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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 28, 2016

v No. 325652
Isabella Circuit Court ALLEN CLIFFORD MCKENZIE, LC No. 2014-001372-FH

Defendant-Appellant.

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

P ER C URIAM

.

Defendant was convicted of aggr avated indecent exposure (AIE), MCL 750.335a(2)(b), for which the trial court, departing from the sentencing guidel ines (intermediate sanction cell), imposed a sentence of 16 to 24 months’ imprisonment, as well as being convicted of simple assault and battery, MCL 750.81, for which he was sentenced to a term of 93 days. We affirm.

Defendant first argues that there was insufficient evidence to support the AIE conviction, given that the prosecution failed to prove, in addition to show ing that defendant openly or indecently exposed his genitals, which is not in dispute, that defendant “was fondling his . . . genitals,” MCL 750.335a(2)(b), when he exposed himself. The en tire premise of defendant’s argument is that the term “fondling,” as used in MCL 750.335a(2 )(b), has a sexual connotation,
and that the evidence did not r eflect that his act of exposing his penis at the county jail was sexual in nature, but was inste ad fueled by an intoxicated fit of rage.

We review de novo the issue regarding whether there was suffic ient evidence to sustain a
conviction. People v Lueth , 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence, whether direct or circumstantial, in a light most favorable to the prosecutor and determine wheth er a rational trier of fact could find that the essential elements of the crime were proved beyon d a reasonable doubt. People v

Reese , 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellat e court must not interfere wit h the jury’s role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe , 440 Mich 508, 514- 515; 489 NW2d 748 (1992). Circumstantial evidence and the reas onable inferences that arise from such evidence can constitute satisfactory proof of the ele ments of the crime. People v

Carines , 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every-2- reasonable theory of innocence, but need only prove the element s of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evide nce in favor of the prosecution. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

We find it unnecessary to specifically determine whether “fond ling” under MCL 750.335a(2)(b) has a sexual component to it, such that it requi res a prosecutor to prove that the charged act was sexual in nature. Assuming that the prosecutio n in this case had to establish that defendant’s conduct in exposing and handling his penis was sexu al in nature or had a sexual aspect to it, the evidence, when viewed in a light most favorab le to the prosecution, supported the AIE conviction. The corrections supervisor at the county j ail testified that defendant pulled his penis out, showed it to the supervisor , “stroke[d] it a cou ple of times,” and told the supervisor to “suck his d**k, suck his c**k.” Although defendant may have been intoxicated and motivated by anger and distain, the masturbatory movements in conjunction with the fellatio commands
were sexual in nature and imbue d with graphic sexual characteri stics.

Furthermore, consistent with M Crim JI 20.33(4), the trial cou rt instructed the jury that the prosecution had to prove beyond a reasonable doubt “that th e Defendant was fondling his genitals.” And defendant, as well as the prosecutor, requested this instruction, absent any additional request for the trial court to provide an accompanyi ng instruction that defined “fondling,” let alone one that in corporated a sexual component. In light of the evidence that defendant stroked his penis, a rea sonable juror could conclude that defendant had been “fondling his genitals” while in the count y jail. Reversal is unwarrante d.

Defendant next argues that the trial court erred in assessing 10 points for offense variable (OV) 4, MCL 777.34(1)(a) (serious p sychological injury), and 25 points for OV 19, MCL 777.49(a) (conduct threatened security of penal institution). These were the only OVs for which defendant was assessed points. Defendant’s minimum sentence ra nge was 0 to 17 months, MCL 777.68, placing him in an intermediate sanction cell, MCL 769.3 4(4)(a), precluding, at the time of sentencing, imposition of a prison sentence absent substanti al and compelling reasons for a departure. We initially note th at even had defendant’s total O V score been zero points, he still would have fallen within an intermediate sanction cell, althoug h the guidelines range would have been 0 to 9 months, MCL 777.68. We further note that although the scores for OVs 4 and 19 were clearly based on judicial fact-finding and were not encomp assed by the jury’s verdict or supported by facts admitted by defendant, he does not present a right-to-jury-trial argument
under People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015) , with respect to the scorin g of
the OVs.

Under the sentencing guidelines, this Court reviews a trial co urt’s factual determinations for clear error, People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013), which exists if this Court is “definitely and firmly convinced that [the sentencing court] made a mistake” after reviewing the entire lower court record, People v Armstrong , 305 Mich App 230, 242; 851 NW2d 856 (2014). The trial court’s factual findings must be su pported by a preponderance of
the evidence. Hardy , 494 Mich at 438. This Court reviews de novo “[w]hether the f acts, as found, are adequate to satisfy the scoring conditions prescribe d by statute.” Id. This Court also reviews de novo, as a question of law, the proper interpretatio n of the sentencing guidelines. People v Gullett , 277 Mich App 214, 217; 744 NW2d 200 (2007).-3- We hold that OV 19 was properly assessed at 25 points, making it unnecessary to review OV 4, given that even if OV 4 should have been scored at zero i nstead of 10 points, it would not change defendant’s current OV level and placement in the class G grid, MCL 777.68. See People v Francisco , 474 Mich 82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring err or does not alter the appropriate guidelines range, resentencing is not req uired.”). OV 19 is to be assessed at 25 points when “[t]he offender by his or her conduct threatened the security of a penal institution or court.” MCL 777.49(a). In th e instant case, t here was evid ence that after defendant was taken into custody and while in the pr ocess of being booked and lodge d into the county jail, he acted uncooperatively, belligerently, threateningly, and in an almost assaultive manner, requiring the police to restrain him in a holding cell chained to a ring atta ched to the cell’s concrete wall. There was no clear error by t he trial court in assessing 25 poi nts for OV 19.

