PEOPLE v BAILEY
Docket No. 318479
310 MICH APP 703
June 2, 2015
310 Mich. App. 703
Submitted January 9, 2015, at Lansing. Leave to appeal denied 498 Mich 896.
Ryan L. Bailey was charged in the Grand Traverse Circuit Court with four counts of first-degree criminal sexual conduct (CSC-I) after engaging in the digital-vaginal penetration of three minors: BS, who was his niece, and AB and MB, who were his grand-nieces. Count I of the information alleged a violation of
The Court of Appeals held:
1. Defendant‘s convictions were supported by sufficient evidence. To determine whether the prosecutor presented sufficient evidence to sustain a conviction, a court must review the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt. The prosecution is not obligated to disprove every reasonable theory consistent with innocence to discharge its responsibility. Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime. While defendant correctly noted that there was no forensic evidence corroborating the victims’ testimony, a complainant‘s testimony regarding a defendant‘s commission of sexual acts is sufficient evidence to support a conviction of CSC-I.
2. Defendant argued that the felony information deprived him of due process by failing to give him adequate notice of the charges in Counts II to IV because those counts alleged sexual misconduct over a period of eight years.
3. Defendant also argued that the information deprived him of due process because Counts II to IV contained nearly identical language accusing him of committing sexual misconduct sometime over the course of eight years.
4. Defendant argued that the joinder of charges deprived him of due process. MCR 6.120(B)(1) provides that joinder of related offenses is appropriate when the offenses are based on the same conduct or transaction, a series of connected acts, or a series of acts constituting parts of a single scheme or plan. Defendant failed to demonstrate that the trial court abused its discretion by joining his offenses in one trial.
5. Defendant argued that the trial court erred by failing to instruct the jury that it needed to convict him on the basis of unanimous verdicts and reach a consensus about the facts supporting each verdict. A specific unanimity instruction, however, is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense. If materially identical evidence is presented with respect to each act and there is no juror confusion, a general unanimity instruction will suffice. There was no risk in this case that the jurors would have been confused regarding their obligation to unanimously find that defendant sexually penetrated each victim. Each victim testified that defendant abused her in the same manner. Moreover, the evidence offered to support each alleged act of penetration was materially identical, i.e., the victim‘s equivocal testimony of penetration occurring in the same house over an unspecified period. Accordingly, because neither party presented materially distinct proofs regarding any of the alleged acts, the factual basis for the specific unanimity instruction was nonexistent.
6. The trial court did not err under
7. Defendant was not entitled to relief on his claims of prosecutorial misconduct. He argued that the prosecutor denied him a fair trial by (1) asking improper questions of prospective jurors during the voir dire, including why victims might not report sexual abuse, (2) referring to their answers during closing arguments, (3) stating that childhood should be carefree, (4) asking the victims how they felt while testifying at trial, (5) asking the victims how they had been affected by defendant‘s abuse, (6) asking the jurors to consider defendant‘s uncharged acts of sexual misconduct, (7) arguing that the victims’ testimony could not have been made up, and (8) arguing that in order to find defendant not guilty, the jury would have to find that the victims were mistaken or lying. An appellate court cannot find error requiring reversal when a curative instruction could have alleviated any prejudicial effect, and defendant offered no explanation for why a curative instruction would not have alleviated any prejudicial effects of the alleged instances of misconduct. In any event, prosecutors are generally free to argue the evidence and all reasonable inferences from the evidence as they relate to their theory of the case. With respect to the prosecutor‘s arguing that sexual assault victims might not report abuse right away, juries are permitted to view evidence in light of their common knowledge or experience. Defendant offered no authority suggesting that the trial court‘s admission of irrelevant evidence constituted prosecutorial misconduct, and asking witnesses about how they are feeling while testifying can be relevant to their credibility. Although the prosecutor arguably invoked improper sympathy for the victims by stating that childhood should be carefree and arguably misstated the law by telling the jury that it would have to find that the victims were lying or mistaken to acquit defendant, defendant failed to explain how any of the alleged errors resulted in his conviction despite his actual innocence or seriously affected the fairness, integrity, or public reputation of the proceedings independently of his innocence.
8. The trial court did not have the discretion to impose a consecutive sentence. Concurrent sentencing is the norm in Michigan, and a court may impose a consecutive sentence only if specifically authorized by statute.
