-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 18, 2014

v No. 316433 Wayne Circuit Court MARQUAN ANTONIO JACKSON, LC No. 12-008303-FJ

Defendant-Appellant.

Before: R IORDAN , P.J., and B ECKERING and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals as of right from his convi ctions following a jury trial of carjacking, MCL 750.529a, and armed robbery, MCL 750.529. The tr ial court sentenced defendant to serve 10 to 20 years’ imprisonment for both convictions, with credit for 293 days served. We affirm defendant’s convictions, but remand for resentencing.

I. BASIC FACTS

On July 9, 2012, at around 7:00 a.m., Louis Po ineau was driving to work when a vehicle passed him at a high rate of speed and then stoppe d in front of his vehicle. A tan colored SUV then rear-ended Poineau’s vehicle, pushing him in to the vehicle in front. Two males got out of the front vehicle and pulled Poineau out of his vehi cle at gunpoint. Poineau said that four to six men surrounded him and demanded his money, which he turned over. The men also took his phone, his credit and debit cards, his identification, and his vehicle. On July 12, 2012, after turning himself in to the police, defendant confessed to participating in the carjacking and robbery of Poineau. He also made several incr iminating statements in regard to a number of additional robberies and carjackings. Defense c ounsel moved to suppress defendant’s statement as involuntary and, after a Walker 1 hearing, the trial court denied the motion. This ruling is challenged on appeal.

1 People v Walker (On Rehearing) , 374 Mich 331; 132 NW2d 87 (1965).-2- Also at issue is the court’s admission of testimony concerning an additional, uncharged carjacking. The victim of that carjacking, Gerald Moss, testif ied that he was carjacked and robbed at around 6:30 a.m. on July 9, 2012. Defendantalso confessed to be ing a participant in this carjacking. Moss’s vehicle was later used in the carjacki ng of Poineau. Moss identified defendant as being in the backseat of the perp etrators’ vehicle. Defendant sought to suppress Moss’s in-court identification because the initial identification occurred during the preliminary examination and was, according to defenda nt, impermissibly suggestive. After a Wade 2 hearing, the trial court found that there was an independ ent basis for Moss’s in-c ourt identification and denied defendant’s motion to suppress the identification.

II. VOLUNTARY CONFESSION

Defendant argues that the tria l court erred in denying his mo tion to suppress his statement because his Miranda 3 waiver and confession were not voluntary. Defendant asserts the statement was involuntary because, although he told the police that he had asthma before he gave the statement, he was not taken to the hospital for treatment until approximately four hours after making the statement. “When reviewing a trial court’s determination of the voluntariness of inculpatory statements, this Court must examin e the entire record and make an independent determination, but will not disturb the trial court’s factual findings absent clear error.” People v Shipley , 256 Mich App 367, 372-373; 662 NW2d 856 (2003). “A finding is clearly erroneous if it leaves this Court with a definite and firm conviction that a mistake was made.” Id . at 373. “[D]eference is given to the trial court’s assessme nt of the weight of th e evidence and credibility of the witnesses.” Id

. It is well settled that admitting an invol untary confession into evidence violates a defendant’s due process rights. Lynumn v Illinois , 372 US 528, 537; 83 S Ct 917; 9 L Ed 2d 922 (1963); People v Conte , 421 Mich 704, 722; 365 NW2d 648 ( 1984). When determining the voluntariness of a statement, a court looks to th e totality of the circumstances to see if the statement was given voluntarily and was the product of the defendant’s own free will. People v Cipriano , 431 Mich 315, 333-334; 429 NW2d 781 (1988). To determine whether the statement was freely and voluntarily made, the following factors are taken into consideration:

[T]he age of the accused; his lack of edu cation or his intellig ence level; the extent of his previous experience with the polic e; the repeated and prolonged nature of the questioning; the length of the detent ion of the accused before he gave the statement in question; the lack of any a dvice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the conf ession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused

2 United States v Wade , 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).

3 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-3- was physically abused; and whether the su spect was threatened with abuse. [ Id . at 334.]

“The absence or presence of any one of these fact ors is not necessarily conclusive on the issue of voluntariness.” Id

.

