PEOPLE OF MI V LOUIS K PICKETT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 6, 2004
Plaintiff-Appellee,
v
No. 246138
Wayne Circuit Court
LC No. 00-013472
LOUIS K. PICKETT,
Defendant-Appellant.
Before: Cooper, P.J., and Griffin and Borrello, JJ.
PER CURIAM.
Defendant Louis Pickett appeals by leave granted from the trial court’s order sentencing
him to 2 to 5 years’ imprisonment for aggravated stalking, MCL 750.411i, and 2 to 5 years’
imprisonment for third-degree home invasion, MCL 750.110a(4) after a jury trial. Defendant
was sentenced under MCL 769.10, habitual offender second and was given 173 days credit for
time served. Defendant was found not guilty of first-degree criminal sexual conduct, MCL
750.520(B)(1)(f). This case arose after defendant violated a personal protection order held by his
girlfriend, entered her home, and allegedly raped her. We affirm the convictions, and remand the
matter to the trial court to correct scoring errors and for resentencing.
Defendant first argues that the prosecution failed to prove an essential element of
aggravated stalking because it did not show that defendant committed two or more separate
noncontinuous acts as required by MCL 750.411i(1)(a). This Court reviews claims of
insufficient evidence de novo. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002).
We reject defendant’s claim.
Stalking is defined as “a willful course of conduct involving repeated or continuing
harassment of another individual that would cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to
feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411i(1)(e).
Harassment is “conduct directed toward a victim that includes, but is not limited to, repeated or
continuing unconsented contact that would cause a reasonable individual to suffer emotional
distress and that actually causes the victim to suffer emotional distress.” MCL 750.411i(1)(d).
Unconsented contact means:
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[A]ny contact with another individual that is initiated or continued without
that individual’s consent or in disregard of that individual’s expressed desire that
the contact be avoided or discontinued. Unconsented contact includes, but is not
limited to, any of the following:
(i)
Following or appearing within the sight of that individual.
(ii)
Approaching or confronting that individual in a public place or on
private property.
(iii)
Appearing at that individual’s workplace or residence.
(iv)
Entering onto or remaining on property owned, leased, or occupied
by that individual.
(v)
Contacting that individual by telephone.
(vi)
Sending mail or electronic communications to that individual.
(vii) Placing an object on, or delivering an object to, property owned,
leased, or occupied by that individual. [MCL 750.411i(1)(f).]
A course of conduct is a “pattern of conduct composed of a series of 2 or more separate
noncontinuous acts evidencing a continuity of purpose.” MCL 750.411i(1)(a). Stalking is
elevated to aggravated stalking where “at least 1 of the actions constituting the offense is in
violation of a restraining order and the individual has received actual notice of that restraining
order . . . .” MCL 750.411i(2)(a).
This Court construed the meaning of the phrase “separate noncontinuous acts” for the
first time in Pobursky v Gee, 249 Mich App 44, 45, 47; 640 NW2d 597 (2001), before deciding
that where the defendant “allegedly attacked the petitioner, hurled him over a bench into a wall
or plate glass window, and then choked him while repeatedly threatening him,” the series of acts
was not separate or noncontinuous:
The word “separate,” used as an adjective, means “detached; distinct.”
Random House Webster’s New College Dictionary (1997).
The word
“noncontinuous” is a common compound word formed with non- that does not
have a special meaning; it is to be understood as not continuous. Webster’s New
Twentieth Century Dictionary of the English Language: Unabridged Edition (2d
ed, 1979). The word “continuous” is variously defined as “joined without
intervening space; without cessation or interruption; unbroken; constant;
connected,” id., or “uninterrupted in time; without cessation” or “being in
immediate connection or spatial relationship.” Random House Webster’s New
College Dictionary (1997). Thus, two or more separate noncontinuous acts are
acts distinct from one another that are not connected in time and space. See, e.g.,
People v Kieronski, 214 Mich App 222, 232; 542 NW2d 339 (1995) (evidence
that the defendant contacted the victim and threatened her on two different
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occasions and approached her on a third occasion in such a manner that a police
officer told him to leave was sufficient to show a course of conduct); People v
White, 212 Mich App 298, 307; 536 NW2d 876 (1995) (evidence that the
defendant made repeated threatening telephone calls to the victim was sufficient
to establish a course of conduct). [Pobursky, supra, 249 Mich App at 47.]
