                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 16, 2016
              Plaintiff-Appellee,

v                                                                  No. 324105
                                                                   Delta Circuit Court
DOUGLAS VERO SEDENQUIST,                                           LC No. 14-008921-FH

              Defendant-Appellant.


Before: SAWYER, P.J., and HOEKSTRA and WILDER, JJ.

PER CURIAM.

       A jury convicted defendant of one count of extortion, MCL 750.213, and one count of
using a computer to commit a crime, MCL 752.796, and acquitted him of aggravated stalking,
MCL 750.411i. The trial court sentenced defendant to concurrent terms of 3 to 20 years’
imprisonment, with credit for 10 days. Defendant appeals as of right. We affirm and remand.

                                           I. FACTS

        Defendant’s convictions arise from his threat to accuse Carmen LaBute, his ex-wife and a
registered nurse, of violating the federal Health Insurance Portability and Accountability Act
(HIPAA), 42 USC 1320d et seq., if she did not agree to certain changes in the couple’s judgment
of divorce (JOD).

        LaBute filed for divorce in July 2012. During the pendency of the divorce, defendant
lived at an isolated camp that the couple owned in Alger County and received $1,100 per month
in spousal maintenance. According to defendant, he suffered from depression and seasonal
affective disorder and contemplated suicide.          In December 2012, defendant stopped
communicating with his divorce attorney and she successfully petitioned to withdraw as his
counsel approximately 10 days before the March 6, 2013 final divorce hearing. Three days
before the final divorce hearing, defendant drove to Green Bay, Wisconsin, where LaBute
worked as a weekend nurse for Aurora Bay Care, in the hope of convincing her to call off the
divorce and intending to commit suicide if she did not. For reasons that are unclear from the
record, defendant engaged in a standoff with police that resulted in defendant’s confinement to a
psychiatric hospital in Green Bay and his arrest while in the hospital.



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        Meanwhile, the final hearing in the divorce case was held in defendant’s absence on
March 6, 2013, and a JOD was entered. The judgment did not give defendant parenting time
with his minor son or spousal support, but gave defendant until December 31, 2013, to file a
motion to reinstate spousal support. LaBute received the couple’s property in Alger County and
$9,484.20 from defendant’s Roth IRA. Her attorney, Russell Hall, drew up a qualified domestic
relations order (QDRO) to transfer the money from the IRA to LaBute. Defendant refused to
sign the QDRO, causing Hall to file a motion seeking authorization. Hall informed defendant of
the hearing in a letter dated November 8, 2013, and in that letter invited defendant to call his
office with any questions about the QDRO.

       Defendant telephoned Hall on November 20, 2013, two days before the scheduled QDRO
hearing. According to Hall, defendant told him that LaBute had violated HIPAA numerous
times by conveying to him patients’ private health information and that spousal privilege no
longer prevented him from reporting the violations. Defendant claimed to have written letters to
seven different families whose medical information LaBute had shared with him and to have
given copies of the letters to a third party. Juxtaposed to these statements were four specific
requests. Defendant wanted LaBute to renounce all claims to monies from his IRA, to pay him
$1,000 a month in spousal support, to change custody of their son to joint custody, and to give
him first right of refusal to purchase the camp property if and when she decided to sell the
property.

        Hall believed an act of extortion had occurred and he and LeBute jointly decided to
contact the police. As instructed by Anthony LaPlant, a detective-sergeant with the city of
Escanaba public safety department, Hall e-mailed defendant the following day, November 21,
2013, asking him to come to Hall’s office at 3:30 p.m. to sign the stipulation for spousal support,
and to bring with him all of the letters, including the backups. Defendant did not receive the e-
mail in time to attend the meeting. Defendant responded to Hall’s e-mail, expressing his
appreciation for Hall’s “willingness to honor [his] very reasonable requests,” and his hope that it
was “the first step in doing what’s right from now on.” Defendant stated that if LaBute
relinquished in good faith “all claims to all Qualified monies in my name to the court tomorrow
11/22/13, I will be open to negotiating the details on the remaining reasonable requests next
week.” On November 22, 2013, defendant sent an e-mail to Hall stating that he wanted to hear
from Hall “today after you speak to your client,” and further stating that he hoped Hall had
“advised [LeBute] to cease and desist discussing anything about my medical records with
anyone, she needs to better understand that a registered nurse that refuses to protect private
medical information won’t be a registered nurse for long.”

