856 N.W.2d 222 (Mich.App. 2014), 310367, People v. Gaines

• Judge: Before: WILDER, P.J., and FITZGERALD and MARKEY, JJ.
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LOGAN SCOTT GAINES, Defendant-Appellant
• Date: 05 August 2014
• Citation: 856 N.W.2d 222,306 Mich.App. 289
• Court: Court of Appeal of Michigan — District of US
• Docket Number: 310369,310367,310368

Page 222

856 N.W.2d 222 (Mich.App. 2014)

306 Mich.App. 289

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v.

LOGAN SCOTT GAINES, Defendant-Appellant

No. 310367, No. 310368, No. 310369

Court of Appeals of Michigan

August 5, 2014

Editorial Note:

This opinion is subject to revision before final publication in the Michigan Court of Appeals reports.

Saginaw Circuit Court. LC No. 10-035017-FH. Saginaw Circuit Court. LC No. 10-035018-FH. Saginaw Circuit Court. LC No. 10-035019-FH.

For PEOPLE OF MI, PLAINTIFF-APPELLEE: RANDY L PRICE, SAGINAW, MI.

For GAINES LOGAN SCOTT, DEFENDANT-APPELLANT: JOHN F ROYAL, DETROIT, MI.

Before: WILDER, P.J., and FITZGERALD and MARKEY, JJ.

OPINION

Wilder, P.J.

Defendant appeals as of right his convictions following a jury trial of three consolidated cases. In Saginaw Circuit Court Case No. 10-035017-FH, defendant was convicted of accosting, enticing, or soliciting a child (CP) for immoral purposes, MCL 750.145a, and sentenced to 13 months to 4 years in prison. In Case No. 10-035018-FH, defendant was convicted of third-degree criminal sexual conduct (CSC-III) against AW, MCL 750.520d(1)(a) (sexual intercourse with a 13 to 15-year-old victim), and sentenced to 4 to 15 years in prison. In Case No. 10-035019-FH, defendant was convicted of three counts of CSC-III against MM (digital penetration with a 13 to 15-year-old victim) and accosting a child (MM) for immoral purposes, and sentenced to 4 to 15 years in prison for the CSC-III convictions and 13 months to 4 years for the accosting conviction. We affirm defendant's convictions, but vacate the portion of the judgment of sentence awarding restitution and remand to the trial court for amendment of the restitution award in the judgment of sentence.

I

The cases against defendant arose out of his interactions with AW, CP, and MM in his senior year of high school (2008-2009) and the year following his graduation, when he was 18 or 19 years old. In defendant's senior year, he met AW. AW testified that she really got to know defendant during the 2009 track season, when she was 15 years old. They both attended a bonfire, which defendant testified was in May 2009. According to AW, they left the bonfire, went to defendant's parents' house, and had " consensual" sexual intercourse in defendant's basement bedroom. Defendant claimed they only " made out."

MM met defendant after defendant had graduated in October 2009. MM was 13 or 14 years old. MM testified that she and defendant exchanged text messages, and that, at first, their text messages were not personal. MM testified that in November or December 2009, defendant asked for photographs of MM, and that, later, defendant asked for photographs with her clothes off. MM explained she first sent photographs of her buttocks and stomach, but when defendant asked for photographs of her breasts and vagina, she sent them.¹

The record demonstrated that MM also visited defendant's parents' house on several occasions. MM testified that, in May 2010, defendant " fingered" MM in his basement by putting his finger in her vagina for three to five minutes. About a week later, MM asked defendant to hang out. He picked up MM and her friend, Sarah Cramer. MM testified that defendant digitally penetrated her when Cramer went to the bedroom to talk on the phone. Although Cramer came out of the bedroom while defendant was digitally penetrating her, MM testified that she did not think Cramer knew what was happening because defendant's back was to Cramer and the lights and television were off.² MM testified that she told Cramer what defendant did to her after they got home. Although Cramer told the police that MM said " nothing happened," Cramer testified at trial that she was afraid of getting in trouble and MM actually said that defendant " fingered" her. MM testified that, around June 10, 2010, she visited defendant's parents' house again and he digitally penetrated her on his bed. Defendant offered contrary testimony from his friend, who testified that he was present during this visit and never left MM and defendant alone.

Although he never tried to have sexual intercourse with MM, defendant texted MM, " I wanna f*** you if you weren't so young." According to MM, defendant also told her not to tell others about their relationship because he knew their age difference was " illegal."

