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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 8, 2016

v No. 328373 Wayne Circuit Court TYLER PAUL MCCREARY, LC No. 13-008488-01-FC

Defendant-Appellant.

Before: W ILDER , P.J., and C AVANAGH and S ERVITTO , JJ.

P ER C URIAM

.

Defendant appeals as of right his sentence on jury convictions of second-degree murder, MCL 750.317, and felony murder, MCL 750.316(1)(b). He argues t hat offense variables (OVs) 5, 7, 8, and 10 were improperly sc ored and that the trial court impermissibly used judicial factfinding to score these variables. We agree in part, and remand for proceedings consistent with this opinion.

I. FACTS

On August 26, 2013, defendant was drinking with Michael Tulacz , John Niemiec, his grandfather, and another man. At some point, Niemiec and Tulac z went outside onto the front porch and began arguing, and Tulacz hit Niemiec in the back of the head with a beer bottle. Niemiec then fell off the porch, hitting his face on concrete, and apparently did not move. Tulacz then kicked Niemiec in the head and then “smashe[d]” at least three beer bottles over his
head. Defendant then kicked Niemiec five to six times between the knee and shoulder. Tulacz continued to kick Niemiec, then hit him with a chair multiple t imes, and then kicked him again. A witness testified that later in the night, sometime after 2:0 0 a.m., Tulacz and defendant moved Niemiec “[t]o the side of the house . . . in between the houses .” A neighbor saw the body, which was “[o]n the west side of the house on a walkway that leads to the backyard” between two houses, the next morning and someone called the police. By the time the police arrived, medical personnel had already determined that Niemiec was deceased.

The medical examiner explained that Niemiec suffered many exter nal injuries, including “multiple blunt force trauma[s],” on his head, face, chest, abd omen, back, upper extremities, and lower limbs; multiple abrasions and contusions on his face, the top of his head, his back, and his right forearm; contusions on hi s abdomen, chest, and legs; cont usions and lacerations on the back-2- of both hands; and lacerations on his head. The internal injur ies included a hemorrhage on the scalp, which led to bleeding on the surface of the brain, bleed ing into the brain, fractures on the right and left side of the ribs, a hemorrhage in the intestine, and a laceration of the left kidney.
The medical examiner did not see a ny postmortem injuries. He c oncluded that the cause of death was multiple blunt force injuries, that the head injuries and t he kidney laceration were both fatal, and that because they were infl icted so close in time, he “coul d not separate” the fatal injuries.

II. ANALYSIS

A. OV SCORING

Defendant first argues that the trial court incorrectly scored OVs 5, 7, 8, and 10 and that resentencing is required because he has a due process right to be sentenced using accurate information and these combined errors raised his minimum guidel ines sentence range. We disagree.

Defendant preserved these cha llenges by objecting to the scori ng of OVs 7 and 8 at sentencing and by objecting to the scoring of OVs 5 and 10 in amotion to remand filed in this Court. See MCR 6.429(C). We review a trial court’s factual fi ndings underlying its OV scoring
for clear error. People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). We review de novo whether those facts support the OV scoring, id ., and any constitutional issue, People v Hill , 257 Mich App 126, 149-150; 667 NW2d 78 (2003).

Defendants have a due process right to be “sentence[d] . . . up on accurate information.” People v Robinson , 147 Mich App 509, 510; 382 NW2d 809 (1985). Remand for resen tencing is required if a defendant is sentenced within a minimum guideline s sentence range calculated as the result of “a scoring error or inaccurate information.” People v Francisco , 474 Mich 82, 88; 711 NW2d 44 (2006). But if “a scoring error does not alter the appropriate guidelines range, resentencing is not required.” Id . at 89 n 8. A trial court’s factual findings in support of it s scoring of the sentencing guidelines must be supported by a pre ponderance of the evidence. Hardy , 494 Mich at 438.

