People of Michigan v. Nicholas Lee Moench ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 28, 2020
Plaintiff-Appellee,
v No. 347086
Ottawa Circuit Court
NICHOLAS LEE MOENCH, LC No. 17-041615-FH
Defendant-Appellant.
Before: TUKEL, P.J., and MARKEY and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of third-degree
criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) and (c). The trial court sentenced
defendant to 60 to 180 months in prison for each conviction, to be served concurrently. We affirm.
This appeal is being decided without oral argument pursuant to MCR 7.214(E)(1).
Defendant was convicted of sexually assaulting his estranged wife. At the time of the
assaults, defendant and the victim were married, but living separately. The prosecution presented
evidence that defendant lured the victim into going out with him under the pretext that he was
introducing her to a friend. Defendant and the victim went to a bar where they both had several
drinks. The victim, however, felt more intoxicated than normal for the amount of alcohol that she
consumed. The victim testified that defendant sexually penetrated her several times that night, she
did not consent, and she was physically unable to say no due to the alcohol. Several days later,
after reporting the incident to the police, the victim made a call to defendant, which the police
recorded. During that call, defendant admitted to several of the acts and to being aware that the
victim had been physically helpless. He said that he had been trying to get the victim pregnant.
Defendant testified in his own defense at trial and claimed that the victim consented to all of the
acts, but had expressed regret the next morning. The jury found defendant guilty of two counts of
CSC-III (finger to genital opening and penis to mouth), but not guilty of a third count of CSC-III
(penis to genital opening).
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I. AMENDMENT OF THE INFORMATION
First, defendant argues that he was denied due process and a fair trial by the late addition
of charges that had previously been dismissed and that were based on perjured testimony. We
disagree.
“For an issue to be preserved for appellate review, it must be raised, addressed, and decided
by the lower court.” People v Danto, 294 Mich. App. 596, 605; 822 NW2d 600 (2011) (quotation
marks and citation omitted). Defendant objected to the amendment of the information at trial.
Therefore, this issue is preserved. Defendant, however, did not argue that the amendment was
based on perjured testimony. Therefore, this argument is unpreserved.
“The interpretation of either a statute or a court rule is a question of law subject to review
de novo. A trial court’s decision to grant or deny a motion to amend an information is reviewed
for an abuse of discretion.” People v McGee, 258 Mich. App. 683, 686-687; 672 NW2d 191 (2003)
(citations omitted). “An abuse of discretion occurs when the trial court chooses an outcome falling
outside the range of principled outcomes.” People v Brown, 326 Mich. App. 185, 192; 926 NW2d
879 (2019) (quotation marks and citation omitted). “A trial court also necessarily abuses its
discretion when it makes an error of law.” People v Al-Shara, 311 Mich. App. 560, 566; 876 NW2d
826 (2015).
Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich. 108, 116; 869
NW2d 829 (2015).
To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings. It is the defendant rather than the Government who bears the burden
of persuasion with respect to prejudice. Finally, once a defendant satisfies these
three requirements, an appellate court must exercise its discretion in deciding
whether to reverse. Reversal is warranted only when the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error
seriously affected the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence. [People v Carines, 460 Mich. 750, 763-
764; 597 NW2d 130 (1999) (quotation marks, citations, and brackets omitted).]
“A ‘clear or obvious’ error under the second prong is one that is not ‘subject to reasonable
dispute.’ ” People v Randolph, 502 Mich. 1, 10; 917 NW2d 249 (2018).
A. BACKGROUND
At a hearing on September 14, 2018, the trial court granted defendant’s motion to dismiss
Counts 1, 2, and 3 of the information, which alleged CSC-III based on the theory that the victim
was physically helpless. The trial court found that the evidence at the preliminary examination
did not support these counts because the victim testified that she was able to communicate “no” to
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defendant. Counts 4, 5, and 6, which were based on the theory that force or coercion was used,
remained for trial.
