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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 21, 2016

v No. 327420 Jackson Circuit Court STEVEN LEE KRYGOWSKI, LC No. 13-003522-FC

Defendant-Appellant.

Before: S TEPHENS , P.J., and S ERVITTO and G LEICHER , JJ.

P ER C URIAM

. A jury convicted defendant of assault with intent to murder, M CL 750.83, assault with intent to rob while armed, MCL 750.89, first-degree home invasi on, MCL 750.110a(2), and assault with a dangerous wea pon (felonious assault), MCL 750.82 , for the brutal beating of his 69-year-old, disabled neighbor. Defendant raises myriad challe nges to his convictions and sentences. We acknowledge an evidentiary error but find it har mless. Defendant’s sentencing complaints have merit, however, and require resentencing. We therefore affirm defendant’s convictions, but vacate his senten ces and remand for further pr oceedings.

I. BACKGROUND

Defendant worked as a maintenance man and serviced a home that was divided into apartments in Jackson. He lived next door to this building and was well known to its residents— John Bickel, Christine Hors t, and Tilghman Crawley.

In the early morning hours of November 21, 2013, someone broke into Bickel’s apartment. Bickel was a week short of his 70th birthday and re lied on a wheelchair for mobility. He recounted that he awoke to find defendant, whom he knew by n ame, standing over his bed. Defendant demanded money. When Bickel refused, defendant beat him about the head and face with a baseball bat.

Horst heard the fray through the home’s air vents. She heard Bickel scream, “stop hitting me,” and heard defendant, whose voice she recognized, demand mo ney. Horst also picked up the “whapping” sounds of the physical assault. Horst called ou t to her boyfriend, Crawley, who corroborated Horst’s descripti on of the sounds. Horst telephon ed 911 while Crawley went outside and unsuccessfully tried t o force his way into Bickel’s apartment. Crawley eventually saw defendant walking down Bickel’s exterior wheelchair ramp, c arrying a baseball bat.-2- Crawley asked defendant what he was doing and defendant instruc ted him to “mind [his] own damn business.” Defendant the n entered his nearby apartment.

When police arrived at the scene they found a bloody bat outsi de the home and Bickel in his bed, covered in blood. Later that morning Bickel was flownto the University of Michigan Hospital with life-threatening skull and facial injuries. Bick el’s right eyeball literally “was broken” rendering him blind on tha t side, and he lost several t eeth. Subsequent tests matched the blood on the bat with Bickel.

Based on Bickel’s and Crawley’s identification of defendant as the assailant, the police secured a warrant for defendant’s arrests. They found him in h is apartment, intoxicated and asleep. Defendant steadfastly denied any role in Bickel’s beat ing. Nonetheless, the jury convicted him as charged.

II. SUFFICIENCY OF THE EVIDENCE

Defendant contends that the pros ecution presented insufficient evidence to support his intent in relation to the assault with intent to murder convict ion. We review challenges to the sufficiency of the evidence de novo, viewing the evidence “in the light most favorable to the prosecution” to determine whether a rational trier of fact “cou ld have found that the essential elements of the crime were proven beyond a reasonable doubt.” People v Odom , 276 Mich App 407, 418; 740 NW2d 557 (2007). “Conflicts in the evidence must be resolved in favor of the prosecution,” and “[c]ircumstantial evidence and reasonable inf erences arising therefrom may constitute proof of the elements of the crime.” People v Bennett , 290 Mich App 465, 472; 802 NW2d 627 (2010). “Special deferen ce is given to a trial court’ s findings when based on witness credibility.” People v Sherman-Huffman , 241 Mich App 264, 267; 615 NW2d 776 (2000).

To establish a charge of assault with intent to murder, the pr osecution must prove beyond a reasonable doubt that (1) an assault occurred, (2) the defend ant bore an actual intent to kill, and (3) if the victim died, it would be deemed a murder. People v McRunels , 237 Mich App 168, 181; 603 NW2d 95 (1999). Contrary to defendant’s appellate cla ims, neither premeditation nor deliberation are elements of this offense.

