                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 18, 2014
                Plaintiff-Appellee,

v                                                                  No. 316433
                                                                   Wayne Circuit Court
MARQUAN ANTONIO JACKSON,                                           LC No. 12-008303-FJ

                Defendant-Appellant.


Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals as of right from his convictions following a jury trial of carjacking,
MCL 750.529a, and armed robbery, MCL 750.529. The trial court sentenced defendant to serve
10 to 20 years’ imprisonment for both convictions, with credit for 293 days served. We affirm
defendant’s convictions, but remand for resentencing.

                                       I. BASIC FACTS

        On July 9, 2012, at around 7:00 a.m., Louis Poineau was driving to work when a vehicle
passed him at a high rate of speed and then stopped in front of his vehicle. A tan colored SUV
then rear-ended Poineau’s vehicle, pushing him into the vehicle in front. Two males got out of
the front vehicle and pulled Poineau out of his vehicle at gunpoint. Poineau said that four to six
men surrounded him and demanded his money, which he turned over. The men also took his
phone, his credit and debit cards, his identification, and his vehicle. On July 12, 2012, after
turning himself in to the police, defendant confessed to participating in the carjacking and
robbery of Poineau. He also made several incriminating statements in regard to a number of
additional robberies and carjackings. Defense counsel moved to suppress defendant’s statement
as involuntary and, after a Walker1 hearing, the trial court denied the motion. This ruling is
challenged on appeal.




1
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


                                               -1-
        Also at issue is the court’s admission of testimony concerning an additional, uncharged
carjacking. The victim of that carjacking, Gerald Moss, testified that he was carjacked and
robbed at around 6:30 a.m. on July 9, 2012. Defendant also confessed to being a participant in
this carjacking. Moss’s vehicle was later used in the carjacking of Poineau. Moss identified
defendant as being in the backseat of the perpetrators’ vehicle. Defendant sought to suppress
Moss’s in-court identification because the initial identification occurred during the preliminary
examination and was, according to defendant, impermissibly suggestive. After a Wade2 hearing,
the trial court found that there was an independent basis for Moss’s in-court identification and
denied defendant’s motion to suppress the identification.

                                 II. VOLUNTARY CONFESSION

        Defendant argues that the trial court erred in denying his motion to suppress his statement
because his Miranda3 waiver and confession were not voluntary. Defendant asserts the
statement was involuntary because, although he told the police that he had asthma before he gave
the statement, he was not taken to the hospital for treatment until approximately four hours after
making the statement. “When reviewing a trial court’s determination of the voluntariness of
inculpatory statements, this Court must examine the entire record and make an independent
determination, but will not disturb the trial court’s factual findings absent clear error.” People v
Shipley, 256 Mich App 367, 372-373; 662 NW2d 856 (2003). “A finding is clearly erroneous if
it leaves this Court with a definite and firm conviction that a mistake was made.” Id. at 373.
“[D]eference is given to the trial court’s assessment of the weight of the evidence and credibility
of the witnesses.” Id.

       It is well settled that admitting an involuntary confession into evidence violates a
defendant’s due process rights. Lynumn v Illinois, 372 US 528, 537; 83 S Ct 917; 9 L Ed 2d 922
(1963); People v Conte, 421 Mich 704, 722; 365 NW2d 648 (1984). When determining the
voluntariness of a statement, a court looks to the totality of the circumstances to see if the
statement was given voluntarily and was the product of the defendant’s own free will. People v
Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988). To determine whether the statement
was freely and voluntarily made, the following factors are taken into consideration:

         [T]he age of the accused; his lack of education or his intelligence level; the extent
         of his previous experience with the police; the repeated and prolonged nature of
         the questioning; the length of the detention of the accused before he gave the
         statement in question; the lack of any advice to the accused of his constitutional
         rights; whether there was an unnecessary delay in bringing him before a
         magistrate before he gave the confession; whether the accused was injured,
         intoxicated or drugged, or in ill health when he gave the statement; whether the
         accused was deprived of food, sleep, or medical attention; whether the accused


2
    United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
3
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).



                                                 -2-
       was physically abused; and whether the suspect was threatened with abuse. [Id. at
       334.]

“The absence or presence of any one of these factors is not necessarily conclusive on the issue of
voluntariness.” Id.

