People v. Johnson

• Citation: 298 Mich.App. 128,826 N.W.2d 170
• Decision Date: 16 October 2012
• Docket Number: Docket No. 302173.
• Parties: PEOPLE v. JOHNSON.
• Court: Court of Appeal of Michigan — District of US

298 Mich.App. 128
826 N.W.2d 170

PEOPLE
v.
JOHNSON.

Docket No. 302173.

Court of Appeals of Michigan.

Submitted April 4, 2012, at Detroit.
Decided Oct. 16, 2012, at 9:05 a.m.

[826 N.W.2d 171]

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Julie A. Powell, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker), for defendant.

Before: WILDER, P.J., and O'CONNELL and WHITBECK, JJ.

WILDER, P.J.

[298 Mich.App. 129]Defendant was convicted, following a bench trial, of three counts of first-degree criminal sexual conduct, MCL 750.520b (multiple circumstances).[298 Mich.App. 130]Defendant was sentenced to 17 1/2 to 40 years' imprisonment for the convictions. Additionally, defendant's judgment of sentence was amended to order defendant to lifetime electronic monitoring pursuant to MCL 750.520n. Defendant appeals as of right. We affirm.

[826 N.W.2d 172]

I

Defendant first argues that the trial court erred by assessing 50 points for offense variable (OV) 11, MCL 777.41, when calculating defendant's recommended minimum sentence range for his first-degree criminal sexual conduct convictions. We disagree.

“This Court reviews de novo questions of statutory construction.” People v. Ryan, 295 Mich.App. 388, 400, 819 N.W.2d 55 (2012). “This Court reviews a trial court's scoring of a sentencing guidelines variable for clear error.” People v. Lockett, 295 Mich.App. 165, 182, 814 N.W.2d 295 (2012). “This Court reviews a sentencing court's scoring decision to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v. Phelps, 288 Mich.App. 123, 135, 791 N.W.2d 732 (2010) (quotation marks and citation omitted). The record evidence the trial court is permitted to consider when calculating the sentencing guidelines includes the contents of the presentence investigation report. People v. Althoff, 280 Mich.App. 524, 541, 760 N.W.2d 764 (2008). This Court will affirm a trial court's decision regarding sentencing scoring when there is evidence existing to support the score. Id.

First-degree criminal sexual conduct, MCL 750.520b, is a class A felony against a person. MCL 777.16y. “A scoring decision is not clearly erroneous if the record contains any evidence in support of the decision.” [298 Mich.App. 131]Lockett, 295 Mich.App. at 182, 814 N.W.2d 295 (quotation marks and citation omitted). “A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report, admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary examination or trial.” People v. Ratkov (After Remand), 201 Mich.App. 123, 125, 505 N.W.2d 886 (1993). “[If] a defendant has effectively challenged an adverse factual assertion contained in the presentence report or any other controverted issues of fact relevant to the sentencing decision, the prosecution must prove by a preponderance of the evidence that the facts are as asserted.” Id.

MCL 777.41 governs the scoring of OV 11 and provides as follows:

(1) Offense variable 11 is criminal sexual penetration. Score offense variable 11 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

(a) Two or more criminal sexual penetrations occurred .... 50 points

(b) One criminal sexual penetration occurred .... 25 points

(c) No criminal sexual penetration occurred .... 0 points

(2) All of the following apply to scoring offense variable 11:

(a) Score all sexual penetrations of the victim by the offender arising out of the sentencing offense.

(b) Multiple sexual penetrations of the victim by the offender extending beyond the sentencing offense may be scored in offense variables 12 or 13.

(c) Do not score points for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense.

298 Mich.App. 132]Vaginal penetration, fellatio, and cunnilingus are considered separate sexual penetrations when scoring OV 11 under MCL 777.41. See People v. Wilkens, 267 Mich.App. 728, 743, 705 N.W.2d 728 (2005). Also, the Michigan Supreme Court has

[826 N.W.2d 173

defined “arising out of,” as used in MCL 777.41, as something that “springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.” People v. Johnson, 474 Mich. 96, 101, 712 N.W.2d 703 (2006). Accordingly, this standard requires more than the mere fact that the penetrations involved the same defendant and victim. Id. at 101–102, 712 N.W.2d 703.

Defendant was charged with and convicted of three counts of first-degree criminal sexual conduct involving vaginal penetration, fellatio, and cunnilingus with the victim “V.” V testified that she started having sex with defendant when she was 13 years old and that she has been involved with defendant sexually for three years. The first time sexual relations...