People of Michigan v. David Troy Zarn ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 27, 2018
Plaintiff-Appellee,
v No. 323279
Wayne Circuit Court
DAVID TROY ZARN, LC No. 13-008592-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 323280
Wayne Circuit Court
DAVID TROY ZARN, LC No. 13-008758-FC
Defendant-Appellant.
ON REMAND
Before: K. F. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.
PER CURIAM.
This case returns to us on remand from the Michigan Supreme Court. After initially
holding this matter in abeyance, the Michigan Supreme Court has remanded this case to us for
“plenary review of the defendant’s claim that his sentence was disproportionate under the
standard set forth in People v Milbourn, 435 Mich. 630, 636 [; 461 NW2d 1 (1990)]. See People
v Steanhouse, [500 Mich. 453, 460-461; 902 NW2d 327 (2017)].” For the reasons set forth
below, we affirm defendant’s sentences but remand for the ministerial purpose of allowing the
trial court to correct the judgment of sentence.
I. BACKGROUND
In our earlier opinion, we set forth the pertinent facts underlying this appeal:
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This case arises from allegations of prolonged sexual abuse by defendant
against his stepdaughters, T.S. and L.S. Defendant married the complainants’
mother . . . in 2000, shortly after [she] divorced the complainants’ biological
father[.] The complainants lived in Michigan with defendant and [their mother]
until 2006, at which point [their mother], defendant, and the complainants moved
to Pennsylvania. Complainants testified at trial that defendant sexually abused
them while they lived in both Michigan and Pennsylvania. Both complainants
testified that the abuse in Michigan included defendant forcing complainants to
perform oral sex on him. In 2012, T.S. told her boyfriend about the abuse, which
ultimately led to an investigation, during which both complainants disclosed
abuse. The case proceeded to trial, and defendant was convicted of all charged
crimes, which he now appeals. [People v Zarn, unpublished per curiam opinion
of the Court of Appeals, issued March 22, 2016 (Docket Nos. 323279, 323280), p
2.]
We also noted the procedural history of these consolidated appeals in our earlier opinion:
In [D]ocket number 323279, defendant appeals as of right his jury trial
convictions of three counts of first-degree criminal sexual conduct (CSC I), MCL
750.520b(1)(a) (person under 13 years of age), and second-degree criminal sexual
conduct (CSC II), MCL 750.520c(1)(a) (person under 13 years of age).
Defendant was sentenced to 30 to 70 years’ imprisonment for the CSC I
convictions to be served consecutive to 15 to 25 years’ imprisonment for the CSC
II conviction. In [D]ocket number 323280, defendant appeals as of right his jury
trial conviction of CSC I, MCL 750.520b(1)(a) (person under 13 years of age).
Defendant was sentenced to 30 to 70 years’ imprisonment for the CSC I
conviction. These cases were consolidated for the efficient administration of the
appellate process. [Zarn, unpub op at 1 (footnote omitted).]
In this Court, defendant advanced several arguments challenging his sentences, the trial
court’s evidentiary rulings, and also alleged prosecutorial misconduct, ineffective assistance of
counsel and judicial bias. In our first opinion we affirmed defendant’s convictions, but
remanded for a Crosby1 hearing with respect to his sentences. Id. at 1-2. Specifically, in this
Court, defendant had argued that he was entitled to be resentenced where the trial court engaged
in impermissible judicial fact-finding in violation of the Sixth Amendment in assessing points
pursuant to the sentencing guidelines. Id. at 2. Defendant also challenged the trial court’s
scoring of several offense variables (OVs), and asserted that the trial court lacked substantial and
compelling reasons to depart upward from the sentencing guidelines. Id. at 2, 4. While we
acknowledged in our first opinion that the jury did not make findings necessary to support the
scoring of points for OV 13 (physical injury), OV 4 (psychological injury), OV 10 (predatory
behavior), and OV 13 (continuing pattern of criminal behavior), we also observed that, congruent
with the Michigan Supreme Court’s holding in People v Lockridge, 498 Mich. 358; 870 NW2d
1
United States v Crosby, 397 F3d 103 (CA 2, 2005).
