People of Michigan v. Matthew John Scotton

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

November 24, 2015

Plaintiff-Appellee,

v Nos. 321370 & 325372

Charlevoix Circuit Court

MATTHEW JOHN SCOTTON, LC No. 13-014711-FC

Defendant-Appellant.

Before: METER, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

Following a jury trial, defendant, Matthew Scotton, was convicted of first-degree

criminal sexual conduct (CSC I), MCL 750.520b(f) (sexual penetration through use of force

causing injury), felonious assault, MCL 750.82, and domestic violence, MCL 750.81(2).

Defendant was sentenced to serve 135 months to 40 years for the CSC I conviction, 32 months to

4 years for the felonious assault conviction, and 93 days for the domestic violence conviction,

with credit for 291 days served. Defendant appeals as of right.1 We affirm defendant’s

convictions, but remand with regard to his sentence pursuant to People v Lockridge, ___ Mich

___; ___ NW2d ___ (2015) (Docket No. 149703, issued July 29, 2015).

I. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to support his CSC I conviction.2

We disagree.

1

In docket no. 321370, defendant appeals as of right his conviction and initial judgment of

sentence. Defendant was subsequently resentenced after filing his claim of appeal. In docket no.

325372, defendant appeals as of right the judgment of resentencing. On January 23, 2015, we

consolidated these appeals. People v Scotton, unpublished order of the Court of Appeals, entered

January 23, 2015 (Docket Nos. 321370; 325372).

2

Defendant raises this issue in a standard 4 brief. See Michigan Supreme Court Administrative

Order 2004-6, Standard 4.

-1-

“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.” People v McGhee, 268 Mich App 600, 622;

709 NW2d 595 (2005).

In pertinent part, MCL 750.520b states as follows:

(1) 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.

Here, defendant’s sole argument is that the prosecutor failed to produce sufficient

evidence to satisfy the “personal injury” element of MCL 750.520b(1)(f). “Personal injury”

under the statute “means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy,

disease, or loss or impairment of a sexual or reproductive organ.” MCL 750.520a(n). The

victim’s injury “need not be permanent or substantial.” People v Mackle, 241 Mich App 583,

596; 617 NW2d 339 (2000).

Defendant’s argument is without merit. 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.

See id.

II. ADMISSION OF PHOTOGRAPHS

Defendant next argues that the trial court abused its discretion in admitting certain

photographs that were taken by a registered sexual assault nurse examiner who interviewed and

examined the victim. We disagree.

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. 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. 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.

-2-

This Court reviews a trial court’s decision to admit or exclude evidence for an abuse of

discretion. People v McLaughlin, 258 Mich App 635, 649; 672 NW2d 860 (2003). Likewise, a

court’s determination of how to handle a discovery violation is reviewed for an abuse of

discretion. People v Jackson, 292 Mich App 583, 591; 808 NW2d 541 (2011), citing MCR

6.201(J). “When determining the appropriate remedy for discovery violations, the trial court

must balance the interests of the courts, the public, and the parties in light of all the relevant

circumstances, including the reasons for noncompliance.” People v Banks, 249 Mich App 247,

252; 642 NW2d 351 (2002). “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

NW2d 753 (2008). Exclusion as a remedy for discovery violations is “an extremely severe

sanction that should be limited to egregious cases.” People v Greenfield (On Reconsideration),

271 Mich App 442, 454-455 n 10; 722 NW2d 254 (2006). In addition, the defendant must show

that the violation prejudiced him. Id.

We find 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. See Greenfield (On

Reconsideration), 271 Mich App at 454-455 n 10; Banks, 249 Mich App at 252-253. 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. See People

v Taylor, 159 Mich App 468, 487-488; 406 NW2d 859 (1987) (rejecting the defendant’s

assertion of error when the defendant had independent knowledge of the materials in question).

Further, because several witnesses testified as to the extent of the victim’s injuries, we decline to

find that the photographs made any difference in this 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. 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. With no offer of

proof, we are left to speculate. We will not find prejudice based on speculation. See People v

Elston, 462 Mich 751, 762; 614 NW2d 595 (2000) (“As the appellant [ ], defendant bore the

burden of furnishing the reviewing court with a record to verify the factual basis of any argument

upon which reversal was predicated.”).3

3

We note that defendant’s statement of questions presented frames this issue as a constitutional

one. The argument section of his brief, however, does not contain any such argument. Further,

finding no error, we reject any constitutional claim defendant could make in this regard.

-3-

III. THE NURSE’S TESTIMONY

Defendant next argues that the trial court erred when it allowed the nurse to testify as a

lay witness.4 We disagree.

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. Defendant 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.

To the extent defendant argues that the nurse should not have been allowed to present

expert testimony and that there should have been a continuance, the issues are not reflected in the

questions presented and accordingly, this Court may refuse consideration. People v Albers, 258

Mich App 578, 584; 672 NW2d 336 (2003). However, we again note that the nurse did not

provide expert testimony. She testified as to the procedures she performed and what she

observed during her examination and never opined as to whether the injuries were the result of a

sexual assault. Moreover, given 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.5

4

Defendant raises this issue in his standard 4 brief.

5

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. See People v

Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009). Moreover, our review of these fleeting

claims finds no error.

-4-

IV. SCORING GUIDELINES

Defendant next argues that the trial court erred in scoring prior record variable (PRV) 7,

offense variable (OV) 3, OV 4, OV 10, and OV 11.6 We disagree.

