                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 22, 2018
               Plaintiff-Appellee,

v                                                                  No. 335865
                                                                   Charlevoix Circuit Court
FREDERICK WILLIAM CORDS, JR.,                                      LC No. 15-009612-FH

               Defendant-Appellant.


Before: METER, P.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of illegally obtaining $50,000 or more,
but less than $100,000, from a vulnerable adult in violation of MCL 750.174a(6)(a). Defendant
was sentenced as a fourth-offense habitual offender, MCL 769.12, to 10 to 20 years’
imprisonment. Defendant appeals as of right. We affirm.

                                           I. FACTS

        The victim, Merlin Dwaine Roberts, was in his eighties when he met defendant in 2012.
The two became friends, and defendant eventually began to ask Roberts for money, claiming that
it was to keep his electricity, heat, or cellular telephone running, or for other various reasons.
From 2012 to 2014, Roberts gifted and loaned defendant substantial sums of money using
several methods of transfer. Defendant claimed that he would pay Roberts back, but largely
failed to do so.

        At the time, Roberts lived alone. Roberts was able to drive and cook for himself, and led
a “fairly independent” lifestyle. He had an ATM card and knew how to use it with the associated
PIN number. Roberts initially testified that he preferred to withdraw cash from his bank account
by visiting an ATM, typically at least once per day, but later stated that he would ordinarily go
directly to the bank to obtain cash. Roberts’s daughter, Tamara Guilbault, testified that her
father preferred to visit the bank rather than to incur the fees associated with using an ATM.
Roberts also stated that he had made balance inquiries on his account in the past, though
Guilbault indicated that he was not in the habit of doing so. During the time Roberts was
involved with defendant, 25 balance inquiries were made on his account.




                                               -1-
        On occasion, Roberts would write checks to “cash” when he needed money for personal
items. In the pertinent period, 20 checks were made out to “cash,” totaling $8,360. Four of the
checks were for withdrawals in excess of $1,000, an amount of money Guilbault did not know
her father to carry. Receipts for funds withdrawn without a check over the course of Roberts’s
relationship with defendant totaled $8,465. Roberts also made out a number of large checks
directly to defendant, totaling $37,100. Additional checks were written to defendant’s son in the
amount of $12,500.

        More than once, defendant would come to Roberts’s house at 10:00 to 11:00 p.m.,
banging on the door or window to request that they go to an ATM. When Roberts would let
defendant into the house, defendant would not leave until Roberts turned over his debit card,
despite any objections. Defendant was also able to convince Roberts to reveal the associated
PIN number. Defendant sometimes accompanied Roberts to ATM locations. Other times,
defendant would visit an ATM alone with Roberts’s card and PIN number. An exhibit
established that, not accounting for overdraft fees and balance-inquiry fees, ATM withdrawals
from 2012 through 2014 amounted to $24,394.50. No ATM withdrawals were made in 2010 or
2011.

       Roberts came into an inheritance of $82,172.42. Within one month, his account balance
was reduced to $4.65 as a result of several ATM withdrawals, with multiple ATM withdrawals
sometimes being made in the same day.

        Defendant asked Roberts to accompany him to Kalkaska to purchase a truck. Defendant
falsely identified Roberts as his grandfather when speaking to the dealer. Roberts provided a
$300 down payment and obtained a loan for $17,000 in his own name to facilitate payment for
the truck. Defendant ultimately made only two payments on the loan.

        In July 2014, Roberts contacted Guilbault to request financial assistance. This had never
happened before. Guilbault accompanied her father to the bank and learned that he had incurred
several overdrafts. Collection agencies and creditors were calling Roberts. Guilbault could not
reconcile Roberts’s expenses with her understanding of his financial habits.

       Around July 2014, Guilbault was added to Roberts’s account. Roberts was issued a new
debit card and there were no further problems with the account. Guilbault did not learn of
defendant until later, when Roberts called Guilbault again, asking for $75 for defendant.
Defendant was told to direct future requests for money to Guilbault, and Roberts stopped
answering defendant’s calls. Guilbault arranged for the repossession of the truck that Roberts
helped defendant purchase in order to satisfy the remaining loan balance. No further ATM
withdrawals were made from June 2014 through the entirety of 2016.

