PEOPLE OF MI V DONNELL D CUSICKAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 12, 1999
Wayne Circuit Court
LC No. 97 005424
DONNELL D. CUSICK,
Before: Whitbeck, P.J., and Gribbs and White, JJ.
Following a bench trial, defendant was convicted of second-degree criminal sexual conduct,
MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), and was sentenced to eighteen months’ to fifteen years’
imprisonment. Defendant appeals by right. We affirm. This appeal is being decided without oral
argument pursuant to MCR 7.214(E).
On appeal, defendant argues that the verdict of second-degree criminal sexual conduct is
inconsistent with the facts of the case because all of the evidence adduced at trial established penetration
instead of sexual contact. We disagree. The victim’s testimony supports a finding of sexual contact.
Although the victim also testified that there was penetration, the trial court was entitled, as trier of fact,
to reject this portion of the victim’s testimony in light of other evidence indicating that no penetration
occurred while still relying upon the victim’s testimony to find that sexual contact occurred. See CJI2d
3.6(1). This is not a case where a trial court has made conflicting findings that cannot be reconciled on
the basis of the facts presented. See People v Fairbanks, 165 Mich App 551, 557; 419 NW2d 13
(1987) (conviction of assault with intent to commit second-degree criminal sexual conduct supported
only by possession of firearm and acquittal on related charge of felony-firearm).
Defendant’s due process rights were not violated. Viewing the evidence in a light most
favorable to the prosecution, the evidence is sufficient to allow a rational trier of fact to find that the
essential elements of second-degree criminal sexual conduct were proven beyond a reasonable doubt.
People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). Absent extraordinary circumstances
not present here, we will not disturb the factfinder’s assessment of the victim’s credibility. See People v
Lemmon, 456 Mich 625, 647; 576 NW2d 129 (1998); People v Crump, 216 Mich App 210, 215
216; 549 NW2d 36 (1996).
We also reject defendant’s challenge to the proportionality of his sentence. The sentence is
presumptively proportionate because it is within the sentencing guidelines range, and defendant has
failed to overcome the presumption of proportionality by identifying the kind of unusual circumstances
that would render a sentence within the guidelines range disproportionate. See, e.g., People v
Piotrowski, 211 Mich App 527, 532-533; 536 NW2d 293 (1995).
/s/ William C. Whitbeck
/s/ Roman S. Gribbs
/s/ Helene N. White