                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 15, 2018
               Plaintiff-Appellee,

v                                                                   No. 337930
                                                                    Wayne Circuit Court
DENNIS MILLER,                                                      LC No. 16-010098-02-FC

               Defendant-Appellant.


Before: BORRELLO, P.J., and SAWYER and JANSEN, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of armed robbery, MCL 750.529. He was
sentenced to serve 120 to 240 months in prison. Defendant appeals by right, and we affirm.

                                            I. FACTS

       Defendant robbed 70-year-old Theodore Reynolds at a bus stop after Reynolds had
cashed a check at a nearby check-cashing business. Reynolds had placed almost $900 in his
pocket and was speaking with an elderly woman at the bus stop when defendant approached
from behind while co-defendant Earl Finley approached Reynolds from the front. The assailants
knocked Reynolds to the ground. Defendant held an object to Reynolds neck and Finley
searched his pockets before both assailants fled.

                                         II. ANALYSIS

                                 A. STANDARD OF REVIEW

         Defendant argues that the trial court erred in scoring offense variable 1 (OV 1) and
offense variable 10 (OV 10). This Court reviews the trial court’s factual determinations at
sentencing for clear error. 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. See also People v Calloway, 500 Mich 180, 184; 895
NW2d 165 (2017).


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        In a Standard 4 brief, defendant argues that his trial counsel provided ineffective
assistance. He failed to preserve this issue by moving for a new trial or a hearing pursuant to
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). See People v Payne, 285 Mich App
181, 188; 774 NW2d 714 (2009). Claims of ineffective assistance of counsel that are
unpreserved are limited to review for errors apparent on the record. People v Unger (On
Remand), 278 Mich App 210, 253; 749 NW2d 272 (2008). The constitutional question of
whether an attorney’s ineffective assistance deprived a defendant of his Sixth Amendment1 right
to counsel is reviewed de novo. Id. at 242.

                                   B. OFFENSE VARIABLES

       “A defendant is entitled to be sentenced by a trial court on the basis of accurate
information.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). A trial court relies
on inaccurate information when it sentences a defendant by consulting an inaccurate sentencing
guidelines range. Id. at 89 n 7. The trial court must consult the advisory sentencing guidelines
and assess the highest amount of possible points for all offense variables. People v Lockridge,
498 Mich 358, 392 n 28; 870 NW2d 502 (2015). The trial court’s determinations must be
supported by a preponderance of the evidence. People v Osantowski, 481 Mich 103, 111; 748
NW2d 799 (2008).

                                             1. OV 1

       Defendant argues that OV 1 was incorrectly assessed at 10 points. He maintains that the
record did not support the conclusion that defendant used a weapon. He argues that the presence
of a weapon was merely implied. We disagree.

       MCL 777.31(1) provides in pertinent part that the following points are to be assessed for
“aggravated use of a weapon”:

         (c) 15 points where a firearm was pointed at or toward a victim or the victim had
         a reasonable apprehension of an immediate battery when threatened with a knife
         or other cutting or stabbing weapon;

         (d) 10 points where the victim was touched by any other type of weapon;

         (e) 5 points where a weapon was displayed or implied;

         (f) 0 points where no aggravated use of a weapon occurred.

Five points are not to be scored if, as it is here, the sentencing offense is a violation of MCL
750.529. MCL 777.31(2)(e).



1
    US Const, Am VI.


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        “The trial court may rely on reasonable inferences arising from the record evidence to
sustain the scoring of an offense variable.” People v Earl, 297 Mich App 104, 109; 822 NW2d
271 (2012), citing People v Haacke, 217 Mich App 434, 436; 553 NW2d 15 (1996). Here,
Reynolds testified that defendant applied a hard object to his neck while his codefendant went
through Reynolds’ pockets. However, Reynolds could not see what was held to his neck and
could not tell of what material it was made. Reynolds said that he was compliant because he was
concerned about the object held to his neck.

