*1 728 PEOPLE WILKENS 2005, Lansing. August Decided at Docket No. 254668. Submitted 23, 2005, appeal sought. August at 9:10 a.m. Leave to first-degree Wilkens, Jr., counts of L. was convicted of two Robert (CSC-I), producing one count of child sexual conduct criminal material, eavesdropping sexually follow- and one count of abusive Court, Brown, C. ing in the Circuit Archie a bench trial Washtenaw of- as a third-offense habitual J. The defendant was sentenced years years imprisonment months to 60 for of 35 and 5 fender to convictions, years the 20 to 40 for conviction the CSC-I material, years sexually producing and to for the child abusive appealed. eavesdropping conviction. The defendant Appeals The Court of held-. by admitting court not err evidence found 1. The trial did policeofficer found a camera hidden in a shower used seized after a
by female tenants. The defendant had consented the defendant’s gun for a and knife in a criminal to a search of his home police investigation case. The officer’ssearch of not related to this scope the of the defendant’s consent. Under the shower within was doctrine, police plain could have seized the the officer view warrant, suspicious a but obtained device the shower without evidence, including videotape anyway. remaining The one engaging in sexual acts with two defendant made of himself minors, police seized after the officer obtained search warrant. by denying 2. if court erred the defendant’s Even the trial examination, polygraph request the defendant cannot dem- for a probable not that the error was that it is more than onstrate polygraph The defendant did not seek outcome determinative. innocence, argument prove to but to his examination illegal and the should that seizure of evidence was evidence suppressed. accepting the statements have been Even however, true, alleged not affidavit as the facts would defendant’s Moreover, suppression issue. have affected the outcome of the reason, ineffective the defendant cannot demonstrate the same file for counsel’s failure to a motion assistance of counsel suppress the evidence. v Wilkens properly precluded 3. The trial court consent as a defense to charges. charged pen- the CSC-I The defendant was with sexual during felony, etration the commission of another in this case the material, is, production sexually of child abusive video- Regardless tape. of whether the sexual was consen- *2 750.520b(l)(c) sual, the elements of MCL are satisfied if that penetration during felony. occurred the commission of another question, then, The is whether consent is a defense to the underlying felony. not, charge If it is then it is not a defense to a 750.520b(l)(c). charge under MCL Consent is not a defense to a 750.145c(2) producing sexually under MCL of child abusive mate- rial. penetration 4. There sufficient evidence of sexual principal the defendant’s convictions of CSC-I as a and as
an aider and abettor. supports scoring 5. The the record trial court’s of offense (serious psychological injury requiring professional 4 variables (victim treatment), placed danger injury life), 9 in of or loss of (number (exploitation victim), penetra- of vulnerable of sexual behavior) tions), (continuing pattern and 13 of criminal in connec- sentencing regard tion the defendant. With to offense vari- evidence, particularly videotape, supported able finding psychological that both minor victims suffered serious injury. against The male victim made violent threats female comprehend gravity victim and was rendered unable to of his anxiety, actions. The defendant’s actions caused the female victim demeanor, altered her and caused her to withdraw. 6. No constitutional violation resulted from the female victim’s prosecution absence at trial. The did not offer her statements against the defendant at trial. the defendant While asserts that she him, favorably prosecution would have testified for had no obligation Moreover, to call such a witness. the defendant has explain why failed to he was unable to call the female victim as own witness. producing sexually 7. Conviction of both CSC-I and child jeopardy. Legislature abusive material did not violate double The punished separately. intended those crimes be Affirmed. EJ., concurring part dissenting part, agreed and Cooper, affirmed, that the defendant’s convictions should be but would improperly points
hold that the trial court assessed ten offense variable because there was no evidence in the record that the minors, voluntarily participated who in the sexual acts on a casual basis, psychological injuries requiring professional suffered serious resentencing. treatment. The case should be remanded for — — Rape Sexually Criminal Sexual Child Conduct Abusive Activities or — — Materials Consent. Defenses penetration charge to a
Consent sexual is not a defense to a of first-degree criminal sexual conduct if the sexual during felony; occurs the commission of another if consent is not a felony underlying charge first-degree defense to the criminal conduct, charge first-degree sexual is also not a defense to the itself; charge criminal sexual conduct consent is not a defense to a (MCL producing sexually activity child abusive or material 750.520b[l][c]). 750.145c[2], Cox, General, Michael A. Attorney Thomas L. Casey, General, Mackie, Solicitor Brian L. Prosecuting Attor- ney, Kneisel, and Mark Prosecuting Assistant Attorney, for the people. McCann)
