BY BENJAMIN J. GOHS, NEWS EDITOR
IN-DEPTH STORY – 3,205 WORDS
Warning: this story contains descriptions of sex crimes
The Michigan Court of Appeals recently upheld the February 2014, convictions of Matthew John Scotton but ruled his prison sentence must be reconsidered.
The Charlevoix man was sentenced, back in March 2014, to between 180 and 480 months in prison for his conviction on charges of first degree criminal sexual conduct (CSC I) for sexual penetration through use of force causing injury, assault with a dangerous weapon and domestic violence.
“Officers were doing a well-being check on the victim who initially told them that everything was okay,” stated Charlevoix County Prosecuting Attorney Allen Telgenhof in a March 2014 press release. “But, the officers, particularly (Charlevoix City Police) Chief Gerard Doan, knew that something didn’t seem right and went back to the residence to investigate further. The victim then was separated from the assailant and told police what had happened.”
Scotton’s crimes occurred on Aug. 28, 2013 at a condominium in Charlevoix.
The Michigan Court of Appeals justices addressed Scotton’s arguments in his appeal individually below:
In a Nov. 24, written opinion from the State of Michigan Court of Appeals, justices Patrick M. Meter, Stephen L. Borrello and Jane M. Beckering disagreed with Scotton’s claims that there was insufficient evidence to support the CSC I conviction.
According to the justices, Scotton was re-sentenced after filing his claim of appeal. He then appealed the re-sentencing. So, the justices consolidated the appeals.
“A claim of insufficient evidence is reviewed de novo, in a light most favorable to the prosecution, to determine whether the evidence would justify a rational jury’s finding that the defendant was guilty beyond a reasonable doubt,” the justices wrote.
According to MCL 750.520b, “A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration.”
According to the court of appeals documents, Scotton’s sole argument is that the prosecutor failed to produce sufficient evidence to satisfy the “personal injury” element.
According to the justices, “personal injury” under the statute is defined as “bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of asexual or reproductive organ” and that the victim’s injury “need not be permanent or substantial.”
“Defendant’s argument is without merit,” the justices stated. “The victim testified that defendant, after shoving her to the ground, forced her mouth apart to achieve oral penetration, which left bruising and scratches on her mouth and face. The victim also testified that she tasted blood and felt her mouth swelling as a result of defendant’s actions and the injuries that she received. This evidence was sufficient to support a finding that the victim was subjected to a personal injury.”
Scotton then argued that the trial court abused its discretion in admitting certain photographs taken by a registered sexual assault nurse examiner who interviewed and examined the victim.
The justices disagreed with Scotton’s assertion.
“At trial, defendant objected to the admission of photographs taken by the nurse because they were not given to the defense until the evening before the trial, violating discovery rules. The prosecutor responded that she sent the photographs to defendant ‘about ten minutes probably after our office received them the day before trial started,’ and could not explain why her office had not received them from the police until that time,” justices wrote in their opinion.
“The court asked defense counsel ‘if [the photos] were delivered six months ago, how would it be different today?’ Counsel responded that, had he received the photos earlier, he could have called as a witness a police officer who had also taken photographs and explored why the initial police photographer did not take photographs of some of the injuries that appeared in the nurse’s photographs.”
They further stated, “The trial court noted that defendant had notice of the nurse’s testimony about the injuries and had the other police photographs, which showed most of the injuries, and then concluded that there was not sufficient prejudice from the discovery violation to deny admission.”
The justices wrote that they found no abuse of discretion in the trial court’s decision to allow the prosecutor to admit the photographs into evidence.
“The record reveals that the late disclosure of the photographs was inadvertent; the prosecutor received them on the eve of trial. This is not an ‘egregious’ violation of the discovery rules that would warrant exclusion,” the justices stated… “Moreover, defendant cannot establish prejudice. The photographs were admissible, and our review of them shows nothing inappropriate or otherwise unfairly prejudicial about them. And defendant can hardly claim he was surprised by the photographs, given that the photographs depicted injuries that had been described in police reports and other materials made available to him.”