Finally, defendant argues that the departure was not supported by substantial and compelling reasons as required by MCL 769.34(4)(a). The substa ntial and compelling standard for departures is no longer applicable, or at least under the c ircumstances here where the trial court engaged in judicial fact-f inding in scoring the OVs; rath er, “[a] sentence that departs from the applicable guidelin es range will [now] be reviewed by an ap pellate court for reasonableness.” Lockridge , 498 Mich at 392. Pursuant to a recent decision by this Court in People v Schrauben

, __ Mich App __; __ NW2d __ (2016), we must affirm the AIE sente nce, given that there effectively was no departure from the guidelines range for purp oses of MCL 769.34(4)(a) under
the Schrauben panel’s construction of that st atutory provision, as guided by Lockridge. In
Schrauben , the defendant, who was subject to a minimum sentence range of 0 to 17 months, was sentenced to 16 months’ imprisonment for multiple fraudulent in surance acts. Schrauben

, __ Mich App at __; slip op at 1 and 6. The defendant argued that the trial court’s reasoning for departing from a sentence within the intermediate sanction cell was not substantial and compelling. Id. at __; slip op at 6. This Court began its analysis by examinin g the language in MCL 769.34(4)(a), which provides:

(4) Intermediate sanctions sh all be imposed under this chapter as follows:

(a) If the upper limit of the recommended minimum sentence ran ge for a
defendant determined under the se ntencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanct ion unless the court
states on the record a substan tial and compelling reason to sen tence the individual to the jurisdiction of the depar tment of corrections. An interm ediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 m onths, whichever is less. [ 1 .]

1 MCL 769.34(4)(a) required a sente ncing court to set forth a su bstantial and compelling reason for imposing a prison sentence, even if the minimum length of t he sentence did not exceed the upper end of the range established under the guidelines. People v Stauffer , 465 Mich 633, 636; 640 NW2d 869 (2002). For example, even if a defendant were sen tenced to 17 months’ imprisonment with the Department of Corrections under a guideli nes range of 0 to 18 months, a substantial and compelling reason was required to justify the p rison sentence, despite the-4- The Schrauben panel, relying on Lockridge , stated that it was necessary to “replace the word ‘shall’ in MCL 769.34(4)(a) with the word ‘may’ ” and to s trike down the substantial and compelling language found in MCL 769.34(4)(a). Schrauben , __ Mich App at __; slip op at 6. This Court ruled that “[p]ursuant to the broad language of Lockridge , under subsection (4)(a), a trial court may, but is no longer required to, impose an interm ediate sanction if the upper limit of
the recommended minimum sentence range is 18 months or less.” Id. The Schrauben panel then
held:

In this case, defendant's recommended minimum sentence was zer o to 17 months' imprisonment. The trial court sentenced defendant to 16 months in prison, which is within the range authorized by law. . . . Wher e a trial court does not depart from the recommended minimum sentencing range, the m inimum sentence must be affirmed unless there was an error in scoring or the trial court relied on inaccurate information. MCL 769.34(10). Defendant doe s not dispute that his sentence was within the recommended minimum guidelines range, and he does not argue that the trial c ourt relied on inaccurate inform ation or that there was an error in scoring the guide lines. Therefore, this Court m ust affirm the sentence. [ Id. at __; slip op at 6-7.]

As reflected in this holding, the Court found that there was n o departure when viewed in
the context of the original sentencing guidelines range , not an intermediate sanction cell. Here, defendant’s minimum sentence range was 0 to 17 months, and the trial court imposed a minimum sentence of 16 months’ imprisonment relative to the AIE conviction. Thus, under

Schrauben , there effectively is no d eparture to review.

Affirmed.

/s/ David H. Sawyer /s/ William B. Murphy /s/ Amy Ronayne Krause

sentence falling within the score d guidelines ran ge. When an i ntermediate sanc tion sentence was mandated by MCL 769.34(4)(a), the imposition of a prison senten ce constituted a departure. People v Alspaugh , 480 Mich 919, 919; 739 NW2d 874 (2007) (“The defendant's sent ence is a departure from the twelve-month maximum jail sentence required by MCL 769.34(4)(a). On remand, the circuit court shall either sentence the defendant t o an intermediate sanction or state
on the record a substantial and c ompelling reason to sentence t he defendant to the Department of Corrections, in accordance with MCL 769.34(4)(a).”).