Opinion
360167
10-12-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANDREW THOMAS COWHY, Defendant-Appellant.
UNPUBLISHED
St. Clair Circuit Court LC No. 15-002000-FC
Before: MURRAY, P.J., and O'BRIEN and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals as of right his convictions and sentences, following a jury trial, of five counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), and five counts of second-degree criminal sexual conduct (CSC-II) MCL 750.520c(1)(a). The trial court sentenced defendant to prison terms of 25 to 50 years for four of the CSC-I convictions, 18 to 50 years for the other CSC-I conviction, and 10 to 15 years for each CSC-II conviction. The trial court ordered three of the 25-to-50-year CSC-I sentences to be served consecutively, and all other sentences to be served concurrently. We affirm.
I. BACKGROUND
Defendant's convictions arise from the sexual abuse of four of his nieces and nephews, AC, CC, AB, and JC. Another niece, KC, also testified that defendant sexually abused her as a child, but defendant was not charged with any offense involving KC, whose testimony was offered as other acts evidence under MRE 404(b)(1). The jury found that the abuse occurred between December 2005 and 2012, when defendant was over the age of 17 and all of the victims were under the age of 13.
After defendant was initially charged in 2015, he pleaded guilty to three counts of first-degree child abuse, MCL 750.136(b)(2), six counts of CSC-II, three counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d, and one count of accosting a minor for immoral purposes, MCL 750.145a. Defendant was sentenced in November 2015 to sentences of 10 to 15 years' imprisonment for each of his CSC-II and CSC-III convictions. He then unsuccessfully moved to withdraw his guilty plea, which resulted in an appeal to this Court. In that appeal, a panel of this Court held that defendant was entitled to withdraw his guilty plea "in its entirety" because he was convicted of first-degree child abuse under a version of the statute that took effect after the offenses were completed in violation of the Ex Post Facto Clause. People v Cowhy, unpublished per curiam opinion of the Court of Appeals, issued July 31, 2018 (Docket No. 334140), pp 5-7.
On remand, after the trial court advised defendant of the potential significant consequences of withdrawing his guilty plea-including that he could be subject to mandatory 25-year minimum sentences if convicted of CSC-I-defendant elected to withdraw his guilty plea.
Before the case was tried, the prosecution filed a motion requesting that it be allowed to admit at trial a redacted affidavit that defendant had submitted in support of his request to withdraw his guilty plea. In the affidavit, defendant claimed that the offenses that he pleaded guilty to all occurred when he was under the age of 17. The trial court ruled that the affidavit was inadmissible under MRE 410, which prompted the prosecutor to file an interlocutory application for leave to appeal. This Court ultimately granted leave and held that the trial court erred by excluding the affidavit under MRE 410, and further held that the redacted affidavit was not required to be excluded under MRE 403. People v Cowhy, 330 Mich.App. 453, 457; 948 N.W.2d 632 (2020).
The case proceeded to trial on five counts of CSC-I and five counts of CSC-II. At trial, the jury was presented with a verdict form that separately listed each of the charged counts along with the victim and conduct associated with each count. For each of the CSC-I counts, the verdict form provided the jury with the options of finding defendant not guilty, or guilty of alternative options of CSC-I. One alternative guilty option required the jury to find that defendant committed CSC-I of a person under the age of 13 while defendant was 17 years of age or older. That option further required the jury to find whether each offense was committed (1) between August 28, 2006 and 2012, or (2) between December 1, 2005 and August 27, 2006. The second alternative guilty option allowed the jury to find defendant guilty of CSC-I by finding that defendant committed the offense between December 1, 2002 and November 30, 2005. The jury found defendant guilty of five counts each of CSC-I and CSC-II. The verdict form reflects the following verdicts for the five CSC-I counts:
The significance of the August 28, 2006 date is that MCL 750.520b was amended by 2006 PA 165, effective August 28, 2006, to (1) require a mandatory 25-year minimum sentence for a violation committed by an individual 17 years of age or older against an individual less than 13 years of age, and (2) authorize a court to order a sentence imposed for CSC-I "to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction." See MCL 750.520b(2) and (3).
