            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 11, 2019
               Plaintiff-Appellee,

v                                                                   No. 340328
                                                                    Wayne Circuit Court
CHRISTOPHER LOUIS SINDONE,                                          LC No. 17-000304-01-FH

               Defendant-Appellant.


Before: SHAPIRO, P.J., and BECKERING and M. J. KELLY, JJ.

PER CURIAM.

         Defendant, Christopher Sindone, appeals as of right his bench trial convictions of second-
degree arson, MCL 750.73(1), and preparation to burn a dwelling, MCL 750.79(1)(d)(vi).
Defendant’s convictions arise out of a dispute during the holidays between defendant and his
estranged wife, Jennifer Sindone (Sindone), which led to defendant setting fire to Sindone’s
trailer on December 24, 2016. The trial court sentenced defendant, as a third habitual offender,
MCL 769.11, to 12 to 40 years’ imprisonment for second-degree arson and 5 to 10 years’
imprisonment for preparation to burn a dwelling. We affirm defendant’s convictions but reverse
and remand for resentencing.

                            I. SUFFICIENCY OF THE EVIDENCE

      Defendant challenges his convictions on grounds that the prosecution failed to prove
beyond a reasonable doubt that the trailer1 at issue is a “dwelling”; therefore, the prosecution


1
  Sindone described her home as a “mobile home,” however the prosecutor and others repeatedly
refer to it as a trailer. We deem the distinction irrelevant under the circumstances. We also note
that defendant contradicted Sindone’s testimony and claimed that he and Sindone purchased the
trailer together; however, we view the evidence for a sufficiency of the evidence argument in the
light most favorable to the prosecution. And in any event, ownership of the trailer is not relevant
for purposes of the statutes under which defendant was convicted.
failed to prove each and every element of second-degree arson and preparation to burn a
dwelling pursuant to MCL 750.73(1) and MCL 750.79(1)(d)(vi), respectively. Defendant
contends that the trailer was dilapidated and uninhabitable. We disagree.

        This Court reviews de novo a challenge to the sufficiency of the evidence. People v
Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999). “When reviewing a claim of
insufficient evidence following a bench trial, this Court must review the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could have found that
the essential elements of the crime were proven beyond a reasonable doubt.” People v Hutner,
209 Mich App 280, 282; 530 NW2d 174 (1995). It is the role of the fact-finder, rather than this
Court, to determine the weight of the evidence and the credibility of witnesses. People v Lee,
243 Mich App 163, 167; 622 NW2d 71 (2000). “Circumstantial evidence and the reasonable
inferences that arise from that evidence can constitute satisfactory proof of the elements of the
crime.” People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014). This Court resolves
any evidentiary conflicts in favor of the prosecution. Id.

        To be guilty of second-degree arson, the prosecution must prove beyond a reasonable
doubt that the defendant “willfully or maliciously burne[d], damage[d], or destroye[d] by fire or
explosive a dwelling, regardless of whether it [was] occupied, unoccupied, or vacant at the time
of the fire or explosion, or its contents.” MCL 750.73(1). With respect to preparation to burn a
dwelling, MCL 750.79 provides in pertinent part:

       (1) A person who uses, arranges, places, devises, or distributes an inflammable,
       combustible, or explosive material, liquid, or substance or any device in or near a
       building, structure, other real property, or personal property with the intent to
       commit arson in any degree or who aids, counsels, induces, persuades, or procures
       another to do so is guilty of a crime as follows:

                                              * * *

       (d) If any of the following apply, the person is guilty of a felony punishable by
       imprisonment for not more than 10 years or a fine of not more than $15,000.00 or
       3 times the combined value of the property damaged or destroyed, whichever is
       greater, or both imprisonment and a fine:

                                              * * *

       (vi) The property is a dwelling. This subparagraph applies regardless of whether
       the person owns the dwelling.

MCL 750.71(d), which is applicable to the offenses at issue, defines a “dwelling” as including,
but not limited to “any building, structure, vehicle, watercraft, or trailer adapted for human
habitation that was actually lived in or reasonably could have been lived in at the time of the fire
or explosion and any building or structure that is within the curtilage of that dwelling or that is
appurtenant to or connected to that dwelling.”

