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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 14, 2015

v No. 320982 Isabella Circuit Court JIM DALE MARKOVICH, LC No. 2013-002186-FC

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and M URPHY and S ERVITTO , JJ.

P ER C URIAM

. Defendant appeals as of right from his jury trial convictions of five counts of seconddegree criminal sexual conduct (CSC II), MCL 750.520c(1)(a) (vi ctim under age of 13); two counts of accosting a child for immoral purposes, MCL 750.145a; and one count of indecent exposure, MCL 750.335a. He was found not guilty of one count o f CSC II. Defendant was sentenced to concurrent terms of ten to 15 years’ imprisonment for each of the CSC II convictions, 32 to 48 months’ imprisonment for the accosting a child for immoral purposes convictions, and 166 days’ imprisonment for the indecent exposure conviction. We affirm.

Defendant’s convictions arise out of a series of sexual assaul ts of two young girls who attended his wife’s daycare facility. Each victim testified th at defendant, who was referred to as “Papa Jim,” “touched” or “rubbed” her vagina “[o]nce a day” or “[a]lmost everyday” throughout the time they attended the daycar e and made her touch his penis once as well.

Defendant first argues that there was insufficient evidence ad duced at trial to support his convictions of accosting a child for immoral purposes. Specifi cally, defendant argues that no evidence was presented that he sought out the victims. We disa gree.

This Court reviews de novo a claim of ins ufficient evidence. People v Meshell , 265 Mich App 616, 619; 696 NW2d 754 (2005). “In determining whether suf ficient evidence exists to sustain a conviction, this Court reviews the evidence in a ligh t favorable to the prosecution.” People v Sherman-Huffman , 466 Mich 39, 40; 642 NW2d 339 (2002). “This Court must consider whether there was sufficient evidence to justify a rat ional trier of fact in finding guilt beyond a reasonable doubt.” Id . (citations and internal quotation marks omitted).

Defendant was charged with accosting a child for immoral purpo ses pursuant to MCL 750.145a, which states as follows:-2- A person who accosts, entices, or solicits a child less than 1 6 years of age . . . with the intent to induce or force that child or individual to commit an immoral act, to submit to an act of sexua l intercourse or an act of gro ss indecency, or to any other act of depravity or de linquency, or who encourages a child less than 16 years of age, regardless of wheth er the person knows the indivi dual is a child or knows the actual age of the child, or an individual who he or s he believes is a child less than 16 years of age t o engage in any of those acts is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $4,000.00, or both.

“[T]he statute permits conviction under two alternative theori es[.]” People v Kowalski
, 489 Mich 488, 499; 803 NW2d 200 ( 2011). “A defendant is guilty of accosting a minor if the prosecution proves beyond a reas onable doubt that the defendant (1) accosted, enticed, or solicited (2) a child . . . (3) wit h the intent to induce or fo rce that child to comm it (4) a proscribed act.” Id . Under this theory, “the statute requires the prosecution to demonstrate a specific intent to induce or force the child to c ommit proscribed acts[.]” Id . at 500. “Alternatively, a defendant is guilty of accosting a minor if the prosecution proves beyond a reasonable doubt that the defendant (1) encouraged (2) a child . . . (3) to commit (4) a proscribed act.” Id . at 499. Under this theory, “the encourages prong envisions a mens rea consistent with a general criminal intent.” Id . at 500. The trial court instruc ted the jury consistent with both theories.

“Statutory language must be read in the context of the act as a whole, giving every word its plain and ordinary meaning.” Id. at 498. The terms “accost,” “entice,” “solicited,” and “encouraged” are not statutorily defined. Accordingly, we turnto the “dictionary to determine the plain meaning of” these terms. Wardell v Hincka , 297 Mich App 127, 132; 822 NW2d 278 (2012). Accost means “to approach and speak to often in a chal lenging or aggressive way.” Merriam-Webster’s College Dictionary (2014). Entice means “to attract artfully or adroitly or by arousing hope or desire.” Id . Solicit means “to approach with a request or a plea” or “to urge . . . strongly” or “to . . . lure esp. into evil.” Id . Encourage means “to inspire with courage, spirit, or hope” or “to a ttempt to persuade.” Id

