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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 12, 2016

v No. 326219 Oakland Circuit Court MICHAEL JOSEPH OUELLETTE, LC No. 2013-248726-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and F ORT H OOD and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial convictions of tw o counts of aggravated stalking, MCL 750.411i, and two count s of unauthorized installa tion of a tracking device on a motor vehicle, MCL 750.539 l . Defendant was sentenced, as a third habitual offender, MCL 769.11, to 43 months’ to 10 years’ imprisonment for his aggrava ted stalking convictions, and 365 days in jail for his unauthorized installation of a trackin g device on a motor vehicle convictions. We affirm defenda nt’s convictions, but remand to the trial court for further proceedings consistent with this opinion.

This case arises from defendant’s persistent and relentless co mmunications directed at his ex-wife, Florence Acosta, and her boyfriend, Jay Reynolds, from approximately October 2013 to December 2013. Although defendant’s convictions were for his a ctions during that time span, defendant’s communications s tarted in July 2013 and ended in th e summer months of 2014.

First, defendant argues that offense variable (OV) 10 and OV 1 3 were improperly scored because the relevant conduct used to score both OVs was essenti ally part of defendant’s convictions for aggravate d stalking. We disagree.

For preserved sentencing erro rs, “the trial court’s findings o f fact are reviewed for clear error and must be supported by a preponderance of the evidence. ” People v McChester , 310 Mich App 354, 358; 873 NW2d 646 (2015). “Clear error is presen t when the reviewing court is left with a definite and firm conviction that an error occurred .” Id. (citation and quotation marks omitted). However, “[w]hether the facts, as found, are adequat e to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to th e law, is a question of statutory interpretation, which an appe llate court reviews de novo.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “When calculating the sentencing guidelin es, a court may consider all-2- record evidence, including the contents of a PSIR, plea admissi ons, and testimony presented at a preliminary examination.” McChester , 310 Mich App at 358.

As a preliminary matter, OVs must be scored only in reference to conduct surrounding the sentencing offense. People v McGraw , 484 Mich 120, 127-129; 771 NW2d 655 (2009). In other words, “[o]ffense variable s are properly scored by refere nce only to the sentencing offense except when the language of a particular offense variable statu te specifically provides otherwise.” Id. at 135.

OV 10 involves exploitation of a vulnerable victim. MCL 777.4 0(1). MCL 777.40(1)(a) mandates that 15 points be assess ed if “[p]redatory conduct was involved.” “ ‘Predatory conduct’ means preoffense conduct directed at a victim, or a la w enforcement officer posing as a potential victim, for the primary purpose of victimization.” M CL 777.40(3)(a). This Court has held that “predatory conduct unde r the statute is behavior that is predatory in nature, precedes the offense, [and is] directed at a person for the primary purpose of causing that person to suffer from an injurious action . . . .” People v Kosik , 303 Mich App 146, 159-160; 841 NW2d 906 (2013) (citation and quotation marks omitted; alteration in ori ginal). “However, predatory conduct does not encompass ‘ any preoffense conduct, but rather only those forms of preoffense conduct that are commonly understo od as being predatory in natu re . . . as opposed to purely opportunistic criminal conduct or preoffense conduct involving nothing more than run-of-themill planning to effect a crime or subsequent escape without de tection.’ ” Id. at 160 (citation omitted).

OV 13 governs a continuing pattern of criminal behavior and re quires the assessment of 25 points if “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(c). “For determining the appropriate points under this variable, all crimes within a 5 -year period, including the sent encing offense, shall be counted regardless of whether the offens e resulted in a conviction.” M CL 777.43(2)(a).

