People of Michigan v. Kevin Lyn Beverly ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 13, 2020
Plaintiff-Appellee,
v No. 344460
Washtenaw Circuit Court
KEVIN LYN BEVERLY, LC No. 17-000760-FH
Defendant-Appellant.
Before: FORT HOOD, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of witness intimidation, MCL
750.122, and extortion, MCL 750.213. The trial court sentenced defendant to consecutive terms
of 5 to 15 years’ imprisonment for the witness intimidation conviction and 8 to 20 years’
imprisonment for the extortion conviction with credit for 292 days served. We affirm.
I. FACTUAL BACKGROUND
In December 2012, the Washtenaw County Prosecutor charged defendant with aggravated
stalking for repeatedly calling and sending text messages to his former wife, Nicole Beverly, in
October 2012. In March 2013, defendant pleaded guilty to aggravated stalking. In July 2017, the
Michigan Attorney General charged defendant with witness intimidation and extortion on the basis
of the same factual circumstances to which defendant pleaded regarding his aggravated stalking
conviction. During the jury trial, Nicole testified that defendant emotionally, verbally, and
physically abused her during their marriage. As a result, Nicole divorced defendant in April 2011,
and defendant was required to pay child support. Defendant subsequently accrued arrears of
approximately $20,000.
In October 2012, defendant called and sent text messages to Nicole demanding her to state
at an upcoming child support hearing that she no longer wanted to receive child support and that
she did not expect defendant to pay the child support that she was owed. Defendant told Nicole
that he would not go back to jail and that, if he did go to jail, he would harm her. Between
approximately October 15, 2012 and October 25, 2012, defendant called Nicole between 30 to 100
times per day throughout the day and night. Defendant sent Nicole text messages in which he told
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her to drop the child support case and suggested that, if Nicole failed to do so, the children would
suffer. Nicole received between 10 to 15 text messages during that period. The jury found
defendant guilty of witness intimidation and extortion.
II. DUE PROCESS
Defendant contends that his constitutional right to due process was violated. Specifically,
defendant contends that his convictions and sentences for extortion and witness intimidation
violate his double-jeopardy protection against successive prosecutions and multiple punishments
for the same offense, that the failure to charge defendant with these crimes constituted an
unconstitutional prearrest delay, and that the prosecution was collaterally estopped from
relitigating issues that were resolved when he was convicted of aggravated stalking. We disagree.
A. DOUBLE JEOPARDY
Defendant first argues on appeal that his constitutional double-jeopardy protections were
violated when he was prosecuted for the same conduct for which he previously pleaded guilty and
served a five-year term of imprisonment. We disagree.
A double-jeopardy claim presents a question of law subject to de novo review on appeal.
People v Ream, 481 Mich. 223, 226; 750 NW2d 536 (2008); People v Gibbs, 299 Mich. App. 473,
488; 830 NW2d 821 (2013). Both the United States and Michigan Constitutions prohibit placing
a defendant twice in jeopardy for a single offense. US Const, Am V; Const 1963, art 1, § 15;
People v Nutt, 469 Mich. 565, 574; 677 NW2d 1 (2004). These guarantees are substantially
identical and should be similarly construed. People v Davis, 472 Mich. 156, 161; 695 NW2d 45
(2005). “The purposes of double-jeopardy protections against successive prosecutions for the
same offense are to preserve the finality of judgments in criminal prosecutions and to protect the
defendant from prosecutorial overreaching.” People v Ford, 262 Mich. App. 443, 447; 687 NW2d
119 (2004).
The Double Jeopardy Clause affords individuals three related protections: (1) it
protects against a second prosecution for the same offense after acquittal; (2) it
protects against a second prosecution for the same offense after conviction; and (3)
it protects against multiple punishments for the same offense. The first two
protections are generally understood as the “successive prosecutions” strand of
double jeopardy, while the third protection is commonly understood as the
“multiple punishments” strand. [Smith, 478 Mich. 292, 299; 733 NW2d 351 (2007)
(quotation marks and citation omitted).]
Michigan courts apply the Blockburger1 same-elements test to determine whether charges
constitute the “same offense” for purposes of double-jeopardy protections. Nutt, 469 Mich. at 592.