         The record reveals that defendant disclosed, as a routine part of his booking, that he
suffered from asthma. Defendant’s booking sheet indicated that he took Albuterol for his
asthma, but he had not taken the medication in the past year. The booking sheet classified
defendant’s asthma as a “non-emergency medical issue.” Detroit Police Sergeant Robert
Wellman, who took defendant’s statement, testified that defendant read and understood his
Miranda rights at the outset of the interview. Defendant did not have any problem reading his
rights, nor did he indicate that he did not understand them. In addition, defendant did not
indicate that he took any type of medication or that he needed any type of medication. Wellman
did not believe that defendant ever appeared in need of medical assistance or that he was unable
to breathe. If defendant had displayed any sign that he needed medical attention or was suffering
from some sort of illness, Wellman testified that he would have taken defendant to the hospital
immediately, without waiting for defendant to finish giving his statement. Wellman did not need
to take defendant to the hospital in this case, though, because defendant “didn’t show any signs,
at all” of the need for medical assistance.

        Wellman further testified that after defendant indicated that he understood his rights,
defendant confessed his involvement in the charged offenses, as well as additional, uncharged
offenses. Defendant began giving his statement at approximately 8:55 p.m. on July 11, 2012,
and finished his statement at approximately 11:15 p.m. Defendant read his statement at the end
and verified its accuracy. Wellman testified that neither he nor anyone else used any physical
force, verbal force, threats, or coercion in taking defendant’s statement.

        Wellman testified that after defendant gave his statement, he was returned to his jail cell.
At approximately midnight, an officer conducted a walk-through of defendant’s cell block and
reported that everything was “okay” at that time. Later, at approximately 3:00 a.m. the morning
after giving his statement, defendant was taken to the hospital. It appears that defendant was
taken to the hospital, pursuant to police procedure, because his intake form indicated a non-
emergency health issue. Defendant returned from the hospital at approximately 4:35 a.m. the
same morning. While at the hospital, defendant was given a prescription for Albuterol; officers
had this prescription filled for defendant. Records did not indicate whether defendant was given
a dose of the prescription while he was in custody; however, records indicated that other asthma
patients who were in custody were given doses of their respective medications.

        The record supports the trial court’s finding of voluntariness. According to unrebutted
testimony, defendant indicated that he knew and understood his rights, and he was not threatened
in any manner. And, contrary to defendant’s assertions on appeal, there is no evidence to
support his assertion that his statement was influenced by his asthma. Wellman presented
unrebutted testimony that defendant did not appear to have any trouble breathing or that he
otherwise needed medical assistance at the time he gave his statement. Although defendant
subsequently visited the hospital, this does not render his statement involuntary. Rather, as
noted, the only testimony presented at the Walker hearing was that defendant did not suffer from

                                                -3-
any apparent medical conditions at the time he gave his statement. Furthermore, it appears that
defendant’s visit to the hospital was a matter of routine procedure, not associated with a medical
emergency. Indeed, it is not apparent from the record that defendant was even given a dose of
the medication he was prescribed—a medication he had reportedly not taken for over a year. As
such, we find no basis for disturbing the trial court’s finding that defendant’s statement was
voluntary. See Cipriano, 431 Mich at 334; Shipley, 256 Mich App at 372-373.

                                III. OTHER ACTS EVIDENCE

        Defendant next argues that the trial court erred in admitting evidence about the Moss
carjacking. He also contends that the trial court erred in admitting testimony from Officer Dana
Russell concerning another stolen automobile, a high-speed chase, and one of defendant’s
accomplices who fled from police officers. The prosecutor offered the evidence pursuant to
MRE 404(b); he also argued that the evidence was admissible as res gestae evidence. The
prosecutor argued that the other carjackings were so intertwined that presentation thereof was
necessary in order to give the jury the complete circumstances of the charged offenses. The trial
court ruled that the other-acts evidence was admissible pursuant to MRE 404(b).4 The decision
whether to admit evidence is within the trial court’s discretion and will be reversed on appeal
only if there is an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607
(1999). “A trial 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).

