                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  October 29, 2015
              Plaintiff-Appellee,

v                                                                 No. 321600
                                                                  Macomb Circuit Court
THOMAS WILLIAM WOOTEN,                                            LC No. 2013-003648-FC

              Defendant-Appellant.


Before: METER, P.J., and WILDER and RONAYNE KRAUSE, JJ.

PER CURIAM.

        A jury convicted defendant of one count each of first-degree criminal sexual conduct
(CSC I), MCL 750.520b(1)(a), and using a computer to commit a crime, MCL 752.796. The
trial court sentenced defendant to consecutive prison terms of 25 to 50 years for the CSC I
conviction and 160 months to 20 years for the unlawful use of a computer conviction, with those
sentences to be served consecutive to a sentence defendant was already serving for a federal
conviction. Defendant appeals as of right. We affirm defendant’s convictions and sentence for
first-degree criminal sexual conduct, but vacate his sentence for unlawful use of a computer and
remand for resentencing on that conviction and for correction of the sentencing information
report for the first-degree CSC conviction in accordance with this opinion.

        Defendant was charged with CSC I for having his daughter perform oral sex on him in
the bathroom of their home. The offense was recorded on a “smart” telephone and a male could
be heard instructing the child while performing the act. Defendant’s face did not appear in the
recording and he could not be identified based on the body parts that were visible in the video,
however witnesses identified defendant by his voice on the recording. Defendant was also
charged with using a computer to commit a crime, namely, production of child sexually abusive
material. That charge was based on defendant’s use of the smart phone to record the child
performing oral sex. The prosecution also offered evidence of still photographs that defendant
took of the child, which he posted to a website in order to gain access to additional child
pornography, as well as other photographs and recordings of child pornography that defendant
had downloaded from the Internet.

       The Federal Bureau of Investigations (FBI) initially started an investigation when agents
in other states discovered that photographs of defendant’s daughter had been uploaded to a
website, and that activity was traced to the home that defendant shared with a roommate in

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Macomb Township. The FBI and local police agencies executed a search warrant at the house,
which led to the discovery of the smart phone video of the child performing oral sex on an adult
male penis. Defendant was questioned by authorities and admitted to downloading images from
the Internet, and agents recovered a thumb drive that was hidden in defendant’s bedroom that
contained more than 1,500 images and 200 recordings of child sexually abusive material. The
smart phone recording was not discovered until after the police concluded their questioning of
defendant, therefore defendant was not questioned about the video recording. Because the male
person in the smart phone recording was not visible, this case focused on the identification of
that individual. The prosecution relied primarily on witnesses familiar with defendant to identify
him by his voice on the recording. The defense conceded that defendant was involved in
viewing child pornography, however argued that he was not involved with the video recording
found on his telephone.

                             I. SUFFICIENCY OF THE EVIDENCE

        Defendant argues that the evidence was insufficient to support his convictions for both
offenses. A challenge to the sufficiency of the evidence is reviewed de novo. People v
Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). An appellate court’s review does
not turn on whether there was “any evidence to support the conviction, but whether there was
sufficient evidence to justify a rational trier of fact in finding” the defendant guilty beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), amended
441 Mich 1201 (1992). The evidence must be reviewed in a light most favorable to the
prosecution. Id. at 515. “This 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 Williams, 268 Mich App
416, 419; 707 NW2d 624 (2005), and all conflicts in the evidence must be resolved in favor of
the prosecution. People v Jackson, 292 Mich App 583, 587-588; 808 NW2d 541 (2011).

        Defendant first argues that the evidence was insufficient to prove that he was the person
in the video recording who directed the child victim in performing the act of oral sex. Identity is
an element of every offense. People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008).
“Positive identification by witnesses may be sufficient to support a conviction of a crime.”
People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000). The credibility of evidence and
witnesses, including identification testimony, is a question for the trier of fact to resolve and this
Court will not resolve the issue anew. People v Dunigan, 299 Mich App 579, 582; 831 NW2d
243 (2013); Davis, 241 Mich App at 700.