The record reveals that de fendant disclosed, as a routin e part of his booking, that he suffered from asthma. Defenda nt’s booking sheet indicated that he took Albuterol for his asthma, but he had not taken the medication in the past year. The booking sheet classified defendant’s asthma as a “non-emergency medi cal issue.” Detroit Police Sergeant Robert Wellman, who took defendant’s statement, tes tified that defendant read and understood his Miranda rights at the outset of the interview. Defendant did not have any problem reading his rights, nor did he indicate thathe did not understand them. In addition, defendant did not indicate that he took any type of medication or that he needed any type of medication. Wellman did not believe that defendant ever appeared in need of medical as sistance or that he was unable to breathe. If defendant had displayed any sign th at he needed medical attention or was suffering from some sort of illness, Wellm an testified that he would have taken defendant to the hospital immediately, without waiting for defendant to finishgiving his statement. Wellman did not need to take defendant to the hospital in this case, though, because defendant “didn’t show any signs, at all” of the need for medical assistance.

Wellman further testified that after defenda nt indicated that he understood his rights, defendant confessed his involvement in the charged offenses, as well as additional, uncharged offenses. Defendant began givi ng his statement at approxim ately 8:55 p.m. on July 11, 2012, and finished his statement at approximately 11:15 p.m. Defendant read his statement at the end and verified its accuracy. Wellman testified that neither he nor anyone else used any physical force, verbal force, threats, or coerci on in taking defendant’s statement.

Wellman testified that after defendant gave his statement, he was returned to his jail cell. At approximately midnight, an officer conducted a walk-through of defendant’s cell block and reported that everything was “okay” at that time. Later, at approximately 3:00 a.m. the morning after giving his statement, defendant was taken to the hospital. It app ears that defendant was taken to the hospital, pursuant to police procedure, because his intake form indicated a nonemergency health issue. Defendant returned from the hospital at approximately 4:35 a.m. the same morning. While at the hospital, defendant was given a prescription for Albuterol; officers had this prescription filled for defendant. R ecords did not indicate whet her defendant was given a dose of the prescription while he was in custo dy; however, records indicated that other asthma patients who were in custody were given doses of their respective medications.

The record supports the trial court’s finding of voluntariness. According to unrebutted testimony, defendant indicated that he knew and unde rstood his rights, and he was not threatened in any manner. And, contrary to defendant’s assertions on appeal, there is no evidence to support his assertion that his statement was in fluenced by his asthma. Wellman presented unrebutted testimony that defendant did not appear to have any trouble breathing or that he otherwise needed medical assistance at the time he gave his statement. Although defendant subsequently visited the hospital, this does no t render his statement i nvoluntary. Rather, as noted, the only testim ony presented at the Walker hearing was that defendant did not suffer from-4- any apparent medical conditions at the time he gave his statement. Furthermore, it appears that defendant’s visit to the hospital was a matter of r outine procedure, not associated with a medical emergency. Indeed, it is not apparent from the record that defendant wa s even given a dose of the medication he was prescribed—a medication he had reportedly not take n for over a year. As such, we find no basis for disturbing the trial court’s finding that defendant’s statement was voluntary. See Cipriano , 431 Mich at 334; Shipley , 256 Mich App at 372-373.

III. OTHER ACTS EVIDENCE

Defendant next argues that the trial cour t erred in admitting evidence about the Moss carjacking. He also contends that the trial court erred in ad mitting testimony from Officer Dana Russell concerning another stolen automobile, a high-speed chase, and one of defendant’s accomplices who fled from police officers. The prosecutor offered the evidence pursuant to MRE 404(b); he also argued that the evidence was admissible as res gestae evidence. The prosecutor argued that the other carjackings were so intertwined that presentation thereof was necessary in order to give the jury the complete circumstances of the charged offenses. The trial court ruled that the other-acts eviden ce was admissible pursuant to MRE 404(b). 4 The decision whether to admit evidence is with in the trial court’s discretion an d will be reve rsed on appeal only if there is an abuse of discretion. People v Lukity , 460 Mich 484, 488; 596 NW2d 607 (1999). “A trial court abuses it s discretion when it chooses an out come that is outside the range of reasonable and principled outcomes.” People v Orr , 275 Mich App 587, 588-589; 739 NW2d 385 (2007).

