PEOPLE OF MI V ANTHONY DEWAYNE TYLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 10, 2008
Plaintiff-Appellee,
v
No. 273960
Ionia Circuit Court
LC No. 06-013289-FH
ANTHONY DEWAYNE TYLER,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Markey and Smolenski, JJ.
PER CURIAM.
Defendant was convicted by a jury of assault upon a prison employee, MCL 750.197c,
and was sentenced as a third habitual offender, MCL 769.11, to three to eight years’
imprisonment. We affirm.
Defendant first claims that the prosecution failed to present sufficient evidence for a
rational jury to find him guilty of assault upon a prison employee. We review sufficiency of the
evidence challenges de novo, viewing the trial evidence in a light most favorable to the
prosecution to determine whether a rational trier of fact could have found that all the elements of
the offense were proved beyond a reasonable doubt. People v Cox, 268 Mich App 440, 443; 709
NW2d 152 (2005). Circumstantial evidence and reasonable inferences drawn from it may be
sufficient to prove the elements of a crime. People v Schumacher, 276 Mich App 165, 167; 740
NW2d 534 (2007). In addition, “we are ‘required to draw all reasonable inferences and make
credibility choices in support of the jury verdict.’” Cox, supra, quoting People v Nowack, 462
Mich 392, 400; 614 NW2d 78 (2000).
To support a finding that a defendant assaulted a prison employee, the prosecution must
prove that the defendant (1) was lawfully imprisoned; (2) assaulted a staff member by using
violence, threats of violence, or a dangerous weapon; and (3) knew that the victim was a staff
member. MCL 750.197c; See People v Terry, 217 Mich App 660; 553 NW2d 23 (1996).
Defendant only disputes the first element. Defendant alleges that the prosecution failed
to present sufficient evidence that he was lawfully imprisoned at the Bellemay Creek
Correctional Facility. We disagree. The lawfulness of a defendant’s confinement may be
inferred from the fact of imprisonment at a state prison. People v Neal, 233 Mich App 649; 592
NW2d 95 (1999); People v Williams, 173 Mich App 312, 318; 433 NW2d 356 (1988). In this
case, the jury could reasonably infer that defendant was lawfully imprisoned from the testimony
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of five corrections officers that he was a prisoner at the Bellemay Creek Correctional Facility.
Defendant did not dispute the fact that he was an inmate at the facility. Viewed in a light most
favorable to the prosecution, the evidence was sufficient to support defendant’s conviction of
assault upon a prison employee. Schumacher, supra at 167.
Defendant next argues he should be resentenced because although the trial court stated it
would not consider his juvenile record for sentencing purposes, it subsequently relied upon the
juvenile record in assessing points for Prior Record Variable 3.
A trial court has discretion in scoring the sentencing guidelines. People v Hornsby, 251
Mich App 462, 468; 650 NW2d 700 (2002). We will uphold the guidelines scoring if there is
any evidence in the record to support it. People v Spanke, 254 Mich App 642, 647; 658 NW2d
504 (2003). We review the trial court’s factual findings at sentencing for clear error. MCR
2.613(C); People v Babcock, 469 Mich 247, 264-265; 666 NW2d 231 (2003).
We are required to remand for resentencing only when the guidelines have been
misscored or when inaccurate information results in the sentence imposed falling outside the
appropriate guidelines range. MCL 769.34(10). Moreover, if it appears that the guidelines were
incorrectly scored but the correct score would not change the guidelines recommended minimum
range, we need not remand for resentencing. People v Davis, 468 Mich 77, 83; 658 NW2d 800
(2003).
In the instant case, the trial court chose to disregard defendant’s challenged juvenile
adjudication for purposes of sentencing. However, despite the trial court’s statements that it
would not consider defendant’s juvenile record in calculating the sentencing guidelines, the court
scored PRV-3 at 10 points for one prior high severity juvenile adjudication. See MCL 777.53.
Although the trial court in fact relied on defendant’s juvenile record for sentencing purposes,
remand for resentencing is not required because correcting defendant’s PRV-3 score would not
change the guidelines recommended minimum range. Davis, supra at 83.
Defendant’s also argues the trial court inaccurately scored Offense Variable 1 on
aggravated use of a weapon. Defendant submits that saliva is not a harmful biological substance
for purposes of scoring OV 1. See MCL 777.31(1)(b).
Defendant failed to challenge the accuracy of the scoring of OV 1 at sentencing;
therefore, our review is limited to determining whether defendant has demonstrated plain error
affecting his substantial rights. People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004).
OV 1 is scored at 20 points when “[t]he victim was subjected or exposed to a harmful
biological substance, harmful biological device, harmful chemical substance, harmful chemical
device, harmful radioactive material, harmful radioactive device, incendiary device, or explosive
device.” The statute does not directly define “harmful biological substance,” but MCL
777.31(3)(a) directs us to the definition contained in MCL 750.200h, which defines “harmful
biological substance” as “a bacteria, virus, or other microorganism or a toxic substance derived
from or produced by an organism that can be used to cause death, injury, or disease in humans,
animals, or plants.”
