People of Michigan v. Deon Jefferson Johnson ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 22, 2015
Plaintiff-Appellee/Cross Appellant,
v No. 322179
Genesee Circuit Court
DEON JEFFERSON JOHNSON, LC No. 13-033536-FC
Defendant-Appellant/Cross
Appellee.
Before: FORT HOOD, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions of first-degree criminal sexual conduct
(CSC I), MCL 750.520b(1)(f), and two counts of resisting or obstructing a police officer, MCL
750.81d(1). The prosecution challenges defendant’s sentence on cross-appeal. We affirm
defendant’s convictions, but remand for resentencing consistent with this opinion.
Defendant was convicted of sexually assaulting his friend’s 61-year-old mother, whom he
called “Mom,” in his kitchen. His DNA was recovered during a forensic examination of the
victim. When confronted by investigating police officers, defendant ran and then refused to
comply with orders to put his arms behind his back after he was captured. While in custody,
defendant denied taking the victim to his house and denied ever having sex with her. At trial,
defendant testified that sexual intercourse was consensual.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that he received ineffective assistance of counsel because his
attorney failed to seek suppression of defendant’s alleged statement to police made after his
arrest and failed to present the testimony of certain witnesses which would have provided a
substantial defense. We disagree. Our review is limited to errors apparent on the record because
a Ginther1 hearing was not held. See People v Riley, 468 Mich. 135, 139; 659 NW2d 611 (2003).
1
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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To succeed on a claim of ineffective assistance of counsel, a defendant must show that
his counsel’s performance fell below an objective standard of reasonableness and there is a
reasonable probability that, but for counsel’s error, the result would have been different. People
v Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012). “Effective assistance of counsel is
presumed, and the defendant bears a heavy burden of proving otherwise.” People v Seals, 285
Mich. App. 1, 17; 776 NW2d 314 (2009) (internal quotation marks and citation omitted).
Defendant claims that the alleged statement he made to police after his arrest was made
without the benefit of Miranda2 warnings and his attorney should have timely sought its
suppression. Although the officer involved testified that he advised defendant of his rights and
defendant signed a form waiving his Miranda rights, defendant asserts that it was not his
signature on the form. It appears from the record that defense counsel moved for the
appointment of a handwriting expert to review the signature on the rights form, but the motion
was denied as untimely because it was made on the first day of trial. It also appears that this
issue was not pursued sooner because defendant only advised his counsel that he did not sign the
form about a week before trial. That is, defense counsel informed the trial court on the record
that defendant’s claim was brought to his attention in the previous week. Under these
circumstances, defendant has not shown that his counsel was ineffective for failing to timely
seek suppression of his statement to police.
Defendant also argues that he was denied a substantial defense because his counsel failed
to call one witness at trial and failed to elicit certain testimony from two other witnesses who
testified at trial. In particular, defendant claims that his 18-year-old daughter should have been
called and would have testified that she saw the victim with defendant at his house on the day of
the alleged crime and the victim did not indicate that she was raped or appear to be in distress.
Further, defendant claims that his brother, who did testify at trial, recently remembered seeing
the victim with defendant at defendant’s house on the day of the alleged crime and she did not
indicate that she was raped and did not appear to be in distress. And defendant claims that his
mother, who also testified at trial, would add to her testimony that, when she saw the victim and
defendant at her house on the day of the alleged crime, the victim referenced drug use and did
not indicate that she was raped or appear to be in distress.
A defendant is entitled to have his counsel prepare, investigate, and present all substantial
defenses. People v Hubbard, 156 Mich. App. 712, 714; 402 NW2d 79 (1986). “Decisions
regarding what evidence to present and whether to call or question witnesses are presumed to be
matters of trial strategy, and this Court will not substitute its judgment for that of counsel
regarding matters of trial strategy.” People v Davis, 250 Mich. App. 357, 368; 649 NW2d 94
(2002) (citations omitted). “[T]he failure to call witnesses only constitutes ineffective assistance
of counsel if it deprives the defendant of a substantial defense.” People v Dixon, 263 Mich. App.
393, 398; 688 NW2d 308 (2004) (citation omitted). That is, if a defendant was able to assert his
offered theory of defense at trial, even if a particular witness was not called to testify in support
2
Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
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of that theory because of counsel’s action, the defendant cannot be deprived of a substantial
defense. Id.
