                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 17, 2018
               Plaintiff-Appellee,

v                                                                    No. 337430
                                                                     Monroe Circuit Court
RYAN JAMES MURDOCK,                                                  LC No. 16-242974-FC

               Defendant-Appellant.


Before: SERVITTO, P.J., and MARKEY AND O’CONNELL, JJ.

PER CURIAM.

        Defendant appeals as of right the sentence imposed for his jury trial conviction of armed
robbery, MCL 750.529. The trial court sentenced defendant to 72 to 240 months’ imprisonment
for his conviction. We affirm.

        Defendant argues that he is entitled to resentencing because the trial court engaged in
judicial fact finding to score offense variables (OV’s) 4, 8, and 10. We disagree.

        This Court reviews a sentencing court’s factual findings, which must be supported by a
preponderance of the evidence, for clear error. People v Gloster, 499 Mich 199, 204; 880 NW2d
776 (2016). “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 this Court reviews de novo. Id., quoting People v Hardy, 494 Mich 430,
438; 835 NW2d 340 (2013). Clear error exists if this Court is “left with a definite and firm
conviction that a mistake has been made.” People v Stone, 269 Mich App 240, 242; 712 NW2d
165 (2005).

                                      I. MCL 777.34 (OV 4)

        OV 4 considers the psychological injury to a victim. MCL 777.34(1). Defendant was
assessed 10 points for OV 4, which is appropriate if “[s]erious psychological injury requiring
professional treatment occurred to a victim.” MCL 777.34(1)(a). An assessment of 10 points for
OV 4 is appropriate if the victim suffered “personality changes, anger, fright, or feelings of being
hurt, unsafe, or violated.” People v Armstrong, 305 Mich App 230, 247; 851 NW2d 856 (2014).
The fact that the victim did not seek treatment is not conclusive, MCL 777.34(2), and a trial
court’s observations of the victim’s demeanor at trial can support a finding of psychological
injury, People v Schrauben, 314 Mich App 181, 197; 886 NW2d 173 (2016). However, “points
may not be assessed solely on the basis of a trial court’s conclusion that a ‘serious psychological

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injury’ would normally occur as a result of the crime perpetrated against the victim.” People v
White, 501 Mich 160, 162; 905 NW2d 228 (2017). In White, the trial court assessed 10 points
for OV 4 even though the only evidence that the victim suffered a psychological injury was her
fear while the crime was being committed. Id. at 162-163. The Supreme Court ruled that the
trial court erred scoring OV 4 because the victim’s “fear while a crime is being committed, by
itself, is insufficient to assess points for OV 4.” Id.

        Defendant does not argue that the victim failed to seek professional treatment, but rather,
argues that the victim did not suffer a psychological injury. Defendant does acknowledge that
the victim testified at trial that she has refused to work the midnight shift since the armed
robbery, and that she feared defendant carried a gun on June 26, 2016. The victim’s statements
about the way the armed robbery affected her work life demonstrate that she suffered a
psychological injury that may require treatment in the future. See Armstrong, 305 Mich App at
247-248 (finding that although the complainant of a sexual assault had not sought counseling by
the time of trial, her expression of confusion, anger, and inability to trust others demonstrated
that she had suffered a psychological injury). The victim expressed that she was afraid that
defendant had a gun on June 26, 2016. Further, her refusal to work the midnight shift is
evidence of a psychological harm outside the “characteristics of the crime” because it impacted
her working life months after the robbery occurred. Additionally, the trial court had the
opportunity to observe the victim’s demeanor during trial, and noted that the victim was visibly
shaken when she testified. Accordingly, the trial court’s factual finding that the victim suffered a
serious psychological injury was not clearly erroneous, and was supported by a preponderance of
the evidence. The trial court properly assessed 10 points for OV 4 because the evidence
sufficiently demonstrates that the victim suffered a serious psychological injury that may require
professional treatment in the future.

                                     II. MCL 777.38 (OV 8)

        Defendant argues that the trial court improperly assessed 15 points for OV 8 because the
statute requires movement that was more than incidental to the commission of the crime.
Specifically, defendant argues that although the victim moved “mere feet” from the where she
stood, it does not constitute “movement” within the meaning of the statute.

