STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 24, 2017
               Plaintiff-Appellee,

v                                                                   No. 328661
                                                                    Wayne Circuit Court
KEITH PAUL BROOKS,                                                  LC No. 07-006594-01-FC

               Defendant-Appellant.


Before: BECKERING, P.J., and SAWYER and SAAD, JJ.

PER CURIAM.

        Defendant was convicted by a jury of first-degree criminal sexual conduct (CSC-1), MCL
750.520b. The trial court sentenced defendant to 15 to 25 years’ imprisonment with credit for
290 days served. Defendant appeals as of right, contending that there was insufficient evidence
to support his conviction and that his sentence was improper. We affirm defendant’s conviction
but remand pursuant to People v Lockridge, 498 Mich. 358; 870 NW2d 502 (2015), and United
States v Crosby, 397 F3d 103 (CA 2, 2005).

        The victim testified that over the 2004 Labor Day weekend, she slept over one night at
defendant’s home. She claimed that while she was sleeping on the floor, defendant entered the
room, pulled down her pants, and touched and rubbed in between the lips of her vagina for
approximately five minutes.1 Defendant denied that he entered the bedroom or that he touched
the victim’s vagina with his fingers.

        Defendant first contends that there was insufficient evidence to support his CSC-1
conviction and that he was therefore deprived of due process. Defendant moved for a directed
verdict at the conclusion of the prosecution’s case, but he did not have to take any special action
to preserve his challenge to the sufficiency of the evidence on appeal. People v Patterson, 428
Mich. 502, 514; 410 NW2d 733 (1987); People v Cain, 238 Mich. App. 95, 116-117; 605 NW2d
28 (1999).



1
  The victim also claimed that defendant touched her vaginal area with his penis, but the jury
acquitted defendant of a separate charge for this alleged conduct.


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     In People v Henderson, 306 Mich. App. 1, 8-9; 854 NW2d 234 (2014), this Court
summarized:

       Appeals regarding the sufficiency of the evidence are reviewed de novo. People v
       Lueth, 253 Mich. App. 670, 680; 660 NW2d 322 (2002). In reviewing the
       sufficiency of the evidence, this Court must view the evidence in the light most
       favorable to the prosecution and determine whether a rational trier of fact could
       find that the essential elements of the crime were proved beyond a reasonable
       doubt. People v Reese, 491 Mich. 127, 139; 815 NW2d 85 (2012). Juries, and not
       appellate courts, hear the testimony of witnesses; therefore, we defer to the
       credibility assessments made by a jury. People v Wolfe, 440 Mich. 508, 514-515;
       489 NW2d 748 (1992). “It is for the trier of fact . . . to determine what inferences
       may be fairly drawn from the evidence and to determine the weight to be
       accorded those inferences.” People v Hardiman, 466 Mich. 417, 428; 646 NW2d
       158 (2002). The prosecution need not negate every reasonable theory of
       innocence, but need only prove the elements of the crime in the face of whatever
       contradictory evidence is provided by the defendant. People v Nowak, 462 Mich.
392, 400; 614 NW2d 78 (2000). Circumstantial evidence and the reasonable
       inferences that arise from that evidence can constitute satisfactory proof of the
       elements of the crime. Carines, 460 Mich. at 757. We resolve all conflicts in the
       evidence in favor of the prosecution. People v Kanaan, 278 Mich. App. 594, 619;
       751 NW2d 57 (2008).


       The only element of first-degree CSC in the context of this case that defendant disputes is
sexual penetration by the defendant of another person. MCL 750.520b. “Sexual penetration”
means, in the context of this case, “any . . . intrusion, however slight, of any part of a person’s
body . . . into the genital . . . openings of another person’s body. . . .” MCL 750.520a(r).
Penetration includes “any intrusion, however slight, into the vagina or the labia majora.” People
v Lockett, 295 Mich. App. 165, 188; 814 NW2d 295 (2012). The victim testified that defendant
touched and rubbed in between the lips of her vagina, while defendant disputed any
inappropriate touching.

