Background
A jury convicted James Kenneth Teddy Jr. of second-degree criminal sexual conduct for touching his seven-year-old niece’s vagina over her underwear. The victim testified that Teddy repeatedly approached and touched her while she slept on a couch during an overnight stay in 2018, retreating to the bathroom after she reacted and then returning five or six times. She reported the incident in 2024.
At trial, Teddy’s wife testified that she had slept in the living room and believed the touching could not have occurred. Another family member testified about disputes among the victim’s relatives and Teddy’s request for information he could use against the victim’s mother or grandmother. The trial court sentenced Teddy to 2 to 15 years in prison and lifetime electronic monitoring, scoring 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 held that the prosecutor did not improperly elicit an opinion about the victim’s credibility, shift the burden of proof, or vouch for the victim during closing argument. Because the challenged testimony and argument were not improper, defense counsel was not ineffective for declining to object.
The court also rejected Teddy’s constitutional challenges to lifetime electronic monitoring. Binding Michigan precedent established 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 identified no legally relevant basis for distinguishing his circumstances.
The court nevertheless vacated the 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 and the others as separate acts. The touchings therefore could not also support 25 points for contemporaneous felonious acts. Removing those points reduced the recommended minimum sentencing range from 19–38 months to 10–19 months, requiring resentencing.
Key Takeaways
- A prosecutor may contrast conflicting testimony and argue that one witness is more credible without shifting the burden of proof or improperly vouching, so long as the argument rests on the evidence rather than special knowledge.
- Michigan precedent forecloses facially equivalent constitutional challenges to lifetime electronic monitoring for adults convicted of CSC-II involving victims under 13 absent a meaningful basis for distinguishing the defendant’s circumstances.
- Distinct criminal acts cannot be scored under OV 12 when the prosecution used those same acts collectively to establish the single sentencing offense and did not differentiate them at trial.
Why It Matters
The decision underscores that OV 12 depends not merely on whether conduct can be divided into separate acts, but on whether those acts are separable from the offense for which the defendant is being sentenced. Charging choices and the prosecution’s trial theory can therefore determine whether repeated conduct supports additional offense-variable points.
For appellate practitioners, the opinion also illustrates the difficulty of obtaining relief on unpreserved prosecutorial-error and constitutional claims, while confirming that an erroneous guidelines score requires resentencing when correcting it changes the applicable range.