        Multiple witnesses who were familiar with defendant’s voice identified the person
appearing in the video recording as defendant based upon his voice. This testimony was
sufficient to identify defendant as the person engaged in the sexual act with the minor child.
Furthermore, other circumstantial evidence supported the conclusion that defendant was the
person in the video recording. The video recording was discovered on defendant’s cell phone,
the person in the video used the term, “baby doll,” which defendant commonly used to refer to
his daughter, and the background in the video was consistent with the main bathroom in
defendant’s home at the time. Accordingly, the evidence was sufficient to support defendant’s
conviction for CSC I.



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        Defendant also argues that the evidence was insufficient to support his conviction for
using a computer to commit a crime, which was based on his commission of the underlying
crime of production of child sexually abusive material, MCL 750.145c(2). Defendant does not
dispute that the making of a video recording of a child performing an act of oral sex constitutes
the production of child sexually abusive material, contrary to MCL 750.145c(2). He argues,
however, that the evidence did not support his conviction for use of a computer to commit that
crime because there was no evidence that he communicated with another person or shared the
video with another person. We note that MCL 750.145d prohibits a person from using the
Internet or a computer “to communicate with any person for the purpose of doing” certain
prescribed offenses, which include both production of child sexually abusive material and first-
degree CSC. However, defendant was not charged with violating MCL 750.145d. Rather, he
was charged with violating MCL 752.796(1), which simply states that “[a] person shall not use a
computer program, computer, computer system, or computer network to commit, attempt to
commit, conspire to commit, or solicit another person to commit a crime.” Unlike MCL
750.145d, MCL 752.796(1) does not require that the defendant use a computer to communicate
with another person. Defendant’s “smart” phone qualifies as a “computer” under MCL
752.792(3), which defines a “computer” as

       any connected, directly interoperable or interactive device, equipment, or facility
       that uses a computer program or other instructions to perform specific operations
       including logical, arithmetic, or memory functions with or on computer data or a
       computer program and that can store, retrieve, alter, or communicate the results of
       the operations to a person, computer program, computer, computer system, or
       computer network.

The evidence that defendant used his smart phone to video record his daughter performing an act
of oral sex was sufficient to support his conviction of using a computer to commit the crime of
production of child sexually abusive material.

                          II. GREAT WEIGHT OF THE EVIDENCE

        Defendant also argues that the jury’s verdict was against the great weight of the evidence.
Defendant did not raise this issue in a motion for a new trial, and this Court previously denied
defendant’s motion to remand with respect to this issue. People v Wooten, unpublished order of
the Court of Appeals, entered May 19, 2015 (Docket No. 321600). Accordingly, this issue is not
preserved. People v Cameron, 291 Mich App 599, 617-618; 806 NW2d 371 (2011). Because
the issue is unpreserved, this Court will review it only for plain error affecting defendant’s
substantial rights. People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003).

       In Musser, 259 Mich App at 218-219, this Court explained:

              The test to determine whether a verdict is against the great weight of the
       evidence is 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
       McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). “Conflicting
       testimony, even when impeached to some extent, is an insufficient ground for
       granting a new trial.” People v Lemmon, 456 Mich 625, 647; 576 NW2d 129

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       (1998). “[U]nless it can be said that directly contradictory testimony was so far
       impeached that it ‘was deprived of all probative value or that the jury could not
       believe it,’ or contradicted indisputable physical facts or defied physical realities,
       the trial court must defer to the jury's determination.” Id. at 645-646 (citation
       omitted).

        Defendant’s great-weight argument is merely a restatement of his previous claim that the
evidence was legally insufficient. He does not offer any additional support for his position that
the jury’s verdict is against the great weight of the evidence. As explained previously, the
evidence was sufficient to support the jury’s verdict; accordingly, the jury’s verdict cannot be
said to be against the great weight of the evidence. Therefore, defendant has not shown a plain
error.

                              III. CONSECUTIVE SENTENCING

       Defendant argues that the trial court lacked the legal authority to order his sentences to be
served consecutive to each other, and consecutive to his federal sentences. We disagree.

       “A consecutive sentence may be imposed only if specifically authorized by statute.”
People v Lee, 233 Mich App 403, 405; 592 NW2d 779 (1999). Whether consecutive sentencing
is authorized is a question of law, which this Court reviews de novo. Id.; see also People v
Denio, 454 Mich 691, 698; 564 NW2d 13 (1997) (issues of statutory interpretation are reviewed
de novo).

