People v. Weissert

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHRISTOPHER RAY WEISSERT, Defendant-Appellant.

No. 359644

Court of Appeals of Michigan

June 22, 2023

UNPUBLISHED

Genesee Circuit Court LC No. 18-042955-FC

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

Per Curiam.

Defendant appeals as of right his jury-trial convictions of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (victim under 13), and second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (victim under 13). The trial court sentenced defendant to 300 to 450 months' imprisonment for the CSC-I conviction and 10 to 15 years' imprisonment for the CSC-II conviction. We affirm.

I. BACKGROUND

A. FACTS REGARDING ASSAULT OF CS

This case arises from the sexual assault of CS, which occurred in July 2017. CS was six years old at the time. Defendant was 44 years old in July 2017 and was married to Kimberly Weissert the sister of CS's mother, Amanda.^[1] CS would often go over to Kimberly and defendant's home and spend the night.^[2] There was some dispute regarding when the alleged assault occurred. Defendant and Kimberly both testified that CS last came over to their home on Saturday, July 1, 2017, and spent the night. But Amanda testified that the last visit could have been as late as July 11, 2017.

The criminal incident came to light on July 28, 2017, when Amanda overheard CS talking on the phone with defendant. As was normal, CS had asked to use Amanda's phone to call defendant. Amanda was in the kitchen at the time and handed CS the phone. It was CS's practice to use the speakerphone function on the phone because it was easier for her to understand the person on the other end. CS started talking to defendant, went into her bedroom, and closed the door. Shortly thereafter, Amanda had to use the bathroom. While in the bathroom, which shared a wall with CS's room, Amanda overheard CS saying, "You remember last time I come over and you licked my pee pee."^[3] Amanda heard defendant respond, "No." CS repeated, "Remember last time you licked my pee pee. I don't want you-" before defendant interrupted with "no, no" and "I'll talk to you about it when I pick you up," and defendant hung up.

Amanda came out of the bathroom, and CS came out of her bedroom. CS asked her mother what she was doing and told her that she did not need to listen. Amanda explained that she was not intending to eavesdrop, but she nonetheless heard what was said. After the two of them sat on the couch, CS started crying and explained that while Kimberly was sleeping one night, defendant "licked [her] pee pee." CS's biggest concern at the time was getting someone in trouble and not being able to visit defendant and Kimberly's home to see their dog. When asked if defendant touched her in any other way, CS told her mother that "he used his hands to open me."

After processing what CS had just told her, Amanda texted defendant. The messages were admitted into evidence reflect the following exchange:

Amanda: Umm [CS] is pretty upset telling me a big secret you and her have. I don't even know what to say here Chris.

Defendant: What you mean

Amanda: I heard her talking in her bedroom when I asked her what she said she started bawling telling me about having a secret while Kim is sleeping.

Defendant: I'm sorry if I got carried away.tell get in sorry

Amanda: Carried away with what exactly Defendant: Hugging and kissing her. I never hurt her. I'm sorry if I upset her. I'm so sorry [Verbatim message content except for alteration, including any errors.]

While Amanda was engaging in the text exchange with defendant, CS asked her mother, "[I]f you're going to tell him not to do that for me, tell him not to lick my boob, you know?" CS also mentioned that she was going to say "stop" to defendant, but he covered her mouth.

Amanda then called her husband, Joshua, and told him that he needed to come home immediately. After Joshua arrived at the house, he spoke with Amanda and CS. Joshua became very upset, went out to the garage, and called his parents, Susan and David. After Susan and David arrived at the house, Amanda joined the four of them in the garage. Susan then went inside to talk to CS. CS was crying and told Susan that she had gotten defendant in trouble for telling their "secret." Having no knowledge of what the substance of the allegations were, Susan tried to learn what happened from CS. During the course of this conversation, Susan started recording with her phone. A copy of that recording was admitted into evidence and played for the jury. CS maintained that defendant had "licked" her vagina and sucked and bit on her chest. CS also told Susan during this conversation that defendant had used duct tape to cover her mouth and that it hurt when it came off.