        On appeal, defendant lists many inconsistencies in the victim’s testimony and insists that,
given these inconsistencies, her testimony was inherently incredible and the jury was not
justified in accepting it.2 However, those inconsistencies were the subject of defendant’s cross-



2
  We note that, in addition to pointing out the inconsistencies in the victim’s testimony and
pointing out the lack of physical evidence, defendant also points out that the victim testified that
she told three people about the assaults, one of her cousins, a friend, and her brother, but that
none of these people testified. But since defendant did not dispute that the victim made
statements to these people and did not dispute the content of her statements, there was no basis
upon which the prosecution could have presented testimony of the victim’s prior consistent
statements to these witnesses. The most that the prosecutor could have done was present these


                                                -2-
examination and they ultimately involved jury determinations of the victim’s credibility;
accordingly, this Court may not revisit them. “All conflicts in the evidence must be resolved in
favor of the prosecution and we will not interfere with the jury’s determination regarding the
weight of the evidence and the credibility of the witnesses.” People v Unger, 278 Mich. App.
210, 222; 749 NW2d 272 (2008), citing People v McRunels, 237 Mich. App. 168, 181; 603 NW2d
95 (1999). Assuming, as this Court must, that the jury believed the victim was credible when she
gave her account of defendant’s sexual assault, there was sufficient evidence presented to
support defendant’s conviction.3 Accordingly, there was no due process violation.

        Furthermore, we would note that one of the bases for the trial court’s grant of defendant’s
original motion for a new trial was the court’s determination that the great weight of the evidence
weighed against defendant’s conviction, and this Court reversed the trial court’s determination.4
In our opinion in that appeal, we listed and considered at length defendant’s claims that the
victim’s testimony was too inconsistent and unbelievable to support his conviction. We rejected
defendant’s great weight of the evidence claim in the prior appeal, and have been provided with
no basis upon which to revisit or overturn the decision regarding the victim’s testimony based on
an insufficiency of the evidence claim that essentially tracks the earlier great weight claim.5

witnesses to testify that the victim had made statements to them, but without eliciting the content
of the statements.
3
  We note that it was entirely possible for the jury to convict defendant of the penetration
involving his finger while acquitting him of the penetration involving his penis. The jury could
have concluded that the victim’s account of the second penetration was merely a second
penetration by defendant with his fingers because, while she believed it was his penis, she never
saw what was penetrating her. It is also possible that the jurors could have concluded that the
victim’s description did not satisfy their understanding of what was required for a penetration, or
that the jurors concluded that a penetration did not occur.
4
 People v Brooks, unpublished opinion per curiam of the Court of Appeals, issued July 24, 2008
(Docket No. 281487).
5
    In relevant part, we concluded as follows:
                  With each of defendant’s four claimed instances of inconsistent testimony,
          the jurors had the discretion to determine whether they believed that the testimony
          was inconsistent and how to weigh it in assessing the victim’s credibility.
          Although it would have been plausible for the jury to conclude, based on the
          above sequences, that the victim was not a credible witness, it was also plausible
          for the jury to consider these minor discrepancies and to nevertheless find her
          credible. “[T]he hurdle a judge must clear to overrule a jury is unquestionably
          among the highest in our law. It is to be approached by the court with great
          trepidation and reserve, with all presumptions running against its invocation.”
          [People v] Lemmon, [456 Mich. 625,] 639[; 576 NW2d 129 (1998)], quoting
          People v Bart (On Remand), 220 Mich. App. 1, 12; 558 NW2d 449 (1996). The
          claimed inconsistencies do not rise to the level required for a trial court to
          overrule a jury’s credibility determination.



                                                  -3-
Therefore, we find that there was sufficient evidence to support the jury’s decision to convict
defendant of CSC-1 and we affirm that conviction.

        Defendant also claims that the trial court engaged in judicial fact-finding in scoring
offense variable (OV) 11, that this violated his right to a jury trial as guaranteed by the Sixth and
Fourteenth Amendments of the United States Constitution, and that he is accordingly entitled to
a remand to give the trial court an opportunity to either resentence him or to affirm his sentence.
The prosecutor concedes that, under Lockridge, 498 Mich. 358, defendant is entitled to the so-
called Crosby remand.

        We affirm defendant’s conviction but remand pursuant to Lockridge and Crosby. We do
not retain jurisdiction.



                                                              /s/ Jane M. Beckering
                                                              /s/ David H. Sawyer
                                                              /s/ Henry William Saad




                                              * * *

               The trial court was not permitted to grant a new trial based on mere
       disagreement with the jury’s assessment of witness credibility, [People v Unger,
       278 Mich. App. 210, 222, 228-229; 749 NW2d 272 (2008)], and there were no
       “exceptional circumstances” in this case to justify granting a new trial on the
       grounds of witness credibility, Lemmon, supra at 642. The victim’s testimony did
       not “contradict physical facts” and was not “patently incredible” or “so inherently
       implausible that it could not be believed by a reasonable jury,” nor was it
       “seriously impeached” in a “case marked by uncertainties and discrepancies.” Id.
       at 643-644. The jury’s verdict was not against the great weight of the evidence
       and the trial court abused its discretion in granting defendant a new trial on this
       basis. [People v Brooks, unpub op at 8-9.]



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