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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TROY MICHAEL OMEY, Defendant-Appellant.

UNPUBLISHED August 6, 2009

No. 281580 Lenawee Circuit Court LC No. 06-012287-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TROY MICHAEL OMEY, Defendant-Appellant. No. 281581 Lenawee Circuit Court LC No. 06-012288-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TROY MICHAEL OMEY, Defendant-Appellant. No. 281582 Lenawee Circuit Court LC No. 06-012289-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TROY MICHAEL OMEY, -1No. 281583 Lenawee Circuit Court LC No. 06-012292-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TROY MICHAEL OMEY, Defendant-Appellant. No. 281584 Lenawee Circuit Court LC No. 06-012293-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TROY MICHAEL OMEY, Defendant-Appellant. No. 281585 Lenawee Circuit Court LC No. 06-012294-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TROY MICHAEL OMEY, Defendant-Appellant. No. 281586 Lenawee Circuit Court LC No. 06-012295-FC

Before: Murray, P.J., and Gleicher and M.J. Kelly, JJ. PER CURIAM. A jury convicted defendant in seven separate files of eight total counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (victim younger than 13) and (b)(ii) (related victim between ages 13 and 16), and eight counts of second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(a) (victim younger than 13) and (b)(ii) (related victim between ages 13 and 16). The trial court sentenced defendant to concurrent prison terms of 96 to 540 months for one CSC I conviction, 180 to 540 months for four of the CSC I convictions, and -2-

225 to 675 months for the other three CSC I convictions. The court also imposed concurrent prison terms of 36 to 180 months for one CSC II conviction, 71 to 180 months for two of the CSC II convictions, and 86 to 180 months for the remaining five CSC II convictions. Defendant appeals by delayed leave granted. We affirm in part, reverse in part, and remand. Defendant's convictions arise from his repeated sexual assaults of two daughters, MO and CO. The prosecutor charged defendant with committing several sexual offenses against MO during different periods between April 2001 and September 2004, and with sexually assaulting CO in November or December 1998. I. Adequacy of Informations and Jury Instructions Defendant first contends that the multiple informations against him, the verdict form, and the trial court's jury instructions all qualified as impermissibly vague and confusing in identifying the charged offenses. Defendant specifically maintains that the documents and instructions failed to adequately differentiate between the conduct charged in each count, and thus required the jury to speculate regarding what evidence or testimony supported each charge. Because defendant failed to object to the informations, the verdict form, or the jury instructions, we review these unpreserved issues only to determine whether defendant can demonstrate a plain error affecting his substantial rights. People v Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999); People v Aldrich, 246 Mich App 101, 124-125; 631 NW2d 67 (2001). A prosecutor should craft an indictment "in language that will fairly appraise the accused . . . of the offense charged," and must list the date "as near as may be." MCL 767.45(1)(a), (b). An approximate date may suffice, depending on the nature of the crime charged, the victim's ability to specify a date, the prosecutor's efforts to pinpoint a date, and the prejudice to a defendant in preparing a defense. People v Sabin, 223 Mich App 530, 532; 566 NW2d 677 (1997). "In criminal sexual conduct cases, especially those involving children, time is not usually of the essence or a material element." Id. After reviewing the seven felony informations prepared by the prosecutor in these cases, we observe that they describe the nature of defendant's alleged conduct, and all pinpoint the commission dates or time periods with reasonable specificity, especially given that all the charges in these cases involve minor child victims and repeated instances of sexual abuse. We thus conclude that informations contained sufficient specificity to notify defendant of the conduct charged. The jury verdict form tracks the language of the informations for each charge submitted to the jury.1 For each charged offense, the verdict form identified the victim, the nature of the unlawful conduct charged, and the period in which the offense allegedly took place, thereby helping the jury differentiate among the various charges. And contrary to defendant's argument, the offense descriptions in the verdict form correlated with the victims' trial testimony discussing

In LC No. 06-012288-FC, the dates contained in the information were changed in the verdict form to conform with the victim's testimony, with defense counsel's consent.

