People of Michigan v. Samuel Richard Frontiera III ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 13, 2016
Plaintiff-Appellee,
v No. 328677
Wayne Circuit Court
SAMUEL RICHARD FRONTIERA III, LC No. 15-002377-FC
Defendant-Appellant.
Before: JANSEN, P.J., and CAVANAGH and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions on three counts of first-degree criminal
sexual conduct, MCL 750.520b(1)(b)(i) (victim is at least 13 but less than 16 years old and a
member of the same household), for which he was sentenced to 11 to 30 years’ imprisonment for
each conviction. We affirm.
This case arises from defendant’s sexual assault of his fiancé’s fourteen-year-old
daughter, a special education student who suffered from emotional impairment.
Defendant argues that there was insufficient evidence to support his convictions because
there was no physical evidence and the victim could not remember details of the incidents. We
disagree.
We review de novo challenges to the sufficiency of the evidence. People v Ericksen, 288
Mich App 192, 195; 793 NW2d 120 (2010). The evidence is considered in a light most
favorable to the prosecution to determine whether a reasonable jury could have found defendant
guilty beyond a reasonable doubt. People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415
(2013) (citation omitted). “[A] reviewing court is required to draw all reasonable inferences and
make credibility choices in support of the jury verdict.” People v Nowack, 462 Mich 392, 400;
614 NW2d 78 (2000).
To convict defendant in this case, the prosecution had to prove that (1) defendant
engaged in sexual penetration with the victim, (2) who was at least 13 but less than 16 years old,
and (3) defendant and the minor victim were members of the same household. See People v
Phillips, 251 Mich App 100, 102; 649 NW2d 407 (2002), quoting MCL 750.520b(1)(b)(i).
“Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or
any other intrusion, however slight, of any part of a person’s body . . . into the genital or anal
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openings of another person’s body . . . .” MCL 750.520a(r). Defendant and the victim are
considered members of the same household if they are “‘a family unit residing under one roof for
any time other than a brief or chance visit.’” Phillips, 251 Mich App at 103, quoting People v
Garrison, 128 Mich App 640, 646; 341 NW2d 170 (1983).
Defendant does not contest the victim’s age. The first assault took place just after the
victim turned 14 years old, and the following assaults occurred over the next few months.
Defendant also does not contest that he and the victim were members of the same household.
Defendant was the fiancé of the victim’s mother, and they all lived in the same house. The
victim even referred to defendant as her “stepdad.” Therefore, the second and third elements are
met, and the remaining issue is whether there was sufficient evidence to establish sexual
penetration beyond a reasonable doubt.
The victim testified that, the first time defendant sexually assaulted her, he put his penis
in her vagina. Although she could not remember the specific date, the victim knew that it
occurred in April because it was just after her fourteenth birthday. She recounted some of the
events leading up to the assault, including smoking marijuana, defendant taking off his clothes,
and then the victim taking off her clothes. She also testified that she was lying on her back and
that it stopped when defendant ejaculated. The victim also testified to one act of fellatio and one
act of cunnilingus between her and defendant. Although she could not recall details of these
events, all the assaults occurred at one of two addresses in Northville. The victim admitted that
the passage of time, smoking marijuana before each occurrence, and not wanting to remember
had affected her ability to recall precise details of the assaults.
In defendant’s insufficiency claim, he raises two arguments. First, defendant makes a
blanket statement that “there was no physical evidence that an offense has been committed.”
Defendant provides no case law to support this argument. In fact, no physical evidence is
required to establish the elements of first-degree criminal sexual conduct. See People v Szalma,
487 Mich 708, 724; 790 NW2d 662 (2010) (“the complainant’s testimony can, by itself, be
sufficient to support a conviction of CSC”); People v Solloway, ___ Mich App ___; ____ NW2d
___ (2016) (Docket No. 324559); slip op at 3 (“In criminal sexual conduct cases, a victim’s
testimony may be sufficient to support a defendant’s conviction and need not be corroborated.”).
See also MCL 750.520h (“The testimony of a victim need not be corroborated in prosecutions
under sections 520b to 520g.”). Thus, this argument is without merit.
