PEOPLE OF MI V JOHN ANTHONY EVANS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 2, 1999
Plaintiff-Appellee,
v
No. 201875
Recorder’s Court
LC No. 96-502692
JOHN ANTHONY EVANS,
Defendant-Appellant.
Before: Sawyer, P.J., and Bandstra and R. B. Burns*, JJ.
PER CURIAM.
Defendant was convicted by a jury of second-degree criminal sexual conduct, MCL
750.520c(1)(a); MSA 28.788(3)(1)(a) (sexual contact with a person under thirteen years of age).
Defendant was sentenced to four to fifteen years’ imprisonment. He appeals and we affirm.
Defendant first argues that the prosecutor wrongfully withdrew the plea agreement at the time of
defendant’s initial sentencing. We disagree. The parties agreed that defendant would plead guilty to a
reduced charge of second-degree criminal sexual conduct,1 and, in exchange, the prosecutor would
recommend a sentence of five years’ probation with the first year spent in Dickerson’s work-release
program. The trial court heard defendant’s plea, but never accepted defendant’s plea on the record.
At the time of defendant’s sentencing, the victim’s mother asked the court to impose the maximum
sentence. It became clear that she was not happy with the plea agreement. The court then refused to
“go along with this agreement,” and defendant proceeded to trial. There was no evidence presented by
defendant that the prosecutor acted in bad faith throughout the proceeding or abused her authority to
enter into the plea agreement. Compare People v Lombardo, 216 Mich App 500, 512; 549 NW2d
596 (1996). Rather, the court, by its own initiative, refused to sentence defendant in conjunction with
the plea agreement. It is clear from the record that the prosecutor was ready and willing to follow
through on the parties’ previous plea agreement. Only after the court announced that it would not
support the recommended sentence did the prosecutor ask that the entire plea be vacated.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
-1
Defendant then argues that the court erred in refusing to impose a sentence in accordance with
the parties’ agreement. We disagree. A trial court’s decision to a accept or reject a plea agreement is
reviewed for an abuse of discretion. People v Grove, 455 Mich 439, 463; 566 NW2d 547 (1997).
The court did not specifically set forth its reasons for refusing to sentence defendant in accordance with
the plea agreement. The court may have concluded that the proposed agreement did not serve justice.
Such a determination was within the court’s right, and the court did not abuse its discretion in failing to
sentence defendant in accordance with the plea agreement. The court may have looked to the nature of
the crime, the fact that the victim was only nine-years-old, and that a probationary sentence was
unacceptable.
Defendant next argues that he was denied effective assistance of counsel at trial where counsel
failed to investigate or act under the rape-shield statute after counsel knew or should have known about
prior, similar accusations by the victim. We disagree. To establish a denial of effective assistance of
counsel under the state and federal constitutions, a defendant must demonstrate that counsel’s
performance was deficient and that, under an objective standard of reasonableness, counsel made an
error so serious that counsel was not functioning as an attorney as guaranteed by the Sixth Amendment.
People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). The deficiency must have
prejudiced the defendant. Id. Effective assistance of counsel is presumed. People v Wilson, 180
Mich App 12, 17; 446 NW2d 571 (1989).
We are not persuaded that defense counsel was ignorant of evidence that would have
substantially benefited defendant. People v Caballero, 184 Mich App 636, 640; 459 NW2d 80
(1990); People v Julian, 171 Mich App 153, 159; 429 NW2d 615 (1988). It is evident from the
record that defense counsel knew that the victim may have made a similar accusation in the past and
attempted to question the victim’s mother about that accusation. However, the trial court determined
that this line of questioning was inadmissible and did not allow counsel to proceed. Simply because
defense counsel was unable to make a proper offer of proof that the statement was actually made and
that it was false is not necessarily an indication that he was deficient or ineffective. Rather, evidence that
the victim made a prior false accusation may simply not have existed. No charges were ever filed in that
instance and there is no indication that a police report was made concerning the incident. Without
“concrete evidence” that a false accusation was made, such evidence must be excluded. People v
Williams, 191 Mich App 269, 273; 477 NW2d 877 (1991). It appears defense counsel made a
reasonable attempt to introduce the evidence. Thus, defendant has failed to overcome the presumption
that he received effective assistance of counsel. Wilson, supra at 17.
Next, defendant argues that the trial court erred in not allowing defense counsel to cross
examine the victim’s mother concerning a statement by the victim about an earlier, unrelated allegation of
sexual misconduct. We disagree. The decision whether to admit evidence is within the sound discretion
of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v Lugo, 214
Mich App 699, 709; 542 NW2d 921 (1995).
