People v. LockettPeople v. Lockett
Defendant Ashanti Bryant Lockett appeals as of right from his convictions by a jury of first-degree criminal sexual conduct (CSC-I),
During the early morning hours of September 6, 2009, Johnson and another man entered the home where S. (17 years old), N. (16 years old), G. (14 years old), and J. (12 years old) lived with their mother. The men entered by climbing up a metal awning outside of the building. After Johnson woke J. from her sleep, J. walked to a different room where she saw G. with another man. J. did not recognize the other man and eventually returned to her bed. J. removed her pajamas and Johnson removed his clothing and J.’s underwear. Johnson and J. attempted to have sex. J. testified that there was no penetration, but that she felt pain “where she pees” and she told Johnson to stop. Johnson stopped and got dressed. Johnson and the other man stayed until approximately 8:00 a.m. before leaving.
The girls’ mother noticed damage to her awning that morning and questioned the children about it. She learned that two men had been over during the night, and she took G. and J. to the police station. J. told the police that no penetration had occurred between her and Johnson. The mother subsequently took J. to the hospital for an examination, which revealed nothing out of the ordinary. No DNA evidence was found.
G. and J. decided to run away from home with S. because of punishments imposed by their mother. S., G., and J. left their mother’s home and stayed at a friend’s house. Very early on September 9, 2009, S., G., and J. left the friend’s house. Johnson called S. on her cellular telephone, and S. told Johnson where to pick up the girls. Johnson and Lockett arrived in a van. The girls got in and then drove with defendants to a liquor store, where defendants acquired liquor. Lockett then drove the van to a park and parked the vehicle.
The interior of the van had three rows of seats, including a driver’s and passenger’s seat in the front row, two “captain-style” seats in the second row, and a bench seat in the third row that had been folded down to resemble a bed. While G. and J. were seated in the van’s front driver’s and passenger’s seats, Lockett and S. moved to the rear of the van, disrobed, and engaged in sexual intercourse. After Lockett and S. had finished, Johnson moved to the rear row of the van and engaged in sexual intercourse with S. At some point Lockett asked G. and J. to go into the rear of the van with him. J. refused, but G. eventually agreed to go. J. testified that Lockett grabbed her arm at one point while trying to persuade her to go into the back of the van with him.
Officer Michael Garrison of the Detroit Police Department was on patrol with his partner at around 1:30 a.m. on September 9 when he saw a van parked after hours in a city park. Officer Garrison saw a girl he later identified as G. sitting on a park bench near the van. As Officer Garrison approached the van, G. ran into the van. When Officer Garrison arrived at the van, he could see through the front and driver’s side windows. He saw that no one was in the front seats, S. was straddling Lockett in the nude on one of the captain’s seats, and Johnson and J. were lying in the rear row. J.’s shirt was pulled down and her breasts were exposed.
Lockett was eventually charged with CSC-I under
Johnson was eventually charged with CSC-I under
Lockett and Johnson were tried together but with separate juries. At the conclusion of the trial, both Lockett and Johnson were convicted as charged.
II. ANALYSIS
A. SEXUAL PENETRATION UNDER CIRCUMSTANCES INVOLVING ANOTHER FELONY
Defendants first argue that
This Court determines de novo whether a statute is unconstitutionally vague. People v Rogers,
Defendants challenge
(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
(c) Sexual penetration occurs under circumstances involving the commission of any other felony.
The plain language of the statute requires the prosecution to prove that (1) sexual penetration occurred and (2) it occurred “under circumstances involving the commission of any other felony.” This Court has previously held that there must be a sufficient nexus between the “other felony” and the sexual penetration; specifically, there must be a “direct interrelationship” between the felony and the penetration. People v Waltonen,
In Waltonen, this Court found that the other felony, also referred to as the underlying felony, was directly related to the sexual penetration when the defendant demanded and received sex in exchange for providing Oxycontin. Id. at
In this case, the trial court found a sufficient nexus between the other felony and the sexual penetration. The court found that the other felony occurred when Lockett and Johnson engaged in sexual penetration with S. in plain view of J., a minor. Under
Defendants point out a number of “ridiculous” circumstances in which a sexual penetration could occur during the commission of another felony. Many of the circumstances defendants cite involve situations in which the underlying felony would not have a sufficient nexus to the sexual penetration. While this Court, in discussing the broad scope of
Criminal sexual conduct in the first degree is a felony punishable as follows:
(a) Except as provided in subdivisions (b) and (c), by imprisonment for life or for any term of years.
(b) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any term of years, but not less than 25 years.
(c) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age, by imprisonment for life without the possibility of parole if the person was previously convicted of a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age or a violation of law of the United States, another state or political subdivision substantially corresponding to a violation of this section or section 520c, 520d, 520e, or 520g committed against an individual less than 13 years of age. [MCL 750.520b(2) .]
When this Court examines the statute’s language and scheme as a whole, it is clear that when referring to “another person” in
This reading is consistent with other cases that have interpreted
In this case, defendants were convicted of CSC-I when the underlying felony was disseminating sexually explicit matter to a minor, J., who was then 12 years old. J. was not the “victim” of the sexual penetration. Even though the “explicit matter” would not have been disseminated to J. without the sexual penetration of S., this Court cannot uphold a conviction of CSC-I when the “victim” of the sexual penetration was not impacted by the circumstances of the underlying felony. This Court reverses defendants’ convictions of CSC-I under
B. DISSEMINATING SEXUALLY EXPLICIT MATTER TO A MINOR
Defendants next argue that there was insufficient evidence to convict each of them of the underlying felony of disseminating sexually explicit matter to a minor under
[a] person is guilty of disseminating sexually explicit matter to a minor if that person . ..