Here, defendant has failed to rebut the presumption that his counsel chose not to call
defendant’s daughter as a witness as a matter of trial strategy. See Davis, 250 Mich. App. at 368.
And he has not established that the failure to call her deprived him of a substantial defense. See
Dixon, 263 Mich. App. at 398. Further, that defendant’s brother and mother suddenly and
belatedly “remembered” certain information after defendant’s trial was completed does not tend
to establish that defense counsel’s performance fell below an objective standard or
reasonableness. See Trakhtenberg, 493 Mich. at 51. Accordingly, defendant’s ineffective
assistance of counsel claim is without merit.
II. SUFFICIENCY OF THE EVIDENCE
Next, defendant argues that the evidence was insufficient to sustain his two convictions
of resisting or obstructing a police officer. We disagree. We review de novo challenges to the
sufficiency of the evidence, considering the evidence in a light most favorable to the prosecution
to determine “whether a rational trier of fact could have found that the essential elements of the
crime were proved beyond reasonable doubt.” People v Ericksen, 288 Mich. App. 192, 196; 793
NW2d 120 (2010).
Due process requires that the prosecution in a criminal case introduce evidence sufficient
to justify a trier of fact in concluding that the defendant is guilty beyond a reasonable doubt.
People v Johnson, 460 Mich. 720, 723; 597 NW2d 73 (1999) (citations omitted). “The question
is whether the evidence presented at trial, together with all reasonable inferences arising
therefrom, was sufficient to allow a rational trier of fact to find each element of the crime proven
beyond a reasonable doubt.” People v DeLisle, 202 Mich. App. 658, 660; 509 NW2d 885 (1993).
In reviewing the sufficiency of the evidence, this Court must not interfere with the role of the
trier of fact in determining “ ‘the weight of the evidence or the credibility of witnesses.’ ”
People v Eisen, 296 Mich. App. 326, 331; 820 NW2d 229 (2012), quoting People v Kanaan, 278
Mich. App. 594, 619; 751 NW2d 57 (2008). Furthermore, “[i]t is for the trier of fact, not the
appellate court, to determine what inferences may be fairly drawn from the evidence and to
determine the weight to be accorded those inferences.” People v Hardiman, 466 Mich. 417, 428;
646 NW2d 158 (2002). “ ‘Circumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime.’ ” People v Carines, 460
Mich. 750, 757; 597 NW2d 130 (1999), quoting People v Allen, 201 Mich. App. 98, 100; 505
NW2d 869 (1993).
Defendant was charged with two counts of resisting or obstructing a police officer. The
first count involved defendant running from police and the second count involved defendant’s
failure to comply with orders to put his hands behind his back once he was on the ground. To
establish the offense of resisting or obstructing a police officer pursuant to MCL 750.81d(1), the
prosecutor must demonstrate “ ‘(1) the defendant assaulted, battered, wounded, resisted,
obstructed, opposed, or endangered a police officer, and (2) the defendant knew or had reason to
know that the person that the defendant assaulted, battered, wounded, resisted, obstructed,
opposed, or endangered was a police officer performing his or her duties.’ ” People v Quinn,
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305 Mich. App. 484, 491; 853 NW2d 383 (2014), quoting People v Corr, 287 Mich. App. 499,
503; 788 NW2d 860 (2010). Only the first element is at issue.
Deputy Mohamad Sanchez testified that he approached defendant, “identified [himself]
as a sheriff deputy,” and “instructed him to get on the ground.” He testified that defendant then
began to run away and jumped over a fence. Prearrest flight that actively interferes with an
investigation is sufficient to sustain a conviction for resisting or obstructing a police officer.
People v Pohl, 207 Mich. App. 332, 333; 523 NW2d 634 (1994).
Deputy Sanchez also testified that, once defendant was on the ground, his left arm was
under his body. According to Deputy William Brandon, both of defendant’s hands were under
his body. Deputy Sanchez testified that he ordered defendant to put his hands behind his back,
but defendant failed to comply. Deputy Brandon testified that he and Sanchez eventually had to
wrest defendant’s arms from under his body. Although it is unclear how long it took, the
officers’ testimony evidences a struggle to get defendant to comply with orders to put his hand or
hands behind his back so that he could be secured. Accordingly, defendant’s convictions of two
counts of resisting or obstructing a police officer were supported by sufficient evidence and
defendant’s challenge is without merit.