The Blockburger test “focuses on the statutory elements of the offense. Id. at 576 (quotation marks
and citation omitted). “[O]ffenses do not constitute the ‘same offense’ for purposes of . . . double
jeopardy if each offense requires proof of a fact that the other does not.” Smith 478 Mich. at 304,
1
Blockburger v United States, 284 U.S. 299; 52 S. Ct. 180; 76 L. Ed. 306 (1932).
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314-315. If each requires proof of a fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the crimes.” Nutt, 469 Mich.
at 576 (quotation marks and citation omitted).
Defendant was convicted of aggravated stalking in 2013 and witness intimidation and
extortion in 2018. The crime of stalking involves “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.” MCL
750.411h(1)(d); MCL 750.411i(1)(e); see also People v Coones, 216 Mich. App. 721, 725; 550
NW2d 600 (1996). A defendant commits aggravated stalking if, in addition to the above, the
defendant’s conduct (1) violates a restraining order, injunction, preliminary injunction, condition
of probation, parole, pretrial release, or a condition of release on bond pending appeal, (2) includes
making one or more credible threats against the victim, a member of the victim’s family, or another
individual in the victim’s household, or (3) was a second or subsequent stalking offense. MCL
750.411i(2). See also M Crim JI 17.25.
Extortion involves a defendant (1) maliciously threatening, orally or in writing, (2) to
accuse another of any crime or offense or to injure the person, property, mother, father, spouse, or
child of that person, (3) with the intent to extort money or a pecuniary advantage or with the intent
to compel the person to do or refrain from doing something against the person’s will. MCL
750.213; People v Harris, 495 Mich. 120, 128-129; 845 NW2d 477 (2014). The offense of witness
intimidation proscribes an individual from preventing or attempting to prevent a witness from
providing truthful information in an official proceeding. People v Greene, 255 Mich. App. 426,
438; 661 NW2d 616 (2003). The elements of witness intimidation are: (1) an individual was
testifying or providing information at an official proceeding, (2) the defendant threatened or tried
to intimidate the person testifying, (3) the defendant intended to discourage the person testifying
from attending, testifying, or giving information at the proceeding, to influence the person’s
testimony, or to encourage the person to avoid legal process, withhold his or her testimony, or
testify falsely, and (4) the defendant’s actions involved committing or attempting to commit a
crime or a threat to kill or injure the person testifying or his or her property. MCL 750.122(3).
See also M Crim JI 37.4b.
The extortion offense contains elements not included in the aggravated stalking offense,
specifically that a defendant threatens to harm another person with the intent to gain money, a
pecuniary advantage, or to compel the person from doing something against their will. In contrast,
there is no requirement pursuant to the aggravated stalking offense that the defendant intends to
gain an advantage or intends to compel the recipient to do or refrain from doing something.
Likewise, aggravating stalking requires a previous court order or previous stalking offense and
repeated actions by the defendant that cause the recipient to feel threatened, frightened, or
terrorized. Compare MCL 750.213, with MCL 750.411i(1)(e) and (2). Therefore, the extortion
and aggravated stalking offenses each contain elements that the other offense does not require and
do not constitute the same offense for purposes of double jeopardy. See Smith, 478 Mich. at 318.
Similarly, the witness intimidation offense contains elements not included in the
aggravated stalking offense. Witness intimidation contains the element that there is a person
testifying in an official proceeding. Witness intimidation also involves a threat to kill or injure
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another person to dissuade them from testifying. In contrast, aggravated stalking does not require
that the victim was testifying at a court proceeding. Additionally, aggravated stalking requires
repeated actions by the defendant that cause the victim to feel a certain way, whereas the witness
intimidation offense does not require repeated actions or the testifying person to feel threatened,
intimidated, or frightened. Compare MCL 750.122(3), with MCL 750.411i(1)(e), (2). Therefore,
the witness intimidation and aggravated stalking offenses each contain elements that the other
offense does not require and do not constitute the same offense for purposes of double jeopardy.
See Smith, 478 Mich. at 318.
