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holding that there was sufficient evidence of penetration where the complainant "testified that [defendant's] 'private' was touching where she would use tissue while wiping after urination, and that she experienced pain going into her 'private parts.'"
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Docket Nos. 296747 296848.
2012-01-10
PEOPLE v. LOCKETT. People v. Johnson.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jason W. Williams, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Michael L. Mittlestat) for Ashanti B. Lockett.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jason W. Williams, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Michael L. Mittlestat) for Ashanti B. Lockett.
Neil J. Leithauser, Huntington Woods, for Tadarius R. Johnson.
Before: Meter, P.J., and Cavanagh and Servitto, JJ.
PER CURIAM.
Defendant Ashanti Bryant Lockett appeals as of right from his convictions by a jury of first-degree criminal sexual conduct (CSC–I), MCL 750.520b(1)(c) (penetration under circumstances involving another felony), and accosting a minor for immoral purposes, MCL 750.145a. The trial court, applying a fourth-offense habitual offender enhancement under MCL 769.12, sentenced Lockett to 25 to 45 years' imprisonment for the CSC–I conviction and to a concurrent term of 5 to 15 years' imprisonment for the accosting conviction. Defendant Tadarius Rashard Johnson appeals as of right from his convictions by a jury of two counts of CSC–I, MCL 750.520b(1)(a) and (c) (penetration involving a person under 13; penetration under circumstances involving another felony). The trial court sentenced Johnson to concurrent terms of 25 to 37 1/2 years' imprisonment for the conviction under subdivision (a) and to 5 to 15 years' imprisonment for the conviction under subdivision (c). We affirm Johnson's conviction of CSC–I under MCL 750.520b(1)(a) and affirm Lockett's conviction of accosting a minor for immoral purposes. We reverse both defendants' convictions of CSC–I under MCL 750.520b(1)(c) and remand this case for entry of convictions on the lesser included offense of disseminating sexually explicit matter to a minor, MCL 722.675(1)(b).
I. FACTS AND PROCEDURAL HISTORY
During the early morning hours of September 6, 2009, Johnson and another man entered the home where S. (17 years old), N. (16 years old), G. (14 years old), and J. (12 years old) lived with their mother. The men entered by climbing up a metal awning outside of the building. After Johnson woke J. from her sleep, J. walked to a different room where she saw G. with another man. J. did not recognize the other man and eventually returned to her bed. J. removed her pajamas and Johnson removed his clothing and J.'s underwear. Johnson and J. attempted to have sex. J. testified that there was no penetration, but that she felt pain “where she pees” and she told Johnson to stop. Johnson stopped and got dressed. Johnson and the other man stayed until approximately 8:00 a.m. before leaving.
The girls' mother noticed damage to her awning that morning and questioned the children about it. She learned that two men had been over during the night, and she took G. and J. to the police station. J. told the police that no penetration had occurred between her and Johnson. The mother subsequently took J. to the hospital for an examination, which revealed nothing out of the ordinary. No DNA evidence was found.
G. and J. decided to run away from home with S. because of punishments imposed by their mother. S., G., and J. left their mother's home and stayed at a friend's house. Very early on September 9, 2009, S., G., and J. left the friend's house. Johnson called S. on her cellular telephone, and S. told Johnson where to pick up the girls. Johnson and Lockett arrived in a van. The girls got in and then drove with defendants to a liquor store, where defendants acquired liquor. Lockett then drove the van to a park and parked the vehicle.
The interior of the van had three rows of seats, including a driver's and passenger's seat in the front row, two “captain-style” seats in the second row, and a bench seat in the third row that had been folded down to resemble a bed. While G. and J. were seated in the van's front driver's and passenger's seats, Lockett and S. moved to the rear of the van, disrobed, and engaged in sexual intercourse. After Lockett and S. had finished, Johnson moved to the rear row of the van and engaged in sexual intercourse with S. At some point Lockett asked G. and J. to go into the rear of the van with him. J. refused, but G. eventually agreed to go. J. testified that Lockett grabbed her arm at one point while trying to persuade her to go into the back of the van with him.
