                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 20, 2014
               Plaintiff-Appellee,

v                                                                  No. 317066
                                                                   Wayne Circuit Court
SHANTEE BROWN,                                                     LC No. 12-006414-FC

               Defendant-Appellant.


Before: BORRELLO, P.J., and WILDER and STEPHENS, JJ.

PER CURIAM.

       Defendant appeals as of right following his conviction by a jury of kidnapping, MCL
750.349, and first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(c). The trial court
sentenced defendant to 17 to 35 years in prison for each conviction. We affirm defendant’s
convictions, but vacate the trial court’s judgment of sentence and remand for resentencing.

                                                I

        Defendant’s convictions arise out of the kidnapping and sexual assault of an 18-year-old
female victim on December 7, 2004. The victim testified that when she was walking to work at
Burger King, shortly before 5:00 a.m., defendant confronted her, threatened her at gunpoint, and
forced her against her will into a dark alley. The victim testified that defendant continued
pointing the gun at her face in the alley, directed her to remove her pants, and then directed her
to lie down on the ground, following which defendant penetrated her vagina with his penis. The
victim was unable to testify regarding the number of times defendant penetrated her vagina.

         After the assault, the victim contacted the police, who transported her to a hospital.
Health care personnel conducted a forensic examination of the victim, during which a doctor
“collect[ed] swabs of secretions from” the victim’s body. The doctor who examined the victim
testified that he also gave the victim prophylactic “treatment in anticipation that there may be a
disease transmitted or a pregnancy[.]” Though the victim’s attacker was not immediately
identified, eight years later, the attacker’s DNA, which had been recovered from the victim
following this offense, was matched to defendant’s DNA. The victim subsequently identified
defendant in a photographic lineup and at trial.

        Defendant was charged with kidnapping, CSC I, third-degree criminal sexual conduct (CSC
III), MCL 750.520d(1)(d) (penetration using force or coercion), felonious assault, MCL 750.82, and

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possession of a firearm during the commission of a felony, MCL 750.227b. Defendant testified at
trial that he resided in the same apartment complex as the victim in 2004 and engaged in
consensual sex with her. At the conclusion of the trial, the trial court instructed the jury, inter
alia, that a conviction of CSC III was precluded if the jury convicted defendant of CSC I. The jury
found defendant guilty of kidnapping and CSC I, and not guilty of felonious assault and felony-
firearm.

                                                 II

        Relying on his trial testimony that he and the victim had consensual sex, the absence of
any evidence of a physical injury to the victim, and the inability of the victim or the police to
pinpoint the alley where the assault purportedly occurred, defendant first argues that the evidence
was insufficient to support his convictions. We disagree. We review de novo a criminal
defendant’s challenge to the sufficiency of the evidence supporting his convictions. People v
Harverson, 291 Mich App 171, 175-177; 804 NW2d 757 (2010); People v Solmonson, 261 Mich
App 657, 661; 683 NW2d 761 (2004). In determining whether sufficient evidence exists “to
sustain a conviction, a court must view the evidence in a light most favorable to the prosecution
and determine whether any rational trier of fact could have found that the essential elements of
the crime were proven beyond a reasonable doubt.” People v Nowack, 462 Mich 392, 399-400;
614 NW2d 78 (2000) (internal quotation and citation omitted).

                 The standard of review is deferential: a reviewing court is required to
         draw all reasonable inferences and make credibility choices in support of the jury
         verdict. The scope of review is the same whether the evidence is direct or
         circumstantial. Circumstantial evidence and reasonable inferences arising from
         that evidence can constitute satisfactory proof of the elements of a crime. [Id. at
         400 (internal quotation and citation omitted).]

“It is for the trier of fact, not the appellate court, to determine what inferences may be fairly
drawn from the evidence and to determine the weight to be accorded those inferences.” People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).

