PEOPLE OF MI V CHARLES STUBBLEFIELD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 19, 2002
Plaintiff-Appellee,
v
No. 228544
Wayne Circuit Court
LC No. 99-004188
CHARLES STUBBLEFIELD,
Defendant-Appellant.
Before: O’Connell, P.J., and White and Cooper, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction, following a jury trial, of one count of
second-degree criminal sexual conduct (CSC II) (sexual contact with a person under age
thirteen), MCL 750.520c(a). The trial court sentenced defendant to a term of five to fifteen
years’ imprisonment. We affirm.
Defendant first argues that the trial court erred in failing to instruct the jury, sua sponte,
regarding the lesser offense of fourth-degree criminal sexual conduct, (CSC IV), MCL 750.520e.
Defendant failed to properly preserve this issue for our review because he did not request the
instruction below. People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). Moreover,
defendant has waived review of this issue because trial counsel expressed satisfaction with the
trial court’s instructions. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
Specifically, at the commencement of proceedings on May 24, 2000, the trial court
indicated its intention to give the “general jury instruction,” and inquired of both parties
regarding whether other instructions were requested. Defense counsel indicated that he was not
seeking any additional instructions. After the prosecutor asked the court whether, by its use of
the word “general” it meant the instruction on CSC II, the trial court responded in the
affirmative. Defense counsel then stated, “[t]hat’s all it is.” Notably, defendant did not exercise
this opportunity to request an instruction on CSC IV. Further, after reading the instructions to
the jury, the trial court inquired of both parties whether it had “complied with the reading of the
jury instructions.” In response, defense counsel expressed his satisfaction with the instructions
by stating “Yes, Judge.” Thus, defendant has waived review of this issue. Id. at 216.1
1
In any event, it is well-settled that a trial court “generally has no duty to instruct the jury sua
(continued…)
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Defendant next argues that there was insufficient evidence to support his conviction. A
criminal defendant need not take any special steps to preserve an issue regarding a challenge to
the sufficiency of the evidence. People v Cain, 238 Mich App 95, 116-117; 605 NW2d 28
(1999).2 To determine whether sufficient evidence has been presented to sustain a conviction,
this Court must view the evidence in a light most favorable to the prosecution to determine
whether a rational trier of fact could have concluded that the essential elements of the crime were
proven beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78
(2000). Because the standard of review is deferential, we are required to draw all reasonable
inferences in support of the jury verdict. Id. at 400. “Circumstantial evidence and reasonable
inferences arising therefrom may be sufficient to prove the elements of a crime. People v
Nelson, 234 Mich App 454, 459; 594 NW2d 114 (1999).
A conviction under MCL 750.520c(a) requires proof beyond a reasonable doubt that
sexual contact occurred, People v VanderVliet, 444 Mich 52, 76; 508 NW2d 114 (1993)
modified 445 Mich 1205 (1994), and that the victim was under the age of thirteen. To prove
sexual contact, the prosecutor must prove that the contact “can reasonably be construed as being
for the purpose of sexual arousal or gratification.” Id. at 76. In the instant case, we are satisfied
that a rational trier of fact could have concluded that the elements of CSC II were proven beyond
a reasonable doubt. First, the evidence was uncontradicted that the victim was four years old at
the time of the incident. Second, the victim testified that defendant engaged in sexual contact
with her. The credibility of the victim’s testimony was a matter for the jury to decide. People v
Jackson, 178 Mich App 62, 65; 443 NW2d 423 (1989). Moreover, a reasonable inference can be
drawn from the record evidence that defendant touched the victim for the purpose of sexual
gratification or arousal.3
Finally, defendant argues that the imposition of five to fifteen years’ imprisonment for
the CSC II conviction was an abuse of the trial court’s discretion because the sentence violated
the principle of proportionality. Because the offense giving rise to defendant’s conviction
occurred on April 5, 1999, the legislative sentencing guidelines apply. MCL 769.34(2); People v
Reynolds, 240 Mich App 250, 254; 611 NW2d 316 (2000).
(…continued)
sponte regarding all lesser included offenses.” People v Reese, 242 Mich App 626, 629, n 2; 619
NW2d 708 (2000), lv gtd 465 Mich 851 (2001), citing People v Henry, 395 Mich 367, 374; 236
NW2d 489 (1975). See also People v Ora Jones, 395 Mich 379, 386, 393; 236 NW2d 461
(1975).
