Background
LTJ Udell was convicted by a jury of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct based on the victim’s testimony about four incidents of sexual abuse committed while the victim was under 13. The victim testified that Udell placed his mouth on the victim’s penis at a home, pressed his penis against the victim’s buttocks through their clothing, had the victim perform oral sex in a storage unit, and rubbed the victim’s penis while they traveled in a vehicle.
The circuit court sentenced Udell as a third-offense habitual offender to concurrent terms of 25 to 50 years for each first-degree conviction and 19 months to 30 years for each second-degree conviction. After a posttrial evidentiary hearing, the court rejected Udell’s claims that trial counsel was ineffective. Udell appealed his convictions and sentences.
The Court’s Holding
The Court of Appeals affirmed all four convictions. It held that the victim’s testimony that Udell “put his mouth on” the victim’s penis, considered in context and in the light most favorable to the prosecution, permitted a rational juror to infer the slight oral penetration required for first-degree criminal sexual conduct. The court also rejected Udell’s venue challenges because he failed to raise them before the case went to the jury and could not show prejudice from counsel’s failure to object; the evidence supported findings that the storage-unit and vehicle offenses occurred in Muskegon County.
The court rejected each ineffective-assistance claim, concluding that counsel’s challenged decisions were reasonable trial strategy or caused no prejudice. Although the public defender’s office had previously served as the victim’s guardian ad litem, Udell did not show that the apparent conflict adversely affected counsel’s performance.
The court held that the circuit court incorrectly assessed 50 points under Offense Variable 11 because the penetrations underlying the two first-degree convictions occurred during separate incidents, and the penetration forming the basis of a first-degree conviction could not itself be scored. The error did not require resentencing on those convictions because each carried a mandatory 25-year minimum. But because the record did not show whether the second-degree sentences rested on the erroneous scoring, the court vacated those sentences and remanded for new sentencing information reports, correction of the presentence investigation report, and resentencing on the second-degree counts.
Key Takeaways
- A victim’s description that a defendant put his mouth “on” a penis may support an inference of oral penetration when the testimony’s context reasonably indicates that the mouth went over or around the penis.
- An apparent conflict arising from a public defender office’s prior representation of the victim does not establish ineffective assistance without proof that the conflict adversely affected counsel’s performance.
- Separate penetrations occurring at different times and locations do not arise out of the same sentencing offense for purposes of scoring OV 11.
Why It Matters
The decision illustrates the contextual and prosecution-favorable analysis applied to sufficiency challenges involving testimony about sexual penetration. It also emphasizes that ineffective-assistance relief requires more than identifying questionable strategic choices or a potential conflict; the defendant must satisfy the governing performance and prejudice standards or show an adverse effect from an actual conflict.
On sentencing, the opinion confirms that an OV 11 error must still be corrected even when a statutory mandatory minimum makes the error harmless as to the highest-class convictions. When the record does not permit an appellate court to determine whether lower-class concurrent sentences were based on inaccurate scoring, those sentences may require vacatur and resentencing.