Allegan Circuit Court LC No. 08-015728-FC.
Before: TALBOT, P.J., and WHITBECK and OWENS, JJ.
Defendant Kenneth Phelps appeals as of right his convictions of first-degree criminal sexual conduct (CSC I)*fn1 and third-degree criminal sexual conduct (CSC III).*fn2 Following a bench trial, the trial court convicted Phelps and sentenced him as an habitual offender, second offense,*fn3 to 23 to 45 years' imprisonment for the CSC I conviction and 14 to 22 years' and 6 months imprisonment for the CSC III conviction. We affirm Phelps' convictions, but remand for resentencing.
I. BASIC FACTS AND PROCEDURAL HISTORY
On December 21, 2007, C.J., age 19, and D.H., age 14, went to visit their friend, the complainant, age 16, at the complainant's residence. The complainant lived with her mother, her brother, who was also about age 16, and her older sister in a doublewide trailer at a trailer park in Wayland, MI. C.J. and D.H. arrived at the complainant's residence at about 6:00 p.m. that evening and socialized with the complainant, her brother, and another friend, J. As the evening progressed, the complainant drank three or four cans of beer.
That same evening, Phelps was spending time with his friends (apparently in the same trailer park), smoking marijuana, and drinking four or five "double shots" of Jack Daniel's Whiskey. In the early morning hours of December 22, 2007, after the complainant's mother went to bed, sometime between 12:00 and 1:30 a.m., Phelps, age 24, left his friend's residence and noticed that the complainant's brother's bedroom light was on. Phelps, a friend of both the brother and J., stopped and knocked on the brother's window, and the three friends began talking. At some point, Phelps climbed through the brother's window, sat in the bedroom, and continued conversing with his two friends. After Phelps entered the trailer, C.J., D.H., and the complainant, all went into the brother's bedroom and joined the conversation. The individuals talked in the brother's bedroom and in the living room of the trailer. The complainant previously met Phelps on one occasion, and Phelps was aware that the complainant was either age 16 or 17. The complainant testified that a short while after Phelps arrived at the trailer, she conversed with him about the fact that she was still a virgin, and she told him that she was not ready to lose her virginity.
Eventually, the complainant, C.J., and D.H. retreated to the complainant's bedroom, while Phelps, the brother, and J. went into the brother's bedroom located directly across a small six-foot hallway-like space. Sometime thereafter, the complainant informed C.J. and D.H. that she thought Phelps was "cute." C.J. and D.H. then went into the brother's room and encouraged Phelps to go into the complainant's bedroom to "make out" with her. D.H. testified that she merely encouraged Phelps to give the complainant a "goodnight kiss." Phelps agreed and went into the complainant's room and sat on an air mattress with the complainant and began kissing her while C.J. and D.H. remained in the room. The physical contact between Phelps and the complainant progressed: the two fondled each other, and Phelps removed the complainant's jeans. She consented when he digitally penetrated her vagina and performed cunnilingus on her. C.J. and D.H. remained in the room while the sexual acts took place, but both testified that they were talking to each other and were unaware of what was occurring other than the kissing. The complainant testified that Phelps asked her to touch his penis, but she refused. Phelps also asked the complainant to have sex with him, but she again refused. During this first encounter in the bedroom, Phelps accepted the complainant's assertion that she did not want to have "sex," and at some point, he went outside the trailer and smoked cigarettes with the brother and J.
About 15 or 20 minutes later, approximately 2:00 or 3:00 a.m., Phelps returned to the complainant's bedroom. The complainant and Phelps both testified that C.J. asked Phelps to return to the room to once again kiss the complainant. The complainant testified, however, that she told her friends not to go get Phelps a second time. However, C.J. and D.H. testified that they were sleeping and that the lights were turned off when Phelps entered the bedroom the second time and climbed into bed with the complainant. All four individuals gave differing testimony regarding what occurred next.