Officer Michael Garrison of the Detroit Police Department was on patrol with his partner at around 1:30 a.m. on September 9 when he saw a van parked after hours in a city park. Officer Garrison saw a girl he later identified as G. sitting on a park bench near the van. As Officer Garrison approached the van, G. ran into the van. When Officer Garrison arrived at the van, he could see through the front and driver's side windows. He saw that no one was in the front seats, S. was straddling Lockett in the nude on one of the captain's seats, and Johnson and J. were lying in the rear row. J.'s shirt was pulled down and her breasts were exposed.
Lockett was eventually charged with CSC–I under MCL 750.520b(1)(c), for penetration of S. committed under circumstances involving a felony, where the felony was disseminating sexually explicit matter to J., a minor who was in plain view, under MCL 722.675(1)(b). The trial court found that there was a sufficient nexus between Lockett's sexual penetrationof S. and the crime of disseminating sexually explicit matter to J. to justify the charge of CSC–I. Lockett was also charged with accosting a minor for immoral purposes, MCL 750.145a.
Johnson was eventually charged with CSC–I under MCL 750.520b(1)(a) for penetrating J. at her home. Johnson was charged with a second count of CSC–I under MCL 750.520b(1)(c) for penetration of S. committed under circumstances involving a felony, where the felony was, as with Lockett, disseminating sexually explicit matter to J., a minor who was in plain view, under MCL 722.675(1)(b). The trial court once again found that there was a sufficient nexus between the sexual penetration of S. and the crime of disseminating sexually explicit matter to J. to justify the charge of CSC–I.
Lockett and Johnson were tried together but with separate juries. At the conclusion of the trial, both Lockett and Johnson were convicted as charged.
II. ANALYSIS
A. SEXUAL PENETRATION UNDER CIRCUMSTANCES INVOLVING ANOTHER FELONY
Defendants first argue that MCL 750.520b(1)(c) is unconstitutionally vague and that it invites arbitrary and abusive enforcement by prosecutors, police, and juries when applied to situations such as the instant one.
This Court determines de novo whether a statute is unconstitutionally vague. People v. Rogers, 249 Mich.App. 77, 94, 641 N.W.2d 595 (2001). This Court also reviews de novo issues of statutory interpretation. People v. Giovannini, 271 Mich.App. 409, 411, 722 N.W.2d 237 (2006). A statute might be unconstitutionally vague if, among other reasons, it “fails to provide fair notice of the conduct proscribed” or “is so indefinite that it confers unlimited and unstructured discretion on the trier of fact to determine whether an offense has occurred.” People v. Hrlic, 277 Mich.App. 260, 263, 744 N.W.2d 221 (2007). To determine whether a statute is unconstitutionally vague, this Court examines the entire text of the statute and gives the words of the statute their ordinary meanings. Id. The meanings of all terms contained in the statute “must be fairly ascertainable by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words.” Id. (quotation marks and citations omitted).
Defendants challenge MCL 750.520b(1)(c), which states:
(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
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(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
The plain language of the statute requires the prosecution to prove that (1) sexual penetration occurred and (2) it occurred “under circumstances involving the commission of any other felony.” This Court has previously held that there must be a sufficient nexus between the “other felony” and the sexual penetration; specifically, there must be a “direct interrelationship” between the felony and the penetration. People v. Waltonen, 272 Mich.App. 678, 691–693, 728 N.W.2d 881 (2006).
In Waltonen, this Court found that the other felony, also referred to as the underlying felony, was directly related to the sexual penetration when the defendant demanded and received sex in exchange for providing Oxycontin. Id. at 682, 693, 728 N.W.2d 881. Oxycotin contains oxycodone, a controlled substance, and the unauthorized delivery of Oxycontin is a felony. Id. at 679–680, 728 N.W.2d 881. Thus, the other felony was committed when the defendant provided the Oxycontin. Id. This Court found that the other felony and the sexual penetration were directly related because “the only reason the victim engaged in sexual penetration was to acquire the drugs,” and the controlled substance “would be delivered to the victim after the sexual act and only because of the sexual act.” Id. at 693, 728 N.W.2d 881.