State Defender Appellate (by Jacqueline J. Wilkens, Jr., L. Robert in propria persona for the *3 defendant. COOPER,
Before: KELLY, PJ. and BANDSTRA and JJ. J. Following trial, a bench defendant was Kelly, convicted of two first-degree counts of criminal sexual (sexual 750.520b(1)(c) (CSC-I), conduct MCL penetra tion during the felony); commission another one count of producing sexually material, child abusive 750.145c(2); and one count of eavesdropping through camera, installation of a MCL 750.539d.1 The trial court sentenced defendant as a third-offense ha bitual years offender to 35 and 5 years’ months to 60 imprisonment for the convictions, years’ CSC-I 20 to 40 imprisonment producing for child sexually abusive ma terial, and 2 4 years’ to imprisonment for eavesdrop appeal. This conviction is not at issue on People y Wilkens concurrently. appeals Defendant as to be served ping, affirm. and sentences. We right his convictions
I. FACTS Sergeant Detective Robert Peto and In March went to Ypsilanti Department Annas of the Police Craig allegations investigate defendant’s home to criminal requested this case. The officers consent to unrelated to home for a or knife. Defendant gun search defendant’s to home except written consent search his provided shower, in the looking rented to tenants. While rooms Detective Peto observed a homemade device with elec- thought trical and a motion detector. He switches because it is unusual to have electrical suspicious shower, in a especially switches and a motion detector when female tenants used the shower. Detective Peto “small, hole approximate quarter-inch also saw drilled housing underneath where sensor normal —sensor normally light is.” Detective Peto flashed his on the hole and the reflection of to him glass, appeared saw which of a microcamera. Detective be lens Because Peto Sergeant and Annas knew that defendant’s tenants shower, they used the arrested defendant for eavesdrop- home, ping. They also halted their search of the Peto left to Detective obtain search warrant. warrant, execution of the Detective
Upon search Peto the camera behind the He found that panel. retrieved recording systems from the camera led to wiring living and the room. A both defendant’s bedroom work- system remote control for the was also found in ing bedroom. The officers seized video and defendant’s a camera from de- equipment, including atop camera *4 dresser, recordings, audio and visual and fendant’s toys photographs. and sexual App that, initial during
Detective Peto testified con- search, Sergeant sent he and found Annas two video- tape recordings between the mattresses on defendant’s bed. not concerned They videotape were about at the time. recordings They looking were not and defendant videotapes, they volunteered that were personal videotape recordings. When the officers night, however, executed the search warrant later that they seized several other videotapes. tape, On one entitled Signals,” “Mixed defendant had recorded him- self, male, a 14-year-old 16-year-old and a female engag- ing in sexual acts.
II. SEARCH AND SEIZURE
A.
OF
LEGALITY
SEIZURE
argues
Defendant
that all the evidence found and
seized after Detective Peto used his
flashlight
exam-
ine the small hole in the shower should have been
suppressed because
shining
light
hole,
in that
when
the object
knife,
of the search
a gun
or
exceeded the
scope
consented-to search.
disagree.
We
findings
error,
We review a trial court’s
of fact for clear
giving deference to the trial court’s resolution of factual
finding
clearly
if,
issues. “A
of fact is
erroneous
after a
record,
appellate
review the entire
an
court is left with a
definite
firm
conviction that a mistake has been
overstep
made.” We
our
if
review function we substitute
judgment
our
for that of the
indepen
trial court and make
findings. However,
dent
we review de novo the trial court’s
ultimate decision on a motion to suppress. [People v Fro
(2001)
hriep,
692, 702;
App
The initial home took place search defendant’s the The of a exception. scope under consent consent by object search is limited the of that search. Florida v Jimeno, 248, 251; 1801; 114 L US S Ct Ed 2d signed Defendant admits that he a written consent, specify object which did not of the search However, and was not limited in manner. it is that defendant to a search undisputed orally consented a gun. only for a knife or Defendant limited the search area to exclude the rooms of his tenants. Detec- private gun for a or knife was tive Peto’s search shower scope of defendant’s consent. Under clearly within
Opinion op the Court plain doctrine, view Detective Peto could have seized the device that he discovered in the shower without benefit of a warrant. Detective Peto was law- fully searching shower, view, in plain device was suspicious, and detective Peto knew that defen- dant’s female used the Thus, tenants bathroom. incriminating nature of the readily device was apparent though even the full nature of the device was unknown at that time. According affidavit, to defendant’s Detec- tive Peto removed screws from the unit and showed them to defendant before the search warrant was *6 assuming obtained. Even that defendant’s statements true, are because detective Peto could have seized device given its obvious incriminating nature, viewing the device with a flashlight and removal of the screws was permitted. also other No evidence was seized until after the search warrant Therefore, was obtained. trial court did not err in admitting the evidence.
