People v. Johnson

UNPUBLISHED

Wayne Circuit Court LC No. 15-006290-01-FC.

Before: Borrello, P.J., and Jansen and Boonstra, JJ.

PER CURIAM.

Following a jury trial, ^[1] defendant was convicted of two counts of first-degree criminal sexual conduct (CSC-I) (weapon used), MCL 750.520b(1)(e); one count of kidnapping, MCL 750.349; and one count of accosting a child for immoral purposes, MCL 750.145a.^[2] The trial court sentenced defendant to 210 to 480 months' imprisonment for each of his convictions of CSC-I and kidnapping, as well as 12 to 48 months' imprisonment for his conviction of accosting a child for immoral purposes, with his sentences to run concurrently. Defendant now appeals as of right. For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

At trial, AT testified that defendant grabbed her as she was walking to her high school, pulled her towards some trees and bushes, and sexually assaulted her. During the assault,

2

defendant penetrated her vagina with his fingers and penis. AT testified that when defendant grabbed her and started pulling her toward the bushes, he was pointing a gun at her. Defendant was holding the gun in his hand, and AT saw it "[f]or a second." She described the gun as "black." AT testified that the gun touched her back. She further testified that as defendant was penetrating her vagina with his fingers, defendant was behind her and she felt the gun on her back. At some point, defendant told AT to "shut up" or he would "shoot" her. She believed him when he told her that he would shoot her, and she felt scared. AT no longer felt the gun once defendant put his penis in her vagina, but he was still behind her and she could not see him. She felt both his hands on her waist. Defendant told AT to put her mouth on his penis, and she refused.

After the assault, AT was crying and she told defendant that she would not tell anybody what happened. He released her, and she ran to school where she reported the attack. AT testified that she typically left her house around 7:15 a.m. to walk to school and that the school day began at 8:15 or 8:30 a.m. AT arrived at school on the morning of the assault just after the school day began. AT identified defendant as the attacker.

Defendant was arrested in the front passenger seat of his sister's car, which fit the description of the car AT previously witnessed defendant driving.^[3] The car was searched, and a gun was recovered under the front passenger seat. Defendant's sister initially told police that the gun was hers, but she later told them that the black gun belonged to her brother.^[4] Defendant's sister testified that in June 2015, defendant typically drove her car to take his girlfriend to work in the morning. Defendant's girlfriend had to be at work by 7:00 a.m. Laboratory testing determined that there was a DNA match between defendant and a sample of sperm collected from AT's vagina. Furthermore, AT identified a pair of underwear found in defendant's home as her underwear that she was missing after the assault. However, defendant's sister also claimed ownership of this pair of underwear during her testimony at trial.

As relevant to the issues presented on appeal, the trial court instructed the jury during final jury instructions that the elements of the two CSC-I charges required the jury to find that defendant "was armed with a weapon" at the time that he committed the acts in order to convict defendant of the CSC-I counts. The jury was also instructed that defendant had to have "a weapon, a pistol" to be convicted of the felonious assault charge^[5] and that he had to have "carried a gun" to be convicted

3

of each of the two felony-firearm charges.^[6] The jury convicted defendant of both CSC-I counts, but it acquitted him of the felonious-assault count and both counts of felony-firearm.^[7] Defendant was sentenced as previously stated. This appeal followed.

II. OV 1 AND OV 2

On appeal, defendant argues that the trial court erroneously assessed points under offense variable (OV) 1 and OV 2 on the basis of acquitted conduct because defendant was assessed points under those OVs as if he had used a gun even though the jury acquitted him of felonious assault and the felony-firearm counts. Defendant raised these objections to the scoring of OV 1 and OV 2 at sentencing, and the trial court denied defendant's request to reduce the number of points assessed for those OVs. Therefore, these arguments are preserved. People v Kimble, 470 Mich. 305, 311-312; 684 N.W.2d 669 (2004); People v Francisco, 474 Mich. 82, 89; 711 N.W.2d 44 (2006); MCL 769.34(10).

