            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



In re DAYLON FENN


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 21, 2019
               Petitioner-Appellee,

v                                                                  No. 345185
                                                                   Wayne Circuit Court
DAYLON FENN,                                                       Family Division
                                                                   LC No. 17-000498-DL
               Respondent-Appellant.


Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

       Respondent, a juvenile, appeals as of right the trial court’s dispositional order
adjudicating him responsible for first-degree criminal sexual conduct (CSC-I), MCL
750.520b(1)(a) (person under 13), and assault with intent to commit criminal sexual conduct
involving penetration, MCL 750.520g(1). For the reasons set forth in this opinion, we affirm
respondent’s convictions and sentence.

        This case arises out of the sexual assault of the seven-year-old victim by respondent who
was 12 years old at the time of the assault. Respondent forced the victim to perform fellatio on
him and then masturbated and ejaculated on the victim. Petitioner originally filed a petition
alleging one count of assault with intent to commit criminal sexual conduct involving
penetration. Approximately seven months after the original petition was filed, petitioner filed an
amended petition adding one count of CSC-I after the victim told petitioner’s counsel during a
meeting that respondent had also forced the victim to perform fellatio. The trial court
adjudicated respondent responsible of both counts, and this appeal followed.

       On appeal, respondent argues that there was insufficient evidence to support his
adjudications for CSC-I and assault with intent to commit criminal sexual conduct involving
penetration.




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        This Court reviews de novo sufficiency of the evidence claims. People v DeLeon, 317
Mich App 714, 719; 895 NW2d 577 (2016). This Court “must view 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.” Id. “Circumstantial
evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of
the elements of a crime.” People v Carll, 322 Mich App 690, 696; 915 NW2d 387 (2018).
“This Court will not interfere with the trier of fact’s role of determining the weight of the
evidence or the credibility of the witnesses.” People v Head, 323 Mich App 526, 531; 917
NW2d 752 (2018). “[C]onflicts in the evidence are resolved in favor of the prosecution.” Carll,
322 Mich at 696. “[T]his Court reviews a trial court’s findings of fact for clear error.” People v
Maben, 313 Mich App 545, 549; 884 NW2d 314 (2015).

       A person commits CSC-I, MCL 750.520b(1)(a), “if he or she engaged in sexual
penetration with the victim and the victim was less than 13 years old.” People v Solloway, 316
Mich App 174, 181; 891 NW2d 255 (2016). “ ‘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 . . . ’ ”
People v Duenaz, 306 Mich App 85, 106; 854 NW2d 531 (2014), quoting MCL 750.520a(r). “In
criminal sexual conduct cases, a victim’s testimony may be sufficient to support a defendant’s
conviction and need not be corroborated.” Solloway, 316 Mich App at 181. See also MCL
750.520h.

        The evidence established that the victim was only seven years old when the alleged
sexual assault took place. The victim testified that respondent told him that, in order to play the
video game Grand Theft Auto (GTA), the victim “had to lick [respondent’s] private part[.]”
Respondent told the victim to go into the basement of respondent’s house, and while the boys
were in the basement alone, the victim got onto a bed and had to “suck [respondent’s] private
part.” The victim’s testimony established that the victim was referring to respondent’s penis
because the victim described the “private part” as “the D word,” and he further explained that a
person uses a private part to “pee.” The victim also explained that “suck on his private part”
meant that he had to “put his mouth on it.” When asked to clarify whether the victim had
actually performed fellatio or whether respondent only asked him to, the victim responded that
he actually put his mouth on respondent’s “private part.” The victim specifically stated that he
“was sucking [respondent’s] private part in the basement.” The victim also explained that, while
he was performing fellatio, even though he tried to stop, respondent pushed his head down,
making him incapable of speaking. The victim confirmed that he had actually placed his mouth
on respondent’s penis when questioned multiple times, and he recounted not being able to talk or
yell because respondent was pushing his head onto respondent’s penis. Thus, the victim’s
testimony established that respondent engaged in CSC-I with a person under the age of 13.