       Defendant first argues that MCL 750.520b(3) did not authorize the trial court to order his
sentences for CSC I and unlawful use of a computer to be served consecutively. MCL
750.520b(3) provides:

              The court may order a term of imprisonment imposed under this section to
       be served consecutively to any term of imprisonment imposed for any other
       criminal offense arising from the same transaction.

Defendant argues that his conviction for unlawful use of a computer did not arise from the same
transaction as the CSC I offense. The basis for defendant’s argument is that there was no
evidence that he sent the video recording to someone else. As previously discussed, defendant’s
conviction for unlawful use of a computer did not require that the video be sent to or shared with
another person. To be authorized to impose consecutive sentences under MCL 750.520b(3), it
was only necessary that the two crimes arise from the same transaction. In People v Ryan, 295
Mich App 388, 402-403; 819 NW2d 55 (2012), this Court explained:

               The term “same transaction” is not statutorily defined; however, it has
       developed a unique legal meaning. Accordingly, it is appropriate to examine
       judicial interpretations of the terminology. Flick, 487 Mich at 11; McCormick,
       487 Mich at 192; Powell, 280 Mich at 703. Two or more separate criminal
       offenses can occur within the “same transaction.” People v Nutt, 469 Mich 565,
       578 n 15; 677 NW2d 1 (2004) (“ ‘It is not of unfrequent occurrence, that the same
       individual, at the same time, and in the same transaction, commits two or more
       distinct crimes . . . ’ ”) (citation omitted). To find otherwise would be
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       nonsensical, as consecutive sentencing provisions such as MCL 750.520b(3),
       MCL 750.110a(8), and MCL 750.529a(3) would be rendered meaningless. In the
       double-jeopardy context, our Supreme Court in People v Sturgis, 427 Mich 392,
       401; 397 NW2d 783 (1986), alluding to the same-transaction test, stated that the
       test in part required the joining of charges that “grew out of a continuous time
       sequence.” Although Nutt, 469 Mich at 568, subsequently rejected the same-
       transaction test in favor of the same-elements test for purposes of defining the
       term “same offense” in our Constitution as part of a double-jeopardy analysis, the
       Sturgis Court's definition that touched on the meaning of “same transaction”
       remains viable and useful in the context of simply defining the term “same
       offense.”

              Additionally, in People v Johnson, 474 Mich 96; 712 NW2d 703 (2006),
       the Court construed analogous statutory language that concerned acts “arising out
       of the sentencing offense,” as that phrase is used in MCL 777.41(2)(a). MCL
       777.41 governs the scoring of OV-11 under the legislative sentencing guidelines.
       The Johnson Court held:

                      [W]e have previously defined “arising out of” to suggest a
               causal connection between two events of a sort that is more than
               incidental. We continue to believe that this sets forth the most
               reasonable definition of “arising out of.” Something that “aris[es]
               out of,” or springs from or results from something else, has a
               connective relationship, a cause and effect relationship, of more
               than an incidental sort with the event out of which it has arisen.
               [Johnson, 474 Mich at 101.]

        The evidence showed that defendant used a computer (i.e., his smart phone) to video
record his daughter performing an act of first-degree CSC. This evidence clearly demonstrates
that defendant’s use of a computer arose from the same transaction that involved his commission
of CSC I. Accordingly, the trial court was authorized to impose consecutive sentences under
MCL 750.520b(3).

        Defendant also argues that the trial court erred in ordering his sentences in this case run
consecutive to his federal sentences. The trial court also relied on MCL 750.520b(3) as authority
for ordering consecutive sentences. The federal sentences were based on convictions arising
from defendant’s posting of photos of his daughter on a pornographic website. The evidence
indicated that defendant posted the photos of his daughter to a website to gain access to other
child pornography online. In the email that included the attachments of his daughter’s photos,
defendant stated that he would “like to trade,” that he has “a three year old that loves the cam,”
that he “takes requests,” and that he would love to “share private pics.” This evidence
demonstrates a connective relationship between defendant’s video recording of his daughter’s
sexual act and the other photographs of his daughter. Accordingly, the trial court did not err in
ordering that both sentences in this case run consecutive to defendant’s federal sentences.