9. Defendant argued that his trial counsel gave ineffective assistance by failing to request that defendant‘s charges be tried separately, failing to object to other-acts evidence under MRE 404(b), failing to request a unanimity instruction, and failing to argue that the trial court could not impose a consecutive sentence. Defendant failed to show that the first three of these objections or requests would have been successful, and failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel. Nor was there a reasonable probability that the outcome of defendant‘s trial would have been different had his trial counsel acted at trial in accordance with what are now defendant‘s wishes on appeal. While defense counsel‘s failure to challenge the consecutive sentence likely constituted ineffective assistance, it was not necessary to address trial counsel‘s performance in that regard given the remand for resentencing.
Convictions affirmed; consecutive sentence for conviction on Count I vacated and case remanded for resentencing for that conviction.
RONAYNE KRAUSE, J., concurring in part and dissenting in part, concurred fully with the majority except for its analysis of the consecutive sentence imposed for Count I, concluding that the majority had misconstrued caselaw and engaged in a limited analysis of the facts. By equating the term “same transaction” under
1. CRIMINAL SEXUAL CONDUCT - EVIDENCE - SUFFICIENCY - UNCORROBORATED TESTIMONY OF VICTIM.
A complainant‘s testimony regarding a defendant‘s commission of sexual acts is sufficient evidence to support a conviction of first-degree criminal sexual conduct (
2. CRIMINAL LAW - INFORMATION - SPECIFICATION OF TIME OF OFFENSE - SEXUAL OFFENSES - CHILD VICTIMS.
3. CRIMINAL LAW - JURIES - UNANIMOUS VERDICTS - INSTRUCTIONS.
A specific instruction requiring unanimity of verdicts is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense; if materially identical evidence is presented with respect to each act and there is no juror confusion, a general unanimity instruction will suffice.
4. EVIDENCE - OTHER ACTS - PROPENSITY EVIDENCE - ACTS AGAINST CHILDREN - ADMISSIBILITY.
Propensity evidence of other acts offered under
5. SENTENCING - CONSECUTIVE SENTENCES - FIRST-DEGREE CRIMINAL SEXUAL CONDUCT - SAME TRANSACTION.
Before: SHAPIRO, P.J., and GLEICHER and RONAYNE KRAUSE, JJ.
SHAPIRO, P.J. Defendant was charged with engaging in digital-vaginal sexual penetration of three minors: MB, AB, and BS. Defendant, who was born in 1982, was BS‘s uncle and MB and AB‘s great-uncle. He was charged with four counts of first-degree criminal sexual conduct (CSC-I),
AB and MB were sisters, and defendant resided in their home for several years. MB, born in 1996, testified that defendant repeatedly engaged in digital-vaginal penetration of her as far back as she could remember, but that her first specific recollection of defendant digitally penetrating her occurred when she was seven years old. She testified that defendant continued this conduct until he moved out of the home in November 2008. As to MB, defendant was charged with, and convicted of, two counts of CSC-I. In Count I, but not Count II, defendant was charged with violating
AB, born in 1994, testified that the first incident of digital-vaginal penetration occurred in the summer of 2003 and continued on a daily basis until she left for boarding school in the summer of 2008. As to AB, defendant was charged with, and convicted of, a single count of CSC-I,
BS, born in 1994, was a first cousin once removed of AB and MB. She testified that defendant digitally penetrated her vagina on one occasion in June 2007, during a visit. As to BS, defendant was charged with, and convicted of, a single count of CSC-I,
Defendant was convicted on all counts. As to Count I, the trial court sentenced him to 25 to 50 years’ imprisonment. For each of the other counts, the court imposed terms of 225 months to 50 years. The trial court, stating that it was exercising its authority under
I. FACTS
MB described a history of physical contact with defendant going back as far as she could remember. She said that defendant used to kiss her on her lips, neck, and stomach—both over and under her clothes. She also said she used to lie down with
AB testified that the first sexual incident with defendant occurred during the summer of 2003, while staying overnight at a relative‘s house. She said that she and defendant wound up sleeping next to each other that night, that he came over to her, and that he put his hands down her pants and into her vagina. According to AB, the assaults continued after they returned home and occurred daily until she left for boarding school in August 2008. She said it happened the same way every time but in different settings, including defendant‘s room at her house. AB said she knew what defendant was doing was wrong, but that she did not tell anyone because she was scared and did not want him to have to move out. AB said she wanted to go to boarding school to get away from defendant.
