People of Michigan v. Jake Douglas-Adam Rauch ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 19, 2019
Plaintiff-Appellee,
v No. 345330
Tuscola Circuit Court
JAKE DOUGLAS-ADAM RAUCH, LC No. 17-014234-FC
Defendant-Appellant.
Before: BECKERING, P.J., and BORRELLO and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of four counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(f) (sexual penetration accomplished by
force or coercion and causing personal injury), and five counts of second-degree criminal sexual
conduct (CSC-II), MCL 750.520c(1)(f) (sexual contact accomplished by force or coercion and
causing personal injury). The jury acquitted defendant of seven additional counts of CSC-II.
The trial court sentenced defendant to prison terms of 15 to 50 years for each CSC-I conviction
and 10 to 15 years for each CSC-II conviction. The court ordered that defendant’s sentence for
one count of CSC-I was to be served consecutively to the sentences for the remaining
convictions, which were to be served concurrently. For the reasons set forth in this opinion, we
affirm defendant’s convictions, but vacate his sentences and remand for resentencing.
I. BACKGROUND
This appeal arises from the sexual assault of a female acquaintance of defendant’s in
Marlette, Michigan. The victim and defendant’s niece were friends, and the victim had known
defendant and his family for several years. The defense theory at trial was that defendant and the
victim engaged in consensual sex.
The prosecution presented evidence that on June 23, 2017, after the victim had broken up
with her boyfriend, defendant began sending the victim text messages, which became sexual in
nature. The victim repeatedly informed defendant that she did not want to do anything sexual
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with him and he stopped sending her text messages. The day after defendant stopped sending the
victim text messages, the victim reinitiated a text-message exchange with defendant. That led to
defendant again expressing his interest in wanting to have sex with the victim. The victim
explained that she initiated this text-message exchange because she thought defendant was
someone she could vent to; she denied that she was interested in having sex with defendant.
According to the victim, she continued to refuse defendant’s sexual advances, but she also did
not think defendant was serious about wanting to have sex because defendant had a flirty
demeanor with others and he had a girlfriend.
On June 24, the victim allowed defendant to pick her up in his truck. The victim testified
that she just wanted to drive around town and talk. Instead, defendant drove out of town and
then down a dirt road to a deserted field. According to the victim, as defendant was driving, he
began touching her inner thigh and then began touching her vagina over her clothing. The victim
testified that she became uncomfortable, repeatedly pushed defendant’s hand away, and
repeatedly told defendant to stop, but defendant continued to touch her. After defendant stopped
in the field, he sexually assaulted her inside the truck. According to the victim, defendant
forcibly removed her pants, inserted his fingers in her vagina, and put his penis in her vagina
while wearing a condom. Afterward, defendant took the victim back to town and dropped her
off. The victim was with friends at a party for a while, but later that night, the victim told her
mother and others what had happened, and family members came and took the victim to a
hospital where the victim underwent a sexual assault nurse examination (SANE).
A detective interviewed defendant the next day. Defendant was crying during the
interview and told the detective that he had engaged in sexual intercourse with the victim and
that the victim repeatedly told him “no” during the intercourse, but defendant denied that he
raped the victim. At trial, defendant testified that he and the victim engaged in consensual sex,
but then the victim seemed to be having second thoughts and told him to stop, so he did.
II. ANALYSIS
On appeal, defendant first argues that he was denied a fair trial because the trial court
found defense counsel in contempt during counsel’s opening statement and after counsel
repeatedly referenced a portion of the victim’s SANE examination involving the discovery of
redness to the victim’s vagina.1 The trial court imposed a fine and also sentenced counsel to
spend the night in jail for the contempt. Although trial counsel did object to the trial court’s
decision to find him in contempt and require that he spend a night in jail, counsel did not argue
that the contempt rulings affected his ability to represent defendant. “An objection based on one
ground at trial is insufficient to preserve an appellate attack based on a different ground.” People
v Asevedo, 217 Mich. App. 393, 398; 551 NW2d 478 (1996). Thus, to the extent defendant argues
that the trial court’s contempt ruling denied defendant a fair trial, the issue is not preserved.
A trial court’s decision to hold an individual in contempt is generally reviewed for an
abuse of discretion. People v Kammeraad, 307 Mich. App. 98, 146; 858 NW2d 490 (2014).
1
We reach no conclusions as to the validity of the trial court’s contempt rulings.
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However, we review unpreserved issues for plain error affecting substantial rights. People v
Shenoskey, 320 Mich. App. 80, 82; 903 NW2d 212 (2017). Under the plain-error rule, a
defendant must establish that an error was plain (i.e., that it was clear or obvious), and that the
error affected his substantial rights. People v Carines, 460 Mich. 750, 763; 597 NW2d 130
(1999).
