People v. Munson
| Docket Number | 364342 |
| Decision Date | 21 December 2023 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. VIRGIL AMOS MUNSON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Emmet Circuit Court LC No. 2022-005338-FH
Before: GLEICHER, C.J., and GARRETT and MALDONADO, JJ.
Defendant Virgil Amos Munson, entered a no-contest plea to one count of attempted assault by strangulation. At sentencing, the trial court assessed 15 points for offense variable (OV) 8, which addresses victim asportation, on the basis that Munson moved the victim "to another place of greater danger or to a situation of greater danger" during the offense. MCL 777.38(1)(a). The facts establish that Munson moved the victim from inside their private motel room to an outside location around the corner of their room where security cameras did not reach. Because this chain of events did not involve movement to a place of greater danger, the trial court should not have assessed 15 points for OV 8. This scoring error alters Munson's applicable guidelines range, so we reverse and remand for resentencing.
This case arises from Munson's assault of the victim, his pregnant girlfriend. At the time, Munson and the victim lived together in a private motel room. On October 3, 2021, they got into an argument which turned physical. Munson grabbed the victim and pushed her around an outside corner of the motel. Once around the corner, Munson pushed the victim against the side of the building and began choking her. The victim told the motel manager's daughter about this incident right after it occurred. The victim also reported the incident to Munson's parole agent and the Emmet County Sheriff's Office in December 2021.
Munson entered a no-contest plea to one count of attempted assault by strangulation. Before sentencing, he filed an objection to the scoring of OV 8. Munson argued that zero points should be assessed because there was insufficient evidence to show that he asported the victim to a place of greater danger. At sentencing, in support of his argument, Munson called the motel manager, Nicole Thompson, to testify about security footage at the motel. Thompson testified that she reviewed the security camera footage for the early morning hours of October 3, 2021, and never saw Munson and the victim leave their motel room. Thompson noted, however, that the motel's internet connection often went out and that there were multiple "glitches" in the security camera footage that she reviewed. In addition, Thompson testified that the victim came to Thompson's motel room soon after the assault and spoke to Thompson's daughter about what had occurred. Thompson explained that the security camera should have captured the victim walking to Thompson's apartment, yet Thompson again did not see the victim leave the room on any footage that she reviewed.
The prosecution then admitted into evidence an audio recording of a jail call between Munson and the victim. According to the recitation of the call placed on the record,[1] the victim made several statements about Munson pushing her out of the view of the security camera. Although Munson did not make any admissions on the call, he also did not deny the allegations. The trial court noted that the victim was "adamant" that Munson pushed her around the corner of the motel, found the victim's statements credible, and concluded that the jail call offered a sufficient factual basis to assess 15 points for OV 8. Munson placed the victim in a situation of greater danger, the court explained, by moving her outside the view of the camera and "other people knowing or seeing what was happening." The court then sentenced Munson to three to five years' imprisonment.
We granted Munson's application for leave to appeal.[2]
Munson's challenge to the scoring of OV 8 is twofold. First, he argues that there was insufficient evidence to demonstrate that he moved the victim from the motel room. Second, he contends that the alleged movement from a secluded motel room to a public location outside the motel room was insufficient to show that the victim was moved to a place of greater danger.
"This Court reviews for clear error a trial court's findings in support of a particular score under the sentencing guidelines but reviews de novo whether the trial court properly interpreted and applied the sentencing guidelines to the findings." People v McFarlane, 325 Mich.App. 507, 531-532; 926 N.W.2d 339 (2018). Clear error exists when this Court is "left with a definite and firm conviction that a mistake was made." People v Abbott, 330 Mich.App. 648, 654; 950 N.W.2d 478 (2019). But de novo review means we evaluate the issues independently and owe no deference to the trial court's decision. People v Beck, 504 Mich. 605, 618; 939 N.W.2d 213 (2019). Under the sentencing guidelines, the trial court's factual findings must be supported by a preponderance of the evidence. People v Lydic, 335 Mich.App. 486, 490; 967 N.W.2d 847 (2021). The trial court may consider all record evidence, including the presentence investigation report (PSIR), when assessing points under the sentencing guidelines. People v Montague, 338 Mich.App. 29, 55; 979 N.W.2d 406 (2021). The court may also draw "reasonable inferences arising from the record evidence" to sustain the scoring of an offense variable. People v Barnes, 332 Mich.App. 494, 499; 957 N.W.2d 62 (2020) (cleaned up).
OV 8 addresses "victim asportation or captivity." MCL 777.38(1). A trial court properly assesses 15 points for OV 8 when "[a] victim was asported to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense." MCL 777.38(1)(a). Asportation means that the victim was carried away or removed; the statute does not require "that the movement be greater than necessary to commit the sentencing offense." People v Barrera, 500 Mich. 14, 21; 892 N.W.2d 789 (2017). "When evaluating the phrase 'to another place of greater danger or to a situation of greater danger,' trial courts must consider whether the risk of danger to the victim is increased by the defendant's movement of the victim." People v Allen, 331 Mich.App. 587, 598; 953 N.W.2d 460 (2020), vacated in part on other grounds 507 Mich. 856 (2021). "A victim is asported to a place or situation involving greater danger when moved away from the presence or observation of others." People v Chelmicki, 305 Mich.App. 58, 70-71; 850 N.W.2d 612 (2014). "[P]laces where others were less likely to see defendant committing crimes" constitute places or situations of greater danger under MCL 777.38(1)(a) for which OV 8 is properly scored. People v Steele, 283 Mich.App. 472, 491; 769 N.W.2d 256 (2009).
We begin by considering whether Munson engaged in asportation. The PSIR included the victim's statement to Munson's parole agent. The victim reported that Munson "pushed her around the corner" of the motel and then "pushed her up against the side of the building and 'choked' her." Absent a successful objection by the defendant to the accuracy of information contained in the PSIR, the information is presumed to be accurate. People v Lampe, 327 Mich.App. 104, 120; 933 N.W.2d 314 (2019). In this case, Munson did not object to the information in the PSIR about the victim's description of being moved around the corner of the motel, so this information is presumed accurate. See id. Evidence in the PSIR supports that Munson carried away or removed the victim-that is, asported her. See Barrera, 500 Mich. at 21.
Munson places great emphasis on Thompson's testimony, arguing that it established that Munson and the victim never left their motel room on the night of the assault. Although Thompson testified that she did not see them exit their room on the security camera footage that she reviewed, she also explained that there were glitches in the recording because of issues with the motel's internet. The footage also apparently did not capture the victim walking to Thompson's room soon after the incident. And the footage was automatically erased after 30 days, so it was unavailable for the trial court's review. Considering these gaps in Thompson's testimony and the deletion of the video, the trial court was entitled to give it less weight.
The trial court relied heavily on the contents of the jail call to conclude that OV 8 should be assessed 15 points. The trial court found the victim to be credible when she expressed multiple times on the call that Munson pushed her out of view of the security camera....
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