                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 14, 2014
                 Plaintiff-Appellee,

v                                                                    No. 316176
                                                                     Oakland Circuit Court
DAVID ANDREW MATHER,                                                 LC No. 2012-242743-FH

                 Defendant-Appellant.


Before: CAVANAGH, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant appeals as of right from his jury conviction for aggravated stalking, MCL
750.411i, and his sentence of 43 months to 10 years in prison. We affirm, but remand for the
ministerial task of correcting defendant’s current presentence investigation report (PSIR).

        Defendant and JE1 began a dating relationship in July 2011, but that changed in
September 2011 when the relationship became violent. Defendant was incarcerated twice,
resulting in a no-contact order between defendant and JE. Defendant was released from jail on
June 25, 2012. On June 29, 2012, he began text messaging JE. He sent numerous text messages,
some threatening and some that included pictures of him naked. Defendant was arrested on July
25, 2012, and subsequently found guilty of aggravated stalking.

       On appeal, defendant argues that there was insufficient evidence to support his conviction
of aggravated stalking. We disagree.

       This Court reviews de novo challenges to the sufficiency of the evidence. People v
Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). The evidence is reviewed in a light
most favorable to the prosecution to determine whether a trier of fact could find that the essential
elements of the crime were proved beyond a reasonable doubt. People v Reese, 491 Mich 127,
139; 815 NW2d 85 (2012).




1
    To protect the victim’s privacy, we refer to her as “JE.”


                                                   -1-
        To prove aggravated stalking, the prosecution must establish that stalking occurred under
an aggravating circumstance. MCL 750.411i(2). Defendant does not contest that he contacted
JE in violation of a no-contact order, which was an aggravating circumstance. MCL
750.411i(2)(a). Instead, he denies that stalking was established. Stalking is defined as “a willful
course of conduct involving repeated or continuing harassment of another individual that would
cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or
molested and that actually causes the victim to feel terrorized, frightened, intimidated,
threatened, harassed, or molested.” MCL 750.411i(1)(e). “Harassment” includes “continuing
unconsented contact that would cause a reasonable individual to suffer emotional distress and
that actually causes the victim to suffer emotional distress.” MCL 750.411i(1)(d). Defendant
argues that the prosecution failed to establish unconsented contact or that JE actually felt
terrorized, frightened, intimidated, threatened, harassed, or molested.

        “‘Unconsented contact’ means any contact with another individual that is initiated or
continued without that individual’s consent or in disregard of that individual’s expressed desire
that the contact be avoided or discontinued.” MCL 750.411i(1)(f). Defendant presented
evidence that he had consensual contact with JE, in violation of the no-contact order, until
around May 1, 2012. However, defendant was charged with unconsented contact between June
29, 2012, and July 25, 2012. JE testified that at a May 2012 hearing to rescind the no-contact
order, at which defendant was present, the prosecutor read her statement aloud in court that she
did not want contact with defendant. There was no evidence that she consented to contact after
that. Defendant was incarcerated until June 25, 2012, and he began texting JE on June 29, 2012.
JE testified that she did not respond to these texts and did not wish to receive them. Viewing the
evidence in a light most favorable to the prosecution, a trier of fact could find beyond a
reasonable doubt that the text messages constituted unconsented contact.

        The prosecution also established that JE actually felt terrorized, frightened, intimidated,
threatened, harassed, or molested by the text messages. JE testified that the naked photographs
defendant sent made her feel very uncomfortable. She did not want defendant to know where
she was living, and receiving text messages from him made her feel scared that defendant was
going to find her. She testified that the messages were overwhelming and made her
uncomfortable, and that she sought counseling. Viewing that testimony in a light most favorable
to the prosecution, a trier of fact could find beyond a reasonable doubt that JE felt terrorized,
frightened, intimidated, threatened, harassed, or molested.

        Defendant also argues that JE’s testimony was not credible because of discrepancies in
her testimony and because her testimony was impeached. However, a witness’s credibility is a
matter of weight and not sufficiency; credibility determinations are a matter for the jury and not
for this Court. People v Scotts, 80 Mich App 1, 9; 263 NW2d 272 (1977). We will not disturb
the jury’s determination that JE’s testimony was credible.