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502 (2015), “defendants who received an upward departure sentence could not establish plain
error because the trial court did not rely on the minimum sentence range.” Zarn, unpub op at 3.
We further acknowledged the Michigan Supreme Court’s directive in Lockridge that “a sentence
that departs from the applicable guidelines range will be reviewed by an appellate court for
reasonableness.” Id., citing Lockridge, 498 Mich at 392. At the time of our first opinion, the
governing precedent directing our “reasonableness” review was this Court’s decision in People v
Steanhouse, 313 Mich. App. 1; 880 NW2d 297 (2015), rev’d on other grounds 500 Mich. at 460.
Thus, pursuant to this Court’s decision in Steanhouse, we remanded this case to the trial court for
a Crosby hearing as outlined in Lockridge. Zarn, unpub op at 1-2, 3, 4.
Defendant subsequently applied for leave to appeal to the Michigan Supreme Court, and
on March 7, 2017, the Michigan Supreme Court entered an order holding these appeals in
abeyance pending its decisions in Steanhouse and People v Masroor, 500 Mich. 453. People v
Zarn, ___ Mich ___; 890 NW2d 662 (2017). Subsequently, on November 29, 2017, the
Michigan Supreme Court entered an order remanding these appeals to this Court, stating as
follows:
By order of March 7, 2017, the application for leave to appeal the March 22, 2016
judgment of the Court of Appeals was held in abeyance pending the decisions in
People v Steanhouse (Docket No. 152849) and People v Masroor (Docket Nos.
152946-8). On order of the Court, the cases having been decided on July 24,
2017, 500 Mich. 453; 902 NW2d 327 (2017), the application is again considered
and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
REVERSE that part of the judgment of the Court of Appeals remanding this case
to the trial court for a hearing pursuant to People v Lockridge, 498 Mich. 358; 870
NW2d 502 (2015), and we REMAND this case to the Court of Appeals for
plenary review of the defendant’s claim that his sentence was disproportionate
under the standard set forth in People v Milbourn, 435 Mich. 630, 636; 461 NW2d
1 (1990). See People v Steanhouse, 500 Mich. 453, 460-461; 902 NW2d 327
(2017). In all other respects, leave to appeal is DENIED, because we are not
persuaded that the remaining questions presented should be reviewed by this
Court. [People v Zarn, 501 Mich. 921; 903 NW2d 554 (2018).]
After defendant moved for reconsideration in the Michigan Supreme Court, the Michigan
Supreme Court issued an order on February 20, 2018 denying defendant’s motion. People v
Zarn, ___ Mich ___; 906 NW2d 760 (2018).
II. ANALYSIS
Pursuant to the Michigan Supreme Court’s directive, we must give “plenary review” to
defendant’s allegation “that his sentence was disproportionate under the standard set forth in
People v Milbourn, 435 Mich. 630, 636 (1990).” People v Zarn, ___ Mich ___; 903 NW2d 554
(2018). In its order, the Michigan Supreme Court directed us to its recent decision in People v
Steanhouse, 500 Mich. at 460-461. In Steanhouse, the Michigan Supreme Court held that “the
proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its
discretion by violating the ‘principle of proportionality’ set forth in [Milbourn], ‘which requires
sentences imposed by the trial court to be proportionate to the seriousness of the circumstances
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surrounding the offense and the offender.’” Id. at 460-461. In Steanhouse, the Michigan
Supreme Court also clarified that where a defendant receives an upward departure sentence,
pursuant to Lockridge, the defendant is unable to show prejudice arising from any alleged error
in violation of the Sixth Amendment, and therefore “the proper approach is for the Court of
Appeals to determine whether the trial court abused its discretion by violating the principle of
proportionality.” Id. at 461.
In Steanhouse, the Michigan Supreme Court recalled its prior opinion in Lockridge,
noting that departure sentences following Lockridge “would be reviewed for reasonableness[.]”
