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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 11, 2015

v No. 320973
Ionia Circuit Court DAMACENO RICHARD ABREGO, LC No. 2013-015796-FH

Defendant-Appellant.

Before: H OEKSTRA , P.J., and O’C ONNELL and M URRAY , JJ.

P ER C URIAM

.
Defendant appeals by leave granted his sentence for Second-Off ense Operating While Intoxicated (OWI-2nd), MCL 257.625(7)(a)(ii) (occupant under ag e 16); and Possession of Marijuana, MCL 333.7403(2)(d). The trial court sentenced defen dant to two to five years’ imprisonment for OWI-2nd, and 12 months for possession of marij uana. On appeal, defendant does not challenge his c onvictions, but instead asserts only th at he is entitled to resentencing due
to the trial court’s error in sco ring offense variables (OV) 8 and 19. Because the trial court clearly erred in the scoring of O V 8, we vacate defendant’s sen tence and remand for resentencing under properly scored sentencing guidelines.

On June 7, 2013, defend ant drove while intoxicated with two ch ildren under the age of 16 in his vehicle. In particular, defendant transported his daugh ter and her half-sister from his home to a video store, and they were driving back to defendant’s hom e when a police officer activated his emergency lights as a signal for defendant to stop his vehi cle. Defendant did not stop. After the officer activated his siren, defendant activated his vehicl e’s turn signal, but did not pull over. The officer then turned his siren off, but defendant continued driving. When the officer reactivated his siren, defendant finally stopped. Defendant’s blood alcohol level was .14, over the legal limit of .08 as set forth in MCL 257.625(1)(b). Defe ndant also had marijuana in his possession. Defendant pled guilty to OWI-2nd and possession of marijuana, pursuant to a plea offer involving a Killebrew 1 cap of one year in jail and dismissal of a second count of OWI involving an occupant under 16, as well as dismissal of a charg e of driving with a suspended

1 People v Killebrew , 416 Mich 189; 330 NW2d 834 (1982).-2- license. Defendant later lost the benefit of this agreement wh en he violated his bond terms. The
trial court sentenced defendant as noted above.

On appeal, defendant challenges the trial court’s assessment o f 15 points for OV 8 and 10 points for OV 19 for his OWI-2nd count. Specifically, defendan t maintains on appeal that OV 8
should not have been scored because defendant did not use force to move the children and because he was transporting the children to his home which was not a place of “greater danger.” Defendant also argues that OV 19 should not have been scored be cause defendant’s failure to pull over was not an effort to flee from police; rather, becaus e defendant was inebriated, he claims his reaction times were slowed and consequently there wa s an unintended delay in his efforts to find a safe place to stop.

Defendant objected to the scoring of OV 8 and OV 19 at sentenc ing, and thus preserved his claims for appeal. MCR 6.429(C); People v Gibbs , 299 Mich App 473, 491; 830 NW2d 821 (2013). We review the trial cou rt’s factual determinations for clear error and its determinations regarding the scoring of sentencing variables must be supported by a preponderance of the
evidence. People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribe d by statute, i.e., the application of the facts to the law, is a ques tion of statutory interpretation , which an appellate court reviews de
novo.” Id.

In this case, it is defendant’s contention that both OV 8 and OV 19 should have been scored at zero points. As curre ntly scored, defendant’s total OV score is 45 points, resulting in an OV level of IV under the minimum sentence ranges for a class E offense. See MCL 777.12f; MCL 777.66. An error in the scoring of either one of the chall enged variables would reduce defendant’s OV level to III, and if both variables were scored incorrectly defendant’s OV level would be II. See MCL 777.66. Thus, an incorrect scoring of on e or both variables would alter
defendant’s minimum recommended sentence under the legislative sentencing guidelines and entitle defendant to resentencing. See People v Francisco , 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

