People of Michigan v. Randall Raymond Ball ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 19, 2019
Plaintiff-Appellee,
v No. 340019
Shiawassee Circuit Court
RANDALL RAYMOND BALL, LC No. 2017-009489-FH
Defendant-Appellant.
Before: SAWYER, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Defendant, Randall Raymond Ball, appeals as of right his jury conviction of aggravated
stalking, MCL 750.411i. The trial court departed from the recommended minimum guidelines
range of 14 to 58 months and sentenced defendant as a fourth-offense habitual offender, MCL
769.12, to serve 20 to 30 years in prison. We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
The victim, a 21-year-old cosmetologist, testified that she first met defendant in
December 2016 when he entered the salon where she worked as a walk-in customer and she gave
him a haircut. Defendant returned a week later to get the haircut “fixed,” and he also returned
for another haircut in January. Subsequently, defendant began contacting the victim for
noncommercial purposes, including showing her photos, inviting her to accompany him to
Walmart, approaching her while she was shopping, and leaving a note on the victim’s car outside
of the salon. The note referenced not only where the victim lived, but also the route she took
home, although the victim had not shared these details with defendant. The note also encouraged
the victim to call him. When her employer told the victim that there was nothing the salon could
do, she contacted the police, who in turn contacted defendant at the phone number indicated in
the note. Defendant subsequently admitted to each of these contacts.
Prior to trial, the trial court considered the proposed admission of other-acts evidence
concerning defendant’s behavior at two other similar businesses. Relevant to this appeal, the
trial court permitted the prosecution to present evidence of a note that defendant left on the car of
a patron at a tanning salon in 2008 after breaking into the car; however, the trial court would not
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allow admission of the note itself or references to the fact that it included a threat to rape the
recipient. Nevertheless, in defendant’s first trial, the recipient of the 2008 note testified that the
note defendant left in her car was “sexually threatening.” Defendant moved for a mistrial. The
prosecution conceded that it believed this characterization of the note was appropriate under the
trial court’s order. The trial court denied defendant’s motion and struck the testifying witness’s
entire testimony. Subsequently, the prosecution “joined” defendant’s motion for a mistrial, and
the trial court granted a mistrial only after defendant expressed consent to mistrial and to a
retrial.
Defendant subsequently moved to bar retrial based on prosecutorial misconduct in
goading defendant to seek a mistrial, but the trial court found that the prosecutor’s conduct was
at best negligent and denied defendant’s motion. On retrial, the owner of the tanning salon
testified that defendant had left a “sexually threatening” note on a patron’s car. The witness
admitted that it was her error. The trial court denied defendant’s motion for a mistrial, instead
instructing the jury to disregard the witness’s response.
The jury found defendant guilty of aggravated stalking and the trial court subsequently
sentenced defendant to 20 to 30 years’ imprisonment.
II. DOUBLE JEOPARDY
Defendant first argues that the constitutional protection against double jeopardy should
have prevented a retrial after defendant’s first trial ended in a mistrial caused by prosecutorial
misconduct. This argument lacks merit.
“A double-jeopardy challenge presents a question of constitutional law that this Court
reviews de novo.” People v Ream, 481 Mich. 223, 226; 750 NW2d 536 (2008). Further, this
Court reviews issues of prosecutorial misconduct de novo “to determine whether the defendant
was denied a fair and impartial trial.” People v Bennett, 290 Mich. App. 465, 475; 802 NW2d 627
(2010) (quotation marks and citations omitted). A trial court’s factual findings pertaining to
whether the prosecutor sought to goad a defendant into seeking a mistrial are reviewed for clear
error. People v Dawson, 431 Mich. 234, 258; 427 NW2d 886 (1988). “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.” People v Mullen, 282 Mich. App. 14,
22; 762 NW2d 170 (2008).
