Opinion
No. 346468
04-23-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RICHARD ALTON TREPANIER, JR., Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalkaska Circuit Court
LC No. 18-004173-FH Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ. PER CURIAM.
Defendant appeals by right his jury-trial conviction of second-degree criminal sexual conduct (CSC-II), MCL 750.520c. The trial court sentenced defendant to a prison term of 20 months to 15 years, with credit for 100 days served. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On December 10, 2017, the victim, OD, was at home with her father, her two ten-year-old siblings, and defendant, who is her stepbrother. OD was 13 years old. Defendant and OD's father were the only adult men in the house on the night of the incident. Defendant slept on the couch in the living room. OD's family also owned two dogs that slept in the living room.
OD testified that after she went to bed, someone came into her room and touched her in the groin area, left the room, returned and touched her genitals under her clothing, left again, and then returned for a third time, not touching her but "smok[ing] [a cigarette] in her face." OD saw the perpetrator standing in the doorway of her bedroom, but did not see the perpetrator's face. She testified that the perpetrator looked like a tall, slim man with short hair. She further testified that the perpetrator was not her father, because her father had a beard and he is bigger, and that the perpetrator did not look like her siblings because they are not as tall. According to OD, defendant was the only person in the household who fit the description because he had short hair, smoked, and was thin. OD also testified that she went into the living room about 30 minutes after the incident, saw that all the windows and doors were shut, and saw no evidence that anyone had snuck into the house.
OD testified that if someone had entered the house, they would have had to walk past defendant and the dogs, who usually barked when someone entered the house, in order to get to her bedroom. OD did not hear the dogs bark that night. During his police interview, defendant also said that if someone had snuck into the house on the night of the incident, he would have heard them and the dogs would have barked as well. OD stated that there is a window in her bedroom but that a person could not come into the house through the window because her bed was in front of it.
The jury convicted defendant as described. This appeal followed.
II. STANDARD OF REVIEW
We review de novo a defendant's challenge to the sufficiency of the evidence to support his conviction. People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). "In examining the sufficiency of the evidence, this Court reviews the evidence in a light most favorable to the prosecut[ion] to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012) (quotation marks and citation omitted). Further, "[i]n reviewing a sufficiency argument, this Court must not interfere with the jury's role of determining the weight of the evidence or the credibility of witnesses." People v Stiller, 242 Mich App 38, 42; 617 NW2d 697 (2000). We resolve all conflicts in evidence in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
III. ANALYSIS
Defendant argues that there was insufficient evidence that he was the one who touched OD. We disagree.
Defendant challenges only the identity element of his conviction. --------
"Due process requires that the prosecutor introduce sufficient evidence which could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt before a defendant can be convicted of a criminal offense . . . ." People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). That is, "[i]f sufficient evidence is not introduced, a directed verdict or judgment of acquittal should be entered." Id.
"[I]t is well settled that identity is an element of every offense." People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Further, "[i]dentity may be shown by either direct testimony or circumstantial evidence which gives the jury an abiding conviction to a moral certainty that the accused was the perpetrator of the offense." People v Kern, 6 Mich App 406, 409-410; 149 NW2d 216 (1967). "A prosecutor need not negate every reasonable theory of innocence, but must prove his own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defendant provides." People v Quinn, 219 Mich App 571, 574; 557 NW2d 151 (1996). Additionally, "[c]ircumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime." People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
Defendant's argument is premised on the fact that OD was not able to identify defendant as the perpetrator of the offense. However, while OD admitted that she did not see the face of the man who touched her, she testified that the person who touched her looked like defendant and that defendant was the only person in the house who matched the description; she specifically noted that her father, the only other adult man in the house, had a beard and was bigger than the man she saw, and that the man she saw was bigger than her ten-year-old siblings. Further, additional circumstantial evidence supported her testimony. OD testified that when she was in the living room, she saw that the windows and the doors were shut, and that there was no evidence that anyone had snuck into the house. And defendant and OD both testified that, to get to OD's bedroom, a person would have had to walk past defendant and the family's dogs, who usually barked when a person entered the home.
Taken in the light most favorable to the prosecution, Reese, 491 Mich at 139, this evidence was sufficient to allow a rational jury to find that defendant was the man who touched OD. Defendant argues that OD was not credible because she initially told a school counselor that she did not think that defendant was the perpetrator; however, we do not interfere with the jury's role in judging the credibility of witnesses. Stiller, 242 Mich App at 42. Defendant was able to introduce this evidence to the jury, and OD responded that she had only made the statement to the counselor because she did not want to believe that defendant would touch her inappropriately, not because the person she saw did not look like defendant. To the extent there was a conflict in evidence, we resolve such conflicts in favor of the prosecution. Kanaan, 278 Mich App at 619. We conclude, therefore, that the evidence was sufficient to permit a rational jury to find beyond a reasonable doubt that defendant was the person who committed the offense.
Affirmed.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Mark T. Boonstra