         OV 8 considers victim asportation or captivity. MCL 777.38. Under MCL 777.38(1)(a),
the trial court must assess 15 points if “[a] victim was asported to another place of greater danger
or to a situation of greater danger[,] or was held captive beyond the time necessary to commit the
offense.” Movement of a victim that is incidental to the commission of an offense qualifies as
asportation within the meaning of MCL 777.38(1)(a). See People v Barrera, 500 Mich 14, 21-
22; 892 NW2d 789 (2017) (upholding the trial court’s assessment of 15 points for OV 8 because
the defendant moved the victim one room to another in order to sexually assault her without
likely discovery). “Nothing in the statute requires that the movement be greater than necessary
to commit” the crime.” Id. at 21. Thus, asportation is established if the victim is moved away
from the observation of others. People v Chelmicki, 305 Mich App 58, 70-71; 850 NW2d 612
(2014).

        The evidence demonstrates that the victim was standing by the door in the front of the
store, visible to anyone who walked by. When defendant came inside, he forcibly moved her

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away from the door to behind the cash register. Thus, the victim was asported to a place of
greater danger because she was moved away from the front door, where she was within the
observation of others and in a place where she could have more easily escaped, to behind the
counter where others were less likely to see defendant committing the robbery. Therefore, the
trial court properly assessed 15 points for OV 4 because there was sufficient evidence that
defendant asported the victim within the meaning of the statute.

                                    III. MCL 777.40 (OV 10)

        Defendant argues that the trial court incorrectly assessed 15 points for OV 10 because
there is insufficient evidence in the record to support the trial court’s finding that defendant
exploited the victim’s vulnerability. Specifically, defendant argues that he intended to rob Stop
and Go, and not the victim.

        OV 10 addresses the exploitation of a vulnerable victim. MCL 777.40(1). Under MCL
777.40(1)(a), the trial court must assess 15 points if there was exploitative conduct that involved
predatory conduct. See People v Cannon, 481 Mich 152, 157; 749 NW2d 257 (2008). The
statute defines predatory conduct as “preoffense conduct directed at a victim . . . for the primary
purpose of victimization.” MCL 777.40(3)(a). Evidence of predatory conduct can be established
by the timing and location of an offense. People v Kosik, 303 Mich App 146, 160; 841 NW2d
906 (2013). Further, preoffense conduct must be of a kind that is “commonly understood as
being predatory in nature,” rather than preoffense conduct that is merely planning to accomplish
a crime. People v Huston, 489 Mich 451, 462; 802 NW2d 261 (2011). The defendant’s
exploitive conduct must have been directed towards a vulnerable victim whose vulnerability was
readily apparent, i.e., “the victim was susceptible to injury, physical restraint, persuasion, or
temptation.” People v Ackah-Essien, 311 Mich App 13, 37; 874 NW2d 172 (2015), quoting
777.40(3)(c). Circumstances surrounding the crime can create a victim’s vulnerability, which
defendant can enhance through predatory conduct. Huston, 489 Mich at 462.

       The trial court’s factual finding that circumstances surrounding the armed robbery
rendered the victim vulnerable was supported by a preponderance of the evidence because
defendant waited until approximately 3:50 a.m., when there would be minimal foot traffic and
only one working employee. The victim’s vulnerability was readily apparent because she
worked alone, and was susceptible to defendant’s physical restraint. Based on this, the trial court
reasonably determined that defendant engaged in predatory conduct sufficient to support an
assessment of 15 points for OV 10.



                                IV. LOCKRIDGE CHALLENGE

        Defendant incorrectly argues that he can make a threshold showing of the potential for
plain error because the trial court relied on facts that were not admitted by defendant nor found
by the jury to calculate the sentencing guidelines range. In People v Lockridge, 498 Mich 358,
391-392; 870 NW2d 502 (2015), the Supreme Court made the sentencing guidelines advisory.
Lockridge, however, did not undercut the trial court’s requirement to assess the highest number
of points possible for “all OVs, whether using judge-found facts or not.” Id. at 392 n 28. In fact,

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“judicial fact-finding remains part of the process of calculating the guidelines.” People v
Biddles, 316 Mich App 148, 159; 896 NW2d 461 (2016). Therefore, the trial court did not
violate defendant’s Sixth Amendment rights when it used judge-found facts to calculate
defendant’s sentencing guidelines range.

        Accordingly, we conclude that defendant is not entitled to resentencing because there was
sufficient evidence for the trial court to find by a preponderance of the evidence that 10 points
should be assessed for OV 4, 15 points should be assessed for OV 8, and 15 points should be
assessed for OV 10, and that the trial court properly considered judge-found facts to calculate the
sentencing guidelines range.

       Affirmed.



                                                            /s/ Deborah A. Servitto
                                                            /s/ Jane E. Markey
                                                            /s/ Peter D. O'Connell




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