PEOPLE OF MI V JEFFERY DUANE COXAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
October 18, 2005
Calhoun Circuit Court
LC No. 02-004877-FH
JEFFERY DUANE COX,
Official Reported Version
Before: Cooper, P.J., and Bandstra and Kelly, JJ.
Defendant appeals as of right his jury trial conviction on two counts of third-degree
criminal sexual conduct (CSC III), MCL 750.520d(1)(c), for engaging in anal and oral sex with a
seventeen-year-old, mentally incapable victim. We affirm.
I. Sufficiency of the Evidence
Defendant first argues that there was insufficient evidence to convict him of the CSC III
charges. We disagree. We review de novo challenges to the sufficiency of the evidence in a
criminal trial to determine whether, when viewing the evidence in the light most favorable to the
prosecutor, a rational trier of fact could have found all the elements of the charged crime to have
been proven beyond a reasonable doubt. People v Bowman, 254 Mich App 142, 151; 656 NW2d
835 (2002). Additionally, we are "required to draw all reasonable inferences and make
credibility choices in support of the jury verdict." People v Nowack, 462 Mich 392, 400; 614
NW2d 78 (2000).
MCL 750.520d(1)(c) provides that a person is guilty of CSC III if he or she engages in
sexual penetration with another person whom he or she knew or had reason to know was
mentally incapable, mentally incapacitated, or physically helpless. "'Mentally incapable' means
that a person suffers from a mental disease or defect which renders that person temporarily or
permanently incapable of appraising the nature of his or her conduct." MCL 750.520a(g).
Defendant first argues that the evidence was insufficient to support a finding that the
victim was mentally incapable because the victim attended school, was able to perform
automotive repairs, could hold conversations and maintain relationships with people, and could
choose his sexual partner. Defendant contends that the victim was "mentally capable" because
he had "not only an understanding of the physical act [of sex] but also an appreciation of the
nonphysical factors, including the moral quality of the act, that accompany such an act," as
described by this Court in People v Breck, 230 Mich App 450, 455; 584 NW2d 602 (1998).
However, a review of the record indicates that there was ample evidence from which to conclude
that the victim was mentally incapable of consenting to the sexual relationship with defendant.
When asked about the sexual acts between himself and defendant, the victim stated,
"[h]e—I just wanted to try something new and so he asked me if I wanted to, and I said yeah, so
we went on." The victim felt that "[i]t was kind of dumb," and replied "kind of" when asked if he
knew that the sexual relationship with defendant was homosexual in nature.
The victim's Family Independence Agency caseworker testified that the victim was not
ready to live on his own and that he was easily manipulated and persuaded to do things that he
probably would not do without another's influence. The caseworker's opinion was that, mentally,
the victim was about twelve or thirteen.
A psychologist who examined the victim testified that the victim had a significant history
of abuse and neglect, and was mentally deficient, functioning in the "borderline" range of
intelligence, which is a step below "below average" and a step above "mental retardation." He
opined that the victim was developmentally around the age of eleven, twelve, or thirteen. He
explained that if compared to a hundred of his peers, the victim would function in the lowest
three to five percent range because of his lower intelligence, poor language development, and
inability to adapt or be flexible when presented with new situations. He indicated that the victim
has difficulty interpreting things, lacks self-insight or self-awareness, and does not think about
his own behavior, but acts out and deals with the consequences later. He stated that the victim's
personality issues and tendency not to consider his actions leaves him vulnerable to exploitation
because "he is an easy child to manipulate." He characterized the victim as a "pretty immature
individual," and opined that even though the victim "certainly . . . knew what was proposed" and
was aware of his conduct, he could not appreciate the social or moral significance of his acts
relating to the homosexual encounter with defendant and was incapable of making an informed
decision about sexual involvement.
A counselor with a significant history of treating the victim described him as
impressionable, very susceptible to manipulation by others, and characterized him as a follower.
He testified that the victim's troubles occur when he is talked into doing things or following
another's lead and that he allows his personal rights to be violated to gain acceptance by others.
He stated that the victim's need for acceptance is so great that he gravitates to anyone who will
pay attention to him and cannot distinguish whether a person is being genuine in their actions.
