Sentencing; Scoring of OVs 4, 7, 8, & 10; MCL 777.34(1)(a) & (2); People v. Lockett; People v. White; MCL 777.37(1)(a); People v. Hardy; People v. Rosa; People v. Rodriguez; People v. Walker; MCL 777.38(1)(a); Asportation; People v. Barrera; People v. Chelmicki; People v. Dillard; Right result reached despite faulty reasoning; Klooster v. Charlevoix; MCL 777.40(1)(a)-(c); MCL 777.40(3)(a); People v. Cannon; A domestic relationship; People v. Jamison; “Predatory conduct”; People v. Huston; Remedy; Whether defendant was entitled to resentencing; People v. Francisco; Consecutive sentencing; People v. Ryan; People v. Norfleet; Sentencing for witness tampering; MCL 750.122(11); “Any”; Ionia Educ. Ass’n v. Ionia Pub. Sch.; People v. Harris

While the court held that the trial court erred in scoring OVs 4 and 10, changing these scores would not change defendant’s guidelines range. Thus, he was not entitled to resentencing. But it remanded for the trial court to explain on the record its reasons for imposing consecutive sentences. He was convicted of CSC III, assault by strangulation of suffocation, and witness tampering in violation of MCL 750.122(7)(b). He was sentenced to 120 to 180 months for CSC III, 60 to 120 months for assault, and 36 to 120 months for witness tampering, with the latter to run consecutive to the CSC III sentence. The court found that OV 4 should have been scored at 0 points. The fact that the victim “stated in effect that it might be a good idea if she sought therapy does not provide evidence of actual serious psychological harm. Although the sexual assault nurse described the victim as being ‘flat,’ staring into space, having minimal facial expressions, and making minimal eye contact, those observations were made only a few hours after the offense, while the victim was still in obvious pain. Without other evidence of actual psychological harm, the nurse’s observations” did not support a finding that she “ended up with a serious psychological injury requiring professional treatment.” Further, given that it was not readily apparent she “was vulnerable, and the evidence did not bring to light any preoffense predatory conduct on defendant’s part,” scoring 15 points for OV 10 was error. But the court upheld the scoring of 50 points for OV 7 as the evidence showed his “physical violence against the victim went well beyond that necessary to commit the offense.” It noted that under Walker, “if a defendant treated a victim with excessive brutality, 50 points should be scored under OV 7 even if the defendant did not intend to substantially increase the victim’s fear and anxiety.” It also upheld that 15-point score for OV 8 where the evidence indicated the victim was moved “from a hallway where defendant choked her, to a bedroom, where” he secluded her from others in the house by closing and barricading the door. Under MCL 750.122(11), the trial court had the discretion to order the witness-tampering sentence to run consecutively to that for CSC III. But it had to “articulate with sufficient particularization the rationale for its decision” to allow appellate review, and it did not do so. Affirmed but remanded. The court retained jurisdiction.