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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

August 9, 2016 

v No. 328463 

Berrien Circuit Court 

DAMION LAVAR NEVILLS, JR., LC No. 2014-005235-FC 

 Defendant-Appellant. 

Before: SERVITTO, P.J., and MARKEY and GLEICHER, JJ. 

PER CURIAM. 

 A jury convicted defendant of two counts of first-degree criminal sexual conduct (CSCI), MCL 750.520b(2)(b), in connection with the forcible sexual penetration of a 12-year-old girl. 

The trial court sentenced defendant to 25 to 75 years of imprisonment, but also imposed a $100 

fine. Defendant challenges the sufficiency of the evidence supporting his convictions and the 

constitutionality of his prison terms. Neither of these claims has merit and we affirm defendant’s 

convictions and sentences. However, we vacate the $100 fine as it was not authorized by MCL 

750.520b. 

I. BACKGROUND 

 The 19-year-old defendant met the 12-year-old complainant at a park in Benton Harbor. 

The complainant testified that defendant invited her back to his house while defendant claimed 

she followed him. Although defendant insists nothing happened between the two, the 

complainant painted a very different version of events. Specifically, the complainant accused 

defendant of using physical force to keep her in the house when she tried to leave, pushing her 

head down to force her to perform fellatio, and penetrating her vagina with his penis without 

consent. 

 Eventually, the mother of complainant’s friend found her at defendant’s home. Various 

witnesses asserted that complainant did not appear upset and seemed fine at the time. The 

complainant waited three days to tell her parents about the assault. 

 Nurse Mindy O’Brien conducted a post-sexual assault medical examination on 

complainant. The complainant reported to O’Brien that defendant had “pulled off her pants” and 

stuck his penis into her vagina, describing this as extremely painful. The complainant further 

asserted that defendant had put his penis in her mouth and touched her right neck and breast. 
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O’Brien testified that while the complainant cooperated and was polite during their discussion, 

she was embarrassed and scared about what had happened and expressed fear that she would get 

in trouble. 

 O’Brien gave complainant a “head to toe” exam, looking for any injuries. O’Brien 

discovered circular bruises on the complainant’s wrist, thigh, and arm, consistent with fingers. 

O’Brien also conducted a detailed genital exam. She noted “generalized redness in [the 

complainant’s] vaginal area” when she “pulled back the labia.” O’Brien’s inspection of the 

complainant’s hymen revealed two lacerations consistent with intercourse and “something being 

very forcefully jammed in there” at an angle “a lot of times.” 

 O’Brien was unable to date complainant’s bruises or her genital injuries. Moreover, 

complainant told O’Brien that “she had showered, changed her clothes, bathed and washed.” 

O’Brien found this and the 72 hours between the incident date and exam to be important because 

“showering, bathing, brushing your teeth” and time can “all affect evidence collection.” 

 Indeed, the forensic examiner was unable to find a presence of seminal fluid, saliva, 

and/or sperm cells after examining the physical evidence collected during the complainant’s 

physical examination. He also noted that the DNA reference samples came back negative. 

 The jury credited complainant’s testimony and convicted defendant as charged. He now 

appeals. 

II. SUFFICIENCY OF EVIDENCE 

 On appeal, defendant argues that his convictions fail the sufficiency of evidence test and 

therefore should be set aside. 

 When a defendant challenges the sufficiency of the evidence following a jury-trial 

conviction, this Court reviews the defendant’s convictions de novo. People v Harverson, 291 

Mich App 171, 177; 804 NW2d 757 (2010). The Court must ask after reviewing the evidence in 

the light most favorable to the prosecution, “whether a rational trier of fact could find that the 

evidence proved the essential elements of the crime beyond a reasonable doubt.” Id. at 175. 

 The Fifth and Fourteenth Amendments of the United States Constitution “[protect] the 

accused against conviction except upon proof beyond a reasonable doubt of every fact necessary 

to constitute the crime with which he is charged.” US Const Am V, XIV; In re Winship, 397 US 

358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). 

 “A trier of fact may make reasonable inferences from the facts, if the inferences are 

supported by direct or circumstantial evidence.” People v Legg, 197 Mich App 131, 132; 494 

NW2d 797 (1992). “[C]ircumstantial evidence is oftentimes stronger and more satisfactory than 

direct evidence.” For this reason, inferences drawn from circumstantial evidence are reviewed in 

the same manner as those drawn from direct evidence.” People v Wolfe, 440 Mich 508, 526; 489 

NW2d 748 (1992), mod 441 Mich 1201 (1992). “The evidence is sufficient if, taken as a whole, 

it justifies submitting the case to the trier of fact.” People v Legg, 197 Mich App 131, 132; 494 

NW2d 797 (1992). 
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 “A person is guilty of criminal sexual conduct in the first degree if” they are 17 years of 

age or older and engage in sexual penetration with an individual who is less than 13 years of age. 