The Michigan Constitution and the Fifth Amendment of the United States Constitution
protect a criminal defendant from being placed twice in jeopardy for a single offense. People v
Booker (After Remand), 208 Mich. App. 163, 172; 527 NW2d 42 (1994), citing Dawson, 431
Mich. at 250. See US Const, Am V; Const 1963, art 1, § 15. Michigan’s double-
jeopardy provision was intended to be “construed consistently with Michigan precedent and the
Fifth Amendment.” People v Szalma, 487 Mich. 708, 715-716; 790 NW2d 662 (2010) (quotation
marks and citation omitted). However, the Double Jeopardy Clauses will not typically serve as a
bar to retrial when a defendant requests, or consents to, a mistrial; under those circumstances, the
defendant’s actions are viewed as having waived a resulting double jeopardy claim. Dawson,
431 Mich. at 253. Further, “[w]here a mistrial results from apparently innocent or even negligent
prosecutorial error, or from factors beyond his control, the public interest in allowing a retrial
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outweighs the double jeopardy bar.” Id. at 257. Rather, retrial is only barred if, based on the
objective facts and circumstances, the trial court finds that “the prosecutor intended to goad
defendant into moving for a mistrial.” Id.
Relevant to the case at hand, retrial following a mistrial is permitted when the defendant
requests or consents to the declaration of a mistrial. People v Lett, 466 Mich. 206, 214; 644
NW2d 743 (2002). But it is not permitted when “the prosecutor has engaged in conduct intended
to provoke or ‘goad’ the mistrial request.” Id.; see also Dawson, 431 Mich. at 253 (“Where a
defendant’s motion for mistrial is prompted by intentional prosecutorial misconduct, . . . the
defendant may not, by moving for a mistrial, have waived double jeopardy protection.”).
Accordingly, prosecutorial misconduct standing alone is insufficient to trigger double jeopardy
protections; the prosecutor must have intended to push the defendant into a corner leaving
mistrial as the only escape. Oregon v Kennedy, 456 U.S. 667; 102 S. Ct. 2083; 72 L. Ed. 2d 416
(1982). In determining the prosecution’s intent, the trial court should rely on “the objective facts
and circumstances of the particular case.” Dawson, 431 Mich. at 257.
As recognized by our Supreme Court, “[t]he ‘goad the defendant into moving for a
mistrial’ standard ‘calls for a finding of fact by the court . . . , an inquiry for which the trial court
is best suited.’ ” Dawson, 431 Mich. at 258 n 57, quoting United States v Posner, 764 F2d 1535,
1539 (CA 11, 1985) (ellipsis in original). In this case, subsequent to the trial court’s grant of a
mistrial, defendant filed a motion for an evidentiary hearing and argued that retrial was barred by
the prosecutorial misconduct. Following a hearing on the matter, the trial court explained that
retrial was not barred because the mistrial was not caused by the prosecutor’s intentional
misconduct. The trial court indicated that the evidence did not support a finding that the
prosecutor “intended to subvert the Double Jeopardy Clause,” but that the prosecutor believed
the witness’s statements were within the scope of the court’s order. The trial court found that the
prosecutor’s conduct was negligent. Furthermore, the trial court noted that defendant “freely and
voluntarily” agreed to be retried, “and not on the basis on any goading by the People.”
We agree that in this case, there is no evidence that the prosecution’s request to join the
first motion for retrial goaded defendant into requesting a mistrial. As previously discussed, the
trial court inquired of defendant whether he was requesting a mistrial, and defendant stated his
express agreement to a mistrial and a retrial. Furthermore, defendant confirmed that he was not
threatened or coerced into making the request. Defendant’s agreement to a retrial affirmatively
waived any double-jeopardy arguments against retrial, thus extinguishing appellate objections.
See People v Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000) (“One who waives his rights
under a rule may not then seek appellate review of a claimed deprivation of those rights, for his
waiver has extinguished any error.”) (quotation marks and citation omitted). However, even if
this issue had not been affirmatively waived by defendant, it would not warrant appellate relief
because the prosecutor’s conduct was negligent, but not intentional.
Defendant also argues that the prosecutor acknowledged during the retrial that
prosecutorial misconduct caused the first mistrial. Defendant argues that on this basis, defense
counsel’s initial motion for a mistrial was erroneously denied. Defendant suggests that this
improper denial resulted in defendant’s consent for retrial and that his agreement and consent to
a retrial should therefore be disregarded. Specifically, defendant points to the prosecutor’s
statement that “this [sic] exactly the same issue that gave arise [sic] to our prior mistrial;
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however, there, that was prosecutorial misconduct.” However, we note that the prosecutor
quickly clarified, “Not intentional, but with the assumption that that term could be used.”
Accordingly, the statements by the prosecutor only admit the same negligent conduct by the
prosecutor already considered by the trial court and do not support a finding that the trial court
erred by denying defendant’s original motion for a mistrial.
