PEOPLE OF MI V THOMAS WAYNE RUSSELL
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 8, 2007
Plaintiff-Appellee,
v
No. 264597
Oakland Circuit Court
LC No. 04-199751-FH
THOMAS WAYNE RUSSELL,
Defendant-Appellant.
Before: Donofrio, P.J., and Bandstra and Zahra, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions and sentences for one count of child
sexually abusive activity, MCL 750.145c(2), one count of use of the internet to communicate
with another to commit child sexually abusive activity, MCL 750.145d(2)(f), and three counts of
use of the internet to communicate with another to distribute obscene matter to a minor, MCL
750.145d(2)(c). Defendant was sentenced to concurrent terms of 45 to 240 months’
imprisonment for both his child sexually abusive activity and use of the internet to communicate
with another to commit child sexually abusive activity convictions, and of 12 to 48 months’
imprisonment for each count of use of the internet to communicate with another to distribute
obscene matter to a minor. We affirm.
Defendant first argues that the trial court erred in denying his motion for a directed
verdict. We disagree. Due process requires that a trial court direct a verdict of acquittal if the
evidence is insufficient to support a conviction. MCR 6.419(A); People v Lemmon, 456 Mich
625, 633-634; 576 NW2d 129 (1998). “[I]t is not permissible for a trial court to determine the
credibility of the witnesses in deciding a motion for a directed verdict of acquittal, no matter how
inconsistent or vague that testimony might be.” People v Mehall, 454 Mich 1, 6; 557 NW2d 110
(1997). Rather, it is for the trier of fact to determine issues of witness credibility. People v
Peña, 224 Mich App 650, 659; 569 NW2d 871 (1997), mod in part on other grounds 457 Mich
885 (1998). “When reviewing a trial court’s decision on a motion for a directed verdict, this
Court reviews the record de novo to determine whether the evidence presented by the prosecutor,
viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that
the essential elements of the crime charged were proved beyond a reasonable doubt.” People v
Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001).
MCL 750.145c(2) provides that “a person who arranges for, produces, makes, or
finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or
-1-
finance any child sexually abusive activity . . . is guilty of a felony . . . if that person knows, has
reason to know, or should reasonably be expected to know that the child is a child . . . .” MCL
750.145c(2); People v Cervi, 270 Mich App 603, 624; 717 NW2d 356 (2006). Child sexually
abusive activity means “a child engaging in a listed sexual act.” MCL 750.145c(1)(l). A child is
one who is under 18 years of age; a “listed sexual act” includes both “genital-genital” and “oralgenital” intercourse. MCL 750.145c(1)(b); MCL 750.145c(1)(h); MCL 750.145(c)(1)(p).
Because mere preparation for child sexually abusive activity is sufficient to violate MCL
750.145c(2), the prosecution need only show that a defendant believed that the intended victim
was a child to establish a violation of the statute. People v Thousand, 241 Mich App 102, 115116; 614 NW2d 674 (2000), aff’d in part, rev’d in part on other grounds 465 Mich 149 (2001)
(Thousand I).
The prosecutor presented sufficient evidence to establish that defendant prepared to
engage in child sexually abusive activity. First, there are numerous references in the transcripts
of chat sessions between defendant and “Kelly,” the online persona of Special Agent Mike
Ondejko, to “Kelly’s” age, to “her” being a freshman in high school and to other things of
interest to teen-age girls. And defendant admitted to police after his arrest that he had traveled to
Novi to meet a 14-year old girl. Moreover, Ondejko specifically told defendant during their first
chat and during subsequent chats that “Kelly” was a 14-year old girl. Therefore, a rational trier
of could conclude that defendant believed he was dealing with a 14-year old girl.
Second, a rational trier of could conclude that defendant prepared to engage in sexually
abusive activity with “Kelly”. While chatting with “Kelly,” defendant made numerous explicit
lewd sexual references regarding his intention to engage in both oral and vaginal intercourse with
“her.” Defendant told “Kelly” that he would travel to Novi in a rental car from his home in the
western part of the state to meet “her” and that they would then get a hotel room. Defendant also
sent several nude pictures of himself over the internet to “Kelly,” to which he also made lewd
sexual references. Later, after defendant was arrested at Denny’s, police found an overnight bag
containing two condoms and personal lubricant in the truck defendant had rented. Defendant
admitted to police that he had rented a hotel room and intended to engage in both oral and
vaginal intercourse with “Kelly.” Defendant also provided a written statement in which he
admitted chatting with “Kelly” about participating in sexual acts. Thus, the jury could conclude
that defendant prepared to engage in sexual activity with an individual he believed to be 14 years
of age. Consequently, the prosecutor presented sufficient evidence to convict defendant of
engaging in child sexually abusive activity. Thousand I, supra at 115-116.
