Preview:

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v HARRY JACOB WALTON, Defendant-Appellant.

UNPUBLISHED April 20, 2010

No. 289212 Oakland Circuit Court LC No. 2001-178581-FC

Before: M.J. KELLY, P.J., and TALBOT and WILDER, JJ. PER CURIAM. Defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(f) (force or coercion) and was sentenced as a second habitual offender, MCL 769.10. Following a remand from this Court, defendant appeals as of right, his resentencing to 39 to 60 years' imprisonment of his criminal sexual conduct convictions.1 We affirm. Defendant asserts that the trial court erred in the assessment of points for offense variables (OV) 7, 8, 10, 11 and 13 in scoring the sentencing guidelines. As discussed by this Court in People v Wilson, 265 Mich App 386, 397; 695 NW2d 351 (2005): 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. However, this issue also entails a question of statutory interpretation, which is reviewed de novo. [(Internal citations omitted).] With regard to OV 7, "aggravated physical abuse," 50 points should be assessed if a defendant treated the victim "with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety suffered during the offense." MCL 777.37(1)(a). A victim need not be conscious and aware of the abuse for it to rise to the level of extreme

People v Walton, unpublished opinion per curiam of the Court of Appeals, issued June 3, 2008 (Docket No. 276161).

1

-1-

brutality. People v Kegler, 268 Mich App 187, 191; 706 NW2d 744 (2005). We find that the trial court did not err in assessing defendant 50 points for OV 7. Defendant hit the victim with an object, resulting in her loss of consciousness. He physically pushed her out of his vehicle. While the victim remained unconscious, defendant sexually assaulted her. During the sexual assault, despite indications from the victim that she would cooperate because she was fearful that defendant would kill her, defendant strangled the victim leaving marks on her neck and causing her to again lose consciousness. Defendant also pulled the victim by her hair, causing her to lose a golf ball sized clump of hair from her scalp. Based on this evidence, the trial court did not err in finding defendant acted with excessive brutality. OV 8 concerns "victim asportation and captivity." MCL 777.38. A defendant may be assessed 15 points if the "victim was asported to another place of greater danger or to a situation of greater danger." MCL 777.38(1)(a). Force is not a prerequisite to demonstrate asportation. People v Apgar, 264 Mich App 321, 330; 690 NW2d 312 (2004). In Apgar, this Court upheld an assessment of 15 points under OV 8 when the defendant transported the victim without force to an unfamiliar house where he and two other men sexually assaulted her. Id. The record demonstrates that although the victim entered the car willingly, defendant drove the victim to an isolated and unfamiliar area with the intent of sexually assaulting her. As in Apgar, defendant transported the victim to a place of greater danger. It is irrelevant that the victim originally went willingly with defendant when he used the control of his vehicle to transport the victim to a destination to which she did not consent. Therefore, we concur with the trial court's assessment of 15 points for OV 8. Under OV 10, involving the "exploitation of [a] vulnerable victim," 15 points may be assessed if "predatory conduct was involved." MCL 777.40(1)(a). Predatory conduct requires behavior, which occurred before the commission of the offense that was "directed at the victim for the primary purpose of victimization." MCL 777.40(2)(a); People v Cannon, 481 Mich 152, 160; 749 NW2d 257 (2008). In Cannon, the Michigan Supreme Court likened the predatory conduct directed at a victim to that of "a lion that sees antelope, determines which is the weakest, and stalks it until the opportunity arises to attack it engages in conduct directed at a victim." Id. Before assaulting the victim, defendant befriended her at the Post Bar and gained her trust. He then lied to her regarding the availability of her car in order to render her vulnerable and manipulate her acceptance of a ride with him. Once in defendant's vehicle, defendant used the opportunity to drive the victim to an isolated, unfamiliar area and sexually assault her. Because such behavior constitutes, by definition, predatory conduct, the trial court did not abuse its discretion in assessing defendant 15 points on this offense variable. OV 11 concerns "criminal sexual penetration." MCL 777.41. A defendant must be assessed 50 points when "two or more criminal sexual penetrations occurred." MCL 777.41(1)(a). In calculating the points under OV 11, "all sexual penetrations of the victim by the offender arising out of the sentencing offense" must be included except for "the 1 penetration which forms the basis of a first- or third-degree criminal sexual conduct offense." MCL 777.41(2)(a) and (c); People v Cox, 268 Mich App 440, 455; 709 NW2d 152 (2005). Any sexual penetrations of the victim by the offender "extending beyond the sentencing offense may be scored in offense variables 12 or 13." MCL 777.41(2)(b). When there are multiple convictions -2-

for first-degree criminal sexual conduct, a penetration that forms the basis of one conviction may be counted for purposes of OV 11 for another conviction. Cox, 268 Mich App at 456. Moreover, a court may consider penetrations that occurred during the offense but did not form the basis for any charges or convictions. People v Wilkens, 267 Mich App 728, 743; 705 NW2d 728 (2005). Penetrations that occurred on different dates and in different places do not arise out of the same sentencing offense and should not be counted under OV 11, but should be considered under OV 12 or OV 13. People v Johnson, 474 Mich 96, 102 n 3; 712 NW2d 703 (2006). Defendant was convicted of two counts of first-degree criminal sexual conduct. During the course of defendant's sexual assault of the victim, he penetrated her four times, three times vaginally and one time orally. Therefore, with regard to each first-degree criminal sexual conduct conviction, there were three penetrations

Download PEOPLE OF MI V HARRY JACOB WALTON.pdf

Michigan Law