In this case, the trial court found a sufficient nexus between the other felony and the sexual penetration. The court found that the other felony occurred when Lockett and Johnson engaged in sexual penetration with S. in plain view of J., a minor. Under MCL 722.675(1)(b), a person is guilty of the felony of disseminating sexually explicit matter to a minor if that person knowingly exhibits a sexually explicit performance to a minor that is harmful to the minor. The prosecution argues that there was a sufficient nexus between the sexual penetration and the other felony because the exhibition would not have occurred had there not been sexual penetration. Defendants argue, however, that the statute invites arbitrary and abusive enforcement when the victim of the other felony is not the “victim” of the sexual penetration.
Defendants point out a number of “ridiculous” circumstances in which a sexual penetration could occur during the commission of another felony. Many of the circumstances defendants cite involve situations in which the underlying felony would not have a sufficient nexus to the sexual penetration. While this Court, in discussing the broad scope of MCL 750.520b(1)(c) and urging the Legislature to revisit the statute, has previously noted that “a voluminous number of felonious acts can be found in the Penal Code,” Waltonen, 272 Mich.App. at 694 n. 8, 728 N.W.2d 881, and there may very well be a number of “ridiculous” hypothetical circumstances to which the statute could apply, defendants cannot argue that a statute is unconstitutionally vague when First Amendment freedoms are not involved and when the argument is based on hypotheticals. People v. Knapp, 244 Mich.App. 361, 374 n. 4, 624 N.W.2d 227 (2001). The focus must instead be on the specifics of the case at hand. Id. Therefore, this Court is only concerned with whether defendants' specific conduct was fairly within the constitutional scope of the statute.
For instance, a person could commit CSC–I by engaging in adultery because adultery is prohibited as a felony under MCL 750.30. See Waltonen, 272 Mich.App. at 694 n. 8, 728 N.W.2d 881.
MCL 750.520b(1)(c) prohibits engaging in sexual penetration with another person under circumstances involving the commission of any other felony, as long as that felony is directly related to the sexual penetration. Waltonen, 272 Mich.App. at 691, 728 N.W.2d 881. Arguably, the sexual penetration and the other felony were directly related in this case, because the other felony likely would not have occurred had there not been a sexual penetration. However, we find that MCL 750.520b(1)(c) unconstitutionally invites arbitrary and abusive enforcement when it is applied to situations where, as here, engaging in consensual, legal sexual penetration is elevated to CSC–I solely because a minor was present and the “victim” of the penetration was not impacted by the additional felony. When a general class of offenses is plainly within a statute's terms but marginal cases may lead to unconstitutionality, this Court has a duty to give a reasonable statutory construction to the statute to prevent the entire statute from being rendered unconstitutional. People v. Gagnon, 129 Mich.App. 678, 684, 341 N.W.2d 867 (1983). A paramount principle in statutory construction is that this Court reads the statute “as a whole” rather than reading each provision alone. People v. Jackson, 487 Mich. 783, 791, 790 N.W.2d 340 (2010). While individual words and phrases are important, they must be read in context so that the legislative intent is given effect. Id. at 790–791, 790 N.W.2d 340.
MCL 750.520b(1)(c) can be made constitutionally definite by a reasonable construction. MCL 750.520b(1) provides that “[a] person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person” and certain other conditions are met. These other conditions are subsequently set forth in eight subdivisions, MCL 750.520b(1)(a) through (h). While subdivision (a) does not use the term “victim,” there can be no dispute that this subdivision's purpose is to protect minors under 13 years of age. Subdivision (b) uses the term “other person” rather than “victim,” but immediately afterward, subparagraphs (b)( i ) through ( iii ) refer to the “other person” as “the victim.” Subdivisions (d) through (h) all refer to “the victim.” The references to “the victim” in these subdivisions clearly refer back to the language in the first sentence of subsection (1) concerning “another person.” Further, in describing the penalties for violating subsection (1), subsection (2) indicates that a violation of the statute is a crime against the other person:
Criminal sexual conduct in the first degree is a felony punishable as follows:
(a) Except as provided in subdivisions (b) and (c), by imprisonment for life or for any term of years.
