Opinion
No. 348013
06-18-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHARLES EUGENE DAMOTH, II, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Tuscola Circuit Court
LC No. 18-014387-FC Before: GLEICHER, P.J., and SAWYER and METER, JJ. PER CURIAM.
A jury convicted defendant of six counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1), and four counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1), under alternate theories. The trial court sentenced defendant to six prison terms of 15 to 60 years for the CSC-I convictions, and four terms of 10 to 15 years for the CSC-II convictions. The court ordered that one of defendant's CSC-I sentences be served consecutive to his remaining sentences, which are to be served concurrently. Defendant appeals as of right. We affirm.
I. FACTUAL OVERVIEW
Defendant was convicted of sexually assaulting PK, a 42-year-old developmentally disabled person, in his camper trailer in Cass City on January 18, 2018. The prosecution presented evidence that defendant and PK met while both worked at an organization that provided job training for the developmentally disabled. Over time, defendant, a regular worker, and PK, one of the organization's "consumers," became Facebook friends and exchanged electronic messages. PK also sent defendant partially nude photographs upon his request. At one point, defendant told PK that she needed to "stop being a little girl." On January 18, PK's father dropped her off at a local high school to watch basketball games with her friends, who were teenagers. PK and defendant exchanged texts and then PK went outside, where defendant was waiting in his truck. PK believed they were going for a drive, but defendant drove her to his camper trailer in Cass City, which was approximately 45 minutes away. Once inside the camper, they kissed and defendant removed PK's bra, pants, and underwear. He touched and licked her breasts and vagina, and forced her to perform oral sex on him. He also digitally penetrated her vagina, which caused extreme pain, and then penetrated her vagina with his penis, causing vaginal bleeding. Throughout the events, PK was scared and wanted defendant to stop. Defendant ultimately ejaculated on PK's stomach, told her to eat it, and when she refused he cleaned it up with a paper towel. Evidence was presented that the police found a paper towel in the garbage next to defendant's bed that contained defendant's DNA and PK's blood. After getting dressed, defendant took PK back to the high school. PK told her friends what happened, and someone told PK's father, who contacted the police.
The defense's theory at trial was that defendant and PK wanted to have a relationship, but her father, who is PK's legal guardian, prohibited her from dating. Defendant testified that on January 18, after communicating with each other and planning to meet, PK voluntarily got into his truck, was affectionate toward him during the drive to Cass City, and, once inside his camper, they engaged in consensual sex. Afterward, defendant drove PK, who was happy and smiling, back to the school. Medical evidence was presented that PK did not have any vaginal trauma, bruising, or other injuries. Defendant testified that PK was "slow," but she was not developmentally disabled and she knew what they were doing, but her father was upset about their consensual relationship.
II. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that the prosecution did not present sufficient evidence to prove beyond a reasonable doubt the theories that PK suffered a personal injury or was mentally incapable to sustain his convictions of CSC-I and CSC-II. We disagree.
We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich App 703, 713; 873 NW2d 855 (2015). When ascertaining whether sufficient evidence was presented at trial to support a conviction, we must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury's verdict." People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Defendant was convicted of six counts of CSC-I, MCL 750.520b, and four counts of CSC-II, MCL 750.520c, on the basis of two alternate theories of CSC. The jury did not have to be unanimous on either of the alternate theories. See People v Asevedo, 217 Mich App 393, 397; 551 NW2d 478 (1996). As applicable to this issue, a "person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person" and either "causes personal injury to the victim and force or coercion is used to accomplish sexual penetration," MCL 750.520b(1)(f), or "causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless," MCL 750.520b(1)(g). A "person is guilty of criminal sexual conduct in the second degree if he or she engages in sexual contact with another person" and either "causes personal injury to the victim and force or coercion is used to accomplish the sexual contact," MCL 750.520c(1)(f), or "causes personal injury to the victim, and the actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless," MCL 750.520c(1)(g).
Defendant argues only that there was insufficient evidence to prove the theories that PK suffered a "personal injury" and was "mentally incapable" to sustain the CSC-I and CSC-II convictions. "[P]ersonal injury" is defined to include both a "bodily injury" and "mental anguish." MCL 750.520a(n). Mental anguish consists of "extreme or excruciating pain, distress, or suffering of the mind." People v Petrella, 424 Mich 221, 259; 380 NW2d 11 (1985). Bodily injury and mental anguish are different aspects of the single element of personal injury and only one need be proven. Asevedo, 217 Mich App at 397. Viewed in a light most favorable to the prosecution, the evidence that defendant's digital penetration of PK's vagina caused PK to experience extreme pain, which she described as "ten" on a scale of "1 to 10," that defendant's subsequent penile penetration of her vagina caused bleeding, and that, after the assault, she was still very nervous, stressed, tearful, and afraid that defendant may "come see [her]," was sufficient for a jury to have found that defendant caused personal injury on the basis of either bodily injury or mental anguish.
