              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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 10, 2019
                 Plaintiff-Appellee,

v                                                                   No. 343800
                                                                    Ingham Circuit Court
ROBERT JERRY MILES,                                                 LC No. 16-000986-FC

                 Defendant-Appellant.


Before: MURRAY, C.J., and METER and FORT HOOD, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of delivery of a controlled substance less
than 50 grams, MCL 333.7401(2)(a)(iv).1 The trial court sentenced defendant, as a fourth
habitual offender, MCL 769.12, to 5 to 40 years’ imprisonment.2 Defendant appeals as of right,
and we affirm.

                                        I. BACKGROUND

       This case arises out of the death of Jody Mosher, who died of a drug overdose between
the hours of 9:30 p.m. on September 12, 2014, and 1:30 a.m. on September 13, 2014. On
September 12, 2014, Mosher asked her friend, Edward Hodge, whether he knew someone who
could supply her heroin. Hodge, acting as an intermediary, sought out defendant—who Hodge
knew only as “JJ”—for heroin. At approximately 6:00 p.m., Hodge drove Mosher from her
residence in Webberville to defendant’s residence in Lansing to complete the transaction. Hodge
and Mosher met defendant at his residence on Redwood Street, and drove defendant to Deluca’s,


1
    Defendant was acquitted of delivery of a controlled substance causing death, MCL 750.317a.
2
 On January 8, 2018, pursuant to a plea agreement, defendant was sentenced in federal court to
87 months’ imprisonment for possession of heroin with intent to distribute, 21 USC 841(a)(1),
and felon in possession of a firearm, 18 USC 922(g)(1). The trial court’s sentence in this case
was consecutive to defendant’s federal term of imprisonment.



                                                -1-
a restaurant near defendant’s residence, to pick up food that defendant had recently ordered.
While in the parking lot of Deluca’s, Hodge observed defendant give Mosher a folded-up lottery
ticket with a gray powdery substance inside in exchange for Mosher’s Bridge card, which had a
balance of approximately $300. 3 Hodge then drove defendant to a party store nearby to test
Mosher’s Bridge card, and eventually dropped off defendant at his residence on Redwood Street.

        As Hodge drove out of defendant’s driveway, he observed Mosher take the heroin
intravenously. Within minutes, Mosher became unconscious and unresponsive. Hodge made
numerous attempts to help Mosher regain consciousness, and eventually succeeded. Mosher
slowly became more responsive as the evening went on, and Hodge stayed with Mosher while
her condition improved. Hodge dropped Mosher off at her home in Webberville at
approximately 11:00 p.m. According to Hodge, Mosher appeared “sixty percent” her normal,
sober self, as she was walking, conversing, and breathing normal when she exited Hodge’s
vehicle. Unfortunately, Mosher was found deceased in her bedroom the next morning.

        An autopsy report revealed that Mosher had several drugs in her system at the time of her
death, including Citalopram (an antidepressant), Clonazepam (a benzodiazepine), Benadryl, and
morphine (heroin). Mosher died of multiple drug intoxication, with each drug having a
cumulative effect on Mosher’s death. However, because the Citalopram, Clonazepam, and
Benadryl were all at or slightly above normal, therapeutic doses, heroin was determined to be a
substantial factor in Mosher’s death.

                                     A. INVESTIGATION

        Ingham County Sheriff Deputy Dustin Matusko initially investigated Mosher’s death. On
September 13, 2014, Deputy Matusko searched Mosher’s belongings and found, in addition to
various prescription bottles, a lottery ticket with heroin inside. Deputy Matusko also learned of
Hodge’s involvement in Mosher’s death, and met with Hodge on September 23, 2014.4 Hodge
informed Deputy Matusko that a person named “JJ” sold Mosher heroin on September 12, 2014,
with Hodge facilitating the transaction. Deputy Matusko passed Hodge’s statement along to
Ingham County Sheriff Officer Michael Torok, who worked as an undercover narcotics officer
for Tri-County Metro Narcotics. Officer Torok met with Hodge, and Hodge lead Officer Torok
to defendant’s residence on Redwood Street. While Officer Torok did not observe defendant at
his Redwood residence, Hodge identified defendant as the person he knew as “JJ” in a
photographic lineup.


