-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

December 23, 2014 

v No. 317593 

Wayne Circuit Court 

RICHARD STEVEN GUTIERREZ, LC No. 13-001111-FH 

 Defendant-Appellant. 

Before: O’CONNELL, P.J., and BORRELLO and GLEICHER, JJ. 

PER CURIAM. 

 Defendant appeals as of right his bench trial conviction of third-degree criminal sexual 

conduct (“CSC III”), MCL 750.520d(1)(c) (victim was mentally incapable, mentally 

incapacitated, or physically helpless). He was sentenced to 1 to 15 years’ imprisonment for his 

CSC III conviction. For the reasons set forth in this opinion, we affirm the conviction and 

sentence of defendant, but remand to the trial court for the sole purpose of correcting the 

presentence investigation report (PSIR). 

I. BACKGROUND. 

This appeal arises from defendant’s conviction for CSC III from events that occurred on 

September 3, 2012. On that evening, the alleged victim in this case attended a party being 

thrown at the residence of defendant in Garden City, Michigan. The alleged victim testified that 

she arrived at the party with her boyfriend and over the course of the evening drank rum, beer, 

vodka and smoked marijuana. She then testified that at some point she fell asleep in a chair in 

the backyard of the residence. Testimony of other witnesses who were at the party confirmed 

that she was not “feeling well” around 2:00 a.m. They testified that the alleged victim was seen 

holding her stomach and resting her head in her legs, though they were not certain whether they 

ever saw her “passed out.” At some point she was helped into the residence by her boyfriend, 

defendant’s roommate, or perhaps even defendant. Her boyfriend testified that when he placed 

her on the couch she was fully clothed and immediately went back to sleep. He testified that he 

checked in on the victim and at times she mumbled incoherently, whereas other times there was 

no response. Approximately two hours after the victim’s boyfriend left her on the couch, he 

went to sleep on a couch in the front of the home. 

The alleged victim was awakened around 5:00 a.m., testifying that her pants were pulled 

down to her ankles and a man’s penis was inside her vagina. She testified that she felt groggy, 
-2- 

tired and “buzzed,” and did not say anything because she was trying to figure out where she was 

and exactly what was happening. Following the sexual act, the perpetrator came back into the 

room with a towel and she recognized the v-neck shirt as the same one worn by defendant earlier 

in the evening. After defendant left the room, she used her cell phone to call her boyfriend to 

wake him up. The boyfriend testified that she asked if he had sex with her, to which he 

responded, “no.” She then told her boyfriend that defendant had raped her. Without informing 

anyone else what they were doing, they left the house and went to the Dearborn police station 

where they were told to go to the hospital. While at the hospital, she received antibiotics and 

Plan B medication. 

Defendant testified on his own behalf and admitted to having sexual intercourse with the 

alleged victim. However, defendant testified that he did so at the bequest of the alleged victim 

and that the sexual acts were consensual. The trial court found defendant guilty of CSC III and 

sentenced him as stated above. 

II. PSIR. 

 On appeal, defendant argues that this Court should remand this matter to the trial court 

because the trial court failed to strike incorrect information from the PSIR. Relying on this 

Court’s decision in People v Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2009), the 

prosecutor agrees that remand is necessary to ensure that the PSIR contains accurate information. 

The parties’ consensus is consistent with MCL 771.14, which states the following: 

At the time of sentencing, either party may challenge, on the record, the accuracy 

or relevancy of any information contained in the presentence investigation report. 

. . . If the court finds on the record that the challenged information is inaccurate 

or irrelevant, that finding shall be made a part of the record, the presentence 

investigation report shall be amended, and the inaccurate or irrelevant information 

shall be stricken accordingly before the report is transmitted to the department of 

corrections. [MCL 771.14(6).] 

During the sentencing hearing, defendant objected to a statement in the PSIR indicating 

that he had a ninth grade education. The trial court agreed that the PSIR incorrectly stated that 

defendant had a ninth grade education even though defendant actually completed two years of 

college. However, even though the court acknowledged that the information was inaccurate and 

appeared to cross out “Ninth Grade” and write in “2 YR DEGREE” on the first page of the PSIR, 

there is no indication that the PSIR was otherwise amended to include the correct educational 

information. Thus, given the parties’ agreement that the report was not properly amended, we 

remand this matter to the trial court for correction of the PSIR, and an amended report should be 

forwarded to the Department of Corrections. 