At trial, however, the victim testified that she had tried to say “no,” but it was difficult to
get the word out. This testimony differed from her testimony at the preliminary examination at
which she testified that she actually said “no” before each sexual act. Following the victim’s
testimony, on the second day of trial, the prosecution moved to amend the information to allege,
in the alternative, CSC-III based on the theory that the victim was physically helpless. Defendant
objected to the amendment, arguing that he was only prepared to defend against the charges based
on force or coercion. The trial court granted the motion to amend on the basis of the victim’s
testimony at trial that she was unable to say the word “no.” The trial court ruled that adding the
alternative counts did not interfere with defendant’s defense of consent. The trial court added that
defendant was not prejudiced, amendment was appropriate, and the jury would decide the facts of
the case.
B. ANALYSIS
“Both MCL 767.76 and MCR 6.112(H) authorize a trial court to amend an information
before, during, or after trial.” McGee, 258 Mich. App. at 686. MCR 6.112(H) provides, in relevant
part:
The court before, during, or after trial may permit the prosecutor to amend
the information or the notice of intent to seek enhanced sentence unless the
proposed amendment would unfairly surprise or prejudice the defendant.
Defendant argues that he was prejudiced by the amendment because he had to formulate a
new defense near the end of trial. Defendant’s defense at trial was that the victim consented to the
sexual acts. He testified that the victim had agreed to the sexual acts and was not intoxicated,
asleep, or unconscious. Defendant is correct that consent is not a defense to a charge of CSC-III
based on a theory that the victim was physically helpless. See People v Bayer, 279 Mich. App. 49,
67; 756 NW2d 242 (2008), vacated in part on other grounds 482 Mich. 1000 (2008), quoting People
v Khan, 80 Mich. App. 605, 619 n 5; 264 NW2d 360 (1978). Nonetheless, evidence of consent is
relevant to whether a victim was physically helpless.
In this case, defendant’s testimony that the victim consented was relevant to the issue
whether the victim was physically helpless. If the jury believed defendant’s testimony that the
victim consented, then it necessarily would have determined that the victim was awake and not
physically helpless. Moreover, defendant testified at trial that the victim was awake and not
unconscious, which served to negate the theory that the victim was physically helpless. Contrary
to defendant’s assertion, the trial court issued its ruling permitting the amendment before defendant
presented his case. Regardless, defendant fails to explain what alternative defense or evidence he
was unable to present because of the late addition of the physically helpless theory. Given
defendant’s failure to identify any unfair surprise or prejudice, the trial court did not abuse its
discretion by granting the motion to amend the information during trial.
Defendant additionally argues that the trial court erred by allowing the prosecution to
amend the information on the basis of perjured testimony. According to defendant, the prosecution
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was aware that the victim’s trial testimony that she had been unconscious was false because she
had previously testified at the preliminary examination that she said “no” to defendant before each
sexual act. Although the victim’s testimony at trial differed from her testimony at the preliminary
examination, defendant fails to establish that her testimony at trial was willfully false. See People
v Lively, 470 Mich. 248, 253; 680 NW2d 878 (2004) (“Our Legislature has . . . defined perjury as
a willfully false statement regarding any matter or thing, if an oath is authorized or required.”).
The victim originally testified that she said no to each act; at trial, however, she testified that she
had tried to say no, but the word was difficult to get out. The trial court acknowledged that the
jury could use the victim’s prior testimony for impeachment and could find that she was not
credible because of her inconsistencies. However, the mere inconsistency in the victim’s
testimony does not establish that her trial testimony was perjured. Thus, the trial court did not err
by allowing the alternative theories, both of which were supported by the evidence, to be presented
to the jury.
II. PROSECUTORIAL VINDICTIVENESS
Next, defendant argues that he was denied due process and a fair trial by the prosecution’s
vindictiveness. We disagree. A claim of prosecutorial vindictiveness presents a question of due
process, which is reviewed de novo. See People v Perry, 317 Mich. App. 589, 595; 895 NW2d 216
(2016); People v Steele, 283 Mich. App. 472, 478; 769 NW2d 256 (2009).
