People of Michigan v. Joseph John Uturo ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 27, 2020
Plaintiff-Appellee,
v No. 347311
Montcalm Circuit Court
JOSEPH JOHN UTURO, LC No. 2017-023520-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and SERVITTO and LETICA, JJ.
PER CURIAM.
Defendant, Joseph John Uturo, appeals as of right his jury trial convictions of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(b)(ii) (sexual penetration by defendant related
to victim); and second-degree criminal sexual conduct (CSC-II), MCL 750.520c(2)(b) (sexual
contact with victim less than 13 years old and defendant 17 years old or older). 1 The trial court
sentenced defendant to 17 to 50 years’ imprisonment for the CSC-I conviction and 10 to 15 years’
imprisonment for CSC-II conviction.
From 2012 through 2017, the victim in this matter, defendant’s biological daughter, lived
with defendant. In October 2013, when the victim was nine years old, she came home after school
one day to the house where she and defendant resided with family friends. On that day, defendant
took the victim into the basement, where his bedroom was located, and sat on his bed next to the
victim. He then touched her legs, chest, and vagina over her clothes. Defendant pinned the victim
1
Defendant was charged, in a second amended felony information, with one count of CSC-I,
(sexual penetration by defendant related to victim), one count of CSC-I (penetration of victim
under 13 by defendant 17 or older), and one count of CSC-II (sexual contact with victim under 13
by defendant 17 or older). Defendant was found guilty of one count of CSC-I (sexual penetration
by defendant related to victim), and one count of CSC-II.
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down and removed her shirt. He attempted to remove her pants, but the victim kicked him and ran
upstairs.
The victim testified at trial that defendant thereafter sexually assaulted her many times by
putting his penis in her vagina when she and defendant moved to another home, once when they
stayed at a third home, and then again when they were living with defendant’s parents, the victim’s
grandparents. With respect to the last incident, the victim testified that defendant slept in a camper
outside his parent’s trailer while the victim slept in the trailer with her grandparents, but that on
nights that defendant worked, the victim slept in the camper instead. According to the victim, on
one night that she was sleeping in the camper in the summer of 2017, defendant came home and
penetrated the victim’s vagina with his penis. Approximately two weeks later, the victim moved
in with her mother. In early August 2017, when the victim’s mother told her that she (the victim)
was going to go back to live with defendant, the victim told her mother that defendant had abused
her. Her mother called the police. Defendant was eventually convicted of one count of CSC-I and
one count of CSC-II, as previously stated.
I. MOTION TO SUPPRESS
On appeal, defendant first argues that the trial court improperly denied his motion to
suppress a recorded phone call between him and the victim because the phone call recording was
obtained in violation of his Fourth Amendment rights.2 We disagree.
This Court reviews de novo a trial court’s ultimate ruling on a motion to suppress. People
v Steele, 292 Mich. App. 308, 313; 806 NW2d 753 (2011). While this Court also reviews de novo
questions of law relevant to a motion to suppress, People v Booker, 314 Mich. App. 416, 419; 886
NW2d 759 (2016), we review for clear error a trial court’s findings of fact on such motions. People
v Hrlic, 277 Mich. App. 260, 262-263; 744 NW2d 221 (2007). We review unpreserved claims of
constitutional error, such as the one here, for plain error affecting substantial rights. People v
Carines, 460 Mich. 750, 764; 597 NW2d 130 (1999).3 Finally, this Court reviews for an abuse of
discretion the trial court’s decision whether to admit evidence. People v Lukity, 460 Mich. 484,
488; 596 NW2d 607 (1999). A trial court “abuses its discretion when it chooses an outcome that
is outside the range of reasonable and principled outcomes.” People v Waclawski, 286 Mich. App.
634, 670; 780 NW2d 321 (2009).
During the investigation into the allegations of sexual abuse, Michigan State Police
Trooper Ryan Fras determined that the victim should call defendant to attempt to discuss the abuse
with him while he recorded the conversation. The victim and her mother thereafter came to the
police station and, with the victim’s mother and Trooper Fras present, the victim used her mother’s
cell phone to call defendant. Trooper Fras had set up recording equipment to ensure that the
2
In the same motion, defendant sought to suppress statements he had made during an in-person
interview with police. The trial court’s ruling on that issue is not challenged in this Court.
3
While defendant did file a motion in the trial court to suppress the statements he made in the
recorded phone call, the basis for that motion was different from that now presented on appeal.