III. OFFENSE VARIABLE (“OV”) 3 

 Next, defendant contends that the trial court erred by assessing 10 points for OV 3 

because the victim never complained of physical injury or needed medical treatment. “The 

proper interpretation and application of the statutory sentencing guidelines is a question of law 

that this Court reviews de novo.” People v Armstrong, 305 Mich App 230, 243; 851 NW2d 856 
-3- 

(2014). “This Court reviews the sentencing court’s scoring of a sentencing guidelines variable 

for clear error,” which is present if this Court is “definitely and firmly convinced that [the 

sentencing court] made a mistake” after reviewing the entire lower court record. Id. at 242. 

However, this Court reviews de novo “[w]hether the facts, as found, are adequate to satisfy the 

scoring conditions prescribed by statute.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 

(2013). 

 The trial court is required to use the applicable guidelines when it imposes a sentence. 

MCR 6.425(D). When scoring the offense variables during sentencing, the trial court may 

consider all of the evidence in the record. Armstrong, 305 Mich App at 245. The trial court’s 

determination of an offense variable must be supported by a preponderance of the evidence in 

the record. Id. Additionally, the proper interpretation of the guidelines is a matter of statutory 

interpretation, which involves “determin[ing] and giv[ing] effect to the Legislature’s intent.” Id. 

at 243. The statutory language should be enforced as it is written if the plain and ordinary 

meaning of the language is clear. Id. 

 The statutory basis of OV 3 is MCL 777.33, which provides that the variable is scored 

when there is “physical injury to a victim.” MCL 777.33(1). Ten points shall be assessed if 

“[b]odily injury requiring medical treatment occurred to a victim”; five points shall be assessed if 

“[b]odily injury not requiring medical treatment occurred to a victim”; and zero points shall be 

assessed if “[n]o physical injury occurred to a victim.” MCL 777.33(1)(d)-(f). However, the 

trial court should not assess five points for OV 3 “if bodily injury is an element of the sentencing 

offense.” MCL 777.33(2)(d). This Court has interpreted “bodily injury” as “anything that the 

victim would, under the circumstances, perceive as some unwanted physically damaging 

consequence.” People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011). 

Accordingly, this Court concluded that an infection that was a consequence of a rape, id., and a 

pregnancy that resulted from a defendant’s criminal sexual conduct, People v Cathey, 261 Mich 

App 506, 514; 681 NW2d 661 (2004), were bodily injuries. Id. The statute defines the meaning 

of “requiring medical treatment,” stating that the phrase “refers to the necessity for treatment and 

not the victim’s success in obtaining treatment.” MCL 777.33(3). 

 Defendant argues that the trial court improperly assessed OV 3 at 10 points because the 

victim never complained of physical injury, never needed or sought medical treatment, and was 

only referred to the hospital by the police to receive a rape kit and DNA testing, which was not 

medical treatment. The lower court record does not contain any evidence that the victim 

experienced pain or physical damage (such as sustaining bruises or scratches), contracted an 

STD, or became pregnant as a result of defendant’s conduct. However, the record below 

indicates that the victim received antibiotics and Plan B, a medication used to prevent pregnancy, 

when she went to the First Step location after the incident. This was precisely the same type of 

treatment addressed by this Court in McDonald, 293 Mich App at 298, and Cathey, 261 Mich at 

514. Hence, because the trial court record supports the conclusion that the victim received 

medical treatment, i.e., the provision of antibiotics, in order to address or prevent a bodily injury 

immediately after the incident occurred, and Plan B, a medication used to prevent pregnancy, 10 

points were properly accessed. Accordingly, defendant is not entitled to relief on this issue. 
-4- 

IV. SENTENCING DISCRETION. 

 Next, defendant argues that he is entitled to resentencing because the trial court failed to 

recognize its discretion, based on a mistake of law, that it could sentence defendant to jail instead 

of prison. At sentencing, defense counsel responded in the following manner to the trial court’s 

questions regarding whether prison time was mandatory for a CSC III conviction: 

THE COURT: Is there a mandatory prison time on this? 

[DEFENSE COUNSEL]: There is. 

[PROSECUTOR]: Yes, your Honor. 

THE COURT: Where is that? 

[PROSECUTOR]: I’m sorry. 

THE COURT: Where is that in the statute? 

[PROSECUTOR]: You know what, your Honor . . . I don’t have it, but . . . 

I know first and third are mandatory prison. 

[DEFENSE COUNSEL]: It’s man -- yeah. That’s correct. I’m not gonna 

argue. That is correct. 

THE COURT: Mandatory any [sic] prison time. 

[PROSECUTOR]: No. Mandatory prison [sic] within the guidelines. 

[DEFENSE COUNSEL]: Yes. 

THE COURT: Within the guidelines, okay. 

It is clear that defense counsel’s statements on the record expressly approved the trial 

court’s erroneous conclusion that prison time was mandatory for defendant’s CSC III conviction. 

