Sentencing; Scoring of OV 4; MCL 777.34(1)(a); People v. Davenport (After Remand); People v. Armstrong; Consideration of defendant’s accomplices’ actions; People v. Gloster; Principle that the trial court’s power to impose a sentence is derived from a jury’s verdict; People v. Drohan; Use of facts found by a jury; People v. Lockridge; Presumption the jury followed its instructions; People v. Unger; Scoring of OV 7; MCL 777.37(1)(a); People v. Hardy; Scoring of OV 10; MCL 777.40(1); “Predatory conduct”; People v. Huston; Waiver; People v. Kowalski; People v. Carter

Holding that the trial court did not err in scoring OVs 4, 7, and 10 on remand for resentencing, the court affirmed defendant’s sentences. He was convicted of CSC I and kidnapping. At resentencing before a different judge, the new judge “assessed 10 points for OV 4, 50 points for OV 7, 15 points for OV 8, 15 points for OV 10, and 50 points for OV 11.” Defendant was then sentenced to 22 to 40 years for each conviction. On appeal, the court agreed with the prosecution that he waived his arguments as to the scoring of PRV 5 and OVs 8 and 11 given that defense counsel affirmatively approved the PRV 5 score and expressed satisfaction with those OV scores. As to OV 4, while it would have been impermissible “for the trial court to consider the actions of defendant’s accomplices[,]” it did not do so – rather, it relied on findings made by the jury, “beyond a reasonable doubt, and under which defendant’s conduct was considered only as a principal.” Since the jury did not return a special verdict form, the record did not “establish which aggravating circumstance or circumstances the jury found when convicting” him of CSC. But based on the jury instructions, it was not permitted to convict him “solely because he aided and abetted his accomplices in their sexual penetrations of the victim.” Instead, it was required to find that he “penetrated the victim’s mouth, anus, or vagina, a single time or in combination. Similarly, the jury also was instructed to determine defendant’s guilt or innocence of kidnapping based only on his conduct, not the actions of his accomplices.” The serious psychological injury requiring professional treatment that she suffered as a result of his crimes was “evidenced by her constant state of fear and that ‘she can’t go on with her everyday life.’” The court also held that the evidence “amply” supported the 50-point score for OV 7 where his “egregious conduct” went beyond what was required for his convictions. The trial court scored OV 10 at 15 points “because defendant and his accomplices drove around in the van looking for a victim before abducting the victim.” The court found that the evidence supported this score. “Defendant and his accomplices passed by the victim once before deciding that she was sufficiently vulnerable and turning around to drive by again.”