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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 21, 2016

v No. 323230 Wayne Circuit Court ALICE DENISE EVANS, LC No. 13-008313-FC

Defendant-Appellant.

Before: S TEPHENS , P.J., and H OEKSTRA and S ERVITTO , JJ.

P ER C URIAM

.

A jury convicted defendant of armed robbery, MCL 750.529, and conspiracy to commit armed robbery, MCL 750.157a. The trial court sentenced her as a third-offense habitual offender, MCL 769.11, to concurrent prison terms of 15 to 24 ye ars for the robbery conviction and 85 months to 24 years for the conspiracy conviction. Defen dant appeals as of right. For the reasons explained in this opinion, we affirm defendant’s convic tions, but remand for further proceedings consistent with People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015).

I. BASIC FACTS

Defendant’s convictions arise from the robbery of Cheap Charli es, a store in Detroit where defendant worked. The robbery occurred at about 7:00 a.m . on August 10, 2013, shortly after defendant and co-worker, William Carroll, arrived to openthe store. Defendant typically
waited outside the store while C arroll deactivated the security alarm and turned on the lights. On the morning in question, while defendant waited outside, a man entered the store, assaulted Carroll, threatened to shoot Ca rroll, and then stole money from the cash registers. Defendant, initially believed to be a witness to the robbery, described an unknown man as the robber. She told police that the robber pushed her to the ground before ent ering the store and that she was
unable to call 911 because she c ould not get to her cell phone. Police determined these claims to be untrue after viewing video f ootage in which defendant was no t pushed during the incident and
in which defendant coul d be seen using her cell phone.

After becoming a suspect in the robbery, defendant gave a stat ement to police, and she named another co-worker, Al Bu tler, as the robber. Defendant a dmitted that she knew beforehand that Butler intended to rob the store and, when aske d how long she and Butler had been planning the robbery, defendant responded: “[a] couple of months.” However, Butler’s physical characteristics did not m atch those of the robber, and Butler was eliminated as a-2- suspect. When Butler was eliminated as a suspect, defendant wa s questioned again, but she refused to identify the man who carried out the robbery. After this questioning, while an officer was returning defendant to her jail cell, defe ndant spontaneous ly told the police officer, “I’m sorry for lying to you, I was just the look-out.” The jury con victed defendant of armed robbery and conspiracy to commit armed robbery. The trial court senten ced defendant as noted above. Defendant now appeals as of right.

II. PROSECUTORIAL MISCONDUCT

Defendant argues that the prosecutor “engaged in a pattern of asking leading questions and introducing inadmissible and/ or irrelevant and inflammatory evidence.” In particular, defendant claims that the prosecutor engaged in misconduct by h aving a police officer testify to
defendant’s admission that she was “the look-out.” While the o fficer described this remark as an “excited utterance” by defendant, defendant claims it was in ac tuality inadmissible hearsay. Defendant also complains that the prosecutor impermissibly used leading questions during
redirect examination of witness Kimball Vaughn, one of the owne rs of the store, to suggest that defendant’s hysterical reacti on to the robbery was feigned.

Defendant failed to object to the prosecutor’s conduct or to r equest a curative instruction, meaning that defendant’s claim of prosecutorial misconduct is u npreserved and reviewed for plain error affecting defenda nt’s substantial rights. People v Brown , 294 Mich App 377, 382; 811 NW2d 531 (2011). When a claim of prosecutorial misconduct is unpreserved, “we cannot find error requiring reversal whe re a curative instruction coul d have alleviated any prejudicial
effect.” People v Callon , 256 Mich App 312, 329-330; 662 NW2d 501 (2003). “Given that a prosecutor's role and responsibil ity is to seek justice and notmerely convict, the test for prosecutorial misconduct is whether a defendant was denied a fa ir and impartial trial.” People v
Dobek , 274 Mich App 58, 63; 732 NW2d 546 (2007). “[A] prosecutor's good-faith effort to
admit evidence does not constitute misconduct.” Brown , 294 Mich App at 383.