The justices also wrote that, because several witnesses testified about the extent of the victim’s injuries, they declined to find that the photographs made any difference in the case.
“While defendant argued at trial that prejudice arose from not being able to question a police photographer—who took different photographs of the victim’s injuries—why she did not take photographs of the same injuries that the nurse did, we find no merit in such an argument,” the justices stated.
“Defendant does not explain what he would have hoped to accomplish with his questioning of the first photographer. Nor does he provide any affidavits or other evidence of testimony he could have elicited. We note that while the photographers took photographs of different injuries, the differences in photographs could be explained by something simple and innocuous, such as the first photographer might not have noticed all of the injuries. Or, perhaps each photographer had a different investigative purpose in mind, and would not have thought to take the exact same set of photographs.”
The justices added, “With no offer of proof, we are left to speculate. We will not find prejudice based on speculation.”
Scotton’s appeal also framed this issue as a constitutional one.
However, the justices stated, his brief contained no such argument.
“[W]e reject any constitutional claim defendant could make in this regard,” they stated.
Scotton also argued the trial court erred when it allowed a nurse to testify as a lay witness.
According to appeals court documents:
At trial, an issue arose as to whether the prosecutor could call the sexual assault nurse examiner who interviewed and examined the victim as an expert witness.
[Scotton’s defense] objected to her testifying as an expert on the grounds that he had not received her curriculum vitae (CV) and she had not been labeled as an expert on the witness list. Defendant agreed that “she can still testify as a layperson,” but did not want her to give any expert opinion testimony concerning whether the victim’s injuries were caused by or consistent with the alleged sexual assault.
Counsel later reiterated, “I don’t have a problem with her coming in and testifying. It’s whether
or not it’s [as] an expert.”
The trial court agreed with defendant’s argument and allowed the nurse to testify as to the procedures she performed and what she observed, but, due to plaintiff’s failure to comply with the CV and notice requirements, the court forbade her from testifying as an expert witness.
Now, defendant is arguing that the trial court erred in allowing the nurse to testify as a lay witness. We hold that this issue has been waived.
Defendant induced the court into ruling the way it did—to allow the witness to testify as a lay witness—and cannot now claim on appeal that the trial court’s decision to do as he asked was erroneous.
“A defendant should not be allowed to assign error on appeal to something his own counsel deemed proper at trial.” People v Green, 228 Mich App 684, 691; 580 NW2d 444 (1998). “To do so would allow a defendant to harbor error as an appellate parachute.” Id.
According to the justices, the nurse in question did not give expert testimony. She merely testified concerning her procedures and observations regarding the victim in this case.
“[G]iven that the trial court ruled in favor of defendant and prevented the nurse from giving any expert testimony, it is unclear on what grounds the trial court could have ordered a continuance that was not requested by either party,” wrote the justices.
They further stated, “To the extent defendant argues that he was denied his constitutional rights under the Sixth and Fourteenth Amendments, he abandons those arguments by failing to develop them.”
Scotton argued in his appeal that the Charlevoix trial court erred when it scored his prior record variable (PRV) 7, offense variable (OV) 3, OV 4, OV 10, and OV 11.6.
According to the justices, under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.
A. PRV 7 – Scotton was scored 10 points for PRV 7. PRV 7 concerns “subsequent or concurrent felony convictions,” and 10 points is appropriate if “[t]he offender has 1 subsequent or concurrent conviction.” MCL 777.57(1)(b).
“Here, defendant was convicted of two felonies, CSC I and felonious assault. The CSC I conviction was the sentencing offense and the felonious assault was a subsequent or concurrent conviction,” wrote the justices. “This subsequent or concurrent conviction was sufficient to support the 10-point score for PRV 7, and defendant has provided no argument as to why it would not qualify under the statute.”
They added, “Accordingly, we uphold the trial court’s scoring decision with regard to PRV 7.”