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We note that this Court has recently held that saliva may contain a “harmful biological
substance” supporting scoring OV 1 at 20 points for spitting on another person. People v Odom,
276 Mich App 407, 411-413; ___ NW2d ___ (2007) (saliva containing HIV-infected blood).
Nevertheless, we accept for purposes of analysis defendant’s argument that the record here
contains no evidence that defentdant’s saliva contained “bacteria, virus, or other microorganism
or a toxic substance derived from or produced by an organism that can be used to cause death,
injury, or disease in humans, animals, or plants.” But defendant’s argument still fails because he
has not demonstrated that plain error has affected his substantial rights.
Remand for resentencing is required only when the guidelines have been misscored or
when inaccurate information results in the sentence imposed falling outside the appropriate
guidelines range. MCL 769.34(10). Remand for resentencing is not required in this case
because correcting defendant’s OV 1 score would not change the guidelines recommended
minimum range. Davis, supra, 468 Mich at 83.
Defendant last argues that the trial court failed to correct defendant’s Presentence
Investigation Report (PSIR), which reflected his disputed juvenile record. Defendant submits
that the PSIR must be amended to eliminate reference to defendant’s juvenile record. We review
the trial court’s response to a defendant’s claim of inaccuracies in the PSIR for an abuse of
discretion. Spanke, supra at 648.
The abuse of discretion standard recognizes that there may be no single correct outcome
in certain situations. Babcock, supra at 269. Instead, there may be more than one reasonable
and principled outcome. Id. When the trial court selects one of these principled outcomes, it has
not abused its discretion, and this Court will defer to the trial court’s judgment. Id. An abuse of
discretion occurs when the trial court chooses an outcome falling outside the principled range of
outcomes. Id.
The sentencing court must respond to challenges to the accuracy of information in the
PSIR and has three options in responding: (1) hold an evidentiary hearing to determine the
accuracy of the information, (2) accept the defendant’s version, or (3) disregard the challenged
information. Spanke, supra at 649. The court must make a finding on the record on the merits of
defendant’s challenge. People v Hoyt, 185 Mich App 531, 535; 462 NW2d 793 (1990). If a
sentencing court finds the challenged information inaccurate or irrelevant, that finding must be
made part of the record, and the information must be corrected or stricken from the PSIR before
sending the PSIR to the Department of Corrections. MCR 6.425(E)(2); MCL 771.14(6).
Because in this case the trial court chose to disregard the challenged juvenile
adjudication, the court effectively determined that the information was irrelevant. Ordinarily,
defendant would be entitled to have the information stricken from the PSIR. Spanke, supra at
649; People v Swartz, 171 Mich App 364, 381; 429 NW2d 905 (1988). But at sentencing, the
PSIR is presumed to be accurate, and defendant bears the burden of raising an effective
challenge regarding claims of inaccurate information. See People v Callon, 256 Mich App 312,
334; 662 NW2d 501 (2003). Here, defense counsel noted that defendant questioned the juvenile
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adjudication.1 Defense counsel requested a two-week adjournment of the sentencing proceeding
to await a response to counsel’s inquiry to the juvenile court regarding its records. Instead, the
trial court offered to disregard defendant’s juvenile record, and the probation officer interjected
that the PSIR could be corrected later if it was shown to be inaccurate.
MR. MILLER:
Then if Mr. Winters [defense counsel] has some later
confirmation or non confirmation that it was not - - it shouldn’t be in there, we
could have it removed at a later date certainly.
THE COURT:
Okay. With that Mr. Winters, is it agreeable with your
client to proceeding [sic] to sentencing today?
Defense counsel subsequently explored with defendant whether he agreed to proceed
with sentencing with the understanding that, “[i]f you find out otherwise that there’s an error
with the juvenile adjudication . . . that you certainly could come back and address those.”
Defendant explicitly agreed to this procedure by stating, “Okay.”
By agreeing to proceed to sentencing as the trial court proposed, defendant also agreed
that the PSIR would be corrected if subsequent information confirmed it was inaccurate. Thus,
with respect to the juvenile adjudication noted in the PSIR, defendant has waived his right to
have that information stricken from the report solely because the trial court agreed to disregard it
at sentencing. The trial court is vested with wide discretion in addressing challenges to the
accuracy of information at sentencing. Spanke, supra at 648. The court’s response, to which
defendant agreed, was reasonable and principled, not an abuse of discretion. Babcock, supra.
We affirm.
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
/s/ Michael R. Smolenski
1
Neither defense counsel nor defendant elaborated on the nature of defendant’s question about
the juvenile adjudication. The PSIR for the instant offense indicates that “defendant denies
committing this crime,” referring to the 1979 juvenile adjudication. A PSIR prepared for a 1992
sentencing proceeding, which is attached to the current PSIR, provides more information about
the 1979 juvenile case. The 1992 PSIR states, “the defendant denies committing this offense.
He does admit that he was adjudicated but he states that he did not do what they say.”
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