                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 24, 2018
               Plaintiff-Appellee,

v                                                                   No. 338347
                                                                    Grand Traverse Circuit Court
WILLIAM ROBERT SMITH,                                               LC No. 17-012597-FC

               Defendant-Appellant.


Before: MURRAY, C.J., and SERVITTO 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)(f), and three counts of third-degree criminal sexual
conduct, MCL 750.520d(1)(b). The trial court sentenced defendant to 7 to 30 years in prison for
the CSC-I conviction and 7 to 15 years in prison for each CSC-III conviction, to be served
concurrently. We affirm.

        Defendant and the victim knew each other through the victim’s fiancé. After the victim’s
fiancé was sentenced to prison, the victim frequently went to defendant’s house to discuss her
problems and to consume alcohol. In November 2016, the 24-year-old victim was drinking
alcohol at defendant’s home and fell asleep. The victim testified that she later awoke to find that
her pants and underwear had been pulled down past her thighs and defendant was behind her
with his fingers inside her vagina. She repeatedly told defendant to stop and tried to get away,
but defendant then got on top of her and forced his penis inside her vagina. She briefly pulled
away but defendant threw her on the bed, placed his knees on her shoulders, and forced his penis
into her mouth. Later, defendant began “fingering” the victim’s vagina “really aggressively” and
performing cunnilingus, after which he again forced her to perform fellatio. According to the
victim, defendant had previously “fingered” her during a past visit. She protested and made
defendant stop. Thereafter, she told defendant that they were just friends, and she established
rules that there was to be no touching, no flirting, and no sexual contact whatsoever.

       The defense theory at trial was that the sexual encounter was consensual. The jury
convicted defendant of CSC-I based on defendant’s act of digital penetration, and three counts of
CSC-III for the acts of penile-vaginal penetration, fellatio, and cunnilingus.




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                            I. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that there was insufficient evidence of personal injury to support
his CSC-I conviction. We disagree. A challenge to the sufficiency of the evidence in a jury trial
is reviewed de novo, by reviewing the evidence in the light most favorable to the prosecution to
determine whether the trier of fact could have found that the essential elements of the crime were
proved beyond a reasonable doubt. People v Harverson, 291 Mich App 171, 175; 804 NW2d
757 (2010). “All conflicts with regard to the evidence must be resolved in favor of the
prosecution.” People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005).

       Defendant was convicted of violating MCL 750.520b(1)(f), which provides:

              (1) A person is guilty of criminal sexual conduct in the first degree if he or
       she engages in sexual penetration with another person and if any of the following
       circumstances exists:

                                              ***

               (f) The actor causes personal injury to the victim and force or coercion is
       used to accomplish sexual penetration. Force or coercion includes, but is not
       limited to, any of the following circumstances:

              (i) When the actor overcomes the victim through the actual application of
       physical force or physical violence.

               (ii) When the actor coerces the victim to submit by threatening to use
       force or violence on the victim, and the victim believes that the actor has the
       present ability to execute these threats.

               (iii) When the actor coerces the victim to submit by threatening to retaliate
       in the future against the victim, or any other person, and the victim believes that
       the actor has the ability to execute this threat. As used in this subdivision, “to
       retaliate” includes threats of physical punishment, kidnapping, or extortion.

              (iv) When the actor engages in the medical treatment or examination of the
       victim in a manner or for purposes that are medically recognized as unethical or
       unacceptable.

               (v) When the actor, through concealment or by the element of surprise, is
       able to overcome the victim.

“Thus, an actor may be found guilty under MCL 750.520b(1)(f) if the actor (1) causes personal
injury to the victim, (2) engages in sexual penetration with the victim, and (3) uses force or
coercion to accomplish the sexual penetration.” People v Nickens, 470 Mich 622, 629; 685
NW2d 657 (2004). Under MCL 750.520a(n), “ ‘Personal injury’ means bodily injury,
disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a
sexual or reproductive organ.” Thus, if the evidence is sufficient to show either bodily injury or
mental anguish, then the evidence is sufficient to establish the element of personal injury.

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        In People v Patrella, 424 Mich 221, 257; 380 NW2d 11 (1985), our Supreme Court
defined “mental anguish” as “extreme or excruciating pain, distress, or suffering of the mind.”
The Court provided a list of factors to consider in determining whether mental anguish was
established:

              (1) Testimony that the victim was upset, crying, sobbing, or hysterical
       during or after the assault.

              (2) The need by the victim for psychiatric or psychological care or
       treatment.

              (3) Some interference with the victim’s ability to conduct a normal life,
       such as absence from the workplace.

               (4) Fear for the victim’s life or safety, or that of those near to her.

               (5) Feelings of anger and humiliation by the victim.

               (6) Evidence that the victim was prescribed some sort of medication to
       treat her anxiety, insomnia, or other symptoms.

              (7) Evidence that the emotional or psychological effects of the assault
       were long-lasting.

               (8) A lingering fear, anxiety, or apprehension about being in vulnerable
       situations in which the victim may be subject to another attack.

               (9) The fact that the assailant was the victim’s natural father. [Id. at 270-
       271.]