Id. at 462. Therefore, post-Steanhouse, when reviewing a defendant’s sentence for
reasonableness, the applicable standard of review to be used by appellate courts is an abuse of
discretion. Id. at 471. Moreover, the principle of proportionality standard requires this Court to
discern whether a sentence imposed by the trial court is “proportionate to the seriousness of the
circumstances surrounding the offense and the offender.” Id. at 474, quoting Milbourn, 435
Mich. at 636. The Steanhouse Court held, in pertinent part, as follows:
We repeat our directive from Lockridge that the guidelines “remain a highly
relevant consideration in a trial court’s exercise of sentencing discretion” that trial
courts “ ‘must consult’ ” and “ ‘take . . . into account when sentencing,’ ”
Lockridge, 498 Mich. at 391, quoting [United States v Booker, 543 U.S. 220, 264;
125 S. Ct. 738; 160 L. Ed. 2d 621 (2005)] and our holding from Milbourn that “the
key test is whether the sentence is proportionate to the seriousness of the matter,
not whether it departs from or adheres to the guidelines recommended range,”
Milbourn, 435 Mich. at 661. [Steanhouse, 500 Mich. at 474-475.]
The following factors are of assistance in determining whether a departure sentence “is more
proportionate than a sentence within the guidelines range[.]” People v Dixon-Bey, ___ Mich
App ___, ___: ___ NW2d ___ (2017) (Docket No. 331499); slip op at 18. Such factors include:
(1) whether the guidelines accurately reflect the seriousness of the crime, People v
Houston, 448 Mich. 312, 321-322; 532 NW2d 508 (1995), see also Milbourn, 435
Mich. at 657 (2) factors not considered by the guidelines, Houston, 448 Mich. at
322–324, see also Milbourn, 435 Mich. at 660 and (3) factors considered by the
guidelines but given inadequate weight[.] [Dixon-Bey, ___ Mich App at ___; slip
op at 18-19.]
Other relevant factors include, “the defendant’s misconduct while in custody, the defendant’s
expressions of remorse, and the defendant’s potential for rehabilitation[.]” Id. at __; slip op at 19
n 9, quoting Steanhouse, 313 Mich. App. at 46.
A. FACTORS CONSIDERED BY THE TRIAL COURT DURING SENTENCING
For defendant’s CSC I convictions, the sentencing guidelines called for a minimum
sentence in the range of 135 to 225 months’ imprisonment. For defendant’s CSC II conviction,
the guidelines recommended a minimum sentence in the range of 43 to 86 months’
imprisonment. The trial court relied on the following factors in deciding to depart upward from
the sentencing guidelines’ recommended range: (1) the length of time that T.S. and L.S. endured
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sexual abuse by defendant, (2) that, in 2006, after defendant had committed the offenses giving
rise to this appeal, the state Legislature amended MCL 750.520b to provide for a potential life
sentence, and a mandatory minimum sentence of 25 years, for a conviction of CSC I where the
victim is under the age of 13, (3) the emotional and long-lasting damage defendant inflicted on
T.S. and L.S.’s family and the irreparable destruction of their relationship with their mother, (4)
the fact that while living with defendant and being repeatedly sexually abused, T.S. and L.S.
lived a life of isolation subject to defendant’s control, (5) that defendant’s sexual abuse of T.S.
and L.S. violated their parents’ trust in him where he acted as a father figure to the children, (6)
that both T.S. and L.S. were subject to repetitive violent abuse at defendant’s hands, and (7) the
fact that both T.S. and L.S. were members of defendant’s immediate family, living under his roof
when he engaged in the sexual abuse and that he was a father figure to them.
Defendant first challenges the trial court’s departure on the basis of the length of time
that the sexual abuse transpired, as well as its violent nature. Where these factors also dovetail
with the isolation and control that defendant imposed on T.S. and L.S., we will consider this
factor as well. According to defendant, the trial court engaged in “double-dipping” when it
departed upward on the basis of the length of the abuse, particularly where the trial court
assessed 25 points for OV 13, which addresses “a continuing pattern of criminal behavior.”
MCL 777.43. An assessment of 50 points, which is what defendant received, is appropriate
where “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more
sexual penetrations against a person or persons less than 13 years of age.” MCL 777.43(1)(a).
We disagree with defendant that OV 13 adequately takes into account the continuing nature of
the violent sexual abuse that defendant inflicted.
