PEOPLE OF MI V ANTHONY WITHERSPOON
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STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
June 26, 2003
9:00 a.m.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
ANTHONY WITHERSPOON, a/k/a ANTHONY
WHITHER SPOON,
Defendant-Appellant.
No. 233774
Wayne Circuit Court
LC No. 00-008989
AFTER REMAND
Updated Copy
August 15, 2003
Before: Griffin, P.J., and Gage and Meter, JJ.
GRIFFIN, P.J.
Defendant Anthony Witherspoon appeals as of right his conviction and sentence for
second-degree criminal sexual conduct, MCL 750.520(c)(1)(a). The circuit court sentenced
defendant as a fourth-offense habitual offender, MCL 769.12, to eight to twenty years in prison
for the conviction, which involved a sexual assault against a nine-year-old girl.
Previously, in People v Witherspoon, unpublished opinion per curiam of the Court of
Appeals, issued November 19, 2002 (Docket No. 233774), we remanded the case to the trial
court for a hearing regarding factual issues relating to defendant's conviction. After our review
of the transcript of the hearing on remand and the parties' supplemental briefs, we affirm
defendant's conviction and sentence.
On appeal, defendant theorizes that the victim's father may have encouraged the victim to
falsely testify that defendant committed the sexual assault. Defendant speculates that the
victim's father was jealous of defendant because of defendant's relationship with the victim's
father's ex-wife and encouraged the victim to lie for custody purposes. In our earlier opinion, we
noted that the trial court limited the examination regarding this issue and foreclosed defense
counsel from making an offer of proof. Nevertheless, at trial, defense counsel was permitted to
ask the victim:
Q. . . . did your father ever tell you what to say in court today?
A. No.
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Further, the trial transcript reveals that defendant made no effort to call the victim's father as a
witness.
On remand, we afforded defendant an opportunity to make an offer of proof regarding the
excluded testimony. MRE 103(a)(2). However, at the hearing on remand defendant offered no
evidence in support of his theory that the victim's father may have encouraged the victim to lie.
Absent some evidentiary support, the error, if any, in excluding the evidence was harmless.
People v Lukity, 460 Mich 484; 596 NW2d 607 (1999); MCL 769.26. As the trial judge ruled at
the hearing on remand, defendant's theory is "[p]ure speculation; there is no evidence,
whatsoever, to sustain that."
Next, defendant claims that at trial the trial court improperly ordered defendant to sit with
his back to his accusers, and that he was denied the effective assistance of counsel when his
counsel failed to object to this denial of his right to confrontation. We find no merit in
defendant's argument. After reviewing the transcript of both the trial and the hearing on remand,
we find no indication that the trial court ordered defendant to sit with his back to his accusers.
Instead, the sheriff's deputy told defendant to sit in the defendant's chair, but never ordered
defendant to sit with his back to the judge and the witness stand. From our review, we conclude
that defendant voluntarily sat in the chair and never attempted to turn the chair to face his
accusers.
Finally, defendant argues that he is entitled to resentencing because the trial court may
have miscalculated the scoring of the sentencing guidelines. Specifically, defendant argues that
the trial court committed error requiring reversal by scoring offense variable 10 (OV 10) at
fifteen points on the basis of defendant's "predatory conduct."
First, pursuant to MCR 6.429(C), defendant forfeited the issue of the alleged misscoring
of the guidelines by failing to raise the issue at or before sentencing. See also MCL 769.34(10).
Further, assuming the applicability of the plain-error doctrine to forfeited sentencing-guideline
issues, see People v Kimble, 252 Mich App 269; 651 NW2d 798 (2002), lv gtd 468 Mich 870
(2003), for the reasons stated below, we conclude that scoring OV 10 at fifteen points was not
plain error.
Second, in general, an appellant may not benefit from an alleged error that the appellant
contributed to by plan or negligence. People v Carter, 462 Mich 206, 214-216; 612 NW2d 144
(2000); Bloemsma v Auto Club Ins Ass'n (After Remand), 190 Mich App 686, 691; 476 NW2d
487 (1991). Here, on two occasions during the sentencing proceedings, defense counsel
represented to the trial court that the scoring of the guidelines resulted in a minimum sentence of
between 29 and 114 months. On the second occasion, the following colloquy occurred:
The Court: Okay. You have already─now, after you've gone through all
of your, with the slide rule and everything─
Mr. Harris (defense counsel): Yes.
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The Court:─what do you come up with?
Mr. Harris: Twenty-nine, on the minimum─29 months on the minimum,
and 114 months on the maximum. Based on Habitual Fourth.
The Court: Okay. Okay, very good. For purposes of argument, I will
accept your calculations.
Mr. Harris: Yes, your Honor.
The Court: Okay. Very good. No problem.