He stated that the victim "absolutely" has a mental disability and opined that the victim functions
emotionally on a level between the ages of eight and ten, and intellectually at a fourth- or fifthgrade level. He also opined that the victim is unable to recognize the consequences of a
homosexual relationship and that the victim would confuse a sexual relationship with his need
for acceptance, thereby placing himself in a dangerous or jeopardizing situation.
This Court, in Breck, supra at 455, held that the term "mentally capable" encompasses an
understanding of both the physical and nonphysical factors of a sex act. The evidence presented
at trial supports a finding that, regardless of the victim's awareness of the events as they
occurred, he did not understand the nonphysical aspects of the sex acts and was mentally
incapable of consenting to the sexual relationship with defendant. Viewing the evidence in a
light most favorable to the prosecution, sufficient evidence was presented from which a rational
trier of fact could find that the victim suffered from a mental disease or defect that rendered him
incapable of appraising the nature of his conduct. MCL 750.520a(g).
Defendant also argues that the evidence was insufficient to support a finding that he
knew or had reason to know that the victim was mentally incapable of consenting to a sexual
relationship because, while reasonable persons coming into contact with the victim would notice
that he was "slow," they would not believe him mentally incapable of appraising the nature of his
conduct. Defendant supports his assertion with this Court's statements in People v Davis, 102
Mich App 403, 407; 301 NW2d 871 (1980), that the Legislature's inclusion of the "knows or has
reason to know" language in the statute was intended to "protect individuals who have sexual
relations with a partner who appears mentally sound, only to find out later that this is not the
case." This Court concluded that "[t]he Legislature only intended to eliminate liability where the
mental defect is not apparent to reasonable persons." Id. at 407.
However, several witnesses testified that the fact that the victim was mentally deficient is
readily noticeable after only a short period of interaction. The psychologist opined that a
reasonable person could discern within an hour that the victim has a mental defect, because the
victim has inarticulate language, difficulty understanding words, and does not make inquiries
typical of a seventeen-year-old. There was also evidence that defendant had ample opportunity
to notice these limitations. The victim testified that he had been to defendant's house between
five and ten times and that defendant visited him at his foster home. The investigating police
officer testified that defendant admitted to harboring the victim when he ran away from his foster
Viewing the evidence in a light most favorable to the prosecution, sufficient evidence
was presented from which a rational trier of fact could find that defendant knew or had reason to
know that the victim was mentally incapable of consenting to a sexual relationship. Moreover,
sufficient evidence was presented from which a rational trier of fact could find that all the
elements of CSC III were proven beyond a reasonable doubt; therefore, defendant is not entitled
to relief on this issue.
II. New Trial
Defendant next argues that he is entitled to a new trial on the basis of a discovery
violation and suppression of evidence that the victim pleaded to a larceny charge, or, in the
alternative, on the basis of the victim's plea characterized as newly discovered evidence.
Specifically, defendant argues that the fact that the victim entered a plea would have rebutted the
prosecution's theory that the victim was mentally incapable of consenting to sexual relations on
the basis that a defendant must be deemed competent in order for a trial court to accept a plea.
See People v Kline, 113 Mich App 733, 738; 318 NW2d 510 (1982).
We note that the record contains no substantiated information regarding the victim's plea
other than that placed on the record at defendant's sentencing hearing. Aside from the
prosecutor's unverified indication that the plea was to a charge of larceny involving less than
$200, MCL 750.356a(2)(a), the record is devoid of information concerning the date of the plea,
the charge or charges at issue, and whether it was a guilty plea or a no contest plea.
The record indicates that at defendant's sentencing hearing the trial court denied
defendant's motion to adjourn so that defense counsel could prepare a motion for a mistrial and
advised defendant that the appropriate forum in which to address the issue was a motion for a
new trial; however, defendant failed to preserve the issue by moving for a new trial in the lower
court under MCR 2.611(A)(1)(f) or by moving for relief from judgment under MCR
2.612(C)(1)(b). People v Darden, 230 Mich App 597, 605-606; 585 NW2d 27 (1998).
Consequently, our review is limited to plain error affecting substantial rights. People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999).
