                           STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       June 27, 2017
               Plaintiff-Appellee,

v                                                                      No. 331477
                                                                       Wayne Circuit Court
JOSEPH PAUL,                                                           LC No. 15-003300-01-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals by right the sentence imposed after his jury trial conviction of first-
degree criminal sexual conduct, MCL 750.520b. He was sentenced as a second habitual
offender, MCL 769.10, to 8½ to 25 years’ imprisonment, with credit for 303 days. We affirm.

        On March 22, 2015, defendant was attending an event at his church. While there,
defendant pulled a fourteen year old girl into a classroom in the church basement and sexually
assaulted her. The assault ended when the girl’s adult brother walked into the classroom, at
which point defendant jumped up and left the church. The girl was taken to a nurse for a medical
examination and defendant was criminally charged for his actions.

        Defendant contends that the trial court erred in scoring Offense Variables (OVs) 3 and 8
and that he is entitled to resentencing. When reviewing a trial court’s scoring decision, 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, 437-438; 835 NW2d 340
(2013). “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.” Id. (footnotes omitted).

        In a post-conviction motion for resentencing, defendant argued that OV 3 (physical injury
to a victim), MCL 777.33, was improperly scored at 10 points and should have been scored at
zero. At the motion hearing, the prosecutor agreed that Offense Variable 3 was improperly
scored at 10 points but argued that the score should be reduced to 5 points. The trial court agreed
with the prosecutor and lowered the score for OV 3 to 5 points. On appeal, defendant again
argues that OV 3 should have been scored at zero. We disagree.

       MCL 777.33 provides in pertinent part:

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               (1) Offense variable 3 is physical injury to a victim. Score offense
       variable 3 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) A victim was killed                                     100 points

                (b) A victim was killed                                     50 points

              (c) Life threatening or permanent incapacitating injury occurred to a
       victim                                                           25 points

                (d) Bodily injury requiring medical treatment occurred to a victim      10
       points

                (e) Bodily injury not requiring medical treatment occurred to a victim 5
       points

                (f) No physical injury occurred to a victim                     0 points

                                              * * *

              (3) As used in this section, “requiring medical treatment” refers to the
       necessity for treatment and not the victim’s success in obtaining treatment.

       In making his argument, defendant relies on People v Armstrong, 305 Mich App 230; 851
NW2d 856 (2014). In Armstrong, OV 3 was scored at 10 points. Id. at 245. The defendant
argued that this was an improper score because there was no evidence that the complainant
received or required medical treatment. Id. The Court agreed that there was no evidence that the
complainant received any medical treatment, holding:

                Were we to construe OV 3 in a way that would allow courts to assume that
       all bodily injuries require medical treatment, when there is no evidence that
       treatment was necessary, it would render MCL 777.33(1)(e)—which concerns
       injuries that do not require medical treatment—surplusage. We decline to do so.
       [Id. at 246 (emphasis in original).]

Therefore, the Armstrong Court reduced the defendant’s score of 10 points for OV 3 to 5 points
(“Bodily injury not requiring medical treatment occurred to a victim”). Id. at 248.

        We find defendant’s reliance on Armstrong for the contention that his score for OV 3
should be zero is misplaced. In Armstrong, as here, the Court reduced the defendant’s score for
OV 3 from 10 points to 5 points, because there was an injury that did not require medical
treatment. In the present case the registered nurse who performed the forensic examination on
the victim and found a “hicky” (a circular bruise) on the victim’s neck. The bruise was caused
by defendant sucking on the skin, which resulted in broken capillaries. The bruise did not
require medical treatment. The bruise was clearly a “[b]odily injury not requiring medical
treatment,” which is to be scored at 5 points. MCL 777.33(1)(e). The preponderance of the


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evidence supports a score of 5 points for OV 3. Therefore, the trial court did not clearly err in
finding that OV 3 should be reduced from 10 points to 5 points.

