Opinion
351891
10-28-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JHON ERIC MARTINEZ-MENDOZA, Defendant-Appellant.
UNPUBLISHED
Allegan Circuit Court LC No. 18-022097-FH
Before: Ronayne Krause, P.J., and Cameron and Rick, JJ.
Per Curiam.
Defendant was convicted by a jury of assault by strangulation, MCL 750.84, assault with a dangerous weapon (felonious assault), MCL 750.82, and three counts of domestic violence, MCL 750.81(2). The trial court sentenced defendant to serve concurrent prison terms of 5 to 10 years for the assault by strangulation conviction, 453 days (time served) for the felonious assault conviction, and 92 days for each domestic violence conviction. Defendant appeals by right. We affirm.
I. BACKGROUND
Defendant and the victim are both originally from Honduras, and both testified through an interpreter. Defendant came to the United States in 2014 and lived in Michigan. Defendant and the victim, who at that time still resided in Honduras, became acquainted over the internet in 2015, and they began electronically dating in 2017. The victim testified that she was subjected to threats at her work in Honduras, so she sought protection by first moving in with defendant's mother in a different part of Honduras, and then by seeking asylum in the United States. Defendant paid for the victim and her nine-year-old son to join him in Michigan, where she sought asylum. The victim moved in with defendant in mid July 2018, and she testified that they related well for approximately a week, following which defendant became aggressive, controlling, and violent. The victim described a number of incidents, including grabbing her hair, yelling degrading abuse at her, threatening her over immigration matters, taking and destroying the charger for her immigration tether, taking her identification and locking her into his apartment or her room, pushing her down and kicking her, choking her, threatening to withhold food, and assaulting her and calling her worthless because she was not becoming pregnant. The victim did not have a phone, so she was unable to communicate with her family to return home.
The United States Customs and Immigration Agency required the victim to wear an electronic monitoring tether as a condition of entering the country, and the tether required charging three times a day.
In late August 2018, the victim returned to defendant's apartment after attempting to sign her son up for school. She found defendant inebriated and hostile. She offered to sleep in another room, or to call her family so she could leave, if he would permit her to make the call. Instead, defendant became upset, pushed her into a closet, and beat her. Approximately two hours later, after being locked in a room, she asked for her identification papers so she could leave. Instead, defendant hit her hands against the wall, kicked her down, and threatened to kill her with a knife to her neck. Defendant then forced her out the door, into the rain, without shoes or adequate clothing. The victim gathered her son and fled. After knocking on at least one other door, she arrived at defendant's landlord's trailer. The landlord attempted to talk to defendant and retrieve the victim's identification and tether charger, but defendant refused, even when the landlord offered money. The landlord permitted the victim to spend the night at his home, and he called the police the following day.
Deputy Randal Beute testified that he was called to defendant's apartment building to assist someone in retrieving personal belongings from a home, and that the landlord and his daughter helped him communicate with the victim because he was not fluent in Spanish. After observing damaged property and while speaking with the victim, Beute learned that defendant had pushed her and constrained her wrists, and he observed red marks and light bruises on her wrists. Defendant was arrested, and the victim testified that a deputy let her into the apartment to gather her belongings after defendant was arrested. Beute photographed damaged items in defendant's apartment and photographed the victim's wrists; those photographs were admitted into evidence. At Beute's request, Deputy Reynaldo Retamal spoke with the victim several days later because Retamal was fluent in Spanish. Retamal testified to four particular assaults by defendant that the victim described to him. Retamal also interviewed defendant, who generally denied any physical altercations with the victim. Defendant testified at trial and likewise generally denied all instances of abusing the victim. Defendant was convicted by the jury and sentenced as described above. This appeal followed.
II. HEARSAY
Defendant first argues that that the victim's statements to Deputies Beute and Retamal should not have been admitted because those statements were unreliable hearsay not within any exception. We disagree. The trial court's decision whether to admit evidence is reviewed for an abuse of discretion, but preliminary legal determinations of admissibility are reviewed de novo; it is necessarily an abuse of discretion to admit legally inadmissible evidence. People v Gursky, 486 Mich. 596, 606; 786 N.W.2d 579 (2010). The trial court does not abuse its discretion when it chooses an outcome within the range of reasonable and principled outcomes. People v Babcock, 469 Mich. 247, 269; 666 N.W.2d 231 (2003).
Hearsay is an unsworn, out-of-court statement that is offered to establish the truth of the matter asserted. MRE 801(c); People v Stamper, 480 Mich. 1, 3; 742 N.W.2d 607 (2007). Hearsay is not admissible at trial unless it comes under an exception. MRE 802; Stamper, 480 Mich. at 3.
