-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 24, 2017

v No. 328661 Wayne Circuit Court KEITH PAUL BROOKS, LC No. 07-006594-01-FC

Defendant-Appellant.

Before: B ECKERING
, P.J., and S AWYER and S AAD
, JJ.

P ER C URIAM

.
Defendant was convicted by a ju ry of first-degr ee criminal sex ual conduct (CSC-1), MCL 750.520b. The trial court sentenced defendant to 15 to 25 year s’ imprisonment with credit for 290 days served. Defendant appeal s as of right, contending tha t there was insufficient evidence to support his conviction and that his sentence was improper. We affirm defendant’s conviction but remand pursuant to People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), and United States v Crosby , 397 F3d 103 (CA 2, 2005).

The victim testified that over the 2004 Labor Day weekend, she slept over one night at defendant’s home. She claimed that while she was sleeping on t he floor, defendant entered the room, pulled down her pants, and touched and rubbed in between the lips of her vagina for approximately five minutes. 1 Defendant denied that he entered the bedroom or that he touch ed the victim’s vagina with his fingers.

Defendant first contends that there was insufficient evidence to support his CSC-1 conviction and that he was therefore deprived of due process. Defendant moved for a directed verdict at the conclusion of the prosecution’s case, but he did not have to take any special action to preserve his challenge to the sufficiency of the evidence on appeal. People v Patterson , 428 Mich 502, 514; 410 NW2d 733 (1987); People v Cain , 238 Mich App 95, 116-117; 605 NW2d 28 (1999).

1 The victim also claimed that defendant touched her vaginal are a with his penis, but the jury acquitted defendant of a separate charge for this alleged condu ct.-2- In People v Henderson , 306 Mich App 1, 8-9; 854 NW2d 234 (2014), this Court
summarized:

Appeals regarding the sufficiency of the evidence are reviewed de novo. 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 in the light most favorable to the prosecution and determine whether a rational t rier 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). Juries, and not appellate courts, hear the testi mony of witnesses; therefore, w e defer to the credibility assessments made by a jury. People v Wolfe , 440 Mich 508, 514-515; 489 NW2d 748 (1992). “It is for the trier of fact . . . to det ermine what inferences may be fairly drawn from the evidence and to determine the weig ht to be
accorded those inferences.” People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). The prosecution need not negate every reasonable t heory of innocence, but need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowak , 462 Mich 392, 400; 614 NW2d 78 (2000). Circumstantial evidence and the reasonable
inferences that arise from that evidence can constitute satisfa ctory proof of the
elements of the crime. Carines , 460 Mich at 757. We reso lve all conflicts in the evidence in favor of the prosecution. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

The only element of first-degre e CSC in the context of this ca se that defendant disputes is sexual penetration by the defendant of another person. MCL 750 .520b. “Sexual penetration” means, in the context of this case, “any . . . intrusion, howev er slight, of any part of a person’s body . . . into the genital . . . openings of another person’s body. . . .” MCL 750.520a(r). Penetration includes “any intrus ion, however slight, into the v agina or the labia majora.” People
v Lockett , 295 Mich App 165, 188; 814 NW2d 295 (2012). The victim testi fied that defendant
touched and rubbed in between the lips of her vagina, while def endant disputed any inappropriate touching.

On appeal, defendant lists many inconsistencies in the victim’ s testimony and insists that, given these inconsistencies, her testimony was inherently incre dible and the jury was not justified in accepting it. 2 However, those inconsistencies were the subject of defendant’ s cross-

2 We note that, in addition to pointing out the inconsistencies in the victim’s testimony and pointing out the lack of physical evidence, defendant also poin ts out that the victim testified that she told three people about the a ssaults, one of her cousins, a friend, and her brother, but that none of these people testified. B ut since defendant did not di spute that the victim made statements to these people and d id not dispute the content of h er statements, there was no basis upon which the prosecution could have presented testimony of th e victim’s prior consistent statements to these witnesses. The most that the prosecutor co uld have done was present these-3- examination and they ultimately involved jury determinations of the victim’s credibility; accordingly, this Court may not r evisit them. “All conflicts i n the evidence must be resolved in favor of the prosecution and we will not interfere with the jur y’s determination regarding the weight of the evidence and the credibility of the witnesses.” People v Unger , 278 Mich App 210, 222; 749 NW2d 27 2 (2008), citing People v McRunels , 237 Mich App 168, 181; 603 NW2d 95 (1999). Assuming, as this Court must, that the jury believe d the victim was credible when she gave her account of defendant’s s exual assault, there was suffi cient evidence presented to support defendant’s conviction. 3 Accordingly, there was no d ue process violation.

