People of Michigan v. Gregory James Bulerski ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 7, 2019
Plaintiff-Appellee,
v No. 342349
Manistee Circuit Court
GREGORY JAMES BULERSKI, LC No. 17-004721-FC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of one count of second-degree
criminal sexual conduct (CSC-II), MCL 750.520c(1)(f) (actor causes personal injury to victim
and force or coercion is used to accomplish act), and two counts of third-degree criminal sexual
conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration of victim between 13 and 16 years
of age). The trial court sentenced defendant, as a fourth-offense habitual offender, MCL 769.12,
to 30 to 60 years’ imprisonment for each offense. Because there was sufficient evidence to
support defendant’s convictions and his sentence was proportionate, we affirm.
I. FACTS
On January 14, 2017, when the victim, KB, was 14 years old, she and her best friend, SB
(defendant’s 16-year-old niece), agreed to babysit defendant’s young son while defendant went
out drinking. Defendant returned at some time after 12:30 a.m. the following morning and
indicated that he wanted to go to Manistee to purchase cigarettes, gasoline, and more alcohol.
SB, KB, and defendant’s son accompanied him there and then to other locations. During the car
trip, while SB drove, defendant rubbed KB’s inner thighs. He then digitally penetrated KB’s
vagina and asked her to sit on his lap. According to SB, KB refused, and defendant stated, “Then
you want to go home.” Earlier that day, KB had explicitly told defendant that she did not want
to go home because she would be forced to confront her grandfather, who had previously choked
her. When KB reiterated that she did not want to go home, defendant replied, “So you’re going
to come sit on my lap.” KB acquiesced, and defendant kissed her and digitally penetrated her
vagina. Defendant then asked KB to climb over the seat and remove her clothes. When KB did
not respond, defendant lifted her up and threw her over the seat into the back cargo compartment
of the SUV. Defendant removed his and KB’s pants, and he penetrated her vagina with his
penis. KB told defendant to stop, but to no avail. This continued for several minutes, until SB
purposefully drove the vehicle into a snowbank.
At approximately 7:00 a.m. that same morning, KB was taken to the hospital. Dr.
Jennifer Reinink conducted a sexual assault examination on KB, which revealed some redness
and swelling between KB’s vagina and anus. During the examination, KB informed Reinink that
defendant bit her left ear and left nipple. Reinink collected several swabs for DNA testing,
noting as she did that while KB received the examination and treatment, she was “tearful at
times, . . . angry, tired, [and] hungry.” A police officer arrived at the hospital at approximately
10:00 a.m. When he first made contact with KB, she was curled into the fetal position,
attempting to hide her face as she cried. DNA matching defendant’s was present in samples
taken from KB’s breasts, neck, and ears; additionally, DNA matching KB’s was detected in
samples taken from defendant’s underwear.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that the evidence presented was insufficient to prove the elements
of CSC-II and CSC-III beyond a reasonable doubt. We disagree.
This Court reviews de novo a challenge to the sufficiency of the evidence relied upon to
sustain a criminal conviction. People v Harverson, 291 Mich App 171, 177; 804 NW2d 757
(2010). In so doing, this Court must review the evidence in the light most favorable to the
prosecution. Id. at 175. The question is not whether any evidence existed that could support the
conviction; rather, the question is whether the evidence presented proved—beyond a reasonable
doubt—the essential elements of the crimes for which the defendant was accused. Id.
1. SECOND-DEGREE CRIMINAL SEXUAL CONDUCT
MCL 750.520c(1)(f) provides, in relevant part:
A person is guilty of criminal sexual conduct in the second degree if the person
engages in sexual contact with another person and if any of the following
circumstances exists:
* * *
(f) The actor causes personal injury to the victim and force or
coercion is used to accomplish the sexual contact. Force or
coercion includes, but is not limited to, any of the circumstances
listed in section 520b(1)(f).
In this case, defendant does not contest the fact that he engaged in sexual contact with KB.