(b) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any term of years, but not less than 25 years.
(c) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age, by imprisonment for life without the possibility of parole if the person was previously convicted of a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age or a violation of law of the United States, another state or political subdivision substantially corresponding to a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age. [MCL 750.520b(2).]
When this Court examines the statute's language and scheme as a whole, it is clear that when referring to “another person” in MCL 750.520b(1) the Legislature thought that “person” would be a victim and that a violation of the statute would be a crime against that “person.” It is reasonable to conclude that, in enacting MCL 750.520b(1)(c), the Legislature intended that the “circumstances involving the commission of [the] other felony” directly impact a “victim”, or recipient, of the sexual penetration.
This reading is consistent with other cases that have interpreted MCL 750.520b(1)(c). In Waltonen, this Court repeatedly referred to the other person as “the victim” of the sexual penetration. Waltonen, 272 Mich.App. at 680–693, 728 N.W.2d 881. In addition, the victim of the sexual penetration was directly impacted by the circumstances of the other felony because the defendant delivered the Oxycontin to the victim. Id. at 682, 693, 728 N.W.2d 881. In People v. Pettway, 94 Mich.App. 812, 814, 290 N.W.2d 77 (1980), the defendant was convicted of CSC–I after he broke into a home and sexually penetrated a victim. The victim of the sexual penetration was also a victim of the other felony because the victim was an occupant of the home that the defendant broke into and entered. Id. at 818, 290 N.W.2d 77. In People v. Wilkens, 267 Mich.App. 728, 736, 705 N.W.2d 728 (2005), the defendant was convicted of CSC–I after he produced sexually abusive material involving a minor. The penetration “victims” were the children with whom the defendant produced the sexually abusive material. See id. at 732, 737–738, 705 N.W.2d 728. The victims of the sexual penetration were also victims of the underlying felony because they were involved in the production of the sexually abusive material. Id.
We use quotation marks here because one of the victims was 16, i.e., above the age of consent. See Wilkens, 267 Mich.App. at 732, 705 N.W.2d 728,MCL 750.520d(1)(a) (stating that sexual penetration with another person who is at least 13 years of age and less than 16 years of age is third-degree criminal sexual conduct), and MCL 750.520e(1)(a) (stating that sexual contact with another person who is at least 13 years of age but less than 16 years of age by a person who is five or more years older than that person is fourth-degree criminal sexual conduct).
In this case, defendants were convicted of CSC–I when the underlying felony was disseminating sexually explicit matter to a minor, J., who was then 12 years old. J. was not the “victim” of the sexual penetration. Even though the “explicit matter” would not have been disseminated to J. without the sexual penetration of S., this Court cannot uphold a conviction of CSC–I when the “victim” of the sexual penetration was not impacted by the circumstances of the underlying felony. This Court reverses defendants' convictions of CSC–I under MCL 750.520b(1)(c).
B. DISSEMINATING SEXUALLY EXPLICIT MATTER TO A MINOR
Defendants next argue that there was insufficient evidence to convict each of them of the underlying felony of disseminating sexually explicit matter to a minor under MCL 722.675(1)(b). This Court reviews de novo challenges to the sufficiency of the evidence to determine whether “any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.” People v. Cline, 276 Mich.App. 634, 642, 741 N.W.2d 563 (2007) (quotation marks and citation omitted). This Court resolves all conflicts regarding the evidence in favor of the prosecution, and “[c]ircumstantial evidence and reasonable inferences drawn from it may be sufficient to prove the elements of the crime.” Wilkens, 267 Mich.App. at 738, 705 N.W.2d 728.
