               If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                    revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 26, 2019
                 Plaintiff-Appellee

v                                                                    No. 339916
                                                                     Monroe Circuit Court
DANIEL ALLAN CLAY,                                                   LC No. 16-243168-FC

                 Defendant-Appellant.


Before: STEPHENS, P.J., and K. F. KELLY and TUKEL, JJ.

PER CURIAM.

        Defendant appeals by right his jury conviction for first-degree criminal sexual conduct
(CSC), MCL 750.520b.1 He was sentenced as a habitual offender, second offense, MCL 769.10,
to 40 to 75 years’ imprisonment. We affirm in part and remand for review of sentence.

                                         I. BACKGROUND

        This case arose from the defendant’s sexual assault of Autumn Miller on the evening of
June 9, 2016 at her friends’ apartment. Earlier that day, Miller had called her friend Wesley and
asked him to bring over a lighter in exchange for a shot of vodka and a cigarette because she did
not have one. Sometime after 5:00 p.m., Wesley arrived with his friend Klare and the defendant.
Miller recognized the defendant from Facebook because he had dated a friend of hers, but she
did not know him personally. The four of them consumed one fifth of vodka and began drinking
from a second bottle. It was after the second bottle was opened that defendant told Miller that he
had some Neurontin pills and she traded him another shot for a pill. Defendant offered her
another Neurontin pill, but before taking it, Miller told the defendant that she was not going to
have sex with him as a form of payment for the pill. Defendant told her that she could just have


1
    Defendant was found not guilty on the additional charge of first-degree home invasion.
the pill, so she took it but felt no differently afterward. After about an hour and a half, Miller
told everyone they had to leave because they were being too loud. It was after everyone left that
Miller noticed her cigarettes and the other bottle of vodka were gone. She texted Wesley and
told him to return the items and he responded that he had not taken them.

        Sometime later, Miller was sitting on the couch on Facebook when defendant
unexpectedly walked through the front door. She asked him if he had her liquor and cigarettes.
Defendant did not respond. Instead he walked up to the couch and struck Miller on the left side
of her head throwing her to the ground by her hair. As he held her down, he vaginally penetrated
her and bit her breasts. Defendant then dragged her to the bathroom by her hair and threw her
into the shower, hitting her head on the spigot. After turning on the shower, defendant ejaculated
on Miller in the tub and left. Miller waited three minutes before turning off the water and getting
out of the tub. She retrieved her phone from the couch and called 9-1-1. The police arrived and
she was transported to the hospital by ambulance. Detective John Schiappacasse was assigned to
investigate Miller’s CSC complaint. On June 11, 2016, he met with Miller at the apartment and
she identified the defendant as the person who assaulted her. Defendant was subsequently
interviewed by the police where he gave multiple versions of the assault. These versions went
from denial of sexual contact to asserting a consensual sexual act. Defendant was then arrested
and charged with first degree-CSC on August 8, 2016.

       Numerous witnesses testified at trial. Wesley and Klare testified that defendant had left
the apartment with them and returned to Wesley’s house. Klare also testified that at some point,
she remembered defendant no longer being at the house with them. A neighbor staying in
apartment 206 testified that she heard a female voice yell “help, stop, no” about 20 times for a
period of about 20 to 30 minutes coming from apartment 204. Miller was in apartment 204. The
apartments were separated by a hallway and stairwell. All the windows to the apartment were
open.

        Officer Joshua Roelant testified that he responded to the 9-1-1 call just after 8:00 p.m.
and Miller let him into the apartment. He smelled the strong odor of intoxicants and observed
that Miller’s eyes were bloodshot and watery and that her speech was slurred. Officer Roelant
stated that during Miller’s account of the assault, she “became very hysterical and began pacing
back and forth.” She than asked Officer Roelant “to shoot her and kill her because she didn’t
believe this happened.” He testified that he followed her to the kitchen and restrained her from
reaching for the kitchen knives by handcuffing her for her own safety and called an ambulance.

        Angela Jordan, the sexual assault nurse examiner (SANE) who examined Miller at the
hospital, testified that Miller was “combative” and screamed that she did not want to be there and
“[he] raped me!” Jordan testified that she explained the SANE forensic examination process to
Miller, but that Miller was not able to consent to the exam “due to her mental status.” Because
Miller could not consent, Lieutenant Terese Herrick, a patrol officer with the Monroe County
Police Department, collected the necessary swabs and took photographs at Jordan’s direction of
bruises and cuts on Miller’s body. Herrick testified that she also photographed what appeared to
be bite marks on Miller’s chest.