        Because the charged kidnapping occurred in December 2004, the trial court correctly
instructed the jury regarding the elements of a forcible confinement kidnapping as prescribed in
MCL 750.349 at the time of the offense.1 Forcible confinement kidnapping under the former
statute required proof of the following elements: (1) the defendant’s confinement or
imprisonment of the victim through an “unlawful exercise or show of force by which [the victim]
is compelled to . . . go where [s]he does not wish to go,” People v Wesley, 421 Mich 375, 384,
388; 365 NW2d 692 (1984) (internal quotation and citation omitted); (2) the defendant acted
“wilfully, maliciously and without authority,” id. at 383, 388; (3) the defendant confined or
imprisoned the victim against her will; and (4) the defendant asported or moved the victim in a
manner “not merely incidental to an underlying crime,” id. at 388, but “incidental to the
commission of the kidnapping.” People v Adams, 389 Mich 222, 236; 205 NW2d 415 (1973). A


1
    MCL 750.349 was amended in 2006. See 2006 PA 159.


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consideration in determining whether the asportation element existed includes whether “the
movement adds either a greater danger or threat thereof,” and “[w]hether or not a particular
movement constitutes statutory asportation . . . must be determined from all the
circumstances . . . and is a question of fact for the jury.” Id. at 238. “A course of movement
incidental to both kidnapping and another offense could be of such quality and character as to
supply the asportation element of kidnapping.” People v Barker, 411 Mich 291, 300; 307 NW2d
61 (1981).

        The CSC I offense with which defendant was charged was based on alternate theories:
(1), that defendant engaged in sexual penetration during the commission of the crime of
kidnapping, MCL 750.520b(1)(c); and (2), that defendant was armed with “a weapon or any
article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon,”
MCL 750.520b(1)(e). To establish CSC I under subsection (c), the prosecutor must prove (1) the
defendant’s penetration of the victim, and (2) the circumstances involving the commission of the
other felony (here, the kidnapping) directly impacted the victim of the sexual penetration.
People v Lockett, 295 Mich App 165, 174, 178-179; 814 NW2d 295 (2012). To establish CSC I
under subsection (e), the prosecutor must prove (1) the defendant’s penetration of the victim, and
(2) the defendant’s possession of a weapon, even if only when the sexual assault begins. People
v Proveaux, 157 Mich App 357, 361-363; 403 NW2d 135 (1987).

        The victim’s testimony was sufficient to establish forcible confinement kidnapping. Her
testimony that defendant accosted her on the street, pointed a gun in her face, and moved her into
an alley established that (1) defendant unlawfully and forcibly confined or imprisoned her, (2)
defendant’s actions were done against the victim’s will; (3) defendant asported the victim in a
manner incidental to the kidnapping to a location that presented a greater danger or threat of
greater danger to the victim because of its isolated location, see People v Lynn, 91 Mich App
117, 125-126; 283 NW2d 664 (1979), aff’d in Barker, 411 Mich 291, and People v Worden, 71
Mich App 507, 515; 248 NW2d 597 (1976), and (4) that defendant acted maliciously, willfully,
and without authority, see People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008)
(observing that minimal circumstantial evidence is required to prove a defendant’s state of
mind).

        The victim’s testimony also sufficed to prove beyond a reasonable doubt defendant’s
guilt of CSC I under both MCL 750.520b(1)(c) and (e). Concerning subsection (c), the victim’s
testimony established that (1) defendant penetrated her, and (2) the penetration occurred under
circumstances in which defendant also kidnapped the victim, a felony that directly impacted the
victim by placing her in the position where defendant sexually assaulted her. Lockett, 295 Mich
App at 178-179. Regarding subsection (e), the victim’s testimony also established that (1)
defendant penetrated the victim, and (2) at the commencement of the sexual assault, defendant
possessed a handgun. Proveaux, 157 Mich App at 362-363.