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conversation would be recorded, but did not, according to both he and the victim, tell the victim
what to say.
During the phone call, the victim told defendant that they had a problem. Although not
true, she told him that she had missed her period for two months, and that he was the last person
with whom she “did it.” Defendant first stated, “Excuse me? I don’t know why you would even
say that.” However, after the victim assured defendant that she was alone in a bathroom, defendant
then began expressing his desire to pick up the victim from her mother’s home to discuss what to
do. Defendant suggested her missed period could be a result of “change.” However, the victim
told him that she had no change, and she implied that she was “pretty sure” that the baby was his.
Defendant asked the victim not to make those statements. He then stated that his heart was sinking.
He discussed the regret he felt, expressed his desire to apologize to her, and recognized that he had
made huge mistakes in his life. Defendant again tried to figure out a way to pick up the victim
from her mother’s home, but the victim ended the phone call and told him that she would call him
back. The recording of the phone conversation was played for the jury.
While defendant contends that the admission of the recording violated his Fourth
Amendment rights, this contention has been squarely addressed and rejected by our Supreme Court
in People v Collins, 438 Mich. 8; 475 NW2d 684 (1991). In that case, an acquaintance of the
defendant approached a state police officer and reported that the defendant had offered him $500
to present false testimony to a local district court judge presiding over a criminal proceeding. Id.
at 11-12. Based on that information, the state police officer obtained a (later determined invalid)
warrant purporting to authorize the participant monitoring and recording of conversations between
the defendant and the acquaintance. Id. at 12. Thereafter, the acquaintance placed a telephone
call to the defendant from the state police office, and the conversation was monitored and recorded
by the police with the acquaintance’s consent. Id. at 12. Our Supreme Court explicitly found that
the United States Supreme Court, in United States v Caceres, 440 U.S. 741; 99 S. Ct. 1465; 59 L. Ed.
2d 733 (1979), “made crystal clear that the Fourth Amendment requires no warrant” for a
government agent to record a conversation that one of the participants knew was being recorded.
Collins, 438 Mich. at 23-24. Our Supreme Court further declared that “the warrantless participant
monitoring in this case violated no reasonable expectation of privacy on the part of defendant, and
. . . there is no compelling reason to interpret Const. 1963, art. 1, § 11 as affording greater
protection for this defendant than is provided under the Fourth Amendment.” Id. at 40. The same
holds true here, where, just as in Collins, supra, a government agent recorded a phone conversation
in which one of the participants (the victim) knew it was being recorded. Defendant’s argument
thus fails.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next asserts that he was denied the effective assistance of counsel when his trial
counsel failed to provide the prosecution, during the discovery process and prior to trial, a medical
record demonstrating the victim’s prior treatment for a vaginal injury. We disagree.
“Whether a defendant has been denied the effective assistance of counsel is a mixed
question of law and fact.” People v Riley, 468 Mich. 135, 139; 659 NW2d 611 (2003). A judge is
to first find the facts and then determine whether those facts “constitute a violation of the
defendant’s constitutional right to effective assistance of counsel.” Id. Defendant failed to
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preserve his current challenge by requesting a new trial or moving for a Ginther4 hearing below,
or by filing a motion to remand in this Court. Accordingly, our review is limited to mistakes
apparent on the existing record. People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012);
People v Payne, 285 Mich. App. 181, 188; 774 NW2d 714 (2009).
As stated in People v Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012):
Both the Michigan and the United States Constitutions require that a criminal
defendant enjoy the assistance of counsel for his or her defense. Const. 1963, art.
1, § 20; U.S. Const., Am. VI. In order to obtain a new trial, a defendant must show
that (1) counsel’s performance fell below an objective standard of reasonableness
and (2) but for counsel’s deficient performance, there is a reasonable probability
that the outcome would have been different.
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001), quoting Strickland v Washington,
466 U.S. 668, 694; 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “Because the defendant bears the burden
of demonstrating both deficient performance and prejudice, the defendant necessarily bears the
burden of establishing the factual predicate for his claim.” Carbin, 463 Mich. at 600. In
establishing a claim of ineffective assistance of counsel, the defendant must overcome a strong
presumption that counsel’s performance constituted sound trial strategy. Id. In reviewing a claim
of ineffective assistance of counsel, this court will not evaluate counsel’s decisions with the benefit
of hindsight. People v Grant, 470 Mich. 477, 485; 684 NW2d 686 (2004).
