People of Michigan v. Billie Ernest Fulkerson
329887
| Mich. Ct. App. | Dec 26, 2017Background
- Defendant Billie Ernest Fulkerson was convicted by a jury of three counts of first-degree criminal sexual conduct (CSC-I) and one count of second-degree criminal sexual conduct (CSC-II) for abuse of his granddaughter that began when she was ~5–6 and continued; she was 15 at trial.
- The CSC-I counts alleged digital-vaginal penetration, penile-vaginal penetration, and oral-vaginal penetration; CSC-II alleged genital touching.
- The victim testified defendant attempted penile-vaginal intercourse on one or two occasions, said it hurt and was uncomfortable, but answered “Did it ever go in?” in the negative.
- Defendant argued (1) insufficient evidence for the penile-penetration CSC-I count and ineffective assistance for counsel’s failure to move for a directed verdict on that count; (2) ineffective assistance for trial counsel’s decision to try the case without an expert on child-forensic interviewing; (3) trial court error in denying disclosure/in‑camera review of privileged CPS/therapy records under Stanaway; and (4) sentencing errors in scoring OV 7 and OV 11.
- The Court affirmed the convictions, rejected the ineffectiveness and discovery claims, but found errors in OV 7 and OV 11 scoring, vacated sentences, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for penile‑vaginal penetration (CSC‑I) | Victim’s testimony that it hurt supports a reasonable inference of penetration | Victim’s denial that defendant’s penis “went in” defeats penetration element | Evidence sufficient; jury could infer at least slight intrusion; conviction affirmed |
| Ineffective assistance — failure to move for directed verdict on penile‑penetration count | No prejudice because evidence supported conviction; motion would fail | Counsel ineffective for not moving for directed verdict on that count | Counsel not ineffective; directed verdict would have been futile |
| Ineffective assistance — failure to call expert on child‑forensic interviewing | Expert unnecessary given counsel’s experience and ability to cross‑examine; counsel investigated expert | Counsel should have presented expert; decision without expert unreasonable | Not deficient: counsel investigated, consulted expert, weighed defendant’s declining health and strategic tradeoffs; Ginther hearing supports trial court’s finding |
| Stanaway disclosure of CPS/therapy records | Records might contain impeachment/exculpatory material justifying in‑camera review | Request was a fishing expedition lacking articulable facts showing reasonable probability records contain material defense information | Trial court did not abuse discretion; defendant failed to meet Stanaway threshold |
| Sentencing — OV 7 (sadism) and OV 11 scoring | Court scored OV 7 and OV 11 high leading to OV level VI and guideline range supporting imposed minima | Scores incorrect; OV 11 should be 0; OV 7 improperly scored for sadism | OV 11 agreed to be incorrect; OV 7 scoring for sadism erroneous because evidence showed aftereffects, not sadistic conduct during offense; deducting points lowers OV level and guideline range; sentences vacated and remanded for resentencing (court may reexamine OV 7 on other statutory bases) |
Key Cases Cited
- People v. Lueth, 253 Mich. App. 670 (view sufficiency review standard)
- People v. Reese, 491 Mich. 127 (standards for reviewing sufficiency of the evidence)
- People v. Carines, 460 Mich. 750 (circumstantial evidence and inferences suffice)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑part test)
- People v. Ginther, 390 Mich. 436 (procedures for ineffective‑assistance evidentiary hearing)
- People v. Stanaway, 446 Mich. 643 (test for disclosure/in‑camera review of privileged child welfare/therapy records)
- People v. Thompson, 314 Mich. App. 703 (OV 7 scoring limited to conduct during the sentencing offense)
- People v. Francisco, 474 Mich. 82 (remand for resentencing when guideline range altered and departure cannot be evaluated)
- People v. McChester, 310 Mich. App. 354 (standard of review for sentencing guideline factfinding)