Next, MCL 750.145d provides in relevant part:
(1) A person shall not use the internet or a computer, computer program,
computer network, or computer system to communicate with any person for the
purpose of . . . :
(a) Committing, attempting to commit, conspiring to commit, or soliciting
another person to commit conduct proscribed under section . . . 145c
[child sexually abusive activity] . . . or . . .MCL 722.675 [distributing
-2-
obscene matter to minors1], in which the victim or intended victim is a
minor or is believed by that person to be a minor. (Emphasis added).
Defendant was charged with one count of violating MCL 750.145d arising from conduct
proscribed by MCL 750.145c and three counts of violating MCL 750.145d arising from conduct
proscribed by MCL 722.675. To establish a violation of MCL 750.145d premised on an
underlying offense proscribed by MCL 750.145c, the prosecution must prove that defendant: (1)
used the Internet or a computer to communicate with any person, (2) for the purpose of
attempting to arrange for child sexually abusive activity, and (3) with the belief that the intended
victim in the child sexually abusive activity was a minor. Cervi, supra at 624. To establish a
violation of MCL 750.145d premised upon an underlying offense proscribed by MCL 722.675,
the prosecution must prove that defendant: (1) used the Internet or computer; (2) with the intent
to attempt to distribute sexually explicit matter to a minor; and (3) with the belief that the
intended victim was a minor. Cervi, supra at 616.
Admittedly, defendant communicated with “Kelly” over the internet about his plan to
rent a car to travel to Novi to meet “her” and to rent a hotel room to engage in both oral and
vaginal intercourse with “her,” believing “her” to be 14-years of age. Therefore, the prosecutor
presented sufficient evidence to convict defendant of use of the internet to communicate with
another to commit child sexually abusive activity. Cervi, supra at 624.
The prosecutor also presented sufficient evidence to convict defendant of three counts of
use of the internet to communicate with another to distribute obscene matter to a minor.
1
MCL 722.675 provides in relevant part:
(1) A person is guilty of distributing obscene matter to a minor if that
person . . . :
(a) Knowingly disseminates to a minor sexually explicit visual or
verbal material that is harmful to minors.
* * *
(2) A person knowingly disseminates sexually explicit matter to a minor
when the person knows both the nature of the matter and the status of the
minor to whom the matter is disseminated.
3) A person knows the nature of matter if the person either is aware of the
character and content of the matter or recklessly disregards circumstances
suggesting the character and content of the matter.
(4) A person knows the status of a minor if the person either is aware that the
person to whom the dissemination is made is under 18 years of age or recklessly
disregards a substantial risk that the person to whom the dissemination is made is
under 18 years of age.
-3-
Defendant admittedly sent three separate pictures of a male with his genitals exposed to “Kelly”
over the internet and then made sexual references about these pictures to “Kelly” while they
were chatting online. Therefore, it is reasonable to infer that defendant was aware of the
sexually explicit content of the three pictures. People v Lang, 250 Mich App 565, 576-577; 649
NW2d 102 (2002) (knowledge may be inferred from the surrounding circumstances and
reasonable inferences arising from the evidence). Moreover, as noted above, defendant clearly
believed that the person to whom he sent these pictures was only 14-years old. Therefore,
sufficient evidence existed to show that defendant used the internet to knowingly send sexually
explicit matter to a person he believed to be a minor. Cervi, supra at 616.
Defendant argues that it was impossible for him to have committed any crime because the
prosecution failed to show that defendant’s actions actually involved a 14-year old girl.
However, our Supreme Court has squarely rejected this assertion in People v Thousand, 465
Mich 149, 165-166; 613 NW2d 694 (2001) (Thousand II). Further, as noted above, MCL
750.145c(2) requires only mere preparation to engage in child sexually abusive activity; it does
not require a showing of either actual abusive activity or the actual involvement of a minor.