A. BACKGROUND
Defendant initially waived a preliminary examination and was bound over to the circuit
court on four counts of CSC-III. In March 2018, the information was amended to allege three
counts of CSC-III—finger to vaginal opening based on incapacitation (Count 1), penis to vaginal
opening based on incapacitation (Count 2), and penis to anal opening based on force or coercion
(Count 3).1 On May 16, 2018, the parties entered a stipulation and order remanding the case to
the district court for the addition of charges. Following a preliminary examination on June 26,
2018, the district court bound defendant over to the circuit court on six counts of CSC-III—finger
to vaginal opening based on incapacitation (Count 1), penis to vaginal opening based on
incapacitation (Count 2), penis to anal opening based on incapacitation (Count 3), finger to vaginal
opening based on force or coercion (Count 4), penis to vaginal opening based on force or coercion
(Count 5), and penis to mouth based on force or coercion (Count 6). On September 10, 2018, the
information was amended again to change Count 3 to penis to mouth based on incapacitation. As
discussed earlier, the three counts of CSC-III based on incapacitation or physical helplessness were
dismissed before trial, but were reinstated during trial.
1
The original November 2017 information alleged four counts: penis to vaginal opening based on
force or coercion (Count 1), penis to vaginal opening based on incapacitation (Count 2), penis to
anal opening based on force or coercion (Count 3), and penis to anal opening based in
incapacitation (Count 4). The March 2018 amended information did not include an additional
three counts; rather, it only alleged the three counts listed above.
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At the hearing on September 14, 2018, defendant alleged prosecutorial vindictiveness
related to the addition of charges following completion of the preliminary examination. Defendant
asserted that, when he was initially bound over to the circuit court, there had been an agreement to
amend the information to correct some errors. Defendant argued that the information was not
properly amended in accordance with that agreement. Thereafter, the prosecution gave defendant
the option to amend the information again or remand for a preliminary examination. Defendant
chose to remand to the district court for a preliminary examination. According to defendant, the
prosecution responded that, if the case were remanded for a preliminary examination, then it would
add three additional charges.
The prosecutor argued in response that she originally had proceeded under the theory that
the victim was physically helpless, but after speaking with the victim, she wanted to make sure
that the jury had the option of finding that force or coercion was used even if the jury was not
convinced beyond a reasonable doubt that the victim was physically helpless. The prosecutor
stated that the decision to add the theory of force or coercion was based on trial strategy, not
vindictiveness. The trial court found that the prosecution had wanted to charge alternative theories
and had acted properly after conducting additional investigation. The trial court found that the
errors in the information or the bindover by the magistrate did not rise to the level of creating
prosecutorial vindictiveness.
B. ANALYSIS
“The prosecution violates a defendant’s right to due process by punishing him or her for
asserting protected statutory or constitutional rights. However, the imposition of additional
charges that are within the prosecution’s charging discretion does not constitute sufficient evidence
from which to presume vindictiveness.” Perry, 317 Mich. App. at 595. “Actual vindictiveness
requires objective evidence of hostility or a threat that suggests that the defendant was deliberately
penalized for exercising his or her rights.” Id. In Perry, this Court rejected the defendant’s
assertion that the timing of the prosecution’s decision to seek additional charges was evidence of
presumptive vindictiveness. Id. at 595-596.
Defendant’s claim that the timing and number of additional charges establishes actual and
presumed vindictiveness is without merit. Neither the timing nor the addition of charges that are
within the prosecution’s charging discretion constitute sufficient evidence from which to presume
vindictiveness. Furthermore, as in Perry, there is no record evidence of actual vindictiveness on
the part of the prosecution. Defendant has failed to show objective evidence of hostility or a threat
suggesting that he was deliberately penalized for exercising his rights. See Perry, 317 Mich. App.
at 595-596. Rather, the prosecution explained that it wanted the jury to be able to consider
alternative theories, each of which were supported by the evidence. Accordingly, defendant failed
to establish prosecutorial vindictiveness or that he was denied due process or a fair trial.
III. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence to support his convictions of CSC-
III. We disagree.
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A valid criminal conviction requires proof beyond a reasonable doubt of every element of
every crime. People v Jaffray, 445 Mich. 287, 296; 519 NW2d 108 (1994). A challenge to the
sufficiency of the evidence to support a criminal conviction presents a question of law subject to
review de novo. People v Herndon, 246 Mich. App. 371, 415; 633 NW2d 376 (2001). When
reviewing the sufficiency of evidence in a criminal case, a reviewing court must view the evidence
of record in the light most favorable to the prosecution to determine whether a rational trier of fact
could find that each element of the crime was proved beyond a reasonable doubt. Id. A reviewing
court “ ‘must consider not whether there was any evidence to support the conviction but whether
there was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable
doubt.’ ” People v Wolfe, 440 Mich. 508, 513-514; 489 NW2d 748, amended 441 Mich. 1201
(1992). Our “standard of review is deferential: a reviewing court is required to draw all reasonable
inferences and make credibility choices in support of the jury verdict.” People v Oros, 502 Mich.
229, 239; 917 NW2d 559, 564 (2018) (citation omitted). “Conflicting evidence and disputed facts
are to be resolved by the trier of fact. Minimal circumstantial evidence and reasonable inferences
can sufficiently prove the defendant’s state of mind, knowledge, or intent.” People v Miller, 326
Mich. App. 719, 735; 929 NW2d 821 (2019).
MCL 750.520d provides, in relevant part:
(1) A person is guilty of criminal sexual conduct in the third degree if the
person engages in sexual penetration with another person and if any of the
following circumstances exist:
* * *
(b) Force or coercion is used to accomplish the sexual penetration. Force
or coercion includes but is not limited to any of the circumstances listed in section
520b(1)(f)(i) to (v).
(c) The actor knows or has reason to know that the victim is mentally
incapable, mentally incapacitated, or physically helpless.
“The third-degree criminal sexual conduct statute prohibits engaging in sexual penetration with
another person under certain circumstances, including where the penetration is accomplished by
force or coercion or where the actor knows the victim is physically helpless.” People v Hutner,
209 Mich. App. 280, 283; 530 NW2d 174 (1995). “Force or coercion includes, but is not limited
to, any of the following circumstances . . . [w]hen the actor overcomes the victim through the
actual application of physical force or physical violence.” MCL 750.520b(f)(1). “ ‘Physically
helpless’ means that a person is unconscious, asleep, or for any other reason is physically unable
to communicate unwillingness to an act.” MCL 750.520a(m).
In this case, there was sufficient evidence to support defendant’s convictions of two counts
of CSC-III (finger to genital opening and penis to mouth). The victim testified that, while driving
home from the bar, defendant reached over the center console and put his finger in her vagina. She
testified that she was half asleep and she tried to say no and move away. Defendant then stopped
the car and got into the passenger’s seat with the victim. After attempting to penetrate her vagina
with his penis, defendant removed the victim from the car. The victim stumbled and fell on the
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ground. While on the ground, defendant put his penis in her mouth. The victim again tried to say
no, but had difficulty getting the word out.
The victim’s testimony was sufficient to support defendant’s two convictions of CSC-III
under either the theory that force of coercion was used or that the victim was physically helpless.
The jury could have concluded either that defendant overcame the victim through physical force,
or that the victim was unconscious, asleep, or otherwise unable to communicate unwillingness to
act. The victim’s testimony was supported by the testimony of the sexual assault nurse examiner
who opined that the victim’s examination was consistent with her testimony. Furthermore,
defendant’s own statements during the call recorded by the police constituted evidence that the
victim had not consented to the sexual acts and was physically helpless, but that defendant
nonetheless engaged in the acts of sexual penetration.
Defendant argues that there was insufficient evidence that the victim was physically
helpless because the victim’s preliminary examination testimony was contradictory to the claim of
physical helplessness. At the preliminary examination, the victim testified that she said “no” to
each sexual act; at trial, however, she testified that she tried to say no, but that it was difficult to
speak. The victim’s inconsistent testimony regarding whether she was awake and actually said
the word “no,” or was unconscious and unable to speak, presented a question of credibility and
weight for the jury to consider and resolve. Viewed in the light most favorable to the prosecution,
the victim’s testimony was sufficient to support defendant’s convictions under this theory.
