                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  February 28, 2017
              Plaintiff-Appellee,

v                                                                 No. 328354
                                                                  Macomb Circuit Court
MICHAEL EUGENE HOSECLAW,                                          LC No. 2014-003953-FH

              Defendant-Appellant.


Before: JANSEN, P.J., and BECKERING and GADOLA, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of assault with intent to commit great
bodily harm less than murder, MCL 750.84. The trial court sentenced defendant to 2 to 10 years’
imprisonment. Defendant appeals as of right. We affirm.

        On July 13, 2014, Keith Kowalske, Michael Cox, and Rob Wilson were in the poker
room at the Sunnybrook Golf Course in Sterling Heights. Defendant approached the men and
engaged in a verbal altercation with Kowalske. Defendant left the poker room, and Kowalske
left the poker room after defendant left. While both men were in the parking lot of the golf
course, defendant hit Kowalske in the head with a carpet kicker. Defendant contended at trial
that he acted in self-defense.

                             I. PRODUCTION OF WITNESSES

        Defendant first argues that the prosecutor violated MCL 767.40a(5) by failing to provide
reasonable assistance to locate and serve process on Nicole Yelp.1 Defendant further argues that
the trial court erred by finding that Yelp was not properly served with a subpoena and by
refusing to issue a bench warrant for Yelp’s arrest. We disagree.




1
  We note that although defendant mentions Wilson as one of the witnesses who did not testify at
trial, defendant’s arguments regarding MCL 767.40a(5) and the trial court’s refusal to issue a
bench warrant are limited to Yelp.


                                              -1-
        Following a lengthy discussion about the production of Yelp and Wilson and their
expected testimony, defense counsel stated that she waived their presence because their
testimony would be cumulative. Waiver is “the intentional relinquishment or abandonment of a
known right.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (citation and
quotation marks omitted). “One who waives his rights under a rule may not then seek appellate
review of a claimed deprivation of those rights, for his waiver has extinguished any error.” Id.
(citation and quotation marks omitted). By stating that she waived the presence of Yelp and
Wilson, defense counsel expressly approved the act of continuing trial without the testimony of
Yelp and Wilson. Accordingly, defense counsel waived the issues whether the prosecutor
violated MCL 767.40a(5) and whether the trial court erred by refusing to issue a bench warrant
for Yelp’s arrest. However, even if the issues were not waived, defendant is not entitled to any
relief.

        In 1986, when MCL 767.40a was amended, the prosecution’s duty regarding production
of witnesses was altered. People v Perez, 469 Mich 415, 418; 670 NW2d 655 (2003). Before
the 1986 amendment, the statute required the prosecution “to list all res gestae witnesses on the
information and to produce them at trial.” Id. The 1986 amendment replaced the prosecution’s
duty to produce all res gestae witnesses with “an obligation to provide notice of known witnesses
and reasonable assistance to locate witnesses on defendant’s request.” People v Burwick, 450
Mich 281, 289; 537 NW2d 813 (1995). Pertinently, the prosecution “shall provide to the
defendant, or defense counsel, upon request, reasonable assistance, including investigative
assistance, as may be necessary to locate and serve process upon a witness.” MCL 767.40a(5).

         At a pretrial hearing, defense counsel asked for assistance in subpoenaing the witnesses
she intended to call at trial. The trial court ordered the prosecutor to provide defense counsel
with the contact information that he had for those witnesses. The court also told defense counsel
that it would approve any request for reimbursement of fees that she incurred in subpoenaing the
witnesses. Defendant acknowledges that defense counsel sent a subpoena to Yelp and that Yelp
received it. Despite this acknowledgment, defendant claims that the prosecutor did not provide
reasonable assistance as required by MCL 767.40a(5) because Yelp, as the prosecutor knew
before trial, had no intention of complying with the subpoena, and defense counsel needed
assistance to get Yelp to trial. Thus, defendant argues that MCL 767.40a(5) requires a
prosecutor to give assistance to ensure that a defense witness, upon receiving a subpoena,
complies with the subpoena and appears in court.