Preliminarily, to the extent that defendant argues that the trial court erred by twice
holding defense counsel in contempt, and ordering counsel to spend the night in jail for the
second contempt finding, defendant has not established that he has standing to challenge those
decisions. Defendant was not personally fined or incarcerated as a result of the trial court’s
contempt decisions. Even in criminal matters, standing generally requires “a demonstration that
the [party’s] substantial interest will be detrimentally affected in a manner different from the
citizenry at large.” People v Yeoman, 218 Mich. App. 406, 420; 554 NW2d 577 (1996) (citation
omitted). Because defendant was not personally subject to the penalties imposed against defense
counsel for contempt, defendant does not have standing to challenge the underlying contempt
rulings and penalties themselves. Further, the record does not indicate that the contempt rulings
somehow prejudiced defense counsel’s ability to pursue a defense on behalf of defendant, or
otherwise affected the fairness of defendant’s trial.
Additionally, nothing in the record suggests that defendant can demonstrate that the trial
court’s contempt decisions prejudiced defendant or his counsel. The first time the trial court
found counsel in contempt involved defense counsel’s complaint to the trial court that the
prosecutor was intimidating defendant during opening statement by walking close to defendant
and pointing a finger at him. Defense counsel’s objection and the trial court’s response occurred
outside the presence of the jury. Defendant notes that this contempt finding followed the court’s
earlier admonishment to defense counsel to not “showboat” for the jury, during which the trial
court also showed counsel its “contempt of court bench book” and put counsel on “notice.”
Defendant argues that such actions by the trial court constituted prejudicial conduct directed at
defendant and his trial counsel. Again, however, the complained of actions occurred outside the
presence of the jury.
The second time the court found defense counsel in contempt was when he told the jury
during his opening statement that he expected to introduce the SANE report, which would show
that the victim had vaginal redness. Following defense counsel’s remarks, the trial judge
excused the jury for the day, stating, in relevant part, “. . . there’s a matter that’s come up that is
going to require me to address that outside your presence. And so we’re gonna conclude our
time today.” The trial court then instructed the jury to return at 9:00 a.m. the following morning.
No further information was provided to the jury regarding what matter the court was going to
address. When the trial court again found defense counsel in contempt, all discussions and
arguments were outside the presence of the jury. When trial began the next day, the trial court
began court by asking defense counsel if he would like to proceed with his opening statement.
From this question, the jury could not ascertain that anything had occurred relative to defendant
or his counsel the previous day. We cannot find within the record any evidence that the trial
court engaged in its contempt proceedings against defendant’s counsel in the presence of the
jury. Thus, on this record, there is no basis for concluding that the manner in which the trial
court handled both contempt findings prejudiced defendant or defense counsel.
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Defendant also argues that the trial court’s pretrial rulings were unduly vague, leaving
defense counsel with no way to know what he could discuss during opening statement. The
issue regarding defendant’s opening statement centered on whether defense counsel could use
portion of the SANE report, specifically findings that the victim had engaged in sex with another
man prior to the assault and that the victim had redness around her vagina area. The record
discloses that the trial court and defense counsel had several extensive pretrial discussions about
the admissibility of the SANE report itself, as well as other information in the report that could
not be admitted. The prosecutor stated he did not intend to discuss the victim’s vaginal redness
as part of his case-in-chief. At one point, defense counsel agreed with the redaction of the SANE
report to remove references to DNA results and the vaginal redness. Then defense counsel
argued he wanted to use the evidence, eliciting a warning from the trial court that if he did not
comply with the court’s rulings, it could result in him being held in contempt. Even after
defense counsel was held in contempt, the parties and the trial court had another discussion about
what could be introduced or discussed before defense counsel continued his opening statement.
Hence, there were numerous discussions between the trial court and defense counsel regarding
these issues. Additionally, throughout the trial court’s rulings on the SANE report and its
ancillary issues, there was nothing contained in those trial court rulings that could be classified as
vague.
Moreover, defendant has not shown how the court’s rulings caused him to suffer
prejudice relative to his ability to present a defense. Defense counsel repeatedly stated that he
wanted to introduce evidence from the SANE report of the victim’s vaginal redness to show that
the victim did not have any other injuries, such as injuries to her arms from being treated roughly
by defendant. Ultimately, the SANE report was admitted into evidence with the references to the
redness unredacted. Moreover, testimony was presented that the victim suffered no other
physical injuries.
Our review of the record leads us to conclude that defendant has failed to show that the
trial court’s decision to hold defense counsel in contempt had a chilling effect on defense
counsel’s performance, or otherwise prejudiced defendant in the eyes of the jury. Accordingly,
defendant is not entitled to relief with respect to this issue. See People v Pauli, 138 Mich. App.
530, 544; 361 NW2d 359 (1984) (the trial court’s admonishments of defense counsel did not
have a chilling effect on defense counsel’s performance because, “[e]ven after being chastised by
the trial court, defense counsel vigorously pursued his case”).
