People of Michigan v. Nicholas Lee Bowns ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 10, 2022
Plaintiff-Appellee,
v No. 356036
Allegan Circuit Court
NICHOLAS LEE BOWNS, LC No. 19-022361-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and M. J. KELLY and REDFORD, JJ.
PER CURIAM.
Defendant, Nicholas Lee Bowns, appeals by leave granted1 his sentence for his conviction
of second-degree criminal sexual conduct (CSC-II), MCL 750.520c. For the reasons stated in this
opinion, we affirm.
I. BASIC FACTS
Bowns pleaded guilty of sexually assaulting his 16-year-old daughter by rubbing his penis
on her buttocks. In exchange for his plea, the prosecution dismissed a charge of first-degree
criminal sexual conduct and agreed to recommend a sentence in the middle of the sentencing
guidelines as scored by the trial court. Subsequently, over a defense objection to the scoring of
offense variables (OVs) 8, 12, and 19, the trial court determined that the minimum sentence
guidelines range was 19 to 38 months. Thereafter, the court sentenced Bowns to 28 months to 15
years’ imprisonment.
1
People v Bowns, unpublished order of the Court of Appeals, entered February 17, 2021 (Docket
No. 356036).
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II. SENTENCE
A. STANDARD OF REVIEW
Bowns argues that the trial court erred by scoring OVs 8, 12, and 19. This Court reviews
for clear error the trial court’s findings in support of points it assesses under the sentencing
guidelines. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). The trial court’s factual
determinations “must be supported by a preponderance of the evidence.” Id.B. ANALYSIS
1. OV 8
OV 8 addresses asportation or captivity of a victim. MCL 777.38. The trial court must
assess 15 points if “[a] victim was asported to another place of greater danger or to a situation of
greater danger . . . .” MCL 777.38(1)(a). Asportation occurs if “a victim is carried away or
removed ‘to another place of greater danger or to a situation of greater danger.’ ” People v Barrera,
500 Mich 14, 21; 892 NW2d 789 (2017), quoting MCL 777.38(1)(a). The movement of the victim
does not need to “be greater than necessary to commit the sentencing offense,” nor does the statute
exclude “the movement of a victim that is only incidental to that offense.” Id. “A victim is
asported to a place or situation involving greater danger when moved away from the presence or
observation of others.” People v Chelmicki, 305 Mich App 58, 70-71; 850 NW2d 612 (2014).
The record reflects that Bowns sexually assaulted his daughter while they were inside a
semi-truck at a truck stop. In an affidavit submitted with his request for resentencing, Bowns
contends that he left his wife’s home because she created a hostile environment, that he went to a
friend’s house with his daughter, and that they left his friend’s house and traveled to the truck stop
so that they could sleep in his semi-truck. Although he admits that he moved his daughter from
his wife’s house to his friend’s house and then to the semi-truck in the parking lot of a truck stop,
he asserts that because the movement was simply the next step in an over-the-road trip that his
daughter had requested, points should not be assessed. However, the plain language of the statute
does not require that the movement of the victim be against the victim’s will. Instead, “movement
of a victim that is incidental to the commission of a crime nonetheless qualifies as asportation.”
Barrera, 500 Mich at 22. Thus, regardless of the reason for the movement, the record supports
the court’s finding that Bowns asported his daughter.
Furthermore, the place he asported her to was a place involving greater danger. He took
his daughter from both his wife’s house and his friend’s house and transported her to a truck stop.
He then took her inside his semi-truck. The curtains on the semi-truck were drawn closed, thereby
preventing anyone from looking inside and seeing Bowns sexually assault his daughter. Because
he moved her to a location that was away from the presence or observation of others, the
requirement that the asportation be to a place of greater danger is satisfied in this case. See
Chelmicki, 305 Mich App at 70-71. Because the record—including Bowns’s own statements—
shows that he moved his daughter to a place of greater danger before assaulting her, the trial court
did not clearly err by scoring OV 8 at 15 points.
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2. OV 12
OV 12 addresses contemporaneous felonious criminal acts against a person. MCL 777.42.
