                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  October 12, 2017
              Plaintiff-Appellee,

v                                                                 No. 332970
                                                                  Monroe Circuit Court
EVAN MICHAEL MORICH,                                              LC No. 15-242308-FC

              Defendant-Appellant.


Before: GLEICHER, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

       A jury convicted defendant of armed robbery, MCL 750.529, unlawful imprisonment,
MCL 750.349b, felon in possession of a firearm, MCL 750.224f, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b, for the attack and robbery
of Thomas Melcer. Defendant challenges the sufficiency of the evidence supporting his felon in
possession and felony-firearm convictions and the scoring of various offense variables at
sentencing. We discern no error and affirm.

                                          I. FACTS

        Defendant met Melcer in the winter of 2015 while both were utilizing services at Monroe
Community Mental Health. Defendant introduced Melcer to his girlfriend, Honi Werner, and
Melcer and Werner also became friends. Melcer has a seizure disorder and impairments
requiring him to use a cane. Due to these conditions, Melcer is unable to drive. On the
afternoon of August 6, 2015, Melcer asked Werner to drive him to a local pharmacy to refill his
prescriptions. Melcer testified that afterward, Werner invited him over for dinner. Upon
arriving at Werner’s home, defendant appeared and asked Werner to drive him to Detroit to buy
some heroin. Defendant and Werner left, leaving Melcer alone at Werner’s house. Werner
described, however, that Melcer had prearranged a visit to Werner’s house after the pharmacy so
that he could sell his prescription medications to defendant.

       Werner testified that she took defendant to a house near Detroit to purchase drugs.
During this trip, defendant told her that he intended to rob Melcer upon their return. Defendant
took from the Detroit house a ski mask, dark blue work pants, black work boots, “and what
[Werner] believe[d] . . . was a shotgun” encased in cardboard. The pair stopped at a gas station
where defendant changed his pants and shoes and put on a hoodie and ski mask. Defendant

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ordered Werner to go for a drive before returning home. Defendant took the shotgun and walked
the rest of the way.

       Melcer described that at approximately 8:30 p.m., a man wearing a mask entered
Werner’s house through the back door and pulled a shotgun out of a box. Melcer identified
defendant as his assailant by his voice and build. Defendant hit Melcer with the barrel of the gun
and ordered him to go down to the basement. Defendant held Melcer in the basement for an
extended period. He tied Melcer up and pulled his shirt over his head. Once defendant believed
Melcer’s vision was impaired, he removed his mask. Melcer could see through his shirt,
however, and positively identified defendant as his assailant. Defendant poked Melcer with the
gun and threatened to kill him and his family if he called the police. Defendant then took
Melcer’s medications and wallet, which contained $1,150 in cash, credit cards, and a food card.
He placed his loot into a bag.

        Werner returned home in the midst of Melcer’s imprisonment. Defendant pretended to
threaten her but then gave her the bag of stolen items. Werner claimed that an unknown man
was also in the basement and she handed him the bag. Werner drove this man to his house and
when she returned, defendant was gone. Melcer asked Werner to take him to the hospital. She
did not want to, but she dropped him off and drove away.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant contends that the prosecution presented insufficient evidence that he possessed
a gun, negating a necessary element of his felony-firearm and felon-in-possession convictions.
A “firearm” is defined for the purposes of both statutes as “any weapon which will, is designed
to, or may be readily converted to expel a projectile by action of an explosive.” MCL
750.222(e). We review de novo challenges to the sufficiency of the evidence, viewing the
evidence in the light most favorable to the prosecution to determine if a rational jury could find
the offense elements proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515;
489 NW2d 748, amended on other grounds 441 Mich 1201 (1992).

        On appeal, defendant notes that “no gun was recovered.” Defendant recites Melcer’s
description of defendant’s weapon as a “Remington 870 12 gauge shotgun,” but downplays this
testimony as Melcer identified the type of weapon based on the sound it made when racked and
the feel of the barrel on his neck. Based on this “speculative” testimony, defendant contends that
the weapon was “just as likely . . . a gas, air or BB gun incapable of propelling a projectile
exceeding .177 caliber” and therefore falling outside the statutory definition of “firearm.”

        First and foremost, the fact that no gun was found after the crime says little, if anything,
about whether a gun was used during the crime. Defendant could have disposed of his weapon
anytime and anywhere after the robbery. Indeed, Werner testified that defendant returned to
Detroit after the offense; defendant could have disposed of the shotgun along the highway.

        Moreover, Melcer’s testimony was more than adequate to establish the type of weapon
used during the offense. Melcer saw the masked man “pull[] out a shotgun out of the box”
immediately upon entering the room. Melcer was in close proximity to the man and “g[o]t a
decent look at this gun.” Based on his long experience as a hunter, Melcer identified the weapon

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as a shotgun. Its barrel was approximately one-half inch in diameter, much too large to propel
BBs or air gun pellets. The masked man struck Melcer in the face with gun’s barrel and placed
the barrel against the back of his head. Melcer was able to feel the sturdy frame of the gun’s
barrel, which was more consistent with a shotgun than a BB or pellet gun. Ultimately, Melcer
was able to identify the brand of weapon based on the sound it made when racked. Again based
on his decades of hunting experience, Melcer described that a cheaper shotgun brand makes a
rattling noise when racked while a Remington makes a smooth click. Melcer’s identification of
the manufacturer, model, and gauge number of the weapon are the types of details that could lead
a reasonable juror to credit his testimony.

        Further, Werner testified that defendant took what she believed was a shotgun from the
basement of the Detroit house. When asked why she thought it was a shotgun, she responded,
“Because it was a gun and it was long and it was black.” “[T]he credibility of witnesses is for
the jury” to decide. People v Lemmon, 456 Mich 625, 643; 576 NW2d 129 (1998). Werner’s
testimony supported Melcer’s description, strengthening the credibility of both witnesses. And
their testimony was more than sufficient to support defendant’s convictions.