B. OV 3 – Scotton was scored 10 points for OV 3. OV 3 covers “physical injury to victim,” and 10 points is appropriate if there is evidence that a “bodily injury requiring medical treatment occurred to a victim.” MCL 777.33(1). The phrase “requiring medical treatment” “refers to the necessity for treatment and not the victim’s success in obtaining treatment.” MCL 777.33(3).
Additionally, a score of five points is appropriate if a “bodily injury not requiring medical treatment occurred to a victim.” MCL 777.33(1)(e). The statute also states: “Do not score 5 points if bodily injury is an element of the sentencing offense.” MCL 777.33(2)(d).
“Defendant asserts that ‘[t]his Court has agreed with [defendant]that if bodily injury is an element of [the] sentencing offense OV 3cannot be scored.’ However, the statute does not preclude all scoring under OV 3 when bodily injury is an element of the sentencing offense,” wrote the justices. “By its plain language, it only precludes a defendant from being scored pursuant to the five-point category—in which the bodily injury does not require medical treatment—if bodily injury is an element of the sentencing offense.”
According to the justices, the prohibition against scoring 5 points under MCL 777.33(2)(d) makes no mention of a scenario where bodily injury does require medical treatment, and they decline to insert such language into the statute. The trial court is to score the “highest number of points” under OV 3.
“Here, the fact that the victim suffered bodily injury requiring medical treatment necessitated a score of 10 points; nothing in the plain language of the statute suggests such a score was improper,” stated the justices… “Defendant has provided no authority, nor have we found any, indicating that a defendant cannot be scored 10 points under OV 3—which entails bodily injury requiring medical treatment—when bodily injury is an element of the sentencing offense.”
They further stated, “Indeed, the instant case does not involve a scenario where the legislature has explicitly stated that a sentencing court is to disregard a factor that was an element of the sentencing offense when scoring the offense variables…. Furthermore, a preponderance of the evidence supports a finding that the victim required medical treatment, which included x-rays. Accordingly, we uphold the trial court’s scoring decision with regard to OV 3.”
OV 4 – Defendant was scored 10 points for OV 4. OV 4 covers psychological injury and 10 points is appropriate if “[s]erious psychological injury requiring professional treatment occurred to a victim.” Also, no points are scored when “[n]o serious psychological injury requiring professional treatment occurred to a victim.”
In his appeal, Scotton argued that his victim had pre-existing psychological injury and that there was insufficient evidence to prove he caused it.
According to Scotton’s appeal, his victim had pre-existing psychological injuries, including depression, due to her husband’s death, the anxiety associated with being responsible for two homes, the fact that she suffered from “empty nest syndrome,” and the fact that she had lost her cat, and that there was no
“professional testimony” establishing that she had received treatment.
“As the trial court noted, there is no ‘professional testimony’ requirement. The record reveals that the victim was seen by a psychiatrist for post-traumatic stress disorder and had stated that she had trouble sleeping because she kept reliving the event,” wrote the justices. “She also reported that she no longer felt safe at the condominium where the assault occurred. Accordingly, the court found the score of 10 points for OV 4 appropriate.”
The justices added, “Since the record supports the conclusion that the psychological injury was
related to the crime, there is no merit to defendant’s argument.”
D. OV 10 – Scotton was scored 10 points for OV 10.
According to court documents, OV 10 covers “exploitation of a vulnerable victim,” and directs the trial court to score 10 points if “[t]he offender exploited . . . a domestic relationship.”
The justices stated:
On appeal, defendant asserts that there was no domestic relationship.
However, he and the victim were in a romantic relationship, and defendant had his own key and had moved into the victim’s condominium in Charlevoix.
That defendant or the victim may have also maintained other residences does not alter the conclusion that the two were in a cohabitating relationship.
This case is distinguishable from Jamison in the sense that defendant did more than merely keep some of his belonging’s at the victim’s condominium.
Rather, defendant in the instant case moved into the victim’s condominium,which was a residence she frequented as she pleased.
There is nothing in Jamison that requires the cohabitation to be exclusive or every day.