2
In the instant case, defendant moved for directed verdict shortly before the jury rendered its
verdict.
3
Specifically, the victim testified that defendant took off all of his clothes except his shirt and
then disrobed the victim until she was left wearing only a shirt. Defendant sat the victim on his
penis and slid her up and down on his penis while her legs were apart. During this time,
defendant’s penis touched the victim’s private parts. Additionally, defendant wanted the victim
to put his penis in her mouth but after she refused he put a dildo in her mouth so far that it made
her choke. Defendant, then naked, chased the victim through the house. Thereafter, defendant
made the victim watch a pornographic movie.
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A review of the sentencing information report (SIR) reflects that defendant was assessed
a total offense variable (OV) score of twenty. The trial court assessed defendant ten points under
offense variable four (OV 4), MCL 777.34(1) for “psychological injury to the victim,” and
further assessed defendant ten points under offense variable ten (OV 10) for “exploitation of a
vulnerable victim.” MCL 777.40(1). It does not appear from the record that defendant has a
prior felony criminal record, therefore his total prior record variable (PRV) score was zero. The
legislative guidelines recommended a minimum sentence in the range of zero to seventeen
months. MCL 777.64. As noted, the trial court departed from the legislative sentencing
guidelines’ recommended range and imposed a sentence of five to fifteen years’ imprisonment.
On appeal, defendant does not argue that the trial court did not have substantial and
compelling reasons to depart from the recommended guidelines range. MCL 769.34(3); People
v Hegwood, 465 Mich 432, 439; 636 NW2d 127 (2001). Indeed, defendant merely argues that
his sentence violates the principle of proportionality. However, we note that in the SIR departure
form filed in the lower court, the trial court listed the following reasons for departing from the
guidelines’ recommended range.
There are substantial and compelling reasons to depart[:] (1) [u]se of a
sexual aid in a sexual incident[,] (2) [defendant] [i]nsert[ed] dildo in child’s
mouth until she almost choked[,] (3) [p]redatory conduct after sexual act of
sliding child on defendant’s penis[,] (4) [t]he child fled to [another] room hiding
under the covers and defendant pursued her, coming in naked after her[,] (5) [t]he
child fled to [yet] another room and hid under the bed. Defendant ran after her
and made her watch a pornographic movie featuring a boy and girl in the forest
naked; the [boy] wiped penis on [girl’s] face.
Although defendant does not argue this issue on appeal, we are of the view that the above
factors were objective and verifiable4 and that the trial court did not abuse its discretion in
holding that they constituted substantial and compelling reasons to depart from the recommended
guidelines range. MCL 769.34(3); People v Babcock, 244 Mich App 64, 75-76; 624 NW2d 479
(2000). Further, we are satisfied that the circumstances of this offense, specifically that (1)
defendant used a sexual aid in this heinous offense, which (2) defendant placed in the four-yearold victim’s mouth until she nearly choked, as well as (3) defendant’s conduct of repeatedly
chasing the victim after she attempted to escape and, (4) making her view a pornographic movie
are not “offense characteristics[s] or offender characteristic[s]” already taken into account by the
guidelines. MCL 769.34(3)(b).
To the extent that defendant maintains that his sentence was disproportionate, we note
that our Supreme Court has recently suggested in dictum, by way of footnote, that even where a
reviewing court concludes that the trial court had substantial and compelling reasons to deviate
from the guidelines’ recommended range, the reviewing court may still consider whether the
4
Objective and verifiable factors are those “‘actions or occurrences which are external to the
minds of the judge, defendant, and others involved in making the decision . . . [that are] capable
of being confirmed.’” People v Fields, 448 Mich 58, 66; 528 NW2d 176 (1995) (ellipses and
alteration in the original), quoting People v Krause, 185 Mich App 353; 460 NW2d 900 (1990).
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departure from the guidelines’ range was proportionate. Hegwood, supra at 437, n 10. In this
case, we are satisfied that the extent of the departure from the guidelines’ range was
proportionate not only to the particularly disturbing circumstances surrounding this odious attack
on the four-year-old victim, but also to the offender. People v Milbourn, 435 Mich 630, 636;
461 NW2d 1 (1990). See also People v Rice (On Remand), 235 Mich App 429, 446; 597 NW2d
843 (1999) (holding that trial court may properly consider severity and nature of offense when
imposing sentence).
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Jessica R. Cooper
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