3
  According to Hodge, the actual value of Mosher’s Bridge card was approximately $150
because Bridge card currency is not cash-equivalent, and is only worth approximately 50 cents
on the dollar.
4
  As a result of his involvement in Mosher’s death, Hodge was charged with delivery of a
controlled substance causing death and delivery of a controlled substance less than 50 grams.
Hodge pleaded guilty to involuntary manslaughter, MCL 750.321, and was sentenced to a term
of one year in jail, 30 months’ probation, and was ordered to cooperate with the investigation
into Mosher’s death.


                                               -2-
        On October 1, 2014, Lansing Police Officer Robert Backus lawfully stopped defendant’s
vehicle, which was occupied by defendant and defendant’s girlfriend, Raquel Mobray, and
observed—in plain view—13 marijuana plants within defendant’s vehicle.5 Defendant did not
have a lawful right to possess the marijuana plants, and as a result, Officer Backus searched
defendant and seized two cell phones found in defendant’s coat pocket: a Samsung Galaxy cell
phone and an LG cell phone. Both cell phones were processed as evidence, but were not
searched at that time.

         Meanwhile, Lansing Police Officer Angela Sukovich, who worked as an undercover
narcotics officer with the Special Operation Section of the Lansing Police Department, learned of
defendant’s history of selling narcotics, and on October 20, 2014, Officer Sukovich set up the
first of three controlled buys to purchase heroin from defendant.6 During the first controlled buy,
Officer Sukovich was originally supposed to meet defendant at his Redwood residence; however,
defendant changed the meeting place to a nearby location. Officer Sukovich met with defendant,
who identified himself as “JJ.” On October 24, 2014, Officer Sukovich met with defendant
again, this time at his Redwood residence. On October 27, 2014, Officer Sukovich met with
defendant at a party store near his Redwood residence. Based on these contacts, a search warrant
for defendant’s Redwood residence was prepared and executed on October 28, 2014. During the
search, police discovered defendant hiding in the attic, heroin inside of lottery tickets, and papers
evidencing Mobray’s residency at defendant’s Redwood home.7

       On October 31, 2014, Officer Sukovich prepared an affidavit in support of a search
warrant for defendant’s two cell phones that were seized during the October 1, 2014 traffic stop.
The marijuana found in defendant’s vehicle, as well as Officer Sukovich’s training and
experience as a narcotics officer (i.e., that drug traffickers frequently use cell phones to transport
and sell narcotics), formed the basis for probable cause to search defendant’s two cell phones.
Notably, Officer Sukovich’s affidavit did not reference her three meetings with defendant in
October 2014, nor did it reference the evidence found during the October 28, 2014 search of
defendant’s Redwood residence. The data extracted from the Samsung cell phone revealed
correspondences from defendant identifying himself as “JJ,” while the data extracted from the




5
  The October 1, 2014 traffic stop was initiated because defendant’s vehicle matched a
description of a vehicle involved in an assault. The trial court ruled that the marijuana plants, as
well as the pretext for the traffic stop, were inadmissible at trial.
6
  While evidence of Officer Sukovich’s contacts with defendant were presented to the jury,
evidence of defendant selling Officer Sukovich heroin during these contacts was ruled
inadmissible at trial. These controlled buys, however, resulted in defendant’s January 18, 2018
federal convictions referenced above.
7
 The trial court later ruled that the heroin found at the Redwood residence and the evidence of
defendant hiding in the attic during the search were inadmissible at trial.


                                                 -3-
LG cell phone indicated that the telephone number for the Samsung cell phone belonged to a
person named “JJ.”8

        The investigation into Mosher’s death remained stagnant until February 2016, when
Lansing Police Detective Lee McCallister was asked to review the case. Based on his review of
the prior investigation, Detective McCallister obtained a search warrant ordering Sprint, the
provider of defendant’s Samsung cell phone, to produce all call logs and cell tower locations for
the Samsung cell phone during September 2014. From these records, Detective McCallister
learned that Hodge and defendant had been in contact with one another just before 6:00 p.m. on
September 12, 2014, and again at approximately 6:48 p.m. the same day. The call logs also
indicated that defendant made a phone call to Deluca’s in between the two phone calls with
Hodge. Further, all of the cell towers that serviced defendant’s Samsung cell phone on
September 12, 2014, were within the area of defendant’s Redwood residence. Detective
McCallister also contacted the Department of Health and Human Services Office regarding the
activity on Mosher’s Bridge card. Detective McCallister learned that Mosher’s Bridge card was
used on September 13, 2014, and September 14, 2014, and that a balance inquiry for Mosher’s
Bridge card was conducted on September 15, 2014, from a telephone number belonging to
Mobray.