III. INSUFFICIENCY OF THE EVIDENCE
Next, defendant argues that insufficient evidence was presented to prove that defendant
committed aggravated stalking as defined in MCL 750.411i because defendant did not know that
his contacts were nonconsensual and the victim never asked him to stop contact. Furthermore,
defendant argues that he never threatened the victim. Defendant’s arguments are misplaced.
This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence.
People v Perry, 317 Mich. App. 589, 599; 895 NW2d 216 (2016). The evidence is reviewed in a
light most favorable to the prosecutor to determine whether any trier of fact could find the
essential elements of the crime were proven beyond a reasonable doubt. Id. In reviewing the
sufficiency of the evidence, this Court must not interfere with the jury’s role as the trier of fact.
People v Hardiman, 466 Mich. 417, 431; 646 NW2d 158 (2002).
“Aggravated stalking” involves stalking and an additional aggravating factor such as a
previous conviction for stalking. MCL 750.411i(2)(d). MCL 750.411i(1)(e) defines “stalking”
as “a willful course of conduct involving repeated or continuing harassment of another individual
that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened,
harassed, or molested and that actually causes the victim to feel terrorized, frightened,
intimidated, threatened, harassed, or molested.” “Harassment” is defined in MCL
750.411h(1)(c) as “conduct directed toward a victim that includes, but is not limited to, repeated
or continuing unconsented contact that would cause a reasonable individual to suffer emotional
distress and that actually causes the victim to suffer emotional distress.” As used in the
definition of “harassment,” “unconsented contact” is defined to mean “any contact with another
individual that is initiated or continued without that individual’s consent or in disregard of that
individual’s expressed desire that the contact be avoided or discontinued.” MCL 750.411h(1)(e)
(emphasis added). Unconsented contact includes, but is not limited to:
(i) Following or appearing within the sight of that individual.
(ii) Approaching or confronting that individual in a public place or on private
property.
(iii) Appearing at that individual’s workplace or residence.
(iv) Entering onto or remaining on property owned, leased, or occupied by that
individual.
(v) Contacting that individual by telephone.
(vi) Sending mail or electronic communications to that individual.
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(vii) Placing an object on, or delivering an object to, property owned, leased, or
occupied by that individual. [Id. (emphasis added).]
There must be evidence of two or more acts of unconsented contact that caused the victim to
suffer emotional distress and that would cause a reasonable person to suffer emotional distress.
MCL 750.411h(1)(a); Hayford v Hayford, 279 Mich. App. 324, 330; 760 NW2d 503 (2008).
“ ‘Emotional distress’ means significant mental suffering or distress that may, but does not
necessarily, require medical or other professional treatment or counseling.” MCL
750.411h(1)(b).
It is undisputed that defendant’s contacts as a paying customer of the salon are not at
issue in this case. However, the victim also testified concerning three other instances where
defendant initiated contact outside of the patron-client relationship. She testified that in January
2017, defendant came into the salon near closing time when she was alone to show her a picture
on his phone of a salon that shared her same first name and inquire whether she had moved. This
caused the victim to become concerned. About a week later, defendant returned near closing
time, when she was alone again, and offered her money to go with him to Walmart. The victim
informed him that she was not interested, and defendant left. However, at that point, the victim
was terrified. Defendant returned about another week later with the same offer, and the victim
once again declined. On one of these occasions, after closing the shop, the victim was in the
makeup aisle at Walmart when defendant approached her with an empty cart. She described the
encounter as “nerve-racking.”
Lastly, on Valentine’s Day, the victim went out with a coworker after work and found a
note on her car when she returned to the salon’s parking lot. The victim became concerned that
an older man was taking such interest in her and became “terrified and frightened.” The note
referenced the victim’s home. However, the victim testified, while she and defendant had
exchanged “small talk,” she never volunteered where she lived or what kind of car she drove.
The victim testified that, since receiving the note, she was “terrified to go to places by [herself],”
she attended therapy, and it was hard for her to be around people. She also no longer closed the
store by herself.
As noted above, “unconsented contact” includes two categories of contact—1) contact
that is initiated or continued without that individual’s consent, or 2) contact that is in disregard of
that individual’s expressed desire that the contact be avoided or discontinued. MCL
750.411h(1)(e). Defendant’s unconsented contacts with the victim at her workplace and by
means of placing a note on her car fall within the categories of unconsented contacts specifically
identified by the Legislature. MCL 750.411h(1)(e)(iii) and (vii).