OV 7 governs “aggravated physical abuse.” MCL 777.37(1). Fou r separate courses of conduct can justify a score of 50 points. Hardy , 494 Mich at 439-440. The defendant can either treat the victim with (a) sadism, (b) torture, (c) excessive br utality, or (d) “similarly egregious conduct designed to substantiallyincrease the fear and anxiety a victim suffered during the offense.” MCL 777.37(1)(a). To determine whether one of these scenarios occurred, we focus on defendant’s conduct only. People v Hunt , 290 Mich App 317, 325-326; 810 NW2d 588 (2010). We do not focus on others’ conduct toward the victim, id ., or the victim’s experience of
defendant’s conduct. People v Kegler , 268 Mich App 187, 191-192; 706 NW2d 744 (2005).-3- The trial court assi gned 50 points to OV 7 pa rtially because de fendant “participated in the beating.” 1 Defendant kicked the victim five or six times “between the kn ee and shoulder” after the victim had been hit by Tulacz, fell from the porch, and sto pped moving. Accordingly,
defendant’s conduct could have caused some or all of the extern al injuries to the victim’s chest, abdomen, back, upper extremities, and lower limbs, as well as t he rib fractures, intestine hemorrhage, and kidney laceration. This Court has defined “tor ture” as “ ‘the act of inflicting excruciating pain, as punishment or revenge, as a means of gett ing a confession or information, or for sheer cruelty.’ ” People v Glenn , 295 Mich App 529, 533; 814 NW2d 686 (2012), overruled on other grounds in Hardy , 494 Mich at 432, quoting Random House Webster’s College Dictionary (1997). Kicking the victim five to six times, possibly resulti ng in a fatal kidney laceration, among other injuries, when the victim had al ready been beaten and was immobile, allows the inference th at defendant inflicted excruci ating pain for sheer cruelty, constituting torture. MCL 777.37( 3) defines “sadism” as “condu ct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to pr oduce suffering or for the offender’s gratification.” It can be inferred that defendant’s kicking of the victim subjected him to extreme pain intended to produce suffering in light of the v ictim’s many injuries and ultimate death, and that such conduct was inflicted for defendant’s grat ification. Therefore, the trial court did not err in assigning 50 points to OV 7.

OV 10 governs “exploitation of a v ulnerable victim.” MCL 777.4 0(1). A trial court may assign five points to OV 10 if a d efendant (a) “exploited a vic tim by his . . . difference in size or strength, or both,” or (b) “exploited a victim who was intoxica ted, under the influence of drugs, asleep, or unconscious.” MCL 777.40(1)(c). 2 Accordingly, we must determine (1) whether the victim was vulnerable, and (2) w hether defendant exploited the victim.

The statute defines vulnerability as a “readily apparent suscep tibility . . . to injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)( c). Courts consider a nonexhaustive list of factors to assess vulnerability, People v Huston , 489 Mich 451, 465-466; 802 NW2d 261 (2011), and one of the factors is whether the victim w as intoxicated, People v

Cannon , 481 Mich 152, 158-159; 749 NW2d 257 ( 2008). Here, the victi m was vulnerable
because he was intoxicated. Id

. The medical examiner testified th at his blood alcohol measured .398, “approximately five times more than the legal limit” of . 08. In light of this level of intoxication and the fact that defendant was drinking with the victim before he was killed, the victim’s vulnerability w as “readily apparent.”

1 The trial court explained that it also scored OV 7 because def endant “assisted in hiding the body.” But such conduct does not support scoring OV 7. See Hunt , 290 Mich App at 326.

2 Defendant’s assertion that such a score requires preoffense co nduct is incorrect. MCL 777.40(1)(a) and (3)(a) specifies that preoffense conduct is re quired to find predatory conduct needed to assign 15 points. But suc h conduct is not required t o assign five points.-4- The statute defines “exploitation” as “manipulat[ing] a victim for selfish or unethical purposes.” MCL 777.40(3)(b). MCL 777.40 does not define the t erm “manipulate.” But one dictionary definition of the word “manipulate” is “to control o r play upon by artful, unfair, or insidious means esp. to one’s own advantage.” Merriam-Webster’s Collegiate Dictionary (2014). Here, defendant played upon the victim in an unfair ma nner to his own advantage for an unethical purpose when he kicked the victim who had already bee n hit over the head with multiple bottles, had fallen from a porch, had been kicked by T ulacz, and had stopped moving. Because defendant exploited a vulnerable victim who was intoxic ated, the trial court did not err in assigning five points to OV 10.

OV 5 governs “psychological injury to a member of a victim’s fa mily.” MCL 777.35(1). Assigning 15 points requires a finding that the victim’s family suffered “[s]erious psychological injury requiring professional treatment.” MCL 777.35(1)(a). T he record contains no evidence of such an injury. Therefore, OV 5 was improperly scored.

OV 8 governs “victim asportation or captivity.” MCL 777.38(1). Assigning 15 points requires a finding that the victi m was either (a) “asported to another place of greater danger,” (b) “asported . . . to a situation of greater danger,” or (c) “held captive beyond the time necessary to commit the offense.” MCL 777.38(1)(a). Here, plaintiff argued that 15 points should be assigned because the victim was asported to a situation of grea ter danger when he was “le[ft] in
between . . . houses facedown where he couldn’t have received m edical attention.” “A victim is asported to a place or situation involving greater danger when moved away from the presence or
observation of others.” People v Chelmicki , 305 Mich App 58, 70-71; 850 NW2d 612 (2014). However, asportation cannot “ ‘be incidental to committing an u nderlying offense.’ ” People v
Dillard , 303 Mich App 372, 379; 845 NW2d 518 (2013), quoting People v Spanke , 254 Mich App 642, 647; 658 NW2d 504 (2003). R ather, such asportation mu st facilitate the crime for which the defendant was convicted. See, e.g., People v Steele , 283 Mich App 472, 490-491; 769 NW2d 256 (2009) (defendant took victim s to a trailer, a tree st and, and a dirt bike and committed criminal sexual conduct); Chelmicki , 305 Mich App at 60, 71 (defendant took the victim from a balcony to a basement and committed domestic assault and unlawf ul imprisonment). Plaintiff provides no caselaw supporting its argument that transportation of a victim to an area where they
could not receive medical atten tion facilitates a 15-point scor e. Further, the record does not support plaintiff’s claim. It appears that the victim was move d between houses near a walkway where a neighbor could see the body from three houses down the street. Therefore, others may have been able to see the victim to provide medical attention. And it is unclear whether medical
attention would have been successful at or after the time that defendant moved the victim. No witness testified to the victim’s time of death. Therefore, he could have passed away before defendant moved him. Thus, the trial court erred in assigning 15 points to OV 8 because defendant’s asportation of the vi ctim was inciden tal to his com mission of second-degree murder.

