                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      October 27, 2015
               Plaintiff-Appellee,

v                                                                     No. 322311
                                                                      Wayne Circuit Court
KYLE JERROD HAGGER,                                                   LC No. 13-009777-FC

               Defendant-Appellant.


Before: METER, P.J., and WILDER and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of armed robbery, MCL
750.529, and carjacking, MCL 750.529a. The trial court sentenced defendant, as a fourth
habitual offender, MCL 769.12, to 120 to 180 months’ imprisonment for the armed robbery and
carjacking convictions. We affirm.

        Defendant first argues that the trial court’s verdict was inconsistent because the trial court
found defendant guilty of armed robbery, but not guilty of felony-firearm in relation to the same
incident. Because defendant failed to object to the trial court’s verdict, this Court will review the
unpreserved constitutional issue for plain error affecting defendant's substantial rights. People v
Akins, 259 Mich App 545, 567; 675 NW2d 863 (2003).

        The elements of armed robbery are (1) an assault, and (2) a felonious taking of property
from the victim’s person or presence, while (3) the defendant is armed with a weapon described
in the statute.” People v Henry (After Remand), 305 Mich App 127, 142-143; 854 NW2d 114
(2014) (citation and quotation marks omitted); see also MCL 750.529. While juries may render
inconsistent or illogical verdicts, “a trial judge sitting as the trier of fact may not enter an
inconsistent verdict.” People v Ellis, 468 Mich 25, 26; 658 NW2d 142 (2003), quoting People v
Walker, 461 Mich 908; 603 NW2d 784 (1999). If there is a factual inconsistency between the
trial court’s factual findings and its verdict, reversal is required. People v Smith, 231 Mich App
50, 53; 585 NW2d 755 (1998). Inconsistent verdicts occur when a trial court's factual findings
are inconsistent with the verdict and the two cannot be “rationally reconciled.” Ellis, 468 Mich
at 27.

       The victim testified that he saw defendant with a weapon as defendant approached his
vehicle. The victim believed the weapon to have been a “small, dark automatic pistol.”
Defendant threatened the victim with the weapon and forced the victim out of the vehicle.
                                                 -1-
Defendant struck the victim in the face with the weapon, causing the victim serious injury, as he
robbed him of his possessions before driving away in the vehicle. The trial court opined that it
was not convinced beyond a reasonable doubt that the weapon was a firearm,1 but was convinced
beyond a reasonable doubt that defendant had possessed “something that was fashioned in a way
to make somebody reasonably fear for their safety that it was a gun.” Under MCL 750.529, that
is all that is required for a conviction of armed robbery. There is no requirement that the trial
court must find the weapon to have been the same kind of weapon that the victim believed it to
be, nor is there any requirement that the weapon be a firearm. The victim’s testimony was
sufficient to support the trial court’s finding that each element of armed robbery had been
established beyond a reasonable doubt, and the trial court’s finding that the exact nature of the
weapon was not sufficiently proven does not render its verdicts inconsistent.

       Defendant next argues that the trial court improperly assessed offense variable (OV) 1 at
10 points during sentencing. We disagree.

       Generally, “the circuit court’s factual determinations are reviewed for clear error and
must be supported by a preponderance of the evidence.”2 People v Hardy, 494 Mich 430, 438;
835 NW2d 340 (2013). Whether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute is a question of statutory interpretation, which this Court reviews
de novo. People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002).


