People v. Johnson

826 N.W.2d 170, 298 Mich. App. 128
CourtMichigan Court of Appeals
DecidedOctober 16, 2012
DocketDocket No. 302173
StatusPublished
Cited by159 cases

This text of 826 N.W.2d 170 (People v. Johnson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Johnson, 826 N.W.2d 170, 298 Mich. App. 128 (Mich. Ct. App. 2012).

Opinion

WILDER, PJ.

Defendant was convicted, following a bench trial, of three counts of first-degree criminal sexual conduct, MCL 750.520b (multiple circum[130]*130stances). Defendant was sentenced to 17V2 to 40 years’ imprisonment for the convictions. Additionally, defendant’s judgment of sentence was amended to order defendant to lifetime electronic monitoring pursuant to MCL 750.520n. Defendant appeals as of right. We affirm.

I

Defendant first argues that the trial court erred by assessing 50 points for offense variable (OV) 11, MCL 777.41, when calculating defendant’s recommended minimum sentence range for his first-degree criminal sexual conduct convictions. We disagree.

“This Court reviews de novo questions of statutory construction.” People v Ryan, 295 Mich App 388, 400; 819 NW2d 55 (2012). “This Court reviews a trial court’s scoring of a sentencing guidelines variable for clear error.” People v Lockett, 295 Mich App 165, 182; 814 NW2d 295 (2012). “This Court reviews a sentencing court’s scoring decision to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v Phelps, 288 Mich App 123, 135; 791 NW2d 732 (2010) (quotation marks and citation omitted). The record evidence the trial court is permitted to consider when calculating the sentencing guidelines includes the contents of the presentence investigation report. People v Althoff, 280 Mich App 524, 541; 760 NW2d 764 (2008). This Court will affirm a trial court’s decision regarding sentencing scoring when there is evidence existing to support the score. Id.

First-degree criminal sexual conduct, MCL 750.520b, is a class A felony against a person. MCL 777.16y. “A scoring decision is not clearly erroneous if the record contains any evidence in support of the decision.” [131]*131Lockett, 295 Mich App at 182 (quotation marks and citation omitted). “A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report, admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary examination or trial.” People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993). “[If] a defendant has effectively challenged an adverse factual assertion contained in the presentence report or any other controverted issues of fact relevant to the sentencing decision, the prosecution must prove by a preponderance of the evidence that the facts are as asserted.” Id.

MCL 777.41 governs the scoring of OV 11 and provides as follows:

(1) Offense variable 11 is criminal sexual penetration. Score offense variable 11 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) Two or more criminal sexual penetrations occurred.......................................................................50 points
(b) One criminal sexual penetration occurred.....25 points
(c) No criminal sexual penetration occurred.....0 points
(2) All of the following apply to scoring offense variable 11:
(a) Score all sexual penetrations of the victim by the offender arising out of the sentencing offense.
(b) Multiple sexual penetrations of the victim by the offender extending beyond the sentencing offense may be scored in offense variables 12 or 13.
(c) Do not score points for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense.

[132]*132Vaginal penetration, fellatio, and cunnilingus are considered separate sexual penetrations when scoring OV 11 under MCL 777.41. See People v Wilkens, 267 Mich App 728, 743; 705 NW2d 728 (2005). Also, the Michigan Supreme Court has defined “arising out of,” as used in MCL 777.41, as something that “springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.” People v Johnson, 474 Mich 96, 101; 712 NW2d 703 (2006). Accordingly, this standard requires more than the mere fact that the penetrations involved the same defendant and victim. Id. at 101-102.

Defendant was charged with and convicted of three counts of first-degree criminal sexual conduct involving vaginal penetration, fellatio, and cunnilingus with the victim “V” V testified that she started having sex with defendant when she was 13 years old and that she has been involved with defendant sexually for three years. The first time sexual relations happened between V and defendant was at defendant’s home. V also had sex with defendant at her home. However, V did not recall how many times she had sex with defendant. V stated that defendant put his penis inside her vagina more than one time, beginning when she was 13 years old. Defendant performed cunnilingus on V more than one time, beginning when she was 13 years old. V performed fellatio on defendant more than once. In addition, V’s statements in defendant’s presentence investigation report indicated that she and defendant engaged in vaginal-penile intercourse almost every time they were together and that they also performed fellatio and cunnilingus during these encounters. Accordingly, because the record evidence establishes that two sexual penetrations arose out of the penetrations forming the basis of the sentencing offenses, OV 11 was properly scored.

[133]*133II

Next, defendant argues that there is no evidence of predatory conduct, and thus, OV 10, MCL 777.40, should have been scored at 10 points rather than 15 points. We disagree. The trial court must assess 15 points for OV 10 when “[plredatory conduct was involved” in exploiting a vulnerable victim. MCL 777.40(l)(a). Under MCL 777.40(3)(a), “[plredatory conduct” is conduct that occurred before the commission of the scoring offense and that was directed at the victim for the primary purpose of victimization. Lockett, 295 Mich App at 183. If a victim is young, the victim may be susceptible to physical restraint or temptation by an adult. See id. at 184.

The presentence investigation report stated that, according to X defendant gave her a “minute telephone” so that they could continue to communicate. It also provided that on one occasion, defendant picked V up in his vehicle and took her to his home before having sex with her. Additionally, V’s mother testified that there was a time when she noticed that V had received some gifts, including Victoria’s Secret underwear, diamond earrings, and a pink cell phone. Furthermore, there is evidence that V’s mother discovered that V had received these gifts before an incident in which she found V at defendant’s home. V was subsequently interviewed and examined by a nurse. During the interview, V admitted having vaginal intercourse with defendant. The DNA mixture found during the examination of V’s vagina matched defendant’s DNA.

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Cite This Page — Counsel Stack

Bluebook (online)
826 N.W.2d 170, 298 Mich. App. 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-johnson-michctapp-2012.