MCL 768.27c(1) provides as follows:
Evidence of a statement by a declarant is admissible if all of the following apply:
(a)The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
(b) The action in which the evidence is offered under this section is an offense involving domestic violence.
(c)The statement was made at or near the time of the infliction or threat of physical injury. Evidence of a statement made more than 5 years before the filing of the current action or proceeding is inadmissible under this section.
(d)The statement was made under circumstances that would indicate the statement's trustworthiness.
(e)The statement was made to a law enforcement officer.MCL 768.27c is a" 'substantive rule of evidence reflecting policy concerns about hearsay in domestic violence cases.'" People v Olney, 327 Mich.App. 319, 326; 933 N.W.2d 744 (2019), quoting People v Meissner, 294 Mich.App. 438, 445; 812 N.W.2d 37 (2011). The legislation provides a "statutory hearsay exception for statements to law enforcement officers made by victims of domestic violence under circumstances that would indicate the statement's trustworthiness." Olney, 327 Mich.App. at 322.
Defendant argues that the victim's statements to Deputy Retamal should not have been admitted because of the amount of time between the charged offenses and Retamal's interview with the victim. Under MCL 768.27c, "a hearsay statement can be admissible if the declarant made the statement at or near the time the declarant suffered an injury or was threatened with injury." Meissner, 294 Mich.App. at 447 (emphasis added). As defendant notes, the victim told Retamal about not only her wrist injury, but numerous other injuries or threats she received from defendant. According to Retamal, he interviewed the victim on September 7, 2018. Thus, his interview was more than a week after her wrist injury, and a little less than two months following her arrival in Michigan. Defendant argues that the acts of domestic violence described by the victim therefore occurred somewhere between 9 and 43 days before her interview, which he contends, without any supporting authority, was too remote in time. However, the only time limitation in MCL 768.27c(1)(c) is that "[e]vidence of a statement made more than 5 years before the filing of the current action or proceeding is inadmissible under this section." Further, in Meissner, 294 Mich.App. at 447-448, this Court determined that a statement about domestic violence that had occurred in the hours before the statement, and also about an incident that occurred three months earlier, were sufficiently close in time to be admissible under MCL 768.27c(1)(c). A span of approximately a month and a half is therefore sufficiently close in time to satisfy MCL 768.27c(1)(c).
Defendant does not attempt to argue that the victim's statement to Beute regarding her wrist injury, which she made the morning following that injury, was too remote in time.
The victim testified that she arrived in Michigan on July 19, 2018, and that all was well with defendant for about a week.
Defendant also argues that neither of the victim's statements were made under circumstances that would indicate their trustworthiness, as required under MCL 768.27c(1)(d). The statute provides the following guidance to determine the trustworthiness of a statement:
For the purpose of subsection (1)(d), circumstances relevant to the issue of trustworthiness include, but are not limited to, all of the following:
(a) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.
(b)Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
(c)Whether the statement is corroborated by evidence other than statements that are admissible only under this section. [MCL 768.27c(2).]This list "does not limit the factors a trial court may use to assess trustworthiness." Meissner, 294 Mich.App. at 449.
The trial court concluded that the victim's objectively-demonstrated injured wrist and the fact that she was fleeing to safety were indicia of trustworthiness. We agree. We also note that the victim was obviously not seeking to contact the police, but rather seeking to contact her family. Rather, defendant's landlord contacted the police, and the victim's initial objective was merely to retrieve her property. In fact, according to the testimony, the victim informed Deputy Beute of only one incident of violence when he asked her about violence after he saw the apartment with destroyed property, and he heard her mention "pushing" to the landlord's daughter. The evidence unambiguously shows that the victim was not contemplating any litigation when she made her statements to the deputies, and defendant offers no argument or evidence to the contrary.
Defendant argues that there was little evidence to corroborate the victim's statements, but as noted, the injuries to her wrists were established, the victim fled into the rain with her child and without adequate clothing, and defendant was not cooperative with the landlord's efforts to retrieve the victim's property even when money was offered. Beute opined that defendant made only a "half-hearted" attempt to look for the victim's items, the charger was never found, and Beute observed the bedroom to be in significant disarray. Among other things, he noted that there was clothing everywhere and that the clothing looked like it was in good condition but had been slashed. Although MCL 768.27c(2)(c) calls for some corroboration, it does not require any particular amount of corroboration. Under the circumstances, the evidence supports the victim's statements. The trial court properly concluded that the victim's statements were made under circumstances that would indicate that they were trustworthy.