                                   II. OFFENSE VARIABLES

        Defendant also argues the trial court improperly scored offense variables (OVs) 1, 2, 4, 8,
and 10 when calculating his minimum sentencing guidelines range. Defendant preserved his
challenges to OVs 8 and 10 by objecting at sentencing. See People v Sours, 315 Mich App 346,
348; 890 NW2d 401 (2016). His challenges to OVs 1, 2, and 4 are unpreserved, however. In
relation to defendant’s preserved challenges, we review de novo the trial court’s interpretation
and application of the relevant sentencing statutes. People v Cannon, 481 Mich 152, 156; 749
NW2d 257 (2008). We review for clear error the trial court’s factual determinations, and those
factual determinations must be supported by a preponderance of the evidence. People v Hardy,
494 Mich 430, 438; 835 NW2d 340 (2013). We review defendant’s unpreserved challenges for
plain error affecting defendant’s substantial rights. People v Kimble, 470 Mich 305, 312; 684
NW2d 669 (2004).

         The trial court assessed 15 points for OV 1 (aggravated use of a weapon) and 5 points for
OV 2 (lethal potential of weapon possessed or used). MCL 777.31(1)(c) provides for a 15-point
score for OV 1 if “[a] firearm was pointed at or toward a victim . . . .” MCL 777.32(1)(d)
provides that 5 points should be scored for OV 2 if “[t]he offender possessed or used a pistol,
rifle, shotgun, or knife or other cutting or stabbing weapon.” Defendant argues both OVs were
improperly scored for the same reason he challenges the sufficiency of the evidence supporting
his convictions—a lack of evidence that he was armed with an actual firearm during the robbery.
As discussed above, Melcer’s and Werner’s testimony was more than sufficient to establish that
defendant possessed a shotgun. Moreover, Melcer’s testimony that defendant hit him and poked
him with the shotgun barrel supports defendant “pointed [the shotgun] at or toward” Melcer.
Accordingly, the court did not err in scoring these variables.

        The trial court assessed 10 points under OV 4 (degree of psychological injury to a
victim). MCL 777.34(1)(a) provides that 10 points should be scored if “[s]erious psychological
injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a). The victim
need not actually seek out treatment to support scoring this variable. MCL 777.34(2).

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Defendant contends that Melcer “had already been going to Community Mental Health for quite
a long time,” and that his continued use of this service was insufficient to establish serious
psychological injury related specifically to his robbery. However, the victim impact statement
indicates that Melcer is “in constant fear for his life and that his sense of security and trust in
others has been shattered since this crime.” Although he “continue[d] engaging in mental health
services through Community Mental Health” rather than starting new services, Melcer was
“presently addressing these new issues in tandem with his previously diagnosed conditions.”
These observations clearly support scoring 10 points for OV 4.

        Defendant argues that the trial court improperly scored 15 points for OV 8 (asportation or
captivity). MCL 777.38(1)(a) provides for a 15-point score if “[a] victim was asported to
another place of greater danger or to a situation of greater danger or was held captive beyond the
time necessary to commit the offense.” “A victim is asported to a place or situation involving
greater danger when moved away from the presence or observation of others.” People v
Chelmicki, 305 Mich App 58, 70-71; 850 NW2d 612 (2014) (emphasis added). A basement is
certainly a more secluded, isolated area of a home than a first-floor living room. Defendant also
forced Melcer to go into a small room in the basement, further increasing his level of isolation
from the observation of others. The trial court could reasonably infer from this evidence that
defendant moved Melcer to a place where the robbery would be less likely to be discovered by
neighbors or others, i.e., a situation of “greater danger.” The trial court’s score was proper.

        Finally, defendant argues that the trial court improperly scored 15 points for OV 10
(exploitation of vulnerable victim). MCL 777.40(1)(a) provides for a 15-point score if
“[p]redatory conduct was involved.” Predatory conduct is defined as “preoffense conduct
directed at a victim . . . for the primary purpose of victimization.” MCL 777.40(3)(a).

       [P]redatory conduct does not encompass “any preoffense conduct, but rather only
       those forms of preoffense conduct that are commonly understood as being
       predatory in nature . . . as opposed to purely opportunistic criminal conduct or
       preoffense conduct involving nothing more than run-of-the-mill planning to effect
       a crime or subsequent escape without detection.” [People v Kosik, 303 Mich App
       146, 160; 841 NW2d 906 (2013), quoting People v Huston, 489 Mich 451, 462;
       802 NW2d 261 (2011) (emphasis by Kosik).]

Defendant asserts that the evidence does not support that he engaged in preoffense conduct
directed at a victim for the primary purpose of victimization.

       The record establishes that Melcer was taken to Werner’s house and remained there while
defendant and Werner drove to Detroit. In Detroit, defendant told Werner that he intended to rob
Melcer once they returned, and he obtained a shotgun and different clothes for the specific
purpose of carrying out this plan. “The timing of an offense, including watching the victim and
waiting until the victim is alone before victimizing him or her, may be evidence of predatory
conduct.” Kosik, 303 Mich App at 160. Here, defendant knew that Melcer was alone at
Werner’s house. Melcer explained that he does not drive because he experiences seizures, which
means he was effectively stranded in the home. Defendant ordered Werner to go for a drive
before she returned to her house, presumably because he wanted to rob Melcer without Werner


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being there. This constitutes preoffense conduct directed at Melcer for the primary purpose of
his victimization, supporting the score.

       We affirm.



                                                         /s/ Elizabeth L. Gleicher
                                                         /s/ Karen M. Fort Hood
                                                         /s/ Brock A. Swartzle




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