                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 12, 2016
               Plaintiff-Appellee,

v                                                                   No. 326219
                                                                    Oakland Circuit Court
MICHAEL JOSEPH OUELLETTE,                                           LC No. 2013-248726-FH

               Defendant-Appellant.


Before: JANSEN, P.J., and FORT HOOD and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of two counts of aggravated
stalking, MCL 750.411i, and two counts of unauthorized installation of a tracking device on a
motor vehicle, MCL 750.539l. Defendant was sentenced, as a third habitual offender, MCL
769.11, to 43 months’ to 10 years’ imprisonment for his aggravated stalking convictions, and
365 days in jail for his unauthorized installation of a tracking device on a motor vehicle
convictions. We affirm defendant’s convictions, but remand to the trial court for further
proceedings consistent with this opinion.

       This case arises from defendant’s persistent and relentless communications directed at his
ex-wife, Florence Acosta, and her boyfriend, Jay Reynolds, from approximately October 2013 to
December 2013. Although defendant’s convictions were for his actions during that time span,
defendant’s communications started in July 2013 and ended in the summer months of 2014.

       First, defendant argues that offense variable (OV) 10 and OV 13 were improperly scored
because the relevant conduct used to score both OVs was essentially part of defendant’s
convictions for aggravated stalking. We disagree.

        For preserved sentencing errors, “the trial court’s findings of fact are reviewed for clear
error and must be supported by a preponderance of the evidence.” People v McChester, 310
Mich App 354, 358; 873 NW2d 646 (2015). “Clear error is present when the reviewing court is
left with a definite and firm conviction that an error occurred.” Id. (citation and quotation marks
omitted). However, “[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, is a question of statutory
interpretation, which an appellate court reviews de novo.” People v Hardy, 494 Mich 430, 438;
835 NW2d 340 (2013). “When calculating the sentencing guidelines, a court may consider all

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record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a
preliminary examination.” McChester, 310 Mich App at 358.

        As a preliminary matter, OVs must be scored only in reference to conduct surrounding
the sentencing offense. People v McGraw, 484 Mich 120, 127-129; 771 NW2d 655 (2009). In
other words, “[o]ffense variables are properly scored by reference only to the sentencing offense
except when the language of a particular offense variable statute specifically provides
otherwise.” Id. at 135.

        OV 10 involves exploitation of a vulnerable victim. MCL 777.40(1). MCL 777.40(1)(a)
mandates that 15 points be assessed if “[p]redatory conduct was involved.” “ ‘Predatory
conduct’ means preoffense conduct directed at a victim, or a law enforcement officer posing as a
potential victim, for the primary purpose of victimization.” MCL 777.40(3)(a). This Court has
held that “predatory conduct under the statute is behavior that is predatory in nature, precedes the
offense, [and is] directed at a person for the primary purpose of causing that person to suffer
from an injurious action . . . .” People v Kosik, 303 Mich App 146, 159-160; 841 NW2d 906
(2013) (citation and quotation marks omitted; alteration in original). “However, predatory
conduct does not encompass ‘any preoffense conduct, but rather only those forms of preoffense
conduct that are commonly understood as being predatory in nature . . . as opposed to purely
opportunistic criminal conduct or preoffense conduct involving nothing more than run-of-the-
mill planning to effect a crime or subsequent escape without detection.’ ” Id. at 160 (citation
omitted).

       OV 13 governs a continuing pattern of criminal behavior and requires the assessment of
25 points if “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more
crimes against a person.” MCL 777.43(1)(c). “For determining the appropriate points under this
variable, all crimes within a 5-year period, including the sentencing offense, shall be counted
regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a).