Defendant additionally argues that the victim's statements to the deputies were not trustworthy because she did not speak English and needed a translator. However, the victim's detailed statement of the four instances of domestic violence to Deputy Retamal did not require an interpreter because Retamal was fluent in the victim's native language. Similarly, while Deputy Beute was interacting with the victim to gain information, the landlord and his daughter helped him understand the victim's statement that defendant had pushed her and injured her wrists. The reliance on a bilingual person for assistance in understanding what the victim was reporting did not itself make her statement unreliable.
III. OFFENSE VARIABLES
Defendant next argues that the trial court erred in scoring Offense Variables (OVs) 10 and 19. We disagree.
"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." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id. "A defendant is entitled to be sentenced by a trial court on the basis of accurate information." People v Francisco, 474 Mich. 82, 88; 711 N.W.2d 44 (2006). A sentencing court must consult the advisory sentencing guidelines and assess the highest amount of possible points for all offense variables. People v Lockridge, 498 Mich. 358, 392 n 28; 870 N.W.2d 502 (2015). The court relies on inaccurate information when it sentences a defendant by consulting an inaccurate advisory guidelines range. Francisco, 474 Mich. at 89 n 7.
A. OV 19
Assessment of points for OV 19 is appropriate for "conduct that constitutes an attempt to avoid being caught and held accountable for the sentencing offense." People v Sours, 315 Mich.App. 346, 349; 890 N.W.2d 401 (2016). The trial court assessed 10 points for OV 19, which MCL 777.49(c) prescribes when "[t]he offender . . . interfered with or attempted to interfere with the administration of justice." The trial court stated that it assessed 10 points for OV 19 because defendant lied to the police. At sentencing, the trial court recognized defendant's right to maintain his innocence, but, having presided over the trial, it believed the jury had been correct. Defendant argues that the court erred because there was no evidence that defendant interfered with the administration of justice. We disagree.
Defendants have an absolute right to maintain their innocence, and a trial court may not base any aspect of a defendant's sentence on refusing to admit guilt. People v Pennington, 323 Mich.App. 452, 467; 917 N.W.2d 720 (2018). However, "self-serving attempts at deception obviously aimed at leading police investigators astray or even diverting suspicion onto others" constitutes interference with the administration of justice for purposes of OV 19. People v Ericksen, 288 Mich.App. 192, 204; 793 N.W.2d 120 (2010). Commission of perjury likewise constitutes interference with the administration of justice for purposes of OV 19. People v Underwood, 278 Mich.App. 334, 338-340; 750 N.W.2d 612 (2008).
We think it would be troubling to score OV 19 at 10 points if defendant had merely denied having assaulted the victim and left it at that: a simple denial would be consistent with maintaining his innocence, and it would not seem to rise to the level of, say, providing a false name to the police. Cf. People v Barbee, 470 Mich. 283, 284-285; 681 N.W.2d 348 (2004). However, defendant went further and misrepresented to Retamal that defendant had used a knife to cut up the victim's clothing only to burn it and get rid of bugs. By doing so, defendant misrepresented the physical evidence at the crime scene to police. Defendant's misrepresentations continued when he claimed to police that the victim had decided to leave after defendant rejected her sexual advances, and that the victim and her son were fully dressed when they left. We conclude that defendant's affirmative statements went beyond merely maintaining his innocence, so they were a proper basis for scoring OV 19 at 10 points.
B. OV 10
Assessment of 15 points for OV 10 is appropriate where "predatory conduct was involved" in the "exploitation of a vulnerable victim." MCL 777.40(1)(a). "Predatory conduct" is defined as "pre-offense conduct directed at a victim for the primary purpose of victimization." MCL 777.40(3)(a). Assessment of 10 points for OV 10 is appropriate where "[t]he offender exploited a victim's physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status." MCL 777.40(1)(b). Defendant concedes that the trial court could have properly assessed 10 points for OV 10, but he argues that the trial court erred in assessing 15 points. We disagree.
In People v Cannon, 481 Mich. 152, 161-162; 749 N.W.2d 257 (2008), our Supreme Court stated that OV 10 is properly scored at 15 points when the following inquiries are answered in the affirmative:
(1)Did the offender engage in conduct before the commission of the offense?
(2)Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation?