BS said that in June 2007, when she was 13 years old, she stayed overnight at AB and MB‘s house. According to BS, in the morning, as she sat on defendant‘s lap while he used a computer, defendant put his fingers inside her vaginal opening. She also said that he thereafter took nude photographs of her with her legs spread apart. BS said she did not tell anyone about what defendant had done to her because it was “embarrassing” and “there is just things that you don‘t tell someone.” She eventually told her boyfriend when she was aged 15 or 16 that she had been sexually assaulted, but did not initially identify defendant as the perpetrator.
The complainants first reported defendant‘s conduct to persons other than their boyfriends in April 2012. Each girl testified that she was unaware that defendant had been abusing the other two girls.
II. ANALYSIS
A. SUFFICIENCY OF EVIDENCE
Defendant argues that there was insufficient evidence to support his convictions. This Court reviews de novo sufficiency-of-the-evidence issues. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). “To determine whether the prosecutor has presented sufficient evidence to sustain a conviction, [appellate courts] review the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Smith-Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013) (quotation marks and citation omitted). “The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Notably, the prosecutor “is not obligated to disprove every reasonable theory consistent with innocence to discharge its responsibility; it need only convince the jury ‘in the face of whatever contradictory evidence the defendant may provide.’ ” Id., quoting People v Konrad, 449 Mich 263, 273 n 6; 536 NW2d 517 (1995). Further, ” ‘[c]ircumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.’ ” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999), quoting People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993).
[T]he question is not whether there was conflicting evidence, but rather whether there was evidence that the jury, sitting as the trier of fact, could choose to believe and, if it did so believe that evidence, that the evidence would justify convicting defendant.... If the jury chose to believe the victim‘s testimony, they would be justified in convicting defendant of four counts of criminal sexual conduct in the first degree. [People v Smith, 205 Mich App 69, 71; 517 NW2d 255 (1994).]
Defendant argues that the victims were not credible, noting the length of time each of them waited before reporting that defendant had abused them and the lack of detail in their testimony. However, the jury heard cross-examination and argument in this regard, and we will not “interfere with the jury‘s role” as sole judge of the facts. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992). As our Supreme Court explained in People v Palmer, 392 Mich 370, 376; 220 NW2d 393 (1974):
Juries, not appellate courts, see and hear witnesses and are in a much better position to decide the weight and credibility to be given to their testimony. Where sufficient evidence exists, which may be believed by the jury, to sustain a verdict of guilty beyond a reasonable doubt, the decision of the jury should not be disturbed by an appellate court.
Each complainant testified that defendant had penetrated her vagina with his fingers, and the jury was free to believe their testimony despite the delay in reporting defendant‘s conduct. Further, each victim offered an explanation for why they did not report defendant‘s conduct when it occurred. BS explained that it was embarrassing, MB explained that she was scared, and AB said she was terrified and did not want defendant to have to move out.
Defendant also argues that there was insufficient evidence that he unlawfully touched MB between August and November 2008, for purposes of finding him guilty of Count I, the only charge that carried a mandatory minimum sentence. However, MB testified that defendant touched her almost every day after AB went to boarding school until about two weeks before defendant moved away in November 2008. There was testimony that AB left for boarding school in late August 2008. And the jury was properly instructed about the time frame required to convict on this count. Accordingly, we reject this argument.
Finally, defendant argues that there was insufficient evidence to support his conviction under
Accordingly, defendant‘s convictions were supported by sufficient evidence.
B. DUE PROCESS
Defendant argues that reversal is warranted because he was deprived of
Defendant first argues that the felony information failed to give him adequate notice of the charges against him in Counts II to IV, because they alleged sexual misconduct over a period of eight years and because each count contained nearly identical broad allegations. “The Due Process Clause of the Fourteenth Amendment mandates that a state‘s method for charging a crime give a defendant fair notice of the charge against the defendant, to permit the defendant to adequately prepare a defense.” People v Chapo, 283 Mich App 360, 364; 770 NW2d 68 (2009). Regarding an information‘s time frame,
In People v Naugle, 152 Mich App 227, 233-234; 393 NW2d 592 (1986), this Court stated that the adequacy of an information‘s time frame for a stated offense depends on certain factors, which include “(1) the nature of the crime charged; (2) the victim‘s ability to specify a date; (3) the prosecutor‘s efforts to pinpoint a date; and (4) the prejudice to the defendant in preparing a defense.” The Court further noted that “in People v Howell, 396 Mich 16, 27 n 13; 238 NW2d 148 (1976), the Supreme Court suggested that an imprecise time allegation would be acceptable for sexual offenses involving children, given their difficulty in recalling precise dates.” Id. at 234 n 1. Ultimately, the Court held that the information at issue provided adequate notice of three instances of sexual assault, even though it only stated that the assaults occurred in 1984, because “[t]he victim was thirteen years old at the time of the alleged offenses” and “testified that the defendant had been molesting her since she was approximately eight years old,” such that it was “conceivable that specific dates would not stick out in her mind.” Id. at 235.