MCL 722.675(1) provides that
[a] person is guilty of disseminating sexually explicit matter to a minor if that person ...
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(b) [k]nowingly exhibits to a minor a sexually explicit performance that is harmful to minors.
MCL 722.671(b) defines “disseminate” as “to sell, lend, give, exhibit, show, or allow to examine....” “Exhibit” is defined, in part, as “[p]resent a performance,” MCL 722.671(c)( i ), and “ ‘sexually explicit performance’ means a motion picture, video game, exhibition, show, representation, or other presentation that, in whole or in part, depicts nudity, sexual excitement, erotic fondling, sexual intercourse, or sadomasochistic abuse,” MCL 722.673(g). Therefore, a defendant violates MCL 722.675 (1)(b) if he or she knowingly exhibits to a minor a depiction of nudity, sexual excitement, erotic fondling, sexual intercourse, or sadomasochistic abuse that is harmful to minors.
When viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that defendants violated MCL 722.675(1)(b). Defendants knew that J. was present in the van when each of them disrobed and engaged in sexual intercourse with S. Defendants argue that they were not “exhibiting” because each defendant and S. moved to the back of the van and they were not attempting to stage a performance or make their efforts visible. Defendants also note that J. testified that it was “hard to see back there” and that she only looked there once. However, given the age of J. and her close proximity to the sexual acts, a jury could have reasonably inferred that defendants were presenting a performance that J. could see and that they knew J. was a minor. A reasonable juror could have found that even though defendants and S. moved to the back of the van, they were still exhibiting to a minor a sexually explicit performance that was harmful to the minor. There was sufficient evidence to convict defendants of disseminating sexually explicit matter to a minor under MCL 722.675(1)(b).
“[W]hen a conviction for a greater offense is reversed on grounds that affect only the greater offense,” this Court may remand for entry of judgments of conviction on necessarily included lesser offenses. People v. Bearss, 463 Mich. 623, 631, 625 N.W.2d 10 (2001) (quotation marks and citation omitted). “A necessarily included lesser offense” is an offense whose elements are subsumed within the elements of a greater offense. People v. Wilder, 485 Mich. 35, 41, 780 N.W.2d 265 (2010). When evaluating whether an offense is a lesser included offense, the crimes are to be analyzed with an eye toward how the crimes were actually charged. See id. at 45, 780 N.W.2d 265. “As long as the elements at issue are subsumed within the charged offense, the crime is a necessarily included lesser offense.” Id. at 44, 780 N.W.2d 265.
Defendants were charged with committing CSC–I, MCL 750.520b(1)(c), by sexually penetrating S. while committing the felony of disseminating sexually explicit matter to a minor, MCL 722.675(1)(b). Because a jury could not have convicted defendants on the charged counts of CSC–I under MCL 750.520b(1)(c) without determining that defendants also committed the underlying felony, the underlying felony is a necessarily included lesser offense. Thus, we remand this case for entry of convictions on defendants' lesser included offenses under MCL 722.675(1)(b).
C. LOCKETT'S SENTENCING GUIDELINES
Lockett argues that the trial court incorrectly assessed 10 points for offense variable (OV) 4 (psychological injury to victim), 15 points for OV 10 (exploitation of vulnerable victim), and 10 points for OV 14 (offender's role). This Court reviews a trial court's scoring of a sentencing guidelines variable for clear error. People v. Hicks, 259 Mich.App. 518, 522, 675 N.W.2d 599 (2003). A scoring decision is not clearly erroneous if the record contains “ any evidence in support of the decision.” Id. (quotation marks and citations omitted).
We agree that the court incorrectly assessed 10 points for OV 4. OV 4 asks the court to determine whether a serious psychological injury requiring professional treatment occurred to a victim. MCL 777.34. The court properly assesses 10 points when a victim suffers a serious psychological injury that might require professional treatment. MCL 777. 34(2). The fact that the victim did not seek professional treatment is not conclusive when scoring the variable. MCL 777.34(2); Wilkens, 267 Mich.App. at 740, 705 N.W.2d 728. There must be some evidence of psychological injury on the record to justify a 10–point score. Hicks, 259 Mich.App. at 535, 675 N.W.2d 599.