        The victim testified that she previously suffered from post-traumatic stress disorder
(PTSD), which was again triggered by defendant’s sexual assault. After the assault, she
experienced panic attacks and anxiety attacks. She also had trouble focusing, concentrating, and
difficulty sleeping. In addition, she previously struggled with an eating disorder, which had been
in remission before the assault but returned after the assault. According to the victim’s mother,
after defendant’s sexual assault, the victim’s condition worsened “[b]ig time.” Her anxiety
increased and she was “scared of her own shadow.” In addition, the victim’s eating disorder
“went off the deep end,” she “barely sleeps,” and she had panic attacks. Viewed in a light most
favorable to the prosecution, the evidence was sufficient to enable a rational jury to find beyond
a reasonable doubt that defendant’s conduct caused the victim mental anguish.

       Defendant argues that because the victim had experienced many of her problems before
the assault, any mental anguish she suffered was not caused by him. He also suggests that
because of the victim’s past difficulties, her issues with anxiety, alcohol, and body image “would
have been worse” if she had not spent time with him. It is well-established, however, that a
defendant takes a victim as he finds her. People v Brown, 197 Mich App 448, 451; 495 NW2d
812 (1992). The testimony of the victim and her mother was sufficient to establish a causal link
between defendant’s sexual assault and the victim’s mental anguish. In addition, regardless of

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the relative benefits that defendant’s past friendship and relationship may have brought to the
victim, there was sufficient evidence that defendant sexually assaulted the victim, and that the
assault exacerbated the victim’s problems to cause her mental anguish.

        The evidence was also sufficient to establish the personal injury element on the basis of
bodily injury to the victim. “[P]hysical injuries for this purpose need not be permanent or
substantial.” People v Mackle, 241 Mich App 583, 596; 617 NW2d 339 (2000). After
defendant’s sexual assault, the victim went to the bathroom, which “really hurt.” She
experienced burning and bleeding. She thought that she might be having her period, so she used
a tampon, but she still felt “really sore.” When the victim visited a sexual assault nurse-examiner
(SANE) later that day, the SANE nurse observed two abrasions on the victim’s labia minora,
which were consistent with a fingernail scratching away a superficial layer of the skin.
According to the victim, the pain lasted a “couple days.” She also experienced soreness in her
jaw, pelvic area, and on the tops of her thighs. From this evidence, a rational jury could
conclude that the victim suffered personal injury. Although defendant points to alternative
plausible explanations for the cause of the victim’s abrasions, or posits that they could have
resulted from consensual sex, these were questions of fact for the jury to resolve. People v
Gadomski, 232 Mich App 24, 28; 592 NW2d 75 (1998). “All conflicts with regard to the
evidence must be resolved in favor of the prosecution.” Wilkens, 267 Mich App at 738.

       Defendant also briefly suggests, without advancing a meaningful argument, that his acts
were consensual. Given the victim’s testimony that she repeatedly told defendant to stop, that
defendant covered her mouth so that she could no longer object, and that defendant held her
down when she tried to get away, a rational jury could find beyond a reasonable doubt that the
acts were not consensual, and instead were accomplished by force or coercion. Although
defendant testified that the victim begged him to make love to her, the credibility of defendant’s
testimony was within the exclusive province of the jury and will not be second-guessed by this
Court. Gadomski, 232 Mich App at 28. Again, “[a]ll conflicts with regard to the evidence must
be resolved in favor of the prosecution.” Wilkens, 267 Mich App at 738.

       In sum, sufficient evidence supports defendant’s conviction of CSC-I.

                                    II. CSC-III SENTENCES

       Defendant argues that his sentences of 7 to 15 years for his CSC-III convictions are
outside the sentencing guidelines range for those convictions, and therefore constitute
disproportionate departures requiring resentencing. We disagree.

        The trial court ordered the CSC-III sentences to be served concurrently with defendant’s
sentence for CSC-I. CSC-III, as a Class B offense, is in a lower crime class offense than CSC-I,
a Class A offense. MCL 777.16y. Moreover, defendant’s sentences for CSC-III are within the
statutory maximum for CSC-III. MCL 750.520d(2). In this type of sentencing scenario, the
guidelines for CSC-III are subsumed by the guidelines for CSC-I, meaning that the guidelines for
CSC-III need not be scored. And, defendant’s sentences for CSC-III are not departure sentences.
See People v Lopez, 305 Mich App 686, 690-692; 854 NW2d 205 (2014). Because defendant is
subject to a more severe concurrent sentence for CSC-I, any arguments relating to defendant’s


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sentences for CSC-III cannot have any practical legal effect and are moot. Defendant is not
entitled to resentencing on this basis.

                    III. SCORING OF THE SENTENCING GUIDELINES

        Defendant argues that he is entitled to resentencing because the trial court erred in
scoring offense variable (OV) 3 and OV 10 of the sentencing guidelines. In People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013), our Supreme Court clarified both the quantum of
evidence necessary to support a scoring decision and the standard of review to be used by this
Court, stating:

       Under the sentencing guidelines, the circuit court’s factual determinations are
       reviewed for clear error and must be supported by a preponderance of the
       evidence. Whether the facts, as found, are adequate to satisfy the scoring
       conditions prescribed by statute, i.e., the application of the facts to the law, is a
       question of statutory interpretation, which an appellate court reviews de novo.
       (citations omitted).