        Because the statute does not define “weapon,” the Court in People v Ball, 297 Mich App
121, 125; 823 NW2d 150 (2012), cited the Random House Webster’s College Dictionary (2001)
definition of weapon as “1. any instrument or device used for attack or defense in a fight or in
combat. 2. anything used against an opponent, adversary, or victim . . . . 3. any part or organ
serving for attack or defense, as claws, horns, teeth, or stings.” Furthermore, the Court in People
v Lange, 251 Mich App 247, 256-257; 650 NW2d 691 (2002) (citations, quotation marks, and
emphasis omitted), discussed that any “[o]ther articles and instruments” may be weapons when
“they are used or carried” for use as weapons.

        It is reasonable to infer that defendant held the object to Reynolds neck as a part of the
robbery in order to threaten Reynolds into compliance. Thus, we conclude that the instrument
was used “as a weapon” to attack Reynolds. Because Reynolds described an “instrument” or
“other article” that was held to his neck to ensure compliance with his attackers, it was proper for
the trial court to determine that a preponderance of the evidence supported the conclusion that
“the victim was touched by any other type of weapon.” MCL 777.31(1)(d). Further, in order to
convict defendant of armed robbery, the jury had to find that defendant possessed either “a
weapon designed to be dangerous and capable of causing death or serious injury,” or “any other
object capable of causing death or serious injury that defendant used as a weapon,” or “any other
object used or fashioned in a manner to leave a person who was present to reasonably believe it
to be a dangerous weapon.” In all of these scenarios, the thing placed to the back of Reynolds’
neck was used as a weapon to ensure compliance.

                                              2. OV 10

        Next, defendant argues that the trial court erred in assessing OV 10, exploitation of a
victim’s vulnerability, at 10 points. MCL 777.40(1). OV 10 is assigned 10 points where “[t]he
offender exploited a victim’s physical disability, mental disability, youth or agedness, or a
domestic relationship, or the offender abused his or her authority status.” MCL 777.40(1)(b).
“The mere existence of 1 or more factors described in subsection (1) does not automatically
equate with victim vulnerability.” MCL 777.40(2). “Exploit” means to “manipulate a victim for
selfish or unethical purposes.” MCL 777.40(3)(b). “Vulnerability” is defined to “mean[] the
readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.”
MCL 777.40(3)(c).

       Defendant argues that the trial court erred in assessing OV 10 at 10 points based on a
determination that Reynolds was 70 years old and defendant’s co-defendant was younger. In
People v Gloster, 499 Mich 199, 206-209; 880 NW2d 776 (2016), the Court determined that a
defendant “shall not have points assessed solely on the basis of his or her co-offenders’ conduct

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unless the OV at issue specifically indicates to the contrary.” MCL 777.40(1) does not include
language permitting OV 10 to be assessed based solely on the conduct of a co-defendant.
However, the trial court did not rely solely on the age difference between Reynolds and the co-
defendant, but found that “[b]oth of them attacked this elderly man.” Thus, it appears that the
trial court relied on the concerted effort in attacking a man of Reynolds’ age. Moreover,
Reynolds’ was vulnerable due to his age. The offense variable’s explicit recognition of the
exploitation of senior citizens is “recognition of the distinction between the decline in physical
strength characteristic of advanced age, and the less easily articulated decline in aggressiveness
in confrontational situations that also often accompanies advancing years.” People v Piotrowski,
211 Mich App 527, 531; 536 NW2d 293 (1995). Aside from his age, photos from the
surveillance cameras show that Reynolds appeared older and frail. Additionally, the
vulnerability of a victim does not have to be “inherent in the victim;” rather, it may “arise from
external circumstances as well.” People v Huston, 489 Mich 451, 466; 802 NW2d 261 (2011)
(emphasis in original). In Huston, the Court concluded “that a person walking alone at night in a
parking lot while two armed people hidden from that person’s view lie in wait to rob that person
is a vulnerable victim because he or she would have a readily apparent susceptibility to injury
[or] physical restraint.” Id. at 467 (quotation marks and citation omitted). Here, the photos show
that Reynolds was carrying a large bag, and he testified that he had just left a check-cashing
business with almost $900 in his pocket. Reynolds was attacked from the rear while he was
speaking to a seated elderly woman. Thus, Reynolds was vulnerable to victimization due
primarily to his age and elderly appearance, but also due to the circumstances, including that he
had just left a check-cashing business with a great deal of cash, his hands were occupied by the
large bag, his attention was on an acquaintance, and his assailants came at him from behind.