The record is devoid of evidence to indicate whether J. suffered a serious psychological injury. There was no testimony indicating that J. suffered a psychological injury, the presentence report contains no information that would indicate any victims suffered psychological harm, and the record does not include a victim-impact statement. The trial court's entire statement on the matter was that “[c]learly this type of situation, looking at the whole circumstances of the sexual situation with the sisters being involved, and these two defendants, would cause any normal person of that age serious psychological injury; whether there was treatment or not, is not an issue.” The trial court may not simply assume that someone in the victim's position would have suffered psychological harm because MCL 777.34 requires that serious psychological injury “ occurred to a victim.” (Emphasis added.) This Court cannot find any evidence to support the trial court's decision to assess 10 points for OV 4.
Lockett also argues that the trial court incorrectly assessed 15 points for OV 10. OV 10 addresses the exploitation of a vulnerable victim. MCL 777.40. The court must assess 15 points when “[p]redatory conduct was involved [.]” MCL 777.40(1)(a). “Predatory conduct” means conduct that occurred before the commission of the offense and that was directed at the victim for the primary purpose of victimization. MCL 777.40(3)(a); People v. Cannon, 481 Mich. 152, 160–161, 749 N.W.2d 257 (2008).
Evidence on the record supports the trial court's decision to assess Lockett 15 points for OV 10. Lockett picked up J. in the middle of the night in his van. Lockett drove to a liquor store to purchase alcohol. He then drove the van to a city park and parked it. Because of J.'s young age, she was susceptible to injury, physical restraint, or temptation. Moreover, given Lockett's actions that night, it is a reasonable inference that victimization was his primary purpose for engaging in the preoffense conduct. The trial court correctly scored OV 10.
Finally, Lockett argues that the trial court erroneously assessed 10 points for OV 14. A trial court appropriately assesses 10 points for OV 14 when the defendant was a leader in a multiple-offender situation. MCL 777.44(1)(a); People v. Apgar, 264 Mich.App. 321, 330, 690 N.W.2d 312 (2004). The entire criminal episode must be evaluated to determine whether a defendant was a leader. MCL 777.44(2)(a); Apgar, 264 Mich.App. at 330, 690 N.W.2d 312.
Lockett argues that it was Johnson who had the preexisting relationship and contact with the girls and who coordinated with S. regarding when and where to pick the girls up, and that even though Lockett was older than Johnson, none of the participants showed Lockett any deference based on his age. While we agree that there are facts that may indicate that Johnson was a leader, our review is limited to an evaluation for clear error, and a scoring decision is not clearly erroneous if the record contains any evidence supporting the decision. Hicks, 259 Mich.App. at 522, 675 N.W.2d 599. Lockett was 35 and Johnson was 18, making Lockett significantly older than Johnson; Lockett owned and drove the van in which he picked the girls up and in which the sexual acts occurred; and it is reasonable to assume that Lockett purchased the alcohol. The trial court noted that Johnson “ could not even have done all this on his own, with the lack of aid, and the van.” There is evidence on the record to support the trial court's determination that Lockett was a leader in this situation.
D. ACCOMPLICE CAUTIONARY INSTRUCTION
Defendants next argue that the trial court abused its discretion when it failed to give the jury the accomplice cautionary instruction and instead only gave the jury the immunity instruction regarding S.'s testimony. A trial court's decision whether to give a cautionary accomplice instruction is reviewed for an abuse of discretion. People v. Young, 472 Mich. 130, 135, 693 N.W.2d 801 (2005). “An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.” People v. Unger, 278 Mich.App. 210, 217, 749 N.W.2d 272 (2008).
