Sentencing; Scoring of OV 3 (MCL 777.33); “Physical injury”; Distinguishing People v Chaney; “Life threatening” injury; Scoring of OV 10 (MCL 777.40); Predatory conduct; People v Huston

Concluding that the trial court properly scored OVs 3 and 10, the court affirmed. Defendant was convicted of AWIGBH, conspiracy to commit AWIGBH, armed robbery, and conspiracy to commit armed robbery. In 2013, he was sentenced as a fourth habitual offender to 6 to 20 years for the two assault related charges, and 15 to 40 years for the two armed robbery related charges. In 2024, after the trial court vacated his conviction of conspiracy to commit AWIGBH, it updated his minimum sentencing guidelines and reimposed the same sentence for his remaining convictions. Defendant first argued “that the trial court should have only assessed 10 points instead of 25 points for OV 3 because, although the victim suffered injuries that required medical treatment there was no evidence that those injuries were life-threatening or permanently incapacitating.” Contrary to defendant’s claim, “this case is unlike Chaney. The three-year-old child-abuse victim in Chaney suffered severe burns to the lower legs and feet from hot bath water while in the defendant’s care. The victim was hospitalized for several weeks to treat the burns. This Court held that the trial court clearly erred by finding that the victim suffered a ‘life-threatening’ injury for purposes of MCL 777.33 and assessing 25 points. This Court reasoned that although the victim suffered ‘serious injury requiring a lengthy hospitalization,’ the medical records did not indicate that the injuries were potentially fatal, nor was there testimony to that effect.” In contrast, in this case, “there was ‘some evidence indicating that the injuries were, in normal course, potentially fatal.’ Thus, the trial court did not clearly err by finding that [victim-B’s] head injuries were life threatening. Defendant’s attempts to distinguish Huston were not persuasive.” First, it was “not particularly helpful to defendant that he knew [B] ‘before the attack and targeted him specifically, rather than waiting in the parking lot for any potential victim to come along, as the defendant in Huston did.’ To the contrary, predatory conduct often is ‘directed at one or more specific victims[.]’” Huston “clarified that predatory conduct also may include conduct directed at nonspecific victims, too.” Second, it was of no import that B “expected to meet defendant in the parking lot and could ‘clearly see’ defendant before the attack. [B] ‘did not expect to be struck from behind in the head with a hammer by a defendant’s cohort and then beaten and robbed by defendant and two other men.’” Thus, when defendant instructed B “to go to the restaurant’s back parking lot where defendant was waiting with his cohorts to outnumber, beat, and rob [B], defendant engaged in predatory conduct that created or enhanced [B’s] vulnerability, such that 15 points were appropriate for” OV 10. Thus, the court was “not left with a definite and firm conviction that the trial court erred by assessing 15 points for OV 10.”