People v. Dilling
People v. Dilling
Concurring in Part
(concurring in part and dissenting in part). I respectfully dissent from the reasoning and
Opinion of the Court
Defendant was convicted by a jury of two counts of first-degree criminal sexual conduct involving a person less than thirteen years of age, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and was sentenced to two concurrent terms of fifteen to thirty years’ imprisonment. Defendant was tried and sentenced as an adult, although he was fifteen years old when the offenses occurred and sixteen years old when he was tried and sentenced. We affirm defend
As Judge Neff noted in her opinion in People v Hack, 219 Mich App 299; 556 NW2d 187 (1996), a case involving a codefendant, the facts here are “particularly disturbing.” Defendant and several other young men, after skipping school and consuming alcoholic beverages, forced a three-year-old girl and her one-year-old male cousin to engage in sexual acts. This activity was videotaped, and the young men watched the tape. Defendant was prosecuted with respect to two particular episodes of sexual activity shown on the videotape. Defendant both operated the camera and at times can be heard on the tape saying things from which a jury could readily find that defendant was an active participant in forcing the two children to engage in sexual acts. The evidence at trial included an eighteen-minute segment of the videotape that showed the two sexual episodes for which defendant was charged.
i
The prosecution initially filed a six-count petition in the probate court on March 12, 1993, charging defendant as a juvenile. Although entitled to proceed against defendant under the automatic waiver provision of MCL 764. If; MSA 28.860(6), the prosecution did not move to waive jurisdiction in the probate court within fourteen days as required by MCR 5.950(A)(1). But on April 5, 1993, the prosecution moved to dismiss the probate court proceeding in light of the seriousness of the offenses, information allegedly recently discovered, and the prosecution’s belief that the offenses were part of a conspiracy. The motion to dismiss was
Defendant argues that it was an abuse of discretion for the probate court to dismiss the petition, that the circuit court never had jurisdiction over defendant, and that the prosecution acted in bad faith. While it does seem that the prosecution managed to circumvent the fourteen-day requirement of MCR 5.950(A)(1), we conclude that the prosecution was not precluded from proceeding as it did and that the circuit court had jurisdiction.
Here, there was no prejudice to defendant due to the dismissal of the probate petition and the filing of the complaint in the circuit court. Defendant was released on bond shortly after he was brought before the probate court. The circuit court complaint was filed approximately twenty-four days after the case commenced in the probate court, within the twenty-eight-day period for conducting a probable cause hearing in the probate court. MCR 5.950(B)(1)(a). The prosecution commenced the circuit court proceeding immediately after the probate petition was dismissed. Under these circumstances, there was no violation of defendant’s due process rights. Nor does it appear that the prosecution acted in bad faith. When defendant was charged, the case was still developing and the videotape was being examined and repaired by an expert.
This case is somewhat similar to People v McCoy, 189 Mich App 201; 471 NW2d 648 (1991). In McCoy, this Court found that the prosecution could reinitiate
As suggested in McCoy, the situation presented here is similar to a case that is dismissed because of failure to provide a preliminary examination within twelve (now fourteen) days of an arraignment. MCL 766.4; MSA 28.922; People v Vargo, 139 Mich App 573; 362 NW2d 840 (1984). Vargo recognized that a defendant is not necessarily deprived of due process if a case is refiled after an initial complaint is dismissed. This Court approved reinstatement of the charges where there was no sign that the prosecution was trying to harass the defendant or to judge shop and there was additional evidence, even though the additional evidence could have been introduced in the first case.
Defendant here is no more prejudiced or deprived of due process than the defendants in McCoy and Vargo. Defendant had no absolute right to be treated as a juvenile, MCL 764.1f; MSA 28.860(6), and defendant cites no authority prohibiting the prosecution
n
Next, defendant raises four issues that address the question of what crime, if any, defendant committed. Defendant was charged with committing four counts of first-degree criminal sexual conduct involving penetration of a person under thirteen years of age, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). There was a count with respect to each child-victim for each of the two episodes on the videotape. The jury was instructed that defendant was charged with committing the offenses or with aiding and abetting someone else in committing the offenses, MCL 767.39; MSA 28.979. An aider and abettor may be convicted and punished as if he directly committed the offense, even if the principal is not convicted. People v Turner, 213 Mich App 558, 568-569; 540 NW2d 728 (1995).
Under the facts of this case, the jury could have found defendant guilty as a principal. Hack, supra at 303. As discussed in Hack, defendant’s culpability is direct rather than derivative. Defendant accomplished sexual penetration of a victim under the age of thirteen by forcing the three-year-old girl to perform fellatio on the one-year-old boy. As explained in Hack, the children were the instrumentalities through which defendant engaged in sexual penetration.
m
In his next four issues, defendant raises arguments relating to jury instructions, admission of the videotape, and eight instances of alleged prosecutorial misconduct. With regard to the jury instructions, we deem defendant’s arguments abandoned as being insufficiently briefed. Dresden v Detroit Macomb Hosp Corp, 218 Mich App 292, 300; 553 NW2d 387 (1996). Turning now to the videotape, we note that the same videotape was admitted at the trial of codefendant Christopher Hack and essentially the same arguments were raised and rejected in Hack’s appeal. Hack, supra at 308-310. Our analysis and conclusion is the same as that of this Court in Hack. Concerning defendant’s claims of prosecutorial misconduct, we find no instance where the alleged misconduct taken in context resulted in defendant being denied a fair trial. People v Lawton, 196 Mich App 341, 353; 492 NW2d 810 (1992).