The significance of these dates is that defendant attained the age of 17 years old on December 1, 2005.
| Count | Victim | Charged Conduct | Verdict |
| Count 1 | AC | Oral/Penile Penetration | Guilty-offense committed between August 28, 2006 and 2012, victim under age 13, and defendant age 17 or older. |
| Count 2 | AC | Penile/Genital Penetration | Guilty-offense committed between August 28, 2006 and 2012, victim under age 13, and defendant age 17 or older. |
| Count 4 | CC | Oral/Penile Penetration | Guilty-offense committed between August 28, 2006 and 2012, victim under age 13, and defendant age 17 or older. |
| Count 7 | AB | Penile/Anal Penetration | Guilty-offense committed between December 1, 2005 and August 27, 2006, victim under age 13, and defendant age 17 or older. |
| Count 11 | AC | Digital Penetration | Guilty-offense committed between August 28, 2006 and 2012, victim under age 13, and defendant age 17 or older. |
For the one CSC-I conviction involving conduct committed between December 1, 2005 and August 27, 2006 (Count 7 above), the trial court sentenced defendant to a prison term of 18 to 50 years. For the remaining four CSC-I convictions (Counts 1, 2, 4, and 11 above) involving conduct committed between August 28, 2006 and 2012, the trial court sentenced defendant to prison terms of 25 to 50 years each. For each CSC-II conviction, the court sentenced defendant to 10 to 15 years' imprisonment. Finally, for the three CSC-I sentences involving offenses against AC (Counts 1, 2, and 11 above), the court ordered the sentences to be served consecutively, with all other sentences to be served concurrently.
II. JUDICIAL FACT-FINDING, CONSECUTIVE SENTENCING, AND PROPORTIONALITY
Defendant first argues that the trial court violated his Sixth Amendment rights to a jury trial and to confront the witnesses against him by considering AC's posttrial affidavit and engaging in judicial fact-finding at sentencing to impose consecutive sentences. Defendant also argues that the trial court erred in finding that his CSC-I convictions involving AC arose from the same transaction, thereby allowing the court to impose consecutive sentences under MCL 750.520b(3). He further argues that even if consecutive sentencing was allowed, the trial court abused its discretion by finding that consecutive sentences were appropriate in this case and by failing to adequately explain its reasoning for each consecutive sentence imposed. Finally, defendant argues that the cumulative effect of his consecutive sentences-a 75-year minimum sentence-is disproportionate and violates the constitutional prohibition against cruel and unusual punishment. We reject each of these arguments.
A. STANDARD OF REVIEW
Whether the trial court violated defendant's Sixth Amendment rights by relying on AC's affidavit and engaging in judicial fact-finding at sentencing is a question of law, which this Court reviews de novo. People v Lockridge, 498 Mich. 358, 373; 870 N.W.2d 502 (2015). Whether a statute authorizes a court to impose a consecutive sentence involves a question of law, which is also subject to de novo review. People v Ryan, 295 Mich.App. 388, 400; 819 N.W.2d 55 (2012). "When a statute grants a trial court discretion to impose a consecutive sentence, that decision is reviewed for an abuse of discretion." People v Baskerville, 333 Mich.App. 276, 290; 963 N.W.2d 620 (2020). A court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Norfleet, 317 Mich.App. 649, 654; 897 N.W.2d 195 (2016). A trial court's factual determinations at sentencing are reviewed for clear error and must be supported by a preponderance of the evidence. People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013).
B. JUDICIAL FACT-FINDING
Initially, defendant argues that the trial court erred by engaging in judicial fact-finding at sentencing-and by relying on AC's posttrial affidavit in particular-to find a factual basis for imposing consecutive sentences under MCL 750.520b(3). Defendant acknowledges that under MCL 750.520b(3), a court may only order a sentence imposed for CSC-I to be served consecutively to a term of imprisonment for another offense if the other offense arose "from the same transaction," but argues that AC's trial testimony did not establish a factual basis for finding that the multiple CSC-I convictions involving defendant's conduct against AC arose from the same transaction. Defendant contends that the trial court violated his right to a jury trial by judicially finding that the factual predicate for its authority to impose consecutive sentences was established, and that the court's consideration of AC's affidavit violated his Sixth Amendment right of confrontation. We disagree.
The trial court relied on MCL 750.520b(3) for its authority to impose consecutive sentences in this case, which provides:
The court may order a term of imprisonment imposed under this section to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.
In imposing consecutive sentences, the trial court relied on People v DeLeon, 317 Mich.App. 714; 895 N.W.2d 577 (2016). In that case, the defendant argued that the trial court violated his Sixth Amendment rights when it engaged in judicial fact-finding to find that consecutive sentencing was permitted under MCL 750.520b(3). DeLeon, 317 Mich.App. at 721. After reviewing pertinent United States Supreme Court precedent, including Alleyne v United States, 570 U.S. 99; 133 S.Ct. 2151; 186 L.Ed.2d 314 (2013), Apprendi v New Jersey, 530 U.S. 466, 476; 120 S.Ct. 2348; 147 L.Ed.2d 435 (2000), and Lockridge, 498 Mich. 358, this Court concluded that a defendant does not have a Sixth Amendment right to have a jury determine whether a CSC-I conviction arose from the same transaction as another offense. DeLeon, 317 Mich.App. at 721726. In support of this conclusion, this Court relied on Oregon v Ice, 555 U.S. 160, 164; 129 S.Ct. 711; 172 L.Ed.2d 517 (2016), a post-Apprendi case in which the United States Supreme Court held that the Sixth Amendment did not preclude "the use of judicial fact-finding to impose consecutive sentencing." In Ice, 555 U.S. at 168, the Supreme Court observed that historically, the jury "played no role in the decision to impose sentences consecutively or concurrently," and therefore, "[t]he decision to impose sentences consecutively is not within the jury function" but is the "prerogative of state legislatures."