In this case, contrary to defendant’s argument, the prosecutor did not commit misconduct by introducing evidence of defendant’s statement that she was a “look-out.” Defendant argues
that this statement did not constitute an excited utterance und er MRE 803(2) and that the prosecutor committed misconduct by offering it at trial. An ex cited utterance is a “statement relating to a startling event or condition made while defendant was under the stress of excitement caused by the event or conditi on.” MRE 803(2). Although we ag ree that defendant’s statement
cannot be characterized as an exc ited utterance under MRE 803(2 ), this does not preclude the statement’s admission. Instead, as an admission by defendant o ffered in evidence against defendant, it was not hearsay at all. Rather, it was an admiss ion by a party opponent and thus admissible as substantive evidence under MRE 801(d)(2)(A). See People v Lundy , 467 Mich 254, 257; 650 NW2d 332 (2002). Accordingly, there was no plain error in the prosecutor’s good-faith introduction of a dmissible evidence. 1 Brown , 294 Mich App at 383.

1 In the alternative, defendant a rgues that counsel provided ine ffective assistance by failing to object to the prosecutor’s introduc tion of defendant’s hearsay admission that she was the “look--3- With regard to defendant’s claim that the prosecutor impermiss ibly asked leading questions of Vaughn during redirect , defendant has not shown th at the use of leading questions constitutes prosecutorial misconduct requiring reversal. See People v Watson , 245 Mich App 572, 587; 629 NW2d 411 (2001). That is, while leading question s are generally considered improper during direct examination, they are not categorically prohibited. See MCL 768.24 (“Within the discretion of the court no question asked of a wit ness shall be deemed objectionable solely because it is leading.”); MRE 611(d)(1) (“Leading questi ons should not be used on direct
examination of a witness except as may be necessary to develop the witness’ testimony.”). And, the prosecutor’s use of leading questions does not automaticall y necessitate reversal. Watson

, 245 Mich App at 587. Instead, to warrant relief, the defendant must “show some prejudice or pattern of eliciting in admissible testimony.” Id . “Where the defendant was not prejudiced by the leading questions, reversal is not required.” Id. In this case, defendant identifies two leading questions by the prosecutor. 2 We do not think that two brief questions in the course of the entire trial constitute a troublesome pattern. Moreover, defendant fa ils to explain how she was prejudiced by this questioning, p articularly given the other ev idence of her guilt, and any prejudice could have been cured by a jury instruction. Given d efendant’s failure to demonstrate prejudice, she is not entitle d to reversal on this basis. See Callon , 256 Mich App at 329-330.

III. SENTENCING ISSUES

A. SCORING OF THE GUIDELINES

Defendant argues that the trial court erred in scoring offense variables (OVs) 4 and 10. In particular, defendant contends that OV 4 was improperly scor ed because there was no
evidence that Carroll suffered s erious psychological injury. L ikewise, defendant maintains that
OV 10 should not have been scored because there was no evidence Carroll had demonstrated a vulnerability that was ex ploited during the robbery.

Defendant objected at sentencing to the scoring of OV 10 on th e same grounds urged on appeal. Therefore, this issue is preserved with respect to OV 10. People v Metamora Water Serv, Inc

, 276 Mich App 376, 382; 741 NW2d 61 (2007). However, although d efendant also objected at sentencing to the sco ring of OV 4, she did so based on a ground other than that raised on appeal. “An objection based on one ground at trial is insuf ficient to preserve an appellate attack based on a different ground.” People v Asevedo , 217 Mich App 393, 398; 551 NW2d 478 (1996). Therefore, this issue is unpreserved with respect to O V 4, and reviewed for plain error. People v Odom, 276 Mich App 407, 411; 740 NW2d 557 (2007).

out.” However, because the prosecutor’s introduction of admiss ible evidence was not improper, any objection by defense counsel would have been meritless, and counsel cannot be considered ineffective for failing to make a futile objection. See People v Chambers , 277 Mich App 1, 11; 742 NW2d 610 (2007).

2 Specifically, Vaughn testified that, during a phone call with defendant shortly after the robbery, defendant “was kind of hysterical and she said, we had just got robbed.” During redirect, the prosecutor then questioned Vaughn as follows: “you don’t know whether she was crying and carrying on to cover her tracks because she was involved in thi s, do you?” and “[s]o she could have been acting that way for t hat purpose, too, is that fair t o say?”-4- Determining whether a trial cour t properly scored sentencing va riables is a twostep process. First, the trial court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. The clear error standard asks whether the appellate court is left with a defini te and firm
conviction that a mistake has been made. Second, the appellate court considers de novo “whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute.” [ People v Rhodes, 495 Mich 938; 843 NW2d 214 (2014) (internal citations omitted).]