Furthermore, we would note that o ne of the bases for the trial court’s grant of defendant’s original motion for a new trial was the court’s determination t hat the great weight of the evidence weighed against defendant’s conv iction, and this Court reversed the trial court’s determination. 4 In our opinion in that appeal, we listed and considered at leng th defendant’s claims that the victim’s testimony was too inconsistent and unbelievable to sup port his conviction. We rejected defendant’s great weight of the e vidence claim in the prior app eal, and have been provided with no basis upon which to revisit o r overturn the decision regardi ng the victim’s testimony based on an insufficiency of the evidence claim that essentially tracks the earlier great weight claim. 5

witnesses to testify that the victim had made statements to the m, but without eliciting the content
of the statements.

3 We note that it was entirely possible for the jury to convict defendant of the penetration involving his finger while acquitting him of the penetration in volving his penis. The jury could have concluded that the victim’s account of the second penetrat ion was merely a second penetration by defendant with his fingers because, while she be lieved it was his penis, she never saw what was penetrating her. It is also possible that the jur ors could have concluded that the victim’s description did not sa tisfy their understanding of wha t was required for a penetration, or that the jurors concluded th at a penetration did not occur.

4 People v Brooks , unpublished opinion per curiam o f the Court of Appeals, issue d July 24, 2008 (Docket No. 281487).

5 In relevant part, we concluded as follows:

With each of defendant’s four claimed instances of inconsisten t testimony, the jurors had the discretion to determine wheth er they believe d that the testimony was inconsistent and how to weigh it in assessing the victim’s credibility. Although it would have been plausible for the jury to conclude, based on the above sequences, that the victim w as not a credible witness, it was also plausible for the jury to consider these minor discrepancies and to never theless find her credible. “[T]he hurdle a judge must clear to overrule a jury is unquestionably among the highest in our law. It is to be approached by the co urt with great trepidation and reserve, with all presumptions running against its invocation.” [ People v ] Lemmon , [456 Mich 625,] 639[; 576 NW2d 129 (1998)], quoting People v Bart (On Remand) , 220 Mich App 1, 12; 558 NW2d 449 (1996). The
claimed inconsistencies do not ris e to the level required for a trial court to overrule a jury’s credibility determination.-4- Therefore, we find that there was sufficient evidence to suppor t the jury’s decision to convict
defendant of CSC-1 and we affirm that conviction.

Defendant also claims that the trial court engaged in judicial fact-finding in scoring offense variable (OV) 11, that thi s violated his right to a jur y trial as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, and th at he is accordingly entitled to a remand to give the trial court an opportunity to either resen tence him or to affirm his sentence. The prosecutor concedes that, under Lockridge, 498 Mich 358

, defendant is entitled to the socalled Crosby remand

.
We affirm defendant’s conviction but remand pursuant to Lockridge and Crosby . We do not retain jurisdiction.

/s/ Jane M. Beckering /s/ David H. Sawyer /s/ Henry William Saad

* * *

The trial court was not permitted to grant a new trial based o n mere disagreement with the jury’s assessment of witness credibility, [ People v Unger

, 278 Mich App 210, 222, 228-229; 749 NW2d 272 (2008)], and there were no “exceptional circumstances” in this case to justify granting a new trial on the grounds of witness credibility, Lemmon

, supra at 642. The victim’s testimony did not “contradict physical facts” and was not “patently incredibl e” or “so inherently implausible that it could not be believed by a reasonable jury, ” nor was it “seriously impeached” in a “case marked by uncertainties and di screpancies.” Id

. at 643-644. The jury’s verdict was not against the great weigh t of the evidence and the trial court abused its discretion in granting defendant a new trial on this basis. [ People v Brooks , unpub op at 8-9.]