        Defendant argues that he is also an older adult, and because he was just seven years
younger than Reynolds, he could not have exploited Reynolds’ age. However, the evidence
established that defendant attacked a vulnerable Reynolds from behind where he could not be
seen. Additionally, the surveillance video of the attack shows that defendant and his co-
defendant had separated, with the co-defendant positioned in front of Reynolds and defendant
positioned behind him, as they converged on an unaware Reynolds immediately before knocking
him to the ground and robbing him. Further, the still photographs from the surveillance cameras
show defendant and the co-defendant walking in the area of the check-cashing store in the
minutes before the attack, suggesting that they saw an older man cashing his check and targeted
him. Thus, despite defendant’s age, he was able to exploit Reynolds’ vulnerabilities with
strategy, surprise, and physical exertion. A preponderance of the evidence supported the
determination that defendant “exploited a victim’s [] agedness,” supporting an assessment of 10
points for OV 10.

                               C. INEFFECTIVE ASSISTANCE

       Defendant argues that his trial counsel provided ineffective assistance by failing to
represent defendant at the preliminary hearing, by failing to inform the trial court that two
witnesses were lying to the jury, and by not having the codefendant testify. We conclude that
defendant has failed to establish his claim.



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        A defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963 art 1, § 20. This right to counsel encompasses the
right to the effective assistance of counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d
563 (2007). To establish a claim of ineffective assistance of counsel, a defendant must show (1)
that counsel’s performance was deficient and (2) that counsel’s deficient performance prejudiced
the defense. People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007). The performance
will be deemed to have prejudiced the defense if it is reasonably probable that, but for counsel’s
error, the result of the proceeding would have been different. People v Jordan, 275 Mich App
659, 667; 739 NW2d 706 (2007). Defendant must also show that the resultant proceedings were
fundamentally unfair or unreliable. People v Odom, 276 Mich App 407, 415; 740 NW2d 557
(2007). The effective assistance of counsel is presumed, and the defendant bears the heavy
burden of proving otherwise. People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294
(2001).

        A counsel’s performance is deficient if it fell below an objective standard of professional
reasonableness. Jordan, 275 Mich App at 667. Defendant first argues that the performance of
his counsel was deficient because she was not present at the preliminary examination. The right
to counsel guaranteed by the Sixth Amendment applies to “ ‘critical’ stages of the proceedings
where counsel’s absence might harm defendant’s right to a fair trial.” People v Buie, 298 Mich
App 50, 61-62; 825 NW2d 361 (2012) (citation omitted). “The right to counsel attaches and
represents a critical stage ‘only at or after the initiation of adversary judicial proceedings against
the accused by way of a formal charge, preliminary hearing, indictment, information, or
arraignment.’ ” Id., quoting People v Anderson (After Remand), 446 Mich 392, 402; 521 NW2d
538 (1994). “[T]his Court has repeatedly commented that defendants have a constitutional right
to counsel at preliminary examinations in Michigan.” People v Lewis, 501 Mich 1, 5-6; 903
NW2d 816 (2017). However, defendant was represented by counsel at his preliminary
examination, although it was a substitute for his designated counsel. Defendant does not
demonstrate that the presence of alternative counsel resulted in him receiving ineffective
assistance of counsel at his preliminary examination. The mere absence of his designated
counsel does not establish an ineffective assistance claim.