The court must assess 10 points if the offender commits two contemporaneous felonious criminal
acts against a person. MCL 777.42(1)(b). A felonious criminal act is contemporaneous when it
“occurred within 24 hours of the sentencing offense and will not result in a separate conviction.”
People v Bemer, 286 Mich App 26, 32; 777 NW2d 464 (2009). In order to properly assess points
for OV 12, the trial court “must look beyond the sentencing offense and consider only those
separate acts or behavior that did not establish the sentencing offense.” People v Light, 290 Mich
App 717, 723; 803 NW2d 720 (2010). Here, although Bowns argues that he only “acknowledged”
one offense and denied his daughter’s additional allegations, there is no requirement that Bowns
admit to the additional offenses. Bowns’s daughter stated that she woke up on June 28, 2018, with
Bowns touching her vaginal area through her pants while he masturbated. She stated that she
rolled over and he rubbed his penis on her back. Those two offenses occurred between midnight
and approximately 1:30 a.m. on June 28, 2018. She also disclosed that the prior day he had rubbed
her buttocks. Although she did not specify the exact time she was sexually assaulted on June 27,
2018, because the incident on the 28th occurred so early in the morning, it is reasonable to infer
that it was within the 24-hour period. Thus, in addition to the sentencing offense, the record
reflects that within a 24-hour period, Bowns committed two additional felonies against a person
because he (1) rubbed his daughter’s buttocks the previous day and (2) touched her vaginal area
while he was masturbating. Because the record supports the trial court’s finding that there were
two contemporaneous felonies against a person, the score of 10 points for OV 15 was proper.
3. OV 19
Finally, Bowns argues that the trial court erred by assessing 10 points for OV 19. The trial
court must score OV 19 at 10 points if an offender “interfered with or attempted to interfere with
the administration of justice.” MCL 777.49(c). Interference with the administration of justice
“encompasses more than just the actual judicial process,” and the conduct need not “necessarily
rise to the level of a chargeable offense” or constitute obstruction of justice. People v Barbee, 470
Mich 283, 287-288; 681 NW2d 348 (2004). “The investigation of crime is critical to the
administration of justice.” Id. at 288. Although the scoring of OVs is generally limited to the
sentencing offense, a trial court may properly assess points for OV 19 on the basis of a defendant’s
conduct after completing the sentencing offense. People v Smith, 488 Mich 193, 195, 202; 793
NW2d 666 (2010).
In this case, the police interviewed Bowns and his daughter separately. The officer who
interviewed Bowns asked him “if there were any issues occurring inside the semi-truck,” if Bowns
“had assaulted [his daughter] in any way,” or if he had “inappropriately touched [his daughter] in
any way.” Bowns responded in the negative to each question. The officer then asked if Bowns
had touched his daughter “in any way that may be interpreted as sexual in nature.” Bowns admitted
to giving her a back massage the day before, but he denied that it was sexual. He then provided a
story to the officer about his daughter’s friend’s cat dying. Thereafter, the officer confronted
Bowns with his daughter’s statements indicating that Bowns had sexually assault her. In response,
Bowns told the officer that his daughter was lying and adamantly stated that he did not sexually
assault his daughter. He also provided a written statement denying the allegations. Subsequently,
while pleading guilty to CSC-II, Bowns testified that he had rubbed his penis on his daughter’s
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buttocks. In light of his admission under oath at the plea hearing, the record clearly reflects that
he was lying when he repeatedly denied sexually assaulting his daughter. Providing false
information to a police officer during an investigation constitutes interference with the
administration of justice. Id.In Barbee, the offender was scored 10 points after he provided a false name to the
investigating officers. Id. Bowns argues that there is a difference between providing a false name
to police officers and simply falsely denying that a crime has occurred because under the former
scenario the police might investigate an innocent person. No such distinction exists in the statutory
language, however. Instead, the interference—or the attempted interference—with the
administration of justice is sufficient to warrant a score of 10 points. The key inquiry is not into
whether the offender’s lie or misleading statement will affect innocent individuals. Rather, it is
whether the offender made the false or misleading statement in an attempt to direct the police
