            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 16, 2019
               Plaintiff-Appellee,

v                                                                   No. 342252
                                                                    Wayne Circuit Court
BETTY MAE CLARK,                                                    LC No. 17-004527-01-FC

               Defendant-Appellant.


Before: MURRAY, C.J., and JANSEN and RIORDAN, JJ.

PER CURIAM.

        Defendant was convicted in a bench trial of assault with a dangerous weapon (felonious
assault), MCL 750.82, and larceny in a building, MCL 750.360.1 She was sentenced, as a fourth-
offense habitual offender, MCL 769.12, to 5 to 15 years’ imprisonment for the felonious assault
conviction, and 5 to 15 years’ imprisonment for the larceny in a building conviction. Defendant
appeals as of right. We affirm.

       On March 11, 2017, defendant arrived at 91-year-old Marvin Kendrick’s home to repay
him for lending her $10. When she entered Kendrick’s house, she threw something wet into
Kendrick’s face, causing him to fall to the floor. Defendant repeatedly kicked Kendrick and cut
him with an icepick-like weapon, then tied him up to a chair. After she tied Kendrick up,
defendant took Kendrick’s cell phone and $27. When defendant left Kendrick’s house, Kendrick
remained tied up.

       Defendant argues that the trial court violated her due-process rights at sentencing by
inaccurately scoring offense variables (OVs) 3 and 8 of the sentencing guidelines. Specifically,
she asserts that the evidence introduced at trial fails to demonstrate that Kendrick was subject to



1
  Defendant was also charged with assault with intent to murder, MCL 750.83, and armed
robbery, MCL 750.529, but the court found her not guilty of both charges.



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any life-threatening or incapacitating injury, or that he was held captive beyond the time
necessary to commit felonious assault or larceny in a building.

        To preserve a scoring-error argument, a defendant must raise the issue at sentencing, in a
motion for resentencing, or in a motion to remand filed in the Court of Appeals. People v
Jackson, 487 Mich 783, 795-796; 790 NW2d 340 (2010). Defendant now asserts that the trial
court sentenced her on the basis of inaccurate information in violation of her due-process rights,
but failed to object to her sentence on constitutional grounds during sentencing, in a motion for
resentencing, or in a motion to remand filed in the Court of Appeals. Thus, defendant failed to
preserve for appeal any constitutional challenge. However, defendant did argue at the sentencing
hearing that the trial court should follow the recommendation made in the Presentence
Investigation Report (PSIR) with regard to OVs 3 and 8, rather than assess 25 and 15 points
respectively. Accordingly, defendant preserved for appeal her challenge to the OV scores.

        “Under the sentencing guidelines, the circuit 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, 438; 835 NW2d 340 (2013). “Clear error exists when the reviewing court is left with
a definite and firm conviction that a mistake was made.” People v McDade, 301 Mich App 343,
356; 836 NW2d 266 (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.” Hardy, 494 Mich at 438.
Unpreserved constitutional arguments are reviewed for plain error affecting substantial rights.
People v Heft, 299 Mich App 69, 78; 829 NW2d 266 (2012). Plain error affects substantial
rights when the error alters the outcome of the lower court proceedings. Id at 79, citing People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “Reversal is warranted only when the
plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.” Carines, 460 Mich at 763 (quotation marks and
citation omitted; alteration in original).

       We hold that the trial court did not err in scoring the OVs because a preponderance of the
evidence supports the trial court’s assessment of 25 points for OV 3 and 15 points for OV 8.
Thus, the trial court did not violate defendant’s due-process rights and she is not entitled to
resentencing.

        A preponderance of the evidence supports the trial court’s assessment of 25 points for
OV 3, which is scored according to the “physical injury to a victim.” MCL 777.33(1). A court
may assess 25 points for OV 3 when “[l]ife threatening or permanent incapacitating injury
occurred to a victim.” MCL 777.33(1)(c). The inquiry is whether the victim’s injury was life
threatening, rather than whether a defendant’s action was life threatening. People v Rosa, 322
Mich App 726, 746; 913 NW2d 392 (2018). If injury results in a victim “nearly bleeding to
death,” the victim has sustained a life threatening injury and an assessment of 25 points for OV 3
is proper. Id. Here, Kendrick lost such a significant amount of blood that he received two
separate blood transfusions in the hospital to keep him alive.

       In People v McCuller, 479 Mich 672, 697; 739 NW2d 563 (2007), the Supreme Court
affirmed an assessment of 25 points for OV 3 because the victim became unconscious and

                                                -2-
required a ten-day hospital stay where he underwent several necessary procedures to remedy the
injury sustained by his assailant. Here, evidence demonstrates that Kendrick sustained a life
threatening or permanent incapacitating injury similar to the injury the victim suffered in
McCuller. During his nine-day stay at Detroit Receiving Hospital, Kendrick was treated for
several facial and liver lacerations and two to three stab wounds to his diaphragm, middle chest,
upper chest, and right arm. Additionally, Kendrick received two separate blood transfusions and
went into cardiac arrest where he lost his pulse for at least two minutes.

        A preponderance of the evidence also supports the trial court’s assessment of 15 points
for OV 8, which is scored according to “victim asportation or captivity.” MCL 777.38(1). A
court may assess 15 points for OV 8 when “[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). The trial court held that while there was no
asportation, defendant held Kendrick captive beyond the time necessary to commit felonious
assault and larceny in a building by binding Kendrick after she had already repeatedly kicked
and cut him. But the evidence demonstrates both asportation and captivity beyond the time
necessary to commit felonious assault and larceny in a building.

        Although the language of MCL 777.38 does not define “asportation,” the Supreme Court
has held that “[i]f a victim is carried away or removed ‘to another place of greater danger or to a
situation of greater danger,’ the statutory language is satisfied” to assess 15 points for OV 8.
People v Barrera, 500 Mich 14, 21; 892 NW2d 789 (2017) (citation omitted). It follows that
defendant asported Kendrick when she moved him from the kitchen floor to the chair. On the
floor, Kendrick had the opportunity to freely move his limbs to seek help. When defendant tied
him up to the chair, Kendrick was physically restrained from movement, being placed in a
“situation of greater danger” and meeting the Barrera Court’s definition of “asportation.” If
Kendrick had been left on the floor, alerting medical assistance would have been easier and
faster.

        Further, defendant held Kendrick longer than necessary to commit the crimes of
felonious assault and larceny in a building. To complete a felonious assault crime, there must be
“(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim
in reasonable apprehension of an immediate battery.” People v Avant, 235 Mich App 499, 505;
597 NW2d 864 (1999); see also MCL 750.82. The elements of larceny in a building are “(1) a
trespassory taking (2) within the confines of a building and (3) the carrying away (4) of the
personal property (5) of another (6) with intent to steal that property.” People v Thorne, 322
Mich App 340, 344; 912 NW2d 560 (2017); see also MCL 750.360. Defendant repeatedly
kicked and cut Kendrick, tied him up to a chair, took his cell phone and $27, and then left his
house. Thus, Kendrick was held captive longer than necessary to commit felonious assault and
larceny in a building because defendant physically restrained his movements after kicking and
cutting him, and failed to release him from his physical restraints before leaving his home.




                                                -3-
Affirmed.



                  /s/ Christopher M. Murray
                  /s/ Kathleen Jansen
                  /s/ Michael J. Riordan




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