Further, the victim’s testimony also supports a finding that there were two or more acts of
unconsented contact that caused her to suffer emotional distress. That defendant didn’t threaten
the victim is not dispositive of whether she suffered emotional distress. Rather, the statute
requires only that a reasonable person feel terrorized, frightened, intimidated, threatened,
harassed, or molested, and that the victim felt terrorized, frightened, intimidated, threatened,
harassed, or molested. MCL 750.411i(e). As noted above, the victim testified that she felt
“terrified and frightened” by defendant’s contacts. Viewed from a totality-of-circumstances
perspective, these contacts would cause a reasonable person to suffer emotional distress. See
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MCL 750.411h(1)(a). As a whole, the evidence, when viewed in a light most favorable to the
prosecution, would justify a rational jury’s finding that defendant willfully engaged in
aggravated stalking. See Perry, 317 Mich. App. at 599.
IV. EVIDENCE OF OTHER ACTS
Defendant argues that the trial court abused its discretion when it allowed evidence of the
2008 conduct because the conduct was not similar in nature, in that the note left on this victim’s
car was not threatening. Defendant additionally argues that the trial court abused its discretion in
admitting evidence that he was being electronically monitored by tether when he drove by the
victim’s home. We disagree.
“The admissibility of other acts evidence is within the trial court’s discretion and will be
reversed on appeal only when there has been a clear abuse of discretion.” People v Waclawski,
286 Mich. App. 634, 670; 780 NW2d 321 (2009). “A court abuses its discretion when it chooses
an outcome that is outside the range of reasonable and principled outcomes.” People v Orr, 275
Mich. App. 587, 588-589; 739 NW2d 385 (2007). “The determination whether the probative
value of evidence is substantially outweighed by its prejudicial effect is best left to a
contemporaneous assessment of the presentation, credibility, and effect of the testimony.”
Waclawski, 286 Mich. App. at 670.
Even if properly preserved, error in the admission of bad-acts evidence does not require
reversal unless it affirmatively appears that it is more probable than not that the error was
outcome determinative. People v Knapp, 244 Mich. App. 361, 378; 624 NW2d 227 (2001). The
defendant bears the burden of establishing that, more probably than not, a miscarriage of justice
occurred. Id.
“Generally, character evidence cannot be used to show that a defendant acted in
conformity therewith because there is a danger that a defendant will be convicted solely on his
history of misconduct rather than on his conduct in a particular case.” People v Henry, 315 Mich
App 130, 140; 889 NW2d 1 (2016). Use of bad acts as evidence of character is excluded, except
as allowed by MRE 404(b), to avoid the danger of conviction based on a defendant’s history of
misconduct. People v Johnigan, 265 Mich. App. 463, 465; 696 NW2d 724 (2005). MRE 404(b)
generally governs the admission of evidence of bad acts. It provides, in relevant part:
(1) 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,
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.
“MRE 404(b) does not prohibit all other-acts evidence that may give rise to an inference about
the defendant’s character, but only that which is relevant solely to the defendant’s character or
criminal propensity.” People v Jackson, 498 Mich. 246, 276; 869 NW2d 253 (2015) (quotation
marks and citation omitted). Other-acts evidence is admissible under MRE 404(b) if: “(1) it is
offered for a proper purpose, (2) it is relevant, and (3) its probative value is not substantially
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outweighed by its potential for unfair prejudice.” Henry, 315 Mich. App. at 140-141.
Furthermore, evidence is not subject to MRE 404(b) analysis merely because it discloses a bad
act; bad acts can be relevant as substantive evidence, admissible under MRE 401, without regard
to MRE 404. People v Houston, 261 Mich. App. 463, 468-469; 683 NW2d 192 (2004). The list
of exceptions in MRE 404(b) is nonexclusive. People v Engelman, 434 Mich. 204, 212; 453
NW2d 656 (1990).
To be admissible under MRE 404(b), bad-acts evidence generally (1) must be offered for
a proper purpose, (2) must be relevant, and (3) must not have a probative value substantially
outweighed by its potential for unfair prejudice. People v Knox, 469 Mich. 502, 509; 674 NW2d
366 (2004). A proper purpose is one other than establishing the defendant’s character and
propensity to commit the offense. Johnigan, 265 Mich. App. at 465. The prosecutor bears the
burden of establishing relevance. People v Mardlin, 487 Mich. 609, 615; 790 NW2d 607 (2010).
