PEOPLE OF MI V SCOTT ALAN FALKIEWICZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 17, 1997
Plaintiff-Appellee,
v
No. 190375
Recorder’s Court of Detroit
LC No. 94-004679
SCOTT A. FALKIEWICZ,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 190376
Recorder’s Court of Detroit
LC No. 94-004678
SCOTT ALAN FALKIEWICZ,
Defendant-Appellant.
Before: Smolenski, P.J., and Michael J. Kelly and J.R. Weber,* JJ.
PER CURIAM.
Following a consolidated bench trial, defendant was convicted of multiple counts of first-degree
criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a) (sexual penetration with another
under age thirteen), and second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA
28.788(3)(1)(a) (sexual contact with another under age thirteen). In docket number 190376 of this
consolidated appeal, defendant appeals as of right his convictions of two counts of first-degree criminal
sexual conduct and two counts of second-degree criminal sexual conduct committed against his eleven
* Circuit judge, sitting on the Court of Appeals by assignment.
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year-old stepdaughter. In docket number 190375, defendant appeals as of right from his convictions of
three counts of second-degree criminal sexual conduct committed against his stepdaughter’s nine-year
old cousin. Defendant was sentenced to concurrent terms of eight to twenty years’ imprisonment for
each of the first-degree criminal sexual conduct convictions and five to fifteen years’ imprisonment for
each of the second-degree criminal sexual conduct convictions. We affirm.
Defendant argues that the prosecution presented insufficient evidence to sustain his two
convictions of first-degree criminal sexual conduct. We disagree. When reviewing the sufficiency of the
evidence, this Court must view the evidence in a light most favorable to the prosecution and determine
whether a rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 516; 489 NW2d 748, amended 441
Mich 1201 (1992). The elements of first-degree criminal sexual conduct are that a defendant engaged
in sexual penetration with another, and that the other was under thirteen years of age. MCL
750.520b(1)(a); MSA 28.788(2)(1)(a); People v Hammons, 210 Mich App 554, 557; 534 NW2d
183 (1995). The testimony of a victim is sufficient evidence from which a trier of fact can infer that a
sexual penetration occurred. People v Robideau, 94 Mich App 663, 674; 289 NW2d 846 (1980),
aff’d on other grounds 419 Mich 458 (1984); see also MCL 750.520h; MSA 28.788(8). Witness
credibility is a matter for the trial of fact to ascertain. It will not be resolved anew on appeal. People v
Vaughn, 186 Mich App 376, 380; 465 NW2d 365 (1990).
In this case, evidence was presented that the victim, defendant’s stepdaughter, was under
thirteen years of age. The victim testified in detail about at least one incident where defendant forced
her to perform fellatio on him. Sexual penetration is defined to include fellatio. MCL 750.520a(l);
MSA 28.788(1)(1). Additionally, the victim testified that “something” happened fifteen, sixteen or
seventeen times, and she described the various incidents of sexual abuse as having occurred in various
rooms of the house. Moreover, she testified to instances where defendant placed his mouth on her
“privates.” Viewing this evidence in a light most favorable to the prosecution, we conclude that the
evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that defendant
twice engaged in sexual penetration with the victim, who was under the age of thirteen. We will not
resolve anew on appeal the issue of witness credibility. In addition, we further conclude that the trial
court’s findings that defendant engaged in two acts of sexual penetration were not clearly erroneous.
MCR 2.613(C).
Next, defendant argues that the trial erred in assessing ten points in the scoring of offense
variable 6 (OV 6) (multiple victims) under the sentencing guidelines for defendant’s first-degree criminal
sexual conduct convictions involving his stepdaughter. This argument is without merit.
OV 6 provides for the assessment of ten points where there are two or more victims. Michigan
Sentencing Guidelines (2d ed, 1988), p 44. The instructions for OV 6 state that each person who is
placed in danger of injury or loss of life should be counted as a victim. Guidelines, p 44. Scoring OV 6
for multiple victims is appropriate where there are other persons present at the scene of the crime who
are therefore endangered. People v Chesebro, 206 Mich App 468, 473; 522 NW2d 677 (1994).
Where the scoring of a variable is disputed by a defendant, the prosecution need only prove the
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underlying facts to support the score by a preponderance of the evidence. People v Walker, 428 Mich
261, 268; 407 NW2d 367 (1987). The trial court has the discretion in determining the number of
points to be scored provided there is record evidence that adequately supports that particular score.
People v Haacke, 217 Mich App 434, 435; ___ NW2d ___ (1996). Scoring decisions for which
there is any evidence in support will be upheld. Id.
Viewing the trial court’s scoring decision in light of the considerable discretion that has
historically been granted to trial judges in sentencing cases, we find that the evidence supported the trial
court’s decision. Both victims testified to numerous incidents of sexual abuse that were perpetrated
against them by defendant, and that many of these acts were committed while each victim was in the
presence of the other. The evidence clearly demonstrates that both victims were repeatedly placed in
danger of injury by defendant’s conduct. Thus, the trial court did not err in assessing ten points under
OV 6 for multiple victims.
Finally, defendant contends that assessing ten points for OV 6 in the sentencing information
reports prepared for each case constituted “unfair ‘double counting’” where the two victims for whom
the points were assessed (defendant’s stepdaughter and her cousin) were identical in each case.
However, defendant provides no authority for this argument and has, therefore, effectively abandoned
the issue. People v Piotrowski, 211 Mich App 527, 530; 536 NW2d 293 (1995).
Affirmed.
/s/ Michael R. Smolenski
/s/ Michael J. Kelly
/s/ John R. Weber
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