Further, the subsequent prosecution of the witness intimidation and extortion offenses did
not affect the finality of the judgment and defendant’s plea regarding his aggravated stalking
conviction. The witness intimidation and extortion charges were distinct from the aggravated
stalking charge, proscribed different conduct, and involved a separate prosecutor. Additionally,
there was no evidence that defendant suffered embarrassment, expense, anxiety, or insecurity as a
result of the subsequent prosecution of the witness intimidation and extortion charges. See People
v Sturgis, 427 Mich. 392, 398-399; 397 NW2d 783 (1986). Because the offenses in this case were
not the same offense as defendant’s previous aggravated stalking conviction, and the subsequent
prosecution did not constitute prosecutorial overreaching or disturb the finality of defendant’s
previous conviction, we conclude that the prosecution of the witness intimidation and extortion
charges did not violate defendant’s double-jeopardy protections. See Smith, 478 Mich. at 299;
Ford, 262 Mich. App. at 447.
B. PREARREST DELAY
Defendant next contends that the delay of approximately five years between defendant’s
conduct in October 2012 and the prosecutor’s charges in 2017 prejudiced defendant and impeded
his ability to defend himself. We disagree.
The determination whether delay deprived the defendant of due process is reviewed de
novo on appeal. People v Reid (On Remand), 292 Mich. App. 508, 511; 810 NW2d 391 (2011).
To a limited extent, procedural due-process guarantees protect a defendant against delay between
the commission of an offense and arrest or indictment for that offense. United States v Lovasco,
431 U.S. 783, 798; 97 S. Ct. 2044; 52 L. Ed. 2d 752, (1977); People v Cain, 238 Mich. App. 95, 109;
605 NW2d 28 (1999). The court must balance the defendant’s interest in a prompt adjudication
of the case against the state’s possible interest in delaying prosecution. Cain, 238 Mich. App. at
108. To merit dismissal of a charge, a prearrest delay must have resulted in actual and substantial
prejudice to the defendant’s right to a fair trial and the prosecution must have intended a tactical
advantage. People v Patton, 285 Mich. App. 229, 237; 775 NW2d 610 (2009). In order to
demonstrate substantial prejudice, a defendant must show that his or her ability to defend against
the charges was meaningfully impaired such that the outcome of the proceedings was likely
affected. Patton, 285 Mich. App. at 237. An unsupported statement of prejudice by defense counsel
is not enough to establish evidence of prejudice, nor are undetailed claims of loss of physical
evidence, witness memory loss, or witness death. People v Walker, 276 Mich. App. 528, 546; 741
NW2d 843 (2007), vacated in part on other grounds 480 Mich. 1059 (2008).
In this case, defendant did not demonstrate that his ability to defend against the witness
intimidation and extortion charges meaningfully impaired his right to a fair trial. Contrary to
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defendant’s argument that the prosecution’s delay resulted in a longer term of imprisonment for
his aggravated stalking conviction, this delay was not a deliberate attempt to prejudice defendant
or to gain a tactical advantage. Although defendant argues that he faced unfavorable sentencing
consequences as a result of the prosecution’s delay in charging defendant with witness intimidation
and extortion, including that his sentence would have been shorter had the Washtenaw County
Prosecutor brought the witness intimidation and extortion charges at the time that defendant was
charged with aggravated stalking, an adverse impact on defendant’s sentence is not sufficient to
demonstrate substantial prejudice. See People v Scott, 324 Mich. App. 459, 465; 924 NW2d 252
(2018). Furthermore, there was no evidence that defendant would have received a different plea
agreement in 2013 had the Washtenaw County Prosecutor charged with witness intimidation and
extortion. Speculation regarding a plea agreement and an adverse effect on sentencing is not
sufficient to demonstrate that the delay impacted defendant’s ability to defend against the charges.
See id. at 465-466.
To the extent that defendant argues that he lost his ability to defend against the witness
intimidation and extortion charges by pleading guilty to the same factual bases in his aggravated
stalking case, there was no evidence that the jury convicted defendant of witness intimidation and
extortion merely because of his aggravated stalking conviction. The jury was presented with
Nicole’s testimony and evidence that defendant repeatedly called and sent her text messages from
October 15, 2012 to October 25, 2012. Nicole testified that defendant threatened her in an attempt
to impact her testimony at an upcoming child support hearing. The jury was instructed on the
elements of witness intimidation and extortion and subsequently convicted defendant. Therefore,
defendant did not demonstrate that he conceded the facts of this case in his guilty plea to
aggravated stalking or that his due-process rights were violated.