Both OVs were properly scored. OV 10 was properly scored beca use defendant initiated preoffense predatory conduct towa rd both victims, Acosta and Re ynolds, with his e-mails and text messages, and the conduct was not mere preparation or “run -of-the-mill” planning. Defendant sent an e-mail to Acosta on July 19, 2013, after find ing out that she was romantically involved with another man, directly accusing Acosta of being a fornicator and an adulterer. Moreover, defendant texted Acosta on October 21, 2013, that he would “beat the living dog F” out of Acosta’s boyfriend if he tried to “charm” defendant’s so n. A preponderance of the evidence supports the conclusion that these messages were preda tory in nature, insofar as they inflicted emotiona l injury upon both Acosta and Reynolds. 1 Also relevant is the fact that

1 Granted, Reynolds was not the direct target of defendant’s pre offense messages, as defendant was unaware at the time that Reynolds was Acosta’s new boyfrien d and only found out on October 31, 2013. However, when he threatened to “beat the liv ing dog F” out of Acosta’s new boyfriend, he nonetheless threaten ed a “victim,” which brings h is conduct under the ambit of OV 10. See People v Huston , 489 Mich 451, 463; 802 NW2d 261 (2011).-3- defendant sent Acosta a string of other messages containing vei led threats on October 25, 2013, October 27, 2013, October 28, 2013, and October 30, 2013. Thus , defendant’s actions were sufficient to qualify as predatory conduct intended to inflict emotional injury upon both victims, considering the nature and tenor o f the threats. Moreover, def endant’s contention that the conduct was not preoffense fails, as defendant’s two aggravated stalking convictions encapsulated defendant’s conduct from October 31, 2013, to Dece mber 6, 2013, as noted in the felony information.

Additionally, OV 13 was properly scored. The prosecution’s co ntention below with respect to OV 13 was that defendant committed a brand new offen se of aggravated stalking when he “spoof called” both Acosta a nd Reynolds in the summer months of 2014. This theory is correct. Per MCL 750.411i, “[a]ggr avated stalking consists of the crime of ‘stalking,’ . . . and the presence of an aggravating circumstance . . . .” People v Threatt , 254 Mich App 504, 505; 657 NW2d 819 (2002). “Stalking,” in turn, is defined as “a wil lful course of conduct involving repeated or continuing harassment of another individual that wo uld cause a reasonable person to feel terrorized, frightened, in timidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threate ned, harassed, or molested.” MCL 750.411i(1)(e). The relevant aggrav ating circumstance here, inturn, is “[a]t least 1 of the actions constituting the offense is in vi olation of a restraining order and the individual has received actual notice of that restraining order . . . .” MCL 750.411i( 2)(a). Defendant’s spoof calls to Acosta and Reynolds satisfy the e lements of aggravated stalking . A preponderance of the evidence supported the finding that defendant made numerous ano nymous calls to both Acosta and Reynolds. Although defendant did not speak during these ca lls, the clear implication was that defendant was the caller. Indeed, Acosta testified that s he was aware of how spoof calls worked because defendant used spoof cards, which are used to ma ke spoof calls, while she was married to him. These calls w ould objectively cause a reasonab le person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, con sidering the context in which the calls were made—an almost year-long barrage of threats and apoc alyptic messages aimed at Acosta and Reynolds. Moreover, e vidence was presented that Aco sta and Reynolds were terrorized, frightened, intimidated, threatened, harassed, or m olested. Finally, defendant made these calls in direct violation of the PPOs issued to Acosta an d Reynolds. Thus, defendant’s spoof calls satisfy the elements of aggravated stalking for the purposes of OV 13. Moreover, defendant’s contention that his spoof calls were part of a cont inuous chain of activity linked to the two aggravated stalking convi ctions, and not a separate off ense, fails. As previously mentioned, the aggravated stalking convictions encapsulated def endant’s activity from October 31, 2013, to December 6, 2013, and the calls were placed after this time. Moreover, the prosecution made clear at trial that the purpose of introducing evidence of defendant’s spoof calls was as “other-acts evidence” pursuant to MCL 768.27b with regard to Acosta, and as res gestae evidence with regard to both Acosta and Reynolds. Accor dingly, OV 13 was properly scored.

Next, defendant argues that the trial court should have grante d his motion for a mistrial because of the prosecution’s impr oper publication of inadmissib le evidence. We disagree.

