            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



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 28, 2020
               Plaintiff-Appellee,

v                                                                  No. 343524
                                                                   Shiawassee Circuit Court
CRAIG MATTHEW TOMALIA,                                             LC No. 2017-002137-FH

               Defendant-Appellant.


Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ.

PER CURIAM.

        Defendant Craig Matthew Tomalia was convicted by jury of third-degree criminal sexual
conduct (CSC), MCL 750.520d(1)(c) (sexual penetration with a physically helpless person). The
trial court sentenced Tomalia to 10 to 15 years’ imprisonment. Tomalia appeals his conviction
and sentence. We affirm.

                                I. FACTUAL BACKGROUND

        This matter arises from Tomalia digitally penetrating the victim while he was staying as a
guest in the home that the victim shared with her husband. Before the sexual assault occurred,
the victim took Trazadone, which was prescribed to her by a doctor for insomnia and depression.
The victim testified that after she took the medication she laid down in a recliner chair.
According to the victim, the medication took about 10 to 15 minutes to take effect. After about
10 minutes, the victim noticed that she was “halfway sleeping” and “drowsy.” At that point,
Tomalia came into the room from the kitchen, hovered over the victim, stuck his hand down her
pants, and digitally penetrated her vagina. The victim jerked her leg back, which resulted in her
kicking Tomalia. Tomalia then left the room. After the victim informed her husband what had
happened, law enforcement was contacted and Tomalia was apprehended. Tomalia was charged
with CSC-III, and the victim obtained a personal protection order (“PPO”) against Tomalia.
Tomalia was convicted by jury as charged and sentenced to a term of imprisonment. This appeal
followed.




                                               -1-
                                         II. ANALYSIS

                            A. SUFFICIENCY OF THE EVIDENCE

        Tomalia first argues that the prosecution failed to present sufficient evidence at trial to
prove beyond a reasonable doubt that the victim was “physically helpless.” We disagree. We
review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich App
703, 713; 873 NW2d 855 (2015). When ascertaining whether there was sufficient evidence
presented at trial to support a conviction, this Court must view the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491
Mich 127, 139; 815 NW2d 85 (2012).

        A conviction under MCL 750.520d(1)(c) requires proof that the defendant engaged in
sexual penetration with another person, that the other person was physically helpless, and that the
defendant knew or had reason to know that the person was physically helpless. Sexual
penetration includes “any . . . 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 . . . .” MCL 750.520a(r). A
person is “physically helpless” when she is “unconscious, asleep, or for any other reason is
physically unable to communicate unwillingness to an act.” MCL 750.520a(m). “[T]he essence
of physical helplessness is that the victim is unable to communicate unwillingness to an act.
Such is the case when the victim is asleep or unconscious.” People v Perry, 172 Mich App 609,
622; 432 NW2d 377 (1988).1 A victim is physically helpless if the victim is penetrated by the
defendant “while asleep or had awakened during that process.” Id.

        When viewing the evidence in a light most favorable to the prosecution, we conclude that
there was sufficient evidence to establish that the victim was physically helpless at the time of
the sexual assault. The victim testified that 10 minutes after she took her medication, she was
“halfway sleeping,” “not fully awake,” and “drowsy.” She further described her state of mind as
“in and out of it” when Tomalia came into the room and digitally penetrated her vagina. When
this occurred, the victim was still “drowsy.” Thus, at the time of the penetration, the victim was
“physically unable to communicate unwillingness to [the] act.” See MCL 750.520a(m). See
also Perry, 172 Mich App at 622. Evidence that the victim “kicked [her] leg up” supports that
the victim was roused from her drowsy state at the time the penetration occurred and, as a result,
was able to communicate her unwillingness to the act by kicking Tomalia.




1
  We acknowledge that Court of Appeals cases decided before November 1, 1990, are not
binding. MCR 7.215(J)(1). Although this Court is not “ ‘strictly required to follow
uncontradicted opinions from this Court decided prior to November 1, 1990,’ those opinions are
nonetheless ‘considered to be precedent and entitled to significantly greater deference than are
unpublished cases.’ ” People v Bensch, 328 Mich App 1, 7 n 6; 935 NW2d 382 (2019), quoting
Woodring v Phoenix Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018) (emphasis
omitted).