III. SENTENCING GUIDELINES
Next, defendant argues that offense variables (OVs) 3, 10, and 13 were improperly
scored. We disagree.
“The proper interpretation and application of the sentencing guidelines is a question of
law that this Court reviews de novo.” People v Portellos, 298 Mich. App. 431, 446; 827 NW2d
725 (2012). “[T]he circuit court’s factual determinations are reviewed for clear error and must
be supported by a preponderance of the evidence.” People v Hardy, 494 Mich. 430, 438; 835
NW2d 340 (2013).
A. OV 3
Defendant argues that the victim did not suffer bodily injury that required medical
treatment as required under MCL 777.33(1)(d). And even if she suffered bodily injury, there
was no evidence of medical treatment; thus, at most OV 3 could have been scored at five points.
However, because bodily injury is an element of CSC 1, and MCL 777.33(2)(d) prohibits the
scoring of five points if bodily injury is an element of the sentencing offense, OV 3 should have
been assessed at zero points. We disagree.
OV 3 concerns physical injury to a victim. MCL 777.33(1). Ten points must be assessed
if “[b]odily injury requiring medical treatment occurred to a victim.” MCL 777.33(1)(d).
“ ‘[R]equiring medical treatment’ refers to the necessity for treatment and not the victim’s
success in obtaining treatment.” MCL 777.33(3). Where “[b]odily injury not requiring medical
treatment occurred to a victim,” five points must be assessed. MCL 777.33(1)(e). However, five
points cannot be assessed “if bodily injury is an element of the sentencing offense.” MCL
777.33(2)(d). “ ‘[B]odily injury’ encompasses anything that the victim would, under the
circumstances, perceive as some unwanted physically damaging consequence.” People v
McDonald, 293 Mich. App. 292, 298; 811 NW2d 507 (2011).
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In this case, defendant was properly assessed 10 points under OV 3. The victim, a 61-
year old woman, testified that she was violently raped, suffered excruciating pain, and was
bleeding profusely from her vaginal area. She testified that her “pants were full of blood.” As a
consequence, she sought emergency medical treatment from a hospital. A forensic examination
was performed and determined that the victim suffered 1.5 centimeter tears on both the left and
right inside walls of her vaginal canal, which were still oozing several hours after the forcible
penetration. The emergency room doctor testified that the tears were “definite signs of trauma.
Of blunt trauma to the vaginal area.” He further testified that the vaginal tears would cause
blood loss and “would be very painful.” Thus, he testified, the victim may have been given
medications for pain and was also prescribed medications to prevent sexually transmitted
diseases. It is clear from this evidence that the victim suffered bodily injury requiring medical
treatment as a consequence of the sexual assault. The fact that surgery or sutures were not
required to stop the victim’s vaginal bleeding does not lead to the conclusion that medical
treatment was not required or provided. Accordingly, defendant’s challenge to the assessment of
10 points for OV 3 is without merit.
B. OV 10
Next, defendant argues that OV 10 was improperly scored at 10 points because he did not
exploit any particular vulnerability of the victim. We disagree.
OV 10 concerns exploitation of a vulnerable victim. MCL 777.40(1). Points should be
assessed under this OV “only when it is readily apparent that a victim was ‘vulnerable,’ i.e., was
susceptible to injury, physical restraint, persuasion, or temptation.” People v Cannon, 481 Mich.
152, 158; 749 NW2d 257 (2008), citing MCL 777.40(3)(c). Ten points must be assessed if
“[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).
Five points must be assessed if “[t]he offender exploited a victim by his or her difference in size
or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs,
asleep, or unconscious.” MCL 777.40(1)(c).
However, even if we agreed with defendant that ten points should not have been assessed
for OV 10, defendant concedes that the assessment of five points was justified because of the
difference in his size or strength. Thus, defendant’s offense variable score would be 60 rather
than 65, which is still OV level IV. MCL 777.62. Accordingly, defendant’s minimum sentence
range would not change and resentencing would not be required.
C. OV 13
Defendant also argues that OV 13 was improperly scored at 25 points because OV 12
should have been scored, not OV 13. We disagree.
