DocketNumber: Docket No. 298488
Citation Numbers: 296 Mich. App. 546
Judges: Jansen, Kelly, Whitbeck
Filed Date: 5/17/2012
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals by right his jury-trial convictions of first-degree criminal sexual conduct
i
Defendant first argues that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed the crimes. We disagree.
Claims of insufficient evidence in a criminal case are reviewed de novo, with the evidence viewed in a light most favorable to the prosecution. People v Ericksen, 288 Mich App 192, 195-196; 793 NW2d 120 (2010). We must determine whether a rational trier of fact could have found that all the essential elements of the offenses were proved beyond a reasonable doubt. People v Railer, 288 Mich App 213, 217; 792 NW2d 776 (2010). Circumstantial evidence and reasonable inferences arising therefrom may be used to prove the elements of a crime. People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). “[T]his Court must not interfere with the jury’s role as the sole judge of the facts.” People v Meshell, 265 Mich App 616, 619; 696 NW2d 754 (2005). It is the role of the jury to “ ‘determine questions of fact and assess the credibility of witnesses.’ ” People v Cameron, 291 Mich App 599, 616; 806 NW2d 371 (2011), quoting People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998).
Defendant was convicted under MCL 750.520b(l)(e), which provides that “[a] person is guilty of criminal
Defendant was also convicted under MCL 750.357, which provides in pertinent part that “[a]ny person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony ....” As this Court observed in People v Perkins, 262 Mich App 267, 271-272; 686 NW2d 237 (2004), to prove the elements of larceny from a person, the prosecution must show that the defendant (1) took someone else’s property without consent, (2) moved the property, (3) intended to steal or permanently deprive the owner of the property, and (4) took the property from the person or from the person’s immediate area of control or immediate presence.
We first conclude that the prosecution presented sufficient evidence to prove beyond a reasonable doubt that defendant committed CSC-I under MCL 750.520b(l)(e). The victim testified that defendant put his forearm on her throat with enough pressure that she could not breathe, that defendant produced a black folding knife and put the edge of the knife on her throat, that defendant pulled her pants down around her knees, and that defendant flipped her over onto her
We also conclude that the prosecution presented sufficient evidence to prove beyond a reasonable doubt that defendant committed the offense of larceny from the person. The victim testified that defendant took her cell phone, money, and purse without her permission while they were in his car. Furthermore, the victim’s cousin testified that defendant had the victim’s cell phone after the assault, that defendant told the victim’s cousin not to call the cell phone again, and that defendant then used the cell phone to call the victim’s cousin back. Finally, the evidence indicated that the victim was missing her cell phone after the assault. This evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that defendant had committed all the essential elements of the offense of larceny from the person. See Perkins, 262 Mich App at 271-272.
ii
Defendant also argues that the jury’s verdicts were against the great weight of the evidence. Again, we disagree.
The evidence presented at trial did not preponderate heavily against the jury’s CSC-I verdict. The victim testified regarding the sexual assault. She relayed consistent versions of the assault to her sister, the emergency room doctor, and the forensic nurse who examined her. The victim also identified defendant as her attacker. She had a scratch on her neck that was consistent with her allegation that defendant held a knife to her neck. When she spoke to her sister and the forensic nurse, she was shaken and upset. Although there was no acute injury to the victim’s vagina, the forensic nurse testified that this was not unusual for a victim of sexual assault. Moreover, defendant could not be excluded as a possible source of the semen. Defendant was arrested with a black folding knife that matched the weapon used during the assault. Furthermore, the facts that the victim could not judge how far defendant had parked his car from a school security guard and that the victim may have lied about a previous consensual encounter did not make her story so unreliable that a reasonable jury could not have believed it.
Similarly, the evidence presented at trial did not preponderate heavily against the jury’s larceny-from-the-person verdict. The victim testified that defendant took
in
Defendant next argues that the trial court erroneously assessed 10 points for offense variable (OV) 10, MCL 777.40, when sentencing him for the CSC-I conviction. We agree and remand for resentencing with respect to the CSC-I conviction.
We review a trial court’s scoring decisions under the sentencing guidelines to determine whether the court properly exercised its discretion and whether the record adequately supports a particular score. People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009). “An appellate court must affirm minimum sentences that are within the recommended guidelines range, except when there is an error in scoring the sentencing guidelines or inaccurate information was relied on in determining the sentence.” Id.-, see also MCL 769.34(10).
