Opinion
364436
06-20-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES EDWARDS, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-008049-01-FC
Before: Christopher P. Yates, Stephen L. Borrello, Kristina Robinson Garrett, JJ.
PER CURIAM.
In 2018, after a backlog of DNA evidence was discovered in a Detroit Police Department warehouse, the DNA profile of defendant, James Edwards, was linked to a cold sexual assault case dating back to 2006. He was charged and convicted by a jury of three counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b, and sentenced to 75 to 125 years' imprisonment for each of his convictions. On appeal, Edwards makes several arguments, including that the late endorsement of an other-acts witness deprived him of his right to confrontation; the trial court improperly allowed unduly prejudicial other-acts testimony to be presented during trial; the jury's verdict was against the great weight of the evidence; and, the trial court incorrectly scored offense variables (OVs) 3, 4, 7, and 8. Edwards's claims lack merit. Accordingly, we affirm his convictions and sentences. But because the judgment of sentence failed to include Edwards's alias, "Robert Reed, Jr.," we remand for the ministerial correction of the judgment of sentence.
Before the trial court, Edwards acknowledged that he also uses the name "Robert Reed, Jr.," which appears in documents and transcripts in this matter. This name was not included in the judgment of sentence.
I. BACKGROUND
Edwards's convictions arise from the May 2006 sexual assault of 16-year-old CB. CB, then a student at Henry Ford High School in Detroit, arrived at school late to find the doors were locked. When no one responded to her knocks, she decided to return home. As she was walking back, a man approached her, grabbed her arm, and said he had a gun. Terrified, CB reluctantly cooperated as the man forced her from the sidewalk into a patch of bushes, where he sexually assaulted her multiple times. After the assaults, the man took CB's school identification card and a report card listing her home address and telephone number, and told her to count to 30 before she could leave.
When CB arrived home, she told her older brother what happened and he took her to the police station. CB gave a statement to a detective and completed a sexual assault examination (SANE exam) at a hospital. Later that month, Edwards called CB at her home and asked her, "do you know who this is," and threatened her family. CB, fearful that Edwards was watching her house and would harm her family, notified the police of the call. Although CB testified that she did not think that the police believed her allegations, the detective who interviewed CB denied this. In any event, despite the evidence given by CB, the case remained open for several years.
In 2018, CB's sexual assault kit was reexamined after thousands of untested kits were discovered in a Detroit Police warehouse. DNA was found on a swab collected during CB's SANE exam. The DNA profile was entered into a national database, and was matched to Edwards's DNA profile. Edwards was charged with three counts of CSC-I for engaging in separate acts of fellatio, digital-vaginal, and penile-vaginal penetration, under alternative theories that he committed the acts while armed with a weapon or article fashioned to be a weapon, or that he used force or coercion to commit the acts and caused personal injury, MCL 750.520b(1)(e) and (f).
At trial, CB identified Edwards as the man who sexually assaulted her, and she had selected Edward's photo in a photographic lineup in 2019. The trial court granted a last-minute motion to endorse an other-acts witness, JH, to testify that Edwards sexually assaulted her in 2008, an offense for which he was convicted in 2011. The jury was also informed that Edwards had additional CSC-I convictions in three other cases from 1976. Edwards represented himself at trial assisted by standby counsel. His main theory of the case was that he engaged in consensual sexual activity with CB for money, but when he refused to pay, CB fabricated the allegations against him. Edwards also argued that the police did not initially believe CB's report in 2006, which demonstrated that her allegations were not credible.
At the conclusion of trial, the jury convicted Edwards of all three counts of CSC-I. The court rejected Edwards's challenges to the scoring of numerous OVs, and sentenced him as noted above. This appeal followed.
II. RIGHT TO CONFRONTATION
Edwards claims that the trial court improperly granted the prosecution's late motion to endorse JH as an other-acts witness at trial. As a result, he argues that he was deprived of his right of confrontation because the late endorsement left him unprepared for cross-examination.
A. STANDARDS OF REVIEW
"A trial court's decision to permit or deny the late endorsement of a witness is reviewed for an abuse of discretion. A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v Yost, 278 Mich.App. 341, 379; 749 N.W.2d 753 (2008) (cleaned up). To the extent that Edwards argues that the late endorsement of JH as a trial witness violated his right of confrontation, that issue presents a question of constitutional law, which is reviewed de novo. People v Bruner, 501 Mich. 220, 226; 912 N.W.2d 514 (2018). De novo review means that we evaluate the issues independently and owe no deference to the trial court's decision. People v Beck, 504 Mich. 605, 618; 939 N.W.2d 213 (2019).
