People of Michigan v. Derek Joseph Bailey
333073
| Mich. Ct. App. | Jul 25, 2017Background
- Defendant Derek Joseph Bailey was convicted of two counts of second-degree criminal sexual conduct based on assaults on his stepdaughter PT; convicted and sentenced to concurrent 120–180 month terms.
- PT testified the abuse began when she was about 10–11 and included sexual touching, manual stimulation, oral penetration, and being forced to watch pornography.
- DT, another stepdaughter (victim in a separate docket), testified defendant used social media and a laptop to facilitate sexual activity and to broadcast sexual acts.
- Law enforcement seized multiple electronic devices; one iPad mini was reset (wiped) after defendant learned of an arrest warrant.
- At sentencing, the trial court scored offense variables, upwardly departed from the guidelines (guidelines range 36–71 months), and cited defendant’s lack of remorse, lack of candor, and predatory nature; the court imposed a much higher sentence within statutory limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rape‑shield exclusion of cross‑examination of DT | Prosecution maintained exclusion was proper under MCL 750.520j and irrelevant to PT charge | Defendant argued exclusion violated due process and confrontation rights | Moot — exclusion did not affect PT‑based conviction and no remedy was available; issue not reviewed |
| Prosecutorial misconduct (vouching/attacking credibility) | Prosecutor’s comments were responsive to defense attacks and based on evidence | Defendant argued prosecutor improperly vouched and attacked his credibility | No plain error; remarks were responsive to defense closing and jury instructions cured any prejudice |
| Scoring of OVs (OV 9, OV 10, OV 14/OV 19) | State supported scores: OV 9 (danger to multiple victims), OV 10 (predatory conduct), OV 19 (interference with administration) | Defendant challenged OV 9 (should not count DT), argued OV 10 and OV 14 mis‑scored | OV 9 was erroneously scored for placing two victims in danger (rescored), but OV 10 and OV 19 were properly scored (predatory conduct and evidence of device wiping). OV 9 error harmless because it did not change guidelines range |
| Upward departure from sentencing guidelines | Prosecution urged departure based on lack of remorse, predatory conduct, danger to others, and conduct not adequately reflected in guidelines | Defendant argued departure unreasonable and excessive, citing no criminal history | Departure affirmed as reasonable under proportionality principles; trial court permissibly relied on lack of candor, remorse, predatory behavior, and related conviction (separate docket) to justify extent of departure |
Key Cases Cited
- Madson v. Jaso, 317 Mich. App. 52 (2016) (mootness and remedy principles)
- People v. Baugh, 249 Mich. App. 125 (2002) (moot issues not reviewed)
- People v. Thomas, 260 Mich. App. 450 (2004) (plain‑error review of unpreserved prosecutorial misconduct)
- People v. Steanhouse, 313 Mich. App. 1 (2015) (limits on prosecutorial vouching; review of prosecutorial misconduct)
- People v. Unger, 278 Mich. App. 210 (2008) (jurors presumed to follow instructions)
- People v. Witherspoon, 257 Mich. App. 329 (2003) (OV 10 predatory conduct can include timing/location facilitating assault)
- People v. Smith, 488 Mich. 193 (2010) (OV 19 may include post‑offense conduct)
- People v. Ratkov (After Remand), 201 Mich. App. 123 (1993) (unchallenged PSIR statements presumed accurate)
- People v. Francisco, 474 Mich. 82 (2006) (harmlessness where rescoring does not change guidelines range)
- People v. Milbourn, 435 Mich. 630 (1990) (principle of proportionality governs sentence reasonableness)
- People v. Lane, 308 Mich. App. 38 (2014) (abuse of discretion in sentencing standard)
- People v. Houston, 448 Mich. 312 (1995) (lack of remorse may justify upward departure)