People v. Carlson

• Decision Date: 25 June 2020
• Docket Number: No. 344674,344674
• Citation: 958 N.W.2d 278,332 Mich.App. 663
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Scott CARLSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

332 Mich.App. 663

958 N.W.2d 278

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Daniel Scott CARLSON, Defendant-Appellant.

No. 344674

Court of Appeals of Michigan.

Submitted June 9, 2020, at Lansing.

Decided June 25, 2020, 9:05 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Christopher M. Allen, Assistant Solicitor General, for the people.

Carole M. Stanyar, Plymouth, for defendant.

Before: Borrello, P.J., and Ronayne Krause and Riordan, JJ.

Per Curiam.

Following a jury trial, defendant was convicted of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(c) (penetration of a physically helpless person), and sentenced to 5 to 15 years of imprisonment. Defendant appeals by right and challenges only his sentence. We affirm.

I. FACTS

Defendant was a member of the State Bar of Michigan and was a manager of the Tullymore Resort in Mecosta County prior to his conviction in this matter. The victim, AA, knew defendant through her career in real estate and attended a Halloween party at the resort in 2016. In the hours after that party, defendant digitally penetrated the victim's vagina while she was so intoxicated that she could not speak, move, or feel.

II. ANALYSIS

Defendant argues that Offense Variable (OV) 9, OV 10, and OV 13 were improperly scored and that the trial court imposed an unreasonable and disproportionate sentence when it departed from the guidelines range. We disagree.

A. STANDARDS OF REVIEW

"Under the sentencing guidelines, a trial court's findings of fact are reviewed for clear error and must be supported by a preponderance of the evidence." People v. Thompson , 314 Mich. App. 703, 708, 887 N.W.2d 650 (2016). We review de novo whether the facts as found were adequate to satisfy the statutory scoring conditions. Id. A trial court's findings of fact are clearly erroneous if, after reviewing the entire record, we are definitely and firmly convinced that the trial court made a mistake. People v. Armstrong , 305 Mich. App. 230, 237, 851 N.W.2d 856 (2014). A sentence departing from the guidelines range is reviewed for reasonableness. People v. Lockridge , 498 Mich. 358, 392, 870 N.W.2d 502 (2015). "[T]he proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the principle of proportionality set forth in People v. Milbourn , 435 Mich. 630, 636, 461 N.W.2d 1 (1990), which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v. Steanhouse , 500 Mich. 453, 459-460, 902 N.W.2d 327 (2017) (quotation marks omitted).

B. OFFENSE VARIABLE 10

Defendant argues that the trial court improperly assessed 15 points for OV 10 because no predatory conduct was involved. We disagree.

MCL 777.40(1)(a) provides that 15 points should be assessed for OV 10 if "[p]redatory conduct was involved[.]"¹ "Predatory conduct" is defined as "preoffense conduct directed at a victim ... for the primary purpose of victimization." MCL 777.40(3)(a). In People v. Cannon , 481 Mich. 152, 162, 749 N.W.2d 257 (2008), our Supreme Court set forth the following framework for determining whether 15 points should be assessed for OV 10:

(1) Did the offender engage in conduct before the commission of the offense?

(2) Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation?

(3) Was victimization the offender's primary purpose for engaging in the preoffense conduct?

There was ample evidence that AA was extremely intoxicated on the evening of the party, and therefore, she had a "readily apparent susceptibility to injury[.]" Id. In addition, testimony indicated that defendant, late into the night, lingered around the condominium units where AA and her now-husband, JO, were staying.²

This lingering was preoffense conduct. Id. And a reasonable inference from the summary of JO's interview in the presentence-investigation report (PSIR) is that defendant was looking at AA in the shower, naked, before the assault. See People v. McChester , 310 Mich. App. 354, 358, 873 N.W.2d 646 (2015) ("When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a preliminary examination."); see also People v. Earl , 297 Mich. App. 104, 109, 822 N.W.2d 271 (2012), aff'd 495 Mich. 33, 845 N.W.2d 721 (2014) ("The trial court may rely on reasonable inferences arising from the record evidence to sustain the scoring of an offense variable."). This "naked gazing" was further preoffense conduct. A further reasonable inference from all the evidence as a whole was that victimization was defendant's primary purpose for engaging in the preoffense conduct. Cannon , 481 Mich. at 162, 749 N.W.2d 257. Thus, all the Cannon factors were satisfied.