      Sufficient evidence supports a finding that Sindone’s trailer constitutes a dwelling within
the meaning of MCL 750.71(d). The prosecution presented ample evidence that Sindone had

                                                -2-
been living in the trailer for approximately one month when the fire occurred. Sindone testified
that she purchased the trailer on November 29, 2016 in order to move out of the family home and
remove herself from the marriage with defendant. She spent the night in the trailer between the
time of its purchase and the night of the fire. She ate meals in the trailer. She kept her clothing,
her children’s clothing2, Christmas decorations, shovels, and bedding at the trailer. There was a
couch in the living room, a working bathroom, and three bedrooms. She also had water and
electricity hooked up to the residence, both of which were working on the night of the fire.

         Laurie Stasa, defendant’s mother, testified that Sindone lived in the trailer. Woodhaven
Police Sergeant Nick Grunwald testified that he observed an air mattress and bedding inside the
trailer. Defendant also testified that he slept on an air mattress in Sindone’s bedroom inside the
trailer on December 24, 2016. While there was evidence that the trailer needed repairs and
lacked a functioning kitchen, the prosecution presented sufficient evidence that it was “adapted
for human habitation” and that Sindone “actually lived in or reasonably could have” lived in the
trailer at the time of the fire. See MCL 750.71(d). Accordingly, the prosecution presented
sufficient evidence that Sindone’s trailer constituted a dwelling for purposes of second-degree
arson and preparation to burn a dwelling.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that he was denied the effective assistance of counsel because his trial
counsel failed to argue that Sindone’s trailer did not qualify as a dwelling, failed to utilize an
arson investigator, and did not object to the prosecution’s use of evidence that was obtained
illegally. We disagree.

        To preserve a claim of ineffective assistance of counsel, a defendant must make a motion
in the trial court for a new trial or an evidentiary hearing. People v Sabin, 242 Mich App 656,
658; 620 NW2d 19 (2000). Because defendant raised his claims of ineffective assistance of
counsel for the first time on appeal, they are unpreserved. When no Ginther3 hearing is held, this
Court reviews claims of ineffective assistance of counsel based on the facts contained in the
existing record. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). Whether
effective assistance of counsel has been denied is a mixed question of fact and constitutional law.
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court reviews questions of
constitutional law de novo, and factual findings, if any, are reviewed for clear error. Jordan, 275
Mich App at 667.

        “Both the Michigan and the United States Constitutions require that a criminal defendant
enjoy the assistance of counsel for his or her defense.” People v Trakhtenberg, 493 Mich 38, 51;
826 N.W.2d 136, 143 (2012). “In order to obtain a new trial, a defendant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have


2
    Defendant and Sindone have twin children together.
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -3-
been different.” Id. Counsel’s performance is presumed to be effective, and the defendant bears
a heavy burden of demonstrating otherwise. People v Dixon, 263 Mich App 393, 396; 688
NW2d 308 (2004). There is also a strong presumption that defense counsel’s decisions
constitute sound trial strategy. People v Foster, 319 Mich App 365, 391; 901 NW2d 127 (2017).

        Defendant first claims that his counsel was deficient in failing to argue that Sindone’s
trailer was not a dwelling within the meaning of MCL 750.79(1) and MCL 750.79(1)(d)(vi). For
the reasons we have already addressed with respect to the sufficiency of the evidence,
defendant’s argument lacks merit. The prosecution presented ample evidence to establish that
Sindone’s trailer was a dwelling for purposes of second-degree arson and preparation to burn a
dwelling. Had defense counsel raised the issue, she would have been unsuccessful. Trial
counsel’s failure to raise a meritless argument or a futile objection does not constitute ineffective
assistance of counsel. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Moreover, it is apparent from the record that defense counsel was aware of the trailer’s condition
and made the strategic decision to pursue a defense that defendant accidentally started the fire,
rather than one that focused on the condition or state of the trailer. This Court does not second-
guess counsel on matters of trial strategy, People v Russell, 297 Mich App 707, 716; 825 NW2d
623 (2012), and it does not substitute its own judgment for that of trial counsel regarding
strategy, “even if that strategy backfired.” People v Rodgers, 248 Mich App 702, 715; 645
NW2d 294 (2001). Accordingly, defendant fails to demonstrate that he was denied the effective
assistance of counsel on this ground.

