Sentencing; Scoring of OV 8 (asportation); MCL 777.38(1); People v Barrera; People v Chelmicki

Holding that the trial court did not err in scoring 15 points for OV 8 in sentencing defendant, the court affirmed. He pled guilty to CSC III. He contended that 0 points should have been scored for OV 8 “because he did not asport the victim to the garage with the promise of vaping, as vaping was meant to bribe the victim to stay quiet about defendant’s crimes, not as a way to move her to the garage.” But the court found that this “argument misunderstands the law” and was unsupported by the record. The victim clearly stated in her forensic interview that he “offered to let her use his vape, she went out to the garage with defendant to use the vape, and once she was in the garage, defendant sexually assaulted her. Even though [he] did not use force to move the victim, defendant used [her] desire to vape and fear of being caught vaping to move her to another location, which satisfies the movement requirement of asportation.” He also asserted “the garage was not a place of greater danger because the victim’s mother was out of the house or asleep when the crimes occurred, so defendant’s crime was no less likely to be discovered in the garage than it was in the house.” But the court noted that for the purposes of OV 8, “a place of greater danger includes a place ‘away from the presence or observation of others,’ or ‘where others [are] less likely to see defendant committing a crime.’” It concluded that under “the circumstances, the garage was clearly a place of greater danger. Even if the victim’s mother was asleep or out of the house, the victim’s brother lived in the house as well, and the garage remained a place where defendant’s crime was less likely to be discovered by others because it was away from the main living area of the house. The trial court properly found that the garage was a place of greater danger.”