Defendant next argues that the trial court erred by restricting his cross-examination of the
victim, and by overruling defense objections to the prosecutor’s examination of the victim’s
mother and defendant’s niece. Defendant preserved most of these claims with an appropriate
objection or offer of proof at trial. “When the issue is preserved, we review a trial court’s
decision to admit evidence for an abuse of discretion, but review de novo preliminary questions
of law, such as whether a rule of evidence precludes admissibility.” People v Chelmicki, 305
Mich. App. 58, 62; 850 NW2d 612 (2014). Decisions concerning the scope of cross-examination
are also reviewed for an abuse of discretion. People v Green, 313 Mich. App. 526, 535; 884
NW2d 838 (2015). “An abuse of discretion occurs when the trial court chooses an outcome
falling outside the range of principled outcomes.” People v Buie, 491 Mich. 294, 320; 817 NW2d
33 (2012).
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Defendant argues that the trial court improperly precluded defense counsel from asking
the victim when she ended her relationship with her boyfriend. He argues that, had the jury been
informed that she ended the relationship shortly before the alleged assault, this information
would have made it more likely that she was amenable to consensual sexual activity with
defendant. The trial court sustained the prosecutor’s relevancy objection to this question.
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” MRE 401. “Evidence which is not relevant is not
admissible.” MRE 402. In analyzing a relevance issue, a reviewing court must first determine
whether the evidence is material, then determine whether it has “probative force.” People v
Mills, 450 Mich. 61, 67; 537 NW2d 909 (1995), mod 450 Mich. 1212 (1995). To be material, a
fact must be “ ‘within the range of litigated matters in controversy.’ ” Id. at 68, quoting United
States v Dunn, 805 F2d 1275, 1281 (CA 6, 1986). The credibility of a witness is a material fact.
Id. at 69. Testimony has probative force if it tends to make something more or less probable. Id.
at 68.
The victim testified on direct examination that, sometime before June 24, 2017, she broke
up with her then boyfriend, but the two continued living in the same apartment while the victim
looked for another place to live. The victim also testified that she stayed at the apartment for less
than a week after June 24, 2017, before moving in with her parents. On cross-examination,
defense counsel asked the victim how many days before June 24 the breakup occurred. When
the prosecutor objected on the basis of relevancy, defense counsel stated that the victim had
acknowledged that she had just broken up with her boyfriend, and he wanted to further question
her to support a claim that defendant had knowledge of this fact, which was why he was reaching
out to her. The prosecutor countered that the exact date of the breakup was not relevant.
Defendant did not make an offer of proof following the trial court sustaining the State’s
objection.
On appeal, defendant now argues that the victim’s response to the exact date of the
breakup would have been relevant to show that she would have been more likely to engage in a
sexual relationship with defendant because her breakup was recent. Evidence of the breakup was
relevant to demonstrate why defendant and the victim were once again contacting each other.
Beyond that issue, we cannot glean any other relevance to that questioning. To make the
presumption that defendant asks of this Court---that an individual would be more amenable to
sexual relations based on a breakup from a prior relationship---is not only speculative, but
somewhat disconcerting.
We note that preserved nonconstitutional error is only grounds for reversal if it is more
probable than not that the error was outcome-determinative after examining the entire record.
People v Williams, 483 Mich. 226, 243; 769 NW2d 605 (2009). Here, even if we were to
conclude that the trial court erred in its exclusion of this evidence, any error was harmless. The
victim discussed her breakup at trial. In addition, the SANE nurse noted that the victim had told
her that she had “just” broken up with her boyfriend. Further, defense counsel elicited testimony
from the victim that the reason defendant gave in his text message for wanting to hang out with
her now was that she no longer had a man. Nothing precluded defendant from relying on this
evidence to advance an argument that the victim may have been more willing to engage in sex
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with defendant, given that she was no longer involved in a committed relationship with someone
else. In sum, because the jury was aware that the victim had recently broken up with her
boyfriend, and the exact date of the breakup was not particularly significant, there is no
reasonable probability that this limitation on cross-examination was outcome-determinative. On
this record, we cannot glean evidence that would support a conclusion that exclusion of evidence
regarding the exact date of the victim’s breakup was outcome-determinative. Accordingly,
defendant is not entitled to relief on this issue.
Defendant next argues that the trial court erroneously precluded defense counsel from
asking the victim if she would have slept with defendant if he did not have a girlfriend.
Defendant argues that, because the victim had sent a text message to defendant asking, “Why
would I let you sleep with me if you are with [your fiancée?],” a rational implication of the
message is that she considered the possibility of having sex with him, which is relevant to
whether she later consented to doing so. The trial court did not abuse its discretion by precluding
the proposed question because it called for the victim to speculate what she would have done
under factual circumstances that simply did not exist at the time the assault occurred.
Defendant next argues that the trial court abused its discretion when it sustained the
prosecutor’s objection to defense counsel’s question to the victim about how long she had been
wearing the pants she was wearing at the time of the charged assault. Defendant ignores that the
basis for the trial court’s ruling was a lack of foundation, because the victim’s clothing had not
been introduced or admitted into evidence. Eventually, after her clothing could not be readily
located, defense counsel waived the production of the clothing for purposes of the victim’s
testimony and, after a brief discussion, defense counsel moved on to another line of questioning.