        A services specialist for the Adult Protective Services Division of the Department of
Health and Human Services (DHHS) was made aware of concerns that defendant was financially
exploiting Roberts. When she met Roberts, he appeared to be confused about his financial
circumstances. Because of his advanced age, the services specialist determined that Roberts was
a “vulnerable adult.” However, she conceded that Roberts appeared to be able to function
independently in other areas (i.e., Roberts could drive, prepare his own lunches, go out to eat for
breakfast and dinner). She also believed that Roberts was capable of making gifts and loans of

                                                -2-
money. The services specialist notified the police, who began a criminal investigation into
defendant’s conduct. During an interview with the police, defendant admitted to owing Roberts
$16,000 to $17,000 for the purchase of the truck, and $14,000 to $15,000 in cash. Defendant
later claimed that he had borrowed approximately $30,000 from Roberts over the course of their
relationship, and had paid back nearly half.

                                         II. ANALYSIS

                           A. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that he was denied his constitutional right to due process because
the jury rendered a guilty verdict without sufficient evidence that Roberts was a “vulnerable
adult” under MCL 750.145m(u)(i). We disagree. This Court reviews de novo a defendant’s
assertion that the evidence was insufficient to support his conviction. People v Harverson, 291
Mich App 171, 177; 804 NW2d 757 (2010).

        Due process requires that a criminal defendant’s conviction be sustained by sufficient
evidence. Id. at 177 n 1. When reviewing the sufficiency of evidence, an appellate court
reviews the evidence in the light most favorable to the prosecution to determine whether a
rational jury could have found that the elements of the crime were proven beyond a reasonable
doubt. People v Cameron, 291 Mich App 599, 613; 806 NW2d 371 (2011). In applying this
standard,

       [an appellate court] must remember that the jury is the sole judge of the facts. It
       is the function of the jury alone to listen to testimony, weigh the evidence and
       decide the questions of fact . . . . Juries, not appellate courts, see and hear
       witnesses and are in a much better position to decide the weight and credibility to
       be given to their testimony. [People v Hardiman, 466 Mich 417, 431; 646 NW2d
       158 (2002) (quotation marks and citations omitted).]

        Under MCL 750.174a(1), “[a] person shall not through fraud, deceit, misrepresentation,
coercion, or unjust enrichment obtain or use or attempt to obtain or use a vulnerable adult’s
money or property to directly or indirectly benefit that person knowing or having reason to know
the vulnerable adult is a vulnerable adult.” Of particular import in this case, MCL
750.174a(6)(a) criminalizes a defendant’s conduct when “[t]he money or property used or
obtained, or attempted to be used or obtained, has a value of $50,000.00 or more but less than
$100,000.00.” MCL 750.145m(u)(i) defines “vulnerable adult” to mean, in pertinent part, “[a]n
individual age 18 or over who, because of age . . . requires supervision or personal care or lacks
the personal and social skills required to live independently.”

       It was established that Roberts was approximately 83 years old when defendant first
entered his life. There was ample evidence to establish Roberts’s vulnerability due to his
advanced age. The services specialist expressly stated that, because of his age, Roberts was a
vulnerable adult. She also testified that Roberts appeared confused about his finances. Indeed,
the record of Roberts’s testimony reveals that he appeared to have difficulty articulating his
thoughts and staying focused on questions. His testimony was scattered and on multiple
occasions he needed to have questions repeated or explained, though this may have been at least

                                               -3-
partly due to his hearing impairment. Further, Roberts allowed defendant—whom the evidence
did not establish as a long-time friend or business partner—to accompany him to an ATM, to
enter his house in the late hours of the night, and to use his ATM card and associated PIN
number without supervision. From these facts, a rational jury could have found that Roberts was
“vulnerable” under MCL 750.145m(u)(i) beyond a reasonable doubt. See Cameron, 291 Mich
App at 613.

