If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
UNPUBLISHED March 25, 2021
v No. 351708
Leelanau Circuit Court
WILLIAM THOMAS ALLEN, LC No. 2019-001995-FH
Defendant-Appellant.
Before: MURRAY, C.J., and M.J.KELLY and RICK, JJ. PER CURIAM.
Defendant pleaded guilty to third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victim between 13 and 15 years of age). The trial court sentenced defendant to serve a prison term of 10 to 15 years. Defendant appeals by delayed leave granted.1 We affirm.
I. BACKGROUND
This case arises out of defendant’s sexual penetration of a child who was 15 years old. The sexual activity lasted five minutes, and the victim indicated in her interview with the police that defendant had to reinsert his penis into her vagina on at least two occasions. During the investigation, several nude photographs of the victim, which she had sent to defendant, were found on defendant’s cell phone.
Defendant admitted at the plea hearing that he had sexual intercourse with the victim, but testified that he did not know that she was 15 years old at the time of the offense. The parties also agreed that in exchange for pleading guilty to CSC-III, the prosecution would dismiss a charge of accosting a child for immoral purposes, MCL 750.145a, and not charge defendant with any future crimes in this case related to the victim.
At the sentencing hearing, defendant challenged the score of 50 points for offense variable (OV) 11. Defendant argued that he did not reinsert his penis into the victim’s vagina because it
never “fell out.” Therefore, defendant argued that zero points should be assessed for OV 11 on the basis that there was only one sexual penetration that arose out of the sentencing offense. The trial court found that defendant had reinserted his penis into the victim’s vagina, and scored 50 points for OV 11.
The trial court concluded that the suggested guidelines range of 57 to 95 months’ imprisonment was inadequate considering the severity of defendant’s conduct and his criminal history, noting that defendant “has now on three occasions been involved [with] girls that are under the age of 16 years old, that’s a threat to the community, that’s something we can’t countenance.” This appeal followed.
II. ANALYSIS A. OV 11
Offense variable 112 requires a trial court to score 50 points if “two or more criminal sexual penetrations occurred,” MCL 777.41(1)(a), other than the one that comprises the charged offense, with “sexual penetration” being defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body . . . .” MCL 750.520a(r).
Here, the victim stated that during the approximately five-minute act of sexual intercourse, defendant inserted his penis into her vagina, and then “the defendant’s penis had to be re-inserted into her vagina on at least two occasions.” The first penetration was sufficient to support the CSC-III that defendant pleaded guilty to, and the remaining two or more penetrations that occurred during the act of sexual intercourse allowed the scoring of 50 points for OV 11. There is nothing in the language of the statute that allows for the conclusion that “sexual intercourse” encompasses as many penetrations that occur during the course of a single sexual assault. Instead, the use of the phrase “sexual intercourse” in MCL 750.520a(r) is a description of a type of sexual activity, as opposed to the other types contained in the same provision. However, because OV 11 focuses on penetrations, each penetration above the one that formed the bases of the CSC-III charge that defendant was sentenced on counts as a separate penetration. That was the conclusion of this Court in People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004), where we held that the trial court properly scored five penetrations under OV 11 when the defendant repeatedly inserted his penis (and fingers) into the victim during the course of the same assault.3
2 “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Id.
B. SENTENCE
We also hold that the trial court did not abuse its discretion in sentencing defendant to a sentence that exceeded the maximum provided by the discretionary sentencing guidelines. We review a sentence that departs from the sentencing guidelines range for “reasonableness.” People
v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). “[T]he standard of review to be applied
by appellate courts reviewing a sentence for reasonableness on appeal is abuse of discretion.”
People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017). “Under the sentencing
guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Id. “Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made.” People v Blevins, 314 Mich App 339, 348-349; 886 NW2d 456 (2016).
“[A] sentencing court must determine the applicable [sentencing] guidelines range and take it into account when imposing a sentence.” Lockridge, 498 Mich at 365. However, the sentencing guidelines are only advisory, so we review a sentence that departs from the sentencing guidelines range for “reasonableness.” Id. at 365, 392. To determine whether a sentence is reasonable, we look to the principle of proportionality test set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), abrogated by Steanhouse, 500 Mich 453 (2017). Steanhouse, 500 Mich at 459-460, 471-473. Under Milbourn, a sentence is reasonable if it is “proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Steanhouse, 500 Mich at 460 (quotation marks and citation omitted). A trial court may consider the following nonexhaustive factors when determining whether a sentence is reasonable:
(1) the seriousness of the offense; (2) factors that were inadequately considered by the guidelines; and (3) factors not considered by the guidelines, such as the relationship between the victim and the aggressor, the defendant’s misconduct while in custody, the defendant’s expressions of remorse, and the defendant’s potential for rehabilitation. [People v Walden, 319 Mich App 344, 352-353; 901 NW2d 142 (2017) (quotation marks and citations omitted).]