OV 8 accounts for victim asportation or captivity, and MCL 777 .38(1)(a) directs trial courts to assess 15 points where “[a] victim was asported to an other place of greater danger or to a situation of greater danger or was held captive beyond the ti me necessary to commit the offense.” For purposes of scoring OV 8, “each person who was p laced in danger of injury or loss
of life” should be counted “as a victim.” MCL 777.38(2)(a). C ontrary to defendant’s arguments on appeal, asportation “can be accomplished without the employm ent of force against the victim,” People v Spanke , 254 Mich App 642, 647; 658 NW2d 504 (2003), and “may occur ev en when the victim voluntarily accomp anied the defendant to a plac e or situation of greater danger[,]” People v Dillard , 303 Mich App 372, 379; 845 NW2d 518 (2013). Moreover, contrary to defendant’s arguments, it is clear, that, by moving the children to his vehicle, which defendant then operated while i ntoxicated, defendant placed the children in a “situation of greater danger” than the situation they faced in the relative s afety of defendant’s home or the
video store.

Nonetheless, we are persuaded, albeit for reasons not discusse d by defendant on appeal, that the trial court clearly erre d in scoring OV 8. In particu lar, to score “as portation” under MCL-3- 777.38, this Court has held there must be “some movement” of a victim that is “not merely incidental to committing an underlying offense.” Spanke , 254 Mich App at 647. See, e.g., People v Thompson , 488 Mich 888; 788 NW2d 677 (2010) (finding th at movement of a victim to
the bedroom where a sexual assault occurred was incidental to t he crime). In this case, the offense at issue involved operation of a motor vehicle while in toxicated with an occupant under the age of 16 in the vehicle. MCL 257.625(7)(a)(ii). Thus, mo vement of the victims to
defendant’s vehicle and thereaft er defendant’s transportation o f the victims in the vehicle was
incidental to his commission of the underlying offense of OWI-2 nd involving an occupant under age 16. Consequently, movement of the children in this case ca nnot constitute “asportation” for purposes of scoring OV 8, and the trial court thus clearly erre d by considering asportation as a basis for assessing 15 points. 2 OV 8 should have been score d at zero points. MCL 777.38(1)(b ).

In reaching our conclusion, we disagree with the prosecutor’s assertion that OV 8 could be scored at 15 points because the movement of the children con tinued for longer than was necessary to commit the offense. In making this argument, the prosecution analogizes to People
v Chelmicki , 305 Mich App 58, 70; 850 NW2d 612 (2014). In that case, this Court concluded that a defendant could be scored under OV 8 for holding a victi m captive in relation to the commission of unlawful imprisonment because unlawful imprisonme nt occurs “when the victim
is held for even a moment” and the restraint on the victim for more than a moment thus constituted captivity for “longer than the time necessary to co mmit the offense of unlawful imprisonment.” Id. However, in likening the present movement of the children to the captivity
in Chelmicki , the prosecution ignores the distinction between captivity and asportation expressed in the plain language of MCL 777.38( 1)(a), which indicates that OV 8 should be scored when a victim “was asported to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense .” (Emphasis added). Under the last antecedent rule, 3 “beyond the time necessary to commit the offense” modifies onl y the phrase “held captive.” See generally Chelmicki , 305 Mich App at 70. It follows that captivity beyond the time necessary to commit an offense should be scored under OV 8 as described in Chelmicki

, but that whether defendant can be scored for asportation of the children is not necessarily dependant on whether the moveme nt continued for a longer time t han necessary to commit OWI2nd involving an occupant under 16. Instead, as discussed, for purposes of defining asportation

2 In particular, the trial court scored OV 8 based on the conclu sion that “every inch” the vehicle moved placed the children in “greater and greater” danger becau se there was a “drinking and driving person behind the wheel.” The trial court further reas oned that the danger to the children escalated when the police tried to stop defendant and he initia lly refused to stop the vehicle. On appeal, neither party provides much analysis of the trial court ’s reasoning. We see no reason to
discuss the trial court’s rationa le in further detail, but note merely that, like the parties, the trial court failed to acknowledge that any movement of the children w as incidental to the underlying
offense and that incidental a sportation cannot be scored under OV 8.

3 Under the ‘last antecedent’ rule, a modifying or restrictive w ord or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent unless something in the statute requires a diffe rent interpretation.” People v Brantley , 296 Mich App 546, 557; 823 NW2d 290 (2012).-4- relative to OV 8, “the only requirement for establishing asport ation is that the movement not be incidental to committing an underlying offense.” Spanke , 254 Mich App at 647.

