                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 22, 2015
                 Plaintiff-Appellee,

v                                                                    No. 317362
                                                                     Kent Circuit Court
NATHANIEL DAVID SWEET,                                               LC No. 12-009839-FH

                 Defendant-Appellant.


Before: RIORDAN, P.J., and MARKEY and WILDER, JJ.

PER CURIAM.

        Defendant, Nathaniel David Sweet, appeals as of right his jury trial conviction of first-
degree child abuse, MCL 750.136b(2). Defendant brutally assaulted his girlfriend’s nine-month
old child.1 The child suffered multiple skull fractures, retinal hemorrhaging in both of her eyes,
and needed emergency neurosurgery in order to save her life. Defendant was sentenced to 24 to
50 years’ imprisonment. We affirm.

                                   I. OTHER ACTS EVIDENCE

                                   A. STANDARD OF REVIEW

        Defendant first contends that he was deprived of a fair trial when the trial court allowed
evidence of his prior acts of domestic violence. “The admissibility of other acts evidence is
within the trial court’s discretion and will be reversed on appeal only when there has been a clear
abuse of discretion.” People v Waclawski, 286 Mich App 634, 669-670; 780 NW2d 321 (2009).
“An abuse of discretion occurs when the court chooses an outcome that falls outside the range of
reasonable and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272
(2008). “When the decision involves a preliminary question of law however, such as whether a
rule of evidence precludes admission, we review the question de novo.” People v Mardlin, 487
Mich 609, 614; 790 NW2d 607 (2010). Reversal is not required “unless after an examination of
the entire cause, it shall affirmatively appear that it is more probable than not that the error was



1
    The assault occurred on October 3, 2012, two days before the child’s nine month birthday.


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outcome determinative.” People v Knapp, 244 Mich App 361, 378; 624 NW2d 227 (2001)
(quotation marks and citation omitted).

                                        B. ANALYSIS

       The disputed evidence originates from defendant’s conversation with the police. In the
course of the conversation, defendant admitted that he assaulted his former girlfriend on two
occasions. The trial court ruled that this evidence was admissible under MCL 768.27b(1), which
provides:

               Except as provided in subsection (4), in a criminal action in which the
       defendant is accused of an offense involving domestic violence, evidence of the
       defendant's commission of other acts of domestic violence is admissible for any
       purpose for which it is relevant, if it is not otherwise excluded under Michigan
       rule of evidence 403.

“The language of MCL 768.27b clearly indicates that trial courts have discretion to admit
relevant evidence of other domestic assaults to prove any issue, even the character of the
accused, if the evidence meets the standard of MRE 403.” People v Cameron, 291 Mich App
599, 609; 806 NW2d 371 (2011) (emphasis added; quotation marks and citation omitted). See
also People v Railer, 288 Mich App 213, 219-20; 792 NW2d 776 (2010) (“MCL 768.27b
permits evidence of prior domestic violence in order to show a defendant’s character or
propensity to commit the same act.”).

        The defendant was charged with first-degree child abuse of his girlfriend’s infant
daughter. Because defendant lived with the child, she was a “family or household member.”
MCL 768.27b(5)(b)(ii). The child abuse charge constituted an act of domestic violence, as
defined by statute. See MCL 768.27b(5)(a)(i) (“Domestic violence or offense involving
domestic violence” includes “[c]ausing or attempting to cause physical or mental harm to a
family or household member.”). Likewise, defendant assaulting his ex-girlfriend constituted
“domestic violence” because defendant had a dating relationship with her, MCL
768.27b(5)(b)(iii)-(iv), and defendant caused her physical harm, MCL 768.27b(5)(a)(i). The
prior acts occurred within 10 years of the charged offense, MCL 768.27b(4).

        Thus, the only remaining inquiry is if the evidence should have been excluded under
MRE 403, which provides: “Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” “All relevant evidence is prejudicial; it is only unfairly prejudicial
evidence that should be excluded. Unfair prejudice exists when there is a tendency that evidence
with little probative value will be given too much weight by the jury.” People v McGhee, 268
Mich App 600, 613-614; 709 NW2d 595 (2005) (citation omitted). The evidence of defendant’s
previous domestic assaults had significant probative value in this case. Such evidence
demonstrated defendant’s tendency to assault those vulnerable around him with whom he had a
domestic relationship. Cameron, 291 Mich App at 609, 612.