The trial court must closely scrutinize the logical relationship between the evidence and the fact
in issue. Orr, 275 Mich. App. at 589. Evidence of misconduct similar to that charged is logically
relevant to show that the charged act occurred if the uncharged misconduct and the charged
offense are sufficiently similar to support an inference that they were manifestations of a
common plan, scheme, or system. People v Dobek, 274 Mich. App. 58, 90; 732 NW2d 546
(2007).
In this case, prior to trial, the prosecution provided notice of its intent to use evidence of
defendant’s movements as recorded by his GPS tether. Furthermore, the prosecution filed a
notice of intent to introduce 404(b) evidence. Defendant objected. Following a hearing, the trial
court held the evidence that defendant was on a tether was admissible; however, any mention of
the reason for the tether or mention of defendant’s parole status was excluded. The testifying
agent was also prohibited from testifying that he worked for the Department of Corrections.
Furthermore, limiting instructions were to be submitted by the parties to instruct the jury that it
was not to speculate as to the reason for the tether, but rather only consider it as evidence that
defendant drove past the victim’s home. The trial court also required any reports to be redacted
to exclude defendant’s parole status and sex offender registration status. Additionally, the trial
court indicated that defendant’s handwritten note in the prior case was relevant to show a
common scheme, but the note was not itself admissible. The trial court disallowed use of the
contents of the letter; however, the note could be described as “threatening.”
A witness who worked at a tanning salon testified that in February 2017 she noticed an
individual parked outside the salon several times and eventually contacted the police. The
responding officer testified that he was dispatched to the tanning salon and that the vehicle at
issue was occupied by defendant. Defendant informed the officer that he had been to the salon to
tan but “he couldn’t find his membership card to go tanning, and that’s why he didn’t go in.”
However, the tanning salon owner testified that defendant tanned at the salon only once, in 2016,
and did not have a tanning membership. Further, she testified that no membership cards were
issued to customers.
Another tanning salon worker testified that in 2008 she noticed defendant sitting in his
car outside that salon more than two dozen times. One day a note was left on a customer’s car,
which caused her to contact the police. The tanning salon worker testified that she made a police
report, and defendant was identified and interviewed, but never detained. The tanning salon
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manager also confirmed that she was made aware of by her employees and witnessed a
suspicious vehicle in the parking lot; however, she could not identify the driver.
The tanning salon customer testified that in July 2008, someone got into her car and left a
note in it while she frequented the tanning salon. The note was threatening in nature, and the
police were called. The assigned detective identified the driver as defendant. At the time of his
identification, defendant had a pocket knife in his possession. An inventory search of his vehicle
also revealed binoculars, handcuffs, bleach, work gloves, and two axes.
Relevant to the present case, the agent responsible for monitoring defendant’s GPS tether
testified that defendant traveled at approximately 14 miles per hour by the victim’s house in
January 2017 and had been in the parking lot at the hair salon 52 times, for varying amounts of
time, between December 14, 2016 and February 14, 2017.
Defendant’s argument essentially ignores the multiple similarities between defendant’s
prior conduct and the charged offense. Witnesses from both the 2008 and 2017 incidents
reported that defendant was repeatedly parked in the parking lot of these businesses. GPS
tracking corroborated that the same circumstances occurred in this case. These events occurred
outside of businesses related to the beauty industry. The complainants in these prior incidents
were either employees or patrons of the businesses. Accordingly, the GPS information was
relevant in establishing that defendant also repeatedly frequented the parking lot in this case.
Further, like the present case, the 2008 incident also involved a note being left on or in a
vehicle. While the threatening message in the 2008 note was more direct, the note left for
defendant’s most recent victim contained threatening undertones because it suggested that
defendant knew not only which vehicle the victim drove, but also where she lived and which
route she took home. In whole, the letter implied that defendant was surveilling the victim.
Therefore, the GPS data confirming that defendant drove by the victim’s home was relevant to
show that it was more probable than not that defendant had personal knowledge of the victim’s
home address. Accordingly, the trial court did not err in determining that there were sufficient
similarities between the other-acts evidence and the charged offense and that the evidence was
logically relevant to show that defendant operated under a common plan, scheme, or system.
Dobek, 274 Mich. App. at 90.