“[T]he proper standard of review for a trial court’s decision to grant or deny a mistrial is abuse of discretion.” People v Ortiz-Kehoe , 237 Mich App 508, 513; 603 NW2d 802 (1999). “An abuse of discretion occurs when the court chooses an outcom e that falls outside the range of-4- reasonable and principled outcomes.” People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). “A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his ab ility to get a fair trial.” Ortiz-Kehoe , 237 Mich App at 513-514.

During trial, the prosecution placed a text message from Acost a to defendant on a slide projector for the jury to read. The text message read, in rele vant part:

In one of your emails to me you admitted to a gambling addicti on, buying sex from women, stealing credit card theft, etcetera. You’ve b een in the jail and a mental hospital.

However, when the prosecutor asked Acosta to read the text mess age to the jury, she read from a redacted version in her ha nds, which provided:

In one of your emails to me you admitted to -- you admitted to some things that I can’t say but I don’t preach to you about not bei ng a good example for our son.

Before trial, the prosecution and defense agreed to redact the portion of the text message delineating defendant’s vices. When defense counsel argued its motion for a mistrial based on the publication of the text messa ge, the prosecutor conceded to the trial court that she “made the mistake of putting that on the projector . . . .” However, the prosecutor also noted that the text message was on the projector for “less than five seconds.” In response to defendant’s mistrial request, the trial cour t held the following:

Okay. There was -- there were a number of text messages that were on the screen at that point, it wasn’t just one text message of two or three sentences. And it was up for less than five seconds. I’d be surprised if any of the jurors were able to focus in and read those fe w words of the whole page tha t quickly.

Having said that, even if they had the reference -- there was a reference to being in the mental hospital, that part has already been refere nced in other emails. So I don’t think that is -- that issue’s relevant.

The rest of it, the gambling addiction, the paying for sex and the use of the credit cards although potentially p rejudicial to the defendant, I don’t think it is so prejudicial in this case a s to warrant a mistrial.

If you want a limiting instruction I’m happy to give one. You can come up with one at the end of the tri al. So I’m denying that reque st.

Defense counsel did not request a curative instruction, saying, “I don’t believe that the limiting instruction would cure the tain t in this case and, and just wou ld object to it.”

The brief publication of the unredacted text message does not warrant a mistrial, as there was no irregularity that prejudiced defendant and impaired his ability to get a fair trial. See Ortiz-Kehoe , 237 Mich App at 513-514. First, the record shows that the pr osecutor had displayed the text message for, at most , a very brief period. It is highly questionable whether the-5- jurors even read the entirety of the text message, especially c onsidering that a large number of text messages and e-mails were published during the four-day tr ial. Second, abundant independent evidence was presente d essentially reiterating the contents of the text message. With respect to defendant’s alleged gambling addiction, stealin g, and credit card theft problems, evidence was presented that defendant admitted to taking advant age of Acosta financially. Emails from Acosta to defendant were presented, in which Acosta accused defendant of abusing her financially. Defendant also explicitly admitted in an e-ma il, which was also read into evidence, “I do know I got heavily addicted to gambling and tha t contributed to much of my actions such as stealing and scamming to feed my habit.” Moreo ver, with respect to defendant’s incarceration and histor y of mental commitment, evidence was pr esented that defendant was detained by the police and handcuffed on November 6, 2013, for attempting to perform an exorcism on his father, and thus , a logical extension of this f act is that defendant was incarcerated following the event. Also, an e-mail in which def endant himself admitted that he was “committed to the looney hospital” was also introduced. Ad ditionally, with respect to defendant “buying sex from women,” defendant admitted in an e-m ail presented at trial that he was involved in “fornication with many women.” Acosta’s allega tions in the inadmissible text message may have concerned othe r incidents, and not the inciden ts covered in the evidence properly admitted at trial. However, the evidence that was pre sented already cast defendant in a negative light with regard to sim ilar issues, and any harm that the inadmissible text message could have caused was likely inconsequential. Accordingly, the trial court did not choose an outcome falling outside the range of reasonable and principled outcomes, and therefore, did not abuse its discretion in denying defendant’s motion for mistrial . See Unger , 278 Mich App at 217. 2

Finally, defendant argues that OV 4, OV 10, and OV 13 were sco red based on facts not found by the trier of fact beyond a reasonable doubt or admitte d by him, and therefore, his sentence is unconstitutional under People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015). We agree.

