[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Grand Traverse Circuit Court. LC No. 13-011601-FC.
For PEOPLE OF MI, PLAINTIFF-APPELLEE: NOELLE R MOEGGENBERG, TRAVERSE CITY, MI.
For RYAN LOWELL BAILEY, DEFENDANT-APPELLANT: GEORGE B MULLISON, BAY CITY, MI.
Before: SHAPIRO, P.J., and GLEICHER and RONAYNE KRAUSE, JJ. RONAYNE KRAUSE, J. (concurring in part and dissenting in part).
[310 Mich.App. 709] Douglas B. 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), MCL 750.520b(1), and convicted of each following a jury trial. We affirm defendant's convictions against his arguments that they [310 Mich.App. 710] were not supported by sufficient evidence, that his due process rights were violated, that the trial court made erroneous evidentiary rulings, and that the trial was tainted by prosecutorial misconduct. However, we remand for resentencing.
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 MCL 750.520b(1)(a) and (2)(b) (victim under the age of 13 and defendant 17 years of age or older), the provision that provides for a 25-year mandatory minimum term of imprisonment, MCL 750.520b(2)(b). The jury was instructed that to convict on this offense, it had to find that defendant committed the crime between August 1, 2008, and November 2008 (the month in which MB testified that the assaults stopped). Count II did not provide for any specific date of offense other than a nearly seven-year period and was a charge simply under MCL 750.520b(1)(a) (victim under age 13).
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, MCL 750.520b(1)(a) (victim under the age of 13). The date of the offense was listed as [310 Mich.App. 711] January 1, 2001, to November 30, 2008, with no particular date referred to. This was Count III of the felony information.
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, MCL 750.520b(1)(b) (victim at least 13 years of age but less than 16 and related to defendant by blood or affinity to the fourth degree). This was Count IV of the information.
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 MCL 750.520b(3), ordered that the sentence for Count I be served consecutively to the other three sentences, which were to be served concurrently with one another. In sum, defendant was sentenced to a combined minimum term of 43 years and 8 months, which will make him 79 years old at the time he is first eligible to be considered for parole.
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
him, usually in his bedroom. She said that most of the time she laid down with him, he would put his hands down her pants and into her vagina. According to MB, the incidents with defendant continued to occur regularly even after [310 Mich.App. 712] her sister, AB, left for boarding school in summer 2008, until defendant moved out in November 2008. MB said she did not tell anyone about defendant's abuse until her sixteenth birthday, when she told her boyfriend.
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. [310 Mich.App. 713] Each girl testified that she was unaware that defendant had been abusing the other two girls.
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 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 130 (1999), quoting People v Allen, 201 Mich.App. 98, 100; 505 N.W.2d 869 (1993).
Defendant correctly notes that there was no forensic evidence corroborating the victims' testimony; however, [310 Mich.App. 714] it has long been settled that a complainant's testimony regarding a defendant's commission of sexual ...