        Next, defendant argues that the performance of his trial counsel was deficient in failing to
address the allegedly perjured testimony of Detroit Police Officer John Pinchum and Detroit
Police Detective Levan Adams. He claims counsel should have “alarm[ed” the court that they
were lying. Pinchum testified that he arrested defendant on November 3, 2016, and that he had
been familiar with defendant from pan handling in the area. Defendant does not specify what
aspects of Pinchum’s testimony were allegedly false or mention Pinchum’s name in the body of
his argument in the Standard 4 brief. Thus, defendant has not demonstrated that his trial counsel
failed to alert the trial court to his false testimony.

        Adams testified that he collected video surveillance from the check-cashing business, and
that he interviewed defendant in jail. The surveillance video and a recording of Adams’
interview with defendant were played for the jury. Defendant suggests Adams was “playing
with evidence.” However, he did not specify what Adams did to tamper with the evidence, or
what testimony was inaccurate. Adams was unsure of the date of the robbery and the date of
defendant’s arrest before consulting the police report, which caused some inconsistency in his
testimony. However, any inconsistency in Adams’ testimony would have been helpful to
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defendant in undermining Adams’ credibility, and defendant’s trial counsel highlighted Adams’
uncertainty about the dates while questioning him. Thus, defendant has not demonstrated that
his trial counsel provided ineffective assistance in failing to identify false testimony. Moreover,
any inconsistencies in Adams’ testimony would have been exposed to the jury by viewing the
videos. There was no argument in the trial court regarding the authenticity of the recordings, and
defendant’s trial counsel performed a voir dire examination of Adams before the interview was
admitted. Most significantly, defendant confirmed the contents of the video in describing his
presence and interaction with Reynolds.

         Lastly, defendant argues that the performance of his trial counsel was ineffective in
failing to call his co-defendant as a witness. Defendant claims he was blocked from testifying by
the trial court. Defense counsel’s duty is to prepare, investigate, and present all substantial
defenses. In re Ayres, 239 Mich App 8, 22; 608 NW2d 132 (1999). “[D]ecisions regarding what
evidence to present and whether to call or question witnesses are presumed to be matters of trial
strategy which we will not second-guess with the benefit of hindsight.” People v Dixon, 263
Mich App 393, 398; 688 NW2d 308 (2004), quoting People v Rice (On Remand), 235 Mich App
429, 445; 597 NW2d 843 (1999) (footnotes and citation omitted).

         Here, defendant’s trial counsel, with the assistance of the trial court, investigated whether
the co-defendant should be a defense witness. After the parties rested, defense counsel informed
the trial court that defendant had asked about the possibility of calling the co-defendant as a
witness. Defense counsel stated that he had advised against doing so because of the possibility
of impeachment, and that defendant had accepted this advice prior to resting his case but
questioned it on the next day of trial. The co-defendant was interviewed by defendant’s attorney,
who reported that the proposed testimony would have been very damaging to defendant, and that
his trial strategy was therefore not to call him as a witness. We conclude that the performance of
defense counsel cannot be considered deficient because she investigated the possible testimony
and employed a reasonable trial strategy of not presenting apparently damaging testimony.

        Further, counsel’s performance will be deemed to have prejudiced the defense only if it is
reasonably probable that, but for counsel’s error, the result of the proceeding would have been
different. Jordan, 275 Mich App at 667. Here, defendant’s conviction rested on Reynold’s
description of his robbery, surveillance video of the robbery, and the video of defendant’s
interview with Adams. Defendant does not challenge the substance of this evidence. Thus, he is
unable to demonstrate that any error caused him prejudice.

       Affirmed.



                                                              /s/ Stephen L. Borrello
                                                              /s/ David H. Sawyer
                                                              /s/ Kathleen Jansen




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