PEOPLE OF MI V MARK STEVEN BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 23, 2007
Plaintiff-Appellee,
v
No. 270328
Kent Circuit Court
LC No. 04-009220-FC
MARK STEVEN BROWN,
Defendant-Appellant.
Before: Hoekstra, P.J., and Sawyer and Murray, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of five counts of first-degree criminal
sexual conduct, MCL 750.520b(1)(c) and (e), and one count each of first-degree home invasion,
MCL 750.110a(2), kidnapping, MCL 750.349, and armed robbery, MCL 750.529. He was
subsequently sentenced, as a second habitual offender, MCL 769.10, to life imprisonment for
each of the first-degree criminal sexual conduct convictions, 10 to 30 years’ imprisonment for
the first-degree home invasion conviction, and 40 to 80 years’ imprisonment for the kidnapping
and armed robbery convictions. Defendant appeals as of right. We affirm.
Defendant first argues that the trial court improperly permitted the victim’s examining
physician to testify beyond his realm of expertise. Specifically, defendant challenges that
portion of the physician’s testimony in which he agreed with the prosecutor’s query regarding
whether “[p]eople sometimes give up resisting.” A trial court’s determination regarding the
admissibility of testimony is reviewed for an abuse of discretion. People v Murray, 234 Mich
App 46, 52; 593 NW2d 690 (1999). An abuse of discretion exists when a trial court’s decision is
not within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476
Mich 372, 388; 719 NW2d 809 (2006); People v Babcock, 469 Mich 247, 269; 666 NW2d 231
(2003).
The opinion testimony of an expert is admissible under MRE 702 if it will assist the jury
in its understanding of the evidence or the factual issues present in the case, and the expert has
sufficient qualifications to allow the expert’s opinion to aid the trier of fact in its determination
of the truth. People v Smith, 425 Mich 98, 106; 387 NW2d 814 (1986). Under MRE 701, a lay
witness may also testify as to his opinion on matters that are related to his observations and
findings and are not “overly dependant upon scientific, technical, or other specialized
knowledge.” People v Oliver, 170 Mich App 38, 50; 427 NW2d 898 (1988), modified on other
grounds 433 Mich 862 (1989) (internal quotation marks omitted); see also People v McLaughlin,
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258 Mich App 635, 657-659; 672 NW2d 860 (2003). Here, having cited the “breadth and
length” of the physician’s experience practicing emergency medicine and the fact that the inquiry
was “not necessarily one that goes to expertise,” but rather, was “within the relatively common
experience of humankind,” it appears that the trial court admitted the challenged testimony under
both MRE 701 and 702. From our review of the record, we are not persuaded that the trial
court’s decision to admit the testimony on these grounds falls outside the range of reasonable and
principled outcomes. Accordingly, we do not conclude that the trial court abused its discretion
in allowing the challenged testimony.
Defendant also argues, however, that the prosecutor committed misconduct by enabling
the examining physician to improperly vouch for the victim’s credibility through this testimony.
This unpreserved allegation of prosecutorial misconduct is reviewed for plain error. People v
Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).
Expert testimony regarding the credibility of a witness is impermissible, because
questions of credibility are solely to be decided by the jury. Franzel v Kerr Mfg Co, 234 Mich
App 600, 622; 600 NW2d 66 (1999). An examining physician in a criminal sexual conduct case
is allowed to testify, however, as long as the testimony will assist the jury in their determination
of the existence of either of two crucial elements of the offense charged, (1) penetration, and (2)
lack of consent. People v McGillen #2, 392 Mich 278, 284; 220 NW2d 689 (1974). In this case,
the issues of penetration and consent were before the jury. The prosecutor was thus permitted to
introduce evidence that the victim did not consent to the penetration and that the lack of injury to
her vagina did not negate her claim of penetration by the defendant through the use of a knife
and stick. The examining physician did not impermissibly bolster the victim’s credibility and the
prosecutor did not commit misconduct. Therefore, we find no plain error in the elicitation of this
testimony.
Defendant next argues that his life sentences for first-degree criminal sexual conduct
were disproportionate to the crimes for which he was convicted. We disagree.1
We review the imposition of defendant’s sentences for an abuse of discretion. See
People v Gatewood (On Remand), 216 Mich App 559, 560; 550 NW2d 265 (1996). It is an
abuse of discretion for a trial court to impose a sentence that violates the principle of
proportionality; a sentence must be proportionate to the seriousness of the crime for which the
defendant is convicted, as well as the defendant’s prior record. People v Milbourn, 435 Mich
630, 636, 654; 461 NW2d 1 (1990). Here, the record reveals that defendant has 11 prior felony
convictions and 12 misdemeanor convictions. Several of defendant’s past crimes were
assaultive, including convictions for felonious assault, assault with intent to do great bodily harm
less than murder, and first-degree criminal sexual conduct. The circumstances of defendant’s
instant convictions were similarly assaultive and also heinous. Defendant entered the victim’s
home in the middle of the night and, after threatening the life of her two-year-old daughter,
sexually assaulted the victim with his penis and a knife before transporting her in the trunk of a
1
Because defendant’s crimes were committed before January 1, 1999, the legislative sentencing
guidelines do not apply. MCL 769.34(1).
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car to other locations where he committed additional acts of sexual misconduct. On these facts,
we conclude that the life sentences imposed by the trial court were proportionate to the offenses
and the offender. The trial court did not, therefore, abuse its discretion in imposing such
sentences.
Defendant also argues that resentencing is required because the trial court abused its
discretion in sentencing him to indeterminate sentences that he could not possibly serve during
his life expectancy. We disagree. We are no longer required to remand for resentencing of a
defendant because his indeterminate sentence is effectively a life term without the possibility of
parole. See People v Kelly, 213 Mich App 8, 15-16; 539 NW2d 538 (1995). Rather, the
proportionality standard as set forth in Milbourn, supra, is the appropriate standard by which to
judge the legality of a defendant’s sentence. Kelly, supra at 16. For the reasons already
discussed, we find defendant’s indeterminate sentences to be proportionate to the offenses and
the offender. Remand for resentencing is thus not required.
Affirmed.
/s/ Joel P. Hoekstra
/s/ David H. Sawyer
/s/ Christopher M. Murray
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