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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 24, 2015

v No. 319141 Wayne Circuit Court FELTON DWAYNE KNUCKLES, LC No. 08-008237-FC

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and K. F. K ELLY and S HAPIRO , JJ.

P ER C URIAM

. Defendant was convicted by a jury of unlawful imprisonment, MC L 750.349b, possession of a firearm by a person convicted of a felony (felo n-in-possession), MCL 750.224f, three counts of felonious assault, MCL 750.82, and possession o f a firearm during the commission of a felony (felony- firearm), MCL 750.227b. Defenda nt was originally sentenced as a fourth habitual offender, MCL 769.12, to 15 to 30 years’ impr isonment for unlawful imprisonment, two to five year s for felon-in-possession, two to four years for each count of felonious assault, and two years for felony-firearm. Defendant appealed to this Court, which held that the trial court erre d in assessing 15 points for offe nse variable (OV) 8 and remanded for resentencing. People v Knuckles , unpublished opinion per curiam of the Court of Appeals, issued December 14, 2010 (Docket No. 289886). Defendant was re sentenced, as a fourth habitual offender, to 10 to 15 years for unlawful imprisonment, two to five years for felon-inpossession, two to four years fo r each count of felonious assau lt, and two years for felonyfirearm. Defendant now appeals as of right from his resentenci ng and we affirm.

This case arises from an incident in which defendant held one of the victims, Kimberly Davenport, captive at gunpoint in a house. Defendant argues th at the trial court erred in assessing 10 points for OV 4 and 10 points for OV 9. 1

1 “Under the sentencing guideline s, the circuit court’s factual determinations are reviewed for clear error and must be supporte d by a preponderance of the evi dence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) . In addition, “[w]hether th e facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of t he facts to the law,-2- I. OV 4

OV 4 addresses psychological injury to a victim. People v Gibbs , 299 Mich App 473, 492; 830 NW2d 821 (2013). MCL 777.34 governs the scoring of OV 4 and provides, in part:

(1) Offense variable 4 is psychological injury to a victim. S core offense variable 4 by determining which of the following apply and by a ssigning the number of points attributable t o the one that has the highest n umber of points:

(a) Serious psychological inju ry requiring professional treatm ent occurred to a victim .................................................. ............................................. 10 points

(b) No serious psychological in jury requiring professional tre atment occurred to a victim ......................................... .......................................... 0 points

MCL 777.34(2) provides, “Score 10 points if the serious psycho logical injury may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive.” Howev er, the trial court record mus t contain some evidence of the victim’s serious psychological injury. People v Lockett , 295 Mich App 165, 183; 814 NW2d 295 (2012). A victim’s statement that he or she was fearful or ang ry during the incident supports a trial court’s assessment of 10 points for OV 4. See People v Williams , 298 Mich App 121, 124; 825 NW2d 671 (2012). “ ‘A sentencing court may consider all re cord evidence before it when calculating the guidelines, i ncluding, but not limited to, the contents of a presentence investigation report , admissions made by a defendant during a plea proceeding, or t estimony taken at a preliminary examination or trial.’ ” People v Johnson , 298 Mich App 128, 131; 826 NW2d 170 (2012) (citation omitted; emphasis added). The trial court may examine the presentence investigation report (PSIR) to determine whether th e victim suffere d psychological harm. See, e.g., Williams , 298 Mich App at 124 (noting that the trial court properly ass igned 10 points for OV 4 based on a victim impact statement in a PSIR); Lockett , 295 Mich App at 183 (noting that the trial court err ed in assessing points for OV 4 and pointing out that the PSIR did not contain any information reg arding the victim’s psychologica l injury).

The trial court properly assessed 10 points for OV 4. The PSI R contains a victim impact statement. Kimberly is quoted as stating, “I thought what he d id hurt me mentally and physically, I feel bad he has to go back to prison but he shoul d be punished for what he did. I feel that he is a threat to society and the family.” In additi on, there was testimony presented at trial indicating that Kimberl y suffered psychological injury. For example, Kimberly testified that she was upset and very scared during the incident because of de fendant’s threats. She was also angry during the incident. Detroit Police Officer Eric Carter testified that Kimberly was yelling for help during the incident and was “[v]isibly shaken, crying, upset. Hands couldn’t stop shaking.” Thus, the trial court did not err in assessing 10 po ints for OV 4 since there was is a question of statutory inter pretation, which an appellate c ourt reviews de novo.” Id

. Questions of constitutional law are also reviewed de novo. People v Harper , 479 Mich 599, 610; 739 NW2d 523 (2007).-3- evidence that Kimberly suffered psychological injury that may r equire professional treatment. See MCL 777.34(1) and (2); Johnson , 298 Mich App at 131; Williams , 298 Mich App at 124.