Further, a victim is "[m]entally incapable" when she "suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct." MCL 750.520a(j). PK's mother, one of PK's legal guardians, explained that the basis for the guardianship was that PK was diagnosed with "mental retardation," "incapable of making rational decisions," and being "totally without capacity to care for her person as to [her] responsibilities and judgments." There was expert testimony that PK's demeanor was "typical of a child" between the ages of "8 to 12 years old." PK, who described herself as "slow," testified that she was felt scared during the assault and "didn't know what was going on." This evidence, viewed in a light most favorable to the prosecution, was sufficient to enable a jury to reasonably conclude beyond a reasonable doubt that PK was mentally incapable for purposes of the criminal sexual conduct statutes. Consequently, the evidence was sufficient to sustain defendant's convictions of CSC-I and CSC-II.
III. JURY INSTRUCTIONS
In his next claim, defendant argues that he was denied his constitutional right to a properly instructed jury because the trial court omitted the reasonable doubt instructions, and "substituted" the theory of force or coercion for the personal injury "theory." Again, we disagree.
Defendant did not object to the trial court's jury instructions. Therefore, this issue is unpreserved and defendant must demonstrate a plain error affecting his substantial rights. People v Carines, 460 Mich 750, 752-753, 763-764; 597 NW2d 130 (1999).
Preliminarily, defendant's substantive claim of instructional error is waived. After the trial court completed its final instructions and the jury was excused to begin deliberations, the court asked the parties whether they had "[a]ny objections to the reading of the instructions." Defense counsel stated, "No objections, Your Honor." By expressly approving the jury instructions, defendant waived review of his substantive claim of instructional error. People v Kowalski, 489 Mich 488, 504; 803 NW2d 200 (2011). Defendant's waiver extinguished any error, leaving no error to review. People v Carter, 462 Mich 206, 216; 612 NW2d 144 (2000).
Defendant alternatively argues that defense counsel was ineffective for not objecting to the trial court's instructions. Because defendant failed to raise this ineffective-assistance claim in the trial court, our review of that claim is limited to mistakes apparent from the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). "To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice." People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). "To demonstrate prejudice, a defendant must show the probability that, but for counsel's errors, the result of the proceedings would have been different." Id. "A defendant must meet a heavy burden to overcome the presumption that counsel employed effective trial strategy." People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).
Whether it was objectively unreasonable for defense counsel to fail to object to the trial court's jury instructions depends on whether the court's instructions fairly presented the issues and sufficiently protected defendant's substantial rights. Due process requires that the trial court "properly instruct the jury so that it may correctly and intelligently decide the case." People v Clark, 453 Mich 572, 584-585; 556 NW2d 820 (1996). Jury instructions are, however, reviewed in their entirety to determine whether any error requiring reversal occurred. Kowalski, 489 Mich at 501. An imperfect instruction will not warrant reversal if the instructions, examined as a whole, fairly presented the issues to be tried and sufficiently protected the defendant's rights. Id. at 501-502.
The trial court's instructions, viewed in their entirety, fairly presented the elements necessary to establish CSC-I and CSC-II. The alternate theories were that PK was personally injured and defendant used force or coercion to commit the assaults, MCL 750.520b(1)(f), or that she was personally injured and was mentally incapable when she was assaulted, MCL 750.520b(1)(g). Both theories required a showing of personal injury, and the crux of the alternative theories required the jury to determine whether PK was mentally incapable or that defendant used force or coercion to accomplish the charged sexual penetration and contact. In presenting the alternate theories, the trial court focused on the elements that were, in fact, alternative, i.e., PK being "mentally incapable" or defendant using force or coercion. Although personal injury was an element of both alternate theories, the trial court had already instructed the jury, for each count, that personal injury was an element of each charged offense. Consequently, it was not objectively unreasonable for defense counsel not to object to the trial court's instructions because, viewing the jury instructions as a whole, they clearly informed the jury, multiple times, that defendant could not be convicted of the charged offenses unless the jury found beyond a reasonable doubt that defendant caused personal injury.
Defendant also argues that, in the final instructions, the trial court impermissibly omitted the reasonable doubt instructions. The record clearly discloses, however, that the trial court instructed the jury on reasonable doubt, including that the jury must find "each of the following elements beyond a reasonable doubt" as it instructed on each of the charged offenses.
