                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 9, 2016
               Plaintiff-Appellee,

v                                                                  No. 328463
                                                                   Berrien Circuit Court
DAMION LAVAR NEVILLS, JR.,                                         LC No. 2014-005235-FC

               Defendant-Appellant.


Before: SERVITTO, P.J., and MARKEY and GLEICHER, JJ.

PER CURIAM.

        A jury convicted defendant of two counts of first-degree criminal sexual conduct (CSC-
I), MCL 750.520b(2)(b), in connection with the forcible sexual penetration of a 12-year-old girl.
The trial court sentenced defendant to 25 to 75 years of imprisonment, but also imposed a $100
fine. Defendant challenges the sufficiency of the evidence supporting his convictions and the
constitutionality of his prison terms. Neither of these claims has merit and we affirm defendant’s
convictions and sentences. However, we vacate the $100 fine as it was not authorized by MCL
750.520b.

                                       I. BACKGROUND

       The 19-year-old defendant met the 12-year-old complainant at a park in Benton Harbor.
The complainant testified that defendant invited her back to his house while defendant claimed
she followed him. Although defendant insists nothing happened between the two, the
complainant painted a very different version of events. Specifically, the complainant accused
defendant of using physical force to keep her in the house when she tried to leave, pushing her
head down to force her to perform fellatio, and penetrating her vagina with his penis without
consent.

       Eventually, the mother of complainant’s friend found her at defendant’s home. Various
witnesses asserted that complainant did not appear upset and seemed fine at the time. The
complainant waited three days to tell her parents about the assault.

        Nurse Mindy O’Brien conducted a post-sexual assault medical examination on
complainant. The complainant reported to O’Brien that defendant had “pulled off her pants” and
stuck his penis into her vagina, describing this as extremely painful. The complainant further
asserted that defendant had put his penis in her mouth and touched her right neck and breast.

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O’Brien testified that while the complainant cooperated and was polite during their discussion,
she was embarrassed and scared about what had happened and expressed fear that she would get
in trouble.

       O’Brien gave complainant a “head to toe” exam, looking for any injuries. O’Brien
discovered circular bruises on the complainant’s wrist, thigh, and arm, consistent with fingers.
O’Brien also conducted a detailed genital exam. She noted “generalized redness in [the
complainant’s] vaginal area” when she “pulled back the labia.” O’Brien’s inspection of the
complainant’s hymen revealed two lacerations consistent with intercourse and “something being
very forcefully jammed in there” at an angle “a lot of times.”

      O’Brien was unable to date complainant’s bruises or her genital injuries. Moreover,
complainant told O’Brien that “she had showered, changed her clothes, bathed and washed.”
O’Brien found this and the 72 hours between the incident date and exam to be important because
“showering, bathing, brushing your teeth” and time can “all affect evidence collection.”

       Indeed, the forensic examiner was unable to find a presence of seminal fluid, saliva,
and/or sperm cells after examining the physical evidence collected during the complainant’s
physical examination. He also noted that the DNA reference samples came back negative.

       The jury credited complainant’s testimony and convicted defendant as charged. He now
appeals.

                               II. SUFFICIENCY OF EVIDENCE

        On appeal, defendant argues that his convictions fail the sufficiency of evidence test and
therefore should be set aside.

        When a defendant challenges the sufficiency of the evidence following a jury-trial
conviction, this Court reviews the defendant’s convictions de novo. People v Harverson, 291
Mich App 171, 177; 804 NW2d 757 (2010). The Court must ask after reviewing the evidence in
the light most favorable to the prosecution, “whether a rational trier of fact could find that the
evidence proved the essential elements of the crime beyond a reasonable doubt.” Id. at 175.

       The Fifth and Fourteenth Amendments of the United States Constitution “[protect] the
accused against conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.” US Const Am V, XIV; In re Winship, 397 US
358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970).

         “A trier of fact may make reasonable inferences from the facts, if the inferences are
supported by direct or circumstantial evidence.” People v Legg, 197 Mich App 131, 132; 494
NW2d 797 (1992). “[C]ircumstantial evidence is oftentimes stronger and more satisfactory than
direct evidence.” For this reason, inferences drawn from circumstantial evidence are reviewed in
the same manner as those drawn from direct evidence.” People v Wolfe, 440 Mich 508, 526; 489
NW2d 748 (1992), mod 441 Mich 1201 (1992). “The evidence is sufficient if, taken as a whole,
it justifies submitting the case to the trier of fact.” People v Legg, 197 Mich App 131, 132; 494
NW2d 797 (1992).


