People v. Day, Docket No. 102133
| Decision Date | 11 August 1988 |
| Docket Number | Docket No. 102133 |
| Citation | 169 Mich.App. 516,426 N.W.2d 415 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifford DAY, Defendant-Appellant. 169 Mich.App. 516, 426 N.W.2d 415 |
| Court | Court of Appeal of Michigan — District of US |
[169 MICHAPP 516] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Division, and Mary Sue Czarnecki, Asst. Pros. Atty., for the People.
Douglas Hamel and Frank Singer, Detroit, for defendant-appellant on appeal.
Before McDONALD, P.J., and KELLY and LaVOY, * JJ.
Following defendant's plea of guilty in two separate cases to bank robbery, M.C.L. Sec. 750.531; M.S.A. Sec. 28.799, and armed robbery, M.C.L. Sec. [169 MICHAPP 517] 750.529; M.S.A. Sec. 28.797, defendant was sentenced to concurrent prison terms of from fifteen to forty years on each charged offense. Defendant appeals from his sentences as of right. We affirm.
On appeal defendant claims that the sentencing judge erred in calculating the sentencing guidelines recommended sentence. Specifically defendant claims error in the assessment of four points for offense variable one, "weapon: presence, type and use" and two points for offense variable six, "multiple victims."
A sentencing judge has discretion in determining the number of points to be scored for any OVs in the sentencing guidelines provided there is evidence on the record which adequately supports a particular score. People v. Jannifer Williams, 147 Mich.App. 1, 382 N.W.2d 191 (1985). In the instant case defendant admitted to the use of a toy gun while committing the bank robberies. The sentencing guidelines robbery offense variable defines a firearm as "an operational or a non-operational firearm, or any instrument fashioned to reasonably appear to be a firearm." Thus, as the evidence indicated that defendant pointed the firearm at a victim, the sentencing judge was within his discretion in assessing defendant four points under OV1.
We also find no abuse of discretion in the sentencing judge's assessment of two points for OV6, multiple victims. We do not believe "victims" for purposes of this variable are limited to those from whom the defendant takes property. Here, in the event of police or other third party apprehension intervention, each individual in the bank at the time of the robbery was a victim subject to possible injury or death.
Affirmed.
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