Sentencing; Scoring of OV 13; Continuing pattern of criminal behavior; MCL 777.43(1); Number of crimes; MCL 777.43(1)(c)

Agreeing with defendant and the prosecution that the trial court erred by scoring OV 13 at 25 points, the court vacated his sentence and remanded for resentencing. He was convicted of CSC I, accosting a child for immoral purposes, and indecent exposure, but acquitted of another CSC charge and a third indecent exposure charge. The trial court scored OV 13 at 25 points, noting “multiple instances of touching.” On appeal, the court held that the trial court erred in its “three-crimes finding underlying its OV 13 assessment” because the victim “testified that defendant touched her breasts on only two instances, and because [it] could not hold the jury’s acquittal on the other [CSC] charge against defendant for purposes of assessing OV 13.” And because the trial court “relied on this assessing error to determine defendant’s guidelines score and ultimate sentence (again, as conceded by the prosecutor), defendant is entitled to resentencing.”