People v. Hunt

• Decision Date: 19 October 2010
• Docket Number: Docket No. 292639.
• Citation: 290 Mich.App. 317,810 N.W.2d 588
• Parties: PEOPLE v. HUNT.
• Court: Court of Appeal of Michigan — District of US

290 Mich.App. 317

810 N.W.2d 588

PEOPLE

v.HUNT.

Docket No. 292639.

Court of Appeals of Michigan.

Submitted Oct. 13, 2010, at Detroit.Decided Oct. 19, 2010, at 9:05 a.m.

Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Lori Baughman Palmer, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Desiree M. Ferguson) for defendant.

Before: MURRAY, P.J., and KIRSTEN FRANK KELLY and DONOFRIO, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of kidnapping, MCL 750.349, two counts of assault with a dangerous weapon (felonious assault), MCL 750.82, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to concurrent prison terms of 15 to 30 years for kidnapping and 1 to 4 years for felonious assault, and a consecutive 2–year term for felony-firearm. Defendant's sole challenge on appeal is his sentencing. We affirm defendant's convictions; however, because the trial court erred when it assessed 50 points for offense variable (OV) 7, we vacate defendant's sentence for kidnapping and remand for resentencing in accordance with this opinion.

I. FACTS

This case arises from a kidnapping at gunpoint that occurred on June 7, 2008, in Detroit. On the date in question, Sierra Burton and her ex-boyfriend, Jonathan Broadus, were at a house on Audubon in Detroit. Burton testified that at about 6:00 p.m., during a child's birthday party, defendant, Richard Harden, and Darnell Chapell ran into the house with guns. Defendant and Chapell had handguns, and Harden had a long gun or assault rifle. According to Burton, all three men directed Burton and Broadus to go downstairs at gunpoint. Broadus's testimony was conflicting with regard to whether defendant was present at this time and, if he was present, whether he had a gun. Harden and Chapell then began asking about the whereabouts of Harden's distinctive purple Caprice Classic, which had been stolen. It appeared to Burton that Broadus seemed to know about the missing Caprice. Burton testified that at some point she attempted to use a cell phone, but defendant “snatched” it. Burton also stated that when defendant took the phone, defendant's gun was “just in his hand” and not pointed at her, though she felt scared. Broadus testified that Harden hit him with the assault rifle.

After about two minutes in the basement, the men led Burton and Broadus out of the basement and then out of the house. The men walked Burton and Broadus to Chapell's apartment in a house at the corner of Audubon and Warren. Inside, the men kept asking where the car was in an “aggressive” manner, and Burton perceived it as a threat. Harden did most of the questioning. After Broadus told the men something about the car, the men escorted them outside into two cars. Defendant, Chapell, and Harden all had their guns at this time. They drove to a house on Lakeview. When they arrived, about five strangers were on the porch. Harden jumped out of the car and asked them about the location of his car. Defendant stayed in the car. Harden then started shooting at a boy on the porch, and the boy ran inside. No one else fired shots or got out of the cars.

Both cars left the house and drove to an abandoned house on Beaconsfield, about three minutes away. Everyone went inside, but then Harden and defendant went to get another car. Burton, Broadus, and Chapell waited in the vacant house for them to return. Chapell still had his gun. After about 30 minutes, defendant and Harden returned. Burton, Broadus, defendant, Chapell, and Harden all piled into a white truck and returned to Chapell's apartment on Audubon. Harden ran into the apartment, while defendant and Chapell stayed in the truck with Burton and Broadus. While Burton did not see defendant or Chapell with a gun at this time, she did not feel free to leave because Chapell said, “Don't move.” Harden then came out and told them to come inside. When they went in, Harden again starting asking Broadus about the car. Harden tied Broadus's and Burton's hands behind their backs with a telephone cord, shoestrings, and an extension cord. Broadus answered questions about the car, but then a man named “Black” came in and beat Broadus with his fists. Broadus said that he had seen “Monk” driving the car.

