                           STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 26, 2018
                Plaintiff-Appellee,

v                                                                  No. 335606
                                                                   Wayne Circuit Court
WILLIAM RANDOLPH KING,                                             LC No. 15-007703-01-FC

                Defendant-Appellant.


Before: BORRELLO, P.J., and SHAPIRO and TUKEL, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of first-degree criminal sexual
conduct (“CSC-I”) (sexual penetration during the commission of a felony), MCL 750.520b(1)(c),
kidnapping, MCL 750.349, and third-degree criminal sexual conduct (“CSC-III”) (sexual
penetration with force or coercion), MCL 750.520d(1)(b). Defendant was sentenced, as a fourth
habitual offender, MCL 769.12, to 40 to 75 years’ imprisonment for his CSC-I conviction and 20
to 40 years’ imprisonment for his kidnapping and CSC-III convictions. We affirm.

                                      I. BRADY1 VIOLATION

       Defendant argues that a Brady violation occurred because the prosecution failed to
promptly test a pubic hair that had been collected in a rape kit relating to a witness whose
testimony was admitted pursuant to MRE 404(b). As noted below, the result of the testing had
not been completed at the time of trial, and when completed, the pubic hair was found to not be
from defendant. Defendant contends that had the testing been completed before trial, he could
have better questioned the prior victim at trial and utilized the identified person from whom the
hair came as a witness. We disagree.

       We review due process claims, such as allegations of a Brady violation, de novo. People
v Stokes, 312 Mich App 181, 189; 877 NW2d 752 (2015), vacated in part on other grounds 501
Mich 918 (2017). “[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment,


1
    Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).


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irrespective of the good faith or bad faith of the prosecution.” Brady v Maryland, 373 US 83; 83
S Ct 1194; 10 L Ed 2d 215 (1963). To establish a Brady violation, a defendant must prove (1)
that the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3)
viewed in its totality, the evidence is material. People v Chenault, 495 Mich 142, 155; 845
NW2d 731 (2014). “Evidence is favorable to the defense when it is either exculpatory or
impeaching.” Id. at 150. “To establish materiality, a defendant must show that there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. (quotation marks and citations omitted). The test for
materiality is whether in absence of the evidence, defendant received a fair trial, i.e., “a trial that
resulted in a verdict worthy of confidence.” Id. at 157.

        Related to this issue, prior to trial, defendant asked the trial court to order the lab to
complete DNA testing on a pubic hair that was found in the prior victim’s underwear or vaginal
opening during the rape kit collection. At that time, the prosecution had already submitted the
hair for testing to the lab, but the testing had not yet been completed. Defense counsel
acknowledged this and conceded that the prosecutor had not acted in bad faith—the order sought
would only have compelled the lab to complete its work. Further, defendant’s DNA was found
inside the prior victim’s vagina. Although the trial court questioned the relevancy of the test,
which is understandable due to the prior victim’s assertion that two men had assaulted her and
that defendant’s DNA already had been found in her, the trial court nonetheless ordered the lab
to complete the testing.

        Immediately before trial, the prosecution acknowledged that the testing was not then
complete. The trial court ruled that it would proceed with trial, despite the results being
unavailable. In the alternative, defendant moved to exclude the prior victim’s testimony
considering the results were not available; however, the trial court denied this request,
acknowledging that the issue related to admissibility of the other acts had been previously
decided. After trial and during sentencing, the prosecution provided defendant with the final
results of the pubic hair testing, which identified it as belonging to a person other than defendant.

        First, the prosecution did not suppress evidence, and defendant was not denied due
process. It is undisputed that the prosecution did not possess any test results until after trial. As
a result, it is clear that the prosecution did not possess and suppress any evidence that was
favorable to defendant. At the time of trial, the prosecution had disclosed the existence of the
pubic hair, which was all the prosecution had available to it. Moreover, there was no evidence
that the prosecution engaged in any misconduct or bad faith by delaying having the hair tested.
Indeed, defendant acknowledged at the time that the prosecution was not acting in bad faith.
Accordingly, defendant’s due-process challenge fails. See also People v Coy, 258 Mich App 1,
21; 669 NW2d 831 (2003) (“Absent a showing of suppression of evidence, intentional
misconduct, or bad faith, the prosecutor and the police are not required to test evidence to accord
a defendant due process.”).