At sentencing, the prosecution successfully argued that OV 13 should be scored at 25
points because defendant committed three crimes against a person in this case. That is,
defendant was convicted of CSC 1 and two counts of resisting or obstructing a police officer—
both of which are crimes against a person. MCL 777.16d; 777.16y. OV 13 concerns a
continuing pattern of criminal behavior. MCL 777.43(1). This variable is to be scored at 25
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points if “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more
crimes against a person.” MCL 777.43(1)(c). OV 12, on the other hand, concerns
contemporaneous felonious criminal acts, MCL 777.42(1), which does not include the sentencing
offense. People v Light, 290 Mich. App. 717, 722-723; 803 NW2d 720 (2010). A criminal act is
considered “contemporaneous” for purposes of OV 12 only if it “has not and will not result in a
separate conviction.” MCL 777.42(2)(a)(ii). In this case, because defendant’s two acts of
resisting or obstructing a police officer resulted in separate convictions, they could not be
assessed under OV 12. Consequently, the assessment of 25 points under OV 13 was proper.
In summary, defendant is not entitled to resentencing because of a scoring error.
E. RESISTING AND OBSTRUCTING CONVICTIONS
Defendant also argues that irrespective of any errors in the assessment of the OVs, the
trial court departed upward from the sentencing guidelines on his resisting and obstructing
convictions. His minimum guideline range for both convictions was 5 to 46 months. But the
trial court sentenced him to a minimum of 72 months’ imprisonment. The trial court did not
state any reasons for departure. We vacate defendant’s sentences for the two resisting and
obstructing convictions because the trial court did not explain its reasoning for exceeding the
guidelines and remand for resentencing on these two convictions.
IV. CROSS-APPEAL
The prosecution argues on cross-appeal that, pursuant to MCL 769.12(1)(a), defendant
should have been sentenced to a mandatory minimum of 25 years’ imprisonment for his CSC 1
conviction because he had previously been convicted of three felonies. We agree.
MCL 769.12 provides:
(1) If a person has been convicted of any combination of 3 or more
felonies . . . and that person commits a subsequent felony within this state, the
person shall be punished upon conviction of the subsequent felony and sentencing
under [MCL 769.13] as follows:
(a) If the subsequent felony is a serious crime or a conspiracy to commit a
serious crime, and 1 or more of the prior felony convictions are listed prior
felonies, the court shall sentence the person to imprisonment for not less than 25
years. Not more than 1 conviction arising out of the same transaction shall be
considered a prior felony conviction for the purposes of this subsection only.
CSC I is defined as a “serious crime” under the statute. MCL 769.12(6)(c). Further, as
defendant concedes, he has at least one prior conviction for a “listed offense.” MCL
769.12(6)(a). Therefore, he should have been sentenced to a minimum of 25 years’
imprisonment.
However, defendant contends that he did not receive adequate notice of the 25-year
mandatory minimum. MCL 769.13 provides for notice:
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(1) In a criminal action, the prosecuting attorney may seek to enhance the
sentence of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL
769.12], by filing a written notice of his or her intent to do so within 21 days after
the defendant’s arraignment on the information charging the underlying offense
or, if arraignment is waived, within 21 days after the filing of the information
charging the underlying offense.
(2) A notice of intent to seek an enhanced sentence filed under subsection
(1) shall list the prior conviction or convictions that will or may be relied upon for
purposes of sentence enhancement. The notice shall be filed with the court and
served upon the defendant or his or her attorney within the time provided in
subsection (1). The notice may be personally served upon the defendant or his or
her attorney at the arraignment on the information charging the underlying
offense, or may be served in the manner provided by law or court rule for service
of written pleadings. The prosecuting attorney shall file a written proof of service
with the clerk of the court.
In this case, the prosecutor filed a notice of intent to seek an enhanced sentence on the same day
the information was filed. The notice states in pertinent part as follows:
For sentence computation as an habitual offender which enhances the
maximum sentence, defendant is deemed to be fourth offender under MCL
769.12, the maximum sentence would be life if primary offense has penalty of 5
years or more; 15 years or less if primary offense has penalty under 5 years.
Defendant argues that because the notice does not specifically say that he would be
subject to a 25-year mandatory minimum sentence if convicted, the notice was deficient.
However, MCL 769.13(2) only states that such a notice must provide “the prior conviction or
convictions that will or may be relied upon for purposes of sentence enhancement.” It does not
state that a mandatory minimum must be included.