Indeed, if that were the case, people who traveled for work or were often away from home would not be considered to be in a cohabitating relationship.
Here, the two were clearly residing together in the condominium on the date when the assault occurred.
Accordingly, we uphold the trial court’s scoring decision with regard to OV 10.7
E. OV 11 – Defendant was scored 25 points for OV 11.
OV 11 covers criminal sexual penetration. A score of 25 points is appropriate if at least one criminal sexual penetration occurred.
According to the justices, the instructions to OV11 state that all sexual penetrations of the victim by the offender arising out of the sentencing offense should be counted in scoring OV 11 but a trial court should not score points for the one penetration that forms the basis of a CSC I offense.
The justices state that the sole issue here is whether a sexual penetration that occurred at 3 a.m.—several hours after the sentencing offense—was one “arising out of the sentencing offense.”
“As already discussed, we have previously defined ‘arising out of’ to suggest a causal connection between two events of a sort that is more than incidental,” wrote the justices. “We continue to believe that this sets forth the most reasonable definition of ‘arising out of.’ Something that (arises out of) or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen. For present purposes, this requires that there be such a relationship between the penetrations at issue and the sentencing offenses.”
According to appeals court documents, the penetration that occurred at 3 a.m. arose out of the sentencing offense because it occurred as part of a continuous sequence of criminal acts that were more than just incidentally related to each other. “The penetrations occurred at the same place, at approximately the same time, and a preponderance of the evidence shows that the fear instilled in the victim during the first penetration contributed to the occurrence of the second act,” the justices stated.
“According to the victim’s testimony, if not for the earlier sexual attack and threats from defendant, which occurred in the evening hours before the 3 a.m. penetration, she would not have submitted to the subsequent penetration. The victim testified that, during the second incident, she believed that the knife defendant had previously wielded in a threatening manner was still in the room, and she was terrified given the night’s previous events.”
They added, “In short, there was a sufficient ’cause and effect relationship’ between the two incidents. Thus, a preponderance of the evidence supports a finding that the second penetration arose out of the sentencing offense.”
The appeals court upheld the trial court’s scoring decision regarding OV 11.
Scotton claimed at his sentencing and again in his appeal that his Sixth and Fourteenth
Amendment rights were violated by judicial fact-finding that increased the floor of the permissible sentence.
“[O]ur Supreme Court agreed with this general proposition and held that, for cases where a sentence was imposed on or before July 29, 2015, judicial fact-finding changed the recommended guideline range, and there was no upward departure, a defendant is entitled to a remand … for a decision by the trial court as to whether it would have imposed a different sentence knowing the guidelines range is now advisory,” wrote the justices.
“Here, at a minimum, it is clear that the 25-point score for OV11 was the result of judicial fact-finding. Indeed, the jury acquitted defendant of the CSC I charge related to the sexual penetration that occurred at 3 a.m., and which formed the basis for the trial court’s 25-point score for OV 11.”
They further stated, “This 25-point score increased defendant’s OV total from 30 points to 55 points, which put defendant in OV level III, with a corresponding guideline range of 81 to 135 months. Without this 25-point score, defendant would have been in OV level II, with a corresponding guideline range of 51 to 85 months.”
Ultimately, the appeals court justices found that Scotton met the requirements for a “Crosby” remand as set forth in Lockridge in order to determine whether the error was harmless beyond a reasonable doubt.
Explanation of how the Lockridge case applies:
“[O]n a Crosby remand, a trial court should first allow a defendant an opportunity to inform the court that he or she will not seek resentencing. If notification is not received in a timely manner, the court (1) should obtain the views of counsel in some form, (2) may but is not required to hold a hearing on the matter, and (3) need not have the defendant present when it decides whether to resentence the defendant, but (4) must have defendant present, as required by law, if it decides to resentence the defendant. Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the circumstances existing at the time of the original sentence.”
The justices affirmed Scotton’s convictions but remanded the case back to the lower court regarding Scotton’s prison sentence.