        It is true that Roberts was able to live independently on his own from 2012 to 2014,
otherwise functioned appropriately without assistance, and was even capable of making gifts or
loans of money. However, these facts do not negate the validity of the jury’s verdict. That
Roberts was able to make gifts and loans does not inherently mean that he was incapable of
going too far in doing so, requiring some supervision over his money. Further, the pertinent
definition of a “vulnerable adult” is “[a]n individual age 18 or over who, because of age . . .
requires supervision or personal care or lacks the personal and social skills required to live
independently.” MCL 750.145m(u)(i) (emphasis added). “The word ‘or’ is a disjunctive term
indicating a choice between alternatives.” Stock Bldg Supply, LLC v Crosswinds Communities,
Inc, 317 Mich App 189, 204; 893 NW2d 165 (2016) (quotation marks and citations omitted).
Thus, it was enough to sustain defendant’s conviction that the evidence demonstrated Roberts’s
need for financial supervision, regardless of his ability to live independently. See MCL
750.145m(u)(i).

       Defendant also argues that, even if Roberts was vulnerable when the services specialist
examined him, there was no evidence to demonstrate that Roberts was vulnerable for the entire
time that defendant knew him. The services specialist could not definitively ascertain when
Roberts became vulnerable. She did not believe, however, that his vulnerability had had a
“sudden onset.” A jury is permitted to make logical and reasonable inferences in fulfilling its
role as the finder of fact. Hardiman, 466 Mich at 427. When taken in the context of the
evidence discussed above, the jury could have determined that Roberts had become vulnerable in
his advanced age, requiring financial supervision by 2012, if not earlier.

        Defendant next contends that Roberts could not have been vulnerable when he made gifts
and loans to defendant if he was not also vulnerable when he made gifts to others. This
argument is without merit. Evidence was presented that Roberts gifted over $18,000 to his
friend of 40 years, Charlene Schreiber, and her son. Roberts also funded a $25,000 line of credit
for Schreiber’s son, which he used when he started a business. However, the facts surrounding
these gifts were distinguishable. Roberts expressly stated that he did not expect the Schreibers to
pay him back, and that he considered them to be close family members. Moreover, no evidence
was presented to show that Roberts’s generosity toward the Schreibers completely depleted his
funds over the course of 40 years of friendship.

        Though perhaps the jury could have determined that Roberts was not “vulnerable” under
the statute, it is not for an appellate court to adopt inferences that the jury has found
unpersuasive. See id. at 430-431. Logical and reasonable inferences existed to allow the jury to
conclude that Roberts was “vulnerable,” and so defendant cannot claim that the evidence was
insufficient in this regard. See id. at 427.



                                                -4-
       Defendant next argues that evidence was insufficient for the jury to determine that
defendant knew or should have known that Roberts was vulnerable. Because it can be difficult
to prove a criminal defendant’s knowledge or other state of mind, “minimal circumstantial
evidence will suffice to establish the defendant’s state of mind, which can be inferred from all
the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).
Such evidence includes the defendant’s actions. Id. at 604. In addition, when knowledge is an
element of the offense, it inherently includes actual and constructive knowledge. Id.

        The record does not disclose a great deal regarding how defendant came into Roberts’s
life. However, there was ample evidence that, once defendant was acquainted with Roberts, he
became increasingly aware of Roberts’s vulnerability. Defendant went to Roberts’s home
unannounced in the late hours of the evening, banging on the door and windows to request that
the two go to an ATM. At some point, Roberts was convinced to allow defendant the use of his
ATM card and associated PIN number. From there, defendant was able to make withdrawals
from Roberts’s account without Roberts even being present. Further, when Roberts came into an
inheritance, withdrawals from his account became more frequent and in greater amounts such
that the funds were depleted within one month. This behavior suggests that defendant knew
when Roberts was susceptible to acting against his own financial interests and when Roberts had
greater sums of money in his account. Indeed, a colorable argument could be made that the fact
that Roberts even agreed to allow defendant the use of his ATM card and PIN number should
have put defendant on notice that Roberts was a vulnerable adult, incapable of making
financially sound decisions.

        Ultimately, the evidence showed that defendant may have been responsible for taking up
to $8,360 in the form of checks made to “cash,” $8,465 in withdrawals directly from Roberts’s
account without the use of a check, $17,300 for the purchase of the truck—although an unknown
amount of this loan was satisfied when the truck was repossessed and sold—$24,394.50 in ATM
withdrawals (not including overdraft fees and balance-inquiry fees), $37,100 in checks made to
defendant, and $12,500 in checks made to defendant’s son. Defendant may have also taken
nearly $82,172.42 when Roberts came into his inheritance, though it is unclear how much this
overlapped with the other amounts. Regardless, the amount that defendant was able to take from
Roberts without reimbursement completely wiped out Roberts’s funds. Even if the vast sum of
money, itself, was not enough to establish that defendant knew or should have known that
Roberts was vulnerable, evidence was put forward to show that defendant was monitoring
Roberts’s account with frequent balance inquiries. Accordingly, the jury could have reasonably
inferred that defendant was aware of the damage he was causing Roberts, and that a non-
vulnerable adult victim would not have allowed this to continue.