Defendant also calls attention to MCR 6.112(D), which provides that an “information
must set forth the substance of the accusation against the defendant and the name, statutory
citation, and penalty of the offense allegedly committed.” (Emphasis added.) In this case, the
information stated that CSC I was punishable by “Life or any term of years.” This Court has
held that an information complies with the court rule by including only the maximum penalty.
People v St John, 230 Mich. App. 644, 648; 585 NW2d 849 (1998).
Further, defendant fails to develop his due process argument. “ ‘It is not enough for an
appellant in his brief simply to . . . assert an error and then leave it up to this Court to . . . unravel
and elaborate for him his arguments, and then search for authority either to sustain or reject his
position.’ ” Mettler Walloon, LLC v Melrose Twp, 281 Mich. App. 184, 220; 761 NW2d 293
(2008), quoting Mitcham v Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959) (alterations in
Mettler Walloon, LLC).
And defendant’s reliance on Alleyne v United States, 570 US ___; 133 S. Ct. 2151; 186 L
Ed 2d 314 (2013), is unavailing. Alleyne holds that under the Sixth Amendment, “[a]ny fact that,
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by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt.” Id. at 2155. Defendant argues that a mandatory minimum
sentence of 25 years would violate the rule from Alleyne because the jury did not find beyond a
reasonable doubt that he had the predicate convictions. However, as defendant recognizes, the
Court in Alleyne noted that it had previously held that “the fact of a prior conviction” was an
exception to the general rule that every fact must be found by a jury, Almendarez-Torres v
United States, 523 U.S. 224; 118 S. Ct. 1219; 140 L. Ed. 2d 350 (1998), and declined to address
whether its decision affected that holding because the parties had not disputed the “vitality” of
that decision. Alleyne, 133 S. Ct. at 2160 n 1. Our Supreme Court has recently found the rule
from Almendarez-Torrez continues to be good law. People v Lockridge, ___ Mich ____; ___
NW2d ___ (2015) (Docket No. 149073); slip op at 8 n 12.
In summary, the trial court plainly erred in failing to sentence defendant to a mandatory
minimum of 25 years in prison. We vacate defendant’s sentence for the CSC 1 conviction and
remand for resentencing in accordance with MCL 769.12(1)(a).
V. STANDARD 4 BRIEF
Defendant next raises three issues in a Standard 4 brief. We address each in turn.
A. EXPERT WITNESS TESTIMONY
Defendant argues that he was denied a fair trial when the nurse who examined the
victim at the hospital was allowed to present expert testimony even though she was not qualified
as an expert witness. We disagree.
Although defendant generally objected to the nurse being qualified as an expert witness,
he did not object to any portion of the nurse’s testimony on the ground that it constituted expert
testimony by a witness who had not been qualified as an expert. Therefore, this issue is
unpreserved. People v Aldrich, 246 Mich. App. 101, 113; 631 NW2d 67 (2001). We review for
plain error unpreserved claims of evidentiary error. People v Benton, 294 Mich. App. 191, 202;
817 NW2d 599 (2011).
MRE 701, the rule regarding opinion testimony by lay witnesses, provides as follows:
If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.
Additionally, lay opinion testimony cannot be based on specialized knowledge or experience that
a layperson would not possess. People v Petri, 279 Mich. App. 407, 416; 760 NW2d 882 (2008);
People v McLaughlin, 258 Mich. App. 635, 657-658; 672 NW2d 860 (2003). Also relevant is
MRE 702, the rule regarding expert testimony, which provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise if (1) the testimony is based
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upon sufficient facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and methods reliably
to the facts of the case.
In this case, the nurse generally recounted her experience and training as a sexual assault
nurse examiner and testified regarding the examination of the victim in this case. At the
conclusion of the prosecutor’s direct examination, the nurse was asked whether the injuries to the
victim’s genitals were “in any way inconsistent with what [the victim] had reported to” her and
the nurse answered, “No.” On redirect examination, the nurse also testified that vaginal tearing
was uncommon in sexual assault cases.
Most of the nurse’s testimony was properly admissible under MRE 701. See
McLaughlin, 258 Mich. App. at 645 n 3, 657-658. Under McLaughlin, the nurse’s observations of
the victim’s physical and emotional state and her narrative of her examination did not require
resort to specialized knowledge.
However, parts of the nurse’s testimony veered into expert opinion and were clearly not
within the scope of MRE 701. In McLaughlin, the nurse opined that the victim’s lack of vaginal
injuries was not unusual for a woman who had delivered two children. Id. at 645 n 3. The Court
found that this testimony “might be construed as specialized information not commonly known.”