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        Nor was the probative value substantially outweighed by the danger of unfair prejudice.
Not only were defendant’s statements about the prior assaults relatively brief, they paled in
comparison to the brutal acts defendant was charged with in this case. See Railer, 288 Mich App
at 220 (the prior acts evidence “was brief and not nearly as graphic or violent as defendant’s
transgressions” in the instant case). Thus, “[w]hile this evidence was certainly damaging and
prejudicial—as is most evidence presented against a criminal defendant—it was by no means
inflammatory, nor did it interfere with the jury’s ability to logically weigh the evidence.” Id. at
220-221. Lastly, “the trial court minimized the prejudicial effect of the bad-acts evidence by
instructing the jury that the issue in this case was whether [defendant] committed the charged
offense.” Cameron, 291 Mich App at 612. Defendant has not established a due process
violation and is not entitled to a new trial.

                              II. POLICE OFFICER TESTIMONY

                                 A. STANDARD OF REVIEW

        Defendant next contends that he was deprived of a fair trial because of the admission of
improper opinion testimony from the detective who interviewed him. “This Court reviews a trial
court’s decision to admit or exclude evidence for an abuse of discretion.” People v Dobek, 274
Mich App 58, 93; 732 NW2d 546 (2007). “An abuse of discretion occurs when the court
chooses an outcome that falls outside the range of reasonable and principled outcomes.” Unger,
278 Mich App at 217. When the decision involves a preliminary question of law, such as the
interpretation of the Michigan Rules of Evidence, our review is de novo. Dobek, 274 Mich App
at 93. “A trial court necessarily abuses its discretion when the court permits the introduction of
evidence that is inadmissible as a matter of law.” Id. Ultimately, “[a]n error in the admission or
exclusion of evidence will not warrant reversal unless refusal to do so appears inconsistent with
substantial justice or affects a substantial right of the opposing party.” Id.

                                         B. ANALYSIS

       Defendant challenges the police officer’s testimony about interrogation techniques and
that police officers look for responses from suspects to see if the reactions are normal or
appropriate. Defendant contends this was improper, as it invaded the jury’s role in evaluating
and weighing the evidence.

         Defendant’s argument has no merit. In the passage defendant cites on appeal, at no time
did the officer offer his opinion about defendant’s mental state or whether defendant was guilty.
Instead, the officer simply described general techniques police officers used in the course of
investigating a crime. Even if improper, it was harmless beyond a reasonable doubt. Dobek, 274
Mich App at 93; MCR 2.613(A). Defendant is not entitled to a new trial.

                                       III. SENTENCING

                                 A. STANDARD OF REVIEW

       Lastly, defendant challenges the trial court’s scoring of Offense Variables (OVs) 4, 7, and
10, inaccuracies in the presentence investigation report, and the sentencing departure. “Under
the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error

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and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430,
438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute, i.e., the application of the facts to the law, is a question of
statutory interpretation, which an appellate court reviews de novo.” Id. In regard to the
sentencing departure:

               If the trial court departs from the sentencing guidelines, this Court reviews
       for clear error whether a particular factor articulated by the trial court exists. A
       trial court’s determination that a factor is objective and verifiable presents a
       question of law that this Court reviews de novo. This Court reviews for an abuse
       of discretion the trial court’s conclusion that the factors provide substantial and
       compelling reasons to depart from the guidelines. The trial court abuses its
       discretion when its result lies outside the range of principled outcomes. [People v
       Anderson, 298 Mich App 178, 184; 825 NW2d 678 (2012) (quotation marks and
       citation omitted).]

        “The trial court’s response to a claim of inaccuracies in the presentence investigation
report is reviewed for an abuse of discretion. A court abuses its discretion when it selects an
outcome outside the range of reasonable and principled outcomes.” Waclawski, 286 Mich App
at 689 (citation omitted).

                                            B. OV 7

        Defendant contends that the trial court erred in scoring 50 points under OV 7. “Offense
variable 7 is aggravated physical abuse” and warrants a score of 50 points when “[a] victim was
treated with sadism, torture, or excessive brutality or conduct designed to substantially increase
the fear and anxiety a victim suffered during the offense.” MCL 777.37(1)(a). Although the
statute does not define “excessive brutality,” we “presume that the Legislature intended for the
words to have their ordinary meaning.” Hardy, 494 Mich at 440. We have previously defined
“excessive brutality” as “savagery or cruelty beyond even the usual brutality of a crime.” People
v Glenn, 295 Mich App 529, 533; 814 NW2d 686 (2012), rev’d on other grounds sub nom 494
Mich 430 (2013).