Next, defendant, Harden, and Chapell took Burton and Broadus on a ride to another street looking for Harden's stolen Caprice, a man named Courtney Gillon, known as “Monk,” or Gillon's house. They did not find Gillon's house and returned to Chapell's apartment. While there, Chapell called Broadus's and Burton's families and told them to tell their parents that they were all right. Chapell and Broadus did so, speaking to Broadus's nephew. At this point Burton and Broadus were still tied up and Harden still had a gun. After about an hour or two, Harden and Chapell untied them. Defendant was sitting at a table. Black then walked Burton to Black's house around the corner on Courville, where they waited for defendant, Harden, and Chapell to bring Broadus.

Defendant, Harden, Chapell, and Broadus went to pick up Michael Webster and his sister, Unique Webster, from a house on Drexel. When they got to Michael Webster's house, Harden held the gun to Broadus's back and they walked into the house. One of the other men was also carrying a gun. The assailants forced the Websters and Broadus into a Suburban. Later, they all returned to the house on Courville. Unique Webster was Gillon's girlfriend, and she said that Gillon lived at a house on Bluehill. Everyone got back into the Suburban and drove to Bluehill.

At the house on Bluehill, Chapell and Harden walked Unique Webster to the side door, where she knocked. Defendant stayed in the car with Burton, Broadus, and Michael Webster. Gillon answered the door. Harden then “[g]rabbed him by his arms” and “snatched him out [of] the house.” Chapell and Harden were holding handguns and fired shots into the ground. They pushed Gillon into the truck with defendant, Burton, and Broadus.

Next, they returned to Chapell's apartment, and someone phoned Black. Black returned, and he, Chapell, and Harden beat Gillon using “[s]hoestrings, telephone cords, extension cords, chairs.” The beating lasted about 30 to 45 minutes. Defendant was in the other room with Burton, Broadus, Michael Webster, and Unique Webster. Defendant did not appear to be armed at this time, but again, neither Burton nor Broadus felt free to leave because Harden and others were still armed. At some point the beating began again in the other room, and they heard Gillon screaming and then gunshots inside the apartment. Shortly thereafter, Black left.

Finally, after 45 minutes to an hour, Burton and Broadus heard the sound of police sirens from the street below. Harden tried to conceal his gun in the ceiling tiles and told the victims to say that they were family members and pretend that they were there willingly. Burton was in the same room as Broadus, Michael Webster, and Gillon. When the police knocked, defendant was in another room or apartment. Harden and Chapell left. Defendant then left with Unique Webster. No one opened the door, and police officers used a battering ram to get inside. Burton and Broadus told the police what happened, explaining that they had been kidnapped by defendant, Harden, and Chapell.

For his participation in the incident, the jury convicted defendant of kidnapping, two counts of felonious assault, and felony-firearm. Defendant now appeals as of right but only challenges his sentencing.

II. STANDARD OF REVIEW

When scoring the sentencing guidelines, “[a] trial court determines the sentencing variables by reference to the record, using the standard [of proof] of preponderance of the evidence.” People v. Osantowski, 481 Mich. 103, 111, 748 N.W.2d 799 (2008). Interpretation and application of the sentencing guidelines is a question of law, reviewed de novo. People v. Cannon, 481 Mich. 152, 156, 749 N.W.2d 257 (2008).

III. ANALYSIS

Defendant argues that he is entitled to resentencing because the trial court erred when it assessed 50 points for OV 7. MCL 777.37 provides:

(1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

(a) A victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense ____________________ 50 points

(b) No victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense ____________________ 0 points

(2) Count each person who was placed in danger of injury or loss of life as a victim.

(3) As used in this section, “sadism” means conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender's gratification.

The trial court assessed 50 points for OV 7 because (1) the victims were moved from location to location, (2) a substantial beating was inflicted, designed to increase fear, and (3) one of the victims was beaten by multiple individuals. However, of these three factors, only the first applies to defendant's role in the criminal enterprise. Defendant maintains that his role was minimal. The record seems to support his contention. While defendant was present and did have a gun at various times throughout the crime, at no time did defendant take part in a beating or fire a weapon. In fact, it appears that the testimony may have been conflicting with regard to whether defendant ever pointed a weapon at one of the victims. Burton testified that defendant, along with Harden and Chapell, ushered her and Broadus down the stairs...