MCL 750.520b. “ ‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal 

intercourse, or any other intrusion, however slight, of any part of a person’s body or of any 

object into the genital or anal openings of another person's body, but emission of semen is not 

required.” People v Garrow, 99 Mich App 834, 837; 298 NW2d 627 (1980); see also MCL 

750.520a(r). 

 First, the evidence supported that defendant was over the age of 17 and the complainant 

under the age of 13 at the time of the offense. Evidence also supported that a sexual penetration 

occurred. Complainant testified that defendant sexually penetrated her on two occasions: when 

he pushed complainant’s head towards his penis and required her to perform oral sex on him, and 

when defendant took off complainant’s leggings and “stuck” his unprotected penis into her 

vagina. A complainant’s testimony standing alone can be sufficient to support a defendant’s 

conviction. People v Szalma, 487 Mich 708, 724; 790 NW2d 662 (2010); MCL 750.520h. 

 The physical evidence also tended to support the complainant’s claim that someone 

sexually assaulted her. O’Brien’s physical examination revealed circular bruises on 

complainant’s wrist, thigh and arm consistent with marks left by fingers. Additionally, O’Brien 

observed “general redness in [complainant’s] vaginal area” when she “pulled back the labia,” 

and two lacerations on the complainant’s hymen. O’Brien testified that these tears are consistent 

with intercourse and “something being very forcefully jammed in there” at an angle “a lot of 

times.” 

 Although the evidence collection kit and DNA reference samples came back negative, 

O’Brien’s and the forensic examiner’s testimonies support that DNA recovery may have been 

affected by the passage of time between the assault and examination and by the complainant’s 

acts of showering and using the toilet. 

Because the evidence supporting defendant’s conviction of two counts of CSC-I is 

plentiful, it follows that the prosecution fulfilled its duty in proving defendant’s guilt by legally 

sufficient evidence and beyond a reasonable doubt.

III. IMPROPER ASSESSMENT OF FINE 

 Defendant next argues and the prosecution concedes that the court was not permitted 

under the statute to impose a $100 fine. See People v Wesley, 148 Mich App 758, 764; 384 

NW2d 783 (1985) (holding that a trial court “was without authority to impose a fine” in CSC-I 

cases). 

 “[T]he interpretation and application of a statute . . . is a question of law” 

that we review de novo. People v Zajaczkowski, 493 Mich 6, 12; 825 NW2d 554 

(2012). The foremost rule of statutory construction is to discern and give effect to 

the intent of the Legislature. People v Cole, 491 Mich. 324, 330; 817 N.W.2d 497 

(2012). In doing so, we focus on the plain language of the statute and, if the 

statute is unambiguous, we “must conclude that the Legislature ‘intended the 

meaning clearly expressed[.]’ ” Id. (citation omitted). Although we generally 
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interpret terms in a statute according to their ordinary meanings, we must accept 

and apply the definitions of terms specifically provided in a statutory scheme. 

McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). 

[People v Lyon, 310 Mich App 515, 517; 872 NW2d 245 (2015).] 

 MCL 750.520b(2), the penalty provision of the statute proscribing CSC-I, provides for 

imprisonment for life or any term of years, but not less than 25 years, and lifetime electronic 

monitoring upon release, but nowhere is there mention of a fine. Because MCL 750.520b does 

not provide a fine, the court was unauthorized to impose one. We vacate that portion of the 

court’s judgment. 

IV. 25-YEAR MANDATORY MINIMUM SENTENCE AND VIOLATION OF 

SEPARATION OF POWERS CLAUSE 

 Defendant also argues that the Legislature’s 25-year mandatory minimum sentence under 

MCL 750.520b(2)(b) violates the separation of powers clause in Michigan’s constitution. 

 “[U]nder established rules of statutory construction, statutes are presumed constitutional, 

and courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly 

apparent.” Wysocki v Kivi, 248 Mich App 346, 355; 639 NW2d 572 (2001). “[T]he party 

challenging [the statute] bears the “heavy burden” of rebutting” the statutes’ invalidity. People v 

Sleet, 193 Mich App 604, 607; 484 NW2d 757 (1992). “We review the constitutionality of 

statutes de novo.” Wysocki, 248 Mich App at 357. 