                            IV. THE SENTENCING GUIDELINES


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        Defendant argues that resentencing is required because the trial court scored the offense
variables on the basis of impermissible judicial fact-finding, contrary to Alleyne v United States,
___ US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), and also because there was no evidence to
support the trial court’s scoring of prior record variable (PRV) 5 and offense variable (OV) 12.
Defendant preserved these issues by raising them in a motion to remand. MCR 6.429(C); People
v McChester, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 318145), lv pending;
slip op at 2.

        Initially, relying on Alleyne, defendant argues that the trial court’s scoring of OV 4, OV
10, OV 12, and OV 13, was improper because those scoring decisions required judicial fact-
finding, and were not based on facts found by the jury or admitted by defendant. Our Supreme
Court recently determined in People v Lockridge, ___ Mich ___; ___ NW2d ___ (2015) (Docket
No. 149073), that Alleyne applies to this state’s sentencing guidelines and renders them
unconstitutional to the extent that they “require judicial fact-finding beyond facts admitted by
the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the
floor of the guidelines minimum sentence range, i.e. the ‘mandatory minimum’ sentence under
Alleyne.” Lockridge, ___ Mich ___; slip op at 1-2. To remedy the constitutional violation, the
Court severed MCL 769.34(2) to the extent that it makes the guidelines, as scored based on facts
beyond those admitted by the defendant or found by the jury, mandatory. Id. at ___; slip op at 2.
The Court explained that a sentencing court must still score the guidelines to determine the
applicable guidelines range, but a guidelines range calculated in violation of Alleyne is now
advisory only. Id. at ___; slip op at 2.

        The trial court scored the guidelines only for defendant’s first-degree CSC conviction.
First-degree CSC is a class A offense. MCL 777.16y. As scored by the trial court, defendant
received 30 PRV points, placing him in PRV Level D (25 – 49 points), and 70 OV points,
placing him in OV Level IV (60 – 79 points). Those scores placed him in the D-IV cell of the
applicable sentencing grid, for which the minimum sentence range is 126 to 210 months. MCL
777.62. Defendant’s OV scores were based on 10 points for OV 4 (serious psychological injury
to a victim requiring professional treatment), MCL 777.34(1)(a); 10 points for OV 10
(exploitation of a victim’s youth or abuse of the offender’s authority status), MCL 777.40(1)(b);
25 points for OV 12 (three or more contemporaneous criminal acts against a person were
committed), MCL 777.42(1)(a); and 25 points for OV 13 (the offense was part of a pattern of
criminal activity involving 3 or more crimes against a person), MCL 777.43(1)(c). Although
none of the facts underlying the scoring of these variables were found by the jury or admitted by
defendant, we conclude that defendant is not entitled to sentencing relief under Lockridge.

        The rule of Alleyne only applies to judicial fact-finding that mandatorily increases a
minimum sentence. Where a defendant receives a “sentence that did not rely on the minimum
sentence range from the improperly scored guidelines . . . the defendant cannot show prejudice
from any error in scoring the OVs in violation of Alleyne.” Lockridge, ___ Mich at ___; slip op
at 31. In this case, although the guidelines range of 126 to 210 months was calculated on the
basis of judicial fact-finding, the trial court did not rely on that range when sentencing defendant
for first-degree CSC. The court instead imposed a sentence that was statutorily mandated by
MCL 750.520b(2)(b) (requiring a minimum sentence of no less than 25 years for a violation
committed by a person 17 years of age or older against an individual less than 13 years of age).
The sentencing guidelines statute provides that “[i]f a statute mandates a minimum sentence for

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an individual sentenced to the jurisdiction of the department of corrections, the court shall
impose sentence in accordance with that statute.” MCL 769.34(2)(a). Thus, the trial court was
required to impose a minimum sentence in accordance with MCL 750.520b(2)(b), regardless of
the guidelines range. The trial court sentenced defendant in accordance with that statute.
Therefore, because defendant’s sentence was not affected by impermissible judicial fact-finding
in violation of Alleyne, defendant is not entitled to sentencing relief based on Alleyne.

       Defendant also argues that resentencing is required because there was no evidence to
support the trial court’s scoring of PRV 5 and OV 12. When reviewing a trial court’s scoring
decision, the trial court’s “factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013).