In DeLeon, 317 Mich.App. at 724, this Court noted that the United States Supreme Court decided Alleyne seven years after Ice but did not make any mention of Ice or do anything to disturb the holding in Ice. This Court further observed that Lockridge likewise "made no mention of Ice or its applicability to the trial court's ability to order, pursuant to relevant statutes, consecutive sentencing for multiple offenses." Id. at 725. This Court held:
We conclude that the rationale of Ice should apply to Michigan's rules governing consecutive sentencing and that this rationale does not run afoul of Lockridge, which has its basis in Apprendi's and Alleyne's reasoning concerning the right to a jury trial and the protections of the Sixth Amendment. We also find persuasive the reasoning of federal courts confronted with this issue after Apprendi and Alleyne. Although consecutive sentencing lengthens the total period of imprisonment, it does not increase the penalty for any specific offense. By contrast, Lockridge prohibits a trial court only from using judge-found facts to increase "the floor of the sentencing guidelines range," and thereby the mandatory minimum sentence for an offense, and it prohibits the guidelines from being mandatory. Lockridge, 498 Mich. at 389. No such increase occurred here, nor would the trial court's imposition of consecutive sentences be affected by whether the sentencing guidelines are mandatory or advisory.
Therefore, although defendant correctly notes that the jury's verdict in this case did not necessarily incorporate a finding that his CSC-I conviction "ar[ose] from the same transaction" as did his CSC-II conviction, MCL 750.520b(3), defendant has no Sixth Amendment right to have a jury make that determination, Ice, 555 U.S. at 164. We discern no conflict between this holding and Lockridge. [DeLeon, 317 Mich.App. at 726.]
DeLeon and Ice are both clear in holding that a trial court is free to engage in judicial factfinding to impose consecutive sentences without violating a defendant's Sixth Amendment rights. Although defendant suggests that these cases were wrongly decided, he does not even attempt to provide a meaningful argument in support of that claim. In any event, because DeLeon was decided after November 1, 1990, it is binding under MCR 7.215(J)(1), and decisions of the United States Supreme Court construing federal law are likewise binding on Michigan courts. People v Gillam, 479 Mich. 253, 261; 734 N.W.2d 585 (2007).
In an effort to distinguish this case from DeLeon and Ice, defendant faults the trial court for relying on AC's affidavit and, citing Apprendi, asserts that any facts required to enhance a sentence are elements of the offense that must be submitted to a jury. In Apprendi, after the defendant pleaded guilty to several offenses, the court imposed an enhanced sentence under a statutory hate crime enhancement. The defendant argued that the trial court's reliance on a statutory enhancement provision to increase his sentence beyond what was authorized for the crimes for which he pleaded guilty violated his right to a jury trial. The United States Supreme Court recognized that criminal defendants have a fundamental right to have a jury determine every element of the charged crime beyond a reasonable doubt. Apprendi, 530 U.S. at 471, 477. This case is distinguishable from Apprendi because it does not involve judicial fact-finding to increase the penalty for an offense found by the jury; rather, it involves the trial court's decision to impose a consecutive or concurrent sentence, which is outside the ambit of the jury. See Ice, 555 U.S. at 168. Moreover, as this Court observed in DeLeon, 317 Mich.App. at 726, "[a]lthough consecutive sentencing lengthens the total period of imprisonment, it does not increase the penalty for any specific offense." Therefore, we reject defendant's argument that the trial court's reliance on AC's affidavit to judicially find that consecutive sentencing was appropriate under MCL 750.520(3) violated his Sixth Amendment rights. Further, as further explained below, AC's trial testimony was itself sufficient to authorize consecutive sentences under MCL 750.520b(3).
We also note that, to the extent that defendant argues that AC's affidavit violated his right to confrontation, this Court has held that the right to confront witnesses does not apply at sentencing, though a defendant "must be afforded an adequate opportunity to rebut any matter that he believes to be inaccurate." People v Uphaus, 278 Mich.App. 174, 184; 748 N.W.2d 899 (2008) (quotation marks and citation omitted). Defendant does not contest the accuracy of AC's affidavit.
C. WHETHER DEFENDANT'S CSC-I CONVICTIONS INVOLVING AC AROSE FROM THE SAME TRANSACTION
Defendant next argues that the trial court erred by finding that his multiple CSC-I convictions involving AC arose "from the same transaction" as contemplated by MCL 750.520b(3). We disagree.