“ ‘Because of the difficulty of proving an actor’s state of mi nd, minimal circumstantial evidence is sufficient.’ ” People v Ericksen , 288 Mich App 192, 196; 793 NW2d 120 (2010), quoting McRunnels , 237 Mich App at 181. A defenda nt’s intent to kill can be inf erred from “[t]he severity and vastness of the victim’s injuries.” People v Mills , 450 Mich 61, 71; 537 NW2d 909 (1995). As described in People v Taylor , 422 Mich 554, 568; 375 NW2d 1 (1985), quoting Roberts v People , 19 Mich 401, 416 (1870):

“[T]he jury ‘may draw the inference, as they draw all other inf erences, from any facts in evidence which to their minds fairly prove its existen ce.’ And in considering the question they may, and should take into conside ration the nature of the defendant’s acts constituting the assault; the temper or disposition of mind with which they were apparently performed, whether the instrume nt and means used were naturally adapted to produce death, his conduct and d eclarations prior-3- to, at the time, and after the assault, and all other circumstances calculated to throw light upon the intention with which the assault was made. ”

Here, Bickel testified that defendant beat him repeatedly about the face and head with a baseball bat. Dr. Paul Kloostra, the maxillofacial surgeon who treated Bickel at the University of Michigan, testified that Bickel’s injuries were critical and li fe-threatening. Bickel suffered at least 10 fractures, including a broken nose, forehead laceratio ns, a fracture in his sinus tunnel, several fractures and injuries to his orbital sockets and sever al skull fractures, as well as bleeding inside his brain. Four to six of Bickel’s teeth had to be remo ved. Bickel’s “broken” eyeball was saved for cosmetic purposes only. The level of force necessary to inflict these injuries, in conjunction with the use of a heavy bat, was more than sufficie nt to establish defendant’s intent to kill beyond a reasonable doubt.

III. OTHER ACTS EVIDENCE

Defendant correctly posits that the court erred by admitting o ther acts evidence under MRE 404(b). We review for an abuse of discretion a trial court ’s decision to admit evidence over a party’s objection. People v Dobek , 274 Mich App 58, 84-85; 732 NW2d 546 (2007). “An abuse of discretion occurs when a trial court’s decision falls outside the range of reasonable and principled outcomes.” People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003).

MRE 404(b)(1) governs the admission of other acts evidence, an d provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. I t may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or s ystem in doing an act, knowledge , identity, or absence of mistake or accident when the same is material, wheth er such other crimes, wrongs, or acts are contemporaneous with, or prior or s ubsequent to the conduct at issue in the case.

When reviewing whether evidence was properly admitted under MRE 404(b), we must consider (1) whether the evidence was “offered for a proper purpose unde r Rule 404(b)”; (2) whether the evidence was “relevant under Rule 402 as enforced through Rule 104(b)”; (3) whether the evidence’s probative value was substantially outweighed by unfa ir prejudice as provided in MRE 403; and (4) whether the trial court provided “a limiting instr uction to the jury.” People v VanderVliet , 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich 1205 ( 1994). “At its essence, MRE 404(b) is a rule o f inclusion, allowing relevant o ther acts evidence as long as it is not being admitted solely to demonstrate criminal propensity.” People v Martzke , 251 Mich App 282, 289; 651 NW2d 490 (2002).

MRE 402 provides that “[a]ll relevant evidence is admissible. . . . Evidence which is not relevant is not admissible.” “ ‘Relevant evidence’ means evide nce having any tendency to make the existence of any fact that is of consequence to the determi nation of the action more probable or less probable than it would be without the evidence.” MRE 4 01. Logical relevancy can be established by showing similaritybetween the charged conduct a nd the defendant’s prior act. When the current and past acts are sufficiently similar, admiss ion of other acts evidence can-4- establish that the defendant had a common plan, scheme or syste m. See People v Sabin (After Remand) , 463 Mich 43, 63-64; 614 NW2d 888 (2000). Contrary to the tri al court’s musings, the other-act evidence proffered in this case was not sufficiently similar to the current charged conduct to establish a common plan, scheme or system.

The other-acts evidence was p resented through the testimony of Amanda Anders and Mark Nichols. They described that approximately a year before the charged incident, defendant was a social guest in their home. When the homeowners decided to retire for the evening, they asked defendant to leave. He complied, but later returned uninvited and intoxicated and propositioned two teenage girls in the home. Anders and Nichol s again asked defendant to leave and were forced to “push[] him out the door.” During this stru ggle, defendant punched both Anders and Nichols in the f ace, knocking them to the ground.