       Defendant has also failed to prove the second and third prongs of the Brady
requirements—that the evidence was favorable to his defense and there was a reasonable
probability that there would have been a different outcome had the evidence been presented.
Chenault, 495 Mich at 150. Importantly, notwithstanding the additional contributor, defendant’s

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DNA was still found in the prior victim’s vagina. The prior victim testified that two men had
raped her, so the identification of an additional subject only served to corroborate her testimony.
Defendant merely contends that he may have been able to attack the prior victim’s credibility
during cross-examination had he had the information; however, as the prior victim had already
established a second party to the rape, we are unable to glean any additional facts that would
have allowed her to be further challenged had the evidence been available to defendant. Lastly,
defendant contends that he could have “possibly uncovered information consistent with [his]
defense” had he been provided with the results. (Emphasis added.) This general statement does
not meet his burden to demonstrate that it was reasonably probable that, had he had the results,
the outcome of the trial would have been different. Accordingly, we hold that defendant is not
entitled to any relief.

                                    II. JURY INSTRUCTION

        Defendant argues that because the prosecution failed to test and provide the results of all
of the DNA evidence from the prior victim’s rape kit, the trial court erred when it failed to
provide a negative inference jury instruction. We disagree. “Jury instructions that involve
questions of law are also reviewed de novo.” People v Gillis, 474 Mich 105, 113; 712 NW2d
419 (2006). However, “a trial court’s determination whether a jury instruction is applicable to
the facts of the case is reviewed for an abuse of discretion.” Id.

        A criminal defendant has the right to have a properly instructed jury consider the
evidence against him. People v Wood, 307 Mich App 485, 519; 862 NW2d 7 (2014), vacated in
part on other grounds 498 Mich 914 (2015). “This Court reviews jury instructions as a whole to
determine whether error requiring reversal occurred.” Id. “The jury instructions must include all
elements of the charged offenses, and must not omit material issues, defenses, or theories that the
evidence supports.” Id.

        “Michigan courts have long recognized that when material evidence in control of a party
is not produced at trial, the opposing party is entitled to an adverse inference instruction.”
People v Cress, 250 Mich App 110, 157 n 27; 645 NW2d 669 (2002), rev’d on other grounds
468 Mich 678 (2003). An adverse inference instruction allows the jury to infer that the evidence,
although not presented at trial, would have been not favorable to the party who was supposed to
present the evidence. See, e.g., M Crim JI 5.12 (instruction that permits the jury to infer that a
missing witness would have testified unfavorably to the prosecution when the prosecution was
responsible for producing the witness). However, such an instruction is only permitted when the
prosecutor acts in bad faith. Cress, 250 Mich App at 157-158; People v Davis, 199 Mich App
502, 514-15; 503 NW2d 457 (1993), overruled on other grounds by People v Grissom, 492 Mich
296 (2012). As stated above, there was no evidence to show that the prosecution acted in bad
faith when it did not produce the testing results by the time of trial. Accordingly, the trial court
did not err when it declined to provide the adverse inference instruction to the jury.

                             III. OFFENSE VARIABLE SCORING

       Defendant contends that he is entitled to resentencing because the trial court erred when it
scored offense variable (“OV”) 7 and OV 10 at 50 points and 15 points, respectively.


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        “[T]he proper interpretation and application of the legislative sentencing guidelines . . .
are legal questions that this Court reviews de novo.” People v Morson, 471 Mich 248, 255; 685
NW2d 203 (2004). “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.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

                                             A. OV 7

        The trial court scored OV 7, which addresses aggravated physical abuse, at 50 points. A
trial court properly scores 50 points for OV 7 when the “victim was treated with sadism, torture,
or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim
suffered during the offense.” MCL 777.37(1)(a) (emphasis added). Conversely, zero points are
properly scored when “[n]o victim was treated with sadism, torture, or excessive brutality or
conduct designed to substantially increase the fear and anxiety a victim suffered during the
offense.” MCL 777.37(1)(b).

