People v. Johnson

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RENO KENYATTE JOHNSON, Defendant-Appellant.

No. 363257

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Genesee Circuit Court LC No. 17-041948-FC

Before: REDFORD, P.J., and SHAPIRO and YATES, JJ.

PER CURIAM.

Defendant appeals as of right his convictions by jury trial of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(f), and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(f).^[1] The trial court sentenced defendant, as a third-offense habitual offender MCL 769.11, to prison terms of 168 months to 40 years, each for the CSC-I convictions, to be served consecutively, and 10 to 30 years for the CSC-II conviction, to be served concurrently with the CSC-I sentences. For the reasons set forth in this opinion, we affirm defendant's convictions but remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was convicted of sexually assaulting then-15-year-old SR during a weekend trip to a three-bedroom cabin in June 2017. SR went there with her friend, TM, and TM's mother and stepfather, Angela and Michael. Defendant's wife, Kimberly, is Angela's cousin. For one night, defendant and his wife joined the group at the cabin. The adults slept in two of the bedrooms, and TM slept in the third. SR was supposed to stay in the room with TM that night, but ended up falling asleep on a couch in the common area.

SR testified defendant woke her up during the early morning hours asking to see her breasts, which she refused. She testified that, defendant then grabbed her breasts, forced her to touch his penis, and performed oral sex on her. Defendant stopped and left when he heard a noise, but then returned and again performed oral sex on SR. When defendant left the room again, SR went into TM's bedroom and told her what happened. TM's mother and stepfather were then advised what happened and confronted defendant. SR was taken to the police station and was subsequently examined by a Sexual Assault Nurse Examiner at a hospital. A sample collected from SR's breast area contained DNA matching defendant's DNA profile. Defendant gave a statement to the police in which he initially denied any inappropriate activity with SR. Defendant later admitted he placed his mouth on SR's breasts, but denied engaging in oral sex.

The prosecutor originally charged defendant with CSC-I and CSC-II under alternative theories that he engaged in sexual penetration and sexual contact (1) with a victim between the ages of 13 and 16, while in a position of authority over the victim, or (2) under circumstances involving the commission of another felony, the felony being unlawful imprisonment. MCL 750.520b(1)(b)(iii) or (c); MCL 750.520c(1)(b)(iii) or (c). On the day before trial, the trial court allowed the prosecutor to amend the information to instead proceed solely under the theory that defendant committed the CSC-I and CSC-II by using force or coercion to accomplish the sexual penetration and contact, causing personal injury to SR in the form of mental anguish. MCL 750.520b(1)(f); MCL 750.520c(1)(f).

The jury found defendant guilty of the two charged CSC-I counts and the CSC-II count alleging he touched SR's breasts, but acquitted defendant of the CSC-II count alleging he forced SR to touch his penis. Defendant now appeals.

II. ANALYSIS

Defendant asserts that several errors occurred in the trial court proceedings. He contends that: (1) his due-process rights were violated by the late amendment of the information; (2) his due-process rights were violated when the trial court permitted the hearsay testimony of the nurse about what the victim said; (3) the prosecutor violated his due-process rights by evoking sympathy for the victim for having to relive the events because of defendant's exercise of his right to a jury trial, and by vouching for the victim's veracity; (4) the trial court improperly assessed Offense Variable (OV) 13, and the proper assessment changed the guidelines range for his sentence, mandating resentencing; (5) the trial court failed to justify its imposition of consecutive sentences for the CSC-I counts; and (6) the trial court violated defendant's right to a speedy trial. Throughout many of these arguments, defendant also argues his trial counsel was ineffective for failing to object or otherwise act in his best interest. While we disagree defendant's rights were violated by the late amendment of the information, the prosecutor's remarks to the jury, or the delay in bringing defendant to trial, and disagree with defendant's argument about the admissibility of the nurse's testimony, we agree the trial court improperly assessed OV 13 and failed to justify its imposition of consecutive sentences for the CSC-I counts.

