People v. Matuszak, Docket No. 244817.

• Citation: 263 Mich. App. 42,687 N.W.2d 342
• Decision Date: 29 September 2004
• Docket Number: Docket No. 244817.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theron Mark MATUSZAK, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

687 N.W.2d 342

263 Mich. App. 42

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theron Mark MATUSZAK, Defendant-Appellant.

Docket No. 244817.

Court of Appeals of Michigan.

Submitted February 10, 2004, at Detroit.

Decided July 13, 2004, at 9:00 a.m.

Released for Publication September 29, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Mark E. Reene, Prosecuting Attorney, and B. Eric Restuccia, Assistant Attorney General, for the people.

Smith & Brooker, P.C. (by George B. Mullison), Bay City, for the defendant on appeal.

Before: NEFF, P.J., and WILDER and KIRSTEN FRANK KELLY, JJ.

WILDER, J.

Following a jury trial, defendant appeals as of right from his conviction of first-degree criminal sexual conduct (CSC I), M.C.L. § 750.520b(1)(f) (personal injury to victim and use of force or coercion), after having pleaded guilty before trial of third-degree criminal sexual conduct (CSC III), M.C.L. § 750.520d(1)(a) (victim at least thirteen and under sixteen years of age), arising from the same incident. Defendant was sentenced to concurrent prison terms of fifteen to thirty years for the CSC I conviction and five to fifteen years for the CSC III conviction. We affirm.

I

Defendant was charged with one count of CSC I (count I) and one count of CSC III (count II). Each count was predicated on alleged penile-vaginal penetration, although count I alleged the use of force or coercion to accomplish the penetration and count II alleged as an aggravating factor that the victim was between the age of thirteen and sixteen. At the preliminary examination, the victim testified only to one sexual penetration. Nevertheless, the district court bound defendant over for trial on both counts I and II. The information filed in the circuit court alleged that defendant was guilty of each count, once again predicated on an alleged penile-vaginal penetration, but the information did not specify whether each count was premised on the same act of penetration. Before trial, defendant pleaded guilty of count II, admitting that the victim was between thirteen and sixteen years old and that he had engaged in one act of sexual penetration with her on the trunk of his car. Before the plea was accepted, defendant testified that the plea was voluntary and not the result of negotiation. The prosecution requested that the trial court take the plea under advisement because it intended to proceed to trial on count I, but the trial court denied the prosecution's request and accepted defendant's plea on count II.

During defendant's trial on count I, the victim testified that defendant threw her to the ground and partially inserted his penis into her vagina once, and that he then threw her onto the trunk of the car where he inserted his finger into her vagina, partially inserted his penis into her vagina twice, and fully inserted his penis into her vagina once. Through cross-examination, defendant was able to identify various inconsistencies between the victim's preliminary examination testimony and her testimony at trial. At one point during cross-examination, the victim testified that she has attention deficit disorder. Over defendant's timely objection, the trial court permitted the victim's school psychologist to testify about the victim's level of comprehension, that the victim has an IQ of between fifty-five and seventy, and that the victim was "educably mentally impaired." The trial court also overruled defendant's timely objection to testimony by the victim's mother about problems she observed while home schooling the victim and that the victim's test results showed the victim had very little comprehension, and to testimony by the emergency room nurse who first examined the victim that the victim stated her assailant stopped the car he was driving, pulled her out of the car, threw her against the car, and assaulted her.

The jury convicted defendant of CSC I, and the trial court sentenced defendant to concurrent sentences for his CSC I and CSC III convictions. On appeal, defendant claims that (1) the protections against double jeopardy preclude his conviction and sentence for both CSC I and CSC III, and that his conviction of CSC I should be set aside, (2) he was denied a fair trial and his due process rights were violated when the trial court permitted the challenged testimony of the school psychologist, the victim's mother, and the emergency room nurse, (3) prosecutorial misconduct and instructional error also resulted in a violation of his due process rights and denied him a fair trial, (4) his trial counsel was ineffective, and (5) his sentence was invalid because the sentencing guidelines were improperly scored.

