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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOSEPH MARTIN DEVINE, Defendant-Appellant.

UNPUBLISHED November 18, 2010

No. 294568 Oakland Circuit Court LC No. 2009-226911-FH

Before: MURPHY, C.J., and METER and SHAPIRO, JJ. PER CURIAM. Defendant appeals as of right from his convictions by a jury of three counts of thirddegree criminal sexual conduct (CSC III), MCL 750.520d(1)(b). The trial court, applying a fourth-offense habitual offender enhancement under MCL 769.12, sentenced defendant to three concurrent terms of 25 to 40 years' imprisonment. We affirm. Defendant's convictions arose from his ongoing sexual abuse of his long-term girlfriend. The victim had previously claimed that defendant forced her to have sex, but she attempted to retract this statement at trial. Defendant argues that the prosecutor presented insufficient evidence to support his convictions. In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. [People v Fetterley, 229 Mich App 511, 515; 583 NW2d 199 (1998).] Moreover, [t]he standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict. The scope of review is the same whether the evidence is direct or circumstantial. [People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).]

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Defendant was charged with engaging in sexual penetration using force or coercion. See MCL 750.520d(1)(b). In his sufficiency-of-the-evidence argument, defendant specifically contends that the prosecutor presented insufficient evidence of force or coercion. We disagree. Detective Stacy Swanderski of the Farmington Hills Police Department testified that she spoke with the victim on May 6, 2009. Swanderski described the victim as "[c]rying, nervous, very small, frail, sickly in my opinion, gaunt." Swanderski stated that the victim told her that defendant awoke her at 3:00 a.m. one morning and proceeded to wash her vagina and digitally penetrate her. According to Swanderski, the victim stated that she was afraid of defendant, that he was very intoxicated at the time, and that his insertion of fingers was painful because of a recent surgery she had had for a torn cervix. The victim described the incident as "very aggressive" and a "forceful washing." The prosecutor then engaged in the following colloquy with Swanderski: Q. And did she tell you whether or not she consented to these acts? A. She did not [sic]. She explained to me that she did not consent to this act because number one, she was awakened and she had no idea that -- even this was going to happen, and nor did she request it to happen. Q. All right. She asked for him to stop, but he did not stop? A. Correct. Q. And did she talk to you about anything else that happened? A. She then explained to me because I, again, asked about any other history of any other physical abuse or violence that had taken place. She explained to me since approximately 2007, there had been a number of times that he had forcefully made her give him a blow job. *** A. Perform oral sex. He would come into the room. Again, her room, the bedroom she slept in and straddle her over top of her face area and forcibly take his hands and pull her by the hair and forcefully make her perform oral sex on him. Swanderski testified that the victim told her that this forced oral sex occurred every other day since November 2007 and that she would write the word "Hell" on the calendar on the days that it occurred. Swanderski obtained a written statement from the victim describing the incidents; this statement was read into the record. Mary-Lynn Britts, a friend of the victim, testified that she spoke with the victim on the morning of May 6, 2009. According to Britts, the victim stated that, the prior night, defendant gave her a "sitz bath" against her wishes and inserted his fingers in her. Britts testified that, in

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the past, defendant would force the victim to have sex, and later the victim began to submit "to keep him quiet." The victim testified that defendant "never forced [her] to have sex." However, she admitted that he "force[d] his fingers into [her] vagina" during the sitz-bath incident. She claimed that he stopped the sitz bath after she asked him to do so. She admitted that she had previously accused defendant of forcibly penetrating her mouth and vagina and had written a statement describing the incidents. She stated that she retracted those statements because "I want him to have his life back." The victim testified that defendant "can be mentally abusive to me. But after eighteen years, you get used to it." Alison Hoffman, the victim's daughter-in-law, testified that she had witnessed defendant being "[v]ery verbally sexually abusive" towards the victim and demanding sex. Testifying for impeachment purposes, Hoffman stated that the victim told her, at various times, that defendant had forced her to have sex. According to Hoffman, the victim told her that defendant had been so aggressive with her one time during sex that the victim's cervix was torn and required surgery. Karen Maldonado, a friend of the victim, testified that she, too, observed defendant being verbally and mentally abusive towards the victim. Maldonado, testifying for impeachment purposes, stated that the victim told her multiple times that defendant had forced her to have sex with him. The pertinent statute provides that [f]orce or coercion includes, but is not limited to, any of the following circumstances: (i) When the actor overcomes the victim through the actual application of physical force or physical violence. (ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats. (iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, "to retaliate" includes threats of physical punishment, kidnapping, or extortion. (iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes that are medically recognized as unethical or unacceptable. (v) When the actor, through concealment or by the element of surprise, is able to overcome the victim. [MCL 750.520b(1)(f); see also MCL 750.520d(1)(b).] In People v Carlson, 466 Mich 130, 140; 644 NW2d 704 (2002), the Court stated: -3-

To be sure, the "force" contemplated in MCL 750.520d(1)(b) does not mean "force" as a matter of mere physics, i.e., the physical interaction that would be inherent in an act of sexual penetration, nor, as we have observed, does it follow that the force must be so great as to overcome the complainant. It must be force to allow the accomplishment of sexual penetration when absent that force the penetration would not have occurred. In other words, the requisite "force" for a violation of MCL 750.520d(1)(b) does not encompass nonviolent physical interaction in a mechanical sense that is merely incidental to an act of sexual penetration. Rather, the prohibited "force" encompasses the use of force against a victim to either induce the victim to submit to sexual penetration or to seize control of the victim in a manner to facilitate the accomplishment of sexual penetration without regard to the victim's wishes. Here, there was clear evidence that defendant, on at least three occasions, sexually penetrated the victim by "induc[ing] the victim to submit to sexual penetration" or by "seiz[ing] control of the victim in a manner to facilitate the accomplishment of sexual penetration without regard to the victim's wishes." Id. While contradictory evidence was introduced at trial, it was up to the jury to decide which testimony to believe. People v Unger, 278 Mich App 210, 228229; 749 NW2d 272 (2008). Reversal is not warranted. Defendant next argues that his sentences constituted cruel and/or unusual punishment. See US Const, Am VIII and Const 1963, art 1,

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