       Hall obtained a two-week adjournment of the QDRO hearing and did not contact
defendant for three days while he waited for the prosecutor’s office to review the information it
had been provided. Around 11:00 a.m. on November 25, 2013, Hall received an e-mail from
defendant asking, “Does no reply indicate no interest in a civil and reasonable relationship
moving forward?” Below this question defendant inserted the address of the Wisconsin
Department of Safety and Professional Services, and to the e-mail he attached a file entitled
“Carmen LaBute RN License.PNG.” Later that afternoon, defendant sent Hall another e-mail in
which he stated that Hall had “ignored every one of my simple suggestions for ‘good will,’ “
provided three specific examples of requests that Hall and LaBute had not fulfilled, and stated in
relevant part:
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               I have already given GOOD WILL. I’ve given your client $10,000 by not
       taking the Spousal Support I rightfully have coming for the past 10 months. I’ve
       also protected her employment by not reporting the many, many cases of her
       violating patient privacy.

              . . . I will no longer protect her from her privacy violations at the end of
       business tomorrow.

Hall interpreted this e-mail as an ultimatum and a real threat to send out the letters. He contacted
LaPlant, who obtained and executed a search warrant for defendant’s cell phone and computer.
LaPlant’s investigation confirmed that the e-mails that Hall had received came from defendant’s
computer. Defendant was arrested, and eventually charged with extortion, using a computer to
commit a crime, and aggravated stalking. A jury acquitted defendant of aggravated stalking, but
convicted him of extortion and using a computer to commit a crime.

                                          I. ANALYSIS

                            A. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that the evidence was insufficient to convict him of extortion and
of using a computer to commit a crime. We disagree. We review challenges to the sufficiency
of evidence de novo and in a light most favorable to the prosecution to determine “whether a
rational trier of fact could have found that the essential elements of the crime were proved
beyond a reasonable doubt.” People v Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120
(2010). “Conflicts in the evidence must be resolved in favor of the prosecution.” People v
Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010) (quotation marks and citation omitted).
In addition, “this Court must defer to the fact-finder’s role in determining the weight of the
evidence and the credibility of the witnesses.” Id.

         Regarding the extortion charge, defendant claims that the prosecutor did not establish that
defendant acted with the malice that is required by MCL 750.213. Defendant insists that his
discussion of LaBute’s alleged HIPAA violations was a negotiation tactic aimed at securing
relief from allegations that he violated personal protection orders and at resolving various issues
relative to the JOD.

      Our Supreme Court recently interpreted MCL 750.213 in People v Harris, 495 Mich 120;
845 NW2d 477 (2014). A defendant violates the statute when he or she
       (1) either orally or by a written or printed communication, maliciously threatens
       (2) to accuse another of any crime or offense, or to injure the person or property
       or mother, father, spouse or child of another (3) with the intent to extort money or
       any pecuniary advantage whatever, or with the intent to compel the person
       threatened to do or refrain from doing any act against his or her will. [Id. at 128-
       129.]