The only similarities between the current and past events were defendant’s intoxication and his use of violence against the homeowners. In the earlier incident, defendant came uninvited to an acquaintance’s hom e and requested sexual acts f rom minors. In the current matter, defendant broke into his neighbor’s house while armed w ith a baseball bat intent on stealing cash. Defendant threw two punches during the earlier incident after being forcibly ejected from a home. This scenario bears no resemblance to a h ome invasion committed with the intent to rob, and the two punches differ markedly from the violence unleashed by repetitive swings of the baseball bat. Given the lack of any real similar ity between the two events, the sole purpose of the other-act evidence was to portray defendant as a ggressive and violent. This is precisely the inference forbidden by MRE 404(b). Accordingly, the trial court clearly abused its discretion in admitting it.

Improper admission of evidence under MRE 404(b) does not neces sarily warrant relief. Rather, we must determine “after an examination of the entire c ause,” whether “it shall affirmatively appear that it is more probable than not that the error was outcome determinative.” People v Lukity , 460 Mich 484, 495-496; 596 NW 2d 607 (1999) (quotation marks and citation omitted). The defendant bears the burden of demonstrating that such error resulted in a miscarriage of justice. Id . at 493-494; see also People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

Bickel positively identified de fendant as his attacker and des cribed the baseball-bat attack. Crawley observed defenda nt leaving Bickel’s apartment carrying a baseball bat and a bloody bat was found outside the rental home. Both Crawley and Horst heard the attack and described that it sounded like “a slab of beef being hit.” The jury found this evidence more credible than defendant’s accoun t of what occurred that night—that he was in his apartment smoking marijuana and drinking when he saw someone else in the vicinity and merely went to check on Bickel. Given the compelling nature of the evidence a gainst defendant, we cannot find that the improper admission of the other acts-evidence resulted in a miscarriage of justice. Accordingly, defendant is not entitled to relief.-5- IV. HEARSAY EVIDENCE

Defendant asserts that the prosecution improperly bolstered th e credibility of its witnesses by having them read various hearsay statements into t he record. He further contends that his counsel was ineffec tive for failing to object to the a dmission of these statements.

During direct examination, Horst described the sounds she hear d through the air vents, including that she recognized the assailant’s voice as belongin g to defendant. At the end of this examination, the prosecutor asked the court if Horst could read her police statement into the record. Defense counsel voi ced no objection. Horst read:

I was sitting in my room watching tv. I can hear Mr. Bickel s noring every night through the vent on the floor in my room. Well I didn’t hear him so I was listening. I heard him yelling stop, get out of my damned hous e. And then I heard another voice tell him to shut the hell up and a sound li ke a big slab of beef – excuse me, a side of beef being punched. So I called 911, se nt . . . Crawley to his – to his apartment to see if he could get – help Mr. Bickel . The cops arrived and that was all.

The prosecutor inquired why Horst did not name defendant in her statement. Horst replied that she was uncertain at the time of the offense of defendant’s las t name. Defense counsel did not explore this issue duri ng cross examination.

Crawley then testified regarding the noises he heard inside Bi ckel’s apartment and his observation of defendant leaving Bickel’s apartment. The prose cutor requested that Crawley read his statement and defense c ounsel again indicated that he had no objection. Crawley stated:

Me and my girlfriend was watching a movie. Every night we canhear . . . Bickel snoring and everything a nd (undecipherable) as usual we did until 2:00 a.m. when I went downstairs. My girlfriend called me up in a p anic saying she’s hearing something from John’s apartment that didn’t sound right . I listened, I heard him yelling get off me, stop, you get out of my house. I heard what sounded like a side of beef being hit very hard.

I ran downstairs to his apartment and tried to open the door. He was yelling for help. I tried to open it but it wouldn’t open. I yelled to my girlfriend, call 911. While I was outside waiting for the police I saw Ste ve leave John’s apartment.

The final line of Crawley’s written statement actually read, “ While I was outside waiting for the police I saw leave John’s apartment.” The prosecution clarified the correct wording and asked Crawley why he did not name defendant in the statement. Crawley asserted that he had no reason for excluding defendant’s name. Defense counsel revisit ed this issue on crossexamination, clarifying that Crawley’s police statement did not name defendant or refer to assailant as “the maintenance man.”