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defendant's various sexual assaults.2 Thus, the jury need not have speculated with respect to what evidence or testimony was associated with each charge. The trial court's jury instructions set forth the elements of CSC I and CSC II, including the applicable variables. Defendant does not complain that the instructions contained substantive errors. Rather, he asserts that they failed to differentiate between the multiple charges in the different lower court files. However, the instructions referred the jury to the verdict form for this information and, as previously discussed, the verdict form adequately differentiated between the various charges. Viewed as a whole, the jury instructions thus fairly presented the issues to be tried and sufficiently protected defendant's rights. People v Gaydosh, 203 Mich App 235, 237; 512 NW2d 65 (1994). In summary, defendant has failed to establish any error, plain or otherwise, arising from the informations, the verdict form, or the trial court's jury instructions. Therefore, we also find no merit in defendant's related argument that defense counsel was ineffective for failing to raise these issues at trial. Counsel need not raise a meritless objection.3 People v Kulpinski, 243 Mich App 8, 27; 620 NW2d 537 (2000). II. Sufficiency of Evidence Defendant next avers that insufficient evidence supported his CSC II convictions because the victims' testimony described only acts of sexual penetration punishable as CSC I. We review the sufficiency of the evidence de novo by considering the evidence in the light most favorable to the prosecutor to determine whether a rational trier of fact could find every element of the charged crime proven beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." Id. at 400.

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We find it plain that the charge and verdict form for LC No. 06-012295-FC related to the testimony that defendant sexually assaulted CO near Thanksgiving or Christmas in 1998; the charge and verdict form for LC No. 06-012289-FC related to the first described incident of molestation and digital penetration against MO; the charge and verdict form for LC No. 06012293-FC related to the first incident of intercourse described by MO; the charges and verdict form for LC No. 06-012288-FC related to MO's testimony concerning two acts of intercourse on the kitchen table; the charge and verdict form for LC No. 06-012287-FC related to MO's testimony concerning an act of intercourse during a visit after she moved out of defendant's house; the charge and verdict form for LC No. 06-012292-FC related to MO's testimony concerning an act of intercourse when she stayed with defendant because of her stepfather's surgery; and the charge and verdict form for LC No. 06-012294-FC related to the last described act of intercourse against MO, just before the abuse was reported to authorities.

Additionally, as the prosecutor notes, ineffective assistance of counsel is not properly before the Court because defendant did not raise this issue in his applications for delayed leave to appeal, and this Court granted the applications limited to the issues raised therein. MCR 7.205(D)(4).

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The prosecutor charged defendant with multiple counts of CSC II, pursuant to the following statutory provisions in MCL 750.520c: (1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists: (a) That other person is under 13 years of age.

(b) That other person is at least 13 but less than 16 years of age and any of the following: *** (ii) The actor is related by blood or affinity to the fourth degree to the victim. [Emphasis added.] "Sexual contact" means "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, done for a sexual purpose, or in a sexual manner for" revenge, to inflict humiliation, or out of anger. MCL 750.520a(q). In LC No. 06-012289-FC, the prosecutor charged that between April 2001 and June 2001, defendant committed one count of CSC I, digital-vaginal penetration, against MO, and two counts of CSC II, summarized in the information as "sexual contact with" MO. These charges tracked the trial testimony of MO, born in December 1989, that the first assault she recalled by defendant involved his fondling of her vagina followed by his penetration of her vagina with his finger. In LC No. 06-012293-FC, the prosecutor also charged that between April 2001 and June 2001, defendant penetrated MO's vagina with his penis (CSC I), and a second count of CSC II on the basis of defendant's "sexual contact with . . . [MO]." The prosecutor apparently grounded these charges on MO's recollection that "soon after" defendant's initial sexual assault, the "[s]ame thing happened," culminating in defendant's penile penetration of MO's vagina on a bed. In LC No. 06-012288-FC, the information alleged that between May 2002 and June 2002, defendant committed against MO two counts of CSC I and one count of CSC II. This information related to MO's trial description that the next molestation episode by defendant that stood out in MO's mind took place when, "I think I was 12." The 2002 sexual assault by defendant occurred in a different setting, "when he put [MO] on the edge of the table and started having intercourse," eventually penetrating her vagina with his penis a second time. With respect to the adequacy of proof supporting the four CSC II counts in LC Nos. 06012289-FC, 06-012293-FC and 06-012288-FC, MO related at trial that the first assault by defendant incorporated his contact with or fondling of her vagina and his digital penetration of her vagina, all as he played a pornographic movie. "[S]oon after" the first molestation, MO -5-