A trial court may impose a departure sentence if it determines that “the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime.”
People v Steanhouse (On Remand), 322 Mich App 233, 238; 911 NW2d 253 (2017), vacated in
part on other grounds 504 Mich 969 (2019) (quotation marks and citation omitted). A sentencing court is no longer required to state “substantial and compelling reasons” for a departure sentence,
but it “must justify the sentence imposed in order to facilitate appellate review.” Lockridge, 498 Mich at 392.
The trial court appropriately concluded that the sentencing guidelines did not adequately account for defendant’s criminal history and the nature of the offense.4 Defendant had a prior misdemeanor for assault and battery relating to inappropriately touching an underage female over her clothing. More importantly, defendant had a prior felony for fourth-degree criminal sexual conduct, in which defendant knowingly had sexual intercourse with an underage girl.5 The guidelines did not adequately account for defendant’s history of sexually assaulting underage girls, nor did they adequately account for the fact that defendant did not know why this victim did not tell a “little white lie” and say that she was 16 years old when defendant sexually assaulted her. Additionally, as the trial court stated, defendant’s total OV score of 120 was well beyond the maximum of 75 points contemplated by the applicable guidelines grid. For these reasons, defendant has failed to demonstrate that the trial court abused its discretion by determining that the sentencing guidelines were inadequate to account for defendant’s criminal behavior.
Nor did the trial court fail to justify the degree of its departure. Although the trial court’s minimum sentence of 10 years was almost two years over the minimum guidelines range of 57 to 95 months, this departure was not disproportionate. “[T]he key test [of proportionality] is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range.” Milbourn, 435 Mich at 661. Here, for the reasons previously discussed, the trial court clearly sentenced defendant above the guidelines range on the basis of the seriousness of defendant’s conduct, especially in light of his criminal history involving sexual assaults against underage girls, and because his total OV score of 120 points exceeded the maximum contemplated by the guidelines grid. Therefore, the trial court adequately explained how its departure sentence was “proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Steanhouse, 500 Mich at 460 (quotation marks and citation omitted).
4 The trial court’s first stated reason for exceeding the guidelines range was the fact that the prosecution dropped the charge of accosting a child for immoral purposes in exchange for defendant’s plea and that the prosecution also agreed not to pursue charges dealing with child sexually abusive material as a result of the plea. However, although unclear from the record, it appears likely that these uncharged crimes were considered in the assessment of five points for OV 12 and 25 points for OV 13, and the trial court did not explain why or how these OVs failed to adequately take defendant’s behavior into account.
Affirmed.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
UNPUBLISHED March 25, 2021
v No. 351708
Leelanau Circuit Court
WILLIAM THOMAS ALLEN, LC No. 2019-001995-FH
Defendant-Appellant.
Before: MURRAY, C.J., and M.J.KELLY and RICK, JJ. M.J.KELLY,J. (concurring in part and dissenting in part).
I respectfully dissent from the majority’s conclusion that every insertion of defendant’s penis into the complainant’s vagina during a single act of sexual intercourse counts as a separate sexual penetration when scoring offense variable (OV 11). Because I would interpret the single, continuous act of sexual intercourse that occurred in this case as one sexual penetration, I would hold that the trial court erred by scoring OV 11 at 50 points, and, because the scoring error affected defendant’s minimum sentencing guideline range, I would reverse and remand for resentencing.1
OV 11 addresses criminal sexual penetration. MCL 777.41. The trial court must assess 50 points if “[t]wo or more criminal sexual penetrations occurred[.]” MCL 777.41(1)(a). When scoring OV 11, the court must comply with the following directives:
(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. [MCL 777.41(2).]
We need not guess at the meaning of the phrase “sexual penetration.” The Legislature has defined “sexual penetration” as “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). “When a statute specifically defines a given term, that definition alone controls.” Haynes v Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007).
In this case, the sexual penetration that formed the basis for the sentencing offense is defendant’s sexual intercourse with a 15-year-old girl. The sexual intercourse lasted for approximately five minutes. The complainant reported that, during that five-minute time frame, “defendant’s penis had to be reinserted into her vagina on at least two occasions.” The majority contends that each insertion of a penis into a vagina is a separate sexual penetration, noting that “[t]here is nothing in the language of the statute that allows for the conclusion that ‘sexual intercourse’ encompasses as many penetrations that occur during the course of a single sexual assault.”