investigation away from him or her. In this case, it can be reasonably inferred that Bowns denied
sexually assaulting his daughter—and made up a story about her being upset about a friend’s dead
cat—in order to avoid criminal liability.2
4. INEFFECTIVE ASSISTANCE
Finally, Bowns argues that his lawyer provided ineffective assistance. “When no Ginther3
hearing has been conducted, our review of the defendant’s claim of ineffective assistance of
counsel is limited to mistakes that are apparent on the record.” People v Mack, 265 Mich App
122, 125; 695 NW2d 342 (2005). To prevail, the defendant must show that his lawyer’s
performance was deficient and the deficient performance prejudiced the defense. People v Fyda,
288 Mich App 446, 450; 793 NW2d 712 (2010). A lawyer’s performance is deficient if it falls
“below an objective standard of professional reasonableness.” Id. Further, in order to establish
2
Bowns also argues that if an offender’s lie is limited to a false denial of a lie told by the police,
then points should not be assessed under OV 19. In support, he directs this Court to Article 1,
Section 17 of the Michigan Constitution, which provides:
No person shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty or property, without due process of law. The right
of all individuals, firms, corporations and voluntary associations to fair and just
treatment in the course of legislative and executive investigations and hearings shall
not be infringed.” [Const 1963, art 1, § 17.]
However, beyond proclaiming that the second sentence should be interpreted in
conjunction with OV 19, he does not offer any analysis or authority supporting his position.
As a result, we conclude that this argument is abandoned. See People v Kelly, 231 Mich
App 627, 640-641; 588 NW2d 480 (1998) (“An appellant may not merely announce his
position and leave it to this Court to discover and rationalize the basis for his claims, nor
may he give only cursory treatment [of an issue] with little or no citation of supporting
authority.”).
3
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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prejudice, the defendant must show that there is a reasonable probability that, but for his or her
lawyer’s error, the outcome of the proceedings would have been different. Id.Bowns first argues that his lawyer provided ineffective assistance because he did not
request an evidentiary hearing related to the scoring of OVs 8, 12, and 19. His lawyer, however,
objected to the scoring of OVs 8, 12, and 19, and made the same arguments that Bowns now makes
on appeal. Given that the record was sufficient to support the argument against scoring the OVs,
we conclude that the defense lawyer’s failure to request an evidentiary hearing did not fall below
an objective standard of reasonableness so as to constitute deficient performance. Moreover, even
if an evidentiary hearing had been held, Bowns cannot show that but for his lawyer’s allegedly
deficient performance, the outcome of the proceeding would have been different. In his motion
for resentencing, Bowns presented the additional facts that he believed were relevant to the scoring
of OVs 8, 12, and 19. After considering those additional facts, the trial court denied the motion
for resentencing. Accordingly, on this record, there is not a reasonable probability that the outcome
of his sentencing hearing would be different if those facts had been presented at an evidentiary
hearing prior to the initial sentencing hearing.
Bowns next argues that he believed his guidelines range would be either 12 to 24 months
or 10 to 19 months. He contends that his lawyer was ineffective for failing to warn him that his
guidelines range might be higher. However, there is nothing on the record supporting Bowns’s
contention that he was not advised that the guidelines might be higher. Instead, at the plea hearing,
the prosecution stated that it had “agreed to recommend a sentence in the middle of the sentencing
guidelines as scored by the Court.” (Emphasis added.) Thereafter, Bowns stated that he heard
what was said about the plea agreement and that he understood it. Consequently, the record only
reflects that there was an agreement for a middle-of-the-guidelines score and that the guidelines
had yet to be scored by the court. The defendant bears the burden of establishing the factual
predicate for his or her claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). He has not
done so here. And, even if he could show that his lawyer had failed to advise him that, based on
the court’s scoring of the guidelines, he might have a higher sentencing range, Bowns had not
alleged that such a warning would have resulted in his rejection of the plea agreement. As a result,
his claim of ineffective assistance is without merit.
Affirmed.
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
/s/ James Robert Redford
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