       Defendant also argues that he could not have known that Roberts was vulnerable because
Roberts was deemed capable of making loans and gifts of money. Defendant highlights the fact
that Roberts’s own daughter was not aware that he was vulnerable until at least 2014. Defendant
cannot prevail on these assertions. The services specialist expressly indicated that Roberts was a
vulnerable adult. That Roberts was able to make loans and gifts and to live independently does
not inherently mean he could not have been vulnerable. Moreover, Guilbault was not asked for
help until 2014, and so she had no reason to know of his vulnerability until then. Also, the text
of MCL 750.174a(1) is only concerned with whether the defendant knew or should have known


                                               -5-
about the victim’s vulnerability; accordingly, whether anyone besides defendant had knowledge
is of little consequence here.

        Defendant next asserts that there was insufficient evidence for the jury to determine that
defendant defrauded Roberts of $50,000 or more but less than $100,000. Accounting for the
checks made payable to defendant and his son, defendant received $49,600 from Roberts. While
defendant’s son was not charged in this case, the jury could have reasonably and logically
inferred that defendant induced Roberts to write checks to his son in furtherance of the crime.
See Hardiman, 466 Mich at 427. No evidence was presented to indicate that Roberts made those
checks to defendant’s son of his own volition, absent defendant’s exploitation of his
vulnerability. This leaves only $400 for defendant to reach the threshold established by MCL
750.174a(6)(a). Roberts paid $300 as a down payment for defendant’s truck, and also took out a
$17,000 loan to finance the purchase. At least some of the loan was satisfied when the truck was
repossessed and sold, though the exact amount remaining on the loan was never established. It is
also unclear whether this satisfied both the loan and the down payment or merely the loan.
Defendant told the police that he owed Roberts at least $16,000 for the truck, but this may have
been alleviated by the repossession.

        In any case, there was also evidence that from 2012 to 2014, $24,394.50 was withdrawn
from Roberts’s account from various ATM locations. The jury could reasonably have attributed
many of the ATM withdrawals to defendant, because Guilbault testified that Roberts typically
avoided making such withdrawals for fear of incurring the associated fees. Given Roberts’s
inconsistent and somewhat scattered testimony and Guilbault’s assertion that no ATM
withdrawals were made before 2012 or after June 2014, it would have been reasonable for the
jury to conclude that most—if not all—of the ATM withdrawals from Roberts’s account were
made by or for defendant. Defendant contends that the withdrawals were for Roberts himself,
but, as stated above, it is not for this Court to adopt inferences that the jury has found
unpersuasive. See Hardiman, 466 Mich at 430-431. Appellate courts must, instead, defer to the
jury on issues of the weight to be assigned to trial testimony and the credibility of witnesses.
Guerrero v Smith, 280 Mich App 647, 669; 761 NW2d 723 (2008).

        Finally, evidence was presented of $8,360 in the form of checks made to “cash” and
$8,465 in withdrawals directly from Roberts’s account without the use of a check. Moreover,
Roberts’s $82,172.42 inheritance was reduced to $4.65 in the course of one month. The jury
could have reasonably attributed the disappearance of some or all of this money to defendant’s
conduct. Again, it is inappropriate for this Court to second-guess the jurors’ assessment of the
weight given to the evidence. Id. Accordingly, sufficient evidence was produced for the jury to
find that defendant defrauded Roberts, a “vulnerable adult,” of $50,000 or more but less than
$100,000.

