Background
James Kenneth Teddy, Jr. was convicted by a jury of second-degree criminal sexual conduct involving a victim under age 13. The victim testified that, while staying overnight at Teddy’s apartment in 2018, she awoke as he touched her vagina over her underwear. She said he retreated to the bathroom whenever she reacted and then returned to touch her again, repeating that pattern five or six times.
The victim reported the incident in 2024. At trial, Teddy’s wife testified that she had slept in the living room that night and believed Teddy could not have touched the victim. The jury convicted Teddy, and the trial court sentenced him to 2 to 15 years in prison and lifetime electronic monitoring. In calculating the sentencing-guidelines range, the court assessed 25 points under Offense Variable 12 for three or more contemporaneous felonious acts against a person.
The Court’s Holding
The Court of Appeals affirmed Teddy’s conviction. It found no plain prosecutorial error in testimony about family disputes because the witness did not express an opinion about the victim’s truthfulness or Teddy’s guilt. The prosecutor’s closing argument also neither shifted the burden of proof nor improperly vouched for the victim; it permissibly asked the jury to resolve conflicting testimony and argued from the evidence that the victim was credible. Because the challenged conduct was not improper, counsel was not ineffective for failing to object.
The court also rejected Teddy’s constitutional challenges to lifetime electronic monitoring. Binding Michigan precedent establishes that monitoring a person convicted of second-degree criminal sexual conduct against a child under 13 is neither cruel or unusual punishment nor an unreasonable search, and Teddy offered no legally relevant basis for distinguishing that precedent.
The court nevertheless vacated Teddy’s sentence because OV 12 was incorrectly scored. Although the repeated touchings were distinct acts, the prosecution relied on all of them collectively to prove the sexual purpose required for the single charged offense and did not identify one touching as the sentencing offense while treating the others as separate acts. The same conduct therefore could not also support 25 points under OV 12. Removing those points reduced the minimum guidelines range from 19-to-38 months to 10-to-19 months, requiring resentencing.
Key Takeaways
- A prosecutor may argue that one witness is more credible than another when guilt depends on conflicting accounts, provided the argument rests on the evidence rather than claimed special knowledge.
- Binding Michigan precedent permits lifetime electronic monitoring for a person convicted of second-degree criminal sexual conduct against a child under 13.
- Distinct acts cannot be scored under OV 12 when the prosecution relied on those acts collectively to establish the single sentencing offense.
Why It Matters
The decision underscores that OV 12 scoring turns not merely on whether conduct can be divided into separate physical acts, but on whether those acts are distinguishable from the sentencing offense as charged and argued. When the prosecution uses multiple acts collectively to prove an element of one count, it cannot reuse those same acts as separate contemporaneous felonies to increase the guidelines range.
The ruling leaves Teddy’s conviction and lifetime-monitoring requirement intact but requires the trial court to impose a new sentence using the correctly calculated guidelines range.