(3)Was victimization the offender's primary purpose for engaging in the preoffense conduct?Predatory conduct involves only conduct that is "commonly understood as being 'predatory' in nature, e.g., lying in wait or stalking, as opposed to purely opportunistic criminal conduct or 'preoffense conduct involving nothing more than run-of-the-mill planning to effect a crime or subsequent escape without detection.'" People v Huston, 489 Mich. 451, 462; 802 N.W.2d 261 (2011), quoting Cannon, 481 Mich. at 162.
The trial court reasoned as follows:
I do believe this is clearly exploitation of a vulnerable victim that was predatory in nature. He . . . set up this relationship with her, brought her here to the United States, knowing she was in danger in her home town. He paid for her to come here, he paid for her to be there. He kept her, basically, isolated for the purposes of, in this court's opinion, impregnating her and also doing whatever he wanted her to do. It was disturbing. It was akin to trafficking in this court's opinion. And so OV 10 should be scored at 15 points.We agree completely with the trial court's factual findings, including its assessment of defendant's conduct as disturbing and akin to trafficking. This evidence indicated preoffense conduct directed at a specific victim who was vulnerable because she lacked money, transportation, social support, fluency in the local language, familiarity with the area, familiarity with local customs and laws, and secure immigration or residential status. It is clear that the first two questions posed in Cannon should be answered affirmatively.
We recognize that it is a slightly closer question whether defendant's pre-offense conduct was primarily for the purpose of victimization. See Huston, 489 Mich. at 463-464. The evidence indicated that defendant and the victim had an online relationship since 2015, that the victim's entry to the United States was precipitated by her need for asylum, and defendant initially arranged for the victim to stay with his mother in Honduras. It would seem convoluted for defendant to have arranged for the victim to stay with his mother primarily for the purpose of victimization. However, the fact that some of defendant's pre-offense conduct may have been aboveboard is not dispositive. Defendant's isolation of the victim and week-long delay to lull her into a false sense of security are themselves pre-offense conduct. The fact that defendant's conduct was partially opportunistic does not mean it was "purely opportunistic." Cf. Huston, 489 Mich. at 462 (emphasis added). Importantly, defendant's pre-offense intentions can be inferred from the manner in which he went about abusing the victim. Defendant's apparent obsession with forcing the victim to become pregnant casts a great deal of light on the purpose behind might otherwise have been somewhat-ambiguous conduct. We are not, therefore, persuaded that the trial court erred in finding a preponderance of the evidence supported scoring OV 10 at 15 points.
We note that even if the trial court had improperly scored OV 10 at 15 points instead of 10 points, the slight reduction in defendant's total OV score would not change his guidelines minimum range and therefore would not have required resentencing. See Francisco, 474 Mich. at 88-91.
IV. SENTENCE PROPORTIONALITY
Defendant's guidelines minimum sentence range for assault by strangulation was 10 to 23 months' imprisonment. The trial court sentenced defendant to a minimum term of 5 years (i.e., 60 months). Defendant argues that his resulting sentence was disproportionate to the circumstances of the offense and to the offender, so it was unreasonable. We disagree.
A sentencing court must consult the sentencing guidelines, calculate the recommended sentencing guidelines range, and take that range into account when determining a defendant's sentence. Lockridge, 498 Mich. at 391-392; MCR 6.425(D). However, the court is not obliged to impose a minimum sentence within that range. Id. at 365. The court may depart from the recommendation without stating substantial and compelling reasons for doing so, but the resulting sentence must nonetheless be reasonable. Id. at 392. "A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." Id. This Court reviews a departure sentence for an abuse of discretion, and looks at whether the sentence violated the principals of reasonableness under the principle-of-proportionality test. People v Steanhouse, 500 Mich. 453, 471; 902 N.W.2d 327 (2017).
The reasonableness of a sentence is not necessarily determined by whether it departs from the advisory sentencing guidelines range, but rather whether it is "proportionate to the seriousness of the circumstances surrounding the offense and the offender." Steanhouse, 500 Mich. at 474, quoting People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990). A number of factors have been deemed appropriate to consider when determining the proportionality of a departure sentence, including the seriousness of the offense; factors not accounted for by the guidelines, such as the prior relationship between the victim and the defendant, a lack of remorse, or a low potential for rehabilitation; and factors accounted for by the guidelines but given inadequate weight under the circumstances. People v Houston, 448 Mich. 312, 321-325; 532 N.W.2d 508 (1995). The trial court "must take into account the nature of the offense and the background of the offender." Milbourn, 435 Mich. at 651.
In this case, the trial court justified its sentence as follows:
[T]he court does not believe . . . the guidelines adequately account for some of the factors that . . . are legitimately considered at sentencing.