In his tenth issue, defendant challenges the circuit court’s decision following a hearing pursuant to MCL 769.1(3); MSA 28.1072(3) and MCR 6.931(A) to sentence him as an adult. This Court reviews a trial court’s findings of fact under a “clearly erroneous” standard, while the trial court’s ultimate decision to sentence defendant as an adult is reviewed for an abuse of discretion. People v Passeno, 195 Mich App 91, 103-104; 489 NW2d 152 (1992).
Here, the trial court considered all the factors listed in MCR 6.931(E)(3)(a)-(f) before sentencing defendant as an adult. To the extent defendant argues to the contrary, defendant is incorrect. While the trial court had some question about whether defendant would be disruptive in a juvenile program, MCR 6.931(E)(3)(c)(ii), it was not clearly erroneous to determine that defendant would be disruptive, in light of the general nature of defendant’s conduct in the past. It is clear that the trial court considered the seriousness and particular circumstances of the offense. MCR 6.931(E)(3)(a). The trial court’s finding that defendant showed a repetitive pattern of offenses was supported by defendant’s criminal record, which had been accumulated in a fairly short time. MCR 6.931(E)(3)(c). As the trial court found, defendant’s behavior and record supported the conclusion that defendant would not be amenable to treatment in a juvenile setting. The evidence also supported the trial court’s finding that it was likely that defendant would be a danger to the public if he was released before the age of twenty-one. MCR 6.931(3)(d). Although whether the juvenile system could successfully rehabilitate defendant was a disputed point at the hearing,
Nor did the trial court abuse its discretion in ultimately deciding to sentence defendant as an adult. Defendant’s record was extensive, his crime was reprehensible, and the presentence investigation report (psir), a psychologist, and defendant’s juvenile probation officer all recommended that defendant be sentenced as an adult.
v
Defendant’s next four issues relate to sentencing. Defendant argues that it was error not to adjourn sentencing as requested by defense counsel, that there were errors in the presentence report that must be corrected, that the sentencing guidelines were incorrectly scored, and that the sentences imposed were disproportionate and excessive.
We have reviewed the denial of defendant’s request to adjourn sentencing and find no abuse of discretion. Lawton, supra at 348. It is apparent from the record that both defendant and his counsel had an adequate opportunity to review the PSIR before sentencing. Likewise, the basis of our review of the record, we conclude that defendant’s claim that error exists in the psir is without merit. Every alleged error was resolved by the trial court, although not always in defendant’s favor. MCR 6.425(D)(3)(a). To the extent that the PSIR was not amended to reflect the changes
Turning to defendant’s claims of error in the scoring of the sentencing guidelines, defendant claims error in scoring both the prior record variables (prv) and the offense variables (ov). Appellate review of guidelines calculations is limited, and a sentencing court has discretion in determining the number of points to be scored provided there is evidence on the record that adequately supports a particular score. People v Daniels, 192 Mich App 658, 674; 482 NW2d 176 (1992).
Here, we find no error in scoring ten points for prv 3 (juvenile — high severity adjudication). Defendant’s objection to this score is that his juvenile adjudications were invalid; however, no showing of invalidity has been made. Nor is there merit in defendant’s challenge to the scoring of five points for prv 4 (juvenile — low severity adjudications). There was ample evidence that defendant had two or three such adjudications, and it does not appear that this issue was raised below. MCR 6.429(C).
Defendant also challenges the scoring of fifteen points for ov 5 (victim carried away or held captive) and twenty-five points for ov 2 (bodily injury and/or victim subjected to terrorism). Codefendant Hack received similar scores for ov 5 and ov 2. We agree with the reasoning in Hack, supra at 313, regarding the scoring of ov 5, and conclude that ov 5 was correctly scored. The children were moved to a different
We find error, however, in the scoring of ov 2. The justification for the scoring of ov 2 was that the three-year-old girl was subjected to terrorism. “Terrorism” is defined by the guidelines as “conduct that is designed to increase substantially the fear and anxiety that the victim suffers during the offense.” The only evidence arguably supporting a finding of “terrorism” was that preceding the second episode the three-year-old girl was taken from her mother and was rather cruelly raised and carried by one or more of her limbs. The girl was crying when this occurred.
Despite the reprehensible nature of the conduct involved, there is no basis for finding that the conduct was designed to substantially increase the fear and anxiety of the three-year-old girl. Rather, the conduct was the means by which defendant and his accomplices moved the girl from one room to another so they could accomplish their objective of forcing an act of criminal sexual conduct. Our review of the evidence does not indicate conduct designed to cause the girl fear and anxiety. Rather, the young men did not care one way or another about the girl’s feelings.
The Hack panel did not reach this issue because the scoring of this variable made no difference in light of the magnitude of Hack’s total offense severity level. But subtracting the twenty-five points scored for ov 2 from defendant’s total score of sixty-five points reduces defendant’s offense severity level from IV to m. Accordingly, we remand to the trial court so that it can determine whether it would impose the same sentences in light of the changed guidelines.
VI
In his fifteenth issue, defendant raises six additional arguments that he claims have the cumulative effect of being so prejudicial that they deprived him of a fair trial. While it is possible that the cumulative effect of a number of errors may constitute error warranting revérsal, People v Morris, 139 Mich App 550, 563; 362 NW2d 830 (1984), here, defendant’s briefly mentioned and largely undeveloped additional claims of error lack merit.
vn
In his final two issues, defendant argues that any proceedings on remand should be before a different judge and in a different venue. We find no basis for replacing the trial judge on remand because the record does not reflect a biased judge. The trial judge understandably found this a troubling case, but the record does not reflect any faulty view or erroneous finding that would be a concern on remand. See People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986). Nor is there any reason for a change of venue.
Defendant’s convictions are affirmed. This matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Reference
- Cited By
- 12 cases
- Status
- Published