Defendant also argues that there was insufficient evidence to support his convictions under
a theory of force or coercion because there was no evidence that he “seized control” over the
victim. As explained by the Michigan Supreme Court in People v Carlson, 466 Mich. 130, 140;
644 NW2d 704 (2002):
To be sure, the “force” contemplated in MCL 750.520d(1)(b) does not mean
“force” as a matter of mere physics, i.e., the physical interaction that would be
inherent in an act of sexual penetration, nor, as we have observed, does it follow
that the force must be so great as to overcome the complainant. It must be force to
allow the accomplishment of sexual penetration when absent that force the
penetration would not have occurred. In other words, the requisite “force” for a
violation of MCL 750.520d(1)(b) does not encompass nonviolent physical
interaction in a mechanical sense that is merely incidental to an act of sexual
penetration. Rather, the prohibited “force” encompasses the use of force against a
victim to either induce the victim to submit to sexual penetration or to seize control
of the victim in a manner to facilitate the accomplishment of sexual penetration
without regard to the victim’s wishes.
In this case, the victim testified that defendant penetrated her against her will and without
her permission or consent. The victim testified that she tried to say no and tried to move away.
The force used by defendant was not merely incidental to an act of sexual penetration, but was
sufficient to induce the victim to submit to the penetration or to seize control of the victim in a
manner to facilitate the accomplishment of the sexual penetration. Although it was not necessary
to show that defendant completely overcame the victim, the evidence was sufficient to establish
that he did so in this case. Regardless, the victim’s denial of ever giving defendant permission
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was sufficient evidence that defendant acted with force. See People v Alter, 255 Mich. App. 194,
203; 659 NW2d 667 (2003) (concluding that the victim’s denial of ever giving the defendant
permission was sufficient evidence that the defendant used actual force). Thus, there also was
sufficient evidence to support defendant’s convictions under this theory.
IV. BRADY VIOLATION
Defendant also argues that he was denied due process and a fair trial by the destruction of
evidence favorable to the defense, and by the prosecution’s refusal to allow him to examine his
own cell phone, which was seized by the police. We disagree.
Defendant did not allege a violation of Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L
Ed 2d 215 (1963), in the trial court. Thus, this issue is unpreserved. See Danto, 294 Mich. App. at
605. Defendant did request to examine his cell phone or its contents. Therefore, this issue is
preserved. See id. Unpreserved issues are reviewed for plain error affecting a defendant’s
substantial rights. Cain, 498 Mich. 108, 116. We review de novo the interpretation of a court rule,
such as MCR 6.201(A)(6), the rule at issue here. McGee, 258 Mich. App. at 686.
A. BACKGROUND
During his investigation, Detective Rick Sykes obtained a search warrant for defendant’s
cell phone, and the phone was turned over to Detective Kerri Cannata. Detective Cannata testified
that the device would not turn on, so she performed an advanced repair. She was able to turn the
phone on using parts from a working phone. Detective Cannata extracted more than 40,000 text
messages from defendant’s phone. The defense requested text messages from the afternoon of
September 10, 2017, and Detective Cannata obtained approximately a dozen text messages from
that timeframe. At trial, however, defendant testified that there were dozens, or possibly even
hundreds, of text messages missing from September 10, 2017. He testified that there was an eight-
hour gap in the text messages during an argument between him and the victim.
Detective Sykes also obtained video footage from the bar in November 2017. When he
was unable to play the video, he tried to contact the bar, but no one responded, so he placed the
video into evidence storage. In June 2018, Detective Sykes informed the prosecutor about the
video. At some point, an evidence technician was able to play the video footage. The video was
given to defendant after the preliminary examination in June 2018. At a hearing on August 27,
2018, the prosecutor informed defendant that all videos obtained from the bar had been turned
over to the defense. On September 14, 2018, defense counsel informed the trial court that the
prosecution had agreed to contact the bar for any additional videos. At trial, however, Detective
Sykes testified that the bar did not save video footage after approximately 60 to 90 days.