Defendant met and started texting CP in the spring of 2010 when she was 14 years old³ and on the track team. Defendant had graduated, but was practicing at the high school track to prepare for college track tryouts. At the same time, he helped some students, including CP, on the track team. CP testified that defendant asked for naked photographs,⁴ which she sent from about May 2010, to July 2010. CP testified that, if she refused to send photographs, defendant would threaten not to talk to her or help her with track. CP also testified that defendant told her not to tell anyone what was happening.

In the summer of 2010, MM's father discovered her communications with defendant and contacted the police. In August 2010, Detective Jason Wise interviewed defendant. Detective Wise testified that defendant initially denied that MM sent him graphic photographs, but after the detective showed him the photographs on a computer, defendant admitted she sent him photographs of her buttocks, lower half, and breasts. Detective Wise testified that defendant also admitted that he used his finger to penetrate MM's vagina on at least two occasions.

Throughout trial, defendant testified that he did not have sexual intercourse with any of the victims. Contrary to Detective Wise's testimony, defendant specifically denied penetrating MM with his finger. Defendant testified that he only told MM to send him photographs that she had already sent to at least two other boys. Similarly, defendant testified that CP suggested sending him pictures first and he merely persisted in asking for them afterward.

II

Defendant first challenges the sufficiency of the evidence to support his conviction of CSC-III as to AW. Defendant further claims this conviction was against the great weight of the evidence and the trial court abused its discretion when it denied his motion for a new trial. We disagree.

A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Harverson, 291 Mich.App. 171, 175; 804 N.W.2d 757 (2010). The trial court's decision regarding defendant's motion for a new trial is reviewed for an abuse of discretion. People v Lemmon, 456 Mich. 625, 642, 644; 576 N.W.2d 129 (1998).

In challenging his conviction of CSC-III as to AW, defendant only alleges that the prosecutor failed to prove that AW was under 16 years of age for purposes of MCL 750.520d(1)(a)⁵ when she and defendant had sexual intercourse. The prosecutor established that AW met defendant when she was a freshman and he was a senior. AW further testified that she encountered defendant at a bonfire, which they left to go to defendant parents' house, where they had sexual intercourse in his basement bedroom. We agree with defendant that AW did not testify when the bonfire occurred. But defendant testified that the bonfire occurred in May 2009. Given evidence in the record that AW was born in December 1993, a reasonable trier of fact could conclude that AW was 15 years old at the time of the May 2009 bonfire, when she had sexual intercourse with defendant.

The trial court denied defendant's motion for a new trial, finding that the great weight of the evidence supported a finding that AW was 15 years old at the time of the offense. None of the exceptional circumstances, as expressed in Lemmon, 456 Mich. at 643-644, are present in this case. Thus, nothing warrants a conclusion that this verdict is contrary to the great weight of the evidence. The evidence does not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. People v McCray, 245 Mich.App. 631, 637; 630 N.W.2d 633 (2001). The trial court did not abuse its discretion by denying the new trial motion.

III

Defendant next claims he was denied his constitutional rights to due process and notice of the accosting charges and two of the charges of CSC-III as to MM because there was no evidence those offenses occurred on or about May 1, 2010, as set forth in the charging documents. We disagree. Defendant's unpreserved constitutional claims are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763, 774; 597 N.W.2d 130 (1999).

" The Due Process Clause of the Fourteenth Amendment mandates that a state's method for charging a crime give a defendant fair notice of the charge against the defendant, to permit the defendant to adequately prepare a defense." People v Chapo, 283 Mich.App. 360, 364; 770 N.W.2d 68 (2009); see Chambers v Mississippi, 410 U.S. 284; 93 S.Ct. 1038; 35 L.Ed.2d 297 (1973). " Prejudice is essential to any claim of inadequate notice." Chapo, 283 Mich.App. at 364.

MCL 750.145a(1)(b) provides that the indictment or information shall include, " The time of the offense as near as may be. No variance as to time shall be fatal unless time is of the essence of the offense." MCL 767.51 provides:

Except insofar as time is an element of the offense charged, any allegation of the time of the commission of the offense, whether stated absolutely or under a videlicet, shall be sufficient to sustain proof of the charge at any time before or after the date or dates alleged, prior to the finding of the indictment or the filing of the complaint and within the period of limitations provided by law: Provided, That the court may on motion require the prosecution to state the time or...