In this case, MB and AB were 13 years old or younger at the time of the alleged offenses, and each testified that defendant abused them numerous times over multiple years, such that specific dates would not stick out in their minds. BS was able to specify that the single assault against her occurred in June 2007. Further, to the extent defendant complains that the lack of specificity deprived him of his opportunity to present an alibi defense, the Naugle Court specifically rejected this argument on the basis that it would “give rise to an untenable tactic” in which “[a] defendant would simply have to make the assertion of alibi in order to escape
Regarding the information‘s description of the charges,
Next, defendant argues that the joinder of charges deprived him of due process. In support of his argument, however, defendant relies on this Court‘s decision in People v Daughenbaugh, 193 Mich App 506; 484 NW2d 690 (1992), and cases preceding it. Our Supreme Court has explained that the analysis in Daughenbaugh was superseded by MCR 6.120, which expressly permits the joinder of multiple offenses. People v Williams, 483 Mich 226, 238-239; 769 NW2d 605 (2009).
Moreover, MCR 6.120(B)(1) provides that joinder of related offenses is appropriate when the offenses are based on “the same conduct or transaction,” “a series of connected acts,” or “a series of acts constituting parts of a single scheme or plan.” Defendant asserts that the crimes were not of the same transaction, but does not argue that the trial court could not have properly concluded that his offenses constituted a series of connected acts or acts constituting parts of a single scheme or plan. Accordingly, defendant has failed to demonstrate that the trial court abused its discretion by joining his offenses into one trial.
Defendant also argues that the trial court erred by failing to instruct the jury that it needed to convict him on the basis of unanimous verdicts and reach a consensus about the facts supporting each verdict. No objection was raised in the trial court. See People v Kowalski, 489 Mich 488, 504-505; 803 NW2d 200 (2011). As our Supreme Court stated in People v Cooks, 446 Mich 503, 512; 521 NW2d 275 (1994), “a specific unanimity instruction is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense.” “[W]here materially identical evidence is presented with respect to each act, and there is no juror confusion, a general unanimity instruction will suffice.” Id. at 512-513. There was no risk in this case that the jurors would be confused regarding their obligation to unanimously find that defendant sexually penetrated each victim. Further, each victim testified that defendant abused her in the same manner, i.e., digital-vaginal penetration. And similarly to Cooks, “the evidence offered... to support each of the alleged acts of penetration was materially identical, i.e., the complainant‘s equivocal testimony of... penetration, occurring in the
C. EVIDENTIARY RULINGS
Defendant argues that reversal is warranted because the trial court erred by admitting other-acts evidence. Because defendant did not preserve the issue below, we review it for plain error affecting substantial rights. Carines, 460 Mich at 763-764.
Defendant first complains that the trial court improperly admitted evidence under
We do not find plain error.
Defendant also argues that if evidence of his uncharged sexual misconduct was relevant, its relevance was substantially outweighed by the danger of unfair prejudice such that it should have been excluded under MRE 403 because it was only relevant to propensity and propensity evidence may not be considered. We reject this argument for two reasons. First, the probative value of the evidence was not limited to propensity as it also defined a plan or system in the commission of the various crimes. Second, under People v Watkins, 491 Mich 450, 486-490; 818 NW2d 296 (2012), propensity evidence admitted under
D. PROSECUTORIAL MISCONDUCT
Next, defendant argues that several incidents of prosecutorial misconduct warrant reversal. This issue is also unpreserved, necessitating review for plain error affecting substantial rights. Carines, 460 Mich at 763-764.
