                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 28, 2015
              Plaintiff-Appellee,

v                                                                  No. 320175
                                                                   Ingham Circuit Court
ANGEL VAZQUEZ,                                                     LC No. 13-000088-FC

              Defendant-Appellant.


Before: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of five counts of first-degree
criminal sexual conduct, MCL 750.520b(1)(f)(ii) (personal injury with force or coercion), and
one count of second-degree criminal sexual conduct, MCL 750.520c(1)(f) (personal injury with
force or coercion).1 Defendant was sentenced as a second-offense habitual offender, MCL
769.10, to 225 to 360 months for two counts of first-degree criminal sexual conduct, 168 to 360
months for three counts of first-degree criminal sexual conduct, and 60 to 270 months for
second-degree criminal sexual conduct. We affirm defendant’s convictions and sentences, but
remand for the ministerial task of correcting the presentence investigation report (PSIR) and
judgment of sentence.

                                I. FACTUAL BACKGROUND

       The victim was 12 years old when she met defendant, a neighbor who was approximately
50 years old. She and her sister would clean his house, and he would pay them $20 for doing so.
The victim testified that defendant would buy her gifts, such as food, underwear, clothes, and an
iPod.




1
  Although defendant asserts there is confusion in the number of first-degree criminal sexual
conduct convictions, the jury was charged with five counts of first-degree criminal sexual
conduct, and found defendant guilty of all five counts. The judgment of sentence and the verdict
form properly reflect these convictions.


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       The sexual assaults began when the victim was approximately 13 years old. She testified
that defendant touched her breasts, digitally penetrated her vagina, and penetrated her vagina
with his penis. She knew what defendant was doing was wrong, she told him to stop, and that it
hurt. However, the victim continued to visit defendant’s house daily because she was afraid of
him. She testified that defendant engaged in sexual conduct with her almost daily, including
anal-penile penetration and oral penetration.2

        Eventually, when the victim approached the age of 16, she became less fearful of
defendant. By the time she was 17 years old, she stopped engaging in sexual activity with
defendant. She testified that the last sexual contact occurred when he touched her breast, she
told him no, she ran to the bathroom, and called the police shortly thereafter.

        The victim detailed the turmoil these sexual assaults created in her life. After the first
assault, the victim attempted to commit suicide. The victim’s mother tried to get her mental
health help through hospitalization and medication. The victim’s sister also explained how the
victim underwent a drastic change in behavior when she was around 13 or 14 years old. Despite
her family’s efforts, the victim again attempted suicide when she was 16 years old.

       The victim also explained that she failed eighth grade even though she previously had
been a good student. The victim’s mother verified that her plummeting grades and suicide
attempts occurred when the victim was visiting defendant frequently. The victim also testified
that defendant’s conduct affected her because did not think positively about herself. She
explained that after the assaults, she “didn’t want to feel.”

       Defendant confirmed that the victim would often visit his trailer, and he gave her a key so
she could look after the trailer when he was out of town. He admitted that he had sexual
intercourse with her when she was 17, but denied having sex with her when she was younger
than 16 years old. A jury convicted defendant of five counts of first-degree criminal sexual
conduct and one count of second-degree criminal sexual conduct. He now appeals on several
grounds.

                              II. SUFFICIENCY OF THE EVIDENCE

                                   A. STANDARD OF REVIEW

        Defendant first contends that the evidence was insufficient to prove he caused personal
injury to the victim, a requirement for all of his convictions. We review de novo a challenge to
the sufficiency of the evidence. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120
(2010). “In determining whether the prosecutor has presented sufficient evidence to sustain a
conviction, an appellate court is required to take the evidence in the light most favorable to the
prosecutor” to ascertain “whether a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.” People v Tennyson, 487 Mich 730, 735; 790 NW2d 354 (2010) (quotation
marks and citations omitted). We resolve conflicts of the evidence in favor of the prosecution,


2
    Evidence also was introduced that defendant inappropriately touched the victim’s sister.


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“and we will not interfere with the jury’s determinations regarding the weight of the evidence
and the credibility of the witnesses.” People v Unger, 278 Mich App 210, 222; 749 NW2d 272
(2008). We also note that circumstantial evidence and reasonable inferences arising therefrom
can constitute sufficient proof of the elements of a crime. People v Allen, 201 Mich App 98,
100; 505 NW2d 869 (1993).

                                         B. ANALYSIS

        Pursuant to MCL 750.520b(f), first-degree criminal sexual conduct occurs when “[t]he
actor causes personal injury to the victim and force or coercion is used to accomplish sexual
penetration.” Pursuant to MCL 750.520c(f), second-degree criminal sexual conduct occurs when
“[t]he actor causes personal injury to the victim and force or coercion is used to accomplish the
sexual contact.”