During defense counsel’s cross-examination of Dr. N. Debra Simms, he attempted to elicit
testimony from Dr. Simms concerning an incident in 2005 wherein the victim was purportedly
seen at a health facility for a vaginal injury. The prosecutor objected, asserting that she had never
been provided with the health facility record relied upon by defense counsel. Defense counsel
indicated that he did not know if the record had been provided to the prosecutor by prior defense
counsel5, but that the victim and her mother should have been aware of the record and could have
obtained it themselves. The trial court sustained the prosecutor’s objection to the introduction of
information contained in that record. While, in order to comply with the trial court’s discovery
order, defense counsel should have ensured that the medical record at issue was provided to the
prosecutor, defendant has failed to establish that, absent defense counsel’s failure to provide the
document, a different result would have been reached at trial. Trakhtenberg, 493 Mich. at 51.
Dr. Simms testified that she performed a complete physical evaluation on the victim on
September 21, 2017, and noted during her examination that the victim had a well-healed deep
notch on her hymen at the “five o’clock” position. Dr. Simms testified that the notch was due to
some type of trauma to the hymen. Notably, defense counsel attempted to introduce evidence that
4
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
5
Initial defense counsel moved to withdraw as defendant’s attorney because “despite numerous
requests, the Defendant, Joseph John Uturo, has refused to provide [defense counsel] with a
complete list of witnesses and exhibits.” Defense counsel’s motion was granted.
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the victim had been seen at a medical facility in 2005 when “an older half-sibling had inserted a
pen into her vagina and created a ring tear at that six o’clock position 1 millimeter in size where
the pen had penetrated her vagina.” Dr. Simms testified that the hymenal ring is different from
the hymen itself and that she observed a healed trauma to the hymen, but that the hymenal ring
was normal. Thus, the evidence defense counsel sought to introduce concerned a potential trauma
in a different location than that observed by Dr. Simms. And, Dr. Simms testified at trial that she
had, in fact, been told that the victim’s sister poked her genital area when the victim was six months
old and that the victim had to go to the emergency room. However, Dr. Simms testified that the
examination was normal. Nothing in the record actually establishes that the victim had any type
of hymenal ring injury when she was younger and, had the medical document been produced to
the prosecutor and introduced as evidence at trial, there is no indication that it would have negated
or undermined the healed trauma Dr. Simms observed on the victim’s hymen.
Moreover, defense counsel was able to elicit testimony from Dr. Simms that the notch in
the victim’s hymen was not necessarily caused by penile penetration and could have been caused
by any number of things, including an injury incurred as an infant, if one had occurred. On cross-
examination, defense counsel asked Dr. Simms, “ . . . had you been informed that the child had
received an injury at ten months old, where a pen was inserted into her vagina leaving a 1-
millimeter tear . . . would that have been an important aspect to have been aware of, that
information?” Dr. Simms responded that if she had been given a history that there had been an
examination of the victim when she was an infant and it was abnormal, she would have wanted
further information and that it could have impacted her opinion. Dr. Simms also testified that the
trauma that caused the notch on the victim’s hymen could have been caused by any kind of trauma.
She testified that it was not definitive evidence of sexual penetration by a penis and could have
been caused by digital penetration.6 When defense counsel asked Dr. Simms “if there was an
injury at a very young age as an infant, could that . . . be the same injury you’re seeing in 2017?”
Dr. Simms responded that, “[i]f it were documented that there were a tear, then a tear is a tear, yes,
sir.” Thus, the jury was presented with testimony that called into question whether defendant
caused the notch in the victim’s hymen by penetrating her with is penis, as alleged. As a result,
defendant was not prejudiced by defense counsel’s claimed deficient performance.
III. JURY INSTRUCTION
Defendant next claims that the trial court abused its discretion when it gave the jury an
instruction concerning the violation of a sequestration order without first determining whether the
violation of the sequestration order actually prejudiced the prosecution. We disagree.
We review claims of instructional error de novo. Ward v Consol Rail Corp, 472 Mich. 77,
83; 693 NW2d 366 (2005). We review a trial court’s determination whether a jury instruction is
applicable to the facts of a case for an abuse of discretion. People v Guajardo, 300 Mich. App. 26,
34; 832 NW2d 409 (2013). The defendant bears the burden of establishing that any asserted
instructional error resulted in a miscarriage of justice. Id., quoting People v Dupree, 486 Mich.
