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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 19, 2015

v No. 322751 Wayne Circuit Court BRANDON RONALD DINWIDDIE, LC No. 14-001112-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and M URPHY and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of ar med robbery, MCL 750.529, assault with intent to do great bodily harm less than murder, M CL 750.84, and possession of a firearm during the commission of a felony (“felony-firearm”), M CL 750.227b. 1 Defendant was sentenced to 18 to 40 years’ imprisonment for the armed robbery conviction, 5 to 10 years’ imprisonment for the assault w ith intent to do great bodily har m less than murder conviction, and two years’ imprisonment for the felony-firearm conviction. We affirm.

I. FACTUAL BACKGROUND

On the evening of December 5, 2013, Juan Ramirez was working a t Broadway Transmission in Detroit, where he was employed as a mechanic. Between 8:30 p.m. and 9:00 p.m., Ramirez walked out of Broadway Transmission, intending to walk to a gas station across the street. Immediately after exiting the shop, Ramirez was ap proached by two armed men. One of the men, whom Ramirez recognized as defendant, 2 held a shotgun or rifle to Ramirez’s chin. The other man, identified only as “Dejuan” at trial, held a han dgun to Ramirez’s side.

Defendant told Ramirez to reenter Broadway Transmission so tha t they could take some money. Ramirez attempted to dissuade defendant from robbing th e business, explaining to

1 Defendant was also charged wit h, and acquitted of, assault wit h intent to commit murder, MCL 750.83.

2 Ramirez testified that he had known defendant from the neighbo rhood for approximately one
year.-2- defendant, “Man, you don’t want to do this. I ain’t got no mon ey. I mean, I know your people. You don’t want to do this.” Ultimately, defendant and Dejuan r elented, and Ramirez moved away from the men. However, as Ramirez walked quickly toward t he gas station across the street, he was struck by a bullet, which shattered his right fe mur bone. Because his back was turned, he was not sure if defenda nt or Dejuan fired the weapon

. A witness to the shooting, Jerome Tolbert, identified defendan t as the shooter. Just before the shooting, Tolbert was at the home of defendant’s fat her, which is located five or six houses away from Broadway Transmission. As Tolbert was leaving , he observed defendant and Dejuan attempting to get Ramirez back inside Broadway Transmiss ion. Tolbert saw Ramirez break free of the men and walk quickly toward the gas station. He then heard three gunshots, the last of which struck Ramirez. Tolbert stated that defendant sh ot Ramirez with a .22-caliber rifle. Tolbert immediately rendered a id to defendant and called 911, w hile defendant’s father left the scene after picking up shell casings from the shooting.

After Ramirez was taken away in an ambulance, Tolbert returned to the home of defendant’s father, where defendant and Dejuan were changing th eir clothes. When defendant’s father came back to the residence, he instructed defendant to d iscard any guns that he had in the house, but defendant replied th at he did not have any guns in t he home.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that def ense counsel’s questioning of Q uintashia Sorrel, the mother of defendant’s child, whic h revealed that defendant had threatened Sorrel in the past, constituted ineffective assi stance of counsel. We disagree.

A. STANDARD OF REVIE W AND APPLICABLE LAW

Our review of defendant’s ineff ective assistance of counsel cla im is limited to mistakes apparent on the record because he did not move for a new trial or Ginther 3 hearing. People v Petri , 279 Mich App 407, 410; 760 NW2d 882 (2008). “A claim of inef fective assistance of counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed for clear error, and this Court re views the ultimate constituti onal issue arising from an ineffective assistance of counsel claim de novo.” Id ., citing People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

In order to prove that counsel provided ineffective assistance, a defendant must demonstrate that (1) “ ‘counsel’s representation fell below an objective standard of reasonableness,’ ” and (2) defe ndant was prejudiced, i.e., “tha t ‘there is a reasonable probability that, but for counsel’s unprofessi onal errors, the result of th e proceeding would have been different.’ ” People v Vaughn , 491 Mich 642, 669-671; 821 NW2d 288 (2012), quoting Strickland v Washington , 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “A defendant must also show that the result that did occur was fun damentally unfair or unreliable.”

3 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).-3- People v Lockett , 295 Mich App 165, 187; 814 NW2d 295 (2012). “Effective assis tance of counsel is presumed,” and a defendant bears a heavy burden of p roving otherwise. Petri , 279 Mich App at 410. Likewise, a “[d]efendant must overcome a stro ng presumption that counsel’s performance constitute d sound trial strategy.” Id . at 411.

B. APPLICATION

At trial, the prosecution called Sorrel to testify. Sorrel st ated that defendant was supposed to visit her home on the evening of December 5, 2013, but never arrived. Defendant eventually came to Sorrel’s home on December 7, 2013, at which time he told Sorrel that “he had messed up” because he shot a man who attempted to rob him n ear his parents’ house. Sorrel later reported her conversation w ith defendant to the police.

