PEOPLE OF MI V DARRIN JAY HERP
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 22, 2010
Plaintiff-Appellee,
v
No. 291484
Eaton Circuit Court
LC No. 08-020070-FH
DARRIN JAY HERP,
Defendant-Appellant.
Before: MURRAY, P.J., and SAAD and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his convictions of unlawful imprisonment, MCL 750.349b,
felonious assault, MCL 750.82, possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b, and resisting arrest, MCL 750.81d(1). Defendant also appeals
the accompanying sentences. Because we conclude that there were no errors warranting relief,
we affirm.
Defendant’s convictions arose out of an altercation between defendant and his exgirlfriend. Defendant entered the backseat of the victim’s car while she was in a store. When
she returned to the car, he grabbed her and attempted to force her to stay in the car with him.
She escaped with the help of a passerby. She screamed several times that defendant had a gun
and the passerby saw a gun in defendant’s hand. Defendant fled on foot. The police later
arrested him in a rural area.
Defendant first argues that the evidence was insufficient to establish that he used a gun
during the incident. This Court reviews challenges to the sufficiency of the evidence de novo to
determine whether a rational trier of fact could have found that the prosecutor proved that
defendant used a gun. People v Vaughn, 186 Mich App 376, 379; 465 NW2d 365 (1990).
The witnesses gave divergent testimony concerning the characteristics of the gun.
Nonetheless, both the victim and the passerby were firm in their testimony that defendant had a
gun at the time of the incident. Viewing this testimony in the light most favorable to the
prosecution, see People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000), there was
sufficient evidence to allow the jurors to conclude that defendant used a gun in the commission
of the offenses. We also reject defendant’s contention that the evidence was insufficient because
it was equivocal as to whether the gun was real. Although a toy gun was later found in
defendant’s car, the victim testified that the toy gun was not the gun she saw during the incident.
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The passerby also testified that the gun was real, not a pellet gun or a BB gun. Thus, the issue
was ultimately a matter of the weight and credibility and this Court defers to the jury’s
assessment of the weight and credibility to be afforded to the evidence. People v Passage, 277
Mich App 175, 177; 743 NW2d 746 (2007). There was sufficient evidence to support
defendant’s convictions.
Defendant also challenges his sentence, claiming that the trial court erred in assessing 15
points under offense variable (OV) 10, MCL 777.40. We review this preserved issue to
determine whether the record evidence adequately supports the 15 point assessment. People v
Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009).
To assess points under OV 10, the sentencing court must determine that the victim was
vulnerable, and that the offender exploited the victim’s vulnerability. People v Cannon, 481
Mich 152, 159; 749 NW2d 257 (2008). Vulnerability is established by proof of “readily
apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.” MCL
777.40(3)(c); see also Cannon, 481 Mich at 158 n 11. Here, the evidence showed that defendant
got into the back seat of the victim’s car after she went into a store. He then waited for her to
return, and, after she got into the car, he tried to pin her in the small, readily controlled confines
of the car—that is, defendant waited until the victim was in a particularly vulnerable position
before attempting to abduct her. Accordingly, there was evidence that defendant exploited the
victim’s susceptibility to restraint.
We also reject defendant’s argument that his behavior was not predatory. The Cannon
Court defined predatory conduct under OV 10 as preoffense behavior “directed at a person for
the primary purpose of causing that person to suffer from an injurious action or to be deceived.”
Cannon, 481 Mich at 161. The trial evidence established that defendant entered the back seat of
the victim’s car, concealing himself until she returned to the car. This deception was sufficient
to assess 15 points against defendant for predatory conduct under OV 10.
Lastly, defendant argues that the trial court erred when it refused to strike certain
speculative statements from his presentence investigation report (PSIR). If a defendant
challenges the accuracy of information contained in a sentencing report, the trial court must
respond by determining the accuracy of the information, accepting the defendant’s version, or by
simply disregarding the information. People v Uphaus (On Remand), 278 Mich App 174, 182;
748 NW2d 899 (2008). If the trial court disregards the challenged information, it should order
the information stricken from the report. MCL 771.14(6); People v Britt, 202 Mich App 714,
718; 509 NW2d 914 (1993). This Court reviews a trial court’s response to the defendant’s
challenge for an abuse of discretion. Uphaus, 278 Mich App at 181.
In the PSIR, the preparer indicated that, on the basis of the details surrounding the events
at issue, defendant must have planned the attempted abduction. He also noted that the victim felt
that defendant might have been planning to take her to a secluded trailer with which defendant
was familiar. Defendant challenged these statements as speculative. In response to the
challenges, the trial court stated that the writer had the right to speculate about the inferences that
could be drawn and noted that it was not deferring to the writer’s speculation in sentencing
defendant, but was relying on its own interpretation of the evidence.
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On appeal, defendant does not challenge the accuracy of the facts stated in his PSIR.
Rather, as the trial court recognized, he challenges the opinions offered by the preparer of the
PSIR and the victim concerning the possible inferences that can be drawn from the facts of his
case. The trial court stated that it was not relying on the opinions in sentencing defendant, but
that the opinions should remain in the report. The preparer of defendant’s PSIR could properly
offer opinions about the import of defendant’s behavior and the inferences that could be drawn
from the facts of the case, and a trial court does not abuse its discretion when it permits such
opinions to remain in the report as long as the report accurately reflects those opinions. See
People v Waclawski, 286 Mich App 634, 691; 780 NW2d 321 (2009) (holding that the trial court
did not abuse its discretion when it refused to strike the PSIR preparer’s opinion as to how the
defendant in that case cooperated with the preparation of the report). Defendant does not suggest
that the PSIR does not accurately reflect the challenged opinions. Thus, the trial court did not
abuse its discretion by rejecting defendant’s challenge to the accuracy of the PSIR preparer’s
opinions concerning the possible inferences to be drawn from the facts adduced in this case. Id.
There were no errors warranting relief.
Affirmed.
/s/ Christopher M. Murray
/s/ Henry William Saad
/s/ Michael J. Kelly
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