STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 18, 2004
St. Clair Circuit Court
LC No. 03-000881-FC
JAMES EUGENE GRISSOM,
Before: Borrello, P.J. and Murphy and Neff, JJ.
Defendant appeals as of right from his conviction of two counts of first-degree criminal
sexual conduct (CSC I). He was sentenced to two concurrent prison terms of 15 to 35 years. We
The incident giving rise to this case occurred on May 12, 2001, when the victim was
beaten and raped inside her vehicle in a store parking lot. Following the attack, the victim
returned home where her spouse noticed she had a cut and was distraught. The victim initially
reported to police a few days later that she had been beaten, but did not report the sexual assault.
Some days later, she reported part of the sexual assault by contacting her doctor and reporting
that she had been digitally penetrated. Given the passage of time between the attack and the
victim’s report to her doctor, doctors did not believe a rape kit would be useful. Later, in June
2002, she contacted police again to tell them she spotted the man that she believed attacked her.
At that time, she disclosed that her attacker had forced both his finger and his penis into her
Defendant first argues that his conviction is not supported by sufficient evidence. We
disagree. We review this claim de novo. People v Lueth, 253 Mich App 670, 680; 660 NW2d
322 (2002). We look at the evidence “in a light most favorable to the prosecution” to determine
“whether any 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, 515; 489 NW2d 748 (1992).
Due process requires that the prosecutor introduce sufficient evidence which would
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. Id.; People v Hampton, 407 Mich
354, 368; 285 NW2d 284 (1979). It is for the trier of fact, not the appellate court, to determine
what inferences may be fairly drawn from the evidence and to determine the weight to be
accorded those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
Circumstantial evidence and the reasonable inferences which arise from the evidence can
constitute satisfactory proof of the elements of the crime. People v Carines, 460 Mich 750, 757;
597 NW2d 130 (1999).
Defendant was charged with two counts of CSC I involving the use of force or coercion
and resulting in personal injury to the victim. MCL 750.520b(1)(f). To sustain a guilty verdict
for this type of CSC I, the prosecutor had to prove beyond a reasonable doubt that defendant (1)
engaged in a sexual act that involved entry of his penis (for one count) and his finger (for the
second count) into the victim’s genital opening; (2) caused personal injury to the victim; and (3)
used force or coercion to commit the sexual act. MCL 750.520b(1)(f).
Defendant argues that the evidence was insufficient to identify him as the perpetrator and
disputes that the victim was raped because she waited more than a year after the attack to report
to police that the incident involved a sexual assault. Defendant does not dispute that the victim
was injured during the attack. The victim testified as to the varying accounts she initially gave
her husband, the police, and doctors. The jury found the victim’s testimony credible, and we
cannot interfere with this determination in evaluating the sufficiency of the evidence. Wolfe,
supra at 514-515.
Defendant relies on testimony that the victim identified another man during a lineup as
her attacker. While this is true, there was also evidence presented that the deputy who requested
defendant’s presence in the lineup earlier that day did not recognize him because he had shaven
off his long beard and hair just prior to the line-up. There was also evidence that defendant’s
appearance before the lineup comported with the victim’s description of the assailant.
Additionally, the victim told police that her assailant had a skull tattoo on his upper arm. During
trial, the prosecutor asked that defendant reveal his upper arm for the jury to see. The record
reflected that he had a skull tattoo on his right arm. We defer to the jury’s assessment of the
credibility of the identification testimony. People v Davis, 241 Mich App 697, 700; 617 NW2d
381 (2000). A witness’s positive identification of a defendant has been held to be sufficient
evidence to support a conviction. Id. Review of the entire record reveals that defendant’s
conviction was supported by sufficient evidence.
Defendant also argues that the verdict in this case was against the great weight of the
evidence. But this issue is not properly preserved for our review. People v Winters, 225 Mich
App 718, 729; 571 NW2d 764 (1997). Regardless, the verdict was not against the great weight
of the evidence because the evidence did not heavily preponderate against the verdict, People v
Lemmon, 456 Mich 625, 627; 576 NW2d 124 (1998), but rather amply supported it.
Defendant next argues that the trial court abused its discretion in departing from the
sentencing guidelines. We disagree. We review a trial court’s decision to depart from the
sentencing guidelines based on a finding of a substantial and compelling reason to do so for an
abuse of discretion. People v Babcock, 469 Mich 247, 268-269; 666 NW2d 231 (2003). An
abuse of discretion exists where the court chooses an outcome outside the range of principled
outcomes. Id. at 269. The question of whether a factor exists is reviewed for clear error, and the
question of whether the factor is objective and verifiable is reviewed de novo. Id. at 265.