        Personal injury, in turn, is defined as “bodily injury, disfigurement, mental anguish,
chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.” MCL
750.520a(n). Mental anguish takes the form of “evidence from which a rational trier of fact
could conclude, beyond a reasonable doubt, that the victim experienced extreme or excruciating
pain, distress, or suffering of the mind.” People v Petrella, 424 Mich 221, 259; 380 NW2d 11
(1985). Relevant factors include: evidence that the victim was upset or crying during or after the
assault; that the victim needed to seek psychiatric or psychological care or treatment; a resulting
interference with the victim’s ability to conduct a normal life; the victim’s fear for her life or
safety, or that of those near to her; feelings of anger and humiliation; evidence that the victim
was prescribed some sort of medication to treat her anxiety or other symptoms; and evidence that
the emotional or psychological effects of the assault were long-lasting. Id. at 270-271.

        Here, there was significant evidence of the victim’s mental anguish. She had to seek
mental health treatment, her normal life was severely disrupted as she failed the eighth grade, she
allowed the conduct to continue out of fear that he would harm her, she was unable to think
positively about herself and experienced weight gain, and she twice attempted to take her own
life. This is significant evidence of acute mental anguish. Further, regarding the last incident
where defendant touched the victim’s breast, the victim explained that she was pregnant at the
time. Defendant began touching her breast when she was sleeping in the middle of the night.
Even though she told him no, he continued to assault her. She eventually pushed away and fled.
She was so distraught that after running from defendant, she hid in the bathroom, and called the
police the next day.

         In light of the foregoing, there was sufficient evidence that the victim suffered from
mental anguish. Defendant, however, posits that there was insufficient evidence that he caused
the victim’s mental distress. He incredibly suggests, for example, that her distress could have
been due to the loss of her grandmother or because she was living in poverty. Yet, the victim
testified that upon reflection, it was fair to say that defendant’s conduct was the source of her
mental distress. Although defendant offers a different theory, it was for the trier of fact to
consider the victim’s credibility, and we defer to such determinations. Unger, 278 Mich App at
222. Moreover, “the statute does not require that defendant be the sole cause of the victim’s
injury.” People v Brown, 197 Mich App 448, 452; 495 NW2d 812 (1992). There was sufficient
evidence that defendant caused the victim personal injury.

                                                -3-
                                  III. JURY INSTRUCTIONS

                                 A. STANDARD OF REVIEW

       Defendant next contends that the court improperly instructed the jury. Because defendant
did not object to jury instructions before deliberations, our review is for plain error affecting
substantial rights. People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003).

                                   B. LEGAL STANDARDS

        “A criminal defendant has a constitutional right to have a jury determine his or her guilt
from its consideration of every essential element of the charged offense.” People v Kowalski,
489 Mich 488, 501; 803 NW2d 200 (2011). Thus, a defendant is entitled to have all the elements
of the crime submitted to the jury. Id. However, “[i]nstructional errors that omit an element of
an offense, or otherwise misinform the jury of an offense’s elements, do not necessarily render a
criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”
Id. (emphasis in original) (quotation marks and citation omitted). Thus, “an imperfect instruction
is not grounds for setting aside a conviction if the instruction fairly presented the issues to be
tried and adequately protected the defendant’s rights.” Id. at 501-502. Where the “evidence
related to the missing element was overwhelming and uncontested, it cannot be said that the error
affected the defendant's substantial rights or otherwise undermined the outcome of the
proceedings.” Id. at 506. See also People v Eisen, 296 Mich App 326, 331; 820 NW2d 229
(2012).

        We also note that “[i]nstructional errors are presumed to be harmless, MCL 769.26, but
the presumption may be rebutted by a showing that the error resulted in a miscarriage of justice.”
People v Dupree, 284 Mich App 89, 117; 771 NW2d 470 (2009). See also People v Riddle, 467
Mich 116, 124-125; 649 NW2d 30 (2002) (“The defendant’s conviction will not be reversed
unless, after examining the nature of the error in light of the weight and strength of the untainted
evidence, it affirmatively appears that it is more probable than not that the error was outcome
determinative.”).

                                           C. WAIVER

        Of initial significance is that defendant has waived any challenge to the jury instructions.
When the trial court specifically asked defense counsel if there were any objections to the jury
instructions, defense counsel replied in the negative. As the Michigan Supreme Court has held,
when defense counsel approves of the jury instructions by communicating that he has no
objections, “defendant waived any objection to the erroneous instructions, and there is no error to
review.” Kowalski, 489 Mich at 504. See also People v Hershey, 303 Mich App 330, 351; 844
NW2d 127 (2013) (“a response on the record by a defendant of ‘no objection’ to a court’s
inquiry regarding the propriety of the instructions it has read to a jury is, when viewed in its
context, indicative of a manifestation of approval of the instructions.”).