Defendant’s appellate argument focuses on the alleged relevancy of the evidence, but defendant
does not address the actual basis for the trial court’s ruling, particularly in light of defense
counsel’s later waiver. Further, defendant does not explain how he was prejudiced by the lack of
this information in light of other evidence presented at trial. “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 with little or no citation of supporting authority.”
People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480 (1998). We note that defense
counsel was permitted to cross-examine the SANE nurse about the victim’s clothing. The nurse
explained that the victim’s attire was unlikely to have contributed to the vaginal redness detected
during the examination because of where the irritation was located. Defendant has not shown
that he is entitled to relief with respect to this matter.
Defendant argues that the trial court abused its discretion by overruling defense counsel’s
objection to the prosecutor’s question to the victim’s mother concerning how often she spoke
with the victim. However, apart from announcing his disagreement with the trial court’s
decision, defendant provides no substantive discussion of this claim of error. Accordingly,
defendant has not properly presented this claim of error for review. Kelly, 231 Mich. App. at 640-
641.
Defendant next argues that the trial court improperly allowed the prosecutor to recite
some of defendant’s statements from his police interview during the questioning of defendant’s
niece. Defendant raised a hearsay objection to this evidence at trial, but he now concedes on
appeal that his statements were not inadmissible hearsay. Because defendant did not argue in the
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trial court that this line of questioning was otherwise improper, this claim of error is unpreserved.
“An objection based on one ground at trial is insufficient to preserve an appellate attack based on
a different ground.” Asevedo, 217 Mich. App. at 398. Therefore, we review this claim for plain
error affecting defendant’s substantial rights. Carines, 460 Mich. at 763.
Defendant provides no support for his assertion that it was improper for the prosecutor to
ask defendant’s niece whether she was aware of defendant’s statements before her trial
testimony. See Kelly, 231 Mich. App. 640-641. Further, defendant cannot show prejudice because
the jury heard all of these statements. Accordingly, defendant has failed to demonstrate a plain
error affecting his substantial rights. Carines, 460 Mich. at 763.
Defendant next argues that there were several instances in which the trial court
demonstrated its bias against him or his trial counsel. Defendant also argues that the trial court
acted with partiality toward the prosecution, thereby denying defendant a fair trial. A party must
raise a claim of judicial bias before the trial court to preserve the issue for appellate review.
People v Jackson, 292 Mich. App. 583, 597; 808 NW2d 541 (2011). Although defense counsel
objected to certain decisions by the trial court, defendant did not raise the issue of judicial bias
below. Thus, defendant acknowledges that this issue is not preserved.
A defendant must overcome a heavy presumption of judicial impartiality when claiming
judicial bias. Id. at 598. In determining whether a trial judge’s comments or conduct deprives a
defendant of a fair trial, this Court considers whether the “trial judge’s conduct pierces the veil of
judicial impartiality.” People v Stevens, 498 Mich. 162, 164; 869 NW2d 233 (2015). “A judge’s
conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering
the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a party.” Id. at
171. This is a fact-specific inquiry to be considered in the context of a given case. Id. at 171-
172. It does not depend on whether the evidence supports the conviction or whether the conduct
actually contributed to the verdict. Id. 171 n 3. “Rather, in considering improper influence, the
reviewing court must determine whether the judge’s conduct was sufficiently severe and clear so
as to create the appearance of bias against the aggrieved party.” Id. (Emphasis added). We
must consider the “cumulative effect” of any errors. Id. at 171-172.
In evaluating the totality of the circumstances, this Court should consider a variety of
factors, including any inappropriate conduct by the trial court, such as belittling counsel,
inappropriate questioning of witnesses, inappropriate commentary, or providing inappropriate
advice to either side. Id. at 172-173. This Court should also consider the tone and demeanor of
the trial judge, which in certain circumstances can be determined by the nature of the words used
by the judge. Id. at 175-176. Further, this Court should consider “the scope of judicial
intervention within the context of the length and complexity of the trial,” where a more complex
issue may make it more appropriate for the judge to intervene to a greater extent, and it should
also consider whether “the comments or questions were directed at one side more than the
other.” Id. at 176-177. The existence of a curative instruction, such as the standard one
informing the jury that the judge’s comments or questions are not evidence, or one directed at
conduct that could give rise to the appearance of bias “will often ensure a fair trial despite minor
or brief inappropriate conduct.” Id. at 177. This list of factors is not exhaustive. Id. at 172.
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Defendant first complains that the trial court improperly held defense counsel in
contempt and then continued to treat counsel harshly as counsel tried to determine what he was
permitted to discuss in relation to the SANE report and the victim’s vaginal redness. As
discussed earlier, the trial court’s contempt decisions and its related comments to counsel all
occurred outside the presence of the jury. Thus, this conduct could not have influenced the jury
by creating an appearance of advocacy or partiality for or against a party. Id. at 171 & n 3.