                                      B. ADJUDICATION

        Based on Detective McCallister’s investigation, defendant was charged with delivery of a
controlled substance less than 50 grams and delivery of a controlled substance causing death
(delivery causing death). The prosecution filed a pretrial motion under MRE 404(b) seeking to
introduce, among other evidence later ruled inadmissible, evidence of (1) the data extracted from
defendant’s cell phones, (2) Officer Sukovich’s three contacts with defendant during October
2014, in which he identified himself as “JJ,” and (3) the October 28, 2014 search revealing
evidence of Mobray’s residency at defendant’s Redwood home. At the hearing for the
prosecution’s motion, defense counsel informed the trial court that he would file a motion to
suppress the data extracted from defendant’s cell phones, and the trial court ruled that the cell
phone data was admissible subject to defense counsel filing a motion to suppress. However,
defense counsel did not file a motion to suppress the data extracted from defendant’s cell phones.

        After a jury trial, defendant was acquitted of the delivery causing death charge, but was
convicted of delivery of a controlled substance less than 50 grams. At sentencing, defendant
objected to the prosecution’s scoring of Offense Variable (OV) 3 (physical injury to a victim–
death results from the commission of a crime) at 100 points, arguing that the jury’s acquittal of
the delivery causing death charge, and the fact that Mosher’s death was the result of multiple


8
  While the Global Positioning System (GPS) information extracted from the Samsung cell
phone demonstrated that the Samsung cell phone was near defendant’s Redwood residence
throughout September 2014, there was no GPS information for September 12, 2014. Also, the
call logs extracted from the Samsung cell phone only dated back to September 26, 2014—after
Mosher’s death.


                                               -4-
drug intoxication (not specifically heroin), demonstrated that Mosher’s death did not result from
defendant’s commission of a crime. The trial court held that OV 3 was properly scored at 100
points, stating that defendant’s acquittal of the delivery causing death charge was not dispositive
because there was sufficient evidence to establish that Mosher’s death, at least in part, resulted
from defendant’s delivery of heroin. Defendant was sentenced as described above, and was
ordered to pay, among other costs, $500 in court costs.

        After filing this appeal, defendant filed a motion to remand to the trial court for an
evidentiary hearing, alleging that he received ineffective assistance of counsel when defense
counsel failed to file a motion to suppress the data extracted from his cell phones, the trial court
erred in scoring OV 12 (contemporaneous felonious criminal acts) at five points, and the trial
court erred in assessing court costs. This Court denied defendant’s motion to remand “for failure
to persuade the Court of the necessity of a remand at this time.” People v Miles, unpublished
order of the Court of Appeals, entered January 24, 2019 (Docket No. 343800).

       Defendant now appeals, challenging (1) the sufficiency of Officer Sukovich’s affidavit in
support of the search warrant to extract the data from defendant’s cell phones, and defense
counsel’s failure to file a motion to suppress that data; (2) the trial court’s scoring of OVs 3 and
12; and (3) the trial court’s imposition of $500 in court costs against him. For the reasons stated
below, we find no error warranting relief.

                          II. AFFIDAVIT AND SEARCH WARRANT

        Defendant first challenges the sufficiency of Officer Sukovich’s affidavit in support of
the October 31, 2014 search warrant to extract the data from defendant’s two cell phones that
were seized during the October 1, 2014 traffic stop. Specifically, defendant argues that Officer
Sukovich’s generalized assertions in the affidavit—that drug traffickers use cell phones to sell
narcotics—do not, standing alone, support a finding of probable cause. We note that defendant
failed to challenge the validity of Officer Sukovich’s affidavit in the trial court. Instead,
defendant only challenged the seizure of the cell phones without a warrant during the October 1,
2014 traffic stop, and the relevancy of the data extracted from defendant’s cell phones. “[A]n
objection based on one ground at trial is insufficient to preserve an appellate attack based on a
different ground.” People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003). Therefore,
defendant’s constitutional claim is unpreserved.