Thousand I, supra at 114-115. Similarly, MCL 750.145d only requires that defendant believe
that the intended victim is a minor to establish a violation. Cervi, supra at 616. Therefore,
defendant’s argument fails. Moreover, defendant’s assertion that he did not complete the offense
of use of the internet to distribute obscene matter to a minor lacks merit. Given that use of the
internet to commit distributing obscene matter to a minor requires only that defendant attempt to
violate the underlying offense, it is irrelevant that “Kelly” was not actually a 14-year old girl; all
that is necessary is that defendant believed and intended that his victim was a minor. Thousand
I, supra at 165-166; Cervi, supra at 616.
Defendant next argues that the trial court improperly instructed the jury on the intent
element of the charges against him. This Court reviews a claim of instructional error de novo.
People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002). “A trial court is required to
instruct the jury on the law applicable to the case and to present the case to the jury in a clear and
understandable manner.” People v Katt, 248 Mich App 282, 310; 639 NW2d 815 (2001), aff’d
468 Mich 272 (2003). Accordingly, “[j]ury instructions must include all the elements of the
charged offense and not exclude material issues, defenses, and theories if the evidence supports
them.” People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000). A separate
instruction regarding specific intent is unnecessary where the instructions concerning the
elements of the offense contain instructions regarding specific intent. People v Maynor, 470
Mich 289, 296-297; 683 NW2d 565 (2004).
MCL 750.145c(2) specifically identifies the intent required to establish a violation,
providing in relevant part, that a person violates that section “if the person knows, has reason to
know, or should reasonably be expected to know that the child is a child.” Similarly, MCL
750.145d(1) provides, in relevant part, that a person violates that section if the person uses the
internet for the purpose of attempting to commit conduct proscribed by MCL 750.145c or MCL
722.675. The trial court included this intent language in its instructions to the jury pertaining to
the charged offenses. Thus, no separate instruction on specific intent was required. Maynor,
supra at 296-297; Cervi, supra at 617. Therefore, the instructions were proper. Canales, supra
at 574.
-4-
Defendant also argues that the trial court erroneously scored 15 points for Offense
Variable (OV) 10. We disagree. This Court reviews a trial court’s scoring of a sentencing
variable to determine whether the trial court abused its discretion and whether the evidence of
record supports the score. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
“‘Scoring decisions for which there is any evidence in support will be upheld.’” Id., quoting
People v Elliott, 215 Mich App 259, 260; 544 NW2d 748 (1996). When imposing a sentence,
the trial court must apply the appropriate guideline scoring range. MCL 769.34(2); People v
Hegwood, 465 Mich 432, 438-439; 636 NW2d 127 (2001). A trial court’s sentence may be
invalid if it is based on a “misconception of the law” or “inaccurate information.” MCL
769.34(10); People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997).
OV 10 scores points for “[e]xploitation of a vulnerable victim.” MCL 777.40. OV 10 is
scored at 15 points for “[p]redatory conduct,” defined as “preoffense conduct directed at a victim
for the primary purpose of victimization.” MCL 777.40(1)(a). MCL 777.40(3)(a). Here,
defendant, who believed he was dealing with a 14-year old girl named “Kelly,” indicated that he
wanted to take “Kelly” to “someplace where you aren’t going to run into people you know,” and
told “Kelly” to “save . . . skipping [school] for when I come to see you.” Defendant also
admitted to police that he had planned to take “Kelly” to a hotel in Canton until 3:30 p.m., at
which time he thought “she” would have to be home. Further, defendant’s intention to engage in
sexual activity with “Kelly” was clear from both his online chats with “her” and his admissions
to police, as well as Ondejko’s discovery of condoms and personal lubricant in defendant’s rental
truck at the time of defendant’s arrest. Therefore, the evidence demonstrates that defendant
arranged for a situation in which he could engage in sexual activity with “Kelly” at times and
places where “Kelly” would be isolated and secluded, and thus, vulnerable. Given that the
timing and location of a sexual assault are relevant factors in assessing preoffense predatory
conduct, People v Witherspoon, 257 Mich App 329, 336; 670 NW2d 434 (2003), the trial court
did not abuse its discretion in assessing 15 points for OV 10.