B. DISCUSSION
The United States and Michigan Constitutions guarantee criminal defendants the right to confront the witnesses against them. See U.S. Const, Am VI; Const 1963, art 1, § 20. A primary objective of the Confrontation Clause is to compel witnesses to "stand face to face with the [factfinder] in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." People v Buie, 285 Mich.App. 401, 408; 775 N.W.2d 817 (2009) (cleaned up). The Confrontation Clause has four elements: "(1) physical presence, (2) an oath, (3) cross-examination, and (4) observation of demeanor by the trier of fact ...." Id. (cleaned up).
Under MCL 767.40a(4), "[t]he prosecuting attorney may add or delete from the list of witnesses he or she intends to call at trial at any time upon leave of the court and for good cause shown or by stipulation of the parties." The purpose of MCL 767.40a is "to provide notice to the accused of potential witnesses." People v Everett, 318 Mich.App. 511, 518; 899 N.W.2d 94 (2017). In People v Herndon, 246 Mich.App. 371, 402-403; 633 N.W.2d 376 (2001), this Court affirmed the trial court's conclusion that the prosecution had established "good cause" for the late endorsement of a witness, given that a witness who the prosecution had originally planned to call could not provide the expected testimony.
The record shows that JH was identified as a potential witness as early as October 2019. In 2020, after the trial court granted the prosecutor's motion to introduce other-acts testimony under MCL 768.27b, Edwards received documents related to JH's proposed testimony as an other-acts witness. Edwards moved to suppress portions of JH's proposed testimony, but the trial court denied his motion. In August 2020, the prosecution refiled its witness list, identifying MB, one of Edward's earlier victims, as the sole other-acts witness to be called at trial. On the first day of trial, the prosecutor moved to endorse JH as a witness because MB was suddenly unavailable. MB's unavailability qualifies as good cause for the late endorsement. See id.
At trial, Edwards only objected to JH's late endorsement because he had not brought the materials he would need to cross-examine her. But JH did not testify until the fifth day of trial, giving Edwards time to prepare for her testimony. Further, Edwards was aware of JH not only because she was identified as a potential witness early on in the proceedings, but also because she had testified as a complainant in a previous criminal case against him. Thus, Edwards cannot claim that he was unaware of JH or her potential testimony. In fact, when responding to the prosecutor's motion to endorse JH as a witness, Edwards agreed that he "already knew about this potential witness." Because the sudden unavailability of MB qualified as good cause for the late endorsement of JH, Edwards was aware of JH's potential to be called as a witness and her proposed testimony long before trial, and he had time to prepare for her testimony, the trial court did not abuse its discretion by allowing the late endorsement of JH as a witness.
By extension, Edwards was not deprived of his right to confront JH. He had notice that JH may be called as a witness, was aware of her expected testimony, and, most importantly, he was able to cross-examine her at trial. Although Edwards initially objected to JH's testimony because he did not have the materials he needed to cross-examine her, he had at least four days before she testified to prepare his cross-examination. Nothing in the record suggests that he could not obtain the materials he needed for his cross-examination. Thus, there is no merit to Edwards's argument that JH's late endorsement interfered with his right to confrontation.
III. OTHER-ACTS EVIDENCE
Edwards argues that the evidence of his sexual assault of JH should have been excluded under MRE 403 because it was unduly prejudicial and "eclipsed any chance that the jury might at least consider the believability" of his version of the events involving CB.
A. STANDARDS OF REVIEW
By objecting to the prosecutor's pretrial motion to allow the other-acts evidence, Edwards preserved this issue for appeal. See People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019). We review a preserved evidentiary challenge for an abuse of discretion. Id. at 251. Consistent with this deferential posture, "a decision on a close evidentiary question ordinarily cannot be an abuse of discretion." Id. at 251-252.
B. DISCUSSION
Edwards argues that the evidence of his sexual assault of JH should have been excluded under MRE 403 because it was unduly prejudicial.
MRE 404(b) generally prohibits the use of evidence of other crimes to establish the defendant's character or propensity to commit an offense, but MCL 768.27a is an exception to the rule. The statute states that "in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant." MCL 768.27a(1). The purpose of MCL 768.27a is to allow juries in cases involving sexual misconduct against minors "to consider evidence of other acts the defendant committed to show the defendant's character and propensity to commit the charged crime." People v Watkins, 491 Mich. 450, 486; 818 N.W.2d 296 (2012).
There is no dispute that the conduct alleged by CB constituted a "listed offense against a minor" as defined by MCL 768.27a(2), nor does Edwards suggest that the evidence is irrelevant.