693, 702; 788 NW2d 399 (2010). We review a trial court’s decision regarding the remedy for the
6
The victim testified that she had been digitally penetrated by a boyfriend.
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violation of a sequestration order for an abuse of discretion. People v Roberts, 292 Mich. App. 492,
502–503; 808 NW2d 290 (2011).
MRE 615 provides, in relevant part, that “[a]t the request of a party the court may order
witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the
order of its own motion.” The purposes of sequestering witness are to prevent witnesses from
“coloring” their testimony to conform with the testimony of another witness, and to assist in
detecting testimony that is less than candid. People v Meconi, 277 Mich. App. 651, 654; 746 NW2d
881 (2008) (quotation marks and citations omitted).
In this matter, the trial court instructed before trial that “anybody in the courtroom who
may testify during the course of this trial, that you are not to discuss your testimony with anybody
for as long as you are sequestered . . . .” However, on the second day of trial, the victim’s mother
advised the prosecutor that she had gone outside during a break in the proceedings and that
defendant was also outside, along with several of defendant’s witnesses. According to the victim’s
mother, two of defendant’s witnesses who had already testified, “J1” and “J2” were discussing the
testimony that they had just given with, or in front of, two other witnesses who had not yet testified,
“C” and “D”. “C” was next called to the stand to testify by defense counsel. During cross-
examination, the prosecutor asked “C” if she had heard other witnesses discussing the testimony
they had just given. When “C” responded that she had, the trial court dismissed the jury from the
courtroom and held a hearing in the midst of the trial to question the witnesses who had been
involved in and/or heard the prior testimony discussion.
The victim’s mother testified that she heard snippets of conversation between previously
testifying witnesses concerning dates and times. On the other hand, “J1” and “J2” testified to the
trial judge that while others were near them outside, the extent of their discussion was that they
had been asked the same questions over and over. Those witnesses both told the judge that they
had not discussed specific questions or testimony. “C” told the trial court that the only thing she
heard “J1” and “J2” discussing was that they had been asked the same, unspecified questions over
and over.
The trial court found that there had been a violation of the sequestration order, and stated
that there were two options to resolve the matter: (1) preclude testimony from “D,” who had not
yet testified, concerning dates; or (2) allow the testimony with acknowledgment to the jurors “with
some sort of instruction from the Court that there was a violation of the sequestration order.” The
trial court further stated that it was going to let the jurors know that it was reported to the court
that there had been a violation of the sequestration order, that it found that such violation occurred,
and that how the jury let that impact their analysis of the testimony was something the jury would
have to decide. Defense counsel stated, “[i]f that’s the Court’s decision, then I guess we’ll deal
with that going forward. Yep.” The jury was then brought back into the courtroom and the trial
court instructed the jury as follows:
So, members of the jury, while you were having a recess, the Court did
conduct some additional inquiry of witnesses. At the beginning of this trial, the
Court entered a sequestration order, which means that none of the witnesses were
to discuss their testimony with anyone else during the course of this proceeding. I
have made a determination that there was a violation of that order, that [“J1” and
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“J2”] had, while outside smoking a cigarette, discussed their testimony, as it relates
to—there was some discussion regarding their testimony.
So you need to understand that [“C” and “D” were present], along with
some other individuals who were outside, as this conversation was happening.
Apparently, there was some smoking of cigarettes and what have you. So I am
letting you know that I have made a determination that there was a violation of the
sequestration order. How that impacts the testimony, will ultimately be for you, as
jurors, to decide.
“C” thereafter continued her testimony and “D” also later testified.
Defendant argues that the trial court’s findings regarding the sequestration-order violation
were an abuse of discretion because the trial court did not determine whether the violation caused
prejudice. We first note that to preserve an instructional error for review, a defendant must object
to the instruction before the jury deliberates, People v Gonzalez, 256 Mich. App. 212, 225; 663
NW2d 499, 508 (2003), and it is questionable whether defense counsel did, in fact, object to the
instruction now challenged on appeal. Whether the issue was properly preserved, however, is
ultimately irrelevant to our review.
Defendant supports his entire argument with only one case, People v Solak, 146 Mich. App.