        Both OVs were properly scored. OV 10 was properly scored because defendant initiated
preoffense predatory conduct toward both victims, Acosta and Reynolds, with his e-mails and
text messages, and the conduct was not mere preparation or “run-of-the-mill” planning.
Defendant sent an e-mail to Acosta on July 19, 2013, after finding out that she was romantically
involved with another man, directly accusing Acosta of being a fornicator and an adulterer.
Moreover, defendant texted Acosta on October 21, 2013, that he would “beat the living dog F”
out of Acosta’s boyfriend if he tried to “charm” defendant’s son. A preponderance of the
evidence supports the conclusion that these messages were predatory in nature, insofar as they
inflicted emotional injury upon both Acosta and Reynolds.1 Also relevant is the fact that


1
 Granted, Reynolds was not the direct target of defendant’s preoffense messages, as defendant
was unaware at the time that Reynolds was Acosta’s new boyfriend and only found out on
October 31, 2013. However, when he threatened to “beat the living dog F” out of Acosta’s new
boyfriend, he nonetheless threatened a “victim,” which brings his conduct under the ambit of OV
10. See People v Huston, 489 Mich 451, 463; 802 NW2d 261 (2011).


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defendant sent Acosta a string of other messages containing veiled threats on October 25, 2013,
October 27, 2013, October 28, 2013, and October 30, 2013. Thus, defendant’s actions were
sufficient to qualify as predatory conduct intended to inflict emotional injury upon both victims,
considering the nature and tenor of the threats. Moreover, defendant’s contention that the
conduct was not preoffense fails, as defendant’s two aggravated stalking convictions
encapsulated defendant’s conduct from October 31, 2013, to December 6, 2013, as noted in the
felony information.

         Additionally, OV 13 was properly scored. The prosecution’s contention below with
respect to OV 13 was that defendant committed a brand new offense of aggravated stalking when
he “spoof called” both Acosta and Reynolds in the summer months of 2014. This theory is
correct. Per MCL 750.411i, “[a]ggravated stalking consists of the crime of ‘stalking,’ . . . and
the presence of an aggravating circumstance . . . .” People v Threatt, 254 Mich App 504, 505;
657 NW2d 819 (2002). “Stalking,” in turn, is defined as “a willful course of conduct involving
repeated or continuing harassment of another individual that would cause a reasonable person to
feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes
the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL
750.411i(1)(e). The relevant aggravating circumstance here, in turn, is “[a]t least 1 of the actions
constituting the offense is in violation of a restraining order and the individual has received
actual notice of that restraining order . . . .” MCL 750.411i(2)(a). Defendant’s spoof calls to
Acosta and Reynolds satisfy the elements of aggravated stalking. A preponderance of the
evidence supported the finding that defendant made numerous anonymous calls to both Acosta
and Reynolds. Although defendant did not speak during these calls, the clear implication was
that defendant was the caller. Indeed, Acosta testified that she was aware of how spoof calls
worked because defendant used spoof cards, which are used to make spoof calls, while she was
married to him. These calls would objectively cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested, considering the context in which the
calls were made—an almost year-long barrage of threats and apocalyptic messages aimed at
Acosta and Reynolds. Moreover, evidence was presented that Acosta and Reynolds were
terrorized, frightened, intimidated, threatened, harassed, or molested. Finally, defendant made
these calls in direct violation of the PPOs issued to Acosta and Reynolds. Thus, defendant’s
spoof calls satisfy the elements of aggravated stalking for the purposes of OV 13. Moreover,
defendant’s contention that his spoof calls were part of a continuous chain of activity linked to
the two aggravated stalking convictions, and not a separate offense, fails. As previously
mentioned, the aggravated stalking convictions encapsulated defendant’s activity from October
31, 2013, to December 6, 2013, and the calls were placed after this time. Moreover, the
prosecution made clear at trial that the purpose of introducing evidence of defendant’s spoof
calls was as “other-acts evidence” pursuant to MCL 768.27b with regard to Acosta, and as res
gestae evidence with regard to both Acosta and Reynolds. Accordingly, OV 13 was properly
scored.

       Next, defendant argues that the trial court should have granted his motion for a mistrial
because of the prosecution’s improper publication of inadmissible evidence. We disagree.