According to the Court, “the Legislature’s inclusion of a malice requirement provides law
enforcement, judges, and juries with an explicit standard for applying MCL 750.213.” Id. at

                                                -3-
135-136. Observing that the Legislature did not intend to punish everyone who makes a minor
threat, but rather only those “who ‘maliciously’ threaten others,” id. at 135, the Court defined
“malice” as: “1. The intent, without justification or excuse, to commit a wrongful act. 2.
Reckless disregard of the law or of a person’s legal rights. 3. Ill will; wickedness of heart. This
sense is most typical in nonlegal contexts.” Id. at 136. Therefore, concluded the Court, “only
those threats made with the intent to commit a wrongful act without justification or excuse, or
made in reckless disregard of the law or of a person’s legal rights, rise to the level necessary to
support an extortion conviction.” Id.
        Viewed in the light most favorable to the prosecution, and resolving conflicts in the
evidence in favor of the prosecution, the evidence was sufficient to allow a rational trier of fact
to conclude beyond a reasonable doubt that defendant acted with the malice required by MCL
750.213. It is beyond dispute that defendant threatened via e-mails to accuse LaBute of HIPAA
violations if she did not accede to his requests. The purpose of defendant’s threatening e-mails
was to obtain pecuniary advantage in the form of $1,000 in monthly child support and a waiver
of LaBute’s lawful claim to his retirement account, and to force her to file a petition with the
court that would result in defendant’s joint custody of their son. The threats were clearly
designed to force LaBute to abandon legal rights granted her by the JOD. Harris, 495 Mich at
136. Thus, a reasonable juror could find that defendant acted with the requisite malice and
violated MCL 750.213 when, in reckless disregard1 of LaBute’s legal rights, he sent e-mails
threatening to accuse her of HIPPA violations if she did not provide him with the pecuniary
benefits demanded and relinquish sole custody of their son.

        Defendant next contends that the evidence was not sufficient to support the conviction of
using a computer to commit the crime of extortion because, according to Hall and LaPlant, all of
the elements of the charged crime were present after defendant’s November 20, 2013 telephone
call to Hall, which was before the first e-mail was sent. Defendant maintains that the e-mails
were “subsequent acts” under MRE 404b that were admitted to prove that the crime had occurred
on November 20, 2013.

       MCL 752.796 provides:

               (1) A person shall not use a computer program, computer, computer
       system, or computer network to commit, attempt to commit, conspire to commit,
       or solicit another person to commit a crime.

              (2) This section does not prohibit a person from being charged with,
       convicted of, or punished for any other violation of law committed by that person



1
  “Disregard” is “the action of ignoring or treating without proper respect or consideration.”
Black’s Law Dictionary (10th ed). “Reckless disregard” is “conscious indifference to the
consequences of an act.” Black’s Law Dictionary (10th ed). Defendant could be said to have
been consciously indifferent to the effect his course of action would have on LaBute’s legal
rights under the judgment of divorce.


                                                -4-
       while violating or attempting to violate this section, including the underlying
       offense.

              (3) This section applies regardless of whether the person is convicted of
       committing, attempting to commit, conspiring to commit, or soliciting another
       person to commit the underlying offense.

        Defendant presumes that the November 20, 2013 threat is the sole basis for the charge of
extortion because police devised the scheme to arrest defendant on November 21, 2013, which
was before any e-mails had been sent. However, the felony information specifying the charges
against defendant states an offense date of “on or around November 20-26, 2013.” The record
shows that during this time frame defendant engaged in a scheme of extortion wherein he
threatened multiple times to report LaBute for HIPAA violations if she did not accede to certain
specific requests, and that he used a computer to make some of those threats. Thus, the evidence
adduced at trial was sufficient for a reasonable trier of fact to conclude that plaintiff had proved
beyond a reasonable doubt that defendant used a computer to commit the crime of extortion.
Ericksen, 288 Mich App at 195-196.

                                  B. EVIDENTIARY ISSUES

        Defendant next argues that the trial court abused its discretion by admitting the
inadmissible opinion of Hall that defendant was “kind of a bully” and LaPlant’s statement that
“the extortion was just one more thing in a laundry list of offenses that we were looking at.” We
review a trial court’s determination to admit or exclude evidence for an abuse of discretion.
People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012). A trial court abuses its
discretion when its decision results in an outcome outside the range of reasoned and principled
outcomes. People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013). “A preserved trial
error in admitting or excluding evidence is not grounds for reversal unless, after an examination
of the entire cause, it affirmatively appears that it is more probable than not that the error was
outcome determinative.” King, 297 Mich App at 472.