B. EXAMINATION FOR REQUEST POLYGRAPH FOR PURPOSE OF MOTION TO SUPPRESS Defendant further argues that the trial court erred when it denied defendant’s request for a polygraph examination, which would have assisted him in proving that the seizure of evidence illegal and led to the suppression of the against evidence him. In addressing a trial court’s denial of a request for a polygraph examination, Supreme our Court held: involving In preserved, error, cases nonconstitutional a “ demonstrate, defendant must ‘after an examination of ” cause,’
the entire that it probable “is more than not that the error was outcome reviewing determinative.” The court must examine the nature the error and assess its “ light weight effect ‘in strength of the untainted ” [People Phillips, 390, 396-397; evidence.’ v (2003) (citations omitted).] NW2d Wilkens v op Opinion the Court the trial case, even if circumstances of this Under the error, defendant cannot demonstrate denial was court’s than not that it was outcome probable that it is more 776.21(5) provides: MCL determinative. committed a crime under allegedly has
A defendant who
520g of Act
328 of the Public
520b to 520e and
No.
sections
to 750.520e and
[MCL
of 1931
750.520b
Acts
given
polygraph examination or lie
750.520g], shall be
requests it.
detector test if the defendant
accused of crimi
affording
individuals
purpose
“The
to a
exam is to
right
polygraph
nal
conduct a
sexual
accused individuals can
by
a means
which
provide
innocence,
thereby obviating
their
demonstrate
necessity
People Phillips,
of a trial.”
390;
(2002), aff 'd469 Mich
100, 107;
[w]hen
primary
our
goal is “to ascer-
give
tain and
effect to the
Legislature.”
intent of the
To do
so,
begin by
we
examining
language
of the statute. If
language
statute’s
is clear
unambiguous,
and
we as-
Legislature
sume that the
plain meaning
intended its
the statute is enforced as
differently,
written. Stated
“a
may
court
nothing
read
into
unambiguous
an
statute that
is not within the
Legislature
manifest intent of the
as
derived from the
“Only
words of the statute itself.”
where
statutory
language
ambiguous may
is
properly
a court
beyond
go
the words of the statute
legislative
to ascertain
(citations omitted).]
[Phillips,
intent.”
supra,
(c) under circumstances in- penetration occurs Sexual any felony. other volving the commission of MCL language plain the According prove must two ele 750.520b(1)(c), the prosecution (2) (1) during that occurs penetration ments: a sexual regard felony. Accordingly, another the commission of consensual, if it was of whether the less felony, another the the commission of during occurs 750.520b(1)(c) ques The MCL are satisfied. elements of “other is a defense to the tion then is whether consent that if i.e., underlying felony. We hold felony”, underlying felony, to the then consent is not a defense charge a to the CSC-I under MCL is not defense 750.250b(1)(c). case, underlying felony producing
In this material in violation of MCL sexually child abusive “A 750.145c(2), part, per provides, pertinent which sexually . makes ... child produces [or] son who .. activity sexually or child abusive material is abusive felony of a . . ..” The statute defines “child” as guilty . ..” MCL years age “a is less than 18 . person who 750.145c(1)(b). is not a undisputed It is consent 750.145c(2). MCL If consent charge defense to a under of MCL a defense to the second element were 750.520b(1)(c), i.e., felony, then it would underlying MCL charge an defense to the under appropriate be 750.520b(1)(c). because consent is a com example, For 750.349, felony kidnapping, MCL plete defense to 750.520b(1)(c) a defense to MCL when consent is felony kidnapping. People Thompson, v underlying (1982); 522, 526; App 324 NW2d LaPorte, 444, 448-449; App 303 NW2d here, is not a defense to the But because consent sexually ma child abusive underlying felony, producing as a defense to terial, argue defendant cannot consent 750.520b(1)(c). under charges Therefore, trial properly court excluded consent as defense.