        Respondent argues that the victim’s testimony was inconsistent and contradicted by the
testimony of other witnesses because, according to the testimony of his grandmother and Officer
Caldwell, respondent had not initially stated that there had been penetration, but rather,
respondent asked the victim to perform fellatio and the victim said “No.” However, a victim’s
testimony, if found credible, is sufficient to establish the elements of a crime. Solloway, 316
Mich App at 181. Moreover, it is established that a victim’s testimony need not be corroborated
in a criminal sexual conduct prosecution. MCL 750.520h. Respondent also asserts that the lack

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of physical evidence weighs in favor of respondent and against the victim’s credibility.
However, the lack of physical evidence is not conclusive as to whether the assault occurred, and
the trial court had the authority to rely on the victim’s testimony. See People v Bailey, 310 Mich
App 703, 713-714; 873 NW2d 855 (2015) (“[The] [d]efendant correctly notes that there was no
forensic evidence corroborating the victims’ testimony; however, it has long been settled that a
complainant’s testimony regarding a defendant’s commission of sexual acts is sufficient
evidence to support a conviction for CSC–I[.]”). Here, the trial court relied solely on the
victim’s testimony, finding the victim’s testimony to be credible and noting that the victim
recounted the assault with “remarkable detail.” Thus, the trial court did not err in relying on the
victim’s testimony despite contradictory testimony and a lack of physical evidence to corroborate
the victim’s testimony.

        Respondent also argues that the trial court erred when it completely disregarded the
credibility of the defense witnesses. The trial court asserted that it believed the victim’s
testimony, and it was basing its ruling “100 percent” on its belief that the victim was credible.
The trial court found the testimony of Officer Elaine Caldwell to be of no assistance, and
moreover, the trial court did not believe the testimony of the defense witnesses. “Absent
exceptional circumstances, issues of witness credibility are for the trier of fact,” People v Unger,
278 Mich App 210, 232; 278; 749 NW2d 272 (2008), and “[t]his Court will not interfere with the
trier of fact’s role of determining the weight of the evidence or the credibility of witnesses,”
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). The trial court had the
opportunity to observe and listen to the testimony of the witnesses, and based on that
opportunity, the trial court found the victim’s testimony to be credible, and the testimony of the
defense witnesses to not be credible. There are no exceptional circumstances that support the
conclusion that the trial court should not have weighed the credibility of the witnesses as it did;
therefore, the trial court did not err in disregarding the testimony of the defense witnesses and
relying on the victim’s testimony.

       Respondent also argues that the trial judge engaged in suggestive questioning during the
adjudication hearing. Respondent argues that the judge intervened in the midst of petitioner’s
questioning of the victim and likely influenced the victim testimony regarding the count of CSC-
I. The trial judge’s questioning was as follows:

             [Petitioner’s counsel]:     What did [respondent] do while you put your
       mouth on the private part?

               [The Victim]: He moved his hand.

               [Respondent’s Counsel]: Leading, he didn’t say.

               The Court: I agree, he said he was told to do that to play the game. He
       didn’t say it happened. The objection is sustained.

               [The Victim]: But it did happen.

               The Court: At some point he told you to play the game you would have to
       do that.


                                                -3-
               [The Victim]: Yes.

               The Court: Is that when it happened?

               [The Victim]: Yes.

               The Court: It did happen, yes or no?

               [The Victim]: Yes.

               The Court: And it did happen in the way that you put your mouth on his
       private part; is that correct?

               [The Victim]: Yes.

[W]hen evaluating a judge’s questioning of witnesses, a reviewing court must first bear in mind
that such interrogation is generally appropriate under MRE 614(b).” People v Stevens, 498 Mich
162, 173; 869 NW2d 233 (2015) (footnote omitted). Our Supreme Court has stated that “the
central object of judicial questioning should be to clarify.” Id. “Therefore, it is appropriate for a
judge to question witnesses to produce fuller and more exact testimony or elicit additional
relevant information.” Id. The trial judge was not engaging in suggestive questioning; rather, he
was attempting to clarify the victim’s testimony because petitioner has asked a leading question.
The victim had already stated that he had to “suck [respondent’s] private part.” The trial judge
was merely trying to clarify if the victim was testifying that respondent only asked him to
perform such an act, or if the victim had actually engaged in the act.

        Respondent also asserts that the trial court erred by failing to consider that petitioner’s
counsel may have engaged in suggestive questioning during the private meeting with the victim,
during which the victim admitted for the first time that he performed fellatio on respondent.
During the adjudicatory hearing, respondent’s counsel elicited testimony from the victim in
which the victim stated that he had been directly asked the question “Did he put it in your
mouth” by either petitioner or the victim’s advocate, Paula Haran. Respondent argues that the
trial court failed to address the strong possibility that suggestive questioning by petitioner’s
counsel during the meeting may have affected the victim’s testimony regarding the penetration.
        Contrary to respondent’s assertions, the trial court was made aware of the meeting, by
virtue of respondent filing a motion to strike any testimony from the victim regarding the
penetration because respondent had not been provided with a synopsis of the meeting at which
he admitted that penetration occurred. Petitioner argued that the synopsis was work product, and
she was not required to disclose it. The trial court, agreeing with petitioner’s counsel, denied
respondent’s motion. Moreover, respondent moved for a directed verdict on the count of CSC-I,
asserting that there was insufficient evidence of the crime because the victim’s testimony had
been impeached due to suggestive questioning and conflicting statements. The trial court denied
the motion. Hence, the trial court was clearly aware of the meeting and circumstances
surrounding the meeting but still found the victim’s sworn testimony at the adjudication hearing
to be sufficient to support the charge of CSC-I.