Id. at 658. Nonetheless, the Court concluded that any error in that case was harmless. In the
present case, the nurse’s testimony that the victim’s vaginal injuries were not inconsistent with
her allegation of sexual assault and that vaginal tearing was uncommon in sexual assault cases
was based on her specialized knowledge and training; such knowledge is not possessed by the
average layperson. Therefore, that testimony was not admissible under MRE 701.
But defendant has not shown that any error affected his substantial rights, or, stated
differently, that it was outcome determinative. See Vaughn, 491 Mich. at 665-666. The nurse’s
opinions regarding the cause of the victim’s injuries and the commonality of vaginal tearing were
largely duplicative of expert testimony from the doctor who examined the victim, who also
testified that vaginal tearing is uncommon in sexual assault cases and that it is indicative of
nonconsensual sex. Further, the evidence of defendant’s guilt was convincing. In addition to the
victim’s testimony, the forensic investigation recovered DNA from the victim that matched
defendant’s DNA. Witnesses described the victim after the assault as “very shaken,” “anxious,”
“very disheveled,” and “distraught,” which would indicate that she had suffered trauma. This
evidence strongly suggested that the intercourse had been nonconsensual. Accordingly,
defendant has not established that he is entitled to appellate relief.
B. FALSE TESTIMONY
Defendant next argues that he was denied a fair trial because the prosecutor knowingly
presented false testimony. We disagree. Because this issue was not raised below, our review is
for plain error affecting substantial rights. See Vaughn, 491 Mich. at 654.
“It is inconsistent with due process when the prosecution allows false testimony from a
state’s witness to stand uncorrected.” People v Smith, ___ Mich ___, ___; ___ NW2d ___
(2015) (Docket No. 148305); slip op at 7. Prosecutors are prohibited from knowingly using false
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testimony to obtain a conviction. Id. Further, prosecutors must correct false testimony. Id. In
this case, defendant has not shown that any of the testimony at issue was false, let alone that the
prosecutor knowingly introduced any such false testimony.
Defendant calls attention to what he characterizes as inconsistencies in the evidence.
Defendant has undeniably identified discrepancies in the evidence. Such discrepancies are
insufficient to establish that a prosecutor has knowingly presented false testimony. People v
Parker, 230 Mich. App. 677, 690; 584 NW2d 753 (1998). Moreover, the prosecutor did not try to
conceal the inconsistencies. Id.
Defendant also argues that the prosecutor exaggerated the gruesomeness of the sexual
assault by unfairly emphasizing blood evidence to suggest that the victim had bled heavily.
After reviewing the record it is clear that he prosecutor simply presented the evidence regarding
fluids and blood without sensationalizing it.
Defendant also argues that the prosecutor mischaracterized the injuries to the victim’s
vaginal canal. Defendant draws attention to the preliminary examination testimony of the nurse
who examined the victim. The nurse described the injuries to the victim’s vaginal canal as a
“scrape” rather than a “cut.” The nurse and a doctor who had examined the victim denied that
blood was coming out of the victim’s vagina when they examined her. Defendant takes issue
with the prosecutor’s questions at trial in which she called the injuries “tears.” He adds that the
doctor denied that the injuries would have caused significant blood loss. Contrary to defendant’s
argument, the prosecutor did not mischaracterize the injuries to the victim’s vaginal canal.
Although the nurse referred to them as scrapes during the preliminary examination, she also
referred to them as lacerations and agreed with the prosecutor’s characterization of them as
abrasions. And at trial, it was the nurse, not the prosecutor, who first referred to the injuries as
tears. Accordingly, defendant’s claim that he was denied a fair trial because the prosecutor
knowingly presented false testimony is wholly without merit.
C. SENTENCING GUIDELINES
Defendant next raises several issues involving the sentencing guidelines. The only issue
that was properly raised below concerns prior record variable (PRV) 2. The remainder of
defendant’s issues were not raised at sentencing, in a proper motion for resentencing, or in a
proper motion to remand. Unpreserved sentencing errors that result in a sentence outside the
appropriate guidelines range are reviewed for plain error. People v Kimble, 470 Mich. 305, 312;
684 NW2d 669 (2004).
1. PRV 2
PRV 2 concerns prior low severity felony convictions. MCL 777.52(1). Twenty points
must be assessed for this variable if the defendant has three prior low severity felony convictions.