1
  We note, however, that the trial court remarked that there was “insufficient evidence to show
that that was a gun capable of shooting a projectile.” While it is abundantly clear from context
that the trial court was predominantly unconvinced that the object in question was, in fact, a gun
at all, in People v Peals, 476 Mich 636, 640-654; 720 NW2d 196 (2006), our Supreme Court
explained that a firearm does not need to be operable for purposes of felony-firearm.
2
  The Michigan Supreme Court recently held that, although Michigan’s sentencing guidelines are
unconstitutional to the extent that they require a trial court to raise the minimum sentence based
on facts not admitted by the defendant or proven beyond a reasonable doubt, “a sentencing court
must determine the applicable guidelines range and take it into account when imposing a
sentence.” People v Lockridge, ___ Mich ___, ___; ___ NW2d ___ (2015); slip op at 2. In
scoring the guidelines, the Lockridge Court did not suggest that the traditional standards of
review or burdens of proof were insufficient. See generally id. Under Lockridge, it was the
mandatory nature of the guidelines that rendered fact-finding by a preponderance, rather than by
a reasonable doubt, unconstitutional. Id. at ___; slip op at 1-3. Because the sentencing
guidelines are now only advisory in nature, the preponderance of the evidence standard remains
appropriate for the assessment of offense variables at sentencing. Indeed, the Lockridge Court
suggested as much when it clarified that “[o]ur holding today does nothing to undercut the
requirement that the highest number of points possible must be assessed for all OVs, whether
using judge-found facts or not.” Id. at ___; slip op at 29 n 28 (emphasis added). In sum, because
the guidelines are no longer mandatory, facts found at sentencing that were not admitted by the
defendant or proven beyond a reasonable doubt may support the assessment of OVs and raise the
“advisory” minimum sentence without rendering the trial court’s ultimate sentence
unconstitutional.


                                                -2-
        OV 1 assesses points for the “aggravated use of a weapon.” MCL 777.31(1). In relevant
part, the statute provides:

       (1) Offense variable 1 is aggravated use of a weapon. Score offense variable 1
       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 firearm was discharged at or toward a human being or a victim was cut or
       stabbed with a knife or other cutting or stabbing weapon . . . 25 points

                                            * * *

       (c) A firearm was pointed at or toward a victim or the victim had a reasonable
       apprehension of an immediate battery when threatened with a knife or other
       cutting or stabbing weapon . . . 15 points

       (d) The victim was touched by any other type of weapon . . . 10 points

       (e) A weapon was displayed or implied . . . 5 points

       (f) No aggravated use of a weapon occurred . . . 0 points

Defendant argues on appeal that OV 1 should have been assessed at zero points because the only
evidence of a weapon was that defendant possessed a firearm, and there was no evidence
presented at trial that defendant could have possessed “any other type of weapon.” We disagree.
As discussed above, the trial court was not required to accept defendant’s testimony that the
weapon was a firearm, but the uncontroverted evidence, which included medical records, showed
that the victim had been struck by some object other than a mere fist. The use of “‘any
instrument or device used for attack or defense in a fight or in combat’ and ‘anything used
against an opponent, adversary or victim’” is enough to support an assessment of 10 points for
“any other type of weapon.” People v Lange, 251 Mich App 247, 257; 650 NW2d 691 (2002),
quoting Random House Webster’s College Dictionary (1997).

       Defendant also argues that the trial court erred when it assessed OV 2 at one point.
Again, we disagree.

       OV 2 assesses points for the “lethal potential for the weapon possessed or used.” MCL
777.32(1). In relevant part, the statute provides:

       (1) Offense variable 2 is lethal potential of the weapon possessed or used. Score
       offense variable 2 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:

                                            * * *

       (d) The offender possessed or used a pistol, rifle, shotgun, or knife or other
       cutting or stabbing weapon . . . 5 points


                                               -3-
       (e) The offender possessed or used any other potentially lethal weapon . . . 1
       point

       (f) The offender possessed or used no weapon . . . 0 points

Defendant makes essentially the same argument, that because the victim described the weapon as
a firearm, but defendant was not convicted of felony-firearm, there must have been no weapon at
all. Again, this argument is not sustainable.

        The fact the weapon’s character has not been proven beyond a reasonable doubt does not
mean that its existence has not been proven beyond a reasonable doubt, and the exact character
of the weapon is not a necessary fact for purposes of assessing OV 2. Even the most benign item
can constitute a weapon under OV 2 if it is employed as a weapon. See People v McCuller, 479
Mich 672, 696-697; 739 NW2d 563 (2007) (finding that a baseball bat is a weapon); Lange, 251
Mich App at 252-258 (finding that a glass mug is a weapon). In other words, what makes a
weapon a weapon is the use to which it is put and the practical potential for it to inflict harm
upon that use. See Lange, 251 Mich App at 256. The uncontested evidence regarding the type
and extent of injury inflicted upon the victim demonstrated that defendant used a weapon, and
that his method of employment rendered the weapon “potentially lethal.” The trial court did not
err when it assessed OV 2 at one point.

