People v. McWherter

UNPUBLISHED

Saginaw Circuit Court LC No. 19-045854-FH

Before: Swartzle, P.J., and Sawyer and Letica, JJ.

PER CURIAM

Defendant appeals as of right his jury trial convictions of three counts of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(c) (sexual contact under circumstances involving the commission of another felony).^[1] The trial court sentenced defendant to concurrent sentences of 86 months' to 15 years' in prison for each count, with credit for 320 days served. On appeal, defendant argues that there was insufficient evidence to sustain his convictions, the prosecution engaged in misconduct, there was evidentiary error, his counsel was ineffective, and he was sentenced on the basis of inaccurate information. We reverse and remand for a new trial.

I. FACTS AND PROCEEDINGS

Defendant was charged with engaging in sexual contact with two victims, OW and MC, when they were 13 years old. The alleged assaults occurred on separate occasions when the victims were spending the night at the home of their friend, CN. Defendant lived in the same home and was the boyfriend of CN's mother, Erin. OW testified that, in the summer of 2017, while staying at CN's house, defendant gave her marijuana. She later awoke to discover defendant touching her breast and vagina, and placing her hand on his penis. He also photographed her

breasts. MC testified that, in the summer of 2018, also while staying at CN's house, she awoke to find defendant touching her breast and vagina.

At trial, defendant testified and denied the allegations. As to MC, defendant contended that he was attempting to retrieve a charger from the couch where she was sleeping. As to OW, defendant denied providing OW with marijuana to smoke, testifying that she brought her own. And, during police questioning, defendant described potentially grazing OW's breast accidentally. While defendant, OW, and CN were watching movies, his arm was on the back of the couch, but it fell forward after he fell asleep.

The defense also presented testimony from other witnesses, including CN and Erin, who disputed some of the details provided by the victims. The defense's theory was that the victims fabricated the allegations in order to hurt CN.

Although the police executed a search warrant pertaining to the electronic devices in the home, they did not locate the photographs OW described. However, a substantial time had passed between the alleged assault and the execution of the warrant so that any photographs could have been deleted or destroyed. Furthermore, the police could not access all the devices.

After one day of jury selection and two days of testimony, the jury deliberated for several hours over two days and convicted defendant of the charges involving OW, but found him not guilty of the charges involving MC. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to support his convictions of CSC-II because the sexual contact did not occur under circumstances involving the felonious delivery of marijuana to a minor. We disagree.

"This Court reviews de novo a defendant's challenge to the sufficiency of the evidence supporting his or her conviction." People v Miller, 326 Mich.App. 719, 735; 929 N.W.2d 821 (2019). This Court reviews "the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could find that the prosecution proved the crime's elements beyond a reasonable doubt. Conflicting evidence and disputed facts are to be resolved by the trier of fact." Id. (citations omitted). In addition, "[m]inimal circumstantial evidence and reasonable inferences can sufficiently prove the defendant's state of mind, knowledge, or intent." Id.

MCL 750.520c(1)(c) provides that "[a] person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and . . . [s]exual contact occurs under circumstances involving the commission of any other felony."" 'Sexual contact' means 'the intentional touching of the victim's or [defendant's] intimate parts . . . if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, [or] done for a sexual purpose . . . .'" People v DeLeon, 317 Mich.App. 714, 719; 895 N.W.2d 577 (2016) (alterations in original), quoting MCL 750.520a(q)." 'Intimate parts' include a person's 'genital area, groin, inner thigh, buttock, or breast.'" DeLeon, 317 Mich.App. at 719, quoting MCL 750.520a(f).