After accepting defense counsel's scoring of the guidelines, the trial judge proceeded to
sentence defendant to a sentence within the represented guidelines range:
Mr. Harris: I'm suggesting that the Court stay towards the 29 months.
The Court: No. I mean, I told you I'm going to stick with the calculations
that you made. I've already said that.
Mr. Harris: Well, that's the minimum range, Judge. Of course, the Court
sets the maximum range.
The Court: Okay. Then I still say I accept what you say.
Mr. Harris: And I would ask the Court to accept the maximum range at
no more, no more than the underlying offense, which would be 15 years. So, I
would ask the Court for a sentence of 29 months to 15 years.
The Court: Okay. Mr. Witherspoon, is there anything you wish to say?
Defendant Witherspoon: Nothing, sir.
The Court: Pardon?
Defendant Witherspoon: No.
The Court: Anything from the People?
Mr. Wenzel (prosecuting attorney): We only ask, based upon the number
of convictions Mr. Witherspoon has, the nature of this offense, involving a child,
we would ask for a sentence of anywhere from nine years to 25.
The Court: Okay. Since we've been advised that you're under the ─ was
the [sic] also convicted of the Fourth Offender?
Mr. Wenzel: Yes. That's an actual advisory notice, Judge.
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The Court: All right. The Department of Corrections has stated that
there's one sentence. That you don't sentence anymore and then vacate the
sentence and sentence him as a habitual. You do the sentencing.
Mr. Wenzel: It's an advisory─
The Court: So, the maximum of 15 could be a maximum of life; is that
correct?
Mr. Wenzel: Yes, sir.
The Court: Anywhere up to life?
Mr. Wenzel: Yes, sir.
The Court: Okay. The Court will sentence him to a minimum of eight
years to 20. Okay.
Because defendant's sentence of eight to twenty years is within the guidelines range represented
by defendant, error, if any, in the scoring of OV 10 is harmless. MCL 769.34(10).
Finally, we hold that, on the facts of the case, the trial judge's scoring of fifteen points for
OV 10 based on "predatory conduct" was not clearly erroneous.1 Although the sentencing judge
erred in stating "all sex offenses are predatory," it is well settled that we will not reverse when
the trial court reaches the correct result for the wrong reason. People v Jory, 443 Mich 403, 425;
505 NW2d 228 (1993); People v Lucas, 188 Mich App 554; 577; 470 NW2d 460 (1991).
Scoring decisions under the sentencing guidelines are not clearly erroneous if "there is
any evidence in support" of the decision. People v Elliott, 215 Mich App 259, 260; 544 NW2d
748 (1996) (emphasis added). Evidence regarding "predatory conduct" is statutorily defined as
"preoffense conduct directed at a victim for the primary purpose of victimization." MCL
777.40(3)(a). In Kimble, supra at 274-275, our Court addressed this statutory definition of
"predatory conduct" and held that the following factual situation justified a score of fifteen
points:
Defendant also claims that the trial court misscored OV 10 at fifteen
points. Under MCL 777.40(1)(a), the trial court must assign fifteen points to this
variable if "[p]redatory conduct was involved." The statute defines predatory
conduct as "preoffense conduct directed at a victim for the primary purpose of
1
In People v Fields, 448 Mich 58, 77; 528 NW2d 176 (1995), our Supreme Court applied a
"clearly erroneous" standard of review to factual decisions made at sentencing: "[W]e hold that
the existence or nonexistence of a particular factor is a factual determination for the sentencing
court to determine, and should therefore be reviewed by an appellate court for clear error."
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victimization." MCL 777.40(3)(a). Here, the record reflects that defendant and
his accomplices drove around for an hour, looking for a car to steal so they could
remove and sell the wheel rims. The record further indicates that, when defendant
and his cohorts saw the victim driving a car with valuable rims, they followed the
victim home, watched the victim pull into the driveway, and shot the victim in
order to steal the car. Defendant's preoffense behavior in seeking out a victim and
following this victim home for the specific purpose of committing a crime against
her was clearly predatory within the meaning of the statute. Accordingly, the trial
court did not err in assigning fifteen points for OV 10.
In the present case, the nine-year-old victim testified that defendant was her mother's
boyfriend, who at the time of the sexual assault was not living with them but would visit and
often spend the night. The third grader testified that when no one else was present and she was
folding clothes in the basement, defendant approached her and committed a sexual assault. We
conclude that the timing of the assault (when no other persons were present) and its location (in
the isolation and seclusion of the basement) are evidence of preoffense predatory conduct. Like
Kimble, supra, it may be inferred from the evidence that defendant watched his victim and
waited for any opportunity to be alone with her in an isolated location. On the basis of this
evidence, the trial court's scoring of OV 10 at fifteen points for predatory conduct was not clearly
erroneous.
Affirmed.
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
/s/ Patrick M. Meter
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