659; 382 NW2d 495 (1985).7 This Court held in Solak, that “[a] defendant who complains on
appeal that a witness violated the lower court’s sequestration order must demonstrate that prejudice
has resulted.” Id. at 669. In this case, in contrast, defendant is not arguing that a witness violated
the trial court’s sequestration order. Defendant argues, instead, that the trial court abused its
discretion because it failed to evaluate prejudice before providing the jury with an instruction
regarding the sequestration violation. Thus, Solak is not applicable to this case.
An appellant may not simply “announce a position or assert an error and then leave it up
to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him
his arguments, and then search for authority either to sustain or reject his position.” People v
Kevorkian, 248 Mich. App. 373, 389; 639 NW2d 291 (2001), quoting Mitcham v Detroit, 355 Mich.
182; 94 NW2d 388 (1959). Because defendant has provided no authority to support his position,
we may properly consider this issue abandoned on appeal. See id.
Moreover, even a brief review establishes that the trial court did not abuse its discretion in
giving the challenged instruction. All of the witnesses questioned at the hearing conducted during
trial testified that they had participated in or heard a discussion between testifying witnesses of, at
least tangentially, testimony that those witnesses had given. The trial court could thus conclude
that its sequestration order had been violated and that an appropriate jury instruction was
applicable to the facts before it. Guajardo, 300 Mich. App. at 34.
7
Solak was published before November 1, 1990, so it is not binding on this Court. See MCR
7.215(J)(1). It may, however, still serve as persuasive authority. See People v Barbarich, 291
Mich. App. 468, 476 n 2; 807 NW2d 56 (2011).
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IV. OFFENSE VARIABLE 13
Defendant’s final argument on appeal is that the trial court erred in assessing him 50 points
for offense variable (OV) 13. We disagree.
We review for clear error a preserved claim regarding a sentencing court’s scoring of a
sentencing guideline variable. People v Lockett, 295 Mich. App. 165, 182; 814 NW2d 295 (2012).
“Clear error exists when the reviewing court is left with a definite and firm conviction that a
mistake was made.” People v McDade, 301 Mich. App. 343, 356; 836 NW2d 266 (2013). The
sentencing court’s factual determinations used for sentencing under the sentencing guidelines must
be supported by a preponderance of the evidence and are reviewed for clear error. People v Hardy,
494 Mich. 430, 438; 835 NW2d 340 (2013). “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.” Id. at 438.
Under MCL 777.43(1)(a), a trial court is to score OV 13 at 50 points if “[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(2) further provides:
All of the following apply to scoring offense variable 13:
(a) For determining the appropriate points under this variable, all crimes within a
5-year period, including the sentencing offense, shall be counted regardless of
whether the offense resulted in a conviction.
* * *
(d) Score 50 points only if the sentencing offense is first degree criminal sexual
conduct.
The primary goal of statutory interpretation is to give effect to the Legislature’s intent. TRJ
& E Props., LLC v Lansing, 323 Mich. App. 664, 670; 919 NW2d 795 (2018). In determining the
intent, we begin by construing the language of the statute itself. People v Maynor, 470 Mich. 289,
295; 683 NW2d 565 (2004). Our focus is on the statute’s express language, which offers the most
reliable evidence of the Legislature’s intent. Sanford v State, __ Mich __; __ NW2d __ (2020)
(Docket No. 159636). When interpreting an undefined statutory term, the term must be accorded
its plain and ordinary meaning, which can be found in a lay dictionary if the words are common
and lack a unique legal meaning. Farris v McKaig, 324 Mich. App. 349, 354; 920 NW2d 377
(2018). When, however, a statutory term is a legal term of art, the term must be construed in
accordance with its peculiar and appropriate legal meaning. Id. Moreover, “statutory
interpretation requires courts to consider the placement of the critical language in the statutory
scheme. We must also give effect to every word, phrase, and clause in a statute and avoid an
interpretation that would render any part of the statute surplusage or nugatory.” Johnson v Recca,
492 Mich. 169, 177; 821 NW2d 520 (2012) (internal quotation marks and citation omitted;
emphasis in original).
The scored offense in this matter was MCL 750.520b(1)(b)(ii), which provides that a
person is guilty of first-degree criminal sexual conduct if he or she engages in sexual penetration
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with another person who is at least 13 but less than 16 years of age, and the actor is related to the
victim by blood or affinity to the fourth degree. Defendant contends that because he was not
convicted of sexual penetration against a person less than 13 years of age, the scoring offense was
not part of a “pattern” of three or more sexual penetrations against a person less than 13 years of
age, and he could thus not be assessed 50 points for OV 13.
