People v. Shotwell

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTHONY WAYNE SHOTWELL, Defendant-Appellant.

No. 363283

Court of Appeals of Michigan

May 30, 2024

UNPUBLISHED

Ingham Circuit Court LC No. 19-000859-FH

Before: MARKEY, P.J., and RIORDAN and CAMERON, JJ.

PER CURIAM.

A jury convicted defendant of causing or persuading a child to engage in child sexually abusive activity (CSAA), MCL 750.145c(2)(a), using a computer to commit the crime of CSAA MCL 752.796 and MCL 752.797(3)(f), possession of child sexually abusive material (CSAM), MCL 750.145c(4)(a), using a computer to commit the crime of CSAM, MCL 752.796 and MCL 752.797(3)(d), third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) (sexual penetration accomplished by force or coercion), and two counts of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(b) (sexual contact accomplished by force or coercion). The trial court sentenced defendant to serve concurrent terms of 7 to 20 years' imprisonment for the CSAA conviction, 5 to 20 years' imprisonment for the using-a-computer-CSAA conviction, 23 to 84 months' imprisonment for the using-a-computer-CSAM conviction, 7 to 15 years' imprisonment for the CSC-III conviction, and 365 days' incarceration for the CSAM and CSC-IV convictions. Defendant appeals by right, challenging both his convictions and sentences on constitutional and nonconstitutional grounds. We affirm.

I. BACKGROUND

The events of this case occurred during the summer of 2019. Defendant, who was 50 years old and married at the time began communicating with the female complainant, SMS, who was 16 years old and lived with her parents in the summer of 2019. The two met at a motorcycle club to which defendant and SMS's father belonged. SMS would sometimes accompany her father to the club. SMS did not have many friends and was shy, and she testified that her father encouraged her to talk to defendant. SMS and defendant communicated almost exclusively through Facebook Messenger. At first, their communications remained platonic; however, SMS testified that defendant eventually expressed feelings for her. Moreover, defendant began pushing SMS to send him more and more revealing images of herself. SMS felt pressured, and she subsequently complied, sending images and videos of herself in various stages of undress, including images in which she was nude and performing sexual acts requested by defendant. The police later recovered many of these images and videos from defendant's cellphone, and they were admitted into evidence.

SMS also described two sexual assaults committed against her by defendant. He came over to SMS's house one day to drop off a motorcycle jack for SMS's father. SMS testified that she took defendant to a shed to unlock it and put the jack away, and she went inside the shed with defendant. SMS further testified that she and defendant may have been hugging when defendant suddenly began groping her breasts, buttocks, and vagina. Defendant penetrated SMS's vagina with his fingers. She did not ask defendant to perform these actions, nor did she want defendant to engage in the conduct, but SMS did not feel as if she could leave or tell defendant to stop. SMS testified that she was afraid and did not know what to do. SMS described a similar assault that occurred shortly thereafter during defendant's same visit to her home. She testified that she went into the basement with defendant to look for a ratchet strap. SMS explained how defendant grabbed her arm and tried to make her touch his penis. Although she tried to pull her arm away, she was unable to do so because of defendant's superior strength. Defendant pulled down SMS's pants and tried to penetrate her vagina with his penis. He was unable to accomplish the act, but defendant did rub his penis against her vagina. Similar to the incident in the shed, SMS did not feel that she could leave or tell defendant to stop; she described herself as being afraid and in shock. SMS did not tell her parents or anybody else about the sexual assaults or communications with defendant.

After defendant and his wife obtained new cellphones on August 24, 2019, defendant's wife discovered the communications between defendant and SMS and began to suspect the predatory nature of their relationship. Defendant's wife took his old cellphone on August 27, 2019, which was still logged into defendant's various phone accounts, including Facebook, and she was able to see the messages exchanged between defendant and SMS. Defendant's wife screenshot as many of the messages as she could, which were admitted into evidence at trial. She contacted Children's Protected Services (CPS) and turned over the screenshot messages. And around September 6, 2019, defendant's wife turned his cellphone over to police. A detective performed a forensic examination of defendant's phone, and he found various sexually-inappropriate images and videos of SMS. The detective created a forensic report, which was admitted into evidence, and he testified at trial.