The final challenged statement came from Ronald Kemppainen. K emppainen and defendant were acquainted before the incident in question and r econnected while both awaited-6- trial in the Jackson County Jail. Kemppainen testified that de fendant admitted during their incarceration “that he hit [an old man] in the head with a base ball bat until his eye popped out of his head and just beat the living shit out of him.” The prosec ution sought to admit two letters that Kemppainen had written to the jail guards during this time period, and defense counsel indicated that he had no objection to the admission of this evi dence. Kemppainen read these letters into the record. The first requested a transfer to ano ther portion of the jail because “I’m being strong armed. [Defendant’s] attorney is going to subpoen a me to court. I want to talk to [defendant’s] prosecutor in his case.” The second letter reite rated:

I don’t want to testify for the defense and [defendant’s] case , but I believe his attorney will call me to testify. I would rather testify f or the prosecutors. [Defendant] was more or less s trong arming me into testifying. He had concocted a whole story for me to testify to. . . . [Defendant] is going to force . . . me to commit perjury. I don’t want to be c alled to testify for that offense. . . .

Also without objection from defense counsel, the prosecutor pr esented a note that defendant’s cellmate had written to Kemppainen describing the f alse testimony that defendant expected Kemppainen to provide. Specifically, Kemppainen was t o testify that he was with defendant the entire night of the offense, drinking alcohol and smoking marijuana. Defendant asked Kemppainen to corroborate his testimony that an unidentif ied suspect was lo itering outside the rental units.

Generally, we would review a tri al court’s decision to admit e vidence for an abuse of discretion. People v Waclawski , 286 Mich App 634, 670, 780 NW 2d 321 (2009). However, each time that the prosecution sought to introduce a witness’s prior written statement, defense counsel specifically stated that he had “no objection” to its a dmission. Through this express approval, defendant waived any cl aim of error related to the admission of the evidence. People v Fetterley , 229 Mich App 511, 520; 583 NW2d 199 (1998). This waiver nece ssarily includes defendant’s challenge that the prosecutor engaged in misconduct by presenting the evidence to improperly bolster the credibili ty of the state’s witnesses.

Defendant also challenges def ense counsel’s performance in all owing these errors to be waived. Defendant preserved this challenge by filing a motion in this Court to remand for a hearing pursuant to People v Ginther , 390 Mich 436; 212 NW2d 922 (1973). This Court denied the motion because defendant had “not demonstrated that further factual development of the record or an initial ruling by the trial court is necessary at this time in order for this Court to review the issues on appeal.” People v Krygowski , unpublished order of the Court of Appeals, entered December 18, 2015 (Docket No. 327420). Accordingly, ou r review is limited to mistakes apparent on the existing record. See People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009).

“ ‘[T]he right to counsel is the right to the effective assist ance of counsel.’ ” United States v Cronic , 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984), quoting McMann v Richardson , 397 US 759, 771 n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). An ineffec tive assistance claim include s two components: “First, the defendant must show that counsel’s perf ormance was deficient. . . . Second, the defendant must show that the defi cient performance-7- prejudiced the defense.” Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To establish the deficiency compo nent, a defendant must show that counsel’s performance fell below “an objective s tandard of reasonableness” under “preva iling professional norms.” People v Solmonson , 261 Mich App 657, 663; 683 NW2d 761 (2004). With respect to the pr ejudice aspect, the defendant must demonstrate a reasonable probability that bu t for counsel’s errors, the result of the proceedings would have been different

. Id. at 663-664. The defendant also must overcome the strong presumptions that “ counsel’s conduct [fell] within the wide range of reasonable professional assistance” and that counsel’s actions wer e sound trial strategy. Strickland , 466 US at 689. [ People v Galloway , 307 Mich App 151, 157-158; 858 NW2d 520 (2014), rev’d in part on other grounds 498 M ich 902; 870 NW2d 893 (2015).]

