Background
James Kenneth Teddy, Jr. was convicted by a jury of second-degree criminal sexual conduct for sexually touching his seven-year-old niece while she slept at his apartment in 2018. The victim testified that Teddy repeatedly approached the couch, touched her vagina over her underwear, retreated to the bathroom when she reacted, and then returned, for a total of five or six touchings. She reported the incident in 2024.
At trial, Teddy’s wife testified that she had slept in the living room and that, from her perspective, Teddy could not have touched the victim. Another family member testified about disputes within the family and Teddy’s request for information he could use against the victim’s mother or grandmother. After the jury convicted Teddy, the trial court sentenced him to 2 to 15 years in prison and lifetime electronic monitoring. In calculating the guidelines, 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 held that the prosecutor did not improperly elicit an opinion about the victim’s credibility from the family member, shift the burden of proof during closing argument, or improperly vouch for the victim. Because the challenged testimony and arguments were not improper, defense counsel was not ineffective for failing to object.
The court also rejected Teddy’s constitutional challenges to lifetime electronic monitoring. Binding Michigan precedent established that imposing such monitoring for CSC-II involving a child under 13 was neither cruel or unusual punishment nor an unreasonable search, and Teddy did not identify a 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 had relied on all of them collectively to prove the sexual purpose required for the single charged CSC-II offense and did not identify one touching as the sentencing offense while treating the others as separate acts. The same touchings therefore could not also support 25 points for contemporaneous felonious acts. Removing those points lowered Teddy’s recommended minimum guidelines range from 19 to 38 months to 10 to 19 months, requiring resentencing.
Key Takeaways
- A prosecutor may compare conflicting accounts 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 claimed special knowledge.
- Under binding Michigan precedent, lifetime electronic monitoring for CSC-II involving a victim under 13 is not cruel or unusual punishment or an unreasonable search absent a legally relevant basis for distinguishing that precedent.
- For OV 12, distinct criminal acts cannot be scored as contemporaneous felonious acts when the prosecution relied on those same acts collectively to establish the single sentencing offense.
Why It Matters
The decision underscores that OV 12 turns not merely on whether conduct can be divided into separate acts, but on whether those acts are separable from the sentencing offense as the case was charged and argued. When the prosecution uses multiple acts collectively to prove an element of one count, those acts generally cannot be reused to increase the guidelines score under OV 12.
The opinion also illustrates the continuing force of Michigan precedent upholding lifetime electronic monitoring for offenders convicted of CSC-II against children under 13.