Background
A jury convicted LTJ Udell of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct based on a child victim’s testimony describing four incidents of sexual abuse. The trial court sentenced Udell as a third-offense habitual offender to 25 to 50 years for each first-degree conviction and 19 months to 30 years for each second-degree conviction.
After a posttrial Ginther hearing, the trial court rejected Udell’s claims of ineffective assistance. On appeal, Udell challenged the evidence of penetration and venue, asserted several deficiencies in defense counsel’s performance, and disputed the scoring of offense variable 11.
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 under the prosecution-favorable sufficiency standard, permitted a rational jury to infer penetration, however slight. The evidence also supported venue in Muskegon County for the storage-unit and vehicle offenses. Udell’s ineffective-assistance claims failed because counsel’s challenged decisions were reasonable trial strategies, futile objections were unnecessary, or Udell did not establish prejudice. Although the public defender’s office apparently should not have represented Udell after previously serving as the victim’s guardian ad litem, Udell did not show that the assumed conflict adversely affected counsel’s performance.
The court held that the trial court improperly assessed 50 points under OV 11 because the separate penetrations underlying the two first-degree convictions did not arise from the same sentencing offense, and the penetration forming the basis of a first-degree conviction could not itself be scored. The error did not require resentencing on the first-degree counts because each carried a mandatory 25-year minimum. But the court ordered correction and completion of the sentencing information reports and presentence investigation report. Because the record did not reveal whether the second-degree sentences rested on the erroneous scoring, the court vacated those sentences and remanded for new sentencing information reports and resentencing.
Key Takeaways
- A child victim’s testimony that a defendant put his mouth “on” the victim’s penis may support an inference of slight oral penetration when the testimony’s context reasonably conveys that the mouth was placed over or around the penis.
- An assumed 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 sexual penetrations occurring on different occasions and at different locations cannot be combined under OV 11 merely because they involved the same offender and victim.
Why It Matters
The decision illustrates how Michigan courts apply a prosecution-favorable sufficiency standard to a child’s nontechnical description of sexual penetration while still requiring contextual evidence supporting more than external contact. It also emphasizes that conflict-of-interest claims require a demonstrated adverse effect, not merely an apparent ethical conflict.
For sentencing, the opinion reinforces that each highest-class offense must be scored separately and that defendants and corrections officials are entitled to accurate sentencing records even when a mandatory minimum makes a scoring error harmless as to the sentence imposed. Concurrent lesser sentences may still require correction when the record does not show whether they were based on inaccurate guidelines information.