In sum, because defendant's challenges to the jury instructions are without merit, he cannot show that counsel's failure to object to the instructions was objectively reasonable. Further, because the trial court's instructions, viewed in their entirety, demonstrate that the court fairly presented the elements necessary to establish CSC-I and CSC-II, and that the prosecution was required to prove those elements beyond a reasonable doubt, defendant cannot show that he was prejudiced by counsel's failure to object. Nix, 301 Mich App at 207. Accordingly, defendant's alternative ineffective-assistance claim must fail.
IV. SCORING OF OFFENSE VARIABLES
Defendant argues that he is entitled to resentencing because the trial court erroneously scored offense variable (OV) 2, OV 3, OV 4, and OV 10 of the sentencing guidelines. We disagree.
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, 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.
Defendant challenges the scoring of the sentencing guidelines for CSC-I, which is a class A offense, MCL 777.16y, governed by the sentencing grid at MCL 777.62. According to the Sentencing Information Report, defendant received a total offense variable score of 105 points, placing him in OV Level VI (100+ points), and a prior record variable (PRV) score of 20 points, placing him in PRV Level C (10-24 points). These scores resulted in a sentencing guidelines range of 135 to 225 months. MCL 777.62. The trial court sentenced defendant within this range to a minimum term of 180 months for the CSC-I convictions.
A. OV 2
OV 2 "is lethal potential of weapon possessed or used," MCL 777.32(1), and five points are to be scored if the offender "possessed or used a pistol . . . ." MCL 777.32(1)(d). Factual support for a sentencing guidelines scoring decision need only be established by a preponderance of the evidence. People v Anderson, 322 Mich App 622, 634; 912 NW2d 607 (2018). According to defendant's presentence investigation report, during a search of defendant's camper where the offense took place, the police recovered a loaded firearm from a compartment at the head of defendant's bed, which is where the sexual assault took place. This evidence supports the trial court's assessment of five points for OV 2.
When calculating scores under the sentencing guidelines, a trial court may consider all the evidence in the trial court record. People v Dickinson, 321 Mich App 1, 21; 909 NW2d 24 (2017).
B. OV 3
OV 3 considers physical injury to a victim. MCL 777.33(1). A score of 10 points is appropriate if "[b]odily injury requiring medical treatment occurred to a victim." MCL 777.33(1)(d). Conversely, only five points are to be scored when "[b]odily injury not requiring medical treatment occurred to a victim." MCL 777.33(1)(e). 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).
At trial, PK testified that when defendant digitally penetrated her vagina, it caused extreme pain. Pain can be an indication of physical injury if there is record evidence of pain. People v Endres, 269 Mich App 414, 417-418; 711 NW2d 398 (2006), overruled in part on other grounds in Hardy, 494 Mich at 438 n 18. Defendant's subsequent penile penetration of PK's vagina caused vaginal bleeding. Defendant wiped the blood with a paper towel, and the police later recovered from the trash in defendant's camper a paper towel that tested positive for PK's blood. This constituted evidence of "some unwanted physically damaging consequence." McDonald, 293 Mich App at 298.
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 an examination by a sexual assault nurse examiner ("SANE"). Id. This Court noted that there was no testimony that the complainant received any medical treatment, other than the taking of DNA samples. Id. 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, a SANE performed a forensic physical examination for purposes of preparing a SANE report. The examining nurse testified that there were no injuries, including no vaginal trauma, and there is no indication that she provided any medical treatment related to an injury. The nurse explained that it is not uncommon to not find a vaginal injury because the vagina heals itself within one or two hours if the trauma is not significant. Although there was evidence that PK suffered a bodily injury during the assault, the SANE's findings and explanation underscore that the injury did not require medical treatment. Therefore, as in Armstrong, the trial court erred by assigning 10 points to OV 3. MCL 777.33(1)(d). Instead, the evidence supports only a five-point score for OV 3 on the basis that PK suffered a bodily injury that did not require medical treatment. MCL 777.33(1)(e).
Although the trial court erroneously assigned a 10-point score, instead of five points, to OV 3, this scoring error does not entitle defendant to resentencing. A score of only five points, rather than 10 points, would decrease defendant's total OV points from 105 to 100, and thus would not change his placement in OV Level VI (100+ points). MCL 777.62. Because this scoring error does not affect defendant's sentencing guidelines range, defendant is not entitled to resentencing. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006); People v Biddles, 316 Mich App 148, 156; 896 NW2d 461 (2016).