Defendant argues that the prosecutor denied him a fair trial by (1) asking improper questions of prospective jurors during the voir dire, including why victims might not report sexual abuse, (2) referring to their answers during closing arguments, (3) stating that childhood should be carefree, (4) asking the victims how they felt while testifying at trial, (5) asking the victims how they had been affected by defendant‘s abuse, (6) asking the jurors to consider defendant‘s uncharged acts of
In any event, defendant has failed to show prosecutorial misconduct affecting his substantial rights. Prosecutors are “generally free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case.” Id. at 236. With respect to defendant‘s claim that the prosecutor argued that sexual assault victims might not report abuse right away, juries are permitted to view evidence in light of their common knowledge or experience. People v Schmidt, 196 Mich App 104, 108; 492 NW2d 509 (1992). And to the extent defendant complains that the prosecutor elicited irrelevant and prejudicial testimony from witnesses, defendant offers no authority suggesting that the trial court‘s admission of irrelevant evidence constitutes prosecutorial misconduct. Further, asking witnesses about how they are feeling while testifying can be relevant to their credibility. MRE 401; MRE 607. Although the prosecutor arguably invoked improper sympathy for the victims by stating that childhood should be carefree, and arguably misstated the law by stating that the jury would have to find that the victims were lying or mistaken to acquit defendant, defendant nevertheless fails to explain how these or the other alleged errors resulted in his conviction despite his actual innocence or how they seriously affected the fairness, integrity, or public reputation of proceedings independently of his innocence. Carines, 460 Mich at 763-764.
Accordingly, defendant is not entitled to relief on his claims of prosecutorial misconduct.
E. SENTENCING
Defendant claims that the trial court erred by ordering that his mandatory minimum sentence under Count I be served consecutively to his concurrent sentences under Counts II, III, and IV. Defendant argues that the trial court did not set forth sufficient grounds to justify a discretionary imposition of consecutive sentences. We do not reach the issue of whether the trial court abused its discretion, or whether it set forth sufficient grounds to impose a consecutive sentence, because we conclude that the trial court did not possess the discretion to impose a consecutive sentence.
“In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute.” People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012) (quotation marks and citation omitted). However,
In sum, we hold that an ongoing course of sexually abusive conduct involving episodes of assault does not in and of itself render the crimes part of the same transaction. For multiple penetrations to be considered as part of the same transaction, they must be part of a “continuous time sequence,” not merely part of a continuous course of conduct. Brown, 495 Mich at 963; Ryan, 295 Mich App at 402-403.2
In the instant case, Count I alleged that defendant committed CSC-I against MB between August 1, 2008, and November 2008. Although a brief time overlap exists, there is no evidence that defendant‘s commission of Count I occurred in the same transaction as the offense against AB (Count III), who left for boarding school in August 2008. Count I clearly did not occur during the same transaction as the offense against BS (Count IV), who testified about a single occurrence in the summer of 2007. While the jury convicted defendant of another count of CSC-I against MB (Count II) in an approximately seven-year time period, there is no evidence in the record that MB was subject to several distinct acts of penetration sufficient to constitute the same transaction or that Count II was committed in the same transaction as Counts III or IV or both. Accordingly, we conclude that the trial court did not possess the statutory authority to impose consecutive sentences and that doing so was plain error.3 We vacate defendant‘s sentence on Count I and remand for resentencing on that count to a term of years that shall be served concurrently with his other sentences.
F. INEFFECTIVE ASSISTANCE OF COUNSEL
Lastly, defendant argues that reversal is warranted because he received ineffective assistance of counsel during the trial proceedings.
“Both the Michigan and the United States Constitutions require that a criminal defendant enjoy the assistance of counsel for his or her defense.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012), citing
Defendant argues that his trial counsel was ineffective in failing to request that his charges be tried separately, failing to object to other-acts evidence under MRE 404(b), failing to request a unanimity instruction, and failing to argue that the law did not provide that the trial court could sentence defendant consecutively.
For the reasons discussed, defendant has failed to show that the first three of these objections or requests would have been successful. The joinder of claims is permissible under MCR 6.120; the other-acts evidence was admissible; and “a specific unanimity instruction is not required” when, as in this case, “materially identical evidence is presented with respect to each act, and there is no juror confusion,” Cooks, 446 Mich at 512-513. As this Court has explained, “Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.” Ericksen, 288 Mich App at 201.