Second, defendant challenges the victim’s credibility. This Court has stated that witness
credibility is a question for the jury. People v Harrison, 283 Mich App 374, 378; 768 NW2d 98
(2009). Further, this Court has maintained that it “does not interfere with a jury’s credibility
determinations.” People v Noble, 238 Mich App 647, 657; 608 NW2d 123 (1999). The jury in
this case heard the testimony of the victim and her school social worker, and determined the
credibility of each when it found defendant guilty.
Further, in arguing that the victim is not credible because she could not remember all the
details of the assaults, defendant relies on People v Callahan, 152 Mich App 29; 391 NW2d 512
(1986), where this Court found insufficient evidence of more than one sexual penetration where
the victim was only able to recall one act of penetration. Id. at 32. Defendant argues that this
Court cannot use guesswork to reach conclusions where the evidence is not “unequivocally
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clear.” But Callahan is distinguishable from this case. In Callahan, the victim was not able to
recall any additional acts of penetration beyond the first act, and there was insufficient
circumstantial evidence for this Court to conclude the additional acts took place. Id. Here, the
victim remembers each act of penetration (specifically more than 10 acts, one of which involved
fellatio and one of which involved cunnilingus, and multiple penetrations with his penis); she
does not remember the details surrounding the acts. Thus, since the victim was able to recall the
multiple acts of penetration, her testimony provided sufficient evidence for the jury to make its
credibility determination.
In summary, defendant’s arguments challenging the sufficiency of the evidence are
without merit.
Next, defendant argues that his sentences are unreasonable and disproportionate because,
although they fell within the recommended guidelines sentence range, an offender falling within
the same guidelines range but with higher point totals for either the offense variables or prior
record variables could not receive a more severe sentence. We disagree.
This Court must affirm defendant’s minimum sentences if they fall within the
recommended guidelines sentence range, unless defendant argued and can establish that his
sentences were the result of an error in scoring the guidelines or inaccurate information. See
People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). This Court has stated that
“Lockridge did not alter or diminish MCL 769.34(10),” which requires this Court to affirm a
minimum sentence that is within the appropriate guidelines sentence range. Id. at 196 n 1. Only
“[a] sentence that departs from the applicable guidelines range will be reviewed by an appellate
court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015).
When a sentence is reviewed for reasonableness, then the principle of proportionality standard
should be applied. People v Steanhouse, 313 Mich App 1, 47-48; 880 NW2d 297 (2015), lv gtd
499 Mich 934 (2016).
Here, defendant was sentenced to a minimum term of 132 months’ imprisonment for each
of three counts of first-degree criminal sexual conduct. His minimum sentencing guidelines
range was 81 to 135 months. Thus, his sentences fall within his applicable guidelines range.
Defendant argues that, because his offense variable score of 50 points landed him in the middle
of OV Level 3 (40 to 59 points), and his prior record variable score of 20 landed him within the
10 to 24 points of PRV Level C, being sentenced at the top of his minimum guidelines range is
unreasonable and disproportionate. Defendant’s theory is that another offender scoring higher in
either of those categories could only be sentenced to, at most, three more months’ imprisonment,
which is unfair. Defendant does not argue that his guidelines were scored incorrectly or that they
were based on incorrect information. A reasonableness and proportionality argument only
applies to minimum sentences that depart from the recommended guidelines sentence range.
Schrauben, 314 Mich App at 196. Therefore, defendant’s sentences must be affirmed.
Defendant further argues that the trial court gave no reasoning for the sentences as
required by Lockridge. Lockridge simply expressed the requirement that sentencing courts
“justify the sentence imposed in order to facilitate appellate review.” Lockridge, 498 Mich at
392. This Court has previously explained that this “articulation requirement is satisfied if the
trial court expressly relies on the sentencing guidelines in imposing the sentence or if it is clear
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from the context of the remarks preceding the sentence that the trial court relied on the
sentencing guidelines.” People v Conley, 270 Mich App 301, 313; 715 NW2d 377 (2006). At
sentencing, the trial court agreed that OV 10 was properly scored at 15 points for predatory
conduct, and noted that defendant’s sentences fell within the applicable guidelines range. Thus,
the trial court satisfied its articulation requirement.
In summary, defendant’s arguments challenging his sentences are without merit.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
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