PEOPLE OF MI V KEVIN ANTHONY DIXON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 6, 2002
Plaintiff-Appellee,
v
No. 234124
St. Clair Circuit Court
LC No. 99-002164-FH
KEVIN A. DIXON,
Defendant-Appellant.
Before: Murray, P.J., and Cavanagh and Bandstra, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of four counts of third-degree criminal
sexual conduct, MCL 750.520d(1)(a) (sexual penetration of a person aged 13 to 15), and
sentenced as a second habitual offender, MCL 769.10, to serve concurrent terms of 10 to 22½
years’ imprisonment for each count. Defendant appeals by leave granted. We affirm.
The sole issue on appeal is whether the trial court abused its discretion in scoring
defendant’s offenses under the legislative sentencing guidelines, MCL 769.31 et seq.
Specifically, defendant argues that offense variables (OV) 10 and 11 were incorrectly scored.
Defendant failed to preserve this issue for review by objecting to the scoring on the grounds now
raised on appeal at sentencing. MCR 6.429(C). Therefore, we review these alleged errors for
plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 761-763;
597 NW2d 130 (1999).
Defendant challenges the scoring of OV 10 on two grounds. Defendant first claims the
record is devoid of evidence to support the scoring of this variable at fifteen points, which is
assigned upon a finding that “[p]redatory conduct” was involved, MCL 777.40(1)(a). Predatory
conduct is defined as “preoffense conduct directed at a victim for the primary purpose of
victimization.” MCL 777.40(3)(a). Here, the record reflects that approximately two weeks
before the first act of penetration, the thirty-four-year-old defendant enticed his fifteen-year-old
victim to a location remote from her home, then drove her to a motel where the two lay on the
bed, hugging and kissing while watching television. This evidence of “conditioning” the victim
for later penetration was adequate to support the scoring of OV 10 for predatory conduct, as
defined in MCL 777.40(3)(a). Accordingly, we find no plain error affecting defendant’s
substantial rights in the scoring of OV 10. See People v Hoffman, 205 Mich App 1, 24; 518
NW2d 817 (1994) (a trial court’s scoring decision will not be reversed if evidence exists to
support the score).
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Defendant further claims that his victim’s vulnerability was typical of all criminal sexual
conduct victims of the same age as the victim here, and that, therefore, OV 10 should have been
scored at zero. See MCL 777.40(1)(d) (“[t]he offender did not exploit a victim’s vulnerability”).
However, even were we to accept defendant’s argument that this fact supports a score of zero
under MCL 777.40(1)(d), MCL 777.40(1) requires that the trial court score the highest number
of points properly assignable under OV 10. As discussed above, the predatory nature of
defendant’s conduct supports the scoring of fifteen points for this variable. Accordingly, OV 10
was properly scored at the higher rate of fifteen points. MCL 777.40(1).
Defendant’s second claim of error relates to OV 11, which considers the number of
criminal sexual penetrations arising out of the sentencing offense, MCL 777.41. Defendant
claims he was incorrectly scored fifty points for OV 11 for two reasons: (1) two criminal sexual
penetrations were improperly counted in the scoring where one of those penetrations was the
basis for the sentencing offense, see MCL 777.41(2)(c), and (2) each of the four convictions
were not scored on separate sentence information report (SIR) forms.
Even assuming arguendo that defendant is correct on the first argument, he is entitled to
no relief. There was record evidence showing that two penetrations, one penile and one digital,
occurred during the first offense in January 1999. These penetrations would support the scoring
of twenty-five OV 11 points, decreasing defendant’s total OV score from 100 to 75 points. This
would not, however, change the guidelines’ sentencing range or the recommended sentence
because 75 points still falls within OV level VI. MCL 777.64.1 Because defendant’s four
convictions bear identical concurrent sentences, and the record supports at least one of those
sentences, the alleged error in scoring OV 11 on the remaining counts would not have affected
the outcome. Therefore, defendant has failed to show plain error affecting his substantial rights.
Defendant also appears to claim that OV 11 was incorrectly scored because each of his
four convictions were not scored on a separate SIR. See MCL 777.21(2). However, four
completed SIR forms are contained in the lower court record, one for each conviction.
Therefore, there was no error.
We affirm.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Richard A. Bandstra
1
Although the offense of third-degree criminal sexual conduct, MCL 750.520d, was reduced
from a Class C to a Class B offense by enactment of 2000 PA 279, effective October 1, 2000,
because defendant was sentenced on December 13, 1999, the sentencing grids applicable to a
Class C offense apply here.
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