell me.
MS. GERARD: Thank you, Judge.
THE COURT: I hope I got it right, I mess these up all the time.
Sanders asserts that the trial court imposed the maximum sentence of 75 years in an
apparent effort to comply with the Tanner rule that a minimum sentence may not exceed 2/3 of
the maximum sentence. See People v Tanner, 387 Mich. 683, 690; 199 NW2d 202 (1972).
Sanders argues that the trial court’s arithmetic was faulty because Sanders’s minimum sentence
of 23.75 years is less than 1/3 of the maximum sentence of 75 years. Sanders notes that the
Tanner rule is inapplicable when the statutory maximum punishment is life imprisonment or any
term of years. See People v Floyd, 490 Mich. 901, 902; 804 NW2d 564 (2011). The relevant
sentencing offenses in this case, armed robbery and carjacking, are punishable by imprisonment
for life or any term of years, MCL 750.529; MCL 750.529a, thereby making the Tanner rule
inapplicable, Floyd, 490 Mich. at 902. Because a sentence is invalid if it is based on a
misconception of the law, Miles, 454 Mich. at 96, Sanders claims that his sentence is invalid.
The trial court did not state that it was applying the Tanner rule. The term “two-thirds”
was used at sentencing only by defense counsel and the court reporter. Nonetheless, the trial
court’s comments could be interpreted as suggesting an erroneous belief that the Tanner rule was
applicable. It is not clear what the trial court meant when the court said, “Well, we’ll make it 75,
‘cause yeah it has to be.” After the trial court said this, defense counsel and the court reporter
used the term “two-thirds[,]” and the trial court did not explain further its reasoning on the
matter. Because we are ordering a Crosby remand as discussed earlier, we agree with the
prosecutor that, in addition to following the Crosby remand procedures, the trial court on remand
should also clarify whether the trial court at sentencing was relying on the Tanner rule to set the
maximum sentences. If the trial court was erroneously applying the Tanner rule to set the
maximum sentences, then the trial court shall resentence Sanders on armed robbery and
carjacking because those sentences would be based on a misconception of the law.
Finally, Wilburn argues that the trial court erred in making his felony-firearm sentences
consecutive to his sentence for carrying a concealed weapon. We agree. Because this issue is
unpreserved, our review is for plain error affecting substantial rights. Carines, 460 Mich. at 763.
A sentence for felony-firearm is to be served consecutively only to a sentence for a
predicate felony of the felony-firearm conviction. People v Clark, 463 Mich. 459, 463-464; 619
NW2d 538 (2000). Carrying a concealed weapon may not serve as a predicate felony of a
felony-firearm conviction. MCL 750.227b(1); People v Cortez, 206 Mich. App. 204, 207; 520
NW2d 693 (1994). Therefore, the trial court plainly erred in ordering Wilburn’s carrying a
concealed weapon sentence to run consecutively to his felony-firearm sentences, and the error
affected Wilburn’s substantial rights. The prosecutor confesses error on this issue. Accordingly,
the trial court on remand shall amend Wilburn’s judgment of sentence to provide that his felony-
firearm sentences run concurrently with his carrying a concealed weapon sentence.
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We affirm defendants’ convictions. With respect to defendants’ sentences, we remand
the cases for implementation of the Crosby remand procedure and for various corrections and
clarification on sentencing issues as discussed in this opinion. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
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