A. MOSS CARJACKING

Moss testified that on July 9, 2012, at approxi mately 6:30 a.m., he stopped his gold Ford Explorer at a gas statio n and went inside to purchase a cup of coffee. When he came out of the gas station, a silver Dodge Intr epid pulled up near him, and a man, later identified as Edward Spann 5 , got out of the passenger seat, armed with a gun. The man pointed the gun at Moss’s chest and told him to “give him my stuff.” Moss dropped his keys on the ground an d gave the man his phone and his money. One of the occupa nts of the Intrepid got out, picked up Moss’s keys, jumped in the Explorer, and drove awa y. As will be discussed in more detail infra , Moss identified defendant as one of the occupants of the Intrepid.

4 The trial court did not render a ruling as to whether the evid ence was also admissible as res gestae evidence.

5 Spann was convicted of several charges stemmi ng from the events underlying this prosecution. His delayed application for leave to appeal was denied. People v Spann , unpublished order of the Court of Appeals, entered November 20, 2013 (Docket No. 317736).-5- B. RUSSELL’S TESTIMONY

Russell testified that she was assigned to investigate the Moss carjacking and that, at around 6:30 p.m. on July 9, 2012, she saw Moss’s Explor er parked at a gas station. She testified that she saw an individual in th e Explorer conversing with individuals in a purple Chevrolet Caprice. Russell testified that she saw defendant in the Caprice, and that the Ca price had been stolen earlier.

The Caprice and the Explorer left the gas station and continued onto I-94 West; Russell followed them in an unmarked police car. While she was following the two vehicles, a white Cadillac Escalade pulled up alongside the Caprice and began motioning for the Caprice to pull over. Thereafter, Russell hear d gunshots, but was not certain from which vehicles the gunshots originated. Russell testified that the vehicles were traveling approxima tely 90 to 95 miles per hour on the highway. Eventually, the Explorerexited the highway, and Russell continued to follow it. Later, a marked police car attempted a traffic stop on the Explorer, and one of the occupants jumped from the vehicle and ran.

Russell subsequently returned to the gas sta tion where Moss’s Explor er had been stolen and obtained surveillance video of the carjacking. She testified that someone in a white shirt was present inside the silver Intrepid during the ca rjacking. She also testified that, when she saw defendant in the stolen Caprice, he was wearing a white shirt.

C. MRE 404(B)

To be admissible under MRE 404(b), other acts evidence (1) must be offered for a proper purpose, (2) must be relevant, and (3) must nothave a probative value substantially outweighed by its potential for unfair prejudice. People v Knox , 469 Mich 502, 509; 674 NW2d 366 (2004). Additionally, upon request, the trial court “may provide a limiting instruction under MRE 105.” Id

. A proper purpose is one offered “under some thing other than a character to conduct theory.” People v VanderVliet , 444 Mich 52, 74; 508 NW2d 114 (1993), amended on other grounds 445 Mich 1205 (1994). Here, the prosecution sought to introduce other acts evidence to show a scheme, plan, or system in doing the ac ts, which is a proper pur pose under MRE 404(b).

“Nevertheless, the prosecution may not mech anically recite a permissible reason without explaining how the evidence is relevant.” People v McGhee , 268 Mich App 600, 610; 709 NW2d 595 (2005). Logical relevance is the “touc hstone” of the admissibility of other acts evidence, and it “is dete rmined by the application of” MRE 401 and 402. People v Crawford

, 458 Mich 376, 388; 582 NW2d 785 (1998). MRE 401 provides that relevant evidence is evidence having “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevance has two elements : materiality and probative force. McGhee , 268 Mich App at 610. Evidence is material if it goe s to a fact that is truly at issue. Id . If the evidence has any tendency to prove a fact at issue, then there is sufficient probative force. People v Starr , 457 Mich 490, 497-498; 577 NW2d 673 (1998).

Evidence of misconduct similar to that charge d is logically relevant to show that the-6- charged act occurred if the uncharged misconduc t and the charged offense are sufficiently similar to support an inference that they were manifestations of a common plan, scheme, or system. People v Dobek , 274 Mich App 58, 90; 732 NW2d 546 (2007). Moreover, it must support an inference that the defendant employe d the common plan or scheme in committing the charged offense. People v Ackerman , 257 Mich App 434, 440-441; 669 NW2d 818 (2003).

