                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       March 24, 2015
               Plaintiff-Appellee,

v                                                                      No. 319141
                                                                       Wayne Circuit Court
FELTON DWAYNE KNUCKLES,                                                LC No. 08-008237-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and SHAPIRO, JJ.

PER CURIAM.

        Defendant was convicted by a jury of unlawful imprisonment, MCL 750.349b,
possession of a firearm by a person convicted of a felony (felon-in-possession), MCL 750.224f,
three counts of felonious assault, MCL 750.82, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. Defendant was originally sentenced as
a fourth habitual offender, MCL 769.12, to 15 to 30 years’ imprisonment for unlawful
imprisonment, two to five years for felon-in-possession, two to four years for each count of
felonious assault, and two years for felony-firearm. Defendant appealed to this Court, which
held that the trial court erred in assessing 15 points for offense variable (OV) 8 and remanded for
resentencing. People v Knuckles, unpublished opinion per curiam of the Court of Appeals,
issued December 14, 2010 (Docket No. 289886). Defendant was resentenced, as a fourth
habitual offender, to 10 to 15 years for unlawful imprisonment, two to five years for felon-in-
possession, two to four years for each count of felonious assault, and two years for felony-
firearm. Defendant now appeals as of right from his resentencing and we affirm.

        This case arises from an incident in which defendant held one of the victims, Kimberly
Davenport, captive at gunpoint in a house. Defendant argues that the trial court erred in
assessing 10 points for OV 4 and 10 points for OV 9.1




1
  “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). In addition, “[w]hether the facts, as found, are adequate
to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law,



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                                                           I. OV 4

       OV 4 addresses psychological injury to a victim. People v Gibbs, 299 Mich App 473,
492; 830 NW2d 821 (2013). MCL 777.34 governs the scoring of OV 4 and provides, in part:

              (1) Offense variable 4 is psychological injury to a victim. Score offense
       variable 4 by determining which of the following apply and by assigning the
       number of points attributable to the one that has the highest number of points:

               (a) Serious psychological injury requiring professional treatment occurred
       to a victim ............................................................................................... 10 points

              (b) No serious psychological injury requiring professional treatment
       occurred to a victim ................................................................................... 0 points

        MCL 777.34(2) provides, “Score 10 points if the serious psychological injury may
require professional treatment. In making this determination, the fact that treatment has not been
sought is not conclusive.” However, the trial court record must contain some evidence of the
victim’s serious psychological injury. People v Lockett, 295 Mich App 165, 183; 814 NW2d 295
(2012). A victim’s statement that he or she was fearful or angry during the incident supports a
trial court’s assessment of 10 points for OV 4. See People v Williams, 298 Mich App 121, 124;
825 NW2d 671 (2012). “ ‘A sentencing court may consider all record evidence before it when
calculating the guidelines, including, but not limited to, the contents of a presentence
investigation report, admissions made by a defendant during a plea proceeding, or testimony
taken at a preliminary examination or trial.’ ” People v Johnson, 298 Mich App 128, 131; 826
NW2d 170 (2012) (citation omitted; emphasis added). The trial court may examine the
presentence investigation report (PSIR) to determine whether the victim suffered psychological
harm. See, e.g., Williams, 298 Mich App at 124 (noting that the trial court properly assigned 10
points for OV 4 based on a victim impact statement in a PSIR); Lockett, 295 Mich App at 183
(noting that the trial court erred in assessing points for OV 4 and pointing out that the PSIR did
not contain any information regarding the victim’s psychological injury).

         The trial court properly assessed 10 points for OV 4. The PSIR contains a victim impact
statement. Kimberly is quoted as stating, “I thought what he did hurt me mentally and
physically, I feel bad he has to go back to prison but he should be punished for what he did. I
feel that he is a threat to society and the family.” In addition, there was testimony presented at
trial indicating that Kimberly suffered psychological injury. For example, Kimberly testified that
she was upset and very scared during the incident because of defendant’s threats. She was also
angry during the incident. Detroit Police Officer Eric Carter testified that Kimberly was yelling
for help during the incident and was “[v]isibly shaken, crying, upset. Hands couldn’t stop
shaking.” Thus, the trial court did not err in assessing 10 points for OV 4 since there was
is a question of statutory interpretation, which an appellate court reviews de novo.” Id.
Questions of constitutional law are also reviewed de novo. People v Harper, 479 Mich 599, 610;
739 NW2d 523 (2007).




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evidence that Kimberly suffered psychological injury that may require professional treatment.
See MCL 777.34(1) and (2); Johnson, 298 Mich App at 131; Williams, 298 Mich App at 124.