A. AMENDMENT OF THE INFORMATION

Defendant first argues that the trial court erred by allowing the prosecutor to amend the information the day before trial. We disagree.^[2]

The information originally charged defendant with CSC-I and CSC-II under alternative theories that he engaged in sexual penetration and sexual contact (1) with a victim between the ages of 13 and 16, while in a position of authority over the victim, or (2) under circumstances involving the commission of another felony, the felony being unlawful imprisonment, contrary to MCL 750.520b(1)(b)(iii) or (c); MCL 750.520c(1)(b)(iii) or (c). The day before trial, the trial court permitted the prosecutor to amend the information, replacing these theories with the single theory that defendant engaged in sexual penetration and sexual contact by using force or coercion and caused personal injury, contrary to MCL 750.520b(1)(f) and MCL 750.520c(1)(f).

Under MCR 6.112(H): "The court before, during, or after trial may permit the prosecutor to amend the information or the notice of intent to seek enhanced sentence unless the proposed amendment would unfairly surprise or prejudice the defendant. On motion, the court must strike unnecessary allegations from the information." An information may be amended at any time before, during, or after trial to cure any defect, imperfection, or omission in form or substance, including a variance between the information and proofs, so long as the defendant was not prejudiced by the amendment and the amendment does not charge a new crime. People v Goecke, 457 Mich. 442, 459-460; 579 N.W.2d 868 (1998); People v Higuera, 244 Mich.App. 429, 446; 625 N.W.2d 444 (2001). See also MCL 767.76.

The prosecutor provided defendant with notice of his intent to amend the information before trial commenced and defendant was afforded the opportunity to address the amendment before trial. The amendment did not charge any new crimes, it only altered the theory on which the prosecutor intended to rely to establish the aggravating factors necessary to prove the offenses of CSC-I and CSC-II. Further, one of the original charged theories was that defendant used a position of authority to "coerce the victim to submit," MCL 750.520(1)(b)(iii); MCL 750.520c(1)(b)(iii), and the proposed amendment likewise required the prosecutor to prove that "force or coercion" was used to accomplish the sexual penetration and sexual contact. MCL 750.520(1)(f); MCL 750.520c(1)(f). Whether the sexual acts were accomplished by force or coercion was also a focus of the evidence throughout the case and was explored at the preliminary examination. Thus, defendant cannot claim unfair surprise with respect to the "force or coercion" element of the amended theory.

However, the amendment also introduced a theory that defendant was guilty of CSC-I and CSC-II because he caused personal injury to the victim. "Personal injury" is defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ." MCL 750.520a(n). The prosecutor's theory at trial was that defendant caused personal injury to SR in the form of mental anguish. At the hearing on the prosecutor's motion to amend, in the context of exploring the personal injury issue, the trial court inquired whether the prosecutor intended to offer any evidence that had not already been disclosed, noting it did not intend to allow any such evidence. The prosecutor clarified he did not intend to offer any new evidence.

Defendant argues that this case is similar to People v Willett, 110 Mich.App. 337, 342-344; 313 N.W.2d 117 (1981), which also involved a CSC-I case in which the trial court allowed the prosecutor to amend the information in a manner similar to the amendment in this case. First, we note that we are not bound by Willett, because it was decided before November 1, 1990. MCR 7.215(J)(1). Regardless, Willett is distinguishable from this case. In Willett, the prosecutor waited until after the close of proofs to change its theory of the case from one involving criminal sexual conduct during the commission of another felony to one involving the use of force or coercion and causing personal injury. In Willett, the personal injury element was largely ignored by both parties during trial. This Court determined the amendment "after the close of proofs served to prejudice the defendant by denying him the opportunity to present evidence to disprove the element of personal injury to the victim." Id. at 344. Unlike the defendant in Willett, in this case, defendant had notice of the amendment before trial, and thus had an opportunity to defend against the amended theory. Although defendant argues the late notice prejudiced his ability to produce evidence to defend against the new theory concerning mental anguish, he does not identify any evidence he would have produced had he been aware of the amendment earlier.

Although it...