Defendant also argues that the scoring of the guidelines was erroneous because the court
engaged in improper judicial fact finding. We disagree. This Court reviews this unpreserved
issue for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764, 774;
597 NW2d 130 (1999); People v Sexton, 250 Mich App 211, 228; 646 NW2d 875 (2002). The
United States Supreme Court has held that it is a violation of the Sixth Amendment for a trial
court to increase a defendant’s sentence beyond the maximum sentence permitted by law on the
basis of facts found by the court rather than the jury. Blakely v Washington, 542 US 296; 124 S
Ct 2531; 159 L Ed 2d 403 (2004). However, Michigan’s sentencing scheme is unaffected by
Blakely because Michigan uses an indeterminate sentencing scheme in which the trial court sets
the minimum sentence but can never exceed the statutory maximum sentence. People v Drohan,
475 Mich 140, 164; 715 NW2d 778 (2006); People v Claypool, 470 Mich 715, 730 n 14 (Taylor,
J), 732 (Corrigan, CJ), 741 (Cavanaugh, J), 744 n 1 (Young, J); 684 NW2d 278 (2004). Thus,
“[a]s long as the defendant receives a sentence within that statutory maximum, a trial court may
utilize judicially ascertained facts to fashion a sentence within the range authorized by the jury’s
verdict.” Drohan, supra at 164.
Here, the maximum sentence for child sexually abusive activity is 20 years (or 240
months). MCL 750.145c(2); People v Hill, 269 Mich App 505, 509; 715 NW2d 301 (2006).
The trial court sentenced defendant to 45 to 240 months for this conviction, based in part on the
-5-
score of 15 points for OV 10. Therefore, defendant’s sentence was proper. Drohan, supra at
164.
Defendant argues further that the trial court’s failure to depart downward from the
guidelines and consider his rehabilitative potential constituted cruel and unusual punishment.
We disagree.
Absent an error in the scoring or reliance on inaccurate information in determining the
sentence, this Court must affirm a sentence within the applicable guidelines range. MCL
769.34(10); People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004). Moreover, a
sentence that falls within the guidelines range is presumptively proportionate and does not
constitute cruel and unusual punishment. People v McLaughlin, 258 Mich App 635, 669-671;
672 NW2d 860 (2003); People v Colon, 250 Mich App 59, 66; 644 NW2d 790 (2002).
Defendant’s sentences2 fell within the appropriate scoring range, and defendant has failed to
establish any scoring errors or that the trial court relied on inaccurate information3 in determining
his sentences. Therefore, this Court must affirm defendant’s sentences, which were not
excessive and did not constitute cruel and unusual punishment. Kimble, supra at 310-311;
McLaughlin, supra at 669-671; Colon, supra at 66.
Finally, defendant claims that the trial court’s jury instructions and his sentences violated
his Ninth Amendment rights. However, defendant fails to explain how these rights were
violated, other than to assert that the Ninth Amendment protects his inherent liberty interests.
Therefore, we decline to address this issue. See People v Kevorkian, 248 Mich App 373, 388389; 639 NW2d 291 (2001).
We affirm.
/s/ Pat M. Donofrio
/s/ Richard A. Bandstra
/s/ Brian K. Zahra
2
Defendant challenges the propriety of his sentences for both child sexually abusive activity and
use of the internet to distribute obscene matter to a minor. However, we only look to the highest
class felony (here, the Class B felony of child sexually abusive activity) in reviewing the scoring
of the guidelines where a defendant is sentenced for multiple concurrent convictions. See MCL
771.14(2)(e)(i) and (ii); MCL 777.16g. See also People v Mack, 265 Mich App 122, 127; 695
NW2d 342 (2005) (where a defendant is sentenced for multiple concurrent convictions, a PSIR
need only be prepared for the highest crime class felony conviction).
3
Although defendant states that his sentences were based on inaccurate and incomplete
information, he does not identify the information he believes to be inaccurate or incomplete. An
appellant may not simply announce a position or assert an error and leave it to this Court to
discover and rationalize the basis for his claims. Thus, defendant’s failure to adequately explain
his assertion constitutes abandonment of this issue on appeal. See People v Kevorkian, 248 Mich
App 373, 388-389; 639 NW2d 291 (2001).
-6-
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.
