                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 1, 2018
               Plaintiff-Appellee,

v                                                                   No. 336223
                                                                    Kent Circuit Court
JUSTIN CALEB ROBY,                                                  LC No. 16-000298-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

        Defendant, Justin Caleb Roby, appeals as of right his sentence. A jury convicted
defendant of second-degree criminal sexual conduct (CSC-II) (personal injury), MCL
750.520c(1)(f); and three counts of fourth-degree criminal sexual conduct (CSC-IV) (force or
coercion), MCL 750.520e(1)(b). The trial court sentenced defendant to 5 to 15 years’
imprisonment for CSC-II, and one to two years’ imprisonment for three counts of CSC-IV. We
affirm.

        This case arises from a sexual assault that occurred on December 15, 2015, in Kentwood,
Michigan. The 15-year-old victim and her friend skipped an hour of school to “hang out.” The
two decided to walk to Brentwood Trailer Park. While at the trailer park, the pair saw defendant,
who approached the girls and continued to walk with them. Subsequently, defendant began to
inappropriately touch the victim’s breasts and buttocks over her clothing and continued to do so
until she told him to stop. The victim then told her friend that she was cold, and defendant
offered to give the victim his jacket if she did something for him first. Although the victim told
defendant no, defendant grabbed her hand and pulled her behind a trailer. Defendant proceeded
to bend the victim over some logs and “cupped her vagina” over her clothes. While gripping
both of the victim’s sides, defendant pulled down her yoga-style pants to her thighs. He then
told the victim that he wanted to have sex with her, but the victim told him no. At this point, the
friend pulled the victim away from defendant and hugged her to prevent defendant from
grabbing her again. Defendant also forcibly kissed the victim, pushed her up against a shed, and
touched her vagina again. Next, defendant pulled the victim’s hair to the left and asked her if she
had a condom; she said no. The victim tried to push defendant away, but he still held on tight to
her sides. Suddenly, a car pulled into the driveway, which caused defendant to cease his assault.




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       Before returning to school, the victim and her friend saw defendant one more time
because he had the friend’s phone. The girls went to retrieve the phone, and defendant asked for
another kiss. The girls replied no. The victim testified that defendant kept wanting to say
goodbye, so she hugged him because she “just wanted to be done and over with” the encounter.
The girls then left the trailer park to return to school.

       Upon the victim’s return to school teachers noticed that she was “not acting right.” The
following day, the victim spoke with the school’s guidance counselor and told her what
happened. The police were then called, and pictures were taken of the victim’s bruising,
swelling, and redness that arose from the assault.

       At sentencing, defendant objected to the scoring of offense variable (OV) 8, which
involves asportation of the victim. Defendant believed that OV 8 should be scored at zero
because the victim and her friend agreed to meet up with him. However, the trial court ruled that
there was sufficient evidence to support an OV 8 score of 15 points because “defendant forcibly
moved her from one area of the trailer park to another.” The trial court further stated that “taking
her from a place of greater visibility to a bit more seclusion” satisfied the asportation element.
Defendant was sentenced within his sentencing guidelines of 36 to 71 months to a minimum of 5
years and a maximum of 15 years in prison on his CSC-II conviction.

        Questions involving the interpretation and application of the sentencing guidelines are
reviewed de novo. People v Francisco, 474 Mich 82, 85; 711 NW2d 44 (2006). “[F]actual
determinations are reviewed for clear error and must be supported by a preponderance of the
evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Clear error exists if
the reviewing court is left with a definite and firm conviction that a mistake has been made.”
People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008) (citation omitted). “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.” Hardy, 494 Mich at 438.