II

We review for plain error unpreserved claims that a defendant's double jeopardy rights have been violated. People v. Kulpinski, 243 Mich.App. 8, 11, 23-24, 620 N.W.2d 537 (2000); People v. Carines, 460 Mich. 750, 763-765, 597 N.W.2d 130 (1999).¹ In order to avoid forfeiture of this issue, defendant must show plain error that affected his substantial rights. Kulpinski, supra at 11, 620 N.W.2d 537. A trial court's decision to admit evidence is reviewed for an abuse of discretion; however, a preliminary question of law involved in that decision is reviewed de novo. People v. McDaniel, 469 Mich. 409, 412, 670 N.W.2d 659 (2003). A trial court's decision to admit expert witness testimony is also reviewed for an abuse of discretion. People v. Phillips, 246 Mich.App. 201, 203, 632 N.W.2d 154 (2001), aff'd 468 Mich. 583, 663 N.W.2d 463 (2003). Where an error of constitutional magnitude has occurred in a criminal case, the beneficiary of the error must show beyond a reasonable doubt that there is no reasonable possibility that the error contributed to the conviction. People v. Smith (On Remand), 249 Mich.App. 728, 730, 643 N.W.2d 607 (2002); Carines, supra at 774, 597 N.W.2d 130. Unpreserved claims of prosecutorial misconduct and instructional error are reviewed for plain error, People v. Barber, 255 Mich.App. 288, 296, 659 N.W.2d 674 (2003); Carines, supra at 761-764, 597 N.W.2d 130; however, expressions of satisfaction with the trial court's instructions constitute a waiver of any instructional error. People v. Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000).

"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002). The trial court must first find the facts and then decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel. Id. The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Id. Where claims of ineffective assistance of counsel have not been preserved, our review is limited to errors apparent on the record. People v. Wilson, 257 Mich.App. 337, 362-363, 668 N.W.2d 371 (2003). This Court reviews the scoring of a sentencing guidelines variable to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score. People v. McLaughlin, 258 Mich.App. 635, 671, 672 N.W.2d 860 (2003).

III

Given the facts in this case, defendant's convictions of both CSC I and CSC III do not violate double jeopardy principles.

The United States and Michigan Constitutions protect a person from being twice placed in jeopardy for the same offense. U.S. Const., Am. V; Const. 1963, art. 1 § 15. The prohibition against double jeopardy provides three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. People v. Nutt, 469 Mich. 565, 574, 677 N.W.2d 1 (2004) (citations omitted).

Our Supreme Court has held that "[t]he fact that a sexual penetration happens to be accompanied by more than one of the aggravating circumstances enumerated in the [CSC I] statute may well ease the burden upon the prosecution in attaining a conviction under [that statute], but it may give rise to only one criminal charge for purposes of trial, conviction, and sentencing." People v. Johnson, 406 Mich. 320, 331, 279 N.W.2d 534 (1979). Under these circumstances, rather than proceeding with separate counts "the prosecutor must charge a defendant under a single count using alternative theories...." People v. Goold, 241 Mich.App. 333, 342-343, 615 N.W.2d 794 (2000), citing People v. Nicolaides, 148 Mich.App. 100, 102-103, 383 N.W.2d 620 (1985).

Defendant first asserts that because he was convicted of CSC III before his trial on CSC I, by virtue of his plea of guilty, his conviction for CSC I should be vacated on remand as a violation of the rule against successive prosecutions. Nutt, supra at 574, 677 N.W.2d 1. We disagree. The rule against successive prosecutions does not apply where a defendant requests separate trials on related offenses. People v. Webb, 128 Mich.App. 721, 728, 341 N.W.2d 191 (1983), overruled in part by People v. Kelley, 433 Mich. 882, 446 N.W.2d 821 (1989). Here, because defendant pleaded guilty on count II and stated no objection to proceeding to trial on count I, his guilty plea should be treated as a request for separate proceedings on the two charges.

Defendant next asserts that the circumstances presented in Johnson are present here, that is, that the evidence establishes one sexual penetration accompanied by a number of aggravating circumstances enumerated in the CSC statute requiring that his CSC I conviction be vacated.² We note that because defendant did not raise this issue in the trial court, it is unpreserved and reviewed for plain error. Kulpinski, supra at 11, 620 N.W.2d 537. After our review of the record, we do not agree that either of defendant's convictions should be...