        The goal of statutory interpretation is to ascertain and give effect to the intent of the
Legislature. People v Miller, 288 Mich App 207, 209; 795 NW2d 156 (2010). Our analysis
begins with the language of the statute. Id. If the language is unambiguous, the Legislature is
presumed to have intended the meaning clearly expressed, and the statute must be enforced as
written. Id. “Nothing will be read into a clear and unambiguous statute that is not within the
manifest intent of the Legislature as derived from the language of the statute itself.” Id. at 210.
Pursuant to MCL 767.40a(5), a prosecutor “shall provide to the defendant, or defense counsel,
upon request, reasonable assistance, including investigative assistance, as may be necessary to
locate and serve process upon a witness.” (Emphasis added.) MCL 767.40a(5) requires a
prosecutor to provide reasonable assistance that is necessary to locate and serve process on a
witness. The statute does not speak of any assistance that a prosecutor must give after a witness
has been served with a subpoena. Accordingly, to hold that a prosecutor must provide assistance
                                                -2-
in obtaining the appearance of a subpoenaed witness, who has expressed an intention not to
comply with a subpoena, would read into MCL 767.40a(5) a requirement that is not within the
manifest intent of the Legislature as derived from the language of the statute. Accordingly, we
reject defendant’s argument that the prosecutor failed to provide reasonable assistance as
required by MCL 767.40a(5).

       As indicated, Yelp did not comply with the subpoena that she received from defense
counsel. The failure to comply with a subpoena served in accordance with MCR 2.506 may be
considered a contempt of court. MCR 2.506(E)(1). MCR 2.506(G) provides, in pertinent part:

              (1) A subpoena may be served anywhere in Michigan in the manner
       provided by MCR 2.105. . . .

               (2) A subpoena may also be served by mailing to a witness a copy of the
       subpoena and a postage-paid card acknowledging service and addressed to the
       party requesting service. The fees for attendance and mileage provided by law are
       to be given to the witness after the witness appears at the court, and the
       acknowledgment card must so indicate. If the card is not returned, the subpoena
       must be served in the manner provided in subrule (G)(1).

MCR 2.105(A) involves service of process with regard to the summons and complaint in a civil
case and provides that process may be served on an individual by

              (1) delivering a summons and a copy of the complaint to the defendant
       personally; or

               (2) sending a summons and a copy of the complaint by registered or
       certified mail, return receipt requested, and delivery restricted to the addressee.
       Service is made when the defendant acknowledges receipt of the mail. A copy of
       the return receipt signed by the defendant must be attached to proof showing
       service under subrule (A)(2).

Defense counsel indicated at trial that she mailed the subpoena to Yelp. Yelp was not served by
personal service or through registered or certified mail. There is no indication that a postage-
paid card accompanied the subpoena or that the card was returned. However, defendant claims
that, because Yelp acknowledged receipt of the subpoena via telephone, Yelp was properly
served with the subpoena.

         The rules of statutory construction apply to the interpretation of court rules. Hill v City of
Warren, 276 Mich App 299, 305; 740 NW2d 706 (2007). Thus, in interpreting a court rule, we
begin with the language of the rule. Id. If the language is unambiguous, “ ‘the proper role of a
court is simply to apply the terms of the [court rule] to the circumstances in a particular case.’ ”
Id. (citation omitted). Language in a court rule must be read in the context of the entire rule. See
People v Glass, 288 Mich App 399, 404; 794 NW2d 49 (2010).

       Accordingly, the second sentence in MCR 2.105(A)(2) that “[s]ervice is made when the
defendant acknowledges receipt of the mail” cannot be read in isolation. The first sentence of

                                                 -3-
MCR 2.105(A)(2) provides that process may be served on an individual by “sending a summons
and a copy of the complaint by registered or certified mail, return receipt requested.” The phrase
“the mail” in the second sentence in MCR 2.105(A)(2) clearly refers to the “registered or
certified mail” that is mentioned in the first sentence. Thus, when read in context, the second
sentence of MCR 2.105(A)(2) provides that service of process is made when the individual
acknowledges receipt of the registered or certified mail. It cannot be read for the proposition
advanced by defendant that service is made when the individual acknowledges receipt of the
mail regardless what manner of mail was used.