On cross-examination, defense counsel questioned Sorrel regard ing the manner in which the police contacted her concer ning defendant’s involvement in the shooting. Sorrel testified that she contacted the prosecutor’s o ffice directly in order to tell them about her conversation with defendant. Defense counsel then asked if Sorrell contacted the prosecutor’s office because she thought she had information that the prosecution needed to know . Sorrel responded that she called the prosecutor’s office because she felt threatened by d efendant.

Defendant argues that this line of questioning—and the prosecu tor’s subsequent questioning on redirect examination—led the jury to infer that defendant had a propensity for violence and, therefore, increas ed the likelihood of the jury f inding defendant guilty of the offenses against Ramirez. As such, defendant contends that def ense counsel either purposefully elicited this testimony or was careless in asking a question to which he did not know the answer. We find no basis for such a conclusion in the record, and defen dant identifies no evidence to support a theory that defense c ounsel intended to deliberately sabotage his client.

Rather, the record shows that defense counsel attempted to impe ach Sorrel by demonstrating her bias against defendant. See People v Layher , 464 Mich 756, 764; 631 NW2d 281 (2001) (“[E]vidence of bias is almost always relevant.” [Q uotation marks and citation omitted.]). Although this strateg y prompted testimony that Sor rel felt threatened by defendant, it also elicited testimony indicating that Sorrel’s relationship w ith defendant was “dysfunctional” and “strained emotionally[] [and ] mentally.” Further, defense counsel’s questioning of Sorrel prompted her to concede that defendant was already in police cu stody—and, therefore, was incapable of harming her—when she called the prosecutor’s offic e. Thus, while defense counsel’s line of questioning may have elicited damaging testim ony, it is clear from the record that defense counsel still succeeded in revealing Sorrel’s bias toward defendant and discrediting her claim that she legitimatel y felt threatened by defendant.

Thus, defendant has failed to rebut the “strong presumption tha t counsel’s performance constituted sound trial strategy.” Petri , 279 Mich App at 411. Furthermore, given the eyewitness testimony presented at trial, there is not a reasona ble probability that the outcome of the trial would have been different but for defense counsel’s a lleged error. Vaughn , 491 Mich at 669-671.

III. OFFENSE VARIABLE SCORING-4- Defendant next argues that the trial court erroneously assesse d 15 points for offense variable (“OV”) 10 and 10 point s for OV 14. We disagree.

A. STANDARD OF REVIEW

Defendant preserved his challenges to OV 10 and OV 14 by object ing at the sentencing hearing. See MCL 769.34(10); People v Jackson , 487 Mich 783, 796; 790 NW2d 340 (2010). Accordingly,

the circuit court’s factual determinations are reviewed for cle ar error and must be supported by a preponderance of the evidence. Whether the fact s, as found, are adequate to satisfy the scoring conditions prescribed by statut e, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. [ People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) (footnotes omitted).]

B. OV 10

When scoring OV 10, the trial court must examine whether the d efendant engaged in the exploitation of a vulnerable victim while committing the crime. MCL 777.40; People v Cannon

, 481 Mich 152, 157; 749 NW2d 257 (2008). MCL 777.40(1)(a) provi des that the trial court shall assess 15 points under OV 10 if it finds that “[p]redatory cond uct was involved.” At the time of sentencing, MCL 777.40(3)(a) defined “predatory conduct” as “pr eoffense conduct directed at a victim for the primary purpose of victimization.” 4 Stated differently, “ ‘[p]redatory conduct’ under the statute is behavior that precedes the offense, direct ed at a person for the primary purpose of causing that person t o suffer from an injurious acti on or to be deceived.” Cannon
, 481 Mich at 161.

Fifteen points is properly assessed only for “those forms of ‘p reoffense conduct’ that are commonly understood as being ‘predatory’ in nature, e.g., lying in wait and stalking, as opposed to purely opportunistic criminal conduct or ‘preoffense conduct involving nothing more than runof-the-mill planning to effect a crime or subsequent escape wit hout detection.’ ” People v Huston , 489 Mich 451, 462; 802 NW2d 261 (2011), quoting Cannon , 481 Mich at 162. Additionally, the Michigan Suprem e Court has stated that “the d efendant’s preoffense conduct only has to be directed at ‘a victim,’ not any specific victim, and the victim does not have to be inherently vulnerable. Instead , a defendant’s ‘predatory condu ct,’ by that conduct alone ( eo ipso ), can create or enhance a vi ctim’s ‘vulnerability.’ ” Id . at 454. “The timing of an offense, including watching the victim and waiting until the victim is a lone before victimizing him or her, may be evidence of predatory conduct.” People v Kosik , 303 Mich App 146, 160; 841 NW2d 906 (2013).