B. ANALYSIS
“[T]he components of a ‘true Brady violation’ are that: (1) the prosecution has suppressed
evidence; (2) that is favorable to the accused; and (3) that is material.” People v Muhammad, 326
Mich. App. 40, 66-67; 931 NW2d 20 (2018) (quotation marks and citation omitted). “The
government is held responsible for evidence within its control, even evidence unknown to the
prosecution, without regard to the prosecution’s good or bad faith.” People v Chenault, 495 Mich
-8-
142, 150; 845 NW2d 731 (2014) (citations omitted). “To establish materiality, a defendant must
show that there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. (quotation marks and citation omitted).
In addition, “[i]n order to warrant reversal on the claimed due process violation, a defendant must
prove that the missing evidence was exculpatory or that law enforcement personnel acted in bad
faith.” People v Hanks, 276 Mich. App. 91, 95; 740 NW2d 530 (2007).
Defendant first argues that hundreds of text messages from his phone were lost during the
repair performed by Detective Cannata in which she transferred the contents of defendant’s phone
to a working phone. Defendant, however, fails to establish that any text messages were, in fact,
lost or destroyed when the contents of the device were transferred. Defendant provides no proof
that there were additional text messages, other than his own statements and testimony to that effect.
In addition, defendant fails to establish that any lost text messages would have been favorable to
the defense. Defendant merely asserts that he “knew that there were text messages that were
favorable,” but he does not explain what the messages said or how they would have supported his
defense. Defendant testified that there were missing text messages from an argument that occurred
on September 10, 2017, before the incident in question. Presumably, defendant is suggesting that
those messages might have been relevant to the victim’s potential motive to fabricate. However,
there already was evidence introduced at trial regarding the victim’s prior threat that defendant
would not see his children again. Similarly, defendant fails to establish that any lost text message
would have been material. Again, he claims that the text messages were material to challenging
the prosecution’s theory, but he does not explain how they would have changed the result of the
proceeding. Accordingly, defendant fails to establish a Brady violation with regard to the contents
of his cell phone. In addition, defendant fails to establish a due-process violation because he has
failed to show that the evidence was exculpatory or that the police acted in bad faith.
Defendant also argues that relevant surveillance video from the bar was destroyed because,
by the time it was requested, it had been recorded over or deleted. Detective Sykes’s testimony
established that there was a delay in viewing the surveillance video footage and, thus, by the time
it was given to defendant and additional video footage was requested, the footage had been
destroyed. Even if the destruction of the additional video footage is attributed to the prosecution,
defendant again fails to establish that any missing surveillance video footage would have been
favorable to the defense or material to it. Defendant asserts that the video would have been useful
to impeach the victim, but he does not explain how. At trial, defendant did not dispute that the
victim laid her head down on the table several times. Defendant fails to explain what the additional
camera angles would have shown, or how they would have been helpful to the defense. Therefore,
defendant also fails to establish a Brady violation with regard to any surveillance video footage.
Furthermore, defendant again fails to establish a due-process violation because he has failed to
show that the evidence was exculpatory or that the police acted in bad faith.
Finally, defendant argues that he was denied due process by the prosecution’s refusal to
allow him to examine his seized cell phone. Defendant relies on MCR 6.201(A)(6), which
provides that “[o]n good cause shown, the court may order that a party be given the opportunity to
test without destruction any tangible physical evidence.” Defendant filed a motion for discovery
on August 20, 2018, in which he alleged that he had requested the return of his phone or its
contents, but the prosecution refused unless defendant would consent to a search of the phone. At
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the hearing on September 14, 2018, defense counsel acknowledged that a CD containing the data
from the cell phone was available for him to pick up and, therefore, that issue was “covered.”