 The Michigan Constitution provides that “[t]he powers of government are divided into 

three branches: legislative, executive and judicial. No person exercising powers of one branch 

shall exercise powers properly belonging to another branch except as expressly provided in this 

constitution.” Const 1963, art 3, § 2. 

 The separation of powers doctrine has never been interpreted in Michigan 

as meaning there can never be any overlapping of functions between branches or 

no control by one branch over the acts of another. Some overlapping is 

permissible provided the area of one branch’s exercise of another branch’s power 

is very limited and specific. [People v Trinity, 189 Mich App 19, 22-23; 471 

NW2d 626 (1991).] 

 As noted in People v Hegwood, 465 Mich 432, 436-437; 636 NW2d 127 (2001), 

[T]he ultimate authority to provide for penalties for criminal offenses is 

constitutionally vested in the Legislature. Const 1963, art 4, § 45. The authority 

to impose sentences and to administer the sentencing statutes enacted by the 

Legislature lies with the judiciary. See, e.g., MCL 769.1(1). 

 Based on the provisions of our Constitution, therefore, the Legislature has the power to 

provide a mandatory minimum sentence in a criminal statute, and the courts have the power to 

impose sentence pursuant to the legislatively-created criminal statutes. The Legislature acted 

within its sphere of authority in creating such a minimum sentence in MCL 750.520b and the 
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trial court acted within its sphere of authority in imposing sentence. There was no violation of 

the separation of powers. 

V. MANDATORY MINIMUM IS CRUEL OR UNUSUAL PUNISHMENT 

 Defendant lastly argues that the mandatory 25-year minimum sentence for his firstdegree CSC convictions is cruel and/or unusual punishment in violation of both the federal and 

state constitutions. Defendant acknowledges that this issue is controlled by binding case law, 

People v Benton, 294 Mich App 191, 203-207; 817 NW2d 599 (2011). We review de novo 

constitutional challenges to statutes. Id. at 203. 

 This Court in Benton held that the mandatory 25-year minimum sentence for CSC-I was

not cruel or unusual punishment under the federal or state constitutions. Id. at 207. In its 

rationale, this Court acknowledged an observation made in In re Hildebrant, 216 Mich App 384, 

386-387; 548 NW2d 715 (1996), regarding public policy and statutory rape: 

Statutory rape, a strict-liability offense, has been upheld as a matter of public 

policy because of the need to protect children below a specific age from sexual 

intercourse. The public policy has its basis in the presumption that the children’s 

immaturity and innocence prevents them from appreciating the full magnitude and 

consequences of their conduct. People v Cash, 419 Mich 230, 242; 351 NW2d 

822 (1984). Because this policy focuses on the exploitation of the victim, we find 

that the Legislature did not intend to withdraw the law’s protection of the victim 

in order to protect the offender. 

This statement of Michigan public policy, this Court found, “conflicts with defendant’s attempt 

to minimize the gravity and severity of her offense.” Benton, 294 Mich App at 205. 

 In response to the defendant’s argument that “the mandatory 25-year minimum sentence 

is unduly harsh compared to penalties for other offenses under Michigan law, including many 

violent offenses,” the Benton Court stated: 

The perpetration of sexual activity by an adult with a preteen victim is an offense 

that violates deeply ingrained social values of protecting children from sexual 

exploitation. Even when there is no palpable physical injury or overtly coercive 

act, sexual abuse of children causes substantial long-term psychological effects, 

with implications of far-reaching social consequences. The unique ramifications 

of sexual offenses against a child preclude a purely qualitative comparison of 

sentences for other offenses to assess whether the mandatory 25–year minimum 

sentence is unduly harsh. [Id. at 206.] 

 Lastly, Benton noted the numerous statutes implemented by other states that also impose 

a mandatory 25-year minimum sentence for an adult offender’s sexual offense against a preteen 

victim to demonstrate that “a comparison of Michigan’s penalty and those imposed for the same 

offenses in other states fails to support defendant’s attack on the constitutionality of Michigan’s 

sentencing statute.” Id. at 206-207. 
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 We affirm defendant’s convictions and sentences but vacate the $100 fine imposed in 

defendant’s judgment of sentence. 

/s/ Deborah A. Servitto 

/s/ Jane E. Markey 

/s/ Elizabeth L. Gleicher