Amanda and Joshua called the police. Michigan State Trooper Nicholas Medina was dispatched in response to the call. Although he talked with Amanda after arriving and saw the text exchange between Amanda and defendant, he purposefully did not speak with CS because it was policy to save those types of interviews for trained, forensic interviewers. On August 7, 2017, CS was interviewed by Maria Herstein from the Wise Child Advocacy Center. That interview was recorded, admitted into evidence, and played for the jury.^[4]

The day after CS interviewed at Wise, Trooper Medina stopped by defendant's home to talk with him. Kimberly was not home at the time. Trooper Medina explained why he was there- to investigate the allegation that defendant sexually assaulted CS-and defendant declined to make a statement. And when Trooper Medina showed defendant the text exchange between him and Amanda, he said that he did not recall texting.

On August 9, 2017, Kimberly first learned of the allegations against her husband from her sister Melissa. Kimberly's place of employment was very close to where defendant worked, so she immediately met with him in a nearby parking lot. Kimberly was furious and stated, among other things, that if she had a gun, she would shoot defendant. At trial, Melissa testified that Kimberly told her that in response to this statement, defendant said something to the effect, "I wish you would." Although Kimberly did not recall defendant saying this, she later said that defendant "probably said it." Defendant, on the other hand, denied ever saying that.

According to defendant, he had already set up a meeting with an attorney and was going to be meeting with him in the early afternoon. Defendant testified that, at this meeting, his attorney instructed him not to talk to anyone about this, including his wife. At some point that day, Todd Baryo, who is married to Kimberly's sister, Melissa, learned of the allegations. Todd wanted to talk with defendant, so he texted him and set up a meeting at a Menards parking lot. Todd acknowledged that defendant told him that his attorney advised him not to talk about the matter, but Todd nonetheless wanted defendant to look him in the eye and deny doing it, and defendant said he could not do that. Todd testified that he told defendant that in order to not put CS through any more trauma, he needed to turn himself in, and defendant agreed. Defendant added, "I really fucked up this time."^[5] Todd testified that the plan was for both he and defendant to go to the police station the following day, but that following morning, defendant called Todd and told him that with no formal charges pending, he would not be going.^[6]

CS, who was 10 years old (less than two months away from her 11th birthday) at the time of trial, testified. She explained that the night of the incident, she, defendant, and Kimberly had been hanging out, playing games and watching TV or movies. According to CS, who had been wearing a sleep gown or dress, sometime after Kimberly got up and announced she was going to bed, defendant pulled CS's gown up high enough to expose her chest. Defendant then "nibbled" on CS's chest. CS stated that, while on her back, defendant then licked her vagina, where he did not just lick "the outside" but "went inner a little bit." Defendant then turned CS so she was lying on her stomach and licked her "bottom," which she later acknowledged was her anus. CS said that during this encounter, defendant attempted to keep her from speaking by gently placing his finger across her lips in a "shhhh" manner. CS denied that duct tape was ever used.

Defendant asserted that this incident did not happen and that he did not sexually assault CS in any manner. He maintained that the last time CS came to their house was July 1, 2017. Defendant said that on that day, CS had called, asking to come over and he picked her up from her house around 5:30 p.m. After then picking up Kimberly and the three of them dining at a restaurant, they got back to defendant's house after 7:00 p.m., where they all changed into pajamas and eventually started to watch a movie. Later in the evening, Kimberly got up, used the restroom, and announced that she was going to bed. Defendant claimed that he told CS it was time for bed as well, but she wanted to finish watching the movie. CS then got a "sheepish grin" on her face, and the two of them engaged in their "game," which defendant called their "hugging and kissing game." CS lifted her hand up, in a playful manner, as if about to strike defendant, then he "hugs onto" her and pretends to gnaw and growl in her ear, then proceeds to kiss her all over her forehead, chin, and nose. Defendant explained that CS was "really squealing and going nuts" during this time. Defendant said that the bedroom door to his and Kimberly's bedroom was open the entire time, and after their "game," he carried CS into the bedroom, where CS normally slept between defendant and...