Jury instructions are to be read as a whole and, even if somewhat imperfect, no error exists if the instructions fairly presented the issues to be tried and sufficiently protected the defendant's rights. People v. Bell, 209 Mich.App. 273, 276, 530 N.W.2d 167 (1995). For reversal to be warranted based on the absence of a cautionary accomplice instruction, a defendant has the burden to show that it was more probable than not that the error affected the outcome of the proceedings. Young, 472 Mich. at 141–142, 693 N.W.2d 801.
The trial court refused to give both the immunity instruction contained in CJI2d 5.13 and the accomplice instruction contained in CJI2d 5.6 because it determined that providing both instructions would be “very confusing to the jury,” and instead it let defendants choose which of the two instructions was to be given. We conclude that the trial court did not abuse its discretion in denying the request to have both instructions presented because the instructions as given fairly presented the issues to the jury and sufficiently protected defendants' rights. The primary purpose of both instructions is to raise the jury's awareness of the potential ulterior motives of the witness. Both the accomplice and immunity instructions caution the jury that the witness may have some reason not to testify truthfully. The immunity instruction's cautions about S.'s credibility were extensive enough to sufficiently protect defendants' rights. Defendants have also failed to establish that a difference in jury instructions would have affected the outcome of the case, given that S.'s testimony that she had sexual intercourse with each defendant in the back of the van was supported by other testimony, including the testimony of J. and Officer Garrison.
Johnson also argues that he was denied the effective assistance of counsel when his trial counsel chose the immunity instruction instead of the accomplice instruction. We disagree. Unpreserved issues concerning ineffective assistance of counsel are reviewed for errors apparent on the record. People v. Rodriguez, 251 Mich.App. 10, 38, 650 N.W.2d 96 (2002). “If the record does not contain sufficient detail to support defendant's ineffective assistance claim, then he has effectively waived the issue.” People v. Davis, 250 Mich.App. 357, 368, 649 N.W.2d 94 (2002). The determination whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and constitutional law. People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002). The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Id.
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. See id. at 578, 640 N.W.2d 246. To establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. People v. Davenport, 280 Mich.App. 464, 468, 760 N.W.2d 743 (2008). A defendant must also show that the result that did occur was fundamentally unfair or unreliable. Id.
There is no evidence on the record to support Johnson's contention that his trial counsel's performance was objectively unreasonable, and there is no evidence on the record to support Johnson's contention that the result of the proceedings would have been different had his trial counsel chosen the accomplice instruction over the immunity instruction.
E. SEXUAL PENETRATION OF A CHILD UNDER AGE 13
Johnson argues that the prosecution presented insufficient evidence to support his conviction of CSC–I under MCL 750.520b(1)(a) (penetration of a person under age 13). The elements of CSC–I under MCL 750.520b(1)(a) are that (1) the defendant engaged in sexual penetration with another person and (2) the other person was under 13 years of age. People v. Hammons, 210 Mich.App. 554, 556–557, 534 N.W.2d 183 (1995). “ ‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body....” MCL 750.520a(r). Johnson does not contest the second element,that J. was 12 years old at the time of the alleged penetration. Johnson argues that because J. repeatedly denied that penetration occurred, no rational trier of fact could have found beyond a reasonable doubt that he engaged in sexual penetration with J. We disagree.
J. did deny that any penetration occurred. However, J. was not given the legal definition of “penetration.” According to the law, “penetration” is any intrusion, however slight, into the vagina or the labia majora. Id.; People v. Whitfield, 425 Mich. 116, 135 n. 20, 388 N.W.2d 206 (1986). J. testified that she and Johnson were attempting to have sexual intercourse and that Johnson's “private” was touching her “private.” She testified that Johnson's “private” was touching where she would use tissue while wiping after urination, and that she experienced pain going into her “private parts.”
When viewing J.'s testimony in the light most favorable to the prosecution, the jury could have reasonably inferred that Johnson's penis intruded, however slightly, into J.'s vagina or labia majora. Because a rational trier of fact could have found that Johnson engaged in sexual penetration with J., we affirm Johnson's conviction of CSC–I for engaging in sexual penetration with a person under 13 years of age.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.