4 MCL 777.40(3)(a) was amended by 2014 PA 350, effective October 17, 2014, but the amendment is not relevant to the instant appeal.-5- Here, a preponderance of evidenc e supported the trial court’s finding that defendant engaged in behavior that qualif ied as predatory conduct under M CL 777.40. Ramirez testified that he was alone at work at approximately 8:30 or 9:00 p.m., w hich was after normal business hours. Because defendant knew Ramirez, and defendant’s father lived only a few houses away, it is reasonable to infer that de fendant was aware that Ramirez was at the business and knew that it was likely that he would be alone at that late hour. See People v Witherspoon , 257 Mich App 329, 336; 670 NW2d 434 (2003) (stating that inferences from the evidence presented at trial supported the trial court’s assessment of 15 points for OV 10). Likewise, Ramirez testified that the men “approached [him] right around the corner of the buildi ng” “[a]s soon as [he] came out of the building,” which indicates that defendant was lying in w ait, while armed, for Ramirez to exit. Most significantly, Ramirez did not testify that defenda nt and his accomplice demanded money or valuables that Ramirez had on his person; Ramirez test ified that defendant initially insisted that Ramirez go back inside Broadway Transmission so t hat they could retrieve some money. This statement indicates that defendant engaged in preo ffense conduct with the intent to victimize Ramirez based on his connection to Broadway Transmiss ion, which, according to the stated beliefs of defendant and his accomplice, had money insid e. See MCL 777.40(3)(a) (stating that predatory conduct must have “the primary purpose of victimization”). Thus, by waiting until Ramirez was alone late at night outside of Broadw ay Transmission, defendant was able to exploit and enhance Ramirez’s vulnerability. See Huston , 489 Mich at 454. Thus, the evidence presented at trial supported an assessment of 15 point s for OV 10.

C. OV 14

OV 14 is scored based on the defendant’s role in the offense. MCL 777.44. A trial court shall assess 10 points if the defendant “was a leader in a mult iple offender situation” and zero points if the defendant was not a leader. MCL 777.44(1)(a)-(b) . MCL 777.44(2)(a) instructs the trial court to consider the entire criminal transaction when sc oring OV 14. People v Apgar , 264 Mich App 321, 330; 690 NW2d 312 (2004). We previously recogniz ed the following definitions of “leader” and “lead” for purposes of MCL 777.44: “[A] ‘leade r’ is defined in relevant part as ‘a person or thing that leads’ o r ‘a guiding or directing head, as of an army or political group.’ To ‘lead’ is defined in releva nt part as, in general, guiding, preceding, showing the way, directing, or conducting.” People v Rhodes , 305 Mich App 85, 90; 849 NW2d 417 (2014). Evidence indicating that a defendant acted first, provided dire ctions, or exhibited greater initiative may demonstrate that the defendant was a leader. Se e id

. A preponderance of evidence supp orts the trial court’s finding that defendant was the leader of the robbery and assau lt against Ramirez. Ramirez tes tified that defendant was the offender who placed the weapon under his chin and spoke first, demanding that Ramirez go back inside Broadway Transmission to retrieve money. Additionally, Ramirez stated that he knew defendant, but not the accomplice, which supports an inference that defendant was the one who devised the plan to rob and assault Ramirez. Likewise, when Ra mirez begged to be released, he addressed defendant, not the other man, indicating that Ramirez perceived defendant to be the leader of the offense and the individual who could stop its com mission. Additionally, Tolbert-6- testified that defendant was the perpetrator who fired the guns hot that struck Ramirez. Thus, the trial court did not err in assessing 10 points for OV 14. 5

IV. CONCLUSION

Defendant has failed to demonstrate that defense counsel provi ded ineffective assistance. Likewise, he has failed to establish that the trial court erron eously scored the sentencing guidelines.

Affirmed.

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Michael J. Riordan

5 We acknowledge that defendant filed a statement of supplementa l authority after filing his brief on appeal, which states, in its e ntirety, “Defendant-Appellant Dinwiddie calls the Court’s attention, relative to his Argum ent II in the brief on appeal, the recent case of People v Lockridge , ___ Mich ___; ___ NW2d ___ (2015).” In Lockridge , the Michigan Supreme Court recently held that Michigan’s sentencing guidelines are unconst itutional to the extent that they

“ require judicial fact-findi ng beyond facts admitted by the defendant o r found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range . . . .” People v Lockridge , 498 Mich 358, 364; ___ NW2d ___ (2015).

To the extent that defendant intended to raise a claim on Lockridge grounds, he was not permitted to do so through a filing of supplemental authority. See MCR 7.212(F)(1) (stating that a communication of “supplemental authority” “may not raise new issues”). Furthermore, defendant has abandoned any argument that he intended to advanc e through the brief statement in his supplemental authority, as he failed to provide any disc ussion regarding the application of the new authority to the issues raised on appeal. See Berger v Berger , 277 Mich App 700, 712; 747 NW2d 336 (2008) (“A party abandons a claim when it fails to make a meaningful argument in support of its position.”); Thompson v Thompson , 261 Mich App 353, 356; 683 NW2d 250 (2004) (“An appellant’s failure t o properly address the merits of his assertion of error constitutes abandonment of the issue.”). See also MCR 7.212(F)(2) (stating that supplemental authority “may only discuss how the new authority applies to the case”). Further, a trial court is still required to calculate and consider the sentencing guidelines wh en imposing a sentence, Lockridge , 498 Mich at 365, and Lockridge “[did] nothing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judge-found facts or not,” id. at 392 n 28. Thus, we will not consider the effect of Lockridge in this case.