        Defendant also argues that defense counsel was ineffective because she failed to utilize
an arson investigator to present evidence that defendant did not intentionally start the fire,
despite the trial court’s appointment of an arson investigator on behalf of defendant. However,
defendant fails to meet his burden of establishing a factual predicate to support his claim. See
People v Douglas, 496 Mich 557, 593; 852 NW2d 587 (2014), citing People v Hoag, 460 Mich
1, 6; 594 NW2d 57 (1999). Defendant does not provide an affidavit indicating what an arson
investigator’s testimony would have been. Nor does he explain how an arson investigator would
have shown definitively that the fire was accidental. Chief Clark testified that samples taken
from Sindone’s trailer did not indicate that accelerant was used to start the fire and that the cause
of ignition was undetermined. Sergeant Grunwald also testified that he did not know what was
used to start the fire. Presumably, defense counsel made the strategic decision not to use an
arson investigator because the prosecution’s evidence was consistent with the defense theory that
defendant accidentally started the fire. Accordingly, defendant fails to demonstrate that defense
counsel was ineffective on this ground.

        Finally, defendant contends that defense counsel was ineffective because she failed to
argue at trial that the police seized certain evidence in violation of his Fourth Amendment
rights.4 Defense counsel was clearly aware of this potential argument because the trial court
addressed defendant’s pro se motion before trial. Presumably, defense counsel made the


4
 Defendant raised this issue is a Standard 4 brief. A “Standard 4” brief refers to the brief a
defendant may file in propria persona pursuant to Standard 4 of Michigan Supreme Court
Administrative Order No. 2004-6, 471 Mich c, cii (2004).


                                                -4-
strategic decision not to raise the issue at trial because defendant did not have a possessory right
to the trailer or to the items taken from it, and therefore, he did not have standing to challenge the
constitutional validity of the search. See People v Zahn, 234 Mich App 438, 446; 594 NW2d
120 (1999) (noting that an individual’s rights against unreasonable search and seizures is
personal and can only be invoked by the person whose protections were infringed by the search
or seizure), citing People v Smith, 420 Mich 1, 17-19; 360 NW2d 841 (1984). A defendant has
standing “to challenge a search or seizure if, under the totality of the circumstances, he has a
subjective expectation of privacy in the object of the search or seizure and the expectation of
privacy is one that society is prepared to recognize as reasonable.” Zahn, 234 Mich App at 446.

        Sindone testified that she purchased the trailer herself and defendant’s name was not on
the deed, the contract, the landlord tenant agreement, or anything associated with the property.
She also testified that defendant was not allowed inside the trailer, but at some point, without her
permission, he had made a copy of her key. Defendant admitted that he was not personally
involved in the purchase of the trailer, did not live at the trailer, and his name was not on any of
the utility bills. Because defendant did not own the trailer or have any legal right to enter the
property, he did not have a reasonable expectation of privacy in the trailer and therefore, he does
not have standing to challenge the search and seizure of items from the trailer. Accordingly,
defense counsel was not ineffective by failing to raise a meritless argument. See Ericksen, 288
Mich App at 201.

                                    III. DOUBLE JEOPARDY

       Defendant argues that his convictions of second-degree arson and preparation to burn a
dwelling must be vacated as a violation of double jeopardy because his convictions arise from
the same conduct and involve multiple punishments. We disagree.

        Defendant failed to preserve this claim of error by raising it in the trial court. See People
v Barber, 255 Mich App 288, 291; 659 NW2d 674 (2003) (concluding that the defendant failed
to preserve his argument on appeal that his convictions for burning real property and burning a
dwelling home violated double jeopardy because the defendant raised the issue for the first time
on appeal). Our review of unpreserved constitutional error is for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764, 597 NW2d 130
(1999). To avoid forfeiture under the plain-error rule, the defendant must meet three
requirements: “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and
the plain error affected substantial rights.” Id. at 763, citing United States v Olano, 507 US 725;
113 S Ct 1770; 123 L Ed 2d 508 (1993). The third element generally requires the defendant to
demonstrate “prejudice, i.e., that the error affected the outcome of the lower court proceeding.”
Carines, 460 Mich at 763. Even if the defendant can show all three elements, “[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.” Carines, 460 Mich at 763-764.

