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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION December 13, 2016 9:00 a.m.

v No. 328533 Eaton Circuit Court CHAZ NICHOLAS SMITH, LC No. 14-020208-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and O’C ONNELL and B ECKERING , JJ.

M. J. K ELLY , P.J.

Defendant Chaz Smith pleaded guilty to breaking and entering w ith intent to commit a felony, MCL 750.110, first-degree retail fraud, MCL 750.356c, a nd resisting or obstructing a police officer, MCL 750.81d. In September 2014, under the term s of a sentencing agreement, Smith originally was sentenced t o 120 days in the county jail a nd two years’ probation as part of the Eaton Circuit Court’s prio rity drug court program. In 2015 , Smith pleaded guilty to violating his probation by stealing a drug te st from Meijer and violating his curfew. The trial court revoked his probation and sentenced him as a second habitual of fender, MCL 769.10, to concurrent prison terms of 33 to 180 months for his breaking an d entering conviction, 33 to 90 months for his first-degree retail fraud conviction, and 24 to 36 months for his resisting and obstructing conviction. Smith filed an application for delayed leave, which we denied. 1 Smith then appealed to our Supreme Court, which remanded to this Cour t for consideration as on leave granted. People v Smith , 499 Mich 924; 878 NW2d 846 (2016). For the reasons stated in this opinion, we affirm.

I. BASIC FACTS

On May 22, 2014, Smith stole property from a Meijer store. Lo ss prevention personnel saw him attempt to enter vehicles in the parking lot before hea ding into a residential neighborhood. A police officer searching for Smith spotted him lying in a grassy area. Smith admitted at his plea hearing that when he saw the officer, he r an. The officer commanded Smith

1 People v Smith , unpublished order of the Court of Appeals, entered September 8, 2015 (Docket No. 328533).-2- to stop, but he got away by jumping over a fence. A canine uni t was called in and tracked Smith to a locked camper in the yard of a nearby home. Smith admitte d that he entered the camper to hide from the police. The camper’s owner did not have keys to unlock the door. However, with the owner’s permission the polic e broke a window to gain entry. Smith did not immediately exit the camper, and when he did he refused to comply with police co mmands and had to be physically taken into custody.

II. OFFENSE VARIABLE 19

A. STANDARD OF REVIEW

Smith argues that the trial cou rt erred in scoring offense var iable (OV) 19 at fifteen points. “Under the sentencing gu idelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as fou nd, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpr etation, which an appe llate court reviews d e novo.” Id

.

B. ANALYSIS

“Our primary task in construing a statute is to discern and gi ve effect to the intent of the Legislature.” People v Williams , 268 Mich App 416, 425; 707 NW2d 624 (2005). “In discerning legislative intent, th is Court gives effect to every word, phrase, and clause in the statute” and “must consider both the plain meaning of the criti cal words or phrases as well as their placement and purpose in the statutory scheme.” Id . Further, we “must avoid a construction that would render a ny part of a statute surplusage or nugatory.” Id . “If the statutory language is clear and unambiguous, then no judicial constructio n is necessary or permitted.” People v Campbell , ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 324708 ); slip op at 10 (citation omitted).

OV 19 addresses an offender’s “threat to the security of a pen al institution or court or interference with the administration of justice or the renderin g of emergency services.” MCL 777.49. In assessing points under OV 19, a court may consider the offender’s conduct after the completion of the sentencing offense. People v Smith , 488 Mich 193, 200; 793 NW2d 666 (2010). The sentencing court mu st assess fifteen points if:

The offender used force or the threat of force against another person or the property of another person to int erfere with, attempt to interf ere with, or that results in the interference with the administration of justice or the rendering of emergency services. [MCL 777.49(b).]

However, the court must only assess ten points if “[t]he offend er otherwise interfered with or attempted to interfere with the administration of justice.” MC L 777.49(c). “[T]he plain and ordinary meaning of ‘interfere wi th the administration of justi ce’ for purposes of OV 19 is to oppose so as to hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes by judicial process.” People v Hershey , 303 Mich App 330, 343; 844 NW2d 127 (2013). Moreove r, “OV 19 is general ly scored for cond uct that constitutes an attempt-3- to avoid being caught and held acc ountable for the sentencing o ffense.” People v Sours , ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 326291); slip op 2.