IV SUFFICIENCY OF THE EVIDENCE
*9
Defendant
argues
next
there was insufficient
support
evidence to
his conviction of CSC-I in
I
counts
and II.
disagree. “Generally,
We
we
challenge
review a
to the sufficiency of the
in a
evidence
bench trial de
light
novo and in a
most favorable to the prosecution to
determine whether the trial court could have found that
the essential elements of the
proved
crime were
beyond
a reasonable doubt.” People v Sherman-Huffman, 241
264, 265;
Mich App
(2000),
A. COUNT I —CSC-I PENETRATION DURING COMMISSION OF ANOTHER FELONY The evidence was sufficient to defendant’s conviction of CSC-I respect I, to count defendant’s sexual penetration of the female victim. Defendant asserts that mere touching cannot support his convic- tion “where penetration is required.” However, pursu- “ ant 750.520a(o), to MCL penetration’ ‘Sexual means intercourse, sexual cunnilingus, fellatio, anal inter- course, intrusion, or other any however slight, of part person’s or body any object into genital or of of anal openings another person’s body, but emission ” added.) semen is not required.’ (Emphasis In the “Mixed Signals” videotape, defendant to appears place v Wilkens
Opinion the Court legs on at least the female victim’s mouth between at trial: Further, the male victim testified one occasion. [sic] Mr. you recollection of Wilkins positive have Q. Do toys or vagina victim’s] with those sex touching [the female toy? any sex
A. Yes. that that occurred? positive You’re
Q.
A. Yes. vagina? toy he touched her He used a sex
Q. A. Yes. light most favorable to
Viewing this evidence that there was sufficient we conclude prosecution, fact find that a rational trier of permit evidence to intrusion, slight, with a made an however object genital opening or into the body part body. female victim’s
B. II —CSC-I AIDING AND ABETTING COUNT evidence to sustain defen- There was also sufficient an to count II of CSC-I as respect dant’s conviction with aider and abettor. provides:
MCL 767.39 offense, Every of an person concerned in the commission directly constituting the he commits the act whether counsels, aids, procures, or its commis- offense or abets indicted, may tried and on prosecuted, hereafter be sion directly punished if he had commit- conviction shall be as ted such offense. II, charged as follows:
In count
defendant was
penetration
aid and abet the sexual
[The defendant] did
cunnilingus, by [the male
person, to-wit:
vic-
of another
involving
tim],
the commission
under circumstances
felony,
Sexually
production
another
to-wit:
of child
Abusive
750.520b(1)(c)....
Material; contrary to MCL
videotape
The
evidence was sufficient
to allow a
trier
fact
beyond
rational
to find
a reasonable doubt
that defendant aided or abetted the male victim’s
victim,
female
which
during
occurred
felony. Therefore,
commission of another
defen
750.520b(1)(c)
dant’s conviction under MCL
as an aider
supported by
abettor is
the evidence.
V. SCORING OF OFFENSE VARIABLES
Defendant next argues that several of the offense
variables were improperly
disagree.
scored. We
“A sen-
tencing court has discretion in determining the number
points
scored,
to be
provided that evidence of record
adequately supports
a particular
score.”
v
People
(2002).
Hornsby,
App 462, 468;
With to nine Each person are scored if there are two victims. or loss of life as a danger injury in placed “who the offense variable. scoring is counted when victim” 777.39(2)(a). case, In this both the male victim danger injury by in placed were and the female victim During making video- defendant’s conduct. threatened the female victim tape, male victim suggestion, Additionally, harm. at defendant’s physical lotion,” the female used “motion which the male victim Thus, she was placed burned her. complained victim the male Also, the female victim and danger. physical minors, danger physical victim, placed both were *12 App 742 Opinion of the Court injury having from drunk a large quantity alcohol provided by defendant. The record supports the scoring of OV 9. 10,
Offense 777.40, variable MCL also properly at ten points scored I counts and II. OV 10 relates to the exploitation of a vulnerable victim and scored at ten points if the offender “exploited a victim’s physical disability, disability, youth mental agedness, or or a domestic relationship, or the offender abused his or her 777.40(1)(b). authority status[.]” MCL The word “ex ploit” means “to manipulate victim for selfish or 777.40(3)(b). unethical purposes.” MCL The word “vul nerability” means “the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or 777.40(3)(c). temptation.” MCL The female victim, a 16-year-old with a history running away from her adoptive parents, stayed in defendant’s house for a period. On night in question, provided her with alcohol purchased clothes and food for her. The Signals” “Mixed videotape was then made so that the female victim could pay defendant back for the clothes. The supports record that defendant “exploited” youth by victim’s manipulating her with clothes and alcohol in exchange for making the sexually abusive videotape.
OV 777.41, was also properly scored for I counts and II. 11 provides OV that points should be scored if one sexual penetration occurred. MCL 777.41(1)(b). The statute provides: further
All following apply of the scoring offense variable 11: (a) Score penetrations all sexual by of the victim arising offender out of the sentencing offense.