        Defendant argues that any amounts other than the checks written to defendant were
impermissibly speculative. “[A]n inference cannot be based upon evidence which is uncertain or
speculative or which raises merely a conjecture or possibility. This, of course, implicitly allows
inferences that are logical and reasonable . . . .” Hardiman, 466 Mich at 427 (quotation marks
and citation omitted). Moreover, in Ykimoff v W A Foote Mem Hosp, 285 Mich App 80, 88; 776
NW2d 114 (2009), the Court stated:


                                               -6-
       [A] conjecture is simply an explanation consistent with known facts or conditions,
       but not deducible from them as a reasonable inference. There may be two or
       more plausible explanations as to how an event happened or what produced it;
       yet, if the evidence is without selective application to any one of them, they
       remain conjectures only. On the other hand, if there is evidence which points to
       any one theory of causation, indicating a logical sequence of cause and effect,
       then there is a juridical basis for such a determination, notwithstanding the
       existence of other plausible theories with or without support in the evidence.
       [Quotation marks and citation omitted.]

As discussed above, there was substantial evidence that defendant defrauded Roberts of an
amount in excess of $50,000. The jury would have been able to infer that a combination of the
ATM and in-person bank withdrawals, the amount of Roberts’s inheritance that was withdrawn
within one month, and the checks made to defendant and his son were attributable to defendant’s
conduct. The jury did not need to resort to speculation or conjecture in order to find that the
amount defendant took from Roberts met the statutory requirements of MCL 750.174a(6)(a).

                                B. PROSECUTORIAL ERROR

        Defendant next argues that the prosecution erred when, during its closing argument, it
called defendant a “con man” or “confidence man”1 before comparing defendant’s relationship
with Roberts to that of a predator of the Serengeti Plains and its old or sick prey. To preserve a
claim of prosecutorial error, a defendant must timely and specifically object before the trial
court, unless objection could not have cured the error. People v Brown, 294 Mich App 377, 382;
811 NW2d 531 (2011). In the instant case, defendant did not object to any of the prosecutor’s
comments made during closing arguments. Accordingly, the issue is unpreserved.

        “Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting
substantial rights.” Id. Plain error is error that is clear or obvious. People v Jones, 468 Mich
345, 355; 662 NW2d 376 (2003). To show that a plain error affected substantial rights, “there
must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court
proceedings.” Id. at 356. The defendant bears the burden of persuasion on the issue of
prejudice. See id. Reversal is only warranted when such error resulted in the conviction of an
innocent defendant or when the error “seriously affected the fairness, integrity, or public
reputation of the judicial proceedings independent of the defendant’s innocence.” Id. at 355.

        The pertinent question in reviewing claims of prosecutorial error is whether the
prosecutor committed errors that deprived the defendant of a fair and impartial trial. People v
Cooper, 309 Mich App 74, 88; 867 NW2d 452 (2015). “Generally, [p]rosecutors are accorded
great latitude regarding their arguments and conduct.” Id. at 90 (quotation marks and citations
omitted). They may argue the evidence and all reasonable inferences from the evidence. People



1
  He also alleges that the prosecutor called him a “bad man” during closing argument, but the
record does not support this assertion.


                                               -7-
v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). A prosecutor may not appeal to the
jury to sympathize with the victim. Id. at 237. However, the prosecutor need not speak in the
“blandest of all possible terms.” People v Blevins, 314 Mich App 339, 355; 886 NW2d 456
(2016) (quotation marks and citation omitted).

       We note that in referring to defendant as a “con man,” the phrase was directly related to
the prosecutor’s theory of the case and did not address defendant’s criminal history. The term
was reflective of the prosecution’s theory that defendant exploited Roberts’s vulnerability by
gaining his confidence and obtaining a large sum of money from his account, a theory that was
supported by the evidence.

       Defendant also contends that the prosecutor committed misconduct by calling defendant
a “predator.” The Sixth Circuit has concluded that even repeated use of the term “predator”
during a prosecutor’s closing arguments may not deprive a party of a fair trial. Byrd v Collins,
209 F3d 486, 536 (CA 6, 2000). Overall, the record shows that the prosecutor was arguing a
reasonable inference from the evidence. Unger, 278 Mich App at 236. The mere use of the term
“predator” does not persuade us that reversal is warranted.