Finally, defendant contends that he was deprived of his ability to go to trial in 2013 because
he faced two separate prosecutions based on the same factual circumstances. However, defendant
had the opportunity to proceed to trial for the aggravated stalking offense, but he chose to plead
guilty. Defendant’s argument that it was “possible” that he would have tried the case had the
prosecutor charged him in 2012 with witness intimidation and extortion, in addition to the
aggravated stalking charge, is speculative and does not demonstrate that he was denied the ability
to present a defense in either case. Additionally, defendant did not present any evidence that the
prearrest delay resulted in the loss of evidence, the unavailability of a witness, or the loss of an
opportunity to cross-examine a witness. See Walker, 276 Mich. App. at 546; People v Adams, 232
Mich. App. 128, 135-137; 591 NW2d 44 (1998). Defendant did not demonstrate that his ability to
defend against the charges was materially impaired, the outcome of the proceedings was affected,
or the prosecution intended to gain a tactical advantage. See Patton, 285 Mich. App. at 237.
Therefore, defendant did not demonstrate actual and substantial prejudice to his right to a fair trial,
and he was not denied due process because of the prearrest delay. See id.
C. COLLATERAL ESTOPPEL
Defendant next contends that the doctrine of collateral estoppel precluded the prosecution
from charging defendant with witness intimidation and extortion because the issues of whether
defendant prevented or attempted to prevent Nicole from testifying or threatened her with the intent
to compel her to refrain from testifying were necessarily decided or actually litigated in the
aggravated stalking proceeding. We disagree.
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The applicability of collateral estoppel is a question of law subject to de novo review on
appeal. People v Trakhtenberg, 493 Mich. 38, 47; 826 NW2d 136 (2012). The doctrine of
collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action
between the same parties when the previous proceeding culminated in a valid and final judgment
and the issue was actually and necessarily determined in that previous proceeding. People v
Brown, 279 Mich. App. 116, 126; 755 NW2d 664 (2008). Generally, application of collateral
estoppel requires (1) that a question of fact essential to the judgment was actually litigated and
determined by a valid and final judgment, (2) that the same parties had a full and fair opportunity
to litigate the issue, and (3) mutuality. Trakhtenberg, 493 Mich. at 48. Prosecutors are considered
the same party for purposes of collateral estoppel because prosecutors are “creatures of the state.”
People v Gates, 434 Mich. 146, 156; 452 NW2d 627 (1990). In a criminal case, the original
sentence imposed following a conviction is a final judgment. MCR 7.202(6)(b)(ii). In the
subsequent action, the ultimate issue to be concluded must be the same as that involved in the first
action. People v Schneider, 171 Mich. App. 82, 86; 429 NW2d 845 (1988).2 To be actually
litigated, the party against whom collateral estoppel is asserted must have had a full and fair
opportunity to litigate the issues in the first action. Gates, 434 Mich. at 156-157. The court reviews
what has been pleaded and argued to determine if the issue was actually litigated. Id. at 156. To
be necessarily determined in the first action, the issue in the subsequent action must have been
essential to the first judgment. Id. at 158.
Regarding the determination of the issues, the issue during defendant’s guilty plea was
whether he repeatedly harassed Nicole. See MCL 750.411i. Defendant pleaded that he was
previously convicted of stalking Nicole, he called and sent text messages to Nicole from October
15, 2012 to October 24, 2012, and he threatened Nicole. The ultimate issue regarding the witness
intimidation charge was whether defendant prevented or attempted to prevent Nicole from
providing truthful information in the child support hearing. See MCL 750.122(3); Greene, 255
Mich. App. at 438. Defendant did not plead in 2013 to any facts regarding Nicole’s testimony or
his intent to prevent her from testifying. Defendant’s plea to calling Nicole, sending her text
messages, and threatening Nicole did not necessarily determine that he was not guilty of preventing
Nicole from testifying or threatening her with the intent to compel her to refrain from testifying.
Therefore, the questions of fact essential to the jury’s verdict that defendant was guilty of witness
intimidation were not necessarily determined by defendant’s plea to aggravated stalking. See
Gates, 434 Mich. at 158.
The ultimate issue regarding the extortion charge was whether defendant threatened to
injure Nicole with the intent to compel her to refrain from testifying against her will. See MCL
750.213; Harris, 495 Mich. at 128-129. The facts regarding whether Nicole was testifying in an
official proceeding and whether defendant acted to prevent her from testifying were not at issue in
2
Court of Appeals cases decided before November 1, 1990, are not binding. MCR 7.215(J)(1).
