                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 28, 2016
               Plaintiff-Appellee,

v                                                                  No. 325652
                                                                   Isabella Circuit Court
ALLEN CLIFFORD MCKENZIE,                                           LC No. 2014-001372-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant was convicted of aggravated indecent exposure (AIE), MCL 750.335a(2)(b),
for which the trial court, departing from the sentencing guidelines (intermediate sanction cell),
imposed a sentence of 16 to 24 months’ imprisonment, as well as being convicted of simple
assault and battery, MCL 750.81, for which he was sentenced to a term of 93 days. We affirm.

        Defendant first argues that there was insufficient evidence to support the AIE conviction,
given that the prosecution failed to prove, in addition to showing that defendant openly or
indecently exposed his genitals, which is not in dispute, that defendant “was fondling his . . .
genitals,” MCL 750.335a(2)(b), when he exposed himself. The entire premise of defendant’s
argument is that the term “fondling,” as used in MCL 750.335a(2)(b), has a sexual connotation,
and that the evidence did not reflect that his act of exposing his penis at the county jail was
sexual in nature, but was instead fueled by an intoxicated fit of rage.

        We review de novo the issue regarding whether there was sufficient evidence to sustain a
conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the
sufficiency of the evidence, this Court must view the evidence, whether direct or circumstantial,
in a light most favorable to the prosecutor and determine whether a rational trier of fact could
find that the essential elements of the crime were proved beyond a reasonable doubt. People v
Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646
NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their
testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-
515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise
from such evidence can constitute satisfactory proof of the elements of the crime. People v
Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every

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reasonable theory of innocence, but need only prove the elements of the crime in the face of
whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392,
400; 614 NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution.
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

        We find it unnecessary to specifically determine whether “fondling” under MCL
750.335a(2)(b) has a sexual component to it, such that it requires a prosecutor to prove that the
charged act was sexual in nature. Assuming that the prosecution in this case had to establish that
defendant’s conduct in exposing and handling his penis was sexual in nature or had a sexual
aspect to it, the evidence, when viewed in a light most favorable to the prosecution, supported
the AIE conviction. The corrections supervisor at the county jail testified that defendant pulled
his penis out, showed it to the supervisor, “stroke[d] it a couple of times,” and told the supervisor
to “suck his d**k, suck his c**k.” Although defendant may have been intoxicated and motivated
by anger and distain, the masturbatory movements in conjunction with the fellatio commands
were sexual in nature and imbued with graphic sexual characteristics.

        Furthermore, consistent with M Crim JI 20.33(4), the trial court instructed the jury that
the prosecution had to prove beyond a reasonable doubt “that the Defendant was fondling his
genitals.” And defendant, as well as the prosecutor, requested this instruction, absent any
additional request for the trial court to provide an accompanying instruction that defined
“fondling,” let alone one that incorporated a sexual component. In light of the evidence that
defendant stroked his penis, a reasonable juror could conclude that defendant had been “fondling
his genitals” while in the county jail. Reversal is unwarranted.

       Defendant next argues that the trial court erred in assessing 10 points for offense variable
(OV) 4, MCL 777.34(1)(a) (serious psychological injury), and 25 points for OV 19, MCL
777.49(a) (conduct threatened security of penal institution). These were the only OVs for which
defendant was assessed points. Defendant’s minimum sentence range was 0 to 17 months, MCL
777.68, placing him in an intermediate sanction cell, MCL 769.34(4)(a), precluding, at the time
of sentencing, imposition of a prison sentence absent substantial and compelling reasons for a
departure. We initially note that even had defendant’s total OV score been zero points, he still
would have fallen within an intermediate sanction cell, although the guidelines range would have
been 0 to 9 months, MCL 777.68. We further note that although the scores for OVs 4 and 19
were clearly based on judicial fact-finding and were not encompassed by the jury’s verdict or
supported by facts admitted by defendant, he does not present a right-to-jury-trial argument
under People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), with respect to the scoring of
the OVs.

        Under the sentencing guidelines, this Court reviews a trial court’s factual determinations
for clear error, People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013), which exists if this
Court is “definitely and firmly convinced that [the sentencing court] made a mistake” after
reviewing the entire lower court record, People v Armstrong, 305 Mich App 230, 242; 851
NW2d 856 (2014). The trial court’s factual findings must be supported by a preponderance of
the evidence. Hardy, 494 Mich at 438. This Court reviews de novo “[w]hether the facts, as
found, are adequate to satisfy the scoring conditions prescribed by statute.” Id. This Court also
reviews de novo, as a question of law, the proper interpretation of the sentencing guidelines.
People v Gullett, 277 Mich App 214, 217; 744 NW2d 200 (2007).

