            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 12, 2019
               Plaintiff-Appellee,

v                                                                    No. 339711
                                                                     Barry Circuit Court
JAMES LEE WALLER,                                                    LC No. 2017-000192-FC

               Defendant-Appellant.


Before: METER, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

        Defendant, James Lee Waller, appeals as of right from his convictions of four counts of
first-degree criminal sexual conduct. MCL 750.520b(1). We affirm.

                                       I. BACKGROUND

        This case concerns defendant’s repeated sexual abuse of his biological nieces, BD and
TD. The victims are twins and have cognitive impairments. They began living with defendant
in his home when they were 13 years old. The home had only one bedroom, which the victims
shared with defendant.

        BD testified that defendant began sexually abusing her when she was 14 years old.
According to BD, defendant told her that he would give her money to touch his penis or perform
oral sex. DB stated that defendant would offer to give her a backrub, but would touch BD’s
breasts, buttocks, and genitalia both over and under her clothes. According to BD, these
incidents occurred two or three times per week—or whenever defendant was intoxicated—until
she turned 17 years old. BD also testified that defendant performed cunnilingus on her, put his
finger inside her vagina, initiated penile-vaginal sex with her on multiple occasions, and initiated
penile-anal sex with her on four or five occasions. Finally, BD testified that she observed
defendant sexually abusing TD.

       For her part, TD testified that defendant began sexually abusing her when she was 13
years old. Defendant made her get on top of him, and he initiated penile-vaginal sex with her
while he touched and spread her buttocks. According to TD, defendant also touched her breasts,
buttocks, and genitalia and penetrated her vagina with his finger under the pretense of a backrub.
TD testified that defendant would abuse her “[m]aybe twice a week” until she turned 17 years
old. The prosecutor also presented testimony at trial that defendant made the victims watch
pornographic videos with him.

        The victims each testified that defendant told them that they would lose social
privileges—such as going to youth group, having friends over, or visiting with their neighbors—
if they did not engage in sexual acts with him. BD testified that defendant told her that he would
go to jail if she did not participate in the sexual acts and that she did not love him if she did not
comply. She testified that defendant also implied that she would have to leave his home if she
did not comply. TD testified that she did not initially disclose the abuse because she felt scared
that something bad would happen to her and her sister.

       When the victims were 17 years old, however, they moved into their neighbors’ home
and disclosed the abuse.1 Ultimately, a jury found defendant guilty of four counts of first-degree
criminal sexual conduct (CSC-1), MCL 750.520b(1), seven counts of second-degree criminal
sexual conduct (CSC-II), MCL 750.520c(1); one count of third-degree criminal sexual conduct
(CSC-III), MCL 750.520d(1)(d); and two counts of soliciting a child for an immoral purpose,
MCL 750.145a. Defendant’s sentencing-guidelines range recommended a minimum prison
sentence between 135 and 225 months for his CSC-I convictions. See MCL 777.62. The trial
court departed upward from the sentencing guidelines, imposing concurrent prison terms of 480
to 720 months for each of defendant’s CSC-I convictions. The trial court sentenced defendant to
concurrent prison terms of 120 to 180 months for each CSC-II and CSC-III conviction and 18 to
48 months for each soliciting conviction. On appeal, defendant challenges only his sentence for
the CSC-I convictions.

                                          II. ANALYSIS

       Defendant argues that the trial court abused its discretion and violated the principle of
proportionality when it departed upward from the sentencing-guidelines range. We review for
reasonableness the trial court’s upward departure from the sentencing guidelines. People v
Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). “[T]he standard of review to be applied
by appellate courts reviewing a sentence for reasonableness is abuse of discretion.” People v
Steanhouse, 500 Mich 453, 472; 902 NW2d 327 (2017). A trial court abuses its discretion when
it chooses an outcome falling outside the range of principled outcomes. People v Babcock, 469
Mich 247, 269; 666 NW2d 231 (2003).

       A sentence is reasonable when it is proportionate to the seriousness of the circumstances
surrounding the offense and the offender. Steanhouse, 500 Mich at 471. See also People v
Milbourn, 435 Mich 630, 651; 461 NW2d 1 (1990). The purpose of the proportionality
requirement is to combat unjustified disparity in sentencing, thereby ensuring that “similar
offense and offender characteristics receive substantially similar sentences.” People v Dixon-


1
 Shortly after the victims moved in with their neighbors, the neighbors obtained a guardianship
over them. Eventually, the neighbors adopted the victims.