recalled that defendant ordered her into a bedroom and penetrated her vagina with his penis while on a bed. When MO offered that she next remembered the tabletop penetration that occurred during the next year when she "was 12," the following exchange took place: Prosecutor: Okay. So it would've been a whole year. MO: Yes. Prosecutor: Okay, did these things continue to happen between 11 and 12? MO: Yes. Prosecutor: How often? MO: Like three to four--three to four times-- Prosecutor: Was it always-- MO: --a week. *** Three to four times a week. Prosecutor: Okay, was it always the same? MO: Pretty much, except for the table. Near the conclusion of MO's direct examination, the prosecutor summarized that MO only remembered details from certain of the charged events. In explanation, the prosecutor inquired, "Is this pretty much something that once it started it happened on a regular basis[,]" and MO replied, "Yes." MO's trial testimony detailed one specific incident of vaginal fondling. But viewing MO's testimony in the light most favorable to the prosecutor, and indulging every reasonable inference in support of the jury's verdict, her testimony substantiates a rational inference that three or four times a week throughout the period she was 11 and 12 years of age, "these things," specifically defendant's fondling of her vagina, penetration of her vagina, or both, routinely took place. Viewing MO's trial testimony in this light, the jury rationally could have found beyond a reasonable doubt that, on at least four occasions when MO was between the ages of 11 and 12, defendant's ongoing molestations of MO included the vaginal fondling she described at trial. In summary, the jury reasonably could have found beyond a reasonable doubt that defendant had unlawful sexual contact with MO's vagina, as charged in the four CSC II counts in LC Nos. 06012289-FC, 06-012293-FC and 06-012288-FC. Regarding the remainder of the CSC II counts, MO recalled that she moved out of defendant's home and began residing with her mother in Dearborn sometime before the school year began in 2002. With respect to the sexual assaults that took place when MO subsequently -6-

visited her brother at defendant's home, MO described only that she and defendant had "sexual intercourse," which MO repeatedly defined at trial as consisting of defendant's penetration of her vagina with his penis. With respect to CO, she similarly testified that sexual assaults by defendant became routine, but only detailed one incident in which defendant penetrated her vagina with his penis. The record thus simply contains no evidentiary basis for any of the four instances of unlawful sexual contact charged as CSC II in LC Nos. 06-012287-FC (January 2003-October 2004 against MO), 06-012292-FC (August 2004 against MO), 06-012294-FC (September 2002 against MO), and 06-012295-FC (November 1998 or December 1998 against CO). Contrary to the prosecutor's contention that CSC II necessarily occurs anytime a defendant commits CSC I, controlling precedent of our Supreme Court instructs otherwise. In People v Lemons, 454 Mich 234, 253-254; 562 NW2d 447 (1997), the Michigan Supreme Court explained, CSC I requires the prosecutor to prove "sexual penetration." MCL 750.520b(1) . . . . CSC II requires the prosecutor to prove "sexual contact." MCL 750.520c(1) . . . . Sexual penetration can be for any purpose. MCL 750.520a(1) . . . . The statute defines sexual contact, however, as touching that "can reasonably be construed as being for the purpose of sexual arousal or gratification." MCL 750.520a(k) . . . . Thus, because CSC II requires proof of an intent not required by CSC I--that defendant intended to seek sexual arousal or gratification--CSC II is a cognate lesser offense of CSC I. In short, it is possible to commit CSC I without first having committed CSC II. [Id. (emphasis added)] Several Michigan Supreme Court justices recently expressed a willingness to reconsider whether CSC II constitutes a cognate lesser offense of CSC I. See People v Nyx, 479 Mich 112; 734 NW2d 548 (2007).4 But Lemons remains controlling precedent for purposes of our analysis. In conclusion, we affirm defendant's four CSC II convictions in LC Nos. 06-012289-FC, 06-012293-FC and 06-012288-FC. But we vacate defendant's four CSC II convictions in LC Nos. 06-012287-FC, 06-012292-FC, 06-012294-FC, and 06-012295-FC because they lacked any evidentiary foundation. III. Double Jeopardy

Justices Young and Weaver, concurring in part and dissenting in part, and Justice Corrigan, dissenting, opined that CSC II is a necessarily included lesser offense of CSC I. Id. at 143, 154, 161-165, 178. Justices Taylor and Markman disagreed. Id. at 117-118, 134-137. Justices Cavanagh and Kelly did not reach the issue. Id. at 142-143. Unlike this case, in which defendant stood trial on numerous, separate charges of CSC I and CSC II, the prosecutor charged the defendant in Nyx with several counts of CSC I only, and the Supreme Court in Nyx analyzed whether "a defendant charged with an offense consisting of various degrees may . . , consistent with MCL 768.32(1), be convicted of a lesser degree of the charged offense where the lesser degree contains an element not found within the higher degree." Id. at 115 (opinion by Taylor, C.J.).

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Defendant next argues that even if the evidence adequately supported his guilt of both CSC I and CSC II in some of the informations, his dual convictions violate the double jeopardy protections against multiple punishments for the same offense, US Const, Am V; Const 1963, art 1,

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