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        We hold that OV 19 was properly assessed at 25 points, making it unnecessary to review
OV 4, given that even if OV 4 should have been scored at zero instead of 10 points, it would not
change defendant’s current OV level and placement in the class G grid, MCL 777.68. See
People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring error does not
alter the appropriate guidelines range, resentencing is not required.”). OV 19 is to be assessed at
25 points when “[t]he offender by his or her conduct threatened the security of a penal institution
or court.” MCL 777.49(a). In the instant case, there was evidence that after defendant was taken
into custody and while in the process of being booked and lodged into the county jail, he acted
uncooperatively, belligerently, threateningly, and in an almost assaultive manner, requiring the
police to restrain him in a holding cell chained to a ring attached to the cell’s concrete wall.
There was no clear error by the trial court in assessing 25 points for OV 19.

        Finally, defendant argues that the departure was not supported by substantial and
compelling reasons as required by MCL 769.34(4)(a). The substantial and compelling standard
for departures is no longer applicable, or at least under the circumstances here where the trial
court engaged in judicial fact-finding in scoring the OVs; rather, “[a] sentence that departs from
the applicable guidelines range will [now] be reviewed by an appellate court for reasonableness.”
Lockridge, 498 Mich at 392. Pursuant to a recent decision by this Court in People v Schrauben,
__ Mich App __; __ NW2d __ (2016), we must affirm the AIE sentence, given that there
effectively was no departure from the guidelines range for purposes of MCL 769.34(4)(a) under
the Schrauben panel’s construction of that statutory provision, as guided by Lockridge. In
Schrauben, the defendant, who was subject to a minimum sentence range of 0 to 17 months, was
sentenced to 16 months’ imprisonment for multiple fraudulent insurance acts. Schrauben, __
Mich App at __; slip op at 1 and 6. The defendant argued that the trial court’s reasoning for
departing from a sentence within the intermediate sanction cell was not substantial and
compelling. Id. at __; slip op at 6. This Court began its analysis by examining the language in
MCL 769.34(4)(a), which provides:

               (4) Intermediate sanctions shall be imposed under this chapter as follows:

               (a) If the upper limit of the recommended minimum sentence range for a
       defendant determined under the sentencing guidelines set forth in chapter XVII is
       18 months or less, the court shall impose an intermediate sanction unless the court
       states on the record a substantial and compelling reason to sentence the individual
       to the jurisdiction of the department of corrections. An intermediate sanction may
       include a jail term that does not exceed the upper limit of the recommended
       minimum sentence range or 12 months, whichever is less. [1.]



1
  MCL 769.34(4)(a) required a sentencing court to set forth a substantial and compelling reason
for imposing a prison sentence, even if the minimum length of the sentence did not exceed the
upper end of the range established under the guidelines. People v Stauffer, 465 Mich 633, 636;
640 NW2d 869 (2002). For example, even if a defendant were sentenced to 17 months’
imprisonment with the Department of Corrections under a guidelines range of 0 to 18 months, a
substantial and compelling reason was required to justify the prison sentence, despite the


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        The Schrauben panel, relying on Lockridge, stated that it was necessary to “replace the
word ‘shall’ in MCL 769.34(4)(a) with the word ‘may’ ” and to strike down the substantial and
compelling language found in MCL 769.34(4)(a). Schrauben, __ Mich App at __; slip op at 6.
This Court ruled that “[p]ursuant to the broad language of Lockridge, under subsection (4)(a), a
trial court may, but is no longer required to, impose an intermediate sanction if the upper limit of
the recommended minimum sentence range is 18 months or less.” Id. The Schrauben panel then
held:

               In this case, defendant's recommended minimum sentence was zero to 17
       months' imprisonment. The trial court sentenced defendant to 16 months in
       prison, which is within the range authorized by law. . . . Where a trial court does
       not depart from the recommended minimum sentencing range, the minimum
       sentence must be affirmed unless there was an error in scoring or the trial court
       relied on inaccurate information. MCL 769.34(10). Defendant does not dispute
       that his sentence was within the recommended minimum guidelines range, and he
       does not argue that the trial court relied on inaccurate information or that there
       was an error in scoring the guidelines. Therefore, this Court must affirm the
       sentence. [Id. at __; slip op at 6-7.]

       As reflected in this holding, the Court found that there was no departure when viewed in
the context of the original sentencing guidelines range, not an intermediate sanction cell. Here,
defendant’s minimum sentence range was 0 to 17 months, and the trial court imposed a
minimum sentence of 16 months’ imprisonment relative to the AIE conviction. Thus, under
Schrauben, there effectively is no departure to review.

       Affirmed.



                                                             /s/ David H. Sawyer
                                                             /s/ William B. Murphy
                                                             /s/ Amy Ronayne Krause




sentence falling within the scored guidelines range. When an intermediate sanction sentence was
mandated by MCL 769.34(4)(a), the imposition of a prison sentence constituted a departure.
People v Alspaugh, 480 Mich 919, 919; 739 NW2d 874 (2007) (“The defendant's sentence is a
departure from the twelve-month maximum jail sentence required by MCL 769.34(4)(a). On
remand, the circuit court shall either sentence the defendant to an intermediate sanction or state
on the record a substantial and compelling reason to sentence the defendant to the Department of
Corrections, in accordance with MCL 769.34(4)(a).”).


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