        The standard of review for an unpreserved constitutional issue is plain error affecting the
defendant’s substantial rights. People v Bosca, 310 Mich App 1, 47; 871 NW2d 307 (2015),
citing People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). To demonstrate plain error,
a defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the
plain error affected [the defendant’s] substantial rights.” Carines, 460 Mich at 763. “The third
requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of
the lower court proceedings.” Id. Even if a defendant establishes a plain error that affected his
substantial rights, “[r]eversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affected the fairness,
integrity or public reputation of judicial proceedings’ independent of the defendant’s innocence.”
Id. at 763 (quotation marks, citation, and brackets omitted).


                                                -5-
        The United States and Michigan Constitutions both guarantee the right of citizens to be
free from unreasonable searches and seizures. See US Const, Am IV; Const 1963, art 1, § 11;
People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017). “A search for purposes of the
Fourth Amendment occurs when the government intrudes on an individual’s reasonable, or
justifiable, expectation of privacy,” while “a seizure of property occurs when there is some
meaningful interference with an individual’s possessory interests in that property.” People v
Woodard, 321 Mich App 377, 383; 909 NW2d 299 (2017) (quotation marks, citations, and
brackets omitted). “In order to show that a search was in compliance with the Fourth
Amendment, the police must show either that they had a warrant or that their conduct fell within
one of the narrow, specific exceptions to the warrant requirement.” People v Kazmierczak, 461
Mich 411, 418; 605 NW2d 667 (2000). Indeed, while police may seize a cell phone to prevent
the destruction of evidence, a warrant is generally required before searching the data stored
within a cell phone. Woodard, 321 Mich App at 391 n 5, citing Riley v California, 573 US 373,
384-403; 134 S Ct 2473; 189 L Ed 2d 430 (2014).

         A search warrant may be issued only upon a showing of probable cause. US Const, Am
IV; Const 1963, art 1, § 11; Franklin, 500 Mich at 100-101. “A reviewing court must give great
deference to a magistrate’s finding of probable cause to issue a search warrant.” People v
Mullen, 282 Mich App 14, 21; 762 NW2d 170 (2008). “Accordingly, we do not review de novo
the lower court’s determination regarding the sufficiency of a search warrant affidavit.” Id.
Rather, we need only ask “whether a reasonably cautious person could have concluded that there
was a substantial basis for the finding of probable cause.” Id. (quotation marks and citation
omitted). To find a substantial basis for probable cause, this Court “must ensure that there is a
fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at
22 (quotation marks and citation omitted). “When reviewing a search warrant affidavit, we must
read it in a common sense and realistic manner, not a crabbed or hypertechnical manner.” Id. at
27 (quotation marks and citation omitted).

       Here, Officer Sukovich’s affidavit stated that defendant was stopped on October 1, 2014,
and found to be transporting marijuana plants, in plain view, without a lawful right to possess
marijuana. Specifically, Officer Sukovich’s affidavit states that, based on (1) her training and
experience as an undercover narcotics officer, (2) the number of marijuana plants found during
the stop, (3) the fact that defendant was transporting marijuana in his vehicle, and (4) the
multiple cell phones recovered from defendant during the stop, there was probable cause to
believe defendant’s cell phones would contain evidence of defendant’s criminal activity—
namely, drug trafficking. Officer Sukovich’s affidavit establishes probable cause, as it
demonstrates a connection between defendant’s illegal possession and transportation of
marijuana, and an instrumentality of his criminal activity—his cell phones. Id. at 21-22. Thus,
based on these facts, there was a fair probability that evidence of defendant’s criminal activity
would be found on defendant’s cell phones. Id.