For example, during the sentencing hearing, while commenting on the particularly
disturbing facts of this “exceptional” sexual abuse case, the trial court remarked that during the
lengthy course of sexual abuse, both T.S. and L.S. “lived a life of isolation and control where
they weren’t even free to bathe.” According to the trial court’s recitation of the facts:
[Defendant] monitored [T.S. and L.S.’s] ability to bathe and when they
went over his time restrictions in the bathroom he would interfere in the most
private basic thing that any human being should be allowed to wash, is their body.
[Defendant] wouldn’t even allow these girls to wash their bodies without being
controlled.
The trial court’s comments were supported by the record evidence. The record reflects that
defendant started to sexually abuse both T.S. and L.S. at the age of six, forcing them to perform
fellatio on him while blindfolded. Defendant also conducted “listening tests” on T.S. as a little
girl while she was blindfolded, and if she moved or gagged while performing fellatio, she would
be beaten with a belt. During trial, T.S. testified that defendant had strict rules in his home for
when she and L.S. could shower. The children could only shower in the master bathroom which
defendant shared with their mother, they were not allowed to lock the bathroom doors, they were
allotted specific amounts of time within which they could shower and the water had to be turned
off as they soaped their bodies. When she was 16 years old, T.S. started to realize that the sexual
abuse that she had suffered was not normal or commonplace, specifically stating, “I realized that
I wasn’t living a life like most teenage girls and I had had enough.” T.S. also testified that she
was not allowed to have a boyfriend, she and L.S. were not allowed to have friends over to visit,
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and that defendant went so far as to monitor when and how she and L.S. could shave their
bodies, forcing them to use electric razors, and at one point defendant forced himself on T.S. and
shaved T.S.’s vagina for her.
According to T.S. she did not report the sexual abuse to anyone before she told her
boyfriend in 2012, because she thought that everyone went through such treatment, and
defendant had coerced her into thinking that he was doing it for her benefit. T.S. also testified
that she was also afraid to disclose the sexual abuse to anyone else because defendant had
physically abused her by beating her with a belt in the past. In T.S.’s own words, “I was afraid
to tell because although [defendant] never threatened me saying that he would do something to
me[,] through the multiple years of getting hit with a belt I didn’t even want to imagine what
would happen if [defendant] found out I told someone [about the sexual abuse.]” As noted
previously, T.S. also testified about “listening tests” that defendant forced her to undergo when
she was six years old where she would be required to stand in front of him naked and blindfolded
and perform fellatio on him, and if she flinched when defendant touched her or gagged when he
put his penis in her mouth she would be beaten with a belt on her bottom. At the sentencing
hearing L.S. also recalled how she was not permitted to participate in sports as much as she
wanted to, she was not able to sleep over at her friends’ houses or go to birthday parties, and
only had one birthday party herself during her childhood. T.S. and L.S.’s father also recalled at
trial that he was not permitted to call and speak to his daughters over the telephone unless
defendant or the children’s mother was at home.
In People v Smith, 482 Mich. 292, 301; 754 NW2d 284 (2008), the Michigan Supreme
Court recognized that where a victim had undergone repeated sexual abuse over a 15 month
period, the trial court correctly concluded “that the long period of abuse” warranted an upward
departure. Therefore, we agree with the trial court that the sentencing guidelines do not
adequately take into account the particularly disturbing facts of this case, and the upward
departure was warranted where T.S. and L.S. lived a life of isolation, control and sexual abuse
caused by defendant for a period of approximately 10 years.