Moreover, defendant does not argue that there is a reasonable probability that the outcome of his trial would have been different had his trial counsel acted in accordance with defendant‘s wishes on appeal. Each victim testified that defendant committed CSC-I against her by penetrating her vagina with his fingers when she was under the age of 13 or between the ages of 13 and 16. Assuming that the jury believed their testimony, there is little likelihood that the outcome would have been different had the charges been tried separately or trial counsel asserted the objections raised by defendant on appeal.
By contrast, defense counsel‘s failure to challenge the conclusion that defendant was subject to consecutive sentencing likely constituted ineffective assistance. However, since we remand the case for resentencing, we need not address trial counsel‘s performance in this regard.
Defendant‘s convictions are affirmed. We remand for resentencing on Count I only, consistently with this opinion. We do not retain jurisdiction.
GLEICHER, J., concurred with SHAPIRO, P.J.
RONAYNE KRAUSE, J. (concurring in part and dissenting in part). I concur in all respects with the majority other than the majority‘s analysis of the consecutive sentence imposed by the trial court. The majority profoundly misconstrues People v Ryan, 295 Mich App 388; 819 NW2d 55 (2012), and People v Brown, 495 Mich 962 (2014), and engages in an extremely limited analysis of the facts in this matter. By equating “same transaction” under
As the majority explains, sentencing in Michigan is by default concurrent, but under
In Ryan, this Court observed that the Legislature has not defined “same transaction” by statute, but explained that the term had acquired “a unique legal meaning” through its usage. Ryan, 295 Mich App at 402. This Court found “two particular sexual penetrations” to be part of the same transaction because they “sprang one from the other and had a connective relationship that was more than incidental” and “there was no relevant disruption in time or in the flow of events between the two distinct offenses.” Id. at 403-404. In Brown, our Supreme Court, citing Ryan, 295 Mich App at 402-403, expressed approval of designating as the same transaction “three sexual penetrations [that] ‘grew out of a continuous time sequence’ and had ‘a connective relationship that was more than incidental.’ ” Brown, 495 Mich at 963. Historically, the test was understood to be that “[t]he crimes were committed in a continuous time sequence and display a single intent and goal[.]” People v White, 390 Mich 245, 259; 212 NW2d 222 (1973), overruled on other grounds by People v Nutt, 469 Mich 565; 677 NW2d 1 (2004). Consequently, the definition of what constitutes a “same transaction” is well established and well understood.
Clearly, two acts that are immediately contiguous in time and space, as were the acts that formed the basis of the same transaction in Ryan, can be more obviously part of a same transaction than acts with any kind of separation between them. However, contiguous and continuous are not synonyms, and it is clearly critical that there must be a relevant disruption between the acts rather than merely any disruption. Indeed, a “transaction” does not have any definitional limitations on scope, complexity, or duration. Two acts at issue in Ryan did, as the majority notes, occur on the same day, but I am frankly baffled by the majority‘s apparent conclusion that this Court in Ryan somehow established that there is something magical or talismanic about acts falling on the same calendar date. Indeed, two acts occurring on the same day might not necessarily form part of a “continuous time sequence,” and even two acts occurring simultaneously might not be part of the same “continuous time sequence.” See People v Jackson, 153 Mich App 38, 48-50; 394 NW2d 480 (1986). It is irrational and counterproductive to attempt to force what is fundamentally a totality-of-the-circumstances analysis into a completely arbitrary bright-line rule divorced from the salient facts of the particular case.
Defendant‘s convictions were based on several assaults against several victims over several years. There is no evidence that any of the acts that gave rise to defendant‘s convictions occurred on the same day or immediately contiguous to each other, as was the situation in Ryan. However, the victims, and other witnesses to the extent they noticed defendant‘s conduct with the victims, testified that defendant‘s abuse was essentially constant and unremitting. After one victim left the
The majority does not address defendant‘s other arguments attacking his concurrent sentences; I find them unavailing. Defendant‘s argument that the trial court abused its discretion because imposition of con-secutive sentences was not mandatory is nonsensical: because the trial court was permitted to do so, this Court will not generally disturb its decision unless that decision fell outside the range of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). I perceive no reason why a consecutive sentence here was an unprincipled outcome. Defendant also argues that the trial court should have relied on objective and verifiable factors to impose minimum sentences in excess of the sentencing guidelines range established by the Legislature. This is equally nonsensical, because the consecutive-sentencing law requires no such special articulated findings, and this Court presumes that the Legislature understood and intended the laws it enacted.
I find no sentencing error. Consequently, I would affirm defendant‘s convictions and sentences in their entirety.