         Defendant argues that “Officer Sukovich’s affidavit literally has no facts connecting
[defendant’s] phone[s] to the allegations of drug possession and delivery in this case,” and the
affidavit is based on “generalized statements” regarding drug dealers’ use of cell phones to
traffic narcotics. What defendant characterizes as “generalized statements,” however, we deem
relevant “facts within the knowledge of the affiant,” that are not based on “mere conclusions or
beliefs.” People v Waclawski, 286 Mich App 634, 698; 780 NW2d 321 (2009). While an affiant

                                                -6-
“may not draw his or her own inferences, but must state the matters that justify the drawing of
inferences,” an “affiant’s experience is relevant to the establishment of probable cause.” Id.
Here, the affidavit states that Officer Sukovich has learned through her training and experience
as an undercover narcotics officer that drug dealers frequently use cell phones to transport and
sell narcotics. Also, the record reflects that, prior to her drafting the affidavit, Officer Sukovich
had first-hand knowledge of defendant’s history as a drug dealer by way of the three controlled
buys in October 2014. Accordingly, not only was Officer Sukovich’s affidavit sufficiently
particularized to connect defendant’s criminal activity to his cell phones, but Officer Sukovich
properly drew on her training and experience as an undercover narcotics officer—as well as her
own personal observations of defendant’s criminal activity—to support a finding of probable
cause.9 Id.; Mullen, 282 Mich App at 21-22.

        Nor is it of any relevance that police seized defendant’s cell phones and extracted the
data stored within them for one purpose—evidence of defendant’s drug trafficking—only to be
used for a wholly different purpose—evidence of defendant’s involvement in Mosher’s death.
“Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not
prohibit governmental use of the now-nonprivate information.” United States v Jacobsen, 466
US 109, 117; 104 S Ct 1652; 80 L Ed 2d 85 (1984). That is, “[t]he Fourth Amendment is
implicated only if the authorities use information with respect to which the expectation of
privacy has not already been frustrated.” Id. While defendant undoubtedly held a protected
privacy interest in his cell phone data, that privacy interest dissipated—for Fourth Amendment
purposes—once police obtained a valid search warrant and extracted the cell phone data pursuant
to that search warrant. Id. It is of no consequence that police initially sought the search warrant
to examine defendant’s cell phone records for evidence of drug trafficking, but later used that
data to connect defendant to Mosher’s death. Once defendant’s cell phones were lawfully
seized, and the data stored within his cell phones extracted pursuant to a valid search warrant,
defendant no longer held a reasonable expectation of privacy in that cell phone data. See id.; see
also Woodard, 321 Mich App at 387 (quotation marks and citations omitted) (“We recognize that
obtaining and examining evidence may be considered a search, provided that doing so infringes
an expectation of privacy that society is prepared to recognize as reasonable.”).

        Defendant relies on Riley, 573 US at 384-403, in arguing that the affidavit in support of
the search warrant to extract the data from his cell phones violated his constitutional right to be
free from unreasonably searches and seizures. It is true, as the United States Supreme Court
recognized in Riley, that “the possible intrusion on privacy is not physically limited in the same
way when it comes to cell phones,” as “many sensitive records” and a “broad array of private
information” may be stored within a cell phone. Id. at 394, 396-397. However, the rule


9
  Moreover, because police extracted the data from defendant’s cell phones in reliance on a
search warrant issued by a magistrate, and because that reliance was objectively reasonable, the
exclusion of that cell phone data would not be appropriate in this case. People v Goldston, 470
Mich 523, 543; 682 NW2d 479 (2004) (adopting the good-faith exception to the exclusionary
rule where “police officers’ good-faith reliance on the search warrant was objectively
reasonable”).


                                                -7-
established in Riley—that warrantless cell phone searches intrude upon an individual’s privacy
interests—does not reach so far as to invalidate a properly obtained search warrant, supported by
an affidavit establishing probable cause, permitting the search of defendant’s cell phones that
were lawfully seized. See Woodard, 321 Mich App at 391 n 5 (“[T]he Court[, in Riley, 573 US
at 384-403,] determined that a cell phone may be seized to prevent destruction of evidence and
the physical phone may [be] examined to ensure that it cannot be used as weapon, but that the
police must obtain a warrant to examine the data on the phone.”). Thus, defendant’s reliance on
Riley is erroneous.