In People v. Huston , 489 Mich. 451, 461-462, 802 N.W.2d 261 (2011), the Court stated that predatory conduct for purposes of OV 10 involves the creation or enhancement of a victim's vulnerability and involves something more than "run-of-the-mill planning," such as lying in wait or stalking. The evidence in this case indicated that defendant was, in practical effect, "lying in wait" to target a drunken woman—either AA or her friend, MF, who was staying upstairs from AA and JO and explained that defendant engaged in an inappropriate encounter with her while she was intoxicated and barely dressed.³ This conduct is analogous to that of the defendant in Huston who was hiding in a parking lot looking for someone to rob. Id. at 463, 802 N.W.2d 261. Accordingly, there is no basis for overturning the 15-point score for OV 10.

C. OFFENSE VARIABLE 13

Defendant also argues that the trial court improperly assessed 25 points for OV 13 because there was insufficient evidence of three crimes against a person to establish a pattern of felonious activity. We disagree.

OV 13 deals with a "continuing pattern of criminal behavior." MCL 777.43(1). MCL 777.43(1)(c) provides for a score of 25 points if "[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person[.]" "[A]ll crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction." MCL 777.43(2)(a).

The court assessed 25 points for OV 13, stating that there were additional pending charges against defendant and evidence of a sexual touching in Mount Pleasant for which defendant had not been charged. Defendant does not contest that there was sufficient evidence of two crimes against a person based on the offense against AA and the charges filed in connection with another alleged victim. Rather, defendant argues that the Mount Pleasant incident mentioned by the trial court, which did not result in any charges, could not properly be used to support the court's 25-point score.

The Mount Pleasant incident was described during a pretrial hearing regarding other-acts evidence. A woman, AV, testified that in 2016 or 2017, she encountered defendant at a nightclub in Mount Pleasant. AV testified that she asked defendant about obtaining a job and he intentionally touched her vagina over her jeans. AV said that she did not want the touching.

AV's testimony was adequate to show, at least by a preponderance of the evidence, that defendant committed fourth-degree criminal sexual conduct (CSC-IV) against her by engaging in sexual contact with her through the element of surprise. MCL 750.520e(1)(b)(v ) ; MCL 750.520a(q). Defendant contends that even if a crime occurred against AV, it would only be a misdemeanor and not pertinent for the scoring of OV 13. It is true that MCL 750.520e(2) states that CSC-IV "is a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $500.00, or both."

However, the sentencing guidelines are part of the Code of Criminal Procedure, MCL 760.1 et seq. MCL 761.1(f) defines "felony" for purposes of that act as "a violation of a penal law of this state for which the offender, upon conviction, may be punished by imprisonment for more than 1 year or an offense expressly designated by law to be a felony." Because CSC-IV is punishable by up to two years of imprisonment, the Mount Pleasant incident was felonious criminal activity for purposes of scoring the sentencing guidelines, and the trial court properly relied on the Mount Pleasant incident in scoring OV 13.⁴

D. OFFENSE VARIABLE 9

Defendant further argues that the trial court improperly assessed 10 points for OV 9 because defendant did not place MF in danger of physical injury when he committed CSC-III against AA. We disagree.

MCL 777.39(1)(c) states, in pertinent part, that a score of 10 points is appropriate for OV 9 if "[t]here were 2 to 9 victims who were placed in danger of physical injury...." Each person who was placed in danger of physical injury is to be counted as a victim. MCL 777.39(2)(a). At sentencing, defense counsel argued that at the time of the assault on AA, nobody else was present in the room and therefore nobody else was placed in danger of any injury. The trial court assessed 10 points for the variable, stating that MF was placed in danger of injury while in the bathroom vomiting.

In People v. Sargent , 481 Mich. 346, 350, 750 N.W.2d 161 (2008), the Supreme Court stated, "[W]hen scoring OV 9, only people placed in danger of injury or loss of life when the sentencing offense was committed (or, at the most, during the same criminal transaction) should be considered." As an example, the Sargent Court referred to a robbery during which "other individuals present at the scene of the robbery ... were placed in danger of injury or loss of life." Id. at 350-351 n. 2, 750 N.W.2d 161. The Court concluded that an additional sexual assault allegedly committed by the defendant did...