A. STANDARD OF REVIEW

This Court reviews the "interpretation and application of the statutory sentencing guidelines" de novo as questions of law. Francisco, 474 Mich. at 85. "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. 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." People v Rodriguez, 327 Mich.App. 573, 576; 935 N.W.2d 51 (2019) (quotation marks and citation omitted).

Finally, defendant's appellate argument primarily relies on our Supreme Court's holding in People v Beck, 504 Mich. 605, 608-609, 629; 939 N.W.2d 213 (2019), in which the Court held that the due-process protections enshrined in the Fourteenth Amendment prohibit a sentencing court from finding by a preponderance of the evidence at sentencing that a defendant committed conduct for which the defendant was acquitted, or otherwise relying on acquitted conduct at sentencing, when sentencing the defendant for other crimes of which the defendant was convicted. Defendant's argument thus implicates issues of a constitutional nature that we review de novo. Id. at 618 ("The question whether the Sixth and Fourteenth Amendments permit the use of acquitted conduct to increase a defendant's sentence presents issues of constitutional interpretation, which we review de novo.").

B. ANALYSIS

In this case, defendant was assessed 15 points for OV 1, which provides in relevant part as follows:

4

(1) Offense variable 1 is aggravated use of a weapon. Score offense variable 1 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points

* * *

(c) A firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an immediate battery when threatened with a knife or other cutting or stabbing weapon ………………………………………… 15 points

(d) The victim was touched by any other type of weapon ………... 10 points

(e) A weapon was displayed or implied …………………………… 5 points

(f) No aggravated use of a weapon occurred ……………………… 0 points

(2) All of the following apply to scoring offense variable 1

* * *

© Score 5 points if an offender used an object to suggest the presence of a weapon. [MCL 777.31]

Defendant was also assessed 5 points for OV 2, which provides in relevant part as follows:

(1) Offense variable 2 is lethal potential of the weapon possessed or used. Score offense variable 2 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

* * *

(d) The offender possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon ………………………………………………... 5 points

(e) The offender possessed or used any other potentially lethal weapon ……………………………………………………………………………… 1 point

(f) The offender possessed or used no weapon …………………….. 0 points

* * *

(3) As used in this section:

* * *

(c) "Pistol", "rifle", or "shotgun" includes a revolver, semi-automatic pistol, rifle, shotgun, combination rifle and shotgun, or other firearm manufactured in or

5

after 1898 that fires fixed ammunition, but does not include a fully automatic weapon or short-barreled shotgun or short-barreled rifle. [MCL 777.32.]

At the sentencing hearing, defendant objected to the scoring of both OV 1 and OV 2. He argued that 15 points should not have been assessed for OV 1 because defendant was acquitted of "the gun charge," and defendant further argued that "5 points where the weapon was displayed or implied is more accurate." The trial court ruled:

The literal reading of the information is a gun used, used in any form or fashion to, or along with the accomplishment of the elements for criminal sexual assault. I believe that the evidence would support a finding of 15 as opposed to 5. So, I' ll leave that at 15.

Next, defendant argued at the sentencing hearing that 0 points, rather than 5 points, should have been assessed for OV 2 because defendant was "acquitted of possession of a weapon." The trial court denied defendant's scoring request, stating that it was making the "[s]ame ruling" as it did for OV 1.

Defendant similarly argues on appeal that his scores for OV 1 and OV 2 were erroneous because he was acquitted by the jury of the "firearm charges" and that the trial court's scoring for OV 1 and OV 2 therefore violated the holding in Beck. Stated succinctly, the Beck Court held that "[o]nce acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime." Beck, 504 Mich. at 609.

In this case, defendant was acquitted of felonious assault and two counts of felony-firearm. The crime of felonious assault is defined in MCL 750.82(1), which provides in pertinent part that "a person who...