       “[T]he proper standard of review for a trial court’s decision to grant or deny a mistrial is
abuse of discretion.” People v Ortiz-Kehoe, 237 Mich App 508, 513; 603 NW2d 802 (1999).
“An abuse of discretion occurs when the court chooses an outcome that falls outside the range of
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reasonable and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272
(2008). “A mistrial should be granted only for an irregularity that is prejudicial to the rights of
the defendant and impairs his ability to get a fair trial.” Ortiz-Kehoe, 237 Mich App at 513-514.

       During trial, the prosecution placed a text message from Acosta to defendant on a slide
projector for the jury to read. The text message read, in relevant part:

              In one of your emails to me you admitted to a gambling addiction, buying
       sex from women, stealing credit card theft, etcetera. You’ve been in the jail and a
       mental hospital.

However, when the prosecutor asked Acosta to read the text message to the jury, she read from a
redacted version in her hands, which provided:

               In one of your emails to me you admitted to -- you admitted to some
       things that I can’t say but I don’t preach to you about not being a good example
       for our son.

Before trial, the prosecution and defense agreed to redact the portion of the text message
delineating defendant’s vices. When defense counsel argued its motion for a mistrial based on
the publication of the text message, the prosecutor conceded to the trial court that she “made the
mistake of putting that on the projector . . . .” However, the prosecutor also noted that the text
message was on the projector for “less than five seconds.” In response to defendant’s mistrial
request, the trial court held the following:

               Okay. There was -- there were a number of text messages that were on the
       screen at that point, it wasn’t just one text message of two or three sentences.
       And it was up for less than five seconds. I’d be surprised if any of the jurors were
       able to focus in and read those few words of the whole page that quickly.

              Having said that, even if they had the reference -- there was a reference to
       being in the mental hospital, that part has already been referenced in other emails.
       So I don’t think that is -- that issue’s relevant.

               The rest of it, the gambling addiction, the paying for sex and the use of the
       credit cards although potentially prejudicial to the defendant, I don’t think it is so
       prejudicial in this case as to warrant a mistrial.

              If you want a limiting instruction I’m happy to give one. You can come
       up with one at the end of the trial. So I’m denying that request.

Defense counsel did not request a curative instruction, saying, “I don’t believe that the limiting
instruction would cure the taint in this case and, and just would object to it.”

       The brief publication of the unredacted text message does not warrant a mistrial, as there
was no irregularity that prejudiced defendant and impaired his ability to get a fair trial. See
Ortiz-Kehoe, 237 Mich App at 513-514. First, the record shows that the prosecutor had
displayed the text message for, at most, a very brief period. It is highly questionable whether the

                                                -4-
jurors even read the entirety of the text message, especially considering that a large number of
text messages and e-mails were published during the four-day trial. Second, abundant
independent evidence was presented essentially reiterating the contents of the text message.
With respect to defendant’s alleged gambling addiction, stealing, and credit card theft problems,
evidence was presented that defendant admitted to taking advantage of Acosta financially. E-
mails from Acosta to defendant were presented, in which Acosta accused defendant of abusing
her financially. Defendant also explicitly admitted in an e-mail, which was also read into
evidence, “I do know I got heavily addicted to gambling and that contributed to much of my
actions such as stealing and scamming to feed my habit.” Moreover, with respect to defendant’s
incarceration and history of mental commitment, evidence was presented that defendant was
detained by the police and handcuffed on November 6, 2013, for attempting to perform an
exorcism on his father, and thus, a logical extension of this fact is that defendant was
incarcerated following the event. Also, an e-mail in which defendant himself admitted that he
was “committed to the looney hospital” was also introduced. Additionally, with respect to
defendant “buying sex from women,” defendant admitted in an e-mail presented at trial that he
was involved in “fornication with many women.” Acosta’s allegations in the inadmissible text
message may have concerned other incidents, and not the incidents covered in the evidence
properly admitted at trial. However, the evidence that was presented already cast defendant in a
negative light with regard to similar issues, and any harm that the inadmissible text message
could have caused was likely inconsequential. Accordingly, the trial court did not choose an
outcome falling outside the range of reasonable and principled outcomes, and therefore, did not
abuse its discretion in denying defendant’s motion for mistrial. See Unger, 278 Mich App at
217.2

       Finally, defendant argues that OV 4, OV 10, and OV 13 were scored based on facts not
found by the trier of fact beyond a reasonable doubt or admitted by him, and therefore, his
sentence is unconstitutional under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).
We agree.