Evidence admissible under MCL 768.27a may still be excluded under MRE 403, however. Id. at 481. MRE 403 provides that relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." In Watkins, 491 Mich. at 487-488, our Supreme Court enumerated nonexhaustive considerations that a court may evaluate when determining whether other-acts evidence should be excluded under MRE 403:
(1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant's and the defendant's testimony.
"[W]hen applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect." Id. at 487.
There were several similarities between the incident involving JH and the events described by CB that increased the probative value of JH's testimony. Like CB, JH was a high school girl walking home from school along a main road when Edwards approached her. Edwards threatened JH with a gun and took her to a secluded location. JH and CB both claimed that Edwards engaged in multiple sexual acts with them. And, similar to what CB described, JH said that Edwards took her school identification, threatened her and her family if she reported him, and instructed JH to count to a certain number before leaving the area. The offense against CB occurred in May 2006, and the offense against JH occurred in November 2008. The reliability of JH's testimony was supported by the fact that a jury found defendant guilty of third-degree and fourth-degree CSC for the offenses against her. Contrary to CB's testimony, Edwards claimed that the sexual activity between him and CB was consensual and took place in the bathroom of his friend's apartment. Because there were no eyewitnesses to the alleged assault and the significant passage of time made it difficult to verify the location where CB claimed the assault occurred, there was a heightened need for evidence probative of the veracity of CB's testimony. Reading this evidence together, the similarities between JH's assault and the events described by CB enhanced the probative value of JH's testimony.
Edwards complains that JH's testimony was unfairly prejudicial because it made it less likely that the jury would believe his testimony that the sexual activity with CB was consensual and that CB was lying about the assaults. But his argument only illustrates the probative value of JH's testimony. That JH's testimony damaged Edwards's defense theory and enhanced the veracity of CB's testimony is not a basis for concluding that it was unfairly prejudicial, especially considering that MCL 768.27b is specifically intended to allow juries to consider similar-acts evidence to determine a defendant's propensity to commit criminal conduct. Watkins, 491 Mich. at 486. Thus, the jury could consider JH's testimony.
IV. GREAT WEIGHT OF THE EVIDENCE
Edwards argues that the evidence presented during trial did not support the jury's verdict because the DNA evidence collected from CB's SANE exam and expert witness testimony supports his claim that he and CB engaged in consensual sexual activity.
A. STANDARD OF REVIEW
Because Edwards did not move for a new trial in the trial court, his argument is unpreserved for appellate review. People v Cameron, 291 Mich.App. 599, 617; 806 N.W.2d 371 (2011). Unpreserved challenges to the great weight of the evidence are reviewed for plain error affecting the defendant's substantial rights. Id. at 618. Establishing the infringement of substantial rights generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Reversal will only be warranted when the plain error leads to the conviction of an actually innocent defendant or when an error affects the fairness, integrity, or public reputation of judicial proceedings. [People v Bailey, 330 Mich.App. 41, 53-54; 944 N.W.2d 370 (2019) (cleaned up).]
B. DISCUSSION
A verdict is against the great weight of the evidence and a new trial should be granted when the evidence preponderates heavily against the verdict and a serious miscarriage of justice would otherwise result. Generally, a verdict may only be vacated when the verdict is not reasonably supported by the evidence, but rather it is more likely attributable to factors outside the record, such as passion, prejudice, sympathy, or other extraneous considerations. Questions regarding credibility are not sufficient grounds for relief unless the testimony contradicts indisputable facts or laws, the testimony is patently incredible or defies physical realities, the testimony is material and . . . so inherently implausible that it could not be believed by a reasonable juror, or the testimony has been seriously impeached and the case is marked by uncertainties and discrepancies. [People v Solloway, 316 Mich.App. 174, 182-183; 891 N.W.2d 255 (2016) (cleaned up).]
The elements of CSC-I are that (1) the defendant engaged in sexual penetration, (2) with one or more aggravating circumstances present. See MCL 750.520b(1); People v Duenaz, 306 Mich.App. 85, 106; 854 N.W.2d 531 (2014). Here, Edwards was charged with committing acts of fellatio, digital-vaginal, and penile-vaginal penetration under alternative theories that he committed the acts while armed with a weapon or article fashioned to be a weapon, or that he used force or coercion to commit the acts and caused personal injury. The jury need not agree on which aggravating circumstance is present to properly find Edwards guilty of CSC-I. People v Gadomski, 232 Mich.App. 24, 31; 592 N.W.2d 75 (1998). Additionally, a victim's testimony about a defendant's commission of sexual acts, standing alone, is sufficient evidence to support a CSC conviction. People v Bailey, 310 Mich.App. 703, 714; 873 N.W.2d 855 (2015).