 While such a statement may constitute waiver of appellate review of this issue, People v 

Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999), quoting United States v Olano, 507 US 

725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993) (internal quotation marks omitted), it is 

apparent that trial counsel’s statement was an inaccurate statement of law, thus implicating that 

defendant was deprived of effective assistance of counsel. However, rather than remand to the 

trial court on this issue, the record is sufficient for this Court to make a proper determination as 

to whether the trial court exercised its discretion when sentencing defendant. We therefore 

consider the issue preserved. 

“This Court reviews a trial court’s sentencing decisions for an abuse of discretion.” 

People v Sexton, 250 Mich App 211, 227; 646 NW2d 875 (2002). On appeal, defendant argues 

that he is entitled to resentencing because the court made a mistake of law by failing to recognize 

that it had the discretion to sentence him to jail instead of prison based on the minimum range 
-5- 

recommended by the sentencing guidelines, such that prison was not mandatory for his CSC III 

conviction. Defendant cites People v Mauch, 23 Mich App 723; 179 NW2d 184 (1970), in 

support of his claim. In Mauch, this Court remanded the case for resentencing because the trial 

court failed to exercise its discretion in setting the maximum sentence for the defendant’s third 

felony conviction based on its erroneous belief that the sentence enhancement established under 

MCL 769.11 was mandatory. Mauch, 23 Mich App at 730. Defendant also cites People v 

Daniels, 69 Mich App 345, 347-350; 244 NW2d 472 (1976), in which this Court held that 

resentencing was required due to the trial court’s erroneous conclusion, based on its 

interpretation of Michigan law and an interstate compact, that it did not have the discretion to 

impose a sentence concurrent with a sentence imposed by an Ohio court. More recently, this 

Court articulated the following general rule: “[A] defendant is entitled to resentencing where a 

sentencing court fails to exercise its discretion because of a mistaken belief in the law.” Sexton, 

250 Mich at 228 (internal quotation marks and citation omitted). 

 At sentencing, the prosecutor and defense counsel agreed that prison time was mandatory 

for a CSC III conviction, and the trial court ultimately agreed with counsel after reviewing MCL 

771.1(1) at the suggestion of the prosecutor. Defendant is correct that the plain language of 

MCL 771.1(1) does not require a prison sentence for a CSC III conviction. Instead, the statute 

provides that a court may not place a defendant convicted of CSC III on probation: 

In all prosecutions for felonies, misdemeanors, or ordinance violations other than

murder, treason, criminal sexual conduct in the first or third degree, armed 

robbery, or major controlled substance offenses, if the defendant has been found 

guilty upon verdict or plea and the court determines that the defendant is not 

likely again to engage in an offensive or criminal course of conduct and that the 

public good does not require that the defendant suffer the penalty imposed by law, 

the court may place the defendant on probation under the charge and supervision 

of a probation officer. [MCL 771.1(1) (emphasis added).] 

 However, it appears that the trial court did have the discretion to sentence defendant to 

jail instead of prison because the minimum range recommended by the sentencing guidelines (12 

to 20 months) was within a straddle cell. In relevant part, MCL 769.34 provides: 

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

* * * 

(c) If the upper limit of the recommended minimum sentence exceeds 18 months 

and the lower limit of the recommended minimum sentence is 12 months or less, 

the court shall sentence the offender as follows absent a departure: 

(i) To imprisonment with a minimum term within that range. 

(ii) To an intermediate sanction that may include a term of imprisonment 

of not more than 12 months. [MCL 769.34(4)(c)]. 

“Intermediate sanction” is defined as “probation or any sanction, other than imprisonment in a 

state prison or state reformatory, that may lawfully be imposed.” MCL 769.31(b). The 
-6- 

nonexclusive list of intermediate sanctions provided by the statute expressly includes both 

probation and jail. MCL 769.31(b)(i)-(xv). Thus, the trial court did have the discretion to 

sentence defendant to jail or prison under MCL 769.34(4)(c)(ii) even though the trial court was 

prohibited from imposing probation for defendant’s CSC III conviction pursuant to MCL 

771.1(1). 

 However, contrary to defendant’s arguments, the trial court did indicate it was using its 

discretion when it sentenced defendant to prison. Following a discussion of whether prison was 

mandated, the trial court stated that that it “ . . . would probably be inclined to [impose a prison 

sentence] anyway even if it weren’t for the statute mandating it.” Thus, even though the trial 

court was acting under the impression that it did not have the discretion to sentence defendant to 

jail in lieu of prison, the trial court clearly indicated that even if prison were not mandated, it 

would so sentence defendant. Furthermore, the minimum sentence imposed by the trial court, 

i.e., one year imprisonment, was within the minimum range recommended by the sentencing 

guidelines, i.e., 12 to 20 months, and defendant has not established that the trial court incorrectly 

scored the sentencing guidelines or that the trial court relied on inaccurate information in 

determining defendant’s sentence, since the trial court indicated that it was inclined to impose a 

prison term regardless of whether such a sentence was required by statute. MCL 769.34(10). 