Instead, defendant contends that the evidence did not prove, beyond a reasonable doubt, that he
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caused KB any personal injury as required under MCL 750.520c(1)(f). Pursuant to MCL
750.520a(n), “ ‘[p]ersonal injury’ means bodily injury, disfigurement, mental anguish, chronic
pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.” In order to
prove mental anguish, “ ‘the prosecution is required to produce evidence from which a rational
trier of fact could conclude, beyond a reasonable doubt, that the victim experienced extreme or
excruciating pain, distress, or suffering of the mind.’ ” People v Mackle, 241 Mich App 583,
596-597; 617 NW2d 339 (2000), quoting People v Petrella, 424 Mich 221, 259; 380 NW2d 11
(1985). This does not mean that the prosecution must prove the existence of mental anguish
beyond that “experienced by the ‘average’ rape victim.” Petrella, 424 Mich at 258.1
Determinations as to the existence of sufficient mental anguish must be made on a case-by-case
basis. Id. at 259, 270. Factors that may be considered include:
(1) Testimony that the victim was upset, crying, sobbing, or hysterical during or
after the assault.
(2) The need by the victim for psychiatric or psychological care or treatment.
(3) Some interference with the victim’s ability to conduct a normal life, such as
absence from the workplace.
(4) Fear for the victim’s life or safety, or that of those near to her.
(5) Feelings of anger and humiliation by the victim.
(6) Evidence that the victim was prescribed some sort of medication to treat her
anxiety, insomnia, or other symptoms.
(7) Evidence that the emotional or psychological effects of the assault were long-
lasting.
(8) A lingering fear, anxiety, or apprehension about being in vulnerable situations
in which the victim may be subject to another attack.
(9) The fact that the assailant was the victim’s natural father. [Id. at 270-271.]
No single one of these factors is necessary to a finding of mental anguish. Id. at 270.
Witness testimony established that KB cried during her stay at the hospital. Indeed, when
the responding police officer first made contact with KB, she was curled into the fetal position,
actively trying to hide her face while she continued to cry. Dr. Reinink noted that KB also
displayed anger while she received treatment, amidst concurrent feelings of grief, exhaustion,
and hunger. Further, KB testified that she began attending counseling sessions approximately
1
Indeed, our Supreme Court has previously rejected the notion that there is some “normal” or
“average” emotional response to being raped. See Petrella, 424 Mich at 267.
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one week after the incident, and has continued to do so ever since. KB expressly indicated her
desire to continue participating in counseling in the future, and she acknowledged that the
incident still weighed on her to some degree. These facts—at a minimum—bear directly on the
first, second, fifth, and seventh factors outlined in Petrella, 424 Mich at 270-271. Although
evidence need not be overwhelming to establish mental anguish beyond a reasonable doubt, see
People v Himmelein, 177 Mich App 365, 377; 442 NW2d 667 (1989), the evidence in this case
overwhelmingly supported the jury’s determination, beyond a reasonable doubt, that KB
“experienced extreme or excruciating pain, distress, or suffering of the mind” as required under
Mackle, 241 Mich App at 596-597.2
Defendant next argues that the evidence was insufficient to support a finding, beyond a
reasonable doubt, that he used force or coercion in order to facilitate unlawful sexual contact
with KB. Force or coercion in CSC-II cases can be established in the same manner as in CSC-I
cases. MCL 750.520c(1)(f). MCL 750.520b(1)(f)(i) provides, in relevant part:
Force or coercion includes, but is not limited to, any of the following
circumstances:
(i) When the actor overcomes the victim through the actual
application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to
use force or violence on the victim, and the victim believes that the actor
has the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to
retaliate in the future against the victim, or any other person, and the
victim believes that the actor has the ability to execute this threat. As used
in this subdivision, “to retaliate” includes threats of physical punishment,
kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or
examination of the victim in a manner or for purposes that are medically
recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of
surprise, is able to overcome the victim.
KB’s testimony established that, at the time of the incident, defendant attempted to verbally
persuade her to climb over the vehicle’s seat and remove her clothes. When she did not comply,
2
Defendant argues that testimony concerning the redness and swelling that KB experienced
between her vagina and anus was insufficient to warrant a finding of bodily injury. However, we
need not discuss the merits of that assertion, because evidence of KB’s mental anguish was
sufficient to establish the personal injury element of CSC-II. See Petrella, 424 Mich at 272 n 23.
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defendant physically forced her over the seat. At that point, defendant began to engage in sexual
intercourse with KB, despite her pleas for him to stop. A victim’s testimony, alone, is sufficient
to sustain a conviction under MCL 750.520c. MCL 750.520h; People v DeLeon, 317 Mich App
714, 719; 895 NW2d 577 (2016). Accordingly, KB’s testimony was sufficient to establish force
or coercion under MCL 750.520b(1)(f)(i).