        Although Hall’s statement was an inadmissible opinion as to defendant’s character under
MRE 404b and MRE 405a, the trial court corrected its error with a curative instruction to the
jury to disregard the testimony and not to consider it in any way or for any purpose. Defendant
contends that the cautionary instruction was insufficient to cure the prejudicial impact of the
evidence and that Hall’s statement undermined defendant’s credibility with the jury. We find,
however, that the jury’s acquittal of defendant on the charge of aggravated stalking calls
defendant’s contention into question, and illustrates the general presumption that jurors follow
the jury instructions. People v Messenger, 221 Mich App 171, 180 n 3; 561 NW2d 463 (1997).

       Defendant similarly contends that LaPlant’s statement fatally undermined his credibility.
This claim is belied, however, by the fact that out of that alleged “laundry list,” police charged
defendant with only three crimes, one of which defendant was acquitted. Furthermore, any
prejudicial effect of LaPlant’s statement was arguably minimal in light of the strength and weight
of the untainted evidence. People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002).
Assuming an error in the admission of the evidence, it does not affirmatively appear that it is


                                                -5-
more probable than not that the error was outcome determinative. King, 297 Mich App at 472.
Consequently, defendant is not entitled to relief. Id.

                       C. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next raises a number of ineffective assistance of trial counsel and of appellate
counsel issues in a Standard 4 brief. With respect to his trial counsel, defendant claims that he
was ineffective by failing to request instructions from the court on defendant’s theory of defense
and on “just cause or error,” and by failing to request an adjournment under MCR 6.425 in order
to conduct a more thorough review of defendant’s untimely received presentence investigation
report (PSIR). The claims against trial counsel are unpreserved because defendant did not move
for a new trial or request an evidentiary hearing. People v Hoag, 460 Mich 1, 6; 594 NW2d 57
(1999). Our review of unpreserved claims of ineffective assistance of counsel is limited to errors
apparent on the record. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). The
determination whether a defendant has been deprived of the effective assistance of counsel
presents a mixed question of fact and constitutional law. People v Trakhtenberg, 493 Mich 38,
47; 826 NW2d 136 (2012).

         Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). “[C]ounsel’s
ineffective assistance must be found to have been prejudicial in order to reverse an otherwise
valid conviction.” People v Pickens, 446 Mich 298, 314; 521 NW2d 797 (1994). A defendant
can overcome the presumption by showing that counsel failed to perform an essential duty and
that the failure was prejudicial to the defendant, People v Reinhardt, 167 Mich App 584, 591;
423 NW2d 275 (1988), or by showing a failure to meet a minimum level of competence, People
v Jenkins, 99 Mich App 518, 519; 297 NW2d 706 (1980). Defense counsel has wide discretion
as to matters of trial strategy. People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012). This
Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor
will it assess counsel’s competence with the benefit of hindsight. People v Payne, 285 Mich App
181, 190; 774 NW2d 714 (2009).

        We find that defendant has failed to meet his heavy burden of proving that his trial
counsel rendered ineffective assistance. Trial counsel’s performance did not fall below an
objective level of competence when he did not request a theory of defense instruction because,
under the circumstances, none was needed. The purpose of a theory of defense instruction is “to
explain a defense theory that is not clearly or adequately explained by pattern or standard jury
instructions.” Black’s Law Dictionary (10th ed). Defendant’s primary defense was that the
elements of the crime of extortion had not been proved beyond a reasonable doubt because the
prosecutor had not presented evidence establishing that defendant acted with the malice requisite
for extortion. This defense theory was clearly and adequately explained by the standard jury
instructions on the presumed innocence of the defendant, the burden of the prosecutor to prove
every element of the charged crime beyond a reasonable doubt, the meaning of reasonable doubt,
and the elements of extortion. Because there was no need for a theory of defense instruction in
this case, trial counsel did perform deficiently by failing to ask for one. People v Darden, 230
Mich App 597, 605; 585 NW2d 27 (1998).