In Ryan, 295 Mich.App. at 402, this Court considered the meaning of "arising from the same transaction" in MCL 750.520b(3). In doing so, this Court first observed that, in the doublejeopardy context, our Supreme Court had explained that the phrase "same transaction" referred to "charges that grew out of a continuous time sequence." Id. (quotation marks and citation omitted). This Court then observed that our Supreme Court had construed the "analogous" statutory phrase "arising out of" to "suggest a causal connection between two events that is more than incidental." Id. at 403 (quotation marks and citation omitted). Employing these definitions, the Ryan Court held that the sexual penetrations forming two of the defendant's convictions in that case arose from the same transaction under MCL 750.520b(3) because they "grew out of a continuous time sequence in which the act of vaginal intercourse was immediately followed by the act of fellatio." Id.
Subsequently, in People v Bailey, 310 Mich.App. 703; 873 N.W.2d 855 (2012), this Court, citing People v Brown, 495 Mich. 962, 963; 843 N.W.2d 743 (2015), held that "an ongoing course of sexually abusive conduct" would not in and of itself implicate the crimes as part of the same transaction as contemplated by MCL 750.520b(3). Rather, "[f]or multiple penetrations to be considered part of the same transaction" within the meaning of MCL 750.520b(3), they must be part of a" 'continuous time sequence'" as opposed to a continuous course of conduct. Bailey, 310 Mich.App. at 725.
Here, the trial court did not err by finding that Counts 1, 2, and 11 arose from the same transaction within the meaning of MCL 750.520b(3), thereby permitting the court to impose consecutive sentences. At trial, AC testified regarding the several acts of penetration committed by defendant when she was a child. AC testified that defendant would place his penis between her thighs and against her genitals, and it would go between the folds of her skin, which she agreed was between her labia majora, causing her pain. She also testified that defendant would place his penis in her mouth and then "[h]e would move" before ejaculating on her. AC also described how defendant would touch her genitals with his fingers, which would go between the labia majora. AC further explained that defendant would engage in multiple acts of penetration at the same time, switching back and forth between different acts. Although AC's affidavit attempted to clarify the nature and timing of the various sexual acts-and, when considered, plainly supported the imposition of consecutive sentencing-AC's trial testimony considered in its entirety, independently supports the trial court's finding that the offenses forming the basis for defendant's three CSC-I convictions involving AC had a connective relationship and were part of a continuous time sequence to justify the imposition of consecutive sentences under MCL 750.520b(3).
D. JUSTIFICATION FOR CONSECUTIVE SENTENCES
Defendant next argues that even if consecutive sentencing was authorized, the trial court abused its discretion by imposing multiple consecutive sentences and otherwise failed to articulate its reasoning for each consecutive sentence imposed to allow for meaningful appellate review. We disagree.
In Michigan, concurrent sentencing is the norm, and a trial court is only permitted to impose a consecutive sentence if specifically authorized by statute. Baskerville, 333 Mich.App. at 289-290. As indicated earlier, MCL 750.520b(3) provided the trial court with discretionary authority to order that defendant's sentences for Counts 1, 2, and 11 be served consecutively. In Norfleet, 317 Mich.App. at 664, this Court held that a decision to impose a consecutive sentence "requires that the trial court set forth the reasons underlying its decision." This requirement extends to each consecutive sentence imposed. Id. at 664-665. While there are no magic words or phrases that a trial court must use when imposing consecutive sentences, the trial court is required to give "particularized reasons" for each consecutive sentence, and it must explain its reasons in sufficient detail to facilitate appellate review. Id. at 665-666.
Here, we conclude that the trial court did not abuse its discretion when it imposed multiple consecutive sentences, and further conclude that the trial court sufficiently explained its reasons for imposing multiple consecutive sentences. Before it issued its sentence, the trial court recognized its obligation under Norfleet to state on the record its reasons for each consecutive sentence imposed. The trial court proceeded to provide a lengthy explanation for its decision to impose multiple consecutive sentences, which included the extensive scope of defendant's sexual abuse of AC and the lengthy period of time over which defendant repeatedly abused her. The trial court also noted the "abhorrent" nature of the crimes, particularly considering that AC was a "defenseless" child who was 7 to 10 years old, and that defendant violated and exploited AC's trust in him as her uncle, and betrayed the trust of his own brother and sister-in-law in order to satisfy his own sexual desires. The court further considered that defendant used guilt to manipulate AC to continue to sexually abuse her, telling her that if she disclosed the abuse to anyone, she would destroy the family. The trial court also considered that, because of defendant's rampant sexual abuse, AC's innocence was stolen, she had to learn about sexual matters at a young age, and her innocence "can never be given back." The trial court also observed that defendant committed the sexual abuse at the home of his own parents, who were AC's grandparents, which was supposed to be a safe and secure place where a child feels protected, but instead became defendant's "playground" and "house of horrors." The trial court also emphasized that it did not see any evidence that defendant had been rehabilitated. The trial court found that consecutive sentencing was absolutely "warranted and justified" in this case.