(b) Multiple penetrations sexual by of the victim beyond offender extending sentencing may offense be scored in offense variables 12 and 13. People v Wilkens
(c) points penetration that Do not score for the forms third-degree or criminal sexual conduct the basis of first- 777.41(2).] [MCL offense.
The
that
of the
only penetrations
statute instructs
scored,
are
arising
sentencing
victim
out of the
offense
but
the one
forms
basis
offense is excluded.
sentencing
People McLaughlin,
635, 674-677;
The
There no error in scoring was also of OV 13. Twenty-five points are scored for OV 13 where the offense is of a criminal part pattern activity felonious involving against person. three or more crimes 777.43(1)(b). scoring In OV all crimes within a counted, are five-year period including sentencing offense, in a regardless whether the offenses resulted 777.43(2)(a). case, conviction. MCL In defendant this convicted of counts of and one count of two CSC-I APP eavesdropping videotaping a female tenant in the sentencing, Further, shower. at the time of his defen- pending. dant had two additional counts of CSC-I Clearly, there was evidence in the record to scoring points of 25 for OV 13.
VI. FAILURE TO PRODUCE THE FEMALE VICTIM AS WITNESS argues right Defendant next that his to confront and right cross-examine the female victim and his to due process produced were violated because she was not as against Although a witness him. defendant states that right “against he had the to him,” confront a witness claiming defendant is not that evidence of the female victim’s out-of-court statements should have been ex- appear cludedbecause the female victim did not at trial. using phrase “against Further, defendant, while actually argues prosecution him,” that the should have required present been the female victim as a witness helpful because she would have been to his defense. In a case in which the raised similar issue, Lee, 228, 257-258; (1995), argued pros- NW2d 233 the defendant that the right ecution denied him the to confront witnesses testify. because some witnesses were not called to This noting Court, that the defendant was able call these *14 own, witnesses on his found no violation of the defen- right process dant’s of confrontation or due because prosecutor “[w]hile obligations has certain respect prosecutor’s respon- witnesses, to not the is sibility to call witnesses whom the defendant be- may support way.” lieves Here, his defense in some Id. prosecution did not offer the female victim’s state- against appeal, ments defendant at trial. On argues that if testified, she had she would have testified favorably prosecu- Lee, Thus, defendant. as in People v Wilkens to call a obligation tion had no witness that defendant him, believed would be favorable defendant has explain why failed to he was unable to call the female victim as his own witness. We discern no constitutional arising violation from the female victim’s absence at trial.2
VII. DOUBLE JEOPARDY
argues
guaranteed
Defendant next
that his
constitu
protection against
jeopardy
tional
double
was violated
CSC-I,
750.520b(1)(c);
when he
convicted of
was
MCL
and production
sexually
material,
of child
abusive
750.145c(2).
challenge presents
This
a question of law
Lett,
that we review de novo.
v
People
212;
Affirmed.
BANDSTRA,J., concurred. argues appellate Defendant also that his counsel ineffective for raising “primary” However, appeal. not this issue brief on defen himself, Therefore, dant raised the issue and we have addressed it. any prejudice appellate defendant cannot demonstrate counsel’s failure to raise issue. *15 Opinion by Cooper, EJ. in in (concurring part dissenting P.J. and
Cooper, I part). agree majority’s determination to However, affirm defendant’s convictions. I would find that the trial ten improperly points court assessed for (OV) 4, Offense Variable as there was no evidence in anywhere would, the record to this score.1 I therefore, remand resentencing.
I
in
agree
very
that the facts
this case are
disturbing.
However, we,
Court,
judges
as
of this
cannot substitute
personal
systems
our
for the
belief
facts on record.
There was no evidence that either of the
participants
suffered a
videotape
psychological
serious
injury
professional
requiring
They voluntarily
treatment.
par-
ticipated
fact,
these sexual acts on a casual basis. In
there is evidence that
the female victim felt that
prosecution of defendant was
prosecu-
unfounded.2 The
presented
testimony
tion
no
from psychologist
or
other mental
professional,
health
nor
there any
psychological information reflected in the presentenc-
ing investigation report. While these individuals are not
paragons
virtue,
impose
we cannot
our own stan-
morality upon
dards of
the participants
presume
they
suffered
psychological injury
serious
requir-
ing professional
treatment,
contemplated by
as
statute.3
People Hornsby,
App 462, 468;
videotape. 3 MCL 777.34.