Defendant first challenges the trial court’s assessment of 10 points for OV 4, which considers “psychological injury to a victim.” MCL 777.34(1). A score of 10 points is authorized when “[s]erious psychological in jury requiring professional tre atment occurred to a victim.” MCL 777.34(1)(a). The instructions provide that 10 points are to be scored “if the serious psychological injury may require professional treatment. In ma king this determination, the fact that treatment has not been sought is not conclusive.” MCL 777 .34(2). For example, this Court has affirmed the scoring of OV 4 where “the victim suffers, amo ng other possible psychological effects, personality changes, a nger, fright, or feelings of bei ng hurt, unsafe, or violated.” People v Armstrong , 305 Mich App 230, 247; 851 NW2d 856 (2014). Evidence of nigh tmares and difficulty sleeping may also support the scoring of OV 4. See, e.g., People v Earl , 297 Mich App 104, 110; 822 NW2d 271 (2012); People v Drohan , 264 Mich App 77, 90; 689 NW2d 750 (2004).

In this case, a preponderance of the evidence supports the tri al court’s findings that Carroll suffered from residual ps ychological effects from the r obbery such as “not being able to sleep, nightmares, physical res ponses as well.” Carroll testif ied at trial that he was “terrified” during the robbery. Then, at sen tencing, almost a year after t he robbery, one of the store’s owners, Terrance Farnen testified, based on his conversations w ith Carroll, that Carroll was so “anxious” that he would get an ups et stomach, that Carroll coul d be “sick for days,” that he had nightmares, and that he awoke sometimes in the middle of the ni ght sweating and feeling as though “somebody’s coming to get him.” This evidence amply sup ported the trial court’s conclusion that Carroll may require psychological treatment. S ee MCL 777.34(2). Defendant has not shown plain error in the scoring of OV 4.

Defendant challenges the trial court’s 15-point score for OV 1 0, which considers “exploitation of a vulnerable victim.” MCL 777.40(1). The term “exploit” is defined as “to manipulate a victim for selfish or unethical purposes” and “vul nerability” is defined as “the readily apparent susceptibili ty of a victim to injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)(b) and (c). A score of 15 points is authorized i f “[p]redatory conduct was involved.” MCL 777.40(1)(a). Pre datory conduct is defined as “preoffense conduct directed at a victim . . . for the primary purpose of victimization.” MCL 77 7.40(3)(a). In other words, “‘[p]redatory conduct’ under the statute is behavior that prece des the offense, directed at a person for the primary purpose of causing that person to suffer from an injurious action or to be
deceived.” People v Cannon , 481 Mich 152, 161; 749 NW2d 257 ( 2008). For example, “[t]he timing and location of an offense—waiting until a victim is alo ne and isolated—is evidence of predatory conduct.” People v Ackah-Essien , __ Mich App __, __; __ NW2d __ (2015), slip op at 12. The statute does not require that the victim have an inher ent vulnerability to merit a score
under OV 10. People v Huston , 489 Mich 451, 466; 802 NW2d 261 (2011). “Rather, the-5- statutory language allows for sus ceptibility arising from exter nal circumstances as well,” and the defendant’s predatory conduct may enhance a victim’s vulnerabil ity. Id. at 466-467.

In this case, the trial court found that defendant engaged in preoffense conduct specifically directed at Carroll, who was vulnerable in part be cause he was an older man who walked with a cane. The court also noted that defendant’s part icipation involved waiting outside while Carroll opened the store and that Carroll was specificall y targeted because “he was the one that was opening up the store.” Those findings are not clearly erroneous and support the 15- point score. Defendant planned the robbery with another person . The robbery was scheduled for a day when Carroll, a 67-year-old man who walked with a cane, o pened the store. Defendant pretended to guard the door while Carroll opened the store when in actuality she was waiting for her confederate when the circumstances were optimal for a succe ssful robbery—while Carroll
was alone in the store after he had unlocked the doors and deac tivated the alarm, but before he turned on the lights. The trial court did not clearly err in a ssessing 15 points for OV 10.