And this goes . . . to . . . this being a case . . . of trafficking. Defendant in essence, paid and in essence bought the victim in this case to do his bidding over a significant period of time. The assaultive behavior, the ongoing power and control, the isolation, none of these things are adequately reflected with just 15 points under . . . predatory nature in OV 10.
He . . . engaged in activity that put her in a situation where she could not protect herself. She . . . she had a son. . . . [T]he emotional impact on her son is not reflected in the guidelines. Her son was well-aware of what was going on, even though . . . he was not a teenager yet. . . .
The defendant has little or no potential for rehabilitation because he denies, he has no remorse. . . . So the Court believes it would be more appropriate to go outside the guidelines.
Defendant argues that the trial court based its sentence on its belief that defendant had trafficked the victim, which he claims was not supported by the evidence. We disagree. As discussed, at least some of defendant's pre-offense conduct was specifically intended to cause the victim harm, and the trial court was right about the ultimate outcome and the nature of the parties' relationship. That defendant exploited a very vulnerable victim with violent, controlling, and dominating behavior was supported by the evidence. Defendant's convictions were based on the victim's testimony of defendant choking, hitting, and kicking her; as well as pulling her hair, pushing her into a closet, isolating her in locked rooms, yelling degrading things at her, and threatening her with a knife. Defendant did so in response to mere frustrations over the victim's cooking, the victim's lack of a pregnancy, the costs immigration appointments, the victim not being home when expected, and how much attention the victim was paying to defendant. This behavior started within a week after defendant first met the victim in person, and took place for a roughly five-week period before defendant was arrested, and the victim's nine-year-old son was in the home at the time.
A particularly egregious factor in defendant's relationship violence is that he arranged the relationship, bringing about circumstances under which the victim was largely dependent on defendant, and had little recourse other than fleeing to uncertainty to counter his aggressions. Defendant arranged for the victim to move to his apartment from Honduras under a claim of asylum. The victim did not speak English, and she testified that she could not communicate with her family to return home because she did not have a phone. She also testified that defendant would take her identification and lock her in the apartment when he went to work. We cannot disagree with the trial court that trapping someone and trying to force them to become pregnant is both disturbing and akin to trafficking. Even if defendant's pre-offense conduct had been purely opportunistic (which we do not think was the case), defendant set up a perfect opportunity for exploitation and proceeded to make full and cruel use of that opportunity. The trial court reasonably found that the ultimate effect of defendant's conduct was akin to trafficking, and the outrageousness of his conduct was not adequately taken into account by the sentencing guidelines.
Defendant also argues that the trial court improperly did not factor defendant's lack of a criminal record into its statement that defendant had a poor prognosis for rehabilitation. However, the court stated that defendant had denied responsibility for his conduct as its basis for determining his prospects for rehabilitation. Although, as discussed, it is impermissible to base a sentence on a defendant maintaining their innocence, a sentencing judge is not wholly precluded from taking a defendant's lack of remorse into consideration. See People v Carlson, 332 Mich.App. 663, 675; 958 N.W.2d 278 (2020). The distinction between maintaining one's innocence and displaying a lack of remorse may be a fine, or even illusory, one. See People v Wesley, 428 Mich. 708, 720-725 (Brickley, J., concurring, joined by Levin, J.), 726-727 (Cavanagh, J, concurring, joined by Boyle, J.); 411 N.W.2d 159 (1987). Indeed, it would be logically inconsistent to show remorse for something that a person denies having done. Therefore, where a defendant maintains their innocence, a lack of remorse should generally not be directly relied upon when imposing a sentence. However, a lack of remorse may be probative of a defendant's potential for rehabilitation, at least where there is evidence of the defendant's guilt beyond a credibility contest. See People v Dobek, 274 Mich.App. 58, 104; 732 N.W.2d 546 (2007); People v Walker, 319 Mich.App. 344, 354; 901 N.W.2d 142 (2017). We are not persuaded that, under the circumstances, the trial court erred.
In sum, the trial court discussed factors set forth in Steanhouse, 313 Mich.App. at 46, such as the seriousness of the offense, as well as factors not accounted for in the guidelines, relating in part to defendant's low potential for rehabilitation and lack of remorse, along with the victim's state of dependence that defendant created and exploited. The trial court thus justified its significant departure from the advisory minimum guidelines range by reference to the facts in evidence. Because the court provided a reasonable basis for its determination that the departure was "proportionate to the seriousness of the circumstances surrounding the offense and the offender," Steanhouse, 500 Mich. at 474 (quotation omitted), it did not abuse its discretion.
Affirmed.