PEOPLE OF MI V ROBERT LAWRENCE WILKENS JRAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
August 23, 2005
Washtenaw Circuit Court
LC No. 03-000371-FH
ROBERT LAWRENCE WILKENS, JR.,
Official Reported Version
Before: Cooper, P.J. and Bandstra and Kelly, JJ.
Following a bench trial, defendant was convicted of two counts of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(1)(c) (sexual penetration during the commission of
another felony); one count of producing child sexually abusive material, MCL 750.145c(2); and
one count of eavesdropping through installation of a camera, MCL 750.539d.1 The trial court
sentenced defendant as a third-offense habitual offender to 35 years and 5 months to 60 years'
imprisonment for the CSC-I convictions, 20 to 40 years' imprisonment for producing child
sexually abusive material, and 2 to 4 years' imprisonment for eavesdropping, to be served
concurrently. Defendant appeals as of right his convictions and sentences. We affirm.
In March 2003, Detective Robert Peto and Sergeant Craig Annas of the Ypsilanti Police
Department went to defendant's home to investigate criminal allegations unrelated to this case.
The officers requested consent to search defendant's home for a gun or knife. Defendant
provided written consent to search his home except for rooms rented to tenants. While looking
in the shower, Detective Peto observed a homemade device with electrical switches and a motion
detector. He thought it was suspicious because it is unusual to have electrical switches and a
motion detector in a shower, especially when female tenants used the shower. Detective Peto
also saw a "small, approximate quarter-inch hole drilled underneath where the sensor normal—
This conviction is not at issue on appeal.
sensor housing normally is." Detective Peto flashed his light on the hole and saw the reflection
of glass, which appeared to him to be the lens of a microcamera. Because Detective Peto and
Sergeant Annas knew that defendant's tenants used the shower, they arrested defendant for
eavesdropping. They also halted their search of the home, and Detective Peto left to obtain a
Upon execution of the search warrant, Detective Peto retrieved the camera behind the
panel. He found that the wiring from the camera led to recording systems in both defendant's
bedroom and the living room. A working remote control for the system was also found in
defendant's bedroom. The officers seized video and camera equipment, including a camera from
atop defendant's dresser, audio and visual recordings, and sexual toys and photographs.
Detective Peto testified that, during the initial consent search, he and Sergeant Annas
found two videotape recordings between the mattresses on defendant's bed. They were not
concerned about the videotape recordings at the time. They were not looking for videotapes, and
defendant volunteered that they were his personal videotape recordings. When the officers
executed the search warrant later that night, however, they seized several other videotapes. On
one tape, entitled "Mixed Signals," defendant had recorded himself, a 14-year-old male, and a
16-year-old female engaging in sexual acts.
II. Search and Seizure
A. Legality of Seizure
Defendant argues that all the evidence found and seized after Detective Peto used his
flashlight to examine the small hole in the shower should have been suppressed because shining
the light in that hole, when the object of the search was a gun or knife, exceeded the scope of the
consented-to search. We disagree.
We review a trial court's findings of fact for clear error, giving deference
to the trial court's resolution of factual issues. "A finding of fact is clearly
erroneous if, after a review of the entire record, an appellate court is left with a
definite and firm conviction that a mistake has been made." We overstep our
review function if we substitute our judgment for that of the trial court and make
independent findings. However, we review de novo the trial court's ultimate
decision on a motion to suppress. [People v Frohriep, 247 Mich App 692, 702;
637 NW2d 562 (2001) (citations omitted).]
"Generally, if evidence is unconstitutionally seized, it must be excluded from trial."
People v Jordan, 187 Mich App 582, 588; 468 NW2d 294 (1991).
The right against unreasonable searches and seizures is guaranteed by both
the state and federal constitutions. US Const, Am IV; Const 1963, art 1, § 11.
The state constitutional standard is not higher than the federal standard. The
constitutions do not forbid all searches and seizures, only unreasonable ones.
Reasonableness depends upon the facts and circumstances of each case. The
applicable test in determining the reasonableness of an intrusion is to balance the
need to search, in the public interest, for evidence of criminal activity against
invasion of the individual's privacy. [Id. at 586 (citations omitted).]
"The exclusionary rule applies not only to evidence improperly seized during a search without a
warrant, but to evidence subsequently seized pursuant to a warrant obtained as a result of an
initial illegal search." Id. at 588. "Among the recognized exceptions to the warrant requirement
are exigent circumstance, consent, and plain view." Id. at 587. "The plain view doctrine allows
police officers to seize, without a warrant, items in plain view if the officers are lawfully in a
position from which they view the item, and if the item's incriminating character is immediately
apparent." People v Champion, 452 Mich 92, 101; 549 NW2d 849 (1996).
The initial search of defendant's home took place under the consent exception. The scope
of a consent search is limited by the object of that search. Florida v Jimeno, 500 US 248, 251;
111 S Ct 1801; 114 L Ed 2d 297 (1991). Defendant admits that he signed a written consent,
which did not specify the object of the search and was not limited in any manner. However, it is
undisputed that defendant orally consented to a search for a knife or a gun. Defendant only
limited the search area to exclude the private rooms of his tenants. Detective Peto's search of the
shower for a gun or knife was clearly within the scope of defendant's consent. Under the plain
view doctrine, Detective Peto could have seized the device that he discovered in the shower
without benefit of a warrant. Detective Peto was lawfully searching the shower, the device was
in plain view, it was suspicious, and detective Peto knew that defendant's female tenants used the
bathroom. Thus, the incriminating nature of the device was readily apparent even though the full
nature of the device was unknown at that time. According to defendant's affidavit, Detective
Peto removed screws from the unit and showed them to defendant before the search warrant was
obtained. Even assuming that defendant's statements are true, because detective Peto could have
seized the device given its obvious incriminating nature, viewing the device with a flashlight and
removal of the screws was also permitted. No other evidence was seized until after the search
warrant was obtained. Therefore, trial court did not err in admitting the evidence.
B. Request for Polygraph Examination for Purpose of Motion to Suppress
Defendant further argues that the trial court erred when it denied defendant's request for a
polygraph examination, which would have assisted him in proving that the seizure of evidence
was illegal and led to the suppression of the evidence against him. In addressing a trial court's
denial of a request for a polygraph examination, our Supreme Court held:
In cases involving preserved, nonconstitutional error, a defendant must
demonstrate, "'after an examination of the entire cause,'" that it "is more probable
than not that the error was outcome determinative." The reviewing court must
examine the nature of the error and assess its effect "'in light of the weight and
strength of the untainted evidence.'" [People v Phillips, 469 Mich 390, 396-397;
666 NW2d 657 (2003) (citations omitted).]
Under the circumstances of this case, even if the trial court's denial was error, defendant
cannot demonstrate that it is more probable than not that it was outcome determinative. MCL
A defendant who allegedly has committed a crime under sections 520b to
520e and 520g of Act No. 328 of the Public Acts of 1931 [MCL 750.520b to
750.520e and MCL 750.520g], shall be given a polygraph examination or lie
detector test if the defendant requests it.
"The purpose of affording individuals accused of criminal sexual conduct a right to a polygraph
exam is to provide a means by which accused individuals can demonstrate their innocence,
thereby obviating the necessity of a trial." People v Phillips, 251 Mich App 100, 107; 649
NW2d 407 (2002), aff 'd 469 Mich 390; 666 NW2d 657 (2003). In this case, however, defendant
did not seek a polygraph examination to prove his innocence of the alleged crime. Rather, he
sought a polygraph examination to support his argument that the evidence against him should
have been suppressed because of an illegal search and seizure. As discussed above, even
accepting defendant's affidavit as true, these facts would not have affected the outcome of the
suppression issue. Therefore, defendant cannot establish that the trial court's denial of his
request for a polygraph examination was outcome determinative.
C. Ineffective Assistance of Counsel Regarding Suppression Motion
Similarly, defendant cannot show that counsel was ineffective for failing to file a motion
to suppress the evidence before trial, which motion would have allowed defendant to put the
statements made in his affidavit on the record in the lower court. Because, as discussed above,
defendant's testimony would not have been outcome determinative on this issue, defendant
cannot demonstrate ineffective assistance of counsel in this regard. People v Carbin, 463 Mich
590, 600; 623 NW2d 884 (2001).
III. Consent not a Defense to MCL 750.520b(1)(c) if not a Defense to Underlying Felony
Defendant next argues that the trial court erred in precluding consent as a defense to the
CSC-I charges under MCL 750.520b(1)(c) when the underlying felony was producing child
sexually abusive material, MCL 750.145c(2). We disagree. We review de novo claims of
instructional error. People v Hubbard (After Remand), 217 Mich App 459, 487; 552 NW2d 493
(1996). This issue also involves statutory interpretation. According to the well-established rules
of statutory interpretation,
[w]hen construing a statute, our primary goal is "to ascertain and give effect to the
intent of the Legislature." To do so, we begin by examining the language of the
statute. If the statute's language is clear and unambiguous, we assume that the
Legislature intended its plain meaning and the statute is enforced as written.
Stated differently, "a court may read nothing into an unambiguous statute that is
not within the manifest intent of the Legislature as derived from the words of the
statute itself." "Only where the statutory language is ambiguous may a court
properly go beyond the words of the statute to ascertain legislative intent."
[Phillips, supra, 469 Mich 395 (citations omitted).]
MCL 750.520b provides, in relevant part:
(1) A person is guilty of criminal sexual conduct in the first degree if he or
she engages in sexual penetration with another person and if any of the following
* * *
(c) Sexual penetration occurs under circumstances involving the
commission of any other felony.
According to the plain language of MCL 750.520b(1)(c), the prosecution must prove two
elements: (1) a sexual penetration (2) that occurs during the commission of another felony.
Accordingly, regardless of whether the penetration was consensual, if it occurs during the
commission of another felony, the elements of MCL 750.520b(1)(c) are satisfied. The question
then is whether consent is a defense to the "other felony", i.e., the underlying felony. We hold
that if consent is not a defense to the underlying felony, then it is not a defense to the CSC-I
charge under MCL 750.250b(1)(c).
In this case, the underlying felony was producing child sexually abusive material in
violation of MCL 750.145c(2), which provides, in pertinent part, "A person who . . . produces
[or] makes . . . any child sexually abusive activity or child sexually abusive material is guilty of a
felony . . . ." The statute defines a "child" as "a person who is less than 18 years of age . . . ."
MCL 750.145c(1)(b). It is undisputed that consent is not a defense to a charge under MCL
750.145c(2). If consent were a defense to the second element of MCL 750.520b(1)(c), i.e., the
underlying felony, then it would be an appropriate defense to the charge under MCL
750.520b(1)(c). For example, because consent is a complete defense to the felony of kidnapping,
MCL 750.349, consent is a defense to MCL 750.520b(1)(c) when the underlying felony is
kidnapping. People v Thompson, 117 Mich App 522, 526; 324 NW2d 22 (1982); People v
LaPorte, 103 Mich App 444, 448-449; 303 NW2d 222 (1981). But here, because consent is not
a defense to the underlying felony, producing child sexually abusive material, defendant cannot
argue consent as a defense to his charges under MCL 750.520b(1)(c). Therefore, the trial court
properly excluded consent as a defense.
IV. Sufficiency of the Evidence
Defendant next argues that there was insufficient evidence to support his conviction of
CSC-I in counts I and II. We disagree. "Generally, we review a challenge to the sufficiency of
the evidence in a bench trial de novo and in a light most favorable to the prosecution to
determine whether the trial court could have found that the essential elements of the crime were
proved beyond a reasonable doubt." People v Sherman-Huffman, 241 Mich App 264, 265; 615
NW2d 776 (2000), aff 'd 466 Mich 39; 642 NW2d 339 (2002). All conflicts with regard to the
evidence must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452;
569 NW2d 641 (1997). Circumstantial evidence and reasonable inferences drawn from it may
be sufficient to prove the elements of the crime. People v Watson, 245 Mich App 572, 595; 629
NW2d 411 (2001).
A. Count I—CSC-I Penetration During Commission of Another Felony
The evidence was sufficient to support defendant's conviction of CSC-I with respect to
count I, defendant's sexual penetration of the female victim. Defendant asserts that mere
touching cannot support his conviction "where penetration is required." However, pursuant to
MCL 750.520a(o), "'Sexual penetration' means sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person's body or of any
object into the genital or anal openings of another person's body, but emission of semen is not
required.'" (Emphasis added.) In the "Mixed Signals" videotape, defendant appears to place his
mouth between the female victim's legs on at least one occasion. Further, the male victim
testified at trial:
Q. Do you have positive recollection of Mr. Wilkins [sic] touching [the
female victim's] vagina with those sex toys or any sex toy?
Q. You're positive that that occurred?
Q. He used a sex toy and he touched her vagina?
Viewing this evidence in the light most favorable to the prosecution, we conclude that
there was sufficient evidence to permit a rational trier of fact to find that defendant made an
intrusion, however slight, with a body part or object into the genital opening of the female
B. Count II—CSC-I Aiding and Abetting
There was also sufficient evidence to sustain defendant's conviction with respect to count
II of CSC-I as an aider and abettor.
MCL 767.39 provides:
Every person concerned in the commission of an offense, whether he
directly commits the act constituting the offense or procures, counsels, aids, or
abets in its commission may hereafter be prosecuted, indicted, tried and on
conviction shall be punished as if he had directly committed such offense.
In count II, defendant was charged as follows:
[The defendant] did aid and abet the sexual penetration of another person,
to-wit: cunnilingus, by [the male victim], under circumstances involving the
commission of another felony, to-wit: production of child Sexually Abusive
Material; contrary to MCL 750.520b(1)(c) . . . .
The videotape evidence was sufficient to allow a rational trier of fact to find beyond a
reasonable doubt that defendant aided or abetted the male victim's penetration of the female
victim, which occurred during the commission of another felony. Therefore, defendant's
conviction under MCL 750.520b(1)(c) as an aider and abettor is supported by the evidence.
V. Scoring of Offense Variables
Defendant next argues that several of the offense variables were improperly scored. We
disagree. "A sentencing court has discretion in determining the number of points to be scored,
provided that evidence of record adequately supports a particular 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
Defendant challenges the scoring of offense variable (OV) 4 for counts I and II (CSC-I).
Ten points are scored for OV 4 if "[s]erious psychological injury requiring professional treatment
occurred to the victim[.]" MCL 777.34(1)(a). Ten points should be scored if the "serious
psychological injury may require professional treatment," and the fact that treatment is not
sought is not conclusive when scoring the variable. MCL 777.34(2).
With regard to the male victim, the videotape reveals that his attitude took a disturbing
turn during the course of the 41-minute incident. Toward the end, he resorted to making violent
threats against the female victim to coerce her into continuing the sex acts. This, in light of the
fact that the male victim's demeanor on the stand was rather casual, indicates that the male victim
suffered serious psychological injury as a result of this incident such that he was rendered unable
to comprehend the gravity of his actions. This supports the trial court's scoring of OV 4.
With regard to the female victim, the trial court relied on statements that she made "on
the videotape and everything else." Though the female victim did not testify, the videotape
shows that the female victim repeatedly indicated that she did not want to continue the sex acts
and that the "motion lotion" was hurting her, yet defendant asserted that the videotape was not
worth the money he spent on the female victim's clothes and urged the female victim to continue.
Ultimately, the female victim sat up in bed and remained silent while defendant attempted to
coax her into continuing. This evidence indicates that defendant's actions caused the female
victim anxiety, altered her demeanor, and caused her to withdraw; it supports a finding of serious
psychological injury occurring to the female victim.
With respect to OV 9, MCL 777.39(1)(c), ten points are scored if there are two to nine
victims. Each person "who was placed in danger of injury or loss of life as a victim" is counted
when scoring the offense variable. MCL 777.39(2)(a). In this case, both the male victim and the
female victim were placed in danger of injury by defendant's conduct. During the making of the
videotape, the male victim threatened the female victim with physical harm. Additionally, at
defendant's suggestion, the male victim used "motion lotion," which the female victim
complained burned her. Thus, she was placed in physical danger. Also, the female victim and
the male victim, both minors, were placed in danger of physical injury from having drunk a large
quantity of alcohol provided by defendant. The record supports the scoring of OV 9.
Offense variable 10, MCL 777.40, was also properly scored at ten points for counts I and
II. OV 10 relates to the exploitation of a vulnerable victim and is scored at ten points if the
offender "exploited a victim's physical disability, mental disability, youth or agedness, or a
domestic relationship, or the offender abused his or her authority status[.]" MCL 777.40(1)(b).
The word "exploit" means "to manipulate a victim for selfish or unethical purposes." MCL
777.40(3)(b). The word "vulnerability" means "the readily apparent susceptibility of a victim to
injury, physical restraint, persuasion, or temptation." MCL 777.40(3)(c). The female victim, a
16-year-old with a history of running away from her adoptive parents, stayed in defendant's
house for a period. On the night in question, defendant provided her with alcohol and purchased
clothes and food for her. The "Mixed Signals" videotape was then made so that the female
victim could pay defendant back for the clothes. The record supports that defendant "exploited"
the victim's youth by manipulating her with clothes and alcohol in exchange for making the
sexually abusive videotape.
OV 11, MCL 777.41, was also properly scored for counts I and II. OV 11 provides that
25 points should be scored if one sexual penetration occurred. MCL 777.41(1)(b). The statute
All of the following apply to scoring offense variable 11:
(a) Score all sexual penetrations of the victim by the offender arising out
of the sentencing offense.
(b) Multiple sexual penetrations of the victim by the offender extending
beyond the sentencing offense may be scored in offense variables 12 and 13.
(c) Do not score points for the 1 penetration that forms the basis of a firstor third-degree criminal sexual conduct offense. [MCL 777.41(2).]
The statute instructs that only penetrations of the victim arising out of the sentencing
offense are scored, but the one penetration that forms the basis of the sentencing offense is
excluded. People v McLaughlin, 258 Mich App 635, 674-677; 672 NW2d 860 (2003). The
phrase "arising out of the sentencing offense" refers to all penetrations arising out of the entire
assault. Id. at 674. In count I, defendant was sentenced for his penetration of the victim. But the
evidence demonstrates that defendant penetrated the female victim with both his mouth and a sex
toy. The evidence supports the score of 25 points for OV 11 for count I because defendant was
charged with only one penetration, yet he penetrated the female victim more than once during the
making of the videotape. Similarly, in scoring count II, defendant was sentenced as an aider and
abettor to the male victim's penetration of the female victim. The evidence demonstrates that, in
addition to aiding and abetting the male victim's penetrations of the female victim, defendant
also penetrated the female victim at least one other time. Thus, the evidence supports scoring 25
points for OV 11 for count II. There was no error in the scoring of this offense variable.
There was also no error in the scoring of OV 13. Twenty-five points are scored for OV
13 where the offense is part of a pattern of felonious criminal activity involving three or more
crimes against a person. MCL 777.43(1)(b). In scoring OV 13, all crimes within a five-year
period are counted, including the sentencing offense, regardless of whether the offenses resulted
in a conviction. MCL 777.43(2)(a). In this case, defendant was convicted of two counts of
CSC-I and one count of eavesdropping for videotaping a female tenant in the shower. Further, at
the time of his sentencing, defendant had two additional counts of CSC-I pending. Clearly, there
was evidence in the record to support the scoring of 25 points for OV 13.
VI. Failure to Produce the Female Victim as Witness
Defendant next argues that his right to confront and cross-examine the female victim and
his right to due process were violated because she was not produced as a witness against him.
Although defendant states that he had the right to confront a witness "against him," defendant is
not claiming that evidence of the female victim's out-of-court statements should have been
excluded because the female victim did not appear at trial. Further, defendant, while using the
phrase "against him," actually argues that the prosecution should have been required to present
the female victim as a witness because she would have been helpful to his defense.
In a case in which the defendant raised a similar issue, People v Lee, 212 Mich App 228,
257-258; 537 NW2d 233 (1995), the defendant argued that the prosecution denied him the right
to confront witnesses because some witnesses were not called to testify. This Court, noting that
the defendant was able call these witnesses on his own, found no violation of the defendant's
right of confrontation or due process because "[w]hile the prosecutor has certain obligations with
respect to witnesses, it is not the prosecutor's responsibility to call any witnesses whom the
defendant believes may support his defense in some way." Id. Here, the prosecution did not
offer the female victim's statements against defendant at trial. On appeal, defendant argues that
if she had testified, she would have testified favorably for defendant. Thus, as in Lee, the
prosecution had no obligation to call a witness that defendant believed would be favorable to
him, and defendant has failed to explain why he was unable to call the female victim as his own
witness. We discern no constitutional violation arising from the female victim's absence at trial.2
VII. Double Jeopardy
Defendant next argues that his guaranteed constitutional protection against double
jeopardy was violated when he was convicted of CSC-I, MCL 750.520b(1)(c); and production of
child sexually abusive material, MCL 750.145c(2). This challenge presents a question of law
that we review de novo. People v Lett, 466 Mich 206, 212; 644 NW2d 743 (2002). This issue
was previously resolved in People v Ward, 206 Mich App 38, 43; 520 NW2d 363 (1994), in
which this Court held:
Because the Legislature intended to punish conduct violative of distinct
social norms and did not authorize punishments based on a continuum of
Defendant also argues that his appellate counsel was ineffective for not raising this issue in his
"primary" brief on appeal. However, defendant raised the issue himself, and we have addressed
it. Therefore, defendant cannot demonstrate any prejudice in appellate counsel's failure to raise
culpability, it is apparent that the Legislature intended that the crimes of criminal
sexual conduct and child sexually abusive activity be punished separately.
Accordingly, we hold that defendant's convictions do not violate the double
jeopardy protection against multiple punishments. [Citation omitted.]
Following Ward, we conclude that defendant's claim has no merit.
Bandstra, J., concurred.
/s/ Richard A. Bandstra
/s/ Kirsten Frank Kelly