. During trial, one victim testifie d that defendant “made [her] touch him” by “guid[ing] [her] hand” “skin to skin” on his penis. Other than saying onc e it was hard to reach her vagina, the girl testified that defendant did not speak to her during t he assaults. Similarly, the other victim testified that defendant “grabbed [her] hand and pushed [her] hand on to his penis . . . and wouldn’t let [her go downstairs].” Other than the comment abou t going downstairs, this victim testified, defendant did not speak during the assaults. Thus, for both victims, the evidence does not show that defendant tried to persuade the girls into acting or that he pleaded for or requested the acts. However defendant did accost both victims by grabbin g their hands and putting it on his penis. Such acts were aggres sive, and although defendant d id not speak, the victims testified that defendant “guided” and “pus hed” them to comply. Additiona lly, defendant sexually abused the victims several times over a multi-year period. This clear ly shows that defendant did not act impulsively. Defendant’s convictions of accosting a child for immoral purposes are supported by sufficient evidence.-3- Defendant next argues that the trial court erred in scoring of fense variable (OV) 10 at 15 points, arguing as follows: “OV 10 should be scored 10 points. Mr. Markovich did not seek out the complainants. The offenses were opportunistic.”

Under the sentencing guidelines, the circuit court’s factual de terminations are reviewed for clear error and must be supported by a preponderan ce of the evidence. Whether the facts, a s found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of fact s to the law, is a question of statutory interpret ation, which an appellate court reviews de novo. [ People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013).]

“Offense variable 10 is exploita tion of a vulnerable victim” a nd should be scored at 15 points when “[p]redatory conduc t was involved.” MCL 777.40(1)( a). “The statute defines ‘predatory conduct’ to mean ‘preoffense conduct directed at a v ictim for the primary purpose of victimization.’ ” People v Steele , 283 Mich App 472, 491; 769 NW2d 256 (2009), quoting MCL 777.40(3)(a). A three-prong test is used for determining wheth er predatory conduct exists for the purposes of OV 10. Id ., citing People v Cannon , 481 Mich 152, 161-162; 749 NW2d 257 (2008). First, “[d]id the offender engage in conduct before th e commission of the offense?” Id

. When “victims testif[y] about numerous sexual assaults going onfor a very long time before disclosure,” this prong is satisfied. Id . Second, “[w]as this conduct directed at one or more specific victims who suffered from a readily apparent susceptib ility to injury, physical restraint, persuasion, or temptation?” Id . Finally, “[w]as the victimization the offender’s primary pur pose for engaging in the preoffense conduct?” Id . at 491. When a defendant progresses from milder forms to escalated forms of se xual contact over time, the third prong is satisfied. Id . at 492.

In this case, all three of the se prongs were satisfied. The f irst prong is satisfied because the victims testified that defendant touched each of their vagi nas and made them touch his penis, and one victim testified that def endant also touched her chest. These assaults occurred multiple times over a multi-year period. The second prong is satisfied because the victims were abused when they were of a tender age, entrusted into defendant’s (and his wife’s) care, and susceptible to injury and restraint. Furthe r, they were both subject to de fendant’s authority and looked up to defendant as their “Papa Jim.” The third prong is satisfied be cause one victim testified that defendant would purposefully reach under her waistband in order to touch her vagina and even told her “it’s hard to get there.” The other victim testified that defendant would pretend to tickle her in order to get his hands ins ide her pants and then touch h er vagina, spread her legs while swinging her, and grab her breasts while letting her walk on hi s shoes. The victims also testified that defendant would only molest them when no one else was pres ent and that at some point, defendant made each touch his penis. Therefore, the trial cour t properly scored OV 10 at 15 points.