        Both the United States and the Michigan Constitutions protect a criminal defendant from
being twice put in jeopardy for a single offense. US Const, Am V; Const 1963, art 1, § 15;
Barber, 255 Mich App at 291-292. This prohibition against double jeopardy protects individuals
in three ways:

                                                 -5-
       (1) it protects against a second prosecution for the same offense after acquittal; (2)
       it protects against a second prosecution for the same offense after conviction; and
       (3) it protects against multiple punishments for the same offense. The first two
       protections comprise the “successive prosecutions” strand of double jeopardy,
       while the third protection is known as the “multiple punishments” strand. [People
       v Miller, 498 Mich 13, 17; 869 NW2d 204 (2015) (quotation marks and citation
       omitted).]

       This case involves the multiple punishments strand of double jeopardy because
defendant’s convictions and sentences for second-degree arson and preparation to burn a
dwelling concern the same conduct and the same trial. See id. at 17

        The purpose of the multiple punishments strand of double jeopardy is “to ensure that
courts confine their sentences to the limits established by the Legislature” and therefore acts as a
“restraint on the prosecutor and the Courts.” Id. at 17-18 (quotation marks and citation omitted).
A double jeopardy violation does not occur when the Legislature “specifically authorizes
cumulative punishments under” two separate statutes. Id. (citations and internal quotation marks
omitted). However, when a statute’s plain language clearly expresses the Legislature’s intent to
prohibit multiple punishments, a trial court violates the multiple punishments strand by
cumulatively punishing “a defendant for both offenses in a single trial.” Id. Accordingly, the
Legislature’s intent is a decisive factor in determining whether multiple punishments for the
same offense violate double jeopardy. Barber, 255 Mich App at 292.

        The proper test to determine whether multiple punishments are barred by Const. 1963, art
1, § 15 is the test set forth in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L
Ed 306 (1932). People v Smith, 478 Mich 292, 315; 733 NW2d 351 (2007); see also People v
Ream, 481 Mich 223, 238; 750 NW2d 536 (2008) (“[T]he Blockburger test is a tool to be used to
ascertain legislative intent.”) The Blockburger test “ ‘focuses on statutory elements of the
offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the crimes.’ ” People v
Nutt, 469 Mich 565, 576; 677 NW2d 1 (2004), quoting Iannelli v United States, 420 US 772, 785
n 17; 95 S Ct 1284; 43 L Ed 2d 616 (1975). In addition, to reiterate, “[b]ecause the statutory
elements, not the particular facts of the case, are indicative of legislative intent, the focus must be
on these statutory elements.”5 Ream, 481 Mich at 238 (also referring to the Blockburger test as
an “abstract legal elements” test).

       In the instant case, the trial court convicted defendant of second-degree arson, MCL
750.73, and preparation to burn a dwelling, MCL 750.79(1)(d)(vi). A person is guilty of second-
degree arson if he or she: 1) willfully or maliciously 2) burns, damages, or destroys by fire or
explosive; 3) a dwelling or its contents. MCL 750.73(1). A person is guilty of preparation to
burn a dwelling if he or she: 1) uses, arranges, places, devises, or distributes, 2) an inflammable,
combustible, or explosive material, liquid, or substance or any device, 3) in or near a dwelling, 4)


5
 The Ream Court also refers to the Blockburger test as an “abstract legal elements test.” Reams,
481 Mich at 239.


                                                 -6-
with the intent to commit arson in any degree. MCL 750.79(1)(d)(vi). Each crime “requires
proof of a fact that the other does not.” Nutt, 469 Mich at 576, quoting Iannelli, 420 US at 785 n
17. Second-degree arson requires the prosecution to prove that the defendant actually burned,
damaged, or destroyed a dwelling by fire or explosive, whereas preparation to burn a building
has no such element. Preparation to burn a dwelling only requires that the defendant used,
arranged, placed, devised, or distributed something that could have caused arson near a dwelling
with the intent to cause arson. MCL 750.79(1)(d)(vi). Nothing in the plain language of MCL
750.79(1)(d)(vi) requires the defendant to burn, damage, or destroy the dwelling, and nothing in
the plain language of MCL 750.74(1) requires the defendant to undertake any specific
preparations for burning the dwelling. Because each statute requires proof of an element that the
other does not, the Blockburger test is satisfied, thus revealing the Legislature’s intent that
multiple punishments for the same criminal transaction do not violate the prohibition against
double jeopardy. In short, defendant’s convictions of second-degree arson and preparation to
burn a dwelling do not violate double jeopardy.