2. THIRD-DEGREE CRIMINAL SEXUAL CONDUCT
Defendant further contends that the evidence presented was insufficient to sustain his
CSC-III convictions. Under MCL 750.520d(1)(a),
[a] person is guilty of criminal sexual conduct in the third degree if the person
engages in sexual penetration with another person and if any of the following
circumstances exist:
(a) That other person is at least 13 years of age and under 16 years
of age.
“Sexual penetration,” as defined by MCL 750.520a(r), “means sexual intercourse . . . or any
other intrusion, however slight, of any part of a person’s body . . . , but emission of semen is not
required.”
KB testified that she was 14 years old at the time of the incident. She further indicated
that defendant vaginally penetrated her with his penis and his finger. Both of these acts
constitute “sexual penetration” as defined under MCL 750.520a(r). Further, as previously
discussed, a victim’s testimony, alone, is sufficient to sustain a conviction under MCL 750.520d.
MCL 750.520h; DeLeon, 317 Mich App at 719. Accordingly, KB’s undisputed testimony was
enough to support the jury’s finding that defendant engaged in sexual penetration with a minor
between the ages of 13 and 16 under MCL 750.520d(1)(a).
Moreover, significant DNA evidence was presented at trial, lending further support for
the jury’s verdict.3 Witness testimony established that DNA matching defendant’s was detected
on swabs of KB’s breasts and ears. Female DNA matching KB’s was also detected in samples of
defendant’s underwear. The probability that KB was incorrectly identified as the contributor was
3
Defendant argues that the absence of DNA evidence in vaginal and cervical swabs necessarily
indicates that he did not sexually penetrate KB. Defendant’s argument fails for two reasons: (1)
because DNA matching defendant’s known Y chromosome haplotype was detected on KB’s
vaginal and cervical swabs, and (2) because defendant fails to cite any authority suggesting that
the absence of DNA evidence categorically precludes a jury from finding the requisite sexual
penetration necessary to sustain a conviction under MCL 750.520d(1)(a). “ ‘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 Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009), citing People v
Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998).
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one in 933.7 octillion. Furthermore, DNA samples collected in KB’s vaginal and cervical swabs
revealed the presence of DNA that matched defendant’s known Y chromosome haplotype.
Although this DNA could have come from anyone in defendant’s paternal lineage, defendant
was 416 times more likely to be the actual contributor than any other individual with a matching
haplotype. These facts were sufficient for the jury to find, beyond a reasonable doubt, that
defendant was guilty of CSC-III under MCL 750.520d(1)(a).4
B. UPWARD DEPARTURE FROM SENTENCING GUIDELINES
Defendant argues that the trial court abused its discretion when it sentenced him to 30 to
60 years’ imprisonment, which exceeded the sentencing guidelines range and the 25-year
mandatory minimum sentence under MCL 769.12(1)(a). We disagree.
A sentencing departure occurs when, as in this case, a court imposes a sentence that
exceeds “both the applicable guidelines minimum sentence range and the . . . mandatory
minimum.” People v Wilcox, 486 Mich 60, 73; 781 NW2d 784 (2010). This Court reviews an
upward departure from the sentencing guidelines range for reasonableness. People v Lockridge,
498 Mich 358, 365; 870 NW2d 502 (2015). “[T]he standard of review to be applied by appellate
courts reviewing a sentence for reasonableness on appeal is abuse of discretion.” People v
Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017) (Steanhouse II). A sentence is
unreasonable—and therefore an abuse of discretion—if the trial court failed to adhere to the
principle of proportionality in imposing its sentence on a defendant. Id. at 477, citing People v
Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). That is, sentences imposed by trial courts
must be proportionate to the seriousness of the circumstances surrounding the crime and the
defendant. Milbourn, 435 Mich at 636.
The Michigan Supreme Court, in Steanhouse II, 500 Mich at 471, reaffirmed the
principle of proportionality test articulated in Milbourn. That is,
a judge helps to fulfill the overall legislative scheme of criminal punishment by
taking care to assure that the sentences imposed across the discretionary range are
proportionate to the seriousness of the matters that come before the court for
sentencing. In making this assessment, the judge, of course, must take into
account the nature of the offense and the background of the offender. [Milbourn,
435 Mich at 651.]
The sentencing court must also consult and account for the guidelines, which “ ‘remain a highly
relevant consideration in a trial court’s exercise of sentencing discretion.’ ” Steanhouse II, 500
Mich at 474-475, quoting Lockridge, 498 Mich at 391.
