            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  October 15, 2019
              Plaintiff-Appellee,

                                                                  No. 344506
                                                                  Wayne Circuit Court
THOMAS CECIL MCADAMS,                                             LC No. 17-008089-01-FC

              Defendant-Appellant.


Before: FORT HOOD, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted of first-degree criminal sexual conduct
(CSC-I) (personal injury), MCL 750.520b(1)(f). He was sentenced as a fourth-offense habitual
offender, MCL 769.12, to 35 to 70 years’ imprisonment. Defendant appeals his conviction.
Finding no error, we affirm.

        The offense in this case occurred on August 18, 2017, when the complainant was 14
years old. The proofs at trial established that she had ran away from home on that day and
eventually accompanied a woman to a home so that she could charge her cell phone. Defendant
was present at the home when the complainant arrived. She testified that she sat on the same
couch as defendant and that he moved closer and began rubbing her arm. The woman then
brought the complainant to an upstairs bedroom. The complainant testified that she lay on the
bed and wrapped herself in blankets. She said that defendant then entered the room and lay next
to her. According to the complainant, defendant made multiple attempts to get under the blanket
with her and then pulled the blanket off her. He began touching her underneath her clothes. He
asked the complainant if he could have sex with her, and she told him no. Defendant then pulled
off her pants. She tried to stand up, but defendant pushed her back onto the bed. She tried to
hold her legs closed, but defendant forced them apart, held them open with his elbows and
forearms, unfastened his pants, and forcibly engaged in penile-vaginal penetration. The
complainant testified that it hurt. She subsequently discovered that her vagina was swollen,
bleeding, and painful.




                                              -1-
       Another woman found the complainant in the bathroom and asked what happened. The
complainant was crying, and she told the woman that defendant had sexually assaulted her. The
woman helped the complainant gather her belongings, and escorted her to the porch where she
allowed the complainant to use her phone to call her mother and the police.

        The next morning, the complainant was interviewed and had a sexual assault examination
that revealed bruises on the thighs that she believed were from the assault. During the
examination, DNA samples were collected from her vagina and they were sent to the Michigan
State Police forensic laboratory for analysis. A comparison sample was taken from defendant.
Forensic scientists were able to determine that there was male DNA in the complainant’s sample
that had been recently deposited, and there was a very high likelihood that the DNA belonged to
defendant. It was also determined that the swabs from the complainant’s vaginal area contained
seminal fluid.

        Defendant testified that the complainant came to the house where he was staying and
discussed being depressed. He testified that he rubbed her on the arm to console her. He
admitted that he touched her private areas with his hand, but he denied that he penetrated her or
had sex with her. He claimed that he took the complainant to the bedroom where they smoked a
joint with cocaine in it, that he left the house after they smoked, and that he did not know
anything about the sexual assault allegations until he was arrested. He also claimed that he had
erectile dysfunction and had not been able to have sex since 2014.

       Defendant first argues that there was insufficient evidence of personal injury to justify the
conviction. We disagree.1

        Defendant was convicted of CSC-I under MCL 750.520b(1)(f), which states in pertinent
part:

               (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.


1
  A challenge to the sufficiency of the evidence is reviewed de novo. People v Lueth, 253 Mich
App 670, 680; 660 NW2d 322 (2002). We review challenges to the sufficiency of the evidence
by viewing the evidence in the light most favorable to the prosecution to determine whether a
rational trier of fact could find that the essential elements of the crime were proved beyond a
reasonable doubt. People v Bennett, 290 Mich App 465, 471-472; 802 NW2d 627 (2010). In
applying this standard, we “must draw all reasonable inferences and make credibility choices in
support of the jury verdict.” People v Cameron, 291 Mich App 599, 613; 806 NW2d 371 (2011)
(quotation marks and citation omitted).



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The term “personal injury,” as used in MCL 750.520b(1)(f), means “bodily injury,
disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a
sexual or reproductive organ.” MCL 750.520a(n). In this case, the prosecutor asked the jury to
find that the complainant suffered bodily injury or mental anguish. Viewing the evidence in a
light most favorable to the prosecution, we conclude there was sufficient evidence for a
reasonable jury to find defendant guilty under either theory.

        The complainant testified that after the assault her vagina was swollen, painful, and
bleeding. There were no signs of vaginal injury when the complainant was examined by the
forensic nurse, but the nurse testified that this was not surprising given that the exam occurred
six hours after the assault. The complainant also testified that there were bruises on her thighs
that she believed were caused by the assault. This was sufficient evidence for a rational jury to
find that the complainant incurred a bodily injury. See People v Himmelein, 177 Mich App 365,
377; 442 NW2d 667 (1989); People v Hollis, 96 Mich App 333, 337; 292 NW2d 538 (1980).