C. OV 4
OV 4 addresses psychological injury to a victim, MCL 777.34(1), and the trial court is required to score 10 points for OV 4 if a "[s]erious psychological injury requiring professional treatment occurred to a victim." MCL 777.34(1)(a). As detailed in the lower court record and observed by the trial court, a mental health therapist testified that PK was diagnosed with "generalized anxiety disorder" relating to the January 2018 incident, and she has been in treatment. In addition, PK's mother testified that since January 2018, PK "is more anxious, more on edge," and attends counseling. She further testified that when PK talks about the incident, she is "[v]ery anxious, nervous, scared." PK's father testified that she "[j]ust shuts down" when this incident is raised, and attends counseling because of the incident. PK testified that she is afraid that defendant "might get out of jail" and "come see [her]," and that she was in counseling, talks about what happened "because it makes her feel better talking about it," and is learning ways to deal with the stress. In a victim-impact statement, PK stated that she "had sleepless night [sic]. What him did to me." These statements provided a reasonable basis for the trial court to conclude that PK suffered a serious psychological injury. Consequently, the trial court did not clearly err by finding that the evidence supported a 10-point score for OV 4.
D. OV 10
OV 10 addresses exploitation of a vulnerable victim, and the trial court must score 15 points if "[p]redatory conduct was involved." MCL 777.40(1)(a). " 'Predatory conduct' means preoffense conduct directed at a victim . . . for the primary purpose of victimization." MCL 777.40(3)(a). Predatory conduct encompasses "only those forms of 'preoffense conduct' that are commonly understood as being 'predatory' in nature . . . 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.' " People v Huston, 489 Mich 451, 462; 802 NW2d 261 (2011) (citation omitted). In order to find that a defendant engaged in predatory conduct, a trial court must conclude that (1) the defendant engaged in preoffense conduct, (2) the defendant directed that conduct toward "one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation[,]" and (3) the defendant's primary purpose in engaging in the preoffense conduct was victimization. People v Cannon, 481 Mich 152, 161-162; 749 NW2d 257 (2008).
A preponderance of the evidence clearly supports that defendant engaged in preoffense conduct directed at PK with the intent to victimize her by sexually exploiting her. The evidence showed (1) that defendant engaged in preoffense conduct that included establishing a relationship with PK, exchanging messages with her on Facebook, telling her to "stop being a little girl" and to become a "big woman," and requesting that she send him partially nude photos; (2) that defendant's preoffense conduct was directed specifically toward PK, who defendant knew suffered from a readily apparent developmental disability that made her susceptible to persuasion and manipulation; and (3) that defendant's primary purpose in engaging in his preoffense conduct was victimization, i.e., to enable him to create a situation where he would be able to sexually exploit PK, which he accomplished. Consequently, the evidence supports the 15-point score for OV 10.
V. CONSECUTIVE SENTENCES
In his last claim, defendant challenges the trial court's decision to order that one of his sentences for CSC-I be served consecutive to his other nine sentences, which are to be served concurrently. We disagree.
"In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute." People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012) (citation and quotation marks omitted). Defendant acknowledges that MCL 750.520b(3) authorized the trial court to impose a consecutive sentence. Defendant's argument is that the trial court failed to give particularized reasons for the imposition of a consecutive sentence. "[T]he decision to impose a consecutive sentence when not mandated by statute is reviewable for an abuse of discretion." People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195 (2016). A trial court abuses its discretion by choosing an outcome that falls outside the range of reasonable and principled outcomes. Id. at 654. To facilitate appellate review, a trial court must "articulate on the record the reasons for each consecutive sentence imposed." Id. The court is required to "give particularized reasons" when imposing a consecutive sentence. Id. at 666.
We note that MCL 750.520b(3) permits a trial court to impose a consecutive sentence, but does not require the imposition of a consecutive sentence.
The trial court's reasons, considered in conjunction with the Legislature's express authorization of consecutive sentencing, were sufficient to demonstrate an outcome within the range of reasonable and principled outcomes under the circumstances of this case. The trial court expressed the need for a consecutive sentence because defendant is "a predator of the worst kind." The court reasoned that defendant had been and would be a threat to the community, emphasizing that there had been "a plethora of other—other people" "in similar situations to" the victim from defendant's employment at Cass Valley Enterprises that defendant "preyed upon, potentially preyed upon and/or victimized[.]" In addition, the trial court reasoned that defendant's continued insistence that "this was a normal type of dating relationship" and claimed unawareness that, mentally, the victim was akin to a "12-or 13-year-old little girl" was "mind blowing" to the court. In finding defendant's claims incredulous, the trial court also discussed how defendant handled his interactions with PK, and how he may have progressed had he intended to actually properly date her, as he claimed. It is apparent that the trial court considered the offenses and the offender, and sufficiently articulated its reasons for imposing a consecutive sentence and explained why a consecutive sentence was appropriate under the circumstances.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Patrick M. Meter