A criminal defendant has a due process right to obtain exculpatory evidence possessed by
the prosecutor if it would raise a reasonable doubt about the defendant's guilt. People v
Stanaway, 446 Mich 643, 666; 521 NW2d 557 (1994), citing Brady v Maryland, 373 US 83, 87;
83 S Ct 1194; 10 L Ed 2d 215 (1963). In order to establish a Brady violation, a defendant must
prove: (1) that the state possessed evidence favorable to the defendant; (2) that the defendant did
not possess the evidence nor could the defendant have obtained it with any reasonable diligence;
(3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been
disclosed to the defense, a reasonable probability exists that the outcome of the proceedings
would have been different. People v Lester, 232 Mich App 262, 281; 591 NW2d 267 (1998).
Defendant has failed to establish a Brady violation. Defendant has not proven that the
prosecution possessed evidence that was favorable to him, i.e., that the victim pleaded to a
larceny charge. Indeed, MCR 6.201(B)(1) requires a prosecutor to provide a defendant with any
exculpatory information or evidence known by the prosecutor, and the prosecutor indicated that
he had just learned of the information on the day of the sentencing hearing. Moreover, even if
the prosecution knew of the victim's criminal history, defendant failed to pursue the proper
channels for obtaining such information—the prosecution's answer to defendant's disclosure
demand indicated that the criminal histories of witnesses would only be provided to defense
counsel upon court order, and defendant failed to move for a discovery order. As such,
defendant's reliance on People v Pace, 102 Mich App 522, 530-531, 302 NW2d 216 (1980), in
which this Court held that a prosecutor's violation of a discovery order, even if done
inadvertently in good faith, requires that a defendant's conviction be reversed "unless it is clear
that failure to divulge was harmless beyond a reasonable doubt," is inapposite. Additionally,
defendant has not proven that had the evidence been disclosed, a reasonable probability exists
that the outcome of the proceedings would have been different. The record does not establish
whether the plea was contemporaneous with the victim's alleged consent to sexual penetration in
this case. If it was not, it would have made no difference whatsoever to the fact-finder's
determination on the consent issue. Further, even if it was contemporaneous, a determination
that the victim was competent to enter a plea has little, if anything, to do with the mental
capacity to consent to a sexual relationship.1 Defendant has failed to establish plain error
affecting his substantial rights, and is not entitled to a new trial on the basis of a Brady violation.
Defendant argues in the alternative that he is entitled to a new trial on the basis of the
victim's plea, which he characterized as newly discovered evidence. For a new trial to be
granted on the basis of newly discovered evidence, a defendant must show that: (1) the evidence
itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was
not cumulative; (3) the party could not, using reasonable diligence, have discovered and
produced the evidence at trial; and (4) the new evidence makes a different result probable on
retrial. People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003); MCR 6.508(D).
The evidence of the victim's plea was newly discovered, not cumulative, and the record
supports a conclusion that the evidence was not discoverable and could not have been produced
at trial. However, as noted above, the record does not show that evidence regarding the plea
would make a different result probable on retrial. Again, defendant has failed to establish plain
error affecting his substantial rights, and he is not entitled to a new trial on the basis of newly
III. Prosecutorial Misconduct
Defendant next alleges several instances of prosecutorial misconduct. We review de
novo claims of prosecutorial misconduct to determine whether defendant was denied a fair and
impartial trial. People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). However,
defendant failed to object to the alleged instances of prosecutorial misconduct; therefore, they
are unpreserved and our review is limited to plain error affecting defendant's substantial rights.
When reviewing a claim of prosecutorial misconduct, we examine the pertinent portion
of the record and evaluate a prosecutor's remarks in context. People v Callon, 256 Mich App
312, 330; 662 NW2d 501 (2003). Further, the propriety of a prosecutor's remarks depends on the
particular facts of each case. Id. Prosecutors are free to argue the evidence and any reasonable
inferences arising from the evidence, id., and "need not confine argument to the 'blandest of all
The procedures for determining a criminal defendant's competence to enter a plea are
ultimately rooted in principles of due process, to protect incompetent defendants from indefinite
denials of liberty. People v Bowman, 141 Mich App 390, 399; 367 NW2d 867 (1985); People v
Belanger, 73 Mich App 438, 447-450; 252 NW2d 472 (1977). Contrast MCL 330.2020(1) (a
defendant is incompetent to stand trial, and, by analogy, to enter a plea, "only if he is incapable
because of his mental condition of understanding the nature and object of the proceedings
against him or of assisting in his defense in a rational manner") with MCL 750.520a(g) (a person
is "mentally incapable" if he or she suffers from a mental disease or defect that renders him or
her temporarily or permanently incapable of appraising the nature of his or her conduct).