We find that the trial court did not err by admitting testimony about the Moss carjacking pursuant to MRE 404(b). The Moss carjacking was substantially sim ilar to the charged carjacking so as to support an inference that they were manifesta tions of a common plan, scheme, or system. Both carjackings were co mmitted less than one hour apart and they involved the same perpetrators, similar acts, and the same mode of operating—not ably, the perpetrators would rapidly approach the victim in another vehicle, hit or come close to the victim’s car to prevent the victim from escaping, have one or more assailants jump out and point a gun at the victim’s chest or midsection, and then the perp etrators would demand the victim’s personal possessions and take the victim’s car. According to defendant’s subsequently-admitted confession, he and his cohorts stole the vehicles pursuant to a plan to se ll the vehicles to an individual who operated a repair shop. The similarity between the acts, and defendant’s admitted motive in stealing the vehicles, de monstrates that they were part of the same plan, scheme, or system. See Dobek , 274 Mich App at 90; Ackerman , 257 Mich App at 440-441.

We also find that the probativ e value of the evidence was no t substantially outweighed by the danger of unfair prejudice. “T he determination whether the probative value of evidence is substantially outweighed by its prejudicial effect is best left to a contemporaneous assessment of the presentation, credibility a nd effect of the testimony.” People v Waclawski , 286 Mich App 634, 670; 780 NW2d 321 (2009). All relevant evidence is somewhat prejudicial. People v Magyar , 250 Mich App 408, 416; 648 NW2d 215 (2002). “Unfair prejudice oc curs ‘when there is a tendency that the evidence will be given undue or preemptive weight by the jury, or when it would be inequitable to allow use of the evidence.’ ” Waclawski , 286 Mich App at 672, quoting People v Taylor , 252 Mich App 519, 521-522; 652 NW2d 526 (2002).

Here the trial court properly found that although the other acts evidence was prejudicial to defendant, the prejudice did no t substantially outweigh the eviden ce’s probative effect. As the previous discussion shows, the evidence was hi ghly probative on defendant’s involvement in the charged crimes. It showed defe ndant’s involvement in an orches trated series of crimes that culminated in the armed robbery of Poineau and the carjacking of his vehicle. It was also significantly probative on issues of credibility related to defendant ’s confession. The prejudicial effect of the evidence stemmed directly from its relevance. The cour t’s MRE 403 analysis was sound. Moreover, the trial court ga ve a clear limiting instruction on how the other acts evidence could be considered. Jurors are pres umed to follow their instructions. People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998). 6

6 To the extent that defendant argues that testimony about a high- speed chase and shooting on an interstate highway was wrongly ad mitted, we note that defendant’s statement includes references to these events and that defe ndant does not argue that his st atements related thereto were-7- IV. REFERENCES TO DEFENDANT’ S PRIOR ARREST AND PENDING CHARGES

Next, defendant notes that hi s confession contained references to the fact that he had previously been arrested and th at, at the time of his confessi on, he had additional, unrelated charges pending against him. De fendant did not object to the admission of these statements at trial or move to redact the statements from hi s confession. We review this unpreserved issue for plain error affecting substantial rights. People v Jones , 468 Mich 345, 355; 662 NW2d 376 (2003). Under plain error review, reversal is no t warranted unless the plai n error resulted in the conviction of an innocent person or seriously affected the fairness, integrity, or public reputation of the proceedings. Id

. Evidence of defendant’s prior arrest and pending charges sh ould have, upon request, been redacted from defendant’s confession. The prosecutor does not point to a proper purpose for admitting this evidence, nor can we ascertain any such purpose. Moreover, such evidence is not probative as it has no tendency to make any fact of consequence more or less probable. However, we cannot conclude that defendant’s assertion of error a ffected his substa ntial rights or that it warrants reversal in this case. Eviden ce of defendant’s prior arrest and pending charges was unlikely to have affected the outcome at trial in light of the compelling evidence against defendant. Defendant confessed to the charged offenses. In addition, defendant’s confession was corroborated, at least in part, by Moss’s and Poineau’s te stimony. As such, defendant cannot make the requisite showing of prejudice in order to establish that the plain error affected his substantial rights. Id. at 356.

