People v. Solloway

• Decision Date: 30 June 2016
• Docket Number: Docket No. 324559.
• Citation: 316 Mich.App. 174,891 N.W.2d 255
• Parties: PEOPLE v. SOLLOWAY.
• Court: Court of Appeal of Michigan — District of US

316 Mich.App. 174

891 N.W.2d 255

PEOPLE

v.SOLLOWAY.

Docket No. 324559.

Court of Appeals of Michigan.

Submitted March 1, 2016, at Lansing.

Decided June 30, 2016, at 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Christopher M. Allen, Assistant Attorney General, for the people.

Timothy L. Solloway, Dearborn, in propria persona, and Ann M. Prater for defendant.

Before: SERVITTO, P.J., and GADOLA and O'BRIEN, JJ.

PER CURIAM.

Defendant appeals as of right his bench trial convictions of first-degree criminal sexual conduct (CSC–I), MCL 750.520b(1)(a), and two counts of failing to comply with the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., MCL 28.729. The trial court sentenced him as a fourth-offense habitual offender, MCL 769.12, to imprisonment for life on the CSC–I conviction and concurrent terms of three to seven years' imprisonment on each of the failing-to-comply convictions, with credit for 464 days served. We vacate defendant's convictions for failing to comply with SORA, affirm in all other respects, and remand for correction of the presentence investigation report and the judgment of sentence.

I. FACTS

On the morning of July 22, 2013, defendant's then nine-year-old son "MM" rode the bus from summer school to defendant's residence, where he was supposed to spend the remainder of the summer. That evening, MM fell asleep in the bedroom of defendant's one-bedroom apartment with his pajamas on, and defendant went to bed in the living room. According to MM, he woke up during the night with defendant on top of him, and MM no longer had his pajamas on. MM testified that defendant was facing him and "shaking up and down." MM told defendant to get off, but defendant said, "No." Eventually, MM saw defendant unzip his pants and "stick his peebug¹ out." Defendant then "flipped [MM] over" and "put his peebug in [MM's] butt." Although MM testified that he experienced pain "on [his] butt" that day, he did not tell anyone what happened.

Two days after the incident, MM noticed some rectal bleeding

after he went to the bathroom at school. MM told his teacher that he was bleeding. His teacher sent him to the principal, who thereafter called MM's mother (defendant's ex-wife), to pick MM up. While MM was waiting for his mother, a police officer came to talk to him at school. MM told the officer that he was "bleeding from [his] butt" and that he had just been "molested [by defendant] a couple of days" before. Thereafter, MM's mother arrived at the school with MM's grandpa and stepfather, and they took MM directly to the hospital. On the way, MM told the three of them what had happened. A physical examination of MM at the hospital revealed injuries consistent with his account of the sexual assault.

After speaking with MM, police ran defendant's record and found that he was currently on probation and had been previously convicted of fourth-degree criminal sexual conduct (CSC–IV), MCL 750.520e. Defendant was therefore required to register under SORA and verify his information, including all telephone and e-mail addresses used. Officers, along with defendant's probation officer, went to defendant's apartment, explained to him why they were there, read defendant his Miranda² rights, which defendant waived, and received defendant's consent to search the residence. During the search, officers seized several items, including two cellular telephones. Defendant told the officers that he used one of the cellular telephones for calls and that it was registered in a relative's name. He told the officers that the other cellular telephone used to have cellular service, but it no longer did. Defendant stated that he only used this second cellular telephone for Internet access, and he admitted he searched for pornography on it. Defendant also admitted during the investigation in this case that he had an e-mail account in his father's name, but he did not register it.

At trial, defendant denied the allegations that he sexually assaulted the victim. With respect to the SORA violations, defendant admitted that he was guilty of having an e-mail address that his probation officer or other public safety officers did not know about. He also admitted, with respect to one of the cellular telephones, that his status as a sex offender prohibited him from using this cellular telephone to access pornography. As previously indicated, the trial court convicted defendant of CSC–I and two counts of failing to comply with SORA.

II. CSC–I CONVICTION: SUFFICIENCY/GREAT WEIGHT OF THE EVIDENCE

On appeal, defendant first contends that there was insufficient evidence to support his conviction for CSC–I or, alternatively, that the verdict was against the great weight of the evidence. We disagree.