At sentencing, the court clarified that it was relying on the same rationale as justification for each consecutive sentence imposed.
In our opinion, the trial court complied with its obligation to articulate on the record its reasons for imposing the multiple consecutive sentences, and the extremely egregious facts of this particular case make it an "extraordinary" one in which multiple consecutive sentences were appropriate. Norfleet, 317 Mich.App. at 665. Accordingly, the trial court did not abuse its discretion by ordering defendant's sentences for Counts 1, 2, and 11 to be served consecutively.
E. PROPORTIONALITY AND CRUEL AND UNUSUAL PUNISHMENT
Defendant further argues that his multiple consecutive sentences are "highly disproportionate" and amount to cruel and unusual punishment under the Eighth Amendment. We disagree.
Initially, defendant's individual 25-year minimum sentences were mandated by MCL 750.520b(2)(b). As this Court has recognized, "[s]entences that are legislatively mandated are considered presumptively proportionate and presumptively valid." People v Jarrell, ___ Mich. App___, ___; ___N.W.2d___ (2022) (Docket No. 356070); slip op at 11. Indeed, although a trial court's sentencing decisions are generally reviewed for an abuse of discretion and must be proportionate to the seriousness of the offense and the offender, People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990), the principle of proportionality "has no applicability to a legislatively mandated sentence because the trial court, in that case, lacks any discretion to abuse," People v Bullock, 440 Mich. 15, 34 n 17; 485 N.W.2d 866 (1992). The constitutional concept of proportionality, on the other hand, "concerns whether the punishment concededly chosen or authorized by the Legislature is so grossly disproportionate as to be unconstitutionally 'cruel or unusual.'" Id. at 34 n 17. "In determining whether a punishment is cruel or unusual, one must look to the gravity of the offense and the harshness of the penalty, compare the penalty to those imposed for other crimes in this state as well as the penalty imposed for the instant offense by other states, and consider the goal of rehabilitation." People v Launsburry, 217 Mich.App. 358, 363; 551 N.W.2d 460 (1996).
In People v Benton, 294 Mich.App. 191, 817 N.W.2d 599 (2011), this Court held that the mandatory 25-year minimum sentence required by MCL 750.520b(3) does not qualify as cruel or unusual punishment. This Court considered the gravity and severity of offenses involving an adult offender's exploitation and victimization of children below the age of 13, that a 25-year minimum sentence is not unduly harsh considering society's deeply ingrained social value of protecting children from sexual exploitation, and that "several other states have laws that also impose a mandatory 25-year minimum sentence for an adult offender's sexual offense against a preteen victim." Id. at 204-206. Thus, there is no basis for concluding that defendant's 25-year mandatory sentence is constitutionally cruel and unusual, particularly considering the scope and duration of defendant's sexual abuse.
Further, to the extent that defendant argues that the cumulative effect of his consecutive sentences, amounting to 75 years for three separate convictions of CSC-I, qualifies as disproportionate, our Supreme Court held in People v Miles, 454 Mich. 90, 95; 559 N.W.2d 299 (1997), that "where a defendant receives consecutive sentences and neither sentence exceeds the maximum punishment allowed, the aggregate of the sentences will not be disproportionate under [Milbourn]." Accordingly, defendant cannot challenge the proportionality of the cumulative effect of his consecutive sentences.
Even if we were to consider the proportionality of defendant's sentence under Milbourn, however, we would conclude that it was proportional for the multitude of reasons that the trial court gave for imposing the consecutive sentences.
III. LACK OF REMORSE AND VINDICTIVENESS
Defendant argues that the trial court's decision to impose multiple consecutive sentences was impermissible based in part on the court's consideration of his lack of remorse and assertion of innocence after he had earlier pleaded guilty, and that the court acted vindictively by imposing the multiple consecutive sentences because of defendant's decision to withdraw his guilty plea and pursue his right to a jury trial. We hold that the trial court did not err to the extent that it considered defendant's lack of remorse, and that the record does not support defendant's claims that the trial court imposed consecutive sentences out of vindictiveness or because defendant decided to withdraw his guilty plea, assert his innocence, or pursue his right to a jury trial.
