Background
LTJ Udell was convicted after a jury trial of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct involving a victim younger than 13. The victim testified that Udell sexually abused him on four occasions at a home, a storage unit, and in a vehicle. The trial court sentenced Udell as a third-offense habitual offender to concurrent terms of 25 to 50 years for each CSC-I conviction and 19 months to 30 years for each CSC-II conviction.
Udell challenged the sufficiency of the evidence supporting penetration and venue and raised several ineffective-assistance claims concerning defense counsel’s questioning, an asserted conflict arising from the public defender office’s prior representation of the victim, evidentiary decisions, hearsay, closing argument, and forensic-interview testimony. He also challenged the trial court’s assessment of 50 points under Offense Variable 11, which addresses criminal sexual penetrations.
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 penetration, however slight. The evidence also permitted a finding that the storage-unit and vehicle offenses occurred in Muskegon County. The court rejected the ineffective-assistance claims because counsel’s challenged actions generally reflected reasonable trial strategy, any assumed conflict was not shown to have adversely affected counsel’s performance, and Udell failed to establish outcome-determinative prejudice.
The court held that the trial court erred by assigning 50 points to OV 11 based on the penetrations underlying the two separate CSC-I convictions. Because the penetration forming the basis of a CSC-I conviction cannot itself be scored under OV 11, and the separate incidents did not arise from one another, OV 11 should have received zero points for Count 2. The error did not require resentencing on the CSC-I counts because each carried a mandatory 25-year minimum, but the sentencing records and presentence investigation report required correction. Because the record did not reveal whether the CSC-II sentences rested on the erroneous scoring, the court vacated those sentences and remanded for sentencing information reports and resentencing.
Key Takeaways
- A victim’s description that a defendant put his mouth “on” the victim’s penis can support an inference of oral penetration when the testimony is considered in context and under the prosecution-favorable sufficiency standard.
- An assumed conflict arising from a public defender office’s prior representation does not warrant relief without proof that the conflict adversely affected defense counsel’s performance.
- OV 11 cannot include the penetration forming the basis of the scored CSC-I conviction, and penetrations occurring during separate incidents at different times and locations do not arise out of one another merely because they involve the same offender and victim.
Why It Matters
The decision illustrates how contextual testimony can satisfy Michigan’s “intrusion, however slight” requirement even when a child victim does not use precise anatomical language. It also reinforces the deference afforded to counsel’s strategic decisions under the ineffective-assistance standard.
On sentencing, the opinion emphasizes that courts must accurately score each offense in the highest applicable crime class and must provide sufficient records to show the basis for other sentences. Even concurrent sentences that are subsumed by longer terms remain subject to correction when they may rest on inaccurate information.