During trial, CB described acts of fellatio, digital-vaginal, and penile-vaginal penetration, but no DNA was detected in oral and vaginal swabs from her SANE exam, and DNA was recovered only from her underwear and a "rectal swab," despite CB's denial that there was any anal penetration. According to Edwards, this scientific evidence refutes CB's testimony and, instead, supports his claim that CB consented to having anal sex with him for money. But other evidence presented at trial explained that the physical evidence discovered during CB's SANE exam was not inconsistent with her allegations that Edwards committed multiple sexual acts against her, even if he did not penetrate her anally. Jessica Ojala, who testified as an expert in SANE examinations, stated that the rectal swab collected from CB could have picked up fluids secreted from the vagina that ended up in the anus. Contrary to Edwards's argument, the presence of his DNA on the rectal swab did not conclusively prove that there was anal penetration, or refute that there was vaginal penetration. There was also evidence suggesting that the medical professional who performed the SANE exam may have lacked experience, as evidenced by the failure to clarify whether CB's rectal sample was obtained from her rectum or anus. Because the presence of Edwards's DNA on the rectal swab did not seriously impeach or render CB's testimony implausible, and CB's testimony alone was sufficient to establish that Edwards sexually assaulted her, the jury's verdict was not against the great weight of the evidence.
V. OV SCORING
Finally, Edwards argues that he is entitled to resentencing because the trial court improperly scored OVs 3, 4, 7, and 8.
A. STANDARD OF REVIEW
"This Court reviews for clear error a trial court's findings in support of a particular score under the sentencing guidelines but reviews de novo whether the trial court properly interpreted and applied the sentencing guidelines to the findings." People v McFarlane, 325 Mich.App. 507, 531-532; 926 N.W.2d 339 (2018). Clear error exists when this Court is "left with a definite and firm conviction that a mistake was made." People v Abbott, 330 Mich.App. 648, 654; 950 N.W.2d 478 (2019). Under the sentencing guidelines, the trial court's factual findings must be supported by a preponderance of the evidence. People v Lydic, 335 Mich.App. 486, 490; 967 N.W.2d 847 (2021). The trial court may consider all record evidence, including the presentence investigation report (PSIR), when assessing points under the sentencing guidelines. People v Montague, 338 Mich.App. 29, 55; 979 N.W.2d 406 (2021). The court may also draw "reasonable inferences arising from the record evidence" to sustain the scoring of an offense variable. People v Barnes, 332 Mich.App. 494, 499; 957 N.W.2d 62 (2020) (cleaned up).
B. OV 3
Edwards argues OV 3 should be assessed five points because CB did not sustain the type of injury contemplated by MCL 777.33.
OV 3 considers physical injury to a victim. MCL 777.33(1). A score of 10 points is appropriate if "[b]odily injury requiring medical treatment occurred to a victim." MCL 777.33(1)(d). Five points is assessed if "[b]odily injury not requiring medical treatment occurred to a victim." MCL 777.33(1)(e). If "[n]o physical injury occurred to a victim," a trial court must assess zero points for OV 3. MCL 777.33(1)(f). For purposes of scoring OV 3, a" 'bodily injury' encompasses anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence." People v McDonald, 293 Mich.App. 292, 298; 811 N.W.2d 507 (2011). In People v Barnes, 332 Mich.App. 494, 500; 957 N.W.2d 62 (2020), in which the defendant was convicted of CSC-I and CSC-III, this Court held that the victim suffered a bodily injury requiring medical treatment because a SANE nurse administered emergency contraception and medication to prevent sexually transmitted infections, thereby upholding the trial court's assessment of 10 points for OV 3.
Here, the trial court assessed 10 points for OV 3 because the prosecutor produced evidence that CB was administered treatment and prescribed medication for pregnancy and sexually transmitted diseases. Because this evidence is sufficient to support the 10-point score for OV 3, there is no error.
C. OV 4
Edwards claims the trial court erred in assessing points for OV 4 because the record did not show CB sought professional treatment for any psychological injury.
A trial court should score 10 points for OV 4 when "[s]erious psychological injury requiring professional treatment occurred to a victim[.]" MCL 777.34(1)(a). It is proper to score 10 points under OV 4 "if the serious psychological injury may require professional treatment." MCL 777.34(2). A "trial court may assess 10 points for OV 4 if the victim suffers, among other possible psychological effects, personality changes, anger, fright, or feelings of being hurt, unsafe, or violated" even if treatment has not been sought. People v Armstrong, 305 Mich.App. 230, 247; 851 N.W.2d 856 (2014).