        We also reject defendant’s argument that he received ineffective assistance of counsel
when defense counsel failed to file a motion to suppress, or otherwise challenge, the
admissibility of the data extracted from his cell phones on Fourth Amendment grounds. As
previously discussed, Officer Sukovich’s affidavit for the search warrant supported a finding of
probable cause, and the search of defendant’s cell phones was properly executed. Therefore, any
objection to the fruits of that search would have been futile, and defendant did not receive
ineffective assistance of counsel as a result. People v Ericksen, 288 Mich App 192, 201; 793
NW2d 120 (2010) (“Failing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.”).

                                         III. OV SCORING

         Next, defendant argues that the trial court erred in assessing 100 points for OV 3
(physical injury to a victim) and five points for OV 12 (contemporaneous felonious criminal
acts). In considering an alleged scoring error, the 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 in
People v Rodriguez, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 338914); slip
op at 3 n 3. “Clear error is present when the reviewing court is left with a definite and firm
conviction that an error occurred.” People v McChester, 310 Mich App 354, 358; 873 NW2d
646 (2015) (quotation marks and citation omitted). “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.” Hardy, 494
Mich at 438. “[I]f the trial court clearly erred by finding that a preponderance of the evidence
supported one or more of the OV scores or otherwise erred by applying the facts to the OVs, and
if the scoring error resulted in an alteration of the minimum sentence range, [a defendant] would
be entitled to resentencing.” People v Biddles, 316 Mich App 148, 156; 896 NW2d 461 (2016)
(citations omitted). Judicial fact-finding continues to be part of the process of calculating a
defendant’s guidelines minimum sentence range. See id. at 159-161, citing People v Lockridge,
498 Mich 358, 392 n 28; 870 NW2d 502 (2015).

        OV 3 addresses physical injury to a victim. MCL 777.33(1); People v Laidler, 491 Mich
339, 343; 817 NW2d 517 (2012). A trial court must assess 100 points under OV 3 “if death
results from the commission of a crime and homicide is not the sentencing offense.” MCL
777.33(2)(b); Laidler, 491 Mich at 343. The relevant inquiry under OV 3 is whether the death
“resulted” from defendant’s criminal actions, i.e., whether defendant’s criminal conduct is a
“factual” or “but for” cause of the death. Laidler, 491 Mich at 344-345. OV 3 must be scored
based on the sentencing offense alone, Biddles, 316 Mich App at 165, which in this case was

                                                 -8-
delivery of a controlled substance (heroin) less than 50 grams. However, in scoring an offense-
specific OV, “a trial court may properly consider all of defendant’s conduct during that offense.”
People v Chelmicki, 305 Mich App 58, 72; 850 NW2d 612 (2014) (quotation marks and citations
omitted). In fact, because the preponderance of the evidence standard applies to the scoring of a
defendant’s guidelines minimum sentence range, facts may be scored at sentencing which were
not proven beyond a reasonable doubt at trial. See People v Ratkov (After Remand), 201 Mich
App 123, 126; 505 NW2d 886 (1993) (“[S]ituations may arise wherein although the factfinder
declined to find a fact proven beyond a reasonable doubt for purposes of conviction, the same
fact may be found by a preponderance of the evidence for purposes of sentencing.”).

        Here, Mosher’s death resulted from defendant’s commission of a crime—namely, the
delivery of heroin. Stated differently, but for defendant’s delivery of heroin to Mosher,
Mosher’s death would not have occurred. See Laidler, 491 Mich at 345. The evidence at trial
established that defendant sold Mosher heroin that eventually lead to her drug overdose and
death. There is no evidence that Mosher obtained heroin from a source other than defendant.
Also, Mosher’s death was the result of an “agonal overdose,” as opposed to an immediate
overdose, in which Mosher survived a few hours after initially ingesting heroin. This coincides
with Hodge’s testimony at trial that Mosher regained consciousness after taking the heroin that
defendant sold her. Accordingly, the trial court properly concluded, by a preponderance of the
evidence, that Mosher’s death resulted from defendant’s delivery of heroin. Id. at 345-346.