                                   A. MOSS CARJACKING

        Moss testified that on July 9, 2012, at approximately 6:30 a.m., he stopped his gold Ford
Explorer at a gas station and went inside to purchase a cup of coffee. When he came out of the
gas station, a silver Dodge Intrepid pulled up near him, and a man, later identified as Edward
Spann5, got out of the passenger seat, armed with a gun. The man pointed the gun at Moss’s
chest and told him to “give him my stuff.” Moss dropped his keys on the ground and gave the
man his phone and his money. One of the occupants of the Intrepid got out, picked up Moss’s
keys, jumped in the Explorer, and drove away. As will be discussed in more detail infra, Moss
identified defendant as one of the occupants of the Intrepid.




4
 The trial court did not render a ruling as to whether the evidence was also admissible as res
gestae evidence.
5
  Spann was convicted of several charges stemming from the events underlying this prosecution.
His delayed application for leave to appeal was denied. People v Spann, unpublished order of
the Court of Appeals, entered November 20, 2013 (Docket No. 317736).


                                               -4-
                                  B. RUSSELL’S TESTIMONY

        Russell testified that she was assigned to investigate the Moss carjacking and that, at
around 6:30 p.m. on July 9, 2012, she saw Moss’s Explorer parked at a gas station. She testified
that she saw an individual in the Explorer conversing with individuals in a purple Chevrolet
Caprice. Russell testified that she saw defendant in the Caprice, and that the Caprice had been
stolen earlier.

        The Caprice and the Explorer left the gas station and continued onto I-94 West; Russell
followed them in an unmarked police car. While she was following the two vehicles, a white
Cadillac Escalade pulled up alongside the Caprice and began motioning for the Caprice to pull
over. Thereafter, Russell heard gunshots, but was not certain from which vehicles the gunshots
originated. Russell testified that the vehicles were traveling approximately 90 to 95 miles per
hour on the highway. Eventually, the Explorer exited the highway, and Russell continued to
follow it. Later, a marked police car attempted a traffic stop on the Explorer, and one of the
occupants jumped from the vehicle and ran.

       Russell subsequently returned to the gas station where Moss’s Explorer had been stolen
and obtained surveillance video of the carjacking. She testified that someone in a white shirt was
present inside the silver Intrepid during the carjacking. She also testified that, when she saw
defendant in the stolen Caprice, he was wearing a white shirt.

                                         C. MRE 404(B)

        To be admissible under MRE 404(b), other acts evidence (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).
Additionally, upon request, the trial court “may provide a limiting instruction under MRE 105.”
Id.

       A proper purpose is one offered “under something other than a character to conduct
theory.” People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), amended on other
grounds 445 Mich 1205 (1994). Here, the prosecution sought to introduce other acts evidence to
show a scheme, plan, or system in doing the acts, which is a proper purpose under MRE 404(b).

       “Nevertheless, the prosecution may not mechanically recite a permissible reason without
explaining how the evidence is relevant.” People v McGhee, 268 Mich App 600, 610; 709
NW2d 595 (2005). Logical relevance is the “touchstone” of the admissibility of other acts
evidence, and it “is determined by the application of” MRE 401 and 402. People v Crawford,
458 Mich 376, 388; 582 NW2d 785 (1998). MRE 401 provides that relevant evidence is
evidence having “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Relevance has two elements: materiality and probative force. McGhee, 268 Mich
App at 610. Evidence is material if it goes to a fact that is truly at issue. Id. If the evidence has
any tendency to prove a fact at issue, then there is sufficient probative force. People v Starr, 457
Mich 490, 497-498; 577 NW2d 673 (1998).

       Evidence of misconduct similar to that charged is logically relevant to show that the
                                                -5-
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). Moreover, it must
support an inference that the defendant employed the common plan or scheme in committing the
charged offense. People v Ackerman, 257 Mich App 434, 440-441; 669 NW2d 818 (2003).