Defendant preserved these issues by challenging the guidelines scoring of PRV 7, OV 3,

OV 4, OV 10, and OV 11 in a motion for resentencing. MCL 769.34(10); MCR 6.429(C);

People v Jones, 297 Mich App 80, 83; 823 NW2d 312 (2012).

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. 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.

[People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (citations omitted).]

A. PRV 7

Defendant 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. 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. Accordingly, we uphold the trial court’s scoring decision with regard to PRV 7.

B. OV 3

Defendant 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 3 cannot be scored.” However, the statute does not

preclude all scoring under OV 3 when bodily injury is an element of the sentencing offense. By

its plain language, it only precludes a defendant from being scored pursuant to the five-point

6

Defendant challenges all of these scores in his standard 4 briefs. Challenges to OV 10 and OV

11 were also raised on behalf of defendant by counsel in the principal brief on appeal.

-5-

category—in which the bodily injury does not require medical treatment—if bodily injury is an

element of the sentencing offense. 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 we decline to insert such language into the statute. As set forth in MCL

777.31(1), 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. See,

generally, People v Houston, 473 Mich 399, 406 n 14; 702 NW2d 530 (2005). 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. 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. See Hardy,

494 Mich at 442 (unless expressly indicated in the guidelines, the guidelines “allow a factor that

is an element of the crime charged to also be considered when computing an offense variable

score.”) (citation and quotation marks omitted). 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.

C. 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.” MCL 777.34(1)(a). “In making this determination, the fact that treatment has not

been sought is not conclusive.” MCL 777.34(2). Zero points are to be scored when “[n]o

serious psychological injury requiring professional treatment occurred to a victim.” MCL

777.34(1)(b).

Defendant argues that the victim’s psychological injury was pre-existing, and that there

was insufficient evidence to establish that it resulted from his actions. Below, defendant argued

that the 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. 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. 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

Defendant was scored 10 points for OV 10. 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.” MCL 777.40(1)(b). “[T]o qualify as a ‘domestic relationship,’ there must be a

-6-

familial or cohabitating relationship.” People v Jamison, 292 Mich App 440, 447; 807 NW2d

427 (2011).

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. Cf. id. (explaining that

merely being permitted to keep belongings at a person’s home does not equate to a cohabitating

relationship). 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,”

and a score of 25 points is appropriate if “[o]ne criminal sexual penetration occurred.” MCL

777.41(1)(b). The instructions to OV 11 state that “all sexual penetrations of the victim by the

offender arising out of the sentencing offense” should be counted in scoring OV 11, MCL

777.41(2)(a), but a trial court should “not score points for the 1 penetration that forms the basis

of a [CSC I] offense,” MCL 777.41(2)(c).

The sole issue here is whether a penetration that occurred at 3:00 a.m.—several hours8

after the sentencing offense—was one “arising out of the sentencing offense.” In People v

Johnson, 474 Mich 96, 101; 712 NW2d 703 (2006), our Supreme Court explained:

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. We continue to believe that this sets forth the most reasonable

definition of “arising out of.” Something that “aris[es] 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

7

Although defendant’s brief on appeal does not directly challenge whether there was

exploitation as is required for scoring OV 10, we find no error in the trial court’s conclusion that

defendant exploited the domestic relationship.

8

The exact time between the sentencing offense and the other sexual penetration is unclear from

the record. From our review of the record, the acts could have been as few as five hours apart,

and as many as seven hours apart.

-7-

arisen. For present purposes, this requires that there be such a relationship

between the penetrations at issue and the sentencing offenses.

The penetration that occurred at 3:00 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. 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 3:00 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. In short, there was a sufficient “cause and effect

relationship” between the two incidents. See id. Thus, a preponderance of the evidence supports

a finding that the second penetration arose out of the sentencing offense. Accordingly, we

uphold the trial court’s scoring decision with regard to OV 11.

V. PEOPLE V LOCKRIDGE

Defendant claims on appeal, as he did at sentencing, that his Sixth and Fourteenth

Amendment rights were violated by judicial fact finding that increased the floor of the

permissible sentence in violation of Alleyne v United States, ___ US ___; 133 S Ct 2151; 186 L

Ed 2d 314 (2013). In Lockridge, __ Mich at __, slip op at 32-34, our 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, in a manner consistent with United States

v Crosby, 397 F3d 103 (CA 2, 2005), for a decision by the trial court as to whether it would have

imposed a different sentence knowing the guidelines range is now advisory.9

Here, at a minimum, it is clear that the 25-point score for OV 11 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 3:00 a.m., and which formed the basis for the trial court’s 25-point

9

Lockridge held as follows:

[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. [Lockridge, __ Mich at __, slip op at 35–36.]

-8-

score for OV 11. 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. MCL 777.62. Thus, defendant meets the

requirements for a “Crosby” remand as set forth in Lockridge in order to determine whether the

error was harmless beyond a reasonable doubt. See People v Stokes, __ Mich App __; __ NW2d

__ (Docket No. 321303, issued September 8, 2015), slip op at 9 (holding that although Lockridge

involved a situation where the pertinent issue was unpreserved, the Crosby remand procedure

described in Lockridge nevertheless applied to cases where the defendant preserved the Sixth

Amendment issue, such as occurred in the case at bar).

Affirmed as to defendant’s convictions. Remanded with regard to defendant’s sentence.

We do not retain jurisdiction.

/s/ Patrick M. Meter

/s/ Stephen L. Borrello

/s/ Jane M. Beckering

-9-