In a related complaint, defendant complains that the trial court treated his counsel harshly
by forcing counsel to “guess” about what he could say concerning the SANE report, insinuated
that counsel was playing games, and ultimately decided to admit the SANE report with the
reference to vaginal redness remaining intact. Again, all of this occurred outside the presence of
the jury. Thus, these actions could not have created an appearance of advocacy or partiality for
or against a party. Id. at 171 & n 3. Moreover, with respect to the trial court’s actual ruling
concerning the SANE report, defense counsel ultimately prevailed in his argument that the report
should be admitted without redacting the reference to vaginal redness. Accordingly, there is no
basis for inferring bias or partiality with respect to this matter.
Defendant complains that the trial court denigrated defense counsel in front of defendant
when counsel tried to offer the victim’s clothing into evidence. Again, however, as defendant
acknowledges, this discussion occurred outside the presence of the jury. Therefore, it could not
have influenced the jury against defendant.
Defendant next argues that the trial court treated the prosecutor differently from defense
counsel during their questioning of prospective jurors, and he complains that the prosecutor was
allowed to make numerous references to the victim’s age.
With respect to defendant’s claim that the prosecutor was treated differently by the trial
court, defendant notes that the prosecutor was allowed to ask the jurors whether they agreed with
the proposition that people could act differently when placed in stressful or traumatic situations.
In contrast, when defense counsel asked a prospective juror three questions about how she would
personally respond to an unwelcomed sexual solicitation sent via social media and whether she
would contact the person, drive to the person’s home, or ditch her friends and go for a ride, the
trial court asked defense counsel to limit his questions to the juror’s qualifications. Examination
of the record therefore reveals that the types of questions asked by the prosecutor and defense
counsel were qualitatively different. The prosecutor’s general questions related to whether the
prospective jurors had preconceived notions of how a person should be expected to react or
whether the jurors agreed that the types of reactions would be different depending on the
individual. Although defense counsel’s questions also related to preconceived notions, they were
based on specific facts of the case and were essentially designed to elicit a personal response
from a juror about her own preconceived notions of the propriety of the victim’s specific actions,
implying that she could rely on them to decide the case. Had it been the prosecutor asking a
juror to apply her own biases, it would have been grounds for a challenge for cause because a
defendant has a right to a fair and impartial jury. People v Tyburski, 445 Mich. 606, 618; 518
NW2d 441(1994). We cannot fault the trial court for restricting this line of questioning,
particularly after it had already provided some leeway to defense counsel.
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With respect to the prosecutor’s reference to the victim’s age, defense counsel also used
the fact that the victim was young to promote a stereotype about a 19-year-old’s capacity “to lie
about a situation” in order to protect herself. Again, we cannot find any evidence of defendant’s
claim of impartiality, thus defendant is not entitled to relief.
Defendant next points to the trial court’s correction of defense counsel when defense
counsel inaccurately identified a law enforcement officer. Defendant complains that the trial
court did not similarly correct the prosecutor when the prosecutor allegedly misstated the title of
a law enforcement officer. The record reveals that defense counsel had difficulty with the
officer’s name, referring to the officer as both “Herman Joshua” and “Joshua Herman.” At one
point in the trial, the trial court intervened by merely stating, “Deputy Joshua Herman.” The
record also discloses that the prosecutor accurately referred to the Deputy as a sergeant, so there
was no need for any correction. There is no evidence of partiality or bias with respect to this
matter.
Defendant next argues that the trial court demonstrated partiality by the way it responded
to a leading question by the prosecutor to the victim’s mother. The trial court responded to
defense counsel’s question by stating, “Sit down. Thank you. All right. You can answer the
question please.” Although the trial court appeared to reject defense counsel’s objection, the
witness asked the prosecutor to repeat the question and the prosecutor restated it in such a way so
that the question was no longer leading. To the extent that the trial court overruled counsel’s
objection, adverse rulings alone generally do not demonstrate judicial bias. Cain v Dep’t of
Corrections, 451 Mich. 470, 497-498, 548 NW2d 210 (1996). The trial court’s tone in telling
defense counsel to sit down cannot be gleaned from the transcript itself, but there is nothing
apparent from the trial court’s brief response that demonstrates bias or partiality.
Defendant also appears to argue that the trial court should have stopped the prosecutor
from referring to the sexual encounter as an “assault” in connection with this questioning
because this somehow led the victim’s mother to confirm the prosecutor’s theory that defendant
was guilty. However, this characterization was proper given the victim’s testimony and the
prosecutor’s theory of the case. Moreover, the victim’s mother had already testified that the
victim had told her that defendant had assaulted her. We cannot discern any bias or partiality
from the trial court’s failure to intervene in this instance.