Defendant fails to establish a violation of MCR 6.201(A)(6) because he requested the phone or its
contents, and he agreed that his request had been satisfied when the contents of the phone were
made available. Moreover, defendant fails to explain what an examination of his cell phone would
have revealed. As discussed earlier, the phone would not turn on, so the contents had to be
transferred to another device. Defendant fails to establish that he would have been able to access
anything on the phone before the repair performed by Detective Cannata or that such evidence
would have been favorable to the defense. Furthermore, even if the prosecution violated this rule,
defendant fails to establish that dismissal is the proper remedy. “When determining the appropriate
remedy for discovery violations, the trial court must balance the interests of the courts, the public,
and the parties in light of all the relevant circumstances, including the reasons for noncompliance.”
People v Banks, 249 Mich. App. 247, 252; 642 NW2d 351 (2002). Defendant fails to establish that
dismissal would have been proper given the evidence that the phone would not operate before the
repair, the lack of any evidence of a willful violation by the police or prosecution, and defendant’s
failure to show prejudice.2
V. SENTENCING
Defendant argues that he is entitled to resentencing on the basis of the incorrect scoring of
offense variables (abbreviated in this opinion as OV) 8 and OV 11. We disagree.
A sentencing court “must consult and consider the applicable sentencing-guidelines range,
but the range is advisory only.” People v Savage, 327 Mich. App. 604, 617; 935 NW2d 69 (2019).
“Trial courts are afforded broad discretion in calculating sentencing guidelines, and appellate
review of those calculations is very limited. Scoring decisions for which there is any evidence in
support will be upheld.” People v Elliott, 215 Mich. App. 259, 260; 544 NW2d 748 (1996) (citation
omitted). When reviewing a trial court’s scoring decision, the trial 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 finding of fact is clearly erroneous if,
after a review of the entire record, an appellate court is left with a definite and firm conviction that
a mistake has been made.” People v Antwine, 293 Mich. App. 192, 194; 809 NW2d 439 (2011)
(citation and quotation marks omitted). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Hardy, 494 Mich. at 438.
“The sentencing Court may consider facts not admitted by the defendant or found beyond a
reasonable doubt by the jury. Offense variables are properly scored by reference only to the
sentencing offense except when the language of a particular offense variable statute specifically
2
Defendant also briefly asserts that he was entitled to examine the bar video before trial, but he
fails to elaborate on this argument. See People v Piotrowski, 211 Mich. App. 527, 530; 536 NW2d
293 (1995) (holding that “by failing to refer this Court to any authority supporting her position,
[the defendant] has effectively abandoned the issue”).
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provides otherwise.” People v Roberts, ___ Mich App ___, ___; ___ NW2d ___ (Docket No.
339424) (2020); slip op at 4.
“Under OV 8 of the sentencing guidelines, 15 points may be assessed if the defendant
transported the victim ‘to another place of greater danger or to a situation of greater danger’ or if
the defendant held the victim ‘captive beyond the time necessary to commit the offense.’ ”
Chelmicki, 305 Mich. App. at 70, quoting MCL 777. 38(1)(a). Defendant argues that the victim
was not moved to effectuate the crime or to conceal the offense, was not moved to a place of
greater danger, and was not held captive beyond the time necessary to commit the offense. The
victim, however, testified that on their way home from the bar, defendant took her to a place with
lots of trees. Defendant admitted that the location was a park and testified that they were not going
to “have sex in an open park in front of everyone,” so they parked by the dog park, which was
“relatively out of the way” and could not be seen from the houses. The first sexual assault occurred
inside the car while driving. Defendant then took the victim out of the car. The second assault
occurred after the victim fell on the ground near a tree. The trial court did not clearly err by finding
that the park was a place of greater danger. Instead of taking the victim back to his parents’ house
where there were people present, defendant took her to a location where it was dark and there was
no one around. Thus, the trial court did not err by scoring OV 8 at 15 points.