       To preserve this issue, a defendant must object to the error during sentencing on the same
ground. Lockridge, 498 Mich at 392. Here, defendant did not object to the scoring of his OVs
on the basis of improper judicial fact-finding, and therefore, this issue is unpreserved for
appellate review. See id.

       Unpreserved claims of error are reviewed for plain error. Lockridge, 498 Mich at 392-
393. “To establish entitlement to relief under plain-error review, the defendant must establish
that an error occurred, that the error was plain, i.e., clear or obvious, and that the plain error


2
  To the extent that defendant also argues that the prosecutor committed misconduct with regard
to the admission of the text message, defendant’s argument fails since the prosecutor’s conduct
did not deprive him of a fair and impartial trial, as discussed above. See People v Lane, 308
Mich App 38, 62; 862 NW2d 446 (2014) (explaining that a prosecutor commits misconduct if he
or she abandons the responsibility to seek justice and denies the defendant a fair and impartial
trial).


                                               -5-
affected substantial rights.” Id. Substantial rights are affected when there is prejudice—“the
error affected the outcome of the lower court proceedings.” Id. at 393. Furthermore, even if all
three requirements are satisfied, “an appellate court must exercise its discretion in deciding
whether to reverse.” Id. “Reversal is warranted only when the error resulted in the conviction of
an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of
judicial proceedings independently of the defendant’s innocence.” Id.

       The Michigan Supreme Court recently held in Lockridge, 498 Mich at 373-374, 383, that
because Michigan’s formerly mandatory sentencing guidelines required increasing a defendant’s
mandatory minimum sentence based on facts not found by the jury beyond a reasonable doubt or
admitted by the defendant, the mandatory aspect of the sentencing guidelines was
unconstitutional. Accordingly, the sentencing guidelines are now advisory. Id. at 391-392.

        Under the new framework, “cases in which (1) facts admitted by the defendant and (2)
facts found by the jury were sufficient to assess the minimum number of OV points necessary for
the defendant’s score to fall in the cell of the sentencing grid under which he or she was
sentenced” are not tainted by plain error, as there is no prejudice resulting to the defendant.
Lockridge, 498 Mich at 394-395. Conversely, “cases in which facts admitted by a defendant or
found by the jury verdict were insufficient to assess the minimum number of OV points
necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she
was sentenced” involve an unconstitutional constraint that impairs a defendant’s Sixth
Amendment rights. Id. at 395. Thus, “all defendants (1) who can demonstrate that their
guidelines minimum sentence range was actually constrained by the violation of the Sixth
Amendment and (2) whose sentences were not subject to an upward departure can establish a
threshold showing of the potential for plain error sufficient to warrant a remand to the trial court
for further inquiry.” Id. On remand, the trial court must consider whether it “would have
imposed a materially different sentence but for the constitutional error.” Id. at 397.