        Defendant also argues that the trial court engaged in improper judicial factfinding in
scoring OV 4 in violation of Alleyne v United States, 570 US ___, ___; 133 S Ct 2151, 2155; 186
L Ed 2d 314 (2013). However, we are bound by our opinion in People v Herron, 303 Mich App
392, 403; 845 NW2d 533 (2013), lv held in abeyance 846 NW2d 924 (2014), which considered
and rejected this argument. MCR 7.215(J)(1).

                                                            II. OV 9

       OV 9 addresses the number of victims of a crime. People v Fawaz, 299 Mich App 55,
62; 829 NW2d 259 (2012). MCL 777.39 governs the scoring of OV 9 and provides, in part:

               (1) Offense variable 9 is number of victims. Score offense variable 9 by
       determining which of the following apply and by assigning the number of points
       attributable to the one that has the highest number of points:

                 (a) Multiple deaths occurred ....................................................... 100 points

               (b) There were 10 or more victims who were placed in danger of physical
       injury or death, or 20 or more victims who were placed in danger of property loss
               ....................................................................................................... 25 points

              (c) There were 2 to 9 victims who were placed in danger of physical injury
       or death, or 4 to 19 victims who were placed in danger of property loss
              ....................................................................................................... 10 points

              (d) There were fewer than 2 victims who were placed in danger of
       physical injury or death, or fewer than 4 victims who were placed in danger of
       property loss ............................................................................................... 0 points

MCL 777.39(2)(a) provides, “Count each person who was placed in danger of physical injury or
loss of life or property as a victim.” In People v McGraw, 484 Mich 120, 122; 771 NW2d 655
(2009), the Michigan Supreme Court held, in the context of deciding a challenge to the trial
court’s assessment of 10 points for OV 9, “that a defendant’s conduct after an offense is
completed does not relate back to the sentencing offense for purposes of scoring offense
variables unless a variable specifically instructs otherwise.” The Court clarified that a sentencing
offense “is the crime of which the defendant has been convicted and for which he or she is being
sentenced.” Id. at 122 n 3. The Court reasoned that the prosecution could charge a defendant
with multiple offenses for the defendant’s subsequent actions and that the defendant would be
sentenced for all of his or her convictions. Id. at 130. However, a trial court may not consider a
defendant’s actions once the crime is completed in assessing points for OV 9. See id. at 132-
134.

       The trial court properly assessed 10 points for OV 9 because there were at least two
victims of the sentencing offense of unlawful imprisonment. MCL 750.349b(1) provides:



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             A person commits the crime of unlawful imprisonment if he or she
       knowingly restrains another person under any of the following circumstances:

              (a) The person is restrained by means of a weapon or dangerous
       instrument.

              (b) The restrained person was secretly confined.

              (c) The person was restrained to facilitate the commission of another
       felony or to facilitate flight after commission of another felony.

MCL 750.349b(3)(a) defines “restrain” as follows:

       [T]o forcibly restrict a person’s movements or to forcibly confine the person so as
       to interfere with that person’s liberty without that person’s consent or without
       lawful authority. The restraint does not have to exist for any particular length of
       time and may be related or incidental to the commission of other criminal acts.

       Defendant argues that the trial court erred by including the three police officers who he
was convicted of assaulting as victims under the sentencing offense of unlawful imprisonment.
Even assuming defendant’s argument is correct, the trial court did not err in scoring OV 9 at 10
points because there were at least two other victims of unlawful imprisonment. Kimberly,
Dellonie Davenport, and their daughter were victims under OV 9. Defendant was convicted of
unlawful imprisonment of Kimberly and does not contest the fact that she was a victim for the
purposes of OV 9. Dellonie testified that defendant pointed a gun at him and his daughter before
defendant and Kimberly went into the basement. Dellonie and his daughter fled the house and
called 911 as soon as defendant left the room. Thus, Dellonie and his daughter were victims
under MCL 777.39(2)(a) because they were placed in danger of physical injury during the period
of time in which defendant restrained Kimberly at gunpoint. See MCL 750.349b(1); MCL
777.39(2)(a); People v Morson, 471 Mich 248, 262; 685 NW2d 203 (2004) (holding that a man
standing near the scene of an armed robbery and responding to calls for help was a victim under
the meaning of OV 9). Accordingly, the trial court did not err in scoring OV 9 at 10 points.

       Affirmed.

                                                           /s/ Amy Ronayne Krause
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Douglas B. Shapiro




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