If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 12, 2019

v No. 339711

Barry Circuit Court

JAMES LEE WALLER, LC No. 2017-000192-FC

Defendant-Appellant.

Before: METER, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

Defendant, James Lee Waller, appeals as of right from his convictions of four counts of 

first-degree criminal sexual conduct. MCL 750.520b(1). We affirm.

I. BACKGROUND

This case concerns defendant’s repeated sexual abuse of his biological nieces, BD and 

TD. The victims are twins and have cognitive impairments. They began living with defendant 

in his home when they were 13 years old. The home had only one bedroom, which the victims 

shared with defendant.

BD testified that defendant began sexually abusing her when she was 14 years old. 

According to BD, defendant told her that he would give her money to touch his penis or perform 

oral sex. DB stated that defendant would offer to give her a backrub, but would touch BD’s

breasts, buttocks, and genitalia both over and under her clothes. According to BD, these 

incidents occurred two or three times per week—or whenever defendant was intoxicated—until 

she turned 17 years old. BD also testified that defendant performed cunnilingus on her, put his 

finger inside her vagina, initiated penile-vaginal sex with her on multiple occasions, and initiated 

penile-anal sex with her on four or five occasions. Finally, BD testified that she observed 

defendant sexually abusing TD.

For her part, TD testified that defendant began sexually abusing her when she was 13 

years old. Defendant made her get on top of him, and he initiated penile-vaginal sex with her 

while he touched and spread her buttocks. According to TD, defendant also touched her breasts, 
-2-

buttocks, and genitalia and penetrated her vagina with his finger under the pretense of a backrub. 

TD testified that defendant would abuse her “[m]aybe twice a week” until she turned 17 years 

old. The prosecutor also presented testimony at trial that defendant made the victims watch 

pornographic videos with him.

The victims each testified that defendant told them that they would lose social 

privileges—such as going to youth group, having friends over, or visiting with their neighbors—

if they did not engage in sexual acts with him. BD testified that defendant told her that he would 

go to jail if she did not participate in the sexual acts and that she did not love him if she did not 

comply. She testified that defendant also implied that she would have to leave his home if she 

did not comply. TD testified that she did not initially disclose the abuse because she felt scared 

that something bad would happen to her and her sister.

When the victims were 17 years old, however, they moved into their neighbors’ home 

and disclosed the abuse.1 Ultimately, a jury found defendant guilty of four counts of first-degree 

criminal sexual conduct (CSC-1), MCL 750.520b(1), seven counts of second-degree criminal 

sexual conduct (CSC-II), MCL 750.520c(1); one count of third-degree criminal sexual conduct 

(CSC-III), MCL 750.520d(1)(d); and two counts of soliciting a child for an immoral purpose, 

MCL 750.145a. Defendant’s sentencing-guidelines range recommended a minimum prison 

sentence between 135 and 225 months for his CSC-I convictions. See MCL 777.62. The trial 

court departed upward from the sentencing guidelines, imposing concurrent prison terms of 480 

to 720 months for each of defendant’s CSC-I convictions. The trial court sentenced defendant to 

concurrent prison terms of 120 to 180 months for each CSC-II and CSC-III conviction and 18 to 

48 months for each soliciting conviction. On appeal, defendant challenges only his sentence for 

the CSC-I convictions.

II. ANALYSIS

Defendant argues that the trial court abused its discretion and violated the principle of 

proportionality when it departed upward from the sentencing-guidelines range. We review for 

reasonableness the trial court’s upward departure from the sentencing guidelines. People v 

Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). “[T]he standard of review to be applied 

by appellate courts reviewing a sentence for reasonableness is abuse of discretion.” People v 

Steanhouse, 500 Mich 453, 472; 902 NW2d 327 (2017). A trial court abuses its discretion when 

it chooses an outcome falling outside the range of principled outcomes. People v Babcock, 469 

Mich 247, 269; 666 NW2d 231 (2003).

A sentence is reasonable when it is proportionate to the seriousness of the circumstances 

surrounding the offense and the offender. Steanhouse, 500 Mich at 471. See also People v 

Milbourn, 435 Mich 630, 651; 461 NW2d 1 (1990). The purpose of the proportionality 

requirement is to combat unjustified disparity in sentencing, thereby ensuring that “similar 

offense and offender characteristics receive substantially similar sentences.” People v Dixon-

 1 Shortly after the victims moved in with their neighbors, the neighbors obtained a guardianship 

over them. Eventually, the neighbors adopted the victims.
-3-

Bey, 321 Mich App 490, 524; 909 NW2d 458 (2017) (internal citation and quotation marks 

omitted). Under our system of sentencing, this principle of proportionality is first entrusted to 

the Legislature, which is tasked with “grading the seriousness and harmfulness of a given crime 

and given offender within the legislatively authorized range of punishments.” Id. at 524 (internal 

citation and quotation marks omitted). Although the Legislature’s guidelines are advisory, they 

remain a highly relevant consideration in a trial court’s exercise of its sentencing discretion. 