When subtracting the 15 points in correctly assigned to OV 5 and the 15 points incorrectly assigned to OV 8, defendant’s tot al OV score reduces from 146 t o 116. This reduction does not change defendant’s minimum guidelines sentence range. MCL 777. 16p; MCL 777.61. Therefore, “resentencing is not required” on this basis. See Francisco , 474 Mich at 89 n 8.-5- B. USE OF JUDICIAL FACT- FINDING TO SCORE OVS

Next, defendant argues that the trial court violated his const itutional rights by using judicial fact-finding to score OVs 5, 7, 8, and 10, which incre ased his minimum guidelines sentence range. We agree.

Defendant failed to preserve this issue. We review unpreserve d Sixth Amendment challenges to judicial fact-finding for plain error. People v Lockridge , 498 Mich 358, 364, 392; 870 NW2d 502 (2015). “To avoid forfeiture under the plain erro r rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i. e., clear or obvious, 3) and the plain
error affected subs tantial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

In Lockridge , 498 Mich at 364, our Supreme Court held that Michigan’s sente ncing guidelines are “constitutionally deficient” to “the extent [tha t they] require judicial fact-finding beyond facts admitted by the def endant or found by the jury to score offense vari ables (OVs) that mandatorily increase the floor of the guide lines minimum sentence range . . . .” (Emphasis in original.) Such a scheme “violates the Sixth Amendment.” Id . at 373. Instead, “[a]ny fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne v United States , ___ US ___; 133 S Ct 2151, 2155; 186 L Ed 2d 314 (2013); see also Lockridge , 498 Mich at 386. Accordi ngly, trial courts violate the Sixth Amendment when using judicial factual findings to inc rease a minimum guidelines sentence range. See, e.g., People v Sardy , 313 Mich App 679, 732-733; 884 NW2d 808 (2015).

If such a violation occurs, “the case should be remanded to the trial court to determine whether that court would have imposed a materially different se ntence but for the constitutional

error.” Lockridge , 498 Mich at 397. This procedure is known as a Crosby remand, which permits “ ‘ the sentencing judge to dete rmine whether to resentence, now fully informed of the new sentencing regime ,’ ” here, Lockridge and its progeny, “ ‘ and if so, to resentence .’ ” Id . at 396, quoting United States v Crosby , 397 F3d 103, 117-118 (CA 2, 2005), abrogated by United States v Corsey , 723 F3d 366 (CA 2, 2013) (emphasis in Lockridge ). However, a defendant may reject resentencing by promptly notifying the trial court. People v Stokes , 312 Mich App 181, 201-202; 877 NW2d 752 (2015).

Defendant argued that the trial court incorrectly used judicial fact-finding to score OVs 5, 7, 8, and 10. In convicting defendant of second-degree murder, the jury found that “(1) a death, (2) [was] caused by an act of the defendant, (3) with malice, a nd (4) without justification or

excuse.” People v Goecke , 457 Mich 442, 463-464; 579 NW2d 868 (1998). “Malice is defin ed as the intent to kill, the intent to cause great bodily harm, o r the intent to do an act in wanton and wilful disregard of the likeli hood that the natural tendency of such behavior is to cause death or great bodily harm.” Id . at 464. These jury findings do not overlap with the fact-fin dings required to score OVs 5, 7, 8, and 10, as outlined above.

If we subtract the 15 points for OV 5, 50 points for OV 7, 15 p oints for OV 8, and five points for OV 10 from defendant’s total OV score of 146, defend ant’s total OV score is reduced to 61. This new OV score reduces defendant’s minimum guideline s sentence range from 270 to 450 months in prison, or life in prison, to 225 to 375 months i n prison, or life in prison. MCL-6- 777.16p; MCL 777.61. Because defendant’s minimum guidelines se ntence range is altered, he is
entitled to a Crosby remand. See Sardy , 313 Mich App at 732-733.

Remanded for a proceed ing consistent with Crosby . We do not retain jurisdiction.

/s/ Kurtis T. Wilder /s/ Mark J. Cavanagh
/s/ Deborah A. Servitto