Background
Troy David Holder, the victim’s stepfather and husband of her mother, repeatedly sexually assaulted a victim from approximately age 4 to 14. The assaults primarily occurred in the family home in Gerrish Township and involved digital penetration, touching of genitals and breasts, and forcing the victim to touch defendant’s penis. The victim testified that the abuse occurred on a weekly or more frequent basis, typically at night, while other family members slept in adjacent rooms.
In August 2021, the victim disclosed the abuse to friends and her boyfriend, and eventually told her mother. After initially delaying action, the victim’s mother left the family home with her children in late November 2021 and filed for divorce in December 2021. Defendant was convicted by jury of eight counts of criminal sexual conduct: two counts of first-degree CSC (CSC-I) involving a victim under 13, one count of CSC-I involving a victim ages 13-16 with defendant as household member, and four counts of second-degree CSC (CSC-II) involving victims under 13 and ages 13-16.
At resentencing in May 2025, the trial court assessed Offense Variable 11 (OV 11, measuring criminal sexual penetration) at 25 points for three of the CSC-II counts and imposed consecutive sentences for counts 1-5, 2-6, and 3-7, finding these offense pairs arose from the same transaction. Defendant appealed, arguing ineffective assistance of counsel, erroneous OV 11 scoring, and improper consecutive sentencing.
The Court’s Holding
The Michigan Court of Appeals affirmed all convictions but vacated the sentence and remanded for resentencing, finding two critical sentencing errors. First, the trial court improperly assessed OV 11 at 25 points for counts 5, 6, and 7. Under MCL 777.41, a court scores OV 11 based on sexual penetrations “arising out of the sentencing offense” and must not double-count a penetration that forms the basis of a first-degree CSC charge. The court found that count five could not have arisen from count one because the victim testified her sister was home during count five but absent during count one—establishing these were separate incidents. For count six, the victim testified no penetration occurred during the conduct forming count six (merely touching defendant’s penis), so count two could not have arisen from it. For count seven, the victim specifically testified only to touching the outer vagina without penetration, again preventing count three from arising from count seven. With OV 11 properly scored at zero points instead of 25, each count drops from OV Level VI to V, requiring resentencing.
Second, the trial court erred in imposing consecutive sentences for the offense pairs. Michigan law provides that consecutive sentences for CSC convictions may be imposed only when crimes arise from “the same transaction.” The court held that separate penetrations must occur in a “continuous time sequence” to constitute a single transaction; merely being part of a continuous course of conduct is insufficient. Because the victim’s testimony established that the offense pairs occurred at different times with different circumstances (sister present or absent, different ages, different types of contact), they were not part of the same transaction, and consecutive sentencing was improper.
Key Takeaways
- OV 11 scoring requires that alleged penetrations actually “arise out of” the charged conduct; courts cannot infer penetrations not testified to or rely on correlation between counts without factual support for a connective relationship.
- The “same transaction” standard for consecutive CSC sentences requires a continuous time sequence between offenses, not merely an ongoing course of conduct; separate incidents separated by time and circumstance cannot be consolidated.
- Trial counsel’s failure to cross-examine on specific physical characteristics (the victim’s failure to mention the defendant’s penial piercing) does not constitute ineffective assistance when the victim was never questioned about such characteristics and reasonable trial strategy may favor avoiding a bullying appearance with a young victim.
- Medical reports containing a victim’s disclosures of sexual abuse are properly admissible under MRE 803(4) when made within a reasonable timeframe of the abuse and necessary for diagnosis and treatment, including psychological trauma assessment.
Why It Matters
This decision clarifies important sentencing mechanics in CSC cases. Prosecutors and defense counsel must carefully track which penetrations form the basis of charged offenses versus which penetrations “arise out of” those offenses under MCL 777.41, as courts cannot assume penetrations occurred without explicit victim testimony. The ruling also reinforces that consecutive sentencing in CSC cases requires demonstrating a true continuous time sequence, not merely temporal proximity or a continuing pattern of abuse—a critical limitation on sentence enhancement through consecutive ordering.
The opinion further validates trial counsel’s strategic choices regarding cross-examination tone and scope, holding that avoiding appearance of bullying a young sexual abuse victim constitutes reasonable trial strategy. At the same time, the opinion criticizes counsel’s awareness of corroborating evidence (witness affidavits regarding the piercing) but failure to develop it at trial, suggesting that while trial strategy is broadly protected, awareness of available impeachment evidence creates heightened expectations for its deployment.