PEOPLE OF MI V TERRY GRANT JONES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 11, 2009
Plaintiff-Appellee,
v
No. 285286
Macomb Circuit Court
LC No. 07-003348-FC
TERRY GRANT JONES,
Defendant-Appellant.
Before: Owens, P.J., and Servitto, and Gleicher, JJ.
PER CURIAM.
Defendant was found guilty by a jury of attempted first-degree criminal sexual conduct
(CSC-1), MCL 750.92 & MCL 750.520b(1)(e) (use of weapon), and kidnapping, MCL 750.349.
He was sentenced as a third habitual offender, MCL 769.11, to concurrent prison terms of 5 to 10
years for the attempted CSC-1 and 20 to 50 years for the kidnapping, with credit for 306 days
already served. He appeals as of right. We affirm. This appeal has been decided without oral
argument pursuant to MCR 7.214(E).
Defendant’s convictions arise from an incident in which he forcibly attempted to sexually
penetrate the complainant, a former girlfriend, while wielding an Exacto knife and preventing
her from obtaining help or checking on the well being of her three-year-old daughter who was
present in the apartment. During the incident, defendant struck the complainant numerous times,
threatened to kill her, threatened harm to numerous others, and caused her to fear for the safety
of her young daughter.
Defendant raises two issues on appeal: First, that there was insufficient evidence to find
him guilty of kidnapping and, second, that the sentencing court erred in scoring ten points for
Offense Variable (OV) 10.
Criminal defendants do not have to take any special steps to preserve an appellate claim
of insufficient evidence. People v Cain, 238 Mich App 95, 117; 605 NW2d 28 (1999). To
determine whether sufficient evidence was presented to sustain a conviction, the evidence is
reviewed in the light most favorable to the prosecution. People v Taylor, 275 Mich App 177,
179; 737 NW2d 790 (2007).
We review the evidence in a light most favorable to the prosecution and
determine whether a rational trier of fact could have found that the essential
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elements of the crime were proven beyond a reasonable doubt. Circumstantial
evidence and reasonable inferences that arise from the evidence can constitute
sufficient proof of the elements of the crime. The standard of review is
deferential: a reviewing court is required to draw all reasonable inferences and
make credibility choices in support of the jury verdict. [Id. (internal citations
omitted).]
The kidnapping statute states that “[a] person commits the crime of kidnapping if he or
she knowingly restrains another person with the intent to . . . [e]ngage in criminal sexual
penetration or criminal sexual contact with that person.” MCL 750.349(1)(c). The statute also
defines “restrain” as meaning
to restrict a person’s movements or to confine the person so as to interfere with
that person's liberty without that person’s consent or without legal authority. The
restraint does not have to exist for any particular length of time and may be
related or incidental to the commission of other criminal acts. [MCL 750.349(2).]
The complainant testified that she heard her daughter crying while defendant was trying
to rape her. She tried to push him and wanted to go to her daughter, but defendant told her no
and had the Exacto knife the entire time he was in her bedroom. The complainant testified that
she felt helpless and was scared to leave her bedroom. She cried herself to sleep and did not
leave her room until the morning.
When viewed in the light most favorable to the prosecution, the evidence was sufficient
to enable a rational trier of fact to conclude beyond a reasonable doubt that defendant restricted
the complainant’s movements or interfered with her liberty without authority and with the intent
to engage in criminal sexual penetration or contact.
Defendant preserved his challenge to the assessment of ten points for OV 10 by objecting
at the sentencing hearing. “The proper interpretation and application of the legislative
sentencing guidelines are questions of law, which this Court reviews de novo.” People v
Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008).
Points are assigned under OV 10 when there is “exploitation of a vulnerable victim.”
MCL 777.40. Ten points are assigned when “[t]he offender exploited a victim’s physical
disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused
his or her authority status.” MCL 777.40(1)(b). As used in this statute, exploit “means to
manipulate a victim for selfish or unethical purposes” and vulnerability “means the readily
apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.” MCL
777.40(3)(b) and (c). The focus of OV 10 is on the victim’s vulnerability. Cannon, supra at
157-158. The mere existence of a factor listed in the statute does not equate to the victim being
vulnerable. MCL 777.40(2).
There was a great deal of testimony at trial concerning the relationship between the
complainant and defendant, which was a dating and a live-in relationship at one time. Defendant
also provided witnesses who thought he was still dating and living with the complainant on the
date of the incident. The complainant testified that, although the dating relationship with
defendant had ended in January, she and defendant still saw each other regularly, she had a cell
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phone in his name, they assisted each other with moving and applying for a job, and he had spent
the night on at least three our four occasions in April and May. The finding of a domestic
relationship was supported in this case.
In reviewing the trial court’s decision to score ten points to OV 10, we must also review
the trial court’s assessment of the complainant’s vulnerability. Testimony showed that defendant
pushed his way into the complainant’s apartment in the middle of the night, after she had
consumed wine coolers at a barbecue and after she had fallen asleep for the night. Defendant
was also aware that the complainant’s three-year-old daughter was in the apartment. The
complainant testified that defendant threatened to slit her throat, place her body in the trunk of a
car, and to take her children. Defendant said he would put the children in the same car and that
the children would not even know their mother was in the trunk.
Waking the complainant up in the middle of the night, making comments about killing
her and taking her children, all while the youngest child was in the apartment, made the
complainant a vulnerable victim and susceptible to injury, restraint, and persuasion. Defendant
was clearly able to manipulate the complainant for his own selfish purposes when he attempted
to rape her. Accordingly, we find that ten points were properly assessed for OV 10.
Affirmed.
/s/ Donald S. Owens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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