possible terms . . . .'" People v Aldrich, 246 Mich App 101, 112; 631 NW2d 67 (2001), quoting
People v Marji, 180 Mich App 525, 538; 447 NW2d 835 (1989).
Defendant argues that the following comments improperly appealed to the jurors' civic
duty and impermissibly denigrated his character:
It's the People's theory that the Defendant is 30 years old, likes young
boys, grooms them, manipulates them, does things in order to take advantage of
* * *
He's one of the worst type of predators we have in our society; somebody
who takes advantage of somebody, goes after their weaknesses, and exploits those
weaknesses for their own pleasure.
* * *
That's somebody that shouldn't be allowed to co-exist with our young
people, shouldn't be allowed to apply his trade on this young man or any other
* * *
[I]t's time to stop manipulating [the victim] and time to start expressing to
[defendant] that this won't be tolerated in our society, and allow our children to
grow, to prosper, without undue influence and manipulation for one's own sexual
While a prosecutor may not argue that jurors should convict a defendant as part of their
civic duty, People v Matuszak, 263 Mich App 42, 56; 687 NW2d 342 (2004), we find that the
prosecutor's remarks, in context, were not a call to convict as a matter of civic duty; rather, they
were proper argument based on the facts in evidence and reasonable inferences drawn from those
facts. Ackerman, supra at 454; Aldrich, supra at 112. The prosecutor's comments were made in
conjunction with comments concerning defendant's modus operandi and consciousness of guilt.
The prosecutor argued that defendant "exploited [the victim's] weaknesses," and "manipulated
[the victim] because he knew that he was a foster child, he knew he was vulnerable, he knew that
if he spent a little time, maneuvered, that he'd be able to take advantage of him" "for his own
sexual pleasures and gratification." The prosecutor focused on defendant's initial denial of any
sexual involvement with the victim and argued that defendant lied because he knew he had done
something wrong and did not truly believe that what he did was a consensual act between two
mentally capable adults.
While a prosecutor "must refrain from denigrating a defendant with intemperate and
prejudicial remarks," People v Bahoda, 448 Mich 261, 282-283; 531 NW2d 659 (1995), the
challenged remarks simply conveyed the prosecutor's contention that the evidence demonstrated
that defendant knowingly took advantage of a mentally challenged individual. Because a
prosecutor "has wide latitude and may argue the evidence and all reasonable inferences from it,"
Aldrich, supra at 112, the prosecutor's comments were not improper and did not deny defendant
a fair trial or meet the threshold for reversal based on unpreserved error. Ackerman, supra at
IV. Ineffective Assistance of Counsel
Defendant next argues that he was denied the effective assistance of counsel because
defense counsel failed to object to the alleged instances of prosecutorial misconduct. Because
defendant failed to move for a new trial or for a Ginther2 hearing, our review is limited to
mistakes apparent on the record. People v Sabin (On Second Remand), 242 Mich App 656, 658659; 620 NW2d 19 (2000). However, as noted above, the prosecutor's comments were not
improper, and any objections by defense counsel on those grounds would have been meritless.
Because counsel is not ineffective for failing to raise futile objections, defendant is not entitled to
relief on this unpreserved issue. Ackerman, supra at 455.