Hiding from the police constitu ted an interference with the ad ministration of justice because it was done for the purpose of hindering or hampering t he police investigation. See Hershey , 303 Mich App at 343. Smith concedes that his actions interfe red with the administration of justice; however, he argues that because he d id not use force or the threat of force against the arresting officers in the process, he should only have been assessed ten points under MCL 777.49(c). We have previously determined that an off ender’s threat to kill his or her victim to prevent the victim from reporting a crime would warra nt a score of fifteen points for OV 19. People v McDonald , 293 Mich App 292, 300; 811 NW2d 507 (2011). Moreover, it is axiomatic that an offender’s actua l use of force, such as restr aining or physically harming a victim, would also justify a sc ore of 15 points if the force wa s used to prevent the victim from reporting a crime. See People v Passage , 277 Mich App 175, 179-181; 743 NW2d 746 (2007) (upholding a score of fifteen poi nts where the offender physica lly struggled with loss prevention personnel and attempted to kick them). In this case, it is und isputed that Smith did not use physical force against either the police officers or anyone els e. However, a score of fifteen points under OV 19 is not only required when force or the threa t of force is used against a person. It is also required if fo rce or the threat of force is used against the property of another.

We have not had occasion to determine what actions constitute the use or threatened use of force against the property of another for purposes of scorin g OV 19. The prosecutor argues that Smith’s decision to hide in the camper and not come out re sulted in the destruction of the camper window by the police. However, the statute plainly requ ires that the offender, not the police, must be the individual who uses force or the threat of force against the property of another. MCL 777.49(b). Thus, the force used by the police of ficer against the camper is not sufficient to sustain a score of fifteen points under MCL 777.4 9(b).

The word “force” is defined in relevant part as “strength or e nergy exerted or brought to bear: cause of motion or change.” Webster’s Collegiate Diction ary (11th ed). Thus, if an offender threw a victim’s cellphone into a lake, such action ne cessarily would involve the use of force against the property of another. Likewise, if the offend er threatened to throw a victim’s cellphone into the lake, then the action would involve the thre atened use of force against the property of another. In either case, if the reason for the off ender’s action was to prevent or discourage the victim from reporting a crime, then the offender ’s actions would constitute interference with the administration of justice that would just ify a score of fif teen points under OV 19.

Although Smith did not threaten a victim’s property or physica lly destroy the camper that he hid in, he committed the crime of breaking and entering a st ructure with the intent to commit a felony when he entered the camper. The elements of breaking and entering a structure with the intent to commit a felony are: (1) the defendant broke into a s tructure, (2) the defendant entered the structure, and (3) at the time of the breaking and entering , the defendant intended to commit a-4- felony. MCL 750.110(1). 2 “Under Michigan law, any amount of force used to open a door or window to enter the building, no matter how slight, is sufficie nt to constitute a breaking.” People v Toole , 227 Mich App 656, 659; 576 NW2d 441 (1998). Thus, when Smith broke into the camper, he exerted force against the property of another by opening the door. 3 As such, the trial court did not err in sco ring OV 19 at fifteen points. 4

III. JUDICIAL FACT-FINDING

A. STANDARD OF REVIEW

Smith next argues that his sentence was improperly inflated by judicial fact-finding in violation of the Sixth Amendme nt. We review do novo whether a defendant’s sentence violates the Sixth Amendment. People v Lockridge , 498 Mich 358, 373; 870 NW2d 502 (2015).

B. ANALYSIS

In Lockridge , our Supreme Court held that Michigan’s sentencing scheme viol ated the Sixth Amendment right to a jury trial to the extent that it req uires “judicial fact-finding beyond facts admitted by the defendant or found by the jury to score o ffense variables (OVs) that mandatorily increase the floor of the guideli nes minimum sentence range[.] ” Id . at 364 (emphasis in original). As used in Lockridge , the phrase “admitted by the defendant” means

“ formally admitted by the defendant to the court , in a plea or in testimony or by stipulation or by some similar or analogous route.” People v Garnes , ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 324035); slip op at 3 (emphasis in original) . Here, while pleading guilty, Smith admitted that he ran from the police after stealing prope rty from Meijer and that he broke into the camper in order to hide from the police. Thus, the fa cts necessary to support a score of fifteen points were admitted by Smith, and his sentence was not constrained by improper judicial fact-finding in violation of the Sixth Amendment.

Affirmed.

/s/ Michael J. Kelly /s/ Peter D. O'Connell /s/ Jane M. Beckering

2 In this case the felony Smith intended to commit inside the ca mper was resisting or obstructing a police officer.

3 See also People v Pierce , 272 Mich App 394, 398; 725 NW2d 691 (2006) (“[B]y its nature, breaking and entering involves the use of physical force, or th e substantial risk that physical force may be used, against the p roperty of another in the commi ssion of the offense.”).

4 Because we conclude that the trial court did not err in scorin g OV 19, we need not address Smith’s argument that his trial lawyer provided ineffective ass istance when he failed to object to the scoring of OV 19 on the grounds raised on appeal. See People v Kulpinski , 243 Mich App 8, 27; 620 NW2d 537 (2000).