Sentencing; Scoring of OVs 1 & 2; Acquitted conduct; People v Beck; People v Roberts (On Remand); Conduct designed to substantially increase the fear & anxiety of the victim; People v Dilling

The court held that held that the trial court did not err in scoring OVs 1 and 2. Defendant was convicted of CSC I for sexually assaulting the victim as she lay in bed between her two young children. After remand, the trial court resentenced him as a second offense habitual offender to 30 to 50 years. On appeal, the court rejected his argument that the trial court erred by scoring OVs 1 and 2 on the basis of acquitted conduct. Because it was “not constrained under Beck to presume [defendant] did not possess weapon and because the record supports the factual predicate for the trial court’s scoring decision with respect to OV 1,” it concluded that OV 1 was properly assessed 15 points. In addition, the record supported that his “conduct was designed to substantially increase the fear and anxiety of the victim so that [he] could accomplish his objective of forcing an act of criminal sexual conduct upon her.” Because the record supported “the factual predicate for the trial court’s scoring decision with respect to OV 2,” it concluded that OV 2 was properly assessed at 25 points. Affirmed.