                                                -4-
        Based on the entirety of the record evidence before us, and viewing that record evidence
in the light most favorable to the prosecution, Carll, 322 Mich App at 696, we conclude that
there was sufficient evidence to support adjudicating respondent responsible for CSC-I.

        Respondent also argues that there was insufficient evidence to adjudicate him responsible
for assault with intent to commit criminal sexual conduct involving penetration. The elements of
assault with intent to commit criminal sexual conduct involving penetration are (1) an assault,
and (2) an intent to commit criminal sexual conduct involving sexual penetration. People v
Nickens, 470 Mich 622, 621; 685 NW2d 657 (2004). “An assault is made out from either an
attempt to commit a battery or an unlawful act which places another in reasonable apprehension
of receiving an immediate battery.” Id. at 628 (citation and quotation marks omitted). “[A]
battery is an intentional, unconsented and harmful or offensive touching of the person of another,
or of something closely connected with the person.” Id.

        The evidence established that respondent assaulted the victim. The victim testified that
respondent forced him to perform fellatio by pushing his head down and holding it on his penis
when the victim tried to move. The victim also testified that respondent climbed on top of him,
covered his mouth, and would not let him move as he masturbated and ejaculated over him. In
regard to the element of intent, the victim testified that respondent told him to come to the
basement and that the victim had to “lick [respondent’s] private part to play GTA.”
Respondent’s comment to the victim supports the finding that respondent had the requisite intent
to commit sexual penetration. Moreover, the victim testified that he actually put his mouth on
respondent’s penis, and respondent forced him to continue by pushing his head down on his
penis, despite the victim trying to move. Thus, sufficient evidence was presented to support the
finding that respondent committed assault with the intent to commit criminal sexual conduct
involving penetration.

       Respondent also argues that his adjudications for both CSC-I and assault with intent to
commit criminal sexual conduct involving penetration were against the great weight of the
evidence.

        “An appellate court will review a properly preserved great-weight issue by deciding
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand.” People v Cameron, 291 Mich App 599, 616-617; 806
NW2d 371 (2011). “Generally, a verdict may only be vacated when the verdict is not reasonably
supported by the evidence, but rather it is more likely attributable to factors outside the record,
such as passion, prejudice, sympathy, or other extraneous considerations.” Solloway, 316 Mich
App at 183. “Conflicting testimony and questions of witness credibility are generally
insufficient grounds for granting a new trial.” Unger, 278 Mich App at 232. “Absent
exceptional circumstances, issues of witness credibility are for the trier of fact.” Id.

       Specifically, respondent argues that, despite the trial court’s ability to observe and listen
to the witnesses, there were such significant inconsistencies in the victim’s testimony that it
would be a miscarriage of justice to allow the adjudications to stand. As previously indicated,
although there was conflicting testimony, the trial court found the victim to be credible, due to
the remarkable detail of his testimony. Moreover, the trial court found the testimony of the other
witnesses to be of no use and not credible. “Questions regarding credibility are not sufficient

                                                -5-
grounds for relief unless the testimony contradicts indisputable facts or laws, the testimony is
patently incredible or defies physical realities.” Solloway, 316 Mich App at 183. The victim’s
testimony did not contradict indisputable facts or laws or defy physical realities. Moreover, the
trial court found the victim’s testimony to be the most credible. Thus, the evidence did not
preponderate so heavily against the adjudication that it would be a miscarriage of justice to allow
the adjudication to stand. Cameron, 291 Mich App at 616-617.

        Furthermore, in regard to the count of assault with intent to commit criminal sexual
conduct involving penetration, the evidence established that respondent held the victim’s head
down on his penis and made him perform fellatio, despite the victim trying to move. Respondent
also pinned the victim down on the couch and covered his mouth, preventing him from moving.
Thus, the evidence established that an assault occurred. Moreover, the evidence established that
respondent told the victim that he had to perform fellatio on him in order to play a specific game,
and respondent did in fact force the victim to perform fellatio. Thus, the evidence established
that respondent had the requisite intent to commit sexual penetration. Therefore, the evidence
did not preponderate so heavily against the adjudication that it would be a miscarriage of justice
to allow the adjudication of assault with intent to commit criminal sexual conduct involving
penetration to stand.

       Affirmed.

                                                            /s/ Douglas B. Shapiro
                                                            /s/ Stephen L. Borrello
                                                            /s/ Jane M. Beckering




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