The complainant testified that Phelps entered the room, got into her bed, and began kissing her. According to the complainant, she again consented when Phelps removed her clothing and digitally penetrated her vagina. According to the complainant, Phelps then penetrated her vagina with his penis. The complainant testified that Phelps's conduct of penetrating her with his penis caught her by surprise. According to the complaint, she told him no and that she did not "want to." The complainant testified that she told Phelps "no," "like 5 times," but Phelps refused to stop. The complainant testified that Phelps eventually pulled his penis out of her vagina but immediately began performing oral sex on her. The complainant stated that she then told Phelps to stop performing oral sex, but he refused until she yelled for him to get off her, and C.J. turned the bedroom light on. The complainant testified that Phelps was on top of her when the intercourse occurred and was sitting on the floor next to the bed when he performed oral sex on her after the intercourse. Phelps gave a different account of his second encounter with the complainant. He testified as follows:
[W]e started making out again, rubbing on each other, started with fingering... I asked her a couple times if she wanted to go any further, if she wanted to do anything else and her friends had joined in the conversation and we ended up all 3 of us, or 4 of us rather were talking about, you know, pro's and con's I guess you would say of different sexual things we could do or couldn't do or whatever.
Phelps explained that C.J. and D.H. "encouraged" the complainant and "told her you know, well yeah if you want to go ahead and do it if you want to type of thing." Phelps continued his testimony as follows:
Q: [Defense Counsel] Did you ask her if she wanted to have intercourse or what did you say?
A: Yeah, I asked her-I asked her earlier if she wanted to have intercourse and she wasn't sure. I said so what do you want to do and she says well alright, and I said are you sure, and then she said. Then I engaged in penile/vaginal penetration.
Q: Did she say anything out loud or anything at that time?
A: A couple seconds later she was like stop, and I didn't hear her at first and she says it hurts, and so I stopped and I pulled my penis out of her and I said well let me help you climax through cunnilingus... that's the gist of what I told her, and she said okay, just kind of mumbled okay and I went to do that and then a couple seconds after that she's like no, stop, that doesn't feel right either, I just don't want to do nothing no more. So, as I was sitting up the light came on and I looked at her friends... and I noticed there was blood on the mattress there... and at that point I left the room and went into the bathroom to wash up. When I came back out of the bathroom... [the complainant] was saying that I raped her, but that neither [D.H.] nor anybody else knew why [the complainant] was saying this.
C.J. testified that she did not encourage Phelps and the complainant to have sex and was awakened when the complainant yelled at Phelps to "stop now and get off" in a scared voice. At that point, C.J. turned the bedroom light on and saw Phelps's face covered in blood. She then turned the light back off and told Phelps to get out. C.J. explained that she turned the light off again because it was "a disturbing sight."
D.H. also testified that she did not encourage the complainant to have sex with Phelps, and she explained she was awakened when the complainant yelled, "no, get off me, I don't want to do this, and she was just yelling, and then we just got up." According to D.H., the complainant was crying, and when the lights went on, she saw Phelps on the floor near the side of the bed near "the middle" of the complainant's body. D.H. saw Phelps's face was covered in blood, and she ran out of the room at that point. After Phelps left the bedroom, C.J. explained that the complainant sat on the bed "freaking out," almost crying, and then she went outside with C.J. and D.H. where she cried and was "very upset." Both C.J. and D.H. convinced Phelps to leave the trailer. Phelps testified that he left the residence after both C.J. and D.H. informed him that the complainant was upset and would not re-enter the trailer while Phelps was still present.
On the evening of December 22, 2007, the complainant went with her mother to the YWCA at approximately 9:00 p.m. where nurse examiner Sara Koster performed a sexual assault examination or "rape kit." At trial, Koster testified as an expert in sexual assault trauma identification and treatment. Koster performed a full physical examination of the complainant, and she discovered four injuries related to the sexual activity: 1) a tear in the cervix that was bleeding, which Koster testified is usually caused by digital penetration; 2) a tear at the posterior fourcette, which is the skin on the outside of the opening to the vagina into the vaginal wall (Koster testified that this tear is normally caused by penile-vaginal penetration); 3) redness and swelling of the clitoris; and 4) a tear in the hymen, which Koster testified is normally consistent with penile-vaginal penetration but could be caused by digital penetration. Koster explained that the complainant's injuries ...