       Therefore, the trial court did not err by concluding that Yelp was not properly served with
a subpoena. Yelp’s subpoena was not served in accordance with MCR 2.506. Further, because a
person’s failure to comply with a subpoena can only be a contempt of court if the subpoena is
served in accordance with MCR 2.506, the trial court did not err by refusing to issue a bench
warrant for Yelp’s arrest. See MCR 2.506(E)(1). Accordingly, defendant’s claims that the
prosecutor failed to provide reasonable assistance and that the court erred by concluding that
Yelp was not properly served with the subpoena are without merit.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues that defense counsel was ineffective for failing to properly
subpoena Yelp and Wilson, for failing to request a continuance in order to produce the witnesses,
and for waiving production of them at trial. We disagree.

       Because defendant did not move for a new trial or an evidentiary hearing, he failed to
preserve the issue, and our review of the ineffective assistance of counsel claim is limited to
mistakes apparent from the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).
In general, the issue whether a defendant received the effective assistance of counsel constitutes
a mixed question of fact and law. Id. “This Court reviews findings of fact for clear error and
questions of law de novo.” Id.

       To establish a claim for ineffective assistance of counsel, a defendant must show that
counsel’s performance fell below an objective standard of reasonableness and that there is a
reasonable probability that, but for counsel’s deficient performance, the result of the proceedings
would have been different. People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (citation and quotation marks
omitted).

        “[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland v Washington, 466 US 668, 697; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Based on
this rule, we need not analyze whether defense counsel’s performance was deficient. The
prejudice that defendant claims is that the jury did not hear the testimony of Yelp and Wilson.
According to the statements that Yelp and Wilson gave to the police, neither saw how the fight
between defendant and Kowalske started. Yelp did not see the fight until after Michael Cox was
involved, and Wilson did not see any of it. Because Yelp and Wilson could not have testified
regarding how the fight started, the absence of testimony from Yelp and Wilson at trial does not

                                                -4-
undermine confidence in the outcome of defendant’s trial. Thus, there is not a reasonable
probability that, but for defense counsel’s conduct, the result of the trial would have been
different. Defendant was not denied the effective assistance of counsel.

        Defendant next argues that he is entitled to specific performance of an original plea offer
to plead guilty to aggravated assault, MCL 750.81a. He contends that he denied the offer on the
basis of defense counsel’s incorrect advice that defense witnesses would testify in support of his
claim of self-defense. We disagree. Defendant failed to preserve this issue for appellate review
by filing a motion for a new trial or an evidentiary hearing, and our review of this ineffective
assistance of counsel claim is limited to mistakes apparent from the record. See Heft, 299 Mich
App at 80.

        A defendant is entitled to the effective assistance of counsel during the plea-bargaining
process. People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). A defendant who
claims that he was denied the effective assistance of counsel during the plea-bargaining process
must meet the familiar two-pronged standard for ineffective assistance of counsel claims:
deficient performance and prejudice. Id. at 592. To show prejudice, the defendant must
demonstrate that the outcome of the plea process would have been different had counsel
provided competent advice. Id. A defendant has the burden to prove the factual predicate for a
claim of ineffective assistance of counsel. Id.

        At a pretrial hearing, defendant’s attorney informed the trial court that the prosecutor had
given defendant an offer to plead to misdemeanor aggravated assault, that he was willing to
plead, and that the offer was no longer available. The prosecutor responded that he did not
believe that an offer for aggravated assault was ever formally made. At a subsequent pretrial
hearing, the prosecutor stated that defendant’s claim that the prosecutor made an offer to plead to
aggravated assault was deemed not to be true. The prosecutor then made an offer for defendant
to plead guilty to aggravated assault, but defendant would have to pay full restitution up front.
However, defendant chose to go to trial. At a subsequent pretrial hearing, the prosecutor
indicated that the prosecution had made two separate offers. The first offer was for aggravated
assault with restitution of $3,000 to be paid at sentencing, and the second offer was for defendant
to plead guilty as charged with the stipulation that if defendant paid the $3,000 in restitution
during his term of probation, he could withdraw his plea and plead to the reduced charge of
aggravated assault. However, defendant decided to proceed with trial. At trial, there was a
discussion regarding defendant’s option to plead guilty to assault with intent to commit great
bodily harm less than murder pursuant to a Cobbs2 agreement, but defendant ultimately decided
to proceed with trial.