(b) [k]nowingly exhibits to a minor a sexually explicit performance that is harmful to minors.
When viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that defendants violated
“[Wlhen a conviction for a greater offense is reversed on grounds that affect only the greater offense,” this Court may remand for entry of judgments of conviction on necessarily included lesser offenses. People v Bearss,
Defendants were charged with committing CSC-I,
C. LOCKETT’S SENTENCING GUIDELINES
Lockett argues that the trial court incorrectly assessed 10 points for offense variable (OV) 4 (psychological injury to victim), 15 points for OV 10 (exploitation of vulnerable victim), and 10 points for OV 14 (offender’s role). This Court reviews a trial court’s scoring of a sentencing guidelines variable for clear error. People v Hicks,
The record is devoid of evidence to indicate whether J. suffered a serious psychological injury. There was no testimony indicating that J. suffered a psychological injury, the presentence report contains no information that would indicate any victims suffered psychological harm, and the record does not include a victim-impact statement. The trial court’s entire statement on the matter was that “[c]learly this type of situation, looking at the whole circumstances of the sexual situation with the sisters being involved, and these two defendants, would cause any normal person of that age serious psychological injury; whether there was treatment or not, is not an issue.” The trial court may not simply assume that someone in the victim’s position would have suffered psychological harm because
Lockett also argues that the trial court incorrectly assessed 15 points for OV 10. OV 10 addresses the exploitation of a vulnerable victim.
Evidence on the record supports the trial court’s decision to assess Lockett 15 points for OV 10. Lockett picked up J. in the middle of the night in his van. Lockett drove to a liquor store to purchase alcohol. He then drove the van to a city park and parked it. Because of J.’s young age, she was susceptible to injury, physical restraint, or temptation. Moreover, given Lockett’s actions that night, it is a reasonable inference that victimization was his primary purpose for engaging in the preoffense conduct. The trial court correctly scored OV 10.
Finally, Lockett argues that the trial court erroneously assessed 10 points for OV 14. A trial court appropriately assesses 10 points for OV 14 when the defendant was a leader in a multiple-offender situation.
Lockett argues that it was Johnson who had the preexisting relationship and contact with the girls and who coordinated with S. regarding when and where to pick the girls up, and that even though Lockett was older than Johnson, none of the participants showed Lockett any deference based on his age. While we agree that there are facts that may indicate that Johnson was a leader, our review is limited
D. ACCOMPLICE CAUTIONARY INSTRUCTION
Defendants next argue that the trial court abused its discretion when it failed to give the jury the accomplice cautionary instruction and instead only gave the jury the immunity instruction regarding S.’s testimony. A trial court’s decision whether to give a cautionary accomplice instruction is reviewed for an abuse of discretion. People v Young,
Jury instructions are to be read as a whole and, even if somewhat imperfect, no error exists if the instructions fairly presented the issues to be tried and sufficiently protected the defendant’s rights. People v Bell,
The trial court refused to give both the immunity instruction contained in CJI2d 5.13 and the accomplice instruction contained in CJI2d 5.6 because it determined that providing both instructions would be “very confusing to the jury,” and instead it let defendants choose which of the two instructions was to be given. We conclude that the trial court did not abuse its discretion in denying the request to have both instructions presented because the instructions as given fairly presented the issues to the jury and sufficiently protected defendants’ rights. The primary purpose of both instructions is to raise the jury’s awareness of the potential ulterior motives of the witness. Both the accomplice and immunity instructions caution the jury that the witness may have some reason not to testify truthfully. The immunity instruction’s cautions about S.’s credibility were extensive enough to sufficiently protect defendants’ rights. Defendants have also failed to establish that a difference in jury instructions would have affected the outcome of the case, given that S.’s testimony that she had sexual intercourse with each defendant in the back of the van was supported by other testimony, including the testimony of J. and Officer Garrison.
Johnson also argues that he was denied the effective assistance of counsel when his trial counsel chose the immunity instruction instead of the accomplice instruction. We disagree. Unpreserved issues concerning ineffective assistance of counsel are reviewed for errors apparent on the record. People v Rodriguez,
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. See id. at 578. To establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. People v Davenport,
There is no evidence on the record to support Johnson’s contention that his trial counsel’s performance was objectively unreasonable, and there is no evidence on the record to support Johnson’s contention that the result of the proceedings would have been different had his trial counsel chosen the accomplice instruction over the immunity instruction.
E. SEXUAL PENETRATION OF A CHILD UNDER AGE 13
Johnson argues that the prosecution presented insufficient evidence to support his conviction of CSC-I under
J. did deny that any penetration occurred. However, J. was not given the legal definition of “penetration.” According to the law, “penetration” is any intrusion, however slight, into the vagina or the labia majora. Id.; People v Whitfield,
When viewing J.’s testimony in the light most favorable to the prosecution, the jury could have reasonably inferred that Johnson’s penis intruded, however slightly, into J.’s vagina or labia majora. Because a rational trier of fact could have found that Johnson engaged in sexual penetration with J., we affirm Johnson’s conviction of CSC-I for engaging in sexual penetration with a person under 13 years of age.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
For instance, a person could commit CSC-I by engaging in adultery because adultery is prohibited as a felony under
We use quotation marks here because one of the victims was 16, i.e., above the age of consent. See Wilkens,