        Though defendant claims there was no credible evidence contradicting his testimony that
he and the victim shared consensual intercourse in her apartment, the victim testified that she did
not consent to defendant’s sexual assault in the alley and she denied ever having previously seen
defendant. Furthermore, a police officer, the victim’s mother, and the victim’s coworker, all
who observed the victim in the early morning hours of December 7, 2004, each testified at trial
that the victim was emotionally distraught and had significant difficulty communicating after her

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kidnapping and assault. Given the conflicting evidence, the jury reasonably rejected defendant’s
proffered consent defense, and in any event, on appeal, all conflicts in the evidence must be
resolved in favor of the prosecution. People v Williams, 268 Mich App 416, 419; 707 NW2d
624 (2005).

                                                III

       Defendant challenges the trial court’s scoring of offense variables 3, 11, and 12 of the
sentencing guidelines. 2 Although defendant preserved his challenges to the scoring of OV 3 and
OV 11 by objecting to the scoring of those variables at sentencing, he did not object to the
scoring of OV 12, either at sentencing, in a motion for resentencing, or a motion to remand in
this Court. Therefore, his appellate challenge to the scoring of OV 12 is unpreserved. MCL
769.34(10).

        We review for clear error a trial court’s factual determinations with respect to the scoring
of offense variables in the sentencing guidelines, and the factual determinations “must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). We consider de novo the legal question of statutory interpretation inherent in
“whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute.”
Id. We review unpreserved claims of error only to ascertain whether a plain error affected the
defendant’s substantial rights. People v Carines, 460 Mich 750, 762-764, 774; 597 NW2d 130
(1999).

                                                 A

        In MCL 777.33(1)(d), the Legislature authorized the scoring of OV 3 for a victim’s
physical injury at 10 points when the victim experienced “[b]odily injury requiring medical
treatment.” “ ‘[B]odily injury’ encompasses anything that the victim would, under the
circumstances, perceive as some unwanted physically damaging consequence.” People v
McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). Pursuant to MCL 777.33(3), “
‘requiring medical treatment’ refers to the necessity for treatment and not the victim’s success in
obtaining treatment.” Although defendant claims the victim reported no injury and that she only
received medical attention for collecting evidence, our review of the record indicates the
collection of evidence was not the sole purpose for the victim’s trip to the hospital shortly after
the sexual assault. Rather, as a result of the sexual assault, the doctor considered it necessary to
physically examine the victim, collect samples from her vagina, and prescribe prophylactics to
protect against the spread of sexually transmitted diseases as well as pregnancy. In light of these
facts, the trial court did not clearly err by finding that a preponderance of the evidence
established that the victim suffered a bodily injury necessitating medical treatment. Hardy, 494
Mich at 438. Thus, the trial court did not err by assessing 10 points for OV 3.




2
 The “sentencing guidelines in effect [in 2004,] the date the crime was committed,” apply.
MCL 769.34(2).


                                                -4-
                                                B

       In MCL 777.41, our Legislature provided for the scoring of OV 11 as follows:

               (1)   Offense variable 11 is criminal sexual penetration. Score offense
       variable 11 by determining which of the following apply and by assigning the
       number of points attributable to the one that has the highest number of points:

              (a)     Two or more criminal sexual penetrations occurred ….... 50 points

              (b)     One criminal sexual penetration occurred ………………. 25 points

              (c)     No criminal sexual penetration occurred ………………… 0 points

              (2)     All of the following apply to scoring offense variable 11:

               (a)     Score all sexual penetrations of the victim by the offender arising
       out of the sentencing offense.

              (b)    Multiple sexual penetrations of the victim by the offender
       extending beyond the sentencing offense may be scored in offense variables 12 or
       13.

                (c)     Do not score points for the 1 penetration that forms the basis of a
       first- or third-degree criminal sexual conduct offense.

        The trial court scored the guidelines only for defendant’s CSC I conviction. See People v
Mack, 265 Mich App 122, 128-129; 695 NW2d 342 (2005) (a PSIR is only prepared for the
highest crime class felony conviction). The victim’s testimony substantiated only one incident of
sexual intercourse, and there was no record evidence of multiple or repeated penetrations by
defendant’s penis into her vagina. Therefore, because points may not be scored for the one
penetration that forms the basis for the conviction, the trial court erred as a matter of law by
assessing 25 under OV 11. Hardy, 494 Mich at 442 n 33; People v Johnson, 474 Mich 96, 102 n
2; 712 NW2d 703 (2006).