      Finally, defendant argues that the trial court erred when it assessed OV 3 at 25 points.
We agree, but we find the error harmless.

        Because defendant failed to object to the scoring of OV 3 at sentencing, in a motion for
resentencing, or in a timely filed motion for remand, we review the defendant’s challenge for
plain error affecting defendant’s substantial rights. MCL 769.34(10);3 People v Lockridge, ___
Mich ___, ___; ___ NW2d ___ (2015), slip op at 3. OV 3 considers the extent of injury to a
victim. MCL 777.33. In relevant part:

       (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:

                                             * * *

       (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




3
  The Lockridge Court held MCL 769.34(2) and 769.34(3) unconstitutional. MCL 769.34(10)
still applies. Lockridge, ___ Mich at ___; slip op at 1-2.


                                               -4-
       (e) Bodily injury not requiring medical treatment occurred to a victim . . . 5
       points

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

While defendant’s presentence report recommended an assessment of OV 3 at 10 points, the trial
judge raised the assessment sua sponte to 25 points at sentencing because he believed that the
injury to the victim had been life threatening. Defendant concedes that OV 3 should, at least, be
assessed at 10 points because the evidence presented at trial established that the victim’s facial
injuries required medical treatment. However, defendant argues that OV 3 could only be
assessed at 10 points because there was no evidence presented that might lead the trial court to
believe that the injuries had been “life threatening” or “permanently incapacitating.”

         The victim testified that his lip was split and three of his teeth were broken. Although
correction of these injuries required several stitches and a temporary mouth brace, the victim
walked out of the hospital only hours after the incident. There was no evidence that he suffered
a life-threatening or permanent incapacitating injury. Indeed, the prosecutor did not argue for a
raised assessment of OV 3 at sentencing, and the presentence report recommended an assessment
of 10 points, not 25 points. Because the record does not show that the victim’s injury was life-
threatening or permanently incapacitating, the trial court should have assessed OV 3 at 10 points.
See MCL 777.33(1)(d). The trial court’s improper assessment of OV 3 is an error that does not
warrant relief.

        Because defendant was sentenced prior to July 29, 2015, he is entitled to resentencing if
the facts admitted by defendant or found by the trier of fact were insufficient to assess the
minimum number of OV points necessary to support defendant's sentence under the guidelines
and his sentence is not subject to an upward departure. People v Lockridge, ___ Mich ___, ___;
___ NW2d ___ (2015); slip op at 32-34. At sentencing, defendant received a total of 36 OV
points, the sum of OVs 1 through 3, and had 40 points assessed for prior record variables,
placing him in the D-II cell of the sentencing grid for Class A offenses. MCL 777.62. Even
after a reduction of OV 3 to 10 points, defendant’s total of 21 OV points places him in the same
cell of the Class A sentencing grid. Even with the 15 point reduction, defendant’s guidelines
range remains the same. MCL 777.62. Thus, he is not entitled to resentencing. People v
Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).4

        As discussed, the trial judge’s verdict necessarily established the factual basis to assess
10 points for OV 1 and one point for OV 2. Thus, the facts underlying these two OVs have been
established beyond a reasonable doubt, and there can be no plain error. Additionally, defendant
did not object at sentencing to the PSIR assessment of OV 3 at 10 points, despite raising
numerous other objections. Finally, defendant admitted on appeal that McClure’s injury was
sufficient to score OV 3 at 10 points. Specifically, defendant stated in his brief on appeal, “[t]he
injury to Mr. McClure’s mouth was serious and required medical attention.” When facts forming


4
  As discussed in footnote 2, although the guidelines are now only advisory, our review of their
scoring is unchanged.


                                                -5-
the basis for an OV score are admitted by the defendant, there is no plain error. Ultimately, then,
the Lockridge decision does not require remand in this case for resentencing.

       Affirmed.

                                                            /s/ Patrick M. Meter
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Amy Ronayne Krause




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