                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 6, 2017
               Plaintiff-Appellee,

v                                                                   No. 331176
                                                                    Kent Circuit Court
ANTONIO MARKESE CUMMINGS,                                           LC No. 12-002310-FC

               Defendant-Appellant.


Before: O’BRIEN, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

        Defendant appeals as of right the sentence imposed upon him after his jury trial
convictions of two counts of first-degree criminal sexual conduct (CSC I), MCL
750.520b(2)(b).1 The trial court sentenced defendant as a third-offense habitual offender, MCL
769.11, to two consecutive terms of 30 to 60 years’ imprisonment for the offenses. We remand
for resentencing consistent with this opinion.

        Defendant originally appealed his convictions and sentencing as of right in this Court.
People v Cummings, unpublished opinion per curiam of the Court of Appeals, issued August 5,
2014 (Docket No. 312583). We affirmed defendant’s consecutive sentences. Id. at 3-4.
Defendant then appealed to the Michigan Supreme Court. The Supreme Court issued an order in
lieu of granting leave to appeal, in which it vacated the portion of this Court’s opinion affirming
consecutive sentencing, and remanded to the trial court with instructions to “either issue an order
that provides a basis for its conclusion that the two criminal offenses arose from the same
transaction, or resentence the defendant.” People v Cummings, 498 Mich 895; 870 NW2d 66
(2015). The Supreme Court denied defendant’s appeal in all other respects. Id. at 895-896. The
trial court then issued an order and opinion in which it outlined its reasons for finding that the
two assaults arose out of the same transaction, and again imposing consecutive sentences. The
trial court stated,




1
 Defendant was also convicted of impersonating a public officer, contrary to MCL 750.215, but
does not appeal that conviction or the sentence imposed for that conviction.


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       It was clear to this Court at the time of sentencing defendant, as it is now, that his
       two sexual assaults against his stepdaughter and biological daughter were part of
       the “same transaction” in accordance with MCL 750.520b(3). Defendant induced
       S to engage in fellatio with him, and, shortly thereafter, defendant induced T to
       engage in fellatio with him.

        . . . It is clear from the testimony that the two assaults occurred on the same day,
       but more importantly, the evidence indicates that little time had passed between
       the assaults.

        . . . This Court finds that “there was no relevant disruption in time or in the flow
       of events between the two distinct offenses.” The defendant simply transitioned
       from assaulting one daughter to assaulting the other daughter in the course of one
       morning.

       Holding that such behavior does not constitute the same transaction would be
       placing far too much weight on the passage of a small amount of time, and far too
       little weight on the defendant’s egregious conduct and sequential targeting of his
       young daughters.


Defendant now appeals by right the trial court’s order for consecutive sentencing issued on
remand.

        This case arises from sexual assaults against defendant’s eight-year-old stepdaughter,2 S,
and defendant’s four-year-old biological daughter, T. Defendant lived with his wife, son, and
both victims. On at least three occasions that S could remember and reference, defendant
engaged in oral penetration with her. S was able to reference the assaults by referring to times
when her mother was at a motorcycle class, when the family was taking down the Christmas tree,
and when S was in the basement with defendant before school. On all three occasions, defendant
instructed S to close her eyes and open her mouth. Defendant then put his penis inside of her
mouth. Each time, defendant stopped when S asked him to.

        It is the last incident, when S was with defendant in the basement before school, that is
relevant to this appeal. S testified that, on that occasion, she had woken up and gotten ready for
school. She was in the basement watching television, when defendant put her on her knees and
told her to close her eyes and open her mouth. Defendant then put his penis inside of her mouth.
Defendant stopped when S asked him to. S then had to hurry to catch the school bus. When S
got home from school at about 4:00 p.m., T said to her, “[S], dad put something in my mouth.
Nasty.” At trial, T testified that defendant put his “doodle” in her mouth. She then pointed to
the groin area of a doll to show the area where defendant’s doodle was.



2
 S testified that defendant is her stepfather; however, she also testified that she had not known
her biological father since she was a baby and that defendant was “basically [her] dad.”


                                                -2-
        T testified that the assault happened while S was at school. She also testified that she told
S what happened “when [S] came home.” T further testified that it happened one time. After T
told S about the assault, S told her mother what happened. The family sought refuge at a shelter
for abused women and children. At trial, the defense attorney posed the following question to T:

               Q. When you say when she came—what—is it—do you remember how
       long after it happened—when he put his doodle in your mouth, when did you tell
       your sister? Was it the same day? Was it a different day? Was it a long time
       after?

               A. It was a long time.

       Defendant argues on appeal that the trial court reversibly erred when it imposed
consecutive sentences because the evidence did not support its conclusion that the assaults of S
and T were part of the same transaction. We agree.

        We review defendant’s unpreserved claim of error for plain error affecting defendant’s
substantial rights. People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004); People v
Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). Plain error requires showing that (1) error
occurred, (2) the error was clear or obvious, and (3) the error affected defendant’s substantial
rights. Kimble, 470 Mich at 312. The third requirement generally requires showing that the
error affected the outcome of the lower court proceedings. Id.

        A court may order consecutive sentences only when specifically authorized by statute.
People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012). MCL 750.520b(3) provides that
“[t]he court may order a term of imprisonment imposed under [the CSC I statute] to be served
consecutively to any term of imprisonment imposed for any other criminal offense arising from
the same transaction.” “Arising from” suggests a “causal connection between two events of a
sort that is more than incidental.” Ryan, 295 Mich App at 403. And “the same transaction”
refers to whether the offenses “grew out of a continuous time sequence.” Id. at 402.

        The main question in this case is whether the sexual assault against T arose from the
same transaction as the sexual assault against S that happened in the basement on the morning
she was getting ready for school. Defendant sexually assaulted S, but stopped when she asked
him to. S went to school and returned home at about 4:00 p.m. T then told S that defendant had
sexually assaulted her. The only record evidence is that the assault on S happened sometime in
the morning before school, and that the assault on T happened on the same day sometime before
4:00 p.m. That is, there is no evidence that little time had passed between the two assaults, and
that there was no relevant disruption in time or in the flow of events. Id. at 404. Instead, T was
specifically asked for a time reference with respect to when the assault on her had occurred and
when she told her sister: “Was it the same day? Was it a different day? Was it a long time
after?” T responded that “[i]t was a long time.”

        We acknowledge that Marianne Boykin, an interview specialist at the Child Assessment
Center, testified that, due to T’s age, she “[would not] expect T to have any sense of time
concept.” However, T was given the very specific option of stating that the assault and telling
her sister about the assault occurred on the same day, and T did not agree that it was the same

                                                -3-
day or even a different day; she chose the much lengthier option of “a long time.” Thus, the
evidence did not support a finding that there was a causal connection between the two assaults or
a finding that the two assaults grew out of a continuous time sequence. The trial court plainly
erred when it determined that defendant’s assaults against S and T arose out of the same
transaction.

        Reversed and remanded for resentencing consistent with this opinion. We do not retain
jurisdiction.



                                                           /s/ Colleen A. O’Brien
                                                           /s/ Deborah A. Servitto
                                                           /s/ Cynthia Diane Stephens




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