Defendant next complains that the trial court improperly overruled a defense objection to
a question by the prosecutor that called for speculation by a witness. Although the prosecutor
offered to rephrase the question, defendant does not explain how the court’s ruling to overrule
defense counsel’s objection somehow conveyed to the jury that the court was biased against
defendant or advocating for the prosecution. The apparent purpose of the question was to
determine whether the witness’s testimony may have been influenced by pressure from her
family, which was a proper subject. Nothing in the trial court’s response suggests that the court
demonstrated advocacy or partiality for or against a party.
Defendant also points to a number of instances where the trial court allegedly “cut off”
defense counsel’s cross-examination of the victim.
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Defendant begins this argument by directing this Court to the trial court interrupting
defense counsel’s questioning regarding the victim’s decision to ask defendant why he was
soliciting her for sex. The record discloses that the trial court acted within its discretion under
MRE 611(a) to exercise reasonable control over the interrogation of witnesses. Before the trial
court instructed defense counsel to “move on,” defense counsel had already asked the victim that
question and she had answered it. In addition, this line of questioning was, at best, only
marginally relevant to the question of consent. The mere fact that the trial court ruled adversely
to defendant does not demonstrate bias, and the court’s ruling did not create an appearance of
advocacy or partiality against defendant.
Defendant also discusses the trial court’s response to defense questioning about why the
victim agreed to ride with defendant after he repeatedly told her that he wanted to have sex with
her. The prosecutor objected that the question had been repeatedly asked and answered, and
defense counsel acknowledged that he did not remember whether he had already asked the
question. Moreover, the trial court merely sustained the objection. Although defendant
complains that the trial court did not chastise the prosecutor for the form of his objection,
defendant does not explain how the trial court’s failure to do so demonstrates bias or partiality in
favor of the prosecutor or against defendant.
Defendant also takes issue with the trial court’s decision to foreclose repeated
questioning of the victim about how she wound up following defendant while the two drove in
their separate vehicles. The trial court sustained the prosecutor’s objection that the question had
previously been asked and answered “quite a bit” the prior day. Defendant acknowledges that
defense counsel had asked a number of questions about this topic in an attempt to portray the
victim’s responses to defendant’s text messages as flirtatious. In addition, as with defendant’s
other claims of error concerning cross-examination, defendant has not shown how any adverse
evidentiary ruling had the clear effect of creating an impression that the trial court was biased
against defendant or defense counsel.
Defendant also discusses the trial court’s response to another attempt to cross-examine
the victim about where she had driven before joining defendant in his truck. The trial court
stated:
MRE 611. Ask a question, please, Mr. Galen. I’m trying to be patient . . .
. You know, we’re all here. We have a very limited amount of time . . . . So
would you please move it along.
To the extent that the trial court’s comment expressed impatience at counsel’s somewhat
wandering cross-examination, it was not “severe” and it did not “clearly” demonstrate advocacy
or partiality for or against a party. Also, the statement did not “clearly” demonstrate advocacy or
partiality for or against a party. Stevens, 498 Mich. at 171 & n 3.
At the conclusion of trial, the trial court instructed the jury that its comments, rulings,
summary of the evidence, and instructions were not evidence, and it further explained:
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[W]hen I make a comment or give an instruction, I am not trying to influence
your vote or express a personal opinion about the case. If you believe that I have
an opinion about how you should decide this case, you must pay no attention to
that opinion. You are the only judges of the facts, and you should decide this case
from the evidence.
Following our review of the record, we conclude that this instruction was sufficient to
protect defendant’s right to a fair trial. Id. at 177. We reach this conclusion because the record
does not support defendant’s argument that the trial court was biased against him or defense
counsel. Moreover, considering the totality of defendant’s complaints in light of the entire trial
record, there is no reasonable likelihood that the trial court’s conduct improperly influenced the
jury by creating an appearance of advocacy or partiality for the prosecution or against defendant.
Defendant raises a concurrent claim of ineffective assistance of counsel with respect to
this issue. In support of this claim, defendant simply asserts that he was denied the effective
assistance of counsel to the extent that the trial court may have acted reasonably in response to
defense counsel’s deliberate or intentional disobedience of the court’s orders. Because defendant
fails to provide any further argument in support of this claim, it is abandoned. Kelly, 231 Mich
App at 640-641. In any event, the record does not reveal deliberate improper action by defense
counsel. Thus, defendant has not established the factual predicate for this ineffective-assistance
claim. People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001).
Defendant next argues that resentencing is required because the trial court erroneously
scored the sentencing guidelines. Specifically, defendant challenges the scoring of offense
variables (OVs) 3, 8, and 10. 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). “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. A finding is clearly erroneous when the reviewing court is left with a definite and
firm conviction that a mistake has been made. People v Miller, 482 Mich. 540, 544; 759 NW2d
850 (2008).