Defendant also contends that the evidence should have been excluded pursuant to MRE
403 because the probative value of the evidence was substantially outweighed by the danger of
unfair prejudice. Aside from defendant’s conclusion that “the evidence was clearly more
prejudicial than probative,” defendant does not elaborate on how the trial court failed to apply
the principles set forth in MRE 403. This Court is not required to unravel and elaborate on
defendant’s arguments and may deem the argument waived. People v Cameron, 319 Mich App,
215, 232; 900 NW2d 658 (2017). Nonetheless, defendant’s argument is not persuasive. Rather,
by prohibiting references to the contents of the 2008 note and defendant’s parole status, the trial
court ensured that the probative value of the evidence substantially outweighed its potential for
unfair prejudice. See Knox, 469 Mich. at 509.
Further, defendant argues that the admission of the evidence resulted in a miscarriage of
justice because the facts of the case did not support a finding that defendant committed the crime
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of aggravated stalking. Rather, defendant suggests that the jury based its verdict on the other-
acts evidence. However, as discussed above, the victim’s testimony about her contacts with
defendant were alone sufficient to justify a rational jury’s finding that defendant willfully
engaged in aggravated stalking. Accordingly, the trial court did not err in admitting the evidence
of defendant’s prior acts and the GPS tether information.
V. OV 10
Defendant asserts that the trial court improperly assessed 15 points under OV 10, MCL
777.40 (exploitation of vulnerable victim), because there was no evidence that he engaged in
predatory conduct or that the victim was vulnerable. Defendant’s assertion fails.
The proper interpretation and application of the sentencing guidelines is a legal question
that this Court reviews de novo. People v Morson, 471 Mich. 248, 255; 685 NW2d 203 (2004).
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for
clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich. 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation which an appellate court reviews de novo.” Id.
“When calculating the sentencing guidelines, a court may consider all record evidence,
including the contents of a PSIR, plea admissions, and testimony presented at a preliminary
examination.” People v McChester, 310 Mich. App. 354, 358; 873 NW2d 646 (2015). When
reviewing the record evidence, a trial court may make “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).
MCL 777.40(1)(a) provides that 15 points are to be scored for exploitation of a
vulnerable victim if predatory conduct was involved. “Predatory conduct” is defined, in part, as
“preoffense conduct directed at a victim . . . for the primary purpose of victimization.” MCL
777.40(3)(a). Predatory conduct “must have occurred before the commission of the offense.”
People v Cannon, 481 Mich. 152, 160; 749 NW2d 257 (2008). In Cannon, our Supreme Court
held that the following three questions must be answered in the affirmative before OV 10 may be
scored at 15 points:
(1) Did the offender engage in conduct before the commission of the offense?
(2) Was this conduct directed at one or more specific victims who suffered from a
readily apparent susceptibility to injury, physical restraint, persuasion, or
temptation?
(3) Was victimization the offender’s primary purpose for engaging in the
preoffense conduct? [Id. at 162.]
Predatory conduct need not be directed at a particular victim, but can extend to conduct directed
at “a victim,” for instance, by a defendant lying in wait or stalking members of the community at
large. People v Huston, 489 Mich. 451, 459-462; 802 NW2d 261 (2011). Further, “a defendant’s
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‘predatory conduct,’ by that conduct alone, can create or enhance a victim’s ‘vulnerability.’ ”
Huston, 498 Mich. at 454.
The evidence in this case showed that defendant spent considerable time over a short
period in the parking lot of the hair salon where the victim worked. Specifically, defendant had
been in the parking lot 52 times, for varying amounts of time, between December 14, 2016 and
February 14, 2017. On one occasion, defendant came into the salon without an appointment for
the ostensible purpose of showing the victim pictures on his phone. On two other occasions,
defendant also tried to coax the victim into accompanying him to Walmart. Two of these
incidents occurred when the victim was alone in the salon, and two occurred near closing time
when it was dark outside. On yet another occasion, defendant actually approached the victim
while she was shopping in the makeup aisle at Walmart after work.
Further, the evidence showed that defendant drove by the victim’s home on one occasion.
Moreover, the note left on the victim’s car referenced not only where she lived, but the route she
took to drive home, notwithstanding that the victim had never told defendant what kind of car
she drove or where she lived. Defendant’s conduct was directed toward a specific victim, who
was made vulnerable by defendant’s attempts to isolate her. This conduct was predatory in
nature and satisfies the standards for scoring 15 points for OV 10.