At sentencing, CB explained that as a result of the sexual assault she had experienced pain, guilt, and shame, felt consumed by fear, and had "lived a life of fear, depression, and regret," for almost 16 years. Additionally, the victim impact statement in Edwards's PSIR states that as a result of the assault, CB suffered from depression and suicidal thoughts, and was hospitalized after an attempted suicide. This evidence supports the trial court's finding that Edwards's conduct caused a serious psychological injury requiring professional treatment. Armstrong, 305 Mich.App. at 247. Edwards quotes an isolated portion of CB's victim impact statement where she remarked that she is now "stronger, smarter, tougher, and braver than before" to argue that she did not suffer a severe psychological injury. This disingenuous argument fails to recognize that CB's statement reflects her current feelings more than 16 years after the sexual assault, and does not negate the serious psychological injury that she endured for nearly two decades after her assault. Accordingly, the trial court did not err by assessing 10 points for OV 4.
D. OV 7
Edwards claims the trial court erred by assessing 50 points for OV 7 because his actions during the commission of his crime were not similarly egregious to the conduct contemplated by MCL 777.37.
OV 7 addresses aggravated physical abuse. MCL 777.37(1). A court must score 50 points for OV 7 if "[a] victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense." MCL 777.37(1)(a). "[T]he 'similarly egregious conduct' clause is a discrete alternative to conduct that does constitute sadism, torture, or excessive brutality." People v Walker, 330 Mich.App. 378, 389; 948 N.W.2d 122 (2019). "In other words, if a defendant treated a victim with excessive brutality, 50 points should be scored under OV 7 even if the defendant did not intend to substantially increase the victim's fear and anxiety." Id. Further, "[b]ecause of the language 'during the offense' used in MCL 777.37(1)(a), the focus of OV 7 is solely on conduct occurring during the sentencing offense." People v Rodriguez, 327 Mich.App. 573, 578; 935 N.W.2d 51 (2019) (cleaned up). The only other possible score for OV 7 is zero points. MCL 777.37(1)(b). "[C]ourts may consider conduct inherent in a crime when scoring offense variables." People v Hardy, 494 Mich. 430, 442; 835 N.W.2d 340 (2013). "The relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to make a victim's fear or anxiety greater by a considerable amount." Id. at 443-444 (cleaned up).
To the extent that the trial court relied on the phone call Edwards made to CB two weeks after her sexual assault when assessing points for OV 7, this is error because the court was only permitted to consider conduct occurring during the offense. Rodriguez, 327 Mich.App. at 578. But regardless of this error, there was sufficient evidence presented to show that Edwards engaged in conduct beyond the minimum required to commit the sexual assaults to substantially increase CB's fear and anxiety. Edwards approached then 16-year-old CB while she was walking home and threatened her with a gun so that she would follow him to a secluded area. After he assaulted her multiple times, he went through her backpack and stole her school identification and report cards, which contained her address and phone number, and forced her to close her eyes and count to 30 before she could escape. These acts qualify as torturous or sadistic conduct that were designed to substantially increase CB's fear and anxiety. Accordingly, OV 7 was correctly assessed 50 points.
E. OV 8
Finally, Edwards argues OV 8 should not have been assessed 15 points because he did not move CB to a place of greater danger.
OV 8 addresses "victim asportation or captivity." MCL 777.38(1). A trial court properly assesses 15 points for OV 8 when "[a] victim was asported to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense." MCL 777.38(1)(a). Asportation means that the victim was carried away or removed; the statute does not require "that the movement be greater than necessary to commit the sentencing offense." People v Barrera, 500 Mich. 14, 21; 892 N.W.2d 789 (2017). "A victim is asported to a place or situation involving greater danger when moved away from the presence or observation of others." People v Chelmicki, 305 Mich.App. 58, 70-71; 850 N.W.2d 612 (2014).
CB stated that before sexually assaulting her, Edwards moved her away from the sidewalk along a main road into a wooded area and some shrubs, where she was secluded from the view of other people. This qualifies as a place of greater danger because CB moved away from the presence or observation of others. Id. Thus, the trial court did not err by assessing 15 points for OV 8.
We affirm Edwards's convictions and sentences, but remand for the limited purpose of adding Edwards's alias, "Robert Reed, Jr.," to the judgment of sentence. We do not retain jurisdiction.