Defendant also argues that his counsel wa s ineffective for failing to object to the admission of that portion of his confession. To establish ineff ective assistance of counsel, a defendant must show: (1) that counsel’s perf ormance fell below an objective standard of reasonableness under prevailing professional norms; (2) that there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. People v Frazier , 478 Mich 231, 243; 733 NW2d 713 (2007). Here, assu ming without deciding that defense counsel should have objected, defendant is not entitled to relief because he cannot show that the outcome of the proceedings would have been different. See id. As noted, the evidence against defendant was compelling, given defe ndant’s confession and testimony from other witnesses that corroborated his confession. As such, defendant is not entitled to relief on his attendant claim for ineffec tive assistance of counsel.

V. IDENTIFICATION

Defendant next argues he was denied due process because there was no independent basis for Moss’s trial identification of defendant, which, he argues, was based on impermissibly

improperly admitted. Moreover, in light of de fendant’s properly admitted confession to the charged offenses, we find that, even assuming error, defendant could not establish that the error, if any, was outcome determinative. See Lukity , 460 Mich at 496 (internal quotation marks omitted) (explaining that “preserved, nonconstitutional error is not a ground for reversal unless after an examination of the entire cause, it shall affirmatively app ear that it is more probable than not that the error was outcome determinative.”).-8- suggestive influences at the preliminary exam ination. “If a witness is exposed to an impermissibly suggestive pretrial identification procedure, the witness’ in-court identification will not be allowed unless the prosecution shows by clear and convincing evidence that the incourt identification will be base d on a sufficiently independent ba sis to purge the taint of the illegal identification.” People v Colon , 233 Mich App 295, 304; 591 NW2d 692 (1998). “The defendant must show that in light of the tota lity of the circumstances , the procedure was so impermissibly suggestive as to have led to a substantial likelihood of misidentification.” Id

.

The determination whether an in-court identif ication has an independe nt basis is a factual inquiry, and the trial court’s findings are reviewed for clear error. People v Gray

, 457 Mich 107, 115; 577 NW2d 92 (1998). “Clear erro r exists when the reviewing co urt is left with a definite and firm conviction that a mistake was made.” People v Hornsby , 251 Mich App 462, 466; 650 NW2d 700 (2002). Erroneously admitted identifi cation testimony warrants reversal when the error is not harmless beyond a reasonable doubt. People v Winans , 187 Mich App 294, 299; 466 NW2d 731 (1991).

Although the trial court did not expressly fi nd that the pretrial identification was unduly suggestive, we agree with defendant that it was a suggestive atmosphere. According to Moss, at the time he identified defendant, which was dur ing the preliminary examination, defendant was wearing a prisoner’s jumpsuit and was in handcuffs or chains. Although defendant was not the only person brought into the courtroo m in chains and jail clothing, his presence in “prison garb” convinces us that the atmosphere was nonetheless suggestive. See Colon , 233 Mich App at 305 (“Here, there is no question that the preliminary examination was a suggestive atmosphere in that defendant was placed in the c ourtroom in prison garb.”).

Without specifically concluding that the pret rial procedure was impermissibly suggestive, the trial court held that an independent ba sis for Moss’s in-court identification existed:

I’m satisfied that the identifica tion was not the product of any police misconduct, and that basically that there is a basis by which this witness could identify him. He indicated that his id entification was based solely upon what he recalls when he was being car-jacked; that he was able to, due to length of his attention, and there was nothing blocking his view of the defendant. He was somewhat familiar with him, but couldn’ t place him, although he did indicate to the officers that he did not know him.

The following eight factors should be consid ered, where relevant, to determine if an independent basis exists for admission of an in-court identification:

(1) prior relationship with or knowledge of the defendant; (2) opportunity to observe the offense, including length of time, lighting, and proximity to the criminal act; (3) length of time be tween the offense and the disputed identification; (4) accuracy of descripti on compared to the defendant’s actual appearance; (5) previous proper identifica tion or failure to identify the defendant; (6) any . . . identification lineup of anot her person as the perpetrator; (7) the nature of the offense and the victim’s ag e, intelligence, and psychological state;-9- and (8) any idiosyncratic or special features of the defendant. [ People v Davis

, 241 Mich App 697, 702-703; 617 NW2d 381 (2000).]