Defendant also challenges the trial court’s decision to depart upward where MCL
750.520b was amended by 2006 PA 169, effective August 28, 2006, and now provides for a
potential life sentence, and a mandatory minimum sentence of not less than 25 years, where the
violation is committed “by an individual 17 years of age or older against an individual less than
13 years of age.” MCL 750.520b(2)(b). According to the trial court, the guidelines did not
adequately take into account the seriousness of defendant’s conduct where the penalty for CSC I
had been increased to a mandatory minimum of 25 years, and defendant’s recommended
guideline range called for a minimum sentence of 11¼ years to 18¾ years. We agree with the
trial court that the guidelines did not “accurately reflect the seriousness of [defendant’s crime,]”
particularly in light of the legislative amendment, and that an upward departure was appropriate
on this basis. While defendant asserts that a violation of the Ex Post Facto Clause of the
Michigan and federal constitutions resulted, we turn to our analysis in our first opinion in
responding to defendant’s contention:
Defendant next asserts that the trial court violated the Ex Post Facto
Clause of the Michigan and federal constitutions. We disagree. The Ex Post
Facto Clauses of the United States and Michigan Constitutions bar the retroactive
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application of a law if the law: (1) punishes an act that was innocent when the act
was committed; (2) makes an act a more serious criminal offense; (3) increases
the punishment for a crime; or (4) allows the prosecution to convict on less
evidence. People v Earl, 495 Mich. 33, 37; 845 NW2d 721 (2014). . . . Here,
defendant complains of the trial court’s reference to MCL 750.520b(2)(b),
enacted in 2006 after the crimes were committed, which provides a 25-year
minimum sentence for CSC I when the victim is under 13 years old. Contrary to
defendant’s assertion, the trial court did not apply MCL 750.520b. The
prosecutor and trial court merely referenced the change in the law when
discussing the trial court’s discretion to depart upward from the sentencing
guidelines. The trial court stated that the amendment of the statute further
illustrated the inadequacy of the sentencing guidelines as applied to this case. The
trial court did not follow the law or apply it. Moreover, the trial court still
provided reasons for upward departure separate from its reference to MCL
750.520b. Thus, no error occurred. [Zarn, unpub op at 5.]
Defendant also challenges the trial court’s upward departure on the basis of extreme
psychological harm to both T.S. and L.S. and their family unit. In deciding to depart upward on
the basis of this factor, the trial court noted that the extreme harm caused to T.S.’s and L.S.’s
family was not a factor already adequately contemplated by the guidelines:
Well I don’t know about you all but I think that the psychological impact
on this family is clearly demonstrated and born[e] out on this record. You have
the testimony of both the complaining witnesses’ biological mother as well as
their biological father as well as the testimony of the complaining witness[es] that
shows that this family has been irretrievably broken and that there has certainly
been psychological harm [to the] victims o[r] the family members of these victims
in this case that are not at all counted or reflected in the guidelines[.]
* * *
I mean the damage to the relationships or the bonds between them as
sisters, they’ve given their testimony about that and, I don’t know, I mean the
most despicable part about this whole case is [the children’s mother] who allowed
this man to come into her life and she chose a man over her children.
* * *
And then you have [the children’s mother] when given an opportunity to
make a victim impact statement to the Michigan Department of Corrections, and
that’s born[e] out in the presentence investigation report, she goes on and on
about how great her husband is and how her daughters were known to lie and he’d
never do anything to hurt those girls. I mean it’s just like a mother’s love is the
one thing that a child knows for sure. If a child doesn’t have anything else in the
world they’re supposed to have their mother to love them but that bond has been
irretrievably broken. When these children grow up and they have children of their
own they will probably never have a relationship with their mother which means
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their children will probably never have a relationship with their biological
grandmother. [Defendant’s] action [are] going to have a generational impact on
these children and whatever children they have in the future and I don’t think
there’s any words that can express what that must be like to these two little girls
to know that their own mother, the one person who brought you into this world,
doesn’t have their back and didn’t love and support them and I don’t think that in
any way is reflected in these guidelines.
While defendant challenges the trial court’s reasoning in this regard, arguing that the
“generational impact” of defendant’s actions on T.S. and L.S.’s relationship with their mother is
“speculative,” we disagree with this assertion. The trial court’s findings were certainly objective
where they could be verified by reference to the record. Smith, 482 Mich. at 301. For example,
during her testimony at the sentencing hearing, T.S. described how defendant “is the one that
took away my biological mother, the one that I thought loved me unconditionally and would
stand by my side but instead she stands beside [defendant]. This alone has messed me up.”
When L.S. testified at the sentencing hearing she described the pain from the sexual abuse, and
that she refuses to talk to T.S. about it, and how she feels guilty for not protecting her older sister
from defendant. According to L.S., she and T.S. “have drifted apart a lot[,]” and where they
used to be best friends, they “barely talk anymore.” T.S. also characterized her relationship with
L.S. as “broken” following the sexual abuse.