        The record does not establish the factual predicate for defendant’s claim, i.e., that he
rejected an offer to plead guilty to aggravated assault without the restitution requirement. Even
if defendant had received an earlier offer to plead guilty to aggravated assault and defendant
rejected the offer, the record does not establish that defendant rejected the offer based on advice


2
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).


                                                -5-
from defense counsel that defense witnesses could testify in support of his self-defense claim.
The record is silent regarding any advice that defense counsel gave defendant regarding any plea
offer. Thus, there is no mistake by defense counsel that is apparent from the record.

        Defendant claims that, even if he is not entitled to specific performance of the offer to
plead guilty to aggravated assault, he should be allowed to plead guilty to assault with intent to
commit great bodily harm less than murder pursuant to the Cobbs agreement that was offered
during trial. However, defendant’s rejection of the Cobbs agreement was not the result of any
advice from defense counsel that defense witnesses could testify in support of his self-defense
claim. When he rejected the Cobbs agreement, defendant knew that Yelp and Wilson would not
be testifying.

        Defendant suggests that defense counsel’s performance fell below an objective standard
of reasonableness when counsel moved to withdraw after defendant indicated that he wanted to
plead pursuant to the Cobbs agreement. However, even assuming that defense counsel’s
performance in moving to withdraw was deficient, there is no connection between the motion to
withdraw and defendant’s subsequent decision to reject the Cobbs agreement. The trial court
denied defense counsel’s motion to withdraw. The trial court then asked defendant, for a final
time, what he wanted to do, and it explained to defendant the two options available to him. After
hearing the options, and knowing that he would be represented by counsel, defendant chose to
testify. Under these circumstances, defendant has not shown any prejudice from defense
counsel’s alleged deficient performance in moving to withdraw. Defendant is not entitled to
specific performance of any plea offer.

                                         III. DISCOVERY

      Next, defendant argues that the trial court erred by refusing to order the prosecutor to
produce Kowalske’s medical records. We disagree.

        We review a trial court’s decisions regarding discovery for an abuse of discretion.
People v Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003). A trial court abuses its discretion
when its decision falls outside the range of reasonable and principled outcomes. People v Unger,
278 Mich App 210, 217; 749 NW2d 272 (2008). Due process claims, such as an alleged Brady3
violation, are reviewed de novo. People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534
(2007).

        “ ‘There is no general constitutional right to discovery in a criminal case . . . .’ ” People v
Stanaway, 446 Mich 643, 664; 521 NW2d 557 (1994) (citation omitted). However, due process
requires the prosecution to provide the defendant with evidence in its possession that is favorable
to the defendant and material to guilt or punishment. People v Chenault, 495 Mich 142, 149;
845 NW2d 731 (2014). The three elements of a Brady violation are “(1) the prosecution has
suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its totality, is



3
    Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).


                                                 -6-
material.” Id. at 155. Because the prosecutor did not possess Kowalske’s medical records,
Brady did not require the prosecutor to provide the medical records to defendant.

        MCR 6.201 governs discovery in criminal cases. Phillips, 468 Mich at 589. The court
rule mandates that the prosecution provide certain discovery to the defendant upon the
defendant’s request. See MCR 6.201(A) and (B). If a defendant seeks discovery of material that
is not required to be disclosed, the defendant must show good cause before the trial court may
order the requested discovery. MCR 6.201(I); People v Greenfield (On Reconsideration), 271
Mich App 442, 448; 722 NW2d 254 (2006). Kowalske’s medical records do not fall within the
mandated disclosure provisions.