We likewise disagree with the prosecution’s assertion that def endant’s specific transportation of the children from the video store parking lot to the open road involved a “secreting” of the children as described in Spanke such that driving from the parking lot to the road may be perceived as “asportation” to a more dangerous loca tion. As a factual matter, we
see no indication in the record evidence that the children were less visible while defendant drove on the road as opposed to driving in the parking lot. And, in any event, the danger faced by the
children arose from defendant’s intoxication while operating a motor vehicle, regardless of where he operated that vehicle, and, in this context, their vis ibility or lack thereof did not place them at a greater risk of danger. Cf. Spanke , 254 Mich App at 648 (find ing victim was asported to situation of greater danger when “secreting” of the victim e nabled the commission of criminal sexual conduct). In other words, the danger to the children wa s an inherent part of defendant’s conviction under MCL 257.625(7)(a)( ii), and this danger arose o nce defendant “put the vehicle in motion, or in a position posi ng a significant risk of causin g a collision,” and it continued, regardless of the location of the vehicle or the children’s vis ibility, until defendant returned the vehicle “to a position posing no such risk.” See People v Wood , 450 Mich 399, 405; 538 NW2d 351 (1995). Defendant’s operation of the vehicle was, in short , one continuous event and any transportation of the children duri ng this time was merely inci dental to defendant’s operation of a vehicle occupied by minors. Because any movement of the childr en in this case was incidental to defendant’s commission of OWI-2nd involving an occupant unde r 16, the trial court clearly erred in scoring OV 8 on the basis of defendant’s transportatio n of the children. Because the proper score of zero points for OV 8 would alter defendant’s ap propriate legislative sentencing guidelines, he is entitle d to be resentenced. See Francisco , 474 Mich at 89 n 8.

Regarding OV 19, this variable accounts for interference with the administration of justice. MCL 777.49 directs tria l courts to assess 10 points w here “[t]he offender otherwise interfered with or attempted to interfere with the administrati on of justice[.]” MCL 777.49(c). Interference with the administration of justice “has broad appl ication” and “encompasses more than just the actual judicial process,” embracing “[c]onduct th at occurs before criminal charges are filed, acts that constitute obstruction of justice, and act s that do not necessarily rise to the level of a chargeable offense[.]” People v Hershey , 303 Mich App 330, 343; 844 NW2d 127 (2013) (citation omitted). Because police officers are “an int egral component in the administration of justice, regardless of whether they are opera ting directly pursuant to a court order[,]” interference with a pol ice officer’s duties may const itute interference with the administration of justice. People v Barbee , 470 Mich 283, 288; 681 NW2d 348 (2004). An assessment of 10 points for OV 19 is appropriate where a defend ant fails to obey a police officer’s order to freeze or pull over. See People v Ratcliff , 299 Mich App 625; 831 NW2d 474 (2013), vacated in part on other grounds People v Ratcliff , 495 Mich 876; 838 NW2d 687 (2013); People v Cook , 254 Mich App 635; 658 NW2d 184 (2003), overruled on other gro unds by People v McGraw , 484 Mich 120, 133 n 42; 771 NW2d 655 (2009). “Fleeing from p olice can easily become ‘interference with the administration of justice’ particularly where . . . there was an effective command for the vehicle to stop, in the form of th e police activating their lights and
sirens.” Ratcliff , 299 Mich App at 633.-5- In this case, a police officer observed defendant driving erra tically, for example, weaving in his lane and crossing the center line. In light of this con duct, the officer gave defendant a lawful and clear signal to pull over, but defendant failed to d o so and he thus interfered with the administration of justice. The trial court therefore properly assessed 10 points for OV 19 based on a preponderance of the eviden ce. Defendant has not shown th at the trial court clearly erred,
and thus is not entitled to rese ntencing as a re sult of the sco ring of OV 19.

In sum, the scoring of OV 19 at 10 points was proper, but OV 8 should have been scored at zero points and, because the proper scoring of OV 8 alters d efendant’s recommended minimum sentencing range under the legislative guidelines, he i s entitled to resentencing. See

Francisco , 474 Mich at 89 n 8.

Vacated and remanded for resen tencing. We do not retain juris diction.

/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell