PEOPLE OF MI V ANDREW JAY BOYLE JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 23, 2009
Plaintiff-Appellee,
v
No. 281047
Lapeer Circuit Court
LC No. 06-008986-FH
ANDREW JAY BOYLE, JR.,
Defendant-Appellant.
Before: Jansen, P.J., and Meter and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions by a jury of two counts of assault with
intent to commit criminal sexual penetration, MCL 750.520g(1). The trial court sentenced him
as a third-offense habitual offender, MCL 769.11, to concurrent sentences of seven to 20 years
on each count. We affirm defendant’s convictions and sentences, vacate the imposition of
attorney fees, and remand this case for a determination of defendant’s present and future ability
to reimburse costs for his appointed counsel and for amendment of the judgment of sentence and
correction of the presentence investigation report.
Defendant’s convictions arose from his April 12, 2006, encounters with two females
living in his neighborhood. On both occasions defendant approached the victims while they
were alone at home. Defendant attempted to gain entry to the homes, but was denied in both
instances. Defendant later told police officers investigating the incidents that he was having
trouble with sexual urges and intended to have forcible sex with the victims if he had gained
entry to their homes.
Defendant first argues that the court erred in denying his motion for a directed verdict.
We disagree.
This Court reviews de novo a trial court’s decision on a motion for [a] directed
verdict to determine whether the prosecutor’s evidence, viewed in the light most
favorable to the prosecution, could persuade a rational trier of fact that the
essential elements of the crime were proven beyond a reasonable doubt. [People
v Martin, 271 Mich App 280, 319-320; 721 NW2d 815 (2006).]
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The prosecution, in order to obtain valid convictions in this case, was required to prove
that (1) assaults occurred and (2) defendant acted with the intent to commit criminal sexual
conduct involving penetration. People v Starks, 473 Mich 227, 234-235; 701 NW2d 136 (2005).
An assault is either “an attempt to commit a battery or an unlawful act which places another in
reasonable apprehension of receiving an immediate battery.” People v Grant, 211 Mich App
200, 202; 535 NW2d 581 (1995) (internal citation and quotation marks omitted).
Here, we conclude that the evidence was sufficient to establish the elements of assault
with intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1). Two
assaults were established because defendant, in both instances, attempted to commit a battery.
In the first incident, he approached the home of the woman in question, asked to speak to
someone named “Sonny,” and asked about the name of the road on which the house is located.
Then, after turning to leave, defendant turned back, told the woman that he had forgotten to give
her something, and suddenly attempted to open the screen door. The woman testified that he
“yanked very hard on the screen door.” The woman testified that she was “very frightened” by
the encounter, which is circumstantial evidence that defendant did not have a benign state of
mind when he attempted to enter the home. If defendant’s purpose had been truly benign, it is
reasonable to expect that such a large degree of fright would not have occurred. The woman also
testified that she telephoned her husband because she was so distressed about the incident and
that she telephoned the police after her husband advised her to do so.
In the second incident, defendant approached the home of the second woman, asked to
come inside to use the telephone, and then, after the woman shut the door, persisted in knocking
on the door. The woman testified that she was “very scared” by the incident and that it made her
cry, which, again, is circumstantial evidence that defendant did not have a benign state of mind
when attempting to enter the home. She also testified that she hid in a bathroom while defendant
was still present on her premises, that defendant continued knocking for about five minutes, and
that she telephoned friends as a result of her distress.
Defendant admitted to the police that he intended to have forcible sex with the women if
he had gained entrance to either home.
The above evidence was sufficient to establish that defendant attempted to commit a
battery. The dissent states that there was a lack of evidence that defendant ever attempted to
actually inflict a battery or bodily touching, but, in our opinion, this is simply not true, given that
defendant approached the women’s homes and aggressively tried to get inside the homes, in a
manner which greatly frightened both women.
Also, defendant had the “present ability” to commit the batteries. See People v Reeves,
458 Mich 236, 243; 580 NW2d 433 (1998). The pertinent question is whether the acts had
proceeded far enough “towards a consummation . . . .” Id. (internal citations and quotation
marks omitted). “[A]ssault with intent to commit criminal sexual conduct involving sexual
penetration can be distinguished from attempted third-degree criminal sexual conduct by the
proximity of the defendant to the completed act.” Starks, supra 236 (internal citation and
quotation marks omitted). “Attempted-battery” assaults must “evince an assailant's actual ability
to inflict injury on the victim.” Reeves, supra at 244. Here, defendant was present at the
women’s homes, was physically very close to the women, and had taken significant steps
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towards the “consummation” of the batteries. Although he was thwarted from completing the
battery, in the second incident, by the woman’s closing and locking the door, he came in close
proximity to completion of it and had, for a time, the present ability to complete it. In the first
incident, he was thwarted merely by a screen door; it is certainly reasonable to conclude that,
despite the screen door’s being locked, he nonetheless had the present ability to complete the
assault but essentially “lost his momentum” when the door did not immediately open.
There was sufficient evidence of two assaults in this case, and defendant’s admissions
established that he acted with the intent to commit criminal sexual conduct involving penetration.
Therefore, the prosecution sufficiently established the elements of the charged crimes. Starks,
supra at 234-235.
Moreover, contrary to the dissent’s conclusion, we do not believe that the corpus delicti
rule prohibits defendant’s convictions. First, we note that defendant does not even raise this rule
as an issue on appeal. Also, in People v Cotton, 191 Mich App 377, 394; 478 NW2d 681 (1991),
this Court stated:
[W]e hold that the corpus delicti rule is satisfied and a defendant's
confession may be admitted into evidence when the prosecutor presents direct or
circumstantial evidence, independent of the confession, establishing (1) the
occurrence of the specific injury and (2) some criminal agency as the source of
the injury. Once this showing is made, a defendant's confession may be used to
establish identity, intent, or aggravating circumstances.
The Court also stated:
As previously discussed, the historical purpose of the corpus delicti rule
was to prevent a defendant from being convicted of murder solely on the basis of
his confession when no death had occurred. As applied to other crimes then, the
purpose of the rule is to prevent a defendant's confession from being used to
convict him of a crime that never happened. In most prosecutions for crimes
other than murder, the danger that a defendant's confession will result in
conviction of a crime that did not occur is obviated by the fact that the victim of
the crime can testify about the circumstances that establish that the injury
occurred as the result of some criminal agency. Thus, the dilemma that originally
led to the development of the corpus delicti rule does not exist in many of these
cases. [Id. at 389-390.]
Under the unique circumstances of this case, we conclude that the women’s testimony that
defendant approached their homes and aggressively attempted to enter their homes in a manner
that greatly frightened them was sufficient to establish injuries that occurred as the result of some
criminal agency. Defendant’s statements could then be properly used to “establish . . . intent” or
other circumstances. Id. at 394. There was sufficient evidence for defendant’s convictions.
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Defendant next contends that the trial court erred in allowing the introduction of
character evidence in contravention of MRE 404(b). We disagree. At issue is evidence that
defendant followed and approached a third woman the day after approaching the two victims of
the crimes for which he stands convicted. Because defendant failed to adequately object1 to the
introduction of this evidence at trial, his current challenge is an unpreserved challenge to the
admission of evidence that we review for plain error affecting substantial rights. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). For reversal to be warranted, there must
have been a clear or obvious error that affected the outcome of the proceedings. Id.
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
Evidence of other crimes, wrongs, or acts is admissible under MRE 404(b)(1) if such evidence is
offered for a proper purpose and relevant under MRE 402 to a fact of consequence at trial, and if
the danger of unfair prejudice does not substantially outweigh the probative value of the
evidence. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004).
The prosecution argued that evidence of defendant’s encounter with the third woman
would help to establish “intent, motive, scheme, plan or system in doing an act and/or absence of
mistake or accident.” Accordingly, the first element of admissibility was established.
The court instructed the jurors that they could “only think about whether the evidence
tends to show that the [d]efendant had a reason and/or motive to commit the crimes.” In part, the
prosecution had argued in its motion to admit the evidence that it was relevant because it showed
that “[d]efendant cannot contain his sexual urges.”
Evidence of defendant’s encounter with the third woman was relevant to the
establishment of a pattern of behavior over consecutive days in which defendant approached
apparently isolated females. In all three incidents, the evidence showed that defendant acted
with some persistence. This was at a time when, as he admitted to police, he was struggling with
sexual urges. Indeed, he admitted to police that he was having sexual urges when he approached
both of his victims and would have forced each woman to have sex with him if he had gained
entry to their homes. Citing a 2002 science fiction movie, and asserting that men and women are
“wired differently” with respect how often they think about sex, defense counsel argued in
closing at trial that “just thinking about committing a crime is not enough.” The other-acts
1
Defendant simply did not make any arguments specifically directed towards the third woman’s
testimony.
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evidence, however, helped to show that defendant was doing more than thinking about his sexual
urges. Rather, he was engaging in behavior motivated by, and designed to satisfy, his urges.
Moreover, any danger that the other-acts evidence would be unfairly applied by the jury
was effectively alleviated by the trial court’s limiting instruction. See People v Sabin (After
Remand), 463 Mich 43, 56; 614 NW2d 888 (2000) (indicating that a court may provide a
limiting instruction concerning other-acts evidence). “It is well established that jurors are
presumed to follow their instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d 229
(1998). Therefore, the trial court did not commit error, plain or otherwise, in admitting the
evidence.
Defendant also contends that he is entitled to resentencing because the trial court failed to
exercise its discretion in setting the maximum sentence. Again, we disagree. Because defendant
failed to object to the trial court’s handling of this issue below, this is an unpreserved claim of
sentencing error that we review for plain error affecting substantial rights. People v Sexton, 250
Mich App 211, 227-228; 646 NW2d 875 (2002).
MCL 769.11(1)(a) states that a person convicted of two or more felonies shall be
sentenced as follows for a subsequent felony:
If the subsequent felony is punishable upon a first conviction by
imprisonment for a term less than life, the court, except as otherwise provided in
this section or section 1 of chapter XI, may sentence the person to imprisonment
for a maximum term that is not more than twice the longest term prescribed by
law for a first conviction of that offense or for a lesser term.
There is no error requiring reversal if the court fails to articulate the reasons for its maximum
sentence under an habitual offender statute, as long as the court does not make the erroneous
statement that it has no discretion in setting the maximum sentence. See, e.g., People v Beneson,
192 Mich App 469, 471; 481 NW2d 799 (1992). Indeed, there is a presumption that the trial
court applied the valid law if there is no evidence that the court incorrectly believed that it lacked
discretion. See People v Knapp, 244 Mich App 361, 389; 624 NW2d 227 (2001).
In the instant case, the trial court sentenced defendant to “a minimum period of seven
years as set by this court, to a maximum period of 20 years as set by statute,” on each charge.
Defendant argues that this language indicates that the trial court failed to recognize and exercise
its discretion in setting the maximum sentence. However, the trial court had previously noted
that defendant’s status as a third-offense habitual offender resulted in a “maximum sentence in
this matter on both Count 1 and 2 [of] up to 20 years in prison” (emphasis added). The reference
to the maximum being “set by statute” should be understood as the court simply drawing
attention to its role in determining the minimum sentence under the Legislative sentencing
guidelines versus its role in determining the maximum sentence. As such, defendant is not
entitled to resentencing.
In addition, defendant contends that he is entitled to resentencing because the trial court
improperly scored multiple offense variables (OVs). A defendant can preserve an issue
challenging the scoring of the guidelines or challenging the accuracy of the information relied on
in determining a sentence by raising an objection at sentencing. People v Kimble, 470 Mich 305,
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309; 684 NW2d 669 (2004). Defendant’s counsel objected to the scoring of OV 4, OV 10, and
OV 13. There was no objection to the scoring of OV 9, nor did defendant preserve the OV 9
issue in any other fashion. See id. at 310-311. Thus, defendant’s claims of error relating to the
scoring of OV 4, OV 10, and OV 13 are preserved, but defendant’s claim of error relating to the
scoring of OV 9 is unpreserved.
We review a trial court’s scoring decisions for an abuse of discretion and must determine
whether the record evidence adequately supports a particular score. People v Wilson, 265 Mich
App 386, 397; 695 NW2d 35 (2005). An abuse of discretion occurs when the trial court chooses
an outcome that falls outside the principled range of outcomes. People v Babcock, 469 Mich
247, 269; 666 NW2d 231 (2003).
Defendant first argues that the trial court erred in assessing ten points under OV 4 for
each count where there was no evidence that either victim may need psychological treatment.
MCL 777.34 calls for the assessment of ten points if there is serious psychological injury that
may require treatment. In addition, MCL 777.34(2) specifically states that “the fact that
treatment has not been sought is not conclusive.” That neither victim had sought psychological
treatment as of the date of sentencing, which was admittedly more than 15 months after the
incidents, did not preclude assessing ten points under OV 4. Both victims testified that they were
frightened by their respective encounters with defendant. Moreover, both victims provided
victim-impact statements to the trial court that indicated that both suffered psychological injury
as a result of defendant’s conduct. One victim stated “yes!” when asked if she feared retaliation
from defendant and also stated that she does not “want to get off school bus alone or be home
alone.” The second victim indicated that her family had “lost [its] sense of security . . . .”
Accordingly, the trial court did not err in assessing ten points for OV 4.
Defendant also argues that the trial court erred in assessing 15 points under OV 10
because there was no preoffense predatory conduct. Under MCL 777.40(1)(a), the trial court
must assess 15 points if “predatory conduct was involved.” Predatory conduct is defined as
“preoffense conduct directed at a victim for the primary purpose of victimization.” MCL
777.40(3)(a). When the facts show that an assault was timed to take place when no other person
was around and in a location that was secluded and isolated, there is a sufficient basis to find
predatory conduct. See People v Witherspoon, 257 Mich App 329, 336; 670 NW2d 434 (2003).