Although this Court is not “ ‘strictly required to follow uncontradicted opinions from this Court
decided prior to November 1, 1990,’ those opinions are nonetheless ‘considered to be precedent
and entitled to significantly greater deference than are unpublished cases.’ ” People v Bensch, 328
Mich. App. 1, 7 n 6; 935 NW2d 382 (2019), quoting Woodring v Phoenix Ins Co, 325 Mich. App.
108, 114-115; 923 NW2d 607 (2018) (emphasis omitted).
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the aggravated stalking case, and the Washtenaw County Prosecutor did not litigate those issues.
Defendant did not plead to any facts regarding those issues in his guilty plea to aggravated stalking.
Thus, because the ultimate issues and factual questions regarding the extortion offense were not
pleaded or argued in defendant’s plea, the prosecutor did not have a full and fair opportunity to
litigate the issues in this case. See Trakhtenberg, 493 Mich. at 50; Gates, 434 Mich. at 156-157.
Although this case involved the same parties and a different cause of action than the
aggravated stalking case, the ultimate issues in this case were not necessarily decided or actually
litigated on the basis of defendant’s guilty plea, and the doctrine of collateral estoppel did not
preclude the prosecution from charging defendant with witness intimidation and extortion. See
Schneider, 171 Mich. App. at 86; Gates, 434 Mich. at 165.
III. SENTENCING
Defendant next contends that the trial court abused its discretion by imposing consecutive
sentences, and erred in calculating defendant’s minimum sentencing guidelines range. We
disagree.
A. CONSECUTIVE SENTENCING
Because the issue of a trial court’s statutory authority to impose a consecutive sentence is
a matter of statutory interpretation, this Court reviews de novo whether a trial court may impose a
consecutive sentence. People v Gonzalez, 256 Mich. App. 212, 229; 663 NW2d 499 (2003). “A
consecutive sentence may be imposed only if specifically authorized by law.” Id. “[T]he
decision to impose a consecutive sentence when not mandated by statute is reviewable for an abuse
of discretion.” People v Norfleet, 317 Mich. App. 649, 664; 897 NW2d 195 (2016). A trial court
abuses its discretion when it chooses an outcome falling outside the range of principled outcomes.
People v Babcock, 469 Mich. 247, 269; 666 NW2d 231 (2003). This Court reviews the
proportionality of each sentence on its own merit, rather than reviewing the proportionality of the
cumulative effect of multiple sentences. Norfleet, 317 Mich. App. at 663.
“Review of a discretionary decision requires that the trial court set forth the reasons
underlying its decision.” Norfleet, 317 Mich. App. at 664. The trial court must articulate reasons
on the record to justify imposing a discretionary consecutive sentence. Id. at 664-665. “In this
jurisdiction, concurrent sentencing is the norm.” People v Brown, 220 Mich. App. 680, 682; 560
NW2d 80 (1996). The purpose of the consecutive sentence statutes is “to enhance the punishment
imposed upon those who have been found guilty of more serious crimes and who repeatedly
engage in criminal acts.” People v Smith, 423 Mich. 427, 445; 378 NW2d 384 (1985).
Under Michigan law, a trial court may impose a consecutive sentence only if there is
statutory authority to do so. People v Chambers, 430 Mich. 217, 222; 421 NW2d 903 (1988). A
trial court has discretion to impose a consecutive sentence pursuant to MCL 750.122(11). The
witness intimidation statute provides that “[t]he court may order a term of imprisonment imposed
for violating this section to be served consecutively to a term of imprisonment imposed for the
commission of any other crime including any other violation of law arising out of the same
transaction as the violation of this section.” MCL 750.122(11).
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In this case, the trial court had discretion to sentence defendant to a consecutive sentence
pursuant to MCL750.122(11). The trial court sentenced defendant to terms of imprisonment for
his witness intimidation and extortion convictions. Defendant’s sentence for his extortion
conviction was a term of imprisonment for the commission of a crime other than the witness
intimidation offense. Although the witness intimidation and extortion convictions arose from the
same factual circumstances of defendant’s repeated phone calls and text messages to Nicole in
October 2012, MCL 750.122(11) expressly provides that the trial court may impose a consecutive
sentence when the convictions arise from the same transaction. MCL 750.122(11). Therefore, the
trial court had discretion to impose a consecutive sentence under Michigan statutory law. See
Gonzalez, 256 Mich. App. at 229.