        Defendant objected to the trial court’s scoring, contending that the harm the child
suffered already was accounted for in the underlying crime. First-degree child abuse occurs
when a person causes serious physical or serious mental harm to a child. MCL 750.136b(1)(f),
(2). “Serious physical harm” is defined as “any physical injury to a child that seriously impairs
the child’s health or physical well-being, including, but not limited to, brain damage, a skull or
bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning,
burn or scald, or severe cut.” MCL 750.136b. Here, the baby did not suffer one of these
qualifying injuries. Rather, she sustained multiple, serious injuries that required weeks of
hospitalization.

       After suffering a seizure, the nine-month old was rushed to the hospital. She had
multiple skull fractures and extensive retinal hemorrhages in several layers of both eyes. There
was extensive swelling and bleeding in her brain. Her brain swelled to the extent that it was
pushing down toward her neck, called brain herniation, which leads to death. She had to be

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intubated and placed on a ventilator. Without surgery, death was imminent. The doctor
described her injuries as, “as life threatening as you can get without actually dying.” The baby
was rushed into neurosurgery and the doctor described her gruesome condition after the surgery
as follows: “So her scalp was quite swollen, half of her head was shaved. She had a very large
incision across her head, and drains allowing blood to continue to drain out of the space between
her brain and her skull.” The doctor testified that the baby “sustained at least two different
impacts to her head” both of which were “significantly violent.” The doctor confirmed that the
injuries were consistent with throwing the baby across the room or slamming her down as hard
as possible. The only way the injuries resulted from an accident was if the baby had been
dropped from a distance of three or more stories.

         The baby spent weeks in the hospital and at a rehabilitation center. The child’s mother
testified that the doctors will not know the full effect of the damage until the baby is older, but
“her reading and writing and mathematical skills are probably gone, they don’t know if she will
ever be able to read or write” and “there’s a good chance that she won’t be able to speak.”

        Considering the severity, multitude, and potential permanency of the baby’s injuries, the
trial court properly found that defendant committed “savagery or cruelty beyond even the usual
brutality of” first-degree child abuse. Glenn, 295 Mich App at 533. This was a nine-month old
baby who could not possibly avoid or defend herself against defendant, nor could she tell anyone
that she was injured. We find no error in a score of 50 points for OV 7.

                                            C. OV 10

        Defendant next contends that the trial court erred in scoring 10 points under OV 10.
Pursuant to MCL 777.40, a trial court may score 10 points under OV 10 for exploitation of a
vulnerable victim. The statute defines “vulnerability” as “the readily apparent susceptibility of a
victim to injury, physical restraint, persuasion, or temptation.” MCL 777.40(3)(c). A score of
10 points is warranted when the defendant “exploited a victim’s physical disability, mental
disability, youth or agedness, or a domestic relationship, or the offender abused his or her
authority status.” MCL 777.40(1)(b). To “exploit” is defined as “to manipulate a victim for
selfish or unethical purposes.” MCL 777.40(3)(b). A domestic relationship can be one that is
“familial or cohabitating.” People v Jamison, 292 Mich App 440, 447; 807 NW2d 427 (2011).

       The “mere existence” of one of these factors “does not automatically equate with victim
vulnerability.” MCL 777.40(2). “Accordingly, to merit a score of 10 points for OV 10, a
defendant must have manipulated” a victim’s youth “for a selfish or unethical purpose and the
victim’s vulnerability must have been readily apparent.” People v Needham, 299 Mich App 251,
255; 829 NW2d 329 (2013). Thus, “to be exploited the victim must actually have been
vulnerable.” People v Dillard, 303 Mich App 372, 380; 845 NW2d 518 (2013).

       The baby in this case was vulnerable, and that vulnerability was readily apparent.
Needham, 299 Mich App 251. She was nine months old and completely at defendant’s mercy.
She could not speak nor defend herself from defendant’s physical aggression. Thus, she was
“susceptible to injury.” MCL 777.40(3)(c). Moreover, there was sufficient evidence that
defendant exploited the domestic relationship, which gave him access to the baby, and exploited


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her youth and vulnerability. The baby was acting normal when her mother was present.
Defendant offered to watch the baby while her mother went to pick up the other child.

         After orchestrating a situation in which he was left alone with the baby, defendant
brutally attacked her. He left her in such a state that she would have died but for the mother
eventually realizing something was amiss. As discussed at length in the context of OV 7, the
baby had such tremendous injuries that she almost died. Based on the foregoing, we find no
error in the scoring of OV 10 for exploitation of a vulnerable victim.