        Further, even if we were to review this issue, defendant has not demonstrated that he is
entitled to relief.

                    D. FIRST-DEGREE CRIMINAL SEXUAL CONDUCT

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        Defendant contends that the trial court erred in failing to instruct the jury on the defense
of consent with respect to the first-degree criminal sexual conduct charges. “[B]ased on the
Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s Compulsory Process
or Confrontation Clauses, the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” People v King, 297 Mich App 465, 473; 824 NW2d
258 (2012) (quotation marks and citation omitted). However, a trial court is not required to give
an instruction on a defense theory unless requested. People v Richardson, 490 Mich 115, 121;
803 NW2d 302 (2011). Moreover, “[w]hen a defendant requests a jury instruction on a theory or
defense that is supported by the evidence, the trial court must give the instruction.” Riddle, 467
Mich at 124.

        Defendant has not demonstrated that he requested an instruction regarding a consent
defense for the first-degree criminal sexual conduct charges. See Richardson, 490 Mich at 121
(the trial court is not required to give an instruction on a defense theory unless requested). In
fact, since the consent instruction was given for the second-degree criminal sexual conduct
charge, it appears that any omission on the part of defendant was intentional.

        Furthermore, such an instruction was not warranted. “There is no issue of consent in a
statutory rape charge because a victim below the age of consent is conclusively presumed to be
legally incapable of giving his or her consent to sexual intercourse.” People v Armstrong, 490
Mich 281, 292 n 14; 806 NW2d 676 (2011) (brackets, quotation marks, and citation omitted).
The victim testified about multiple incidents of first-degree criminal sexual conduct beginning
when she was 13 years old. Consent is not a defense for sexual conduct occurring when the
victim is below the age of consent. Armstrong, 490 Mich at 292 n 14; People v Wilkens, 475
Mich 899, 900; 716 NW2d 268 (2006).

       Moreover, even if such an instruction was available, defendant denied that any sexual
conduct occurred before the victim was 17 years old. In other words, rather than presenting
evidence of consent for these first-degree criminal sexual conduct incidents, defendant
completely denied their occurrence. See Riddle, 467 Mich at 124 (a trial court only is obliged to
give an instruction on a defense theory when the evidence supports it). Defendant has not
demonstrated that a consent instruction was warranted.

                   E. SECOND-DEGREE CRIMINAL SEXUAL CONDUCT

        Defendant next contends that the instruction for second-degree criminal sexual conduct
was fatally flawed because it omitted the element of personal injury. See MCL 750.520a(n)
(defining “personal injury” as “bodily injury” or “mental anguish.”); see Petrella, 424 Mich at
259 (defining “mental anguish” as occurring when the victim “experienced extreme or
excruciating pain, distress, or suffering of the mind.”). Defendant is correct that the court did not
instruct the jury on the element of personal injury. Moreover, even if defendant could establish
plain error occurred, we find that the record is replete with evidence showing personal injury to
the victim as a result of defendant’s actions.

        Even so, in its preliminary instructions, the trial court properly instructed the jury
regarding the personal injury element of second-degree criminal sexual conduct. Moreover, even
if defendant has established plain error affecting substantial rights, courts still “ ‘must exercise’ .

                                                 -5-
. . ‘discretion’ and only grant defendant a new trial if the ‘error resulted in the conviction of an
actually innocent defendant’ or ‘seriously affected the fairness, integrity, or public reputation of
judicial proceeding’.” People v Vaughn, 491 Mich 642, 666; 821 NW2d 288 (2012), quoting
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

        The evidence establishes that the victim suffered prolonged mental anguish. The sexual
assaults affected her education and feelings of self-worth. She also struggled with depression
and attempted to commit suicide multiple times. Even during the last incident, when the victim
was older and when defendant touched her breast, her mental anguish is discernible. She was so
distraught that she pushed defendant away, ran, hid in the bathroom, and eventually called the
police.

        The evidence at trial demonstrates that the mental anguish the victim suffered, as a result
of defendant’s actions toward her, was ongoing and had profound, lasting effects in her life.
Therefore, we do not find that the imperfect jury instruction undermined the fairness, integrity,
or public reputation of the court proceedings. Vaughn, 491 Mich at 666.