                                        IV. SENTENCING

       Defendant argues that the trial court erred when assessing points for offense variables
(OVs) 1, 2, 4, 9, and 12, and that he is entitled to resentencing based on a resulting change in the
guidelines. We agree that the trial court erred when assessing 20 points for OV 1 and 10 points
for OV 9, which changes the guidelines and entitles defendant to resentencing.

        This Court reviews a sentencing court’s factual findings regarding scoring variables for
clear error; the court’s factual findings must be supported by a preponderance of the evidence.
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.
(quotation marks and citation omitted). 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). Further, the “trial court may consider all evidence in the record, including
but not limited to” the presentencing investigation report (PSIR) as well as any “admissions
made by a defendant during a plea proceeding.” People v Jackson, 320 Mich App 514, 519; 907
NW2d 865 (2017).

                        A. MCL 777.31 (OV 1) AND MCL 777.32 (OV 2)

       OV 1 considers the aggravated use of a weapon. MCL 777.31(1). The trial court
assessed 20 points for OV 1, which is appropriate if, “[t]he victim was subjected or exposed to a
harmful biological substance, harmful biological device, harmful chemical substance, harmful
chemical device, harmful radioactive material, harmful radioactive device, incendiary device, or
explosive device.” MCL 777.31(1)(b). When “[n]o aggravated use of a weapon” has occurred, a
zero-point assessment is appropriate. MCL 777.31(1)(f). OV 2 concerns the lethal potential of a
weapon possessed or used. MCL 777.32(1). Under 777.32(1)(b), the trial court may assess 15
points for OV 2 when “[t]he offender possessed or used an incendiary device, an explosive




                                                 -7-
device, or a fully automatic weapon.”6 MCL 777.32(1)(b). OV 1 and OV 2 both define an
incendiary device as including “gasoline or any other flammable substance, a blowtorch, fire
bomb, Molotov cocktail, or other similar device.” MCL 777.31(3)(b); MCL 777.32(3)(d).

        A candle constitutes an incendiary device because it falls within the category of “other
similar device.” MCL 777.31(3)(b); MCL 777.32(3)(d). Defendant admitted that he started a
fire—accidental or not—by lighting a candle and placing it near Sindone’s air mattress in her
bedroom. Although the prosecution did not establish at trial what defendant used to light the
candle that started the fire, a candle falls within the category of “other similar device” because it
is similar to a Molotov cocktail and fire bomb—both of which require an individual to set them
on fire before being used to start a fire elsewhere. Even if a candle is not an incendiary device,
there is sufficient evidence that defendant lit the candle with an incendiary device such as
matches or a lighter.

        Unlike OV 1, OV 2 does not require the trial court to find that a victim was involved.
MCL 777.32(1)(b). Therefore, the trial court did not clearly err in assessing 15 points for OV 2
because there is a preponderance of the evidence that defendant possessed and used an
incendiary device on December 24, 2016. However, the trial court clearly erred in assessing 20
points for OV 1 because a preponderance of the evidence does not support the trial court’s
finding that victims were exposed or subject to an incendiary device. See MCL 777.31(1)(b).

         OV 1 requires that a victim be exposed to an incendiary device. MCL 777.31(1)(b).
MCL 777.31(2)(a) defines a victim as a “person who was placed in danger of injury or loss of
life.” Although a first responder can be a victim, People v Fawaz, 299 Mich App 55, 62; 829
NW2d 259 (2012), the first responders in this case were not placed in danger of physical injury
or loss of life. The fire was extinguished by the time the first responders entered Sindone’s
trailer. In fact, Sergeant Grunwald testified that the trailer was already secured when he arrived
at the scene. Contrary to the prosecution’s assertions, there was no evidence that the fire caused
damage that compromised the structural integrity of the trailer. There was also no evidence that
any neighbors were actually placed in danger. Accordingly, there was no evidence that anyone
was placed in danger of injury or loss of life to warrant 20 points for OV 1.




6
  The trial court may also assess 15 points if “[t]he offender possessed or used a harmful
biological substance, harmful biological device, harmful chemical substance, harmful chemical
device, harmful radioactive material, or harmful radioactive device.” MCL 777.32(1)(a).