Thus, we affirm defendant’s sentence of 1 to 15 years’ imprisonment. 

IV. SUFFICIENCY OF THE EVIDENCE 

 Next, defendant contends that there was insufficient evidence at trial to support his CSC 

III conviction. When a defendant challenges the sufficiency of the evidence on appeal, the trial 

court record is reviewed de novo. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 

(2011). This Court must determine whether a reasonable trier of fact could have found that the 

prosecution proved the essential elements of the crime beyond a reasonable doubt, reviewing the 

evidence in the light most favorable to the prosecution. Id. 

 “[A] person is guilty of CSC III if [(1)] he or she engages in sexual penetration [(2)] with 

another person [(3)] whom he or she knew or had reason to know was mentally incapable, 

mentally incapacitated, or physically helpless.” People v Cox, 268 Mich App 440, 443; 709 

NW2d 152 (2005), citing MCL 750.520d(1)(c). Under MCL 750.520a, “‘Physically helpless’ 

means that a person is unconscious, asleep, or for any other reason is physically unable to 

communicate unwillingness to an act.” MCL 750.520a(m). It is clear from the record, and 

neither party disputes, that defendant engaged in sexual penetration with the victim, which 

establishes the first and second elements of the offense. However, defendant argues that the 

prosecution failed to establish the third element of the offense, that the alleged victim was 

physically helpless, because the evidence at trial demonstrated that “[the victim] was awake, able 

to communicate, able to express her thoughts and feelings, and by her actions and willingness to 

have sexual intercourse, . . . voluntarily engaged in the sexual act.” 

 Sufficient evidence exists for a reasonable fact-finder to conclude that defendant knew or 

should have known that the alleged victim was physically helpless when the penetration 

occurred. MCL 750.520d(1)(c); Cox, 268 Mich App at 443. Circumstantial evidence and 

reasonable inferences arising from the evidence presented can provide sufficient evidence to 

establish the elements of a crime. People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 
-7- 

(2013). At trial, the alleged victim testified that when she woke up on the couch, she discovered 

that her pants were pulled down to her ankles and a man’s penis was inside her vagina, providing 

direct evidence that she was, in fact, asleep when the penetration occurred. Further, the alleged 

victim testified that, after drinking and smoking marijuana, she did not remember moving from 

the backyard to the couch inside the residence, suggesting that she remained deeply asleep or 

inert throughout the evening and would not have appeared awake even if defendant actually 

attempted to wake her up. The alleged victim’s boyfriend also confirmed that the alleged victim 

was either “out of it” or sleeping for much of the evening and was consistently groggy or 

unresponsive when anyone tried to move her or wake her. Additionally, her boyfriend testified 

that she did not say anything or respond at all when he shook her a few times and called her 

name repeatedly before he went to bed in the next room, which was assumedly a short time 

before defendant claims to have brought pillows and blankets to the victim immediately prior to 

the intercourse. Given the victim’s testimony and the other witnesses’ awareness of the alleged 

victim’s physical condition that evening, a reasonable fact-finder could infer from the evidence 

that defendant knew or had reason to know that she was asleep, and therefore physically helpless 

under the statutory definition, when the penetration occurred. MCL 750.520d(1)(c); Cox, 268 

Mich App at 443. 

 Contrary to the alleged victim’s testimony, defendant testified that the victim was awake, 

aware, and able to communicate when the penetration occurred because he woke her up in order 

to move her legs back onto the couch; she motioned for defendant to come down onto the couch; 

she pulled down her pants herself; she actively participated in the sexual intercourse; and she 

never expressed that she did not want to participate in the act, even though she did not speak to 

defendant during or after the incident. However, despite this conflicting testimony, “[t]his Court 

will not interfere with the trier of fact’s role of determining the weight of the evidence or the 

credibility of witnesses.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). In 

fact, the trial court explicitly stated on the record the reasons why he found the victim’s 

testimony to be more credible than defendant’s testimony. Therefore, given the testimony in the 

lower court record, there is sufficient evidence, when viewed in the light most favorable to the 

prosecution, for a reasonable trier of fact to determine that the prosecutor proved the elements of 

CSC III beyond a reasonable doubt. Meissner, 294 Mich App at 452. 

 Affirmed, but remanded for the ministerial task of amending the PSIR. We do not retain 

jurisdiction. 

/s/ Peter D. O’Connell 

/s/ Stephen L. Borrello 

/s/ Elizabeth L. Gleicher