       We find that the trial court did not err by admitting testimony about the Moss carjacking
pursuant to MRE 404(b). The Moss carjacking was substantially similar to the charged
carjacking so as to support an inference that they were manifestations of a common plan,
scheme, or system. Both carjackings were committed less than one hour apart and they involved
the same perpetrators, similar acts, and the same mode of operating—notably, the perpetrators
would rapidly approach the victim in another vehicle, hit or come close to the victim’s car to
prevent the victim from escaping, have one or more assailants jump out and point a gun at the
victim’s chest or midsection, and then the perpetrators would demand the victim’s personal
possessions and take the victim’s car. According to defendant’s subsequently-admitted
confession, he and his cohorts stole the vehicles pursuant to a plan to sell the vehicles to an
individual who operated a repair shop. The similarity between the acts, and defendant’s admitted
motive in stealing the vehicles, demonstrates that they were part of the same plan, scheme, or
system. See Dobek, 274 Mich App at 90; Ackerman, 257 Mich App at 440-441.

        We also find that the probative value of the evidence was not substantially outweighed by
the danger of unfair prejudice. “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.” People v Waclawski, 286 Mich App
634, 670; 780 NW2d 321 (2009). All relevant evidence is somewhat prejudicial. People v
Magyar, 250 Mich App 408, 416; 648 NW2d 215 (2002). “Unfair prejudice occurs ‘when there
is a tendency that the evidence will be given undue or preemptive weight by the jury, or when it
would be inequitable to allow use of the evidence.’ ” Waclawski, 286 Mich App at 672, quoting
People v Taylor, 252 Mich App 519, 521-522; 652 NW2d 526 (2002).

        Here the trial court properly found that although the other acts evidence was prejudicial
to defendant, the prejudice did not substantially outweigh the evidence’s probative effect. As the
previous discussion shows, the evidence was highly probative on defendant’s involvement in the
charged crimes. It showed defendant’s involvement in an orchestrated series of crimes that
culminated in the armed robbery of Poineau and the carjacking of his vehicle. It was also
significantly probative on issues of credibility related to defendant’s confession. The prejudicial
effect of the evidence stemmed directly from its relevance. The court’s MRE 403 analysis was
sound. Moreover, the trial court gave a clear limiting instruction on how the other acts evidence
could be considered. Jurors are presumed to follow their instructions. People v Graves, 458
Mich 476, 486; 581 NW2d 229 (1998).6



6
  To the extent that defendant argues that testimony about a high-speed chase and shooting on an
interstate highway was wrongly admitted, we note that defendant’s statement includes references
to these events and that defendant does not argue that his statements related thereto were

                                                -6-
   IV. REFERENCES TO DEFENDANT’S PRIOR ARREST AND PENDING CHARGES

         Next, defendant notes that his confession contained references to the fact that he had
previously been arrested and that, at the time of his confession, he had additional, unrelated
charges pending against him. Defendant did not object to the admission of these statements at
trial or move to redact the statements from his confession. We review this unpreserved issue for
plain error affecting substantial rights. People v Jones, 468 Mich 345, 355; 662 NW2d 376
(2003). Under plain error review, reversal is not warranted unless the plain error resulted in the
conviction of an innocent person or seriously affected the fairness, integrity, or public reputation
of the proceedings. Id.

        Evidence of defendant’s prior arrest and pending charges should have, upon request, been
redacted from defendant’s confession. The prosecutor does not point to a proper purpose for
admitting this evidence, nor can we ascertain any such purpose. Moreover, such evidence is not
probative as it has no tendency to make any fact of consequence more or less probable.
However, we cannot conclude that defendant’s assertion of error affected his substantial rights or
that it warrants reversal in this case. Evidence of defendant’s prior arrest and pending charges
was unlikely to have affected the outcome at trial in light of the compelling evidence against
defendant. Defendant confessed to the charged offenses. In addition, defendant’s confession
was corroborated, at least in part, by Moss’s and Poineau’s testimony. As such, defendant
cannot make the requisite showing of prejudice in order to establish that the plain error affected
his substantial rights. Id. at 356.

        Defendant also argues that his counsel was ineffective for failing to object to the
admission of that portion of his confession. To establish ineffective assistance of counsel, a
defendant must show: (1) that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms; (2) that there is a reasonable probability
that, but for counsel’s error, the result of the proceedings would have been different. People v
Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). Here, assuming without deciding that
defense counsel should have objected, defendant is not entitled to relief because he cannot show
that the outcome of the proceedings would have been different. See id. As noted, the evidence
against defendant was compelling, given defendant’s confession and testimony from other
witnesses that corroborated his confession. As such, defendant is not entitled to relief on his
attendant claim for ineffective assistance of counsel.