Recalling defendant and her mother’s wedding anniversary, L.S. stated “[t]o me on their
anniversary it’s just a day that my own mother, the mother who gave birth to me, officially
decided that she wanted to be with [defendant] and not us when it came down to it.” According
to L.S., her mother told her that she would make L.S.’s life “a living hell” if defendant left her
following the disclosure of the sexual abuse. L.S. also testified that she and her mother “barely
talk anymore and I have a hard time with relationships with anyone and everyone.” In L.S.’s
words, “[y]es, [defendant] is the one who abused me and broke me but [my mother] broke my
heart and it’s all his fault.” Describing how she has cut and burned herself on purpose following
the abuse, as well as attempted suicide, L.S. also recalled how she was scared to tell anyone
about the abuse and that her own mother “turned her back on me and my sister and proved that
she never loved me; that she didn’t care about me or my safety.” During the sentencing hearing,
T.S.’s and L.S.’s father described how painful it was for each child to have to take the stand and
testify and see members of their family, “who they thought loved them[,]” look at the children,
shake their heads and express their disbelief of their testimony. According to their father, it
amounted to “re-victimizing [the children] again and again.”
OV 4 contemplates “psychological injury to a victim[,]” and the trial court scored 10
points for “[s]erious psychological injury requiring professional treatment [having] occurred to a
victim[,]” MCL 777.34(1)(a). OV 5 addresses “psychological injury to a member of a victim’s
family[,]” and provides for 15 points to be assessed where “[s]erious psychological injury
requiring professional treatment occurred to a victim’s family[.]” MCL 777.35(1); (1)(a). In this
case, the psychological devastation defendant’s actions caused to T.S.’s and L.S.’s family,
particularly their strained relationships with each other, their broken relationship with their
mother after she sided with defendant, and the long-lasting impact to both T.S. and L.S. as a
result, were factors not adequately contemplated by the guidelines. See People v Lawhorn, 320
Mich. App. 194, 210-211; ___ NW2d ___ (2017) (observing that factors not adequately accounted
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for in OV 4 may be the basis for an upward departure sentence); People v Michael Anderson,
298 Mich. App. 178, 189; 825 NW2d 678 (2012) (noting that “[a]lthough OV 4 accounts for
psychological injuries suffered by victims, it does not adequately consider the ways in which an
offense affects familial relationships, nor does it always account for the unique psychological
injuries suffered by individual victims[.]”)
Finally, in departing upward from the recommended guidelines range, the trial court
noted that defendant had violated the trust of T.S. and L.S.’s parents, as well as the children
themselves, by sexually abusing the children in their own home, within the family unit, while
posing as a father figure to them. We agree with the trial court that the sentencing guidelines do
not adequately address such circumstances. As the trial court noted during its bench ruling, in
People v Armstrong, 247 Mich. App. 423, 425; 636 NW2d 785 (2001), this Court observed that
the sentencing guidelines do not “take into account the violation of the [victims’] parents’ trust in
[the] defendant, the effect on the family occasioned by the victim’s loss of trust in all men,
including his own father, or the effect on the victim and his sister about having to learn about
sexual matters at such a young age.” Likewise, in this case, T.S. testified that “[w]hen it comes
to family members I push them away[.]” L.S. described how she cannot trust anyone anymore,
even the members of her family that she should trust the most. L.S. noted that she is now
paranoid after being sexually abused by defendant, and that “[e]very time I turn around I see
[defendant’s] face.” In L.S.’s own words:
I look at a guy walking down the street and he looks like [defendant]. I watch a
[television] show and a guy looks like [defendant]. Sometimes I have a fear of
going out in public because I feel I’ll see him, not [defendant] himself but his face
and that’s enough to scare me. I see [defendant] everywhere. All of the abuse has
made me paranoid about everything.