Here, defendant approached both victims when they were home alone. The fact that defendant
was a member of the neighborhood implies that he was familiar with his neighbors’ schedules
and could therefore have timed his approach to each with the purpose of getting them alone. In
addition, the first victim’s testimony that her dogs were barking excessively for a period of 20 to
30 minutes before she locked them up and that defendant knocked on her door shortly thereafter
supports the inference that defendant observed her home in an attempt to verify if she was alone.
Therefore, the trial court did not err in assessing 15 points for predatory conduct.
Additionally, defendant argues that the trial court erred in assessing 25 points for OV 13
because there was no evidence of three crimes against a person. A court must assess 25 points
under OV 13 if the offense was part of a continuing pattern of felonious criminal activity
involving three or more crimes against a person. MCL 777.43(1)(c). In determining the number
of points to assess, all crimes within a five-year period, including the sentencing offense, must be
counted regardless of whether the offense resulted in a conviction. MCL 777.43(2)(a); People v
Francisco, 474 Mich 82, 85; 711 NW2d 44 (2006). The trial court assessed 25 points based on
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defendant’s conduct for each of the convictions in the instant case as well as defendant’s conduct
in following the third woman. Defendant argues that the trial court could not include this latter
incident under OV 13, given that one officer testified that charges were not pursued against
defendant related to this incident because the police did not feel they had sufficient evidence to
obtain a conviction. However, as noted above, a conviction is not required in order for an
incident to be included as a former crime under this offense variable. Nor is there any indication
that a defendant must be charged in order for criminal behavior to be considered under this
offense variable. In addition, defendant’s argument that he did nothing more than ask directions
of the third woman is not supported by the evidence. We conclude that the trial court did not err
in its scoring of OV 13.
We agree that the trial court did err in its assessment of ten points under OV 9. However,
defendant is not entitled to resentencing as a result of this error. If the trial court had correctly
scored OV 9 at zero points, defendant’s total OV score would be reduced from 60 points to 50
points. This reduction would not change the recommended range for the minimum sentence
under the sentencing guidelines, MCL 777.21(3)(b); MCL 777.65, and defendant was sentenced
within these guidelines. Appellate relief is unwarranted. Kimble, supra at 310-311 (indicating
that if a defendant may not appeal an unpreserved scoring decision if the sentence was within the
appropriate guidelines range). Even if this issue were reviewed under the plain-error standard of
Carines, supra at 763, there would be no basis for relief, because defendant’s substantial rights
were not affected by the error.
Additionally, because the range for the minimum sentence would remain the same even if
the OV 9 score were adjusted, defendant cannot establish the requisite prejudice to sustain his
claim of ineffective assistance of counsel. People v Rodgers, 248 Mich App 702, 714; 645
NW2d 294 (2001).
Finally, defendant contends that the trial court erred in ordering him to reimburse
attorney fees for his appointed counsel without making a record determination of defendant’s
present or future ability to pay. We agree. In People v Dunbar, 264 Mich App 240, 255-256;
690 NW2d 476 (2004), this Court held that a trial court must indicate on the sentencing record
that is has considered a defendant’s present and future ability to pay before assessing fees for the
reimbursement of attorney fees. When record evidence of such consideration is lacking, a
remand is required. Id. at 256. We thus remand this case.
Defendant also takes issue with the fact that the assessed attorney fees were included as
part of the judgment of sentence. Dunbar, supra at 256 n 15, had held that attorney-fee
reimbursement could not be included as part of the judgment of sentence because “Michigan
currently lacks a statutory scheme which authorizes repayment of court-appointed attorney fees.”
The Legislature subsequently enacted MCL 769.1k(1)(b)(iii), which does authorize the court to
impose the reimbursement of attorney fees. In People v Trapp, 280 Mich App 598, 602; 760
NW2d 791 (2008), this Court held that, in light of MCL 769.1k(1)(b)(iii), an order for the
reimbursement of attorney fees could be included as part of the judgment of sentence. However,
the Supreme Court, notwithstanding MCL 769.1d(1)(b)(iii), has confirmed the ruling in Dunbar
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that the reimbursement order must be separate from the judgment of sentence.2 See People v
Ransom, 481 Mich 926, 997; 751 NW2d 35 (2008), and People v Rounsoville, 481 Mich 932;
751 NW2d 25 (2008); see also People v Edgett, 220 Mich App 686; 560 NW2d 360 (1996)
(“Supreme Court . . . orders are binding precedent when they can be understood”). We
obviously are bound to follow Supreme Court precedent. Therefore, any reimbursement order
shall be issued separately from the judgment of sentence.
Affirmed in part, vacated in part, and remanded for a determination of defendant’s
present and future ability to reimburse costs for his appointed counsel, and for amendment of the
judgment of sentence and correction of the presentence investigation report. We do not retain
jurisdiction.
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
2
This may have been a simple oversight on the part of the Supreme Court, but we nonetheless
feel obligated to follow Supreme Court precedent.
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