B. JUDICIAL FACT-FINDING

Defendant also argues that the trial court impermissibly engag ed in judicial fact-finding with respect to OVs 3, 4 and 10 to increase her minimum sentenc e range under the guidelines in
contravention of Alleyne v United States , 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). Because defendant did not object to the scoring of the guidelin es at sentencing on this ground, this issue is not preserved, and our review is limited to plain error affecting defendant’s substantial rights. Lockridge , 498 Mich at 392.

Recently, in Lockridge , our Supreme Court held that the rule from Apprendi v New Jersey , 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extende d by Alleyne , “applies to Michigan’s sentencing guidelines and renders them constitutiona lly deficient” because of “the extent to which the guidelines require judicial fact-finding beyond the facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range . . . .” Lockridge , 498 Mich at 364. To remedy this defect, the Court held that “a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only . . . .” Lockridge , 498 Mich at 365.

We agree that the trial court engaged in judicial fact-finding when it scored OVs 3, 4, and
10. The court’s determinations t hat Carroll suffered both a bo dily and serious psychological injury, and that defendant engaged in predatory conduct against a vulnerable victim, were based on facts beyond those found by the jury or admitted by defendan t. Cf. People v Stokes , __ Mich App __, __; __ NW2d __ (2015), slip op at 6-7. Further, becaus e the scoring of these variables affected the recommended minimum sentencing range, and the tria l court sentenced defendant within the resulting guidelines range, it is apparent that defe ndant has made a threshold showing of potential for plain error sufficient to warrant a remand to the trial court for further inquiry. Lockridge , 498 Mich at 395.-6- Accordingly, we remand this case to the trial court for a Crosby 3 hearing to determine whether the court would have imposed a materially different sen tence under the sentencing procedure described in part VI of our Supreme Court’s decision in Lockridge , 498 Mich at 395- 399. Under these procedures, defendant faces the possibility o f a more severe sentence, meaning that she must be given the opportunity to inform the trial court that resentencing will not be sought. Stokes , slip op at 11-12. If the trial court determines that it woul d have imposed the
same sentence absent the uncons titutional constr aint on its dis cretion, it may reaffirm the original

sentence. Lockridge , 498 Mich at 396-399. If, howev er, the court determines that it would not have imposed the same sentence absent the unconstitutional cons traint on its disc retion, it shall
resentence defendant. Id.

C. ASSESSMENT OF COURT COSTS

Defendant argues that the trial court erred in assessing $400 in court costs. Specifically, because there was no statute authorizing the imposition of such costs at the time of her sentencing, defendant asserts tha t she is entitle d to have the court costs vacated in keeping with People v Cunningham , 496 Mich 145, 158; 852 NW2d 118 (2014). 4 Defendant’s claim is not supported by the record.

At sentencing, the trial court verbally ordered defendant to p ay $130 for the “state cost,” $136 for the “crime victims asse ssment,” and $400 for “court co sts.” But, it appears that the trial court intended to impose attorney fees and simply misspoke when it referred to “court costs.” That is, the assessments correspond to figures in the presenten ce report, which recommended that defendant pay “ $130.00 State Cost,” “a crime victim’s asse ssment” of $136, and “ attorney fees of $400.00.” Moreover, the judgment of sentence does not requ ire the payment of any “court costs.” It orders defendant to pay (1) “68.00 x 2” ($13 6) for “State Minimum,” i.e., the minimum state costs authorized under MCL 769.1j(1)(a), (2) $130 for “Crime Victim,” i.e., the fee for crime victim’s rights services authorized under MCL 780 .905(1)(a), and (3) $600 for “Attorney Fees,” i.e., reimbursement of “[t]he expenses of prov iding legal assistance to the defendant” as authorized under MCL 769.1k(1)(b)( iii ) (now § 1k(1)(b)( iv )). These assessments add up to $866, the amount speci fied as the total. The space f or “Court Costs” is blank. A court speaks through its written orders and judgments, not through it s oral pronouncements. People v
Vincent, 455 Mich 110, 123; 565 NW2d 629 (1997); Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977). Consequently, because the judgment of sen tence does not require defendant to pay court costs, t here is no error to correct and no relief that can be granted.