Regarding the trial court’s justification to support the consecutive sentence, the trial court
articulated sufficient reasons on the record when sentencing defendant in support of its decision to
impose a consecutive sentence. The trial court discussed the effect of defendant’s conduct on
Nicole and the children, including that they feared for their safety. Specifically, the trial court
indicated that defendant “systematically over the past ten to fifteen years, maybe longer” terrorized
Nicole and their children. The trial court also indicated that defendant’s acts deprived Nicole of a
significant amount of child support and impacted the way that she and the children lived their lives,
which went beyond the nature and elements of the extortion offense. During the sentencing
hearing, Nicole indicated that she and her children established response procedures at her place of
employment and the children’s schools for protection, checked locks and alarms for security, and
lived in fear. Nicole also testified that she coordinated with the Washtenaw County Sheriff’s
Department to respond to 911 calls, diagram her home for SWAT response, and identify her and
her children with their fingerprints and dental records in case defendant harmed them.
Additionally, the trial court indicated that it effectively gave defendant credit for his five-year
sentence for his previous aggravating stalking conviction by sentencing him for a minimum of
eight years’ imprisonment for his extortion conviction, whereas the trial court would have
sentenced defendant to a 13-year minimum sentence to be served concurrently if he had been
convicted of extortion at the time of his aggravated stalking conviction.
Viewing the sentencing transcript in context, the trial court articulated reasons with
reference to the particular facts that supported imposing a consecutive sentence. The trial court
emphasized the effect of defendant’s conduct that subjected Nicole and the children to more than
a decade of fear and terror, changed the way that they lived their lives by developing protection
plans at school and work, and deprived Nicole of a significant amount of child support while she
raised the children as a single parent. Defendant’s conduct differed from the conduct proscribed
by the witness intimidation and extortion offenses, which prohibited threats to a person to compel
a person to do something against their will, by creating terror and causing Nicole and her children
to alter their lives and routines. Therefore, the trial court adequately justified its decision to impose
a consecutive sentence, and that decision was not outside the range of reasonable and principled
outcomes. See Babcock, 469 Mich. at 269; Norfleet 317 Mich. App. at 663-664.
B. SENTENCING GUIDELINES
Finally, defendant argues that the trial court improperly scored Offense Variables (OV) 10
and 13. We disagree.
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With regard to sentencing, a trial court’s “factual determinations are reviewed for clear
error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich. 430,
438; 835 NW2d 340 (2013), superseded by statute on other grounds as stated in People v
Rodriguez, 327 Mich. App. 573, 579 n 3; 935 NW2d 51 (2019). An appellate court reviews de novo
whether the facts, as found, adequately satisfy the scoring conditions prescribed by statute. Id.
“This Court has also repeatedly held that a sentence is invalid if it is based on inaccurate
information.” People v Miles, 454 Mich. 90, 96; 559 NW2d 299 (1997). If a sentence is within
the appropriate guidelines sentence range, a defendant is entitled to resentencing only if there is a
scoring error or if the trial court relied on inaccurate information. People v Francisco, 474 Mich.
82, 88-89, 92; 711 NW2d 44 (2006).
1. OFFENSE VARIABLE 10
Defendant contends that his past relationship with the victim and the fact that he and the
victim shared children did not establish a domestic relationship under OV 10. Defendant also
contends that the trial court failed to make any findings regarding the victim’s vulnerability. We
disagree.
OV 10 relates to exploitation of a vulnerable victim. MCL 777.40(1).3 “ ‘Vulnerability’
means the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or
temptation.” MCL 777.40(3)(c).
Factors to be considered in deciding whether a victim was vulnerable include (1)
the victim’s physical disability, (2) the victim’s mental disability, (3) the victim’s
youth or agedness, (4) the existence of a domestic relationship, (5) whether the
offender abused his or her authority status, (6) whether the offender exploited a
victim by his or her difference in size or strength or both, (7) whether the victim
was intoxicated or under the influence of drugs, or (8) whether the victim was
asleep or unconscious. [People v Cannon, 481 Mich. 152, 158-159; 749 NW2d 257
(2008).]
