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 arising from the sexual abuse of a child under age 13. The victim testified that Udell committed four acts at a home, a storage unit, and in a vehicle. Udell’s defense sought to show that he lacked the opportunity to commit the offenses and challenged the victim’s credibility.
The trial 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 had been ineffective.
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 penetration required for first-degree criminal sexual conduct. The court also concluded that sufficient evidence placed the storage-unit and vehicle offenses in Muskegon County.
The court rejected Udell’s ineffective-assistance claims, concluding that counsel’s challenged decisions were reasonable strategic choices or caused no prejudice. Those claims concerned questioning about an uncharged act, a potential conflict arising from the public defender office’s prior representation of the victim, medical and mental-health evidence, erectile-dysfunction evidence, hearsay, closing argument, and testimony about forensic interviews.
The trial court nevertheless erred by assigning 50 points to offense variable 11 based on penetrations underlying separate first-degree offenses. 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 two second-degree sentences rested on the erroneous scoring, the appellate 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 placed his mouth “on” the victim’s penis can support an inference of oral penetration when the testimony’s context reasonably conveys that the mouth went over or around the penis.
- Udell failed to establish ineffective assistance because counsel’s principal choices reflected a deliberate credibility-and-opportunity defense, and any assumed errors were not shown to have affected the verdict.
- Separate penetrations occurring during different incidents cannot be combined under offense variable 11 merely because they involved the same offender and victim.
Why It Matters
The opinion illustrates how context can distinguish testimony supporting an inference of penetration from testimony describing only external contact. It also reinforces the substantial deference given to defense counsel’s strategic decisions when evaluating ineffective-assistance claims.
The sentencing ruling underscores that courts must accurately score each highest-class offense and ensure that presentence materials sent to correctional authorities are correct. Even concurrent, shorter sentences remain subject to correction when the record does not establish that they were calculated independently of a scoring error.