        Next, defendant argues that he was denied a fair trial because evidence was admitted in
violation of MRE 404(b), and his counsel was ineffective for failing to object to that evidence;
thus, his motion for a new trial should have been granted. We disagree.

       A trial court’s decision on a motion for new trial is reviewed for an abuse of discretion.
People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). Our review of unpreserved claims

                                                -2-
of ineffective assistance of counsel is limited to errors apparent on the record. People v Davis,
250 Mich App 357, 368; 649 NW2d 94 (2002). “In order to obtain a new trial, a defendant must
show that (1) counsel’s performance fell below an objective standard of reasonableness and (2)
but for counsel’s deficient performance, there is a reasonable probability that the outcome would
have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).

       Defendant argues that JE impermissibly testified that her relationship with defendant
eventually changed when they “had some problems that kind of escalated and got violent.” And
Deputy Freiberg impermissibly testified that defendant had a prior “domestic case” involving JE.
Defendant argues that such testimony was inadmissible under MRE 404(b)(1), which provides:

               Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, opportunity,
       intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
       or absence of mistake or accident when the same is material, whether such other
       crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
       conduct at issue in the case.

       The prosecution argues that the statements were admissible as res gestae evidence to
show JE’s fear of defendant and that her fear was reasonable in light of their violent history. We
agree. Res gestae evidence is properly admitted to provide background to jurors and allow them
to examine the full transaction; evidence of other crimes is admissible when it explains the
circumstances of the charged offense. People v Malone, 287 Mich App 648, 662; 792 NW2d 7
(2010). Here, as discussed above, to prove the crime of aggravated stalking the prosecutor had
to show that a reasonable person would feel frightened, threatened, harassed or molested by
defendant’s behavior. The evidence was admitted to show that JE’s fear of defendant was
reasonable and that his threats against her were credible. And the testimony was not so extensive
or detailed as to be overly prejudicial. Therefore, the evidence was properly admitted.
Accordingly, defendant’s claim that his counsel was ineffective for failing to object to JE’s and
Deputy Freiberg’s testimony is without merit. People v Horn, 279 Mich App 31, 39-40; 755
NW2d 212 (2008).

       Further, we reject defendant’s argument that the picture of his penis should have been
excluded under MRE 404(b). The photograph was not “other acts evidence.” The texting of the
photograph was part of the charged crime. The evidence was also not impermissible under MRE
403, which provides that “evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .” The photograph was probative of whether
JE reasonably felt threatened or intimidated by the communication. All probative evidence is
prejudicial and defendant has failed to establish that its probative value was substantially
outweighed by the danger of unfair prejudice.

       Next, defendant argues that he should be resentenced. Defendant did not object at
sentencing to the assessment of 10 points for OV 10, but raised the issue in a motion for
resentencing. A defendant does not waive his right to appellate review of scoring errors where
he challenged the errors in a motion for resentencing. MCL 769.34(10); People v Hershey, 303
Mich App 330, 354; 844 NW2d 127 (2013). “Under the sentencing guidelines, the circuit

                                               -3-
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).
“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.” Id.

       OV 10 concerns the “exploitation of a vulnerable victim.” MCL 777.40(1). Defendant
was assessed 10 points for OV 10, which is appropriate where “[t]he offender exploited a
victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or
the offender abused his or her authority status.” MCL 777.40(1)(b). Because there was no
evidence of physical or mental disability, youth or agedness, or authority status, the assessment
of 10 points must have been based upon a domestic relationship. “Domestic relationship” is not
defined by MCL 777.40. However, this Court has found that, under OV 10, there must be a
“familial” or “cohabiting” relationship to “qualify as a domestic relationship.” People v
Jamison, 292 Mich App 440, 446-447; 807 NW2d 427 (2011). MCL 777.40(3)(b) provides that
the word “exploit” as used in OV10 “means to manipulate a victim for selfish or unethical
purposes.”