At the Wade hearing, Moss testified that while he thought defendant looked familiar at the time of the offense, he did not initially identif y defendant as one of the perpetrators. Later, however, he realized where he knew defe ndant, which was through defendant’s family. 7 He testified that he had known de fendant’s mother for around te n years before the carjacking, although he had not seen defendant in seven year s and defendant was a child at the time. He testified that he did not have a ny question that defendant is the person he saw at the time of the offense. He further testified that the carjacking lasted 12 to 13 seconds, that it was daylight, and that defendant did not have anyt hing covering his face. Moss speci fically stated that he could “see [defendant’s] face” and that defendant had “b raids or dreads.” He said the car defendant was in was probably four to five feet away. Further, Moss ha d not previously failed to identify defendant; he testified that he was sick at the time a lineup was offered and he did not reschedule. Additionally, there are no allegati ons that Moss identified someone else as the person in the backseat of the car. Based on these facts, we conclude that the trial court did not clearly err in finding that Moss had a sufficien tly independent basis upon which to identify defendant. See Gray , 457 Mich at 115. Moreover, given the overwhelming evidence presented by defendant’s confession to having committed th e offense, as corroborated by other evidence, any error in admitting Moss’s identification testimony was harmless beyond a reasonable doubt such that reversal is not required. See Winans , 187 Mich App at 299.

VI. SENTENCING

Lastly, defendant argues that the trial court scored offense variable (OV) 1, OV 2, and OV 10 incorrectly. Defendant did not object to the scoring of these offense variables at sentencing. “Under the sentencing guidelines, the circuit court’ s factual determinations are reviewed for clear error and must be s upported by a preponderance of the evidence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “Whetherthe facts, as 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 interpretation, wh ich an appellate court reviews de novo.” Id . However, unpreserved challenges to the sentencing guidelin es are reviewed for plain error affecting defendant’s substantial rights. People v Meshell , 265 Mich App 616, 638; 696 NW2d 754 (2005).

7 Defendant’s mother testified at the Wade hearing that she spoke with Moss outside the courtroom before the preliminary examination. He told her that he was in court because he had been carjacked by “some dark-skinned dudes” and she told him that she was there because her son was “in some stuff,” but she never pointed defendant out to Moss. Moss testified that defendant’s mother spoke to him after he identifi ed defendant at the prel iminary examination and that she apologized for her son’s actions.-10- A. OV 1

The trial court scored 15 points for OV 1. OV 1 addresses the aggravated use of a weapon. MCL 777.31(1). The trial court must scor e 15 points if “a firearm was pointed at or toward a victim . . . .” MCL 777.31(1)(c). Howeve r, the trial court must only score 5 points if “a weapon was displayed or implied.” MCL 777.31(1 )(e). Defendant argues that a “firearm” was not pointed toward Poineau because the weapon used was a BB gun, which does not qualify as a firearm under MCL 8.3t. 8 MCL 8.3t provides:

The word “firearm”, except as othe rwise specifically defined in the statutes, shall be constr ued to include any weapon from which a dangerous projectile may be propelled by using e xplosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB’s not exceed ing .177 calibre by means of spring, gas or air.

Here, the testimony established that a BB gun was used in the ca rjacking and armed robbery, and there is no record evidence establishing that the BB gun was capable of propelling BB’s exceeding .177 calibre. Accordingly, because the BB gun does not meet the definition of “firearm,” the trial court erred in scoring OV 1 at 15 points. However, it would have been appropriate to score 5 points because a BB gun is certainly a “weapon” and it was—according to Poineau’s testimony—displayed.

B. OV 2

The trial court scored 5 points for OV 2, whic h addresses the lethal potential of a weapon possessed or used during the commission of the offense. MCL 777.32(1). The trial court must assess 5 points if the offender “possessed or used a pistol, rifle, shotgun . . . ,” MCL 777.32(1)(d), 1 point if the offende r “possessed or used any othe r potentially le thal weapon,” MCL 777.32(1)(e), and no points are assessed if the offender “possessed or used no weapon,” MCL 777.32(1)(f). A “ ‘[p]istol’, ‘rifle’, or ‘shot gun’ includes a revolver, semi-automatic pistol, rifle, shotgun, combination rifle and shotgun, or ot her firearm manufactured in or after 1898 that fires fixed ammunition, but does not include a fully automatic weapon or short-barreled shotgun or short-barreled rifle.” MCL 777.32(3)(c). De fendant asserts that a BB gun does not fire fixed ammunition, so it was inappropriate for the trial court to score OV 2 at 5 points. Plaintiff concedes that OV 2 was misscored and should have been scored at 0 points. We agree that the trial court erred in scoring OV 2 at 5 points. And because there is no record evidence that the BB gun was potentially lethal or used in such a way to represent a poten tially lethal weapon, we agree that no points should have been scored for OV 2.