4
Defendant additionally asserts that the prosecution was required to prove that he used force or
coercion to accomplish sexual penetration in order to sustain a conviction of CSC-III. Defendant
is incorrect. See MCL 750.520d(1)(a). Moreover, as previously discussed, the evidence
supports a finding that defendant did use force or coercion in order to sexually penetrate KB.
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In implementing the principle of proportionality, “ ‘the key test is whether the sentence is
proportionate to the seriousness of the matter, not whether it departs from or adheres to the
guidelines’ recommended range.’ ” Steanhouse II, 500 Mich at 472, quoting Milbourn, 435
Mich at 661. The Steanhouse II Court expressly distinguished the test from one requiring
“ ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.” Steanhouse
II, 500 Mich at 473-474, quoting Gall v United States, 552 US 38, 47; 128 S Ct 586; 169 L Ed
2d 445 (2007). The principle of proportionality test does not create a presumption of
unreasonableness for sentences that deviate from the guidelines range. Steanhouse II, 500 Mich
at 474. Factors that may be considered under the test include, but are not limited to:
(1) the seriousness of the offense; (2) factors that were inadequately considered by
the guidelines; and (3) factors not considered by the guidelines, such as the
relationship between the victim and the aggressor, the defendant’s misconduct
while in custody, the defendant’s expressions of remorse, and the defendant’s
potential for rehabilitation. [People v Steanhouse, 313 Mich App 1, 46; 880
NW2d 297 (2015) (Steanhouse I), aff’d in part and rev’d in part on other grounds
500 Mich 453 (2017) (citations omitted).]
In this case, the trial court fulfilled its obligation to consult and account for the guidelines prior
to sentencing defendant under Steanhouse II, 500 Mich at 474-475. The trial court nevertheless
sentenced defendant to 30 to 60 years’ imprisonment, an upward departure of 5 years from the
mandatory minimum sentence for defendant’s convictions under MCL 769.12(1)(a). The trial
court explained that the upward departure was justified for three reasons: (1) defendant had a
lengthy criminal record, such that a rehabilitative sentence could not be fashioned; (2) defendant
demonstrated a lack of remorse for his crimes, believing himself to be the victim; and (3) the
guidelines failed to account for the nature of the instant offenses, particularly in light of
defendant’s previous convictions for engaging in unlawful sexual conduct with underage girls.
With regard to defendant’s criminal record, the trial court did not err by giving it due
consideration. Indeed, the trial court was obligated to take defendant’s background into account
under Milbourn, 435 Mich at 651. “[A] defendant’s prior criminal history and recidivist history .
. . [a]re included in the scoring of the prior record variables and offense variables and, thus, [a]re
insufficient to support an upward departure absent a finding by the trial court that the factors
were given inadequate weight when scored.” People v Hendrick, 472 Mich 555, 564 n 10; 697
NW2d 511 (2005), citing MCL 769.34(3)(b). However, unlike the trial court in Hendrick, 472
Mich at 564 n 10, the trial court in this case explicitly determined that the guidelines failed to
give adequate weight to defendant’s criminal history.
Further, a defendant’s uncontrollable attraction toward minors is a factor not adequately
considered under the guidelines. See People v Armstrong, 247 Mich App 423, 425; 636 NW2d
785 (2001). Likewise, the sentencing guidelines do not adequately account for the need to
protect other children from a defendant who might engage in further unlawful acts against
children in the future if not incarcerated. Id.In addition to other prior offenses, in 1994, defendant pleaded guilty to one count of
CSC-III against a minor under the age of 13. In 2013, defendant pleaded nolo contendere to one
count of fourth-degree criminal sexual conduct (CSC-IV) against a minor. Defendant was still
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on probation for his 2013 CSC-IV conviction at the time he committed the instant offenses.
Defendant’s criminal history and predilection for engaging in sexual acts with minors, which has
been undeterred by years of imprisonment and probation for previous CSC-III and CSC-IV
convictions, are factors that are not adequately accounted for by the guidelines. See People v
Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017). The trial court did not err by
sentencing defendant to a term of imprisonment constituting an upward departure of five years
on the basis of his criminal history and seemingly uncontrollable attraction to underage girls.
See Armstrong, 247 Mich App at 425. Further, as noted in Steanhouse I, 313 Mich App at 46,
defendant’s expressions of remorse, or lack thereof, are not adequately weighed by the
sentencing guidelines. Accordingly, the trial court did not err by justifying its sentence, in part,
on the basis of defendant’s insistence that he was the victim in this case.
Affirmed.
/s/ Michael J. Kelly
/s/ Deborah A. Servitto
/s/ Mark T. Boonstra
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