                       IV. INEFFECTIVE ASSISTANCE OF COUNSEL

                                  A. STANDARD OF REVIEW

        Defendant also asserts ineffective assistance of counsel because of defense counsel’s
failure to object to the inadequacy of the jury instructions. Whether a defendant received
effective assistance of counsel is a mixed question of fact and law, as a “trial court must first find
the facts and then decide whether those facts constitute a violation of the defendant’s
constitutional right to effective assistance of counsel.” People v Matuszak, 263 Mich App 42,
48; 687 NW2d 342 (2004). When reviewing a claim of ineffective assistance of counsel that has
not been preserved for appellate review, a reviewing court is limited to mistakes apparent on the
record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).

                                          B. ANALYSIS

        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden to
prove otherwise.” People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). To establish
a claim for ineffective assistance of counsel, a defendant first must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Vaughn, 491 Mich at 669
(quotation marks and citation omitted); see also Strickland v Washington, 466 US 668, 687; 104
S Ct 2052; 80 L Ed 2d 674 (1984). Second, the defendant must show that trial counsel’s
deficient performance prejudiced his defense, meaning “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Vaughn, 491 Mich at 669 (quotation marks and citation omitted); see also Strickland, 466 US at
687.

        Even if defense counsel behaved in an objectively unreasonable manner regarding the
jury instructions, defendant has not established that the outcome of the proceeding would have
been different. As discussed supra, there was significant evidence of defendant’s guilt. The
victim testified that defendant began sexually assaulting her when she was about 13 years old,
and continued to do so until she was 17 years old. These assaults occurred on a daily basis. The
                                                 -6-
havoc this created in the victim’s life is observable in the dramatic drop in her school
performance, her feelings of depression and low self-worth, and her multiple suicide attempts.
Her sister verified that the victim underwent a major behavioral change, and the victim’s mother
confirmed that the change occurred when the victim was spending time with defendant.
Moreover, defendant actually admitted that he had sexual intercourse with the victim, although
he claimed it occurred later, when he was approximately 55 years old and the victim was 17
years old.

       In light of the significant evidence of defendant’s guilt, it cannot be said that any defense
counsel error affected the outcome of the proceedings. Vaughn, 491 Mich at 669.

                                        V. SENTENCING

                                 A. STANDARD OF REVIEW

        Lastly, defendant challenges the court’s judicial fact-finding during sentencing and the
accuracy of the PSIR and judgment of sentence. “We review de novo questions of constitutional
law.” People v Harper, 479 Mich 599, 610; 739 NW2d 523 (2007). “The trial court’s response
to a claim of inaccuracies in the presentence investigation report is reviewed for an abuse of
discretion.” People v Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2009). However,
unpreserved issues are reviewed for plain error affecting substantial rights. Carines, 460 Mich at
764-765.

                                         B. ANALYSIS

       Defendant first contends that the sentencing court engaged in improper judicial fact-
finding when scoring offense variables. Defendant argues that this was in violation of Alleyne v
United States, __ US __; 133 S Ct 2151; 186 L Ed 2d 314 (2013). However, as defendant
concedes, we have rejected this argument.

        In People v Herron, 303 Mich App 392, 405; 845 NW2d 533 (2013), we held that
“judicial fact-finding to score Michigan’s sentencing guidelines falls within the wide discretion
accorded a sentencing court in the sources and types of evidence used to assist the court in
determining the kind and extent of punishment to be imposed within limits fixed by law.”
(Quotation marks and citation omitted). This Court concluded, “Michigan’s sentencing
guidelines are within the broad sentencing discretion, informed by judicial factfinding, that does
not violate the Sixth Amendment.” Id. Thus, defendant’s argument has been foreclosed by
Herron.3



3
 An appeal in Herron was held in abeyance pending the Michigan Supreme Court’s decision in
People v Lockridge, 496 Mich 852; 846 NW2d 925 (2014). See People v Herron, __ Mich __;
846 NW2d 924 (2014). However, “[t]he filing of an application for leave to appeal to the
Supreme Court or a Supreme Court order granting leave to appeal does not diminish the
precedential effect of a published opinion of the Court of Appeals.” MCR 7.215(C).


                                                -7-
        Defendant also contends the PSIR and judgment of sentence incorrectly indicate that his
convictions were predicated on the victim being under 13 years of age. Plaintiff concedes that
both documents need to be amended. Thus, we remand for the ministerial act of correcting these
errors.

                                       VI. CONCLUSION

        Defendant’s convictions were supported with sufficient evidence. There are no jury
instructional errors, nor related claims of ineffective assistance of counsel, that warrant reversal
or remand. Defendant is not entitled to resentencing, although we remand for the ministerial task
of correcting his PSIR and judgment of sentence consistent with this opinion. We do not retain
jurisdiction.

                                                             /s/ Stephen L. Borrello
                                                             /s/ Amy Ronayne Krause
                                                             /s/ Michael J. Riordan




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