                                                -8-
                                     B. MCL 777.34 (OV 4)7

        OV 4 contemplates the psychological injury to a victim. MCL 777.34(1). The trial court
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). The trial court may assign 10
points for OV 4 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). A trial court may
not assign points “solely on the basis . . . that a ‘serious psychological 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).

        Because OV 4 concerns the “psychological injury to a victim,” a victim is required in all
cases in which OV 4 is scored. However, MCL 777.34 does not define “victim.” This Court has
not yet addressed whether an individual who suffered property loss as a result of the defendant’s
criminal offense but who was not physically present during the offense constitutes a victim
within the meaning of MCL 777.34.8 In People v Laidler, 491 Mich 339, 347; 817 NW2d 517
(2012), our Supreme Court defined a “victim” for the purposes of scoring OV 3, because MCL
777.33 does not define a “victim.”9 Turning to common dictionary definitions, our Supreme
Court determined that “ ‘a victim’ is any person who is harmed by the defendant’s criminal
actions” for the purposes of scoring OV 3. Id. at 348-349.10

        The trial court determined that Sindone and the children were victims for purposes of
scoring OV 4. When considering the definition of “victim” as adopted in Laidler, there is a
preponderance of the evidence that Sindone suffered serious psychological injury requiring
professional treatment. At trial, Laurie Stasa, defendant’s mother, testified that defendant came
to her house before 8:00 a.m. on December 24, 2016, the date of the offense. He was hurried and
agitated, and he insisted that the kids leave with him immediately even though they were not
wearing shoes. Stasa insisted that they dress due to the cold. Defendant told Stasa that he had


7
 MCL 777.34 has been amended, effective March 28, 2019. See 2018 PA 652. Under the new
version of the statute, the trial court may assess five points for OV 4 if defendant was convicted
under section 50b of the Michigan penal code and “serious psychological injury requiring
professional treatment occurred to the owner of a companion animal.” MCL 777.34(b) as
amended by 2018 PA 652.
8
 We do note, however, that MCL 777.39 (OV 9) includes among its description of victims those
who were placed in danger of property loss.
9
    OV 3 contemplates physical injury to a victim. MCL 777.33(1).
10
   Laidler limited its definition of a victim to MCL 777.31, acknowledging that the specific
individual in that case may constitute a victim for purposes of scoring OV 3, but may not
constitute a victim for the purposes of any other statute. Laidler, 491 Mich at 347 n 3.


                                               -9-
“lit a candle to burn the place down so she won’t no [sic] where to live.” She asked him to
repeat what he had just said, and he did. He told her that he had done so at 4:00 a.m. It was
clear to Stasa that defendant was talking about Sindone’s trailer. At sentencing, Sindone stated
that she had been thinking about the event for months, that she and the children remained “very
scared,” that her daughter was having “nightmares” and that it “is very hard to calm her down.”
She expressed ongoing fear of defendant by herself and defendant’s children.11 This Court has
previously held that a victim’s statements of fear and anger support a score of 10 points for OV
4. See People v Williams, 298 Mich App 121, 124; 825 NW2d 671 (2012) (concluding that the
victim’s statements that he felt angry, hurt, and fearful were sufficient to support an assessment
of 10 points for OV 4). Therefore, the trial court did not clearly err in finding that Sindone
suffered a psychological injury to warrant an assessment of 10 points for OV 4.

                                                 C. MCL 777.39 (OV 9)

       OV 9 considers the number of victims. MCL 777.39. In pertinent part, MCL 777.39(1)
provides:

       (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:

                                                             * * *

       (b) there were ten or more victims who were placed in danger of physical
       injury or death, or twenty or more victims who were placed in danger of
       property loss ...................................................................................................... 25

       (c) there were two to nine victims who were placed in danger of physical
       injury or death, or four to nineteen victims who were placed in danger of
       property loss ...................................................................................................... 10

       (d) there were fewer than two victims who were placed in danger of physical
       injury or death, or fewer than four victims who were placed in danger of


11
   In a letter written to the Court for purposes of sentencing, Stasa wrote that defendant’s son
asked if they could still keep the knives hidden so that defendant’s older son, who was 14 years
old, could protect them from defendant if he ever came home. She noted that defendant’s
daughter expressed similar fear of defendant. It is not clear from the record whether the children
spent time at the trailer, so we decline to consider whether the children were victims, but we can
review the entire record to examine the psychological impact of the incident on Sindone.
        While defendant points out that the victim’s impact statement in the presentence
investigation report (PSIR) indicates that Sindone said counseling was not necessary, she also
said she would be at the sentencing and may want to address the court; in light of the statements
Sindone and Stasa made at the sentencing hearing, as described above, a preponderance of the
evidence supports the trial court’s finding.


