Defendant appeals by right his convictions by a jury of kidnapping, MCL 750.349, armed robbery, MCL 750.529, and first-degree criminal sexual conduct (CSC-I), MCL 750.520b(l)(c). Defendant was acquitted of felony-firearm, MCL 750.227b, and two counts of second-degree criminal sexual conduct, (CSC-II), MCL 750.520c(l)(c). Defendant also appeals his sentences of 225 months’ to 60 years’ imprisonment on each of his three convictions. The kidnapping and armed robbery
While walking home from work in Detroit, the victim was accosted, ordered into a car, robbed, and raped at gunpoint by a man. She got a good look at the man’s face before he ordered her not to look at him. Among other things, the man took her cell phone. She almost immediately happened across an ambulance when he finally let her go and was taken to the hospital. A sexual-assault examination was performed after some delay; numerous swabs and samples were taken and packaged into a “rape kit,” a sealed container for sexual-assault evidence. Meanwhile, the police tracked the victim’s cell phone to a barbershop, then to a person who was in a relationship with defendant’s brother, and finally to defendant. DNA evidence was obtained from defendant. The victim was unable to select a photograph of defendant out of a photographic lineup, although the quality of the photographs was apparently very poor. Defendant refused to participate in a corporeal or voice lineup, but the victim was able to identify defendant as the rapist in court and from a photograph she found of him on the Internet through independent research. Two different forensic scientists in unrelated crime laboratories analyzed actual sperm cells found in the rape kit and matched them to defendant’s DNA. It was established that at no time was a “sperm sample” obtained from defendant.
Defendant first argues that it was error to permit the emergency room attending physician, Dr. Patrick Loeckner, to testify about the sexual-assault examination because he did not administer it himself. The doctor who personally performed the examination, Dr. Saiyeda Abbas, did not testify at trial. Defendant argues that this constituted inadmissible hearsay and was a violation of his right to confront the witnesses against him. We find no basis for reversal.
Defendant did not object to Dr. Loeckner’s testimony and affirmatively stated that he had no objection to the admission of Dr. Abbas’s notes. The former failure to object constituted mere forfeiture of an error, while the latter affirmative approval constituted a waiver. People v Carter,
Even if we were to presume that Dr. Loeckner’s testimony constituted inadmissible hearsay, there was no prejudice. Dr. Loeckner’s testimony helped defendant, if anything. Dr. Loeckner admitted that he did not know whether Dr. Abbas had really followed the proper protocols. Furthermore, Dr. Loeckner’s testimony brought out the fact that no semen was observed during the examination, a fact that defendant made use of during closing argument.
Moreover, the gravamen of defendant’s argument regarding Dr. Loeckner’s testimony has less to do with who testified than with the implication that the sexual-assault examination was mishandled and the rape kit contaminated, thereby undermining the
Even if error occurred, reversal is not warranted because defendant is not actually innocent. Given defendant’s partial reliance on Dr. Loekner’s testimony, to which he did not object, the error did not affect the fairness, integrity, or public reputation of the proceedings. Carines,
Defendant next argues that the trial court deprived him of due process and violated MCR 6.414(J) because of the way in which it asked the jury to rely on its collective memoiy instead of granting its request to review transcripts of certain testimony. We disagree. It might have been better practice to have told the jury explicitly that if they continued to feel a need for a transcript in the future, they could make another request. However, the trial court emphasized that it was merely denying their request “at this time,” and given that it was only an hour into deliberations, defendant agreed that for the time being the request should be denied. The trial court did not tell the jury that transcripts would be unavailable for weeks or months or not available at all. See People v Smith,
Finally, defendant argues that the trial court miss-cored three offense variables when calculating his recommended minimum sentence range under the sentencing guidelines. We disagree and in addition conclude that the trial court in fact assessed too few points for one of his offense variables.
We review the interpretation and application of the sentencing guidelines de novo. People v Smith,
Ten points should be assessed for offense variable (OV) 3 if “[b]odily injury requiring medical treatment occurred to a victim[.]” MCL 777.33(1)(d). The victim did not suffer any acute physical trauma or injury as a result of the rape and most of the medical treatment she received was precautionary. However, “bodily injury” encompasses anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence. See People v Cathey,
Fifty points should be assessed for OV 7 if a “victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense[.]” MCL 777.37(1)(a). Defendant ordered the victim to keep her eyes closed and indicated that he and what he implied were accomplices knew who she was and had been watching her. He also made threats that clearly indicated that he could find her again in the future, thereby suggesting not only that she was suffering a horrific assault but that there might never be any escape, either. Defendant argues 50 points should not have been assessed for OV 7 because there was no evidence of overt sadism, torture, or physical brutality beyond what was technically necessary to accomplish the charged offenses. However, even though the victim eventually concluded that defendant really did not know her identity there was ample evidence that defendant engaged in “conduct designed to substantially increase [her] fear and anxiety. . . .” Therefore, OV 7 was properly scored at 50 points.
Fifteen points should be assessed for OV 19 if a defendant “used force or the threat of force... to interfere with, attempt to interfere with, or that results in the interference with the administration of justice or the rendering of emergency services[.]” MCL 777.49(b). Ten points should be assessed if the defendant “otherwise interfered with or attempted to interfere with the administration of justice[.]” MCL 777.49(c). The trial court assessed 10 points for OV 19.
Defendant asserts that the trial court impermissibly scored OV 19 on the basis of conduct that occurred after the completion of the charged offenses because the offense variable does not explicitly permit the court to do so. See People v McGraw,
Finally we note the specific criminal sexual conduct offense for which defendant was charged and convicted was sexual penetration involving the commission of another felony. MCL 750.520b(1)(c). The underlying felony is therefore part of the criminal sexual conduct offense itself. Armed robbery, MCL 750.529, proscribes conduct that includes an assault and a felonious taking of property from the victim’s
If there is any error at all in this matter, it is that defendant received a lower score for OV 19 than was actually justified. We will not, however, require that score changed because no cross-appeal has been filed.
Affirmed.