A. LACK OF REMORSE
In People v Carlson, 332 Mich.App. 663, 675; 958 N.W.2d 278 (2020), this Court observed that a trial court, when imposing a sentence, is not permitted to consider a defendant's failure to admit guilt, but may consider a defendant's lack of remorse in tailoring an appropriate sentence. See also People v Houston, 448 Mich. 312, 323; 532 N.W.2d 508 (1995) (observing that a defendant's "absolute lack of remorse and low potential for rehabilitation" are both factors legitimately considered at sentencing). To determine whether a trial court was "improperly influenced" by a defendant's refusal to admit guilt, this Court will consider the following factors:
(1) the defendant's maintenance of innocence after conviction; (2) the judge's attempt to get the defendant to admit guilt; and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe. [People v Dobek, 274 Mich.App. 58, 104; 732 N.W.2d 546 (2007) (quotation marks and citation omitted).]
Here, the record does not support defendant's claim that the trial court impermissibly considered his refusal to admit guilt when determining his sentence. Indeed, defendant made no effort to maintain his innocence after trial. On the contrary, when addressing the trial court at sentencing, defendant apologized for his "sinful acts," which he primarily attributed to his youth, professed profound guilt for his conduct, and claimed that he had since grown up and become a better person. There was no effort by the court to get defendant to admit anything to demonstrate his guilt, and the court did not make any remarks directed at defendant's decisions to pursue his right to a jury trial. The record only discloses that the trial court recognized that defendant stated that he felt remorse for what he had done but found those statements to be insincere and not credible. While defendant takes issue with the trial court's finding that defendant was not remorseful, the trial court was certainly free to disbelieve defendant's expressions of remorse, and this Court generally defers to trial courts on matters of witness credibility. People v Ziegler, ___Mich App ___, ___; ___N.W.2d ___ (2022) (Docket No. 355697); slip op at 3. Accordingly, on this record, we conclude that there is nothing to support defendant's assertions that the trial court was punishing him for asserting his innocence after initially pleading guilty or for pursuing his right to a jury trial.
B. VINDICTIVENESS
In People v Warner, 339 Mich.App. 125, 157; 981 N.W.2d 733 (2021), this Court reviewed United States Supreme Court jurisprudence addressing vindictive sentences following a defendant's successful appeal, and noted that in North Carolina v Pearce, 395 U.S. 711, 723-724; 89 S.Ct. 2072; 23 L.Ed.2d 656 (1969), overruled in part on other grounds by Alabama v Smith, 490 U.S. 794; 109 S.Ct. 2201; 104 L.Ed.2d 865 (1989), the Supreme Court ruled that a sentence imposed to punish a defendant for successfully appealing a conviction is considered vindictive and violative of a defendant's due-process protections. However, the "evil" that the Pearce decision was aimed to protect against is the vindictiveness of the sentencing court, not necessarily a heightened sentence. Warner, 339 Mich.App. at 158. The Court therefore reasoned that a presumption of vindictiveness should not apply if the possibility of judicial vindictiveness is only speculative. Id. The Court noted that this was consistent with how courts have applied Pearce, explaining, "Appellate courts have declined to apply the Pearce presumption of vindictiveness when the reasons for the harsher sentence after a successful appeal are apparent from the surrounding circumstances." Id. As relevant to this appeal, this Court in Warner determined that "judicial vindictiveness is unlikely to have occurred when a defendant receives a higher sentence after proceeding to trial following a previous guilty plea being vacated on appeal." Id. at 159. This is because, even if the same judge were to impose both sentences, the information available to the sentencing judge after the plea is" 'considerably less'" than what would be available after a trial. Id., quoting Smith, 490 U.S. at 801.
Here, defendant's assertion that the trial court vindictively imposed multiple consecutive sentences because defendant decided to withdraw his plea and pursue his right to a jury trial finds no support in the record. First, the circumstances had significantly changed after defendant withdrew his guilty plea because he was convicted at trial of more serious CSC-I offenses, which were not part of his guilty plea. Second, defendant was sentenced by a different judge than the judge who presided over his plea proceeding and previously sentenced him in 2015. Additionally, when the court sentenced defendant in 2021, it was aware of voluminous additional facts and information that were not available in 2015. By the time of sentencing, the court here had presided over a seven-day jury trial at which it heard extensive testimony regarding defendant's commission of more serious offenses that were not part of his prior guilty plea. Under these circumstances, there is no basis for applying a presumption of vindictiveness, or for concluding that the trial court's sentencing decisions were motivated by actual vindictiveness because of defendant's decision to withdraw his guilty plea and pursue his right to a jury trial.
IV. ATTORNEY-CLIENT PRIVILEGE
Defendant next argues that the trial court abused its discretion by allowing his former attorney to testify at trial. We disagree.