Lastly, defendant contends that the trial court abused its dis cretion by departing upward from the sentencing guidelines, setting defendant’s minimum at 10-15 years when his guidelines called for 36 to 71 months. “A court may depart from the appro priate sentence range . . . if the court has a substantial and compelling reason for that departur e and states on the record the reasons for departure.” MCL 769.34( 3). This Court reviews whe ther a particular factor for departing from the sentencing gui delines exists for clear error

. People v Anderson , 298 Mich App 178, 184; 825 NW2d 678 (2012). We review de novo a trial c ourt’s determination that a-4- factor is objective and verifiable. Id . We review for an abuse of discretion whether the factors relied on by the trial court pr ovide substantial and compelling reasons to depart from the guidelines, id ., as well as the extent of departure, People v Smith , 482 Mich 292, 300; 754 NW2d 284 (2008). “A trial court abuses its discretion if the minimu m sentence imposed falls outside the range of principled outcomes.” Id

. “Substantial and compelling reasons for departure exist only i n exceptional cases.” Id. at 299. “[S]ubstantial and compelling reasons must be objective a nd verifiable and may be based on conduct occurring before or after the defendant’s arrest.” People v Shinholster , 196 Mich App 531, 534; 493 NW2d 502 (1992). “For a departure to be just ified, the minimum sentence imposed must be proportionate t o the defendant’s conduct and pr ior criminal history.” Smith
, 482 Mich at 300. “The court shall not base a departure on an o ffense characteristic or offender characteristic already taken into account in determining the ap propriate sentence range unless the court finds . . . that the characteristic has been given inadeq uate or disproportionate weight.” MCL 769.34(3)(b).

Here, the trial court’s reasons for its departure are substant ial and compelling. The trial court explained that it had concluded that prior record variabl e (PRV) 7 1 and OV 13 2 did not

1 MCL 777.57 provides in part as follows: (1) Prior record variable 7 is s ubsequent or concurrent felonyconvictions. Score prior record variable 7 by determining which of the follo wing apply and by assigning the number of points at tributable to the one that has the highest number of points:

(a) The offender has 2 or more subsequent or concurrent convictions..........................................................................20 points

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(2) All of the following appl y to scoring recor d variable 7:

(a) Score the appropriate point value if the offender was conv icted of multiple felony counts or was convicted of a felony after the s entencing offense was committed.

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2 MCL 777.43(1) provides in part as follows: Offense variable 13 is continuing pattern of criminal behavior . Score offense variable 13 by determining which of the following apply and by assigning the number of points attributable to the one that has the highe st number of points:

* * *-5- reflect the severity or quantity of the seven felonies in this case. The trial court also explained that OV 9 3 did not adequately account for defendant having sexually abuse d two victims on multiple occasions over a period of years. The trial court fur ther explained that defendant’s betrayal of the victim’s and the victims’ families’ trust and d efendant’s use of his position in his wife’s daycare to sexually abuse two young girls that he was re sponsible for taking care of, also supported its departure and was not reflected in the guidelines . The trial court’s reasoning was sound given the context in which these crimes were committed. These victims may not have been accosted at the same time, but they were both being cared for in the same setting. They were placed into a daycare setting over which they had no contr ol, and in which they were consistently available for defendant to victimize. The victims ’ parents turned to defendant and his wife to care for their children. They entrusted their well -being to defendant and his wife, and defendant betrayed that trust. A ccordingly, the trial court di d not err in departing from the sentencing guidelines.

Affirmed.

/s/ Amy Ronayne Krause /s/ William B. Murphy /s/ Deborah A. Servitto

(c) The offense was part of a pattern of felonious criminal ac tivity involving 3 or more crimes against a person...................................25 poin ts

3 MCL 777.39(1) provides in part as follows: (1) Offense variable 9 is number of victims. Score offense va riable 9 by determining which of the following apply and by assigning the n umber of points attributable to the one that ha s the highest number of points:

* * *

(c) There were 2 to 9 victims who were placed in danger of phy sical injury or death, or 4 to 19 victims who were placed in danger of prope rty loss...................................................................................10 points

(d) There were fewer than 2 victims who were placed in danger of physical injury or death, or fewer than 4 victims who were plac ed in danger of property loss..........................................................................0 points