       Miller testified that she had no idea that defendant was coming back to the apartment.
She testified that she had screamed “no, stop, it hurts” during the assault. Afterwards she stated

                                                -2-
she called 9-1-1 and told the dispatcher that “Daniel raped me.” She told the dispatcher it had
happened in the shower. She also testified that she was hysterical and could not remember
everything she said to the responding officer once he arrived. She recalled asking the officer to
shoot her and being in handcuffs in the back of an ambulance. She could not remember if a
sexual assault kit was performed at the hospital but testified that she had a big bruise on her chest
and everything hurt upon being discharged from the hospital.

        After the denial of his motion for directed verdict, defendant testified on his own behalf.
He testified that he left the apartment with Wesley and Klare but walked back alone about an
hour and a half later and Miller invited him in. According to defendant, Miller agreed to him
coming back to the apartment and they engaged in consensual sexual intercourse on the floor on
top of some blankets and clothes. He testified that when Miller said, “stop, stop, no,” and
“started freaking out on him,” he “hopped up” and asked her what was wrong. Prior to Miller
saying stop, he testified that she was making sounds that indicated she was enjoying herself so he
believed the sex to be consensual. He also admitted that he had lied to the police during his
questioning but stated he told the truth toward the end. After being deadlocked twice, the jury
returned the guilty verdict from which defendant now appeals.

                            II. SUFFICIENCY OF THE EVIDENCE

        “We review de novo a challenge on appeal to the sufficiency of the evidence.” People v
Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). “We examine the evidence in a light
most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine
whether a rational trier of fact could have found that the essential elements of the crime were
proved beyond reasonable doubt.” Id. at 196.

       Defendant argues that the sexual intercourse with Miller was consensual and further, that
there was insufficient evidence to prove that he caused personal injury and used force or
coercion to accomplish penetration. We disagree.

       Defendant was charged and convicted of first-degree CSC. MCL 750.520b.

       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:

                                              * * *

       (c) Sexual penetration occurs under circumstances involving the commission of
       any other felony.

                                              * * *

       (f) The actor causes personal injury to the victim and force or coercion is used to
       accomplish sexual penetration . . . [MCL 750.520b(1)(c) and (f)].

There was sufficient evidence to support that defendant and Miller did not engage in consensual
intercourse. Contrary to defendant’s argument that Miller was flirting with him when they first

                                                -3-
met, she testified that she had no sexual interest in defendant. Her testimony was further
corroborated by the testimonies of Klare and Wesley. Both testified that neither of them
witnessed Miller exhibit any flirtatious behavior or make any sexual advances toward defendant
during the time all four of them were at the apartment. Klare also testified that Miller told her
that she thought defendant was disgusting. Furthermore, Miller testified that she told defendant
“no” and “stop” during the assault and a next door neighbor testified to hearing a woman yelling
no, stop, and help around the same time the assault was taking place.

         Secondly, there was also sufficient evidence to support that defendant caused personal
injury to Miller. “ ‘Personal injury’ means bodily injury, disfigurement, mental anguish, chronic
pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.” MCL
750.520a(n). Sufficient evidence of any one of these listed definitions will prove the element of
personal injury. People v Asevedo, 217 Mich App 393, 397; 551 NW2d 478 (1996). Miller
testified that during the assault, she yelled “ow” and “no, stop, it hurts.” The SANE nurse
testified that Miller had bruises and cuts on her body and Lieutenant Herrick testified to
observing bite marks on Miller’s breast and a bruise by her eye. Despite defendant’s argument
to the contrary, the bite marks did not need to be substantial nor did they have to occur
contemporaneously with defendant’s penetration. To constitute bodily injury, the physical
injuries suffered “need not be permanent or substantial.” People v Mackle, 241 Mich App 583,
596; 617 NW2d 339 (2000). Additionally, an act of penetration need not be considered in
isolation and the Court is allowed to consider the bodily injury in connection with the assault. Id
at 600.

        Lastly, there was also sufficient evidence to establish that defendant’s vaginal penetration
of Miller was accomplished by force or coercion. The statutory definition of force or coercion
includes “[w]hen the actor overcomes the victim through the actual application of physical force
or physical violence.” MCL 750.520b(1)(f)(i). Miller testified that when defendant first entered
the apartment he hit her on the left side of her head and then knocked her to the ground. He then
held Miller’s arms above her head, placed a forearm across her neck and sexually assaulted her
atop a pile of clothes. Afterwards, he dragged her by her hair to the bathroom and threw her into
the shower where she hit her head on the spigot.

       Viewing the evidence in the light most favorable to the prosecution, there was sufficient
evidence to convince a jury beyond a reasonable doubt that the defendant committed first-degree
CSC.