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        “A person is guilty of criminal sexual conduct in the first degree if” they are 17 years of
age or older and engage in sexual penetration with an individual who is less than 13 years of age.
MCL 750.520b. “ ‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any
object into the genital or anal openings of another person's body, but emission of semen is not
required.” People v Garrow, 99 Mich App 834, 837; 298 NW2d 627 (1980); see also MCL
750.520a(r).

       First, the evidence supported that defendant was over the age of 17 and the complainant
under the age of 13 at the time of the offense. Evidence also supported that a sexual penetration
occurred. Complainant testified that defendant sexually penetrated her on two occasions: when
he pushed complainant’s head towards his penis and required her to perform oral sex on him, and
when defendant took off complainant’s leggings and “stuck” his unprotected penis into her
vagina. A complainant’s testimony standing alone can be sufficient to support a defendant’s
conviction. People v Szalma, 487 Mich 708, 724; 790 NW2d 662 (2010); MCL 750.520h.

        The physical evidence also tended to support the complainant’s claim that someone
sexually assaulted her.      O’Brien’s physical examination revealed circular bruises on
complainant’s wrist, thigh and arm consistent with marks left by fingers. Additionally, O’Brien
observed “general redness in [complainant’s] vaginal area” when she “pulled back the labia,”
and two lacerations on the complainant’s hymen. O’Brien testified that these tears are consistent
with intercourse and “something being very forcefully jammed in there” at an angle “a lot of
times.”

        Although the evidence collection kit and DNA reference samples came back negative,
O’Brien’s and the forensic examiner’s testimonies support that DNA recovery may have been
affected by the passage of time between the assault and examination and by the complainant’s
acts of showering and using the toilet.

        Because the evidence supporting defendant’s conviction of two counts of CSC-I is
plentiful, it follows that the prosecution fulfilled its duty in proving defendant’s guilt by legally
sufficient evidence and beyond a reasonable doubt.

                            III. IMPROPER ASSESSMENT OF FINE

        Defendant next argues and the prosecution concedes that the court was not permitted
under the statute to impose a $100 fine. See People v Wesley, 148 Mich App 758, 764; 384
NW2d 783 (1985) (holding that a trial court “was without authority to impose a fine” in CSC-I
cases).

               “[T]he interpretation and application of a statute . . . is a question of law”
       that we review de novo. People v Zajaczkowski, 493 Mich 6, 12; 825 NW2d 554
       (2012). The foremost rule of statutory construction is to discern and give effect to
       the intent of the Legislature. People v Cole, 491 Mich. 324, 330; 817 N.W.2d 497
       (2012). In doing so, we focus on the plain language of the statute and, if the
       statute is unambiguous, we “must conclude that the Legislature ‘intended the
       meaning clearly expressed[.]’ ” Id. (citation omitted). Although we generally

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       interpret terms in a statute according to their ordinary meanings, we must accept
       and apply the definitions of terms specifically provided in a statutory scheme.
       McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).
       [People v Lyon, 310 Mich App 515, 517; 872 NW2d 245 (2015).]

        MCL 750.520b(2), the penalty provision of the statute proscribing CSC-I, provides for
imprisonment for life or any term of years, but not less than 25 years, and lifetime electronic
monitoring upon release, but nowhere is there mention of a fine. Because MCL 750.520b does
not provide a fine, the court was unauthorized to impose one. We vacate that portion of the
court’s judgment.

        IV. 25-YEAR MANDATORY MINIMUM SENTENCE AND VIOLATION OF
                       SEPARATION OF POWERS CLAUSE

     Defendant also argues that the Legislature’s 25-year mandatory minimum sentence under
MCL 750.520b(2)(b) violates the separation of powers clause in Michigan’s constitution.

        “[U]nder established rules of statutory construction, statutes are presumed constitutional,
and courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly
apparent.” Wysocki v Kivi, 248 Mich App 346, 355; 639 NW2d 572 (2001). “[T]he party
challenging [the statute] bears the “heavy burden” of rebutting” the statutes’ invalidity. People v
Sleet, 193 Mich App 604, 607; 484 NW2d 757 (1992). “We review the constitutionality of
statutes de novo.” Wysocki, 248 Mich App at 357.