        Defendant asserts that the prosecutor improperly appealed to the jurors’ sympathies with
the “predator and prey” comment. While the prosecution made a colorful analogy, there is no
indication that he argued facts that were not in evidence or that the comment mischaracterized
the evidence. The analogy appeared to simply reflect the prosecution’s theory of the case on the
basis of the evidence presented. Roberts was at an advanced age when he first met defendant,
and the jury was able to witness firsthand his scattered, inarticulate testimony. There was a great
deal of evidence suggesting that defendant took advantage of Roberts’s vulnerable status to
defraud him of over $50,000. Characterizations of this kind do not constitute prosecutorial error
when they are based on facts in evidence and the reasonable inferences arising therefrom. See
id. Further, defendant has failed to show that, if the prosecution’s analogy did constitute
prosecutorial error, it resulted in the conviction of an innocent man or “seriously affected the
fairness, integrity, or public reputation of the judicial proceedings independent of the defendant’s
innocence.” See Jones, 468 Mich at 355.

       Defendant also argues that the prosecution improperly vouched for the credibility of its
witnesses and implied that it had some special knowledge of the facts by stating that

               if the Department of Human Services looked at Jack’s financials and
       condition at the time and determined that he was not in need of Adult Protective
       Services that would have been just as wrong as [an umpire incorrectly calling a
       baseball pitch]. And if that happened, the State Police wouldn’t have gotten
       involved. There would never have been an investigation. We wouldn’t be here
       talking about it. But DHS did make the right call. They called a strike a strike.
       They determined that Jack Roberts was vulnerable, in need of Protective Services,
       and so here we are.

 “A prosecutor may not vouch for the credibility of witnesses by claiming some special
knowledge with respect to their truthfulness.” People v McGhee, 268 Mich App 600, 630; 709
NW2d 595 (2005). Likewise, the prosecutor may not suggest that the government, in general,

                                                -8-
has any special knowledge of the facts. People v Howard, 226 Mich App 528, 548; 575 NW2d
16 (1997). A prosecutor may, however, argue that a witness should be believed on the basis of
the facts in evidence. McGhee, 268 Mich App at 630. In this case, the prosecution did not
suggest that it had some special knowledge of the facts or that the DHHS or Michigan State
Police had any such knowledge. Rather, the prosecution merely provided an accurate summary
of the procedure that led to these proceedings and indicated that, based on the facts, the DHHS
made the correct decision regarding the case. It is true that the police became involved in the
case because of the service specialist’s referral, and that a criminal investigation followed.
However, this does not inherently imply that these government entities had special knowledge of
defendant’s guilt beyond the facts as recapped by the prosecution. At any rate, even if the
prosecution’s argument was improper, defendant has not shown that the error would have
resulted in the conviction of an innocent man or “seriously affected the fairness, integrity, or
public reputation of the judicial proceedings independent of the defendant’s innocence.” See
Jones, 468 Mich at 355.

        Moreover, the trial court instructed the jury only to consider appropriate evidence, and
included specific warnings not to give any weight to arguments made by counsel. Defendant has
not addressed why this did not cure any prejudicial effect. See People v Thomas, 260 Mich App
450, 455; 678 NW2d 631 (2004). Defendant has not demonstrated prosecutorial error
warranting reversal and has not demonstrated any outcome-determinative error for purposes of
his claim of ineffective assistance of counsel. See People v Trakhtenberg, 493 Mich 38, 51; 826
NW2d 136 (2012) (discussing the standards for an ineffective-assistance claim).

                            C. SCORING OF OFFENSE VARIABLES

        Defendant argues, in a supplemental brief, that the trial court erred in assessing him 10
points for Offense Variable (OV) 14 and an additional 10 points for OV 19.2 This Court reviews
factual determinations regarding the scoring of OVs for clear error. People v Hardy, 494 Mich
430, 438; 835 NW2d 340 (2013). Such factual determinations must be supported by a
preponderance of the evidence. Id. Clear error occurs “when the reviewing court is left with a
definite and firm conviction that a mistake has been made.” Yono v Carlson, 283 Mich App 567,
569; 770 NW2d 400 (2009) (quotation marks and citation omitted). The application of the facts
to the law is a matter of statutory interpretation, which the Court reviews de novo. Hardy, 494
Mich at 438.

