PEOPLE OF MI V BRIAN KEITH LAGRONE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 22, 2007
Plaintiff-Appellee,
v
No. 266615
Kent Circuit Court
LC No. 05-000656-FH
BRIAN KEITH LAGRONE,
Defendant-Appellant.
Before: O’Connell, P.J., and Murray and Davis, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of fourth-degree criminal sexual
conduct (CSC), MCL 750.520e(1)(a), sexual contact with a person between the ages of thirteen
and sixteen, with the actor more than five years older than the other person. He was sentenced as
an habitual offender, second offense, to 18 months to 3 years’ imprisonment. We affirm.
Defendant was accused of sexually assaulting the fourteen-year-old sister of his
girlfriend. The victim wrote a letter to a friend, which her sister later turned over to authorities,
in which the victim stated that defendant sucked her breasts and she squeezed his penis. The
victim also claimed that defendant forced her to have penile-vaginal intercourse on another
occasion, in March 2004. Defendant was initially charged with one count of third-degree CSC,
based on sexual penetration with a victim thirteen to sixteen years old, and one count of
accosting a child for immoral purpose, MCL 750.145a, along with habitual and sexual offender
enhancements. Shortly before trial began, the information was amended to add the fourth-degree
CSC charge and delete the charge of accosting a child for immoral purpose.
Defendant first argues that he was denied due process because he did not receive a copy
of the amended information until the last day of trial, so he was unaware of the added charge
until the prosecution’s opening statement. We find no support for defendant’s argument in the
record.
We review a trial court’s decision whether to permit amendment of an information for an
abuse of discretion. People v McGhee, 258 Mich App 683, 686-687, 699; 672 NW2d 191
(2003). An abuse of discretion occurs when the trial court fails to select a “principled outcome”
where more than one outcome is possible. People v Babcock, 469 Mich 247, 269; 666 NW2d
231 (2003). Amendment of an information to add a charge once trial is complete, or even nearly
complete, deprives a defendant of sufficient time to prepare a proper defense. People v Adams,
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202 Mich App 385, 391; 509 NW2d 530 (1993). However, adding a charge on the first day of a
trial, before jury selection and the opening of proofs, is not error as long as defendant is not
unfairly prejudiced by unfair surprise, inadequate notice or insufficient opportunity to prepare a
defense against the new charge. MCR 6.112(H); McGhee, supra at 690, 701-702.
The amended information here was filed with the court on the first day of trial and read to
the prospective jury panel before voir dire, including the fact that defendant was charged with
both third- and fourth-degree CSC. The trial was adjourned after the jury was impaneled, at
approximately 1 p.m., and it did not resume until the following morning at 9:00 a.m. Defendant
was clearly aware of the additional charge with ample time either to prepare a defense or to
move for a continuance.
More importantly, however, we do not see how defendant’s defense would have been
affected by the amended charge. A person is guilty of third-degree CSC, one of the crimes for
which defendant was initially charged, if he engages in sexual penetration with another person if
the other person is between the ages of thirteen and sixteen. MCL 750.520d(1)(a). A person is
guilty of fourth-degree CSC if he or she engages in sexual contact with another person and the
other person is between the ages of thirteen and sixteen, and the actor is five or more years older.
MCL 750.520e(1)(a). Although fourth-degree CSC is not legally a lesser included offense of
third-degree CSC, it is almost always a factually included lesser offense, as we believe it is in
this case. People v Baker, 103 Mich App 704, 713; 304 NW2d 262 (1981). None of the relevant
parties’ ages could seriously have been in dispute, and defendant’s theory of the case was that
nothing took place between himself and the victim. His defense was that his “relationship” with
the victim was entirely fabricated by his girlfriend out of a desire for revenge for cheating on her.
Given this theory, the distinction between “sexual penetration” and “sexual contact”
would have been irrelevant. The original information amply informed defendant that the entirety
of his “relationship” with the victim was at least potentially at issue, and this is what he defended
against. The additional charge did not call for any change to defendant’s defense strategy.
Therefore, defendant was not unfairly surprised or prejudiced, and the trial court did not abuse its
discretion when it allowed the prosecution to amend the information to add a new charge before
the trial began. Defendant was not denied due process because of the amendment.
Defendant next argues that he served 304 days in jail awaiting trial and should have
received credit for that time against his sentence for this offense. We disagree. MCL 769.11b
requires that a defendant who is “denied or unable to make bond” must be given credit for the
time served against the sentence for the offense for which he is jailed. However, defendant was
on parole when he committed the offense in this case. Defendant was held on a parole detainer;
the question of bond was never an issue, so MCL 769.11b is inapplicable. People v Seiders, 262
Mich App 702, 706-708; 686 NW2d 821 (2004). Any jail time served pursuant to such a parole
detainer may only be credited to the original sentence for which the defendant was paroled, not
the new offense. Id. at 705. Defendant argues that he had served his full minimum sentence for
the first offense, so there was no time on that offense against which his jail time could be
credited. However, it does not follow that the credit must therefore be applied against his new
sentence. Jail credit while on a parole detainer may only be applied to the prior offense. People
v Stead, 270 Mich App 550, 552; 716 NW2d 324 (2006). Jail credit while awaiting a new
sentence may only be applied to the new sentence if the defendant was “denied or unable to
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make bond.” MCL 769.11b. Neither situation applied here. Therefore, the trial court correctly
found that defendant was not entitled to credit for time served against his sentence in this case.
Defendant finally argues that because he was acquitted of third-degree CSC, the victim’s
claim of sexual penetration should be deleted from the presentence investigation report (PSIR) to
prevent its consideration by the Department of Corrections. We disagree. The PSIR is an
information-gathering tool that requires a very broad scope. Morales v Parole Board, 260 Mich
App 29, 45-46; 676 NW2d 221 (2003). The report must include “a complete description of the
offense and all the circumstances surrounding it.” Id. at 46; MCR 6.425(A)(2). We conclude
that the allegation of penetration was properly included because it completes the description of
the circumstances surrounding defendant’s convicted offense. Moreover, the PSIR makes it
clear that the statement was an allegation by the victim and was denied by defendant; the trial
court also added a notation to the statement that the jury acquitted defendant of the “charge
alleging penetration.” “A court in fashioning an appropriate sentence may consider the evidence
offered at trial, including other criminal activities established even though the defendant was
acquitted of the charges, and the effect of the crime on the victim.” People v Compagnari, 233
Mich App 233, 236; 590 NW2d 302 (1998) (citations omitted). The trial court did not abuse its
discretion when it held that the information should remain in the PSIR.
Affirmed.
/s/ Peter D. O’Connell
/s/ Christopher M. Murray
/s/ Alton T. Davis
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