This Court reviews de novo challenges to the sufficiency of the evidence. People v. Ericksen, 288 Mich.App. 192, 195, 793 N.W.2d 120 (2010). This Court must determine whether the evidence was sufficient to justify a rational trier of fact's conclusion that the evidence proved the essential elements of the crime beyond a reasonable doubt. People v. Harverson, 291 Mich.App. 171, 175, 804 N.W.2d 757 (2010). In determining whether sufficient evidence was presented to support a conviction, the reviewing court will not interfere with the fact-finder's role of deciding the credibility of the witnesses. People v. Wolfe, 440 Mich. 508, 514–515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201, 489 N.W.2d 748 (1992). All conflicts in the evidence must be resolved in favor of the prosecution, id. at 515, 489 N.W.2d 748, and circumstantial evidence and all reasonable inferences drawn therefrom can constitute satisfactory proof of the crime, People v. Carines, 460 Mich. 750, 757, 597 N.W.2d 130 (1999).

A defendant is guilty of CSC–I, MCL 750.520b(1)(a), if he or she engaged in sexual penetration with the victim and the victim was less than 13 years old. People v. Hack, 219 Mich.App. 299, 303, 556 N.W.2d 187 (1996). "Sexual penetration" is defined by statute as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body ... into the genital or anal openings of another person's body...." MCL 750.520a(r).

The victim's age is not contested by either party. It was well established at trial that MM was nine years old at the time of the sexual assault. Accordingly, the only issue is whether the evidence was sufficient to establish beyond a reasonable doubt that defendant engaged in sexual penetration with MM. Hack, 219 Mich.App. at 303, 556 N.W.2d 187. In this case, MM testified in great detail about the sexual assault. He testified that he woke up to defendant on top of him, "shaking up and down." MM testified that defendant then flipped him over and "put his peebug in [MM's] butt." MM explained that he could feel defendant's "peebug" in his body. In criminal sexual conduct cases, a victim's testimony may be sufficient to support a defendant's conviction and need not be corroborated.

People v. Brantley, 296 Mich.App. 546, 551, 823 N.W.2d 290 (2012) ; MCL 750.520h. Given MM's testimony, the evidence, when viewed in a light most favorable to the prosecution, was sufficient to support the trial court's finding that sexual penetration occurred beyond a reasonable doubt.

Defendant challenges MM's credibility. However, witness credibility is a question for the fact-finder, and this Court does not interfere with the fact-finder's role. Wolfe, 440 Mich. at 514–515, 489 N.W.2d 748. Moreover, even though it is not necessary for a criminal sexual conduct conviction, there was evidence presented that corroborated MM's testimony. For instance, Mindy O'Brien, the sexual assault nurse examiner who examined MM at the hospital, testified that MM suffered tearing and rawness in his anal area that was consistent with his claims, and DNA evidence revealed that defendant's semen was located on a white fleece blanket taken from MM's bed. Further, there was testimony by defendant's nephew, that when he had resided with defendant for several years, until he was approximately nine years old, defendant had touched him inappropriately in his genital area many times with his hand and his body. The nephew testified that defendant would wake him up in the middle of the night to perform these assaults. With respect to this conduct, defendant ultimately pleaded guilty and was convicted of CSC–IV, and defendant admitted in his testimony at trial that he committed the sexual abuse toward his nephew. The fact that defendant committed a previous sexual assault against his similarly aged nephew—albeit "sexual contact,"³ not penetration—also supports MM's testimony.

The verdict on defendant's CSC–I conviction was also not against the great weight of the evidence. A verdict is against the great weight of the evidence and a new trial should be granted when "the evidence preponderates heavily against the verdict and a serious miscarriage of justice would otherwise result." Brantley, 296 Mich.App. at 553, 823 N.W.2d 290, quoting People v. Lemmon, 456 Mich. 625, 642, 576 N.W.2d 129 (1998) (quotation marks omitted; citation omitted in Brantley ). Generally, a verdict may only be vacated when the verdict is not reasonably supported by the evidence, but rather it "is more likely attributable to factors outside the record, such as passion, prejudice, sympathy, or other extraneous considerations." People v. Plummer, 229 Mich.App. 293, 306, 581 N.W.2d 753 (1998). Questions regarding credibility are not sufficient grounds for relief unless the "testimony contradicts indisputable facts or laws," the "testimony is patently incredible or defies physical realities," the "testimony is material and ... so inherently implausible that it could not be believed by a reasonable juror," or the "testimony has been seriously impeached and the case is marked by uncertainties and discrepancies." Lemmon, 456...