        There was also sufficient evidence showing that the complainant experienced mental
anguish. “[T]he term ‘mental anguish,’ in its ordinary and generally understood sense, means
extreme or excruciating pain, distress, or suffering of the mind . . . .” People v Petrella, 424
Mich 221, 257; 380 NW2d 11 (1986) (quotation marks omitted). In Petrella, the following
factors were used to determine whether the complainant had suffered mental anguish:

              (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.]




                                                  -3-
The jury in this case was instructed to consider substantially similar factors. See M Crim JI
20.10.

         The complainant testified that she was crying during the assault and that she was crying
in the bathroom after the assault. Similarly, the woman who found her testified that the
complainant appeared scared and broke down crying. The complainant also testified that the
assault caused her to develop panic attacks and anxiety attacks. One anxiety attack was so
severe that an ambulance was called. She attempted suicide and underwent inpatient counseling
for 13 days and testified that she no longer wanted to go out alone or stay home alone. She
testified that she still suffered mentally from the effects of the assault. Although no one single
factor outlined in Petrella is necessary to find mental anguish, 424 Mich at 270, here the
evidence supported multiple factors. Accordingly, there was sufficient evidence of personal
injury to support defendant’s conviction.

         Defendant raises additional issues in a Standard 4 brief. He argues that his counsel was
ineffective for allegedly not informing him sooner of the possible repercussions of proceeding to
trial as a fourth-offense habitual offender. He also argues that his counsel was ineffective for not
presenting exculpatory physical evidence. We disagree.2

        In order to show ineffective assistance of counsel, the defendant must establish (1) that
the attorney made an error, and (2) that the error was prejudicial to defendant. Strickland v
Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446
Mich 298, 311, 314; 521 NW2d 797 (1994). First, the defendant must show that trial counsel’s
performance fell below an objective standard of reasonableness. People v Russell, 297 Mich
App 707, 715-716; 825 NW2d 623 (2012). Second, the defendant must show that, but for trial
counsel’s deficient performance, a different result would have been reasonably probable. Id.

       At the beginning of trial, the prosecution placed a plea offer on the record that would
have resulted in the dismissal of the fourth-offense habitual offender notice and a sentencing
agreement of 16 to 30 years’ imprisonment. Defendant argues that this is when he first learned
that he was being charged as a habitual offender, and that his counsel was ineffective for not
informing him of that fact sooner. However, the record belies defendant’s claim. After the
prosecutor recited the terms of the plea deal, defense counsel stated,

              Your Honor, I’ve explain that to Mr. McAdams, I explained exactly what
       the prosecution placed on the record.


2
  Generally, a claim of ineffective assistance of counsel is a mixed question of fact and
constitutional law, and we review the trial court’s findings of fact for clear error and questions of
constitutional law de novo. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
However, because defendant did not file a motion for new trial or a Ginther hearing, our review
of the claim of ineffective assistance of counsel is limited to mistakes apparent on the record.
See People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).




                                                -4-
            I believe—and Mr. McAdams did have an opportunity to speak to a family
       member. We have spent considerable time on this.

Thus, the record indicates that defendant had prior knowledge that he was being charged as a
habitual offender because that was a part of the plea offer that he discussed with his counsel.
Defendant fails to establish professional error on the record before us.

        Defendant also fails to show outcome-determinative prejudice from the alleged error.
Defendant actually attempted to avail himself of the plea offer. However, he refused to admit to
the necessary factual predicate to satisfy the statutory conditions of CSC-I causing personal
injury. In the colloquy with the trial court, defendant denied penetrating the complainant. After
further questioning by the trial court, defendant eventually stated that his hand may have
penetrated the complainant’s vagina, but he could not say for sure. Neither the prosecution nor
the trial court was satisfied with defendant’s admissions, and thus, the trial court refused to
accept defendant’s plea. Significantly, there is no indication on the record that, had he been
given more time to consider the offer, defendant would have admitted to penetration. Thus,
defendant has not demonstrated a reasonable probability that additional notice of the 25-year
mandatory minimum sentence would have led to a different result.

        As for defendant’s claim that his counsel was ineffective for not offering exculpatory
“scientific evidence,” he has not indicated what evidence counsel should have presented or how
it would have aided his defense. Accordingly, he fails to establish professional error or that he
suffered any prejudice from that alleged error.

        Finally, defendant contends in his Standard 4 brief that the prosecutor committed error by
seeking an enhanced sentence after trial based on defendant’s habitual offender status. This
argument is without merit. The fourth-offense habitual offender notice was provided in the
original information.

       Affirmed.



                                                            /s/ Karen M. Fort Hood
                                                            /s/ David H. Sawyer
                                                            /s/ Douglas B. Shapiro




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