        “The relevant inquiries [when scoring OV 7] are (1) whether the defendant engaged in
conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct
was intended to make a victim’s fear or anxiety greater by a considerable amount.” Hardy, 494
Mich at 443-444. Here, the trial court did not err when it found that defendant treated the victim
with conduct that was intended to substantially increase her anxiety and fear. The trial court
agreed with the prosecution that defendant told the victim that once he was done raping her, the
rest of the men from the van would get their “turn” to also rape her.2 This finding is not clearly
erroneous, as the victim testified that this exchange happened, which she also described as
causing her to “panic.” Further, this conduct went beyond the minimum necessary to commit the
offense of CSC-I. Accordingly, because the preponderance of the evidence showed that
defendant intended to substantially increase the victim’s anxiety and fear, the trial court did not
err when it scored OV 7 at 50 points.

                                            B. OV 10

       OV 10 is scored for the exploitation of a vulnerable victim. The factors to consider when
determining vulnerability include the following:

       (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


2
  As we describe below in our discussion of OV 10, the trial court did not make any explicit
findings, but because the prosecution presented its argument that 50 points was proper due to
defendant’s comment about allowing the victim to be raped by several other men once he was
done with her, it is clear that the trial court was agreeing with and adopting the prosecution’s
position.


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       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. [People v Cannon, 481 Mich 152, 158-159;
       749 NW2d 257 (2008).]

Points may be assessed under this OV when the exploitive conduct was directed against a
vulnerable victim and the vulnerability was readily apparent, in that the victim was susceptible to
injury, physical restraint, persuasion, or temptation. Id. at 157-158. But if an offender did not
exploit a victim’s vulnerability, as defendant suggests is the case here, then zero points are
properly scored for OV 10. MCL 777.40(1)(d). In any event, OV 10 is not to be scored based
on the conduct of a co-offender. People v Gloster, 499 Mich 199, 204-205; 880 NW2d 776
(2016).

        The trial court scored OV 10 at 15 points, which is proper when “[p]redatory conduct was
involved.” MCL 777.40(1)(a). “ ‘Predatory conduct’ means preoffense conduct directed at a
victim . . . for the primary purpose of victimization.” MCL 777.40(3)(a). Unfortunately, the trial
court did not make any factual findings related to the scoring of this OV. Instead, the entirety of
the discussion on this scoring is as follows:

               [The Prosecutor]: OV 10 is exploitation of a vulnerable victim, and I’m
       arguing that it be scored at 15 points for predatory conduct [instead of the zero
       points that was noted in the presentence investigation report].

               THE COURT: [Defense counsel]?

               [Defense Counsel]: I think it’s scored properly at zero, Your Honor.

               THE COURT: I think it was predatory conduct. I’ll score it 15 over
       objection.

       Because the trial court did not make any specific factual findings regarding what
defendant purportedly did that constituted predatory conduct, it is impossible for this Court to
review those findings. However, we need not remand for the trial court to enunciate its rationale
or its underlying findings of its scoring of this OV because, assuming the 15 points were
improperly scored, defendant still would not be entitled to resentencing. Reducing the score of
OV 10 to zero points would reduce defendant’s total OV score from 125 to 110 points. But this
change does not alter the total OV level—it remains at OV level VI (100+ points) in the
applicable sentencing grid. See MCL 777.62. Accordingly, because any scoring error on this
OV would not alter the appropriate guidelines range, resentencing is not required. MCL
769.34(10); People v Bowling, 299 Mich App 552, 563; 830 NW2d 800 (2013), citing People v
Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

                          IV. CRUEL OR UNUSUAL PUNISHMENT

        Defendant contends that his sentence is cruel or unusual because the term exceeds his
natural life expectancy, and thus, the sentence equates to a life sentence without parole, and the
trial court failed to consider mitigating factors. We disagree.

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        A defendant must “advance a claim below that his sentences were unconstitutionally
cruel or unusual” to be preserved. Id. at 557. Defendant failed to object during sentencing that
his sentence was cruel or unusual; therefore, the issue is unpreserved. See id. Accordingly, we
review this unpreserved constitutional issue for plain error affecting defendant’s substantial
rights. Id.