                                      V. IDENTIFICATION

      Defendant next argues he was denied due process because there was no independent basis
for Moss’s trial identification of defendant, which, he argues, was based on impermissibly

improperly admitted. Moreover, in light of defendant’s properly admitted confession to the
charged offenses, we find that, even assuming error, defendant could not establish that the error,
if any, was outcome determinative. See Lukity, 460 Mich at 496 (internal quotation marks
omitted) (explaining that “preserved, nonconstitutional error is not a ground for reversal unless
after an examination of the entire cause, it shall affirmatively appear that it is more probable than
not that the error was outcome determinative.”).


                                                -7-
suggestive influences at the preliminary examination. “If a witness is exposed to an
impermissibly suggestive pretrial identification procedure, the witness’ in-court identification
will not be allowed unless the prosecution shows by clear and convincing evidence that the in-
court identification will be based on a sufficiently independent basis to purge the taint of the
illegal identification.” People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998). “The
defendant must show that in light of the totality of the circumstances, the procedure was so
impermissibly suggestive as to have led to a substantial likelihood of misidentification.” Id.

        The determination whether an in-court identification has an independent basis is a factual
inquiry, and the trial court’s findings are reviewed for clear error. People v Gray, 457 Mich 107,
115; 577 NW2d 92 (1998). “Clear error exists when the reviewing court is left with a definite
and firm conviction that a mistake was made.” People v Hornsby, 251 Mich App 462, 466; 650
NW2d 700 (2002). Erroneously admitted identification testimony warrants reversal when the
error is not harmless beyond a reasonable doubt. People v Winans, 187 Mich App 294, 299; 466
NW2d 731 (1991).

       Although the trial court did not expressly find that the pretrial identification was unduly
suggestive, we agree with defendant that it was a suggestive atmosphere. According to Moss, at
the time he identified defendant, which was during the preliminary examination, defendant was
wearing a prisoner’s jumpsuit and was in handcuffs or chains. Although defendant was not the
only person brought into the courtroom in chains and jail clothing, his presence in “prison garb”
convinces us that the atmosphere was nonetheless suggestive. See Colon, 233 Mich App at 305
(“Here, there is no question that the preliminary examination was a suggestive atmosphere in that
defendant was placed in the courtroom in prison garb.”).

         Without specifically concluding that the pretrial procedure was impermissibly suggestive,
the trial court held that an independent basis for Moss’s in-court identification existed:

               I’m satisfied that the identification was not the product of any police
       misconduct, and that basically that there is a basis by which this witness could
       identify him. He indicated that his identification was based solely upon what he
       recalls when he was being car-jacked; that he was able to, due to length of his
       attention, and there was nothing blocking his view of the defendant. He was
       somewhat familiar with him, but couldn’t place him, although he did indicate to
       the officers that he did not know him.

       The following eight factors should be considered, where relevant, to determine if an
independent basis exists for admission of an in-court identification:

       (1) prior relationship with or knowledge of the defendant; (2) opportunity to
       observe the offense, including length of time, lighting, and proximity to the
       criminal act; (3) length of time between the offense and the disputed
       identification; (4) accuracy of description compared to the defendant’s actual
       appearance; (5) previous proper identification or failure to identify the defendant;
       (6) any . . . identification lineup of another person as the perpetrator; (7) the
       nature of the offense and the victim’s age, intelligence, and psychological state;


                                               -8-
       and (8) any idiosyncratic or special features of the defendant. [People v Davis,
       241 Mich App 697, 702-703; 617 NW2d 381 (2000).]

         At the Wade hearing, Moss testified that while he thought defendant looked familiar at
the time of the offense, he did not initially identify defendant as one of the perpetrators. Later,
however, he realized where he knew defendant, which was through defendant’s family.7 He
testified that he had known defendant’s mother for around ten years before the carjacking,
although he had not seen defendant in seven years and defendant was a child at the time. He
testified that he did not have any question that defendant is the person he saw at the time of the
offense. He further testified that the carjacking lasted 12 to 13 seconds, that it was daylight, and
that defendant did not have anything covering his face. Moss specifically stated that he could
“see [defendant’s] face” and that defendant had “braids or dreads.” He said the car defendant
was in was probably four to five feet away. Further, Moss had not previously failed to identify
defendant; he testified that he was sick at the time a lineup was offered and he did not
reschedule. Additionally, there are no allegations that Moss identified someone else as the
person in the backseat of the car. Based on these facts, we conclude that the trial court did not
clearly err in finding that Moss had a sufficiently independent basis upon which to identify
defendant. See Gray, 457 Mich at 115. Moreover, given the overwhelming evidence presented
by defendant’s confession to having committed the offense, as corroborated by other evidence,
any error in admitting Moss’s identification testimony was harmless beyond a reasonable doubt
such that reversal is not required. See Winans, 187 Mich App at 299.