To preserve this issue, a defendant must object to the error du ring sentencing on the same ground. Lockridge , 498 Mich at 392. Here, defendant did not object to the scori ng of his OVs on the basis of improper judicial fact-finding, and therefore, this issue is unpreserved for appellate review. See id

. Unpreserved claims of error are reviewed for plain error. Lockridge , 498 Mich at 392- 393. “To establish entitlement to relief under plain-error rev iew, the defendant must establish that an error occurred, that t he error was plain, i.e., clear o r obvious, and that the plain error

2 To the extent that defendant also argues that the prosecutor c ommitted misconduct with regard to the admission of the text message, defendant’s argument fail s since the prosecutor’s conduct did not deprive him of a fair and impartial trial, as discussed above. See People v Lane , 308 Mich App 38, 62; 862 NW2d 446 (2014) (explaining that a prosecu tor commits misconduct if he or she abandons the responsibility to seek justice and denies t he defendant a fair and impartial trial).-6- affected substantial rights.” Id. Substantial rights are affected when there is prejudice—“the error affected the outcome of the lower court proceedings.” Id. at 393. Furthermore, even if all three requirements are satisfied, “an appellate court must exer cise its discretion in deciding whether to reverse.” Id. “Reversal is warranted only when the error resulted in the co nviction of an actually innocent defendant or seriously affected the fairne ss, integrity, or public reputation of judicial proceedings independe ntly of the defendant’s innocence .” Id.

The Michigan Supreme Court recently held in Lockridge , 498 Mich at 373-374, 383, that because Michigan’s formerly mandatory sentencing guidelines req uired increasing a defendant’s mandatory minimum sentence based on facts not found by the jury beyond a reasonable doubt or admitted by the defendant, the mandatory aspect of the sentenci ng guidelines was unconstitutional. Accordingly, the sentencing guidelines are n ow advisory. Id. at 391-392.

Under the new framework, “cases in which (1) facts admitted by the defendant and (2) facts found by the jury were sufficient to a ssess the minimum n umber of OV points necessary for the defendant’s score to fall in t he cell of the sentencing gri d under which he or she was sentenced” are not tainted by pl ain error, as there is no preju dice resulting to the defendant. Lockridge , 498 Mich at 394-395. Conversely, “cases in which facts admit ted by a defendant or found by the jury verdict were insufficient to assess the minimum number of OV points necessary for the defendant’s sco re to fall in the cell of the sentencing grid unde r which he or she was sentenced” involve an unconstitutional constraint that impa irs a defendant’s Sixth Amendment rights. Id. at 395. Thus, “all defendants (1) who can demonstrate that th eir guidelines minimum sentence range was actually constrained by t he violation of the Sixth Amendment and (2) whose sentence s were not subject to an upward departure can establish a threshold showing of the potential for plain error sufficient t o warrant a remand to the trial court for further inquiry.” Id . On remand, the trial court must consider whether it “would h ave imposed a materially different sen tence but for the constitutio nal error.” Id. at 397.