                              III. MOTION TO CHANGE VENUE

         Defendant argued in the trial court that a change of venue was warranted but argues for
the first time on appeal that trial counsel was ineffective for failing to renew the motion to
change venue at the time of jury selection. Thus this issue is only partially preserved. This
Court reviews for an abuse of discretion whether the trial court erred by denying a defendant’s
motion for change of venue. People v Lee, 212 Mich App 228, 252; 537 NW2d 233 (1995), lv
den 453 Mich 884 (1996). “An abuse of discretion occurs when the court chooses an outcome
that falls outside the range of reasonable and principled outcomes.” People v Mahone, 294 Mich
App 208, 212; 816 NW2d 436 (2011). Otherwise, we review an unpreserved change of venue
issue for plain error affecting defendant’s substantial rights. People v Kowalski, 489 Mich 488,

                                                -4-
505; 803 NW2d 200 (2011). Our review of defendant’s ineffective assistance of counsel claim is
limited to mistakes apparent on the record, because no Ginther2 hearing was held. People v
Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).

         Defendant first argues that the trial court erred in denying his motion to change venue
where numerous articles and media coverage of his conviction for murder in a prior case during
the trial for this offense created a presumption of prejudice. He also argues that trial counsel was
ineffective for failing to renew the motion to change venue at the time of jury selection. We
disagree.

       “Generally, criminal defendants must be tried in the county where the crime was
committed.” People v Unger, 278 Mich App 210, 253-254; 749 NW2d 272 (2008). However, a
change of venue might be warranted in cases of “extensive egregious media reporting,” “a
barrage of inflammatory publicity leading to a ‘pattern of deep and bitter prejudice’ against the
defendant,” “highly inflammatory attention to sensational details” or when “a carnival-like
atmosphere surrounding the proceedings” develops. People v Jendrzejewski, 455 Mich 495,
506-508; 566 NW2d 530 (1997).

        Defense counsel made a pre-trial motion for a change of venue. The court denied the
motion without prejudice but defense counsel successfully requested the opportunity to renew
the motion at the time of jury selection but did not do so and expressed satisfaction with the jury
after voir dire. He now argues that he was deprived of his right to an impartial jury by the trial
court’s denial of his motion to change venue and faults the court for not questioning jurors
individually to expose any bias during jury selection. However, defendant waived both these
issues when he failed to renew his motion to change venue and expressed satisfaction with the
jury. People v Clark, 243 Mich App 424, 425-426; 622 NW2d 344 (2000).

        Defense counsel was also not ineffective for failing to renew the motion to change venue.
To establish an ineffective assistance claim, a defendant must show that “(1) counsel’s
performance fell below an objective standard of reasonableness under professional norms and (2)
there is a reasonable probability that, but for counsel’s errors, the result would have been
different and the result that did occur was fundamentally unfair or unreliable.” People v Seals,
285 Mich App 1, 17; 776 NW2d 314 (2009).

        Renewing the motion would have been meritless where none of the factors expressed in
Jendrzejewski were present for defendant’s jury pool. “Failing to advance a meritless argument
or raise a futile objection does not constitute ineffective assistance of counsel.” Ericksen, 288
Mich App at 201. In accordance with Jendrzejewski, community bias is implied when “a high
percentage of the venire . . . admit to a disqualifying prejudice.” 455 Mich at 500-501. That did
not occur here. During voir dire, defense counsel asked the venire how many of them were
familiar with the defendant and defense counsel counted five on the record. Those who raised
their hands were asked whether what they had heard or seen would prevent them from being a
fair juror on this case. Those jurors who indicated they could not be fair were challenged and


2
    People v Ginther, 390 Mich 436, 440; 212 NW2d 922 (1973).


                                                -5-
removed. Thus, counsel’s decision not to renew defendant’s motion to change venue was
reasonable trial strategy. “If jurors can lay aside their impressions or opinions and render a
verdict based on the evidence presented in court, a change of venue is not necessary.” People v
Prast, 114 Mich App 469, 477; 319 NW2d 627 (1982) (internal citation omitted). Accordingly,
defendant has not carried his burden of demonstrating that he was denied effective assistance of
counsel.

                                      IV. RESENTENICING

        Defendant argues for re-sentencing on two bases; erroneous scoring of OV8 and that the
trial court abused its discretion when it imposed an upward departure sentence because the
sentence was disproportionate and unreasonable. We reject the former but remand for re-
sentencing for reasons stated below.

        “The standard of review to be applied by appellate courts reviewing a sentence for
reasonableness on appeal is abuse of discretion.” People v Steanhouse, 500 Mich 453, 471; 902
NW2d 327 (2017). “An abuse of discretion occurs when the court chooses an outcome that falls
outside the range of reasonable and principled outcomes.” Mahone, 294 Mich App at 212.