The alleged felony in this case was delivery of a controlled substance (marijuana) to a minor under MCL 333.7410(1), which provides:

Except as otherwise provided in subsections (2) and (3), an individual 18 years of age or over who violates section 7401(2)(a)(iv) by delivering or distributing a controlled substance listed in schedule 1 or 2 that is either a narcotic drug or described in section 7214(a)(iv) to an individual under 18 years of age who is at least 3 years the deliverer's or distributor's junior may be punished by the fine authorized by section 7401(2)(a)(iv) or by a term of imprisonment of not less than 1 year nor more than twice that authorized by section 7401(2)(a)(iv), or both. An individual 18 years of age or over who violates section 7401 or 7401b by delivering or distributing any other controlled substance listed in schedules 1 to 5 or gamma-butyrolactone to an individual under 18 years of age who is at least 3 years the distributor's junior may be punished by the fine authorized by section 7401(2)(b), (c), or (d) or 7401b, or by a term of imprisonment not more than twice that authorized by section 7401(2)(b), (c), or (d) or 7401b, or both. [Footnotes omitted.]

" '[D]elivery' means the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship." MCL 333.7105(1).

Accordingly, with regard to the CSC-II convictions in this case, the prosecution was required to prove that (1) defendant intentionally touched OW's breast or genital area or made OW touch his penis, (2) for the purpose of sexual arousal or gratification or for a sexual purpose, (3) under circumstances involving the transfer of marijuana to OW. Defendant only challenges the third element.

In People v Waltonen, 272 Mich.App. 678, 691; 728 N.W.2d 881 (2006), this Court held that, under the parallel language in MCL 750.520b(1)(c) (sexual penetration under circumstances involving a felony), "there must be a sufficient nexus between the underlying felony and the sexual penetration." This Court agreed with an earlier decision of this Court in People v Jones, 144 Mich.App. 1; 373 N.W.2d 226 (1985), stating:

We agree with the Jones panel that § 520b(1)(c) cannot be construed to require that the sexual penetration occur during the commission of the underlying felony; the language of the statute is not so limiting with respect to sequence and is more broadly drafted. The key language of the statute is "occurs under circumstances involving," which does not necessarily demand that the sex act occur during the commission of the felony, although this generally will be the case. But the statutory language does require a direct interrelationship between the felony and the sexual penetration. Here, the delivery of controlled substances technically occurred after the sexual acts; however, the sexual acts were directly related to the delivery of the drugs because the only reason the victim engaged in sexual penetration was to acquire the drugs. Stated somewhat differently, delivery of the drugs was part and parcel of the act of sexual penetration. Before and during the sexual penetration, the victim and defendant were operating under the knowledge and expectation that drugs would be delivered to the victim after the sexual act and

only because of the sexual act. There existed a continuum of interrelated events. [Waltonen, 272 Mich.App. at 692-693 (footnotes omitted).]

In People v Lockett, 295 Mich.App. 165, 178; 814 N.W.2d 295 (2012) (alteration in original), this Court found it reasonable to conclude that "in enacting MCL 750.520b(1)(c), the Legislature intended that the 'circumstances involving the commission of [the] other felony' directly impact a 'victim,' or recipient, of the sexual penetration." This Court stated:

This reading is consistent with other cases that have interpreted MCL 750.520b(1)(c). In Waltonen, this Court repeatedly referred to the other person as "the victim" of the sexual penetration. Waltonen, 272 Mich.App. at 680-693. In addition, the victim of the sexual penetration was directly impacted by the circumstances of the other felony because the defendant delivered the Oxycontin to the victim. Id. at 682, 693. In People v Pettway, 94 Mich.App. 812, 814; 290 N.W.2d 77 (1980), the defendant was convicted of CSC-I after he broke into a home and sexually penetrated a victim. The victim of the sexual penetration was also a victim of the other felony because the victim was an occupant of the home that the defendant broke into and entered. Id. at 818. In People v Wilkens, 267 Mich.App. 728, 736; 705 N.W.2d 728 (2005), the defendant was convicted of CSC-I after he produced sexually abusive material involving a minor. The penetration "victims" were the children with whom the defendant produced the sexually abusive material. See id. at 732, 737-738. The victims of the sexual penetration were also victims of the underlying felony because they were involved in the production of the sexually abusive material. Id. [Lockett, 295 Mich.App. at 178-179.]

In this case, there...