        There was testimony that defendant and JE lived together for two weeks in the summer of
2011, but defendant maintained his own apartment. There was no evidence that defendant was
able to manipulate JE because of their former brief cohabitation. Defendant did not manipulate
JE; he sent text messages and made telephone calls to which she did not respond. Because
defendant and JE lived together for such a brief time period and there was no evidence of
manipulation, the trial court clearly erred in finding that OV 10 was established by a
preponderance of the evidence. However, the error was harmless where the scoring of OV 10 at
zero points would not have changed the guidelines range, as defense counsel acknowledged at
the hearing on defendant’s motion for resentencing. See People v Mutchie, 468 Mich 50, 52;
658 NW2d 154 (2003) (holding that even if error occurred in assessing offense variable points,
the Court need not address the issue on appeal where correcting the error would not change the
defendant’s sentence).

        Defendant also argues that he is entitled to resentencing because the trial court considered
the PSIR from his prior domestic violence conviction, which was the basis of the no-contact
order between defendant and JE. The prior PSIR was attached to the PSIR in this matter.
Defendant argued in his motion for resentencing, and argues on appeal, that the information in
the prior PSIR was inaccurate. Defendant pleaded no contest to the earlier charges.

        A trial court’s ruling on claimed inaccuracies in a PSIR is reviewed for an abuse of
discretion. People v Spanke, 254 Mich App 642, 648; 658 NW2d 504 (2003). Factual findings
are reviewed for clear error. Hardy, 494 Mich at 438. The Spanke Court described the
procedure for dealing with challenges to the accuracy of a PSIR:

              The sentencing court must respond to challenges to the accuracy of
       information in a presentence report; however, the court has wide latitude in
       responding to these challenges. The court may determine the accuracy of the
       information, accept the defendant’s version, or simply disregard the challenged
       information. Should the court choose the last option, it must clearly indicate that

                                                -4-
       it did not consider the alleged inaccuracy in determining the sentence. If the court
       finds the challenged information inaccurate or irrelevant, it must strike that
       information from the PSIR before sending the report to the Department of
       Corrections. [Spanke, 254 Mich App at 648-649 (citations omitted).]

        In ruling on defendant’s motion for resentencing, the trial court stated that, although it
reviewed the information in the earlier PSIR, the court vividly recalled the trial in this matter and
was not persuaded by that information in sentencing defendant. Instead, the trial court stated that
it considered defendant’s prior record and the victim’s impact statement in which JE indicated
that she was terrified of defendant and believed he would kill her if he was released.

       It appears that the allegedly inaccurate information contained in the prior PSIR, and
attached to the current PSIR, was not considered in sentencing defendant in this matter.
Therefore, resentencing is not required. However, the trial court was required by MCR
6.425(E)(2)(a) to strike the prior PSIR from the current PSIR, which did not happen. See Spanke,
254 Mich App at 648-649. Accordingly, we remand this matter for the trial court to complete
the ministerial task of correcting the current PSIR and sending an amended copy to the
Department of Corrections.

        Defendant also argues that the trial court erred by failing to inquire if he and his attorney
had the opportunity to review the PSIR. MCR 6.425(E)(1)(a) requires the trial court at
sentencing to determine, on the record, that the defendant, the defendant’s counsel, and the
prosecutor have had an opportunity to read and review the presentence report. However, “an
error or defect in anything done or omitted by the court” is not a ground for disturbing an order
or judgment “unless refusal to take this action appears to the court inconsistent with substantial
justice.” MCR 2.613(A).

        It appears here that defense counsel had the opportunity to review the PSIR based on the
prosecutor’s statement at sentencing that the attorneys had discussed the matter. It is not clear
that defendant had the opportunity to review the PSIR before sentencing. However, even if
defendant did not have the opportunity to review the PSIR before sentencing, he had that
opportunity before filing a motion for resentencing. The only challenges defendant raised to the
current PSIR were the scoring of OV 10 and the alleged inaccuracy of the prior PSIR. As
previously discussed, the trial court did not consider the prior PSIR in sentencing defendant,
therefore, denying defendant’s request for resentencing premised on the trial court’s failure to
make the requisite inquiry is not inconsistent with substantial justice.        Further, affirming
defendant’s sentence is not inconsistent with substantial justice because the scoring of OV10 did
not change the sentencing guidelines.

      Affirmed, but remanded for the ministerial task of correcting defendant’s current PSIR.
We do not retain jurisdiction.

                                                              /s/ Mark J. Cavanagh
                                                              /s/ Kathleen Jansen
                                                              /s/ Amy Ronayne Krause




                                                -5-