        We conclude that the trial court did not err in scoring OV 8; therefore, defendant is not
entitled to resentencing. A defendant will receive a score of 15 points under OV 8 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.” MCL 777.38(1)(a). Asportation does
not require movement of the victim beyond that incidental to the commission of the underlying
offense. People v Barrera, 500 Mich 14, 21; 892 NW2d 789 (2017). Asportation also may
occur when a victim is “moved away from the presence or observation of others.” People v
Chelmicki, 305 Mich App 58, 70-71; 850 NW2d 612 (2014). In Chelmicki, this Court held that
“the victim was . . . 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.” Similarly, in Barrera, 500
Mich at 21-22, the Michigan Supreme Court ruled that “defendant’s asportation of the victim
was sufficient to score OV 8 at 15 points because defendant took the victim from the living room
into his bedroom in order to sexually assault her.” The Court further concluded that “the trial
court could reasonably determine by a preponderance of the evidence that the victim was
removed to a location where the sexual assault was less likely to be discovered, which rendered
the location a place of greater danger or a situation of greater danger.” Id. (quotation marks

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omitted).

         In this case, defendant grabbed the victim’s hand, pulled her to the back of a trailer, and
then pushed the victim up against a shed. Both locations were secluded, making it less likely
anyone would come to the victim’s aid. Defendant moved the victim to an area of the trailer
park where it would be less likely anyone would see him committing the crime. The shed and
the back of the trailer, where the sexual assaults occurred, are more isolated from the other areas
of the trailer park, thereby rendering them places of greater danger. The trial court also found
that these locations were remote, stating that the victim was taken “from a place of greater
visibility to a bit more seclusion.” In reviewing the exhibits that depict the shed and back of the
trailer, it appears that these locations are more secluded from the rest of the trailer park.
Defendant moved the victim away from the road and the front entrances of the trailers to an area
hidden from the road. This satisfied the requirement of OV 8 that the defendant move the victim
to a place of greater danger. See Barrera, 500 Mich at 21-22.

       Defendant cites People v Thompson, 488 Mich 888 (2010), overruled by Barrera, and
People v Spanke, 254 Mich App 642; 658 NW2d 504 (2003), overruled in part by Barrera, for
his argument that any movement must be more than incidental to the commission of the crime
when scoring OV 8. However, the Michigan Supreme Court has overruled the cases applying an
incidental-movement requirement, including Thompson and Spanke. Barrera, 500 Mich at 20-
21. In Barrera, the Michigan Supreme Court stated,

              To the extent that Thompson and Spanke have been interpreted to have
       created an incidental-movement exception to OV 8, we hold that they were
       wrongly decided and we therefore overrule them. We further conclude that
       “asported” as used in OV 8 should be defined according to its plain meaning,
       rather than by reference to our kidnapping jurisprudence. Under the plain
       meaning of the term “asportation,” movement of a victim that is incidental to the
       commission of a crime nonetheless qualifies as asportation. [Id. at 17.]

As in Barrera, defendant in this case moved the victim and then proceeded to sexually assault
her. Defendant’s reliance on Thompson and Spanke is misplaced and his argument is without
merit.

       Lastly, defendant argues that his sentencing is disproportionate. In People v Lockridge,
498 Mich 358, 392; 870 NW2d 502 (2015), the Court held that a sentencing court must take into
account the guidelines range when imposing a sentence and must justify the sentence imposed.
While the sentencing guidelines are no longer mandatory, they are still considered advisory when
determining a defendant’s sentence. “If a minimum sentence is within the appropriate guidelines
sentence range, the court of appeals shall affirm that sentence and shall not remand for
resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied
upon in determining the defendant’s sentence.” MCL 769.34(10). Indeed, “a sentence within
the guidelines range is presumptively proportionate . . . .” People v Powell, 278 Mich App 318,
323; 750 NW2d 607 (2008). Therefore, defendant’s argument that his sentence is




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disproportionate is improper because his sentence is within the sentencing guidelines. It is
unnecessary to conduct a reasonableness analysis.

       Affirmed.



                                                        /s/ Jane E. Markey
                                                        /s/ Douglas B. Shapiro
                                                        /s/ Michael F. Gadola




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