       Defendant next contends that OV 8, which addresses victim asportation or captivity, was
erroneously scored at 15 points because the victim was not asported to another place of greater
danger. He argues that taking the victim into the classroom was merely “incidental” to the
commission of the offense because he did not lock or shut the door to the room and the room
remained accessible for the victim’s brother to easily enter the room. Therefore, defendant
argues that OV 8 should be scored at zero points. We disagree.

       Offense variable 8, MCL 777.38, provides, in pertinent part:

               (1) Offense variable 8 is victim asportation or captivity. Score offense
       variable 8 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) 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                                   15 points

               (b) No victim was asported or held captive        0 points

       A victim is asported to a place or situation involving greater danger when moved away
from the presence or observation of others. People v Chelmicki, 305 Mich App 58, 70-71; 850
NW2d 612 (2014). In Chelmicki, the defendant challenged the scoring of OV 8 at 15 points.
The facts showed that the victim was standing on the balcony of her apartment, visible to her
neighbors who lived in the apartment directly below her, when the defendant came outside and
dragged her back inside the apartment. Id. at 71. The Court held:

       The victim was thus asported to a place of greater danger because she was moved
       away from the balcony, where she was in the presence or observation of others, to
       the interior of the apartment, where others were less likely to see defendant
       committing a crime. Accordingly, there was no plain error in the scoring of OV
       8. [Id.]

       Defendant relies upon People v Thompson, 488 Mich 888; 788 NW2d 677 (2010), a
Supreme Court order that cites People v Spanke, 254 Mich App 642; 658 NW2d 504 (2003), in
support of his position. Thompson and Spanke held that the movement of the complainant by the
defendant was incidental to the commission of the crime and did not amount to asportation.
However, both Thompson and Spanke have been overruled by People v Barrera, __ Mich __;
892 NW2d 789 (2017). In Barrera, our Supreme Court held that the term “asported” as used in
OV 8 should be defined according to its plain meaning and that under its plain meaning,
“movement of a victim that is incidental to the commission of a crime nonetheless qualifies as
asportation.” Barrera, slip op at 3.

        In this case, the victim was going up the stairs from the basement of a church to the upper
level to join the congregation for the service when defendant reached out and pulled her by her
wrist into a deserted room, which had once been used as a classroom. Her friend testified that as

                                                -3-
she was going up a different stairway, she saw the victim get pulled into the classroom.
Therefore, if defendant had not pulled the victim into the classroom, his acts could have clearly
been seen by others in the congregation. Defendant contends that the door was neither locked
nor shut. Although defendant did not lock the door, the facts show that he shut it enough to
provide privacy. The victim’s brother testified that he turned the handle on the door and the door
opened easily. The brother testified that the door was not closed all the way, but he did not see
the victim behind the door in the corner until he opened the door. The victim testified that
defendant pulled her into the room and closed the door “[a]ll the way” and then he pulled her
behind the door into a corner where he forced her to the ground. We find that even if the door
was not shut all the way, it was shut enough to provide a place where they could not be seen and
where her voice would probably not be heard. As in Chelmicki and Barrera, the victim here was
asported to a place of greater danger because she was pulled away from the stairs where she
could be seen into an abandoned classroom where she could not be seen and where she would
probably would not be heard. Therefore, there was no error in scoring OV 8 at 15 points.

        Because there was no error in scoring the guidelines and defendant’s minimum sentence
is within the appropriate guidelines sentence range, this Court must affirm defendant’s sentence.
MCL 769.34(10).1

       Affirmed.



                                                             /s/ Deborah A. Servitto
                                                             /s/ David H. Sawyer
                                                             /s/ Michael J. Riordan




1
  Defendant also maintains in his statement of the issues that his trial counsel was ineffective for
failing to object to the scoring of OV 3 and 8, but he has not put forth any argument or
discussion in his brief to support this claim. The failure to brief the merits of an allegation of
error with factual or relevant legal support constitutes an abandonment of the issue. People v
Iannucci, 314 Mich App 542, 547; 887 NW2d 817 (2016). Regardless, because we find no error
requiring resentencing, any error on the part of defendant’s attorney in failing to object was
harmless, and we need not further address the allegation of ineffective assistance of counsel.




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