OV 4, OV 10, and OV 13 were assessed based on facts not found by the trier of fact beyond a reasonable doubt or admitted by defendant. Defendant was convicted of two counts of aggravated stalking, MCL 750.411i. As mentioned above, per MCL 750.411i, “[a]ggravated stalking consists of the crime of ‘stalking,’ . . . and the pre sence of an aggravating circumstance . . . .” Threatt , 254 Mich App at 505. “Stalking,” in turn, is defined as “a w illful course of conduct involving repeated or c ontinuing harassment of another individual that would cause a reasonable person to feel terror ized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frighte ned, intimidated, threatened, harassed, or molested.” MCL 750.411i(1)(e). The relevant aggr avating circumstance here, in turn, is “[a]t least 1 of the actions constituting the offense is in violation of a restraining order and the individual has received ac tual notice of that restraini ng order . . . .” M CL 750.411i(2)(a). OV 10, which mandates assessment of 15 points if predatory cond uct was involved, was scored based on judicial fact-finding, as the jury did not necessarily find beyond a reas onable doubt, and defendant did not admit himself, that preoffense victimization was involved. See MCL 777.40(1)(a). Moreover, OV 13, which mandates assessment of 25 points if the sentencing offense was part of a pattern of felonious criminal activity in volving three or more crimes against a person, was scored based on judicial fact-finding as well, as the jury did not necessarily find beyond a reasonable doubt, and nor did defendant admit himself, that spoof calls were made during the summer months of 2014. See MCL 777.43(1)(c). Final ly, OV 4, which mandates-7- assessment of 10 points if “[s]erious psychological injury requ iring professional treatment occurred to a victim,” was score d based on judicial fact-findin g, as the jury did not necessarily find beyond a reasonable doubt, and nor did defendant admit him self, that either Acosta or Reynolds required professional psychological treatment. See MC L 777.34(1)(a). OV 4 does require assessment of points if “serious psychological injury m ay require professional treatment.” MCL 777.34(2). However, again, the jury was not r equired to necessarily find that psychological injury was needed in its verdict for aggravated s talking, and nor did defendant admit this fact. Accordingly, OV 4, OV 10, and OV 13 were base d on facts not found beyond a reasonable doubt by the jury or admitted by defendant.

Defendant was sentenced before July 29, 2015. In addition, th e judicial fact-finding altered the sentencing guidelines range. Defendant was assesse d 10 points for OV 4, 15 points for OV 10, and 25 points for OV 13. His total OV points were 5 0, putting him at OV-level V. See MCL 777.66. He was also assessed 25 prior record variable (PRV) points, putting him at PRV-level D. Id . Accordingly, his sentencing gui delines range was 14 to 43 mo nths for a third habitual offender. See MCL 777.6 6; MCL 769.11. Without the as sessment of points for OV 4, OV 10, and OV 13, defendant would have received zero OV points, which would have resulted in a sentencing guidelines range of 5 to 34 months. Accordingl y, the facts admitted by defendant or found by the jury beyond a reas onable doubt were insufficien t to assess the minimum number of OV points necessary for defendant’s score to fall in the cel l of the sentencing grid under which he was sentenced.

Therefore, remand is warranted in order for the trial court to determine whether it would have imposed a materially different sentence but for the consti tutional error. Lockridge , 498 Mich at 397. The court must first “ ‘include an opportunity fo r . . . defendant to avoid resentencing by promptly notifyi ng the [trial] jud ge that resen tencing will not be sought.’ ” Id . at 398 (citation omitted; alteration in original). “If . . . defe ndant does not so notify the court, it should obtain the views of counsel, at least in writing, but ne ed not require the presence of . . . Defendant, in reaching its decision (with or without a hearing) whether to resentence.” Id

. (citation and quotation marks omitted). The trial court must t hen place in the record its decision not to resentence defendant with an explanation, or must vacate the sentence and, with defendant present, resentence defendant in conformance with Lockridge

. Id . In determining whether it would have imposed a materially different sentence, the court m ust only consider the circumstances that existed at th e time of the original sentence

. Id

. Finally, we note that the judgmen t of sentence incorrectly sta tes that defendant was sentenced as a fourth habitual offender, rather than as a third habitual offender. Therefore, if the trial court decides not to resentence defendant, the judgment o f sentence shall be corrected to reflect that defendant was sentenced as a third habitual offend er. See MCR 6.435(A); MCR 7.216(A)(7).-8- We affirm defendant’s convictions, but remand for further proc eedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Kathleen Jansen /s/ Karen M. Fort Hood /s/ Mark T. Boonstra