                                                -2-
Bey, 321 Mich App 490, 524; 909 NW2d 458 (2017) (internal citation and quotation marks
omitted). Under our system of sentencing, this principle of proportionality is first entrusted to
the Legislature, which is tasked with “grading the seriousness and harmfulness of a given crime
and given offender within the legislatively authorized range of punishments.” Id. at 524 (internal
citation and quotation marks omitted). Although the Legislature’s guidelines are advisory, they
remain a highly relevant consideration in a trial court’s exercise of its sentencing discretion.
Steanhouse, 500 Mich at 469-470, 474-475. Indeed, a sentence within the Legislature’s
guidelines range is presumptively proportionate. People v Powell, 278 Mich App 318, 323; 750
NW2d 607 (2008). Thus, when sentencing an individual defendant, the trial court must first
score the sentencing guidelines and take them into account. Lockridge, 498 Mich at 391. If the
trial court chooses to depart from the sentencing guidelines, it must justify the departure on the
record by explaining “why the sentence imposed is more proportionate to the offense and the
offender than a different sentence would have been.” Dixon-Bey, 321 Mich App at 525 (internal
citation and quotation marks omitted). Relevant factors for determining whether a departure
sentence is more proportionate than a sentence within the guidelines range “include (1) whether
the guidelines accurately reflect the seriousness of the crime; (2) factors not considered by the
guidelines; and (3) factors considered by the guidelines but given inadequate weight.” Id.
(internal citations omitted).

        In this case, the trial court aptly considered various factors that were not adequately
reflected in the guidelines. At the outset, the trial court noted, “This [was] one of the most
disturbing cases [it’s] ever had.” The trial court cited the biological relationship between the
victims and defendant and their dependence on defendant for their care as factors that weighed in
favor of departing from the sentencing guidelines. See Milbourn, 435 Mich at 660-661. The
trial court then found that several scoring variables did not adequately reflect defendant’s
conduct.

        PRV 7 accounts for the defendant’s subsequent or concurrent felony convictions. MCL
777.57. Twenty points is appropriate under this variable when the “offender has 2 or more
subsequent or concurrent convictions.” MCL 777.57(1)(a). The trial court scored this variable
at twenty points, but opined that the score did not adequately account for the substantial number
of sexual abuse incidents in this case—approximately four or five incidents per week for several
years. OV 4 addresses psychological injury to the victim. The trial court scored this variable at
its maximum, but stated that the score did not adequately reflect that there were two victims in
this case who were cognitively impaired and who suffered years of sexual abuse. The trial court
also expressed its belief that OV 4 did not take into account the fact that BD observed defendant
sexually abusing her sister. MCL 777.34.

        OV 10 accounts for the defendant’s exploitation of a vulnerable victim. MCL 777.40.
Again, the trial court scored this variable at its maximum, but found that the score did not
adequately reflect the extreme vulnerability of these victims, who were cognitively impaired and
reliant on defendant for their care. OV 11 addresses criminal sexual penetration. MCL 777.41.
Fifty points is appropriate under this variable when “[t]wo or more criminal sexual penetrations
occurred.” MCL 777.41(1)(a). The trial court scored this variable at 50 points, but found that
the scoring of this variable did not adequately account for the substantial number of sexual abuse
incidents in this case.


                                               -3-
        Defendant argues that the trial court did not properly consider his elderly age and his
status as a disabled veteran. We disagree. The trial court did consider defendant’s age and
veteran status when sentencing him, but found that these factors did not warrant any leniency. In
fact, the trial court addressed defendant directly and stated, “I find it disgusting that you [want
to] hide behind your military career.” We agree with the trial court that these factors are not
mitigating. If anything, defendant’s status as the elder guardian for these victims only
exacerbated their trauma.

        Defendant argues that the trial court did not articulate reasons for the extent of the
upward departure from the sentencing guidelines range. Again, we disagree. As noted
previously, the trial court articulated several considerations not adequately addressed by the
sentencing guidelines. Perhaps most significantly, the trial court recognized that many
sentencing variables account for the defendant’s pattern of criminality. Yet, under these
variables, the scale only extends to two episodes of impropriety. Here, the victims reported
hundreds of episodes of sexual misconduct. Additionally, while several variables account for the
harm caused to a vulnerable victim, here, defendant preyed on his cognitively impaired kin with
whom he shared a bedroom for years, leaving them with no reasonable means to avoid the abuse.
Overall, the trial court opined that defendant deserved at least twice the overall score calculated
under the guidelines. The sentence it imposed was consistent with this opinion. Simply put, the
trial court’s explanation for its departure sentence is the exact type of well-reasoned analysis
envisioned by the principle of proportionality.

        We recognize that defendant’s sentences are a substantial departure from the sentencing
guidelines. Nonetheless, we cannot conclude that this departure was unjustified. We agree with
the trial court that the sentencing guidelines did not reflect the seriousness of defendant’s
conduct. The trial court adequately explained the extent of its departure on the record and its
sentence, though lengthy, captures the severity of the circumstances surrounding the offender
and his offenses.

       Affirmed.



                                                            /s/ Patrick M. Meter
                                                            /s/ David H. Sawyer
                                                            /s/ Thomas C. Cameron




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