8 Plaintiff fails to address the scor ing of OV 1 in its appellate brief.-11- C. OV 10

Here, the trial court scored 15 points under OV 10. OV 10 addresses the exploitation of a vulnerable victim. MCL 777.40(1). The trial court must assess 15 points if “[p]redatory conduct was involved.” MCL 777.40(1)(a). “ ‘[P]redatory conduct’ under the statute is behavior that is predatory in nature, precedes the offense, [and is ] directed at a person for the primary purpose of causing that person to suffer from an injurious action . . . .” People v Huston , 489 Mich 451, 463; 802 NW2d 261 (2011) (citation and quotation omitted). In Huston , our Supreme Court recognized that “[f]ew criminal offenses arise utterly spontaneously and without forethought.” Id . at 461. Accordingly, “reading MCL 777.40(1)(a ) as requiring 15 points to be assessed for OV 10 in every case would essentially render nugato ry MCL 777.40(1)(b) through (d), the provisions directing when OV 10 requires a scor e of 10, 5, and zero point s respectively[.]” Id . at 461-462. “To enable MCL 777.40(1)(a) whenever there is any ‘preoffense conduct’ would effectively ensure that MCL 777.40(1)(b) through (d) would never be enabled.” Id . at 462.

Thus, to give meaning to the entirety of MCL 777.40(1), and out of recognition that 15 points for “predatory conduct” constitutes the highest number of points available under OV 10 and that “preoffens e conduct” is being used to define “predatory conduct,” [our Supreme Court] conclude[d] that the latter term does not encompass any “preoffense conduct,” but ra ther only those forms of “preoffense conduct” that are commonly understood as being “predatory” in nature, e.g., lying in wait and stalking, as opposed to pure ly opportunistic criminal conduct or preoffense conduct involving nothing more than run-of-the-mill planning to effect a crime or subs equent escape without detection. [ Id . (citation and quotation omitted).]

Here, the record does not show that there was any predatory conduct on defendant’s part. Defendant’s statement makes clear that he and a group of others were driving around looking for possible victims. They had a general plan to ta ke their victims’ money and vehicles, but nothing on the record suggests that they were lying in wa it or stalking the victims. In particular, in regard to Poineau, defendant said in his statement that they we re heading to his uncle’s house when they saw Poineau’s vehicle. Defendant said that another of his associates called Spann and told him they were going to “get” the car behind Spann. After the call, the two vehicles stopped, boxing Poineau’s vehicle in so he could not drive away. Although a group of perpetrators surrounded Poineau, nothing on the r ecord suggests this was anyt hing other than a spontaneous crime of opportunity, albeit one that was executed in accord with a common scheme or plan. Accordingly, the trial court erred in scoring OV 10 at 15 points. See id. (explaining that predatory conduct is more than pur ely opportunistic criminal conduct).

According to the sentencing information report attached to defendant’s brief, defendant’s total OV score, including the errors noted above, was 65 points. For the Class A offense of carjacking, see MCL 777.16y, this placed defendant in OV Level IV on the sentencing grid. See MCL 777.62. Combined with defendant’s PRV Level C, defendant’s recommended minimum guidelines range was 108 to 180 months; his 120- month minimum sentence was within that original range. See MCL 777.62. After reduci ng OV 1 to 5 points and subtracting the points erroneously scored under OVs 2 and 10, defendan t’s total OV score is 35 points. This places defendant in OV Level II. See MCL 777.62. An OV Level II and PRV Level C combination-12- produces a recommended minimum sentence of 51 to 85 months’ imprisonment. See MCL 777.62. Defendant’s 120-month sentence is outside of this range. Because defendant’s sentence is based upon an inaccurate calc ulation of the guidelines range , which resulted in a sentence outside the proper recommende d minimum sentence range under the legislative guidelines, defendant can show plain error and he is entitled to be resentenced. People v Francisco , 474 Mich 82, 88; 711 NW2d 44 (2006); People v Kimble , 470 Mich 305, 312-313; 684 NW2d 669 (2004).

We affirm defendant’s convi ctions, but remand for resentencing consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Riordan /s/ Jane M. Beckering /s/ Mark T. Boonstra