IV. ADMISSION OF DEFENDANT’S STATEMENTS

3 United States v Crosby , 397 F3d 103 (CA 2, 2005).

4 Currently, reasonable court co sts are authorized by MCL 769.1k (1)(b)( iii ), which was amended after the Supreme C ourt’s decision in Cunningham . See People v Konopka , 309 Mich App 345, 357-359; 869 NW2d 651 (2015). However, this amended provision was not in effect at the time of defendant’s sentencing on July 22, 2014. See id. at 357; 2014 PA 352.-7- Finally, in a pro se supplemental brief filed pursuant to Supr eme Court Administrative Order No. 2004-6, Standard 4, defendant argues that one or more of her statements were improperly admitted at trial because the police continued to qu estion her after she invoked her right to counsel. The issue as s tated is not preserved because defendant did not move to suppress the statements before trial or object to the introduction of th e statements at trial. People v McCrady, 244 Mich App 27, 29; 624 NW2d 761 (2000). Therefore, review i s limited to plain error affecting defendant’s substantial rights. Id.

“A statement obtained from a def endant during a custodial inte rrogation is admissible only if the defendant voluntarily, knowingly, and intelligentlywaived his Fifth Amendment rights.” People v Akins , 259 Mich App 545, 564; 675 NW2d 863 (2003). “[A] suspect in police custody must be informed specifi cally of the suspect’s right to remain silent and to have an attorney present before being questioned.” People v Kowalski , 230 Mich App 464, 472; 584 NW2d 613 (1998). If a defendant is advised of and invokes her right to counsel, “the interrogation must cease until an attorney is present.” Id . (citation omitted). A defendant’s invocation of the right to counsel requires a statement that ca n “reasonably be construed to be an expression of a desire for the assistance of an attorney.” Davis v United States , 512 US 452, 459; 114 S Ct 2350; 129 L Ed 2d 362 (1994) (citation omitted).

The record shows that defendant made three statements while in custody, one on August 26, 2013, and two on August 27, 2013. Each of the first two st atements were given after defendant was advised of her rights, acknowledged that she unde rstood them, and agreed to waive them, as indicated in the advice-of-rights forms initiale d and signed by defendant, which were admitted into evidence. Further, an officer who questione d defendant specifically testified that defendant never asked to speak to a lawyer. While defenda nt claims in her brief on appeal that she invoked her right to counsel at some point, this self- serving assertion is entirely unsubstantiated by the lower cour t record. Moreover, with resp ect to defendant’s third statement, made spontaneously on August 27 while a police offic er escorted defenda nt to her jail cell, this statement was a volunteered remark, and not the prod uct of custodial interrogation, meaning we see no basis on which this remark might have been su ppressed. See People v
Anderson , 209 Mich App 527, 532; 531 NW2d 780 (1995); People v O’Brien , 113 Mich App 183, 192-193; 317 NW2d 570 (1982). Because the record does not show that defendant unequivocally and unambiguously invoked her right to counsel, d efendant has not shown plain
error and she was not entitled t o the suppression of her statem ents.

Finally, we note that, on appeal , defendant raises several oth er challenges to the admission of her statements. However, defendant failed to incl ude these additional arguments in her statement of the questions pr esented, meaning these matters have not been properly presented for our review and need not be considered. See MCR 7.212(C)(5) ; People v Albers , 258 Mich App 578, 584; 672 NW2d 336 (2003). Nonetheless, we have review ed defendant’s arguments
and find them to be without merit . Nothing in the record suppor ts a finding that defendant did not knowingly and intelligently waive her rights, that she invoked her right to remain silent, or that her statements were involuntary. People v Daoud , 462 Mich 621, 642; 614 NW2d 152 (2000); People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988); People v Henry (After Rem)

, 305 Mich App 127, 145; 854 NW2d 114 (2014).-8- We affirm defendant’s convictions and remand for further proce edings regarding
defendant’s sentences in accordance with Lockridge . We do not retain jurisdiction.

/s/ Cynthia Diane Stephens
/s/ Joel P. Hoekstra
/s/ Deborah A. Servitto