The evidence presented during Kemppainen’s testimony was highl y prejudicial. Kemppainen’s two notes to jail guards documented that defendant was trying to strong arm him into providing a false alibi and that he was frightened for his safety if he refused. The note instructing Kemppainen regarding his testimony was written by d efendant’s cellmate, who was not presented as a witness at tri al. The details matched defen dant’s version of events provided on the stand at trial. And Kemppainen denied the accuracy of d efendant’s story on the stand. A reasonable trial strategy woul d include an objection to the introduction of these statements.

Kemppainen’s notes were inadmissible hearsay pursuant to MRE 8 01(d)(1). Pursuant to this rule, a witness’s prior statement “is not hearsay if”:

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (B) consistent with the declarant’s testimony and is offered to rebut an expre ss or implied charge against the declarant of recent fabrication or improper influence or motive

. . . . [Emphasis added.]

Kemppainen testified at trial and was available for cross-exam ination. The notes were consistent with his trial testimony that defendant attempted to strong arm him into testifying in a certain manner. Although defendantprovided a different versio n of events at trial, he did not accuse Kemppainen “of recent fabrication or improper influence or motive.” Accordingly, the notes fell within the definition of hearsay and were inadmissib le absent an exception to the hearsay rule. MRE 802. The prosecution makes no attempt on ap peal to locate a hearsay exception and instead inaccurately contends that because the no tes are contradictory, they could be used to impeach Kemppainen’s c redibility. We see no contrad iction and reject this argument.

However, defendant cannot estab lish prejudice. Three individu als who were well acquainted with defendant placed h im at the scene with a baseba ll bat. The victim expressly testified that defendant assaulted him. Kemppainen’s notes did not impact the outcome of the proceedings.

The note written by defendant’s cellmate and describing the te stimony Kemppainen should give at trial is a stateme nt by a declarant who was not present in the courtroom. Yet, as it was not presented to prove the truth of the matter asserted, itis not hearsay and counsel had no-8- reason to object on that ground. MRE 801(c). Defendant posits no other theory on which counsel should have objected to the admission of this evidence. Accordingly, we decline to give this issue further review. See People v Watson , 245 Mich App 572, 587; 629 NW2d 411 (2001).

Counsel’s strategy in permitting the admission of Crawley’s an d Horst’s statements is obvious: neither witness named defendant as the suspect in thos e written missives. These omissions helped defendant cast doubt on the veracity of the wi tnesses’ accounts, as one would expect them to name the suspect if he was well known to them. Defense counsel emphasized this very point when cross-exami ning Crawley, and reiterated du ring closing argument:

[I]f you look at the documents that have been admitted regardin g the statements that they wrote when they firs t overheard what was transpiring in Mr. Bickel’s apartment was they heard a voice. Nowhere did it say that theyheard Steve Krygowski, that they both said they know well and have talked t o many times, never does it say that they heard the voice of the maintenance man. They heard a voice. It was later as this story evolves that they start conn ecting dots and think that, “Oh, must have been Steve Krygowski – it was Steve Krygow ski,” and they get everybody oriented on that way . . . .

That counsel’s strategy ultimately was unsuccessful does not re nder his assistance ineffective. People v Kevorkian , 248 Mich App 373, 414-415; 639 NW2d 291 (2001).

V. IDENTIFICATION PROCEDURE

In a brief filed pursuant to Supreme Court Administrative Orde r 2004-6, Standard 4, defendant contends that law enforcement used an unreasonably su ggestive identification procedure in relation to Bickel. The investigating officer tes tified that on the night of the incident, Crawley claimed to hav e seen defendant leaving Bickel ’s apartment. The officer later travelled to the hospital to interview Bickel. Bickel indicate d that “his neighbor” assaulted him. The officer “asked him if he meant the maintenance man Steve, which he stated yes.” Defendant contends that this “identification” was tainted because the off icer placed defendant before the victim as the suspect, guaranteeing his selection. Contrary to defendant’s claim, this was investigation, not “identification.” The officer named one of Bickel’s neighbors and asked if he was the neighbor in question. No law enforcement officer parad ed defendant into Bickel’s hospital room. Accordingly, defenda nt’s claim is completely wi thout merit.

VI. DOUBLE JEOPARDY

Defendant next complains that his three assault convictions vi olated double jeopardy principles as they all arose f rom a single attack. As defendan t failed to raise th is issue below, our review is limited to plain erro r affecting defendant’s substant ial rights. Carines , 460 Mich at 763-764.