                                                               -10-
       property loss ........................................................................................................ 0

Under MCL 777.39(2)(a), a “person who was placed in danger of physical injury or loss of life
or property” constitutes a victim for the purposes of scoring OV 9. A person may be considered
a victim “even if he or she did not suffer actual harm; a close proximity to a physically
threatening situation may suffice.” People v Gratsch, 299 Mich App 604, 624; 831 NW2d 462
(2013), vacated in part on other grounds 495 Mich 876 (2013). However, a victim must be a
direct victim of the crime, rather than a member of the community that was indirectly affected by
the commission of the crime. People v Carrigan, 297 Mich App 513, 515-516; 824 NW2d 283
(2012).

       Sindone constitutes a victim for the purposes of scoring OV 9 because she suffered a loss
of property when defendant lit her bedroom on fire. MCL 777.39(2)(a). The prosecution
presented ample evidence that there was significant damage to Sindone’s trailer, including
smoke damage, burned walls and ceilings, a melted air mattress, and damage to other personal
property.

         Beyond Sindone, a preponderance of the evidence does not support the trial court’s
finding that there were “2 to 9 victims placed in danger of physical injury or death, or 4 to 19
victims who were placed in danger of property loss.” See MCL 777.39(1)(c). As discussed, a
first responder can be a victim for the purposes of scoring OV 9. Fawaz, 299 Mich App 55, 62;
829 NW2d 259 (2012). In Fawaz, two firefighters responded to a fire at the defendant’s home
and suffered actual physical injuries as a result of entering the house. Id. at 58, 63. The
defendant’s elderly neighbor, who lived only four feet away from the defendant’s house, was
escorted from her home to ensure her personal safety. Id. This Court held that all three
individuals were “ ‘placed in danger of physical injury or loss of life’ because of the fire that
[the] defendant started” and therefore, were victims for the purposes of scoring OV 9. Id., citing
MCL 777.39(1)(c).

        The trial court clearly erred in assessing 10 points for OV 9 because the first responders
were not placed in danger of physical injury or loss of life. By the time anyone stepped inside
Sindone’s trailer, the fire had been extinguished. The prosecution did not present any evidence
that the fire was ongoing or that anyone who entered the house was injured or at risk of injury.
Nor did the prosecution present any evidence that the structural integrity of the trailer was
compromised such that it placed the first responders in danger. Moreover, a neighbor’s concern
for their safety does not mean that he or she is a victim. See Fawaz, 299 Mich App at 58, 63. A
neighbor must be within a close proximity to a physically threatening situation. Gratsch, 299
Mich App at 624. There was no evidence that any of Sindone’s neighbors were actually placed
in danger of physical injury or loss of life. Therefore, the trial court clearly erred in assessing 10
points for OV 9. The trial court should have assessed zero points because Sindone was the only
victim of defendant’s conduct.

        Defendant contends that the trial court clearly erred in assessing five points for OV 12.
OV 12 considers contemporaneous felonious acts. MCL 777.42(1). However, the trial court
actually assessed zero points for OV 12, and therefore, it is unnecessary to address this issue.



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                                     D. RESENTENCING

       “A defendant is entitled to be sentenced according to accurately scored guidelines and on
the basis of accurate information.” People v McGraw, 484 Mich 120, 131; 771 NW2d 655
(2009). When a sentencing court relies on an incorrectly scored guidelines range, the sentence
imposed is invalid. Id. The trial court improperly assessed 20 points for OV 1 and 10 points for
OV 9 when no points were warranted. Lowering the total OV points from 65 to 35, the corrected
guidelines range would be 72 to 180 months. See MCL 777.63. Consequently, this matter must
be remanded for resentencing.

       Reversed and remanded. We do not retain jurisdiction.



                                                           /s/ Jane M. Beckering
                                                           /s/ Michael J. Kelly




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