        OV 4, OV 10, and OV 13 were assessed based on facts not found by the trier of fact
beyond a reasonable doubt or admitted by defendant. Defendant was convicted of two counts of
aggravated stalking, MCL 750.411i. As mentioned above, per MCL 750.411i, “[a]ggravated
stalking consists of the crime of ‘stalking,’ . . . and the presence of an aggravating circumstance .
. . .” Threatt, 254 Mich App at 505. “Stalking,” in turn, is defined as “a willful course of
conduct involving repeated or continuing harassment of another individual that would cause a
reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested
and that actually causes the victim to feel terrorized, frightened, intimidated, threatened,
harassed, or molested.” MCL 750.411i(1)(e). The relevant aggravating circumstance here, in
turn, is “[a]t least 1 of the actions constituting the offense is in violation of a restraining order
and the individual has received actual notice of that restraining order . . . .” MCL 750.411i(2)(a).
OV 10, which mandates assessment of 15 points if predatory conduct was involved, was scored
based on judicial fact-finding, as the jury did not necessarily find beyond a reasonable doubt, and
defendant did not admit himself, that preoffense victimization was involved. See MCL
777.40(1)(a). Moreover, OV 13, which mandates assessment of 25 points if the sentencing
offense was part of a pattern of felonious criminal activity involving three or more crimes against
a person, was scored based on judicial fact-finding as well, as the jury did not necessarily find
beyond a reasonable doubt, and nor did defendant admit himself, that spoof calls were made
during the summer months of 2014. See MCL 777.43(1)(c). Finally, OV 4, which mandates
                                                -6-
assessment of 10 points if “[s]erious psychological injury requiring professional treatment
occurred to a victim,” was scored based on judicial fact-finding, as the jury did not necessarily
find beyond a reasonable doubt, and nor did defendant admit himself, that either Acosta or
Reynolds required professional psychological treatment. See MCL 777.34(1)(a). OV 4 does
require assessment of points if “serious psychological injury may require professional
treatment.” MCL 777.34(2). However, again, the jury was not required to necessarily find that
psychological injury was needed in its verdict for aggravated stalking, and nor did defendant
admit this fact. Accordingly, OV 4, OV 10, and OV 13 were based on facts not found beyond a
reasonable doubt by the jury or admitted by defendant.

        Defendant was sentenced before July 29, 2015. In addition, the judicial fact-finding
altered the sentencing guidelines range. Defendant was assessed 10 points for OV 4, 15 points
for OV 10, and 25 points for OV 13. His total OV points were 50, putting him at OV-level V.
See MCL 777.66. He was also assessed 25 prior record variable (PRV) points, putting him at
PRV-level D. Id. Accordingly, his sentencing guidelines range was 14 to 43 months for a third
habitual offender. See MCL 777.66; MCL 769.11. Without the assessment of points for OV 4,
OV 10, and OV 13, defendant would have received zero OV points, which would have resulted
in a sentencing guidelines range of 5 to 34 months. Accordingly, the facts admitted by defendant
or found by the jury beyond a reasonable doubt were insufficient to assess the minimum number
of OV points necessary for defendant’s score to fall in the cell of the sentencing grid under
which he was sentenced.

        Therefore, remand is warranted in order for the trial court to determine whether it would
have imposed a materially different sentence but for the constitutional error. Lockridge, 498
Mich at 397. The court must first “ ‘include an opportunity for . . . defendant to avoid
resentencing by promptly notifying the [trial] judge that resentencing will not be sought.’ ” Id. at
398 (citation omitted; alteration in original). “If . . . defendant does not so notify the court, it
should obtain the views of counsel, at least in writing, but need not require the presence of . . .
Defendant, in reaching its decision (with or without a hearing) whether to resentence.” Id.
(citation and quotation marks omitted). The trial court must then place in the record its decision
not to resentence defendant with an explanation, or must vacate the sentence and, with defendant
present, resentence defendant in conformance with Lockridge. Id. In determining whether it
would have imposed a materially different sentence, the court must only consider the
circumstances that existed at the time of the original sentence. Id.

        Finally, we note that the judgment of sentence incorrectly states that defendant was
sentenced as a fourth habitual offender, rather than as a third habitual offender. Therefore, if the
trial court decides not to resentence defendant, the judgment of sentence shall be corrected to
reflect that defendant was sentenced as a third habitual offender. See MCR 6.435(A); MCR
7.216(A)(7).




                                                -7-
        We affirm defendant’s convictions, but remand for further proceedings consistent with
this opinion. We do not retain jurisdiction.


                                                         /s/ Kathleen Jansen
                                                         /s/ Karen M. Fort Hood
                                                         /s/ Mark T. Boonstra




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