                                                -6-
        Additionally, the record does not support additional instructions on “just cause or
excuse.” See People v Lee, 243 Mich App 163, 185; 622 NW2d 71 (2000). “Just cause or
excuse” refers to justifications such as duress. Duress requires an exterior threat that puts a
defendant in such fear of death or serious bodily harm that he commits a criminal act to avoid
harm. M Crim JI 7.6. Defendant’s claim that he would have abandoned his course of action had
he known it was illegal belies any sort of exterior compulsion, let alone a threat serious enough
to establish a defense of duress.

        Finally, defendant has not overcome the presumption that his trial counsel provided
effective assistance when reviewing defendant’s PSIR. The record shows that defendant had
adequate time to review the report to raise specific challenges to its content. Defense counsel did
not timely receive a copy of the report, but it appears from the record that he had sufficient time
to review the report. Consequently, defendant’s counsel did not err when he did not request an
optional adjournment under MCR 6.425 because none was necessary. The record does not
clearly show that defendant did not have adequate time to review the PSIR, or that defense
counsel performed deficiently by failing to ask for an adjournment under MCR 6.425. Jordan,
275 Mich App at 667. Further, defendant errs by assuming that the “written victim’s impact
statement” referred to in MCR 6.425(A)(1)(g) must be a first-person account physically written
by the victim. MCL 780.764 gives a victim “the right to submit or make a written or oral impact
statement to the probation officer for use by that officer in preparing a presentence investigation
report concerning the defendant . . . .” Accordingly, a victim’s impact statement must be that of
the victim’s, but it need not be a statement written and submitted by the victim. The victim may
make an oral statement to the probation officer for inclusion in a defendant’s PSIR. In the
instant case, the victim’s impact statement begins with “[t]he victim in this case indicated,” a
clear signal that LaBute made an oral statement that the probation officer reduced to writing
before including in the PSIR. Because the victim’s impact statement in defendant’s PSIR
complies with MCL 780.764, defendant’s objection to the statement and request to strike it
because it is not “authentic” must fail. Consequently, defendant has not overcome the
presumption that he received effective assistance of counsel. Seals, 285 Mich App at 17.

        Defendant also asserts two claims against his former appellate counsel, who was also his
trial counsel. First, he contends that his appellate counsel rendered ineffective assistance by
failing to raise the issue of his own ineffective assistance at trial. Having concluded that
defendant has not overcome the presumption of his trial counsel’s effective assistance, we find
this issue without merit. Second, defendant claims that his appellate counsel rendered ineffective
assistance by failing to appeal the trial court’s scoring of offense variable (OV) 4. We also find
this claim to be without merit.

        An appellate attorney is not required to raise every possible argument for review, People
v Reed, 449 Mich 375, 379 (BOYLE, J.), 402 (CAVANAGH, J.); 535 NW2d 496 (1995), and may
legitimately discard weaker arguments in order to focus on those arguments that are more likely
to prevail. People v Gardner, 482 Mich 41, 49 n 11; 753 NW2d 78 (2008). We conclude that, in
light of the fact that defendant was tried and his conviction was appealed before our Supreme
Court’s decision in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), an appeal of the
trial court’s scoring of OV 4 on the record before us would have failed to provide defendant with
relief. The trial court assigned 10 points to OV 4 for reasons that we have found adequate to
justify such a score. People v Drohan, 264 Mich App 77, 90; 689 NW2d 750 (2004). In
                                                -7-
addition, the trial court said that scoring OV 4 at zero would not have changed the sentencing
guidelines recommendation. Even where there have been errors in scoring, we do not remand
for resentencing where the “scoring error does not alter the appropriate guidelines range.”
People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). Given the unlikelihood of
obtaining sentencing relief, defendant has not shown that appellate counsel’s performance was
deficient under an objective standard of reasonableness and that the deficiency prejudiced
defendant. People v Uphaus (On Remand), 278 Mich App 174, 186; 748 NW2d 899 (2008).