        Defendant points out that Mosher died of multiple drug intoxication, arguing that heroin
was not the sole cause of Mosher’s death because the other prescription drugs that she ingested
had a cumulative effect on her death. Defendant’s argument fails for two reasons. First, the
testimony of the toxicologist and the medical examiner demonstrates that heroin was a factual
cause of Mosher’s death. The toxicologist testified that the prescription drugs Mosher ingested
were at or slightly above normal, therapeutic levels and were not at lethal doses. On the other
hand, there is no safe dosage for heroin. Also, the toxicologist opined that heroin was a
substantial factor in Mosher’s death, while the medical examiner opined that Mosher likely
would have survived had she not ingested heroin. Accordingly, the testimony from these experts
establishes that, but for Mosher ingesting heroin—which defendant illegally delivered to her—
Mosher’s death would not have occurred. Second, while the experts could not say for certain
that heroin was the sole cause of Mosher’s death, “[t]here is nothing in MCL 777.33 that
suggests that there may be only a single cause of a death.” Id. at 346. Therefore, the trial court
properly assessed 100 points for OV 3.

        Defendant also argues that the trial court erred in assessing five points for OV 12 because
his single criminal act, delivery of a controlled substance less than 50 grams, was the extent of
his criminal activity, and he did not commit a separate, contemporaneous felonious criminal act.
While we find some merit in defendant’s argument,10 we decline to address the issue because it


10
   MCL 777.42 addresses a defendant’s “contemporaneous felonious criminal acts,” which is an
act that (1) occurred within 24 hours of the sentencing offense, and (2) has not and will not result
in a separate conviction. In People v Light, 290 Mich App 717, 723; 803 NW2d 720 (2010)
(emphasis added), this Court held that “when scoring OV 12, a court must look beyond the


                                                -9-
does not change defendant’s guidelines minimum sentence range. See Biddles, 316 Mich App at
156 (stating that, with respect to an evidentiary challenge to a trial court’s scoring of OVs, a
defendant is only entitled to resentencing “if the scoring error resulted in an alteration of the
minimum sentence range”). Accordingly, defendant is not entitled to resentencing.

                                       IV. COURT COSTS

        Finally, defendant argues that the $500 in court costs imposed against him under MCL
769.1k operate as an unconstitutional tax, violating both the Distinct Statement Clause of the
Michigan Constitution, and separation-of-powers principles as an impermissible delegation of
our Legislature’s taxing authority. Because defendant did not raise this issue before the trial
court, the issue is unpreserved. People v Konopka (On Remand), 309 Mich App 345, 356; 869
NW2d 651 (2015). We review unpreserved issues for plain error affecting a defendant’s
substantial rights. Carines, 460 Mich at 763-764.

        Under MCL 769.1k(1)(b)(iii), trial courts can impose court costs on defendants as long as
those costs are “reasonably related to the actual costs incurred by the trial court.” People v
Cameron, 319 Mich App 215, 221; 900 NW2d 658 (2017). In Cameron, this Court held that
such court costs constitute a tax, but that the statutory authorization of that tax did not run afoul
of our state Constitution’s Distinct Statement Clause, Const 1963, art 4, § 32, or separation of
powers provision, Const 1963, art 3, § 2. Cameron, 319 Mich App at 236. Indeed, the only
requirement of imposing such court costs under MCL 769.1k(1)(b)(iii) is that a trial court must “
‘establish a factual basis’ for the costs imposed” to ensure that they are “reasonably related to
those incurred by the court in cases of the same nature.” Cameron, 319 Mich App at 230, 236,
quoting Konopka, 309 Mich App 359-360. Here, the trial court assessed $500 in court costs
against defendant based on the State Court Administrative Office’s calculated average cost of a
criminal case in Ingham County. This finding constitutes a sufficient factual basis for the trial
court’s imposition of court costs against defendant. Cameron, 319 Mich App at 230, 236.
Further, because we are bound by this Court’s decision in Cameron, defendant has failed to
establish any error, plain or otherwise, warranting relief. See MCR 7.215(J)(1).




sentencing offense and consider only those separate acts or behavior that did not establish the
sentencing offense.” Defendant points out that, once he delivered the heroin to Mosher, the
elements of the sentencing offense were complete, and he did not commit a contemporaneous
felonious criminal act thereafter. This position appears to be in accordance with our decision in
Light, and thus, would not support a finding that defendant committed a contemporaneous
felonious criminal act.


                                                -10-
Affirmed.



                   /s/ Christopher M. Murray
                   /s/ Patrick M. Meter
                   /s/ Karen M. Fort Hood




            -11-