        The United States Constitution prohibits cruel and unusual punishment, US Const Am
VIII, while the Michigan Constitution prohibits cruel or unusual punishment, Const 1963, art 1
§ 16. Thus, Michigan’s Constitution affords more protection than the United States Constitution.
See People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011). In other words, “[i]f a
punishment passes muster under the state constitution, then it necessarily passes muster under the
federal constitution.” Id. (quotation marks and citation omitted). “In deciding if punishment is
cruel or unusual, this Court looks to the gravity of the offense and the harshness of the penalty,
comparing the punishment to the penalty imposed for other crimes in this state, as well as the
penalty imposed for the same crime in other states.” Bowling, 299 Mich App at 557-558.
Explained another way, a sentence constitutes cruel or unusual punishment when it is grossly
disproportionate to the seriousness of the circumstances surrounding the offense and the
offender. People v Bullock, 440 Mich 15, 32; 485 NW2d 866 (1992); People v Milbourn, 435
Mich 630, 636; 461 NW2d 1 (1990). Further, “a sentence within the guidelines range is
presumptively proportionate, and a sentence that is proportionate is not cruel or unusual
punishment.” People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008) (citations
omitted).

       Here, defendant was sentenced to a minimum term of imprisonment of 40 years, or 480
months. His guidelines range for his minimum sentence was 270 to 900 months. Thus,
defendant was sentenced within the guidelines range, which makes his sentence presumptively
proportionate and not cruel or unusual. Nothing in the record negates the presumption of
proportionality, as defendant’s sentence was proportionate to the seriousness of circumstances
surrounding the offense and the offender.

        Defendant contends that his sentence is cruel or unusual because he will likely die before
being eligible for parole. However, defendant incorrectly assumes that he is entitled to parole.
See People v Merriweather, 447 Mich 799, 808; 527 NW2d 460 (1994) (stating that Michigan
law does not support the contention that all defendants are entitled to parole); Bowling, 299 Mich
App at 558. Furthermore, a defendant’s age is insufficient to overcome the presumptive
proportionality of his sentences, especially when considering a defendant’s “lengthy criminal
record and the gravity of his offenses.” Bowling, 299 Mich App at 558-559. Here, there is no
question that the offense of CSC-I “is a serious offense.” People v Fultz, 453 Mich 937; 554
NW2d 725 (1996). Considering this particular case, the offense was horrific. Defendant
repeatedly sexually assaulted the victim over many hours, keeping her confined in his van. He
told the victim that after he assaulted her one more time, he was going to allow the other men to
get their “turn,” which reasonably made the victim believe she was going to be gang raped. And
considering the offender, defendant had a very extensive history, including 15 convictions, of
which at least nine were felonies, including assault with a deadly weapon, carrying a concealed
weapon, and a federal weapons conviction.



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        Moreover, we note that defendant also has failed to show that his sentences are cruel or
unusual compared to the penalties imposed for other crimes in this state or for the same crimes in
other states. Bowling, 299 Mich App at 559, citing People v Brown, 294 Mich App 377, 390;
811 NW2d 531 (2011); see also People v Masroor, 313 Mich App 358, 400; 880 NW2d 812
(2015), aff’d in part and rev’d in part on other grounds People v Steanhouse, 500 Mich 453
(2017).

        Defendant also contends that in sentencing him, the trial court failed to consider
mitigating factors including defendant’s mental health history and the fact that defendant did not
use a firearm or threats when assaulting the victim. However, defendant has failed to cite to any
authority that requires a court to consider mitigating factors at sentencing. Regardless, a review
of the record shows that the trial court was aware of and considered these mitigating factors,
among others. Specifically, the trial court and the parties addressed defendant’s presentence
investigation report at sentencing. The report indicated that defendant was diagnosed with
bipolar disorder and had additional mental health problems. Additionally, the trial court presided
over the trial and heard all the testimony. As a result, the trial court was aware of defendant’s
mental health problems from the presentence investigation report and was well aware from
having presided over the trial that defendant did not use a weapon during the commission of the
crime. Therefore, defendant has not demonstrated any plain error.

       Affirmed.

                                                            /s/ Stephen L. Borrello
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Jonathan Tukel




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