I agree that the Legislature does not define the phrase “sexual intercourse.” However, it is a basic principle of statutory interpretation that “[a]n undefined statutory word or phrase must be accorded its plain and ordinary meaning . . . .” People v Flick, 487 Mich 1, 11; 790 NW2d 295 (2010). The majority’s decision to count each insertion of the penis during a single act of sexual intercourse as a separate sexual penetration is inconsistent with the ordinary meaning of “sexual intercourse.” Although there are no Michigan cases examining the ordinary meaning of the phrase sexual intercourse,” when interpreting a similar statute,2 the Oregon Court of Appeals reasoned:
For the state to prevail, we would have to conclude that an ordinary person would understand two people to have engaged in a distinct act of vaginal sexual intercourse every single time that the penis, having initially penetrated the vagina, is removed (accidentally or intentionally) and then reinserted. We believe that an ordinary person, on the contrary, would understand a single act of sexual intercourse to include the possibility of penetration, removal, and reinsertion of the penis multiple times. Thus, the mere fact that the penis is removed and reinserted, without more, does not establish that a new act of “sexual intercourse” has occurred. To be clear, we do not mean to cast doubt on the proposition that multiple acts of rape can occur in a span of a few minutes. But the state must present evidence sufficient to permit a finding that one act of forcible sexual intercourse
ended and another began. In this case, the evidence, when viewed in the light most favorable to the state, establishes only that defendant’s penis was removed and reinserted multiple times without any pause in defendant’s effort to vaginally penetrate the victim—something that is consistent with a single act of sexual intercourse. [Oregon v Eastman, 282 Or App 563, 571; 385 P3d 1182 (2016).]
I agree with the Oregon Court of Appeals that an ordinary person would understand a single act of sexual intercourse to include the possibility of penetration, removal, and reinsertion of the penis multiple times. Here, the record only reflects that defendant’s penis was removed and reinserted multiple times without any break in the one, continuous act of sexual intercourse that occurred. Because that sexual intercourse is the one penetration that forms the basis for defendant’s third-degree criminal sexual conduct conviction, MCL 777.41(2)(c) expressly states that the court may not score points for that penetration.
The majority relies on People v Matuszak, 263 Mich App 42; 687 NW2d 342 (2004) as support for the fact that multiple insertions of a penis into a vagina count as separate sexual penetrations when scoring OV 11. In Matuszak, “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.” Id. at 46. This Court concluded that the trial court did not err by scoring OV 11 at 50 points because five instances of sexual penetration occurred during the assault.” Id. at 61. Yet, as noted above, the Legislature defined “sexual penetration” as “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) (emphasis added). The use of the
word “or” indicates a choice between alternatives. People v Kowalski, 489 Mich 488, 499; 803 NW2d 200 (2011), reh den 490 Mich 868 (2011). Thus, one way that a sexual penetration can occur is if there is an act of sexual intercourse. Another way that it can occur is if there is an intrusion—no matter how slight—of a person’s body part into the genital opening of another person’s body. The penetrations in Matuszak were not based on four separate acts of sexual intercourse. Indeed, no sexual intercourse took place. Rather, each insertion and partial insertion of the defendant’s penis fell under the last part of the definition, i.e., it was an intrusion of the defendant’s body into the genital opening of the victim’s body. Consequently, Matuszak does not support that a single act of sexual intercourse that includes multiple insertions of the defendant’s penis into the victim’s vagina counts as multiple sexual penetrations under OV 11.
Similarly, the cases relied upon by the prosecution in its response to defendant’s instant appeal are also distinguishable. In People v Lampe, 327 Mich App 104, 118-119; 933 NW2d 314 (2019), this Court upheld a score of 50 points where the defendant performed fellatio on the complainant and penetrated the complainant orally and annually. Likewise, in People v Cox, 268 Mich App 440, 442, 455-456; 709 NW2d 152 (2005), this Court upheld a score of 25 points for OV 11 because the defendant engaged in anal and oral sex with the complainant. In People v
Wilkens, 267 Mich App 728, 743; 705 NW2d 728 (2005), this Court upheld a score of 25 points
for OV 11 when the defendant penetrated the complainant with his mouth and with a sex toy. In
People v Mutchie, 251 Mich App 273, 277; 650 NW2d 733 (2002), this Court upheld a score of
of conduct.” In each case, the trial court’s scoring decision was upheld because it was supported by evidence that multiple sexual penetrations occurred, each arising out of the sentencing offense. However, none of the cases cited by the prosecution involved the circumstances at issue in this case, i.e., a single instance of sexual intercourse during which the defendant’s penis was inserted into the complainant’s vagina more than one time. Thus, the cases are inapposite and do not compel a different interpretation of the plain language in MCL 750.520a(r) and MCL 777.41.
In sum, under the Legislature’s definition of sexual penetration, defendant only sexually penetrated the complaint once, so the trial court erred by assessing 50 points for OV 11. If OV 11 is correctly scored at 0, defendant’s guidelines range is decreased from 57 to 95 months to 51 to 85 months. Because the scoring error alters the appropriate guidelines range, I would hold, contrary to the majority, that resentencing is required. People v Francisco, 474 Mich 82, 89-91; 711 NW2d 44 (2006).