Defendant preserved his claim that the admission of his former attorney's testimony violated the attorney-client privilege by objecting on this basis at trial. People v Aldrich, 246 Mich.App. 101, 113; 631 N.W.2d 67 (2001). However, defendant did not raise the constitutional claims that he now raises on appeal-that the admission of his testimony violated his right to due process, his right to remain silent, and his right to the effective assistance of counsel. Accordingly, these constitutional claims are unpreserved. This Court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion, but any concomitant questions of law, "such as whether admission of the evidence is precluded by the assertion of privilege," are reviewed de novo. People v Hill, 335 Mich.App. 1, 5; 966 N.W.2d 156 (2020). See also Stavale v Stavale, 332 Mich.App. 556, 560; 957 N.W.2d 387 (2020) (whether the attorney-client privilege applies to a communication is a question of law that this Court reviews de novo). Defendant's unpreserved constitutional claims are reviewed for plain error affecting defendant's substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).
In Augustine v Allstate Ins Co, 292 Mich.App. 408, 420; 807 N.W.2d 77 (2011), this Court explained the nature and scope of the attorney-client privilege, stating:
"The attorney-client privilege attaches to direct communication between a client and his attorney as well as communications made through their respective agents." Reed Dairy Farm [v Consumers Power Co, 227 Mich.App. 614, 618; 576 N.W.2d 709 (1998)]. "The scope of the attorney-client privilege is narrow, attaching only to confidential communications by the client to his advisor that are made for the purpose of obtaining legal advice." Id. at 618-619. "Although either [the attorney or the client] can assert the privilege, only the client may waive the privilege." Kubiak v Hurr, 143 Mich.App. 465, 473; 372 N.W.2d 341 (1985).
The testimony in question did not violate the attorney-client privilege. The trial court had already admitted defendant's 2016 affidavit, which defendant had previously submitted in support of his motion to withdraw his guilty plea. In that affidavit, defendant admitted to committing "all of the sexual incidents" when he was under the age of 17. His former attorney's testimony focused not on the substance of the affidavit but on the procedural and clerical aspect of preparing an affidavit for a client. The witness testified that, as an attorney, he makes an effort to confirm the veracity and truthfulness of statements in a client's affidavit, but there was nothing in the witness's testimony that otherwise revealed any confidential or privileged communications between himself and defendant. Thus, the record does not support defendant's claim that his former attorney's testimony violated the attorney-client privilege. To the extent that defendant also asserts that the "egregious violation" of the attorney-client privilege undermined his constitutional rights to due process, to remain silent, and to the assistance of counsel, defendant's claims necessarily fail because he has not established a violation of the attorney-client privilege in the first instance.
V. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the evidence at trial was insufficient to establish the requirements necessary to support imposition of a mandatory 25-year minimum sentence for his CSC-I convictions. As relevant to this issue, MCL 750.520b(2) provides, in pertinent part:
Criminal sexual conduct in the first degree is a felony punishable as follows:
* * *
(b) For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any term of years, but not less than 25 years.
Defendant was alleged to have committed the charged crimes between 2002 and 2012. However, MCL 750.520(2)(b) was added by 2006 PA 165, effective August 28, 2006. Thus, for defendant to be subject to the 25-year mandatory minimum sentence prescribed by that added subsection, it was necessary for the jury to find not only that defendant was age 17 or older and his victim was under the age of 13 when defendant committed a CSC-I offense, but also that defendant committed the offense on or after August 28, 2006. Each of these requirements were submitted to the jury. With regard to the five CSC-I charges, the jury found that defendant committed four of the offenses (Counts 1, 2, 4, and 11) on or after August 28, 2006, when defendant was age 17 or older, and his victim was under the age of 13. Those were the only convictions for which the trial court imposed the mandatory 25-year minimum sentence.
Defendant now argues that the evidence at trial was insufficient to satisfy the requirements for imposing a mandatory 25-year minimum sentence, namely, that he committed CSC-I (1) while age 17 or older, (2) against a victim under the age of 13, and (3) the offense was committed on or after August 28, 2006. We disagree.
In People v Haynes, 338 Mich.App. 392, 417; 980 N.W.2d 66 (2021), this Court explained:
This Court reviews a challenge to the sufficiency of the evidence by examining the record evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. This Court must resolve all conflicts in the evidence in favor of the prosecution. [Quotation marks and citations omitted.]
Because the jury found that defendant's CSC-I offense against AB was committed before August 27, 2006, and the trial court did not impose a mandatory 25-year minimum sentence for that conviction, it is only necessary to consider the evidence as it relates to defendant's CSC convictions involving AC (Counts 1, 2, and 11) and CC (Count 4).
The evidence at trial indicated that CC was born in 2002. CC testified that defendant forced him to perform fellatio on an occasion when defendant was watching CC at CC's grandparents' house. CC stated that this incident occurred when he was between the ages of three and five, and then explained that it happened before he attended kindergarten, which he started at "about age five." The jury was specifically required to determine whether any CSC-I offense against CC was committed between December 1, 2005 and August 27, 2006, or between August 28, 2006 and 2012, and it found that the offense was committed during the latter timeframe. Viewing CC's testimony in the light most favorable to the prosecution, the jury could have found that the incident with CC occurred as late as 2007, when CC was five years old and defendant would have been more than 17 years old. Accordingly, the evidence was sufficient to establish that defendant's conviction of CSC-I involving CC was subject to the 25-year mandatory minimum sentence under MCL 750.520(2)(b).