MCL 777.52(1)(b). In this case, defendant was assessed 20 points for PRV 2, but he argues that
he did not, in fact, have three low severity felony convictions. Specifically, he takes issue with
proceedings regarding charges of possession with intent to deliver cocaine from 1998.
Defendant is correct that if these charges were dismissed under MCL 333.7411(1), they should
not have been considered in the assessment of PRV 2. MCL 777.50(4)(a); see also People v
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James, 267 Mich. App. 675, 679-680; 705 NW2d 724 (2005). But if a defendant whose sentence
was deferred under MCL 333.7411 violates a term or condition of probation, “the court may
enter an adjudication of guilt and proceed as otherwise provided.” MCL 333.7411(1). Here, this
issue was raised at sentencing. The prosecution indicated that this matter was reviewed and
defendant “plead under 7411 but that was revoked because he continually violated probation.”
However, the “Notes” section of the PSIR refers to a “discharge” on “04/23/01.” Because the
record is ambiguous, further articulation on whether PRV 2 was correctly scored is required on
remand.
2. PRV 3
Prior record variable 3 concerns “prior high severity juvenile adjudications.” MCL
777.53(1). A “prior high severity juvenile adjudication” includes “[a] crime listed in offense
class M2, A, B, C, or D.” MCL 777.53(2)(a). Ten points must be assessed if the defendant has
one prior high severity juvenile adjudication. MCL 777.53(1)(c).
In this case, the PSIR shows that in 1994, defendant was charged with armed robbery,
pleaded guilty to larceny from a person, was sentenced to “Formal Probation,” and was
discharged later that year. Larceny from a person is a class D offense. MCL 777.16r. However,
defendant contends that 10 points should not have been assessed for PRV 3 because he received
a “deferred” sentence. But the PSIR, which is presumed accurate, People v Callon, 256 Mich
App 312, 334; 662 NW2d 501 (2003), makes no mention of a “deferred” sentence, and defendant
does not provide any evidence supporting this contention. Under these circumstances, defendant
is not entitled to appellate relief.
3. OV 4
OV 4 concerns “psychological injury to a victim.” MCL 777.34(1). Ten points must be
assessed if “[s]erious psychological injury requiring professional treatment occurred to a victim.”
MCL 777.34(1)(a). However, “the fact that treatment has not been sought is not conclusive.”
MCL 777.34(2).
In this case, defendant contends that the trial court did not find that any psychological
injuries suffered by the victim emanated from the sentencing offense. He calls attention to
evidence indicating that the victim had been taking Xanax and Vicodin for psychological issues
before the alleged assault in this case. The trial court did not specifically articulate its reasoning
behind the assessment of OV 4, presumably because defendant did not object to it at sentencing.
Nonetheless, the PSIR indicates that the victim reported “to have suffered from anxiety attacks,
afraid to trust anyone and cannot go for walks anymore as she is scared.” Further, the victim
testified at trial that she was having nightmares every night following the assault and that she
was afraid to walk outside by herself, which had not been the case before the assault. Under
these circumstances, the assessment of OV 4 was not plainly erroneous.
4. OV 19
OV 19 concerns interference with the administration of justice. MCL 777.49. Pursuant
to MCL 777.49(c), trial courts must assess 10 points if “[t]he offender otherwise interfered with
or attempted to interfere with the administration of justice.”
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In this case, OV 19 was properly assessed at 10 points for defendant’s CSC conviction
given his convictions for resisting or obstructing a police officer. As stated, those convictions
were premised on defendant’s acts of running away from police and refusing to put his hands
behind his back. This Court has held that “fleeing from police contrary to an order to freeze”
constitutes interference or attempted interference with the administration of justice. People v
Hershey, 303 Mich. App. 330, 344; 844 NW2d 127 (2013). Thus, defendant’s convictions for
resisting or obstructing, which arose out of defendant’s conduct while police were investigating
the sexual assault, made the assessment of OV 19 proper.
In summary, defendant’s convictions are affirmed but this matter is remanded for (1)
resentencing of the CSC 1 conviction in accordance with MCL 769.12(1)(a); (2) resentencing of
the resisting and obstructing convictions; and (3) reconsideration of the scoring of PRV 2.
We affirm defendant’s convictions, but remand for resentencing consistent with this
opinion. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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