       Finally, defendant contends that the cumulative effect of the errors is sufficient to warrant
reversal. This Court’s having found no prejudicial error, defendant’s contention fails. People v
Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007).

                                   D. SENTENCING ISSUES

       In a supplemental brief, defendant contends, and the prosecution agrees, that he is entitled
to a remand under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), because the trial
court used facts neither admitted by defendant nor found by a jury to have been proven beyond a
reasonable doubt to calculate a mandatory minimum sentencing range of 30 to 50 months.

       Under Lockridge, to make a threshold showing of plain error that could require
resentencing, defendants must show that their “OV level was calculated using facts beyond those
found by the jury or admitted by the defendants and that a corresponding reduction in the
defendants’ OV score to account for the error would change the applicable guidelines minimum
sentence range.” Id. at 399. For a remand to be appropriate, the trial court must have imposed a
sentence within the guidelines minimum sentence range before the publication of Lockridge. Id.

        The trial court scored 10 points each for OV 4 (serious psychological injury requiring
professional treatment) and OV 19 (interfering or attempting to interfere with the administration
of justice) based on a preponderance of the evidence found in the record. This resulted in a total
OV score of 20 points, which falls within OV Level II. Thus, the guidelines minimum sentence
range for defendant’s score of PRV Level C and OV Level II was 30 to 50 months. The court
sentenced defendant within the range to a prison term of 36 months. Deducting 20 OV points
would result in a guidelines minimum sentence range of 24 to 40 months in prison. Although
defendant’s current sentence would fall within the adjusted range, he nonetheless is entitled to a
Crosby2 remand because he has met the threshold showing, the court imposed sentence prior to
the publication of Lockridge, and the sentence was within the guidelines. Assuming that
defendant wants resentencing, the trial court must resentence him if it determines that it would
have imposed a materially different sentence under guidelines that were advisory rather than
mandatory; otherwise, the trial court may affirm the original sentence. Lockridge, 498 Mich at
397-398.




2
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                -8-
        Finally, defendant raises objections to statements in the PSIR that he exhibited “potential
homicidal/suicidal” behavior, and that he “threatened to kill” his estranged wife for leaving him.
These statements appeared in the agent’s “evaluation and plan” section and in the agent’s
“description of the offense” section. Defendant disputes that he was homicidal and that he
threatened to kill his estranged wife and urges us to remand for corrections of these statements.

        Because defendant objected below to the agent’s description of his behavior as “potential
homicidal/suicidal,” the objection is preserved, and we review the trial court’s refusal to strike
the language for an abuse of discretion. See People v Spanke, 254 Mich App 642, 648; 658
NW2d 504 (2003). Defendant did not object to the “threatened to kill” language below, nor did
he raise the issue in a proper motion for resentencing or in a proper motion to remand filed in
this Court. Consequently, this argument is not properly before us, and we decline to address it.
MCL 769.34(10); MCR 6.429(C).

         The trial court noted that the characterization of defendant’s behavior was in the
“evaluation and plan” section of the PSIR and was the agent’s evaluation of defendant.
Although the record contains conflicting testimony on the matter, defendant’s estranged wife
testified to an altercation that ended with defendant telling her that she was going to “burn in
hell, and that he was going to get [her],” and that this upset and scared her. Thus, we find that,
because there is credible evidence to support the agent’s evaluation, the trial court’s decision not
to strike the “homicidal” language is not outside the “range of reasonable and principled
outcomes,” and, therefore, is not an abuse of discretion. Duncan, 494 Mich at 723.

       We affirm defendant’s convictions and the trial court’s resolution of defendant’s
challenge to the PSIR, and remand the matter for the trial court to follow the Crosby procedure
outlined in Lockridge. We do not retain jurisdiction.



                                                             /s/ David H. Sawyer
                                                             /s/ Joel P. Hoekstra
                                                             /s/ Kurtis T. Wilder




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