        The Michigan Constitution provides that “[t]he powers of government are divided into
three branches: legislative, executive and judicial. No person exercising powers of one branch
shall exercise powers properly belonging to another branch except as expressly provided in this
constitution.” Const 1963, art 3, § 2.

              The separation of powers doctrine has never been interpreted in Michigan
       as meaning there can never be any overlapping of functions between branches or
       no control by one branch over the acts of another. Some overlapping is
       permissible provided the area of one branch’s exercise of another branch’s power
       is very limited and specific. [People v Trinity, 189 Mich App 19, 22-23; 471
       NW2d 626 (1991).]

       As noted in People v Hegwood, 465 Mich 432, 436-437; 636 NW2d 127 (2001),

       [T]he ultimate authority to provide for penalties for criminal offenses is
       constitutionally vested in the Legislature. Const 1963, art 4, § 45. The authority
       to impose sentences and to administer the sentencing statutes enacted by the
       Legislature lies with the judiciary. See, e.g., MCL 769.1(1).

       Based on the provisions of our Constitution, therefore, the Legislature has the power to
provide a mandatory minimum sentence in a criminal statute, and the courts have the power to
impose sentence pursuant to the legislatively-created criminal statutes. The Legislature acted
within its sphere of authority in creating such a minimum sentence in MCL 750.520b and the


                                                -4-
trial court acted within its sphere of authority in imposing sentence. There was no violation of
the separation of powers.

          V. MANDATORY MINIMUM IS CRUEL OR UNUSUAL PUNISHMENT

        Defendant lastly argues that the mandatory 25-year minimum sentence for his first-
degree CSC convictions is cruel and/or unusual punishment in violation of both the federal and
state constitutions. Defendant acknowledges that this issue is controlled by binding case law,
People v Benton, 294 Mich App 191, 203-207; 817 NW2d 599 (2011). We review de novo
constitutional challenges to statutes. Id. at 203.

        This Court in Benton held that the mandatory 25-year minimum sentence for CSC-I was
not cruel or unusual punishment under the federal or state constitutions. Id. at 207. In its
rationale, this Court acknowledged an observation made in In re Hildebrant, 216 Mich App 384,
386-387; 548 NW2d 715 (1996), regarding public policy and statutory rape:

       Statutory rape, a strict-liability offense, has been upheld as a matter of public
       policy because of the need to protect children below a specific age from sexual
       intercourse. The public policy has its basis in the presumption that the children’s
       immaturity and innocence prevents them from appreciating the full magnitude and
       consequences of their conduct. People v Cash, 419 Mich 230, 242; 351 NW2d
       822 (1984). Because this policy focuses on the exploitation of the victim, we find
       that the Legislature did not intend to withdraw the law’s protection of the victim
       in order to protect the offender.

This statement of Michigan public policy, this Court found, “conflicts with defendant’s attempt
to minimize the gravity and severity of her offense.” Benton, 294 Mich App at 205.

        In response to the defendant’s argument that “the mandatory 25-year minimum sentence
is unduly harsh compared to penalties for other offenses under Michigan law, including many
violent offenses,” the Benton Court stated:

       The perpetration of sexual activity by an adult with a preteen victim is an offense
       that violates deeply ingrained social values of protecting children from sexual
       exploitation. Even when there is no palpable physical injury or overtly coercive
       act, sexual abuse of children causes substantial long-term psychological effects,
       with implications of far-reaching social consequences. The unique ramifications
       of sexual offenses against a child preclude a purely qualitative comparison of
       sentences for other offenses to assess whether the mandatory 25–year minimum
       sentence is unduly harsh. [Id. at 206.]

        Lastly, Benton noted the numerous statutes implemented by other states that also impose
a mandatory 25-year minimum sentence for an adult offender’s sexual offense against a preteen
victim to demonstrate that “a comparison of Michigan’s penalty and those imposed for the same
offenses in other states fails to support defendant’s attack on the constitutionality of Michigan’s
sentencing statute.” Id. at 206-207.



                                                -5-
       We affirm defendant’s convictions and sentences but vacate the $100 fine imposed in
defendant’s judgment of sentence.




                                                          /s/ Deborah A. Servitto
                                                          /s/ Jane E. Markey
                                                          /s/ Elizabeth L. Gleicher




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