V. Scoring of Offense Variables
Defendant next argues that the trial court erred in scoring offense variables (OV) 8, 10,
and 11. "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). Further, "[s]coring decisions for which there is any
evidence in support will be upheld." People v Elliott, 215 Mich App 259, 260; 544 NW2d 748
(1996). "This Court shall affirm sentences within the guidelines range absent an error in scoring
the sentencing guidelines or inaccurate information relied on in determining the defendant's
sentence." People v Leversee, 243 Mich App 337, 348; 622 NW2d 325 (2000); MCL
We find that the trial court did not abuse its discretion in scoring 15 points for OV 8,
where the "victim was asported to another place of greater danger or to a situation of greater
danger . . . ." MCL 777.38(1)(a). The victim testified that the sex acts occurred at defendant's
house, and the investigating police officer testified that defendant admitted that the sex acts
occurred at his house. This Court has explained that "'asportation' as used in MCL 777.38(1)(a)
can be accomplished without the employment of force against the victim." People v Spanke, 254
Mich App 642, 648; 658 NW2d 504 (2003). In that case, this Court upheld a score of 15 points
for OV 8 where the victims were voluntarily moved to the defendant's home where the criminal
acts occurred. Id. Additionally, in People v Apgar, 264 Mich App 321, 329-330; 690 NW2d
312 (2004) (opinion by Gage, J.), this Court upheld a score of 15 points for OV 8 where, despite
a lack of force, the victim was transported from a friend's house to another unfamiliar house
where she was sexually assaulted. While the record here indicates that the victim had been to
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
defendant's house on previous occasions, it also indicates that he was transported there by
defendant. Further, in light of the sexual acts that subsequently occurred there, the transportation
of the victim was to a place of greater danger. Spanke, supra at 648. Because there was
evidence in the record to support a score of 15 points for OV 8, the trial court's scoring decision
did not constitute an abuse of discretion.
We find that the trial court did not abuse its discretion in scoring 15 points for OV 10,
where defendant exploited a vulnerable victim, and "predatory conduct," or "preoffense conduct
directed at a victim for the primary purpose of victimization," was involved. MCL 777.40(1)(a),
777.40(3)(a). The victim testified that he had been to defendant's house five or ten times, and
that defendant had visited him at his foster home. The investigating officer testified that
defendant admitted harboring the victim as a runaway from a foster home. In addition,
defendant's presentence investigation report indicates that the victim viewed pornographic
material at defendant's home and that a large amount of pornographic material was found in
defendant's home, including a videotape of a sixteen-year-old boy dancing and drinking alcohol
in defendant's bedroom, and sleeping nude. Because there was evidence in the record to support
a score of 15 points for OV 10, the trial court's scoring decision did not constitute an abuse of
We find that the trial court did not abuse its discretion in scoring 25 points for "one
criminal sexual penetration" under OV 11, MCL 777.41(1)(b), where MCL 777.41(2)(a) directs
that all sexual penetrations of the victim arising out of the sentencing offense be scored and
MCL 777.41(2)(c) directs that points should not be scored for "the 1 penetration that forms the
basis of a first- or third-degree criminal sexual conduct offense." Defendant argues that the 25
point score for OV 11 is erroneous because the two criminal sexual penetrations here each
resulted in a separate criminal sexual conduct (CSC) offense.3 However, in People v
McLaughlin, 258 Mich App 635, 676; 672 NW2d 860 (2003), this Court rejected the argument
that OV 11 could not be scored because each of three penetrations was the basis of a separate
CSC charge. This Court recognized that the language in MCL 777.41(2)(c), "[d]o not score
points for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct
offense," is ambiguous because it could be interpreted as excluding other penetrations that also
form the basis for a CSC charge, or as only excluding the one penetration that is the basis of the
sentencing offense. Id. at 675-676. However, this Court agreed with People v Mutchie, 251
Mich App 273; 650 NW2d 733 (2002), that the proper interpretation of OV 11 requires the trial
court to exclude the one penetration forming the basis of the offense when the sentencing offense
Defendant also notes, without any suggestion why it might matter, that he was assigned ten
points under prior record variable 7 for concurrent felony convictions. We consider any
argument regarding prior record variable 7 or its effect on OV 11 to be abandoned. "An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority." People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480
itself is CSC I or CSC III. Id. at 676-677. Under McLaughlin, OV 11 was correctly scored.
Because there was evidence in the record to support a score of 25 points for OV 11, the trial
court's scoring decision did not constitute an abuse of discretion.
Kelly, J., concurred.
/s/ Richard A. Bandstra
/s/ Kirsten Frank Kelly