L.S. also stated that defendant started sexually abusing her when she was six and “just under 4
feet tall and less than 50 pounds[.]” According to L.S., defendant started the sexual abuse when
L.S. was a “powerless little girl” so that he could manipulate her when she was so young, and
would be “clueless” and think that the sexual abuse was normal. When testifying about the
impact of defendant’s actions on himself and the family, T.S. and L.S.’s father stated as follows:
You have taken from my girls . . . for the last time. They will never be the
kids that I remember them to be. As this whole ordeal has taken away their
innocence I’m not too sure I will get back the same loving little girls that I once
had, the one[s] that were truly happy from the inside out. Now it’s more of a
show for people around them. As a dad I have no way of making their pain, anger
and hatred and other feelings they have go away. These girls need and deserve a
sincere apology from your [sic] [defendant], and everyone else that stood by your
side, tha[n] maybe, just maybe, they can start to heal.
Additionally, while the trial court recognized that defendant, acting as a father to T.S. and L.S.,
repeatedly sexually abused them in what should have been the safety of their own home, the
guidelines do not take into account the father-daughter relationship that defendant and T.S. and
L.S. shared. Steanhouse, 313 Mich. App. at 46 (stating that “the relationship between the victim
and the aggressor[ ]” is a factor the guidelines do not take into account).
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B. PROPORTIONALITY OF DEFENDANT’S SENTENCES
As stated above, our guiding determination is whether defendant’s sentences meet the
principle of proportionality. Steanhouse, 500 Mich. at 460. Specifically, we must decide if the
“sentences imposed by the trial court [are] proportionate to the seriousness of the circumstances
surrounding the offense and the offender.” Id. On this record, we are satisfied that the trial court
“provide[d] adequate reasons for the extent of [defendant’s] departure sentence[s].” Id. at 476.
While the extent of the upward departures for both defendant’s CSC I and CSC II sentences is
significant, we agree with the trial court’s competent and thorough assessment that the
particularly disturbing facts of this case justify such departures. Over an approximately ten year
period, defendant abused his position of trust as a beloved father figure to both T.S. and L.S. by
repeatedly sexually abusing them in the sanctity of their own home. Particularly concerning is
how defendant would wait for opportune times when the children were vulnerable because their
mother was away at work. Defendant also used severe physical abuse to perpetuate the sexual
abuse in an effort to control both T.S. and L.S. Additionally, T.S. and L.S. were subject to
severe intimidation and coercion by defendant where they were not able to engage in social
activities, have close friendships or any of the hallmarks of healthy childhoods, all in an effort to
prevent them from disclosing the sexual abuse to others. As the trial court observed, this case is
particularly disturbing where as a result of defendant’s actions, the family unit has been
obliterated, as L.S. and T.S.’s mother sided with defendant, and her relationship with her
daughters has been broken as she has held her daughters out to be liars who have made up the
sexual abuse allegations. Defendant’s actions in violently sexually abusing T.S. and L.S.,
starting at the tender age of six, has left long-lasting psychological wounds and trauma that they
were both still grappling with at the time of sentencing, and likely will into the future. Both T.S.
and L.S. testified about their fractured family relationships, their loss of trust in people, including
trusted family members, and their difficulty in navigating the world after being sexually abused.
L.S. recounted cutting and burning herself intentionally and attempting suicide on at least one
occasion. On this record, we agree with the trial court that the upward departure sentences are
proportionate to (1) the seriousness of defendant’s violent sexual offenses against young children
and (2) defendant himself. Steanhouse, 500 Mich. at 460.
However, we note that remand is necessary to allow for the trial court to correct the
judgment of sentence to reflect that defendant’s sentences run concurrently, as opposed to
consecutively. Specifically, in our first opinion, we stated, in pertinent part, as follows:
The prosecutor concedes that the trial court erroneously imposed consecutive
sentences pursuant to MCL 750.520b(3). MCL 750.520b was amended in 2006
to allow for consecutive sentences in CSC cases such as this one. However,
defendant’s crimes were committed before the statute was amended. Thus, we
agree with the prosecutor that, on remand, the trial court should amend
defendant’s judgment of sentence to reflect concurrent sentences. [Zarn, unpub
op at 5 (footnote omitted).]
III. CONCLUSION
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We affirm defendant’s sentences, but remand for the ministerial purpose of allowing the
trial court to amend the judgment of sentence. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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