                                                -2-
        Although Tomalia argues that there was insufficient evidence presented that the victim
was physically helpless because she testified that she was not fully asleep at the time of the
assault, in ascertaining whether sufficient evidence was presented at trial to support a conviction,
this Court views the evidence in a light most favorable to the prosecution and determines
whether a rational trier of fact could find that the essential elements of the crime were proven
beyond a reasonable doubt. Reese, 491 Mich at 139. This Court will not interfere with the role
of the trier of fact in determining the weight of evidence or the credibility of witnesses. People v
Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). “[A]
reviewing court is required to draw all reasonable inferences and make credibility choices in
support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Viewed in a light most favorable to the prosecution and drawing all reasonable inferences in
support of the jury’s verdict, we conclude that the victim’s testimony was sufficient for the jury
to find beyond a reasonable doubt that she was unable to communicate an unwillingness to act,
and thus was physically helpless at the time of the penetration. Consequently, there was
sufficient evidence to convict Tomalia of CSC-III.

                           B. GREAT WEIGHT OF THE EVIDENCE

       In a related claim, Tomalia argues that he should receive a new trial because the great
weight of the evidence failed to show that the victim was physically helpless. However, Tomalia
does not provide this Court with any meaningful arguments to support his assertion, thereby
rendering the argument abandoned. See People v McPherson, 263 Mich App 124, 136; 687
NW2d 370 (2004). Nonetheless, we have reviewed the argument and find that it lacks merit.

        Because Tomalia did not move for a new trial, this issue is not preserved. See People v
Lopez, 305 Mich App 686, 695; 854 NW2d 205 (2014). We therefore apply the plain-error rule,
which requires that “1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3)
and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). An error has affected a defendant’s substantial rights when there is “a
showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.”
Id. Moreover, “once a defendant satisfies these three requirements, . . . [r]eversal is warranted
only when the plain, forfeited error resulted in the conviction of an actually innocent defendant
or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings’ independent of the defendant’s innocence.” Id. at 763-764 (quotation marks and
citation omitted). A defendant bears the burden of persuasion with respect to prejudice. Id. at
763.

        In evaluating whether a verdict is against the great weight of the evidence, the question 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 Lemmon, 456 Mich 625, 627; 576 NW2d 129
(1998); People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008). A verdict may be
vacated only when it “does not find reasonable support in the evidence, but is more likely to be
attributed to causes outside the record such as passion, prejudice, sympathy, or some extraneous
influence.” People v DeLisle, 202 Mich App 658, 661; 509 NW2d 885 (1993) (citation omitted).
Absent compelling circumstances, the credibility of witnesses is for the jury to determine. See
Lemmon, 456 Mich at 642-643.


                                                -3-
        As already discussed, the evidence supports that the victim was physically unable to
communicate an unwillingness to act and thus was physically helpless at the time of the
penetration. Considering the victim’s testimony, the evidence does not preponderate so heavily
against the jury’s verdict that it would be a miscarriage of justice to allow the verdict to stand.
See id. at 627. Tomalia’s great-weight argument essentially consists of an attack on the
sufficiency of the evidence. However, it was up to the jury to assess the weight and reliability of
the evidence. Id. at 643-644. Because the jury’s verdict is not against the great weight of the
evidence, we conclude that Tomalia has failed to establish plain error affecting his substantial
rights.

                               C. EVIDENTIARY CHALLENGE

        Tomalia argues that he is entitled to a new trial because the trial court abused its
discretion by admitting the PPO petition into evidence at trial.2 However, this argument was
waived by defense counsel when he indicated that he had “[n]o objection” to the PPO petition
being admitted into evidence. See People v Kowalski, 489 Mich 488, 503; 803 NW2d 200
(2011) (“When defense counsel clearly expresses satisfaction with a trial court’s decision,
counsel’s action will be deemed to constitute a waiver.”). See also People v Buie, 491 Mich 294,
316-317; 817 NW2d 33 (2012) (holding that defense counsel’s statement that she would “leave
that to the court’s discretion” waived any arguments relating to the defendant’s right of
confrontation). Tomalia is therefore not entitled to relief in relation to this argument. See
People v Carter, 462 Mich 206, 216; 612 NW2d 144 (2000) (holding that waiver extinguishes
the right to appeal an alleged error).

