                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 9, 2015
              Plaintiff-Appellee,

v                                                                  No. 321406
                                                                   Ionia Circuit Court
ANDREW ROBERT COFFMAN,                                             LC No. 2013-015897-FH

              Defendant-Appellant.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

       Defendant, Andrew Robert Coffman, appeals as of right his convictions and sentence,
following a jury trial, of third-degree criminal sexual conduct (CSC III) (force or coercion),
MCL 750.520d(1)(b). Coffman was also convicted of fourth-degree criminal sexual conduct
(CSC IV) (force or coercion), MCL 750.520e(1)(b). The trial court sentenced Coffman to serve
concurrent terms of 4 to 15 years’ imprisonment for his CSC III conviction and one to two years’
imprisonment for his CSC IV conviction. We affirm.

                                           I. FACTS

        According to the victim, she and Coffman had a relationship for four years and had a son
together, but their relationship ended in May or June of 2013. The victim lived in an apartment
with Coffman, their son, and their roommate Tim Marrion. On August 10, 2013, the victim also
invited Tony Jordan to the apartment.

        According to the victim, she and Coffman left the apartment and went to Walmart and
McDonald’s. During the drive, Coffman repeatedly asked the victim to have sex with him, and
the victim repeatedly declined. After they returned to the apartment, the victim sat on the couch
and ate while Jordan and Marrion played video games.

        Coffman approached the victim and began tickling her and fondling her breasts.
Coffman then pulled the victim off the couch and pinned her into a corner, where he pulled off
her tank top and bra and told Jordan to remove her shorts. Jordan refused, and Coffman pulled
them off. As the victim attempted to change into a nightgown, Coffman shoved her into his
bedroom and onto the bed. Coffman yelled for Jordan and Marrion to come into the bedroom,
and told Jordan to help him to hold her down. Jordan testified that Coffman instructed him to
lick the victim’s vagina, but he refused.

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        The victim testified that during the assault, she was screaming for the men to “get off
from [her] and leave [her alone],” but the men kept grabbing her breasts and trying to pull her
legs apart. There were times at which she had no idea who was doing what to her, but she was
certain that Coffman put his fingers in her vagina. Jordan testified that he knew that the victim
wanted to leave, that the victim told Coffman to stop five or six times, and that the victim told
Coffman to “get his fingers out of her private area.” Marrion testified that he saw Coffman
rubbing the victim’s breasts and attempting to put his hands “[i]n her private part.” According to
Marrion, the victim repeatedly told Coffman and Jordan to stop.

        Jonathan Miller testified that he was walking his dog in the early morning of August 11,
2013, when he heard a distressed female voice screaming “get out, get out.” Billi Miller testified
that she tried to determine where the screams were coming from, heard a woman screaming “get
out” and “help,” and called the police. Officer Randy Dankenbring testified that after he arrived
at the victim’s apartment, he heard a woman screaming “get out, get off me.” Officer
Dankenbring approached an apartment and knocked on the door, and Coffman and the victim
answered. The victim testified that Coffman told her not to tell the officer that Jordan was in the
apartment. Jordan testified that he hid in an apartment because he was on parole and it was past
his curfew.

        According to Officer Dankenbring, he asked if everything was fine and Coffman
answered affirmatively. He interviewed Coffman, the victim, and Marrion, and the victim
indicated that a sexual assault took place. He later interviewed Coffman at the police
department, where he admitted that the victim repeatedly told him to stop but he did not. Jane
Matthews, a sexual assault nurse examiner, testified that she examined the victim. According to
Matthews, the victim indicated that she had pain in her hips, thighs, and genitals. Matthews
examined the victim and found a bruise on her upper right thigh that was consistent with a
fingertip bruise.

       The jury found Coffman guilty of CSC III and CSC IV. Coffman now appeals.

                            II. SUFFICIENCY OF THE EVIDENCE

        A claim that the evidence was insufficient to convict a defendant invokes that defendant’s
constitutional right to due process of law. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748
(1992); In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). This Court
reviews de novo a defendant’s challenge to the sufficiency of the evidence. People v Meissner,
294 Mich App 438, 452; 812 NW2d 37 (2011). We review the evidence in a light most
favorable to the prosecution to determine whether a rational trier of fact could find that the
prosecution proved the crime’s elements beyond a reasonable doubt. People v Reese, 491 Mich
127, 139; 815 NW2d 85 (2012). We must resolve any conflicts in the evidence in the
prosecution’s favor. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

       The elements of CSC III are that the defendant sexually penetrated the victim and used
force or coercion to accomplish the penetration. MCL 750.520d(1). MCL 750.520a(r) defines
“sexual penetration” as including “sexual intercourse . . . or any other intrusion, however slight,
of any part of a person’s body . . . into the genital or anal openings of another person’s body . . .


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.” Further, “identity is an element of every offense.” People v Yost, 278 Mich App 341, 356;
749 NW2d 753 (2008).

       First, Coffman contends that there was insufficient evidence that he, rather than Jordan,
penetrated the victim. We disagree.

       A victim’s testimony alone may be sufficient to convict a defendant of CSC. People v
Brantley, 296 Mich App 546, 551; 823 NW2d 290 (2012); MCL 750.520h. Further,
circumstantial evidence and reasonable inferences arising from that evidence can sufficiently
prove the elements of a crime. See Kanaan, 278 Mich App at 622.