                                        VI. SENTENCING

        Lastly, defendant argues that the trial court scored offense variable (OV) 1, OV 2, and
OV 10 incorrectly. Defendant did not object to the scoring of these offense variables at
sentencing. “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. However,
unpreserved challenges to the sentencing guidelines are reviewed for plain error affecting
defendant’s substantial rights. People v Meshell, 265 Mich App 616, 638; 696 NW2d 754
(2005).




7
  Defendant’s mother testified at the Wade hearing that she spoke with Moss outside the
courtroom before the preliminary examination. He told her that he was in court because he had
been carjacked by “some dark-skinned dudes” and she told him that she was there because her
son was “in some stuff,” but she never pointed defendant out to Moss. Moss testified that
defendant’s mother spoke to him after he identified defendant at the preliminary examination and
that she apologized for her son’s actions.


                                                 -9-
                                                 A. OV 1

       The trial court scored 15 points for OV 1. OV 1 addresses the aggravated use of a
weapon. MCL 777.31(1). The trial court must score 15 points if “a firearm was pointed at or
toward a victim . . . .” MCL 777.31(1)(c). However, the trial court must only score 5 points if “a
weapon was displayed or implied.” MCL 777.31(1)(e). Defendant argues that a “firearm” was
not pointed toward Poineau because the weapon used was a BB gun, which does not qualify as a
firearm under MCL 8.3t.8 MCL 8.3t provides:

                  The word “firearm”, except as otherwise specifically defined in the
          statutes, shall be construed to include any weapon from which a dangerous
          projectile may be propelled by using explosives, gas or air as a means of
          propulsion, except any smooth bore rifle or handgun designed and manufactured
          exclusively for propelling BB’s not exceeding .177 calibre by means of spring,
          gas or air.

Here, the testimony established that a BB gun was used in the carjacking and armed robbery, and
there is no record evidence establishing that the BB gun was capable of propelling BB’s
exceeding .177 calibre. Accordingly, because the BB gun does not meet the definition of
“firearm,” the trial court erred in scoring OV 1 at 15 points. However, it would have been
appropriate to score 5 points because a BB gun is certainly a “weapon” and it was—according to
Poineau’s testimony—displayed.

                                                 B. OV 2

         The trial court scored 5 points for OV 2, which addresses the lethal potential of a weapon
possessed or used during the commission of the offense. MCL 777.32(1). The trial court must
assess 5 points if the offender “possessed or used a pistol, rifle, shotgun . . . ,” MCL
777.32(1)(d), 1 point if the offender “possessed or used any other potentially lethal weapon,”
MCL 777.32(1)(e), and no points are assessed if the offender “possessed or used no weapon,”
MCL 777.32(1)(f). A “ ‘[p]istol’, ‘rifle’, or ‘shotgun’ includes a revolver, semi-automatic pistol,
rifle, shotgun, combination rifle and shotgun, or other firearm manufactured in or after 1898 that
fires fixed ammunition, but does not include a fully automatic weapon or short-barreled shotgun
or short-barreled rifle.” MCL 777.32(3)(c). Defendant asserts that a BB gun does not fire fixed
ammunition, so it was inappropriate for the trial court to score OV 2 at 5 points. Plaintiff
concedes that OV 2 was misscored and should have been scored at 0 points. We agree that the
trial court erred in scoring OV 2 at 5 points. And because there is no record evidence that the
BB gun was potentially lethal or used in such a way to represent a potentially lethal weapon, we
agree that no points should have been scored for OV 2.