        The trial court concluded that the prosecutor was “under no obligation to produce”
Kowalske’s medical records. It specifically told defendant that he was “free to pursue any
discovery directly” that he felt was appropriate. Thus, the trial court did not rule that defendant
was not entitled to discover Kowalske’s medical records. Defendant remained free to subpoena
the hospital for Kowalske’s medical records, which defendant did not do. Essentially, the trial
court required defendant to seek production of the medical records from the entity that possessed
them. Because defendant has not provided any caselaw indicating that the prosecution is
required to obtain information from a third party that it is not required by law to provide the
defendant, we conclude that the trial court did not abuse its discretion by refusing to require the
prosecutor to produce Kowalske’s medical records. See Phillips, 468 Mich at 587.

                                 IV. VIDEOTAPE RECORDING

        Defendant argues that the trial court erred when it refused to provide the jury with the
surveillance video of the inside of the poker room. We disagree.

        During trial, a videotape recording of the inside of the poker room before the incident
was shown to the jury. The record indicates that there were ongoing technical issues with the
videotape recording. During deliberations, the jury sent a note to the trial court, asking what
alternative it had in reaching a unanimous verdict when the video was not operating. The trial
court instructed the jury that it was to rely on its collective memory regarding the surveillance
video and to continue its deliberations.

         In support of his argument, defendant relies on federal caselaw indicating that a jury is
generally entitled to examine exhibits admitted into evidence. According to defendant, there was
no reason that justified excluding the video of the poker room from the jury room. Defendant’s
argument miscomprehends what happened. The present case does not involve a situation where
the trial court, upon receiving a request from the jury to view the video of the poker room, chose
to exclude the video from the jury room. The trial court’s statements, during its discussion with
the prosecutor and defense counsel that followed closing instructions, clearly indicated that it
would allow the jury to view the video of the poker room if the jury so asked. The trial court’s
statements, along with the jury’s question and the trial court’s instruction in response, establish
that the trial court provided the jury with the video, but the jury was unable to view it because the
video was not operating. Thus, the relevant inquiry is whether the trial court properly instructed
the jury to rely on its collective memory regarding the video and to continue its deliberations.
Because defendant makes no argument regarding the trial court’s instruction, defendant has

                                                -7-
abandoned his claim for relief. People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480
(1998).

                             V. PROSECUTORIAL MISCONDUCT

        Next, defendant argues that the prosecutor committed misconduct when the prosecutor in
his rebuttal argument stated that defense counsel was at fault for two witnesses not appearing at
trial because defense counsel failed to properly subpoena them. Because defendant did not
object to the remark, the claim of prosecutorial misconduct is unpreserved, see People v Bennett,
290 Mich App 465, 475; 802 NW2d 627 (2010), and we review it for plain error affecting
defendant’s substantial rights, People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818
(2003).4

        The test for prosecutorial misconduct is whether the prosecutor’s conduct denied the
defendant a fair and impartial trial. People v Lane, 308 Mich App 38, 62; 862 NW2d 446
(2014). We examine instances of prosecutorial misconduct on a case-by-case basis and in
context. Id. at 62-63. A prosecutor denies a defendant a fair trial if he or she makes a remark
that infects the trial with unfairness to the extent that the defendant’s conviction constitutes a
denial of due process. Id. at 62.

          In his rebuttal argument, the prosecutor stated that two witnesses did not appear at trial
because they were not properly subpoenaed, and indicated that this was defense counsel’s fault.
Although a prosecutor’s remarks must be considered in light of defense counsel’s comments and
“[a]n otherwise improper remark may not rise to an error requiring reversal when the prosecutor
is responding to the defense counsel’s argument,” People v Watson, 245 Mich App 572, 592-
593; 629 NW2d 411 (2001) (citation and quotation marks omitted), the prosecutor was not
responding to any comment made by defense counsel. Defense counsel, in her closing argument,
did not mention anything about the two witnesses not appearing at trial. “If the defendant makes
an argument, the plaintiff or the prosecutor may offer a rebuttal limited to the issues raised in the
defendant’s argument.” MCR 2.513(L). Because defense counsel did not raise any issue
regarding missing witnesses in her closing argument, it was improper for the prosecutor to make
any argument in his rebuttal about the missing witnesses and who was to blame for their absence
at trial.