        In this case, the victim testified that Coffman digitally penetrated her. While she agreed
on cross-examination that the room was dark and she did not know for sure who had penetrated
her, she also testified on redirect examination that she was certain that she saw Coffman put his
fingers inside her vagina. Jordan testified that the victim screamed for Coffman to get his fingers
out of her privates, and Marrion testified that he saw Coffman trying to put his hand in the
victim’s genitals. Viewing this evidence in the light most favorable to the prosecution and
resolving conflicts in the prosecution’s favor, we conclude that a rational trier of fact could have
concluded beyond a reasonable doubt that it was Coffman who penetrated the victim.

       Second, Coffman contends that the prosecution did not disprove his affirmative defense
of consent. We disagree.

        Consent is an affirmative defense to CSC if the prosecution’s theory is based on force or
coercion. People v Waltonen, 272 Mich App 678, 689; 728 NW2d 881 (2006). “A person
consents to a sexual act by agreeing to it freely and willingly, without being forced or coerced.”
Id. at 689 n 4 (quotation marks and citation omitted). Proof of consent generally negates the
element of force or coercion. People v Khan, 80 Mich App 605, 619 n 5; 264 NW2d 360 (1978).
Consent is an affirmative defense; lack of consent is not an element of the crime. People v Stull,
127 Mich App 14, 20-21; 338 NW2d 403 (1983). Therefore, while the prosecution must prove
force or coercion beyond a reasonable doubt, the defendant must prove consent by a
preponderance of the evidence. See People v Likine, 492 Mich 367, 405 n 81; 823 NW2d 50
(2012) (holding that “[a]lthough the prosecution must prove the elements of the crime beyond a
reasonable doubt, the defendant bears the burden of proving the affirmative defense by a
preponderance of the evidence”).

        In this case, the victim testified that she repeatedly told Coffman to stop, but Coffman
forced her into the bedroom and told Jordan to hold her down. Multiple witnesses also testified
that they heard the victim screaming stop, including the Millers and Officer Dankenbring. Given
this evidence, the prosecution proved force beyond a reasonable doubt, and Coffman failed to
prove his affirmative defense of consent. We conclude that sufficient evidence supported the
jury’s verdict.

                                  III. OFFENSE VARIABLES

        The proper interpretation and application of the sentencing guidelines is a question of law
that this Court reviews de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
We review the sentencing court’s scoring of a sentencing guidelines variable for clear error.
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People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). A preponderance of the
evidence must support the trial court’s determinations. Id.

       Coffman contends that the trial court erred when it assessed multiple offense variables
(OVs), including OV 3, OV 4, OV 14, and OV 19. We disagree.

        The trial court properly assesses five points for OV 3 when “[b]odily injury not requiring
medical treatment occurred to a victim[.]” MCL 777.33(1)(e). A bodily injury is “anything 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). In this
case, the victim complained of pain and a bruise. Both pain and bruising are evidence of
physical damage. We conclude that a preponderance of the evidence supported the trial court’s
assessment.

        The trial court properly assesses 10 points for OV 4 if “[s]erious psychological injury
requiring professional treatment occurred to a victim[.]” MCL 777.34(1). Whether the victim
actually sought medical treatment is not conclusive. MCL 777.34(2). The victim’s statements
that the offense disrupted the victim’s life and caused the victim to have nightmares may support
an assessment of 10 points. People v Drohan, 264 Mich App 77, 90; 689 NW2d 750 (2004). In
this case, the victim testified that she is terrified, cannot trust men, and has anxiety attacks that
require medication because of the offense. The victim also indicated in her impact statement that
she has “terrible, horrible night[]mares,” sleeplessness, and has lost her job because of anxiety.
Thus, a preponderance of the evidence supported the trial court’s assessment because there was
evidence that the offense disrupted the victim’s life.

         The trial court properly assesses 10 points for OV 14 if “[t]he offender was a leader in a
multiple offender situation.” MCL 777.44(1)(a). Leading includes directing or conducting other
participants in the offense. People v Rhodes (On Remand), 305 Mich App 85, 90; 849 NW2d
417 (2014). Evidence that the defendant acted first, gave directions, or displayed greater
initiative may show that a defendant was a leader. See id. Here, witnesses testified that Coffman
initiated the assault by repeatedly grabbing the victim without her permission, and Coffman
proceeded to direct other offenders when he instructed Jordan to hold the victim down and lick
her. We conclude that a preponderance of the evidence supported the trial court’s assessment
under OV 14.

        The trial court properly assesses 10 points for OV 19 if “[t]he offender otherwise
interfered with or attempted to interfere with the administration of justice[.]” MCL 777.49.
Interference includes interfering with police duties. People v Barbee, 470 Mich 283, 288; 681
NW2d 348 (2004). Further, lying to police officers constitutes interference with the
administration of justice when it leads police investigators astray. People v Ericksen, 288 Mich
App 192, 204; 793 NW2d 120 (2010).

        In this case, when officers arrived at the victim’s apartment to investigate the offense,
Coffman told the victim to lie about Jordan’s presence and then told Officer Dankenbring that
everything was fine inside the apartment. Coffman’s statements could have misled the police
from investigating the offense and did initially prevent police from discovering Jordan, who
assisted Coffman in perpetrating the assault and could have contradicted his statement that

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everything was fine. Coffman’s subjective reasons for doing so are not relevant. We conclude
that a preponderance of the evidence supported the trial court’s assessment of 10 points under
OV 19.

       We affirm.

                                                         /s/ Joel P. Hoekstra
                                                         /s/ Peter D. O’Connell
                                                         /s/ Christopher M. Murray




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