We first note that a trial court is to score OV 13 at 50 points if “[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.” Had the Legislature intended that the sentencing offense be
one of the three penetrations, or that all penetrations must have occurred when the victim was less
than 13 years old, it could easily have specified as much. For example, the statute could have been
drafted to read that “the offense was one of three or more sexual penetrations against a person or
persons less than 13 years of age.” Instead, the Legislature chose to employ more expansive
language in the statute. In addition, the Legislature elected to use language in MCL 777.43(1)(a)
that the 3 or more sexual penetrations are “against a person or persons.” This language, when
considered with MCL 777.43(2)’s requirement that “all crimes within a 5-year period, including
the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction,”
indicates that the three or more sexual penetrations could be with more than one person. If sexual
penetrations against persons other than the victim of the sentencing offense must be included for
purposes of assessing point under OV 13, there is no reason to find that sexual penetrations of the
same victim are not to be included, whether charged or uncharged. Moreover, MCL 777.43(2)(d)
instructs that we are to “[s]core 50 points only if the sentencing offense is first degree criminal
sexual conduct.” The instruction does not require that the sentencing offense be against a person
under 13 years old. Again, when interpreting statutes, we review the specific words used in the
statute, according every word or phrase of a statute its plain and ordinary meaning, and considering
the context in which the words are used. Lewis v LeGrow, 258 Mich. App. 175, 183; 670 NW2d
675 (2003). Thus, the trial court could have counted the sentencing offense as part of a pattern of
criminal behavior when there were three or more sexual penetrations against either the victim of
the sentencing offense or other victims.
The victim testified at trial that defendant first had sexual contact with her when she lived
at a certain residence with him and family friends when she was nine years old. The victim testified
that they did not live at the family friends’ home for very long and moved around quite a bit. The
victim testified that, after they left the home of the family friends, defendant sexually penetrated
her a multitude of times. The victim recalled the name of one specific street (the family friends
did not live on that street) she and defendant lived on when several of the penetrations occurred,
and the name of the city (different from where both the family friends and the other street were
located) where another sexual penetration occurred. The victim testified that the last time
defendant sexually penetrated her was in the summer of 2017, when she was thirteen years old and
she and defendant lived with his parents. The victim did not testify that she and defendant lived
at all three of the identified locations only after the fall of 2016, when she had turned 13 years old.
Rather, the victim testified that she and defendant lived at the location where the first sexual
contact perpetrated by defendant occurred, then moved to two other locations where sexual
penetration occurred. Given the victim’s testimony that defendant sexually penetrated her at the
various residences in which they had lived throughout the years of 2012 (when she was 9 years
old) through 2017 (when she was 13 years old), it could reasonably be inferred that defendant
sexually penetrated her many times when she was under 13 years old.
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Although defendant was convicted of sexual penetration of a person 13-15 years old and
to whom he was related, he was charged with an additional count of sexual penetration of a victim
under 13. As previously indicated, MCL 777.43(2) requires that when scoring OV 13, “all crimes
within a 5-year period, including the sentencing offense, shall be counted regardless of whether
the offense resulted in a conviction.” There was ample evidence at trial that defendant sexually
penetrated the victim continuously and on numerous occasions when she was under 13 years of
age, despite that he was not charged with engaging in all of those acts. This is not a situation
where defendant regularly (or 3 or more times) engaged in sexual penetration of victims over 13
years of age and, on a single occasion, engaged in sexual penetration of a victim under 13 years of
age. Instead, the testimony at trial established that defendant had a continuous pattern of sexually
penetrating the same victim when she was under 13 and, on one specific occasion, engaged in
sexual penetration of the victim after she had turned 13 years of age. The trial court could rely on
the victim’s testimony to find that defendant’s conviction of CSC-I 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). It could also find by a preponderance of the evidence
that OV 13 should be scored at 50 points. That finding was not clearly erroneous. Hardy, 494
Mich. at 438.8
Affirmed.
/s/ Douglas B. Shapiro
/s/ Deborah A. Servitto
/s/ Anica Letica
8
The trial court sentenced defendant within the sentencing guidelines, such that to the extent that
the trial court relied upon the victim’s testimony to score OV 13 at 50 points, it was permitted to
do so. See, People v Biddles, 316 Mich. App. 148, 158; 896 NW2d 461 (2016).
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