The United States and Michigan Constitutions both protect agai nst double jeopardy. US Const, Am V; Const 1963, art 1, § 15. The double jeopardy prov isions afford individuals “three related protections”: they protect against (1) “a second prosec ution for the same offense after acquittal”; (2) “a second prosecution for the same offense afte r conviction”; and (3) “multiple punishments for the same offense.” People v Ream , 481 Mich 223, 227; 750 NW2d 536 (2008),-9- quoting People v Nutt , 469 Mich 565, 574; 677 NW2d 677 (2004). The first two protect ions are referred to as the “successive p rosecutions” strand of double j eopardy, Nutt , 469 Mich at 575, while the third comprises the “multiple punishments” strand. People v Smith , 478 Mich 292, 299; 733 NW2d 351 (2007). To determine if a defendant’s convic tions and sentences amount to multiple punishments for a single offense in violation of doubl e jeopardy principles, we rely on the “same-elements test.” This test was originally elucidated in Blockburger v United States , 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). Under this test, we compare offenses to determine whether each offense “requires proof of a fact which the other does not.” Smith , 478 Mich at 305 (citation omitted) . If this is true, multiple puni shments may be imposed. Id. at 316.

Conviction for felonious assault and assault with intent to ro b while armed does not violate double jeopardy protec tions because each offense requir es proof of an element that the other does not. Felonious assault requires the use of an actua l dangerous weapon, i.e., “a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or oth er dangerous weapon.” MCL 750.82(1). In contrast, assault with intent to rob while armedrequires a specific intent to rob or steal, an element not necessary to convict a person of feloniou s assault. People v Akins , 259 Mich App 545, 554; 675 NW2d 863 (2003); MCL 750.89. Although t he defendant must be “armed,” use of a feigned weapon suffices. See People v Walls , 265 Mich App 642, 646; 697 NW2d 535 (2006). To prove a charge of assault with intent to m urder, the prosecutor need not present any evidence regarding the use of a weapon, real or imp lied. Rather, the defendant must bear “an actual intent to kill,” McRunels , 237 Mich App at 181, which is not an element of felonious assault or assault with intent to rob while armed. A s each offense requires proof of distinct elements, conviction of a ll three does not violate def endant’s right to be free from double jeopardy.

VII. SENTENCING

Defendant raises challenges to his sentences that warrant reli ef. In his Standard 4 brief, defendant aptly notes errors evi dent in the scoring of his offe nse variables (OVs). In a supplemental brief filed by appe llate counsel, defendant demand s relief based on People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015).

The interpretation and application of the statutory sentencing guidelines are legal questions subject to de novo review. People v Cannon , 481 Mich 152, 156; 749 NW2d 257 (2008).

Under the sentencing guidelines, the circuit court’s factual d eterminations are reviewed for clear error and must be supported by a prepond erance of the evidence. Whether the facts, a s found, 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 interpret ation, which an appellate court reviews de novo. [ People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) (citations omitted).]

See also People v Steanhouse , 313 Mich App 1, 38; ___ NW2d ___ (2015).

Defendant first takes issue with the assessment of 10 points f or OV 1, relating to the “aggravated use of a weapon.” MCL 777.31(1). The assessment o f 10 points for this variable is-10- appropriate where “[t]he victim was touched by” a weapon other than a firearm, “knife or other cutting or stabbing weapon,” “harmful biological substance, har mful biological device, harmful chemical substance, harmful chemical device, harmful radioactiv e material, harmful radioactive device, incendiary device, or e xplosive device.” MCL 777.31(1) (a)-(d). Defendant contends that the trial court was not permitted to consider this variabl e because MCL 777.31(2)(e) precludes assessment when “the conviction offense is a violatio n of . . . MCL 750.82” (felonious assault). Defendant misinterpre ts the statute. MCL 777.31(2)( e) actually precludes assessment of five points when the conviction offense is felonious assault : “Do not score 5 points if the conviction offense is a violation of . . . MCL 750.82 . . . .” (Emphasis added.) The court was free to score 10 points under th e plain statutory language.