Steanhouse, 500 Mich at 469-470, 474-475. Indeed, a sentence within the Legislature’s 

guidelines range is presumptively proportionate. People v Powell, 278 Mich App 318, 323; 750 

NW2d 607 (2008). Thus, when sentencing an individual defendant, the trial court must first 

score the sentencing guidelines and take them into account. Lockridge, 498 Mich at 391. If the 

trial court chooses to depart from the sentencing guidelines, it must justify the departure on the 

record by explaining “why the sentence imposed is more proportionate to the offense and the 

offender than a different sentence would have been.” Dixon-Bey, 321 Mich App at 525 (internal 

citation and quotation marks omitted). Relevant factors for determining whether a departure 

sentence is more proportionate than a sentence within the guidelines range “include (1) whether 

the guidelines accurately reflect the seriousness of the crime; (2) factors not considered by the 

guidelines; and (3) factors considered by the guidelines but given inadequate weight.” Id. 

(internal citations omitted).

In this case, the trial court aptly considered various factors that were not adequately 

reflected in the guidelines. At the outset, the trial court noted, “This [was] one of the most 

disturbing cases [it’s] ever had.” The trial court cited the biological relationship between the

victims and defendant and their dependence on defendant for their care as factors that weighed in 

favor of departing from the sentencing guidelines. See Milbourn, 435 Mich at 660-661. The 

trial court then found that several scoring variables did not adequately reflect defendant’s 

conduct.

PRV 7 accounts for the defendant’s subsequent or concurrent felony convictions. MCL 

777.57. Twenty points is appropriate under this variable when the “offender has 2 or more 

subsequent or concurrent convictions.” MCL 777.57(1)(a). The trial court scored this variable 

at twenty points, but opined that the score did not adequately account for the substantial number

of sexual abuse incidents in this case—approximately four or five incidents per week for several 

years. OV 4 addresses psychological injury to the victim. The trial court scored this variable at 

its maximum, but stated that the score did not adequately reflect that there were two victims in 

this case who were cognitively impaired and who suffered years of sexual abuse. The trial court 

also expressed its belief that OV 4 did not take into account the fact that BD observed defendant 

sexually abusing her sister. MCL 777.34.

OV 10 accounts for the defendant’s exploitation of a vulnerable victim. MCL 777.40. 

Again, the trial court scored this variable at its maximum, but found that the score did not 

adequately reflect the extreme vulnerability of these victims, who were cognitively impaired and 

reliant on defendant for their care. OV 11 addresses criminal sexual penetration. MCL 777.41. 

Fifty points is appropriate under this variable when “[t]wo or more criminal sexual penetrations 

occurred.” MCL 777.41(1)(a). The trial court scored this variable at 50 points, but found that 

the scoring of this variable did not adequately account for the substantial number of sexual abuse 

incidents in this case.
-4-

Defendant argues that the trial court did not properly consider his elderly age and his 

status as a disabled veteran. We disagree. The trial court did consider defendant’s age and 

veteran status when sentencing him, but found that these factors did not warrant any leniency. In 

fact, the trial court addressed defendant directly and stated, “I find it disgusting that you [want 

to] hide behind your military career.” We agree with the trial court that these factors are not 

mitigating. If anything, defendant’s status as the elder guardian for these victims only 

exacerbated their trauma.

Defendant argues that the trial court did not articulate reasons for the extent of the 

upward departure from the sentencing guidelines range. Again, we disagree. As noted 

previously, the trial court articulated several considerations not adequately addressed by the 

sentencing guidelines. Perhaps most significantly, the trial court recognized that many 

sentencing variables account for the defendant’s pattern of criminality. Yet, under these 

variables, the scale only extends to two episodes of impropriety. Here, the victims reported 

hundreds of episodes of sexual misconduct. Additionally, while several variables account for the 

harm caused to a vulnerable victim, here, defendant preyed on his cognitively impaired kin with 

whom he shared a bedroom for years, leaving them with no reasonable means to avoid the abuse. 

Overall, the trial court opined that defendant deserved at least twice the overall score calculated 

under the guidelines. The sentence it imposed was consistent with this opinion. Simply put, the 

trial court’s explanation for its departure sentence is the exact type of well-reasoned analysis 

envisioned by the principle of proportionality.

We recognize that defendant’s sentences are a substantial departure from the sentencing 

guidelines. Nonetheless, we cannot conclude that this departure was unjustified. We agree with 

the trial court that the sentencing guidelines did not reflect the seriousness of defendant’s 

conduct. The trial court adequately explained the extent of its departure on the record and its

sentence, though lengthy, captures the severity of the circumstances surrounding the offender 

and his offenses.

Affirmed.

/s/ Patrick M. Meter

/s/ David H. Sawyer

/s/ Thomas C. Cameron