            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 9, 2019
               Plaintiff-Appellee,

v                                                                   No. 340912
                                                                    Wayne Circuit Court
TONY MELVIN FERREE,                                                 LC No. 17-003515-01-FC

               Defendant-Appellant.


Before: TUKEL, P.J., and K. F. KELLY and M. J. KELLY, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of two counts of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(2)(b), and second-degree criminal sexual
conduct (CSC-II), MCL 750.520c(2)(b). Defendant was sentenced to 25 to 50 years’
imprisonment for each CSC-I conviction, and 10 to 15 years’ imprisonment for the CSC-II
conviction. We affirm.

                                        I. BASIC FACTS

        This case arises out of defendant’s sexual assault of the victim when she was between
ages two and eight. The victim, who was 11 years old at the time of trial, testified to a number of
instances that occurred in her home while her mother was at work. She indicated that the abuse
occurred multiple times a week until defendant moved out of state. The trial court judge found
the victim’s testimony credible and corroborated by other evidence, including evidence that the
victim was frequently treated for genital discomfort as a child. However, while the trial court
found the victim’s testimony credible, it nevertheless concluded that some of the charged
offenses had not been proven beyond a reasonable doubt.

                                         II. ANALYSIS

       On appeal, defendant argues that the trial court rendered inconsistent verdicts.        We
disagree.




                                                -1-
        “This Court reviews de novo questions regarding inconsistent verdicts, which are
constitutional issues.” People v Russell, 297 Mich App 707, 722; 825 NW2d 623 (2012).

        “[A] trial judge sitting as the trier of fact may not enter an inconsistent verdict. While
juries are not held to rules of logic, or required to explain their decisions, a judge sitting without
a jury is not afforded the same lenience.” People v Ellis, 468 Mich 25, 26; 658 NW2d 142
(2003) (quotation marks and citation omitted). A verdict is inconsistent when the trial court’s
factual findings are inconsistent, “and cannot be rationally reconciled” with the verdict. Id. at
27.

        Defendant argues that the trial court found the victim to be “very credible” concerning
her testimony regarding counts 1, 2, and 3, but did not believe that there was sufficient testimony
to find him guilty of counts 4 and 5.1 Regarding count 1 (CSC-I), the trial court stated that
defendant “did put his penis into [the victim]’s mouth by the defendant’s penis. And then he did
ejaculate.” Regarding count 2 (CSC-I), the trial court stated that it did “believe that there was,
that [the] People have proven beyond a reasonable doubt that [defendant] touched [the victim]’s
genital opening with his mouth or tongue.” Regarding count 3 (CSC-II), the trial judge found
that “defendant did intentionally permit [the victim] to touch his genital or the clothing area. She
said that he had her put her hands onto his penis. And I think that was for sexual purposes. And
could reasonably be construed as having been done for sexual purposes.” However, regarding
counts 4 and 5 (CSC-II), the trial judge said, “I don’t know that there – you know, I know that
we had the, you had the testimony with regard to the penis into the mouth and also the opening
with regard to counts 1 and 2 and count 3. But I don’t think there’s a [sic] sufficient testimony to
find him guilty of counts 4 and 5.” The trial judge continued, “I don’t feel that the People have
proven beyond a reasonable doubt count 4 and count 5, criminal sexual conduct in the second
degree with regard to other acts.”

        Defendant contends on appeal that the testimony came from the same source – the victim
– and “there was no rational distinction between her descriptions of all of those acts occurring
when two years old and later, such that the Trial Court’s conclusion about insufficient proofs can
be ‘rationally reconciled.’ ” “In other words, there was credible proof, or there was not credible
proof.”

       However, the trial court did not find the victim’s testimony incredible as it relates to
counts 4 and 5, but rather, the court concluded that the prosecution did not prove those counts
beyond a reasonable doubt. While the trial court found the victim’s testimony to be credible, it
did not find that the testimony supported those two CSC-II charges. The verdicts are not
considered inconsistent merely because the trial court acquitted defendant of two charges that the
court determined were not supported beyond a reasonable doubt by the evidence.

        In Ellis, 468 Mich at 27, our Supreme Court concluded that the trial court’s factual
findings were inconsistent with the acquittals, and could not be rationally reconciled with the
verdicts. However, in the present case, the trial court only made factual findings for counts 1, 2,


1
    Counts 1 and 2 relate to CSC-I, and counts 3, 4, and 5 relate to CSC-II.


                                                  -2-
and 3. The trial court made no specific factual findings for counts 4 and 5, and only concluded
that there was insufficient evidence to prove those counts beyond a reasonable doubt. Because
there are no specific factual findings for counts 4 and 5, the verdicts cannot be deemed
inconsistent merely because the trial court concluded that the prosecution did not meet its burden
of proof as to those two counts. Id.

        Additionally, defendant claims that “[i]t is not rationally credible that [the victim] would
have such memories from when she was two years old.” Defendant’s argument is essentially an
attack on the victim’s credibility. However, the trial court found the victim to be “very credible”
and “very believable.” This Court defers to the trial court’s credibility determinations. MCR
2.613(C); See People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008) (“This Court
will not interfere with the trier of fact’s role of determining the weight of the evidence or the
credibility of witnesses.”). The trial court’s language is clear that it believed the victim. Its
verdict was not inconsistent.

       Affirmed.

                                                             /s/ Jonathan Tukel
                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Michael J. Kelly




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