People of Michigan v. David Lamont Croskey
327724
| Mich. Ct. App. | Oct 18, 2016Background
- Defendant David Croskey was convicted by a jury of three counts of first-degree criminal sexual conduct (CSC-I) and one count of assault by strangulation arising from a sexual assault on October 7, 2014.
- At trial Croskey conceded sexual contact but argued the acts were consensual; the victim testified to being struck, choked, dragged to a garage, and sexually penetrated three times.
- Evidence included a forensic nurse’s examination (noting bruising and lacerations), testimony from a K-9 deputy about tracking, and the victim’s hospital/forensic-kit processing.
- Croskey was sentenced as a fourth-habitual offender to concurrent lengthy terms (50–75 years on CSC-I; 25–37.5 years on strangulation).
- On appeal the court affirmed convictions but remanded for further sentencing proceedings under Lockridge because several offense-variable (OV) scores relied on judicial factfinding that increased the guideline floor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy (three CSC-I counts) | Prosecution: separate penetrations support separate CSC-I convictions. | Croskey: multiple punishments impermissibly punish the same personal injury (mental anguish). | Affirmed: three penetrations plus physical injuries (bruises, lacerations, blows to face) support separate convictions; no double jeopardy violation. |
| Admissibility of forensic nurse testimony (strangulation mechanics) | Prosecution: nurse was qualified by training, certification, and experience. | Croskey: nurse lacked forensic-pathology/medicine education to opine on strangulation mechanics; testimony improperly suggested strangulation. | Affirmed: nurse’s training and certifications made her qualified; she did not offer an impermissible ultimate finding. |
| Admissibility of K‑9 testimony | Prosecution: deputy testified to his observations and the dog’s behavior (non‑expert factual testimony). | Croskey: prosecutor failed to lay foundation/qualify officer as K‑9 expert. | Affirmed: deputy testified as fact witness about observations, not as an MRE 702 expert; any error harmless. |
| Sufficiency — assault by strangulation | Prosecution: victim’s testimony that defendant choked her, impeded breathing, caused blackout/fear supports conviction. | Croskey: no evidence of loss of consciousness or impeded breathing; verdict rested on challenged expert. | Affirmed: victim’s testimony that she could not breathe, lost sight, thought she would die sufficed to show intentional impediment of breathing. |
| Jury instructions (tracking dog wording & order of instructions) | Prosecution: instructions fairly presented issues; parties accepted charge at trial. | Croskey: transcript omitted word "not" (could mislead), and instruction order could conflate mental-anguish with strangulation. | Affirmed: any transcription or minor omission cured by context; counsel accepted instructions; no prejudice shown. |
| OV scoring and judicial fact‑finding (OVs 3,7,10,19 and Lockridge issue) | Prosecution: facts supported OV scoring; some facts were admitted or established at trial. | Croskey: several OVs were based on facts neither admitted nor necessarily found by jury, so they impermissibly increased guideline floor. | Mixed: factual scoring supported OVs on the record, but because OVs 4/7/10 (and arguably 19) involved judicial factfinding that raised the mandatory minimum, court remanded under Lockridge/Crosby to determine if resentencing is required. |
Key Cases Cited
- People v Lockridge, 498 Mich 358 (remedy for guidelines after Apprendi/Alleyne; advisory guidelines required)
- People v Hardy, 494 Mich 430 (OV 7 — conduct intended to substantially increase victim fear)
- People v Carines, 460 Mich 750 (plain-error standard for unpreserved claims)
- People v Hill, 489 Mich 881 (officer testimony about K‑9 need not be qualified under MRE 702 when offered as factual observation)
- People v Lopez, 305 Mich App 686 (trial court need not separately score and sentence concurrent lower‑class convictions when properly scoring highest offense)
- People v Martinez, 190 Mich App 442 (single injury can support multiple CSC convictions where multiple penetrations occurred)
- United States v Crosby, 397 F.3d 103 (Crosby remand procedure for sentencing reconsideration)