        Prior record variable 5 allows a court to score five points for two prior misdemeanor
convictions, and two points for one prior misdemeanor conviction. MCL 777.55(1)(d) and (e).
Defendant argues that the trial court should have scored only two points, rather than five points,
for PRV 5. Defendant’s presentence investigation report (PSIR) indicates that defendant has two
prior misdemeanor convictions, one for malicious destruction of personal property with a value
of $200 or more, but less than $1,000, and one for domestic violence. Defendant argues that the
domestic violence conviction should not have been counted because the PSIR indicates that he
entered a plea and was sentenced on that charge to one year of probation under MCL 769.4a on
December 27, 2001, and he was discharged on October 22, 2002. A conviction discharged under
MCL 769.4a(5) shall not be counted as a conviction “for purposes of disqualifications or
disabilities imposed by law upon conviction of a crime,” except for domestic assaults under
MCL 750.81 and MCL 750.81a. But as further explained below, an error in the scoring of PRV
5 does not require resentencing.

        Defendant received 25 points for OV 12, which assesses points for contemporaneous
felonious criminal acts. The trial court scored OV 12 at 25 points, which is required where
“[t]hree or more contemporaneous felonious criminal acts involving a crime against a person
were committed.” MCL 777.42(1)(a). An act is contemporaneous if it occurred within 24 hours
of the sentencing offense and has not and will not result in a separate conviction. MCL
777.42(2)(a)(i) and (ii). The basis for the trial court’s scoring of this variable is not clear from
the record. Defendant was charged with and convicted of multiple offenses arising out of the
FBI’s investigation, including federal charges for production of child pornography (two counts),
distribution of child pornography (two counts), receipt of child pornography, and possession of
child pornography. Any contemporaneous felonies involving these charges appear to have
resulted in separate convictions, and the record fails to disclose any other facts that would
support the scoring of OV 12. Accordingly, we conclude that OV 12 was incorrectly scored at
25 points and should be reduced to zero points.

        We conclude, however, that resentencing for the first-degree CSC conviction is not
required. Defendant concedes that the scoring of PRV 5 did not affect his guidelines range. A
scoring error that does not affect the appropriate guidelines range does not require resentencing.
People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). Further, as previously
indicated, the trial court imposed a minimum sentence that was mandated by MCL
750.520b(2)(b). Therefore, any error in scoring PRV 5 or OV 12 could have no impact on

                                                -7-
defendant’s sentence. This is true even though a 25-point reduction for OV 12 will affect the
guidelines range. Regardless of the guidelines range, the trial court was required by MCL
769.34(2)(a) to impose a minimum sentence in accordance with the first-degree CSC statute,
MCL 750.520b(2)(b), which it did in this case. Accordingly, defendant is not entitled to
resentencing on his conviction for first-degree CSC. However, we remand for correction of the
sentencing information report to reflect the proper scoring of the OVs for defendant’s first-
degree CSC conviction. People v Melton, 271 Mich App 590, 593, 596; 722 NW2d 698 (2006),
(stating “a scoring error may still affect a defendant through such things as its effect on the
calculation of parole eligibility”)(superseded by statute on other grounds).

        Although defendant does not directly raise the issue, we conclude that resentencing is
warranted on the unlawful use of a computer conviction because the trial court ordered
consecutive sentences and did not separately score the guidelines for that conviction. Pursuant to
MCL 777.21(2) and MCL 771.14(2)(e)(i), the court was required to separately score the
guidelines “[f]or each conviction for which a consecutive sentence is authorized or required.”
As explained previously, consecutive sentences were authorized by MCL 750.520b(3).
Therefore, the trial court was required to separately score the guidelines for the unlawful use of a
computer conviction. The trial court instead imposed the maximum sentence allowed by law for
that conviction, to be served consecutive to the mandatory minimum sentence for first-degree
CSC, without determining the appropriate guidelines range for that conviction. Therefore, we
vacate defendant’s sentence for unlawful use of a computer and remand for resentencing on that
conviction. See People v Alfaro, 497 Mich 1024; 863 NW2d 39 (2015). On remand, defendant
shall be resentenced in conformity with the requirements of Lockridge. See Lockridge, ___ Mich
at ___; slip op at 35.

        Affirmed in part, vacated in part, and remanded for correction of the sentencing
information report and resentencing in accordance with this opinion. We do not retain
jurisdiction.

                                                             /s/ Patrick M. Meter
                                                             /s/ Kurtis T. Wilder
                                                             /s/ Amy Ronayne Krause




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