VI. PROPORTIONALITY
Lastly, defendant argues that the upward departure sentence imposed by the trial court is
unreasonable and disproportionate. We disagree.
This Court reviews an upward departure from the sentencing guidelines range for
reasonableness. People v Lockridge, 498 Mich. 358, 365; 870 NW2d 502 (2015). The proper
inquiry for this Court when reviewing a departure sentence for reasonableness is whether the trial
court abused its discretion by violating the principle of proportionality. People v Steanhouse,
500 Mich. 453, 477; 902 NW2d 327 (2017) (Steanhouse II). The trial court abuses its discretion
if it violates the principle of proportionality “by failing to provide adequate reasons for the extent
of the departure sentence imposed . . . .” Id. at 476.
When imposing a sentence, a court is required to consult the sentencing guidelines,
calculate the recommended sentencing guidelines sentence range, and take that range into
account when determining a defendant’s sentence. Lockridge, 498 Mich. at 391-392. However,
the court is not compelled to impose a minimum sentence within the calculated range. Id. at 365.
The sentencing guidelines are advisory only. Id. at 392.
A sentence that departs from the recommended guidelines range may be imposed when
the trial court determines that the recommended range is disproportionate to the seriousness of
the crime. People v Steanhouse (On Remand), 322 Mich. App. 233, 238; 911 NW2d 253 (2017)
(Steanhouse III). The Michigan Supreme Court, in Steanhouse II, 500 Mich. at 471, has
reaffirmed the principle of proportionality test articulated in People v Milbourn, 435 Mich. 630;
461 NW2d 1 (1990). That is,
a judge helps to fulfill the overall legislative scheme of criminal punishment by
taking care to assure that the sentences imposed across the discretionary range are
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proportionate to the seriousness of the matters that come before the court for
sentencing. In making this assessment, the judge, of course, must take into
account the nature of the offense and the background of the offender. [Milbourn,
435 Mich. at 651.]
The sentencing court must also consult and account for the guidelines, which “ ‘remain a highly
relevant consideration in a trial court’s exercise of sentencing discretion.’ ” Steanhouse II, 500
Mich. at 474-475, quoting Lockridge, 498 Mich. at 391.
In implementing the principle of proportionality, “ ‘the key test is whether the sentence is
proportionate to the seriousness of the matter, not whether it departs from or adheres to the
guidelines’ recommended range.’ ” Steanhouse II, 500 Mich. at 472, quoting Milbourn, 435
Mich. at 661. The Steanhouse II Court expressly distinguished the test from one requiring
“ ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.” Steanhouse
II, 500 Mich. at 473-474, quoting Gall v United States, 552 U.S. 38, 47; 128 S. Ct. 586; 169 L. Ed.
2d 445 (2007). The principle of proportionality test does not create a presumption of
unreasonableness for sentences that deviate from the guidelines range. Steanhouse II, 500 Mich.
at 474. Factors that may be considered under the test include, but are not limited to:
(1) the seriousness of the offense; (2) factors that were inadequately considered by
the guidelines; and (3) factors not considered by the guidelines, such as the
relationship between the victim and the aggressor, the defendant’s misconduct
while in custody, the defendant’s expressions of remorse, and the defendant’s
potential for rehabilitation. [People v Steanhouse, 313 Mich. App. 1, 46; 880
NW2d 297 (2015) (Steanhouse I), aff’d in part and rev’d in part on other grounds
500 Mich. 453 (2017) (citations omitted).]
As partial justification of its departure sentence, the court expressed its concerns with the
seriousness of defendant’s predatory actions. The court stated:
This is a case, Mr. Ball, in this Court’s opinion, of hunter stalking prey.
The evidence establishes that you have a pattern of locating and targeting
your women who work in customer service positions, that you make multiple
unwanted contacts, that you surveil them while they’re working, and that you
leave threatening notes in their vehicles.
The trial court further noted that defendant was on parole, registered as a sex offender, and on a
GPS monitoring at the time of the offense, but none of those factors deterred defendant’s
conduct. The trial court determined that “the guidelines do not account for the fact that you
stalked this victim relentlessly on a nearly daily basis for approximately two months.”
As an additional basis for its departure, the court also noted that defendant clearly had not
learned from his prior incarceration and attempts at rehabilitation. The court cited defendant’s
significant history of criminal convictions. In determining an appropriate sentence, a court may
draw inferences about the defendant’s behavior from the objective evidence. People v Petri, 279
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Mich App 407, 422; 760 NW2d 882 (2008). The court “must take into account the nature of the
offense and the background of the offender.” Milbourn, 435 Mich. at 651.