Pursuant to MCL 777.40(l)(b), a trial court may assess 10 points for OV 10 if “[t]he offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status[.]” In the context of OV 10, this Court has recently defined a “domestic relationship” as “a familial or cohabitating relationship . . . .” People v Jamison, 292 Mich App 440, 447; 807 NW2d 427 (2011). This Court specifically rejected the proposition that a past dating relationship would fall within the definition of a “domestic relationship” under MCL 777.40(l)(b). Id. at 447-448.
If the trial court had properly assessed zero points rather than 10 points for OV 10, defendant’s total offense variable score would have been 35 points instead of 45 points. This would have placed defendant in cell D-II, rather than cell D-III, on the sentencing grid for class A felony offenses. MCL 777.62. The recommended minimum sentence range for offenders falling in cell D-II on the class A felony grid is 81 to 135 months in prison. Id. However, the trial court imposed a minimum sentence of 144 months in prison in this case. This minimum sentence fell outside defendant’s correct guidelines range of 81 to 135 months. Because defendant’s minimum sentence was based on an erroneous interpretation of OV 10 and fell outside the appropriate guidelines range, we vacate the sentence imposed for defendant’s CSC-I conviction and remand for resentencing. People v Francisco, 474 Mich 82, 91-92; 711 NW2d 44 (2006).
IV
Defendant also argues that the trial court erred by ordering him to submit to lifetime electronic monitoring following his release from prison. We disagree.
With respect to an individual convicted of CSC-I, MCL 750.520b(2)(d) provides in pertinent part that “[i]n addition to any other penalty imposed .. ., the court shall sentence the defendant to lifetime electronic monitoring under section 520n.” In turn, MCL 750.520n(l) provides that “[a] person convicted under section 520b or 520c for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age shall be sentenced to lifetime electronic monitoring .. . .”
Defendant contends that, pursuant to MCL 750.520b(2)(d) and MCL 750.520n(l), a trial court must order a defendant who is convicted of CSC-I to submit to lifetime electronic monitoring only if the defendant was 17 years old or older and the victim was less than 13 years old. Because the victim in this case was 21 years old when defendant sexually assaulted her, defendant asserts that he should not have been subjected to lifetime electronic monitoring. Defendant’s argument is compelling. Indeed, as the dissent points out, several panels of this Court have agreed with that interpretation and held that lifetime electronic monitoring is required for a CSC-I conviction only if the defendant was 17 years old or older and the victim was less than 13 years old. See People v Floyd, unpublished opinion per curiam of the Court of Appeals, issued September 20, 2011 (Docket No. 297393); People v Quintana, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket No. 295324); People v Hampton, unpublished opinion per curiam of the Court
Taken alone, the language of MCL 750.520n(l) does seem to indicate that a trial court must order a defendant who is convicted of CSC-I to submit to lifetime electronic monitoring only if the defendant was 17 years old or older and the victim was less than 13 years old. However, having examined this provision in context and compared it to MCL 750.520c, we conclude that the Legislature intended the modifying phrase “for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age” to apply to convictions of second-degree criminal sexual conduct (CSC-II) under MCL 750.520c only, and not to convictions of CSC-I under MCL 750.520b. Under the “last antecedent” rule, a modifying or restrictive word or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent unless something in the statute requires a different interpretation. Duffy v Dep’t of Natural Resources, 490 Mich 198, 220-221; 805 NW2d 399 (2011); see also People v Henderson, 282 Mich App 307, 328; 765 NW2d 619 (2009). Within the text of MCL 750.520n(l), the last antecedent preceding the modifying phrase “for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age” is “[§] 520c,” indicating that the Legislature intended the phrase to modify “[§] 520c” only.
v
We affirm defendant’s convictions. We also affirm the trial court’s imposition of lifetime electronic monitoring on the basis of defendant’s CSC-I conviction.
We vacate defendant’s sentence of 12 to 40 years in prison and remand for resentencing with respect to defendant’s CSC-I conviction. The trial court shall modify the sentencing information report to indicate defendant’s correct minimum sentence range under the guidelines and shall enter an amended judgment of sentence after resentencing.
Affirmed in part, vacated in part, and remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
In light of our conclusion in this regard, we reject defendant’s argument that his attorney rendered ineffective assistance of counsel by failing to object to the trial court’s imposition of lifetime electronic monitoring. It is well settled that counsel is not ineffective for failing to advocate a meritless position or make a futile objection. People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003); People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000).