8
    Plaintiff fails to address the scoring of OV 1 in its appellate brief.


                                                    -10-
                                            C. OV 10

        Here, the trial court scored 15 points under OV 10. OV 10 addresses the exploitation of a
vulnerable victim. MCL 777.40(1). The trial court must assess 15 points if “[p]redatory conduct
was involved.” MCL 777.40(1)(a). “ ‘[P]redatory conduct’ under the statute is behavior that is
predatory in nature, precedes the offense, [and is] directed at a person for the primary purpose of
causing that person to suffer from an injurious action . . . .” People v Huston, 489 Mich 451,
463; 802 NW2d 261 (2011) (citation and quotation omitted). In Huston, our Supreme Court
recognized that “[f]ew criminal offenses arise utterly spontaneously and without forethought.”
Id. at 461. Accordingly, “reading MCL 777.40(1)(a) as requiring 15 points to be assessed for
OV 10 in every case would essentially render nugatory MCL 777.40(1)(b) through (d), the
provisions directing when OV 10 requires a score of 10, 5, and zero points respectively[.]” Id. at
461-462. “To enable MCL 777.40(1)(a) whenever there is any ‘preoffense conduct’ would
effectively ensure that MCL 777.40(1)(b) through (d) would never be enabled.” Id. at 462.

       Thus, to give meaning to the entirety of MCL 777.40(1), and out of recognition
       that 15 points for “predatory conduct” constitutes the highest number of points
       available under OV 10 and that “preoffense conduct” is being used to define
       “predatory conduct,” [our Supreme Court] conclude[d] that the latter term does
       not encompass any “preoffense conduct,” but rather only those forms of
       “preoffense conduct” that are commonly understood as being “predatory” in
       nature, e.g., lying in wait and stalking, as opposed to purely opportunistic criminal
       conduct or preoffense conduct involving nothing more than run-of-the-mill
       planning to effect a crime or subsequent escape without detection. [Id. (citation
       and quotation omitted).]

        Here, the record does not show that there was any predatory conduct on defendant’s part.
Defendant’s statement makes clear that he and a group of others were driving around looking for
possible victims. They had a general plan to take their victims’ money and vehicles, but nothing
on the record suggests that they were lying in wait or stalking the victims. In particular, in
regard to Poineau, defendant said in his statement that they were heading to his uncle’s house
when they saw Poineau’s vehicle. Defendant said that another of his associates called Spann and
told him they were going to “get” the car behind Spann. After the call, the two vehicles stopped,
boxing Poineau’s vehicle in so he could not drive away. Although a group of perpetrators
surrounded Poineau, nothing on the record suggests this was anything other than a spontaneous
crime of opportunity, albeit one that was executed in accord with a common scheme or plan.
Accordingly, the trial court erred in scoring OV 10 at 15 points. See id. (explaining that
predatory conduct is more than purely opportunistic criminal conduct).

        According to the sentencing information report attached to defendant’s brief, defendant’s
total OV score, including the errors noted above, was 65 points. For the Class A offense of
carjacking, see MCL 777.16y, this placed defendant in OV Level IV on the sentencing grid. See
MCL 777.62. Combined with defendant’s PRV Level C, defendant’s recommended minimum
guidelines range was 108 to 180 months; his 120-month minimum sentence was within that
original range. See MCL 777.62. After reducing OV 1 to 5 points and subtracting the points
erroneously scored under OVs 2 and 10, defendant’s total OV score is 35 points. This places
defendant in OV Level II. See MCL 777.62. An OV Level II and PRV Level C combination

                                               -11-
produces a recommended minimum sentence of 51 to 85 months’ imprisonment. See MCL
777.62. Defendant’s 120-month sentence is outside of this range. Because defendant’s sentence
is based upon an inaccurate calculation of the guidelines range, which resulted in a sentence
outside the proper recommended minimum sentence range under the legislative guidelines,
defendant can show plain error and he is entitled to be resentenced. People v Francisco, 474
Mich 82, 88; 711 NW2d 44 (2006); People v Kimble, 470 Mich 305, 312-313; 684 NW2d 669
(2004).

       We affirm defendant’s convictions, but remand for resentencing consistent with this
opinion. We do not retain jurisdiction.

                                                         /s/ Michael J. Riordan
                                                         /s/ Jane M. Beckering
                                                         /s/ Mark T. Boonstra




                                            -12-
