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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 20, 2014

v No. 317183 St. Joseph Circuit Court PATRICK EUGENE SCARBERRY, LC No. 12-018185-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and B ECKERING and S HAPIRO , JJ.

P ER C URIAM

. Defendant appeals as of right his jury tria l convictions for first- degree home invasion, MCL 750.110a(2), and domestic assau lt, MCL 750.81(2). We affirm.

The jury heard evidence that defendant entered a bedroom in his ex-wife’s apartment through a window screen while his ex-wife and da ughter were asleep. A ccording to the trial testimony, defendant slapped his ex-wife in the face when she got up and he asked his daughter to leave with him. Defendant then left the ap artment alone and his ex-wife called her brother and told him what occurred. The brother called the police, and when a police officer arrived, the exwife told the officer what had happened.

Defendant first argues that the trial court erred in admitting his ex -wife’s testimony that she had obtained a PPO against him in Septembe r or October 2011, approximately nine to ten months before the events giving rise to the in stant charges, because “he slapped [her] and put [her] in a headlock.” 1 Defendant concedes that, under MCL 768.27b(1), “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose which is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.” Defendant’s ex-wife’s testimony regarding th e PPO was relevant because it contained allegations that defendant had exhibited the same violent behavior, i.e., slapping, toward her as he was alleged to have exhibited in the instant case. Noneth eless, under MRE 403, “[a] lthough relevant, evidence

1 We review for an abuse of discretion a trial court’s decision to admit evidence. See People v Kowalski , 492 Mich 106, 119; 821 NW2d 14 (2012).-2- may be excluded if its probative value is su bstantially outweighed by the danger of unfair prejudice[.]” In addition to its aforementi oned relevance, the PPO testimony illustrated the nature of defendant's relationship with his ex-wife and assisted the jury in assessing his ex-wife’s credibility. People v Meissner , 294 Mich App 438, 452; 812 NW 2d 37 (2011). Moreover, any prejudicial effect of the trial court's decision to allow testimony regarding the PPO did not substantially outweigh it s probative value. People v Cameron , 291 Mich App 599, 612; 806 NW2d 371 (2011). The testimony was brief, see People v Railer , 288 Mich App 213, 220; 792 NW2d 776 (2010), and the trial court minimized th e prejudicial effect of the evidence by instructing the jury that defendant was “not on trial for what happened as alleged in the PPO or anything related to the PPO[,]” see Cameron , 291 Mich App at 612. Accordingly, the trial court did not abuse its discretion in admitting testimony regarding the PPO obtained against defendant by his ex-wife.

Defendant next argues that th e testimony of his ex-wife’s brother and a police officer describing his ex-wife’s statements shortly af ter the incident was improperly admitted. Defendant does not assert that the trial court erred by admitting this h earsay testimony under the excited utterance exception, MR E 803(2); rather, he argues only that the testimony was needlessly cumulative under MRE 403, which provide s in relevant part th at “evidence may be excluded if its probative value is substantially outweighed by the . . . needless presentation of cumulative evidence.” We find that the evidence was not needlessly cumulative because it was probative of defendant’s guilt, occurred close in time to the commission of the charged crimes, and was relevant to the jury’s assessment of defendant’s ex-w ife’s credibility. People v King

, 297 Mich App 465, 476-477; 824 NW2d 258 (2012). A ccordingly, the trial court did not abuse its discretion in admitting the challenged testimony.

Defendant also raises challenges to the scoring of offense variables (OVs) 3, 4, 10, and 12. 2

Under MCL 777.33(1), a trial court must score OV 3 at five points when “[b]odily injury not requiring medical treatment oc curred to a victim.” Defendant’s ex-wife testified that it hurt when defendant slapped her and the slap caused her face to turn red. She subsequently complained to an officer about pain on her face. Thus, a preponderance of the evidence supports a finding that the ex-wife suffered from a bodily inju ry sufficient to support a score of five points for OV 3.

A trial court must score OV 4 at 10 points when “serious psychological injury requiring professional treatment occurred to a victim” or “if the serious psychological injury may require professional treatment.” MCL 777.34. Defendant’s ex-wife’s brother testified that the victim was “bawling, hysterical, and almost hyperventilati ng” when she called him. An officer also testified that she was upset when he arrived at the scene. In addition, defendant’s ex-wife

2 A trial court’s factual determinations during se ntencing 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 are “adequate to satisfy the scoring conditions prescribed by statute” is a question of st atutory interpretation, which this Court reviews de novo. Id.-3- requested contact from her loca l domestic violence shelter after the incident and was “very nervous” to see defendant at trial. On this re cord, we conclude that the trial court properly scored OV 4 at 10 points. See People v Armstrong , 305 Mich App 230; 851 NW2d 856 (2014).

A trial court must score OV 10 at 15 points when “[p]redatory conduct was involved.” MCL 777.40. In this case, defendant entere d the bedroom through a window at night and assaulted his ex-wife and asked hi s daughter to leave with him. The timing of the entrance, at night, and its location, in an isolated bedroom, constituted “evidence of preoffense predatory conduct,” and “it may be inferred from the evid ence that defendant watched [the ex-wife and daughter] and waited for any opport unity to be alone with [them] in an isolated location.” People v Witherspoon , 257 Mich App 329, 336; 670 NW2d 434 ( 2003). Thus, the trial court did not err by scoring scor ing OV 10 at 15 points.

Regarding OV 12, a trial cour t must score five points when “[o]ne contemporaneous felonious criminal act involving a crime agains t a person was committed.” MCL 777.42(1)(e). We agree with defendant that his act of enteri ng the apartment and assaulting his ex-wife while she and her daughter were presen t could not serve as the basis of scoring OV 12 at five points because those acts established the sentenci ng offense of first-degree home invasion. People v Light , 290 Mich App 717, 723; 803 NW2d 720 (2010). Nevertheless, because the error does not change defendant’s minimum sentence range under the legislative guidelines, resentencing is not required. People v Francisco , 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

Defendant argues that the trial court erred by sentencing him based on inaccurate information when it, in reliance on the presente nce investigation report (PSIR), stated that defendant slapped his ex-wife twice when the evidence only supported a finding that defendant slapped her once. However, ther e is no indication in the record that the presence of an alleged second slap in defendant’s PSIR al tered the trial court’ s sentence and defenda nt does not dispute the allegation that he slapped his wife once. As discussed above, the trial court did not err in scoring 10 points under OV 4 on the basis of a single slap. Accordingly, defe ndant is not entitled to relief on his claim that he was senten ced on the basis of inaccurate information.

Lastly, defendant argues that the trial court engaged in improper judicial fact-finding during sentencing in violation of Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). However, we are bound by this Court’s opinion in People v Herron , 303 Mich App 392; 845 NW2d 533 (2013), which addressed a nd rejected defendant’s argument. MCR 7.215(J)(1).

Affirmed.

/s/ Michael J. Kelly /s/ Jane M. Beckering /s/ Douglas B. Shapiro