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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee v ALBERT MERLE HUTCHINSON, Defendant-Appellant.

UNPUBLISHED June 19, 2012

No. 302709 Wayne Circuit Court LC No. 10-009149-FH

Before: GLEICHER, P.J., and M. J. KELLY and BOONSTRA, JJ. PER CURIAM. Following a bench trial, defendant was convicted of assault with intent to commit seconddegree criminal sexual conduct (CSC II), MCL 750.520g(2), and fourth-degree criminal sexual conduct (CSC IV), MCL 750.520e(1). Defendant was sentenced as a third habitual offender, MCL 769.11, to three years' probation with one year in the county jail. Defendant appeals as of right. We affirm his convictions and sentence, and remand for a ministerial correction of the judgment of sentence. I. SUFFICIENCY OF THE EVIDENCE A. Assault with Intent to Commit CSC II. Defendant first argues that the evidence was insufficient to support his conviction of assault with intent to commit CSC II. Specifically, and while noting that the trial court premised this conviction on defendant's action in pulling down the victim's pants, defendant contends there was no evidence that he intended to touch the victim's groin. We disagree. When deciding a claim of insufficient evidence, an appellate court "`must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the offense were proved beyond a reasonable doubt.'" People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000), quoting People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended in part 441 Mich 1201 (1992). "`Circumstantial evidence and the reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.'" People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999), quoting People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). "Even in a case relying on circumstantial evidence, the prosecution need not negate every reasonable theory consistent with the defendant's innocence, but merely introduce evidence sufficient to convince a reasonable [fact-finder] in the face of whatever contradictory evidence 1

the defendant may provide." People v Konrad, 449 Mich 263, 273 n 6; 536 NW2d 517 (1995). "All conflicts in the evidence must be resolved in favor of the prosecution." People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997). Assault with intent to commit CSC II requires proof of the following elements: (1) an assault; (2) the specific intent to touch the victim's genital area, groin, inner thigh, buttock, breast, or clothing covering those areas, for the purpose of sexual arousal or sexual gratification; and (3) aggravating circumstances, such as the use of force or coercion. MCL 750.520(g)(2); MCL 750.520c; MCL 750.520.a; People v Evans, 173 Mich App 631, 634; 434 NW2d 452 (1988); People v Snell, 118 Mich App 750, 754-755; 325 NW2d 563 (1982). An assault can occur when there is either an attempt to commit a battery, or there is an unlawful act that places another in reasonable apprehension of receiving an immediate battery. People v Nickens, 470 Mich 622, 628; 685 NW2d 657 (2004). "`[B]attery is an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person.'" Id., quoting People v Reeves, 458 Mich 236, 240 n 4; 580 NW2d 433 (1988). An aggravating circumstance exists, e.g., if "the actor intended to do an act which would have caused personal injury to the victim and the actor intended to use force or coercion to accomplish the sexual contact." People v Lasky, 157 Mich App 265, 271; 403 NW2d 117 (1987). Here, the victim testified that defendant attempted to induce her to have sex by asking for sex and then showing and offering her Vicodin in exchange for sex. After the victim rejected his advances, defendant began touching her right breast with his left hand. When the victim told defendant to stop, he complied for a moment, but then yanked her pants down to her ankles. Defendant also asked the victim to engage in oral sex. The victim became scared and went into her trailer. She told a friend about defendant's actions and asked the friend to call the police. Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable the trial court to conclude that defendant specifically intended to touch the victim's genital area, groin, inner thigh, buttock, breast, or clothing covering those areas, for the purpose of sexual arousal or sexual gratification. Evans, 173 Mich App at 634. As defendant does not challenge the other elements of his conviction, we conclude that the evidence was sufficient to convict defendant of assault with intent to commit CSC II. Defendant argues that the trial court erred in crediting inconsistent testimony of the victim, an admitted Vicodin addict, while discounting the testimony of defendant, thus making the verdict against the great weight of the evidence. We disagree. In reviewing the great weight of the evidence, a new trial is warranted only if the "evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand." People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998). Generally, conflicting evidence or credibility issues do not provide sufficient grounds for a new trial. Id. at 643, quoting United States v Garcia, 978 F2d 746, 748 (CA 1, 1992). When testimony is in direct conflict, the question of credibility should ordinarily be left for the fact finder. Id. at 642. Absent exceptional circumstances, such as when the testimony contradicts indisputable physical facts or laws, defies physical realities, is patently incredible or inherently implausible, or has been seriously impeached in a case marked by uncertainties and discrepancies, this Court must give deference to the fact-finder's determinations. Id. at 643-644. 2

Although there were some inconsistencies in the victim's testimony and it contrasted with defendant's version of events, the trial court assessed her testimony as being credible. The evidence was adequate and allowed the trial court to find defendant guilty beyond a reasonable doubt. Further, the evidence did not preponderate so heavily against the verdict that it would be a serious miscarriage of justice to allow the verdict to stand. Lemmon, 456 Mich at 642. B. CSC IV. Defendant also contends there was insufficient evidence to convict him of CSC IV. While noting that the trial court premised this conviction on defendant's action in touching the victim's breast, he argues that there is no evidence that he overcame the victim through the actual application of physical force. This argument is without merit. MCL 750.520e(1)(b) provides that a person is guilty of CSC IV if he or she "engages in sexual contact with another person," and "[f]orce or coercion is used to accomplish the sexual contact." "`Sexual contact' includes the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification [or] done for a sexual purpose." MCL 750.520a(q). "Force or coercion includes, but is not limited to," circumstances where a person overcomes the victim "through the actual application of physical force or physical violence." MCL 750.520e(1)(b)(i). The victim testified that, all of a sudden, defendant began "touching her boobs and everything." Defendant used his left hand to touch her right breast then pulled her pants down, even after she told him not to touch her. Viewed in a light most favorable to the prosecution, the evidence supports an inference that defendant forcibly touched the victim's breast, and forcibly pulled down her pants, and thus supports a conviction under MCL 750.520e(1)(b)(i). II. DOUBLE JEOPARDY Next, defendant argues that his double jeopardy rights were violated because the trial court convicted him of two offenses arising out of the same act. Defendant claims that the two offenses of which he was convicted have the same facts and elements and are, essentially, one crime. Consequently, he argues that he received multiple punishments for a single offense. We disagree. In general, this Court reviews a double jeopardy claim de novo. People v Ford, 262 Mich App 443, 446; 687 NW2d 119 (2004). But because defendant did not preserve this constitutional issue by raising it at trial, review is limited to plain error affecting his substantial rights. Carines, 460 Mich at 762-763. Both the United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense. US Const, Am V; Const 1963, art 1,

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