As opposed to the fact pattern in Pobursk, supra, here, there were separate,
noncontinuous acts in view of the plain meaning of those words. The evidence, viewed in the
light most favorable to the prosecution, showed that defendant arrived at the victim’s home,
followed her to school and back, was locked in her basement by her for an extended period of
time while the victim left the house. The statutory language does require us to find that separate
acts were solely due to the actions of defendant, but rather a literal interpretation of the statute
states that there must be separate, noncontinuous acts. After the victim had returned to her
home, she let defendant out of the basement. The testimony in this matter is that defendant
walked toward the door as if to leave, then turned back and attacked the victim. Hence, once the
victim left the home for a period in excess of two hours, the acts of defendant became
noncontinuous. Thus, defendant’s actions, viewed in the light most favorable to the prosecution,
demonstrate separate and noncontinuous acts.
Defendant next argues, with regard to both the aggravated stalking and the home invasion
charges, that because the prosecutor did not offer the personal protection order (PPO) into
evidence or apprise the jury of its contents, the jury could not have found that he violated the
PPO order beyond a reasonable doubt.1 Defendant stipulated that there was a PPO in place and
that he had notice of it. The prosecutor asked the victim during direct examination whether by
coming over to her house, defendant violated the PPO, and she said that he did. Defendant did
not object.
This Court can conceive of no basis on which to find, given these facts that a reasonable
jury could not find that defendant violated a PPO that he knew to be in existence. Although the
prosecutor did not offer the PPO as evidence, the jury could have reasonably assumed that the
PPO prohibited defendant from forcing his way into the victim’s home and from assaulting her.
Further, this Court has held that where a victim testified at a preliminary examination that the
defendant violated a PPO prohibiting the defendant from contacting her, “an inference that
defendant’s actions were in violation of an injunction or restraining order of which defendant had
actual notice arises . . . .” People v Kieronski, 214 Mich App 222, 231; 542 NW2d 339 (1995),
citing MCL 750.411i(2)(a). While it is true that in Kieronski the plaintiff actually testified that
the PPO prohibited the defendant from contacting her, we conclude that the same result must be
reached here where defendant did not contest the existence of the PPO, his knowledge of it, or
the victim’s testimonial statement that by coming over, he violated it. Viewing this evidence in a
light most favorable to the prosecution, People v Harmon, 248 Mich App 522, 524; 640 NW2d
1
Both charges required a finding that defendant violated a PPO. See MCL 750.411i(2)(a) and
MCL 750.110a(4)(b)(iii).
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314 (2001), we find there was sufficient evidence for a jury to find that defendant violated the
PPO.
Defendant last argues that the trial court’s assignment of points under several variables
was incorrect. We agree with defendant regarding prior variable 7 and offense variable 13, but
reject his arguments regarding the other variables.
Where construction of the statutory sentencing guidelines are at issue, the matter is one of
law and is reviewed de novo. People v Libbett, 251 Mich App 353, 365; 650 NW2d 407 (2002),
citing People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998).
MCL 777.57 states:
(1) Prior record variable 7 is subsequent or concurrent felony convictions.
Score prior record variable 7 by determining which of the following apply and by
assigning the number of points attributable to the one that has the highest number
of points:
(a) The offender has 2 or more subsequent or concurrent convictions: 20
points
(b) The offender has 1 subsequent or concurrent conviction: 10 points
(c) The offender has no subsequent or concurrent convictions: 0 points
(2) All of the following apply to scoring record variable 7:
(a) Score the appropriate point value if the offender was convicted of
multiple felony counts or was convicted of a felony after the sentencing offense
was committed.
(b) Do not score a felony firearm conviction in this variable.
(c) Do not score a concurrent felony conviction if a mandatory
consecutive sentence will result from that conviction. [Id.]
The only two offenses at issue were the convictions of defendant in this case: thirddegree home invasion and aggravated stalking. The prosecutor contends that the statute should
be interpreted to mean that if a defendant is convicted of two crimes concurrently, then twenty
points should be scored. Defendant contends that if the prosecutor’s interpretation of the statute
was accepted, no defendant would ever receive ten points. We reject the contention of the
prosecution in this case. The statute clearly addresses assessing points for convictions other than
the conviction for which the defendant is being sentenced. If a defendant has no other
concurrent or subsequent convictions, the defendant receives no points under the variable. MCL
777.57(1)(c). But if the defendant has “one subsequent or concurrent conviction,” he or she
receives ten points. MCL 777.57(1)(b). Here, defendant had one conviction concurrent to his
primary conviction, so he should have received ten points.
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Last, with regard to OV 13, we note that the trial court clearly erred in assigning 25
points after determining defendant had a continuing pattern of criminal behavior because the
prosecution failed to point to three or more crimes that occurred within a five-year period.
Although the trial court counted a misdemeanor aggravated stalking along with the current two
convictions, the misdemeanor aggravated stalking did not occur within five years of the
sentencing offense. See MCL 777.43.
The convictions are affirmed and the matter is remanded for resentencing in accordance
with this opinion. We do not retain jurisdiction.
/s/ Jessica R. Cooper
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
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