Sentencing; Challenge to the scoring of OVs 1 & 2 on the basis of acquitted conduct; People v Beck

Holding that defendant failed to show any scoring error or violation of the Michigan Supreme Court’s holding in Beck, the court affirmed. He was convicted of CSC I (weapon used), kidnapping, and accosting a child for immoral purposes. He was sentenced to 210 to 480 months for each of his convictions of CSC I and kidnapping, as well as 12 to 48 months for his conviction of accosting a child for immoral purposes, with his sentences to run concurrently. Defendant argued that the trial court erroneously assessed points under OV 1 and OV 2 on the basis of acquitted conduct because he “was assessed points under those OVs as if he had used a gun even though the jury acquitted him of felonious assault and the felony-firearm counts.” He primarily relied on Beck. He was assessed 15 points for OV 1 and 5 points for OV 2. Although the jury acquitted him of felonious assault and felony-firearm, that did “not necessarily mean that the jury did not find beyond a reasonable doubt that defendant was armed with a gun for purposes of his” CSC I convictions. As the case was presented to the jury, it could not have convicted him of CSC I “as it did unless it found beyond a reasonable doubt that defendant was armed with a gun.” Thus, because the jury necessarily found beyond a reasonable doubt that he “was armed with a gun to support its finding that defendant was guilty of two counts of [CSC I], the trial court did not rely on acquitted conduct to support the scoring of OV 1 and OV 2 but instead relied on conduct for which defendant was found guilty beyond a reasonable doubt by the jury.”