        MCL 777.49(c) states that OV 19 is to be assessed 10 points when “[t]he offender
otherwise interfered with or attempted to interfere with the administration of justice.” This Court
has held that the plain meaning of the phrase “interfere with the administration of justice” for
purposes of OV 19 is “to oppose so as to hamper, hinder, or obstruct the act or process of
administering judgment of individuals or causes by judicial process.” People v Hershey, 303
Mich App 330, 343; 844 NW2d 127 (2013). The Court has interpreted this language broadly,
stating that it contemplates “ ‘[c]onduct that occurs before criminal charges are filed,’ acts that


2
    Defendant raised the OV issues in a motion to remand filed in this Court.


                                                 -9-
constitute obstruction of justice, and acts that do not ‘necessarily rise to the level of a chargeable
offense . . . .’ ” Id., quoting People v Barbee, 470 Mich 283, 287-288; 681 NW2d 348 (2004).
Conduct that has been found to constitute an interference or attempted interference with the
administration of justice includes:

          providing a false name to the police, threatening or intimidating a victim or
          witness, telling a victim or witness not to disclose the defendant’s conduct, fleeing
          from police contrary to an order to freeze, attempting to deceive the police during
          an investigation, interfering with the efforts of store personnel to prevent a thief
          from leaving the premises without paying for store property, and committing
          perjury in a court proceeding. [Hershey, 303 Mich App at 344.]

        The presentence investigation report states the following regarding a restitution hearing
held after defendant’s plea:3

                   The defendant’s own testimony in court at the evidentiary hearing was in
          regards to a specific transaction in which $11,400 was withdrawn by the victim,
          with the defendant stating he received $1,400 and the remaining $10,000 was
          given to the victim’s girlfriend. A letter from a Charlene Schreiber contradicts
          this testimony as being truthful or factual. Mrs. Schreiber in her letter reflects that
          she did meet the defendant on that occasion, but she was not the recipient of any
          monies from the victim on that occasion. The defendant testified to this occurring
          in an attempt to account for the monies and lessening his own culpability . . . .
          [I]n the [courtroom] environment [this] is clearly an attempt to interfere with the
          administration of justice.

The record adequately supports this recitation of the circumstances. At the restitution hearing,
defendant testified, regarding the $11,400 in question, that Roberts “took” $10,000 in cash from
this sum “to Charlene” and defendant retained $1,400. Defendant testified that Roberts was
“fronting a lot of money to Charlene” and “didn’t want people to know about it.” In her letter,
Schreiber stated that she never received large sums of cash from Roberts, “either directly from
him or through a third party.” “It is undisputed that perjury provides a basis for scoring OV 19,”
People v Underwood, 278 Mich App 334, 338; 750 NW2d 612 (2008), even, in fact, in a
prosecution for perjury itself, id. at 339-340. Defendant argued below that he did not lie at the
hearing because his testimony did not encompass an actual observation of Roberts handing the
money to Schreiber. Given the standard of review, however, see Hardy, 494 Mich at 438, and
given that OV 19 can be scored based on conduct not necessarily rising to the level of a
chargeable offense, see Hershey, 303 Mich App at 343, there is no basis for reversal. We note,
too, that although the testimony in question occurred after defendant’s later-withdrawn plea and
before trial, it nonetheless related to the conduct forming the basis for the instant conviction.
There was adequate evidence that defendant attempted to interfere with the administration of




3
    He later withdrew the plea, which is why the case proceeded to trial.


                                                   -10-
justice in connection with the unlawful acts forming the basis of his conviction. Accordingly, we
find no basis for overturning the scoring of OV 19.

         Violations of MCL 750.174a(6)(a) are class C felonies. MCL 777.16i. Defendant was
initially assessed 80 points under the applicable prior record variables (PRVs) and 45 points
under the pertinent OVs. If OVs were assessed incorrectly, but the guidelines range is not
altered as a result, resentencing is not required. People v Francisco, 474 Mich 82, 89 n 8; 711
NW2d 44 (2006). Even assuming, without deciding, that OV 14 should have been assessed zero
points instead of 10 points, this scoring change would not alter the guidelines range. Indeed,
without the 10 points stemming from the scoring of OV 14, and applying the fourth-offense
habitual offender enhancement, see MCL 777.21(3)(c), the guidelines would remain at 50 to 200
months. MCL 777.64. As such, resentencing is not required.

       Affirmed.



                                                           /s/ Patrick M. Meter
                                                           /s/ Michael F. Gadola
                                                           /s/ Jonathan Tukel




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