Defendant had a history of sexual assaults and stalking that resulted in prior incarceration
and counseling. The PSIR indicated that in 1991 defendant was charged with four separate
instances of fourth-degree criminal sexual conduct. For about two years, defendant participated
in treatment at Auburn Counseling. Defendant was charged with window peeping in 1994, for
which he served 90 days in jail. He was convicted of misdemeanor stalking in 1996. He failed
to comply with the Sex Offender Registration Act and was sentenced to serve 40 to 180 months
in prison in 2008. His nonconsensual interactions with this victim began in January 2017.
Testimony at trial established that defendant was contemporaneously displaying the same
stalking behaviors outside of a tanning salon. Courts may consider uncharged offenses and
pending charges in sentencing. People v Coulter (After Remand), 205 Mich. App. 453, 456; 517
NW2d 827 (1994). The trial court properly considered defendant’s lengthy history of
misconduct and his failure to rehabilitate. See Steanhouse III, 322 Mich. App. at 242.
Further, the trial court also expressed a need to adequately protect society. The need to
protect others is a factor not adequately considered by the guidelines. See People v Armstrong,
247 Mich. App. 423, 425; 636 NW2d 785 (2001). The court indicated that “[the court] must
fashion a sentence that focuses on the protection of society.” The trial judge stated that the
sentence imposed would incapacitate defendant so that he would be “unable to commit crimes
for a very long time.” Defendant’s criminal history supports the trial court’s conclusion that
defendant presented a significant threat to other women. Given defendant’s failed rehabilitation,
the court was justified in its concerns for the safety of other women and society.
Considering the record as a whole, the trial court identified several reasons for departure
that were not adequately considered by the guidelines. Therefore, the trial court did not abuse its
discretion when it determined that a sentence outside the sentencing guidelines range was
warranted. See Steanhouse I, 313 Mich. App. at 46.
Further, the trial court’s reasons for the extent of the departure sentence are clear and the
sentence rendered satisfied the principle of proportionality. See People v Smith, 482 Mich. 292,
304; 754 NW2d 284 (2008); see also Steanhouse III, 322 Mich. App. at 243. Under the
sentencing guidelines, defendant’s recommended minimum sentence range was 14 to 58 months,
but the trial court imposed a minimum sentence of 20 years. The trial court stated, “[A]s applied
to the facts and circumstances of this offense and to this offender, the guidelines are overly-
simplistic.” The court noted that defendant’s criminal conduct began in 1980, but starting in
1991, defendant began a “pattern and practice of victimizing women.” Since 1991, the court
noted, defendant’s “conduct towards women has been assaultive, abusive, and predatory.” And
despite being incarcerated numerous times since 1991, totaling about 14 years of incarceration,
defendant had continued to act as a “hunter stalking prey” with respect to his female victims. In
fact, defendant was required to be registered as a sex offender, was on parole, and was on GPS
tether monitoring when he committed this offense. The court noted defendant’s persistent
failures to respond to the deterrent effect of several terms of probation and parole, as well as
incarceration, and concluded that society needed to be protected on a long term basis from
defendant. The court further noted that, although it could impose a life term considering
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defendant’s habitual fourth offender status, such a sentence “could mean as little as fifteen (15)
years.” The court stated:
You’ve already, approximately, done that much time in the Michigan
Department of Corrections and even that hasn’t deterred you from continuing to
offend.
Given the disastrous results of your current parole or paroles, this Court
cannot find that parole eligibility in as little as fifteen (15) years adequately
protects the public. The Court doubts that a higher sentence would really have
any likelihood of deterring you from committing crimes in the future. However,
it is certain that a higher sentence will serve the compelling need to incapacitate
you so that you are unable to commit crimes for a very long time.
The trial court adequately explained why the particular upward departure sentence was more
proportionate to the nature of the offense and defendant’s background than a sentence within the
range recommended under the guidelines would have been and we agree with that rationale.
In summary, the trial court properly identified factors that warranted an upward departure
from the guidelines minimum sentence range, the reasons for the particular departure sentence
are clear, and the extent of the departure sentence satisfied the principle of proportionality. See
Milbourn, 435 Mich. at 659-660.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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