Defendant also argues that the trial court engaged in improper judicial factfinding in scoring OV 4 in violation of Alleyne v United States , 570 US ___, ___; 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013). However, we are bound by our opinion in People v Herron , 303 Mich App 392, 403; 845 NW2d 533 (2013), lv held in abeyance 846 NW2d 924 (2014), which considered and rejected this argument. MCR 7.215(J)(1).

II. OV 9

OV 9 addresses the number of victims of a crime. People v Fawaz , 299 Mich App 55, 62; 829 NW2d 259 (2012). MCL 777.39 governs the scoring of OV 9 and provides, in part:

(1) Offense variable 9 is number of victims. Score offense va riable 9 by determining which of the following apply and by assigning the n umber of points attributable to the one that ha s the highest number of points:

(a) Multiple deaths occurred ................................ ....................... 100 points

(b) There were 10 or more victims who were placed in danger of physical injury or death, or 20 or more victims who were placed in dange r of property loss

.............................................................. ......................................... 25 points

(c) There were 2 to 9 victims who were placed in danger of phy sical injury or death, or 4 to 19 victims who were placed in danger of prope rty loss

.............................................................. ......................................... 10 points

(d) There were fewer than 2 victims who were placed in danger of physical injury or death, or fewer than 4 victims who were plac ed in danger of property loss ................................................ ............................................... 0 points

MCL 777.39(2)(a) provides, “Count each person who was placed in danger of physical injury or loss of life or property as a victim.” In People v McGraw , 484 Mich 120, 122; 771 NW2d 655 (2009), the Michigan Supreme Cour t held, in the context of deci ding a challenge to the trial court’s assessment of 10 points for OV 9, “that a defendant’s c onduct after an offense is completed does not relate back to the sentencing offense for pu rposes of scoring offense variables unless a variable speci fically instructs otherwise.” The Court clarified that a sentencing offense “is the crime of which the defendant has been convicted and for which he or she is being sentenced.” Id . at 122 n 3. The Court reasoned that the prosecution could ch arge a defendant with multiple offenses for the defendant’s subsequent actions a nd that the defendant would be sentenced for all of his or her convictions. Id . at 130. However, a trial court may not consider a defendant’s actions once the crime is completed in assessing po ints for OV 9. See id . at 132- 134.

The trial court properly assessed 10 points for OV 9 because t here were at least two victims of the sentencing offens e of unlawful imprisonment. MC L 750.349b(1) provides:-4- A person commits the crime of unlawful imprisonment if he or s he knowingly restrains another pers on under any of the following c ircumstances:

(a) The person is restrained by means of a weapon or dangerous instrument.

(b) The restrained person was secretly confined.

(c) The person was restrained t o facilitate the commission of another felony or to facilitate flight a fter commission of another felo ny.
MCL 750.349b(3)(a) defines “r estrain” as follows:

[T]o forcibly restrict a person’s movements or to forcibly conf ine the person so as to interfere with that person’s liberty without that person’s c onsent or without lawful authority. The restraint does not have to exist for any particular length of time and may be related or inci dental to the commission of othe r criminal acts.

Defendant argues that the trial court erred by including the t hree police officers who he was convicted of assaulting as victims under the sentencing off ense of unlawful imprisonment. Even assuming defendant’s argumen t is correct, the trial court did not err in scoring OV 9 at 10 points because there were at least two other victims of unlawfu l imprisonment. Kimberly, Dellonie Davenport, and their daughter were victims under OV 9. Defendant was convicted of unlawful imprisonment of Kimberl y and does not contest the fact that she was a victim for the purposes of OV 9. Dellonie testif ied that defendant pointed a gun at him and his daughter before defendant and Kimberly went into the basement. Dellonie and hi s daughter fled the house and called 911 as soon as defendant left the room. Thus, Dellonie and his daughter were victims under MCL 777.39(2)(a) because they were placed in danger of ph ysical injury during the period of time in which defendant restrained Kimberly at gunpoint. Se e MCL 750.349b(1); MCL 777.39(2)(a); People v Morson , 471 Mich 248, 262; 685 NW2d 203 (2004) (holding that a man standing near the scene of an a rmed robbery and responding to c alls for help was a victim under the meaning of OV 9). Accordingl y, the trial court did not err in scoring OV 9 at 10 points.

Affirmed.

/s/ Amy Ronayne Krause /s/ Kirsten Frank Kelly /s/ Douglas B. Shapiro