A. OV 3
MCL 777.33(1)(d) directs a trial court to assess 10 points for OV 3 when “[b]odily injury
requiring medical treatment occurred to a victim.” Conversely, only five points are to be scored
when “[b]odily injury not requiring medical treatment occurred to a victim.” MCL 777.33(1)(d).
If “[n]o physical injury occurred to a victim,” a trial court must assess zero points for OV 3.
MCL 777.33(1)(f). For purposes of OV 3, a “ ‘bodily 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). An
“injury requiring medical treatment” refers to “the necessity for treatment and not the victim’s
success in obtaining treatment.” MCL 777.33(3).
In this case, there was evidence that the victim suffered a “bodily injury” for purposes of
OV 3. The SANE nurse testified that she found redness on the victim’s labia minora and labia
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majora; she described the redness as an “irritation.” This constituted evidence of “some
unwanted physically damaging consequence.” McDonald, 293 Mich. App. at 298. Moreover, the
victim stated that the intercourse was very painful and uncomfortable, which is evidence of an
“unwanted physically damaging consequence.” Id. However, similar to People v Armstrong,
305 Mich. App. 230, 246; 851 NW2d 856 (2014), there was no evidence that “medical treatment
was necessary for [the] injury.” In Armstrong, there was evidence that the complainant suffered
from a “reddened and tender hymen,” which was revealed during a SANE examination. This
Court disagreed with the prosecution’s argument that this evidence supported a 10-point score
for OV 3. Id. at 246. This Court noted that neither the complainant nor others testified that the
complainant received any medical treatment, other than the taking of DNA samples. This Court
explained that a court could not assume that all bodily injuries require medical treatment,
otherwise the portion of the statute authorizing a five-point score for injures that do not require
medical treatment would be rendered “surplusage.” Id. This Court held that “a preponderance
of the record evidence did not support the trial court’s determination that the complainant
required medical treatment.” Id. at 247.
Similarly, in this case, the SANE examiner performed a forensic physical examination for
purposes of preparing a SANE report. The only physical evidence of the assault was the victim’s
vaginal redness. As in Armstrong, other than the taking of the buccal swab and an examination
of the victim’s vaginal area, there was no evidence that the victim received, sought, or
necessitated medical treatment for a bodily injury. That is not to say that a forensic or similar
physical examination could never result in the necessity of medical treatment, even as a
prophylactic measure. See McDonald, 293 Mich. App. at 298 (holding that OV 3 should be
scored at 10 points when there is some medical treatment, even if the treatment is
“precautionary,” and presumably for the victim’s “infection as a consequence of the rape”). In
this case, however, there was neither testimony nor other evidence that any medical treatment
was administered as part of the SANE examination itself. Therefore, as in Armstrong, the trial
court erred by assessing 10 points for OV 3. At most, the evidence showed that the victim
suffered a bodily injury that did not necessitate medical treatment. Therefore, only five points
should have been assessed for OV 3. MCL 777.33(1)(d).
B. OV 8
MCL 777.38 provides that 15 points should be scored for OV 8 when “[a] victim was
asported to another place of greater danger or to a situation of greater danger or was held captive
beyond the time necessary to commit the offense.” The evidence in this case indicated that when
defendant began touching the victim inside his truck, he told her that he needed to find
“somewhere for us to hide.” He then purposefully drove the victim to a remote area outside of
town where he sexually assaulted her. The act of taking the victim away from the presence of
others is sufficient to show asportation under OV 8. People v Barrera, 500 Mich. 14, 22; 892
NW2d 789, 794 (2017); Chelmicki, 305 Mich. App. at 70-71. Accordingly, the trial court did not
err by assessing 15 points for OV 8.
C. OV 10
Defendant challenges the 15-point score for OV 10, which is the appropriate score when
a defendant exploits a vulnerable victim and predatory conduct was involved. MCL
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777.40(1)(a). In People v Huston, 489 Mich. 451; 802 NW2d 261 (2011), our Supreme Court
explained:
[T]o assess 15 points for OV 10, a court must find that an offender engaged in
predatory conduct and exploited a vulnerable victim, using only the statutory
definition of “vulnerability.” Again, MCL 777.40(3)(c) defines “vulnerability” as
the “readily apparent susceptibility of a victim to injury, physical restraint,
persuasion, or temptation,” and such vulnerability may or may not arise from the
explicitly listed characteristics, relationships, and circumstances set forth in
subdivisions (b) and (c). The statute does not mandate that this “susceptibility” be
inherent in the victim. Rather, the statutory language allows for susceptibility
arising from external circumstances as well. [Huston, 489 Mich. at 466.]
With respect to vulnerability, in People v Cannon, 481 Mich. 152, 158-159; 749 NW2d 257
(2008), our Supreme Court listed factors to be considered by a sentencing court when
determining whether a victim was vulnerable. Those factors include the expressly listed
characteristics, relationships, and circumstances identified in subdivisions (b) and (c), which are:
(1) the victim’s physical disability, (2) the victim’s mental disability, (3) the
victim’s youth or agedness, (4) the existence of a domestic relationship, (5)
whether the offender abused his or her authority status, (6) whether the offender
exploited a victim by his or her difference in size or strength or both, (7) whether
the victim was intoxicated or under the influence of drugs, or (8) whether the
victim was asleep or unconscious. [Id.]