Defendant does not dispute the scoring here. Instead, he contests the court’s departure
from the guidelines’ range for the “Class A” offenses of which defendant was convicted. See
MCL 777.16y. With a prior record variable (PRV) score of 22, putting defendant at level C, and
an offense variable (OV) score of 50, putting him at level III, the recommended minimum
sentence range pursuant to MCL 777.62 was 81 to 135 months. The court sentenced him to 15 to
In its departure evaluation, the trial court stated:
The sentencing guidelines in this case failed to take into account the extreme
heinousness of this crime. Although the defendant’s prior record is considered,
the guidelines make no provision for someone who commits the same crime in an
aggravated fashion. In this case, the defendant was scored for a concurrent
felony, and a subsequent felony that occurred after this incident. There is no
consideration for the fact that the subsequent felony was also a criminal sexual
conduct offense. That crime occurred approximately two months after this
incident, in the presence of witnesses, and the child’s mother was in the next
room. That case and the circumstances of the present case show that the
defendant acts without regard to possible consequences…It appears that the
defendant is not concerned with the consequences if caught; therefore he is
substantially less likely to be deterred. Therefore, specific deterrence is necessary
to protect the public from this defendant in the future. Further, although points
were scored for bodily injury requiring treatment, the guidelines do not take into
account the extent of injury to this victim of the transmission of disease. In this
case, the victim contracted Human Papilloma Virus (HPV), a disease that
potentially may cause cervical cancer in the future.
Thus, the trial court determined that defendant was a “predator” from whom “the public”
should be protected. The reasons set forth by the trial court are substantial and compelling.
MCL 769.34(3). We are convinced as well that the court would have sentenced defendant as it
did without regard to the fact that defendant may have transmitted a sexually-transmitted disease
to the victim.1 Therefore, we affirm defendant’s sentence. Babcock, supra at 260-261.
Defendant argues that the court erred in denying his motion to suppress the victim’s incourt identification of him. We disagree. We review this issue for clear error. People v Harris,
261 Mich App 44, 51; 680 NW2d 17 (2004). We conclude that the trial court did not clearly err
in finding that the victim’s identification of defendant was supported by a sufficiently
independent basis. People v Colon, 233 Mich App 295, 304; 591 NW2d 692 (1998). In
deciding whether there was a sufficiently independent basis for the victim to identify defendant
as her attacker during the preliminary examination, the court focused on “the fact that [she] was
able to observe her attacker, that she was able to describe him with great particularity, [and] that
she was able to pick out a photograph of him.” A trial court deciding this factual question “may
There was no evidence presented below regarding the allegation that the victim contracted this
disease as a result of being raped by defendant, and defendant declined to be tested before trial.
put greater or lesser weight” on any of the pertinent factors depending on the circumstances.
People v Gray, 457 Mich 107, 117 n 12; 577 NW2d 92 (1998). It appears that this trial court
gave greater weight to the fact that the victim observed and described her attacker and identified
defendant from his photograph as her attacker. This independent basis purges the taint resulting
from any impermissibly suggestive identification procedure based on the nature of defendant’s
appearance at the preliminary examination. Id. at 304. Thus, we conclude that the trial court did
not clearly err in finding a sufficiently independent basis for the in-court identification and its
consequent denial of defendant’s motion to suppress that identification.
Defendant next argues that the trial court erred in denying his discovery request for
information gathered by the physicians, psychologists, and counselors who treated the victim in
this case. We disagree. We review this question for an abuse of discretion. People v Fink, 456
Mich 449, 458; 574 NW2d 28 (1998). We are satisfied that the trial court did not abuse its
discretion where defendant failed to show – as he likewise fails here – that the privileged
materials contained material necessary to his defense. MCR 6.201(C)(2); People v Stanaway,
446 Mich 643, 677; 521 NW2d 557 (1994). Thus, because defendant failed to meet this
threshold requirement, the court did not abuse its discretion in declining to review the materials
in camera pursuant to MCR 6.201(C)(2). See Stanaway, supra at 677.
Defendant advances his last argument on appeal without any reasonably applicable
supporting authority. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998). We deem
this issue abandoned. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d
756 (2002). Further, it is apparent that there is no reasonable basis to impute to the prosecution
the challenged conduct of the victim in evidently disposing of her clothes.
/s/ Stephen L. Borrello
/s/ William B. Murphy
/s/ Janet T. Neff