Police interviewed defendant about the messages, and he denied exchanging any nude images with SMS. Although he acknowledged that he had communicated with SMS, he claimed that it was because her parents wanted her to overcome her shyness. At trial, defendant again acknowledged his communications with SMS; however, he denied that they were sexual in nature. He also denied exchanging any sexual images or videos with SMS, and defendant denied sexually assaulting her. He claimed that SMS was never in the shed with him, that SMS's mother unlocked the shed, and that both SMS and her mother had gone into the basement with defendant.

During the trial, the prosecution asked defendant's wife about what actions she took when she saw the messages between defendant and SMS. She replied, "I reached out to the CPS worker I just had on a case for accusations against him and my daughter for the similar thing and told her what I found." Later, the prosecution asked defendant's wife if she continued to reside with defendant, and she responded, "CPS asked him to leave the house just because we had a case end against him and my daughter." Defense counsel objected on the grounds that this was improper, unnoticed other-acts evidence. Although he conceded that the prosecution did not intentionally elicit the answers, defense counsel nonetheless raised concerns over defendant's ability to obtain a fair trial in light of the jury hearing the testimony. Defense counsel moved for a mistrial or, alternatively, a curative instruction. The trial court declined to order a mistrial and immediately gave the following curative instruction to the jury:

Ladies and gentlemen of the jury, any testimony regarding prior Child Protective Services allegations or involvement should be disregarded and not considered for any purpose in this case. You are not to speculate about these statements in any way. No negative inferences towards the Defendant can be drawn from this testimony.

The jury found defendant guilty on all counts.

At sentencing, the prosecution argued that for purposes of the CSAA conviction, Offense Variable (OV) 4 should be assessed at 10 points because SMS suffered serious psychological injury, and the trial court agreed over defense counsel's opposition. Further, the prosecution contended that with respect to the CSAA conviction, OV 12 should be scored at 25 points because there were three or more contemporaneous felonious criminal acts that occurred within 24 hours of the conduct that gave rise to the CSAA conviction. The prosecution reasoned that defendant had been charged with and convicted of only one count of CSAM but that there were more than three other CSAM images. The trial court agreed with the prosecution over defendant's objection. Consequently, the total OV score for the CSAA conviction was 75 points, resulting in a minimum sentence guidelines range of 57 to 95 months, which was the highest range of all of defendant's crimes. The trial court sentenced defendant to serve 7 to 20 years' imprisonment for the CSAA conviction. Additionally, defendant was ordered to register under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq.

After sentencing and the filing of this appeal, defendant moved the trial court to correct an invalid sentence, correct the presentence investigation report (PSIR), and to resentence him. Defendant raised many of the same issues now raised on appeal. He contended that OVs 4 and 12 were improperly assessed because the evidence at trial and PSIR provided insufficient support for the scores. Defendant also maintained that requiring him to register under the 2021 version of SORA (MCL 28.721 et seq., as amended by 2020 PA 295) constituted ex post facto punishment and was thus unconstitutional. He further asserted that requiring him to register under the 2021 SORA for life was both cruel and unusual punishment under the United States Constitution and cruel or unusual punishment under the Michigan Constitution. He therefore requested that the trial court vacate the SORA-registration portion of his sentence. The trial court rejected all of defendant's arguments. This appeal ensued.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to support the jury's determination that he used force or coercion against SMS in relation to the CSC-III and CSC-IV convictions. We disagree.

In People v Kenny, 332 Mich.App. 394, 402-403; 956 N.W.2d 562 (2020), this Court articulated the well-established principles that govern our review of a sufficiency argument:

This Court reviews de novo whether there was sufficient evidence to support a conviction. In reviewing the sufficiency of the evidence, this Court must view

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