With respect to “predatory conduct,” the Huston Court also noted that MCL 777.40(3)(a)
defines that term as “preoffense conduct directed at a victim, or law enforcement officer posing
as a potential victim, for the primary purpose of victimization,” but does not require that the
preoffense conduct be directed toward the ultimate victim of the crime. Huston, 489 Mich. at
459-460. The Court held that predatory conduct encompasses “only those forms of ‘preoffense
conduct’ that are commonly understood as being ‘predatory’ in nature, e.g., lying in wait and
stalking, as opposed to purely opportunistic criminal conduct or ‘preoffense conduct involving
nothing more than run-of-the-mill planning to effect a crime or subsequent escape without
detection.” Id. at 462, citing Cannon, 481 Mich. at 162. In order to find that a defendant engaged
in predatory conduct, the Court provided three analytical questions that a trial court must answer
affirmatively before it may properly assess 15 points for OV 10:
(1) Did the offender engage in conduct before the commission of the
offense?
(2) Was this conduct directed at one or more specific victims who suffered
from a readily apparent susceptibility to injury, physical restraint, persuasion, or
temptation?
(3) Was victimization the offender’s primary purpose for engaging in the
preoffense conduct? [Cannon, 481 Mich. at 161.]
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Essentially then, because Huston has extended the definition of a vulnerable victim to individuals
who are not “inherently” vulnerable, the second question or requirement in Cannon now also
applies to circumstances in which a defendant takes affirmative steps to make the victim
susceptible to injury, physical restraint, persuasion, or temptation or where the defendant takes
advantage of other circumstances, such as darkness or isolation, which render the victim
vulnerable. Huston, 489 Mich. at 467.
In this case, the trial court focused on defendant’s actions before the night of the assault,
such as his repeated Facebook posts, as well as the prior “relationship” that the two shared
because of the fact that the victim was the best friend of defendant’s niece. Defendant argues
that the victim was not inherently vulnerable simply because she knew defendant, even if they
were close. The prosecutor argues that the victim was vulnerable because defendant successfully
used his strength to assault the victim, but there is no evidence that the victim was physically
weak. We are also unpersuaded that defendant’s suggestive text messages support a finding that
he planned to sexually assault the victim if she did not agree to consensual sex. However,
immediately before the assault, defendant drove the victim to a remote area in order to commit
the assault. The victim was rendered “vulnerable” once defendant isolated her. Further, the
evidence demonstrates that defendant’s “primary purpose” of driving the victim to the remote
area was to exploit the vulnerability he had created. This conduct qualifies as “predatory” in a
manner similar to cases involving lying in wait or stalking, rather than simple opportunism or
“run-of-the-mill planning” to commit an assault. Therefore, the trial court did not err when it
assessed 15 points for OV 10.
D. REMEDY
We have concluded that the trial court did not err by scoring OV 8 or OV 10, but
erroneously assessed 10 points, instead of 5 points, for OV 3. The trial court’s scoring error
requires resentencing. Defendant received 100 total offense variable points, which is the
minimum number of points necessary to place him in OV Level VI (100+ points) of the
applicable sentencing grid for first-degree criminal sexual conduct, a class A offense. MCL
777.62; MCL 777.16y. Defendant received a prior record variable (PRV) score of 20 points,
placing him in PRV Level C. These scores resulted in a sentencing guidelines range of 135 to
225 months. MCL 777.62. A five-point reduction to defendant’s OV score will place him in OV
Level V (80-99 points), and reduce his guidelines range to 126 to 210 months. MCL 777.62.
Because the scoring error affects the appropriate guidelines range, defendant is entitled to be
resentenced. People v Carter, 503 Mich. 221, 223; 931 NW2d 566 (2019); People v Francisco,
474 Mich. 82, 89; 711 NW2d 44 (2006).
Defendant also argues that the trial court erred by ordering his sentence for one count of
CSC-I to be served consecutively to his other sentences. The trial court had discretion to impose
a consecutive sentence under MCL 750.520b(3). However, the trial court was required to
articulate reasons on the record for each consecutive sentence ordered. People v Norfleet, 317
Mich. App. 649, 664-665; 897 NW2d 195 (2016). (“Review of a discretionary sentence requires
that the trial court set forth the reasons underlying its decision”). Id. at 664. In this case, the trial
court provided no reasons for its decision to impose a consecutive sentence. Accordingly, on
remand, should the trial court again decide to impose a consecutive sentence on resentencing, it
must provide its reasons for doing so on the record.
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We affirm defendant’s convictions, but vacate his sentences and remand for resentencing.
We do not retain jurisdiction.
/s/ Jane M. Beckering
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
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