The evidence at trial indicated that AC was born in 1999. AC testified that defendant's sexual abuse started when she was seven years old and did not stop until she was in the fifth grade, when she was 10 years old. AC would have been seven years old on August 27, 2006. She described several acts of sexual penetration committed by defendant until she was 10 years old, including acts of penile-vaginal penetration, fellatio, and digital penetration. Again, for each of the charged CSC-I offenses involving AC, the jury was specifically required to determine whether any offense was committed between December 1, 2005 and August 27, 2006, or between August 28, 2006 and 2012, and it found that each of the offenses were committed during the latter timeframe. Viewing AC's testimony in the light most favorable to the prosecution, the jury could have found that the offenses involving AC occurred after August 28, 2006, when AC would have been seven years old and defendant would have been more than 17 years old. Accordingly, the evidence was also sufficient to establish that defendant's convictions of CSC-I involving AC were subject to the 25-year mandatory minimum sentence under MCL 750.520b(2)(b).
VI. JURY INSTRUCTIONS
For his final argument, defendant contends that the trial court erred by instructing the jury that in a CSC prosecution, time and date were not necessary elements that needed to be proved beyond a reasonable doubt. We disagree.
We review claims of instructional error de novo. People v Spaulding, 332 Mich.App. 638, 654; 957 N.W.2d 843 (2020). In People v Flores, ___Mich App___, ___; ___N.W.2d___ (2023) (Docket No. 360584); slip op at 5, this Court explained:
"A criminal defendant is entitled to have a properly instructed jury consider the evidence against him." People v Hawthorne, 474 Mich. 174, 182; 713 N.W.2d 724 (2006) (cleaned up). Jury instructions are to be read as a whole rather than extracted piecemeal to establish error. People v Kowalski, 489 Mich. 488, 501; 803 N.W.2d 200 (2011). Even if somewhat imperfect, instructions do not create error if they fairly presented the issues to be tried and sufficiently protected defendant's rights. People v Eisen, 296 Mich.App. 326, 330, 820 N.W.2d 229 (2012). No error results from the omission of an instruction if the instructions as a whole covered the substance of the omitted instruction. People v Kurr, 253 Mich.App. 317, 327, 654 N.W.2d 651 (2002).
Jury instructions must include all elements of the charged offenses, as well as any material issues, defenses, and theories that are supported by the evidence. Dobek, 274 Mich.App. at 82. MCL 767.45(1)(b) provides that a criminal information "shall contain . . . [t]he time of the offense as near as may be." In Dobek, 274 Mich.App. at 82-83, this Court explained that in a prosecution for criminal sexual conduct involving a child victim, "[t]ime is not of the essence, nor is it a material element." The defendant in that case had argued that the trial court erred by instructing the jury that the prosecution was not required to prove the date and time of the CSC offenses, even though the information specified a four-day period in September 1995 for one offense and a time period from September to November 1995 for a second offense. Id. at 81. While the jury in that case had expressed confusion regarding whether the prosecution was required to prove that the charges arising out of the first incident happened on the dates specified in the information, which were also set forth in the jury verdict form, the trial court instructed the jury that "time was not an element of the crime of criminal sexual conduct and that the prosecution need not prove the date or time of the offenses beyond a reasonable doubt." Id. at 81-82. This Court found no error, citing MCL 767.45(1)(b), People v Taylor, 185 Mich.App. 1, 8; 460 N.W.2d 582 (1990), and People v Stricklin, 162 Mich.App. 623, 634; 413 N.W.2d 457 (1987), because the case was a CSC prosecution involving a child victim. Dobek, 274 Mich.App. at 84.
In this case, in both its preliminary and final jury instructions, the trial court informed the jury of the elements of CSC-I and CSC-II, as well as the prosecution's burden to prove the elements beyond a reasonable doubt, but further instructed the jury, consistent with M Crim JI 3.10a, that time is not an element of criminal sexual conduct and the prosecutor was not required to prove the date or time of an offense beyond a reasonable doubt. However, to the extent that the ages of the victims and defendant at the time an offense was committed were significant to determining what offense was committed and the possible penalty for that offense, the trial court further instructed the jury, when addressing each of the charged counts, that the prosecution was required to prove beyond a reasonable doubt the relevant ages of defendant and each named victim at the time of the offense. These instructions were sufficient to protect defendant's rights. Accordingly, we reject defendant's claim of instructional error.
In light of our decision to affirm, it is unnecessary to address defendant's additional argument that if this case is remanded for resentencing or for other proceedings, it should be reassigned to a different judge on remand.