The rape-shield statute does not preclude evidence that a victim made a prior false accusation
of rape. Williams, supra at 272. Any false accusation is relevant in a prosecution for criminal sexual
conduct because the fact that “the victim has made prior false accusations of rape directly bears on the
-2
victim’s credibility and the credibility of the victim’s accusations in the subsequent case, and preclusion
of such evidence would unconstitutionally abridge the defendant’s right to confrontation.” Id. Thus, to
the extent that the trial court found that the evidence was excluded by the rape-shield statute, it abused
its discretion and the ruling was incorrect. Id. at 272-273.
However, the evidence was properly excluded for another reason. Where the trial court
reaches the right result for the wrong reason, reversal is not mandated. People v Brake, 208 Mich
App 233, 242 n 2; 527 NW2d 56 (1994). Even though the evidence was of the type that would have
been properly admitted, defendant was unable to make an offer of proof and present “concrete
evidence” that the victim actually made the prior statement and that the statement was actually false.
Williams, supra at 273. No charges were ever filed against the man and there is no indication that a
police report was made concerning the incident. There is simply no reason to believe that, had the
victim made a statement, the statement was false. Defense counsel could not cross-examine the victim’s
mother concerning the victim’s alleged statement about an earlier, unrelated allegation of sexual
misconduct where counsel was unable to make a proper offer of proof that such a false statement was
actually made. Id.
Finally, defendant argues that he is entitled to an order of remand where the trial court refused
to hear his post-trial motion for resentencing. We disagree. A trial court’s grant or denial of a
defendant’s motion for resentencing is reviewed for an abuse of discretion. People v Puckett, 178
Mich App 224, 227; 443 NW2d 470 (1989).
In order to resentence a defendant, the trial court must first make the determination that the
initial sentence was invalid. People v Willis, 182 Mich App 706, 709; 452 NW2d 888 (1990). A
sentence may be considered invalid when it is based on inaccurate information. People v Miles, 454
Mich 90, 96; 559 NW2d 299 (1997). Here, defendant argues that he was entitled to resentencing
where defendant was scored twenty-five points for penetration under Offense Variable twelve even
though the jury convicted defendant of second-degree criminal sexual conduct. Defendant maintains
that the sentencing guidelines specifically preclude the penetration forming the basis of the conviction
from being scored under this variable.
The sentencing guidelines provide that “in CSC 1st and CSC 3rd do not score the one
penetration that forms the basis of the conviction offense.” Michigan Sentencing Guidelines (2d ed,
1988), p 45. Because defendant was convicted of second-degree criminal sexual conduct, this
exclusion does not apply. Moreover, the guidelines provide that, “where the facts are proven or
acknowledged and are not consistent with the conviction offense . . . the actual facts are to be applied
when scoring the appropriate variable.” Michigan Sentencing Guidelines (2d ed, 1988), p 5.
Here, the trial court properly considered the victim’s testimony that defendant digitally
penetrated her even though the jury returned a verdict for second-degree criminal sexual conduct
instead of first-degree criminal sexual conduct. As such, the court was entitled to score offense variable
twelve for penetration. People v Armstrong, 212 Mich App 121, 131; 536 NW2d 789 (1995).
Even if the scoring of the guidelines had been erroneous, “the claim of a miscalculated variable is not in
-3
itself a claim of legal error” where the “guidelines do not have the force of law.” People v Mitchell,
454 Mich 145, 175; 560 NW2d 600 (1997).
Defendant also argues his sentence was disproportionate. However, defendant has waived his
proportionality argument for appeal by failing to provide this Court with a copy of the presentence
investigation report. People v Oswald, 208 Mich App 444, 446; 528 NW2d 782 (1995). In any
event, the sentence was proportionate to the offense and offender, considering that defendant, as a
member of the household, took advantage of his position to dominate and exploit a child.
In his supplemental brief on appeal, defendant contends that the court made an erroneous
comment at sentencing and also improperly considered his alleged lack of remorse. However, we
conclude that none of these brief comments are a basis for resentencing, in light of the fact that his
sentence was proportionate. Moreover, the court could properly consider a lack of remorse in
sentencing defendant. People v Terry, 217 Mich App 660, 664; 553 NW2d 23 (1996).
Affirmed.
/s/ David H. Sawyer
/s/ Richard A. Bandstra
/s/ Robert B. Burns
1
Defendant was originally charged with first-degree criminal sexual conduct, MCL 750.520b(1)(a);
MSA 28.788(2)(1)(a) (sexual penetration with a person under thirteen years of age).
-4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