        However, the prosecutor’s improper comment did not affect defendant’s substantial
rights. We first conclude that the error was not prejudicial because the jury heard little regarding
the two witnesses and their relevance to the case during trial. Thus, the prosecutor’s comment
would not have made sense to the jury and would not have affected its decision. In addition,



4
  In his brief on appeal, defendant also claims that the prosecutor committed misconduct by
berating defense counsel for lying about not receiving police reports, for not following correct
procedures, and for failing to subpoena witnesses. However, because defendant did not provide
any citation to the record to support his argument, the argument is not properly before us and we
decline to consider it. See People v Petri, 279 Mich App 407, 413; 760 NW2d 882 (2008).


                                                -8-
after closing arguments, the jury was instructed that it had to decide the case based only on the
evidence, which included the sworn testimony of witnesses, the admitted exhibits, and anything
else it was told was evidence. The trial court specifically instructed the jury that the statements
and arguments of the lawyers were not evidence. A jury is presumed to follow its instructions,
and instructions are presumed to cure most errors. People v Abraham, 256 Mich App 265, 279;
662 NW2d 836 (2003). Based on the trial court’s instructions, the prosecutor’s improper remark
did not affect the outcome of defendant’s trial. See People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999).

                                       VI. SENTENCING

       Defendant argues that the trial court erred by scoring offense variable (OV) 3. We
disagree.

        We review a trial court’s factual findings in scoring the sentencing guidelines for clear
error, and the court’s determinations must be supported by a preponderance of the evidence.
People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). Clear error exists when we are left
with a definite and firm conviction that an error occurred. People v McChester, 310 Mich App
354, 358; 873 NW2d 646 (2015). Whether the facts, as found by the trial court, are adequate to
satisfy the scoring conditions is a question of statutory interpretation, which is an issue reviewed
de novo. Hardy, 494 Mich at 438.

        OV 3 addresses physical injury to the victim. MCL 777.33(1). The trial court assigned
25 points for OV 3, but defendant claims that only 10 points should have been assigned.
Twenty-five points are to be assessed for OV 3 if “[l]ife threatening or permanent incapacitating
injury occurred to a victim,” MCL 777.33(1)(c), whereas 10 points are to be assessed if “[b]odily
injury requiring medical treatment occurred to a victim,” MCL 777.33(1)(d).

        Kowalske explained that he went to the hospital the day after the incident. The hospital
performed a CT scan of his brain, took x-rays of his shoulders, neck, and eye socket, and put six
staples into his head to close the gash he received in the incident. Kowalske testified that since
the assault, he has constant headaches, which he described as “[h]orrible, horrible headaches.”
He also suffers aches in his left eye, and he has nerve damage that causes his head and neck to go
numb. His left eye constantly leaks or tears. It leaks whenever he touches it or when he leans to
that side. Because he installs hardwood floors, he leans over a lot. The injuries have an effect on
his work. Although Kowalske was not receiving treatment at the time of trial because he did not
have insurance, he anticipated receiving treatment in the future. Kowalske indicated that he did
not suffer from these ailments before July 13, 2014. Based on Kowalske’s testimony, we are not
left with a definite and firm conviction that the trial court erred by finding that Kowalske
suffered permanent incapacitating injury. See McChester, 310 Mich App at 358.

       Because we affirm the trial court’s 25-point score for OV 3, we need not address
defendant’s final argument that the trial court erred by assigning five points for OV 10. If a trial
court errs in scoring the sentencing guidelines and the scoring error affected the minimum
sentence range, the defendant is entitled to be resentenced. People v Biddles, ___ Mich App ___,
___; ___ NW2d ___ (2016) (Docket No. 326140); slip op at 4. Any error by the trial court in


                                                -9-
assigning five points for OV 10 did not affect the minimum sentence range.   Therefore,
resentencing is not required.

      Affirmed.


                                                    /s/ Kathleen Jansen
                                                    /s/ Michael F. Gadola




                                        -10-