The mere existence or absence of one of these factors, including a domestic relationship, does not
automatically render the victim vulnerable. MCL 777.40(2); Cannon, 481 Mich. at 159.
Additionally, “ ‘[e]xploit’ means to manipulate a victim for selfish or unethical purposes.” MCL
777.40(3)(b).
The sentencing guidelines do not define “domestic” or “domestic relationship.” However,
we have determined that there must be a familial or cohabitating relationship to constitute a
domestic relationship under MCL 777.40(1)(b). People v Jamison, 292 Mich. App. 440, 448; 807
NW2d 427 (2011). In this case, although defendant and Nicole were not cohabitating, they
3
Although MCL 777.40 was amended by 2018 PA 652, effective March 28, 2019, the amendment
is not pertinent to our analysis.
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certainly had a familial relationship that supported the trial court’s conclusion that a domestic
relationship existed for the purposes of OV 10.
Although defendant and Nicole were divorced, the two had children together, which is a
central fact that defendant sought to exploit. Indeed, the very testimony from Nicole that defendant
sought to manipulate involved their children and was directly related to their domestic history.
After their relationship ended in a divorce in April 2011, defendant called Nicole over 100 times
and sent her approximately 10 to 15 text messages in a 10-day period in October 2012. Defendant
demanded that Nicole state at an upcoming child support hearing that she no longer wanted to
receive child support from defendant, and defendant stated that he would harm her if she continued
to pursue the child support that he owed her. We note that Nicole was particularly susceptible to
defendant’s manipulation because of the history of abuse she experienced at his hands.
In other words, defendant and Nicole’s past marriage and shared children support the
conclusion that the two did have a domestic relationship for the purposes of MCL 777.40(1)(b).
Defendant’s relationship and connection to Nicole is exactly what made her vulnerable to his
threats, and defendant sought to exploit that vulnerability. Therefore, the trial court correctly
assessed 10 points for OV 10.
2. OFFENSE VARIABLE 13
Defendant lastly contends that the phone calls and text messages that formed the basis for
his aggravated stalking, extortion, and witness intimidation offenses constituted one felonious act,
rather than three or more crimes against the victim under OV 13. We disagree.
OV 13 addresses a continuing pattern of criminal behavior. MCL 777.43(1); People v
Gibbs, 299 Mich. App. 473, 487; 830 NW2d 821 (2013). An assessment of 25 points is required
when “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes
against a person.” MCL 777.43(1)(c). In determining the proper assessment of points under OV
13, “all crimes within a 5-year period, including the sentencing offense, shall be counted regardless
of whether the offense resulted in a conviction.” MCL 777.43(2)(a); People v Francisco, 474
Mich. 82, 85; 711 NW2d 44 (2006). There is no requirement under MCL 777.43(1)(c) that the trial
court may not consider multiple convictions arising from the same incident when assessing 25
points for OV 13. Gibbs, 299 Mich. App. at 487-488.
Defendant was convicted of witness intimidation and extortion in this case and was
previously convicted of aggravated assault, which are classified as crimes against a person under
the sentencing guidelines. See MCL 777.16l; 777.16f; 777.16t. Although the convictions arose
out of the same factual circumstances, defendant called the victim over 100 times and sent her
approximately 10 to 15 text messages in a 10-day period. There were several acts that took place
over that time. See People v Carll, 322 Mich. App. 690, 704-705; 915 NW2d 387 (2018). These
acts resulted in three separate convictions, which constituted a pattern of criminal activity. See
Gibbs, 299 Mich. App. at 487-488. Therefore, the trial court did not err by assessing 25 points for
OV 13 because defendant committed three crimes within a five-year period. Id. at 488.
The trial court did not err in calculating defendant’s minimum sentencing guidelines range,
and because the trial court imposed a sentence within the applicable minimum sentencing
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guidelines range, resentencing is not required. See Francisco, 474 Mich. at 88-89, 92. See also
People v Powell, 278 Mich. App. 318, 323; 750 NW2d 607 (2008) (noting that “a sentence within
the guidelines range is presumptively proportionate”).
Affirmed.
/s/ Karen M. Fort Hood
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
-11-