        Defendant’s challenge to the scoring of OV83 is without merit. OV8 is scored at 15
points when “[a] victim was asported to another place of greater danger or to a situation of
greater danger or was held captive beyond the time necessary to commit the offense [.]” MCL
777.38(1)(a). Defendant argues that the bathroom did not constitute a place of “greater danger”
upon which a score of 15 points was warranted. However, moving Miller to the bathroom from
the living room did place her in greater danger because the bathroom was further from the exit to
the apartment, contained only one way out, had no windows, and made it harder for someone to
hear her cries for help. A place of greater danger includes an isolated location where crimes may
avoid detection. People v Dillard, 303 Mich App 372, 379; 845 NW2d 518 (2013), abrogated on
other grounds by People v Barrera, 500 Mich 14, 17; 892 NW2d 789 (2017). Defendant’s
choice to move Miller to the bathroom further isolated her and reduced detection of the assault.
Accordingly, the scoring of 15 points for OV 8 was correct.

        An upward departure sentence is unreasonable when it violates the principle of
proportionality. Steanhouse, 500 Mich at 459-460. The “principle of proportionality,” as set
forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), “requires sentences
imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” A trial court need only “provide adequate reasons for the extent of
the departure sentence imposed ....” Steanhouse, 500 Mich at 476.

       Defendant asserts that the court articulated no adequate reason for departure from the
advisory guidelines range of 225-268 months and sentencing defendant to 480-900 months.


3
    “Offense variable 8 is victim asportation or captivity.” MCL 777.38(1).




                                                 -6-
Contrary to defendant’s contention on appeal, the court did make a record on this issue. The
court offered several bases for its departure. Those reasons included the brutality of the assault
and its effect on the victim. While the offense variables accounted for the asportation, physical
injury and psychological injury to the victim, the court was aware that when the police arrived
the victim asked them “to shoot her.” The court did not abuse its discretion in finding that the
guidelines did not give sufficient weight to the nature of the facts of this crime. The court, also
found that the defendant had prior uncharged offenses from which the court made a finding that
defendant was a serial rapist 4. The appellant did not challenge the basis of that finding. The
court further noted defendant’s “substantial history of violating every term of community
supervision he’s ever received, even directed probation.” Again, while the prior record variables
took into account the defendant’s prior convictions, the court did not abuse its discretion in
finding that the length and scope of that prior record was given inadequate weight.

         However, the last bases for departure, lack of remorse and consistent lying during
interviews with law enforcement are concerning. In People v Wesley, 428 Mich 708, 711; 411
NW2d 159 (1987), our Court held that a defendant cannot be punished for failing to admit guilt.
“We would hold that while a sentencing court cannot, in whole or in part, base its sentence on a
defendant’s refusal to admit guilt, People v Yennior, 399 Mich 892; 282 NW2d 920 (1977),
evidence of a lack of remorse can be considered in determining an individual’s potential for
rehabilitation.” Wesley, 428 Mich at 711. Here the trial court made it clear when stating its
reasons for exceeding the sentencing guidelines that defendant’s assertion of innocence was not
the reason for imposing the harsh sentence. In this case the trial court did not state that the lack
of remorse was indicative of the defendant’s rehabilitative potential but in light of the
contemporaneous discussion of the defendant’s failure to benefit from community supervision
and his long pattern of errant behavior, it is reasonable to infer that this factor related to
rehabilitative potential. However, the issue of lying to officers during interviews is another
matter. Ten points were scored against defendant under OV 19. Obstruction of the
administration of justice is scored under the offense variables and has a broad scope under
Michigan law. To use lying to law enforcement during interviews as a basis for an upward
departure appears to penalize a defendant for failing to admit guilt. As noted in Dixon-Bey5,
where the trial court offered no explanation as to why the OV19 scoring gave inadequate weight
to this conduct a remand is appropriate. On remand the court has the opportunity to articulate its
reasons for utilizing this factor in the departure so that this Court has a full record upon which to
determine reasonableness and proportionality of the sentence.




4
  The prosecution filed a sentencing memorandum in this matter which noted that during a prior
prosecution where the defendant was convicted of felony murder (December 2018 Case Call
Item #3, People v Clay, Docket No. 339659), two young women came forward stating that
defendant had raped them too. According to these women, the rapes occurred while they were
13 years old and defendant was 16 years old in one instance, and 17 years old in the other.

5
    People v Dixon-Bey, 321 Mich App 490, 525; 909 NW2d 458 (2017).


                                                -7-
Affirmed in part and remanded for review of sentence. We do not retain jurisdiction.

                                                   /s/ Cynthia Diane Stephens
                                                   /s/ Kirsten Frank Kelly
                                                   /s/ Jonathan Tukel




                                       -8-