OV 11 is scored for criminal sexual penetration and “provides that 25 points should be
scored if one sexual penetration occurred.” People v Wilkens, 267 Mich. App. 728, 742; 705 NW2d
728 (2005). MCL 777.41(2)(a) directs the sentencing court “[t]o score all sexual penetrations of
the victim by the offender arising out of the sentencing offense.” Nonetheless, and “Notably,
points cannot be scored under OV 11 ‘for the 1 penetration that forms the basis of a first-or third-
degree criminal sexual conduct offense.’ ” People v Lampe, 327 Mich. App. 104, 117; 933 NW2d
314 (2019), quoting MCL 777.41(2)(c). That being said, “[a]ll other sexual penetrations arising
from the sentencing offense, including penetrations resulting in separate CSC-I or CSC-III
convictions, are properly considered under OV 11.” Id. at 118. In Lampe, this Court concluded
that “three distinct acts of sexual penetration—which all occurred on the same day, at the same
place, during the same course of conduct—arose out of the sentencing offense for purposes of OV
11.” Lampe, 327 Mich. App. at 117-118. The Michigan Supreme Court has explained that the
phrase “arising out of” suggests “a causal connection between two events of a sort that is more
than incidental.” People v Johnson, 474 Mich. 96, 100-101; 712 NW2d 703 (2006).
Something that “aris[es] out of,” or 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. For present purposes, this
requires that there be such a relationship between the penetrations at issue and the
sentencing offenses. [Id. at 101.]
In Johnson, the Court concluded that the two sexual penetrations did not “ ‘aris[e] out of’ ” each
other because they occurred on two different dates in November 2001 and there was “no evidence
that the penetrations resulted or sprang from each other[.]” Id. at 102.
Defendant argues that although he was convicted of two counts of CSC-III, OV 11 is not
to be scored “for the 1 penetration that forms the basis of a first-or third-degree criminal sexual
conduct offense,” Lampe, 327 Mich. App. at 117. Here, one penetration was the basis for each of
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the CSC-III offenses, resulting in a total of two distinct penetrations. Nevertheless, “[a]ll other
sexual penetrations arising from the sentencing offense, including penetrations resulting in
separate CSC-I or CSC-III convictions, are properly considered under OV 11.” Id. at 118. Thus,
the question for guideline purposes is whether the two counts of conviction arose from the same
offense, in which case one of them would be scored, resulting in a 25-point enhancement.
The victim testified that the finger to vaginal opening penetration occurred while they were
in the car and the penis to mouth penetration occurred when they got out of the car at the park.
Although these two acts of sexual penetration did not occur in the exact same location, they
occurred on the same day and during the same course of conduct. Further, the second penetration,
which occurred outside by the tree, arose from the first penetration, which occurred in the car.
After digitally penetrating the victim inside the vehicle, defendant stopped the car and moved to
the passenger’s seat and attempted to penetrate the victim’s vagina with his penis. After he was
unable to do so inside the vehicle, he took the victim out of the car and by the tree, where he
penetrated her mouth with his penis. Accordingly, there was a causal connection between the two
events that was more than incidental. The two acts of sexual penetration were part of one ongoing
incident that occurred that evening and the second penetration sprang from the first. Therefore,
the trial court did not err by scoring OV 11 at 25 points, as their causal connection means that they
arose from the same course of conduct.
VI. CUMULATIVE ERROR
Finally, defendant argues that he was denied due process by the cumulative effect of the
errors in this case. We disagree. “We review this issue to determine if the combination of alleged
errors denied defendant a fair trial.” People v Dobek, 274 Mich. App. 58, 106; 732 NW2d 546
(2007). “The cumulative effect of several errors can constitute sufficient prejudice to warrant
reversal even when any one of the errors alone would not merit reversal, but the cumulative effect
of the errors must undermine the confidence in the reliability of the verdict before a new trial is
granted.” Id. However, “absent the establishment of errors, there can be no cumulative effect of
errors meriting reversal.” Id. In this case, because there are no errors, there is no cumulative effect
of errors warranting reversal.
VII. CONCLUSION
For the reasons stated, defendant’s convictions and sentences are affirmed.
/s/ Jonathan Tukel
/s/ Jane E. Markey
/s/ Michael F. Gadola
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