       Although defendant also challenges the scoring of OV 4, because any scoring error in this
regard “does not alter the appropriate guidelines range, resentencing is not required.” People v
Crews, 299 Mich App 381, 387 n 3; 829 NW2d 898 (2013) (quotation marks and citation
omitted).

                       D. PRESENTENCE INVESTIGATION REPORT

        Defendant also contends that he is entitled to resentencing because his presentence
investigation report (PSIR) contained “inflammatory statements” about his mental health history,
which were not supported by record evidence. However, defendant made these arguments
below, and the trial court overruled them. MCR 6.425(A)(2). On appeal, defendant merely
asserts that the trial court erred, but fails to demonstrate the threshold issue: that the PSIR was,
indeed, inaccurate. While defendant claims the PSIR was not based on “record support,” it is
unclear what defendant means, as MCR 6.425(A)(1) allows for information in the PSIR beyond
what might have been admitted at trial. See People v Payne, 285 Mich App 181, 195; 774
NW2d 714 (2009) (quotation marks and citation omitted) (“An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment with little or no citation of supporting
authority.”). Defendant has not demonstrated that he is entitled to resentencing.

                                E. SENTENCING DEPARTURE

        Lastly, defendant challenges the trial court’s imposition of a sentencing departure. The
legislative sentencing guidelines provide a range for a defendant’s minimum sentence.
Anderson, 298 Mich App at 183. A trial court may depart from that range if substantial and
compelling reasons exist, and the trial court divulges those reasons on the record. Id. In order to
be substantial and compelling, the reasons relied on must be objective and verifiable, which
means “based on actions or occurrences external to the minds of those involved in the decision,
and must be capable of being confirmed.” Id. (quotation marks and citation omitted). The
reasons for departure must “be of considerable worth in determining the length of the sentence
and should keenly or irresistibly grab the court’s attention.” Id. (quotation marks and citation
omitted). The “court shall not base a departure on an offense characteristic or offender
characteristic already taken into account in determining the appropriate sentence range unless the
court finds from the facts contained in the court record, including the presentence investigation
report, that the characteristic has been given inadequate or disproportionate weight.” MCL
769.34(3)(b). “When the trial court articulates several substantial and compelling reasons, if
some of the reasons are valid and others are not, this Court must determine whether the trial
court would have departed to the same degree on the basis of the valid reasons alone. If the trial

                                                -6-
court would have imposed the same sentence regardless of a misunderstanding of the law, this
Court may affirm.” Anderson, 298 Mich App at 191 (citation omitted).

       Defendant’s sole challenge on appeal is that the factors the trial court relied on were
already addressed in the guidelines, and that substantial and compelling reasons were absent.
The trial court articulated four reasons for the upward departure: (1) the overwhelming amount
of physical force used to injure the victim; (2) the severe and long-term nature of the injuries; (3)
defendant’s other acts of child abuse; and (4) the minimal likelihood for rehabilitation.

        The extreme amount of force defendant used is an objective and verifiable fact, and
constituted substantial and compelling reasons to depart. It also keenly grabs the court’s
attention, and is of considerable worth. Anderson, 298 Mich App at 183. The same is true for the
second factor, the severity and permanency of the injuries inflicted. The trial court properly
found that such factors were either unaccounted for in the guidelines, or given inadequate
weight. Likewise, the evidence of the uncharged acts of domestic violence was objective and
verifiable, and substantial and compelling. There was ample testimony that the baby had
suffered other prior incidents of abuse, evidenced by bruises and broken ribs in various stages of
healing, and that defendant was responsible.

        To the extent that the fourth factor may have been inappropriate, the trial court made it
clear that it would have departed to the same extent regardless. Anderson, 298 Mich App at 191.
Further, the trial court justified the extent of the departure. See Smith, 482 Mich at 304
(appellate review is aided when the trial court hypothesizes a sentence based on the sentencing
grid). The court found that based on the several substantial and compelling reasons, two blocks
over on the sentencing grid would be the “truly proportional sentence.” See id. at 304 (“To be
proportionate, a minimum sentence that exceeds the guidelines recommendation must be more
appropriate to the offense and the offender than a sentence within the guidelines range would
have been.”). We find no error in the imposition of the sentencing departure.

                                       IV. CONCLUSION

       There was no evidentiary or sentencing error warranting reversal. We have reviewed all
remaining claims and find them to be without merit. Defendant is not entitled to a new trial, an
evidentiary hearing, or resentencing. We affirm.

                                                              /s/ Michael J. Riordan
                                                              /s/ Jane E. Markey
                                                              /s/ Kurtis T. Wilder




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