                                                C

       MCL 777.42 provides in pertinent part:

               (1)    Offense variable 12 is contemporaneous felonious criminal acts.
       Score offense variable 12 by determining which of the following apply and by
       assigning the number of points attributable to the one that has the highest number
       of points:

              (a)     Three or more contemporaneous felonious criminal acts involving
       crimes against a person were committed ……………………………….. 25 points




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               (b)    Two contemporaneous felonious criminal acts involving crimes
       against a person were committed ……………………………………….. 10 points

               (c)   Three or more contemporaneous felonious criminal acts involving
       other crimes were committed …………………………………………… 10 points

               (d)    One contemporaneous felonious criminal act involving a crime
       against a person was committed ………………………………………….. 5 points

                                              ***

               (2)    All of the following apply in scoring offense variable 12:

              (a)    A felonious criminal act is contemporaneous if both the following
       circumstances exist:

               (i)    The act occurred within 24 hours of the sentencing offense.

               (ii)   The act has not and will not result in a separate conviction.

             (b)   A violation of section 227b of the Michigan penal code, 1931 PA
       328, MCL 750.227b, should not be considered for scoring this variable.

               (c)    Do not score conduct scored in offense variable 11.

“[W]hen scoring OV 12, a court must look beyond the sentencing offense and consider only
those separate acts or behavior that did not establish the sentencing offense.” People v Light,
290 Mich App 717, 723; 803 NW2d 720 (2010).

        The prosecutor argued that the trial court should score OV 12 at 10 points pursuant to
MCL 777.42(1)(b) because defendant “was convicted of two or more crimes against a person.”
The trial court agreed that defendant had been convicted of two crimes, but did not specify which
two crimes it considered when assigning defendant 10 points under OV 12.

        We find that plain error occurred in the trial court’s scoring of 10 points under OV 12.
First, as the sentencing offense, CSC I could not be considered in scoring OV 12. Light, 290
Mich App at 723. Second, kidnapping could not be considered in scoring OV 12 because it
resulted in a separate conviction. MCL 777.42(a)(ii). Third, CSC III could not be considered
because that charge involved the same sexual penetration that established the sentencing offense.
Light, 290 Mich App at 723. Moreover, the clear and unambiguous language of MCL
777.42(2)(b) precluded the trial court from considering the felony-firearm charge. Finally, while
felonious assault is a crime against a person, MCL 777.16d, and would therefore qualify as a
contemporaneous felony because it occurred “within 24 hours of the sentencing offense,” MCL
777.42(a)(i), and “has not and will not result in a separate conviction,” MCL 777.42(a)(ii), it was
the only contemporaneous felonious act that could be scored under OV 12. A 10-point score for
OV 12 requires two contemporaneous felonious criminal acts against a person. Thus, only 5
points could be properly assessed to defendant under OV 12, MCL 777.42(1)(d).


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                                                D

       The trial court scored a total of 10 prior record variable points and 105 OV points,
placing defendant in PRV Level C and OV Level VI, with a minimum sentencing guidelines
range of 135 to 225 months.3 Given that the trial court should have scored OV 11 at zero points,
not 25 points, and OV 12 at five points, not 10 points, defendant’s corrected OV score becomes
75 points, placing him in OV level IV, with a minimum sentencing guidelines range of 108 to
180 months. MCL 777.62. Because the scoring errors affect the appropriate guidelines range,
we vacate the judgment of sentence and remand for resentencing. People v Francisco, 474 Mich
82, 89 n 8; 711 NW2d 44 (2006).

        Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
jurisdiction.

                                                            /s/ Stephen L. Borrello
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Cynthia Diane Stephens




3
 At sentencing, the trial court erroneously referred to the guidelines range as 126 to 210 months.
That is the range for an offender who falls at the C-V cell of the sentencing grid for a class A
offense. MCL 777.62.


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