Defendant challenges the assessment of 10 points for OV 4, “ps ychological injury to a victim.” When considering the scoring of OV 4, our Legislature has instructed th at only “serious psychological injury requiring pr ofessional treatment” merits a score of 10 points. MCL 777.34(1)(a). The victim’s failure to actually seek treatment d oes not prevent scoring 10 points for this variable. MCL 777.34(2). That treatment remains unrequ ested, however, does not eliminate the OV’s concurrent requirement that the victim’s psy chological injury qualify as “serious” enough to merit professional intervention. Here, Bic kel provided no victim impact statement. Bickel’s trial testimony was full of colorful epith ets and threats directed at his assailant. Bickel became quite angry on the stand and had to b e given time to “calm down.” However, the prosecutor directly asked Bickel if he was frighte ned and Bickel responded, “No, I was just pissed.” Bickel indeed was angry enough to threaten t o kill defendant right there in the courtroom. Bickel referred to being “traumatized” and that thi s affected his memory. Placed in context, this comment pertained to physicaltrauma. There is absolutely no evidence that Bickel has suffered anxiety, depression, or sleeplessness since this i ncident. Accordingl y, we discern no evidence supporting the sc oring of this variable.

Defendant argues that the trial court improperly assessed 25 p oints for OV 12. MCL 777.42(1)(a) provides for such a score when “[t]hree or more co ntemporaneous felonious criminal acts involving crimes against a person were committed. ” A contemporaneous felonious criminal act may only be counted, if it “has not and will not r esult in a separate conviction.” MCL 777.42(2)(a)( ii ). As the other offenses against a person committed by defenda nt that night all led to a conviction, the court improperly assessed points f or this variable.

The court also assessed 25 points for OV 13. Such an assessme nt is proper when the sentencing offense “was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(c). Defendant’s only challenge in this regard is that the court could not consider offe nses that were scored under OV 12. See MCL 777.43(2)(c). As noted, the score for OV 12 must be eliminated. This correction remedies any previous error in assessing points for OV 13.

The court assessed 10 points under OV 19, which gauges, in rel evant part, “interference with the administration of justice.” MCL 777.49(1). Defendantcontends that his act of resisting arrest does not fall within the scope of the measured conduct. This is simply not true. See People v Hershey , 303 Mich App 330, 344; 844 NW2d 127 (2013) (noting that “flee ing from police contrary to an order to freeze” amounts to an “interfere nce or attempted interference with-11- the administration of justice”); see also People v Ratcliff , 299 Mich App 625, 633; 831 NW2d 474 (2013), vacated in part on other grounds 495 Mich 876; 838 NW2d 687 (2013).

Defendant’s total OV score was originally calculated at 126 po ints, placing him in OV Level VI. Less the 35 points incorrectly assessed for OVs 4 an d 12, defendant’s total OV score is only 91 points and his OV Level is reduced to Level V. Defe ndant’s recommended sentencing range under the legislative sent encing guidelines (with a fourt h habitual offender enhancement) for his most serious offense is thereby reduced from 270 to 900 months to life imprisonment to 225 to 750 months to life imprisonment. As this correction alt ers defendant’s sentencing guidelines range, we must remand for recalculation of defendant ’s scores and resentencing. People v Francisco , 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

We note that defendant also challenges the trial court’s relia nce on judicially found facts when assessing points for OVs 1, 2, 3, 6, 10, 13, and 19. The elimination of these scores would greatly reduce defendant’s total OV score and drop his OV level even further. However, trial courts are still permitted to c onsider judicially found facts w hen imposing senten ce as long as the court’s findings are supported by a preponderance of the eviden ce. Lockridge , 498 Mich at 392 n 28; Steanhouse , 313 Mich App at 38. This claim therefore lacks merit.

On remand, the trial court must proceed consistent with Lockridge and this Court’s pronouncement in Steanhouse , 313 Mich App 1. Pursuant to these precedents, a trial court must accurately score a defendant’s offense and prior record variabl es but recognize that the sentencing guidelines ranges are advisory only when imposing se ntence. Steanhouse , 313 Mich App at 38.

Accordingly, we affirm defenda nt’s convictions, but vacate his sentences and remand for resentencing. We do not r etain jurisdiction.

/s/ Cynthia Diane Stephens /s/ Deborah A. Servitto /s/ Elizabeth L. Gleicher