        Even so, we have considered the argument under plain-error analysis and conclude that
the evidence was relevant to the victim’s credibility. Evidence that has a bearing on the
credibility of a witness is generally relevant. People v King, 297 Mich App 465, 476-477; 824
NW2d 258 (2012). Accordingly, because the evidence was not merely marginally probative, the
risk of unfair prejudice did not substantially outweigh its probative value. People v Crawford,
458 Mich 376, 397-398; 582 NW2d 785 (1998). Thus, Tomalia cannot establish plain error.
Furthermore, Tomalia cannot establish that admission of the PPO petition into evidence affected
his substantial rights. Defense counsel used the PPO petition on cross-examination to impeach
the victim because statements in the petition were inconsistent with her trial testimony.
Consequently, the PPO petition was used by the defense to undercut the victim’s credibility.
Thus, even if the argument was forfeited—as opposed to waived—Tomalia would not be able to
establish that his substantial rights were affected with respect to this evidence. See Carines, 460
Mich at 763.D. GUILTY PLEA



2
  Although Tomalia argues that the trial court also admitted the order of personal protection into
evidence, that argument is not supported by the record. Further, Tomalia argues that the trial
court’s decision to admit the PPO petition violated his right to due process and a fair trial.
However, because Tomalia has fully abandoned the constitutional argument on appeal, we need
not address the argument. See Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834
(1999).


                                                -4-
        Tomalia argues that the trial court improperly refused to accept a plea of guilt before trial.
Generally, an issue is preserved for appellate review when it is raised before, addressed, and
decided by a trial court. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). Tomalia did not argue below that the trial court lacked discretion to reject his
guilty plea. Thus, the issue is not preserved, and we review for plain error affecting substantial
rights. See Carines, 460 Mich at 763.

        “A defendant pleading guilty must enter an understanding, voluntary, and accurate plea.”
People v Brown, 492 Mich 684, 688-689; 822 NW2d 208 (2012); see also MCR 6.302(A). For a
guilty plea to be accurate, the trial court must ask the defendant to describe sufficient facts to
support a finding of guilt. People v Fonville, 291 Mich App 363, 377; 804 NW2d 878 (2011);
see also MCR 6.302(D)(1).

        Before trial, the prosecutor offered Tomalia a plea agreement, whereby the CSC-III
charge would be dismissed if Tomalia pleaded guilty to assault with intent to commit sexual
penetration, MCL 750.520g(1). Tomalia expressed interest in accepting the offer. Because
Tomalia claimed to remember what occurred on the night of the assault, defense counsel
informed Tomalia on the record that he would have to place a factual basis on the record as to
why he was guilty.3 Tomalia stated on the record that he would be lying if he admitted to
sexually penetrating the victim. The trial court responded that it did not want Tomalia to do that,
and Tomalia responded “I can’t do that.” Defense counsel informed Tomalia that the guidelines
minimum sentence range would be 5 to 23 months’ imprisonment under the plea agreement.
Defense counsel further estimated that defendant’s minimum sentencing guidelines range for
CSC-III would be 51 to 85 months’ imprisonment. In response, Tomalia said, “I’m just going to
accept your offer and plead guilty to it.” The trial court asked Tomalia he was sure, and Tomalia
said “[y]eah.” When the trial court asked if Tomalia was going to plead guilty because he was
guilty, Tomalia stated that he was not comfortable saying he did something that he did not do.
However, Tomalia was also not comfortable with putting his life “in somebody else’s hands” and
taking the risk of going to prison for “many years” for a crime that he did not commit. Based on
this, Tomalia stated that he would rather plead guilty. The trial court indicated that the court
could not accept the plea because Tomalia told the trial court under oath that he did not commit a
crime with respect to the victim. Thus, the plea could not have complied with MCR 6.302(D)(1)
because Tomalia was not able to provide sufficient facts to support a finding of guilt.
Consequently, we conclude that the trial court did not plainly error.

         We affirm.



                                                              /s/ Thomas C. Cameron
                                                              /s/ Douglas B. Shapiro
                                                              /s/ Brock A. Swartzle



3
    Defendant has not argued that he should have been permitted to enter a no contest plea.


                                                 -5-