In this case, however, defendant did not object to the scoring of either OV 3 or OV 10 at
sentencing. Therefore, his claims are unpreserved and our review is limited to plain error
affecting his substantial rights. People v Odom, 276 Mich App 407, 411; 740 NW2d 557 (2007).

                                            A. OV 3

       Ten points may be assessed for OV 3 if bodily injury requiring medical treatment
occurred to a victim. MCL 777.33(1)(d). “ ‘[B]odily injury’ encompasses anything that the
victim would, under the circumstances, perceive as some unwanted physically damaging
consequence.” People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011).
“ ‘[R]equiring medical treatment’ refers to the necessity for treatment and not the victim’s
success in obtaining treatment.” MCL 777.33(3).

         The victim testified that she experienced pain and bleeding as a result of the sexual
assault, and the SANE nurse observed two abrasions on the labia minora. This evidence
supports a finding that the victim suffered a bodily injury. Accordingly, there was no plain error
in this regard. Defendant argues, however, that the victim did not require medical treatment for
her injury, as is necessary to score 10 points for OV 3. He argues that she received medical
attention from the SANE nurse only for investigative purposes. Although the police sent the
victim to the SANE nurse, the investigation was not the sole purpose for the examination. The
SANE nurse testified that she performs a comprehensive medical examination at the same time
as collecting forensic evidence so that a patient only needs one examination. Although the nurse
agreed that the victim’s abrasions would heal quickly without medical treatment, she also gave
the victim antiviral medications to prevent disease. Thus, the evidence supports that the




                                                -5-
examination was, in part, for medical treatment. Accordingly, there was no plain error in scoring
OV 3 at 10 points.1

                                            B. OV 10

        A trial court is directed to score 10 points for OV 10 if “[t]he offender exploited a
victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or
the offender abused his or her authority status.” MCL 777.40(1)(b). In People v Cannon, 481
Mich 152, 157; 749 NW2d 257 (2008), our Supreme Court explained that “the central subject [of
MCL 777.40] is the assessment of points for the exploitation of vulnerable victims.”
Vulnerability is defined in the statute to be a “readily apparent susceptibility of a victim to
injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)(c). The Court in Cannon
explained factors to consider when deciding whether a victim is vulnerable:

       (1) the victim’s physical disability, (2) the victim’s mental disability, (3) the
       victim’s youth or agedness, (4) the existence of a domestic relationship, (5)
       whether the offender abused his or her authority status, (6) whether the offender
       exploited a victim by his or her difference in size or strength or both, (7) whether
       the victim was intoxicated or under the influence of drugs, or (8) whether the
       victim was asleep or unconscious. [Cannon, 481 Mich at 158-159.]

        In this case, defendant was approximately twice the victim’s age. The victim testified
that she felt safe with defendant because he was older. Defendant knew that the victim suffered
from anxiety, alcoholism, and had been victimized in the past. By visiting with her frequently
and reaching out to her after her fiancé went to prison, defendant became the victim’s confidante
when she felt like she had no other outlets to discuss her problems. Because the victim’s mother
did not allow her to drink alcohol in their home, defendant repeatedly welcomed the victim into
his home to drink; she would drink alcohol in his bedroom — on his bed — until she passed out.
On the night of the offenses, the victim was stressed because of a scheduled court appearance the
next day and defendant again urged her to come over to drink alcohol. After she did, she fell
asleep on his bed, making her vulnerable. Defendant exploited that vulnerability by sexually
assaulting her. All of this evidence supports a finding that defendant not only exploited the
victim’s age difference, but also her addiction to alcohol. Indeed, although defendant did not
object to the scoring of OV 10 at sentencing, when imposing sentence, the trial court recognized
that the defendant’s conduct involved the exploitation of a vulnerable victim.



1
  Even if the victim’s bodily injury did not necessitate medical treatment, her bodily injury alone
would have justified a score of five points for OV 3 (“[b]odily injury not requiring medical
treatment occurred to a victim”). MCL 777.33(1)(e). A five-point adjustment would reduce
defendant’s total OV score from 30 to 25 points, but this does not affect his placement in OV
level II (20-39 points) in the class A sentencing grid. MCL 777.62. Therefore, any error would
not have affected defendant’s sentencing guidelines range. “Where a scoring error does not alter
the appropriate guidelines range, resentencing is not required.” People v Francisco, 474 Mich
82, 89 n 8; 711 NW2d 44 (2006).


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The court stated that “what [defendant] did was a deliberate, calculated, sinister series of acts
that showed a callous disregard for this victim half his age” and that defendant showed a
“disregard for her know[n] vulnerability.” Thus, there was no plain error in scoring OV 10 at 10
points.

       Affirmed.



                                                           /s/ Christopher M. Murray
                                                           /s/ Deborah A. Servitto
                                                           /s/ Mark T. Boonstra




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